[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30940-30987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14943]
[[Page 30939]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
_______________________________________________________________________
49 CFR Part 225
Railroad Accident Reporting; Final Rule
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules
and Regulations
[[Page 30940]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA Docket No. RAR-4, Notice No. 13]
RIN 2130-AA58
Railroad Accident Reporting
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
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SUMMARY: FRA is amending the railroad accident reporting regulations in
several ways. First, railroads are required to adopt internal control
procedures to ensure accurate reporting of accidents, casualties,
injuries, illnesses and highway-rail grade crossing accidents. Second,
railroads are allowed the option to submit, update, and amend accident,
casualty, and highway-rail accident reports through transfer of
information on computer diskettes, magnetic tapes, or electronically
over telephone lines. Third, the accident and injury reporting forms,
including definitions, are amended to allow for the collection of
additional safety information. Fourth, injury and illness, as well as
derailment and collision, recordkeeping requirements are amended to
require the recordation of reportable and accountable, i.e.,
nonreportable, illnesses and injuries as well as the recordation of
reportable and accountable rail equipment accidents and incidents.
Finally, the method for calculation of the accident reporting monetary
threshold is amended to allow for use of publicly available data and
statistics. The purpose of the rule is to enhance the quality of
information FRA collects pertaining to rail equipment accidents and
incidents, as well as illnesses, injuries and casualties to railroad
employees, passengers and other persons on railroad property.
EFFECTIVE DATE: The rule is effective January 1, 1997.
ADDRESSES: Any petition for reconsideration should be submitted to the
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,
400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director,
Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street,
S.W., Washington, D.C. 20590 (telephone 202-501-4863 or 202-366-0543);
or Marina C. Appleton, Trial Attorney, Office of Chief Counsel, FRA,
400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-366-
0628).
SUPPLEMENTARY INFORMATION:
Background
A. Purpose and Structure of the Accident Reporting Regulations
FRA's primary function is to promote safety within the railroad
industry. To carry out its safety mission, FRA requires information
about the conditions of the nation's railroads to set safety standards,
to enforce those standards, and to develop railroad injury and accident
prevention programs. The injury and accident reports submitted by the
railroads form a principal basis for FRA's railroad safety program. FRA
uses injury and accident data for, among other things, establishing its
inspection strategy, determining comparative trends of railroad safety,
and calculating the costs and benefits of proposed safety rules. FRA
also uses railroad accident, injury and illness data to determine if
new regulations are needed or if current regulations are in need of
revision. Because FRA uses the data in all aspects of its operations,
it is important that the data it receives be as accurate and consistent
as possible.
The railroad accident reporting regulations set forth in 49 CFR
Part 225 require railroads to submit monthly reports to FRA summarizing
collisions, derailments, and certain other accidents/incidents
involving damages above a periodically revised dollar threshold, as
well as certain injuries to passengers, employees, and other persons on
railroad property.
Section 225.19 of the regulations divides railroad accidents/
incidents into three categories: (1) highway-rail grade crossing
accidents/incidents; (2) rail equipment accidents/incidents; and (3)
death, injury, or occupational illness accidents/incidents. Every
railroad accident/incident that meets the stated criteria for each
category must be reported to FRA as required under 49 CFR 225.11.
Because the reporting requirements and the information needed regarding
each category of accident/incident are unique, a different reporting
form is used for each category. If the circumstances of an accident/
incident are such that it falls within two or even all three
categories, then a separate reporting form for each category must be
completed by the railroad.
B. General Accounting Office Study on Accident Reporting to FRA
During the late 1980s, Congress, increasingly concerned with
railroad safety, asked the General Accounting Office (GAO) to determine
whether FRA's safety programs were adequate to protect railroad
employees and the general public from injuries associated with train
accidents. GAO studied FRA's railroad injury and accident reporting
data and issued a report in April 1989 (GAO/RCED-89-109) that raised
important questions about the quality of railroad compliance with FRA's
accident reporting regulations. GAO found that there were
underreporting and inaccurate reporting of injury and accident data for
1987 by the railroads it audited.
GAO recommended that FRA (a) require railroads to establish injury
and accident reporting internal control procedures; (b) include an
analysis of railroads' internal control procedures for reporting in
FRA's safety records inspections; (c) provide inspectors with the
authority to take enforcement actions against railroads with deficient
internal control procedures; (d) require railroads to update reports on
workdays lost due to injuries; and (e) clarify FRA's requirement for
railroads to update accident reports when significant changes occur.
C. Advance Notice of Proposed Rulemaking on Accident Reporting
In response to the GAO audit, FRA published an advance notice of
proposed rulemaking (ANPRM) on March 14, 1990 (55 FR 9469) soliciting
comments and suggestions from the public regarding methods for
improving FRA's injury and accident reporting system and its governing
regulations. Interested parties were invited to participate in a public
hearing held on May 17, 1990, and to file written comments prior to May
25, 1990. The responses to that public notice provided additional
information and identified further issues and subissues related to the
matters in the ANPRM. In order to further explore matters related to
the accident/incident reporting system, FRA held informal, open
meetings on June 13, 1991, August 22, 1991, and August 18, 1992, in
Washington, D.C., with members of the Association of American Railroads
(AAR) Committee for Uniformity in Reporting. At the request of rail
labor representatives, FRA also held an informal, open meeting on
October 21, 1991, in Washington, D.C., to discuss the same issues with
representatives of various rail unions.
D. Notice of Proposed Rulemaking on Accident Reporting
FRA published a notice of proposed rulemaking (NPRM) on accident
reporting on August 19, 1994 (59 FR
[[Page 30941]]
42880), and conducted a series of public hearings to obtain the
industry's views and comments on specific issues addressed in the NPRM.
Public hearings were held in Washington, D.C. on October 5-6, 1994; in
Kansas City, Missouri on October 19, 1994; and in Portland, Oregon on
November 3, 1994. FRA examined the issues and interests involved and
made a preliminary inquiry among the hearing participants to determine
whether additional hearings or regulatory meetings could be successful
in narrowing areas of disagreement and exploring possible
accommodations. Most participants expressed interest in continuing the
rulemaking process by holding additional or supplementary regulatory
meetings, roundtables or workshops. After further deliberation, FRA
decided that an informal public regulatory conference would prove
advantageous in the development of the accident reporting regulations.
E. Public Regulatory Conference
In accordance with a notice published on December 27, 1994 (59 FR
66501), FRA held an informal public regulatory conference on January
30-February 2, 1995, in Washington, D.C. to further discuss issues
related to its NPRM on railroad accident reporting. In accordance with
the provisions of the Administrative Procedure Act (5 U.S.C. 551 et
seq.), the public regulatory conference was a continuation of the
accident reporting rulemaking proceeding. The format of the discussions
was informal and employed a topical, interactive approach. Conference
participants offered various alternative approaches in response to the
specific proposals set forth in the NPRM. The AAR and The American
Short Line Railroad Association (ASLRA) requested that they be allowed
to address specific topics by the existing comment deadline of March
10, 1995, and that such comments be incorporated into a second or
supplemental NPRM. FRA believed that a decision as to whether or not to
issue a supplemental NPRM was premature at this point in the rulemaking
proceeding. FRA therefore requested, through publication in the Federal
Register (60 FR 9001), that written comments addressing all issues in
the NPRM be filed no later than March 10, 1995, as specified in FRA's
December 27, 1994, notice. After thorough review and analysis of the
submitted comments, FRA stated that it would decide whether a
supplemental NPRM was warranted for this rulemaking and would issue a
decision in the Federal Register. FRA also stated that the decision
whether or not to issue a supplemental NPRM would be based primarily on
the extent that written comments addressed constructive, creative
solutions to the subjects and issues involved in the NPRM.
F. Supplemental Notice of Proposed Rulemaking
FRA published a notice on July 3, 1995 (60 FR 34498), which stated
that a second or supplemental NPRM would be issued for the rulemaking
to revise the railroad accident reporting regulations. The decision to
issue a supplemental NPRM was made pursuant to requests advanced by
some participants at the public regulatory conference held on January
30-February 2, 1995, in Washington, D.C., during which specific topics
were discussed related to the accident reporting NPRM. It was
anticipated that the supplemental NPRM would address whether or not a
meaningful performance standard for accident reporting could be devised
for use by the railroads. It was also anticipated that the supplemental
NPRM would discuss revised documentation requirements for the proposed
Internal Control Plan; calculation of damage costs for rail equipment
accidents and incidents for the determination of whether the threshold
is met for FRA reporting purposes; and the proposed definition for the
classification ``Worker on Duty'' as it pertains to ``Contractors'' and
``Volunteers'' performing safety-sensitive functions.
FRA reviewed thoroughly the written comments received in response
to the NPRM, the transcripts of the public hearings, as well as the
transcripts of the public regulatory conference. This review revealed
that a supplemental NPRM was not warranted. By notice published in the
Federal Register on January 24, 1996 (61 FR 1892), FRA announced that
it would not issue a supplemental NPRM in the rulemaking; instead, the
final rule would deal fully with major alternative resolutions for the
issues in the rulemaking, explaining clearly why they were endorsed or
rejected in favor of the option selected.
Summary of Public Comments
FRA received comments from the AAR, ASLRA, the Brotherhood of
Railway Carmen (BRC), the Brotherhood of Maintenance of Way Employes
(BMWE), the Brotherhood of Locomotive Engineers (BLE), the Brotherhood
of Railroad Signalmen (BRS), individual members of some of these
associations, the State of California's Public Utilities Commission,
the Contra Costa County Health Services Department of the State of
California, the American Trucking Associations (ATA), the Tourist
Railroad Association, the Association of Railway Museums, Inc. (ARM),
the Illinois Railway Museum, the American Public Transit Association
(APTA), the National Railroad Construction and Maintenance Association,
Inc. (NRC), and individual members of the public.
Section-by-Section Analysis
A. Section 225.33 Internal Control Plan
Proposed Rule
FRA proposed that each railroad must prepare and maintain an
Internal Control Plan (ICP) that required institution of proper
internal control procedures for reporting. FRA believed that requiring
an ICP would ensure the reconciliation and incorporation of accident/
incident and injury/illness data from the various departments within
the railroad for submission to the railroad's reporting officer. The
proposed rule required that the reporting office have access to all
pertinent claims records, including medical records and payroll
records, and be notified by claims and medical departments of each new
case/claim opened by a railroad worker. The proposal also stated that
identification of offices and responsible railroad officers would aid
FRA in identification of procedural weaknesses in reporting. FRA
proposed periodical review of the ICP by FRA in order to detect
procedural deficiencies. If FRA should find the railroad to be in
noncompliance, the proposed regulation allowed FRA to cite that
railroad for violating procedural requirements of the ICP when
inaccurate reporting was found and the cause could be attributed to
internal control weakness.
Comments
This proposal created significant controversy among the railroad
representatives who participated in the proceeding. Most railroad
commenters did not support mandated internal control procedures.
Railroad representatives stated that they did not want to change or
modify any internal control plan, if such a plan was already in place,
to fit the ICP as proposed by FRA. Railroad members also believed that
the plan was too detailed and, as such, would require constant updating
in order to accommodate normal changes such as personnel changes and
reorganizations. These members also perceived that the ICP would result
in additional, unjust monetary penalties for steps missed in the ICP
that led to
[[Page 30942]]
inaccurate accident reporting. As proposed, if a reporting violation
was found, then the railroad might be fined for both the reporting
violation and any departure from the ICP which resulted in the
reporting violation. Instead of an ICP mandated by FRA, AAR and its
constituent members suggested that FRA adopt a performance standard for
determining and measuring a railroad's compliance with reporting
requirements.
ASLRA and its members stated that the performance standard proposed
by AAR should be adopted for Class I railroads, but that such a
standard would be impracticable for the short line industry since each
short line's sample size would be too small to make such an approach
meaningful. ASLRA supported the concept of development and maintenance
of an ICP by other than Class I railroads. However, ASLRA believed that
elements of the ICP should be determined by each railroad to suit its
unique needs and circumstances and that such elements should not be
mandated by FRA.
Rail labor associations and other commenters opposed adoption of
the performance standard proposed by AAR in lieu of specific ICP's
because they believed that such a standard could not ensure reliable,
accurate and uniform reporting data on an industry-wide basis. These
commenters proposed adoption of uniform, formalized ICP's with some
minor modifications to FRA's proposed ICP to allow for more flexibility
in its actual requirements.
Most railroads did not support FRA's provision authorizing civil
penalties for inaccurate reporting due to internal control weakness.
Most other commenters favored an enforcement system in which monetary
penalties might be issued against the railroad for inaccurate reporting
resulting from noncompliance with procedures outlined in the ICP.
AAR's Proposed Performance Standard
AAR proposed that FRA adopt a performance standard for determining
whether a railroad complied with reporting requirements. The
performance standard proposed by AAR was based on methods selected from
a set of statistical procedures developed for use by the U.S. Military
(MIL-STD-105E, 1989) as means of statistically controlling process
quality in a stable environment. Specifically, AAR proposed that:
(a) Each railroad would maintain a written ICP which would achieve
a compliance rate of 99 percent for the accident and incident reports
required under Sec. 225.11. This written ICP would be developed
internally by each reporting railroad.
(b) The compliance rate would be based on a reporting period
covering a closed twelve-month calendar year.
(c) The compliance rate would be determined by comparing accident
and incident reports filed with FRA against the railroad-maintained
data base which contains information about employee injuries, employee
illnesses, as well as property damage, so that determinations about
reportability may be reasonably made.
(d) Audits conducted to determine the compliance rate would conform
to the following procedures:
(1) Each railroad would provide FRA a list of both reportable and
nonreportable accidents/incidents and illnesses/injuries for a
specified calendar year and would make accident/incident and injury/
illness reports available for inspection by FRA;
(2) FRA would take a random sample from the list of these reports.
Sampling procedures would conform to the military performance standard.
Railroads would have to achieve a compliance rate of 99 percent; for
example, one rejection out of a random sample of 100 cases. A rejection
would be defined as a railroad's failure to report a reportable
occurrence; and
(3) Audits would be conducted by FRA personnel, and audit results
would be provided in writing to the railroad.
(e) If a railroad failed to achieve a compliance rate of 99
percent, then the railroad would be subject to a monetary penalty and
would have to submit an action plan within 30 days to FRA explaining
what corrective action had been taken to achieve 99-percent compliance.
(f) If a railroad failed to achieve a compliance rate of 99 percent
in two consecutive audits, then the railroad would be subject to
another monetary penalty; would be required to submit an action plan
within 30 days to FRA explaining what corrective action had been taken
to achieve 99-percent compliance; and would be subject to a follow-up
audit after 30 days from submission of the action plan to FRA. Further,
the railroad might be directed to file with FRA an ICP detailing
internal reporting processes and procedures.
FRA had an independent statistical firm examine and review the
military performance standard to determine whether it was feasible to
apply the standard to measure compliance with accident/incident
reporting requirements. A summary of this report has been included as
Attachment 1. This firm concluded that the military performance
standard invoked by AAR (MIL-STD-105E, 1989) was based on sound
statistical methods; however, several problems existed with the
standard's application to accident reporting. A brief description of
the deficiencies follows:
(a) Reporting by a railroad is not a stable process. AAR's
reporting process has not been fully defined or tested in the real
world; and its stability has not been demonstrated. AAR assumed that
reporting would be a stable process and applied procedures appropriate
only for stable processes.
(b) AAR's sample-inclusion criterion is flawed. The denominator for
nonreportable accidents and incidents can be inflated to ensure that
the 99-percent compliance rate is achieved. The AAR formula for
determining a railroad's compliance rate is:
compliance rate = 1.00 - (number of failures to report reportable
cases/(total number of reportable cases + total number of nonreportable
cases)).
For determining sample size, AAR's sampling plan combines
reportable and nonreportable accidents and incidents. For counting
failures or rejections, AAR's sampling plan recognizes only the
reporting errors in nonreportable accidents and incidents, but not the
reporting errors related to reportable accidents and incidents. In this
scenario, therefore, increasing the number of nonreportable cases would
improve the compliance rate for that reporting railroad.
(c) AAR overstated the compliance rate. Using any reasonable
definition of ``compliance rate,'' the AAR sampling plan, at best,
achieves only a 97-percent compliance rate. See Attachment 1 for
further discussion.
(d) AAR's performance standard lacks requirements for maintaining
written ICPs. The Military Standard includes a general requirement for
developing written procedures (such as an ICP), which FRA could require
to be made available to its inspectors for review. AAR's performance
standard does not permit FRA to direct a railroad to develop an ICP
until after the railroad fails to demonstrate 99-percent compliance in
two consecutive audits. Without written procedures, i.e., an ICP, it is
not possible to guarantee full implementation of management decisions
by line employees.
(e) AAR's performance standard does not implement the full set of
procedures prescribed in the Military Standard. Specifically, AAR's
performance standard fails to implement ``switching procedures,'' which
are needed when consecutive lots or batches are rejected. ``Switching
procedures'' are a set of
[[Page 30943]]
rules that tell users when to adopt ``normal,'' ``tightened,'' or
``reduced'' inspection. AAR's performance standard lacks switching
procedures and rules, and AAR has not determined the compliance rate
bias resulting from this lack.
Even if the AAR's performance standard were revised to deal with
some of these problems, it would still fail to meet the main objective
of the ICP, which is to improve the accuracy of the submitted accident
and injury reports. Hypothetically, a railroad could meet an improved
version of the AAR's performance standard by reporting all of the
reportable accidents and incidents, but the submitted reports could be
riddled with inaccuracies that the ICP would have prevented. For
example, in the case where an employee is injured, the submitted
``Railroad Injury and Illness (Continuation Sheet)'' (Form FRA F
6180.55a) may state that the employee missed five days from work
because the employee's initial medical report indicated that he or she
missed five work days. However, in actuality, the employee missed 20
work days for his or her injury. In this example, the failure to
provide the reporting officer with the correct payroll ``time and
attendance'' information resulted in an inaccurate filed report, with
no harm to the railroad's compliance rate under even a modified AAR
performance standard.
Final Rule
Section 225.33 Internal Control Plan
FRA believes that an Internal Control Plan (ICP) best provides the
procedures necessary to ensure that complete, reliable, and accurate
data is obtained, maintained, and disclosed by the railroads. FRA
investigations have repeatedly found instances in which departments
within the same railroad failed to provide to the railroad reporting
officer information critical to determining reportability or
information necessary for filing an accurate and complete report. Thus,
the final rule adopts the proposed ICP with modifications recommended
by various parties in this proceeding.
The ICP is not a ``command and control'' system; it is a type of
performance standard which ensures the accuracy of a process and, in
this case, the process is accident/incident reporting. This ICP
requirement does not tell the railroad how to develop the internal
control procedures; how the lines of communication should be
established; the type of correspondence to be used; the forms that
should be used; which executives in the company are responsible for
reportability decisions; nor the periods of time necessary for
information exchange. The ICP is a performance standard that dictates
the necessity for communication within each railroad to ensure that
proper reporting will be accomplished. The changes to the proposed ICP
allow each railroad, including the short lines, the flexibility to
design an ICP suitable to the needs and circumstances of the particular
railroad. The ICP, therefore, may vary in size from one that is a few
pages for smaller railroads and short lines, to one of considerable
size for the major carriers.
In general, the ICP challenges the railroads to develop a Total
Quality Management (TQM) system to ensure that there are no errors in
reporting. ``No errors'' means that all reportable accidents and
incidents are reported to the FRA and that each report is accurately
completed prior to submission to FRA, in other words, a ``zero
tolerance'' policy with respect to inaccurate reporting. TQM focuses on
continuous and incremental improvements of process performance. In
contrast, acceptance testing, as in AAR's proposed performance
standard, judges acceptability of process output by applying predefined
criteria. AAR's proposed performance standard suggests, therefore, that
some defects in reporting are permissible.
The ICP also addresses intimidation and harassment of any person
calculated to prevent or discourage such person from either receiving
proper medical treatment for an injury or illness or from reporting an
accident, incident, illness or injury. FRA has become increasingly
aware that many railroad employees fail to disclose their injuries to
the railroad or fail to accept reportable treatment from a physician
because they wish to avoid potential harassment from management or
possible discipline that is sometimes associated with the reporting of
such injuries. FRA is also aware that in some instances supervisory
personnel and mid-level managers are urged to engage in practices which
may undermine or circumvent the reporting of injuries and illnesses.
Railroads must remain proactive in accurate reporting of all reportable
accidents, injuries and illnesses, and must not engage in practices
that could manipulate reportability of these incidents. In some
instances, railroads report an injury or illness to FRA only after FRA
inspectors make management aware that a particular injury or illness
was not reported. Many times FRA inspectors conduct an investigation
pursuant to a complaint from an employee alleging that his or her
injury/illness was not properly reported or was not reported at all.
Again, the railroad usually reports this injury/illness to FRA only
after FRA informs management of the situation.
FRA remains committed to improving the accuracy of the accident
reporting data base and can do so only with the full cooperation of
both rail workers and management. In order to address this widespread
problem, the ICP mandates that each railroad adopt a policy statement
which affirms that intimidation or harassment by any officer, manager,
supervisor, or employee of the railroad that aims to undermine or
negatively influence the treatment of persons with an injury or illness
or that adversely affects the reporting of such injuries and illnesses
will not be tolerated nor permitted and that appropriate prescribed
disciplinary action may be taken by the railroad against such person
committing the harassment or intimidation. The policy statement
addressing intimidation and harassment must be disseminated to all
employees, supervisors and to all levels of railroad management.
Further, the railroad must have procedures in place to process
complaints when the railroad's intimidation and harassment policy has
been violated, and such procedures must also be disseminated to all
employees and management/supervisory personnel.
Consequently, the final rule states in Sec. 225.33(a) that each
railroad shall adopt and comply with a written Internal Control Plan
that must be maintained at the office where the railroad's reporting
officer conducts his or her official business or duties. The ICP must
be amended, as necessary, to reflect any significant changes to the
railroad's internal reporting procedures. The ICP is to include, at a
minimum, each of the following ten components:
(1) A policy statement indicating the railroad's commitment to
complete and accurate reporting of all accidents, incidents, injuries,
and occupational illnesses arising from the operation of the railroad.
This statement should include, in absolute terms, that harassment or
intimidation of any person that is calculated to discourage or prevent
such person from receiving proper medical treatment or from reporting
an accident, incident, injury or illness will not be permitted or
tolerated and will result in some stated disciplinary action against
such person committing the harassment or intimidation.
(2) The dissemination of the policy statement; complaint
procedures. Each railroad must provide to all employees,
[[Page 30944]]
supervisory personnel, and management the policy statement described in
paragraph (a)(1). Each railroad must have procedures to process
complaints from any person when the policy stated in paragraph (a)(1)
is violated, and to impose the appropriate prescribed disciplinary
actions on each person found to have violated the policy. These
procedures must be disclosed to railroad employees, supervisors and
management. The railroad must provide ``whistle blower'' protection to
any person subject to this policy, and such policy must be disclosed to
all railroad employees, supervisors and management.
(3) Copies of internal forms and/or a description of the internal
computer reporting system used for the collection and internal
recording of accident and incident information.
(4) A description of the internal procedures used by the railroad
for the processing of forms and/or computerized data regarding accident
and incident information.
(5) A description of the internal review procedures applicable to
accident and incident information collected, and reports prepared by,
the railroad's safety, claims, medical and/or other departments engaged
in collecting and reporting accident and incident information.
(6) A description of the internal procedures used for collecting
cost data and compiling costs with respect to accident and incident
information.
(7) A description of applicable internal procedures for ensuring
adequate communication between the railroad department responsible for
submitting accident and incident reports to FRA and any other
department within the railroad responsible for collecting, receiving,
processing and reporting accidents and incidents.
(8) A statement of applicable procedures providing for the updating
of accident and incident information prior to reporting to FRA and a
statement of applicable procedures providing for the amendment of
accident and incident information as specified in the FRA Guide for
Preparing Accidents/Incidents Reports.
(9) A statement that specifies the name and title of the railroad
officer responsible for auditing the performance of the reporting
function; a statement of the frequency (not less than once per calendar
year) with which audits are conducted; and identification of the site
where the most recent audit report may be found for inspection and
photocopying.
(10) A brief description of the railroad organization, including
identification of (i) all components that regularly come into
possession of information pertinent to the preparation of reports under
this part (e.g., medical, claims, and legal departments; operating,
mechanical, and track and structures departments; payroll, accounting,
and personnel departments); (ii) the title of each railroad reporting
officer; (iii) the title of each manager of such components, by
component; and (iv) all officers to whom managers of such components
are responsible, by component. A current organization chart would
satisfy items (iii) and (iv).
The penalty schedule is amended so that if the railroad fails to
adopt the ICP, then that railroad is subject to the assessment of a
civil monetary penalty in the amount of $2,500 or, if willful, $5,000.
Also each railroad's reporting error arising from noncompliance with
the ICP subjects that railroad to the assessment of a civil monetary
penalty in the amount of $2,500 or, if willful, $5,000. Consequently,
if a reporting violation is found, then the railroad may be fined for
both the reporting violation and any departure from the ICP which
resulted in the reporting violation. FRA may require the railroad to
make modifications to its ICP to prevent such reporting errors in the
future. However, if there is a reporting violation, but FRA determines
that the ICP was followed by the railroad, then just one violation may
be written. FRA believes that availability of a monetary civil penalty
is necessary in order to compel the railroads to correct procedural
deficiencies and weaknesses in their ICPs. However, in some instances
FRA may employ use of a compliance order or other remedy in lieu of
civil penalties where appropriate in order to promote future
compliance.
Additionally, FRA may assess a civil monetary penalty against any
railroad employee, manager, or supervisor who willfully causes a
violation or noncompliance with any requirement of Part 225, including
Secs. 225.33(a) and (b), requiring adherence to the railroad's
intimidation and harassment policy and noninterference with that
policy. FRA may issue these civil penalties pursuant to 49 U.S.C.
21301, 21302, and 21304. Also see Appendix A to Part 209 of the Code of
Federal Regulations for other sanctions. Criminal penalties and/or
imprisonment provided for in 49 U.S.C. 21311 may also be imposed on any
individual who knowingly and willfully makes a false entry in a record
or report required by the accident reporting regulations or other
regulations issued under 49 U.S.C. chapter 201; destroys, mutilates,
changes, or falsifies such a record or report; does not enter required
specified facts in a such record or report; makes or preserves such a
record or report in violation of such a regulation or order; or who
files a false record or report with FRA. FRA wants to make it clear to
all railroads that it will be diligent in its efforts to ensure that
all parties adhere to and comply with the intimidation and harassment
policy in the ICP. It should be noted that FRA will be aggressive in
pursuing enforcement sanctions against any person found to be in
violation of the railroad's harassment and intimidation policy.
FRA's proposal in Sec. 225.33(b) which stated that railroads must
make ``a reasonable and conscientious effort to adhere to the Plan'' is
too vague and would undoubtedly create considerable variability in
perceptions of compliance. Thus, FRA has eliminated this requirement.
FRA believes that imposition of a monetary penalty and other
enforcement sanctions on the reporting railroad and against individuals
as discussed above provides an incentive for the reporting railroad and
all parties to observe and follow its internal control procedures.
B. Section 225.37 Computer Magnetic Media Transfer and Electronic
Submission
Proposed Rule
FRA proposed, in Sec. 225.37, to amend the current reporting
requirements to provide railroads the option of using magnetic media
(computer diskettes and magnetic tape) in lieu of the paper (``hard
copy'') forms currently submitted to transmit both the initial and
updated versions of the following reports: (a) the ``Rail Equipment
Accident/ Incident Report'' (Form FRA F 6180.54); (b) the ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F
6180.55a); and (c) the ``Highway-Rail Grade Crossing Accident/Incident
Report'' (Form FRA F 6180.57). FRA proposed that reports submitted via
magnetic media would be due within 30 days after expiration of the
month in which the accident/incident occurred.
In particular, the proposed rule allowed railroads, in
Sec. 225.37(a), subject to various conditions, the option to submit
magnetic media that would contain: (a) initial accident/incident
reports, (b) updates or amendments to all reports previously submitted
in hard copy, and (c) updates or amendments to reports initially
transmitted on magnetic media.
The proposed rule allowed railroads to continue to submit hard copy
reports,
[[Page 30945]]
as the current regulations require, but to update the data contained on
the hard copy by way of magnetic media. Alternatively, the proposal
allowed railroads the option of utilizing magnetic media exclusively
for all initial reports and all updates and amendments to those
reports. FRA proposed that all transmissions of updated or amended
reports by means of magnetic media would be added to a year-to-date
file created exclusively for each reporting railroad. This year-to-date
file would include all updates and amendments on reported accidents and
incidents and would be maintained by FRA.
FRA also proposed, in Sec. 225.37(b), to require that when a
railroad utilizes the magnetic media option, whether to submit an
initial report, or an updated or amended report, it was to submit along
with the magnetic media: (a) a sworn report, as required by 49 U.S.C.
20901 (formerly contained at Sec. 1 of the Accident Reports Act, 45
U.S.C. 38), in the form of a notarized ``Railroad Injury and Illness
Summary'' (Form FRA F 6180.55), and (b) a signed ``Batch Control Form''
for magnetic media. The requirement to submit a notarized Form FRA F
6180.55 is necessary to ensure that railroad reporting officials attest
to the validity of the information reported to FRA in the magnetic
media. It also provides FRA with evidence necessary to hold those
officials accountable for false reporting.
Since the magnetic media option is a fairly new concept, FRA
proposed, in Sec. 225.37(c), to require the railroads that utilize this
medium to initially include the hard copy of the particular accident/
incident report with the magnetic media. During this assimilation
period, FRA would compare the data on hard copy reports to the data
contained in the magnetic media to determine if the information
reported via magnetic media was consistent and reliable. This
requirement would ensure quality control and would provide FRA a
measure by which to gauge accurate reporting. After a three-month
period of 100-percent accuracy verification, FRA would notify the
railroad in writing that the hard copy was no longer necessary.
Comments
Nearly all commenters expressed an interest in implementing some
kind of electronic transmission and exchange of data from the railroads
to FRA. Several commenters expressed the desire to have a standard,
consistent format that would assure the credibility of the original
report while others expressed the desire to submit data utilizing a
variety of different reporting formats designed by the individual
railroads. Some commenters recommended that FRA should design and make
available to all railroads a software package of the formats required
for transmission of all types of data in order to ensure uniformity in
reporting. Several commenters suggested that FRA should examine another
option for the transfer of data to FRA, i.e., electronic submission of
data over telephone lines.
Final Rule
Section 225.37 Magnetic Media Transfer and Electronic Submission
Section 225.37 of the final rule allows for the submission of
accident reporting data to FRA by two alternate means: (1) magnetic
media (computer diskette or magnetic tape), or (2) electronically, over
telephonic lines. Submission of this data through either means remains
optional for the reporting railroad.
Section 225.37(a) states that railroads utilizing either option may
submit the following reports, updates to reports, and amendments to
reports to FRA:
(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 ``Batch Control Form'' (Form FRA F 6180.99). Section
225.37(d) states that each railroad that employs either option must
submit its monthly reporting data to FRA in a year-to-date file format.
For example, the railroad's April submission must contain the reporting
data for the months of January through April, including any amendments
or updates for the months of January through March.
Section 225.37(b) states that each railroad utilizing the magnetic
media option must submit the following:
(1) the computer diskette or magnetic tape;
(2) the ``Batch Control Form'' (Form FRA F 6180.99); and
(3) the notarized hard copy of the ``Railroad Injury and Illness
Summary'' (Form FRA F 6180.55), signed by the railroad's reporting
officer.
Also note that each railroad need submit only one ``Batch Control
Form'' (Form FRA F 6180.99) with its monthly submission since the
``Batch Control Form'' contains the sum totals for the four reports
that appear on the form.
As previously stated, the notarization of Form FRA F 6180.55 is
required by 49 U.S.C. 20901 and this form must continue to be submitted
to FRA in hard copy format. Also note that the proposal requiring the
railroad reporting officer's signature on the Batch Control Form is not
adopted in the final rule. The format for the Batch Control Form is set
forth in Attachment 2 to this final rule.
Legislation before Congress (the ``Department of Transportation
Regulatory Reform Act of 1996'') would amend 49 U.S.C. 20901(a) to
eliminate the requirement that railroads file notarized monthly reports
with FRA regarding accidents and incidents on their properties. The
amendment would allow the Secretary to specify the frequency with which
reports must be filed; provide discretion to set different reporting
requirements for different classes of railroads; and facilitate
electronic filing and a corresponding reduction in paper filings. It is
believed these amendments would reduce unnecessary expense and delay
associated with filing monthly reports, particularly for small
railroads and those railroads which may have no events to report for a
particular month.
Section 225.37(c) outlines the requirements for submission of data
electronically, through telephonic means. The requirements for
electronic submission parallel those for magnetic media submissions.
The only difference is that a railroad utilizing the electronic
submission option must transmit its year-to-date file reporting data to
an FRA-designated computer. Note, however, that each railroad must
continue to submit the notarized hard copy of the ``Railroad Injury and
Illness Summary'' (Form FRA F 6180.55).
Section 225.37(e) states that, initially, each railroad utilizing
either the magnetic media or electronic submission option must submit
the hard copy report(s) for each accident/incident it reports by such
means. FRA will continually review the hard copy reports against the
data submitted electronically or by means of magnetic media for that
reporting railroad. Once the magnetic media or electronic submission 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. However, note that each railroad must continue to submit the
notarized hard copy of the ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55) with its magnetic media or electronic submissions
until such time that legislation is passed eliminating this
requirement.
The next revised FRA Guide will contain more detail concerning the
submission of data via magnetic media
[[Page 30946]]
or, electronically, over telephone lines or other means.
C. Section 225.27 Retention of Records
Proposed Rule
FRA proposed that railroads that chose to submit their data via
magnetic media or electronically, over telephone lines, as discussed in
the previous section, would remain responsible for having on file hard
copies of the reports identified in the current regulations at
Sec. 225.21. Therefore, FRA proposed, in Sec. 225.27(c), that each
railroad must maintain on file, at one or more central locations
designated by the railroad, a signed copy of both the ``Rail Equipment
Accident/Incident Report'' (Form FRA F 6180.54) and the ``Highway-Rail
Grade Crossing Accident/Incident Report'' (Form FRA F 6180.57), as well
as a copy of all other reports pursuant to Part 225. This requirement
was also meant to include a hard copy of any record submitted via
magnetic media or, electronically, over telephone lines, so as to
enable both federal and State inspectors, as well as other authorized
representatives, a means by which to verify whether the railroad
reported a specific accident/incident or injury/illness to FRA.
Comments
Most railroads expressed concern that the requirement for records
to be maintained at one or more central locations was far too stringent
and impracticable. In contrast, rail labor representatives agreed with
the FRA proposal that railroads should have a hard copy of all records
on file at a central location designated by that railroad. With new
moves by railroads to centralize functions of their operations, the
State of California suggested that railroads should be required to
provide a central location for retention of records within the
boundaries of each State in which it operates.
Final Rule
Section 225.27 Retention of Records
Section 225.27(a) states that each railroad must retain the
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
and the Monthly List of Injuries and Illnesses (both discussed in
detail later in this preamble), as required by Sec. 225.25, for at
least five years after the end of the calendar year to which they
relate. The ``Initial Rail Equipment Accident/Incident Record'' (Form
FRA F 6180.97), as required by Sec. 225.25, must be retained for at
least two years after the end of the calendar year to which they
relate. The ``Initial Rail Equipment Accident/Incident Record'' is
discussed in detail later in this preamble.
Please note that maintenance and access to any record and report
required under this part are discussed in this preamble in the section
entitled ``Access to Records and Reports'' (Sec. 225.35).
D. Reporting Definitions and Forms
1. Form FRA F 6180.45--``Annual Summary Report of Railroad Injury and
Illness''
Form FRA F 6180.45 has been used by the rail industry to report all
deaths, injuries, and occupational illnesses of on-duty railroad
employees that occurred during the calendar year.
Proposal
FRA proposed to eliminate the requirement for submission of the
``Annual Summary Report of Railroad Injury and Illness'' (Form FRA F
6180.45). However, certain blocks of information on this form were
deemed important for accurate injury and illness data analysis.
Information regarding ``Terminations or Permanent Transfers'' found in
column ``8'' on the annual summary report lists the number of cases in
column ``3'' (Total Lost Workday Cases) and column ``7'' (Non-Fatal
Cases without Lost Workdays) that resulted in either the termination or
the permanent transfer of the employee for reasons related to the
sustained injury or occupational illness. FRA proposed to move the
block designated ``Terminations or Permanent Transfers'' to the
``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form FRA
F 6180.55a). Similarly, FRA proposed to move the blocks that solicit
information on ``Establishments Included in this Report'' and ``Average
Employment in Reporting Year'' on the annual summary report to the
``Annual Railroad Report of Employee Hours and Casualties, by State''
(Form FRA F 6180.56).
Comments
Commenters agreed with FRA's proposal to eliminate Form FRA F
6180.45 and to transfer the information blocks pertaining to
``Terminations or Permanent Transfers,'' ``Establishments Included in
this Report, and ``Average Employment in Reporting Year'' to other
existing reporting forms.
Final Rule and Decision
The final rule eliminates the requirement for railroads to submit
the ``Annual Summary Report of Railroad Injury and Illness'' (Form FRA
F 6180.45). Blocks that solicit information on ``Establishments
Included in this Report'' and ``Average Employment in Report Year'' are
transferred to the ``Annual Railroad Report of Employee Hours and
Casualties, by State'' (Form FRA F 6180.56) as blocks ``4'' and ``5,''
respectively. The block designated ``Termination or Permanent
Transfer'' is transferred to the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' (Form FRA F 6180.55a) as block ``5r.''
2. Form FRA F 6180.54--``Rail Equipment Accident/Incident Report''
Collisions, derailments, explosions, fires, acts of God, and other
events involving the operation of standing or moving on-track equipment
resulting in more than $6,300 of reportable damage (the current
reporting threshold) must be reported using Form FRA F 6180.54. FRA
proposed to make limited changes to the ``Rail Equipment Accident/
Incident Report.'' The format for the revised ``Rail Equipment
Accident/Incident Report'' (Form FRA F 6180.54) is set forth in
Attachment 3 to this final rule.
a. Special Study Blocks
Proposal
FRA proposed establishment of three new blocks on Form FRA F
6180.54, each designated as a ``Special Study Block'' (SSB), to collect
information on specific accident issues over a specified time period in
response to particular hazards or associated railroad risks that are of
safety concern.
Comments
AAR and its constituent members opposed the addition of the special
study blocks to the ``Rail Equipment Accident/Incident Report'' (Form
FRA F 6180.54). AAR stated that gathering information, as the need may
arise, would be somewhat expensive due to the computer programming
necessary to complete the SSB information. These same members stated
that collection of SSB information would be time consuming for the rail
industry since instructions would have to be issued to the field as to
what type of information is actually needed.
Several union representatives felt that the addition of the SSBs to
Form FRA F 6180.54 was necessary to collect pertinent data but that FRA
should be very specific in its information request.
Other parties stated that if FRA decided not to add the SSBs as
proposed, then the block allowing for a narrative description of the
special event should be completed by the reporting railroad only when
other blocks did not define the special circumstances surrounding the
accident.
[[Page 30947]]
Final Decision
The ``Rail Equipment Accident/Incident Report'' (Form FRA F
6180.54) contains two SSBs in block ``49.'' As the need arises, FRA
will notify the railroads in writing or, if appropriate, through
publication in the Federal Register, of the purpose and the type of
information that is to be collected. FRA will be as specific as
possible in order to minimize both costs and the amount of time
associated with the collection of this new information. Each SSB has 20
characters in order to standardize the data structure for computer
files. FRA believes the SSBs will prove extremely valuable in
collecting information to help FRA identify and evaluate issues of
safety concern as well as other nonsafety issues as the need arises.
FRA anticipates that use of one or more SSBs will be occasional,
rather than continuous. As appropriate, FRA will consult with the
Railroad Safety Advisory Committee (RSAC) before formulating the
respective information collections.
b. Reporting Definitions
Proposal
First, FRA proposed to make it clear that when estimating damage
costs, the labor costs to be reported are only the direct labor costs
to the railroad, e.g., hourly wages, transportation costs, and hotel
expenses. The cost of fringe benefits would be excluded when
calculating direct labor costs. Second, for services performed by a
contractor, FRA proposed that the railroad would estimate a direct
hourly labor cost by multiplying the contractor's total labor hours
charged to the railroad by the applicable direct hourly wage rate for a
railroad worker in that particular craft. Third, FRA proposed to make
it clear that overhead is to be excluded from damage costs due to the
unacceptable non-uniform treatment of overhead under the current
process. Lastly, FRA proposed that material costs would be calculated
based upon the costs of acquiring new material, even if the railroad
chose to use refurbished or used material in its actual repairs.
Comments
Most commenters favored the proposal to include only direct labor
costs when estimating damage costs for labor, and to exclude overhead
costs from reporting. On the other hand, most railroads did not support
the proposal that material/equipment costs should be calculated based
upon the costs of newly acquired material, even if the railroad chose
to use refurbished or used material in its actual repairs. Railroad
representatives stated that if the railroad has available, or is able
to obtain, used material to repair or replace ``in kind'' the damaged
material, charging the material at an artificial cost would
inaccurately assess the real economic impact of the incident. Further,
these commenters stated that to charge material ``incorrectly'' would
require railroads to set up expensive duplicate recordkeeping. Most
railroad representatives also stated that it would be difficult to
derive the equivalent direct labor hours and rates from contractual
services involved in railroad accident and repair costs.
Most rail labor associations stated that the costs of all materials
utilized to effectuate repair (whether to new, used or refurbished
equipment) should be based upon a uniform cost for new material and
that such costs should be determined by FRA using a uniform scale.
These commenters stated that such standardized costs based on a uniform
scale would eliminate any advantage or disadvantage relative to the
volume of materials purchased, the vendor or manufacturer used, or the
age of equipment or materials involved in the incident. Further, rail
labor representatives favored standardized person-hour costs to assure
a uniform mechanism for accurate comparison of identical or similar
accidents. Using this approach, these commenters stated that accident
reporting would be reduced to a ``level playing field'' from one
railroad to the next.
Final Decision
When estimating damage costs, the labor costs to be reported are
only the direct labor costs to the railroad, e.g., hourly wages,
transportation costs, and hotel expenses. The cost of fringe benefits
is excluded when calculating direct labor costs. Overhead is also
excluded when calculating damage costs due to the unacceptable non-
uniform treatment of overhead under the current process.
For services performed by a contractor, a direct hourly labor cost
is calculated by multiplying the contractor's total labor hours charged
to the railroad by the applicable direct hourly wage rate for a
railroad worker in that particular craft. However, if a railroad cannot
match the equivalent craft to the labor hours spent by a contractor,
then the railroad must use the loaded rate, i.e., the cost by hour for
labor, fringe benefits, and other costs and fees for services charged
by the contractor for the tasks associated with the repair of the
track, equipment, and structures due to the train accident.
Due to the controversy surrounding FRA's proposal to calculate
material costs based upon the costs of acquiring new material, even if
the railroad chose to use refurbished or used material in its actual
repairs, FRA has decided to reexamine this issue in a subsequent
rulemaking for the accident reporting regulations in consultation with
the Railroad Safety Advisory Committee. Therefore, the current
methodology used to calculate material costs, i.e., depreciated value
estimates, will continue to be used by all railroads.
c. Filing of an Amended Form FRA F 6180.54
As stated in the proposed rule, the FRA Guide was changed to
specifically provide that amended reports are filed only if
subsequently acquired information showed the damage to be at least a
ten-percent variance from the amount originally reported to FRA (see
page V-2 of the FRA Guide). This change became effective January 1,
1993.
3. Form FRA F 6180.55a--``Railroad Injury and Illness Summary
(Continuation Sheet)''
The ``Railroad Injury and Illness Summary (Continuation Sheet)''
(Form FRA F 6180.55a) collects information about injuries, fatalities,
and illnesses of railroad workers, trespassers, contractors, and
passengers and about highway-rail grade crossing injuries and
fatalities. FRA proposed numerous changes to this form in order to
collect data that would aid in development of railroad injury and
accident prevention programs. The format for the revised ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 6180.55a)
is set forth in Attachment 4 to this final rule.
a. Exposure to Hazardous Materials
Proposal
FRA proposed to add an additional block to Form FRA F 6180.55a to
collect data on the number of persons injured, as well as the type of
injury (e.g., burn, inhalation, rash), due to release and exposure to
hazardous materials.
Comments
Some commenters supported the proposal to add this block of
information while others stated that this type of information would be
better collected by expanding the existing injury/illness codes
currently used to complete Form FRA F 6180.55a. Several commenters
expressed concern with this proposal since they believed it would be
difficult to obtain this information, especially in the case
[[Page 30948]]
where the individual does not tell the railroad that he or she was
exposed to hazardous materials.
Final Decision
Form FRA F 6180.55a contains block ``5q'' entitled ``Exposure to
Hazmat,'' which is used to collect data on the number of persons
injured and the type of injury resulting from exposure to hazardous
materials.
The Research and Special Projects Administration (RSPA) collects
injury and fatality data associated with the release of hazmat. RSPA
Form DOT 5800.1 counts the number of fatalities, hospitalized injuries
and non-hospitalized injuries associated with a hazmat release.
However, RSPA's data cannot provide FRA with the type of person injured
or the type of exposure. FRA believes that collection of this
information is critical to its data base. The next revised FRA Guide
will contain the codes used to complete this block.
FRA does not agree with the comments that obtaining information on
hazardous materials exposure would be very difficult for a railroad to
obtain. For employees of the railroad, most would inform their employer
of such exposure and, for those employees who did not inform their
employer, the railroad would not have knowledge of the exposure and
therefore would not be able to report it on the Form. Further, for
members of the general public, the reporting railroad usually can
gather information on their exposure to release of a hazardous material
from the claims filed by such persons.
b. County/Day of Month/Time of Day
Proposal
FRA proposed the addition of blocks to collect information on the
county where the incident occurred, as well as the day of the month and
the time of day when the incident occurred.
Comments
Most commenters believed that information that would help pinpoint
and identify an accident site was useful and would help identify
problem areas and regional patterns. A few commenters stated that
present requirements for location information provide sufficient
information to identify accident sites.
Final Decision
Form FRA F 6180.55a contains blocks ``5b'' (day of the month);
``5c'' (time of day); and ``5d'' (county) in order for FRA safety
inspectors to determine which sites or railroad shops have more
injuries or illnesses and to assist FRA inspectors in records
inspections.
c. Gender/Ethnicity.
Proposal
FRA proposed requiring the gender and ethnicity of the person
injured or ill in an effort to help identify whether particular groups
of individuals, particularly trespassers, are more susceptible than
others to certain injuries and illnesses.
Comments
Almost all commenters opposed the addition of blocks to gather
information on the ethnicity and gender of the injured or ill person.
These commenters stated that reporting of gender and ethnicity would
lead to misunderstandings between employees and supervisors as to why
this information was necessary and, that for trespassers, verification
of ethnicity would be difficult, if not impossible.
Final Decision
FRA agrees that collection of information, particularly with
respect to ethnicity, would be difficult to collect and may be
perceived as violating privacy rights of the employee, trespasser,
passenger or any other individual injured in a train related accident/
incident. Therefore, the proposed blocks to collect gender and
ethnicity information on the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' are not adopted in the final rule.
d. Circumstance Codes
Proposal
FRA proposed to develop new codes, in addition to those currently
used, to describe the cause and/or circumstance of injuries and
illnesses not currently covered by the regulations. Specifically, these
circumstance codes would be used to complete the following blocks of
information on Form FRA F 6180.55a: ``Physical Act,'' ``Location,''
``Event,'' ``Result,'' and ``Cause.''
Comments
Most commenters agreed that the existing occurrence codes were
outdated and in need of revision; however, they stated that there was
no need to add an entire set of new circumstance codes. These
commenters stated that some of the circumstance codes, as proposed,
were redundant and lacked objectivity and thus recommended revision of
the existing occurrence codes through the AAR's Uniformity in Reporting
Committee. Other commenters believed that the addition of the proposed
codes was necessary and desirable because such data would help identify
particular hazards.
These commenters also suggested that FRA should expand the codes to
include special non-employee cause codes.
Final Decision
The occurrence codes used to best describe the event or activity
that caused the casualty (found in Appendix F of the FRA Guide) will
become obsolete as of December 31, 1996. A set of codes will be
developed to complete the information in blocks ``5j--Physical Act,''
``5k--Location,'' ``5l--Event,'' ``5m--Result,'' and ``5n--Cause'' for
Form FRA F 6180.55a. FRA will shortly issue a letter requesting one or
more special meetings with an advisory committee or, with the AAR
Committee for Uniformity in Reporting, members of ASLRA, rail labor
associations, and other interested groups, to assist in the development
of the new circumstance codes for reporting accidents/incidents.
e. Termination or Permanent Transfer
Since FRA eliminated the requirement for submission of the ``Annual
Summary Report of Railroad Injury and Illness'' (Form FRA F 6180.45),
data on ``Termination or Permanent Transfer'' is now collected in block
``5r'' on the ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (Form FRA F 6180.55a).
f. Narrative on Unusual Circumstances.
Proposal
FRA proposed the addition of a narrative block on Form FRA F
6180.55a that would allow the reporting railroad the opportunity to
provide details (up to 250 characters) on any unusual circumstance(s)
surrounding the railroad worker's injury or illness.
Comments
Many commenters expressed concern regarding the intended use of the
narrative and questioned whether or not completion of the narrative
would be optional for the reporting railroad.
Final Decision
Form FRA F 6180.55a contains a narrative block ``5s'' that allows
the railroad the opportunity to further explain unusual circumstances
surrounding a worker's injury or illness using up to 250 characters.
Completion of this narrative is mandatory for the reporting railroad
unless the injury or illness can be adequately described using all
other entries (information blocks) on the form.
[[Page 30949]]
4. Form FRA F 6180.55--``Railroad Injury and Illness Summary''
The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55) is
used by the industry to summarize a railroad's accidents/incidents for
a given month. This report must be filed with FRA even when no
accidents/incidents occurred during the reporting month.
The FRA Guide currently classifies persons as:
(1) Employees on Duty (Class A),
(2) Employees Not on Duty (Class B),
(3) Passengers on Trains (Class C),
(4) Other Nontrespassers (Class D),
(5) Trespassers (All Classes)(Class E), and
(6) Contractor Employees (Class F).
These ``person'' classifications are used by the reporting railroad
for completing the ``Railroad Injury and Illness Summary'' (Form FRA F
6180.55) and the ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (Form FRA F 6180.55a).
The format for the revised ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55) is set forth in Attachment 5 to this final rule.
a. Classifications of Persons
Proposal
1. ``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On
Railroad Property''
FRA proposed to add a new classification of person entitled
``Nontrespassers--Off Railroad Property'' to include those individuals
(nontrespassers) who are injured while off railroad property and to
distinguish them from nontrespassers injured while on railroad
property.
Comments
All commenters supported the proposal for the breakdown of the
classification ``Nontrespassers'' into the classifications of
``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On
Railroad Property'' and believed that these distinctions would be
useful in identifying particular safety problems with these person
groups.
Final Decision
The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55)
contains the classifications of persons entitled ``Nontrespassers--On
Railroad Property'' (Class D) and ``Nontrespassers--Off Railroad
Property'' (Class J). An injury ``off railroad property,'' includes an
injury resulting from an event, such as a derailment or collision, that
begins on railroad property but ends on public or private non-railroad
property, so long as the injury is incurred while the person is
physically located off railroad property. Similarly, if a derailment
results in a release of hazardous materials onto public or private non-
railroad property and the hazardous material injures a
``Nontrespasser'' located on public or private non-railroad property,
the injury is reported as an injury to ``Nontrespassers--Off Railroad
Property'' (Class J). Conversely, injuries to nontrespassers occurring
while on public or private railroad property are reported as injuries
to ``Nontrespassers--On Railroad Property'' (Class D).
2. ``Worker on Duty'' and ``Worker Not on Duty''
FRA proposed that a ``Worker on Duty'' be defined as an individual
who receives direct monetary compensation from the railroad or who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad. FRA proposed that the
classifications ``Worker on Duty'' (Class A) and ``Worker Not on Duty''
(Class B) would replace the presently used classifications of persons
``Employee on Duty'' (Class A) and ``Employee Not on Duty'' (Class B),
respectively. Additionally, FRA proposed that the definition of a
``Worker on Duty'' would be expanded to include individuals who do not
necessarily receive direct compensation from the railroad (including
certain contractor employees and volunteers) and who perform either (i)
the operation of on-track equipment or (ii) any other safety-sensitive
activity for the reporting railroad.
Comments
Most commenters did not object to the proposal to change the terms
``Employee on Duty'' and ``Employee not on Duty'' to ``Worker on Duty''
and ``Worker not on Duty,'' respectively. Commenters, however, did
object to the proposed expansion of the definition of a ``Worker on
Duty'' to include ``Contractors'' and ``Volunteers'' who perform either
safety-sensitive functions for the railroad or who operate on-track
equipment. Commenters did not want injuries and illnesses sustained by
such contractors and volunteers to be counted under the ``Worker on
Duty'' classification. Nor did commenters want the hours worked by such
``Contractors'' and ``Volunteers'' to be reported as ``railroad worker
hours.''
Railroads strongly opposed the proposal to make carriers
responsible for gathering and submitting information relative to hours
worked by contractor employees. Railroad representatives claimed that
they did not have data on contractor hours and had no process in place
to accumulate and verify total hours worked by contractor employees.
Railroads believed that if FRA deemed this information critical to its
data base, then the contractor should be compelled to report its hours
directly to FRA or other pertinent federal agencies, such as the
Occupational Safety and Health Administration (OSHA).
Final Decision
A ``Worker on Duty--Employee'' (Class A) is defined as an
individual who receives direct monetary compensation from the railroad.
All reportable injuries and illnesses are reported as those to a
``Worker on Duty--Employee'' (Class A) in block ``5f'' on Form FRA F
6180.55a together with the applicable job code series of the service
performed.
An ``Employee not on Duty'' (Class B) is defined as an individual
(i) who receives direct monetary compensation from the railroad and
(ii) who is on railroad property for purposes connected with his or her
employment or with other railroad permission, but (iii) who is not ``on
duty'' as currently defined in the FRA Guide.
3. (i) ``Volunteer'' and (ii) Volunteer or Contractor Employee Who Is
Classified as a ``Worker on Duty''
FRA proposed that ``Volunteer'' be added to the classes of persons,
for purposes of completing Sections A and B on Form FRA F 6180.55, and
that ``Volunteer'' be defined to include an individual who willingly
performs a service for the reporting railroad; who does not receive
direct monetary compensation from that railroad; and who is not engaged
in either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the reporting railroad. As proposed, such
injuries or illnesses sustained by this volunteer would be reported on
the ``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form
FRA F 6180.55a) as injuries to a ``Volunteer.'' Further, FRA proposed
that the railroad report all hours for that tour of service as
``volunteer hours'' on the ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55).
In contrast, FRA proposed that injuries or illnesses sustained by
an individual, including a ``Volunteer'' or a ``Contractor'' who was
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad, would be reported as
[[Page 30950]]
injuries/illnesses to a ``Worker on Duty'' (Class A) on the ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F
6180.55a). Further, FRA proposed that the railroad report all hours
worked by such a ``Volunteer'' or ``Contractor'' for that tour of
service as ``railroad worker hours'' on the ``Railroad Injury and
Illness Summary'' (Form FRA F 6180.55).
FRA further elaborated on this issue at the public regulatory
conference held in Washington, D.C. where FRA proposed development of
three new subclasses of ``Worker on Duty,'' which would include (i)
``Worker on Duty--Employee,'' (ii) ``Worker on Duty--Contractor,'' and
(iii) ``Worker on Duty--Volunteer.''
Comments
Many commenters supported the development of the three
classifications of a ``Worker on Duty'' as proposed and discussed at
the public regulatory conference. These commenters stated that the
three classifications would be beneficial for recordkeeping purposes
and would aid in tracking the frequency rate of accidents and injuries
for each person category. Commenters agreed that the three proposed
classifications of ``Worker on Duty'' were qualitatively and
quantitatively different in terms of training, tenure, supervisory
oversight, motivational and disciplinary regimes, and experience and,
that such a distinction should be captured in FRA's database to ensure
the opportunity to analyze these differences. Many railroads supported
the development of the three classifications of a ``Worker on Duty''
provided that the FRA reportable injury ratio would still reflect only
the classification of ``Worker on Duty--Employee'' (Class A). As stated
previously, most commenters were opposed to reporting injuries and
illnesses sustained by ``Contractors'' and ``Volunteers'' who perform
either ``safety-sensitive functions'' or who ``operate on-track
equipment'' under the classification of ``Worker on Duty.'' These
commenters believed that a distinction between railroad employees and
such contractors and volunteer workers should be maintained for
reporting purposes and, that such a distinction would allow FRA to
compare the accident/injury rates of ``Railroad Workers on Duty'' to
those of ``Contractors'' and/or ``Volunteers.''
Railroads also opposed reporting hours worked by a ``Volunteer'' or
``Contractor'' who was engaged in either (i) the operation of on-track
equipment or (ii) any other safety-sensitive function for the railroad
as ``railroad worker hours'' on Form FRA F 6180.55.
Final Decision
A ``Worker on Duty--Volunteer'' (Class H) is a volunteer who does
not receive direct monetary compensation from the railroad and who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Section 209.303 of title 49 of the Code of Federal Regulations
describes ``safety-sensitive functions'' as applying to the following
individuals:
(a) Railroad employees who are assigned to perform service subject
to the Hours of Service Act (45 U.S.C. 61-64b) during a duty tour,
whether or not the person has performed or is currently performing such
service, and any person who performs such service;
(b) Railroad employees or agents who:
(1) Inspect, install, repair, or maintain track and roadbed;
(2) Inspect, repair, or maintain, locomotives, passenger cars, and
freight cars;
(3) Conduct training and testing of employees when the training or
testing is required by the FRA's safety regulations; or
(c) Railroad managers, supervisors, or agents when they:
(1) Perform the safety-sensitive functions listed in paragraphs (a)
and (b) of this section;
(2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section;
or
(3) Are in a position to direct the commission of violations of any
of the requirements of parts 213 through 236 of this title.
Note that there have been amendments and additions to the set of
railroad safety regulations found in the Code of Federal Regulations;
thus, ``safety-sensitive functions'' in Sec. 209.303(c)(3) is
interpreted to include railroad managers, supervisors, etc., when they
are in a position to direct the commission of violations of any of the
requirements of parts 213 through 240 of title 49 of the Code of
Federal Regulations.
Hours worked by a ``Worker on Duty--Volunteer'' (Class H) are not
reported on any form because FRA recognizes from the comments received
in response to this proposal that railroads may have difficulty in
acquiring this information.
A volunteer who does not receive direct monetary compensation from
the railroad and who is not engaged in either (i) the operation of on-
track equipment or (ii) any other safety-sensitive function for the
railroad as defined in Sec. 209.303 is classified as a ``Volunteer--
Other'' (Class I), and hours worked by this person also are not
reported on any FRA form.
Similarly, a ``Worker on Duty--Contractor'' (Class F) is an
employee of a contractor for a railroad who does not receive direct
monetary compensation from the railroad and who, while on railroad
property, is engaged in either (i) the operation of on-track equipment
or (ii) any other safety-sensitive function for the railroad as defined
in Sec. 209.303. Hours worked by persons in Class F are not reported on
any FRA form due to the difficulty railroad representatives expressed
they would have in acquiring this data.
A contractor employee for a railroad who does not receive direct
monetary compensation from the railroad and who is not engaged in
either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the railroad as defined in Sec. 209.303
is classified as a ``Contractor--Other'' (Class G) and hours worked by
this person are similarly not reported on any FRA form.
Also note that the FRA reportable injury ratio will continue to
reflect only injuries sustained by the persons in Class A, ``Worker on
Duty--Employee.'' This will preserve the bench marking tool utilized by
the railroad industry while ensuring that FRA has the information
necessary to distinguish injuries between railroad workers, and
contractors and volunteers engaged in any safety-sensitive function or
in the operation of on-track equipment.
To summarize, Form FRA F 6180.55 (Railroad Injury and Illness
Summary) now contains the following classifications of persons:
(1) Worker on Duty--Employee (Class A),
(2) Employee not on Duty (Class B),
(3) Passengers on Trains (Class C),
(4) Nontrespassers--On Railroad Property (Class D),
(5) Trespassers (Class E),
(6) Worker on Duty--Contractor (Class F),
(7) Contractor--Other (Class G),
(8) Worker on Duty--Volunteer (Class H),
(9) Volunteer--Other (Class I), and
(10) Nontrespassers--Off Railroad Property (Class J).
These classifications will not be defined in the rule text for the
accident reporting regulations; rather, they will be defined in the
next revised FRA Guide.
The following are examples of situations involving reportable
injuries suffered by a ``Worker on Duty--Volunteer,'' a ``Volunteer--
Other,'' a
[[Page 30951]]
``Worker on Duty-- Contractor,'' and a ``Contractor--Other'' in the
course of different types of work performed:
Example 1. A volunteer operates a locomotive for an excursion
railroad. Operation of a locomotive clearly falls within the realm
of ``operation of on-track equipment.'' If the volunteer sustains a
reportable injury during operation of the locomotive, then the
incident is reported on the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' (Form FRA F 6180.55a) as an injury to a
``Worker on Duty-- Volunteer'' (Class H), with the applicable job
code series.
Example 2. A volunteer sells memorabilia at a historic railroad.
Selling memorabilia does not fall within the scope of either ``the
operation of on-track equipment'' or ``any other safety-sensitive
function.'' When such a volunteer sustains a reportable injury, such
injury, is reported on Form FRA F 6180.55a as an injury to a
``Volunteer--Other'' (Class I).
Example 3. A volunteer sells tickets for train rides on a
tourist railroad and also clears vegetation adjacent to roadbed.
Under 49 CFR 213.37, vegetation is to be cleared from the roadbed
for safe rail operations; vegetation clearing is thus an aspect of
maintaining roadbed under Sec. 209.303(b)(1) and, therefore,
considered a ``safety-sensitive function.'' Any injury or illness
sustained by the volunteer during the vegetation clearing is
classified as one to a ``Worker on Duty--Volunteer'' (Class H) with
the applicable reporting requirements for purposes of Form FRA F
6180.55a. If any reportable injury is sustained by the volunteer
during the process of selling tickets, then such injury is
classified as one to a ``Volunteer--Other'' (Class I). If, however,
the volunteer sells tickets and then clears vegetation during the
same tour, then all injuries are considered as those attributable to
a ``Worker on Duty--Volunteer'' (Class H). Therefore, when a
volunteer is engaged in ``mixed service,'' the railroad must report
all reportable injuries and illnesses for that volunteer as those to
a ``Worker on Duty--Volunteer'' (Class H) on Form FRA F 6180.55a.
Conversely, when a contractor employee is engaged in such ``mixed
service'' on railroad property, the railroad must report all
reportable injuries and illnesses for that volunteer as those to a
``Worker on Duty-- Contractor'' (Class F) on Form FRA F 6180.55a,
with the applicable job code series of the service performed.
Example 4. The employee of a contractor performs payroll as well
as time-and-attendance functions for the railroad on railroad
property. Such functions are not considered ``safety-sensitive''
because they are not related to the continued safety of the railroad
and do not fall under the definition of any ``safety-sensitive
function'' as defined in Sec. 209.303. Thus, injuries sustained by
this contractor performing those tasks are reported on Form FRA F
6180.55a as those attributable to a ``Contractor--Other'' (Class G).
Example 5. A contractor employee inspects and replaces roller
bearings for the reporting railroad on the railroad's property.
Injuries sustained by this contractor are reported as those to a
``Worker on Duty--Contractor'' (Class F) on Form FRA F 6180.55a.
Under 49 CFR 215.113, cars with defective roller bearings should not
be in service, thus any illness or injury associated with
replacement of roller bearings is a ``safety-sensitive function''
qualifying as an injury or illness attributable to a ``Worker on
Duty-- Contractor'' (Class F). In contrast, if this same injury was
sustained by a contractor employee at the contractor's facility off
railroad property, then such injury would not be reported to FRA.
5. FRA Form F 6180.56--``Annual Railroad Report of Employee Hours and
Casualties, by State''
A summary of all hours worked by railroad employees during the
report year is made on Form FRA F 6180.56. This form is submitted as
part of the monthly ``Railroad Injury and Illness Summary'' (Form FRA F
6180.55) for the month of December of each year. The format for the
revised ``Annual Railroad Report of Employee Hours and Casualties, by
State'' (Form FRA F 6180.56) is set forth in Attachment 6 to this final
rule.
Final Decision
Information on ``Establishments Included in this Report'' and
``Average Employment in Report Year,'' which previously appeared on
Form FRA F 6180.45, is now found on Form FRA F 6180.56 in blocks ``4''
and ``5'' respectively, because, as discussed previously in this
preamble, FRA has eliminated the requirement to submit Form FRA F
6180.45. A column reflecting a count for ``Casualties'' is also added
to Form FRA F 6180.56.
6. FRA Form F 6180.57--``Highway-Rail Grade Crossing Accident/Incident
Report''
Form FRA F 6180.57 collects information on accidents and incidents
occurring at highway-rail grade crossings. Any impact, regardless of
severity, between a railroad on-track equipment consist and any user of
a public or private crossing site, including sidewalks and pathways,
must be reported on this form. The information collected on this report
is vital to identifying and resolving problems at highway-rail grade
crossings. The format for the revised ``Highway-Rail Grade Crossing
Accident/Incident Report'' (Form FRA F 6180.57) is set forth in
Attachment 7 to this final rule.
a. Occupants
Proposal
Under the heading ``Highway Vehicle Property Damage/Casualties'' on
the currently used form, FRA proposed to delete blocks ``43'' through
``45,'' which requested information on the total number of occupants
and the total number of occupants killed and injured, and to replace
those blocks with several new ones to gather additional information on
the number of highway-rail crossing users killed or injured; the total
number of highway-rail grade crossing users involved in the incident;
the number of railroad workers killed or injured; the total number of
people on the train at the time of the incident; and the number of
train passengers killed or injured.
Comments
No negative comments were received in response to this proposal.
Final Decision
Form FRA F 6180.57 requests the following information under the
heading ``Highway Vehicle Property Damage/Casualties'':
Block 46: the number of highway-rail crossing users (i.e.,
pedestrians and vehicle occupants) killed; and the number of highway-
rail crossing users injured;
Block 48: the total number of highway-rail crossing users involved
in the incident (including the driver);
Block 49: the number of railroad employees killed; and the number
of railroad employees injured;
Block 50: the total number of people on the train at the time of
the incident (including passengers and train crew); and
Block 52: the number of train passengers killed; and the number of
train passengers injured.
b. Amtrak/Autotrain Distinction
Proposal
FRA proposed to eliminate the distinction between Amtrak and
Autotrain in item ``1'' on the current Form, as such a distinction is
now obsolete.
Comments
No negative comments were received in response to this proposal.
Final Decision
The distinction between Amtrak and Autotrain is deleted from Form
FRA F 6180.57.
c. Signal Crossing Warning
Proposal
FRA further proposed to clarify the question in block ``32,''
``[w]as the signaled crossing warning identified in item ``31''
operating?'' Item ``31'' listed several types of signal devices (active
and passive). Confusion existed in
[[Page 30952]]
completing this information when the report identified a passive device
and then the railroad reported it as not operating.
Comments
Rail labor associations believed that this information would
effectively capture the status of the warning device at the time of the
accident and that such information was crucial to FRA's data bank to
track the effectiveness of rail safety regulations pertaining to
highway-rail grade crossings. Most other commenters agreed that this
question was in need of further clarification by FRA.
Final Decision
Block ``32'' is now block ``33'' on Form FRA F 6180.57, is entitled
``Signaled Crossing Warning,'' and refers the reader to the reverse
side of the form for instructions and codes in completing this block.
The instructions for completing block ``33'' read as follows:
Only if Types 1-6, Item 32, are indicated, mark in Block 33 the
status of the warning devices at the crossing at the time of the
accident using the following codes:
1. Provided minimum 20-second warning.
2. Alleged warning time greater than 60 seconds.
3. Alleged warning time less than 20 seconds.
4. Alleged no warning.
5. Confirmed warning time greater than 60 seconds.
6. Confirmed warning time less than 20 seconds.
7. Confirmed no warning.
If status code 5, 6, or 7 was entered, also enter a letter code
explanation from the list below:
A. Insulated rail vehicle.
B. Storm/lightning damage.
C. Vandalism.
D. No power/batteries dead.
E. Devices down for repair.
F. Devices out of service.
G. Warning time greater than 60 seconds attributed to accident-
involved train stopping short of the crossing, but within track
circuit limits, while warning devices remain continuously active
with no other in-motion train present.
H. Warning time greater than 60 seconds attributed to track
circuit failure (e.g., insulated rail joint or rail bonding failure,
track or ballast fouled, etc.).
J. Warning time greater than 60 seconds attributed to other
train/equipment within track circuit limits.
K. Warning time less than 20 seconds attributed to signals
timing out before train's arrival at the crossing/island circuit.
L. Warning time less than 20 seconds attributed to train
operating counter to track circuit design direction.
M. Warning time less than 20 seconds attributed to train speed
in excess of track circuit's design speed.
N. Warning time less than 20 seconds attributed to signal
system's failure to detect train approach.
P. Warning time less than 20 seconds attributed to violation of
special train operating instructions.
R. No warning attributed to signal system's failure to detect
the train.
S. Other cause(s). Explain in Narrative Description.
d. Narrative Block
Proposal
A narrative block allowing for up to 250 characters was proposed
for addition to Form FRA F 6180.57 in order to gather information on
unusual causes/circumstances surrounding the highway-rail grade
crossing accident/incident.
Comments
Almost all commenters requested that completion of the narrative
block remain optional on their part.
Final Decision
Form FRA F 6180.57 contains block ``54'', entitled ``Narrative
Description.'' Completion of this narrative is mandatory for the
reporting railroad unless the accident/incident can be described
adequately using all other informational blocks on the form.
e. Special Study Blocks
Proposal
FRA also proposed at the public regulatory conference the addition
of three Special Study Blocks (SSBs) to Form FRA F 6180.57 in order to
gather essential data as the need arises.
Comments
Some commenters believed that SSBs on this form would be useful for
capturing specialized data which could be used, for instance, to
analyze or predict trends in safety hazards or to initiate planning for
correction of identified problems. The American Trucking Associations
(ATA) requested that the use of the SSB should be publicly announced in
the Federal Register so that affected highway users would be aware of
any special study that may be undertaken, and that they be afforded an
opportunity for appropriate input.
Final Decision
The ``Highway-Rail Grade Crossing Accident/Incident Report'' (Form
FRA F 6180.57) contains two special study blocks (SSBs) in block
``53.'' As the need arises, FRA will notify the railroads in writing,
or if appropriate, through publication in the Federal Register, of the
purpose and the type of information that is to be collected. In
conjunction with the Federal Highway Administration (FHWA), FRA will
publish in the Federal Register any announcement affecting highway
users, thus allowing motor carriers the opportunity to provide FRA
pertinent special study information. FRA will be as specific as
possible in order to minimize both costs and the amount of time
associated with the collection of this new information. Each SSB has 20
characters in order to standardize the data structure for computer
files. FRA believes the SSBs will prove extremely valuable in
collecting information to help FRA identify and evaluate issues of
safety concern as well as other nonsafety issues as the need arises.
f. Whistle Bans and Signal System Failure
Proposal
FRA also proposed to add two new questions to the ``Highway-Rail
Grade Crossing Accident/Incident Report'' to gather information on
whether whistle bans were in effect and observed at the time of the
accident/incident, and whether there was signal system failure within
the last seven calendar days up to and including the day of the
accident. The codes for completing both items would be included in the
next revised FRA Guide.
Comments
Rail labor associations viewed these information blocks necessary
as this information would effectively capture the status of the warning
device prior to the time of the accident. Many railroads stated that
the proposed question on whistle bans was necessary to collect
information on this subject due to the increased focus by the media, as
well as state and federal agencies, on accidents occurring at grade
crossings. A few railroads opposed addition of these questions but
failed to express their reasoning as to why such questions should not
be added to the form. All participants at the public hearings and at
the public regulatory conference acknowledged their concern in
connection with whistle bans and further emphasized the need for
federal regulations requiring the sounding of a locomotive horn upon
approaching and entering public highway-rail grade crossings.
ATA stated that current whistle bans were unacceptable and that
highway users approaching a grade crossing are fully entitled to be
warned of the approach of a train by every practicable means. They
further commented that active warning devices frequently
[[Page 30953]]
malfunction in a manner indicating the approach of a train when such is
not the case. ATA stated that a specific warning of the approach of a
train, through sounding of the whistle, is essential to safety and that
active warning devices were not adequate substitutes for the
requirement to have the engineer sound the whistle.
The proposal to add the question regarding signal system failure to
Form FRA F 6180.57 had a similar response in that some commenters
opposed addition of this question while others stated that the
information was critical to identifying problems at highway-rail grade
crossings. ATA urged that, not only should the existence of a failure
be noted, but that the nature of the failure should be included in the
record. ATA stated that this information could be a significant factor
particularly where active warning devices falsely indicate the approach
of a train.
Final Decision
It is imperative that FRA ascertain as many details concerning
accidents connected with whistle bans. Thus, the ``Highway-Rail Grade
Crossing Accident/Incident Form'' (Form FRA F 6180.57) contains
question ``34'' to gather information on whether whistle bans were in
effect and observed at the time of the accident/incident. The codes for
completing this block will be included in the next revised FRA Guide.
However, the proposal to gather information on whether there was
signal system failure within the last seven calendar days up to and
including the day of the accident is not adopted. FRA collected
information about signal failures and false activations for a period of
27 months over the past several years. The statistical results did not
indicate a correlation between a signal failure and an accident within
seven days of such failure. The burden to collect this information
therefore cannot be justified based upon FRA's study. If new data
should indicate that this information is needed, then FRA will gather
such information using the Special Study Blocks (SSBs) on Form FRA F
6180.57.
g. Motorist Age/Gender/Impairment
Proposal
In order to collect more information on motorists involved in
highway-rail grade crossing accidents, FRA proposed to amend Form FRA F
6180.57 to require information under the heading ``Motorist,'' if
known, on the motorist's age and gender, and whether the motorist was
impaired by alcohol or drugs at the time of the accident/incident.
Comments
As to the proposed block for ``Motorist Impairment,'' most
commenters believed the information was useful but preferred that
reporting of this data remain optional for the reporting railroad.
Since all grade crossing accidents are routinely investigated by the
local police, information on motorist impairment is normally provided
to the railroad only after the police conclude their investigation,
which may be several weeks or months after the actual accident. Most
commenters agreed that motorist age and gender information was readily
available and easier to collect than information on motorist
impairment.
Final Decision
Form FRA F 6180.57 does not contain a block on ``Motorist
Impairment.'' If FRA deems this information necessary at some point in
the future, the Special Study Blocks (SSBs) on Form FRA F 6180.57 may
be utilized to collect data regarding impaired motorists.
The ``Highway-Rail Grade Crossing Accident/Incident Report''
contains block ``38'' for the driver's age, and block ``39'' for the
driver's gender (sex). This information is readily available to the
reporting railroad, however, completion of driver's age in block ``38''
and driver's gender in block ``39'' remains optional for the reporting
railroad. However, FRA encourages each railroad to be as diligent as
possible in completing these and any other optional information blocks.
h. Trapped Motorist
Proposal
At the public regulatory conference, FRA proposed the collection of
information regarding situations where motorists are trapped by other
motor vehicle traffic in order to help identify alternative grade
crossing protection systems that may prevent this situation.
Comments
Rail labor associations regarded this information useful for
identifying alternate grade crossing protection systems that may help
prevent this type of situation. A few commenters believed that this
requirement was troublesome because in most cases railroads would have
to make a judgment call. These commenters requested that completion of
this information remain optional for the reporting railroad. ATA
supported the inclusion of this data element so that FRA receive clear
information as to what actually happens in such a situation.
Final Decision
Form FRA F 6180.57 contains entry ``#4. Trapped'' in block ``16''
entitled ``Position'' to allow for the collection of information
regarding situations where motorists are trapped by other motor vehicle
traffic. FRA will include the codes for completion of this entry in the
next revised FRA Guide. The narrative block (block ``54'') can also be
used to explain and expand on the actual occurrence. FRA believes this
information is critical to its data base in order to identify alternate
grade crossing protection systems that may help prevent occurrence of
this type of situation.
7. 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''
If a railroad should cite an employee human factor as the primary
or contributing cause of a rail equipment accident/incident, then
current regulations require the reporting railroad to complete the
``Railroad Employee Human Factor Attachment'' (Form FRA F 6180.81), and
attach it to the ``Rail Equipment Accident/Incident Report'' (Form FRA
F 6180.54). Additionally, for each employee listed on Form FRA F
6180.81, the reporting railroad must complete part I, ``Notice to
Railroad Employee Involved in Rail Equipment Accident/Incident
Attributed to Employee Human Factor,'' on Form FRA F 6180.78, and must
provide a copy of this form to the employee within 45 days after the
end of the month in which the accident/incident occurred. Upon receipt
of Form FRA F 6180.78, the employee has the option of providing a
statement in part II (entitled ``Employee Statement Supplementing
Railroad Accident Report''). The format for the revised ``Notice to
Railroad Employee Involved in Rail Equipment Accident/Incident
Attributed to Employee Human Factor; Employee Statement Supplementing
Railroad Accident Report'' (Form FRA F 6180.78) is set forth in
Attachment 8 to this final rule.
Proposal
Recipients of the notice (Form FRA F 6180.78) are to include only
those railroad employees who were the primary cause or a contributing
cause of the rail equipment accident/incident. In order to minimize any
confusion or misunderstanding for recipients of the
[[Page 30954]]
notice, FRA proposed refinement of the language in the block entitled
``Notice to Recipient'' so that only those railroad employees who were
determined by the railroad to be the primary cause or a contributing
cause of the rail equipment accident/incident receive Form FRA F
6180.78.
Comments
The few comments received in response to this proposal were
favorable.
Final Decision
The block entitled ``Notice to Recipient'' on Form FRA F 6180.78
reads as follows:
Notice to Recipient. An accident occurred on the above date
which the railroad alleges was at least partially caused by an
action, lack of action, or the physical condition of a railroad
employee. The railroad is sending you this notice because it
believes that you had a role, but may not necessarily be the primary
or only person responsible for the accident's occurrence. The
railroad has reported to FRA that the primary and/or major
contributing cause(s) of this accident are those listed above. Other
causal factors related to this event may be described in the
narrative portion of the railroad's report; a copy of which is
attached.
You may submit a statement to FRA with a copy to this railroad
and comment on any aspect of the railroad's report. The decision
whether to submit such a statement is entirely optional on your
part. If you choose to do so, please see the additional notices and
instructions on the reverse of this form.
D. Recordkeeping
1. Sections 225.25(a) and (b) and the ``Railroad Employee Injury and/or
Illness Record'' (Form FRA F 6180.98)
Proposal
Section 225.25(a) currently refers to the log of injuries and
occupational illnesses at and for each railroad establishment. In order
to accurately identify and review both reportable and nonreportable
railroad injuries and illnesses, FRA proposed to amend Sec. 225.25(a)
to require that railroads maintain a log or report of all reportable
and ``nonreportable'' (i.e., ``recordable'') injuries and illnesses to
railroad employees for each railroad establishment using a new form
entitled ``Railroad Employee Injury and/or Illness Log'' (Form FRA F
6180.98). Over the years, FRA inspectors have found it increasingly
difficult to ascertain whether the railroad is reaching a correct
decision on whether to report a given injury or illness. Thus, the
requirement was proposed in order to alleviate the problem FRA
inspectors encounter during routine inspections. The format for the
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
is set forth in Attachment 9 to this final rule.
Comments
Many commenters expressed concern with the proposal to add
nonreportable injuries (``recordable'' injuries) to the proposed
``Railroad Employee Injury and/or Illness Log.'' Most railroad
representatives stated that this proposal would create another class of
reportable injuries, i.e., nonreportable recordables. These commenters
saw no justification for what they believed was a burdensome exercise
in recordkeeping. They also stated that this proposal would create
another avenue for issuance of citations and that FRA was taking
another step toward classifying every injury as reportable. Some
commenters suggested that the proposed definition of ``recordable'' was
too stringent in that every single injury or illness, however minor,
would have to be logged by the reporting railroad.
Some participants at the public regulatory conference requested
that FRA use the term ``nonreportable'' instead of the proposed
``recordable'' so that FRA's proposed ``recordables'' would not be
confused with OSHA's ``recordables.''
Many commenters urged FRA to allow each railroad use of a railroad-
designed log or form, instead of the specific log proposed in the NPRM,
as long as the railroad captured the data required on the FRA log.
Other commenters favored the proposal to log all ``recordable''
injuries and illnesses, and stated that such information should be
maintained on either FRA's log or some other format.
Final Rule
Recordkeeping--Sections 225.25(a) and (b) and the ``Railroad Employee
Injury and/or Illness Record'' (Form FRA F 6180.98)
FRA concludes that in order to effectively enforce railroad injury
reporting, all injuries and illnesses to railroad employees that arise
from the operation of the railroad and that cause the employee to be
examined or treated by a qualified health care professional must be
recorded using the ``Railroad Employee Injury and/or Illness Record''
(Form FRA F 6180.98). Unless FRA has the opportunity to examine those
injuries and illnesses deemed ``nonreportable'' as well as those deemed
``reportable'' by the railroad, it is difficult for FRA to determine
whether a railroad is properly making the ``reportable'' decision.
FRA agrees that use of the terms ``recordable'' and ``nonreportable
recordables'' to define those injuries and illnesses which are not
reportable to FRA but are recordable on the log may be confusing for
the railroad. The proposed term ``recordable'' or ``nonreportable
recordables'' is replaced therefore with the term ``accountable'' so as
to minimize any confusion.
An ``accountable'' injury or illness is defined as encompassing any
condition, not otherwise reportable, of a railroad worker that is
associated with an event, exposure, or activity in the work environment
that causes the worker to be examined or treated by a qualified health
care professional. Such treatment would usually occur at a location
other than the work environment; however, it may be provided at any
location, including the work site.
Any condition initially classified as accountable, i.e.,
``nonreportable'' or ``recordable,'' may subsequently become reportable
if certain consequences occur. For example, a minor cut that is
disinfected and covered with a bandage may later become infected and
require medical treatment. It would be difficult, if not impossible,
for the railroad to monitor self-treatment of such minor injuries.
Thus, the type of injuries that are generally expected to be recorded
on the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F
6180.98) are those that create a ``documentation trail.'' This
documentation could include records such as: incident reports; health
care provider records; claim payouts; or any other records that may
identify the fact that an employee has sustained physical harm while in
the work environment that required treatment. This broad scope is
necessary since all conditions, regardless of severity, must be
evaluated to determine if the requirements necessary for reporting the
injury/illness have been met.
Section 225.25(a) states that each railroad must maintain either
the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F
6180.98), or an alternative railroad-designed record as described in
Sec. 225.25(b), to record all reportable and accountable injuries and
illnesses to railroad employees that arise from the operation of a
railroad for each railroad establishment where such employees report to
work. Section 225.25(b) outlines the information FRA requires on the
alternative railroad-designed record used in lieu of the ``Railroad
Employee Injury and/or Illness Record.'' All the information requested
on ``Railroad Employee Injury and/or Illness Record'' must be present
on the
[[Page 30955]]
alternative record. Although this information may be displayed in a
different order from that on the Railroad Employee Injury and/or
Illness Record, the order of the information shall be consistent from
one such record to another such record. The order chosen by the
railroad must be consistent for each of the railroad's reporting
establishments. Also note that the reporting railroad may choose to
have additional information on its record extending beyond the
information required on Form FRA F 6180.98.
Section 225.25(a) states that the ``Railroad Employee Injury and/or
Illness Record,'' or its alternate, must be maintained for each
operational railroad establishment, i.e., an establishment wherein
workers report to work such as an operating division, general office,
and major installations such as a locomotive or car repair or
construction facility. FRA believes that this requirement will help
alleviate the difficulty FRA inspectors encounter when attempting to
locate injury and illness information at railroad establishments.
Please refer to the discussion in Sec. 225.25(g) regarding maintenance
of these records at railroad establishments.
Section 225.25(c) states that each railroad must provide the
employee a copy of either the completed ``Railroad Employee Injury and/
or Illness Record'' (Form FRA F 6180.98) or the alternative railroad-
designed record upon his or her request, as well as a copy of any other
record or report filed with FRA or held by the railroad pertaining to
the employee's injury or illness. This requirement is necessary in
order to provide the injured or ill employee a means by which to review
and verify the reporting status of his or her injury or illness.
2. Elimination of Supplementary Record--Former Sec. 225.25(b) Proposal
FRA determined that much of the information requested in the
supplementary record of injuries and illnesses pursuant to former
Sec. 225.25(b) would be collected on the new ``Railroad Employee Injury
and/or Illness Record'' (Form FRA F 6180.98). Thus, FRA proposed
elimination of this supplementary record.
Comments
All comments received in response to this proposal were favorable.
Final Rule
The requirement that each railroad maintain a supplementary record,
as required under former Sec. 225.25(b), is eliminated in the final
rule.
3. Sections 225.25 (d) and (e) and the ``Initial Rail Equipment
Accident/Incident Record'' (Form FRA F 6180.97)
Railroads have been required to maintain a log of only reportable
rail equipment accidents. Information on nonreportable events may be
found in ``unusual occurrence'' reports and ``morning reports'' that
are maintained at various locations by the railroad. However, there is
no guarantee that all of those reports are either available or
complete. As a result, during routine accident/incident records
inspections it is often difficult, if not impossible, for FRA
inspectors to identify the events that were determined by the railroad
to be nonreportable. The format for the ``Initial Rail Equipment
Accident/Incident Record'' (Form FRA F 6180.97) is set forth in
Attachment 10 to this final rule.
Proposal
In order to accurately identify and review both reportable and
nonreportable rail equipment accident/incidents, FRA proposed that
railroads must maintain a log to list all reportable and ``recordable''
rail equipment accidents using a new form entitled ``Rail Equipment
Accident/Incident Log'' (Form FRA F 6180.97). FRA proposed that a
recordable rail equipment accident/incident would encompass any event
not otherwise reportable, involving the operation of on-track equipment
that causes physical damage to either the on-track equipment or the
track upon which such equipment was operated and that requires the
removal or repair of rail equipment before any rail operations over the
track can continue. A recordable rail equipment accident/incident, if
not tended to, would thus disrupt railroad service. A scrape or
indentation to rail equipment, however, would not make a rail
equipment/accident recordable if routine rail operations over the track
can continue without such equipment being repaired or removed from
service.
Comments
Rail labor representatives supported use of the proposed
standardized FRA form for reporting certain rail equipment accidents/
incidents deemed nonreportable by the railroad. However, these
commenters proposed that a ``recordable'' accident and incident be
defined as:
Any event not otherwise reportable, involving the operation of
on-track equipment that causes personal injury requiring the worker
to be examined or treated by a qualified health care professional or
causes physical damage to either the on-track equipment or the
track, roadbed, signals and/or structures which requires removal,
replacement or repair of equipment, track, roadbed, signals and/or
structures. Incidents arising from broken knuckles, failed journals,
and dragging equipment that do not cause damage beyond that of the
item of equipment that failed, are not required to be logged on Form
FRA F 6180.97.
Under the definition proposed by rail labor, recordable rail
equipment accidents/incidents would not be limited to those occurring
exclusively on the railroad right-of-way; thus rail equipment
accidents/incidents involving ``shop crafts'' in the performance of
worker duties would be encompassed within the definition.
Many railroad representatives opposed a new log to record
reportable and recordable rail equipment accidents. They stated that
the log would create additional recordkeeping requirements with little
or no real benefit to rail safety and, that the proposal would create
another avenue for FRA to issue fines and penalties for what they
considered to be minor paperwork entries. Railroad representatives also
wanted further clarification on the definition of a ``recordable''
accident/incident especially with respect to what constituted a
``disruption'' to rail service.
Most commenters suggested that the term ``recordable'' should be
replaced with the term ``nonreportable'' so as to limit confusion with
the terminology.
Final Rule
Recordkeeping--Sections 225.25 (d) and (e) and the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97)
As stated previously, FRA agrees that use of the term
``recordable'' or ``nonreportable recordables'' to define those rail
equipment accidents and incidents which are not reportable to FRA but
are required to be recorded on the log may be confusing for the
railroad. The proposed term ``recordable'' or ``nonreportable
recordable'' is replaced therefore with the term ``accountable'' so as
to minimize any confusion.
FRA concludes that both reportable and accountable rail equipment
accidents and incidents must be recorded on the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97). FRA
inspectors must have a means by which they can determine whether the
reporting railroad is accurately making its ``reportability'' decision
pertaining to rail equipment accidents and incidents. In addition,
accountable events may be of
[[Page 30956]]
considerable interest in determining the safety of railroad facilities
and operations.
Further, the definition of an ``accountable'' rail equipment
accident/incident as proposed by rail labor is not adopted in the final
rule. FRA believes that personal injuries resulting from the operation
of on-track equipment do not need to be tied into the ``accountable''
rail equipment accident/incident definition since all reported injuries
and illnesses will be recorded on the monthly injury/illness list. This
list will be posted in a conspicuous location for and at each
establishment as described and discussed in the preamble to this final
rule under the section entitled ``Monthly List of Injuries and
Illnesses'' (Sec. 225.25(h)).
Consequently, an ``accountable'' rail equipment accident/incident
is defined as encompassing any event not otherwise reportable,
involving the operation of on-track equipment that causes physical
damage to either the on-track equipment or the track upon which such
equipment was operated and that requires the removal or repair of rail
equipment from the track before any rail operations over the track can
continue. An accountable rail equipment accident/incident, if not
tended to, thus would disrupt railroad service. Examples of
``disruption of service'' would include: loss of main track; one or
more derailed wheels; any train failing to arrive or depart at its
scheduled time; one or more cars or locomotives taken out of service;
or rerouting trains due to a damaged car or locomotive.
Section 225.25(d) states that each railroad must maintain either
the ``Initial Rail Equipment Accident/Incident Record'' (Form FRA F
6180.97), or an alternative railroad-designed record, to record all
reportable and accountable rail equipment accidents and incidents for
each railroad establishment. Thus, Sec. 225.25(e) allows railroads to
design and use an alternative railroad-designed record in lieu of the
``Initial Rail Equipment Accident/Incident Record.'' All the
information requested on the ``Initial Rail Equipment Accident/Incident
Record'' (Form FRA F 6180.97) must be present on the alternative record
designed and used by the railroad. Although this information may be
displayed in a different order from that on the Initial Rail Equipment
Accident/Incident Record, the order of the information shall be
consistent from one such record to another such record. The order
chosen by the railroad must also be consistent for each of the
railroad's reporting establishments. Also note that the reporting
railroad may choose to have additional information on its record
extending beyond the information required on Form FRA F 6180.97.
Section 225.25(d) states that the ``Initial Rail Equipment
Accident/Incident Record,'' or its alternate, must be maintained for
each operational railroad establishment, i.e., an establishment wherein
workers 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. FRA believes that this
requirement will help alleviate the difficulty FRA inspectors encounter
when attempting to locate rail equipment accident and incident
information at railroad establishments. Please refer to Sec. 225.25(g)
for a discussion of maintenance of these records at railroad
establishments.
4. Property Damage Estimate Worksheet and Record (Proposed Form FRA F
6180.xx(b))
Proposal
FRA proposed use of a ``Property Damage Estimate Worksheet and
Record'' (Form FRA F 6180.xx(b)) by the reporting railroad to determine
costs associated with damage to (i) on-track equipment, (ii) signal
equipment, (iii) track, (iv) track structures and roadbed, and (v)
costs of equipment rental and operation. These five cost categories
would be totaled to derive the total accident cost. As proposed, if the
total accident cost met or exceeded the reporting threshold, then the
total cost for ``damage to on-track equipment'' in ``Part A'' would be
transferred to a block entitled ``Equipment Damage'' on the ``Initial
Rail Equipment Accident/Incident Record'' (Form FRA F 6180.97).
Likewise, FRA proposed that the total cost for ``damage to signal
equipment,'' ``damage to track,'' and ``damage to track structures and
roadbed'' in ``Parts B, C, and D'' respectively, would be totaled and
that this amount would be transferred to a block entitled ``Track,
Signal, Way & Structure Damage'' on the ``Initial Rail Equipment
Accident/Incident Record.'' Finally, FRA proposed to print the
``Property Damage Estimate Worksheet and Record'' on the reverse side
of the ``Initial Rail Equipment Accident/Incident Record.''
Comments
Most hearing participants opposed adoption of this proposal. These
same participants expressed their concern with the proposed estimation
of property damage at the public regulatory conference. Written
comments received in response to this proposal further elucidated
problems with the proposed methods of determining the cost of the
damage.
Final Rule
Due to the controversy surrounding FRA's proposal to calculate
costs associated with damage to (i) on-track equipment, (ii) signal
equipment, (iii) track, (iv) track structures and roadbed, and (v)
costs of equipment rental and operation, FRA has decided to reexamine
this issue in a subsequent rulemaking for the accident reporting
regulations in consultation with FRA's Railroad Safety Advisory
Committee. Therefore, the final rule does not adopt the ``Property
Damage Estimate Worksheet and Record.''
5. Sections 225.25 (f) and (g) Updating and Maintaining the ``Railroad
Employee Injury and/or Illness Record'' (Form FRA F 6180.98) and the
``Initial Rail Equipment Accident/Incident Record'' (Form FRA F
6180.97)
Proposal
Discrepancies in logs are the most recurring problems FRA
inspectors encounter during an inspection. FRA has found that many
railroads fail to update existing logs in a timely manner, particularly
with respect to lost/restricted workdays. Therefore, in order to assure
that each railroad continuously updates the ``Railroad Employee Injury
and/or Illness Record'' (Form FRA F 6180.98) and the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97), or the
alternative railroad-designed records (each record hereinafter is
referred to as ``Record''), FRA proposed that each reportable and
recordable injury and illness, as well as each reportable and
recordable rail equipment accident/incident, must be entered on the
appropriate Record as early as practicable, but in any event no later
than seven working days after receiving information or acquiring
knowledge that an illness or injury has occurred or, that a rail
equipment accident/incident has occurred.
Additionally, FRA proposed that if either Record is maintained at a
centralized location, but not through electronic means, then a paper
copy of the record or report that is current within 35 days of the
month to which it applies must be available at the appropriate
establishment. When the Record for an establishment is maintained at a
central location through electronic means, FRA proposed, the records
for that establishment must be
[[Page 30957]]
available for review in a hard copy format (paper printout) within four
business hours of the request.
Comments
The few comments received in response to these proposals were
favorable. However, some commenters objected to the requirement that
records maintained through electronic means must be available for
review in ``hard copy'' within four business hours of the request.
These commenters were concerned with what action FRA would take if the
request could not be fulfilled within this prescribed time limit due to
problems outside the railroad's control.
Most commenters believed that, in most cases, seven days should be
sufficient to update the records. Some commenters were concerned that
this proposal failed to recognize the varying factual circumstances
that railroads may encounter before the initial information provided to
the railroad by the employee is verified. These commenters stated that
many times there are conflicting facts which must be sorted out before
a determination can be made as to whether the accident/incident or the
injury/illness is reportable or nonreportable.
Final Rule
Updating and Maintaining the Records--Sections 225.25 (f) and (g)
Section 225.25(f) states that each railroad must enter each
reportable and accountable injury and illness on the ``Railroad
Employee Injury and/or Illness Record'' or the alternative railroad-
designed record, as early as practicable, but in any event, no later
than seven working days after receiving information or acquiring
knowledge that an illness or injury has occurred. Likewise, each
railroad must enter each reportable and accountable rail equipment
accident and incident on the ``Initial Rail Equipment Accident/Incident
Record'' or the alternative railroad-designed record, as early as
practicable, but in any event, no later than seven working days after
receiving information or acquiring knowledge that a rail equipment
accident or incident has occurred. FRA believes the seven-day
requirement is an extremely reasonable and generous amount of time
afforded railroads to enter information on the Record and to make a
decision on whether the illness/injury and/or accident/incident is
reportable or accountable.
Section 225.25(g) states that if either Record is maintained at a
centralized location, but not through electronic means, then a paper
copy of the Record that is current within 35 days of the month to which
it applies must be available at the appropriate establishment. When
either Record is maintained at a central location through electronic
means, the Record for that establishment must be available for review
in a hard copy format within four business hours of the request. Of
course, FRA anticipates that railroads would be able to provide the
requested information as soon as practicable. FRA believes the four-
hour time limit is more than a reasonable amount of time for the
railroad to provide information made pursuant to a request. FRA
recognizes that this request may be impossible to fulfill if the
establishment is experiencing problems with its computer or other
instruments used in obtaining the information electronically. No
punitive action would be taken by FRA for the railroad's failure to
supply the requested documents when circumstances outside the control
of the railroad preclude it from obtaining the information and the
railroad has exercised reasonable effort to correct the problem.
6. Section 225.25(h) Monthly List of Injuries and Illnesses
Proposal
FRA proposed that each railroad must maintain a list of all
reported injuries and illnesses for the previous month and that such
list be posted in a conspicuous location at each railroad establishment
within 30 days after expiration of the month during which the injuries
and illnesses occurred. For example, the monthly list of injuries and
illnesses for the month of May would have to be completed and posted by
the railroad no later than June 30th. Moreover, FRA proposed that the
monthly injury and illness list would be displayed for a minimum of 60
consecutive days so as to allow all workers at that establishment the
opportunity to view the list. Given the example above, the list, if
posted on June 30th, would remain posted for a minimum of 60 days, or
until August 30th. Further, if no reported injuries or illnesses were
associated with an establishment, FRA proposed that the posting shall
make reference to that fact.
Comments
Most commenters supported this proposal with some modifications.
Namely, commenters stated that the proposal requiring that the list be
posted within 30 days after expiration of the month during which the
injuries and illnesses occurred, coupled with the proposal that the
list be displayed for a minimum of 60 consecutive days was confusing.
Several railroad representatives suggested that railroads should be
allowed to post a ``year to date'' list of reportable and nonreportable
illnesses and injuries quarterly. These commenters stated that this
would provide more accurate information than a monthly listing and that
it would also produce less burdensome paperwork.
Some railroad representatives expressed concern that posting this
information (date, type and location of injury) in a public place may
lead to identification of the injured or ill person and, that the
identified person may perceive that his or her privacy rights have been
violated.
Rail labor associations supported the posting of the monthly
listing of injuries and illnesses and stated that ``each railroad
establishment'' should be consistently interpreted to require posting
at each establishment or assembly point where railroad workers report
to work.
Final Rule
Monthly List of Injuries and Illnesses--Section 225.25(h)
Section 225.25(h) states that a listing of all reported injuries
and occupational illnesses for the previous month shall be posted in a
conspicuous location for and at each railroad establishment within 30
days after expiration of the month during which the injuries and
illnesses occurred. For purposes of fulfilling this requirement, this
posting will be necessary only for those establishments that are in
continual operation for a minimum of 90 calendar days or more. For
those establishments that do not meet this level of operation or time
requirement, the posting of reported injuries and illnesses must be
made at the next higher organizational level, i.e., the establishment
that controls or directs the activities that take place at the
temporary work site. Further, this listing must be posted in a
conspicuous location so that it may be observed by workers at that
establishment and shall remain continuously displayed for the next 12
months. This requirement therefore allows the employee the opportunity
to get a one-year ``snapshot'' of reportable injuries and illnesses
associated with that establishment. Thus, for example, April's list of
reportable injuries and illnesses must be posted by June 1, and must
remain posted until May 31 of the following year. This requirement
allows railroad workers the opportunity to easily and readily review
reportable illnesses and injuries for that
[[Page 30958]]
establishment in a cumulative fashion. FRA also believes that posting
of this monthly list of injuries and illnesses will improve the general
quality of illness and injury data.
Section 225.25(h) further states that incidents reported for
employees on the listing must be displayed in date sequence. The
listing must contain, at a minimum, the following information:
Name and address of the establishment;
Calendar year of the cases being displayed;
Incident number used to report case;
Date of the injury or illness;
Location of incident;
Regular job title of employee injured or ill;
Description of the injury or condition;
Number of days employee was absent from work at time of
posting; and the number of days of work restriction at time of posting;
Date of death, if the employee died;
Annual average number of railroad employees reporting to
this establishment;
Name, title, telephone number with area code, and
signature of preparer; and
Date the report was completed.
When there are no reportable injuries or occupational
illnesses associated with an establishment for that month, the listing
must make reference to this fact.
E. Employer Notification (Proposed Sec. 225.39(a)) and Copy of
``Railroad Employee Injury and/or Illness Record'' to Employee
(Proposed Sec. 225.39(b))
Proposal
Rail labor organizations have repeatedly expressed concern that
many injured employees fail to inform their employers of injuries. By
placing part of the burden for reporting on the individual railroad
employee, FRA believed it could improve the general quality of the
injury/illness reporting data. Consequently, FRA proposed in
Sec. 225.39(a) that railroad employees must notify their employer, in
writing, that they have sustained an injury and/or illness (whether
reportable or nonreportable) within seven calendar days of incurring
either the injury or illness or obtaining knowledge that they incurred
the injury or illness. FRA also recommended a civil monetary penalty
against the railroad employee for failure to notify his or her employer
of the injury or illness within the prescribed time period.
FRA also was concerned with the fact that injured workers did not
have the opportunity to review and verify the information on the
accident/illness report prior to submission of that report to FRA. FRA
thus proposed, in Sec. 225.39(b), that the reporting railroad must
provide the railroad employee with a copy of the completed ``Railroad
Employee Injury and/or Illness Record'' (Form FRA F 6180.98). FRA
believed that the general quality of injury and illness data would
improve by allowing the employee to participate in the reporting
process as set forth above. Similarly, FRA recommended a civil monetary
penalty against the railroad for its failure to issue this log to the
railroad employee within the prescribed time limit.
Comments
Railroad representatives strongly opposed this proposal and instead
recommended that all known injuries should be reported by the employee
to railroad officials immediately, but in any event, no later than the
end of the employee's shift. They also recommended that after obtaining
knowledge of incurring the injury or illness, notification to the
proper railroad official(s) should be mandatory within 24 hours of
obtaining such knowledge. These commenters also stated that if the
railroad had more stringent notification rules, then the railroad's
rules should govern the matter. Many railroad representatives commented
that they already require immediate notification of an injury and that
they cannot adequately investigate the circumstances and potential
causes of the injury or illness without immediate notice by the
employee. Further, these same commenters stated that a monetary penalty
issued to the employee was not appropriate and, that such sanctions
(i.e., disciplinary measures) were better left between the railroad and
the railroad employee.
In contrast, rail labor associations fully supported FRA's seven-
day notification proposal. However, these commenters did not support
the proposal to assess monetary penalties against an employee for his
or her failure to report an accident or injury within the seven-day
time frame. Instead, these commenters stated that railroads should be
held accountable for the actions of their supervisory personnel who
knowingly fail to report accidents or injuries that occur to railroad
employees. Rail labor representatives acknowledged that railroad policy
can, and often does, require more immediate notice than that proposed
by FRA, but they also stated that FRA's proposal did not in any way
hinder the right of railroads to establish their own policy regarding
the timeliness of injury or illness reporting. Rail labor also stated
that the proposed regulations should contain language that would
suspend the employee's seven-day notification in writing requirement in
the event of a severe injury which may prevent the employee from
complying with this provision.
In response to the proposal to require railroads to provide
employees with a copy of the completed injury and illness log (proposed
Sec. 225.39(b)), rail labor representatives stated that an employee
should be notified that his or her case has been reported to FRA by
either U.S. mail or by hand delivery in a sealed envelope on the
property at a time when the employee would regularly receive other
company correspondence. Rail labor supported the proposal to exempt the
railroad from the seven-day notification requirement when compliance
would not be possible due to a severe injury.
Final Rule
FRA does not adopt the proposed seven-day employer notification
requirement. Similarly, FRA does not adopt the proposal that would
require railroads to provide employees a copy of the completed
``Railroad Employee Injury and/or Illness Record'' within the
prescribed time limit of seven days. However, as discussed previously
in this preamble, Sec. 225.25(c) does require each railroad to provide
the employee, upon his or her request, a copy of either the completed
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
or the alternative railroad-designed record, as well as a copy of any
other form, record, or report filed with FRA or held by the railroad
pertaining to the employee's injury or illness. Section 225.25(c) thus
eliminates the seven-day time limit in which to accomplish this
requirement. By providing this requested information, the employee will
have the opportunity to assess why, or why not, a particular event was,
or was not, reported to FRA.
FRA believes that requiring a paper trail to prove that employees
were in fact notified of how the railroad reported their injury, with a
receipt, places an unnecessary burden on railroads. Problems also exist
with the seven-day requirement in the case where the injured employee
may not be at his or her residence during this time period.
FRA believes that the amended recordkeeping requirements in
Sec. 225.25 will provide injured and ill railroad employees a means by
which to review
[[Page 30959]]
and verify the reporting status of their injury or illness.
F. Reporting Threshold
FRA has periodically adjusted the reporting threshold based on the
prices of a market basket of railroad labor and materials. The purpose
of these adjustments has been to maintain comparability between
different years of data by having the threshold keep pace with
equipment and labor costs so that each year the same groups of
accidents are included in the reportable accident counts.
Congress has given FRA some direction for modifying the procedure
for calculating the threshold in 49 U.S.C. 20901(b) (formerly contained
at section 15(a) of the Rail Safety Enforcement and Review Act (Pub. L.
102-365)): ``[i]n establishing or changing a monetary threshold for the
reporting of a railroad accident or incident, * * * damage cost
calculations'' shall be based ``only on publicly available information
obtained from (A) the Bureau of Labor Statistics; or (B) another
department, agency or instrumentality of the United States Government
if the information has been collected through objective, statistically
sound survey methods or has been previously subject to a public notice
and comment process in a proceeding of a Government department, agency,
or instrumentality.'' Congress allows an exception to this general rule
only if the necessary data is not available from the sources described,
and only after public notice and comment.
Proposal
FRA proposed to obtain in October, of the year that it would
publish a final rule on accident reporting, the latest Producer Price
Index (``PPI'') and National Employment Hours and Earnings figures from
the Department of Labor's Bureau of Labor Statistics (``BLS''). At that
time, the latest final figures, as opposed to preliminary figures,
would be available to cover the period through June of that year. In
October of each subsequent year, FRA would obtain the latest 12 months
of final BLS figures and calculate the threshold for the upcoming year,
publishing the new figure in the Federal Register prior to its
implementation.
Proposed Equation
Specifically, FRA proposed to use data from the U.S. Department of
Labor, LABSTAT Series Reports for calculating the threshold. The
equation used to adjust the reporting threshold would be based on the
average hourly earnings reported for Class I railroads and an overall
railroad equipment cost index determined by the BLS. The two factors
would be weighted equally.
For the wage component, FRA proposed to use LABSTAT Series Report,
Standard Industrial Classification (SIC) code 4011 for Class I Railroad
Average Hourly Earnings. For the equipment component, FRA proposed to
use LABSTAT Series Report, Producer Price Index (PPI) Series WPU 144
for Railroad Equipment. In the month of October of each year, FRA would
obtain from the BLS, finalized cost data covering the twelve-month
period ending with the month of June. The monthly figures would then be
totaled and divided by twelve to produce annual averages. The wage data
would be reported in terms of dollars earned per hour, while the
equipment cost data would be indexed to a base year of 1982.
As proposed in the NPRM, the procedure for adjusting the reporting
threshold is shown in the formula below. The wage component appears as
a fractional change relative to the prior year, while the equipment
component is a difference of two percentages which must be divided by
100 to present it in a consistent fractional form. After performing the
calculation, the result would be rounded to the nearest $100.
Formula
[GRAPHIC] [TIFF OMITTED] TR18JN96.000
Where:
Wn = New average hourly wage rate ($)
Wp = Prior average hourly wage rate ($)
En = New equipment average PPI value
Ep = Prior equipment average PPI value
The current weightings represent the general assumption that damage
repair costs, at levels at or near the threshold, are split
approximately evenly between labor and materials.
Comments
The few comments received in response to the proposal to amend the
calculation of the monetary accident reporting threshold using publicly
available data were favorable.
Final Rule
The formula to calculate the monetary accident reporting threshold
is adopted as proposed. FRA will gather the necessary data in October
1996 and will issue a notice in the Federal Register announcing the
revised threshold dollar value. The threshold will then become
effective beginning January 1, 1997.
G. Miscellaneous Amendments
This segment of the final rule outlines a number of amendments to
various sections of the rule text.
1. Section 225.3 Applicability
Section 225.3 defines the applicability of the accident reporting
regulations. FRA's delegated regulatory authority under 49 U.S.C. 20101
et seq. (formerly contained in the Federal Railroad Safety Act of 1970
(the ``FRSA'') (45 U.S.C. 431 et seq.)) permits FRA to amend the
current applicability sections of its various regulations so as to
contract the populations of railroads covered by a particular set of
regulations or to expand them to the full extent of that authority.
FRA, as the Secretary's delegate, has had jurisdiction over all
``railroads'' since the FRSA was enacted. In 1988, Congress amended the
older railroad safety laws, including the Accident Reports Act, to
conform their reach to that of the FRSA (while also extending FRA's
safety jurisdiction to certain other fixed guideway systems). There is
a very wide range of operations that could be considered tourist
railroads under the broadest reading of the term ``railroad.''
Beginning in 1992, FRA announced that the Agency intended to exercise
jurisdiction over ``non-insular'' railroads that are not part of the
general railroad system and that Part 225, among certain laws and
regulations, applies to those entities in the same manner as railroads
that are part of the general system. Tourist railroads have written
several letters to members of Congress questioning the basis for FRA's
assertion of jurisdiction. Additionally, in 1992, FRA received a
petition from a scenic railway requesting that regulations be tailored
specifically to the tourist rail industry.
Proposal
In an effort to clarify the proper extent of the exercise of FRA's
jurisdiction,
[[Page 30960]]
FRA announced several principles that would be used as guidelines. FRA
stated that it would exercise jurisdiction over all tourist operations,
whether or not they operate over the general railroad system, except
those that are (1) less than 24 inches in gage and/or (2) insular.
To determine insularity, FRA described criteria that would measure
the likelihood that a railroad's operations might affect a member of
the public. FRA stated that a tourist operation is insular if its
operations were limited to a separate enclave in such a way that there
is no reasonable expectation that the safety of any member of the
public (except a business guest, a licensee of the tourist operation or
an affiliated entity, or a trespasser) would be affected by the
operation. An operation would not be considered insular if one or more
of the following exists on its line: (a) A public highway-rail crossing
that is in use; (b) an at-grade rail crossing that is in use; (c) a
bridge over a public road or waters used for commercial navigation; or
(d) a common corridor with a railroad, i.e., its operations are within
30 feet of those of any railroad. Thus, the mere fact that a tourist
operation was not connected to the general system did not make it
insular under these criteria. While these criteria tend to sort out the
insular theme parks and museums, a need to do case-by- case analysis in
certain close situations still existed.
As a matter of clarification, FRA proposed to conform Part 225 to
its policy on exercise of jurisdiction so that Part 225 would apply to
non-general system, non-insular tourist operations confined to an
installation that is not part of the general system (i.e., it is a
stand-alone with no freight traffic but has one or more features that
preclude its being considered insular).
Comments
The Association of Railway Museums, Inc. (ARM), the Tourist
Railroad Association, and the Illinois Railway Museum, strongly opposed
this proposal. In general, these commenters made the following
assertions:
(a) Any requirements imposed on railway museum operations should
also be imposed on amusement park railroads.
(b) The non-accident information requirements would be extremely
costly and burdensome, and the imposition of the proposed requirements
would be contrary to the Regulatory Flexibility Act and the Swift Rail
Development Act.
(c) The insular/non-insular railroad criteria proposed by FRA to
determine which non-general system passenger railroads would be subject
to regulations is irrational and arbitrary. Regulatory burdens are
focused on an insignificant sector of non-general system passenger
railroads since large amusement park rail operations that haul millions
of passengers a year would be excluded from the regulations.
(d) FRA's practice of subjecting museum and tourist railroads to
multiple rulemaking proceedings is extremely burdensome. These
commenters urged FRA to deal with museum and tourist railroad issues in
a separate, single proceeding.
Final Rule
Section 225.3 Applicability
Tourist railroad commenters had no objections to the proposed
accident reporting requirements, but did oppose the non-accident
information requirements due to the costs and burdens of collecting
what they believed to be information of little value and use to FRA.
These commenters further stated that any requirements imposed on the
tourist/museum railroads should likewise be imposed on amusement park
railroads. These commenters, in essence, are stating that since FRA
does not require the amusement park railroads to be subject to Part
225, nor should FRA require the tourist, excursion, scenic, and museum
railroads to be subject to the requirements of Part 225. FRA does not
believe that exclusion of part of one industry (insular amusement park
railroads) compels the exclusion of other parts of an industry (non-
insular tourist and museum railroads). The accident reporting
regulations set forth in Part 225 have always applied to non-general
system, non-insular railroad operations, e.g., a tourist railroad that
confines its operations to an installation that is not part of the
general system. Exclusion of insular amusement park railroads is not
irrational given state and local regulation of these entities as
amusements.
Consequently, Sec. 225.3 states that Part 225 will apply to all
railroads except (a) A railroad that operates freight trains only on
track inside an installation which is not part of the general railroad
system of transportation or that owns no track except for track that is
inside an installation that is not part of the general railroad system
of transportation; (b) rail mass transit operations in an urban area
that are not connected with the general railroad system of
transportation; and (c) a railroad that exclusively hauls passengers
inside an installation that is insular or that owns no track except for
track used exclusively for the hauling of passengers inside an
installation that is insular.
An operation will not be considered insular if one or more of the
following exists on its line: (1) A public highway-rail grade crossing
that is in use; (2) an at-grade rail crossing that is in use; (3) a
bridge over a public road or waters used for commercial navigation; or
(4) a common corridor with a railroad, i.e., its operations are within
30 feet of those of any railroad.
FRA appreciates the concerns of small tourist operations that
reviewing applicability of individual parts of the Code of Federal
Regulations (CFR) in individual proceedings involves some burden on
commenters. In order to foster broader and better coordinated dialogue
with small rail passenger operations, FRA has established, within the
Railroad Safety Advisory Committee (RSAC), a Tourist and Historic
Railroads Working Group. This Working Group will review applicability
of current and future regulations to these entities.
As discussed previously, legislation before Congress (the
``Department of Transportation Regulatory Reform Act of 1996'') would
amend 49 U.S.C. 20901(a) to eliminate the requirement that railroads
file notarized monthly accident/incident reports with FRA. The
amendment would allow the Secretary to specify the frequency with which
reports must be filed; provide discretion to set different reporting
requirements for different classes of railroads; and facilitate
electronic filing and a corresponding reduction in paper filings. This
amendment would particularly benefit the tourist, excursion, scenic and
museum rail industries which may have no events to report for a
particular month.
2. Section 225.5 Definitions
Section 225.5 lists definitions applicable to part 225. FRA
proposed that Sec. 225.5 be reorganized so that definitions would
appear in alphabetical order and without paragraph designations.
Definitions proposed for revision included: ``accident/incident,''
``employee human factor,'' ``medical treatment,'' ``occupational
illness,'' and ``railroad.'' New terms proposed for addition to the
list of definitions included: ``day away from work,'' ``day of
restricted work activity,'' ``establishment,'' ``first aid treatment,''
``FRA representative,'' ``nonreportable injury or illness,''
``nonreportable rail equipment accident/incident,'' ``non-train
incident,'' ``person,'' ``qualified health care professional,'' ``train
accident,'' ``train
[[Page 30961]]
incident,'' ``volunteer,'' ``work environment,'' ``worker on duty,''
and ``work related.'' Finally, FRA proposed deletion of the definitions
of ``lost workdays'' and ``restriction of work or motion.''
As discussed previously in this preamble, the proposed term
``recordable'' is replaced with the term ``accountable'' for purposes
of defining those injuries/illnesses and rail equipment accidents/
incidents which are not reportable to FRA but which are required to be
recorded on the appropriate injury/illness and rail equipment accident/
incident record.
Also note that ``railroad'' has been redefined to mean a person
providing railroad transportation. The old definition for ``railroad''
has been reassigned to the term ``railroad transportation.'' Further,
the definition of ``accident/incident'' is redefined in the final rule
to conform to the amendment of Sec. 225.19(d).
Train Accident
Proposed Rule
A ``train accident'' was defined as any collision, derailment,
fire, explosion, act of God, or other event involving operation of
railroad on-track equipment (standing or moving) that results in
reportable damages greater than the current reporting threshold to
railroad on-track equipment, signals, track, track structures, and
roadbed.
Comments
No comments received.
Final Rule
Adopted as proposed.
Train Incident
Proposed Rule
A ``train incident'' was defined as an event involving the movement
of on-track equipment that results in a reportable casualty but does
not cause reportable damage above the threshold established for train
accidents.
Comments
No comments received.
Final Rule
Adopted as proposed.
Employee Human Factor
Proposed Rule
In the definition of ``employee human factor,'' the proposed rule
removed reference to ``cause code 506'' because it was obsolete and
replaced it with the term ``train accident cause codes pertaining to
non-railroad employees.''
Comments
No comments received.
Final Rule
The definition of ``railroad employee human factor'' removes
reference to ``cause code 506'' and is amended so as to capture the
classifications for a ``Worker on Duty-- Employee,'' ``Employee not on
Duty,'' ``Worker on Duty-- Contractor,'' and ``Worker on Duty--
Volunteer.''
Medical Treatment
Proposed Rule
``Medical treatment'' was defined to include any medical care or
treatment beyond ``first aid'' regardless of who provided such
treatment. The definition would not include diagnostic procedures, such
as X-rays or drawing blood samples.
Comments
Several commenters believed the proposed change to the definition
of ``medical treatment'' would create confusion. Commenters questioned
whether employees who sought their own treatment, such as purchasing a
sling for a strained arm, would qualify as ``medical treatment.'' They
also questioned whether the definition would include the scenario where
an employee chooses to take leftover prescribed medication to treat his
or her injury or illness. Railroad representatives stated that the
determination of appropriate treatment and the administration of
reportable medical attention should be performed solely by licensed
physicians and medical professionals working under the direction of
physicians. These commenters urged FRA to retain the current definition
of ``medical treatment'' to reduce the probability of confusion and
possible abuse by employees who may jeopardize their treatment.
Final Rule
The definition of ``medical treatment'' is adopted as proposed with
minor modification. FRA's definition of ``medical treatment'' is
intended to remove the association between the type of treatment
rendered and the person who provided the treatment. If a physician
treats an injury using first aid measures, the treatment is
nonreportable even though a highly skilled medical person administered
the care. Conversely, someone with medical skills less than those of a
physician (M.D.) may provide medical treatment for a condition.
Generally, injuries that are self-treated would not satisfy the
reporting requirements since the employee would not normally have the
credentials of a ``qualified health care professional.'' However, an
employee engaged in self-treatment may later have complications making
the treatment ``reportable.'' For example, an employee may drill or
puncture a finger nail at the work site so as to remove pressure from
the blood that has pooled beneath the nail (a nonreportable injury at
this point). If the nail should later become infected requiring
treatment by a ``qualified health care professional,'' then the
railroad must report the injury.
Medical treatment does not include preventive emotional trauma
counseling provided by the railroad's employee counseling and
assistance officer unless the participating worker has been diagnosed
as having a mental disorder that was significantly caused or aggravated
by an accident/incident and this condition requires a regimen of
treatment to correct. Further, the railroad's employee counseling and
assistance officer rendering counseling to an employee diagnosed with
such a mental disorder meets the definition of a ``qualified health
care professional'' as discussed later in this preamble.
Occupational Illness
Proposed Rule
In the definition of ``occupational illness,'' FRA proposed that
the reference to ``his or her railroad employment'' be replaced with
the phrase ``worker's railroad employment.''
Comments
No comments received.
Final Rule
The definition of ''occupational illness'' is amended so as to
include and capture occupational illnesses of the classifications of
``Worker on Duty--Employee,'' ``Worker on Duty--Contractor,'' and
``Worker on Duty--Volunteer.''
Railroad and Railroad Transportation
Proposed Rule
``Railroad'' was defined as it is in 49 U.S.C. 20102(1) (formerly
contained in the Federal Railroad Safety Act of 1970 (45 U.S.C.
431(e)).
Comments
No comments received.
Final Rule
The proposed definition for ``railroad'' is correctly reassigned to
the term ``railroad transportation.'' Note that ``railroad'' is
redefined to mean a person providing railroad transportation, which
[[Page 30962]]
is the definition of ``railroad carrier'' in 49 U.S.C. 20102(2).
Day Away From Work
Proposed Rule
``Day away from work'' was defined as any day subsequent to the day
of the injury or diagnosis of occupational illness that a railroad
worker does not report to work for reasons associated with his or her
condition.
Comments
No comments received.
Final Rule
Adopted as proposed.
Day of Restricted Work Activity
Proposed Rule
A ``day of restricted work activity'' was defined as any day that a
worker is restricted in his or her job following the day of the injury
or diagnosis of occupational illness.
Comments
No comments received.
Final Rule
Adopted as proposed.
Establishment
Proposed Rule
``Establishment'' was defined as a physical location where workers
report to work, where business is conducted or where services or
operations are performed.
Comments
Some commenters proposed that ``establishment'' should be defined
as one single, central location. Others suggested that ``each railroad
establishment'' should be consistently interpreted to require posting
of reports at ``designated assembly points where employees report for
work.'' These commenters stated that such posting would not place an
undue administrative burden on the railroad as railroads are already
required under most collective bargaining agreements to regularly post
and/or distribute job bulletins, awards and certain notices. They
further stated each railroad should be required to identify
``establishments'' where pertinent records are maintained.
Some commenters stated that each railroad should be authorized to
designate the ``establishments'' for which it would tabulate injury and
illness data and at which ``establishments'' records would be
maintained. They further commented that the railroad would provide FRA
with a list of establishments it has designated and would inform FRA of
periodic changes to its list.
Final Rule
The definition of ``establishment'' is adopted as proposed. In
order to provide compatible counts for the railroad industry that
duplicate those being reported by all other industries to the
Department of Labor, FRA needs a total count of the number of railroad
``establishments'' that exist in the country. Thus, the block
soliciting information on ``Establishments Included in this Report''
appears on the ``Annual Railroad Report of Employee Hours and
Casualties, by State'' (Form FRA F 6180.56) as block ``4.'' In the
NPRM, FRA proposed that railroads must maintain certain records ``at
and for'' each establishment. The final rule, in Secs. 225.25 and
225.27, states that records must be maintained for each establishment,
but that centralization of recordkeeping may be performed at any
location(s), as long as prescribed accessibility requirements are met.
Refer to Sec. 225.35 for a discussion of ``access to records and
reports.''
First Aid Treatment
Proposed Rule
``First aid treatment'' was defined as being limited to simple
procedures used to treat minor conditions, such as abrasions, cuts,
bruises, or splinters. First aid treatment is typically confined to a
single treatment and does not require special skills or procedures.
Comments
Commenters requested that FRA clarify the definition of ``first aid
treatment'' in order to reduce or eliminate confusion as to what
actually constituted such treatment.
Final Rule
The definition of ``first aid treatment'' is adopted as proposed.
FRA believes this definition is adequate and the examples of first aid
treatments found in the FRA Guide are sufficient to assist the
reporting officer in identifying which treatments are reportable and
which are nonreportable. FRA intends to review the examples in the FRA
Guide to determine if any additional examples and/or guidance
pertaining to ``first aid treatment'' and ``medical treatment'' would
be beneficial to the railroad reporting officer.
FRA Representative
Proposed Rule
``FRA representative'' was defined to include the Associate
Administrator for Safety, FRA; the Associate Administrator's delegate
(including a qualified State inspector acting under part 212 of this
chapter); the Chief Counsel, FRA; or the Chief Counsel's delegate.
Comments
No comments received.
Final Rule
Adopted as proposed.
Non-Train Incident
Proposed Rule
A ``non-train incident'' was defined as an event that results in a
reportable casualty, but does not involve the movement of on-track
equipment nor cause reportable damage above the threshold established
for train accidents.
Comments
No comments received.
Final Rule
Adopted as proposed.
Person
Proposed Rule
``Person'' was defined to add independent contractors and their
employees and workers, as well as volunteers.
Comments
No comments received.
Final Rule
Adopted as proposed.
Qualified Health Care Professional
Proposed Rule
A ``qualified health care professional'' was defined to include a
professional operating within the scope of his or her license,
registration, or certification. For example, an otolaryngologist is
qualified to diagnose a case of noise-induced hearing loss and identify
potential causal factors, but may not be qualified to diagnose a case
of silicosis. FRA also asked for comments regarding whether the
railroad's employee assistance officer (EAO) should be considered a
``qualified health care professional'' when he or she provides
counseling to an employee who has experienced traumatic stress from
involvement in a serious or fatal accident.
Comments
Some rail labor representatives commented that the proposed
definition was reasonable and that there was no need to restrict the
definition of a ``qualified health care professional'' to an ``M.D.''
as long as the treating or
[[Page 30963]]
attending individual was qualified and operated within the scope of his
or her license, registration, or certification. However, some of these
commenters stated that the railroad's employee assistance officer (EAO)
should not be considered a ``qualified health care professional'' when
he or she counsels employees on a preventive basis.
Several railroad representatives stated that the definition should
remain as broad as possible and that the railroad's EAO should be
considered a ``qualified health care professional.'' Some of these
commenters further emphasized that FRA should make it clear that when
prescribed medical treatment is refused by an employee, the injury
should continue to be considered reportable, provided such medical
treatment meets reportability criteria.
Other railroad representatives opposed the definition because they
believed that the latitude resulting from the proposed definition would
allow treatment by nearly anyone who claimed to be a health care
professional. One example offered by a major carrier involved the
situation where a registered massage therapist, qualified to diagnose
muscle strain due to work stress, could provide ``treatments'' which
would cause the injury to be reportable. These commenters emphasized
that the definition of a ``qualified health care professional'' should
be restricted to physicians who are universally recognized as capable
of diagnosing and treating individuals for illnesses and injuries.
Final Rule
The definition of ``qualified health care professional'' is adopted
as proposed. However, the railroad's employee assistance officer (EAO)
is considered a ``qualified health care professional'' when he or she
provides counseling to an employee who has been diagnosed as having a
mental disorder that was significantly caused or aggravated by an
accident/incident, and this condition requires a regimen of treatment
to correct.
As discussed previously in this preamble under the definition of
``first aid'' treatment, many reportable injuries can be treated by a
``qualified health care professional'' who is not a physician, i.e.,
who does not hold an M.D. Likewise, a physician (M.D.) may perform
first aid treatment. In many instances, emergency medical treatment is
performed in the absence of physicians. With all the variables, FRA
believes that limiting the definition of ``qualified health care
professional'' to encompass only physicians, would result in the
underreporting of many injuries that require more than first aid
treatment, thus rendering the injury reportable.
Volunteer
Proposed Rule
``Volunteer'' was defined to include individuals who willingly
perform a service for the reporting railroad, who do not receive direct
monetary compensation from that railroad and who are not involved in
either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the reporting railroad as described in
Sec. 209.303.
Comments
Please refer to the detailed discussion of the definition of
``Volunteer'' in the preamble to this rule in the section entitled
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
The following definitions will not appear in Sec. 225.5. They will
however, be defined in the next revised FRA Guide.
Worker on Duty--Volunteer (Class H) is a volunteer who does not
receive direct monetary compensation from the railroad and who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Volunteer--Other (Class I) is a volunteer who does not receive
direct monetary compensation from the railroad and who is not engaged
in either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the railroad as defined in Sec. 209.303.
Worker on Duty--Contractor (Class F) is an employee of a contractor
who does not receive direct monetary compensation from the railroad and
who, while on railroad property, is engaged in either (i) the operation
of on-track equipment or (ii) any other safety-sensitive function for
the railroad as defined in Sec. 209.303.
Contractor--Other (Class G) is an employee of a contractor who does
not receive direct monetary compensation from the railroad and who is
not engaged in either (i) the operation of on-track equipment or (ii)
any other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Work Environment
Proposal
``Work environment'' was defined as the physical location,
equipment, materials processed or used, and activities of a worker
associated with his or her work, whether on or off the railroad's
property.
Comments
No comments received.
Final Rule
Adopted as proposed.
Work Related
Proposed Rule
``Work related'' was defined as relating to any incident, activity,
exposure, etc. occurring within the work environment.
Comments
No comments received.
Final Rule
Adopted as proposed.
Worker on Duty
Proposal
A ``worker on duty'' was defined as an individual who receives
direct monetary compensation from the railroad or who is engaged in
either (i) the operation of on-track equipment or (ii) with any other
safety-sensitive function as described in Sec. 209.303.
Comments
Please refer to the detailed discussion of the definition of
``Worker on Duty'' in the preamble to this rule in the section entitled
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
Worker on Duty--Employee (Class A) is defined as an individual who
receives direct monetary compensation from the railroad. Please note
that this definition will not appear in Sec. 225.5, but will appear in
the next revised FRA Guide.
Lost Workdays and Restriction of Work or Motion
Proposal
FRA proposed deletion of the definitions for ``Lost Workdays'' and
``Restriction of Work or Motion.''
Comments
No comments received.
Final Rule
Adopted as proposed.
3. Section 225.7 Public Examination and Use of Reports Proposal
In Sec. 225.7(a), FRA proposed that the reference to ``Executive
Director'' would be removed as obsolete, and would be replaced with
``Office of Safety.'' Thus, written requests for a copy of any report
would be addressed to the Office of Safety at FRA.
[[Page 30964]]
In Sec. 225.7(b), FRA proposed that ``Accident Reports Act'' would
replace the erroneous reference to ``Accidents Reports Act.''
Comments
No comments received.
Final Rule
Section 225.7 Public Examination and Use of Reports
Section 225.7(a) removes reference to ``Executive Director'' and
replaces it with ``Freedom of Information Officer, Office of Chief
Counsel.'' Thus, written requests for a copy of any report would be
addressed to the Freedom of Information Officer, Office of Chief
Counsel, at FRA.
The statutory reference also is revised to reflect the 1994 repeal
of the Accident Reports Act and the simultaneous revision and
reenactment without substantive change of its provisions in title 49 of
the United States Code.
4. Section 225.11 Reporting of Accidents/Incidents Proposal
As proposed, Sec. 225.11 would be revised to reflect that reports
identified in Sec. 225.19 submitted via magnetic media or
electronically, over telephone lines, would be due within 30 days after
the end of the month in which the accident/incident occurred.
Comments
No comments received.
Final Rule
Section 225.11 Reporting of Accidents/Incidents
Adopted as proposed. Additionally, this section is amended to
identify the office, i.e., RRS-22, within the Office of Safety, where
one may obtain a copy of the ``FRA Guide for Preparing Accidents/
Incidents Reports.''
5. Section 225.12 Rail Equipment Accident/Incident Reports Alleging
Employee Human Factor as Cause; Employee Human Factor Attachment;
Notice to Employee; Employee Supplement
Final Rule
Since employee human factor is redefined to include the
classifications of Worker on Duty--Employee, Employee not on Duty,
Worker on Duty--Contractor, and Worker on Duty--Volunteer,
Sec. 225.12(a) is amended to clarify that, for purposes of this
section, ``employee'' is defined to include Worker on Duty--Employee,
Employee not on Duty, Worker on Duty--Contractor, or Worker on Duty--
Volunteer.
6. Section 225.19 Primary Groups of Accidents/Incidents Proposal
Proposed revisions to Secs. 225.19 (a) and (b) would remove
reference to the current threshold of ``$6,300'' and would replace it
with the phrase ``current reporting threshold.''
Section 225.19(d) identifies the third group of accidents (``death,
injury or occupational illness'') that are to be reported on Form FRA F
6180.55a. FRA proposed that the language be simplified to read as
follows: ``Each event arising from the operation of a railroad, must be
reported on Form FRA F 6180.55a, if it results in (1) death to any
person; (2) injury to any person that requires medical treatment; (3)
injury to a railroad worker that results in (i) a day away from work;
(ii) restricted work activity or job transfer; or (iii) loss of
consciousness; or (4) occupational illness of a railroad worker.
Comments
No comments received.
Final Rule
Section 225.19 Primary Groups of Accidents/Incidents
Adopted as proposed. Additionally, Sec. 225.19(e) is added to
clarify that the current accident/incident reporting threshold of
$6,300 is effective until FRA amends that amount and provides notice in
the Federal Register.
7. Section 225.21 Forms
Proposal
In addition to the revisions to the titles of the forms listed in
Sec. 225.21, FRA proposed that the reference to ``Class I and II line-
haul and terminal and switching railroads'' in Sec. 225.21(b), would be
removed as obsolete, and replaced with ``All railroads subject to this
part.''
Because FRA proposed deletion of the annual summary report (as
discussed previously in this preamble), reference to Form FRA F 6180.45
(entitled ``Annual Summary Report of Railroad Injury and Illness'') in
Sec. 225.25(f) would be removed.
The Records discussed in new Secs. 225.25 (a) and (b) and in
Secs. 225.25 (d) and (e) and the alternative, railroad-designed records
would be added to the list of forms as Sec. 225.21(h) (Form FRA F
6180.98--Railroad Employee Injury and/or Illness Record) and as
Sec. 225.21(i) (Form FRA F 6180.97--Initial Rail Equipment Accident/
Incident Record).
Comments
No comments received.
Final Rule
Section 225.21 Forms
Adopted as proposed.
8. Section 225.29 Penalties
Proposal
Section 225.29 identifies the penalties FRA may impose upon any
person that violates any requirement of this part. FRA proposed
amendment to the language of this section to reflect the 1992
amendments to the Federal Railroad Safety Act of 1970 which increased
the minimum penalty and settlement per violation to $500.
Comments
No comments received.
Final Rule
Section 225.29 Penalties
Adopted as proposed.
9. Section 225.35 Access to Records and Reports
Proposal
FRA inspectors frequently encounter reluctance from the railroads
when examining and photocopying claims department records, particularly
railroad employee medical records. FRA proposed that FRA
representatives, or any representative of a State participating in
investigative and surveillance activities under the Federal railroad
safety laws and regulations, must have access to all records, reports,
logs, and supplementary records related to (a) rail equipment
accidents/incidents, including collisions and derailments; (b) highway-
rail grade crossing accidents/incidents; (c) death, injuries, and
illnesses, including claims and medical records; as well as all records
and reports identified in Sec. 225.25, for examination and photocopying
(at no expense to the representative) in a reasonable manner during
normal business hours. Further, a penalty was proposed for each
instance the railroad denies a representative access to any record,
report, log, and supplementary record identified above.
Comments
Most railroads representatives stated that the requirement for
records to be maintained at one or more central locations was far too
stringent and impracticable. In contrast, rail labor representatives
agreed with the FRA proposal that railroads should have a hard copy of
all records on file at a
[[Page 30965]]
central location designated by that railroad and that such records
should be easily and readily accessible upon request.
Final Rule
Section 225.35 Access to Records and Reports
Section 225.35 requires that each railroad must have at least one
location, and must identify the location(s), where both federal and
State inspectors, and authorized representatives, have centralized
access to a copy of all records and reports provided for in this Part.
Each railroad must identify at least one location where a copy of any
record or report is accessible for inspection by maintaining a list of
such establishments in the office where the railroad's reporting
officer conducts his or her business. Further, inspectors and
representatives must be able to access within a reasonable time, but in
any event no later than four business hours after the request, a hard
copy of the signed ``Rail Equipment Accident/Incident Report'' (Form
FRA F 6180.54) and the ``Highway-Rail Grade Crossing Accident/Incident
Report'' (Form FRA F 6180.57), as well as a hard copy of all other
records and reports pursuant to Part 225. This requirement also
includes access to a hard copy of any report submitted to FRA via
magnetic media or, electronically, over telephonic lines, and also
includes copies of the records and reports identified in Sec. 225.25.
Note that the requirement under Sec. 225.35 does not state that
original records and reports must be kept at a centralized location by
the railroad. Rather, it states that each railroad must have a list (in
the office where the railroad's reporting officer conducts his or her
official duties/business) which identifies at least one location where
a copy of all records and reports pursuant to Part 225 may be accessed
by the inspector or other authorized representative. The four business
hours time period affords railroads sufficient time to fulfill any
record request.
10. Appendix A Schedule of Penalties
Proposal
FRA proposed that Appendix B to Part 225 would be redesignated as
Appendix A and would be revised to add penalties for the following
sections: Sec. 225.33, ``Failure to Adhere to the Internal Control
Plan''; Sec. 225.39, ``Failure to Inform Employer of Injury and/or
Illness'' and ``Failure to Provide Employee with a Copy of Form FRA F
6180.98''; and Sec. 225.35, ``Access to Records and Reports.''
Additionally, the rule proposed that the dual entries under each of
paragraphs (a), (b), and (d) of Sec. 225.12 would be coded ``(1)'' and
``(2),'' respectively, to allow the proper entry of data into FRA's
enforcement database. Further, the penalties for violations of
Sec. 225.12(a) code (2) would be increased, in light of the 1992
amendments to the Federal Railroad Safety Act of 1970 which increased
the minimum penalty and settlement to $500.
Comments
Railroad representatives opposed the addition of any penalty. Rail
labor representatives opposed the addition of a penalty against the
employee for his or her ``failure to notify the railroad within seven
calendar days of incurring an injury or illness'' but favored the
addition of a penalty for both Sec. 225.33, the railroad's failure to
adhere to its Internal Control Plan, and Sec. 225.39, the railroad's
failure to provide the employee with a copy of Form FRA F 6180.98 (the
``Railroad Employee Injury and/or Illness Record'').
Final Rule
Appendix A Schedule of Penalties
The Schedule of Civil Penalties, Appendix A, contains additional
penalties for violations of Sec. 225.33(1), ``Failure to Adopt the
Internal Control Plan''; Sec. 225.33(2), ``Inaccurate Reporting due to
Failure to Comply with the Internal Control Plan''; Sec. 225.33(3),
``Failure to Comply with the Intimidation/Harassment Policy in the
Internal Control Plan''; and Sec. 225.35, ``Access to Records and
Reports.'' The dual entries under each of paragraphs (a), (b), and (d)
of Sec. 225.12 are coded ``(1)'' and ``(2),'' respectively, to allow
the proper entry of data into FRA's enforcement database. The penalties
for violations of Sec. 225.12(a) code (2) are increased, in light of
the 1992 amendments to the Federal Railroad Safety Act of 1970 which
increased the minimum penalty and settlement to $500.
11. Revision of Title 49, United States Code
On July 5, 1994, all the general and permanent Federal railroad
safety laws were simultaneously repealed, reenacted without substantive
change, and recodified as positive law in Title 49 of the United States
Code by Public Law 103-272. Due to this change, Part 225 is amended
throughout to reference the newly codified provisions.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule has been evaluated in accordance with existing
regulatory policies and procedures and is considered to be a
nonsignificant regulatory action under DOT policies and procedures (44
FR 11034; February 26, 1979). This final rule also has been reviewed
under Executive Order 12866 and is considered ``nonsignificant'' under
that Order.
AAR stated in its written comments that FRA is required by law to
explain its noncompliance with Executive Order 12866. AAR and member
railroads claimed that GAO's 1989 audit on accident/incident reporting
was outdated and that GAO's findings should not be considered for this
rulemaking. GAO's audit concluded that only one railroad, out of the
five it studied, had a written ICP and, only that railroad did not have
serious errors in accident/incident reporting. GAO found that the other
railroads underreported the actual number of reportable accidents and
incidents, and that many of the reports submitted to FRA contained
inaccurate or incomplete information. During the several days of public
hearings and in the written comments provided in response to this
rulemaking, there was no statement from any party that an independent
audit was conducted by any railroad to determine whether that railroad
was properly reporting accidents and incidents; nor did any railroad
state that even an internal audit was performed to determine whether
the GAO audit was in fact outdated. Based on the lack of empirical
evidence, FRA rejects AAR's claim that it is in noncompliance with
Executive Order 12866.
Although the rulemaking is ``nonsignificant,'' FRA nonetheless has
prepared a regulatory impact analysis addressing the economic impact of
the final rule. The regulatory evaluation estimates the economic costs
and consequences of this final rule as well as its anticipated benefits
of the impact. This regulatory impact analysis has been placed in the
docket and is available for public inspection and copying during normal
business hours in Room 8201, Office of Chief Counsel, FRA, 400 Seventh
Street, SW., Washington, DC 20590. Copies may also be obtained by
submitting a written request to the FRA Docket Clerk at the above
address. FRA has assessed quantitative measurements of the costs and
benefits expected from the implementation of this rule. The Net Present
Value (NPV) of the net costs is
[[Page 30966]]
$2.34 million or, $117,000 per year. Over a 20-year period, the NPV of
the estimated quantifiable societal benefits is $2.62 million, and the
NPV of the estimated quantifiable societal costs is $4.96 million.
Assuming the improved data generated by this rule led to regulatory
decisions that provided the margin of safety necessary to prevent even
one rail-related death over 20 years, this rule would produce
quantified benefits equaling the quantified costs. Thus, it is FRA's
position that the qualitative benefits as a result of this final rule,
i.e., the collection of consistent and uniform data and the value of
well focused regulatory decisions and properly targeted compliance
activities, will far exceed the costs.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities,
unless the Secretary certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Some small entities (e.g., tourist, scenic, museum and excursion
railroads) expressed a concern for FRA's accident reporting NPRM due to
the proposal to include ``Volunteers'' who perform safety-sensitive
functions or who operate on-track equipment in the ``Worker on Duty''
classification. This concern was based on the fact that tourist
railroads would have to collect and report to FRA the number of safety-
sensitive hours its volunteers worked each month. Tourist and museum
railroads viewed this proposal as being excessively burdensome. This
final rule revises this proposal so that there are new categories for
the classification of ``Volunteer'' on Form FRA F 6180.55. Further, the
final rule eliminates the proposal that would have required railroads
to collect and report any of the hours worked by volunteers.
The final rule requires railroads to implement an Internal Control
Plan (ICP) for their railroad accident reporting process. This
requirement is a process standard that will promote the accuracy of the
reporting process. The requirement does not tell the railroads how to
develop and implement an ICP or how the lines of communication should
be established. Nor does the ICP dictate who is responsible for which
functions or information exchange. The final rule adopts an ICP which
allows railroads greater flexibility in design and implementation.
Therefore, the needs, resources, and suitability of an ICP for each
railroad can be reflected in its implementation. Most small railroads
will be burdened proportionately less by this requirement than large or
medium sized railroads.
Small railroads also expressed some concern for the proposal to
calculate costs associated with damage to (i) On-track equipment, (ii)
signal equipment, (iii) track, (iv) track structures and roadbed, and
(v) costs of equipment rental and operation. The proposed damage
worksheet required the damages to be estimated using the costs
associated with acquiring new parts. This differed greatly from the
current methods that railroads use to estimate accident damages. This
potentially created problems and additional burdens for small railroads
because they generally perform repairs with used or refurbished parts.
This final rule does not adopt this method of calculating accident
damages and does not adopt use of the property damage worksheet by
railroads. The burden on small railroads therefore has been reduced
with elimination of this proposal.
FRA appreciates the concerns small railroads and tourist operations
expressed concerning the impact the accident reporting and other
regulations have on these entities. As stated previously, there is
legislation before Congress (the ``Department of Transportation
Regulatory Reform Act of 1996'') which, if passed, would amend 49
U.S.C. 20901(a) to eliminate the requirement that railroads file
notarized monthly reports with FRA regarding accidents and incidents on
their properties. The amendment also would allow the Secretary to
specify the frequency with which reports must be filed; provide
discretion to set different reporting requirements for different
classes of railroads; and facilitate electronic filing and a
corresponding reduction in paper filings. It is believed these
amendments would reduce unnecessary expense and delay associated with
filing monthly reports, particularly for small railroads and tourist
operations which may have no events to report for a particular month.
In reviewing the economic impact of the rule, FRA has concluded
that it will have a small economic impact on small entities. Therefore,
it is certified that this rule will not have a significant economic
impact on a substantial number of small entities under the provisions
of the Regulatory Flexibility Act.
FRA has prepared a regulatory flexibility assessment addressing the
impact of the final rule on small entities. This regulatory flexibility
assessment has been placed in the docket and is available for public
inspection and copying during normal business hours in Room 8201,
Office of Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC
20590. Copies may also be obtained by submitting a written request to
the FRA Docket Clerk at the above address.
Paperwork Reduction Act
The information collections contained in the accident reporting
NPRM were approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (Pub. L. 104-13) under control
number 2130-0500. This approval will expire on June 30, 1997. This
final rule contains amendments to the approved information collections,
and these revisions are subject to review by OMB under the Paperwork
Reduction Act of 1995. The sections that contain the new and/or revised
information collection requirements and the estimated time to fulfill
each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Proposed section Brief description Estimated average time
----------------------------------------------------------------------------------------------------------------
225.19(b), 225.21(e).............. Form FRA F 6180.57--Highway-Rail Grade 4 hours.
Crossing Accident/Incident Report.
225.19(c), 225.21(a).............. Form FRA F 6180.54--Rail Equipment 2 hours.
Accident/Incident Report.
225.19(d), 225.21(c).............. Form FRA F 6180.55a--Railroad Injury and 10 minutes.
Illness Summary (Continuation Sheet).
225.21(b)......................... Form FRA F 6180.55--Railroad Injury and 45 minutes.
Illness Summary.
225.21(d)......................... Form FRA F 6180.56--Annual Railroad 3 hours.
Report of Manhours and Casualties by
State.
225.21(g)......................... Form FRA F 6180.78--Notice to Railroad 15 min./2 hours.
Employee Involved in Rail Equipment
Accident/Incident Attributed to Employee
Human Factor; Employee Statement
Supplementing Railroad Accident Report.
225.21(h), 225.25(a).............. Form FRA F 6180.98--Railroad Employee 30 minutes.
Injury and/or Illness Record.
225.21(i), 225.25(b).............. Form FRA F 6180.97--Initial Rail 30 minutes.
Equipment Accident/Incident Record.
[[Page 30967]]
225.25(h)......................... Monthly List of Injuries and Illnesses... 5 hours
(Class I RR).
45 minutes (RR with 400,000
manhours or more, excluding
Class I RR).
10 minutes (RR with less than
400,000 manhours)
225.33(a)......................... Internal Control Plans................... 32 hours
(Class I RR).
20 hours (RR with 400,000
manhours or more, excluding
Class I RR))
1.75 hours (RR with less than
400,000 manhours).
225.37(b)(2), 225.37(c)(1)........ FRA F Form 6180.99--Batch Control Form... 10 minutes.
225.25(c)......................... Copy of Railroad Employee Injury and/or 2 minutes.
Illness Record to Employee.
----------------------------------------------------------------------------------------------------------------
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 function of FRA, including whether the information
shall have practical utility; on the accuracy of FRA''s estimates of
the burden of the information collection requirements; on 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 Ms. Gloria
Swanson at (202) 501-4982.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Attention: Desk Officer for the Federal
Railroad Administration, Office of Information and Regulatory Affairs,
Washington, D.C. 20503, and should also send a copy of their comments
to Ms. Gloria Swanson, Federal Railroad Administration, Room 8301, RRS-
211, 400 Seventh Street, S.W., Washington, D.C. 20590.
OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
FRA cannot impose a penalty on persons for violating information
collection requirements when they do not display a current OMB control
number, if required. FRA intends to obtain current OMB control numbers
for any new or revised information collection requirements resulting
from this rulemaking action prior to the effective date of this final
rule. The OMB control number, when assigned, will be announced by
separate notice in the Federal Register.
Environmental Impact
FRA has evaluated these regulations in accordance with its
procedures for ensuring full consideration of the environmental impact
of FRA actions, as required by the National Environmental Policy Act
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and DOT Order 5610.1c. It has been determined that this rule
will not have any effect on the quality of the environment.
Federalism Implications
This rule will not have a substantial effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Thus, in accordance with Executive Order 12612, preparation
of a Federalism Assessment is not warranted.
List of Subjects in 49 CFR Part 225
Railroad accident reporting rules, Railroad safety.
The Final Rule
In consideration of the foregoing, FRA amends part 225, Title 49,
Code of Federal Regulations as follows:
PART 225--[AMENDED]
1. The authority citation for part 225 is revised to read as
follows:
Authority: 49 U.S.C. 20901, 20102, 322(a), 21302, 21304,
formerly codified at 45 U.S.C. 38, 42, 43, and 43a; 49 U.S.C. 20102-
20103, 20107, 20108, 20110, 20131-20143, 21301-21302, 21304, 21311,
24902, formerly codified at 45 U.S.C. 39, 431, 437, and 438; 49
U.S.C. 103, 49 U.S.C. 20901-20902, 21302, formerly codified at 49
App. U.S.C. 1655(e)(1)(K); 49 CFR 1.49 (c), (g), and (m).
2. By revising Sec. 225.1 to read as follows:
Sec. 225.1 Purpose.
The purpose of this part is to provide the Federal Railroad
Administration with accurate information concerning the hazards and
risks that exist on the Nation's railroads. FRA needs this information
to effectively carry out its regulatory responsibilities under 49
U.S.C. chapters 201-213. FRA also uses this information for determining
comparative trends of railroad safety and to develop hazard elimination
and risk reduction programs that focus on preventing railroad injuries
and accidents. Issuance 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 which occur in that State.
3. By revising Sec. 225.3 to read as follows:
Sec. 225.3 Applicability.
This part applies to all railroads except--
(a) A railroad that operates freight trains only on track inside an
installation which is not part of the general railroad system of
transportation
[[Page 30968]]
or that owns no track except for track that is inside an installation
that is not part of the general railroad system of transportation and
used for freight operations.
(b) Rail mass transit operations in an urban area that are not
connected with the general railroad system of transportation.
(c) A railroad that exclusively hauls passengers inside an
installation that is insular or that owns no track except for track
used exclusively for the hauling of passengers inside an installation
that is insular. An operation is not considered insular if one or more
of the following exists on its line:
(1) A public highway-rail grade crossing that is in use;
(2) An at-grade rail crossing that is in use;
(3) A bridge over a public road or waters used for commercial
navigation; or
(4) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
4. By revising Sec. 225.5 to read as follows:
Sec. 225.5 Definitions
As used in this part--
Accident/incident means:
(1) Any impact between railroad on-track equipment and an
automobile, bus, truck, motorcycle, bicycle, farm vehicle or pedestrian
at a highway-rail grade crossing;
(2) Any collision, derailment, fire, explosion, act of God, or
other event involving operation of railroad on-track equipment
(standing or moving) that results in reportable damages greater than
the current reporting threshold to railroad on-track equipment,
signals, track, track structures, and roadbed;
(3) Any event arising from the operation of a railroad which
results in:
(i) Death to any person;
(ii) Injury to any person that requires medical treatment;
(iii) Injury to a railroad employee that results in:
(A) A day away from work;
(B) Restricted work activity or job transfer; or
(C) Loss of consciousness; or
(4) Occupational illness of a railroad employee. Accountable injury
or illness means any condition, not otherwise reportable, of a railroad
worker that is associated with an event, exposure, or activity in the
work environment that causes or requires the worker to be examined or
treated by a qualified health care professional. Such treatment would
usually occur at a location other than the work environment; however,
it may be provided at any location, including the work site.
Accountable rail equipment accident/incident means any event not
otherwise reportable, involving the operation of on-track equipment
that causes physical damage to either the on-track equipment or the
track upon which such equipment was operated and that requires the
removal or repair of rail equipment from the track before any rail
operations over the track can continue. An accountable rail equipment
accident/incident, if not tended to, thus would disrupt railroad
service. Examples of ``disruption of service'' would include: loss of
main track; one or more derailed wheels; any train failing to arrive or
depart at its scheduled time; one or more cars or locomotives taken out
of service; or rerouting trains due to a damaged car or locomotive.
Arising from the operation of a railroad includes all activities of
a railroad that are related to the performance of its rail
transportation business.
Day away from work is any day subsequent to the day of the injury
or diagnosis of occupational illness that a railroad employee does not
report to work for reasons associated with his or her condition.
Day of restricted work activity is any day that a employee is
restricted (as defined below) in his or her job following the day of
the injury or diagnosis of occupational illness.
Employee human factor includes any of the accident causes signified
by the train accident cause codes listed under ``Train Operation--Human
Factors'' in the current ``FRA Guide for Preparing Accidents/Incidents
Reports,'' except for those train accident cause codes pertaining to
non-railroad workers. For purposes of this definition ``employee''
includes the classifications of Worker on Duty--Employee, Employee not
on Duty, Worker on Duty--Contractor, and Worker on Duty--Volunteer.
Establishment means a single physical location where workers report
to work, where business is conducted or where services or operations
are performed, for example, an operating division, general office, and
major installation, such as a locomotive or car repair or construction
facility.
First aid treatment means treatment limited to simple procedures
used to treat minor conditions, such as abrasions, cuts, bruises, and
splinters. First aid treatment is typically confined to a single
treatment and does not require special skills or procedures.
FRA representative means the Associate Administrator for Safety,
FRA; the Associate Administrator's delegate (including a qualified
State inspector acting under part 212 of this chapter); the Chief
Counsel, FRA; or the Chief Counsel's delegate.
Highway-rail grade crossing means a location where a public
highway, road, street, or private roadway, including associated
sidewalks and pathways, crosses one or more railroad tracks at grade.
Joint operations means rail operations conducted on a track used
jointly or in common by two or more railroads subject to this part or
operation of a train, locomotive, car, or other on-track equipment by
one railroad over the track of another railroad.
Medical treatment includes any medical care or treatment beyond
``first aid'' regardless of who provides such treatment. Medical
treatment does not include diagnostic procedures, such as X-rays and
drawing blood samples. Medical treatment also does not include
preventive emotional trauma counseling provided by the railroad's
employee counseling and assistance officer unless the participating
worker has been diagnosed as having a mental disorder that was
significantly caused or aggravated by an accident/incident and this
condition requires a regimen of treatment to correct.
Non-train incident means an event that results in a reportable
casualty, but does not involve the movement of on-track equipment nor
cause reportable damage above the threshold established for train
accidents.
Occupational illness means any abnormal condition or disorder, of
any person who falls under the definition for the classifications of
Worker on Duty--Employee, Worker on Duty--Contractor, or Worker on
Duty--Volunteer, other than one resulting from injury, caused by
environmental factors associated with the person's railroad employment,
including, but not limited to, acute or chronic illnesses or diseases
that may be caused by inhalation, absorption, ingestion, or direct
contact.
Person includes all categories of entities covered under 1 U.S.C.
1, including, but not limited to, a railroad; any manager, supervisor,
official, or other employee or agent of a railroad; any owner,
manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any passenger; any trespasser or nontrespasser; any
independent contractor providing goods or services to a railroad; any
volunteer providing goods or services to a railroad; and any employee
of such owner, manufacturer, lessor, lessee, or independent contractor.
Qualified health care professional is a health care professional
operating within the scope of his or her license,
[[Page 30969]]
registration, or certification. For example, an otolaryngologist is
qualified to diagnose a case of noise-induced hearing loss and identify
potential causal factors, but may not be qualified to diagnose a case
of repetitive motion injuries.
Railroad means a person providing railroad transportation.
Railroad transportation means any form of non-highway ground
transportation that run on rails or electro-magnetic guideways,
including commuter or other short-haul railroad passenger service in a
metropolitan or suburban area, as well as any commuter railroad service
that was operated by the Consolidated Rail Corporation as of January 1,
1979, and high speed ground transportation systems that connect
metropolitan areas, without regard to whether they use new technologies
not associated with traditional railroads. Such term does not include
rapid transit operations within an urban area that are not connected to
the general railroad system of transportation.
Train accident means any collision, derailment, fire, explosion,
act of God, or other event involving operation of railroad on-track
equipment (standing or moving) that results in damages greater than the
current reporting threshold to railroad on-track equipment, signals,
track, track structures, and roadbed.
Train incident means any event involving the movement of on-track
equipment that results in a reportable casualty but does not cause
reportable damage above the current threshold established for train
accidents.
Work environment is the physical location, equipment, materials
processed or used, 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 any incident, activity, exposure, or
the like occurring within the work environment.
Sec. 225.7 [Amended]
5. By removing ``Executive Director'' in the third sentence in
Sec. 225.7(a) and adding in lieu thereof ``Freedom of Information
Officer, Office of Chief Counsel'' and by removing ``Section 4 of the
Accidents Reports Act (36 Stat. 351, 45 U.S.C. 41)'' in the first
sentence in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C.
20903'' and by removing ''Accident Reports Act'' in the second sentence
in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C. 20901'' and by
removing ``45 U.S.C. 41'' at the end of paragraph (b) and adding in
lieu thereof ``49 U.S.C. 20903.''
6. By revising Sec. 225.11 to read as follows:
Sec. 225.11 Reporting of accidents/incidents.
Each railroad subject to this part shall submit to FRA a monthly
report of all railroad accidents/incidents described in Sec. 225.19.
The report shall be made on the forms prescribed in Sec. 225.21 in hard
copy or, alternatively, by means of magnetic media or electronic
submission, 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 for Preparing Accidents/Incidents Reports.'' A copy
of this guide may be obtained from the Office of Safety, RRS-22,
Federal Railroad Administration, 400 Seventh Street, S.W., Washington,
D.C. 20590.
7. By adding a sentence to Sec. 225.12(a), by revising the second
sentence in Sec. 225.12(g)(3), and by revising Secs. 225.12(h) (1) and
(2) 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.
(a) * * * For purposes of this section, ``employee'' is defined as
a Worker on Duty--Employee, Employee not on Duty, Worker on Duty--
Contractor, or Worker on Duty--Volunteer.
* * * * *
(g) * * *
(1) * * *
(2) * * *
(3) * * * 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), but rather provide such confidential information
by other means, such as a letter to the employee's collective
bargaining representative, or to the Federal Railroad Administration,
Office of Safety Assurance and Compliance, RRS-11, 400 Seventh Street,
S.W., Washington, D.C. 20590. * * *
(h) * * *
(1) Under 49 U.S.C. 21301, 21302, and 21304, any person who
willfully files a false Supplement with FRA is subject to a civil
penalty. See Appendix A to this part.
(2) Any person who knowingly and willfully files a false Supplement
is subject to a $5,000 fine, or up to two years'' imprisonment, or
both, under 49 U.S.C. 21311.
8. By revising the second sentence in Sec. 225.19(b), by revising
the first, third, and fifth sentences of Sec. 225.19(c), by revising
Sec. 225.19(d), and by adding Sec. 225.19(e) to read as follows:
Sec. 225.19 Primary groups of accidents/incidents.
* * * * *
(b) * * * In addition, whenever a highway-rail grade crossing
accident/incident results in damages greater than the current reporting
threshold to railroad on-track equipment, signals, track, track
structures, or roadbed, that accident/incident shall be reported to the
FRA on Form FRA F 6180.54. * * *
(c) * * * Rail equipment accidents/incidents are collisions,
derailments, fires, explosions, acts of God, or other events involving
the operation of railroad on-track equipment, signals, track, track
equipment (standing or moving) that result in damages greater than the
current reporting threshold to railroad on-track equipment, signals,
tracks, track structures, or roadbed, including labor costs and the
costs for acquiring new equipment and material. * * * If the property
of more than one railroad is involved in an accident/incident, the
reporting threshold is calculated by including the damages suffered by
all of the railroads involved. * * * The reporting threshold will be
reviewed periodically and will be adjusted every year.
(d) Group III--Death, injury, or occupational illness. Each event
arising from the operation of a railroad shall be reported on Form FRA
F 6180.55a if it results in:
(1) Death to any person;
(2) Injury to any person that requires medical treatment;
(3) Injury to a railroad employee that results in:
(i) A day away from work;
(ii) Restricted work activity or job transfer; or
(iii) Loss of consciousness; or
(4) Occupational illness of a railroad employee.
(e) The accident/incident reporting threshold for calendar years
1991 through 1996 is $6,300. This threshold dollar amount will remain
in effect until FRA amends that amount and provides notice in the
Federal Register. The procedure for determining the reporting threshold
will appear as Appendix B to Part 225.
9. By revising the fourth sentence in Sec. 225.21(b), by removing
Sec. 225.21(f) and redesignating Secs. 225.21(g) and 225.21(h) as
Secs. 225.21(f) and 225.21(g), respectively, and by adding new
Secs. 225.21 (h) and (i) to read as follows:
Sec. 225.21 Forms.
* * * * *
(b) * * * All railroads subject to this part, shall show on this
form the total number of freight train miles, passenger train miles,
yard switching train miles,
[[Page 30970]]
and other train miles run during the month.
* * * * *
(h) Form FRA F 6180.98--Railroad Employee Injury and/or Illness
Record. Form FRA F 6180.98 or an alternative railroad-designed record
shall be used by the railroads to record all reportable and accountable
injuries and illnesses to railroad employees for each establishment.
This record shall be completed and maintained in accordance with the
requirements set forth in Sec. 225.25.
(i) Form FRA F 6180.97--Initial Rail Equipment Accident/Incident
Record. Form FRA F 6180.97 or an alternative railroad-designed record
shall be used by the railroads to record all reportable and accountable
rail equipment accidents/incidents for each establishment. This record
shall be completed and maintained in accordance with the requirements
set forth in Sec. 225.25.
10. By revising Sec. 225.25 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 that arise from the operation of the railroad 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) The alternative railroad-designed record may be used in lieu of
the Railroad Employee Injury and/or Illness Record (Form FRA F 6180.98)
described in paragraph (a) of this section. Any such alternative record
shall contain all of the information required on the Railroad Employee
Injury and/or Illness Record. Although this information may be
displayed in a different order from that on the Railroad Employee
Injury and/or Illness Record, 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 each of the railroad''s
reporting establishments. Railroads may list additional information on
the alternative record beyond the information required on the Railroad
Employee Injury and/or Illness Record. The alternative record shall
contain, at a minimum, the following information:
(1) Name of railroad;
(2) Case/incident number;
(3) Full name of railroad employee;
(4) Date of birth of railroad employee;
(5) Gender of railroad employee;
(6) Social security number of railroad employee;
(7) Date the railroad employee was hired;
(8) Home address of railroad employee; include the street address,
city, State, ZIP code, and home telephone number with area code;
(9) Name of facility where railroad employee normally reports to
work;
(10) Address of facility where railroad employee normally reports
to work; include the street address, city, State, and ZIP code;
(11) Job title of railroad employee;
(12) Department assigned;
(13) Specific site where accident/incident/exposure occurred;
include the city, county, State, and ZIP code;
(14) Date and time of occurrence; military time or AM/PM;
(15) Time employee's shift began; military time or AM/PM;
(16) Whether employee was on premises when injury occurred;
(17) Whether employee was on or off duty;
(18) Date and time when employee notified company personnel of
condition; military time or AM/PM;
(19) Name and title of railroad official notified;
(20) Description of the general activity this employee was engaged
in prior to the injury/illness/condition;
(21) Description of all factors associated with the case that are
pertinent to an understanding of how it occurred. Include a discussion
of the sequence of events leading up to it; and the tools, machinery,
processes, material, environmental conditions, etc., involved;
(22) Description, in detail, of the injury/illness/condition that
the employee sustained, including the body parts affected. If a
recurrence, list the date of the last occurrence;
(23) Identification of all persons and organizations used to
evaluate or treat the condition, or both. Include the facility,
provider and complete address;
(24) Description of all procedures, medications, therapy, etc.,
used or recommended for the treatment of the condition.
(25) Extent and outcome of injury or illness to show the following
as applicable:
(i) Fatality--enter date of death;
(ii) Restricted work; number of days; beginning date;
(iii) Occupational illness; date of initial diagnosis;
(iv) Instructions to obtain prescription medication, or receipt of
prescription medication;
(v) If missed one or more days of work or next shift, provide
number of work days; and beginning date;
(vi) Medical treatment beyond ``first aid'';
(vii) Hospitalization for treatment as an inpatient;
(viii) Multiple treatments or therapy sessions;
(ix) Loss of consciousness;
(x) Transfer to another job or termination of employment;
(26) Each railroad shall indicate if the Railroad Injury and
Illness Summary (Continuation Sheet) (FRA Form F 6180.55a) has been
filed with FRA for the injury or illness. If FRA Form F 6180.55a was
not filed with FRA, then the railroad shall provide an explanation of
the basis for its decision.
(27) The reporting railroad shall indicate if the injured or ill
railroad employee was provided an opportunity to review his or her
file; and
(28) The reporting railroad shall identify the preparer's name;
title; telephone number with area code; and the date the log entry was
completed.
(c) Each railroad shall provide the employee, upon request, a copy
of either the completed Railroad Employee Injury and/or Illness Record
(Form FRA F 6180.98) or the alternative railroad-designed record as
described in paragraphs (a) and (b) of this section as well as a copy
of any other form, record or report filed with FRA or held by the
railroad pertaining to the employee's injury or illness.
(d) Each railroad shall maintain the Initial Rail Equipment
Accident/Incident Record (Form FRA F 6180.97) or an alternative
railroad-designed record as described in paragraph (e) of this section
of reportable and accountable collisions, derailments, fires,
explosions, acts of God, or other events involving the operation of
railroad on-track equipment, signals, track, or track equipment
(standing or moving) that result in damages to railroad on-track
equipment, signals, tracks, track structures, or roadbed, including
labor costs and all other costs for repairs or replacement in kind for
each railroad establishment where workers 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.
(e) The alternative railroad-designed record may be used in lieu of
the Initial Rail Equipment Accident/Incident Record (Form FRA F
6180.97). Any such alternative record shall contain all of the
information required on the Initial Rail Equipment Accident/Incident
Record. Although this information may be
[[Page 30971]]
displayed in a different order from that on the Initial Rail Equipment
Accident/Incident Record, 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 each of the railroad's
reporting establishments. Railroads may list additional information in
the alternative record beyond the information required on the Initial
Rail Equipment Accident/Incident Record. The alternative record shall
contain, at a minimum, the following information:
(1) Date and time of accident;
(2) Reporting railroad, and accident/incident number;
(3) Other railroad, if applicable, and other railroad's accident/
incident number;
(4) Railroad responsible for track maintenance, and that railroad's
incident number;
(5) Type of accident/incident (derailment, collision, etc.);
(6) Number of cars carrying hazardous materials that derailed or
were damaged; and number of cars carrying hazardous materials that
released product;
(7) Division;
(8) Nearest city or town;
(9) State;
(10) Milepost (to the nearest tenth);
(11) Specific site;
(12) Speed (indicate if actual or estimate);
(13) Train number or job number;
(14) Type of equipment (freight, passenger, yard switching, etc.);
(15) Type of track (main, yard, siding, industry);
(16) Total number of locomotives in train;
(17) Total number of locomotives that derailed;
(18) Total number of cars in train;
(19) Total number of cars that derailed;
(20) Total amount of damage in dollars to equipment based on
computations as described in the ``FRA Guide for Preparing Accidents/
Incidents Reports'';
(21) Total amount of damage in dollars to track, signal, way and
structures based on computations as described in the ``FRA Guide for
Preparing Accidents/Incidents Reports'';
(22) Primary cause;
(23) Contributing cause;
(24) Persons injured and persons killed, broken down into the
following classifications: worker on duty--employee; employee not on
duty; passenger on train; nontrespasser--on railroad property;
trespasser; worker on duty--contractor; contractor--other; worker on
duty--volunteer; volunteer--other; and nontrespasser--off railroad
property;
(25) Narrative description of the accident;
(26) Whether the accident/incident was reported to FRA;
(27) Preparer's name, title, telephone number with area code, and
signature; and
(28) Date the report was completed.
(f) Each railroad shall enter each reportable and accountable
injury and illness and each reportable and accountable rail equipment
accident/incident on the appropriate record, as required by paragraphs
(a) through (e) of this section, as early as practicable but no later
than seven working days after receiving information or acquiring
knowledge that an injury or illness or rail equipment accident/incident
has occurred.
(g) The records required under paragraphs (a) through (e) of this
section may be maintained at the local establishment or, alternatively,
at a centralized location. If the records are maintained at a
centralized location, but not through electronic means, then a paper
copy of the records that is current within 35 days of the month to
which it applies shall be available for that establishment. If the
records are maintained at a centralized location through electronic
means, then the records for that establishment shall be available for
review in a hard copy format within four business hours of FRA's
request. FRA recognizes that circumstances outside the railroad's
control may preclude it from fulfilling the four-business-hour time
limit. In these circumstances, FRA will not assess a monetary penalty
against the railroad for its failure to provide the requested
documentation provided the railroad made a reasonable effort to correct
the problem.
(h) A listing of all reported injuries and occupational illnesses
for the previous month shall be posted in a conspicuous location at and
for each railroad establishment within 30 days after expiration of the
month during which the injuries and illnesses occurred. For purposes of
this paragraph, this list is required to be posted only at those
establishments that are in continual operation for a minimum of 90
calendar days; otherwise the list shall be posted at the next higher
organizational level establishment. This listing shall be posted and
shall remain continuously displayed for the next twelve consecutive
months. Incidents reported for employees at that establishment shall be
displayed in date sequence. The listing shall contain, at a minimum,
the following information:
(1) Name and address of the establishment;
(2) Calendar year of the cases being displayed;
(3) Incident number used to report case;
(4) Date of the injury or illness;
(5) Location of incident;
(6) Regular job title of employee injured or ill;
(7) Description of the injury or condition;
(8) Number of days employee absent from work at time of posting;
(9) Number of days of work restriction for employee at time of
posting;
(10) If fatality--enter date of death;
(11) Annual average number of railroad employees reporting to this
establishment;
(12) Preparer's name, title, telephone number with area code, and
signature; and
(13) Date the report was completed.
(14) When there are no reportable injuries or occupational
illnesses associated with an establishment for that month, the listing
shall make reference to this fact.
11. By revising the first sentence in Sec. 225.27(a) and by adding
a new sentence after the revised first sentence to read as follows:
Sec. 225.27 Retention of records.
(a) Each railroad shall retain the Railroad Employee Injury and/or
Illness Record 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 the 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 they relate. * *
*
* * * * *
12. By removing ``$250'' in the first sentence in Sec. 225.29 and
adding in lieu thereof ``$500'' and by revising the third and fourth
sentences in Sec. 225.29 to read as follows:
Sec. 225.29 Penalties.
* * * See Appendix A to this part for a statement of agency civil
penalty policy. A person may also be subject to the criminal penalties
provided for in 49 U.S.C. 21311.
13. By revising 225.31(f) to read as follows:
Sec. 225.31 Investigations.
* * * * *
(f) Section 20903 of title 49 of the United States Code provides
that no part of a report of an accident investigation
[[Page 30972]]
under section 20902 of title 49 of the United States Code may be
admitted as evidence or used for any purpose in any suit or action for
damages growing out of any matter mentioned in the accident
investigation report.
14. By adding new Sec. 225.33 as follows:
Sec. 225.33 Internal Control Plans.
(a) Each railroad shall adopt and comply with a written Internal
Control Plan that shall be maintained at the office where the
railroad's reporting officer conducts his or her official business.
Each railroad shall amend its Internal Control Plan, as necessary, to
reflect any significant changes to the railroad's internal reporting
procedures. The Internal Control Plan shall be designed to maintain
absolute accuracy and shall include, at a minimum, each of the
following ten components:
(1) A policy statement declaring the railroad's commitment to
complete and accurate reporting of all accidents, incidents, injuries,
and occupational illnesses arising from the operation of the railroad,
to full compliance with the letter and spirit of FRA's accident
reporting regulations, and to the principle, in absolute terms, that
harassment or intimidation of any person that is calculated to
discourage or prevent such person from receiving proper medical
treatment or from reporting such accident, incident, injury or illness
will not be permitted or tolerated and will result in some stated
disciplinary action against any employee, supervisor, manager, or
officer of the railroad committing such harassment or intimidation.
(2) The dissemination of the policy statement; complaint
procedures. Each railroad shall provide to all employees, supervisory
personnel, and management the policy statement described in paragraph
(a)(1). Each railroad shall have procedures to process complaints from
any person about the policy stated in paragraph (a)(1) being violated,
and to impose the appropriate prescribed disciplinary actions on each
employee, supervisor, manager, or officer of the railroad found to have
violated the policy. These procedures shall be disclosed to railroad
employees, supervisors, managers, and officers. The railroad shall
provide ``whistle blower'' protection to any person subject to this
policy, and such policy shall be disclosed to all railroad employees,
supervisors and management.
(3) Copies of internal forms and/or a description of the internal
computer reporting system used for the collection and internal
recording of accident and incident information.
(4) A description of the internal procedures used by the railroad
for the processing of forms and/or computerized data regarding accident
and incident information.
(5) A description of the internal review procedures applicable to
accident and incident information collected, and reports prepared by,
the railroad's safety, claims, medical and/or other departments engaged
in collecting and reporting accident and incident information.
(6) A description of the internal procedures used for collecting
cost data and compiling costs with respect to accident and incident
information.
(7) A description of applicable internal procedures for ensuring
adequate communication between the railroad department responsible for
submitting accident and incident reports to FRA and any other
department within the railroad responsible for collecting, receiving,
processing and reporting accidents and incidents.
(8) A statement of applicable procedures providing for the updating
of accident and incident information prior to reporting to FRA and a
statement of applicable procedures providing for the amendment of
accident and incident information as specified in the ``FRA Guide for
Preparing Accidents/Incidents Reports.''
(9) A statement that specifies the name and title of the railroad
officer responsible for auditing the performance of the reporting
function; a statement of the frequency (not less than once per calendar
year) with which audits are conducted; and identification of the site
where the most recent audit report may be found for inspection and
photocopying.
(10)(i) A brief description of the railroad organization, including
identification of:
(A) All components that regularly come into possession of
information pertinent to the preparation of reports under this part
(e.g., medical, claims, and legal departments; operating, mechanical,
and track and structures departments; payroll, accounting, and
personnel departments);
(B) The title of each railroad reporting officer;
(C) The title of each manager of such components, by component; and
(D) All officers to whom managers of such components are
responsible, by component.
(ii) A current organization chart satisfies paragraphs
(a)(10)(i)(C)(D) (iii) and (iv) of this section.
(b) [Reserved]
15. By adding new Sec. 225.35 to read as follows:
Sec. 225.35 Access to records and reports.
Each railroad subject to this part shall have at least one
location, and shall identify each location, where any representative of
the Federal Railroad Administration or of a State agency participating
in investigative and surveillance activities under Part 212 of this
chapter or any other authorized representative, has centralized access
to a copy of any record and report (including relevant claims and
medical records) required under this part, for examination and
photocopying in a reasonable manner during normal business hours. Such
representatives shall display proper credentials when requested. Each
railroad shall identify the locations where a copy of any record and
report required under this part is accessible for inspection and
photocopying by maintaining a list of such establishment locations at
the office where the railroad's reporting officer conducts his or her
official business. A copy of any record and report required under this
part shall be accessible within four business hours after the request.
FRA will not assess a monetary penalty against the railroad for its
failure to provide the requested documentation when circumstances
outside the railroad's control preclude it from fulfilling the four-
business-hour time limit and the railroad has made a reasonable effort
to correct the problem.
16. By adding new Sec. 225.37 to read as follows:
Sec. 225.37 Magnetic media transfer and electronic submission.
(a) A railroad has the option of submitting the following reports,
updates, and amendments by way of magnetic media (computer diskette or
magnetic tape), or by means of electronic submission over telephone
lines or other means:
(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 Batch Control Form (Form FRA F 6180.99).
(b) Each railroad utilizing the magnetic media option shall submit
to FRA the following:
(1) the computer diskette or magnetic tape;
(2) the Batch Control Form (Form FRA F 6180.99); and
[[Page 30973]]
(3) a notarized hard copy of the Railroad Injury and Illness
Summary (Form FRA F 6180.55), signed by the railroad's reporting
officer.
(c) Each railroad utilizing the electronic submission option shall
submit to FRA the following:
(1) the Batch Control Form (Form FRA F 6180.99) which is submitted
to an FRA-designated computer; and
(2) a notarized hard copy of the Railroad Injury and Illness
Summary (Form FRA F 6180.55), signed by the railroad's reporting
officer.
(d) Each railroad employing either the magnetic media or electronic
submission 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 for Preparing Accidents/
Incidents Reports.''
(e) In addition to fulfilling the requirements stated in paragraph
(b) through (d) of this section, each railroad initially utilizing
either the magnetic media or electronic submission option, shall 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 it has submitted electronically, or by means
of magnetic media. Once the magnetic media or electronic submission 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, except for the
notarized Railroad Injury and Illness Summary, is no longer required.
Appendix A--[Removed]
17. By removing Appendix A.
18. By redesignating Appendix B as Appendix A and by revising newly
redesignated Appendix A to read as follows:
Appendix A to Part 225--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Section (including computer code, if Willful
applicable) Violation violation
------------------------------------------------------------------------
225.9 Telephonic reports of certain accidents/
incidents.................................... $1,000 $2,000
225.11 Reports of accidents/ incidents....... 2,500 5,000
225.12(a):
Failure to file Railroad Employee Human
Factor Attachment properly...............
(1) Employee identified............... 2,500 5,000
(2) No employee identified............ 1,000 2,000
225.12(b):
(1) Failure to notify employee properly... 2,500 5,000
(2) Notification of employee not involved
in accident.............................. 2,500 5,000
225.12(c):
Failure of employing railroad to provide
requested information properly........... 1,000 2,000
225.12(d):
(1) Failure to revise report when identity
becomes known............................ 2,500 5,000
(2) Failure to notify after late
identification........................... 2,500 5,000
225.12(f)(1):
Submission of notice if employee dies as
result of the reported accident.......... 2,500 5,000
225.12(g):
Willfully false accident statement by
employee................................. ........... 5,000
225.13 Late reports...................... 2,500 5,000
225.17(d) Alcohol or drug involvement.... 2,500 5,000
225.23 Joint operations.................. (\1\) (\1\)
225.25 Recordkeeping..................... 2,500 5,000
225.27 Retention of records.............. 1,000 2,000
225.33:
(1) Failure to adopt the Internal
Control Plan......................... 2,500 5,000
(2) Inaccurate reporting due to
failure to comply with the Internal
Control Plan......................... 2,500 5,000
(3) Failure to comply with the
intimidation/harassment policy in the
Internal Control Plan................ 2,500 5,000
225.35 Access to records and reports..... 2,500 5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $20,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. A failure to comply with Sec. 225.23
constitutes a violation of Sec. 225.11. For purposes of Secs. 225.25
and 225.27 of this part, each of the following constitutes a single
act of noncompliance: (1) a missing or incomplete log entry for a
particular employee's injury or illness; or (2) a missing or
incomplete log record for a particular rail equipment accident or
incident. Each day a violation continues is a separate offense.
Secs. 225.12, 225.13, 225.15, 225.19, 225.21 [Amended]
19. In addition to the amendments set forth above, in 49 CFR part
225 remove the word ``rail-highway'' and add, in its place, the word
``highway-rail'' in the following places:
(a) Sec. 225.12(b)(2)(iii);
(b) Sec. 225.13;
(c) Sec. 225.15(a);
(d) Secs. 225.19(a) and (b); and
(e) Sec. 225.21(e).
Issued in Washington, DC, on May 30, 1996.
Donald M. Itzkoff,
Deputy Federal Railroad Administrator.
Attachments
Note: These attachments will not appear in the Code of Federal
Regulations.
Attachments 1--Review of AAR's Proposed Performance Standards
I. Introduction
The NPRM for amending the Accident/Incident Report Regulations
(49 CFR 225) included a section on Internal Control Procedures
(ICP). The Association of American Railroads (AAR) and its members
objected to the ICP and, instead proposed that a Performance
Standard be used to measure compliance with the reporting
requirements.
Westat, Inc. reviewed the statistical implications of the
Performance Standards for Railroad Accident/Incident Reporting as
proposed by AAR. Our comments on AAR's proposal, are presented
below.
AAR's recommended approach relies on auditing a sample of
records, rather than all records, to assure a specified rate of
compliance with reporting requirements. A
[[Page 30974]]
statistical audit can be designed to reduce the labor requirements
of the monitoring process without compromising reliable reporting of
reportable occurrences. It has become common in recent years to view
statistical audits as an important part of Total Quality Management
(TQM), rather than as just a tool of the more traditional approach
to quality assurance based on acceptance testing. The key difference
between the two approaches is that TQM focuses on continuous and
incremental improvements of process performance, whereas acceptance
testing, as in AAR's Performance Standards, simply judges
acceptability of process output by applying pre-defined criteria
(Gitlow, et. al., Tools and Methods for the Improvement of Quality,
1989, IRWIN, Homewood, IL, Boston, MA).
II. AAR'S Recommendations for Auditing a Sample of Records
AAR's Performance Standards are based on methods selected from a
set of statistical procedures that were developed for the U.S.
military (MIL-STD-105E, 1989) as means of statistically controlling
process quality in a stable environment. The military standard
(Standard, for short) invoked by AAR is based on sound statistical
methods. However, AAR's application of the Standard suffers from at
least the five major deficiencies discussed below. A detailed
summary of AAR's recommendations for applying the Standard is given
in Appendix 1. Westat's critique of the proposed Performance
Standards is presented here.
1. Reporting Process May Not Be Stable
AAR's reporting process has not been fully defined, it has not
been tested in the real world, and its stability in the sense the
Standard uses this term has not been demonstrated, yet AAR assumed
that reporting will be a stable process, and applied procedures
appropriate only for stable processes. The documentation of the
Standard clearly states that the procedures described therein are
directly applicable only to stable processes.
2. AAR's Sample Inclusion Criterion Is Flawed
The Standard established batch sampling plans and procedures for
inspection by attributes. To apply the procedures, batches would be
sampled at random, and sampled items classified by inspection either
as ``acceptable'' or as ``defective.'' It is assumed that all items
can be classified, and leaving items unclassified is not permitted.
The Standard offers rules for choosing sample sizes and acceptance
criteria. The Standard formulates acceptance criteria in terms of
the number, or the percentage, of defectives in the sample.
Acceptance criteria logic is to accept the batch if a random sample
of a specified size contained fewer than a pre-determined number of
defectives, otherwise, reject the batch.
In Westat's understanding of AAR's scheme for applying the
Standard, a batch is ``* * * a list of all reportable and non-
reportable accidents/incidents occurrences for a specified calendar
year,'' ``* * * a rejection is defined as railroad's failure to
report an occurrence required to be reported * * * [that is] not
reported * * * '', and ``random sample[s] [would] be taken from the
list of occurrences.''
AAR's lists can include two types of records, R-type, and NR-
type (See Table 1):
* R-type records are records of occurrences classified by the
railroad as reportable, and
* NR-type records are records of occurrences classified by the
railroad as non-reportable.
AAR uses reportability as the inspection attribute. AAR's method
counts rejections only among NR-type records, and equates the number
of rejections to the number of reportable occurrences that were
mistakenly reported as NR-type records. These records are identified
in the second row of Table 1. Note that records in the third row of
Table 1 are also in error, but they are not rejections according to
the rules proposed by AAR.
AAR plans to sample lists containing records classified as R-
type and NR-type, and reject a list whenever a random sample from it
includes too many reportable NR-type records. For statistical
reasons, this is expected to happen if the number of reportable
occurrences that were classified as NR-type (i.e., N2 in Table
1) was large relative to the total number of records, N, in the
list. It is clear that AAR's sampling plan treats R-type records and
NR-type records differently. For determining sample size, AAR's
sampling plan combines R-type and NR-type records. For counting
rejections, it recognizes only the reporting errors in NR-type
records (row 2 in Table 1) but not the reporting errors in R-type
records (row 3 in Table 1). Whether in error, or not in error, R-
type records are not rejected according to AAR's criteria. This
implies that increasing the proportion of R-type records reduces the
expected number of rejections in fixed-sized random samples.
Metaphorically speaking, increasing the size of the lake (R-type
records) without increasing the stock of fish in it (NR-type
records) makes it harder to catch the large fish (rejected records).
We have showed that AAR's audit scheme makes audit results
depend on the number of out-of-scope (non-reportable) records on the
audited list. Surely, making audit results depend on data outside
the audit's scope is not acceptable: valid acceptance criteria must
be based only on data relevant to rejection rate, e.g., the total
number reportable occurrences, and the number of reportable
occurrences in error.
3. AAR Overstated Compliance Rate
Using any reasonable definition of compliance rate, AAR's audit
does not actually deliver the claimed compliance rate of 99-percent
for accident/incident reports. In fact, we show in the Appendix 2
that AAR's sampling plan, at best, achieves 97-percent compliance
rate. But even this weaker claim requires an unreasonable, and
inappropriate, stretch of what one means by ``compliance rate.''
Specifically, if one were willing to assume the reporting
process to be stable, with no evidence for this assumption, and if
AAR was willing to adopt the full set of procedures specified in the
Standard for monitoring stable processes, then such a strengthened
plan would actually ensure roughly even odds for rejecting a
composite list of 5,000 records of reportable occurrences that
included about three-percent of miss-classified reportable
occurrences (cf. Appendix 2).
However, as we showed earlier, even a plan strengthened in this
way could say absolutely NOTHING about the actual under-reporting
rate of reportable occurrences without determining the split between
the true frequencies of reportable and non-reportable occurrences.
4. AAR's Performance Standards Lack Requirements for Maintaining
Written Internal Control Procedures (ICP)
Westat believes that high quality accident/incident reporting
cannot be achieved without maintaining a written ICP. The Military
Standard includes a general requirement for developing written
procedure (cf. General Requirements, 4.1) which would be made
available to the Government representative's review upon request.
This requirement is fully in line with standard business practice of
making explicit all major parts of complex systems. Without written
directives governing company policy and operational procedures, it
is not possible to guarantee full implementation of management
decisions by line employees.
In contrast, AAR's proposal for a Performance Standard does not
permit FRA to direct a railroad to develop and maintain a written
ICP until after the railroad failed to demonstrate compliance in two
consecutive audits.
5. Non-compliance With the Standard
AAR's Performance Standards do not implement the full set of
procedures prescribed in Military Standard. Most importantly, AAR's
Performance Standards fail to implement the ``switching
procedures.'' These are explained below. The Military Standard
defines three levels of inspection (normal, tightened, and reduced)
and specifies conditions for their applicability. For example, users
are directed to institute tightened inspection ``when 2 out of 2, 3,
4, or 5 consecutive lots or batches have been rejected by the
original inspection.'' Switching procedures, in general, refer to a
set of rules that tell users when to adopt normal, tightened, or
reduced inspection. The Standard clearly states that the sampling
plan performance characteristics it published are valid only when
the full set of procedures, including the switching procedures, are
adopted. AAR's Performance Standard lacks switching rules, and AAR
has not determined the compliance rate bias resulting from this
lack.
Appendix 1--Review of AAR'S Performance Standard Proposal
1. Summary of AAR's Proposal
Key features of the proposals by AAR's Performance Standard for
Part 225 Reporting by Class I Railroads and Amtrak are as follow:
(a) Class I Railroads shall maintain Internal Control Procedures
(ICP) designed to assure 99-percent compliance for accident/incident
reporting under Sec. 225.11.
(b) Accident/incident compliance rate will be estimated for
reporting periods of 12
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months or more from comparisons between reports filed with FRA and
the railroad's own data base containing records for employee
injuries, illnesses, and property damage.
(c) Key features of audits to be conducted to monitor compliance
rates are as follow:
(1) Each railroad will provide to FRA a list of reportable
occurrences for a specified calendar year containing all relevant
information and record locations, and make records available for
inspection upon FRA request, subject to special rules.
(2) FRA will draw a random sample of entries from each list in
accordance with the General Inspection Level II procedures contained
in Military Standard (MIL-STD-105E), and assess the sample for
compliance based on procedures specified in that Standard.
(3) A rejection is defined as failure to report a reportable
occurrence under Sec. 225.19, subject to applicable procedures for
resolving reporting requirements.
(4) Audits will be conducted by qualified FRA personnel. Results
will be reported to railroads in writing.
(d) Failure to achieve a 99-percent compliance rate is subject
to civil penalties. Railroads must propose corrective action within
30 days. FRA may reschedule new audits within a reasonable period.
(e) Failure to achieve 99-percent compliance rate for a second
time is treated as in paragraph (d), except that FRA may also direct
the railroad to file a written ICP with FRA.
(f) Each railroad directed to file a written ICP in accordance
with this paragraph, shall maintain a written ICP, covering internal
processes/procedures within the railroad's control, for the
preparation of accident/incident reports under Sec. 225.11.
(g) Railroads may petition for relief from paragraph (f) after
achieving 99-percent compliance rate twice in a row.
2. Overview of Audit Using MIL-STD-105E
The procedure identified by AAR in paragraph (c)(2) involves the
following operational steps:
Step 1. Determine the sample size (N) of reported occurrences
for checking by reference to the family of single sampling plans for
normal inspection that are contained in Master Table II-A. The
applicable sample size is in the 2nd column of Table II-A in the row
identified by the sample size code letter for the number of reported
occurrences on the list. The code letter is to be found in the
column headed ``General inspection level II'' using reported number
of occurrences as ``Lot or batch size'' to select the row in Table
I.
Step 2. Draw a random sample of N occurrences from the list of
all reportable and non-reportable accidents/incident occurrences
submitted to FRA by the railroad company.
Step 3. Examine relevant data items for all occurrences in the
sample, classify the reporting requirements for each element, and
determine the total number of rejects, i.e., reportable occurrences
that were reported as non-reportable (n).
Step 4. Reject the sample if the total number of rejects equaled
or exceeded the acceptance number (Ac) for the sampling plan. In
general, sample size and acceptance number jointly determine the
stringency of reporting requirements. For the plans advocated by
AAR, Ac is located at the intersection of the row for the sample
size code letter, and the column for which Acceptable Quality Level
(normal inspection) in Table II-A equals 1.0.
3. Interpreting AAR's Inspection Plan and Some Comments
The sampling plans and procedures contained in Military Standard
(MIL-STD-105E, 1989) were designed for use in planning and
conducting inspection by attributes. As the foreword to the
documentation states, ``the sampling concept is based on the
probabilistic recurrence of events when a series of lots or batches
are produced in a stable environment.''
When applying the Standard (MIL-STD-105E), AAR views a
railroad's list of all reportable and non-reportable accidents/
incidence occurrences for a 12 month period as ``a lot or a batch.''
The Standard defines ``inspection by attributes'' as
``inspection whereby either a unit of product is classified simply
as defective or non-defective, or the number of defects in the unit
is counted, with respect to a given requirement or set of
requirements.'' AAR has provided only an implicit definition for the
attribute it proposes to use by defining rejection ``* * *as a
railroad's failure to report an occurrence required to be reported
under section 225.19 and not reported, * * *'' With this definition
of inspection attribute, only reportable accidents that were not
reported can give rise to a rejection under any circumstance.
Reportable accidents that were reported, and non-reportable
accidents are always correctly classified.
Note that list size depends on the number of non-reportable
occurrences. AAR has not identified the class of non-reportable
occurrences that railroads expect to include on lists.
The documentation for the Standard contains three types of
sampling plans: single, double, and multiple. AAR recommended the
use of single sampling plans. With a single sampling plan, a single
random sample is drawn from each list. The documentation recognizes
that samples may need to be stratified based on ``some rational
criterion,'' or may need to be collected over time. AAR has not
recommended the use of stratification.
Once sampling plan type has been chosen, inspection level
determines the relationship between the number of occurrences
included in the list (the lot or batch size) and sample size. The
documentation recognizes three general inspection levels (I, II, and
III), and four special inspection levels. Inspection level II is
regarded as normal. Relative to the use of a level II plan, the use
of a level I plan would reduce discrimination level, and the use of
a level II plan would increase it. AAR recommends the use of level
II plans.
Once sampling plan and inspection levels have been selected, the
remaining choice is Acceptable Quality Level (AQL). According to the
documentation, ``when a continuous series of lots is considered, the
AQL is the quality level which, for the purpose of sampling
inspection, is the limit of a satisfactory process average.'' For a
given sampling plan, inspection level, and AQL, the documentation
provides tables for determining sample size, acceptance numbers, and
rejection numbers.
The Standard instructs users to choose AQL in a manner that is
appropriate for the level of acceptable risk. This choice involves
balancing the consequences of accepting lots with too many or too
few defectives. The documentation of the Standard emphasizes that,
by itself, AQL does not determine the chances of accepting or
rejecting individual lots or batches. AQL relates directly only to
what might be expected from a series of lots of batches provided
appropriate ``switching procedures'' (see discussion below) and
other related steps contained in the Standard, are also implemented.
AAR recommended the use of 0.01 as the AQL value for audits.
In the terminology of the Standard, ``switching procedures''
describe how the inspection procedures need to be modified under
special circumstances. Normal procedures would be in effect until 2
out of 2-5 consecutive lots have been rejected. When that happens,
inspection procedures would need to be tightened. There are other
rules for switching from tightened to normal, and from normal to
reduced, procedures.
As stated earlier, by itself, AQL does not characterize the
performance of a sampling plan. AQL is the designated value of
percent defectives for which lots will be accepted most of the time
by the sampling procedure. Understanding the full implications of a
sampling plan requires looking at its operating characteristic curve
(OCC). In general, OCCs indicate the percentage of lots and batches
which may be expected to be accepted under various sampling plans
for a given process quality. Table X in the documentation of the
Standard provides the OCCs for normal inspection of a range of
sample sizes and sampling plans.
Appendix 2--Nominal Compliance Rate Under AAR's Performance Standard
AAR's scheme monitors the rate of reporting errors of reportable
accidents/incidents relative to all records (R-type and NR-type
combined), which is not interesting, rather than relative to all
reportable occurrences (R-type records plus reportable occurrences
reported as NR-type records), which is interesting. As proposed,
AAR's Performance Standards would deliver 97-percent compliance
based on the former compliance rate which is of no interest. The
proposed Performance Standards are completely uninformative
regarding the latter compliance rate, which does matter.
We apply AAR's scheme (cf paragraph (c)(2) in the Appendix to
AAR's Comments) to AAR's example of 5,000 occurrences and an
acceptable quality level of one-percent, AQL = 0.01. In this case,
Tables I and II-A require drawing a random sample of size 200, and
set the acceptance number to five, and the rejection number to six.
The list is accepted whenever the random sample of
[[Page 30976]]
200 records contains five or fewer rejects. It is rejected whenever
it contains six or more rejects.
Under this sampling plan, railroads that underreport up to one-
percent of all reportable occurrences will pass the audit most of
the time.
The OCC for this sampling plan is shown in Table X-L. According
to Table X-L, the acceptance rate at AQL = 0.01 is 89-percent. In
other words, if the list of 5,000 occurrences contained exactly 50
defectives (1%), there would be a 89-percent chance of accepting it
based on auditing a random sample of size N = 200, and using five as
the maximum acceptable number of rejects.
The tables show that if the list contains 142 defectives for an
underreporting rate of 2.84-percent, expected rejection rate rises
to 50-percent; if it contains 232 defectives for an underreporting
rate of 4.64-percent, expected rejection rate rises to 90-percent.
Thus, rejection and acceptance are more or less in balance when
underreporting is close to three-percent and they reach extreme
values above and below it. Specifically, the chances of acceptance
and rejection are about the same when the underreporting rate is
about 2.8-percent. Rejection rate increases to 90-percent when
underreporting is about 4.6-percent, and it decreases to about ten-
percent when underreporting is about one-percent.
Noting that three-percent underreporting could be considered the
same as 97-percent compliance, one may reasonably characterize a
sampling plan with the above characteristics as a plan that achieves
97-percent of compliance. It is hard to justify the claim that it
achieves 99-percent compliance.
Table 1.--Correct and Reported Event/Occurrence Classifications
------------------------------------------------------------------------
Event/occurrence: Report
------------------------------------------ rejected
Report in by
Correct Reported error sampling
plan
------------------------------------------------------------------------
Reportable................... R-type.... No........ No........ N1
Reportable................... NR-type... Yes....... Yes....... N2
Non-reportable............... R-type.... Yes....... No........ N3
Non-reportable............... NR-type... No........ No........ N4
All.......................... All....... All....... All....... N
------------------------------------------------------------------------
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[FR Doc. 96-14943 Filed 6-17-96; 8:45 am]
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