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

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

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

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

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

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

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

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

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

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

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

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

Appendix M, ``Telephonic Reporting Chart.''

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

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

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

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

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

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

incurring the costs associated with implementation of the final rule.

B. Regulatory Flexibility Act and Executive Order 13272

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

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

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

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

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

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

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

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

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

D. Federalism Implications

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

E. International Trade Impact Assessment

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

F. Environmental Impact

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

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

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

G. Unfunded Mandates Reform Act of 1995

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

H. Energy Impact

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

I. Privacy Act

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

List of Subjects in 49 CFR Part 225

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

The Final Rule

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

PART 225--[AMENDED]

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

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

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

Sec.  225.1  Purpose.

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

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

Sec.  225.3  Applicability.

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

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

Sec.  225.5  Definitions.

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

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

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

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

Sec.  225.6  Consolidated reporting.

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

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

Sec.  225.7  Public examination and use of reports.

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

* * * * *

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

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

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

* * * * *

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

Sec.  225.11  Reporting of accidents/incidents.

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

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

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

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

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

* * * * *

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

Sec.  225.15  Accidents/incidents not to be reported.

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

Sec.  225.17  [Amended]

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

Sec.  225.18  Alcohol or drug involvement.

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

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

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

Sec.  225.19  Primary groups of accidents/incidents.

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

* * * * *

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

Sec.  225.21  Forms.

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

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

Sec.  225.25  Recordkeeping.

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

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

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

Sec.  225.27  Retention of records.

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

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

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

Sec.  225.33  Internal Control Plans.

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

* * * * *

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

Sec.  225.37  Optical media transfer and electronic submission.

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

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

Sec.  225.41  Suicide Data.

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

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

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

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

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