
[Federal Register: September 9, 2008 (Volume 73, Number 175)]
[Proposed Rules]               
[Page 52495-52526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09se08-23]                         


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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 225



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


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

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

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

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

ACTION: Notice of proposed rulemaking (NPRM) and request for comments.

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SUMMARY: FRA proposes to amend its existing regulations addressing 
accident/incident reporting in order to clarify ambiguous regulations 
and enhance the quality of information available for railroad casualty 
analysis. In addition to proposing revisions to its regulations, FRA is 
proposing revisions to its Guide for Preparing Accident/Incident 
Reports (FRA Guide) and its Accident/Incident recording and reporting 
forms, and is requesting comments and suggestions on certain topics of 
interest.

DATES: Written Comments: Written comments on the proposed rule must be 
received by November 10, 2008. Comments received after that date will 
be considered to the extent possible without incurring additional 
expense or delay.
    Public Hearing: If any person desires an opportunity for oral 
comment, he or she should notify FRA in writing and specify the basis 
for the request. FRA will schedule a public hearing in connection with 
this proceeding if the agency received a written request for hearing by 
October 9, 2008.

ADDRESSES: Anyone wishing to file a comment or request a public hearing 
should refer to Docket Number FRA-2006-26173 in such comment or 
request. You may submit your comments and related material or request 
for a public hearing by any one of the following methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal. Go 
to http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    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 Privacy Act heading under 
Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

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

SUPPLEMENTARY INFORMATION: Note that, for brevity, references to a 
section in part 225 will omit ``49 CFR''; e.g. Sec.  225.5. References 
to the FRA Guide for Preparing Accident/Incident Reports in part 225 
will omit ``for Preparing Accident/Incident Reports,'' and refer only 
to the ``FRA Guide.'' In addition to revising its regulations in the 
Code of Federal Regulations, FRA is proposing to revise the FRA Guide. 
The proposed FRA Guide is posted on FRA's Web site at http://
safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for 
Changes in Railroad Accident/Incident Recordkeeping and Recording.''
    FRA is also revising its instructions for electronically submitting 
monthly reports to FRA and will publish said instructions in a revised 
Companion Guide: Guidelines for Submitting Accident/Incident Reports by 
Alternative Methods (Companion Guide). Upon completion by FRA the 
Companion Guide will be posted on FRA's Web site at http://
safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for 
Changes in Railroad Accident/Incident Recordkeeping and Recording.''

Background

    In 1910 Congress enacted the Accident Reports Act, Public Law No. 
165, recodified as amended at 49 U.S.C. 20901-20903, ``Accidents and 
Incidents.'' Title 49 U.S.C. 20901 requires in part, that railroad 
carriers file with the Secretary of Transportation reports on ``all 
accidents and incidents resulting in injury or death to an individual 
or damage to equipment or a roadbed arising from the carrier's 
operations during the month'' (emphasis added). Title 49 U.S.C. 20902 
authorizes the Secretary of Transportation to investigate accidents and 
incidents. The Secretary delegated the authority to carry out the 
Accident Reports Act to the Administrator of FRA. 49 U.S.C. 103(c)(1); 
49 CFR 1.49(c)(11). FRA's accident/incident reporting requirements were 
originally issued pursuant to the Accident Reports Act of 1910.
    Sixty years later, Congress enacted the Federal Railroad Safety Act 
of 1970 (FRSA). Public Law No. 91-458, recodified primarily at 49 
U.S.C. chapter 201, with penalty provisions in 49 U.S.C. chapter 213, 
as amended. Section 20103(a) provides that ``[t]he Secretary of 
Transportation, as necessary, shall prescribe regulations and issue 
orders for every area of railroad safety supplementing laws and 
regulations in effect on October 16, 1970.'' The Secretary delegated 
this authority to the Administrator of FRA. 49 CFR 1.49(m). FRA 
reissued its accident reporting regulations, 39 FR 43222, December 11, 
1974, under the added authority of FRSA to cover additional railroads, 
preempt the States from prescribing their own accident reporting 
regulations, and require reporting of occupational illnesses. FRA's 
accident/incident reporting requirements, 49 CFR part 225, are 
currently issued under the dual statutory authority of the Accident 
Reports Act of 1910 and FRSA.
    In 1970, Congress also enacted the Occupational Safety and Health 
Act (OSH Act). Public Law No. 91-596, codified as amended at 29 U.S.C. 
651 et seq. While the OSH Act gives the Secretary of Labor a broad, 
general authority to regulate working conditions that affect the 
occupational safety and health of employees, it also recognized the 
existence of similar authority in other Federal agencies. Section 
4(b)(1) of the OSH Act, codified at 29 U.S.C.

[[Page 52497]]

653(b)(1), provides that the OSH Act shall not apply to working 
conditions as to which another Federal agency exercises statutory 
authority to prescribe or enforce standards or regulations affecting 
occupational safety or health.
    Because FRA exercises statutory authority to prescribe and enforce 
standards and regulations for all areas of railroad safety under the 
FRSA, OSHA's jurisdiction may be preempted by FRA under section 4(b)(1) 
of the OSH Act with regards to certain matters related to railroad 
safety. See Policy Statement asserting FRA jurisdiction over matters 
involving the safety of railroad operations, 43 FR 10584, March 14, 
1978.
    With respect to employee injury and illness recordkeeping, however, 
the Occupational Safety and Health Review Commission ruled that the 
railroad industry must comply with OSHA requirements and must afford 
the Secretary of Labor's representatives access to these records. 
Secretary of Labor v. Contrail (OSHRC Docket No. 80-3495, 1982). In 
doing so the Commission indicated that employee injury and illness 
recordkeeping does not come within the purview of section 4(b)(1) of 
the OSH Act and, therefore, OSHA's jurisdiction has not been displaced 
by FRA's employee injury and illness recordkeeping and reporting 
regulations. Nevertheless, the Commission did state, ``[t]his does not 
mean that railroad industry employers must use the OSHA form, No. 200, 
mentioned in section [29 CFR] 1904.2(a). Section 1904.2(a) allows an 
employer to maintain `an equivalent which is as readable and 
comprehensible [as the OSHA 200 form] to a person not familiar with 
it.' '' Under OSHA's current regulations, 49 CFR 1904.3 states that 
``[i]f you create records to comply with another government agency's 
injury and illness recordkeeping requirements, OSHA will consider those 
records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA 
accepts the other agency's records under a memorandum of understanding 
with that agency, or if the other agency's records contain the same 
information as this Part 1904 requires you to record.'' Accordingly, 
because FRA's employee injury and illness recordkeeping and reporting 
requirements employ equivalent standards to those promulgated by OSHA, 
OSHA does not require railroad carriers to maintain OSHA records in 
addition to FRA records. Rather, railroad carriers are only required to 
report employee injuries and illnesses to FRA in accordance with FRA's 
regulations. FRA makes all railroad employee injury and illness data 
available to OSHA for use in its complementary program of regulation, 
and provides this data to the Bureau of Labor Statistics (BLS) each 
year for inclusion in DOL's national occupational injury and illness 
database.
    Part 225 contains a series of specific accident/incident recording 
and reporting requirements. The purpose of the FRA's accident/incident 
recordkeeping and reporting regulations is ``to provide the Federal 
Railroad Administration with accurate information concerning the 
hazards and risks that exist on the Nation's railroads. FRA needs this 
information to effectively carry out its statutory responsibilities 
under 49 U.S.C. chapters 201-213. FRA also uses this information for 
determining comparative trends of railroad safety and to develop hazard 
elimination and risk reduction programs that focus on prevention 
railroad injuries and accidents.'' 49 CFR 225.1. Part 225's central 
provision requires that each railroad subject to part 225 submit to FRA 
monthly reports of all accidents and incidents that meet FRA's 
reporting criteria. 49 CFR 225.11. Railroad accidents/incidents are 
divided into three groups, each of which correspond to the type of 
reporting form that a railroad must file with FRA: (1) Highway-rail 
grade crossing accidents/incidents; (2) rail equipment accidents/
incidents; and (3) deaths, injuries and occupational illnesses. See 49 
CFR 225.19.
    In 1996, FRA published extensive amendments to its accident/
incident reporting regulations. 61 FR 30940, June 18, 1996, and 61 FR 
67477, December 23, 1996. This was the first major revision of the 
accident/incident reporting requirements since 1974. The primary 
purpose of the revision was to increase the accuracy, completeness, and 
utility of FRA's accident database and to clarify certain definitions 
and regulatory requirements. Among other things, these amendments 
required railroads to adopt and comply with an internal control plan 
(ICP) to ensure accurate reporting of accidents and incidents.
    In 2003, FRA again published extensive amendments to its accident/
incident reporting regulations (FRA's 2003 Final Rule). 69 FR 10107-
10140, March 3, 2003. The primary purpose of these revisions was to 
conform FRA's accident/incident reporting requirements to OSHA's newly 
revised occupational injury and illness recording and reporting 
requirements. 66 FR 5916-6135, January 19, 2001 (codified at 29 CFR 
parts 1904 and 1952) (OSHA's 2001 Final Rule). FRA's 2003 Final Rule 
also addressed other issues and provided for an alternative method of 
recording claimed occupational illnesses with the advent of Form FRA F 
6180.107, ``Alternative Record for Illness Claimed to be Work-
Related.''
    In this document, FRA proposes to amend its accident/incident 
reporting regulations in order to: Clarify ambiguous definitions and 
regulations; add necessary definitions; require the reporting of 
additional types of injuries to all persons; require the reporting of 
suicide data; include a comprehensive list of accident/incident 
reporting exceptions; allow for consolidated accident/incident 
reporting by integrated railroad systems; require railroads to complete 
(by amending the definition for ``Accountable Injury or Illness'') a 
Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness Record'' 
of all injuries and illnesses when such abnormal condition or disorder 
manifests within the work environment regardless of whether the 
condition or disorder is discernably caused by an event or exposure in 
the work environment; set forth requirements for railroad electronic 
recordkeeping systems for purposes of part 225; update regulatory text, 
as applicable; enhance the quality of information available for 
railroad casualty analysis; clarify and limit which highway-rail grade 
crossing fatalities must be telephonically reported to the National 
Response Center (NRC); clarify and refine the requirements and criteria 
for using and retaining Form FRA F 6180.107, ``Alternative Record for 
Illnesses Claimed to be Work Related,'' and the alternative railroad-
designed record; eliminate the oath and notarization requirements for 
Form FRA F 6180.55, ``Railroad Injury and Illness Summary''; allow for 
the electronic submission via the Internet of Forms FRA F 6180.54, 
``Rail Equipment Accident/Incident Report''; 6180.55, ``Railroad Injury 
and Illness Summary''; 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet)''; 6180.57, ``Highway-Rail Grade Crossing 
Accident/Incident Report''; and 6180.81, ``Employee Human Factor 
Attachment''; set forth record retention requirements for certain 
accident/incident recording and reporting records not previously 
addressed; and update FRA's address information. In addition to 
proposing revisions to its regulations, FRA is proposing revisions to 
the FRA Guide and to certain accident/incident

[[Page 52498]]

recording and reporting forms. The proposed FRA Guide and forms are 
posted for public notice and comment on FRA's Web site at http://
safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for 
Changes in Railroad Accident/Incident Recordkeeping and Recording.''
    FRA also requests comments and suggestions on four issues of 
concern. First, FRA requests comments and suggestions for any 
additional information that might be gathered on Form FRA F 6180.57, 
``Highway-Rail Grade Crossing Accident/Incident Report,'' that would be 
useful in determining how and why highway-rail grade crossing 
accidents/incidents occur.
    Second, FRA requests comments and suggestions on whether FRA should 
require railroads to complete longitude and latitude blocks on Form FRA 
F 6180.55a, ``Railroad Injury and Illness Summary (Continuation 
Sheet)'' (blocks 5s and 5t) for trespassers only, and Form FRA F 
6180.54, ``Rail Equipment Accident/Incident Report'' (blocks 50 and 
51). Currently, completion of longitude and latitude data on both of 
these forms is optional.
    Traditionally, FRA and the railroad industry have relied on the 
railroad milepost system to reference location, and in many cases, 
location data derived from the milepost system is accurate for short-
term issues. Over the long-term, however, railroads do change mileposts 
during mergers and reorganizations. Also, mileposts can be inaccurate 
when a railroad is able to build a shorter link, or when a railroad 
does not remove old mileposts when replacement mileposts, which have a 
different starting location, are installed. Accordingly, both FRA and 
the transportation industry are moving aggressively to collection of 
geospatial data (i.e., longitude and latitude coordinates) in order to 
better understand transportation needs, take counter measures when 
there are problems with a specific area or transportation link, and 
facilitate planning.
    FRA is exploring the collection of longitude and latitude data (for 
trespassers only) on Form FRA F 6180.55a, ``Railroad Injury and Illness 
Summary (Continuation Sheet),'' as a means of improving railroad safety 
in the area of trespasser injuries and fatalities. While there are no 
Federal regulations dealing with unauthorized access to (i.e., 
trespassing on) railroad property, FRA has significantly contributed to 
Operation Lifesaver, Inc. (a nonprofit organization devoted to highway-
rail crossing safety and trespasser prevention programs) in hopes of 
reducing the number of trespasser incursions. FRA believes that the 
collection of longitude and latitude coordinates when a trespasser is 
injured is the beginning of the process to define ``hot spots'' of 
unauthorized access to railroad property. Identification of such hot 
spots may be used to target areas for increased law enforcement 
surveillance by public and railroad security forces, and to assist 
Operation Lifesaver in reaching out to schools and other organizations 
in the hot zones for increased educational awareness of safety concerns 
around railroad operations.
    FRA is exploring the collection of longitude and latitude data on 
Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' as a 
means of improving railroad safety in the area of train accidents. FRA 
needs a permanent means of determining the location of an accident. 
This is especially meaningful when a release of hazardous materials or 
leakage of diesel fuel has occurred. Having the geographic coordinates 
for all train accidents will allow FRA to develop better inspection 
planning, identify locations of hazardous materials contamination 
affecting the health and/or environment, and provide to the 
Transportation Security Administration another tool for security 
planning.
    Third, FRA is considering changing the method by which telephonic 
reports of accidents/incidents, as required by Sec.  225.9, are made to 
FRA. Under FRA's current regulations, railroads are required to 
telephonically report certain accidents/incidents to the NRC, which in 
turn, provides notification of the accident/incident to FRA. FRA is 
reviewing whether it would be preferable for railroads to report these 
accidents/incidents directly to FRA via electronic transmission, and 
invites comments and suggestions on this issue.
    Fourth, FRA is proposing in this NPRM to require railroads to 
report to FRA on Form FRA F 6180.55a suicides and attempted suicides, 
otherwise referred to as ``suicide data,'' and requests comments 
addressing State access to such reports. Section Sec.  225.1 states 
that, ``[i]ssuance of these regulations under the Federal railroad 
safety laws and regulations preempts States from prescribing accident/
incident reporting requirements. Any State may, however, require 
railroads to submit to it copies of accident/incident and injury/
illness reports filed with FRA under this part, for accidents/incidents 
and injuries/illnesses that occur in that State.'' FRA realizes that 
suicide data may provide valuable information to State research and 
suicide prevention programs, and wants States to have needed access to 
suicide data. At the same time, however, FRA is concerned about the use 
and public availability of suicide data. Accordingly, FRA is requesting 
comments on how to ensure that restrictions on the use and public 
availability of suicide data at the State level remain consistent with 
those FRA has prescribed in proposed Sec.  225.41. Specifically, that 
suicide data (as defined in Sec.  225.5) will not be included in any 
summaries of data on the number of injuries and illnesses associated 
with railroad operations; that suicide data is not publicly accessible; 
and that suicide data will only be available to the public in 
aggregate.

Section-by-Section Analysis

    Technical Amendment: Throughout the rule text FRA has updated the 
agency's address to reflect FRA's relocation to the new U.S. Department 
of Transportation headquarters building. This revision affects 
Sec. Sec.  225.7(a), 225.11(b), 225.12(g)(3), and the introductory 
paragraph of Sec.  225.21.

Section 225.3 Applicability

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

Section 225.5 Definitions

    FRA proposes to amend paragraph (1) of the definition of 
``Accident/incident'' to conform to the language of the FRA Guide and 
to clarify: That a highway-rail grade crossing accident/incident is not 
limited only to ``impact between an automobile, bus, truck, motorcycle, 
bicycle, farm vehicle or pedestrian'' as stated in the current 
definition; that sidewalks, pathways, shoulders and ditches associated 
with the crossing are considered to be part of the crossing site; and 
that the term ``highway user'' includes pedestrians, cyclists, and all 
other modes of surface transportation, motorized and unmotorized.

[[Page 52499]]

    FRA proposes to amend paragraph (3) of the definition of 
``Accident/incident'' to conform to the revised language proposed for 
Sec.  225.19(d); and to reference, rather than explicitly list, the 
general reporting criteria set forth in Sec.  225.19(d). See Section-
by-Section Analysis for Sec.  225.19(d), ``Primary groups of accidents/
incidents; Death, injury and occupational illness.''
    FRA proposes to amend the definition of ``Accountable injury or 
illness'' to conform to the definition of ``injury or illness'' as 
proposed in this notice; to remove the word ``activity'' from the 
phrase ``by an event, exposure, or activity in the work environment'' 
as redundant since the definition of ``event or exposure'' as proposed 
in this notice is inclusive of activities; and to delete the phrase 
``not otherwise reportable'' due to its to ambiguity and replace 
referenced text with the specification that an accountable injury or 
illness ``does not meet the general reporting criteria listed Sec.  
225.19(d)(1) through (d)(6).'' See Section-by-Section Analysis for 
Sec.  225.19(d), ``Primary groups of accidents/incidents; Death, injury 
and occupational illness.'' These changes are clarifying in nature and 
do not pose any change to FRA's accident/incident recording or 
reporting requirements.
    FRA is also proposing to amend the definition of ``Accountable 
injury or illness'' related to injuries and illness that occur within 
the work environment. Specifically, FRA is proposing that when an 
abnormal condition or disorder of a railroad employee manifests within 
the work environment and causes or requires the railroad employee to be 
examined or treated by a qualified health care professional, but does 
not meet the general reporting criteria listed in Sec.  225.19(d)(1) 
through (d)(6); such condition or disorder is an accountable injury or 
illness regardless of whether the condition or disorder is discernably 
caused by an event or exposure in the work environment. When such 
condition or disorder manifests outside the work environment it is an 
accountable injury or illness if the condition or disorder is 
discernably caused by an event or exposure in the work environment.
    FRA's purpose in making this amendment is to ensure that each 
potentially reportable injury and illness is tracked and evaluated. In 
many cases injuries and illness, and/or the signs and symptoms thereof, 
of one kind or another can be manifest in the work environment without 
the reason(s) (i.e., causes of or contributors to) being apparent. In 
such cases railroads may prematurely attribute the cause of the injury 
or illness solely to a non-work-related event or exposure that occurred 
outside the work environment. Consequently, the railroad does not 
consider the injury or illness to be ``accountable'' and does not 
complete a Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record'' for that injury or illness. In many of these cases 
however, an event or exposure in the work environment may in fact be a 
cause of, or contributor to, the injury or illness, but because the 
railroad made a premature determination that the injury or illness is 
not work-related, the railroad may not subsequently perform adequate 
inquiry (e.g., communication with the employee when the employee 
returns to the work environment after treatment, review of medical 
records, etc.) to make an accurate causal determination. Ultimately, 
this type of oversight will result in the under-reporting of employee 
injuries and illnesses to FRA, and because the railroad did not 
complete a Form FRA F 6180.98 to initially record the injury or 
illness, no audit trail is created. Thus, FRA is unable to later 
evaluate the reportability of the injury or illness. In order to 
rectify this problem, FRA is proposing that the definition of 
``Accountable Injury or Illness'' be amended to require railroads 
complete Form FRA F 6180.98 records for all employee injuries and 
illnesses that involve signs or symptoms that surface at work, 
regardless of whether the injury or illness is discernably caused or 
contributed to by an event or exposure in the work environment. Such 
revision is necessary in order for FRA to effectively enforce its 
railroad injury and illness reporting requirements. Unless FRA has the 
opportunity to examine those injuries and illness which manifest in the 
work environment but are deemed as being not work-related (thus 
``nonreportable''), as well as those deemed ``reportable'' by the 
railroad, it is difficult for FRA to determine whether a railroad is 
making appropriate reporting decisions.
    FRA proposes to amend the definition of ``Accountable rail 
equipment accident/incident'' to mean ``a collision, derailment, fire, 
explosion, act of God, or other event involving the operation of 
railroad on-track equipment (standing or moving) that does not result 
in reportable damages greater than the current reporting threshold to 
railroad on-track equipment, signals, track, track structures, and 
roadbed.''
    Under the current definition, an accountable rail equipment 
accident/incident must be both not reportable, and (if not attended to) 
disrupt railroad service. This revision eliminates the disruption of 
service criteria. The agency believes this change simplifies recording 
requirements related to accountable rail equipment accidents/incidents, 
and will result in railroads maintaining a more complete set of records 
of accountable rail equipment accidents/incidents.
    FRA proposes to add a definition for ``Discernable cause.'' FRA's 
accident/incident reporting regulations that concern railroad 
occupational casualties should be maintained, to the extent 
practicable, in general conformity with OSHA's recordkeeping and 
reporting regulations to permit comparability of data on occupational 
casualties between various industries, to allow integration of railroad 
industry data into national statistical databases, and to improve the 
quality of data available for analysis of casualties in railroad 
accidents/incidents. Moreover, maintaining such compatibility allows 
railroads to report occupational casualties only to FRA, rather than to 
OSHA and to FRA. OSHA's regulations provide that ``[i]f you create 
records to comply with another government agency's injury and illness 
recordkeeping requirements, OSHA will consider those records as meeting 
OSHA's Part 1904 recordkeeping requirements if OSHA accepts the other 
agency's records under a memorandum of understanding with that agency, 
or if the other agency's records contain the same information as this 
Part 1904 requires you to record.'' See 29 CFR 1904.3.
    Note that under OSHA's regulations, the term ``recording''' is 
used. Under FRA's regulations and Guide, the term ``reporting'' is 
used. FRA has always used the term ``reporting'' in its regulations and 
the FRA Guide, and because the Accident Reports Act of 1910, as 
amended, requires ``a railroad carrier [to] file a report * * * on all 
accidents and incidents * * *'' 49 U.S.C. 20901.
    With respect to employee injury and illness recording, OSHA's 2001 
Final Rule, states that ``each employer * * * must record each 
fatality, injury and illness that is work-related; and is a new case; 
and meets one or more of the general recording criteria * * * or the 
application to specific cases.'' 66 FR 5916, 5945, January 19, 2001, 
codified at 29 CFR 1904.4(a). OSHA's 2001 Final Rule goes on to state 
that ``[employers] must consider an injury or illness to be work-
related if an event or exposure in the work environment either caused 
or contributed to the resulting condition or significantly aggravated a 
pre-existing injury or illness,'' and that ``[w]ork-relatedness is 
presumed for injuries and illnesses resulting from events or

[[Page 52500]]

exposures occurring in the work environment, unless an exception in [29 
CFR] 1904.5(b)(2) specifically applies.'' 66 FR 5916, 5946, January 19, 
2001, codified at 29 CFR 1904.5(a).
    After OSHA's 2001 Final Rule was published, the National 
Association of Manufacturers (NAM) filed a legal challenge to the final 
rule, with respect to (among other things) the final rule's presumption 
of work-relatedness, in the United States District Court for the 
District of Columbia. On November 16, 2001, OSHA and NAM entered into a 
settlement agreement to resolve NAM's legal challenge. The parties then 
entered into a revised settlement agreement on November 29, 2001. The 
revised settlement agreement was published in the Federal Register at 
66 FR 66943, December 27, 2001. As part of the NAM-OSHA settlement, the 
parties agreed to the following:

    Section 1904.5(a) states that ``[the employer] must consider an 
injury or illness to be work-related if an event or exposure in the 
work environment either caused or contributed to the resulting 
condition or significantly aggravated a pre-existing condition. Work 
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring in the work environment * * *'' Under 
this language [29 CFR 1904.5(a)], a case is presumed work-related 
if, and only if, an event or exposure in the work environment is a 
discernable cause of the injury or illness or of a significant 
aggravation to [sic] pre-existing condition. The work event or 
exposure need only be one of the discernable causes; it need not be 
the sole or predominant cause.
    Section 1904.5(b)(2) states that a case is not recordable if it 
``involves signs or symptoms that surface at work but result solely 
from a non-work-related event or exposure that occurs outside the 
work environment.'' This language is intended as a restatement of 
the principle expressed in 1904.5(a), described above. Regardless of 
where signs or symptoms surface, a case is recordable only if a work 
event or exposure is a discernable cause of the injury or illness or 
of a significant aggravation to a pre-existing condition.
    Section 1904.5(b)(3) states that if it is not obvious whether 
the precipitating event or exposure occurred in the work environment 
or elsewhere, the employer ``must evaluate the employee's work 
duties and environment to decide whether or not one or more events 
or exposures in the work environment caused or contributed to the 
resulting condition or significantly aggravated a pre-existing 
condition.'' This means that the employer must make a determination 
whether it is more likely than not that work events or exposures 
were a cause of the injury or illness, or a significant aggravation 
to a pre-existing condition. If the employer decides the case is not 
work-related, and OSHA subsequently issues a citation for failure to 
record, the Government would have the burden of proving that the 
injury or illness was work-related.''

    In 2003, FRA revised its accident/incident reporting regulations to 
conform, to the extent practicable, to OSHA's revised requirements. 68 
FR 10108-10140, March 3, 2003. In doing so FRA took into account the 
NAM-OSHA settlement agreement, in particular the agreement's reference 
to the term ``discernable''' to qualify or describe cause. FRA included 
the phrase ``discernable cause'' in its definitions of ``Accident/
incident,'' ``Accountable injury or illness,'' and ``Occupational 
illness'' in Sec.  225.5, and added the phrase to its reporting 
requirement for ``Deaths, injuries and occupational illnesses'' at 
Sec.  225.19(d). While FRA did discuss the meaning of ``discernable 
cause'' in the preamble of FRA's 2003 Final Rule, see 68 FR 10108, 
10127, March 3, 2003, the agency did not explicitly define the term 
``Discernable cause'' in the rule text. In order to clarify the meaning 
of this term, FRA therefore proposes to include in Sec.  225.5 a 
definition for ``Discernable cause'' to mean, ``a causal factor capable 
of being recognized by the senses or the understanding.'' See Webster's 
Third New International Dictionary, (1961). See also, Webster's Third 
New International Dictionary, Unabridged, (1971). And to explain in the 
text of the definition that ``[a]n event or exposure arising from the 
operation of a railroad is a discernable cause of (i.e., discernably 
caused) an injury or illness if, considering the circumstances, it is 
more likely than not that the event or exposure is a cause of the 
injury or illness. The event or exposure arising from the operation of 
a railroad need not be a sole, predominant or significant cause of the 
injury or illness, so long as it is a cause (i.e., a contributing 
factor).''
    For clarification purposes, FRA proposes to add a definition for 
``Event or exposure'' to include an ``incident, activity, or 
occurrence'' to clarify that event or exposure is a term that is to be 
broadly interpreted and to eliminate redundant language in the rule 
text.
    FRA proposes to amend the definition of ``Event or exposure arising 
from the operation of a railroad'' in order to clarify its meaning. The 
term ``event or exposure arising from the operation of a railroad'' and 
its definition were added to Sec.  225.5 in FRA's 2003 Final Rule to 
replace ``arising from the operation of a railroad'' and its 
definition. The agency made this amendment to tailor more narrowly what 
types of accidents/incidents were considered to ``arise from the 
operation of a railroad'' and therefore be potentially reportable. 68 
FR 10108, 10115-16, March 3, 2003.
    FRA's current definition of ``Event or exposure arising from the 
operation of a railroad'' has a three-tier definition:
    The first tier defines ``event or exposure arising from the 
operation of a railroad'' broadly ``with respect to any person on 
property owned, leased, or maintained by the railroad, an activity of 
the railroad that is related to its rail transportation business or an 
exposure related to the activity.'' FRA proposes to revise this first 
tier of the definition by changing ``any person'' to ``a person who is 
not an employee of the railroad.'' Such change is consistent with the 
intent of the paragraph as stated in the preamble to FRA's 2003 Final 
Rule:

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

68 FR 10108, 10109, March 3, 2003. This lends to the accuracy of the 
definition, since tier one was intended to apply only to persons who 
are not railroad employees. FRA also proposes to amend this paragraph 
for purposes of clarification by removing the phrase ``any activity of 
the railroad'' such that tier one of the definition, as proposed, would 
indicate that with respect to a person who is not an employee of the 
railroad, an event or exposure that occurs on property owned, leased, 
or maintained by the railroad and is related to the performance of the 
railroad's rail transportation business. FRA is proposing to delete the 
reference to ``activity'' since the proposed definition of ``event or 
exposure'' includes ``activity.''
    The second tier also defines ``event or exposure arising from the 
operation of a railroad'' broadly, but ``with respect to an employee of 
the railroad (whether on or off property owned, leased or maintained by 
the railroad), an activity of the railroad that is related to the 
performance of its rail transportation business or an exposure related 
to that activity.'' FRA proposes to amend this paragraph for purposes 
of clarification by revising the definition to state ``with respect to 
a person who is an employee of a railroad, an event or exposure that is 
work-related.'' This amendment thus removes the phrase ``any activity 
of the railroad,'' since the proposed definition of ``event or 
exposure'' includes ``activity.'' It also removes the phrase ``(whether 
on or off property owned, leased, or maintained by the railroad)'' and 
``that is related to the performance

[[Page 52501]]

of the railroad's rail transportation business * * *'' since ``work-
related'' encompasses both of those requirements.
    The third tier defines ``Event or exposure arising from the 
operation of a railroad narrowly with respect to a person who is 
neither on the railroad's property nor an employee of the railroad, to 
include only certain enumerated events or exposures, i.e., a train 
accident, a train incident, or a highway-rail crossing accident/
incident involving the railroad; or a release of hazardous material 
from a railcar in the railroad's possession or a release of another 
dangerous commodity if the release is related to the railroad's rail 
transportation business.'' 68 FR 10108, 10116, March 3, 2003. FRA 
proposes no substantive change to this tier of the definition, but is 
incorporating the tier three definition into the tier one (paragraph 
(1) of the definition of ``event or exposure arising from the operation 
of a railroad'') since both tier one and tier three apply to persons 
who are not railroad employees.
    The amendments to tier one, tier two and tier three of the 
definition of ``Event or exposure arising from the operation of a 
railroad'' will then be organized such that paragraph (1) will be 
applicable to non-employees and paragraph (2) will be applicable to 
employees. These amendments are clarifying measures and do not change 
the meaning of the term. The definition continues to mean, consistent 
with FRA's 2003 Final Rule, ``that a railroad would not have to report 
to FRA the death of or injury to an employee of a contractor to the 
railroad who is off railroad property (or deaths or injuries to any 
person who is not a railroad employee) unless the death or injury 
results from a train accident, train incident, or highway-rail grade 
crossing accident involving the railroad; or from a release of a 
hazardous material or some other dangerous commodity in the course of 
the railroad's rail transportation business. In addition, FRA would 
require railroads to report work-related illnesses only of railroad 
employees and under no circumstances the illness of employees of a 
railroad contractor.'' 68 FR 10108, 10116, March 3, 2003.
    FRA proposes a technical amendment to the definition of ``General 
reporting criteria'' to include criteria number [225.19(d)] (6), 
``Illness or injury that meets the application of any of the 
[enumerated] specific case criteria,'' which was inadvertently omitted 
in FRA's 2003 Final Rule.
    FRA proposes to add a definition of ``Injury or illness'' to mean 
``an abnormal condition or disorder,'' (this is consistent with OSHA's 
definition at 29 CFR 1904.46), and to provide examples of injuries and 
illnesses. In doing so, FRA clarifies that pain is an injury or illness 
when it is sufficiently severe to meet the general reporting criteria 
listed in Sec.  225.19(d)(1) through (d)(6). See OSHA's Final Rule, 66 
FR 5916, 6080, January 19, 2001. FRA also clarifies that a 
Musculoskeletal Disorder is an injury or illness. See OSHA's Final 
Rule, 66 FR 5916, 6017, January 19, 2001 and 68 FR 38601, 38602, June 
30, 2003. Incorporation of such definition does not represent any 
change to FRA's current accident/incident recording and reporting 
requirements. The definition has been included in an effort to 
eliminate confusion as to what constitutes an injury or illness. FRA 
wishes to emphasize that injuries and illnesses are reportable only if 
they are new cases discernably caused or significantly aggravated by an 
event or exposure arising from the operation of a railroad, that meet 
one or more of the general reporting criteria.
    FRA proposes to amend the definition of ``New case'' to apply to 
all persons rather than only to employees. Correspondingly, FRA is 
replacing the phrase ``in the work environment'' to ``arising from the 
operation of a railroad'' since the term `` work environment'' also 
applies only to employees. Such change is consistent with the statutory 
requirement that railroads report to FRA ``all accidents and incidents 
resulting in injury or death to an individual * * * arising from the 
carrier's operations during the month,'' not just accidents and 
incidents resulting in injury or death to railroad employees. See 49 
U.S.C. 20901. FRA considers this amendment a correction to the current 
definition that does not affect reporting requirements. FRA also 
proposes to include the descriptor ``discernably'' before ``caused'' in 
the definition of ``New case'' to be consistent with the rest of the 
part 225 regulatory language.
    FRA proposes to amend the definition of ``Qualified health care 
professional'' to remove the example regarding an otolaryngologist. The 
definition currently states, ``[f]or example, an otolaryngologist is 
qualified to diagnose a case of noise induced hearing loss and identify 
potential causal factors, but may not be qualified to diagnose a case 
of repetitive motion injuries'' since, as a licensed physician, an 
otolaryngologist can diagnose conditions other than those related to 
the ears, nose, throat, and related structures of the head and neck.
    FRA proposes to amend the definition of ``Railroad.'' Currently, 
part 225 defines ``railroad'' as ``a person providing railroad 
transportation.'' In order to attain better consistency with Congress' 
1994 revisions to 49 U.S.C. 20102, FRA proposes to define ``railroad'' 
as meaning ``a railroad carrier,'' and add a definition to Sec.  225.5 
for ``railroad carrier'' as meaning a ``person providing railroad 
transportation.''
    Congress added the term ``Railroad carrier'' to 49 U.S.C. 20102 in 
1994 (Pub. L. No. 103-272, 108 Stat 745), as part of a larger effort 
``[t]o restate the laws related to transportation in one comprehensive 
title'' and ``attain uniformity [of language] within the title.'' See 
House Report No. 103-180 at 3, reprinted in 1994 U.S.C.C.A.N. 818, 820. 
Specifically, Congress defined ``railroad carrier'' at 49 U.S.C. 
20102(2) as a ``person providing railroad transportation,'' in order to 
``distinguish between railroad transportation and the entity providing 
railroad transportation.'' See House Report No. 103-180 at 79, 
reprinted in 1994 U.S.C.C.A.N. 818, 898. FRA's definition of ``railroad 
transportation'' remains unchanged.
    FRA proposes to add a definition for ``Significant aggravation of a 
pre-existing injury or illness.'' This definition is consistent with 
that of OSHA as set forth at 29 CFR 1904.5(b)(4) and the current 
version (effective May 1, 2003) of the FRA Guide. FRA proposes to add 
the definition to Sec.  225.5 for clarification and ease of reference.
    FRA proposes to add a definition for ``Suicide data.'' Consistent 
with FRA's proposal to remove suicide and attempted suicide from its 
current Sec.  225.15 reporting exceptions (see Section-by-Section 
Analysis for 225.15, ``Accidents/Incident not to be reported''), and 
begin collecting suicide related data, FRA proposes to add to Sec.  
225.5 a definition for ``Suicide data,'' to mean data regarding the 
death of an individual due to that individual's commission of suicide 
as determined by a coroner or other public authority; or injury to an 
individual due to that individual's attempted commission of suicide as 
determined by a public authority. FRA emphasizes that only the death of 
or injury to the individual who committed the suicidal act is 
considered to be suicide data. FRA will not report suicide data to 
OSHA. FRA will not include suicide data (as defined in Sec.  225.5) in 
its periodic summaries of data on the number of injuries and illnesses 
associated with railroad operations. FRA will maintain suicide

[[Page 52502]]

data in a database that is not publicly accessible. Accordingly, 
suicide data will not be available on FRA's Web site for individual 
reports or downloads. Suicide data will be available to the public in 
aggregate format on FRA's Web site and via requests under the Freedom 
of Information Act. See Sec.  225.41, ``Suicide data'' as proposed in 
this NRPM.
    FRA proposes to amend the definition of ``Work environment'' to 
explain that the work environment means the establishment and other 
locations where on or more railroad employees are working or present as 
a condition of employment. Such addition brings additional clarity and 
better conforms FRA's definition to OSHA's definition at 29 CFR 
1904.5(b)(1).
    FRA proposes to revise the definition of ``Work-related'' by 
removing the words ``incident, activity, * * * or the like'' and 
replacing them with ``event or exposure'' since the definition of 
``event or exposure'' as proposed in this section encompasses those 
terms. FRA also explains in the definition that an injury or illness is 
presumed work-related if an event or exposure in the work environment 
is a discernable cause of the resulting condition or a discernable 
cause of a significant aggravation to a pre-existing injury or illness; 
that the causal event need not be peculiarly occupational in nature so 
long as it occurs at work; that the causal event need only be a cause 
(i.e., contributory factor); and that if an injury or illness is within 
the presumption, the employer can rebut the work-relatedness only by 
showing that the case falls within an exception listed in 49 CFR 
225.15. Such presumption is consistent with the NAM-OSHA settlement 
agreement, 66 FR 66943, December 27, 2001, and with OSHA's regulations 
which require that ``[employers] must consider an injury or illness to 
be work-related if an event or exposure in the work environment either 
caused or contributed to the resulting condition or significantly 
aggravated a pre-existing condition.'' 29 CFR 1904.5(a). OSHA's 
regulation goes on to explain that ``[w]ork-relatedness is presumed for 
injuries and illnesses resulting from events or exposures occurring in 
the work environment, unless an exception in [29 CFR] 1904.5(b) 
specifically applies.'' Id. At 29 CFR 1904.5(b)(2), OSHA sets forth 
nine exceptions to its injury and illness reporting requirements. FRA's 
reporting exceptions are currently set forth at Sec.  225.15 and in the 
FRA Guide. FRA is proposing in this Notice to include all FRA accident/
incident reporting exceptions in Sec.  225.15. See Section-by-Section 
Analysis for Sec.  225.15, ``Accidents/Incident not to be reported.''
    In cases where it is not obvious whether a precipitating event or 
exposure occurred in the work environment, the employer must evaluate 
the employee's work duties and environment to decide whether it is more 
likely than not that an event or exposure at work contributed to the 
employee's injury or illness. FRA's requirement is consistent with that 
of OSHA at 29 CFR 1904.5(b)(3) where OSHA addresses how an employer 
should handle a case if it is not obvious whether the precipitating 
event or exposure occurred in the work environment, stating ``in these 
situations, [the employer] must evaluate the employee's work duties and 
environment to decide whether or not one or more events or exposures in 
the work environment either caused or contributed to the resulting 
condition or significantly aggravated a pre-existing condition'' and 
with the NAM-OSHA settlement agreement, 66 FR 66943, December 27, 2001.
    FRA also wishes to clarify that an event or exposure that occurs in 
the work environment need not have a clear connection to a specific 
work activity, condition, or substance that is peculiar to the railroad 
transportation business in order to be an ``event or exposure arising 
from the operation of a railroad.'' Examples of events or exposures 
arising from the operation of a railroad include an employee tripping 
for no apparent reason while walking across a level floor; an employee 
being sexually assaulted by a co-worker; or an employee being injured 
by an act of violence perpetrated by one co-worker against a third 
party. See OSHA's 2001 Rule, 66 FR 5916, 5946, January 19, 2001. In 
such cases the employee's job-related tasks and exposures did not 
create or contribute to the risk that an injury or illness would occur. 
Id. Rather, these activities are events or exposures arising from the 
operation of a railroad because they occurred in the work environment. 
Likewise, normal body movements (e.g., walking, climbing a staircase, 
bending down, sneezing) engaged in by an employee at the time of injury 
are also events arising from the operation of a railroad, even if the 
body movement is not related to the employee's job related tasks. See 
66 FR 5916, 5957-5958, January 19, 2001. Correspondingly, events or 
exposures involving contractors or volunteers that occur on property 
owned, leased or maintained by the railroad, also arise from the 
operation of a railroad even if they do not have a clear connection to 
a specific work activity, condition, or substance that is peculiar to 
the railroad transportation business.

Section 225.6 Consolidated Reporting

    FRA proposes to add Sec.  225.6 addressing consolidated railroad 
accident/incident reporting for certain integrated railroad systems.
    Title 49 U.S.C. 20901 requires that each ``railroad carrier'' 
submit to FRA a monthly report of its accidents/incidents. Title 49 
U.S.C. 20102 defines a ``railroad carrier'' as a ``person providing 
railroad transportation.'' ``Person,'' as defined by 1 U.S.C. 1 
``include[s] corporations, companies, associations, firms, 
partnerships, societies, and joint stock companies, as well as 
individuals.'' Generally, FRA has considered subsidiary corporations as 
discrete ``persons'' or ``railroad carrier[s],'' each individually 
responsible for complying with FRA's accident/incident reporting 
requirements, regardless of the subsidiary's affiliation with any other 
incorporated railroad. This interpretation is consistent with the 
general rule that the corporate parent shareholder is not liable for 
the debts of the subsidiary. As such, FRA has generally treated each 
incorporated ``railroad carrier'' as an independent entity responsible 
for complying with Federal railroad safety laws, regardless of the 
railroad's affiliation with any other incorporated entity.
    Due to the proliferation of mergers within the railroad industry 
however (since 1970, the dozens of Class I railroads then in existence 
have merged into an industry structure of just seven Class I 
railroads), incorporation is no longer a reliable indicator of who is 
truly ``providing railroad transportation'' since merged railroads do 
not always become a single legal entity. Many railroad mergers were 
structured so that the acquiring (i.e., parent) railroad allowed the 
target (i.e., subsidiary) railroad to survive as a separate legal 
entity after the merger. Acquiring railroads preferred this type of 
merger because certain rights and properties of the target railroad 
were more likely to remain intact than if the target disappeared. This 
proclivity still holds true.
    Because merged railroads may operate as independent entities, or as 
a single larger commonly controlled integrated railroad system, 
compliance with and enforcement of part 225 is increasingly difficult, 
since the operations of merged railroads often become so integrated 
that parent railroad corporations (and consequently FRA) are not 
necessarily able to disaggregate their operations, especially in terms 
of identifying which

[[Page 52503]]

subsidiary railroad employs a worker or owns the equipment or trackage 
involved in an accident/incident. As a result, accident and incident 
recording and reporting inaccuracies by the railroads are more likely 
to occur, and remain undiscovered by FRA, thus undermining the 
integrity of FRA's accident and incident databases. For these reasons, 
Canadian National Railroad, in the latter half of 2004, requested that 
FRA allow them to report their operationally integrated subsidiary's 
accidents/incidents on a consolidated basis, rather than discreetly. 
Upon review of the issue, for purposes of part 225 only, FRA proposes 
to adhere to the view that where a parent corporation dominates its 
subsidiary railroads and operates as a single, integrated United States 
railroad system, FRA may consider the dominating corporation as 
principal (i.e., the ``provider of railroad services'') for the entire 
system, and the subsidiary corporation(s) as agent, thus making the 
acts of the latter in effect the acts of the former. In other words, 
FRA may treat the parent corporation as the ``railroad carrier'' for 
that system. This means that the parent corporation is responsible for 
the system's compliance with part 225, and that any time an FRA 
representative finds an instance of noncompliance by any of the 
subsidiaries making up the system, the FRA representative may recommend 
to FRA's Office of Chief Counsel that a civil penalty be issued against 
the parent corporation.
    A parent corporation may request in writing that FRA treat its 
commonly controlled railroad carriers, which operate as a single, 
seamless, integrated United States rail system, as a single railroad 
carrier for purposes of part 225 compliance. The written request must 
provide a list of the subsidiary railroads controlled by the parent 
corporation and an explanation as to how the subsidiary railroads 
operate as a single, seamless, integrated United States railroad 
system.
    If, upon review of this information, it is FRA's belief that ``the 
provider of railroad services'' is actually the parent corporation, FRA 
may treat the parent corporation as the railroad carrier for purposes 
of part 225. If the agency grants the request, the parent corporation 
must enter into a written agreement with FRA specifying which 
subsidiaries are included in its railroad system, consenting to assume 
responsibility for compliance with part 225 for all named subsidiaries 
making up the system, and consenting to guarantee any liabilities owed 
to the United States government that are incurred by its named 
subsidiaries for violating part 225. Any change to the subsidiaries 
making up the railroad system will require execution of an amended 
agreement.
    This interpretation is consistent with the Surface Transportation 
Board's (STB) Decision Ex Parte No. 634 (Proposal to Require 
Consolidated Reporting by Commonly Controlled Railroads) (November 7, 
2001). In this decision, STB required that each group of railroads that 
operate as a single, integrated United States rail system whose 
cumulative operating revenues meet the Class I threshold, submit 
consolidated annual financial reports that combine the operations of 
all their commonly controlled railroads that operate as an integrated 
rail system within the United States. Prior to this decision, STB did 
not require commonly owned railroads to report on a consolidated basis. 
As such, families of railroads that were operated as an integrated 
system with cumulative operating revenues well above the $250 million 
threshold were not required to file financial reports so long as the 
operating revenues of each individual railroad was less that $250 
million. By requiring that all components of an integrated system be 
combined, STB asserts that it is able to gather more meaningful and 
accurate information on the large rail systems operating in the United 
States, and determine whether the railroad systems are Class I (large 
railroads), Class II (medium-sized railroads), or Class III (smaller 
railroads). Likewise, FRA believes that by treating all components of 
an integrated system as a single railroad, FRA will be able to gather 
more meaningful and accurate accident/incident data.

Section 225.9 Telephonic Reports of Certain Accidents/Incidents and 
Other Events

    FRA proposes to clarify its accident/incident telephonic reporting 
requirements related to fatalities that occur at highway-rail grade 
crossings as a result of train accidents or train incidents.
    Currently, FRA requires railroads to report immediately, via 
telephone, to the NRC ``a fatality at a highway-rail grade crossing as 
a result of a train accident or train incident.'' Sec.  
225.9(a)(2)(iii). FRA has found that confusion exists as to the 
applicability of this requirement when death does not actually occur at 
the scene of the highway-rail grade crossing accident/incident, but 
some hours or days later, after the fatally injured person is taken to 
the hospital for treatment.
    Upon review, FRA proposes to revise the telephonic reporting 
requirement for highway-rail grade crossing fatalities to require that 
such fatalities must be telephonically reported only if death occurs 
within 24 hours of the accident/incident. This proposal is consistent 
with Department of Transportation, Office of Inspector General's 
November 28, 2005, recommendation (Report No. MH-2006-016) to FRA that 
the FRA amend Sec.  225.9 to clarify reporting requirements and include 
criteria that require railroads to report to NRC any death that occurs 
within 24 hours of a highway-rail grade crossing accident/incident.
    FRA also proposes a technical amendment to paragraph (a)(2)(iv) by 
adding the words ``or more'' after $150,000 to clarify that the 
telephonic reporting requirement is triggered when a train accident 
results in damage of $150,000 or more to railroad and nonrailroad 
property.

Section 225.11 Reporting of Accidents/Incidents

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

Sec.  225.15 Accidents/Incidents Not To Be Reported

    In this section, FRA proposes to revise Sec.  225.15 to include a 
comprehensive list of injury/illness and rail equipment accident/
incident reporting exceptions (formerly listed partially in Sec.  
225.15 and in the FRA Guide). As discussed in the Section-by-Section 
Analysis of Sec.  225.5, ``Definitions'' with respect to the

[[Page 52504]]

definition of ``Work-relatedness,'' OSHA's regulations require that 
``[employers] must consider an injury or illness to be work-related if 
an event or exposure in the work environment either caused or 
contributed to the resulting condition or significantly aggravated a 
pre-existing condition.'' 29 CFR Sec.  1904.5(a). OSHA's regulation 
goes on to explain that ``Work-relatedness is presumed for injuries and 
illnesses resulting from events or exposures occurring in the work 
environment, unless an exception in [29 CFR] 1904.5(b) specifically 
applies.'' 29 CFR 1904.5 (a). FRA has established certain reporting 
exceptions in Sec.  225.15 and has also adopted OSHA's reporting 
exceptions in the current FRA Guide.
    FRA's proposed list of exceptions includes both the FRA orientated 
exceptions and exceptions set forth by OSHA at 29 CFR 1904.5(b) as 
adopted by FRA. Upon drafting this Notice to incorporate the reporting 
exceptions into this section, FRA reviewed the applicability of each 
injury and illness reporting exception as related to the class of 
injured person, and incorporates this information into the rule text.
    In making this revision, FRA leaves paragraph (a) substantively 
unchanged.
    In paragraph (b), FRA addresses reporting exceptions for Class A--
Worker on Duty--Employee injuries and illness. Paragraph (b)(1) retains 
the current paragraph (b) reporting exception relating to injuries and 
illnesses occurring in living quarters. To paragraph (b) FRA adds 
additional reporting exceptions applicable to Employees on Duty--Class 
A (paragraphs (b)(2) through (b)(3)). These exceptions do not affect a 
railroad's obligation to report to FRA Class B--Employee not on duty 
injuries.
    Paragraph (c) contains reporting exceptions applicable to all 
employees (whether on or off duty). With respect to the reporting 
exception listed in paragraph (c)(3), FRA wishes to clarify that an 
injury or illness that is solely the result of an employee eating, 
drinking, or preparing food or drink for personal consumption is not 
reportable. It does not matter if the employee bought the food on the 
employer's premises or brought the food into work. For example, if the 
employee is injured by choking on a sandwich while in the employer's 
establishment, the case would not be considered work-related. If, 
however, the employee is made ill by ingesting food contaminated by 
workplace contaminants (such as lead), or gets food poisoning from food 
supplied by the employer, the case would be considered reportable if 
the case meets the general reporting criteria set forth at Sec.  
225.19(d)(1)-(d)(6).
    In paragraph (d), FRA addresses the applicability of the reporting 
exceptions listed in paragraph (b) and (c) to contractors and 
volunteers. The reporting exceptions for employee injuries and 
illnesses apply equally to volunteer injuries and illnesses and to 
contractor injuries (contractor illnesses are not reportable to FRA). 
Because an injury to a contractor, or injury to or illness of a 
volunteer, must occur on property owned, leased or maintained by the 
railroad (rather than in the work environment), any reference to the 
term ``work environment'' in paragraph (b) is construed to mean, for 
the purposes of paragraph (d) only, on property owned, leased, or 
maintained by the railroad. The application of the exceptions as stated 
in paragraph (d) does not reflect any change to FRA's provisions, but 
is included to clarify the applicability of the reporting exceptions to 
contractors and volunteers. Paragraph (e) addresses reporting 
exceptions for rail equipment accidents/incidents which are currently 
included in the FRA Guide.
    The agency believes these exceptions should be incorporated into 
the rule, and that doing so will provide a better understanding of 
FRA's employee injury and illness reporting requirements. The reporting 
exceptions do not affect a railroad's obligation to maintain records of 
accidents/incidents as required by Sec.  225.25 (Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record'' and Form FRA F 
6180.97, ``Initial Rail Equipment Accident/Incident Record''), as 
applicable.
    FRA also proposes to eliminate from the reporting exceptions 
suicides and attempted suicides. In doing so FRA is proposing that 
casualties due to suicides and attempted suicides, that meet the 
general reporting criteria listed in Sec.  225.19(d)(1) through (d)(6), 
be reported to the agency on Form FRA F 6180.55a, ``Railroad Injury and 
Illness Summary (Continuation Sheet),'' as a new category of data 
called ``suicide data.'' Under the proposed system, a fatality to a 
person due to that person's commission of suicide as determined by a 
coroner or other public authority; or a reportable injury to a person 
due to that person's attempt to commit suicide as determined by a 
public authority, would be reported to FRA regardless of the need for 
other reporting of the event (i.e., the suicide resulted in a 
reportable train accident or highway-rail grade crossing collision). 
These suicide data cases would not be reported to OSHA by FRA. FRA will 
not include suicide data (as defined in Sec.  225.5) in its periodic 
summaries of data on the number of injuries and illnesses associated 
with railroad operations. FRA will maintain suicide data in a database 
that is not publicly accessible. Accordingly, suicide data will not be 
available on FRA's Web site for individual reports or downloads. 
Suicide data will, however, be available to the public in aggregate 
format on FRA's Web site and via requests under the Freedom of 
Information Act (FOIA). For additional information FOIA request see 
FRA's Web site at http://www.fra.dot.gov/us/foia. Suicide data counts 
will be included in casualty counts on Forms FRA F 6180.57, ``Highway-
Rail Grade Crossing Accident/Incident Report,'' and FRA F 6180.54, 
``Rail Equipment Accident/Incident Report,'' in order that number of 
casualties reported to FRA on Form FRA F 6180.55a, ``Railroad Injury 
and Illness Summary (Continuation Sheet),'' for the month is consistent 
with the number of casualties reported to FRA on each of these 
accident/incident reporting forms. See Sec.  225.41, ``Suicide data.'' 
See also Section-by-Section Analysis for Sec.  225.5, ``Definitions,'' 
and Appendix H, ``Forms,'' for additional information.
    FRA believes that it is important to collect data on suicides. 
Death by suicide is a national problem as indicated by the fact that 
more than 30,000 Americans die by suicide each year. Currently, there 
are no reliable reports about how many of these deaths occur on 
railroad property. The California Public Utilities Commission indicates 
that more than 55 percent of pedestrian railroad fatalities in 
California are attributed to suicide, and according to the American 
Association of Suicidology, railroads that have tracked probable 
suicides on the rail system report that suicides are responsible for 39 
percent of pedestrian fatalities. Additionally, a March 3, 2005, 
Chicago Tribune article, ``Suicide is Top Cause of Train Track Deaths; 
State Looks for Ways to Prevent Fatalities,'' indicates that in 2004, 
there were 30 probable suicide deaths and an additional three attempts 
involving trains in Chicago alone, and that suicide was the leading 
cause of rail-related fatalities in Illinois for 2004, which led 
Illinois to implement a systematic tracking program of such incidents 
on rail property. This information illustrates the fact that there are 
a large number of fatalities occurring on railroad property without any 
national initiative to collect data that might be used to address these 
events.
    Since it appears that suicides contribute significantly to the 
total number of fatalities that are occurring

[[Page 52505]]

on railroad tracks, it is appropriate to report suicides in addition to 
the other causes of death in the industry. By requiring the information 
be reported as suicide data, these fatalities will not be included in 
the normally reported fatality data. These new data may help FRA, 
organizations promoting safety on and around railroad property, and 
suicide prevention agencies, assess the problem and develop programs to 
decrease the incidence of suicides by train.
    FRA notes that the collection of suicide data will also aid the 
Federal Transit Administration (FTA) in its collection and analysis of 
commuter railroad accidents, since FRA provides certain commuter 
railroad safety data to FTA. FTA relies on FRA to provide to it data on 
the types of accidents occurring on commuter rail, their primary 
causes, and the consequences, in terms of fatalities (which for FTA 
includes suicides under 49 CFR part 659), injuries and property damage. 
The data FRA provides to FTA, however, is somewhat incomplete, in that 
FRA cannot provide suicide data to FTA. Consequently, FTA, which uses 
this information to better inform their assessments of safety plans and 
hazard analysis performed by commuter rail grantees applying for FTA 
grants, must work with an incomplete data set.
    In order for FRA to capture suicide data, FRA proposes to require 
railroads to indicate suicide or attempted suicide on Forms FRA F 
6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet)''; 
FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; and FRA F 
6180.57, ``Highway-Rail Grade Crossing Accident/Incident Report'' as 
follows:
    (1) Form FRA F 6180.55a--FRA proposes to require an ``X'' 
representative of ``suicide or attempted suicide'' be placed in 
``Special Cause Code'' block 5r. FRA also proposes to change the title 
of block 5m, currently ``Result,'' to ``Tools.'' This change is a 
correction to the current form and is necessary to maintain consistency 
with types of Circumstance Codes in Appendix F of the FRA Guide.
    (2) Form FRA F 6180.54--FRA proposes to add four Miscellaneous 
Cause Codes for use in block 38 as follows: (i) Code M309 ``Suicide 
(Highway-Rail Grade Crossing Accident)''; (ii) Code M310 ``Attempted 
Suicide (Highway-Rail Grade Crossing Accident)''; (iii) Code M509 
``Suicide (Other Misc.)''; and (iv) Code M510 ``Attempted Suicide 
(Other Misc.)''. These codes would be added to Appendix C, ``Train 
Accident Cause Codes'' to refer to ``Suicide or Attempted Suicide'' for 
use in ``Primary Cause Code'' block 38. Railroads would also be 
required to include suicides and attempted suicides in the casualty 
counts in blocks 46, 47, and 48, as applicable.
    (3) Form FRA F 6180.57--FRA proposes to add to block 41, currently 
titled ``Driver Action,'' (FRA is proposing to change this title to 
``Highway User Action,'' for additional information see Changes to FRA 
Guide, section N, ``Appendix H, ``Forms'', subsection 8, ``FRA Form FRA 
F 6180.57'') a selection for ``Suicide or Attempted Suicide.'' 
Railroads would also be required to include suicides and attempted 
suicides in the casualty counts in blocks 46, 49, and 52, as 
applicable. See Section-by-Section Analysis for Appendix H, ``Forms'' 
for additional information.
    FRA notes that it is also concerned that suicides are being 
reported as trespasser fatalities, because railroads do not always make 
reasonable inquiry in their efforts to determine the cause of death. In 
fact, FRA has found that a number of reported trespasser fatalities are 
actually suicides. Accordingly, FRA is revising Chapter 6 of the FRA 
Guide to clarify that in order to fulfill its responsibilities to 
maintain accuracy in reporting, a railroad must try to obtain 
documentation indicating the cause of death by contacting the coroner 
or other public official by telephone and, if unsuccessful in obtaining 
the needed information, in writing. The railroad must continue its 
efforts to obtain this information for a period of six months following 
the month in which the fatality occurred. The railroad must keep a 
record of its efforts to obtain such documentation. This record and any 
documentation obtained must be available for review and copying by an 
FRA representative under the same criteria as set forth in Sec.  
225.35(b).

Section 225.17 Doubtful Cases

    In this section, FRA proposes to revise part 225 by redesignating 
the ``Alcohol or Drug Involvement'' provisions currently contained in 
this paragraph (d) to a newly added Sec.  225.18. FRA has often 
observed that the inclusion of the two unrelated topics in one section 
has led to confusion among interested parties. The move is, therefore, 
intended to reduce possible confusion and does not pose any substantive 
change to FRA's current accident/incident reporting requirements. FRA 
also proposes a technical amendment to the first sentence of paragraph 
(a) by inserting the word ``of,'' which was inadvertently omitted, 
between the words ``officer'' and ``a railroad'' revising the sentence 
to read: ``The reporting officer of a railroad * * *.''

Section 225.18 Alcohol or Drug Involvement

    As stated above, FRA proposes to add a new section, Sec.  228.18, 
and redesignate the Alcohol and Drug provisions currently contained in 
Sec.  225.17(d) to a new section, Sec.  225.18, for clarity purposes 
only. FRA does propose technical amendments to proposed paragraph Sec.  
225.18(b) (currently Sec.  225.17(d)(2)) changing the word ``title'' to 
``chapter'' to reference the correct term and inserting ``49 CFR'' in 
front of the reference to Sec.  219.209 for clarity. FRA also proposes 
to amend Sec.  225.18(d) (currently Sec.  225.17(d)(4)) by changing the 
word ``paragraph'' to ``section'' to accommodate the proposed 
redesigation of Sec.  225.17(d) to Sec.  225.18(a)-(d).

Section 225.19 Primary Groups of Accidents/Incidents

    In this section, FRA proposes to revise paragraph (d) to clarify 
the agency's existing reporting requirements for death, injury and 
occupational illness and to further conform those requirements to 
OSHA's recordkeeping and reporting regulations.
    FRA's accident/incident reporting regulations that concern railroad 
occupational casualties should be maintained, to the extent 
practicable, in general conformity with OSHA's recordkeeping and 
reporting regulations to permit comparability of data on occupational 
casualties between various industries, to allow integration of railroad 
industry data into national statistical databases, and to improve the 
quality of data available for analysis of casualties in railroad 
accidents/incidents. See Section-by-Section Analysis for Sec.  225.5, 
``Definitions'' with respect to ``Discernable cause.'' Moreover, 
maintaining such compatibility allows railroads to report occupational 
casualties only to FRA rather than to OSHA and to FRA. See 29 CFR 
1904.3.
    With respect to employee injury and illness recording, OSHA's 
regulations requires that ``each employer * * * must record each 
fatality, injury and illness that is work-related; and is a new case; 
and meets one or more of the general recording criteria * * * or the 
application to specific cases.'' 29 CFR 1904.4(a).
    By rewording paragraph (d) to more closely model OSHA's wording, 
FRA is better conforming its reporting requirements to that of OSHA. 
FRA is also clarifying that only new cases are reportable. The current 
regulation requires that the injury or illness must

[[Page 52506]]

be a new case or a significant aggravation of a pre-existing injury or 
illness. FRA therefore proposes, that to be reportable, a significant 
aggravation of a pre-existing case must be a ``new case'' (i.e., a case 
in which either the employee has not previously experienced a reported 
injury or illness of the same type that affects the same part of the 
body, or the employee previously experienced a reported injury or 
illness of the same type that affected the same part of the body but 
had recovered completely (all signs had disappeared) from the previous 
injury or illness and an event or exposure in the work environment 
caused the signs or symptoms to reappear).
    FRA also proposes to amend paragraph (d) by revising the general 
reporting criteria, specifically paragraph (d)(2), which currently 
states, ``injury to any person that results in medical treatment,'' to 
include ``significant injury to any person'' and ``loss of 
consciousness to any person.'' Failure to include these classes of 
injuries as reportable for ``any person'' rather than just railroad 
employees in the general criteria in the agency's 2003 Final Rule (68 
FR 10107, March 3, 2003), has resulted in FRA not capturing data for 
non-employees with respect to significant injuries.
    In addition, FRA proposes to amend paragraph (d)(6)(v) to remove 
the word ``independently'' for purposes of clarity. As explained in the 
Section-by-Section Analysis the Sec.  225.5 definition of ``Injury or 
Illness,'' MSD's are injuries and illnesses under the rule and are 
subject to the same recording criteria that apply to other injuries and 
illnesses.
    Lastly, FRA proposes to amend paragraph (d)(6) to include covered 
data cases. The addition of covered data cases to Sec.  225.19(d) is a 
technical amendment and intended to correct the inadvertent omission of 
the criteria in the current rule text. The addition does not alter 
FRA's reporting criteria or its policy on covered data as stated in 
Sec.  225.39.

Section 225.21 Forms

    In this section, FRA proposes to amend paragraph (j) in relation to 
the use of Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related.'' Specifically, FRA is proposing to make 
use of the Form FRA F 6180.107, in place of Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record,'' optional rather 
than mandatory, and to amend and redesignate the instructions for use 
of the form currently set forth at Sec.  225.21(j) to Sec.  225.25(i) 
under the section entitled ``Recordkeeping.'' See Section-by-Section 
Analysis for Sec.  225.25, ``Recordkeeping,'' for additional 
information.

Section 225.25 Recordkeeping

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

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

    As a result, FRA established at Sec.  225.25(i)(1) a separate 
category of claimed illnesses to be recorded on a new form, Form FRA F 
6180.107, ``Alternative Record for Illnesses Claimed to be Work 
Related.'' This category is comprised of: Illnesses for which there is 
insufficient information to determine whether the illness is work-
related; illness for which the railroad has made a preliminary 
determination that the illness was not work-related; and illnesses for 
which the railroad has made a final determination that the illness is 
not work-related.
    For any case determined to be reportable, under Sec.  225.25(i)(2) 
the railroad has been required to remove the designation ``illness 
claimed to be work-related'' and transfer the record to the reporting 
officer for retention and reporting in the normal manner. In the event 
the railroad determined the case was not reportable, Sec.  225.25(i)(3) 
requires that the railroad record an explanation in ``narrative'' block 
19 of Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed 
to be Work-Related,'' of the reason(s) the railroad made that 
determination, making reference to the ``most authoritative'' 
information relied upon.
    FRA believed that this system of accounting for contested illnesses 
would focus responsibility for reporting decisions and provide an 
appropriate audit trail. In addition, FRA thought that it would result 
in a body of information that could be used for research into the 
causes of prevalent illnesses, particularly in the case of 
musculoskeletal disorders. See 68 FR 10107, 10118, March 3, 2003. 
Unfortunately, this has not been the case.
    Rather than use the Form FRA F 6180.107, ``Alternative Record for

[[Page 52507]]

Illnesses Claimed to be Work-Related,'' to record only those illnesses 
for which the railroad: has insufficient information to determine 
whether the illness is work-related; has made a preliminary 
determination that the illness is not work-related; or has made a final 
determination that the illness is not work-related, FRA found that 
frequently railroads are recording all occupational illnesses on Form 
FRA F 6180.107 as a matter of practice even before evaluating the 
sufficiency of information provided and/or work-relatedness, and that 
railroads allowed these records to remain unevaluated for periods of 
several months or more without being updated or reviewed for work-
relatedness. Moreover, FRA has found that railroads are not creating 
the Form FRA F 6180.107 record no later than seven working days after 
receiving information or acquiring knowledge that an employee is 
claiming they have incurred an occupational illness, as required by the 
FRA Guide. Consequently, this system of accounting has not focused 
responsibility for reporting decisions, not provided an appropriate 
audit trail, not resulted in a body of information that can be used in 
the future for research into the causes of prevalent illnesses, and has 
not been helpful in correcting the under-reporting of occupational 
illnesses to FRA.
    In order to correct this problem, FRA proposes to refine the 
circumstances and procedures related to the recording of claimed 
occupational illnesses on Form FRA F 6180.107, ``Alternative Record for 
Illnesses Claimed to be Work-Related.'' Specifically, FRA proposes to 
allow the use of the Form FRA F 6180.107 to record only those claimed 
occupational illnesses for which the railroad carrier has not received, 
from the employee or their representative, information sufficient to 
determine whether the occupational illness is work-related. FRA's 
proposal also includes, among other things, requirements that 
railroads: enter each illness claimed to be work-related on the record 
no later than seven working days after receiving information or 
acquiring knowledge that an employee is claiming they have incurred an 
occupational illness; make a good faith effort to obtain information 
necessary on occupational illness cases to make a reporting decision by 
December 1 of the next calendar year; document the receipt of new or 
additional case information in ``narrative'' block 19 of Form FRA F 
6180.107 within seven days of receipt and to re-evaluate the case in 
light of the new information within 30 days of receipt of the 
information; complete a Form FRA F 6180.98 for any claimed occupational 
illness case determined to be accountable or reportable within seven 
days of making such determination; to retain the record in accordance 
with the provisions set forth in Sec.  225.27 and report the illness in 
accordance with regular reporting requirements; and provide complete 
narratives on Form FRA F 6180.107 for those cases the railroad 
determines are not reportable. The proposal also specifically defines 
what data elements an alterative railroad-designed Form FRA F 6180.107 
must contain.
    FRA proposes to amend the requirement at paragraph Sec.  
225.25(b)(6) so that the alternative railroad-designed record for Form 
FRA F 6180.98, ``Railroad Employee Injury and/or Illness Record,'' 
require the input of the ``Employee identification number'' only, to 
eliminate for privacy reasons the employee social security number 
option. FRA is proposing a like requirement for the alternative 
railroad-designed record for Form FRA F 6180.107, ``Alternative Records 
for Illnesses Claimed to be Work-Related.'' FRA is also proposing 
corresponding changes for Forms FRA F 6180.98 and 6180.107. See 
Section-by-Section Analysis for Appendix H, ``Forms.''
    FRA also proposes to replace the term ``log entry'' at Sec.  
225.25(b)(28) with ``record'' and ``report'' at Sec.  225.25(e)(28) 
with ``record.'' Both of these sections refer to ``records,'' 
specifically alternative railroad-designed Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record'' and alternative 
railroad-designed Form FRA F 6180.97, ``Initial Rail Equipment 
Accident/Incident Record,'' respectively. This amendment is merely 
technical and is not intended by the agency to affect any substantive 
change.
    FRA also proposes to amend the requirements for these alternative 
railroad-designed records by amending Sec. Sec.  225.25(b)(28) and 
(e)(28), and proposed (j)(25), respectively, to reflect that the date 
required is the initial date the form was signed/completed. FRA finds 
it necessary to make such change because certain railroads do not 
retain the initial date a record was completed, but only the date of 
the most recent update to the record. Consequently, FRA is unable to 
discern if the railroad entered each reportable and accountable injury 
and illness and each reportable and accountable rail equipment 
accident/incident on the appropriate record, as required by Sec.  
225.25(a) through (e), no later than seven working days after receiving 
information or acquiring knowledge that an injury or illness or rail 
equipment accident/incident has occurred, as required by Sec.  
225.25(f). FRA believes that specifying the date which is required to 
be maintained on the record will resolve any confusion regarding the 
requirement. FRA is proposing a like requirement for the alternative 
railroad-designed Form FRA 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related.'' FRA is proposing corresponding changes 
for Forms FRA F 6180.98, 6180.97 and 6180.107. See Section-by-Section 
Analysis for Appendix H, ``Forms.''

Section 225.27 Retention of Records

    In this section, FRA proposes a five-year record retention 
requirement for Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related.'' FRA does so because the current rule does 
not set forth a retention period for these forms. Five years is the 
same retention period as that of Form FRA F 6180.98, ``Railroad 
Employee Injury and/or Illness Record,'' and appropriate for accurate 
recordkeeping and auditing purposes. FRA also proposes a requirement 
that in the event a railroad opts to submit their monthly Form FRA F 
6180.55, ``Railroad Injury and Illness Summary'' via optical media or 
electronically via the Internet, rather than in hard copy, the railroad 
retain the original completed hard copy for a period of five years 
after the calendar year to which it relates. If the railroad opts to 
submit the report to FRA via the Internet, FRA proposes to require that 
the railroad also retain a hard copy printout of FRA's electronic 
notice acknowledging receipt of the submission for a period of five 
years after the calendar year to which the report acknowledged relates. 
FRA proposes these requirements in light of the new electronic 
submission options proposed in Sec.  225.37, ``Magnetic media transfer 
and electronic submission'' of this notice.
    Lastly, FRA proposes system standards for the electronic retention, 
by railroads, of accident/incident records. Historically, railroads 
have retained these records in hard copy form. FRA, however, is not 
opposed to railroads maintaining these records electronically so long 
as the integrity of the record is maintained. In order to ensure such 
integrity, FRA is proposing minimum system requirements for electronic 
retention of accident/incident records.

Section 225.33 Internal Control Plan

    In this section, FRA proposes to clarify current ambiguity of 
element number 11 of the internal control plan

[[Page 52508]]

to allow railroads to have multiple named custodians and locations of 
completed Forms FRA F 6180.107, ``Alternative Records for Illnesses 
Claimed to be Work-Related,'' or the alternate railroad-designed forms 
and supporting documentation. FRA recognizes that railroads do not 
necessarily keep completed Claimed Occupational Illness Records in a 
centralized location, and that different individuals may be responsible 
for keeping the records. By amending the regulation, railroads will be 
able to accurately indicate who the custodians are and where the 
custodians and records are located.

Section 225.37 Magnetic Media Transfer and Electronic Submission

    FRA is updating the title of this section to reflect changes in 
technology. It will read, ``Optical media transfer and electronic 
submission.'' FRA also is instituting two changes related to Form FRA F 
6180.55, ``Railroad Injury and Illness Summary.'' FRA believes that 
both of these changes will reduce railroad burdens related to 
completing and submitting this form.
    FRA has replaced the oath and notarization requirement for Form FRA 
F 6180.55, ``Railroad Injury and Illness Summary,'' with a requirement 
that the signature be signed under penalty of perjury in accordance 
with 28 U.S.C. 1746.
    Title 49 U.S.C. 20901 requires that a railroad file an Accident/
Incident report ``under oath'' no later than 30 days after the end of 
each month. To fulfill this requirement, FRA currently requires that a 
railroad reporting officer make a sworn statement, under oath, before a 
notary public each month attesting to the accuracy that month's 
submission. The question has arisen as to whether an unsworn, 
unnotarized statement is adequate to fulfill the section 20901 oath 
requirement.
    In 1976, Congress addressed the use of ``unsworn declarations under 
penalty of perjury,'' in lieu of a sworn affidavit. Title 28 U.S.C. 
1746, ``Unsworn Declarations Under Penalty of Perjury,'' provides that 
``wherever, under any law of the United States or under any rule, 
regulation, order, or requirement made pursuant to law, any matter is 
required or permitted to be supported, evidenced, established, or 
proved by the sworn declaration, verification, certificate, statement, 
oath, or affidavit, in writing of the person making the same (other 
than a deposition, or an oath of office, or an oath required to be 
taken before a specified official other than a notary public), such 
matter may, with like force and effect, be supported, evidenced, 
established, or proved by the unsworn declaration, certificate, 
verification, or statement, in writing of such person which is 
subscribed by him, as true under penalty of perjury, and dated * * *'' 
and provides examples of the form the declaration, certificate, 
verification, or statement must take. Consequently, the oath 
requirement of 20901 can be met via an unsworn, unnotarized statement, 
so long as the statement meets the requirements set forth in 28 U.S.C. 
1746.
    FRA is also updating the regulatory text to include provisions 
allowing railroads to make their monthly reporting submissions (Forms 
FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; 6180.55a, 
``Railroad Injury and Illness Summary (Continuation Sheet)''; 6180.57, 
``Highway-Rail Grade Crossing Accident/Incident Report'') to FRA via 
optical media (CD-ROM) or electronically via the Internet. Batch 
control forms (Form FRA F 6180.99) are no longer required for 
submission. Form FRA F 6180.55, ``Railroad Injury and Illness 
Summary,'' reports and Form FRA F 6180.81 ``Employee Human Factor 
Attachment'' reports; may also be submitted through these means, 
however the Form FRA F 6180.55 must submitted as an image of the 
completed and signed hard copy and must be in .pdf or .jpg file format 
only; and the Form FRA F 6180.81 must also be in .pdf or .jpg file 
format. If a railroad opts to submit their completed Form FRA F 6180.55 
to FRA via optical media or electronically via the Internet, the 
railroad must maintain the original completed and signed Form FRA F 
6180.55 for at least five years after the calendar year to which the 
report relates in accordance with proposed Sec.  225.27(c). FRA will 
provide to the railroad an electronic notice acknowledging the agency's 
receipt Form FRA F 6180.55 reports which are filed electronically via 
the Internet. The railroad must also maintain a hard copy print out 
this acknowledgment notice for at least five years after the calendar 
year to which the report acknowledged relates in accordance with 
proposed Sec.  225.27(c).
    FRA is also proposing to add a paragraph (f) a statement requiring 
that railroads choosing to use the optical medical or electronic 
submission via Internet option must use one of the approved formats 
specified in the Companion Guide. FRA will reject submissions that do 
not adhere to the required formats, which may result in the issuance of 
one or more civil penalty assessments against a railroad for failing to 
provide timely submissions of required reports as required by Sec.  
225.11.

Section 225.41 Suicide Data

    In this section, FRA proposes to add Sec.  225.41 ``Suicide Data,'' 
to detail FRA's intended use of suicide data. See Section-by-Section 
Analysis for Sec.  225.15, ``Accidents/Incidents Not To Be Reported'' 
for additional information.
Appendix A to Part 225--Schedule of Civil Penalties
    Appendix A to part 225 contains a schedule of civil penalties for 
use in connection with this part. FRA may revise the schedule of civil 
penalties in issuing the final rule to reflect revision made to part 
225. Because such penalty schedules are statements of agency policy, 
notice and comment are not required prior to their issuance. See 5 
U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to submit 
suggestions to FRA describing the types of actions or omissions for 
each proposed regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalties may be appropriate, based upon the relative seriousness 
of each type of violation.
    FRA notes that in December 2006, it published proposed statements 
of agency policy that would amend the 25 schedules of civil penalties 
issued as appendixes to FRA's safety regulations, including part 225. 
See 71 FR 70589, Dec. 5, 2006. The proposed revisions are intended to 
reflect more accurately the safety risks associated with violations of 
the rail safety laws and regulations, as well as to make sure that the 
civil penalty amounts are consistent across all safety regulations. 
Although the schedules are statements of agency policy, and FRA has 
authority to issue revisions without having to follow the notice and 
comment procedures of the Administrative Procedure Act, FRA has 
provided members and representatives of the general public an 
opportunity to comment on the proposed revisions before amending them. 
FRA is currently evaluating all of the comments received in preparing 
final statements of agency policy, and the schedule of civil penalties 
to part 225 may be revised as a result, independent of the rulemaking 
proceeding.

Proposed Revisions to the FRA Guide

    Generally, FRA proposes to make the following changes to the FRA 
Guide: Improve the table of contents; add a subject index; reorganize 
chapter contents for ease of use; include

[[Page 52509]]

necessary updates; include new ``Questions and Answers'' and 
``Scenarios'' taken from the FRA Safety Data Web page (http://
safetydata.fra.dot.gov/officeofsafety) and from OSHA's Web page (http:/
/www.osha.gov/comp-links.html) to clarify reporting issues; and to 
eliminate redundant language by replacing verbatim reiterations of part 
225 rule text where appropriate and instead, cite references to part 
225 (for ease of reference FRA proposes to include the full regulatory 
text of part 225 in a newly created appendix K of the FRA Guide). More 
specific changes include:
    A. Chapter 1, ``Overview of Accident/Incident Reporting and 
Recordkeeping Requirements.'' FRA proposes to revise the paragraph 
titled, ``Telephonic Reports of Certain Accidents/Incidents'' in 
accordance with this amendments set forth in Sec.  225.9 of this 
proposal, and to include the telephonic reporting requirements set 
forth in 49 CFR parts 229, ``Railroad Locomotive Safety Standards''; 
part 233, ``Signal Systems Reporting Requirements''; part 234, ``Grade 
Crossing Signal System Safety''; and part 219, ``Control of Alcohol and 
Drug Use.'' Such incorporation is for informational purposes only, and 
places no new reporting requirements on railroads. By including these 
requirements in the guide, FRA hopes to better disseminate its 
telephonic reporting requirements, and improve railroad compliance by 
providing a single reference location for determining when accident/
incident telephonic notification is required.
    FRA also proposes to amend the section entitled ``Close of Calendar 
Year'' by clarifying the requirements for submitting late and amended 
reports, revising the time frame in which FRA will accept additional 
late and amended accident/incident reports, and changing from optional 
to mandatory the filing of amended reports for certain accidents/
incidents.
    FRA publishes final accident/incident counts following the 
conclusion of a reporting year. Submission of the December report 
concludes the reporting year. However, railroads are still required to 
provide to FRA late reports of unreported accidents/incidents and 
amended reports that correct or update earlier submissions.
    Currently, the FRA Guide (Chapter 1--Page 12 through 13) specifies 
three cutoff dates for filing late and amended accident/incident 
reports following the completion of the reporting year:
    (1) April 15 of the of the next calendar year;
    (2) December 1 of the following year: and
    (3) Five years after the end of the calendar year to which the 
accident/incident report relates.
    FRA has found this reporting scheme to be confusing and outdated 
with the advent of improved technology. Moreover, improvements in 
database management strategies allow for contemporaneous viewing of 
reporting accident/incident statistics and have eliminated the need to 
impose artificial deadlines for keeping files open or for FRA to 
publish interim reports. As such, FRA proposes to remove references to 
the cutoff date of April 15th of the next calendar year for accepting 
late reports and amendments. Accordingly, FRA will receive and process 
any and all late and amended reports for a period of five years 
following the calendar year to which an amended or late report relates. 
This accommodation does not relieve a railroad of its obligation to 
promptly file a late or amended report upon becoming aware of an 
omission, mistake or otherwise, in accordance with Sec.  225.13 and the 
late and amended reporting guidance set forth in this Guide. FRA will 
continue to publish its Annual Report of Railroad Safety Statistics. 
Because the accident/incident databases will remain open for updating 
for a period of five years, the statistics published in the Annual 
Report will be subject to change. The authoritative source for rail 
safety statistics will now be the Office of Safety's Web site: http://
safetydata.fra.dot.gov/OfficeofSafety.
    To clarify, FRA does not propose to change the following late and 
amended reporting requirements which are currently set forth in the FRA 
Guide:
    (1) Railroads must file amended reports with FRA through December 1 
of the year following the year in which the accident/incident was 
initially reported.
    (2) Railroads must file late reports with FRA for five years 
(following the end of the calendar year to which the accident/incident 
relates) for all unreported accident/incidents.
    FRA does, however, propose to change its reporting requirements 
with respect to certain specified accidents/incidents. Currently, the 
FRA Guide states that railroads ``should'' continue to file amended 
reports after December 1 of the following year (i.e., for five years 
after the end of the calendar year to which they relate) for the 
changes listed below. FRA proposes to make such amended reporting 
mandatory. Accordingly, FRA proposes that railroads shall continue to 
file amended reports for five years after the end of the calendar year 
to which they relate for the following changes:
    (1) Railroad Injury and Illness Summary (Continuation Sheet) (Form 
FRA F 6180.55a): Change from Injury to Fatality (only if the injured 
person dies within 180 days from the date of the injury);
    (2) Highway-Rail Grade Crossing Accident/Incident Report (Form FRA 
F 6180.57): Change from Injury to Fatality, change in Grade Crossing 
ID, change in the Rail Equipment Involved;
    (3) Rail Equipment Accident/Incident Report (Form FRA F 6180.54): 
Change from Injury to Fatality, change in Grade Crossing ID, Rail 
Equipment Involved, Primary Cause Code, Contributing Cause Code, Type 
of Territory, Number of Cars Releasing or Evacuation.
    FRA further proposes that railroads shall continue to file amended 
reports for five years after the end of the calendar year to which they 
relate for the additional changes listed below:
    (1) Railroad Injury and Illness Summary (Continuation Sheet) (Form 
FRA F 6180.55a): A significant change in the number of reportable days 
away from work or days restricted; a significant change is at least a 
10% variance in the number of actual reportable days away from work or 
days restricted compared to the number of days already reported.
    (2) Railroad Equipment Accident/Incident Report (Form FRA F 
6180.54): A significant change in the damage costs for reportable rail 
equipment accidents/incidents; a significant change is a 10% variance 
between the damage amount reported to FRA and the current cost figures.
    B. Chapter 2, ``Definitions.'' FRA proposes to revise or add 
certain definitions for clarification or ease of reference and to 
remove definitions that are simply reiterations of definitions set 
forth in Sec.  225.5. FRA proposes to add definitions for ``Barricaded 
Crossing'' to mean ``a highway-rail grade crossing that is temporarily 
closed to highway users''; and ``Closed Crossing'' to mean a location 
where a crossing has been physically removed or where rail operations 
or highway traffic is not possible. This does not include crossings 
that are temporarily closed for repairs to the track structure, 
crossing surface, or roadway approaches. Examples are locations where 
the crossing has been barricaded and highway crossing surface material 
removed; where the railroad tracks have been cut or barricaded or 
physically removed; where a connecting turnout has been removed; or 
where rail operations are not possible because the railroad tracks are 
paved over, etc. Crossings along such inactive railroad lines are 
closed. FRA adds these

[[Page 52510]]

definitions to the FRA Guide to eliminate confusion about the meaning 
of a ``closed'' versus ``barricaded'' crossing and to revise the 
definition of ``closed crossing'' to agree with the definition used in 
the Grade Crossing Inventory System (GCIS). The GCIS is a voluntary 
system used by states, railroads and the Federal government to profile 
crossings and determine which crossings need improved warning systems 
for highway users. The FRA and other users regularly compare 
information from the Highway-Rail Crossing Accident/Incident Reports 
(Form FRA F 6180.57) to the GCIS. Clearly defining ``closed crossing'' 
and ``barricaded crossing,'' and making the GCIS and FRA definitions 
consistent will reduce confusion and aid in grade crossing accident/
incident reporting accuracy.
    FRA proposes to add a definition for ``Gap'' to mean, ``the 
horizontal space between the edge of the passenger boarding platform 
and the edge of the rail car door threshold plate, and the vertical 
difference from the top of the passenger boarding platform and the top 
of the rail car threshold.'' This definition with minor variation was 
recommended by the RSAC General Passenger Safety (GPS) Task Force 
reported to the full RSAC on October 25, 2007, along with the Cause 
Code Recommendations for platform gap related injuries (see discussion 
for Appendix F of the FRA Guide). The full RSAC agreed to the 
recommendations on October 25, 2007.
    FRA proposes to add a definition for ``Gap Incident'' to mean, ``an 
event involving a person who, while involved in the process of boarding 
or alighting a passenger train at a rail car door threshold plate at a 
high level passenger boarding platform (i.e., a platform that is 48'' 
or more above the top of the rail), has one or more body parts enter 
the area between the car body and the edge of the platform. The 
following are examples of a Gap Incident:

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

    The following are not examples of a Gap Incident:

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

    The definition and examples of ``Gap Incident'' was recommended by 
the RSAC General Passenger Safety (GPS) Task Force reported to the full 
RSAC on October 25, 2007, along with Cause Code Recommendations for 
platform gap related injuries (see discussion for Appendix F of the FRA 
Guide). The full RSAC agreed to these recommendations on October 25, 
2007. FRA has adopted these recommendations with slight variation. See 
section on Changes to the FRA Guide, discussion of Appendix F.
    FRA proposes to amend the definition of ``locomotive'' to support 
changes necessary to include EMU and DMU cars on FRA Form F 6180.54, 
``Rail-Equipment Accident/Incident Report.'' In the current FRA Guide 
(May 1, 2003), a cab car is defined as a locomotive; there is no 
definition for EMU and DMU cars, which created confusion because these 
cars provide power to the consist can therefore also be classified as 
locomotives.
    FRA proposes to add a definition for ``vehicle'' to include 
automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, and 
all other modes of surface transportation, motorized and unmotorized.
    C. Chapter 3, Form FRA F 6180.55, ``Railroad Injury and Illness 
Summary.'' FRA proposes to revise the instructions for the use of this 
form consistent with the changes proposed in this NPRM. See Section-by-
Section Analysis for Sec.  225.27, ``Retention of records'' Sec.  
225.37, ``Magnetic media transfer and submission,'' and Proposed 
Revisions to the FRA Guide, Appendix H, ``Forms'' for additional 
information.

    D. Chapter 4, Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record.'' FRA proposes to revise the instructions for the use 
of this form consistent with the changes proposed in this NPRM. See 
Section-by-Section Analysis for Sec.  225.5, ``Definitions'' definition 
for Accountable Injury or Illness; Sec.  225.25, ``Recordkeeping'' and 
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    E. Chapter 5, Form FRA F 6180.97, ``Initial Rail Equipment 
Accident/Incident Record.'' FRA proposes to revise the instructions for 
the use of this form consistent with the changes proposed in this NPRM. 
See Section-by-Section Analysis for Sec.  225.25, ``Recordkeeping'' and 
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    F. Chapter 6, Form FRA F 6180.55a, ``Railroad Injury and Illness 
Summary (Continuation Sheet).'' FRA proposes to revise the instructions 
for the use of this form consistent with the changes proposed in this 
NPRM. FRA also proposes to add instructions that if an injury is due to 
a gap incident, the railroad must use in block 5n (``Cause''), 
``Probable Reason for Injury/Illness Circumstance Codes'' code number 
18--Slipped, fell, stumbled due to Gap, regardless of whether other 
codes may also be applicable. See Section-by-Section Analysis for 
Sec. Sec.  225.5, ``Definitions''; Sec.  225.15, ``Accidents/Incident 
not to be reported''; Sec.  225.19 ``Primary Groups of Accidents/
Incidents''and Proposed Revisions to the FRA Guide, Appendix H, 
``Forms'' for additional information.
    FRA also proposes to revise Chapter 6 to instruct railroads that 
they must presume that a highway user who is involved in a highway-rail 
grade crossing accident/incident and is transported from the scene of a 
highway-rail grade crossing accident/incident to a medical facility via 
ambulance or other form of medical conveyance, did, more likely than 
not, sustain an FRA reportable injury (i.e., an injury meeting the 
general reporting criteria set forth at Sec.  225.19(d)(1) through 
(d)(6)). Absent evidence to rebut the presumption, the railroad must 
report the injury to FRA on Form FRA F 6180.55a, and include the 
casualty on Form FRA F 6180.57. If the railroad later discovers that 
the highway user did not sustain a reportable injury, the railroad must 
notify FRA in accordance with the late reporting instructions set forth 
at Sec.  225.13. FRA is proposing this change because the agency has 
found that railroads are under-reporting highway-rail grade crossing 
accidents/incidents related to injuries to persons other than railroad 
employees due to the railroads' limited access to injured highway 
users' medical records, especially in light of privacy protections 
related to health information provided by the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191.
    FRA emphasizes, however, that this presumption does not relieve 
railroads of their duty to make reasonable inquiry to determine the 
nature and severity of highway-rail grade crossing injuries and to 
accurately report such injuries. FRA has found that railroads often do 
not make such reasonable inquiry.

[[Page 52511]]

Accordingly, FRA is clarifying that in order to fulfill its 
responsibilities in determining the nature and severity of highway-rail 
grade crossing injuries and to accurately report such injuries, a 
railroad must try to contact the injured individual or their 
representative by telephone and, if unsuccessful in obtaining the 
needed information, in writing. The railroad must keep a record of its 
efforts to make such contact. This record and documentation of any 
information obtained must be available for review and copying by an FRA 
representative under the same criteria as set forth in Sec.  225.35 
(b).
    Lastly, FRA is concerned that fatalities that are actually suicides 
are being reported as trespasser fatalities. Often this occurs because 
railroads do not always make reasonable inquiry in their efforts to 
determine the cause of death. In fact, FRA has found that a number of 
reported trespasser fatalities are actually suicides. Accordingly, FRA 
is revising Chapter 6 to clarify that in order to fulfill its 
responsibilities in determining the nature of a trespasser fatality and 
to accurately report such fatality, a railroad must try to obtain 
documentation indicating the cause of death by contacting the coroner 
or other public official by telephone and, if unsuccessful in obtaining 
the needed information, in writing. The railroad must continue its 
efforts to obtain this documentation for a period of six months 
following the month in which the fatality occurred. The railroad must 
keep a record of its efforts to obtain such documentation. This record 
and any documentation obtained must be available for review and copying 
by an FRA representative under the same criteria as set forth in Sec.  
225.35 (b).
    G. Chapter 7, pertaining to Form FRA F 6180.54, ``Rail Equipment 
Accident/Incident Report.'' FRA proposes to revise the instructions for 
the use of this form consistent with the changes proposed in this NPRM. 
FRA also proposes to add instructions to Chapter 7 requiring that if an 
accident is caused by a bond wire attachment issue (see proposed 
Appendix C ``Train Accident Cause Codes''), information on the methods 
and locations of those attachments be provided in the narrative block 
52. See Section-by-Section Analysis for Sec. Sec.  225.5, 
``Definitions''; Sec.  225.15, ``Accidents/Incident not to be 
reported''; Sec.  225.19 ``Primary Groups of Accidents/Incidents''and 
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information. See Section-by-Section Analysis for Sec.  
225.5, ``Definitions,'' Sec.  225.15, ``Accidents/Incident not to be 
reported'' and Proposed Revisions to the FRA Guide, Appendix H, 
``Forms'' for additional information.
    H. Chapter 10, pertaining to Form FRA F 6180.57, ``Highway-Rail 
Grade Crossing Accident/Incident Report.'' FRA proposes to revise the 
instructions for the use of this form consistent with the changes 
proposed in this NPRM. See Section-by-Section Analysis for Sec.  
225.15, ``Accidents/Incident not to be reported'' and Proposed 
Revisions to the FRA Guide, Appendix H, ``Forms'' for additional 
information.
    FRA also proposes to revise Chapter 10 to instruct railroads that 
they must presume that a highway user who is involved in a highway-rail 
grade crossing accident/incident and is transported from the scene of a 
highway-rail grade crossing accident/incident to a medical facility via 
ambulance or other form of medical conveyance, did, more likely than 
not, sustain an FRA reportable injury (i.e., an injury meeting the 
general reporting criteria set forth at Sec.  225.19(d)(1) through 
(d)(6)). Absent evidence to rebut the presumption, the railroad must 
report the injury to FRA on Form FRA F 6180.55a, ``Railroad Injury and 
Illness Summary (Continuation Sheet)'' and include the casualty on Form 
FRA F 6180.57. In order to fulfill its responsibilities in determining 
the nature and severity of a highway-rail grade crossing injury and to 
accurately report such injury, a railroad must try to contact the 
injured individual or their representative by telephone and, if 
unsuccessful in obtaining the needed information, in writing. The 
railroad must keep a record of its efforts to make such contact. This 
record and documentation of any information obtained must be available 
for review and copying by an FRA representative under the same criteria 
as set forth in Sec.  225.35(b). For additional information see 
Section-by-Section Analysis for Sec.  225.15 ``Accidents/Incidents not 
to be reported'' and Proposed Revisions to the FRA Guide, Subsection F, 
Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet).''
    I. Chapter 13, pertaining to Form FRA F 6180.107, ``Alternative 
Record for Illness Claimed to be Work-Related.'' FRA proposes to revise 
the instructions for the use of the form consistent with the changes 
proposed in this NPRM. See Section-by-Section Analysis for Sec.  
225.21, ``Forms,'' Sec.  225.25, ``Recordkeeping,'' Sec.  225.27 
``Record Retention,'' Sec.  225.33, ``Internal Control Plan'' and 
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    J. Appendix A, ``Railroad Codes.'' FRA proposes to provide updates 
to the railroad codes.
    K. Appendix C, ``Train Accident Cause Codes.'' FRA proposes to add 
or revise the following Train Accident Cause Codes:

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

[[Page 52512]]

Train Accident'' for use in block 38 of Form FRA F 6180.54, ``Rail 
Equipment Accident/Incident Report.'' See Section-by-Section Analysis 
for Sec.  225.15, ``Accidents/incidents not to be reported'' and 
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    L. Appendix F, ``Circumstance Codes.'' FRA added the following 
``Probable Reason for Injury/Illness Circumstance Codes,'' (Probable 
Reason Circumstance Code) under the subtitle ``Remotely controlled 
locomotive(s) environment'' to the Remote Control Locomotive Switching 
Operations Fatality Analysis Codes (RCL SOFA Codes) to the May 1, 2003, 
guide as amended:
     R1 Object fouling track, related to using RCL.
     R2 Outside caused (e.g., assaulted/attacked), related to 
using RCL.
     R3 Lack of communication, related to using RCL.
     R4 Slack adjustment during switching operation, related to 
using RCL.
     R5 Insufficient training, related to using RCL.
     R6 Failure to provide adequate space between equipment 
during switching operation, related to using RCL.
     R7 Close or no clearance, related to using RCL.
     R8 Act of God, related to using RCL.
     U1 Object fouling track, unrelated to using RCL.
     U2 Outside caused (e.g., assaulted/attacked), unrelated to 
using RCL.
     U3 Lack of communication, unrelated to using RCL.
     U4 Slack adjustment during switching operation, unrelated 
to using RCL.
     U5 Insufficient training, unrelated to using RCL.
     U6 Failure to provide adequate space between equipment 
during switching operations unrelated to using RCL.
     U7 Close or no clearance, unrelated to using RCL.
     U8 Act of God, unrelated to using RCL.
    In the final regulation to 49 CFR part 225, 68 FR 10107, March 3, 
2003, new codes and form changes were made to accommodate the recording 
events when remote control locomotive operations (RCL) were involved.
    A special task group of railroad safety officers representing labor 
and industry and FRA members was created in the RSAC Accident/Incident 
Working Group to discuss the coding of RCL. The results of the special 
task group would be presented to the entire working group for approval. 
The concern of the reporting officers was to prevent any major changes 
to the then current forms or databases. In part, this rested on their 
information technology offices' internal charges for making major 
programming changes. The FRA team was tasked with finding a way to 
include RCL involved accidents and incidents on the following three 
forms: Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; 
Form FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report''; 
and Form FRA F 6180.55a, ``Railroad Injury/Illness Summary 
(Continuation Sheet),'' without changing the database structures.
    The FRA found a way to capture RCL-related incidents on both the 
Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' and 
Form FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report'' 
without expanding the database or making a major change on the form or 
the respective database. Capturing this information on Form FRA F 
6180.55a, ``Railroad Injury and Illness (Continuation Sheet),'' 
remained problematic due to the small number of data fields and limited 
amount of data collected for each reportable event. FRA developed a 
solution by expanding the number of Probable Causes in the Circumstance 
Codes. The method chosen by FRA, and accepted by the RSAC Working 
Group, was to take each code for Probable Reason Circumstance Codes and 
create two additional codes, one for RCL-related to the event and 
another for RCL involved but unrelated to the event. Therefore, the 
probable reason of ``Equipment,'' code 04 had two additional codes: 
``Equipment, related to using RCL,'' code 24, and ``Equipment, 
unrelated to using RCL,'' code 44. This technique, although clumsy, 
satisfied railroad safety reporting officers, rail labor officials, and 
the FRA.
    Codes 21 through 59 in Probable Reason for the ``Remotely 
Controlled Locomotive(s) Environment'' was approved by the full RSAC 
Working Group for Accident/Incident Reporting. At a later RSAC Working 
Group Meeting in New Orleans, LA, a new discussion started about the 
Probable Reason Circumstance Codes. This discussion centered on 
Switching Operations Fatality Analysis (SOFA). SOFA events were 
claiming 40 to 50 percent of all fatalities of railroad workers. The 
Working Group decided to include new codes to insure that fatal and 
non-fatal SOFA events were culled from other injuries. A small task 
group was formed, and worked one evening to develop the eight new 
codes. The full Working Group approved these SOFA codes the next day. 
However, there was an oversight by the Working Group in the process. 
There should have been two additional sets of codes for SOFA RCL events 
(related to RCL and unrelated to RCL). This oversight was not 
discovered until October 2003, well after the publication and effective 
date of the revised regulation.
    All of the parties to the Full Working Group agreed that any 
omission in capturing SOFA related injuries was a serious problem. FRA 
developed 16 additional codes to correspond to the previous eight 
codes. The new codes R1 through R8 and U1 through U8 were promulgated 
in December 2003, and were subsequently added to the FRA Guide to 
remedy the immediate concern. While the initial publication of these 
SOFA codes was not subject to a notice and comment period, FRA invites 
comments on the addition of these SOFA codes in this NPRM.
    FRA is also proposing to add new Circumstance Codes to Appendix F 
of the FRA Guide for use on Form FRA F 6180.55a, ``Railroad Injury and 
Illness Summary (Continuation Sheet),'' to better identify injuries 
that occur in or due to platform gaps. FRA believes that the collection 
of this information will allow the agency to assess the magnitude of 
these types of injuries, identify locations where platform gap related 
injuries frequently occur, and ultimately aid FRA in efforts to reduce 
such injuries.
    The RSAC General Passenger Safety (GPS) Task Force reported to the 
full RSAC on October 25, 2007, its Cause Code Recommendations for 
platform gap related injuries as follows:
    (1) To the ``Physical Act Circumstance Codes'' add codes for:
     Passenger Train-Boarding.
     Passenger Train-Alighting.
    Also revise the ``Physical Act Circumstance Codes'' to clarify that 
codes 63 (stepping up) and 64 (stepping over) are to be used for 
boarding/alighting at high level platforms.
    (2) To Part III of the ``Location Circumstance Codes'' add codes 
for:
     Rail Car Door Threshold Plate to Edge of Platform Gap.
     Area Between Coupled Cars and Platform.
     Area Along Car body, other than Threshold Plate and 
Platform Edge.
     Car in Vestibule.
     On Platform--Other.
    Also change Location Circumstance Code C2--``On Platform'' to ``On 
Platform Station.''

[[Page 52513]]

    (3) To the ``Event Circumstance Codes'' add a code for:
     Slipped, fell, stumbled due to Gap.
    (4) To Part I of the ``Location Circumstance Codes'' add a code 
for:
     Other than Platform.
    Also change the Location Circumstance Code ``P-Passenger Terminal'' 
to ``P-Passenger Station on Platform.''
    (5) To the ``Tools, Machinery, Appliances, Structures, Surfaces, 
(etc.) Circumstance Codes'' add codes for:
     Door, End or Side--Passenger Train.
     Door, Trap.
    The full RSAC agreed to these recommendations on October 25, 2007.
    Subsequently, FRA's Safety Knowledge Management Division's (SKMD) 
database experts reviewed the RSAC approved coding scheme in an effort 
to prevent redundant codes, develop ease in coding for reporting 
officers and clerks not familiar with all the nuances in gap incidents, 
and to develop a system to easily cull gap incidents from the casualty 
database. Based on this review, FRA proposes to add the following new 
codes to Appendix F--Circumstance Codes as follows:
    (1) To the ``Physical Act Circumstance Codes'' FRA proposes to add 
code:
     80--Stepping across (passenger cars).
    (2) To Part III of the ``Location Circumstance Codes'' FRA proposes 
to add codes:
     G1--Rail Car Door Threshold Plate to Edge of Platform--
Gap.
     G2--Area Between Coupled Cars and Platform.
     G3--Area Along Car body, other than Threshold Plate and 
Platform Edge.
     G4--Car in Vestibule.
    (3) To the ``Probable Reason for Injury/Illness Circumstance 
Codes'' FRA proposes to add code:
     18--Slipped, fell, stumbled due to Gap.
    (4) To the ``Tools, Machinery, Appliances, Structures, Surfaces, 
(etc.) Circumstance Codes'' FRA proposes to add codes:
     1G--Door, End or Side--Passenger Train.
     2G--Door, Trap--Passenger Train.
    The instructions for coding gap incidents will be included in the 
proposed revisions to the FRA Guide.
    M. Appendix G, ``FRA Regional Offices and Headquarters.'' FRA 
proposes to update these entries.
    N. Appendix H, ``Forms.'' FRA proposes to revise its forms, as 
follows:
    (1) Form FRA F 6180.97 and Form FRA F 6180.98. FRA proposes to 
revise block 36 on Form FRA F 6180.97 ``Date'' to state ``Date 
Initially Signed/Completed''; and block 44 on Form FRA F 6180.98 
``Date'' to state ``Date Initially Signed/Completed'' to clarify that 
the block must contain the initial date the form was completed. FRA 
finds it necessary to make such change because certain railroads do not 
retain the initial date a record was completed, but only the date of 
the most recent update to the record. Consequently, FRA is unable to 
discern if the railroad entered each reportable and accountable injury 
and illness and each reportable and accountable rail equipment 
accident/incident on the appropriate record, as required by Sec.  
225.25 (a)-(e), no later than seven working days after receiving 
information or acquiring knowledge that an injury or illness or rail 
equipment accident/incident has occurred, as required by Sec.  
225.25(f). FRA believes that specifying the date which is required to 
be maintained on the record will resolve any confusion regarding the 
requirement.
    (2) Form FRA F 6180.97. FRA proposes to rename block 12, 
``Division'' to ``Subdivision'' and require railroads to provide train 
accident location by providing subdivision data in this block as a 
means of improving railroad safety in the area of train accidents. If 
the railroad is not so divided, enter the word ``system.'' If 
subdivision data are not applicable, the railroad must enter terminal/
yard name. This change would also apply to alternative railroad-
designed Form FRA 6180.97. This change is consistent with the proposed 
``Division'' to ``Subdivision'' change on Form FRA F 6180.54. See 
paragraph N(6) of this appendix, ``Form FRA F 6180.54'' for additional 
information.
    FRA also wishes to clarify that in situations of joint operations, 
block 26, ``Equipment Damage (in dollars)'' refers to the aggregate 
amount of equipment damage incurred for all railroads involved, and 
that Block 27, ``Track, Signal, Way & Structure Damage (in dollars)'' 
refers to the aggregate amount of track, signal, way and structure 
damage incurred for all track owners. This revision does not change 
existing reporting requirements, and should not represent an additional 
reporting burden, because both railroads should already be exchanging 
relevant cost data to determine if the accident was FRA reportable.
    (3) Form FRA F 6180.98. FRA proposes to replace the ``Social 
Security Number'' requirement in block 6 with a requirement for 
``Employee Identification Number.'' FRA proposes this change in 
response to privacy concerns. This chapter will include instructions 
addressing FRA's proposed requirement that (by amending the definition 
for ``Accountable Injury or Illness'') railroads complete a Form FRA F 
6180.98, ``Railroad Employee Injury and/or Illness Record'' of all 
injuries and illnesses when such abnormal condition or disorder 
manifests within the work environment regardless of whether the 
condition or disorder is discernably caused by an event or exposure in 
the work environment.
    (4) Form FRA F 6180.55. FRA has eliminated the notary requirement 
on Form FRA F 6180.55 block 10, and replace it with a requirement that 
the report be signed under penalty of perjury as follows:

    (1) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and 
correct. Executed on (date).

(Signature).''

    (2) If executed without (i.e., outside of) the United States: 
``I declare (or certify, verify, or state) under penalty of perjury 
under the laws of the United States of America that the foregoing is 
true and correct. Executed on (date).

(Signature).''

FRA is able to replace the oath requirement, mandated by 49 U.S.C. 
20901 with a signature under penalty of perjury under 28 U.S.C. 1746. 
See Section-by-Section analysis for proposed Sec.  225.37, ``Magnetic 
media transfer and electronic submission,'' for additional information.
    (5) Form FRA 6180.55a. FRA proposes to require railroads to place 
an ``X'' representative of ``suicide'' or ``attempted suicide'' be in 
block 5r when reporting a suicide or attempted suicide. FRA also 
proposes to add instructions that if an in injury is due to a gap 
incident, the railroad must use in block 5n (``Cause''), ``Probable 
Reason for Injury/Illness Circumstance Codes'' code number 18--Slipped, 
fell, stumbled due to Gap, regardless of whether other codes may also 
be applicable. See Section-by-Section analysis for Sec.  225.15, 
``Accidents/incidents not to be reported,'' for additional information. 
FRA also proposes to change the title of block 5m from ``Result'' to 
``Tools'' to remain consistent with the wording in Appendix F.
    (6) Form FRA F 6180.54. FRA proposes to revise block 30 by changing 
the name of the block from ``Methods of Operation'' to ``Type of 
Territory.'' The block will have five coding blocks. Each of the five 
coding blocks printed in block 30 will be labeled for exclusive use in 
accordance with codes listed in the proposed Appendix J. The coding

[[Page 52514]]

blocks are representative of the following information: The first block 
(mandatory) will indicate the type of territory (signaled or non-
signaled); the second block (mandatory) will indicate the authority for 
movement; and the third, fourth, and fifth blocks (optional) will 
indicate additional information through the use of supplemental codes.
    FRA proposes to make this change because in the past few years, 
with the advancement of Positive Train Control (PTC), there has been a 
growing requirement for FRA to definitively identify signalized versus 
``dark'' territory.
    The revisions should make completing the block less burdensome and 
allow for the identification of territory in a manner compatible with 
the railroads' internal railroad coding system. These changes are 
consistent with suggestions by railroads and the AAR that such coding 
be made easier and that the FRA Guide provide clearer instruction. They 
also take into consideration railroad concerns about expense associated 
with having to revise the form and expressed the desire for FRA to 
retain the current form and redesign the coding system but not change 
the database structure. See Proposed Revisions to the FRA Guide, 
Appendix J, ``Type of Territory Codes'' for additional information.
    FRA proposes to rename block 12, ``Division'' to ``Subdivision'' 
and require railroads to provide train accident location by subdivision 
data (proposed block 12) on Form FRA F 6180.54 as a means of improving 
railroad safety in the area of train accidents. If the railroad is not 
so divided, enter the word ``system.'' If subdivision data is not 
applicable, the railroad must enter terminal/yard name.
    FRA needs a permanent means of determining the location of an 
accident. This is especially meaningful when a release of hazardous 
materials or leakage of diesel fuel has occurred. Having the location 
information for all train accidents will allow FRA to develop better 
inspection planning, identify locations of hazardous materials 
contamination affecting the health and/or environment, and provide to 
the Transportation Security Administration another tool for security 
planning. Traditionally, FRA and the railroad industry have relied on 
the railroad milepost system to reference location, and in many cases, 
location data derived from the milepost system is accurate for short-
term issues. Over the long-term, however, railroads do change mileposts 
during mergers and reorganizations. Also, mileposts can be inaccurate 
when a railroad is able to build a shorter link, or when a railroad 
does not remove old mileposts when replacement mileposts, which have a 
different starting location, are installed.
    Ultimately, FRA believes geographic coordinates (i.e., latitude/
longitude) are the best indicator of location, and the agency is 
requesting public comment whether FRA should require railroads to 
complete longitude and latitude data fields on Form FRA F 6180.54 and 
Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet).'' See Background section of this notice. In the 
interim, FRA believes that subdivision data is the best location 
identifier available, and as such is proposing its inclusion on Form 
FRA F 6180.54.
    FRA proposes to add to block 49, ``Special Study Block'' 
descriptive references ``a.'' to line one and ``b.'' to line two for 
ease of reference. FRA proposes to require railroads to indicate in 
block ``Special Study Block'' 49a the type of track an accident/
incident occurred on, by using the codes ``CWR'' for continuous welded 
rail or ``OTH'' for other. FRA notes that the special study block was 
created to allow for the collection of specific accident information as 
the need arises. See 61 FR 30940, June 18, 1996. The primary purpose of 
these revisions to the rule is to increase the accuracy, completeness, 
and utility of FRA's accident database and the clarity of the 
definitions and requirements. In light of recent track-related 
accidents/incidents, FRA finds it necessary to gather and analyze data 
of this nature. The collection and analysis of this data is consistent 
with 49 CFR part 213 regarding joint bar inspection and reporting.
    To account for suicides and attempted suicides on Form FRA F 
6180.54, FRA proposes add four Miscellaneous Cause Codes to Appendix C 
for use in block 38, Primary Cause Code: M309 ``Suicide (Highway-Rail 
Grade Crossing)''; M310 ``Attempted Suicide (Highway-Rail Grade 
Crossing)''; M509 ``Suicide (Other Misc.)''; and M510 ``Attempted 
Suicide (Other Misc.)'' to Appendix C, ``Train Accident Cause Codes'' 
to indicate ``Suicide or Attempted Suicide.'' Additionally, FRA 
proposes to require railroads to include suicides and attempted 
suicides in the casualty counts in boxes 46, 47, and 48, as applicable, 
and to maintain consistent casualty counts between the different 
reporting forms.
    FRA proposes, for all highway-rail grade crossing fatalities, to 
require railroads to include a brief description in narrative block 52 
of the circumstances of the accident.
    FRA also proposes that if an accident is caused by a bond wire 
attachment issue (see proposed Appendix C ``Train Accident Cause 
Codes''), information on the methods and locations of those attachments 
be provided in the narrative block 52.
    (7) Forms FRA F 6180.54 and FRA F 6180.57. FRA proposes to amend 
the ``Type of Equipment,'' block 25 on Form FRA F 6180.54 and block 24 
on Form FRA F 6180.57 as follows:
     Code of ``2'' was ``Passenger Train''; this will be 
changed to ``Passenger Train--Pulling.''
     Code of ``3'' was ``Commuter Train''; this will be changed 
to ``Commuter Train--Pulling.''
     New code ``B'' will read ``Passenger Train--Pushing.''
     New code ``C'' will read ``Commuter Train--Pushing.''
     New Code ``D'' will read ``EMU Train.''
     New Code ``E'' will read ``DMU Train.''
    These amendments will allow for the delineation of additional types 
of equipment in FRA's database. Specifically, locomotives pushing or 
pulling, and EMU and DMU trains. The need for such requirement comes in 
light of the 2004 passenger train collision in Glendale, California, 
wherein a number of individuals were killed or injured. Subsequent to 
this collision, FRA realized that under its current reporting criteria, 
it could not determine from the database if the passenger or commuter 
equipment being used was in ``pull'' or ``push'' mode at the time of an 
accident/incident (i.e., whether the locomotive unit providing power 
was in the front or back of the train); necessary analysis was 
completed by determining railroad equipment and practice on individual 
routes. Also, since EMU and DMU trains are neither pushing nor pulling 
since all the cars are involved in providing power to the train, FRA 
needed to provide a code to accurately describe that circumstance as 
well.
    (8) FRA Form FRA F 6180.57. FRA proposes to amend block 16, 
``Position'' to read (1) Stalled or stuck on crossing (currently 
``Stalled on Crossing''); (2) Stopped on Crossing; (3) Moving over 
crossing; (4) Trapped on crossing by traffic (currently ``Trapped''); 
(5) Blocked on crossing by gates. In doing so, FRA is clarifying the 
difference between choices (1) and (4). FRA has found that under the 
current options railroads do not necessarily understand that current 
option (4) ``Trapped'' means trapped by traffic. FRA is also adding a 
fifth option, (5) ``Blocked on crossing by gates'' to indicate those 
situations

[[Page 52515]]

wherein a highway-user perceives that the user is prevented from 
leaving the crossing because the highway user is blocked in by crossing 
gates.
    FRA proposes to amend Form FRA F 6180.57 by changing the title of 
block 34 from ``Whistle Ban'' to ``Roadway Conditions'' and include the 
following options: (A) Dry; (B) Wet; (C) Snow/Slush; (D) Ice; (E) Sand, 
Mud, Dirt, Oil, Gravel; (F) Water (Standing, Moving). In this block the 
railroad is to indicate roadway conditions at the time of the highway-
rail grade crossing accident/incident. This information is needed, as 
data provided to FRA regarding ``Weather Conditions'' block 23 does not 
necessarily indicate road conditions. For example, while the weather 
may be clear at the time of a highway-rail grade crossing accident/
incident, the roadway may be wet, covered with snow, or icy. This 
change will provide FRA with vital information useful in assessing 
risks and causes of highway rail grade crossing accident/incidents. FRA 
no longer needs to capture Whistle Ban/Quiet Zone information of Form 
FRA 6180.57, as this information is provided to FRA in Quiet Zone 
Notices of Establishment. See FRA 49 CFR part 222.
    FRA proposes to change the title of blocks 38, ``Driver's Age''; 
39, ``Driver's Gender''; 40, ``Driver Drove Behind or in Front of Train 
and Struck or Was Struck by Second Train''; and 41, ``Driver,'' by 
replacing the term ``Driver'' or ``Driver's'' with ``Highway User'' or 
``Highway User's'' as applicable; and in blocks 40 (in block title) and 
41 (in block's response options) also replace the term ``drove'' with 
``went.'' Such change clarifies that FRA proposes that railroads 
provide the information for all highway users involved in a highway-
rail grade crossing accident/incident, rather than just for drivers. 
FRA is reviewing how best to collect this information, including 
revising these blocks on Form FRA F 6180.57 and amending the 
instructions in the FRA Guide for completing the form. Any such form 
revisions and corresponding changes to the FRA Guide will be published 
in the Final Rule. In the meantime, FRA welcomes comments and 
suggestions on this issue.
    FRA proposes to add the following descriptive options to block 41: 
``Went around or thru temporary barricade'' and ``Suicide or attempted 
suicide.'' FRA also proposes to revise the ``Drove around or thru the 
gate'' descriptor to two separate descriptive choices: ``Went around 
gate''; and ``Went thru gate.''
    If ``Went around or thru temporary barricade'' is selected in block 
41 due to the temporary closure of the crossing, explain in the 
narrative block 54 the circumstance of the closure (e.g., the roadway 
was closed for repair of crossing surface; maintenance/testing of 
automated warning devices; etc.). Additionally, explain how the closure 
was accomplished (e.g., roadway closed to traffic with jersey barriers 
on both approaches; roadway closed with construction barrels on 
easterly approach; etc.).
    In the event of a suicide or attempted suicide, option 8, ``Suicide 
or attempted suicide'' must be indicated in block 41, regardless of 
whether other choices may also be applicable. FRA proposes to require 
the inclusion of the suicide or attempted suicide in the casualty 
counts in blocks 46, 49, and 52, as applicable, and to maintain 
consistent casualty counts between the different reporting forms.
    FRA proposes to amend the title of block 48, ``Total Number of 
Highway-Rail Crossing Users'' to read ``Total Number of Vehicle 
Occupants (including driver).'' Collection of this data allows FRA to 
cross-check ``Casualty to:'' block 46 with the number of vehicle 
occupants in block 48. FRA has found that collecting this information 
serves as an important tool in analyzing reports and ensuring 
continuity and compliance in reporting. In accordance with Chapter 2 of 
the FRA Guide, vehicles include automobiles, buses, trucks, 
motorcycles, bicycles, farm vehicles, and all other modes of surface 
transportation, motorized and unmotorized.
    FRA proposes to require in ``Special Study Block'' 53a, that 
railroads are to indicate whether the highway-rail crossing accident/
incident was recorded by a locomotive video recorder; and if so, 
whether information gathered in viewing the recording was used by the 
railroad to complete the FRA Highway-Rail Grade Crossing Accident/
Incident Report. To facilitate the collection of this information, FRA 
will include instructions in the FRA Guide and place two sets of ``yes 
or no'' options in block 53a; one for ``video taken'' and one for 
``video used.'' Collecting this information will provide FRA with 
knowledge as to the availability of video footage for particular 
accidents/incidents; give FRA an indication of how often and to what 
degree railroads are collecting and reviewing video footage of these 
accidents/incidents; and make available to FRA an additional tool to 
study the causes and circumstances of these accidents/incidents. 
Whether or not video footage was captured and reviewed for a particular 
accident/incident may also serve as an indicator as to the accuracy or 
detail of the railroad's accident/incident report. For additional 
information on requirements related to event recorders, see 49 CFR 
229.135, ``Event Recorders.''
    FRA is proposing to include instructions that railroads should 
limit the use of the ``unknown'' option in block 36, ``Crossing warning 
Interconnected with Highway Signals'' and block 37, ``Crossing 
Illuminated by Street Lights or Special Lights.'' FRA has found that an 
inordinate number of completed Form FRA F 6180.57 forms are submitted 
to the agency with ``unknown'' marked box 36 and/or 37. Railroads have 
an obligation to submit accurate reports to FRA and not simply mark 
``unknown'' without investigating the matter. Therefore, FRA is using 
this opportunity to require that in Block 36, a railroad must only 
enter option 3, ``unknown'' after having first consulted with the 
signal department of the railroad responsible for track maintenance in 
an effort to obtain the information. In Block 37, the railroad must 
only enter option 3, ``unknown'' after the railroad has first made a 
diligent effort to discern the relevant lighting conditions in an 
effort to obtain the information, but still cannot make a 
determination. FRA proposes these limitations in order to increase the 
quantity and accuracy of data the agency gathers related to highway-
rail grade crossing accidents/incidents by requiring railroads to make 
an effort to gather the information.
    FRA notes that the agency is proposing many of the Form FRA F 
6180.57 revisions in response to a November, 28, 2005, report by the 
Department of Transportation's Office of Inspector General, ``Audit of 
Oversight of Highway-Rail Grade Crossing Accident Reporting, 
Investigations, and Safety Regulations, Report No. MH-2006-016.
    (9) Form FRA F 6180.107. FRA proposes to revise block 6 on Form FRA 
F 6180.107, ``Employee Number or Social Security Number'' to ``Employee 
Identification Number'' to address privacy concerns.
    FRA proposes to revise block 23 on Form FRA F 6180.107 ``Date the 
Log Entry was Completed (mm/dd/yy)'' to state ``Date initially signed/
completed.'' FRA proposes this change to clarify that the block must 
contain the initial date the form was completed. FRA finds it necessary 
to make such change because the agency has found certain railroads do 
not retain the initial date a record was completed, but only the date 
of the most recent update to the record. FRA is making this revision to 
ensure that it can discern if the railroad entered each

[[Page 52516]]

claimed occupational illness on the appropriate record no later than 
seven working days after receiving information or acquiring knowledge 
that an injury or illness or rail equipment accident/incident has 
occurred, as proposed in this NPRM in Sec.  225.25(i)(2). FRA believes 
that by specifying the date required to be maintained on the record, 
any confusion regarding the requirement will be resolved.
    O. Appendix I, ``Model Internal Control Plans, Including Model 
Statement of Policy against Harassment and Intimidation and Model 
Complaint Procedures.'' FRA proposes to reorder the ICP components in 
Appendix I's sample Internal Control Plan (ICP) to more closely model 
the listing of components as set forth in Sec.  225.33.
    P. Appendix J, ``Type of Territory Codes.'' FRA proposes the 
addition of an Appendix J, which will provide Type of Territory Codes 
and instructions for use of those codes when completing proposed block 
30, ``Type of Territory,'' on Form FRA F 6180.54, ``Rail Equipment 
Accident/Incident Report.'' The codes will represent type of territory 
(i.e., signaled territory versus non-signaled territory); the authority 
for movement (i.e., signal indication; mandatory directive; other than 
main track--Rule 105); and additional miscellaneous supplemental codes. 
See Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    Q. Appendix K, ``Electronic Submission of Reports to FRA.'' FRA 
proposes to add this appendix to specifically provide electronic 
submission instructions and guidance.
    R. Appendix L, ``49 CFR part 225.'' FRA proposes to include in this 
section the full regulatory text of part 225.

Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures. 44 FR 11034, 
February 26, 1979. FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of this proposed 
rule. Document inspection and copying facilities are available at U.S. 
Department of Transportation, Docket Operations, West Building Ground 
Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://www.regulations.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at the Office of 
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to 
Docket No. FRA-2006-26173.
    A regulatory system should protect and improve the health and 
safety of the American people. It should perform in a manner that 
improves the performance of the economy without imposing unacceptable 
or unreasonable costs on society. The changes in this proposed 
rulemaking would serve to simplify accident/incident reporting for 
railroads, ensure that railroad worker casualty statistics conform to 
the same criteria as statistics from other Federal agencies, and 
improve the quality of data available for analysis of railroad 
accidents and incidents.
    FRA believes that the amendments to part 225 will increase the 
accuracy, precision, completeness of railroad accidents/incident 
records and reports, and correspondingly, FRA's and the railroad 
industry's information base related to accidents and incidents. This 
increased awareness will not only aid FRA in assessing and managing 
risk, but aid railroads and their employees in recognizing and 
correcting dangerous conditions and practices in order to maintain a 
safe and healthy environment for railroad workers and the public. 
Accordingly, FRA is proposing the following regulatory changes:
     Clarify ambiguous definitions and regulations;
     Add necessary definitions;
     Require railroads (by amending the definition of 
``Accountable Injury or Illness'') to complete a Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record'' of all injuries and 
illnesses when such abnormal condition or disorder manifests within the 
work environment regardless of whether the condition or disorder is 
discernably caused by an event or exposure in the work environment;
     Require the reporting of additional types of injuries to 
all persons;
     Require the reporting of suicides and attempted suicides;
     Include a comprehensive list of accident/incident 
reporting exceptions;
     Allow for consolidated accident/incident reporting by 
integrated railroad systems;
     Set forth requirements for railroad electronic 
recordkeeping systems for purposes of part 225;
     Update regulatory text, as applicable;
     Enhance the quality of information available for railroad 
casualty analysis;
     Clarify and limit which highway-rail grade crossing 
fatalities must be telephonically reported to the National Response 
Center;
     Clarify and refine the criteria for using and retaining 
Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to be 
Work-Related,'' and the alternative railroad-designed record;
     Eliminate the oath and notarization requirements for Form 
FRA F 6180.55, ``Railroad Injury and Illness Summary'';
     Allow for the electronic submission via CD ROM or the 
Internet of Forms FRA F 6180.55, ``Railroad Injury and Illness 
Summary'' and 6180.81, ``Employee Human Factor Attachment'' in .pdf or 
.jpg format;
     Set forth record retention requirements for certain 
accident/incident recording and reporting records not previously 
addressed; and
     Update FRA's address information.
    In addition to proposing revisions to its regulations, FRA is 
proposing revisions to the FRA Guide and to certain accident/incident 
recording and reporting forms.
    For the twenty-year period, the estimated quantified costs would 
total $6,721,717, and the PV of the estimated quantified costs is 
$3,640,099. For the twenty-year period, the estimated quantified 
benefits would total $1,772,811, and the PV of the estimated quantified 
benefits would total $885,565.
    The NPV of this analysis is a negative $2,754,533. This means that, 
according to this analysis and methodology it utilizes for the given 
twenty-year period, the discounted value of the estimated costs would 
exceed the discounted value of the estimated benefits by approximately 
$2,754,533.
    FRA anticipates further substantial benefits flowing from more 
precise and complete accident/incident reporting data. Not only does 
the analysis of reported data provide information as to the cause of an 
accident/incident, this data can help determine trends, assess hazards, 
and assist in the development of effective countermeasures that may 
then be implemented to prevent similar accidents and incidents from 
occurring in the future. More precise and complete data will also help 
to identify where safety-oriented programs should be focused and aid 
railroads and the Agency in setting priorities among establishments for 
inspection and safety improvement efforts.

[[Page 52517]]

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. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), FRA has prepared and placed in the docket a Certification 
Statement that assesses the small entity impact of this proposed rule, 
and certifies that this proposed rule is not expected to have a 
significant economic impact on a substantial number of small entities.
    Document inspection and copying facilities are available at the 
Docket Management Facility, U.S. Department of Transportation, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Docket material is also available for inspection 
on the Internet at http://www.regulations.gov. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Federal Railroad Administration, Mail Stop 10, 
Room W31-109, 1200 New Jersey Avenue, SE., Washington, DC 20590; please 
refer to Docket No. FRA 2006-26173.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``line-haul 
railroad'' that has fewer than 1,500 employees, a ``short line 
railroad'' with fewer than 500 employees, or a ``commuter rail system'' 
with annual receipts of less than seven million dollars. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121 subpart A. 
SBA's ``size standards'' may be altered by Federal agencies, in 
consultation with SBA and in conjunction with public comment. Pursuant 
to that authority FRA has published a final statement of agency policy 
that formally establishes ``small entities'' or ``small businesses'' as 
being railroads, contractors and hazardous materials shippers that meet 
the revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, 
codified at Appendix C to 49 CFR part 209. The $20 million limit is 
based on the Surface Transportation Board's revenue threshold for a 
Class III railroad carrier. Railroad revenue is adjusted for inflation 
by applying a revenue deflator formula in accordance with 49 CFR 
1201.1-1.
    This proposed rule applies to railroads. There are approximately 
665 small railroads that could potentially be affected. FRA anticipates 
that most of the recording and reporting burdens imposed by this 
proposed regulation will be born by railroads that are not considered 
small, due to the decreased likelihood that a small railroad will 
experience an accident/incident necessitating such recording and/or 
reporting. For example, on average over the 2005 to 2007 period, small 
railroads reported approximately only nine percent of all reportable 
casualties and only 10 percent of all reportable accidents/incidents.
    FRA also anticipates that proposed computer related burdens will be 
born by the larger railroads since smaller railroads since the large 
railroads choose to retain their accident/incident records and reports 
electronically in their own systems. Large railroads also submit their 
accident/incident reports to FRA electronically via their own systems. 
Most small railroads do their federally required accident/incident 
recordkeeping and reporting on a personal computer using FRA supplied 
Accident/Incident Report Generator (AIRG) software. This software 
allows railroads to send reports to FRA on a CD-ROM or to transmit the 
information to FRA over the Internet. FRA will send a free updated or 
new version of the AIRG software to any railroad that requests it. 
Other small railroads do not use a computer system for reporting. 
Accordingly, FRA does not anticipate that these burdens will be imposed 
on small entities.
    FRA invites comments from all interested parties concerning the 
potential economic impact on small entities caused by the proposed rule 
amendments.

Paperwork Statement--Accident/Incident Reporting and Recordkeeping

    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 of this regulation that contain the new information 
collection requirements and the estimated time to fulfill each 
requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                  Respondent      Total annual     Average time    Total annual    Total annual
     CFR section--49 CFR           universe        responses       per response    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
225.6--Consolidated Reporting  718 railroads..  10 Reports.....  40 hours.......             400         $20,400
 (New Requirements).
    --Written agreements on    718 railroads..  10 agreements..  2 hours........              20           1,020
     subsidiaries.
    --Notifications on         718 railroads..  2 notifications  1 hr. + 1 hr...               4             204
     changes to subsidiaries                     + 2 agreements.
     and amended written
     agreement.
225.9--Telephone Reports--     718 railroads..  3,300 Reports..  15 minutes.....             825          42,075
 Certain Accidents/Incidents
 and Other Events.
225.11--Reporting of Rail      718 railroads..  3,600 forms....  2 hours........           7,200         367,200
 Equipment Accidents/
 Incidents (Form FRA F
 6180.54).
225.12(a)--Rail Equipment      718 railroads..  1,600 forms....  15 minutes.....             400          20,400
 Accident/Incident Reports--
 Human Factor (Form FRA F
 6180.81).
225.12(b)--Rail Equipment      718 railroads..  1,000 notices +  10 minutes + 3              367          18,717
 Accident/Incident Reports--                     4,010 copies.    minutes.
 Human Factor--Part I Form
 FRA F 6180.78.
225.12(c)--Rail Equipment      718 railroads..  100 requests...  20 minutes.....              33           1,683
 Accident/Incident Reports--
 Human Factor--Joint
 Operations.

[[Page 52518]]


225.12(d)--Rail Equipment      718 railroads..  20 attachments   15 minutes.....              10             510
 Accident/Incident Reports--                     + 20 notices.
 Human Factor--Late
 Identification.
225.12(g)--Rail Equipment      Railroad         75 statements..  1.5 hours......             113           5,311
 Accident/Incident Reports--    Employees.
 Human Factor--Employee
 Supplement--Part II Form FRA
 F 6180.78.
225.12(g)--Rail Equipment      Railroad         10 letters.....  2 hours........              20             940
 Accident/Incident Reports--    Employees.
 Human Factor--Employee
 Confidential Letter.
225.13--Late Reports.........  718 railroads..  25 reports.....  1 hour.........              25           1,275
    --Amended Rail Equipment   718 railroads..  50 amended       1 hour + 3                   52           2,652
     Accident/ Incident                          reports/40       minutes.
     Reports.                                    copies.
225.18--Alcohol or Drug        718 railroads..  80 reports.....  30 minutes.....              40           2,040
 Involvement.
    --Appended Reports.......  718 railroads..  5 reports......  30 minutes.....               3             153
225.19(a)--Highway-Rail Grade  718 railroads..  2,880 forms....  2 hours........           5,760         293,760
 Crossing Accident/Incident
 Reports--(Form FRA F
 6180.57).
    --(c) Death, Injury, or    718 railroads..  12,180 forms...  20 min.; 50               4,810         245,310
     Occupational Illness--                                       min..
     Form FRA F 6180.55a.
225.21--Forms:
    --Form FRA F 6180.55--     718 railroads..  8,616 forms....  10 minutes.....           1,436          73,236
     Railroad Injury/Illness
     Summary.
    --Form FRA F 6180.56--     718 railroads..  718 forms......  15 minutes.....             180           9,180
     Railroad Annual Report
     of Manhours By State.
    --Form FRA F 6180.98--     718 railroads..  22,500 forms...  1 hour.........          22,500       1,147,500
     Railroad Employee Injury
     and/or Illness Record.
    --Form FRA F 6180.98--     718 railroads..  675 copies.....  2 minutes......              23           1,081
     Copies.
    --Form FRA F 6180.97--     718 railroads..  14,000 forms...  30 minutes.....           7,000         357,000
     Initial Rail Equipment
     Accident/Incident Record.
    --Form FRA F 6180.107--    718 railroads..  300 forms......  15 minutes.....              75           3,825
     Alternate Record For
     Illnesses Claimed to Be
     Work Related.
    --Form FRA F 6180.39i--    654 railroads..  1,000 forms....  90 minutes.....           1,500          76,500
     Notific. & Investigation
     Rpt..
225.25--Posting of Monthly     718 railroads..  8,616 lists....  16 minutes.....           2,298         117,198
 Summary.
225.27--Retention of Records.  718 railroads..  1,900 records..  2 minutes......              63           3,213
225.33--Internal Control       718 railroads..  25 amendments..  14 hours.......             350          17,850
 Plans--Amended.
225.35--Access to Records and  15 railroads...  400 lists......  20 minutes.....             133           6,783
 Reports--Lists.
    --Subsequent Years.......  4 railroads....  16 lists.......  20 minutes.....               5             255
225.37--Optical Media          8 railroads....  200 transfers..  3 minutes......              10             510
 Transfer and Electronic       718 railroads..  2,400 elec       3 minutes......             120           6,120
 Submission.                                     submissions.
----------------------------------------------------------------------------------------------------------------

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. Nakia Jackson at 202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
address: robert.brogan@dot.gov; nakia.jackson@dot.gov.
    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

[[Page 52519]]

effective date of the final rule. The OMB control number, when 
assigned, will be announced by separate notice in the Federal Register.

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, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the proposed regulation. Where a regulation 
has federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This is a rule with preemptive effect. The requirements of this 
rule establish uniform Federal railroad safety laws that must be met, 
and State requirements covering the same subject are displaced, whether 
those standards are in the form of State statutes, regulations, local 
ordinances, or other forms of State law, including State common law. 
Section 20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. This is consistent with past practice at FRA, and 
within the Department of Transportation.
    However, while FRA's regulations under part 225 preempt States from 
prescribing accident/incident reporting requirements, there is nothing 
in our regulations that preempts States from having their own accident 
notification requirements. Under Sec.  225.1, ``[i]ssuance of these 
regulations under the Federal railroad safety laws and regulations 
preempts States from prescribing accident/incident reporting 
requirements. Any State may, however, require railroads to submit to it 
copies of accident/incident and injury/illness reports filed with FRA 
under this part, for accidents/incidents and injuries/illnesses that 
occur in that State.'' FRA does not propose to change this provision 
that a State may require a railroad to submit to the State copies of 
accident/incident and injury/illness reports that occur in that State. 
However, FRA may need to amend the provision with respect to ``suicide 
data.'' FRA is requesting comments on how to ensure that restrictions 
on the use and public availability of suicide data at the State level 
remain consistent with those FRA has prescribed in proposed Sec.  
225.41. Specifically, that suicide data (as defined in Sec.  225.5) 
will not be included in any summaries of data on the number of injuries 
and illnesses associated with railroad operations; that suicide data is 
not publicly accessible; and that suicide data will only be available 
to the public in aggregate format.
    Additionally, section 20902 of title 49 of the United States Code, 
which authorized the Secretary of Transportation to investigate certain 
accidents and incidents, provides: ``[i]f the accident or incident is 
investigated by a commission of the State in which it occurred, the 
Secretary, if convenient, shall carry out the investigation at the same 
time as, and in coordination with, the commission's investigation.'' 
This section contemplates that States have an interest in carrying out 
simultaneous investigation in coordination with the Secretary, where 
convenient. It would be consistent with this interest to permit States 
to adopt their own accident notification requirements so as to allow a 
prompt, and perhaps coordinated investigation.
    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. This 
proposed rule will not have a substantial effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among various levels of 
government. FRA concludes that this proposed rule will not impose any 
direct compliance costs on State and local governments and has no 
federalism implications, other than the preemption of State laws 
covering the subject matter of this final rule, which occurs by 
operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or 
order. For the foregoing reasons, FRA believes that this proposed rule 
is in accordance with the principles and criteria contained in 
Executive Order 13132.

International Trade Impact Assessment

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

Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this proposed rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:
    (c) Actions categorically excluded. Certain classes of FRA actions 
have been determined to be categorically excluded from the requirements 
of these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * * (20) 
Promulgation of railroad safety rules and policy statements that do not 
result in significantly increased emissions or air or water pollutants 
or noise or increased traffic congestion in any mode of transportation.
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal

[[Page 52520]]

action significantly affecting the quality of the human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. No. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) [$141,000,000 in 2008] 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. The proposed rule would not result 
in the expenditure, in the aggregate, of $141,000,000 or more in any 
one year, and thus preparation of such a statement is not required.

Energy Impact

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

Privacy Act

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

List of Subjects in 49 CFR Part 225

    Accident investigation, Penalties, Railroad safety, Railroads, 
Reporting and recordkeeping requirements, Safety and transportation.

The Proposed Rule

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

PART 225--[AMENDED]

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

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

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


Sec.  225.3  Applicability.

* * * * *
    (b) The Internal Control Plan requirements in Sec.  225.33(a)(3) 
through (a)(11) do not apply to--
* * * * *
    3. Section 225.5 is amended by adding definitions for discernable 
cause, event or exposure, injury or illness, railroad carrier, 
significant aggravation of a pre-existing injury or illness, and 
suicide data; and by revising paragraphs (1) and (3) of the definition 
for accident/incident, and the definitions of accountable injury or 
illness, accountable rail equipment accident/incident, event or 
exposure arising from the operation of a railroad, general reporting 
criteria, new case, qualified health care professional, railroad, work 
environment and work-related to read as follows:


Sec.  225.5  Definitions.

* * * * *
    Accident/incident means:
    (1) Any impact between railroad on-track equipment and a highway 
user (e.g., an automobile, bus, truck, motorcycle, bicycle, farm 
vehicle, pedestrian or other highway user) at a highway-rail grade 
crossing. Sidewalks, pathways, shoulders and ditches associated with 
the crossing are considered to be part of the crossing site. The term 
``highway user'' includes pedestrians, cyclists, and all other modes of 
surface transportation, motorized and unmotorized.
* * * * *
    (3) Each death, injury, or occupational illness that is a new case 
and meets the general reporting criteria listed in Sec.  225.19(d)(1) 
through (d)(6) if an event or exposure arising from the operation of a 
railroad is a discernable cause of the resulting condition or a 
discernable cause of a significant aggravation to a pre-existing injury 
or illness. The event or exposure arising from the operation of a 
railroad need only be one of the discernable causes; it need not be the 
sole or predominant cause.
    Accountable injury or illness means any abnormal condition or 
disorder of a railroad employee that causes or requires the railroad 
employee to be examined or treated by a qualified health care 
professional but does not meet the general reporting criteria listed in 
Sec.  225.19(d)(1) through (d)(6). When such condition or disorder 
manifests within the work environment it is an accountable injury or 
illness regardless of whether the condition or disorder is discernably 
caused by an event or exposure in the work environment. When such 
condition or disorder manifests outside the work environment it is an 
accountable injury or illness if the condition or disorder is 
discernably caused by an event or exposure in the work environment.
    Accountable rail equipment accident/incident means a collision, 
derailment, fire, explosion, act of God, or other event involving the 
operation of railroad on-track equipment (standing or moving) that does 
not result in reportable damages greater than the current reporting 
threshold to railroad on-track equipment, signals, track, track 
structures, and roadbed.
* * * * *
    Discernable cause means a causal factor capable of being recognized 
by the senses or the understanding. An event or exposure arising from 
the operation of a railroad is a discernable cause of (i.e., 
discernably caused) an injury or illness if, considering the 
circumstances, it is more likely than not that the event or exposure is 
a cause of

[[Page 52521]]

the injury or illness. The event or exposure arising from the operation 
of a railroad need not be a sole, predominant or significant cause of 
the injury or illness, so long as it is a cause (i.e., a contributing 
factor).
* * * * *
    Event or exposure includes an incident, activity, or occurrence.
    Event or exposure arising from the operation of a railroad 
includes--
    (1) With respect to a person who is not an employee of the 
railroad:
    (i) An event or exposure that occurs on property owned, leased, or 
maintained by the railroad and is related to the performance of the 
railroad's rail transportation business; or
    (ii) An event or exposure that occurs off property owned, leased, 
or maintained by the railroad directly resulting from one or more of 
the following railroad operations:
    (A) A train accident, a train incident, or a highway-rail grade 
crossing accident or incident involving the railroad; or
    (B) A release of a hazardous material from a railcar in the 
possession of the railroad or of another dangerous commodity that is 
related to the performance of the railroad's rail transportation 
business.
    (2) With respect to a person who is an employee of the railroad, an 
event or exposure that is work-related.
* * * * *
    General reporting criteria means the criteria listed in Sec.  
225.19(d)(1), (2), (3), (4), (5) and (6).
* * * * *
    Injury or illness means an abnormal condition or disorder. Injuries 
include cases such as, but not limited to, a cut, fracture, sprain, or 
amputation. Illnesses include both acute and chronic illnesses, such as 
but not limited to, a skin disease, respiratory disorder, or poisoning. 
A musculoskeletal disorder is also an injury or illness. Pain is an 
injury or illness when it is sufficiently severe to meet the general 
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6).
* * * * *
    New case means a case in which either the injured or ill person has 
not previously experienced a reported injury or illness of the same 
type that affects the same part of the body, or the injured or ill 
person previously experienced a reported injury or illness of the same 
type that affected the same part of the body but had recovered 
completely (all signs had disappeared) from the previous injury or 
illness, and an event or exposure arising from the operation of a 
railroad discernably caused the signs or symptoms to reappear.
* * * * *
    Qualified health care professional is a health care professional 
operating within the scope of his or her license, registration, or 
certification. In addition to licensed physicians, the term qualified 
health care professional includes members of other occupations 
associated with patient care and treatment such as chiropractors, 
podiatrists, physicians assistants, psychologists, and dentists.
    Railroad means a railroad carrier.
    Railroad carrier means a person providing railroad transportation.
* * * * *
    Significant aggravation of a pre-existing injury or illness means 
aggravation of a pre-existing injury or illness that is discernably 
caused by an event or exposure arising from the operation of a railroad 
that results in:
    (1) With respect to any person:
    (i) Death, provided that the pre-existing injury or illness would 
likely not have resulted in death but for the event or exposure;
    (ii) Loss of consciousness, provided that the pre-existing injury 
or illness would likely not have resulted in loss of consciousness but 
for the event or exposure; or
    (iii) Medical treatment in a case where no medical treatment was 
needed for the injury or illness before the event or exposure, or a 
change in the course of medical treatment that was being provided 
before the event or exposure.
    (2) With respect to a railroad employee, one or more days away from 
work, or days of restricted work, or days of job transfer that 
otherwise would not have occurred but for the event or exposure.
* * * * *
    Suicide data means data regarding the death of an individual due to 
that individual's commission of suicide as determined by a coroner or 
other public authority; or injury to an individual due to that 
individual's attempted commission of suicide as determined by a public 
authority. Only the death of, or injury to, the individual who 
committed the suicidal act is suicide data.
* * * * *
    Work environment means the establishment and other locations where 
one or more railroad employees are working or present as a condition of 
their employment. The work environment includes not only physical 
locations, but also the equipment or materials processed or used by an 
employee during the course of his or her work, and activities of a 
railroad employee associated with his or her work, whether on or off 
the railroad's property.
    Work related means related to an event or exposure occurring within 
the work environment. An injury or illness is presumed work related if 
an event or exposure occurring in the work environment is a discernable 
cause of the resulting condition or a discernable cause of a 
significant aggravation to a pre-existing injury or illness. The causal 
event or exposure need not be peculiarly occupational so long as it 
occurs at work. For example, a causal event or exposure may be outside 
the employer's control, such as a lightening strike; involve activities 
that occur at work but are not directly productive, such as horseplay; 
or involve activities that are not peculiar to work, such as walking on 
a level floor, bending down, climbing stairs or sneezing, which 
activities, along with other normal body movements, are considered work 
events. Regardless, so long as the event or exposure occurred at work 
and is a discernable cause of the injury or illness, the injury or 
illness is work related. It does not matter whether there are other or 
bigger causes as well, or that the activity at work is no different 
from actions performed outside work. If an injury is within the 
presumption of work-relatedness, the employer can rebut work-
relatedness only by showing that the case falls within an exception 
listed in Sec.  225.15. In cases where it is not obvious whether a 
precipitating event or exposure occurred at work or outside work, the 
employer must evaluate the employee's work duties and environment and 
decide whether it is more likely than not that an event or exposure at 
work was at least one of the causes of the injury or illness.
    4. Section 225.6 is added to read as follows:


Sec.  225.6  Consolidated reporting.

    A parent corporation may request in writing that FRA treat its 
commonly controlled railroad carriers, which operate as a single, 
seamless, integrated United States rail system, as a single railroad 
carrier for purposes of this part.
    (a) The written request must include the following:
    (1) A list of the subsidiary railroads controlled by the parent 
corporation; and
    (2) An explanation as to how the subsidiary railroads operate as a 
single, seamless, integrated United States railroad system.
    (b) The request must be sent to the FRA Docket Clerk, Federal 
Railroad Administration, U.S. Department of Transportation, RCC-10, 
Mail Stop 10,

[[Page 52522]]

West Building 3rd Floor, Room W31-109, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Each request received shall be acknowledged in 
writing. The acknowledgment shall contain the docket number assigned to 
the request and state the date the request was received.
    (c) FRA will notify the applicant parent corporation of the 
agency's decision within 90 days of receipt of the application.
    (d) If FRA approves the request, the parent corporation must enter 
into a written agreement with FRA specifying which subsidiaries are 
included in its railroad system, agreeing to assume responsibility for 
compliance with this part for all named subsidiaries making up the 
system, and consenting to guarantee any monetary penalty assessments or 
other liabilities owed to the United States government that are 
incurred by the named subsidiaries for violating Federal accident/
incident reporting requirements. Any change in the subsidiaries making 
up the railroad system requires immediate notification to FRA and 
execution of an amended agreement. Executed agreements will be 
published in the docket.
    5. Section 225.7 is amended by revising paragraph (a) to read as 
follows:


Sec.  225.7  Public examination and use of reports.

    (a) Accident/Incident reports made by railroads in compliance with 
these rules shall be available to the public in the manner prescribed 
by part 7 of this title. Accident/Incident reports may be inspected at 
the U.S. Department of Transportation, Federal Railroad Administration, 
Office of Safety, West Building 3rd Floor, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Written requests for a copy of a report should be 
addressed to the Freedom of Information Act Coordinator, Office of 
Chief Counsel, Federal Railroad Administration, U.S. Department of 
Transportation, RCC-10, Mail Stop 10, West Building 3rd Floor, Room 
W33-437, 1200 New Jersey Avenue, SE., Washington, DC 20590, and be 
accompanied by the appropriate fee prescribed in part 7 of this title. 
To facilitate expedited handling, each request should be clearly marked 
``FOIA Request for Accident/Incident Report.'' For additional 
information on submitting a FOIA request to FRA see FRA's Web site at 
http://www.fra.dot.gov/us/foia.
* * * * *
    6. Section 225.9 is amended by revising paragraph (a)(2)(iii) and 
(iv) to read as follows:


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

    (a) * * *
    (2) * * *
    (iii) A fatality resulting from a train accident or train incident 
at a highway-rail grade crossing when death occurs within 24 hours of 
the accident/incident;
    (iv) A train accident resulting in damage (based on a preliminary 
gross estimate) of $150,000 or more to railroad and nonrailroad 
property; or
* * * * *
    7. Section 225.11 is revised to read as follows:


Sec.  225.11  Reporting of accidents/incidents.

    (a) Each railroad subject to this part shall submit to FRA a 
monthly report of all railroad accidents/incidents described below:
    (1) Highway-rail grade crossing accidents/incidents described in 
Sec.  225.19;
    (2) Rail equipment accidents/incidents described in Sec.  225.19; 
and
    (3) Death, injury and occupational illness accidents/incidents 
described in Sec.  225.19.
    (b) The report shall be made on the forms prescribed in Sec.  
225.21 in hard copy or, alternatively, by means of optical media or 
electronic submission via the Internet, as prescribed in Sec.  225.37, 
and shall be submitted within 30 days after expiration of the month 
during which the accidents/incidents occurred. Reports shall be 
completed as required by the current FRA Guide. A copy of the FRA Guide 
may be obtained from the U.S. Department of Transportation, Federal 
Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 
25 West Building 3rd Floor, Room W33-107, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 or downloaded from FRA's Office of Safety Analysis 
Web site at http://safetydata.fra.dot.gov/officeofsafety/, and click on 
``Click Here for Changes in Railroad Accident/Incident Recordkeeping 
and Reporting.''
    8. Section 225.12 is amended by revising paragraph (g)(3) to read 
as follows:


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

* * * * *
    (g) * * *
    (3) Information that the employee wishes to withhold from the 
railroad must not be included in this Supplement. If an employee wishes 
to provide confidential information to FRA, the employee should not use 
the Supplement form (part II of Form FRA F 6180.78, ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor; Employee Statement Supplementing 
Railroad Accident Report''), but rather provide such confidential 
information by other means, such as a letter to the employee's 
collective bargaining representative, or to the U.S. Department of 
Transportation, Federal Railroad Administration, Office of Safety 
Analysis, RRS-22, Mail Stop 25 West Building 3rd Floor, Room W33-306, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The letter should 
include the name of the railroad making the allegations, the date and 
place of the accident, and the rail equipment accident/incident number.
* * * * *
    9. Section 225.15 is revised to read as follows:


Sec.  225.15  Accidents/incidents not to be reported.

    The following accidents/incidents are not reportable:
    (a) With respect to persons other than railroad employees. A 
railroad is not to report injuries that occur at highway-rail grade 
crossings that do not involve the presence or operation of on-track 
equipment, or the presence of railroad employees then engaged in the 
operation of a railroad;
    (b) With respect to railroad employees on duty. A railroad is not 
to report the following injuries to or illnesses of a railroad employee 
as Class A--Worker on Duty--Employee, if any of the following 
conditions in paragraphs (b)(1) through (b)(3) of this section are met. 
This exception does not affect a railroad's obligation to report 
injuries to an employee not on duty (Class B--Employee not on Duty), or 
a railroad's obligation to maintain a ``Railroad Employee Injury/
Illness Record'' (Form FRA F 6180.98 or alternative railroad-designed 
form).
    (1) The injury or illness occurred in or about living quarters not 
arising from the operation of a railroad;
    (2) At the time of the injury or illness, the employee was present 
in the work environment as a member of the general public rather than 
as an employee; or
    (3) The injury or illness is caused by a motor vehicle accident and 
occurs on a company parking lot or company access road while the 
employee is commuting to or from work.
    (c) With respect to railroad employees on or off duty. A railroad 
is not to report the following injuries to or illnesses of a railroad 
employee, Class A--Worker

[[Page 52523]]

on Duty--Employee or Class B--Employee not on Duty, if any of the 
following conditions in paragraphs (c)(1) through (c)(7) of this 
section are met.
    (1) The injury or illness involves signs or symptoms that surface 
at work but result solely from a non-work-related event or exposure 
that occurs outside the work environment;
    (2) The injury or illness results solely from voluntary 
participation in a wellness program or in a medical, fitness, or 
recreational activity such as blood donation, physical examination, flu 
shot, exercise class, racquetball, or baseball;
    (3) The injury or illness is solely the result of an employee 
eating, drinking, or preparing food or drink for personal consumption. 
However, if the employee is made ill by ingesting food contaminated by 
workplace contaminants (such as lead), or gets food poisoning from food 
supplied by the employer, the case would be considered work-related and 
reported as either a Class A--Worker on Duty--Employee or Class B--
Employee not on Duty depending on the employee's duty status;
    (4) The injury or illness is solely the result of an employee doing 
personal tasks (unrelated to their employment) at the establishment 
outside of the employee's assigned working hours;
    (5) The injury or illness is solely the result of personal 
grooming, self medication for a non-work-related condition, or is 
intentionally self-inflicted;
    (6) The illness is the common cold or flu (Note: Contagious 
diseases such as tuberculosis, brucellosis, hepatitis A, or plague are 
considered work-related if the employee is infected at work); or
    (7) The illness is a mental illness. Mental illness will not be 
considered work-related unless the employee voluntarily provides the 
employer with an opinion from a physician or other licensed health care 
professional with appropriate training and experience (psychiatrist, 
psychologist, psychiatric nurse practitioner, etc.) stating that the 
employee has a mental illness that is work-related.
    (d) With respect to contractors and volunteers. A railroad is not 
to report injuries to contractors and volunteers that are listed in 
paragraphs (b) and (c) of this section. For purposes of this paragraph 
only, an exception listed in paragraphs (b) and (c) referencing ``work 
environment'' is construed to mean for contractors and volunteers only, 
on property owned, leased, or maintained by the railroad.
    (e) With respect to rail equipment accident/incidents. A railroad 
is not to report the following rail equipment accidents/incidents:
    (1) Cars derailed on industry tracks by non-railroad employees or 
non-railroad employee vandalism, providing there is no involvement of 
railroad employees; and
    (2) Damage to out of service cars resulting from high water or 
flooding (e.g., empties placed on a storage or repair track). This 
exception does not apply if such cars are placed into a moving consist 
and as a result of this damage a reportable rail equipment accident 
results.
    10. Section 225.17 is amended by revising paragraph (a) and 
removing paragraph (d) to read as follows:


Sec.  225.17  Doubtful cases.

    (a) The reporting officer of a railroad will ordinarily determine 
the reportability or nonreportability of an accident/incident after 
examining all evidence available. The FRA, however, cannot delegate 
authority to decide matters of judgment when facts are in dispute. In 
all such cases the decision shall be that of the FRA.
* * * * *
    11. Section 225.18 is added to read as follows:


Sec.  225.18  Alcohol or drug involvement.

    (a) In preparing Form FRA F 6180.54, ``Rail Equipment Accident/
Incident Report,'' under this part, the railroad shall make such 
specific inquiry as may be reasonable under the circumstances into the 
possible involvement of alcohol or drug use or impairment in such 
accident or incident. If the railroad comes into possession of any 
information whatsoever, whether or not confirmed, concerning alleged 
alcohol or drug use or impairment by an employee who was involved in, 
or arguably could be said to have been involved in, the accident/
incident, the railroad shall report such alleged use or impairment as 
provided in the current FRA Guide. If the railroad is in possession of 
such information but does not believe that alcohol or drug impairment 
was the primary or contributing cause of the accident/incident, then 
the railroad shall include in the narrative statement of such report a 
brief explanation of the basis of such determination.
    (b) For any train accident within the requirement for post-accident 
testing under Sec.  219.201 of this chapter, the railroad shall append 
to the Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' 
any report required by 49 CFR 219.209(b) (pertaining to failure to 
obtain samples for post-accident toxicological testing).
    (c) For any train or non-train incident, the railroad shall provide 
any available information concerning the possible involvement of 
alcohol or drug use or impairment in such accident or incident.
    (d) In providing information required by this section, a railroad 
shall not disclose any information concerning use of controlled 
substances determined by the railroad's Medical Review Officer to have 
been consistent with 49 CFR 219.103.
    12. Section 225.19 is amended by revising paragraph (d) to read as 
follows:


Sec.  225.19  Primary groups of accidents/incidents.

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

[[Page 52524]]

or job transfer, medical treatment, or loss of consciousness;
    (6) Illness or injury that:
    (i) Meets the application of any of the following specific case 
criteria:
    (A) Needlestick or sharps injury to a railroad employee;
    (B) Medical removal of a railroad employee;
    (C) Occupational hearing loss of a railroad employee;
    (D) Occupational tuberculosis of a railroad employee;
    (E) Musculoskeletal disorder of a railroad employee if this 
disorder is reportable under one or more of the general reporting 
criteria; or
    (ii) Is a covered data case.
* * * * *
    13. Section 225.21 is amended by revising the introductory text and 
paragraph (j) to read as follows:


Sec.  225.21  Forms.

    The following forms and copies of the ``FRA Guide for Preparing 
Accident/Incident Reports'' may be obtained from the U.S. Department of 
Transportation, Federal Railroad Administration, Office of Safety 
Analysis, RRS-22, Mail Stop 25, West Building, 3rd Floor, Room W33-107, 
1200 New Jersey Avenue, SE., Washington, DC 20590 or downloaded from 
FRA's Office of Safety Analysis Web site at http://
safetydata.fra.dot.gov/officeofsafety/, and click on ``Click Here for 
Changes in Railroad Accident/Incident Recordkeeping and Reporting.''
* * * * *
    (j) Form FRA 6180.107--Alternative Record for Illnesses Claimed To 
Be Work-Related. Form FRA F 6180.107 or an alternative railroad-
designed record may be used by a railroad in lieu of Form FRA F 
6180.98, ``Railroad Employee Injury and/or Illness Record'' (described 
in paragraph (h) of this section), to record each illness claimed by an 
employee to be work-related that is reported to the railroad for which 
there is insufficient information for the railroad to determine whether 
the illness is work-related. This record shall be completed and 
retained in accordance with the requirements set forth in Sec.  225.25 
and Sec.  225.27.
    14. Section 225.25 is amended by revising paragraphs (a), (b)(6) 
and (b)(28), paragraph (e)(28) and paragraph (i), and by adding 
paragraph (j) to read as follows:


Sec.  225.25  Recordkeeping.

    (a) Each railroad shall maintain either the Railroad Employee 
Injury and/or Illness Record (Form FRA F 6180.98) or an alternative 
railroad-designed record as described in paragraph (b) of this section 
of all reportable and accountable injuries and illnesses of its 
employees for each railroad establishment where such employees report 
to work, including, but not limited to, an operating division, general 
office, and major installation such as a locomotive or car repair or 
construction facility.
    (b) * * *
    (6) Employee identification number;
* * * * *
    (28) The railroad shall identify the preparer's name; title; 
telephone number with area code; and the date the record was initially 
signed/completed.
* * * * *
    (e) * * *
    (28) Date the record was initially signed/completed.
* * * * *
    (i) Claimed Occupational Illnesses. (1) Each railroad may maintain 
a Form FRA F 6180.107, ``Alternative Records for Illnesses Claimed To 
Be Work-Related,'' or an alternate railroad-designed record as 
described in paragraph (j) of this section, in place of Form FRA F 
6180.98, ``Railroad Employee Injury and/or Illness Record,'' only for 
those claimed occupational illnesses for which the railroad has not 
received information sufficient to determine whether the occupational 
illness is work-related.
    (2) Each railroad shall enter each illness claimed to be work-
related on the appropriate record, as required by paragraph (i)(1) of 
this section, as early as practicable, but no later than seven working 
days after receiving information or acquiring knowledge that an 
employee is claiming they have incurred an occupational illness.
    (3) When a railroad does not receive information sufficient to 
determine whether a claimed occupational illness case is accountable or 
reportable, the railroad shall make a good faith effort to obtain the 
necessary information by December 1 of the next calendar year.
    (4) Within seven calendar days of receiving additional information 
regarding a claimed occupational illness case, each railroad shall 
document receipt of the information, including date received and type 
of document/information received, in narrative block 19 of Form FRA F 
6180.107, ``Alternative Record for Illnesses Claimed To Be Work-
Related.''
    (5) Within 30 calendar days of receiving additional information 
regarding a claimed occupational illness, each railroad shall re-
evaluate the claimed occupational illness to determine work-
relatedness, taking into account the new information, and document any 
findings resulting from the re-evaluation in narrative block 19 of Form 
FRA F 6180.107, ``Alternative Record for Illnesses Claimed To Be Work-
Related.''.
    (6) For any claimed occupational illness case determined to be 
accountable or reportable, each railroad shall:
    (i) Complete a Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record'' or alternative railroad-designed form within seven 
days of making such determination;
    (ii) Retain the Form FRA F 6180.98 ``Railroad Employee Injury and/
or Illness Record'' in accordance with Sec.  225.27; and
    (iii) Report the occupational illness, as applicable, in accordance 
with Sec.  225.11.
    (7) For any claimed occupational illness case determined not to be 
accountable or reportable, each railroad shall include the following 
information in narrative block 19 of Form FRA F 6180.107, ``Alternative 
Record for Illnesses Claimed To Be Work-Related'' or alternative 
railroad-designed form:
    (i) Why the case does not meet reporting criteria;
    (ii) The basis upon which the railroad made this determination; and
    (iii) The most authoritative information the railroad relied upon 
to make the determination.
    (8) Although Form FRA 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related'' (or the alternate railroad-designed form), 
may not include all supporting documentation, such as medical records, 
the alternative record shall note the custodian of those documents and 
where the supporting documents are located so that they are readily 
accessible to FRA upon request.
    (j) An alternative railroad-designed record may be used in lieu of 
the Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to 
be Work-Related.'' Any such alternative record shall contain all of the 
information required on the Form FRA F 6180.107. Although this 
information may be displayed in a different order from that on Form FRA 
F 6180.107, the order of the information shall be consistent from one 
such record to another such record. The order chosen by the railroad 
shall be consistent for all of the railroad's reporting establishments. 
Railroads may list additional information in the alternative record 
beyond the information required on Form FRA F 6180.107. The alternative 
record shall contain, at a minimum, the following information:
    (1) Name of Reporting Railroad;
    (2) Case/Incident Number;

[[Page 52525]]

    (3) Employee's Name (first, middle, last);
    (4) Employee's Date of Birth (mm/dd/yy);
    (5) Employee's Gender;
    (6) Employee Identification Number;
    (7) Date Employee was Hired (mm/dd/yy);
    (8) Employee's Home Address (include street address, city, State 
and Zip code);
    (9) Employee's Home Telephone Number (with area code);
    (10) Name of Facility Where Railroad Employee Normally Reports to 
Work;
    (11) Location, or Last Know Facility, Where Employee Reports to 
Work;
    (12) Job Title of Railroad Employee;
    (13) Department to Which Employee is Assigned;
    (14) Date on Which Employee or Representative Notified Company 
Personnel of Condition (mm/dd/yy);
    (15) Name of Railroad Official Notified;
    (16) Title of Railroad Official Notified;
    (17) Nature of Claimed Illness;
    (18) Supporting Documentation;
    (19) Custodian of Documents (Name, Title, and Address);
    (20) Location of Supporting Documentation;
    (21) Narrative;
    (22) Preparer's Name;
    (23) Preparer's Title;
    (24) Preparer's Telephone Number (with area code); and
    (25) Date the record was initially signed/completed (mm/dd/yy).
    15. Section 225.27 is amended by revising paragraph (a) and adding 
paragraphs (c) and (d) to read as follows:


Sec.  225.27  Retention of records.

    (a) Each railroad shall retain the Form FRA F 6180.98, ``Railroad 
Employee Injury and/or Illness Record''; Form FRA F 6180.107, 
``Alternative Record for Illnesses Claimed to be Work-Related''; and 
the Monthly List of Injuries and Illnesses required by Sec.  225.25 for 
at least five years after the end of the calendar year to which they 
relate. Each railroad shall retain Form FRA F 6180.97, ``Initial Rail 
Equipment Accident/Incident Record,'' required by Sec.  225.25 for at 
least two years after the end of the calendar year to which it relates. 
Each railroad must retain the Employee Human Factor Attachments (Form 
FRA F 6180.81, ``Employee Human Factor Attachment'') required by Sec.  
225.12, the written notices to employees required by Sec.  225.12 (Part 
I of Form FRA F 6180.78, ``Notice to Railroad Employee Involved in Rail 
Equipment Accident/Incident Attributed to Employee Human Factor; 
Employee Statement Supplementing Railroad Accident Report''), and the 
Employee Statements Supplementing Railroad Accident Reports described 
in Sec.  225.12(g) (Part II of Form FRA F 6180.78, ``Notice to Railroad 
Employee Involved in Rail Equipment Accident/Incident Attributed to 
Employee Human Factor; Employee Statement Supplementing Railroad 
Accident Report'') that have been received by the railroad for at least 
two years after the end of the calendar year to which they relate.
* * * * *
    (c) Each railroad must retain the original hard copy of each 
completed and signed Form FRA F 6180.55, ``Railroad Injury and Illness 
Summary,'' that the railroad submits to FRA on optical media (CD-ROM) 
or electronically via the Internet to aireports@frasafety.net for at 
least five years after the calendar year to which it relates. If the 
railroad opts to submit the report to FRA electronically via the 
internet, the railroad must also retain a hard copy print out of FRA's 
electronic notice acknowledging receipt of the railroad's submission 
for a period of five years after the calendar year to which the report 
acknowledged relates.
    (d) Railroads may retain accident/incident records as required by 
paragraphs (a) and (b) of this section in hard copy format or in 
electronic format subject to the following system requirements:
    (1) Design Requirements. Any electronic record keeping system used 
to retain a record required to be retained by this part shall meet the 
following design parameters:
    (i) The electronic record system shall be designed such that the 
integrity of each record is retained through appropriate levels of 
security such as recognition of an electronic signature, or other 
means, which uniquely identify the initiating person as the author of 
that record. No two persons shall have the same electronic identity;
    (ii) The electronic system shall ensure that each record cannot be 
modified, or replaced, once the record is submitted to FRA;
    (iii) Any amendment to a record shall be electronically stored 
apart from the record which it amends. Each amendment to a record shall 
uniquely identify the person making the amendment and the date the 
amendment was made;
    (iv) The electronic system shall provide for the maintenance of 
reports as originally submitted to FRA without corruption or loss of 
data; and
    (v) Policies and procedures must be in place to prevent persons 
from altering electronic records, or otherwise interfering with the 
electronic system.
    (2) Accessibility and Availability. Any electronic record system 
used to create, maintain, or transfer a record required to be 
maintained by this part shall meet the following access and 
availability parameters:
    (i) Paper copies of electronic records and amendments to those 
records that may be necessary to document compliance with this part 
shall be provided to any representative of the FRA or of a State agency 
participating in investigative and/or surveillance activities under 
part 212 of this chapter or any other authorized representative for 
inspection and photocopying upon request in accordance with Sec.  
225.35; and
    (ii) Paper copies provided to FRA or of a State agency 
participating in investigative and/or surveillance activities under 
part 212 of this chapter or any other authorized representative shall 
be produced in a readable text format and all data shall be identified 
by narrative descriptions (e.g., ``accident/incident number,'' ``number 
of days away from work,'' ``date of occurrence,'' etc.).
    16. Section 225.33 is amended by revising paragraph (a)(11) to read 
as follows:


Sec.  225.33  Internal Control Plans.

    (a) * * *
    (11) In the case of the Form FRA F 6180.107 or the alternate 
railroad-designed form, a statement that specifies the name(s), 
title(s) and address(es) of the custodian(s) of these records, all 
supporting documentation, such as medical records, and where the 
documents are located.
* * * * *
    17. Section 225.37 is revised to read as follows:


Sec.  225.37  Optical media transfer and electronic submission.

    (a) A railroad has the option of submitting the following reports, 
updates, and amendments by way of optical media (CD-ROM), or by means 
of electronic submission via the Internet:
    (1) The Rail Equipment Accident/Incident Report (Form FRA F 
6180.54);
    (2) The Railroad Injury and Illness Summary (Form FRA F 6180.55);
    (3) The Railroad Injury and Illness Summary (Continuation Sheet) 
(Form FRA F 6180.55a);
    (4) The Highway-Rail Grade Crossing Accident/Incident Report (Form 
FRA F 6180.57); and
    (5) The Employee Human Factor Attachment (Form FRA F 6180.81) (the

[[Page 52526]]

Employee Human Factor Attachment must be in .pdf or .jpg format only).
    (b) Each railroad utilizing the optical media option shall submit 
to FRA a computer CD-ROM containing the following:
    (1) An electronic image of the completed and signed hard copy of 
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or 
.jpg format only; and
    (2) The completed accident/incident report submissions.
    (c)(1) Each railroad utilizing the electronic submission via the 
Internet option shall submit to FRA at aireports@frasafety.net:
    (i) An electronic image of the completed and signed hard copy of 
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or 
.jpg format only; and
    (ii) The completed accident/incident report submissions.
    (2) FRA will provide to the railroad an electronic notice 
acknowledging receipt of submissions filed electronically via the 
Internet.
    (d) Each railroad employing either the optical media or electronic 
submission via the Internet option, shall submit its monthly reporting 
data for the reports identified in paragraph (a) of this section in a 
year-to-date file format as described in the FRA Guide.
    (e) In addition to fulfilling the requirements stated in paragraph 
(b) through (d) of this section, each railroad initially utilizing 
either the optical media or electronic submission via the Internet 
option, shall also initially submit the hard copy report(s) for each 
accident/incident it reports by such means. FRA will continually review 
the railroad's submitted hard copy reports against the data the 
railroad has submitted by means of optical media or electronically via 
the Internet. Once the optical media or electronic submission via the 
Internet is in total agreement with the submitted hard copies of the 
reports for three consecutive reporting months, FRA will notify the 
railroad, in writing, that submission of the hard copy reports is no 
longer required.
    (f) A railroad choosing to use optical media or electronic 
submission via the Internet must use one of the approved formats 
specified in the Companion Guide. FRA will reject submissions that do 
not adhere to the required formats, which may result in the issuance of 
one or more civil penalty assessments against a railroad for failing to 
provide timely submissions of required reports as required by Sec.  
225.11.
    18. Section 225.41 is added to read as follows:


Sec.  225.41  Suicide data.

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

    Issued in Washington, DC, on September 2, 2008.
Joseph H. Boardman,
Administrator.
 [FR Doc. E8-20706 Filed 9-5-08; 11:15 am]

BILLING CODE 4910-06-P
