[Federal Register Volume 61, Number 227 (Friday, November 22, 1996)]
[Rules and Regulations]
[Pages 59368-59371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29849]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA Docket No. RAR-4, Notice No. 14]
RIN 2130-AA58
Railroad Accident Reporting
AGENCY: Federal Railroad Administration (FRA, DOI).
ACTION: Final rule; Correcting amendments and partial response to
petitions for reconsideration.
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SUMMARY: On June 18, 1996, FRA published a final rule amending the
railroad accident reporting regulations. FRA now makes technical
corrections to the final rule and responds to certain concerns raised
in petitions for reconsideration of the final rule, which concerns were
also raised in requests to stay the effective date of the final rule.
In this document FRA issues amendments to the final rule addressing
those concerns. FRA's response to the other concerns raised in
petitions for reconsideration of the final rule will appear in the near
future in a separate document published in the Federal Register.
EFFECTIVE DATE: January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director,
Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street,
SW., Washington, D.C. 20590 (telephone 202-632-3386); or Nancy L.
Goldman, Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh
Street, SW., Washington, D.C. 20590 (telephone 202-632-3167).
SUPPLEMENTARY INFORMATION: On June 18, 1996, FRA published a final rule
amending the railroad accident reporting regulations at 49 CFR part 225
(61 FR 30940). The final rule aims to minimize underreporting and
inaccurate reporting of those injuries, illnesses, and accidents
meeting reportability requirements. On August 19, 1996, and August 29,
1996, respectively, the Association of American Railroads (AAR) and the
Union Pacific Railroad Company (UP) filed petitions for reconsideration
of the final rule raising various concerns and requested in their
petitions for reconsideration, and by purported petitions for stay not
recognized by FRA regulations at 49 CFR part 211, that FRA postpone the
effective date of the final rule (collectively, Petitions). The
Petitions specifically allege:
That AAR member railroads will be exposed to substantial
risk should the rule not be stayed pending FRA's decision on AAR's
Petition for Reconsideration; and
That the text of the final rule may allow employees
access to records and files which the railroads may deem to be
privileged, confidential, and litigation-sensitive, thus giving
employee litigants advantages that could expose railroads to
irreparable injury.
1. Requests To Stay the Effective Date
As stated above, AAR and UP request in their Petitions that FRA
stay the effective date of the final rule, asserting that such a stay
is in the public interest and that other interested parties would not
be substantially harmed by such a stay since the rule does not address
``any significant safety risk.'' AAR claims that its member railroads
will be exposed to substantial risk should the rule not be stayed
pending FRA's decision on AAR's Petition for Reconsideration. Section
211.31 of FRA's rules of practice states that FRA must decide to grant
or deny, in whole or in part, each petition for reconsideration not
later than four months after receipt by FRA's Docket Clerk (49 CFR
211.31). In this case, FRA's decision on the petitions for
reconsideration is due no later than December 19, 1996. AAR and UP
therefore request an immediate stay of the effective date for a
reasonable period of time after issuance of FRA's decision on the
Petitions for Reconsideration in order to assess FRA's decision and
evaluate how FRA's decision impacts the final rule. In the alternative,
AAR and UP request postponement of the effective date of the final rule
from January 1, 1997, to January 1, 1998.
Discussion
After careful consideration and for the reasons set forth in this
document, FRA has decided not to stay the effective date of its final
rule. FRA so informed AAR and UP by letter dated October 10, 1996.
Initially, FRA wishes to emphasize that its rules of practice applying
to rulemakings do not authorize petitions for stay of a final rule. See
49 CFR part 211. Since procedures do not exist with respect to a stay
petition, there exists no regulatory deadline by which to answer such a
petition, and FRA's response to AAR's and UP's purported petitions for
stay (``Petitions for Stay'') did not constitute a final agency action
subject to review. It should also be noted that the filing of a
petition for reconsideration does not stay the effectiveness of a rule
under 49 CFR 211.29. Nevertheless, FRA chose to reply to the
substantive issues in AAR's and UP's ``Petitions for Stay'' in order to
[[Page 59369]]
maintain and foster the collaborative and cooperative partnership
approach to resolving issues important to the industry.
FRA is also confident that railroads were given ample time to
prepare to comply with the final rule, given the amount of time between
its publication (June 18, 1996) and its effective date (January 1,
1997). Those subject to a Federal rule are not entitled to predicate
their actions on the assumption that a petition for reconsideration
will result in substantive changes to the rule. The public interest
would not be served by delaying the effective date of this rule at this
time, based on FRA's review of the grounds set forth in the ``Petitions
for Stay.'' Therefore, if, in responding to pending petitions for
reconsideration of the final rule from AAR, UP, or others, FRA makes
any additions or changes to the final rule, then FRA will allow the
railroads sufficient time and latitude to comply with any revised
provisions. In the meantime, the industry should plan to comply on the
original effective date of January 1, 1997.
2. Section 225.25(c) Recordkeeping
Current Final Rule Language
Section 225.25(c) reads as follows:
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.
As noted, the Petitions contend that this section would allow
railroad employees access to records and files which the railroad may
deem to be privileged, confidential, and/or litigation-sensitive. AAR
claims that the portion of Sec. 225.25(c) that would allow employees
access to ``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,'' may give employee litigants advantages that could expose
railroads to irreparable injury. UP states that by means of
Sec. 225.25(c), FRA was trying to ``preempt [Federal Employers'
Liability Act (45 U.S.C. 51 et seq.)] FELA case law, FELA statutory
language, the Federal Rules of Civil Procedure, and the jurisdiction of
the judiciary itself.'' Similarly, AAR states that Sec. 225.25(c)
``purports to overturn the Federal Rules of Civil Procedure and other
statutory protections by requiring railroads to open their files and
give privileged documents to potential and actual plaintiff-employees''
and that the section was unlawful and in violation of the
Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) because FRA
failed to give public notice of this provision and allow opportunity
for comment. UP further questions how employee access to medical files
would assist FRA in improving railroad safety.
AAR states that the adverse effects of the final rule are:
(1) To interfere irrevocably with full and frank disclosure between
attorney and client which is critical to the functioning of the
adversary system, by mandating release of attorney-client
communications that had been made in the past and would have been made
in the future with an expectation of confidentiality,
(2) To undermine irrevocably the protections that are accorded
accident reports under 49 U.S.C. 20903 in order to avoid their use for
any adversarial purpose, by mandating release of such reports, and
(3) To undermine irrevocably the railroads' rights to
confidentiality of other privileged and litigation-sensitive documents,
by mandating their release.
Discussion and Amended Final Rule
AAR's assertion that FRA failed to give notice and an opportunity
to comment on the provision in Sec. 225.25(c) is without merit. In the
railroad accident reporting Notice of Proposed Rulemaking (NPRM),
published in the Federal Register on August 19, 1994 (59 FR 42880), FRA
proposed in Sec. 225.39(b) that each railroad provide the worker whose
injury or illness is reported on the Railroad Worker Injury and Illness
Log, with a copy of such log within seven calendar days of completing
the log. The preamble to the NPRM explained FRA's concern with the fact
that the injured or ill employee did not have the opportunity to review
and verify the information the railroad submitted on accident/illness
reports prior to submission of such reports to FRA.
The preamble to the final rule further explained the agency's
rationale for issuing these regulations. FRA believes that to the
extent it concerns documents required by FRA to be maintained or
submitted, the requirement in Sec. 225.25(c) 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. By
providing this requested information, the employee would have the
opportunity to assess why, or why not, a particular event was, or was
not, reported to FRA. By including the employee in this process, the
overall integrity of FRA's data base would improve. The accuracy of
railroad accident and injury data is essential to improving the safety
of railroad employees and the railroad industry as a whole. Further, a
reliable and accurate railroad injury and accident reporting data base
is critical to formulating effective rail safety policies and
regulations.
In writing the final rule, however, FRA never intended to negate
the well-established litigation privileges with respect to the type of
documents railroad employee litigants may obtain from the railroads.
The final rule better defines the types of documents to which employees
may obtain access, and is a logical outgrowth of the proposed
regulation.
FRA is amending Sec. 225.25(c) to clarify that railroads are
required to grant a railroad employee access only to forms or reports
required to be maintained or filed under Part 225 pertaining to that
employee's own work-related injury or illness. Thus, the amended final
rule cannot be read to provide employees access to any other documents
in the railroad's files; nor can the revised language be interpreted to
deny employees access to such documents. Such access would be an issue
between the employee and the railroad. The accident reports statute (49
U.S.C. 20102, 20901-20903, 21302, 21304, 21311) does not preclude
disclosure of such documents; instead that statute precludes the
``use'' of such documents in lawsuits for damages of certain accident
reports. This distinction between the public availability of accident/
incident reports and their use in litigation is clearly made in
Sec. 225.7 of both the current and amended final rule.
3. Section 225.35 Access to Records and Reports
Current Final Rule Language
AAR's petition for reconsideration asserts that the following
portion of Sec. 225.35 is unlawful because FRA failed to give public
notice of this provision and allow opportunity for comment and that the
provision would allow FRA and ``other authorized representatives''
access to any document or record without regard to any claim of
privilege:
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
[[Page 59370]]
photocopying in a reasonable manner during normal business hours.
Discussion
AAR's assertion that FRA failed to give notice and an opportunity
to comment on this provision in Sec. 225.35 is without merit. In the
accident reporting NPRM, FRA proposed in Sec. 225.41 that all reports,
logs, plans, and records related to (a) rail equipment accidents/
incidents, including collisions and derailments; (b) highway-rail grade
crossing accidents/incidents; (c) deaths, injuries, and illnesses,
including claims and medical records; as well as all records and
reports identified in Sec. 225.25, must be made available, upon
request, to any FRA representatives, or any representative of a State
participating in investigative and surveillance activities under the
Federal railroad safety laws and regulations, for examination and
photocopying in a reasonable manner during normal business hours. The
final rule provision in Sec. 225.35 adds ``any authorized
representative'' to the list of persons who may obtain access to
railroad documents only to distinguish ``FRA inspectors'' from ``FRA
management staff'' who may sometimes accompany FRA inspectors and
specialists during routine inspections.
As stated in the preamble to the NPRM and the final rule, FRA
believes that Sec. 225.35 would alleviate the problems and reluctance
that FRA inspectors frequently encounter from the railroads when
examining and photocopying claims department records, particularly
railroad employee medical records.
Amended Final Rule
FRA grants, in part, AAR's request for reconsideration as to that
portion of Sec. 225.35 that would allow FRA and any other authorized
representative access to ``any record and report (including relevant
claims and medical records) required'' under the accident reporting
regulations. FRA agrees that Sec. 225.35 was inadvertently drafted in
an overly broad manner and that it may be misinterpreted to require
railroads to release all medical and claim-related records to FRA upon
request without regard to any claim of privilege. FRA did not intend
unlimited access to all documents contained in an employee's file or to
deny railroads the opportunity to assert a privilege with respect to a
particular document. There are instances, however, where FRA may deem
it necessary to obtain a document in the railroad's possession or under
the control of the railroad that may contain information relevant to
aid its investigation into the cause of a railroad accident or incident
or an employee's injury or illness. FRA has authority under 49 U.S.C.
20107 and 20902 to request and obtain such documents.
When confronted with such a request, railroads usually cooperate
and provide FRA with the requested relevant documents. In rare
instances, a railroad may assert that the requested documentation is
privileged and may deny access to such records. Should the railroad
assert such a legal privilege with respect to particular records,
failure to provide FRA access to such records will not constitute a
violation of this section. However, if the railroad refuses to release
information that FRA deems relevant to its investigation, then FRA may
consider it necessary to issue a subpoena for the production of
documents in order to carry out its duty to enforce the federal
railroad safety laws. If the railroad should then fail to produce any
of the requested documents in the possession or under the control of
the railroad for examination and photocopying, FRA may seek enforcement
of the subpoena in federal district court. See 49 U.S.C. 20107 and
20902, delegated from the Secretary of Transportation by regulations of
the Office of the Secretary at 49 CFR l.49(m), and the authority of 49
CFR 209.7(a) and 225.31(b). Of course, a railroad could raise its claim
of privilege in any action to enforce a subpoena. Alternatively, should
a railroad claim a legal privilege concerning such a document, the
railroad could submit the document to FRA with a request for
confidential treatment under 49 CFR 209.11.
Thus, Sec. 225.35 is revised to clarify that FRA and other
authorized representatives must have centralized access to records or
reports required to be maintained or filed under part 225 and must have
access to relevant claims and medical records and that should the
railroad assert a legal privilege with respect to certain claims and
medical records, failure to provide FRA access to such records would
not violate this section. However, FRA may nevertheless use its
subpoena power to obtain such records, and the railroad could contest
that subpoena if it so chooses.
4. Technical Corrections
In the list of definitions in Sec. 225.5, the definition for
``Accountable injury or illness,'' which appears on page 30968, column
one, of the Federal Register issue of June 18, 1996, should read as a
separate paragraph. The definition for ``Day of restricted work
activity'' on page 30968, column two, of the Federal Register issue of
June 18, 1996, erroneously makes reference to the fact that
``restricted'' is defined below. Thus, the parenthetical phrase ``(as
defined below)'' is removed from the definition.
Section 225.33(a)(10)(ii) erroneously makes reference to paragraphs
``(a)(10)(i)(C)(D) (iii) and (iv)'' of that section. Section
225.33(a)(10)(ii) now reads as follows: ``A current organization chart
satisfies paragraphs (a)(10)(i) (B), (C), and (D) of this section.''
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
The amendments to the final rule have been evaluated in accordance
with existing regulatory policies and procedures and are considered to
be a nonsignificant regulatory action under DOT policies and procedures
(44 FR 11034; February 26, 1979). The amendments to the final rule also
have been reviewed under Executive Order 12866 and are also considered
``nonsignificant'' under that Order.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities,
unless the Secretary certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The technical corrections to the final rule have no economic
impact. The amendments to the final rule will have no new direct or
indirect economic impact on small units of government, business, or
other organizations. The amendments only clarify the well-established
legal privileges with respect to the types of documents to which
railroad employees, FRA inspectors, and other authorized
representatives may obtain access from railroads. The clarifications
actually provide regulatory relief to railroads and, as such, do not
require any revision to the Regulatory Impact Analysis (RIA) produced
for the final rule. No revision to the RIA is necessary because the
burden was calculated based on FRA's original intentions of these
requirements, which are now reflected in the amendments to the final
rule.
Paperwork Reduction Act
There are no new information collection requirements associated
with these amendments. Therefore, no estimate of a public reporting
burden is required.
[[Page 59371]]
Environmental Impact
The amendments will not have any identifiable environmental impact.
Federalism Implications
The amendments to the final rule will not have a substantial effect
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government. Thus, in accordance with Executive
Order 12612, preparation of a Federalism Assessment is not warranted.
List of Subjects 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 to read as follows:
PART 225--[AMENDED]
1. The authority citation for part 225 is revised to read as
follows:
Authority: 49 U.S.C. 20103, 20107, 20901, 20902, 21302, 21311;
49 U.S.C. 103; 49 CFR 1.49(c), (g), and (m).
Sec. 225.5 Definitions. [Corrected]
2. In Sec. 225.5, In the definition for ``Day of restricted work
activity,'' the parenthetical phrase ``(as defined below)'' in the
second and third lines of that definition is removed.
3. Section Sec. 225.25(c) is revised to read as follows:
Sec. 225.25 Recordkeeping.
* * * * *
(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 forms or reports required to be maintained or filed under this part
pertaining to that employee's own work-related injury or illness.
* * * * *
Sec. 225.33 Internal Control Plans. [Corrected]
4. In Sec. 225.33(a)(10)(ii), the reference to ``(a)(10)(i)(C)(D)
(iii) and (iv)'' is revised to read ``(a)(10)(i) (B), (C), and (D)''.
5. Section 225.35 is amended by removing the parenthetical phrase
``(including relevant claims and medical records)'' in the first
sentence and by adding after the first sentence the following:
Sec. 225.35 Access to records and reports.
* * * * *
Each railroad subject to this part shall also provide to any
representative of the Federal Railroad Administration or of a State
agency participating in investigative or and surveillance activities
under part 212 of this chapter or any other authorized representative
access to relevant medical and claims records for examination and
photocopying in a reasonable manner during normal business hours. * * *
6. Section 225.35 is amended by adding two sentences to the end of
that section to read as follows:
Sec. 225.35 Access to records and reports.
* * * Should a railroad assert a legal privilege with respect to
certain claims and medical records, failure to provide FRA access to
such records would not constitute a violation of this section. FRA
retains the right to issue a subpoena to obtain such records under 49
U.S.C. Secs. 20107 and 20902 and Secs. 209.7(a) and 225.31(b) of this
title, and the railroad may contest that subpoena.
Issued in Washington, D.C., on November 13, 1996.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 96-29849 Filed 11-21-96; 8:45 am]
BILLING CODE 4910-06-P
