[Federal Register Volume 79, Number 57 (Tuesday, March 25, 2014)]
[Rules and Regulations]
[Pages 16218-16235]
[FR Doc No: 2014-06481]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 272

[Docket No. FRA-2008-0131, Notice No. 2]
RIN 2130-AC00

Critical Incident Stress Plans

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

ACTION: Final rule.

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

DATES: This final rule is effective on June 23, 2014. Petitions for
reconsideration must be received by May 27, 2014.

ADDRESSES: Petitions for reconsideration and comments on petitions for
reconsideration: Any petitions for reconsideration or comments on
petitions for reconsideration related to this Docket No. FRA-2008-0131,
Notice No. 2 may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to www.Regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington,
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Please note that all comments received will be posted
without change to www.Regulations.gov, including any personal
information provided. Please see the discussion under the Privacy Act
heading in the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or
comments received, go to www.Regulations.gov at any time or visit the
Docket Management Facility, U.S. Department of Transportation, West
Building, Ground floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC between 9 a.m. and 5 p.m. ET, Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program issues: Dr. Bernard J.
Arseneau, Medical Director, Office of Railroad Safety, FRA, 1200 New
Jersey Avenue SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>),
<EMAIL_ADDRESS>or Ronald Hynes, Director, Office of Safety
Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New
Jersey Avenue SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>),
<EMAIL_ADDRESS>For legal issues: Veronica Chittim, Trial
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE.,
Washington, DC 20950 (telephone:<PHONE_NUMBER>),
<EMAIL_ADDRESS>or Gahan Christenson, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Washington, DC 20950
(telephone:<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Overview of Critical Incidents and Critical Incident Stress
Plans
    A. Statutory Mandate and Authority To Conduct This Rulemaking
    B. Factual Background
III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
IV. RSAC Critical Incident Working Group
V. FRA's Approach to Critical Incident Stress Plans
VI. Discussion of Public Comments and Conclusions Regarding the
Final Rule
    A. Section 272.9, Definitions
    B. Section 272.101, Content of a Critical Incident Stress Plan
    C. Section 272.103, Submission of a Critical Incident Stress
Plan
    D. Section 272.105, Option To File Critical Incident Stress Plan
Electronically
    E. Comments on the Economic Analysis
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272

    C. Executive Order 13175
    D. Paperwork Reduction Act
    E. Environmental Impact
    F. Executive Order 13132, Federalism Implications
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act Statement

I. Executive Summary

    This final rule requires each Class I railroad, intercity passenger
railroad, and commuter railroad to establish and implement a critical
incident stress plan for certain employees of the railroad who are
directly involved in, witness, or respond to, a critical incident.
    Although FRA has never regulated critical incident stress plans,
many railroads have had some form of critical incident stress plan in
place for many years. This rulemaking responds to the Rail Safety
Improvement Act of 2008 (Pub. L. 110-432, Div. A) (RSIA) mandate that
the Secretary of Transportation establish regulations to define
``critical incident'' and to require certain railroads to develop and
implement critical incident stress plans.
    FRA received several public comments in response to FRA's June 28,
2013, notice of proposed rulemaking on Critical Incident Stress Plans
(NPRM), see 78 FR 38878. Comments include remarks on FRA's proposals
related to the definition of critical incident, the content of critical
incident stress plans, the proposed process for submitting critical
incident stress plans to FRA for approval and assuring all relevant
railroad personnel are aware of the relief available pursuant to a
railroad's plan. After careful consideration of each comment received,
in this final rule FRA is adopting the rule text substantially as
proposed in the NPRM, except for clarifying changes to 49 CFR
272.101(a) and (f), and making electronic submission mandatory in 49
CFR 272.105.
    As discussed in detail below, FRA reviewed the applicable science
and information received through the Railroad Safety Advisory Committee
(RSAC), and as required by Congress, in this final rule, FRA defines
``critical incident'' and requires a set of minimum standards for
critical incident stress plans. This approach provides covered
employees with options for relief following a critical incident, yet
allows for substantial flexibility within the regulatory framework so
that railroads may adapt their plans commensurate with their needs. The
final rule defines a ``critical incident'' as either--(1) An accident/
incident reportable to FRA under 49 CFR part 225 that results in a
fatality, loss of limb, or a similarly serious bodily injury; or (2) A
catastrophic accident/incident reportable to FRA under part 225 that
could be reasonably expected to impair a directly-involved employee's
ability to perform his or her job duties safely. The required set of
minimum standards for critical incident stress plans include allowing a
directly-involved employee to obtain relief from the remainder of the
tour of duty, providing for the directly-involved employee's
transportation to the home terminal (if applicable), and offering a
directly-involved employee appropriate support services following a
critical incident. This final rule requires that each railroad subject
to this rule submit its plan to FRA for approval.
    FRA has analyzed the economic impacts of this final rule against a
``status quo'' baseline that reflects present conditions (i.e.,
primarily what applicable railroads are already doing with respect to
critical incident policy). As done when preparing the NPRM and based on
both RSAC meetings and discussions with the rail industry, FRA's
analysis assumes that all railroads affected by the final rule
currently have policies that include a critical incident stress plan,
thereby reducing the costs of compliance associated with this final
rule. In estimating these compliance costs, FRA included costs
associated with training supervisors on how to interact with railroad
employees who have been affected by a critical incident, employee
training, counseling, and other support services, and costs associated
with the submission of critical incident stress plans to FRA for
approval. FRA estimates that the costs of the final rule for a 20-year
period would total $1,943,565. Using a 7 percent and a 3 percent
discount rate, the total discounted costs will be $1,337,830 and
$1,615,519, respectively.
    The final rule contains minimum standards for leave, counseling,
and other support services. These standards would help create benefits
by providing employees with knowledge, coping skills, and services that
would help them: (1) Recognize and cope with symptoms of normal stress
reactions that commonly occur as a result of a critical incident; (2)
reduce their chance of developing a disorder such as depression, Post-
Traumatic Stress Disorder (PTSD), or Acute Stress Disorder (ASD) as a
result of a critical incident; and (3) recognize symptoms of
psychological disorders that sometimes occur as a result of a critical
incident and know how to obtain prompt evaluation and treatment of any
such disorder, if necessary. FRA anticipates that implementation of
this final rule would yield benefits by reducing long-term healthcare
costs associated with treating PTSD, ASD, and other stress reactions;
and costs that accrue either when an employee is unable to return to
work for a significant period of time or might leave railroad
employment due to being affected by PTSD, ASD, or other stress
reactions. In addition, safety risk posed by having a person who has
just been involved in a critical incident performing safety critical
functions is also reduced. The majority of the quantifiable benefits
identified by FRA's analysis are associated with railroad employee
retention and a reduction of long-term healthcare costs associated with
PTSD cases that were not treated appropriately after a critical
incident. FRA expects that this final rule would decrease the number of
employees who leave the railroad industry due to PTSD, ASD, or other
stress reactions, as early treatment for such conditions following
exposure to a critical incident would reduce the likelihood of
developing the conditions. In addition, if a railroad employee involved
in a critical incident did develop PTSD, ASD, or other stress reaction
despite the initial relief afforded by a railroad's critical incident
stress plan, FRA expects that this final rule would decrease the
duration of the condition as the chances for early identification of
the condition would be increased and more immediate healthcare would be
provided to the affected individuals. FRA estimates that the present
value of the quantifiable benefits for a 20-year period would total
$2,630,000. Using a 7 percent and a 3 percent discount rate, the total
discounted benefits would be $1,505,622 and $2,023,548, respectively.
Overall, FRA finds that the value of the anticipated benefits would
justify the cost of implementing the final rule.

II. Overview of Critical Incidents and Critical Incident Stress Plans

A. Statutory Mandate and Authority To Conduct This Rulemaking

    On October 16, 2008, Congress enacted the RSIA. Section 410 of the
RSIA (Section 410) mandates that the Secretary of Transportation
(Secretary) require ``each Class I railroad carrier, each intercity
passenger railroad carrier, and each commuter railroad carrier to
develop and submit for approval to the Secretary a critical incident
stress plan that provides for debriefing, counseling, guidance, and
other appropriate support services to be offered to an employee
affected by a critical incident.'' See Section 410(a). Section 410
mandates that the plans include provisions for relieving employees who
are involved

in, or who witness, critical incidents from their tours of duty, and
for providing leave for such employees from their normal duties as may
be necessary and reasonable to receive preventive services and
treatment related to the critical incident. See Section 410(b). Section
410 specifically requires the Secretary to define the term ``critical
incident'' for purposes of this rulemaking. See Section 410(c). The
Secretary has delegated his responsibilities under the RSIA to the
Administrator of FRA. See 49 CFR 1.89(b). In the Section-by-Section
Analysis below, FRA discusses how the regulatory text addresses each
portion of the Section 410 mandates. This final rule is also issued
pursuant to FRA's general rulemaking authority at 49 U.S.C. 20103.
    As required by Section 410(a), FRA consulted with the Department of
Health and Human Services (HHS) and the Department of Labor (DOL) in
preparing this final rule. Specifically, in addition to consulting with
representatives of HHS and DOL, FRA provided those departments with an
advance copy of the proposed regulation and requested input on FRA's
approach. FRA has incorporated the suggestions provided by both HHS's
Substance Abuse and Mental Health Services Administration (SAMHSA) and
DOL's Wage and Hour Division.

B. Factual Background 1
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    \1\ Much of this background information and review of the
literature is derived from the independent final report prepared by
FRA grantee, Dr. Richard Gist, in support of Grant FR-RRD-0024-11-
01, titled, ``Proposed Key Elements of Critical Incident
Intervention Program For Reducing the Effects of Potentially
Traumatic Exposure On Train Crews to Grade Crossing and Trespasser
Incidents.'' See Docket No. FRA-2008-0131. Articles cited in this
final rule are available for viewing at FRA upon request.
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    As discussed thoroughly in the NPRM, highway-rail grade crossing
accidents and trespasser incidents along the railroad right-of-way are
an unfortunate reality for employees in the railroad industry. Railroad
work carries the risk that certain employees will be directly involved
in a critical incident, often outside the control of the employees,
which can lead to severe emotional and psychological distress,
including PTSD and the more immediate ASD.\2\ There are concerns about
the impact of exposure to traumatic incidents on employees in safety-
sensitive jobs, most notably engineers and conductors.
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    \2\ ASD is ``a mental disorder that can occur in the first month
following a trauma. The symptoms that define ASD overlap with those
for PTSD.'' ASD can lead to PTSD, but does not always. A ``PTSD
diagnosis cannot be given until symptoms have lasted for one
month.'' U.S. Department of Veterans Affairs, National Center for
PTSD, available at http://www.ptsd.va.gov/public/pages/acute-stress-disorder.asp (last accessed September 18, 2013).
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    Until this rulemaking proceeding, a national, uniform approach to
critical incident response in the railroad industry did not exist, with
only a handful of States taking action through statutes or regulations
to aid critical incident response in the railroad industry. With this
final rule, FRA defines the term ``critical incident'' in the railroad
setting, which if met, would trigger the requirement that appropriate
support services be offered to railroad employees affected by such
incidents.
    PTSD and ASD can develop following any traumatic event that
threatens one's personal safety or the safety of others, or causes
serious physical, cognitive or emotional harm. While such disorders are
most often initiated by a threat to one's life or the witnessing of
brutal injury or traumatic death--in combat situations, for example, or
during violent accidents or disasters--any overwhelming life experience
can trigger the disorders, especially if the event is perceived as
unpredictable and uncontrollable. Individuals exposed to traumatic
events may experience alterations in their neurologic, endocrine, and
immune systems, which have been linked to adverse changes in overall
health.\3\ These changes and symptoms can be ameliorated if treated
appropriately, usually with psychotherapy and/or medications. However,
PTSD and ASD often go undiagnosed, as few primary care providers
routinely assess for it and more often than not, attribute the symptoms
to less serious forms of depression, anxiety, and general emotional
distress.\4\
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    \3\ In a study of 830 train drivers in Norway, the 48 percent of
participants who had experienced at least one on-the-track accident
reported considerably more health problems than those who reported
no such exposure. Their symptoms included musculoskeletal,
gastrointestinal, and sleep pattern issues and continued from the
incident to the time of the study (for some participants up to ten
years). This study also revealed that the more pronounced initial
reactions to on-the-track accidents, the more severe and persistent
were the health complaints post-exposure. Vatshelle, A. & Moen, B.
E. (1996). Serious on-the-track accidents experienced by train
drivers: Psychological reactions and long-term health effects.
Journal of Psychosomatic Research, 42(1), 43-52. See also Wignall,
E. L., Dickson, J. M., Vaughan, P., Farrow, T. F. D., Wilkinson, I.
D., Hunter, M. D., & Woodruff, P. W. R. (2004). Smaller hippocampal
volume in patients with recent-onset posttraumatic stress disorder.
Biological Psychiatry, 56(11), 832-836.
    \4\ Gerrity M. S., Corson, K., & Dobscha S. K. (2007). Screening
for posttraumatic stress disorder in Veterans' Affairs primary care
patients with depression symptoms. Journal of General Internal
Medicine, 22(9), 1321-1324.
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    In 2011, there were approximately 2,000 highway-rail grade crossing
accidents, and almost 800 casualties to persons trespassing on railroad
property (trespassers). These incidents resulted in approximately 660
fatalities and over 1,400 non-fatal injuries. Each of these incidents,
as well as other traumatic events such as railroad accidents or
incidents resulting in serious injury or death to railroad employees,
hold potential for causing ASD, PTSD, or other health and safety-
related problems, in any railroad employee who is present. Some
locomotive engineers and conductors have had the misfortune of
experiencing multiple potential PTSD/ASD-invoking events over the
course of their careers.\5\
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    \5\ The Associated Press, Fatal Collisions Traumatize Nation's
Train Engineers, August 14, 2009. Saed Hindash, The Star-Ledger.
Death by Train. June 18, 2009. http://www.nj.com/insidejersey/index.ssf/2009/06/death_by_train.html (``Over a 40-year career,
the average engineer will be involved in five to seven incidents,
says Darcy, who has had seven fatalities.'').
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    Exposure of railroad employees, particularly locomotive engineers
and conductors, to prototypical potentially traumatic exposures is well
established. Incursion events, such as vehicular accidents at highway-
rail grade crossings and pedestrian incursions onto the railroad right-
of-way (frequently as a method of suicide) often involve fatalities and
the injuries sustained may be gruesome. Locomotive engineers and
conductors, because of their proximity to the accident scene, must
often tend to the injured and secure the scene, compounding the extent
and the duration of exposure. In particular, locomotive engineers may
be alone in the cab when an on-the-track accident occurs. Further,
train crews are required to report the incident, secure the train, and
often leave the train and examine the victims. Crew members may even
provide first aid if victims are alive, and wait, sometimes for long
periods, for assistance or instructions.
    Systematic empirical studies of the health impact on railroad
personnel of this kind of experience are limited. The best designed
studies have been European and show clinically diagnosed PTSD in 7 to
14 percent of those exposed. FRA has found no empirical studies of
treatment efficacy and impact within the U.S. railroad population,
presumably due to the relatively small population annually treated and
the different locations and systems involved in railroad employees'
identification and care.
    If left untreated, mental health conditions carry significant costs
for employers in the form of

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

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

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

    * Indicates associate, non-voting membership.

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

recommendation in developing the actual regulatory proposal or final
rule. Any such variations are noted and explained in the rulemaking
document issued by FRA. If the working group or RSAC is unable to reach
consensus on recommendations for action, FRA will proceed to resolve
the issue through traditional rulemaking proceedings.

IV. RSAC Critical Incident Working Group

    The Critical Incident Task Force (Task Force) was formed as part of
the Medical Standards Working Group, and its task statement (Task No.
09-02) was accepted by RSAC on September 10, 2009. On July 2, 2010, FRA
solicited bids for a grant to assess the current knowledge of post-
traumatic stress interventions and to advance evidence-based
recommendations for controlling the risks associated with traumatic
exposures in the railroad setting. On March 11, 2011, FRA awarded the
grant to the National Fallen Firefighters Foundation. On May 20, 2011,
the Task Force was reformulated into an independent working group, the
Critical Incident Working Group (CIWG). Task No. 09-02 (amended to
reflect the new independent working group) specified that the purpose
of the CIWG is to provide advice regarding the development of
implementing regulations for Critical Incident Stress Plans as required
by the RSIA. The Task Force further assigned the CIWG to do the
following: (1) Define what a ``critical incident'' is that requires a
response; (2) review available data, literature, and standards of
practice concerning critical incident programs to determine appropriate
action when a railroad employee is involved in, or directly witnesses,
a critical incident; (3) review any evaluation studies available for
existing railroad critical incident programs; (4) describe program
elements appropriate for the rail environment, including those
requirements set forth in the RSIA; (5) provide an example of a
suitable plan (template); and (6) assist in the preparation of a NPRM.
    Throughout 2011, the CIWG met four times. At the conclusion of the
last meeting, an informal task force was formed to consider the
substantive agreements made by the CIWG and to draft regulatory
language around those agreements for the CIWG's consideration and vote.
The small task force presented the language to the full CIWG for an
electronic vote on August 6, 2012. The CIWG reached a consensus on all
but one item \10\ and forwarded a proposal to the full RSAC on August
21, 2012. RSAC voted to approve the CIWG's recommended text on
September 27, 2012 and that recommended text provided the basis for
this final rule. While the CIWG did discuss developing a general
template flow chart of a suitable critical incident stress plan, as
recommended by the Grantee's Final Report, a specific model plan that
could be adapted and adopted by railroads was not developed by the
CIWG. Instead, the CIWG focused its efforts on the definition of
critical incident and the program elements essential for the regulatory
text.
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    \10\ Consensus was not reached on the issue of whether a
railroad should be required to provide labor organizations' general
chairpersons (in addition to the international/national president of
the labor organization) with a copy of a railroad's critical
incident stress plan.
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    In addition to FRA staff, the members of the CIWG include the
following:
    AAR, including members from BNSF Railway Company (BNSF), Canadian
National Railway (CN), Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), The Kansas City Southern Railway Company
(KCS), Norfolk Southern Railway Company (NS), Northeast Illinois
Regional Commuter Railroad Corporation (Metra), and Union Pacific
Railroad Company (UP);

Amtrak;
APTA, including members from Greater Cleveland Regional Transit
Authority; Long Island Rail Road (LIRR); MTA--Metro-North Railroad;
and Southern California Regional Rail Authority (SCRRA);
ASLRRA (representing short line and regional railroads);
ATDA;
BLET;
BMWED;
BRC/TCIU;
BRS;
NRCMA; and
UTU.

    Staff from DOT's John A. Volpe National Transportation Systems
Center attended all of the meetings of the CIWG and contributed to the
technical discussions.
    FRA has greatly benefited from the open, informed exchange of
information during the meetings. In developing this final rule, FRA
relied heavily upon the work of the CIWG.

V. FRA's Approach to Critical Incident Stress Plans

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

VI. Discussion of Public Comments and Conclusions Regarding the Final
Rule

    FRA notified the public of its options to submit written comments
on the NPRM and to request a public, oral hearing on the NPRM as well.
No request for a public hearing was received. However, a number of
interested parties submitted written comments to the docket, and FRA
has considered all of these comments in preparing this final rule.
Specifically, written comments were received from AAR; APTA; ATDA,
BLET, BMWED, BRS, TCU, UTU-SMART (Labor); New York State Metropolitan
Transportation Authority (Long Island Rail Road and Metro-North
Railroad) (NYS MTA); the Southeastern Pennsylvania Transportation
Authority (SEPTA); and a private citizen. FRA reviewed and analyzed
each issue mentioned in the comments. The major points of the comments
are addressed below, and individual points made are covered in more
depth in the Section-by-Section Analysis.

A. Section 272.9, Definitions

    As FRA requested in the NPRM, Labor, AAR, APTA, and NYS MTA
submitted comments addressing whether FRA should include explicit
language in the definition of ``critical incident'' to exclude ``near
miss'' scenarios. The commenters agree that ``near miss'' scenarios did
not need to be included in the definition of ``critical incident.''
Labor, NYS MTA, and APTA emphasize that while the definition need not
include a single ``near miss'' scenario, railroads should retain the
discretion to apply critical incident procedures to what might be
classified as a ``near miss'' or other situations that are not required
by the regulation to be considered critical incidents. As such, in this
final rule, FRA has kept the definition of ``critical incident'' the
same as that proposed in the NPRM, and notes in the Section-by-Section
Analysis of the definition of critical incident below that ``near
miss'' scenarios are not required to be addressed in a railroad's
critical incident stress plan. FRA emphasizes, however, that railroads

have the flexibility to determine on a case-by-case basis whether
individual or multiple ``near miss'' scenarios should be considered a
critical incident.
    SEPTA recommends several changes to the definitions of ``critical
incident'' and ``directly-involved employee'' which are discussed in
detail in the Section-by-Section Analysis below. Specifically, SEPTA
recommends clarifying the definition of ``critical incident'' to
include ``severe burns and readily visible gross trauma'' as a type of
``similarly serious bodily injury.'' In the definition of ``directly-
involved employee,'' SEPTA recommends adding language clarifying what
is meant by the terms ``closely connected'' and ``in person.'' SEPTA
also expresses the view that railroad police and accident investigators
should not be excluded from the definition of ``directly-involved
employee.''
    While FRA agrees in principal with the general substance of SEPTA's
comments, the agency does not believe that modifying the RSAC
recommended language is necessary to address the comments. Instead, in
response to SEPTA's comments FRA has included a discussion clarifying
these issues in the Section-by-Section Analysis.

B. Section 272.101, Content of a Critical Incident Stress Plan

    As proposed, this section would require that a railroad's critical
incident stress plan (CISP) contain at least provisions for carrying
out the objectives described in paragraphs (a)-(g) of the section. FRA
received comments in response to proposed paragraphs (a), (e), and (f)
of this section, and regarding FRA's preamble discussion of what would
constitute ``appropriate support services'' in accordance with proposed
paragraph (d). After careful consideration of the comments received,
FRA is adopting the regulatory language of this section as proposed,
with the exception of clarifying amendments to paragraphs (a) and (f).
A more detailed discussion of FRA's analysis of the comments received
is found in the Section-by-Section Analysis below.

C. Section 272.103, Submission of a Critical Incident Stress Plan

    As proposed, Sec.  272.103(b) requires, in part, that each railroad
serve a copy of its proposed CISP (or a material modification to an
existing CISP) on the international president/national president of any
non-profit employee labor organization representing a class or craft of
the railroad's employees covered by its CISP. As FRA requested in the
NPRM, several commenters discuss this service list requirement.
Consistent with the views expressed by Labor representatives during
CIWG meetings, Labor disagrees with FRA's proposal to limit service of
a proposed CISP to only the international/national president of the
relevant Labor organizations, while AAR supports the proposed service
list requirement. For the reasons discussed in more detail in the
Section-by-Section Analysis below, in this final rule FRA is
maintaining the proposed regulatory language requiring railroads to
provide copies of proposed CISPs to the international/national
president of any relevant labor organization representing a class or
craft of the railroad's employees covered by its CISP.

D. Section 272.105, Option To File Critical Incident Stress Plan
Electronically

    As proposed, Sec.  272.105 provided for optional electronic
submission of CISPs to FRA for approval. Responding to FRA's request
for comments on whether the option to file critical incident stress
plans electronically should be mandatory, Labor and AAR express support
for electronic submission. FRA received no comments opposing mandatory
electronic submission of CISPs. Accordingly, as discussed in the
Section-by-Section Analysis below, in this final rule FRA has modified
the regulatory language of proposed Sec.  272.105 to require railroads
to electronically submit CISPs to FRA for approval.

E. Comments on the Economic Analysis

    AAR believes that FRA may have overstated the potential benefit of
the proposed rule, because much of the estimated potential benefit is
attributable to reduced employee healthcare costs, and such benefit is
speculative. AAR reminds FRA that railroads already have critical
incident stress programs that include some or all of the elements that
would be required by the proposed rule. Despite this noted concern, AAR
emphasizes that it generally supports the proposed rule. APTA suggests
that FRA relied on insufficient data in structuring the proposed rule.
APTA notes that the rule did not use data on the U.S. railroad worker
experience with PTSD or acute stress. Because FRA referred to a
Norwegian railroad study and used an exposure rate that does not cover
all possible incidents that would be covered by the rule in its
economic estimates, APTA questions how FRA's cost analysis can be
valid. APTA also expresses concern with FRA's use of sources from
veterans and military institutions, as these are not comparable to the
railroad business environment.
    FRA noted in the preamble to the NPRM that systematic empirical
studies of the impact of these events on the health of exposed railroad
personnel are limited.\11\ However, FRA emphasizes that the data used
in its economic analysis is the best available research data.
---------------------------------------------------------------------------

    \11\ Some factors that hinder FRA's ability to determine the
rates of ASD and PTSD in exposed railroad employees are: (1) Some
exposed employees may be seeking care from their private mental
health care practitioners and not through a railroad EAP; (2) some
exposed employees who need evaluation and treatment for ASD and PTSD
are not seeking it; and (3) Labor and EAP concerns about medical
confidentiality may limit access to the data.
---------------------------------------------------------------------------

VII. Section-by-Section Analysis

    Unless noted otherwise, please refer to the extensive discussion in
the NPRM, as FRA has generally adopted the rule text as proposed in the
NPRM.

Subpart A--General

    Subpart A of the final rule contains the general provisions of the
rule, including a statement of the rule's purpose, an application
section, a statement of general duty, the critical incident stress plan
coverage section, a definitions section that includes the central
definition of a ``critical incident,'' and a statement pertaining to
penalties. As discussed further in the definitions section, Sec.
272.9, this final rule defines a ``critical incident'' as either--(1)
An accident/incident reportable to FRA under 49 CFR part 225 that
results in a fatality, loss of limb, or a similarly serious bodily
injury; or (2) A catastrophic accident/incident reportable to FRA under
part 225 that could be reasonably expected to impair a directly-
involved employee's ability to perform his or her job duties safely.
    As no comments were received in response to Sec. Sec.  272.1
through 272.7 and 272.11, FRA is adopting the regulatory language for
these sections as proposed in the NPRM.
Section 272.9 Definitions
    Section 272.9 defines a number of terms used in this part. FRA
received comments regarding the proposed definitions of ``critical
incident'' and ``directly-involved employee.'' After careful
consideration of the comments received and for the reasons discussed
generally in section VI.A above and in this Section-by-Section
Analysis, in this final rule FRA is adopting both definitions as
proposed in the NPRM.
    In the NPRM, FRA proposed to define critical incident as (1) An
accident/

incident reportable to FRA under 49 CFR part 225 that results in a
fatality, loss of limb, or a similarly serious bodily injury; or (2) A
catastrophic accident/incident reportable to FRA under part 225 that
could be reasonably expected to impair a directly-involved employee's
ability to perform his or her job duties safely. As noted in the NPRM,
this definition reflects the recommendations made by the CIWG and by
further limiting the definition of ``critical incident'' to accidents/
incidents that are reportable under part 225, all accidents and
incidents not arising from railroad operations are excluded from the
definition.
    While a reportable accident/incident could cover many incidents
that relate to railroad operations, as proposed and as adopted in this
final rule, the definition of ``critical incident'' includes only an
accident/incident that results in a fatality, loss of limb, or a
similarly serious bodily injury or a catastrophic accident/incident
reportable to FRA under part 225 of this chapter that could be
reasonably expected to impair a directly-involved employee's ability to
perform his or her job duties safely. Accordingly, minimal injuries in
the railroad workplace are not included in the scope of this
definition. Similarly, as explained in the analysis of the proposed
definition of ``critical incident'' in the NPRM, ``near miss''
scenarios (i.e., situations which when seen in hindsight could have
resulted in an accident, but did not) are not included.
    In its comments related to the proposed definition of ``critical
incident,'' SEPTA recommends that the definition be modified to include
``severe burns and readily visible gross trauma'' as an example of a
``similarly serious bodily injury.'' Although FRA agrees with SEPTA
that severe burns and readily visible gross trauma could be a
``similarly serious bodily injury,'' FRA does not believe it is
necessary to revise the definition to include that specific phrase.
    In the NPRM, FRA specifically requested comment as to whether the
proposed definition of ``critical incident'' should contain explicit
language excluding ``near miss'' scenarios. A ``near miss'' is an
event, seen in hindsight, in which an accident could have occurred, but
was narrowly avoided. For example, an automobile is rendered inoperable
on the railroad tracks at a highway-rail grade crossing, but the
automobile is able to get out of the way of the oncoming train, so that
a collision is averted. In response to this request, FRA received
comments from Labor, AAR, APTA, and NYS MTA.
    Labor states that it ``do[es] not believe there is any need to
cover a single `near miss' scenario, like a close call at a grade
crossing that did not result in a collision, since the FRA chose to
point to 49 CFR part 225 to clarify what would be considered an
accident/incident.'' But, Labor suggests that the rule should ``allow
for consideration of multiple `near miss' scenarios as a `critical
incident.' '' AAR comments that ``[t]he RSAC working group discussed
near misses at length and concluded that the regulations should not
encompass near misses.'' AAR notes that there is no evidence that
individuals generally suffer significant trauma from near misses. AAR
raises the issue that ``including near misses would present significant
compliance and enforcement issues,'' as it would be difficult to define
a ``near miss'' and it would be difficult for a railroad to know when a
``near miss'' occurs. AAR suggests that ``[w]hether in the rule text or
in the preamble, FRA needs to be clear that near misses are not
critical incidents.'' NYS MTA states that it ``support[s] FRA's
position that the applicable science does not appear to support
including `near miss' scenarios in the rule and that `near miss' issues
should be handled by each railroad on an individual basis.'' APTA
agrees, saying that it ``strongly supports FRA's intention to not
include Near Miss incidents in the regulatory definition.'' At the same
time, however, APTA notes that ``passenger railroads need to have the
discretionary authority within their critical incident plans to apply
critical incident procedures to what might be classified a near miss or
otherwise fall outside of the definitions proposed in the regulation.''
    As discussed thoroughly in the NPRM, while a ``near miss'' event
could cause a negative stress-reaction in a train crew, research
demonstrates that such reaction would typically only occur in
situations where, for example, an individual had been involved in a
prior similar incident which had catastrophic consequences or there
were other issues at play. FRA believes that such ``near miss''
scenarios should be handled by each railroad on an individual basis, as
the applicable science does not appear to support including ``near
miss'' scenarios in the rule generally. Additionally, FRA agrees with
AAR's comment that it would be difficult for railroads to comply with
and for FRA to enforce the regulation regarding a ``near miss,'' as a
railroad would not necessarily have evidence of such an occurrence.
Accordingly, although FRA is not revising the definition of ``critical
incident'' to specifically exclude ``near miss'' events, FRA notes that
the reference to part 225 in the definition makes clear that a single
``near miss'' event would not be considered a ``critical incident'' in
accordance with this rule. FRA further notes that this final rule does
not prohibit a railroad from implementing a critical incident stress
plan that provides flexibility for a railroad to determine on a case-
by-case basis whether individual or multiple ``near miss'' scenarios
should be considered a critical incident.
    In the NPRM, FRA proposed to define ``directly-involved employee''
to mean a railroad employee covered under proposed Sec.  272.7 who
falls into any of three stated subcategories: (1) Whose actions are
closely connected to the critical incident; (2) who witnesses the
critical incident in person as it occurs or who witnesses the immediate
effects of the critical incident in person; or (3) who is charged to
directly intervene in, or respond to, the critical incident (excluding
railroad police officers or investigators who routinely respond to and
are specially trained to handle emergencies).
    SEPTA comments that the phrase ``closely connected'' in
subparagraph (1) of the definition is ``vague'' and ``risks subjective
interpretations.'' SEPTA recommends replacing the term ``closely
connected'' with ``include an immediate presence at the covered
critical incident or whose contemporaneous, co-incidental participation
contributed to the incident--limited to train and engine personnel;
control and dispatch personnel; and employees who inspect, install,
repair, or maintain the involved right-of-way, structures, rolling-
stock, and communications and signals apparatus.''
    FRA finds that SEPTA's proposed modification would be unwieldy if
included in the regulatory text. Additionally, the language that SEPTA
recommends (``limited to train and engine personnel; control and
dispatch personnel; and employees who inspect, install, repair, or
maintain the involved right-of-way, structures, rolling-stock, and
communications and signals apparatus'') is unnecessary. This
recommended limitation encompasses the ``covered'' employees listed
under Sec.  272.7, and such persons are already the types of railroad
employees included in the definition of ``directly-involved employee.''
In response to SEPTA's comment, FRA notes that an employee ``closely
connected'' to a critical incident is intended to mean an employee
whose actions directly contribute to the incident (those actions

could be merely the actions of carrying out the individual's job
functions, e.g., by operating a train), or whose contemporaneous
actions (or inaction) directly contribute to the incident. An example
of when an employee may be ``closely connected'' to a critical
incident, even though he or she is not at the incident scene and
witnessing the incident in person, is a situation where an act or
omission by that employee (such as a train dispatcher) causes or
contributes to a critical incident (e.g., a dispatcher authorizes a
movement in error which results in a collision).
    The second subcategory is an employee covered under Sec.  272.7 who
``witnesses the critical incident in person as it occurs or who
witnesses the immediate effects of the critical incident in person.''
As noted in the preamble to the NPRM, this could include an employee
who is working alongside the track when a highway-rail grade crossing
collision occurs, and either sees the incident happen or comes upon the
casualties of the incident. SEPTA comments that ``the term `in person'
is too vague and could include a witness who views the occurrence from
afar or remotely via a live video feed.'' SEPTA recommends that FRA
modify the text to say: ``who was present on-site or immediately
proximal to the critical incident locale and observed the immediate
prelude, actual incident, and/or immediate effects therefrom.'' SEPTA
asserts that its suggested revision ``may also minimize possible
exploitation of the regulation's provision[s]'' for relief from duty
for directly-involved employees.
    FRA does not intend the term ``in person'' to mean a witness who
views the occurrence from afar or remotely via a live video feed. As
explicitly explained in the NPRM preamble, the phrase ``witnesses . . .
in person'' is intended to exclude employees who only hear about the
accident/incident (such as over the radio) and are not otherwise
directly involved in the accident/incident. See 78 FR 38885. The phrase
``in person'' was recommended by the CIWG small task force. FRA
believes that the task force's language is clear and that as a matter
of plain English, the term ``in person'' is commonly understood to mean
that an individual is ``actually present.'' Accordingly, FRA declines
to adopt SEPTA's proposed modification in the regulatory text. However,
FRA reiterates that ``in person'' is intended to encompass persons who
were present on-site or immediately proximal to the critical incident
locale and observed the immediate prelude, actual incident, and/or
immediate effects therefrom.
    The third subcategory would include an employee covered under Sec.
272.7 who is charged to directly intervene in, or respond to, the
highway-rail grade crossing accident/incident, such as craft and
supervisory employees who are called out to the scene. Consistent with
the intent of the CIWG, the proposed language specifically excluded
``railroad police officers or investigators who routinely respond to
and are specially trained to handle emergencies.'' During the RSAC
process, members of the CIWG specifically indicated that the rule
should not cover railroad police officers and railroad investigators
who routinely respond to such incidents and are specially trained to
handle such emergency matters.
    As discussed above, SEPTA comments that ``[t]he term `specially
trained' excludes railroad police and accident investigators from the
provisions set forth in the critical stress regulation based on an
assumption that this population is immune to the subject stressors.''
SEPTA recommends that FRA ``include both railroad police as well as
accident investigators.'' Contrary to SEPTA's statement, however, FRA
did not assume that railroad police and accident investigators were
``immune to the subject stressors.'' Rather, this exclusion was based
on a practical concern. It would be unworkable if specially-trained
personnel were to respond to a critical incident, but then seek
immediate relief while on the job responding to the type of accident
for which they are trained and required to respond. Consistent with the
recommendations of the CIWG, FRA believes that such specially-trained
response personnel should receive assistance and resources to help them
cope with and handle such stressors, specifically tailored to their
unique positions. FRA finds that this rule would not necessarily apply
to such persons appropriately. However, FRA notes that nothing in this
rule prohibits a railroad from applying its critical incident stress
plan more broadly than what is required in this regulation to include
railroad police and accident investigators as it sees fit.

Subpart B--Plan Components and Approval Process

    This subpart contains the basic components of the critical incident
stress plan required by this rule and the elements of the approval
process. This rule affords railroads considerable discretion in the
administration of their critical incident stress plans.
Section 272.101 Content of a Critical Incident Stress Plan
    As discussed in section VI.B above, FRA is adopting the regulatory
text for this section as proposed, with the exception of clarifying
amendments to Sec.  272.101(a) and (f).
    As noted in the preamble to the NPRM, the objective of this
regulation is to allow each railroad to utilize its existing critical
incident stress plan as a base, making modifications as necessary to
ensure compliance with minimum standards, and to enhance conformity of
the plan's screening and intervention components to current best
practices and standards for evidence-based care. A railroad's CISP
should document that the railroad has taken sufficient steps to
establish how each element of the plan can be satisfactorily executed
in covered critical incidents.
    Section 272.101 requires that a railroad's critical incident stress
plan contain at least provisions for carrying out the objectives
described in paragraphs (a)-(g) of the section. Among these designated
objectives are allowing a directly-involved employee to obtain relief
from the remainder of the tour of duty, providing for the directly-
involved employee's transportation to the home terminal (if
applicable), and offering a directly-involved employee appropriate
support services following a critical incident. The specific details of
each plan may vary, but the plans must be consistent with this section.
    As proposed by paragraph (a) of the section, a railroad's CISP must
provide for ``[i]nforming each directly-involved employee as soon as
practicable of the stress relief options that he or she may
request[.]'' AAR comments that it prefers the RSAC text (``an employee
must be informed as soon as practicable that the employee may request
relief''), asserting that it ``does not understand what FRA means by
the reference to ``stress relief options.'' FRA declines to revert to
the exact RSAC text in the final rule, but FRA does note that this
provision means that a directly-involved employee needs to be reminded
of the relief options available to him or her after a critical incident
(i.e., that the employee may request relief from the remainder of the
duty tour, may be provided transportation to the employee's home
terminal, may receive relief from the duty tour(s) subsequent to the
critical incident, and may seek additional relief as necessary and
reasonable to receive preventive services or treatment) as soon as
practicable following a critical incident. Although all employees
covered under Sec.  272.7 should already be cognizant of

the opportunity to request relief following a critical incident,
directly-involved employees must be reminded of their options for
relief as soon as it is practicable after the occurrence of a critical
incident. FRA's intent with this provision is to emphasize that an
employee's opportunity for relief from service must be effectively
communicated to covered employees. Of course, if a covered employee has
been seriously injured and has already been relieved from duty for the
remainder of the tour, it is not necessary to notify the employee of
the opportunity to be relieved.
    FRA intended that the meaning of this provision, as modified, was
to remain the same as the RSAC recommended text (that an employee must
be informed as soon as practicable that the employee may request relief
from the remainder of the duty tour, may be provided transportation to
the employee's home terminal, may receive relief from the duty tour(s)
subsequent to the critical incident, and may seek additional relief as
necessary and reasonable to receive preventive services or treatment).
However, FRA was concerned that the language as recommended by RSAC,
``informing each directly-involved employee as soon as practicable that
he or she may request relief,'' was too vague. As a result, in the
NPRM, FRA proposed the regulatory text to state ``informing each
directly-involved employee as soon as practical of the stress relief
options that he or she may request.'' To further clarify the intention
of this provision and in response to AAR's request for clarification,
FRA is modifying the rule text in Sec.  272.101(a) to require that a
railroad's CISP contain a provision ``informing each directly-involved
employee as soon as practicable of the relief options available in
accordance with the railroad's critical incident stress plan.''
    FRA recommends that a typical plan specify an appropriate time to
notify affected employees of the option to seek relief, such as,
``employees must be notified at the incident site of their opportunity
to be relieved.'' This reminder of the option to seek relief must be
made during the early communications between the employee and the
dispatcher and/or railroad management, before the employee has already
continued on with his or her tour of duty or much time has elapsed.
    As proposed, paragraph (d) of the section would require that a
railroad's CISP must provide for ``offering counseling, guidance, and
other appropriate support services to each directly-involved
employee.'' FRA received several general comments with respect to the
NPRM's preamble discussion of ``appropriate support services'' in this
context. A private citizen, Ms. Jill Simons, comments that ``EAP
availability should be mandatory in light of [traumatic] events, not
just in the railroad industry but across all industries.'' She believes
that ``[s]upervisors should receive training to recognize when an
employee is suffering from [PTSD] and be able to recommend or refer
that employee to a company sponsored [sic] EAP.''
    FRA appreciates Ms. Simons' comments. First, FRA notes that it does
not regulate other industries, thus it cannot mandate EAP availability
across all industries. This regulation puts into place requirements
that help to prevent ASD, PTSD, and other psychiatric disorders (e.g.,
depression) following a critical incident related to railroad
operations. FRA requires that a railroad's CISP include provision of
counseling, guidance, and other appropriate support services be offered
to each directly-involved employee. A railroad may utilize an EAP to
satisfy that requirement. FRA agrees with Ms. Simons' comments about
training. As FRA noted in the NPRM, to implement a CISP, all relevant
railroad employees, from managers at headquarters to employees at the
local level, must be made aware of the railroad's plan and the specific
requirements of the plan and must be trained on how to implement the
requirements of the plan relevant to the employee. See 78 FR 38878,
38888. FRA intends that any training requirements, including the
training of supervisors and other management officials responsible for
implementing the plans, will be covered by FRA's proposed new training
regulation. See 77 FR 6412 (Feb. 7, 2012). FRA expects all railroad
plans to provide for training on how a supervisor or other railroad
employee should interact with an employee who is directly-involved in a
critical incident, and training about what every directly-involved
employee should do following a critical incident.
    To clarify, FRA does not expect a railroad supervisor or manager to
be trained in diagnosing PTSD. PTSD is a clinical diagnosis. As such,
the presence or absence of signs and symptoms of PTSD should be
assessed and diagnosed only by licensed clinical mental health
practitioners (i.e., psychiatrists, clinical psychologists, and
licensed clinical social workers). FRA notes that supervisors and other
non-mental health professionals responsible for implementing a
railroad's CISP may benefit from training in ``Psychological First
Aid.'' Psychological First Aid is a recommended non-clinical technique
that railroads and trained lay people can utilize to provide directly-
involved employees ``situational knowledge'' that would help these
employees gain ready access to counseling, guidance, and other required
support services, and reduce the initial psychological distress that
employees involved in a critical incident may experience. In addition,
FRA understands that providing ``pre-incident'' education and training
to employees who may become directly-involved in a critical incident is
an essential element of a CISP because it helps to protect the employee
from psychological and emotional harm should a critical incident occur.
Pre-incident education and training for employees should be structured
to provide employees information about normal reactions to stress, ways
to cope with stress, and options for leave, counseling, and other
support services.
    Both SEPTA and APTA express concern with FRA's discussion in the
NPRM preamble regarding the specific intervention element of ``critical
stress debriefing.'' As a point of clarification, FRA understands that
the term ``debriefing'' is sometimes used to mean different things. For
example, the term ``debriefing'' may be used within the railroad
community to mean a process of non-confrontational dialogue that is
initiated after a railroad accident/incident by the railroad or
investigators to elicit facts or statements from employees directly-
involved in an accident/incident. The purpose of such fact-finding
debriefings is to identify and analyze factors that may have
contributed to the occurrence of an accident/incident and determine
potential remedies that can be implemented to prevent the same
accident/incident from happening again. Nothing in this part should be
construed to prohibit such fact-finding debriefings. FRA also
understands that the term ``debriefing'' is sometimes used in a very
different way, to mean ``critical incident stress debriefing'' (CISD).
CISD is a facilitator-led group process intended to support normal
recovery processes and the restoration of adaptive functions in
psychologically healthy people who are distressed after experiencing a
traumatic event such as a critical incident. In addition, participants
can be screened during the process to identify participants who need
additional support services or referral for treatment. Generally, each
participant is encouraged to describe what he or she experienced at the
time of the accident/incident and in its aftermath. In addition to
describing

what happened during a critical incident from his or her own
perspective, each participant is encouraged to describe his or her
personal thoughts and reactions to the incident; and any cognitive,
physical, emotional, or behavioral symptoms the participant has
experienced since the event. CISD participants are then presented
information to help them understand normal stress reactions, their
symptoms, things that they can do to cope with stress, and follow-
up.\12\ FRA noted in the preamble to the NPRM that the ``specific
intervention element of `critical stress debriefing' in the scientific
literature is contraindicated, as it has not been shown to be effective
and may actually be harmful in some instances.'' 78 FR 38886-38887.
Examples of hypothetical explanations for findings that ``critical
incident stress debriefings'' may cause harm in some instances include:
(1) group participants have different levels of distress, symptoms, and
vulnerability to ASD and PTSD, and may be further distressed by hearing
each of the other participants describe their experience; (2) some
participants may feel stigmatized by having more severe psychological
and emotional reactions and symptoms than their peers; (3) some
participants may, in certain instances, be rejected by certain
participants in the group for expressing their feelings; and (4) some
participants who were not traumatized by the incident may react
negatively to ``critical incident stress debriefing.'' \13\ FRA
concluded that a specific element of ``critical [incident] stress
debriefing'' would not be an ``appropriate support service.''
Accordingly, FRA indicated that the agency would not approve a CISP
containing a specific program element of ``critical [incident] stress
debriefing.'' Id. at 38887. ``Psychological First Aid'' (PFA), in
contrast to ``critical incident stress debriefing,'' is a flexible,
evidence-informed intervention which is tailored to the individual who
has experienced a traumatic event. PFA emphasizes a nonintrusive and
compassionate approach to providing an individual who has experienced a
critical incident practical assistance with immediate needs, safety and
comfort, and assistance in establishing connections with primary
support networks and social resources, as well as information about
common reactions to trauma, ways to cope with stress, follow-up, and
how to access additional support services, including treatment (if
needed). PFA does not encourage or require individuals to express their
experience, including their emotional reactions and symptoms, to peers
in a group setting. The goals of PFA are to decrease the initial
distress associated with exposure to a traumatic event and to improve
adaptive functioning.\14\ FRA notes that, in contrast to CISD, research
has shown PFA to be effective in reducing the initial psychological
distress that may normally occur in individuals who have experienced a
traumatic event. It has not been shown to cause harm.
---------------------------------------------------------------------------

    \12\ See Mitchell, J. T., Critical incident stress debriefing
(CISD) (2008) (Retrieved from http://www.info-trauma.org/flash/media-e/mitchellCriticalIncidentStressDebriefing.pdf on January 23,
2014); Mitchell J.T., Everly G.S. Jr., Critical Incident Stress
Debriefing: An Operations Manual for CISD, Defusing and Other Group
Crisis Intervention Services, 3rd ed., Chevron Publishing
Corporation (2001); Mitchell J.T., Everly G.S., Critical Incident
Stress Debriefing: (CISD)., Chevron Publishing Co (1993); Mitchell,
J. T., When disaster strikes: the critical incident stress
debriefing process. Journal of Emergency Medical Services, 8, 36-39
(1983).
    \13\ See Briere J., Can you give our staff some guidance on the
appropriate use of critical incident stress debriefing and
psychological first aid?, Psychiatric Times, (2006) (Retrieved from
http://www.psychiatrictimes.com/printpdf/162160).
    \14\ See National Child Traumatic Stress Network and National
Center for PTSD. Psychological First Aid: Field Operations Guide,
2nd ed. Los Angeles, CA: National Child Traumatic Stress Network;
2006.
---------------------------------------------------------------------------

    Both SEPTA and APTA express concern with FRA's expressed position
in the NPRM pertaining to CISD. SEPTA states that the CISD technique
``was never intended to be standalone treatment, but does have efficacy
as a form of `psychological first aid.''' Further, SEPTA explains that
``the [CISD] technique may be effective when applied to the correct
population by a properly trained practitioner'' and that it is a
technique ``best applied to police, firefighters, and emergency medical
personnel.'' While SEPTA agrees that CISD can be less effective and
potentially harmful under certain circumstances, SEPTA argues that the
technique ``should not be banned as a component of a railroad's plan.''
APTA states that ``[s]everal passenger railroads currently use CISD
with positive results'' and consistent with SEPTA's comment, asserts
that FRA should not ``summarily dismiss this treatment option without a
more thorough review of its application in the railroad environment.''
    Additionally, in response to FRA's request for input on the NPRM,
SAMHSA expressed agreement with FRA's proposal to limit or phase out
``debriefings'' and instead utilize ``psychological first aid and other
evidence informed approaches for assisting survivors of disasters or
tragic incidences.'' SAMHSA further commented, however, that the agency
``has learned that there are recent findings where the debriefing model
is evolving and appears to be headed in the right direction'' and that
``the debriefing model is still regarded as relevant among both the law
enforcement and fire fighter cultures.''
    FRA acknowledges that CISD has been used as an intervention for law
enforcement, firefighter, and emergency medical personnel who have
experienced traumatic events. However, as noted in the preamble to the
NPRM, research studies have not clearly demonstrated that CISD is
effective in preventing ASD or PTSD, and studies have shown that it may
be harmful in certain instances. See 78 FR at 38886-87. Accordingly,
because CISD has not been demonstrated as effective in preventing ASD
or PTSD and may actually cause harm in certain instances, FRA cannot
conclude that CISD is an ``appropriate support service'' to be included
as a specific element of a railroad's CISP. Further, in contrast to
CISD, PFA does not encourage or require individuals to express their
experience, including their emotional reactions and symptoms, to peers
in a group setting. As such, FRA does not believe that ``psychological
first aid'' has the same meaning as either ``debriefing'' or ``critical
incident stress debriefing.'' For these reasons, if a railroad's plan
proposes to utilize CISD as a specific intervention element for the
purposes of this part, FRA will not approve the plan.
    FRA notes that ``psychological first aid'' has been shown to be
effective in reducing the initial psychological distress that may
normally occur in individuals who have experienced a traumatic event.
It has not been shown to cause harm. The provision of PFA as a specific
intervention element of a critical incident stress plan is strongly
recommended. FRA recommends PFA be utilized by trained supervisors and
EAP counselors and other mental health providers when responding to a
critical incident to provide directly-involved employees information
that is specified in a railroad's FRA-approved CISP, including:
information about the availability of timely options for relief and
transportation to the employee's home terminal; the availability of
counseling, guidance, and other appropriate support services; options
for relief from the duty tour(s) subsequent to the critical incident;
and options for additional leave from normal duty.
    Under proposed paragraph (e) of the section and as adopted in this
final rule, a railroad's CISP would be required to ``permit[ ] relief
from the duty tour(s)

subsequent to the critical incident, for an amount of time to be
determined by each railroad.'' As noted in the preamble to the NPRM,
the language proposed was modified from the RSAC-approved language to
include the qualifying phrase ``for an amount of time to be determined
by each railroad . . . as may be necessary and reasonable'' in order to
add context and clarity to the requirement. A few commenters express
disagreement with the proposed language, while others support the
modified language as proposed. First, Labor disagrees with FRA's
contention that the modification ``adds clarity,'' and suggests that
``FRA should follow the example of the plans that are out there today
and stipulate `three days.' '' Labor argues that ``railroads should not
be allowed to continue to make a unilateral decision to deny any time
off for an employee involved with a critical incident.'' NYS MTA
recommends that the language be revised back to the RSAC language.
SEPTA recommends adding additional qualifying language to the paragraph
requiring that the employee requesting relief be availing him or
herself to the ``pro-offered EAP counseling, guidance, and support
services.'' APTA, on the other hand, expresses support for the language
proposed by FRA because it ``strengthens the intent of the coping
period as caring for the employee in each situation is different and
tasks the railroad to make the determination rather than trying to make
it a regulatory requirement.''
    FRA intends this provision to require that railroads' CISPs address
how much additional time off an employee affected by a critical
incident may receive and as Labor comments, FRA is attempting to guide
the railroads to select an appropriate amount of time in their
individual plans that an employee can request additional time off in
order to cope with the critical incident. As FRA noted in the preamble
to the NPRM, many railroads currently offer employees involved in
critical incidents relief from the immediate tour of duty along with
transportation to the employee's home terminal, then provide up to
three days off along with consultation with an EAP, if any, and/or
occupational medicine staff. This provides directly-involved employees
with an opportunity, away from the railroad environment, to cope with
having experienced a critical incident. This is an amount of time to be
determined by each railroad to allow for a reasonable amount of rest
and time following a critical incident (without necessitating a
clinical diagnosis). Because the particular amount of time off in this
context is not necessarily tied to any particular scientific evidence,
FRA believes the regulatory requirement should be neutral on the amount
of additional time a railroad should permit beyond the tour of duty
during which the critical incident occurred. FRA believes the specific
time period for this coping period is an issue better resolved by each
railroad on a case-by-case basis and should not be mandated by FRA.
Accordingly, FRA has not modified the regulatory text in Sec.
272.101(e) from the NPRM. FRA notes, however, that it expects that most
railroads would simply use the three-day period that has been common
practice in the industry. The three-day period may comport well with
duty schedules and provide a sufficient coping period for many
employees involved in a critical incident.
    FRA also appreciates SEPTA's recommendation that FRA add the phrase
to Sec.  272.101(e), ``so long as the requestor is availing themselves
of pro-offered EAP counseling, guidance, and support services.'' FRA
expects that all employees who are relieved from a tour of duty
following a critical incident are put into contact with an EAP. Thus,
while FRA does not agree that a clinical diagnosis should be required
for additional leave to be granted for time to ``cope'' with what
happened, EAP counseling, guidance, and support services should be
employed during this process to ensure that an employee's needs are
addressed appropriately.
    As proposed, paragraph (f) of this section would require a
railroad's CISP to provide for permitting employees directly-involved
in a critical incident additional leave from duty ``as may be necessary
and reasonable to receive preventative services or treatment related to
the incident, or both.'' Commenters generally express support for this
provision, noting that most existing railroad CISPs provide for such
additional time off. However, noting that many passenger railroads'
existing CISPs permit leave in addition to the duty tour(s) subsequent
to the critical incident (covered by paragraph (e) of the section) if a
clinical diagnosis supports the need for additional time off, both NYS
MTA and APTA recommend that FRA modify this paragraph to make clear
that an employee's request for additional time off must be supported by
a clinical diagnosis. Specifically, APTA recommends that the paragraph
be revised to reflect industry practice by requiring a clinical
diagnosis and treatment plan be established as a basis for an
employee's continued leave from duty tours subsequent to the critical
incident (i.e., subsequent to the ``coping period''). Further, NYS MTA
notes that ``FRA's analysis of the economic impact [of the rule] may be
underestimating the costs if the regulation allows additional time off
beyond the `coping period' without a clinical diagnosis.'' The proposed
language is consistent with the language of Section 410, as well as the
RSAC recommended language. However, in light of commenters concerns and
to clarify the intention of this provision, FRA is modifying paragraph
(f) to require a railroad's CISP to include a provision ``[p]ermitting
each directly-involved employee such additional leave from normal duty
as may be necessary and reasonable to receive preventive services or
treatment related to the incident or both, provided the employee is in
consultation with a health care professional.'' In this manner, FRA
expects that additional leave requested, beyond the coping period
specified in Sec.  272.101(e), would be supported by a clinical
diagnosis, or would be granted in consultation with a health care
professional (e.g., in instances where affected individuals are seeking
care from a health care professional, but for practical reasons do not
yet have a clinical diagnosis or are receiving preventive services from
a health care professional).
Section 272.103 Submission of Critical Incident Stress Plan for
Approval by FRA
    As proposed, Sec.  272.103 requires a railroad to submit its CISP
to FRA for approval, and in accordance with paragraph (b) provide a
copy of its CISP and any material modifications to the international/
national president of any non-profit employee labor organization
representing a class or craft of the railroad's employees subject to
this rule. As FRA requested in the NPRM, several commenters discuss the
service list requirement of paragraph (b). Consistent with the views
expressed by Labor representatives during CIWG meetings, Labor
disagrees with FRA's proposal to limit service of a proposed CISP to
only the international/national president of the relevant Labor
organizations. Instead, Labor reiterates the views it expressed during
the RSAC working group meetings, stating that because ``general
chairpersons are the designated collective bargaining representatives
with day-to-day responsibility for direct interaction with railroad
management and the union membership'' and because each CISP is an ``on-
property program unique to each railroad,'' railroads should be
required to provide a copy of a proposed CISP (or material modification
to a CISP) to each general

chairperson. Moreover, Labor asserts that such a requirement would not
be burdensome on the railroads as they already communicate with those
individuals nearly daily.
    In contrast, noting that there are well over 40 general
chairpersons on some railroads, AAR supports FRA's proposed rule text
because ``labor presidents are perfectly capable of circulating
proposed plans to those in their organizations.'' AAR asserts that
``[r]equiring service on general chairs would result in service lists
with large numbers of people, which might lead to a railroad
inadvertently not serving a general chair.'' NYS MTA notes that the
process outlined in proposed Sec.  272.103(b) is ``consistent with
notification requirements used for FRA's conductor certification and
minimum training standards regulations.'' APTA similarly comments that
it ``sees no advantage in providing wide circulation of the plan and
supports only involving the labor organization representatives
maintained on the service lists used by each railroad.''
    While FRA understands Labor's position, FRA's requirement in Sec.
272.103(b) was intended to be consistent with other proposed and final
FRA regulations, such as the NPRM on training standards (77 FR 6412,
Feb. 7, 2012) and the final rule on conductor certification (76 FR
69802, Nov. 9, 2011). If FRA required service to general chairpersons
as well, such a large mandatory service list could pose a potential
compliance problem for the railroads. FRA notes that the designated
points of contact on the service lists in existence for collective
bargaining purposes may be used so long as that service list conforms
to the requirement in the rule that requires the railroad to serve the
``international/national president of any non-profit employee labor
organization representing a class or craft of the railroad's employees
subject to this part.'' Of course, FRA would not take exception if a
railroad and labor organization agreed to include additional persons on
this service list.
    AAR, NYS MTA, and APTA also note that FRA requested comment on
whether FRA should require that railroad management consult with
railroad employees on the formation of critical incident programs, as
is required for system safety plans by the RSIA. Noting that railroads
already have critical incident stress plans in place with which Labor
is already familiar, all three commenters express the view that adding
such a consultation requirement would be unnecessary and undesirable.
Although FRA appreciates these comments, FRA notes that in the NPRM the
agency was seeking comments on the issue of the service list, not on a
consultation requirement. FRA was attempting to explain that while the
System Safety Program NPRM required a service list that included
general chairpersons, that regulation also required consultation (as
mandated by the RSIA). The RSIA did not require consultation for the
critical incident regulation nor is FRA including such a requirement in
this final rule.
    The final rule contemplates that railroads may submit existing
critical incident stress plans to FRA for approval that have previously
been established through any applicable collective bargaining
agreement. However, in order to satisfy the eventual final rule, any
preexisting critical incident stress plan would have to contain all
prescribed elements of the plan as set forth in the regulation, and
such a plan would have to be submitted to FRA pursuant to this section
for review. Thus, FRA would approve critical incident stress plans
previously vetted through the collective bargaining agreement process,
provided that those plans meet the criteria specified in the final
regulation. FRA's regulation constitutes a minimum standard and would
not negate any higher standards set by a collective bargaining
agreement.
    As no comments were received regarding Sec.  272.103(a), (c), (d),
(e), (f), or (g), FRA has adopted the regulatory language for each of
those paragraphs as proposed.
Section 272.105 Requirement To File Critical Incident Stress Plan
Electronically
    As proposed, Sec.  272.105 provided for optional electronic
submission of CISPs to FRA for approval. Responding to FRA's request
for comments on whether the option to file CISPs electronically should
be mandatory, both Labor and AAR express support for electronic
submission. AAR further comments that because critical incident stress
plans would not contain confidential information, FRA's proposed
electronic submission process is ``overly complicat[ed].'' In response
to these comments, in this final rule, FRA is mandating that railroads
submit CISPs electronically to the agency. FRA is also simplifying the
requirements for electronic submission, as AAR recommends, because the
agency agrees that the electronic submission process proposed in the
NPRM was unnecessarily complex.
    Paragraph (a) of Sec.  272.105 as adopted in this final rule
requires railroads to submit CISPs to FRA electronically using a Web
link on FRA's Safety Data Web site (http://safetydata.fra.dot.gov/OfficeofSafety/CISP ). The Web link is easily accessible by all
railroads and will not require railroads to maintain a username and
password, which would have been necessary under the secure document Web
site proposed in the NPRM. When submitting a CISP or a material
modification of a CISP through the Web link, a railroad will be
prompted to complete certain required fields containing the information
outlined in Sec.  272.105(b) (including email addresses for two points
of contact at the railroad) and to upload its CISP (or the
corresponding document reflecting any material modification(s) to an
existing approved CISP). FRA expects that railroads will upload the
necessary documents in commercial off-the-shelf software formats (e.g.,
Microsoft Word or Adobe PDF). The Web link will allow for easy
submission and validation that key information is provided. FRA will
notify the railroad's point of contacts via the email addresses
provided of the agency's approval of a CISP (or material modification
of an existing approved CISP) or the need to resubmit the document in
the event FRA cannot approve the document as initially submitted.
    FRA received no comments in opposition to mandatory electronic
submission. Accordingly, in this final rule, FRA is making electronic
submission of CISPs to FRA mandatory. FRA believes that electronic
submission will allow FRA to review submissions more efficiently and
eliminate the need to store hardcopies of the numerous submissions.

Appendix A to Part 272--Schedule of Civil Penalties

    As no comments were received regarding this section, FRA has
adopted the regulatory language as proposed.

VIII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 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 Orders 12866 and 13563 and DOT policies and procedures. See
44 FR 11034, February 26, 1979. FRA has prepared and placed in the
docket a Regulatory Evaluation addressing the economic impact of this
rule. As part of the Regulatory Evaluation, FRA has assessed the
quantitative costs and benefits from the implementation of this rule.

    The purpose of the rule is to enhance safety by mandating that
certain railroads (each Class I railroad, intercity passenger railroad,
and commuter railroad) have a critical incident stress plan intended to
mitigate the long-term negative effects of critical incidents upon
railroad employees. Specifically the rule would help ensure that every
railroad employee covered by the rule who works for these railroads and
who is affected by a critical incident can receive the support services
needed.
    The Railroad Safety Advisory Committee (RSAC) formed a working
group to provide advice and recommendations on the regulatory matters
involving critical incident stress plans.\15\ Based on both RSAC
meetings and discussions with the rail industry, FRA's analysis in the
Regulatory Evaluation assumes that all railroads affected by the rule
currently have policies that include a critical incident stress plan,
thereby reducing the costs of compliance associated with the rule.
---------------------------------------------------------------------------

    \15\ This RSAC working group reached consensus on all items but
one: whether a railroad should be required to provide its critical
incident stress plan to the general chairperson of a labor
organization, in addition to the organization's international/
national president.
---------------------------------------------------------------------------

    FRA's analysis follows DOT's revised ``Guidance on the Economic
Value of a Statistical Life in US Department of Transportation
Analyses,'' published in March 2013. Based on real wage growth
forecasts from the Congressional Budget Office, DOT's guidance
estimates that there will be an expected 1.07 percent annual growth
rate in median real wages over the next 20 years (2014-2034) and
assuming an income elasticity of 1.0 adjusts the Value of Statistical
Life (VSL) in future years in the same way. Real wages represent the
purchasing power of nominal wages. VSL is the basis for valuing avoided
casualties. FRA's analysis further accounts for expected wage growth by
adjusting the taxable wage component of labor costs. Other non-labor
hour based costs and benefits are not impacted. FRA estimates that the
costs of the rule for a 20-year period would total $1.9 million, with a
present value (PV, 7%) of $1.3 million and (PV, 3%) of $1.6 million. In
estimating these compliance costs, FRA included costs associated with
training supervisors on how to interact with railroad employees who
have been affected by a critical incident, additional costs associated
with greater use of Employee Assistance Programs, and costs associated
with the submission of critical incident stress plans to FRA. FRA also
estimates that the quantifiable benefits of the rule for a 20-year
period would total $2.6 million, with a present value (PV, 7%) of $1.5
million and (PV, 3%) of $2.0 million. FRA is confident that potential
benefits of the rule would exceed the total costs.

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

    The Regulatory Evaluation also explains the likely benefits of this
rule, providing quantified estimates of the benefits where feasible.
The rule contains minimum standards for leave, counseling, and other
support services. These standards would help create benefits by
providing employees with knowledge, coping skills, and services that
would help them: (1) Recognize and cope with symptoms of normal stress
reactions that commonly occur as a result of a critical incident; (2)
reduce their chance of developing a disorder such as depression, PTSD,
or ASD as a result of a critical incident; and (3) recognize symptoms
of psychological disorders that sometimes occur as a result of a
critical incident and know how to obtain prompt evaluation and
treatment of any such disorder, if necessary.
    Specifically, FRA anticipates that implementation of the rule would
yield benefits by reducing long-term healthcare costs associated with
treating PTSD, ASD, and other stress reactions; and costs that accrue
either when an employee is unable to return to work for a significant
period of time or might leave railroad employment due to being affected
by PTSD, ASD, or other stress reactions.
    The majority of the quantifiable benefits identified are associated
with railroad employee retention and a reduction of long-term
healthcare costs associated with PTSD cases that were not treated
appropriately after a critical incident. FRA estimates that one-half of
one percent of railroad employees who develop PTSD exit the railroad
industry. According to this estimate, one railroad employee would leave
the railroad industry due to PTSD every ten years. If an employee is
unable to return to work, the railroad not only loses an experienced
employee, but also must train a new employee. FRA expects that the rule
would decrease the number of new employees that have to be trained to
backfill for those who leave the railroad industry due to PTSD, ASD, or
other stress reactions, as early treatment for potential PTSD cases
following exposure to a critical incident by reducing both the
likelihood of developing and the duration of PTSD or other stress
reactions. The rule would also increase the early identification and
treatment of PTSD thus reducing long-term healthcare costs. Overall,
FRA finds that the value of the anticipated benefits would justify the
cost of implementing the rule.

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

    Total...........................         1,505,622         2,023,548
------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, FRA has developed this final rule in accordance with
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') and DOT's procedures and policies to promote
compliance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.).
    The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
prepare a regulatory flexibility analysis (RFA) unless it determines
and certifies that a rule, if promulgated, would not have a significant
economic impact on a substantial number of small entities.
    This final rule will enhance safety by mandating that railroads
have a critical incident stress plan that may help mitigate the long-
term negative effects of critical incidents upon covered railroad
employees. One of the most important assets to the railroad industry is
its labor force. The railroads spend significant resources training
their workforces. Although all of the railroads potentially affected by
the rule have policies that include critical incident stress plans, the
rule will promote implementation as intended to every applicable
employee covered by critical incident stress plan and also ensure that
all such plans meet certain minimum Federal requirements.
    (1) Description of Regulated Entities and Impacts: The ``universe''
of the entities to be considered generally includes only those small
entities that are reasonably expected to be directly regulated by this
action. This final rule directly affects Class I, intercity passenger,
and commuter railroads as defined in the final rule.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of this term not-for-profit enterprises
that are independently owned and operated, and are not dominant in
their field of operation. The U.S. Small Business Administration (SBA)
stipulates in its size standards that the largest a railroad business
firm that is ``for profit'' may be and still be classified as a ``small
entity'' is 1,500 employees for ``Line Haul Operating Railroads'' and
500 employees for ``Switching and Terminal Establishments.''
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with 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. 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.
    Railroads: Based on the railroad reporting data from 2011, there
are 719 Class III railroads. Due to the applicability of the rule,
however, none of these railroads would be impacted. The railroad
reporting data also shows that there are 30 intercity passenger and
commuter railroads.\16\ Although two of these railroads are considered
small entities, they do not fall within the rule's definition of a
``commuter railroad,'' which means a railroad, as described by 49
U.S.C. 20102(2), including public authorities operating passenger train
service, that provides regularly-scheduled passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979.
Therefore FRA finds that there are 28 intercity passenger and commuter
railroads that will incur additional costs by the rule. However, the
affected commuter railroads are part of larger public transportation
agencies that receive Federal funds and serve major jurisdictions with
populations greater than 50,000.
---------------------------------------------------------------------------

    \16\ This total includes the Alaska Railroad, which is
categorized as a Class II railroad.
---------------------------------------------------------------------------

    As FRA believes that no small entities will be affected by this
rule, there would also be no cost impacts on small businesses.
Railroads operated entirely by contract operators such that the
contractor organization itself meets the definition of a commuter
railroad, class I, or inter-city passenger railroad, would be subject
to this rule. In these circumstances, FRA assumes that the contract
operator would utilize the critical incident stress plan developed by
the reporting railroad. FRA will hold the reporting railroads
responsible for defects or deficiency, not the contracted operators.
Therefore, FRA does not expect that the rule will directly impact any
contractors that are considered to be large or small entities.
    During the public comment period following the NPRM, FRA did not
receive any comments discussing the initial regulatory flexibility
analysis or Executive Order 13272. FRA certifies that the final rule
will not have any significant economic impact on the competitive
position of small entities, or on the small entity segment of the
railroad industry as a whole.
    (2) Certification: Pursuant to the Regulatory Flexibility Act (5
U.S.C. 605(b)), FRA certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
As all of the affected commuter railroads are part of larger public
transportation agencies that receive Federal funds and serve major
jurisdictions with populations greater than 50,000; based on the
definition, therefore, they are not considered small entities.

C. Executive Order 13175

    FRA analyzed this final rule in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments'').

    Because this rule does not significantly or uniquely affect tribes
and does not impose substantial and direct compliance costs on Indian
tribal governments, the funding and consultation requirements of
Executive Order 13175 do not apply, and a tribal summary impact
statement is not required.

D. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                           Total annual       Average time per     Total annual
           CFR Section            Respondent universe       responses             response         burden hours
----------------------------------------------------------------------------------------------------------------
272.103
    --RR Submission of Updated/   34 Railroads.......  34 modified plans..  16 hours............             544
     Modified Existing Critical
     Incident Stress Plan.
    --RR Copies of Updated        34 Railroads.......  170 plan copies....  5 minutes...........              14
     Critical Incident Stress
     Plans to 5 Employee Labor
     Organizations.
    --Rail Labor Organization     5 Labor              65 comments........  3 hours.............             195
     Comments to FRA on RR         Organizations.
     Critical Incident Stress
     Plan.
    --Rail Labor Organization     5 Labor              65 certifications..  15 minutes..........              16
     Affirmative Statement to      Organizations.
     FRA that Comment Copy has
     been served on Railroad.
    --Copy to RR Employees of     169,500 Employees..  169,500 copies.....  5 minutes...........          14,125
     Updated/Modified Critical
     Incident Stress Plans.
    --Copy to FRA Inspector Upon  34 Railroads.......  136 plan copies....  5 minutes...........              11
     Request of Critical
     Incident Stress Plan.
272.105--Electronic Filing/       34 Railroads.......  34 requests........  5 minutes...........               3
 Submission of Critical Incident
 Stress Plan to FRA.
----------------------------------------------------------------------------------------------------------------

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

E. Environmental Impact

    FRA has evaluated this 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 action is not a major FRA action (requiring the
preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of
FRA's Procedures, the agency has further concluded that no
extraordinary circumstances exist with respect to this final rule that
might trigger the need for a more detailed environmental review. As a
result, FRA finds that this final rule is not a major Federal action
significantly affecting the quality of the human environment.

F. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local

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

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100,000,000 or more
(adjusted annually for inflation) [currently $151,000,000] in any 1
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. This final rule will not result in
the expenditure, in the aggregate, of $151,000,000 or more in any one
year, and thus preparation of such a statement is not required.

H. Energy Impact

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

I. Privacy Act Statement

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

List of Subjects in 49 CFR Part 272

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

The Final Rule

0
For the reasons discussed in the preamble, FRA amends chapter II,
subtitle B of Title 49 of the Code of Federal Regulations by adding a
new part 272 to read as follows:

PART 272--CRITICAL INCIDENT STRESS PLANS

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

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

Subpart A--General

Sec.  272.1  Purpose.

    (a) The purpose of this part is to promote the safety of railroad
operations and the health and safety of railroad employees, especially
those who are directly involved in a critical incident by requiring
that the employing railroad offers and provides appropriate support
services, including appropriate relief, to the directly-involved
employees following that critical incident.
    (b) Nothing in this part constrains a railroad from implementing a
critical incident stress plan that contains additional provisions
beyond those specified in this part (including provisions covering
additional incidents

or persons), provided that such additional provisions are not
inconsistent with this part.

Sec.  272.3  Application.

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

Sec.  272.5  General duty.

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

Sec.  272.7  Coverage of a critical incident stress plan.

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

Sec.  272.9  Definitions.

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

Sec.  272.11  Penalties.

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

Subpart B--Plan Components and Approval Process

Sec.  272.101  Content of a critical incident stress plan.

    Each critical incident stress plan under this part shall include,
at a minimum, provisions for--
    (a) Informing each directly-involved employee as soon as
practicable of the relief options available in accordance with the
railroad's critical incident stress plan;
    (b) Offering timely relief from the balance of the duty tour for
each directly-involved employee, after the employee has performed any
actions necessary for the safety of persons and contemporaneous
documentation of the incident;
    (c) Offering timely transportation to each directly-involved
employee's home terminal, if necessary;
    (d) Offering counseling, guidance, and other appropriate support
services to each directly-involved employee;
    (e) Permitting relief from the duty tour(s) subsequent to the
critical incident, for an amount of time to be determined by each
railroad, if requested by a directly-involved employee as may be
necessary and reasonable;
    (f) Permitting each directly-involved employee such additional
leave from normal duty as may be necessary and reasonable to receive
preventive services or treatment related to the incident or both,
provided the employee's clinical diagnosis supports the need for
additional time off or the employee is in consultation with a health
care professional related to the incident and such health care
professional supports the need for additional time off in order for the
employee to receive preventive services or treatment related to the
incident, or both; and
    (g) Addressing how the railroad's employees operating or otherwise
working on track owned by or operated over by a different railroad will
be afforded the protections of the plan.

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

    (a) Each railroad subject to this part shall submit to the Federal
Railroad Administration, Office of Railroad Safety, 1200 New Jersey
Avenue SE, Washington, DC 20590, for approval, the railroad's critical
incident stress plan no later than 12 months after June 23, 2014.
    (b) Each railroad subject to this part shall--
    (1) Simultaneously with its filing with FRA, serve, either by hard
copy or electronically, a copy of the submission filed pursuant to
paragraph (a) of this section or a material modification filed pursuant
to paragraph (e) of this section on the international/national
president of any non-profit employee labor organization representing a
class or craft of the railroad's employees subject to this part; and
    (2) Include in its submission filed pursuant to paragraph (a) of
this section or a material modification filed pursuant to paragraph (e)
of this section a statement affirming that the railroad has complied
with the requirements of paragraph (b)(1) of this section, together
with a list of the names and addresses of the persons served.
    (c) Not later than 90 days after the date of filing a submission
pursuant to paragraph (a) of this section or a material modification
pursuant to paragraph (e) of this section, a labor organization
representing a class or craft of the railroad's employees subject to
this part, may file a comment on the submission or material
modification.
    (1) Each comment shall be submitted to the Associate Administrator
for Railroad Safety and Chief Safety Officer, FRA, 1200 New Jersey