[Federal Register: November 9, 2010 (Volume 75, Number 216)]
[Rules and Regulations]
[Page 68861-68910]
[DOCID:fr09no10-20]

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Part II

Department of Transportation

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Federal Railroad Administration

49 CFR Part 225

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[Docket No. FRA-2006-26173; Notice No. 3]
RIN 2130-AB82

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

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

ACTION: Final rule.

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SUMMARY: This final rule revises FRA's existing regulations addressing
accident/incident reporting in order to clarify ambiguous regulations
and to enhance the quality of information available for railroad
casualty analysis. In addition, FRA has revised the FRA Guide for
Preparing Accident/Incident Reports (FRA Guide), its accident/incident
recording and reporting forms and its Companion Guide: Guidelines for
Submitting Accident/Incident Reports by Alternative Methods (Companion
Guide).

DATES: The final rule is effective Wednesday, June 1, 2011.

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

SUPPLEMENTARY INFORMATION:

I. The FRA Guide and the Companion Guide

    In addition to revising its regulations in the Code of Federal
Regulations, FRA has revised the FRA Guide. The FRA Guide is posted on
FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety. Hard
copies of the FRA Guide will be available upon request. Information on
requesting hard copies of the FRA Guide can be found in Sec.  225.21,
``Forms,'' of this final rule.
    FRA has also revised its Companion Guide containing instructions
for electronically submitting monthly reports to FRA. The Companion
Guide is posted on FRA's Web site at http://safetydata.fra.dot.gov/
officeofsafety.

II. Background

A. Statutory Authority for the Accident/Incident Reporting Requirements
in 49 CFR Part 225 (Part 225)

    FRA's accident/incident reporting requirements \1\ in Part 225,
both as they exist today and as they are amended by this final rule,
were issued under the statutory authority of the following three
statutes: \2\
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    \1\ The discussion under this section (II)(A) concerns the
statutory authority for the reporting provisions of Part 225 only,
e.g., 49 CFR 225.11 and 225.21, and does not address the statutory
authority for the penalty, investigative, or other provisions of
Part 225.
    \2\ This final rule adds a fourth statute to the statutory
foundation for the accident/incident reporting requirements in Part
225: 28 U.S.C. 1746, Unsworn declarations under penalty of perjury.
Public Law 94-550, sec. 1(a), Oct. 18, 1976, 90 Stat. 2534. Pursuant
to that statute, the requirement in 49 U.S.C. 20901 that accident
reports be submitted ``under oath'' (and, therefore, signed and
notarized) has been converted into one of two alternative
requirements, the second being submission of a signed, unsworn
declaration saying that it is being made subject to penalty of
perjury.
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     49 U.S.C. 20901 (formerly, part of the Accident Reports
Act);
     49 U.S.C. 20103(a) (formerly, part of the Federal Railroad
Safety Act of 1970); and
     49 U.S.C. 322(a) (formerly, part of the Department of
Transportation Act).
    The Accident Reports Act was enacted in 1910,\3\ Public Law 165,
the Act of May 6, 1910, ch. 208, 36 Stat. 350 (1910). Section 1 of the
Accident Reports Act required--
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    \3\ Federal requirements that railroads report their accidents
date back to before 1910, as evidenced by two provisions in the
Accident Reports Act as originally enacted. The first section of the
Accident Reports Act contained a proviso that relieved carriers
``from the duty of reporting accidents in their annual financial and
operating reports made to the commission[,]'' and Section 6 repealed
an accident reporting law enacted in 1901, `An Act requiring common
carriers * * * to make full reports of all accidents to the
Interstate Commerce Commission.` Approved March third, nineteen
hundred and one * * *''

every common carrier engaged in interstate or foreign commerce by
railroad to make to the Interstate Commerce Commission [ICC] * * * a
monthly report, under oath, of all collisions, derailments, or other
accidents arising from the operation of such railroad under such
rules and regulations as may be prescribed by the [ICC,] which
report shall state the nature and causes thereof and the
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circumstances connected therewith * * *.

Emphasis added. In addition, Section 5 of the Accident Reports Act
authorized the ICC ``to prescribe for such common carriers a method and
form for making the reports hereinbefore provided.'' Together, Sections
1 and 5 of the Accident Reports Act afforded the ICC authority to
promulgate regulations to carry out the reporting provisions of the
Accident Reports Act.
    In 1960, the Accident Reports Act was amended to remove language in
Section 1 conferring rulemaking authority on the ICC to require
railroads to (``report * * * under such rules and regulations as may be
prescribed by the [ICC]'') and to add to Section 5 clearer language
conferring that rulemaking authority (``The [ICC] is authorized to
prescribe such rules and regulations and such forms for making the
reports herein before provided as are necessary to implement and
effectuate the purpose of this Act.''). Public Law 86-762 (September
13, 1960), 74 Stat. 903. In 1966, the Department of Transportation Act
transferred the responsibility for prescribing regulations to carry out
the Accident Reports Act, as amended, from the ICC to the Secretary of
Transportation. Sec. 6(e)(1)(K) of Public Law 89-670 (October 15,
1966), 80 Stat. 939. In addition, the Secretary delegated this
responsibility to the Administrator of the Federal Railroad
Administration by regulation. 49 CFR 1.49(c)(11). Later, in 1988, the
Accident Reports Act was amended so as to expand its applicability from
``common carriers engaged in interstate commerce by railroad'' to
include all ``railroads.'' Sec. 15 of Public Law 100-342 (June 22,
1988), 102 Stat. 633. The same legislation required railroads to
include in any of their reports that assigned employee error as a cause
of an accident/incident to include, at the employee's option, a
statement ``explaining any factors the employee alleges contributed to
the accident or incident.'' Id. at Sec. 24.
    In 1994, the Accident Reports Act, as amended (then codified at 45
U.S.C. 38-43a), along with virtually all of the other Federal railroad
safety laws, was repealed, and its provisions were revised, reenacted
as positive law, and recodified without substantive change at 49 U.S.C.
20901-20903, Accidents and Incidents, with its penalty provisions in 49
U.S.C. chapter 213, Penalties, Public Law 103-272, 108 Stat. 745 (July
5, 1994). During the 1994 recodification of the rail safety laws,
Congress repealed, but did not reenact or recodify the text of Section
5 of the Accident Reports Act, as amended (then codified at 45 U.S.C.
42), which authorized the Secretary ``to prescribe such rules and
regulations and such forms for making the reports hereinbefore provided
as are necessary to implement and effectuate the purposes of [the
Accident Reports Act].'' Congress concluded that this section was
``[un]necessary because of

49 [U.S.C.] 322(a).'' See H.R. Rep. No. 103-180, 502, 584 (1993);
reprinted in 1994 U.S.C.C.A.N. 1319, 1401. Although Public Law 103-272
was not intended to change the substance of the laws as recodified,
this is an example of how its repeal of an ``unnecessary'' law
apparently changed the statutory basis of a regulation. Of course,
recodification did not change any law substantively, so in a sense,
Section 5 of the Accident Reports Act survives to the extent that it is
legally necessary.
    The preamble to this final rule refers to the current, recodified
version of what was formerly known as the Accident Reports Act, by its
section numbers in title 49 of the U.S. Code. Currently, Sec.  20901
requires, in part, that railroad carriers file with the Secretary of
Transportation reports on ``all accidents and incidents resulting in
injury or death to an individual or damage to equipment or a roadbed
arising from the carrier's operations during the month.''
    The second major statutory authority for the accident/incident
reporting requirements in Part 225 is 49 U.S.C. 20103, formerly Sec.
202 of the Federal Railroad Safety Act of 1970 (FRSA). Public Law 91-
458 (October 16, 1970), 84 Stat. 971. Like the Accident Reports Act,
the FRSA was repealed in 1994, and its provisions were revised,
reenacted as positive law, and recodified without substantive change
primarily at 49 U.S.C. chapter 201, with penalty provisions in 49
U.S.C. chapter 213. As amended, 49 U.S.C. 20103(a) provides, in
pertinent part, that ``[t]he Secretary of Transportation, as necessary,
shall prescribe regulations and issue orders for every area of railroad
safety supplementing laws and regulations in effect on October 16,
1970.'' The Secretary also delegated this authority to the
Administrator of FRA. 49 CFR 1.49(m). In 1974, FRA reissued its
accident reporting regulations under the added authority of the FRSA to
cover additional railroads and require reporting of occupational
illnesses. 39 FR 43222, December 11, 1974.
    The third major statutory authority for the accident/incident
reporting requirements in Part 225 is 49 U.S.C. 322(a), which was
enacted in 1966, and codified in Sec.  9(e) of the Department of
Transportation Act. The statutory provision at 49 U.S.C. 322(a) reads
as follows:

    The Secretary of Transportation may prescribe regulations to
carry out the duties and powers of the Secretary. An officer of the
Department of Transportation may prescribe regulations to carry out
the duties and powers of the officer.

Under 49 U.S.C. 322(a), an officer of the Department of Transportation
may prescribe regulations to carry out the duties of the officer.
Section 103(d) of title 49, U.S. Code, provides that the head of the
FRA is the Administrator, and the Administrator of FRA is an ``officer
of the Department of Transportation,'' within the meaning of 49 U.S.C.
322(a). Section 103(g)(1) of title 49, U.S. Code, provides that ``the
Administrator shall carry out--* * * duties and powers related to
railroad safety vested in the Secretary by * * * chapters 203-211 of
this title, and by chapter 213 of this title for carrying out chapters
203 through 211.'' Consequently, the duty of carrying out 49 U.S.C.
chapter 209 is clearly one of the ``duties of the officer,'' within the
meaning of 49 U.S.C. 322(a). Accordingly, the FRA Administrator may
prescribe regulations to carry out 49 U.S.C. chapter 209.

B. Occupational Safety and Health Act

    Although not a statutory authority for the accident/incident
reporting requirements of Part 225, the Occupational Safety and Health
Act (OSH Act), which Congress enacted in 1970, has shaped these
requirements. Public Law 91-596, codified as amended at 29 U.S.C. 651
et seq. While the OSH Act gives the Secretary of Labor a broad, general
authority to regulate working conditions that affect the occupational
safety and health of employees, it also recognized the existence of
similar authority in other Federal agencies. Section 4(b)(1) of the OSH
Act, codified at 29 U.S.C. 653(b)(1), provides that the OSH Act shall
not apply to working conditions as to which another Federal agency
exercises statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health.
    Because FRA exercises statutory authority to prescribe and enforce
standards and regulations for all areas of railroad safety under 49
U.S.C. chapter 201, OSHA's jurisdiction may be preempted by FRA under
section 4(b)(1) of the OSH Act with regards to certain matters related
to railroad safety. See Policy Statement asserting FRA jurisdiction
over matters involving the safety of railroad operations, 43 FR 10584,
March 14, 1978.
    With respect to employee injury and illness recordkeeping, however,
OSHA's Occupational Safety and Health Review Commission ruled that the
railroad industry must comply with OSHA requirements and must afford
the Secretary of Labor's representatives access to these records.
Secretary of Labor v. Conrail (OSHRC Docket No. 80-3495, 1982). In
doing so, the Commission indicated that employee injury and illness
recordkeeping does not come within the purview of section 4(b)(1) of
the OSH Act and, therefore, OSHA's jurisdiction has not been displaced
by FRA's employee injury and illness recordkeeping and reporting
regulations. Nevertheless, the Commission did state, ``[t]his does not
mean that railroad industry employers must use the OSHA form, No. 200,
mentioned in section [29 CFR] 1904.2(a). Section 1904.2(a) allows an
employer to maintain `an equivalent which is as readable and
comprehensible [as the OSHA 200 form] to a person not familiar with
it.' '' \4\ Under OSHA's current regulations, 49 CFR 1904.3 states that
``[i]f you create records to comply with another government agency's
injury and illness recordkeeping requirements, OSHA will consider those
records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA
accepts the other agency's records under a memorandum of understanding
with that agency, or if the other agency's records contain the same
information as this Part 1904 requires you to record.'' Accordingly,
because FRA's employee injury and illness recordkeeping and reporting
requirements employ equivalent standards to those promulgated by OSHA,
OSHA does not require railroad carriers to maintain OSHA records in
addition to FRA records. Rather, railroad carriers are only required to
report employee injuries and illnesses to FRA in accordance with FRA's
regulations. FRA makes all railroad employee injury and illness data
available to OSHA for use in its complementary program of regulation,
and provides this data to the Bureau of Labor Statistics (BLS) each
year for inclusion in the Department of Labor's national occupational
injury and illness database.
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    \4\ It should be noted that the OSHA 200 form has been
subsequently renamed as the OSHA 300 form.
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C. Overview of Part 225 and Recent Amendments

    Part 225 contains a series of specific accident/incident recording
and reporting requirements. The purpose of FRA's accident/incident
recordkeeping and reporting regulations is ``to provide the Federal
Railroad Administration with accurate information concerning the
hazards and risks that exist on the Nation's railroads. FRA needs this
information to effectively carry out its statutory responsibilities
under 49 U.S.C. chapters 201-213. FRA also uses this information for
determining

comparative trends of railroad safety and to develop hazard elimination
and risk reduction programs that focus on preventing railroad injuries
and accidents.'' 49 CFR 225.1. Part 225's central provision requires
that each railroad subject to Part 225 submit to FRA monthly reports of
all accidents and incidents that meet FRA's reporting criteria. 49 CFR
225.11. Railroad accidents/incidents are divided into three groups,
each of which corresponds to the type of reporting form that a railroad
must file with FRA: (1) Highway-rail grade crossing accidents/
incidents; (2) rail equipment accidents/incidents; and (3) deaths,
injuries and occupational illnesses. See 49 CFR 225.19.
    In 1996, FRA published extensive amendments to its accident/
incident reporting regulations. 61 FR 30940, June 18, 1996; 61 FR
67477, December 23, 1996. This was the first major revision of the
accident/incident reporting requirements since 1974. The primary
purpose of the revision was to increase the accuracy, completeness, and
utility of FRA's accident database and to clarify certain definitions
and regulatory requirements. Among other things, these amendments
required railroads to adopt and comply with an Internal Control Plan
(ICP) to ensure accurate reporting of accidents and incidents.
    In 2003, FRA again published extensive amendments to its accident/
incident reporting regulations (FRA's 2003 Final Rule). 68 FR 10107-
10140, March 3, 2003. The primary purpose of these revisions was to
conform FRA's accident/incident reporting requirements to OSHA's newly
revised occupational injury and illness recording and reporting
requirements. 66 FR 5916-6135, January 19, 2001 (codified at 29 CFR
Parts 1904 and 1952) (OSHA's 2001 Final Rule). FRA's 2003 Final Rule
also addressed other issues and provided for an alternative method of
recording claimed occupational illnesses with the advent of Form FRA F
6180.107, ``Alternative Record for Illness Claimed to be Work-
Related.''

III. Proceedings to Date

    On September 9, 2008, FRA published a Notice of Proposed Rulemaking
(NPRM), which proposed miscellaneous amendments to FRA's accident/
incident reporting regulations in order to clarify ambiguous
regulations and to enhance the quality of information available for
railroad casualty analysis. See 73 FR 52496. The NPRM also proposed
revisions to the 2003 FRA Guide and FRA's Accident/Incident recording
and reporting forms.
    The NPRM further requested comments and suggestions on four issues
of concern. First, FRA requested comments and suggestions for any
additional information that might be gathered on Form FRA F 6180.57,
``Highway-Rail Grade Crossing Accident/Incident Report,'' that would be
useful in determining how and why highway-rail grade crossing
accidents/incidents occur. Second, FRA requested comments and
suggestions on whether FRA should require railroads to complete the
longitude and latitude blocks on Form FRA F 6180.55a, ``Railroad Injury
and Illness Summary (Continuation Sheet)'' (blocks 5s and 5t), for
reportable trespasser casualties only, and on Form FRA F 6180.54,
``Rail Equipment Accident/Incident Report'' (blocks 50 and 51). Third,
FRA requested comments and suggestions on whether FRA should change the
method by which telephonic reports of accidents/incidents, as required
by Sec.  225.9, are made to FRA. Fourth, FRA requested comments and
suggestions on whether FRA should require railroads to report to FRA on
Form FRA F 6180.55a suicides and attempted suicides, otherwise referred
to as ``suicide data,'' and on concerns regarding State access to such
reports.
    On September 10, 2008, during the 36th Railroad Safety Advisory
Committee (RSAC) meeting, RSAC Task No. 2008-02 was presented for
acceptance. The task offered to the RSAC for consideration was to
review comments received on FRA's NPRM and would have allowed the RSAC
to make recommendations for the content of the final rule. The task was
withdrawn at the meeting without RSAC acceptance.
    Following publication of the NPRM in the Federal Register, FRA held
a public hearing in Washington, DC on December 18, 2008, and extended
the comment period for an additional thirty (30) days following the
hearing. The hearing enabled the exchange of information regarding
FRA's proposed amendments, and allowed the public to articulate their
issues and concerns regarding the NPRM, so that such concerns could be
addressed in the final rule. The hearing was attended by a number of
railroads, organizations representing railroads, and labor
organizations. FRA received oral and written testimony at the hearing
as well as written comments during the extended comment period. A copy
of the hearing transcript was placed in Docket No. FRA-2006-26173 on
http://www.regulations.gov. During the initial and extended comment
period, FRA received comments and heard testimony from the following
organizations, in addition to comments from individuals, listed in
alphabetical order:

     American Association for Justice (AAJ);
     Association for American Railroads (AAR);
     American Train Dispatchers Association (ATDA);
     BNSF Railway Company (BNSF);
     Brotherhood of Locomotive Engineers and Trainmen
(BLET);
     Brotherhood of Maintenance of Way Employees Division
(BMWED);
     Brotherhood of Railroad Signalman (BRS);
     California Public Utilities Commission (CPUC);
     U.S. Department of Labor (DOL);
     Illinois Commerce Commission/Transportation Bureau/Rail
Safety Section (ICC);
     Kansas City Southern Railway Company (KCS);
     Metro-North Commuter Railroad Company (MNCW);
     National Railroad Passenger Corporation (Amtrak);
     New York State Metropolitan Transportation Authority
(NYSMT);
     NJ Transit Rail Operations (NJT);
     Norfolk Southern Corporation (NS);
     Southeastern Pennsylvania Transportation Authority
(SPTA);
     Union Pacific Railroad Company (UP); and
     United Transportation Union (UTU).

    As an initial matter, when developing this final rule, FRA
carefully considered all of the comments, information, data, and
proposals submitted to Docket No. FRA-2006-26173 and discussed during
the hearing. In addition, FRA's extensive knowledge and experience with
enforcing the existing accident/incident reporting regulations was also
relied upon when developing this final rule. FRA addresses the comments
in the Section-by-Section Analysis of this final rule and elsewhere as
appropriate.
    One such comment to the NPRM stated that FRA should have used an
RSAC working group for this rulemaking. FRA, however, is not required
to engage the RSAC in formulating regulations. Here, as discussed
above, FRA held a hearing and provided two comment periods during which
interested parties had opportunities to comment on the NPRM.

IV. Section-by-Section Analysis

Technical Amendment

    Throughout the rule text, this final rule updates the agency's
address and other mailing addresses, when appropriate, to reflect FRA's
relocation to the new U.S. Department of Transportation headquarters
building. This revision affects Sec. Sec.  225.7(a), 225.11(b),
225.12(g)(3), and the introductory paragraph of Sec.  225.21. This
change is also reflected in the FRA

Guide, the accident/incident reporting and recording forms, and the
Companion Guide.

Sec.  225.1  Purpose.

    The final rule removes the preemption language dealing with part
225 from this section. FRA believes that this language is unnecessary
because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of
FRA's regulations. Providing a separate Federal regulatory provision
concerning the regulation's preemptive effect is duplicative and
unnecessary.

Sec.  225.3  Applicability.

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

Sec.  225.5  Definitions.

    The final rule amends paragraph (1) of the definition of
``Accident/incident'' to clarify the definition and to conform to the
FRA Guide. In the NPRM, FRA set forth to clarify the definition of
accident/incident with respect to impacts at highway-rail grade
crossings. Commenters generally indicated that further clarification
was necessary regarding under what circumstances sidewalks and pathways
are considered to be part of a highway-rail grade crossing site.
    In response to these comments, FRA determined that the proposed
definition required revision. As such, the final rule provides that
``Accident/incident'' means, in part, any impact between railroad on-
track equipment and a highway user at a highway-rail grade crossing.
The final rule, elsewhere in Sec.  225.5, defines the term ``highway-
rail grade crossing'' to mean a location where a public highway, road,
street, or a private roadway, including associated sidewalks, crosses
one or more railroad tracks at grade, or a location where a pathway
explicitly authorized by a public authority or a railroad carrier that
is dedicated for the use of non-vehicular traffic, including
pedestrians, bicyclists, and others, that is not associated with a
public highway, road, street, or a private roadway, crosses one or more
railroad tracks at grade. The definition of ``highway-rail grade
crossing'' further provides that the term ``sidewalk'' means that
portion of a street between the curb line, or the lateral line of a
roadway, and the adjacent property line or, on easements of private
property, that portion of a street that is paved or improved and
intended for use by pedestrians. The FRA Guide provides a diagram
illustrating the definition of the term sidewalk. See FRA Guide,
Chapter 2. In addition, the final rule provides that the term ``highway
user'' may include an automobile, bus, truck, motorcycle, bicycle, farm
vehicle, pedestrian, or any other mode of surface transportation
motorized and un-motorized.
    FRA does not believe that this clarifying amendment increases the
burden on railroads because it is consistent with common industry
practice as well as FRA's long-standing policy. Moreover, even if
reporting accidents at such pathways was not standard industry
practice, any increased burden would be nominal. Based on the U.S. DOT
National Highway-Rail Crossing Inventory, FRA estimates that there are
approximately 2,000 grade crossings in the United States that are not
associated with highways, roads, streets, or private roadways and that
very few highway-rail grade crossing accidents/incidents occur at these
locations each year. Accordingly, even if this did place a new burden
on railroads to report accidents/incidents not previously reported, the
burden would be insignificant in light of the small number of
additional reports that would be required.
    The final rule also clarifies that sidewalks that may be used to
cross railroad tracks at grade are considered to be part of (i.e.,
associated with) the highway-rail grade crossing. The definition of
sidewalk included in the final rule clarifies which sidewalks are
considered associated with the crossing. FRA does not believe this
clarification will result in any change to current railroad reporting
practices. In addition, the definition of the term ``sidewalk'' is
based on the definition of the term as articulated in the 2009 edition
of the Federal Highway Administration's Manual on Uniform Traffic
Control Devices. The FRA Guide includes an illustrative diagram to help
clarify the meaning of the term ``sidewalk.'' See FRA Guide, Chapter 2.
    A comment to the NPRM suggested that FRA use the term ``road user''
rather than the term ``highway user.'' The final rule does not adopt
this suggestion in order to maintain consistency between the terms
``highway user'' and ``highway-rail grade crossing.'' A comment also
sought clarification that there are no exceptions to reporting
collisions between on-track equipment and highway users. FRA believes
that the final rule is clear that any impact between a highway user and
on-track equipment at a highway-rail grade crossing qualifies as a
highway-rail grade crossing accident/incident and that further
clarification is not required. A comment also recommended that impacts
at highway-rail grade crossings be referred to as ``train-vehicle
collisions,'' rather than ``accidents/incidents.'' The final rule does
not adopt this suggestion because such an amendment is not consistent
with the historical use of such terms.
    The final rule also amends paragraph (3) of the definition of
``Accident/incident'' to conform to the revised language in Sec.
225.19(d) and to reference, rather than explicitly list, the general
reporting criteria set forth in Sec.  225.19(d). See Section-by-Section
Analysis for Sec.  225.19(d).
    In the NPRM, FRA proposed amending the definition of ``Accountable
injury or illness'' to mean any abnormal condition or disorder of a
railroad employee that manifests within the work environment and causes
or requires a railroad employee to be examined or treated by a
qualified health care professional, but does not meet the general
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6)
regardless of whether the condition or disorder is discernably caused
by an event or exposure in the work environment.
    The final rule amends the definition of ``Accountable injury or
illness'' to conform to the amended definition of ``injury or
illness;'' to eliminate redundancy by removing the word ``activity''
from the phrase ``by an event, exposure, or activity in the work
environment'' as the amended definition of ``event or exposure'' in the
final rule includes activities; to eliminate potential underreporting
of work-related injuries and illnesses; to ensure that potentially
reportable injuries and illnesses are documented, tracked, and
evaluated for reporting and auditing purposes; and to delete the phrase
``not otherwise reportable'' due to its ambiguity. See Section-by-
Section Analysis for Sec.  225.19(d), ``Primary groups of accidents/
incidents; Death, injury and occupational illness.'' The final rule
amends the definition of ``Accountable injury or illness'' to mean

``any abnormal condition or disorder of a railroad employee that causes
or requires the railroad employee to be examined or treated by a
qualified health care professional, regardless of whether or not it
meets the general reporting criteria listed in Sec.  225.19(d)(1)
through (d)(6), and the railroad employee claims that, or the railroad
otherwise has knowledge that, an event or exposure arising from the
operation of the railroad is a discernable cause of the abnormal
condition or disorder.''
    The language proposed in the NPRM specified that an accountable
injury or illness is one that ``does not meet the general reporting
criteria.'' The final rule replaced this with ``regardless of whether
or not it meets the general reporting criteria'' because an injury or
illness may eventually become reportable or the railroad may not have
enough information at the time to determine whether the injury or
illness is reportable. These are clarifications and do not pose any
change to FRA's accident/incident recording or reporting requirements.
    The purpose of Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record,'' is to create an initial record of, and audit trail
for, each potentially reportable injury or illness. As such, under the
previous recording requirements, railroads were required to complete
the Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness
Record,'' for each accountable and reportable injury or illness within
seven (7) working days after first becoming aware of the accountable or
reportable injury or illness. As a result, under FRA's 2003 Final
Rule's definition of accountable and reportable injury and illness, a
railroad had to make an initial determination with regard to the work-
relatedness of an injury or illness within seven working days. Once a
railroad determined that an employee injury or illness was not work-
related, the railroad was not obligated to create any record or report
of the casualty.
    In many cases, injuries and illnesses, and/or the signs and
symptoms thereof, manifest in the work environment without the cause(s)
being readily apparent. Therefore, a railroad, during its initial seven
day investigation, may have determined that an injury or illness was
not work-related when additional investigation and time would have
shown that the injury or illness was in fact work-related.
Consequently, FRA is concerned that some railroads are prematurely
attributing the cause of an injury or illness solely to a non-work-
related event or exposure occurring outside the work environment. FRA
was similarly concerned that some railroads were not investigating
pertinent information about employee injuries and illnesses to make an
accurate work-relatedness determination. As a result, FRA believes that
some railroads may have under-reported employee injuries and illnesses,
and, because a Form FRA F 6180.98 was not completed to initially record
the injury or illness, no audit trail was created. In such
circumstances, FRA and the railroads were left unaware of the
potentially reportable or accountable injury. Moreover, by only
requiring a record for those casualties that were ultimately determined
to be work-related within the initial seven days period, FRA was
prevented from later evaluating the reportability of the injury or
illness in order to determine whether the reporting officer made an
appropriate reporting decision or whether the railroad complied with
its duty to investigate the injury or illness.
    In consideration of the comments and FRA's safety mission, the
final rule contains a revised definition. The definition contained in
the final rule triggers the railroads' responsibility to create a Form
FRA F 6180.98 for (i.e., an accountable injury or illness) any abnormal
condition or disorder of a railroad employee that causes or requires
the railroad employee to be examined or treated by a qualified health
care professional regardless of whether or not it meets the general
reporting criteria in Sec.  225.19(d), and the employee claims that, or
the railroad otherwise has knowledge that, the injury or illness is
work-related. Therefore, the definition in the final rule eliminates
the requirement that a railroad record all injuries or illnesses based
on manifestation regardless of cause. While railroads are still
required to complete the Form FRA F 6180.98, ``Railroad Employee Injury
and/or Illness Record,'' for each accountable and reportable injury or
illness within seven working days after first becoming aware of the
accountable or reportable injury or illness, the revised definition of
accountable injury/illness will alleviate the railroad's need to make a
final decision with regard to work-relatedness when an employee claims
or suspects that the injury or illness is in fact work-related and will
ensure that a record of each potentially reportable injury or illness
is created. See Section-by-Section Analysis of Sec.  225.25 for
additional information. This approach helps to ensure that railroads
record and thoroughly investigate injuries and illnesses where the
employee claims that an event or exposure in the work environment is a
discernable cause of the employee's injury or illness but additional
investigation is necessary. This approach creates an audit trail of
potentially work-related employee injuries and illnesses, and, because
the railroad need not make a final determination regarding work
relatedness within seven days, provides additional time for railroads
to complete the work-related analysis. Moreover, this approach allows
FRA to use the audit trail to better understand railroads' reporting
processes and their application of the applicable regulations.
    FRA received numerous comments addressing the proposed definition
of ``Accountable injury or illness.'' Because of the language adopted
in the final rule, a majority of those comments are no longer
applicable. At the hearing and in the written comments, several
railroads and organizations representing labor and railroads asserted
that FRA's reporting requirements must be based upon work-relatedness
and, therefore, the proposed amendment was outside of FRA's authority.
While FRA disagrees with this assertion, this issue is no longer
relevant. FRA has been tasked with and given the authority to prescribe
regulations that ``promote safety in every area of railroad operations
and reduce railroad-related accidents and incidents.'' 49 U.S.C. 20102.
Moreover, FRA has the authority to investigate ``an accident or
incident resulting in serious injury to an individual or to railroad
property.'' Id. As such, the proposed changes were well within FRA's
authority as they were meant to improve FRA's safety data and to allow
FRA to audit railroad reporting decisions. Finally, although FRA makes
every effort to maintain consistent reporting requirements with those
of OSHA, FRA's accident/incident recording requirements are based
solely on FRA's program needs and purposes, and as such may differ from
OSHA's requirements to any extent FRA believes is necessary.
    Comments by NJT, UP, and AAR, among others, asserted that the
proposed amendments could increase the misclassification of data by
capturing too much information. As an initial matter, these comments
concerned the language proposed in the NPRM. Regardless, with respect
to the language in the final rule, railroads should already be
reviewing all employee claimed or suspected work-related injuries and
illnesses. FRA is simply requiring that the railroad document these
suspected work-related injuries.
    Many comments also stated that the proposed changes are not
connected to

identifying safety hazards and that the previous reporting scheme did
not result in underreporting. As explained above, the prior definition
created an inadequate audit trail. In addition, FRA believes that the
prior reporting system did result in underreporting due to the
difficulties related to making a final work-relatedness determination
within seven days for certain injuries and illnesses. Also, prior to
this final rule, when a railroad made an initial incorrect or premature
recording decision that an injury or illness was not recordable, the
reporting system did not ensure that the railroad would catch the
problem at a later time. Now, with the clarification that when an
employee claims that, or railroad otherwise has knowledge that, an
injury or illness is work-related, a railroad will be required to
record such injuries and illnesses. In addition, the final rule
improves the audit trail created by the railroads and better enables
FRA to review reporting decisions and to identify reporting problems.
    Other comments suggested that the current reporting scheme captures
all of the necessary data. Specifically, AAR argued that there are
sufficient tools currently in place, such as the ICP, to identify
underreporting. UP argued that it is using a reliable review process
that allows it to identify where additional information is required so
that it is making accurate reporting decisions. The ICP requires the
railroad to audit its own reporting and make appropriate changes in its
reporting system to improve the quality of reporting. In the preamble
of the June 18, 1996 regulation, FRA challenged the railroads to
develop a Total Quality Management (TQM) system to have zero defects in
reporting. The final rule is consistent with the purpose of the ICP,
which is to have complete and accurate reporting. (49 CFR
225.33(a)(1)). FRA has found that the current tools do not always
capture injuries or illnesses where the cause of the injury or illness
is not readily apparent. The previous ICP did not create an audit trail
for a situation in which a railroad determined that the injury or
illness is not work-related, therefore, FRA and the railroads were
hindered in reviewing and auditing the initial reporting decisions. AAR
stated in post-hearing comments that disparities in reporting between
railroads is not a sign of underreporting. However, without making an
initial record and monitoring injuries and illnesses, it is difficult
for the railroads or FRA to completely understand or explain the
disparities in reporting. The changes in the final rule will allow FRA
to review the railroad's decision making process to better understand
those disparities and to better understand which safety measures are
effective in preventing certain types of injuries and illnesses.
    Commenters also argued that the proposed amendments were overly
burdensome, suggesting that railroads would have to record every minor
injury or illness, and that they may somehow violate the Americans with
Disabilities Act (ADA), as railroads would be forced to follow up on
and collect non-work-related medical information. Again, these comments
relate to the proposed language in the NPRM, thus, they are not
entirely applicable to the language adopted in the final rule. The
final rule simply requires railroads to make a record of each injury or
illness that the employee suspects or claims, or the railroad otherwise
has knowledge that, is work-related. And, as noted, railroads should
already be investigating these potentially work-related injuries and
illnesses. FRA is simply asking the railroads to document their
investigation of all potentially work-related injuries and illnesses
where the employee claims or suspects the casualty is work-related,
rather than just those that are ultimately determined to be work-
related. During the hearing, in response to allegations that the
amendment would result in violations of privacy laws, FRA asked that
the railroads submit additional comments explaining how the amendment
would force railroads to violate privacy laws. AAR stated that the
proposed language would force employers to request personal information
without providing any safety benefit. As explained above, the changes
in the final rule are aimed at improving safety in the rail industry
and justify requesting sensitive information, particularly where the
employee suspects or claims, or the railroad knows, that the injury or
illness is work-related. Moreover, the definition in this final rule
does not expand the scope of the injuries or illnesses to be
investigated under FRA's 2003 Final Rule but simply creates a
recordkeeping requirement.
    Several commenters stated that the meaning of the terms
``manifests'' and ``abnormal'' were vague. As an initial matter, the
final rule does not include the term ``manifests.'' In addition, FRA's
use of the term ``abnormal'' is clear, and is consistent with OSHA's
language.
    Finally, several commenters suggested that FRA should review
railroads' reporting and recording decisions based on whether or not a
decision is reasonable. AAR stated that employers are in the best
position to determine whether an injury or illness is work-related.
Pursuant to Sec.  225.17, ``Doubtful cases,'' FRA cannot delegate its
authority to decide matters of judgment when facts are in dispute. FRA
must be able to ensure that its accident/incident data is complete and
accurate. Consequently, the final reporting decision is FRA's. AAR also
stated that if OSHA disagrees with an employer's decision, OSHA has the
burden of proving that the injury or illness was work-related.
Consistent with OSHA, the FRA Guide explains that, once an employer
determines that an injury or illness is not reportable ``and FRA
subsequently issues a citation for failure to report, the Federal
Government would have the burden of proving that the injury or illness
was work-related.'' See FRA Guide. To meet its burden, FRA must show
that it is more likely than not that an event or exposure arising from
the operation of the railroad was a discernable cause of the injury or
illness or an event or exposure was a discernable cause of the
significant aggravation of a pre-existing injury or illness. Except
with respect to occupational illnesses, FRA's 2003 Final Rule states
that ``it is the railroad's responsibility to determine whether an
illness is work-related,'' meaning that ``FRA's role will be to
determine whether the reporting officer's determination was
reasonable.'' FRA emphasizes, this language refers to only occupational
illnesses and FRA retained the ability to present evidence that the
railroad's decision was in fact not reasonable. 68 FR 10119, March 3,
2003.
    In the NPRM, FRA proposed amending the definition of ``Accountable
rail equipment accident/incident'' to mean ``a collision, derailment,
fire, explosion, act of God, or other event involving the operation of
railroad on-track equipment (standing or moving) that does not result
in reportable damages greater than the current reporting threshold to
railroad on-track equipment, signals, track, track structures, and
roadbed.'' The final rule defines ``Accountable rail equipment
accident/incident'' to mean ``(1) any derailment regardless of whether
or not it causes any damage or (2) any collision, highway-rail grade
crossing accident/incident, obstruction accident, other impact, fire or
violent rupture, explosion-detonation, act of God, or other accident/
incident involving the operation of railroad on-track equipment
(standing or moving) that results in damage to the railroad on-track
equipment (standing or moving), signals, track, track structures or
roadbed and that damage impairs the

functioning or safety of the railroad on-track equipment (standing or
moving), signals, track, track structures or roadbed.''
    Under the definition contained in FRA's 2003 Final Rule, generally,
an accountable rail equipment accident/incident meant an incident that
resulted in damage below the reporting threshold and that, if not
attended to, would disrupt railroad service. FRA has found through its
audits and enforcement tools that the term ``disruption of service''
has not been consistently understood or uniformly applied throughout
the railroad industry. Moreover, FRA found that the previous definition
of accountable rail equipment accident/incident failed to adequately
capture the accidents and incidents FRA originally intended and
currently requires to be recorded and/or reported for data analysis and
safety purposes. Specifically, FRA originally created the Form FRA F
6180.97 to establish a means by which railroads could record and FRA
could audit railroad reporting decisions with regard to the reporting
of railroad accidents/incidents on Form FRA F 6180.54. FRA has expanded
its use of the Form FRA F 6180.97 to identify safety hazards in yards
and terminals, which has benefited FRA's safety efforts, as those
incidents are precursors for reportable accidents and incidents.
    Based upon FRA's thorough review and consideration of the comments
and FRA's goals of creating an audit trail, applying a uniform and
simpler standard and capturing data that will allow it to identify and
eliminate safety hazards, FRA believes that the language adopted in the
final rule is more appropriate than the language proposed in the NPRM.
FRA received numerous comments addressing the proposed amendments to
the definition of ``Accountable rail equipment accident/incident'' and,
based upon the language adopted in the final rule, a majority of those
comments are no longer applicable.
    FRA received comments that the proposed definition would create a
substantial burden on the railroads as it would require them to record
every minor incident regardless of the amount of damage and the
connection to safety. The final rule does not require railroads to
report or record damage that is the result of normal wear and tear.
Rather, as in FRA's 2003 Final Rule, this final rule only classifies an
accident/incident as an ``accountable rail equipment accident/
incident'' when it results from a derailment, collision, highway-rail
grade crossing accident/incident, obstruction accident, other impact,
fire or violent rupture, explosion-detonation, act of God, or other
accident/incident involving the operation of railroad on-track
equipment (standing or moving). FRA intends to use the information
captured to learn about precursors to reportable accidents/incidents
and to improve safety. The final rule clarifies that, with the
exception of derailments, an incident must result in damage and that
damage must impair the functioning or safety of the railroad on-track
equipment (standing or moving), signals, track, track structures or
roadbed. Consequently, FRA is not requiring the railroads to record
minor incidents that result from normal wear and tear. Consistent with
FRA's 2003 Final Rule, FRA believes it is necessary to record every
derailment as such information will provide greater insight into their
causes and will prevent future reoccurrences, including those that may
result in hazardous material spills, significant damage, and/or
casualties. Finally, the definition adopted in the final rule, which
eliminates the disruption of service criteria, creates a clear
reporting standard that will allow for easier and more consistent
enforcement and compliance.
    SEPTA suggested, in one comment, that FRA retain the disruption of
service criteria. FRA did not implement this suggestion. As discussed
above, the disruption of service criteria does not capture all of the
data FRA needs to ensure safety. Moreover, FRA has found that the
disruption of service criteria has not been uniformly applied. FRA
believes that the language adopted in the final rule is more
appropriate and not overly burdensome.
    In addition, several commenters suggested that the proposed
definition was unclear and that it was unclear what information FRA was
attempting to capture. FRA believes that the language adopted in this
final rule, however, is clear and will allow for the uniform
application of the standard.
    The final rule includes a definition for ``Discernable cause.'' In
order to clarify the meaning of this term and to ensure consistency
with OSHA's reporting requirements, the final rule defines
``Discernable cause'' in Sec.  225.5 to mean, ``a causal factor capable
of being recognized by the senses or the understanding.'' See also,
Webster's Third New International Dictionary (1961); Webster's Third
New International Dictionary, Unabridged (1971). The definition further
provides that ``[a]n event or exposure arising from the operation of a
railroad is a discernable cause of (i.e., discernably caused) an injury
or illness if, considering the circumstances, it is more likely than
not that the event or exposure is a cause of the injury or illness. The
event or exposure arising from the operation of a railroad need not be
a sole, predominant or significant cause of the injury or illness, so
long as it is a cause (i.e., a contributing factor).''
    FRA's accident/incident reporting regulations concerning railroad
occupational casualties are maintained, to the extent practicable, in
general conformity with OSHA's recordkeeping and reporting regulations,
in order to permit comparability of data on occupational casualties
between various industries, to allow integration of railroad industry
data into national statistical databases, and to improve the quality of
data available for analysis of casualties in railroad accidents/
incidents.\5\ Moreover, maintaining such compatibility allows railroads
to report occupational casualties only to FRA, rather than to OSHA and
to FRA. See 29 CFR 1904.3.
---------------------------------------------------------------------------

    \5\ It should be noted that under OSHA's regulations, the term
``recording'' is used. Under FRA's regulations and the FRA Guide,
the term ``reporting'' is used. The OSHA system requires recording
into the OSHA 300 Log whereas FRA has always used the term
``reporting'' in its regulations and in the FRA Guide because the
Accident Reports Act of 1910, as amended, requires ``a railroad
carrier [to] file a report * * * on all accidents and incidents * *
*'' 49 U.S.C. 20901.
---------------------------------------------------------------------------

    With respect to employee injury and illness recording, OSHA's 2001
Final Rule, states that ``each employer * * * must record each
fatality, injury and illness that is work-related; and is a new case;
and meets one or more of the general recording criteria * * * or the
application to specific cases.'' 66 FR 5916, 5945, January 19, 2001,
codified at 29 CFR 1904.4(a). OSHA's 2001 Final Rule goes on to state
that ``[employers] must consider an injury or illness to be work-
related if an event or exposure in the work environment either caused
or contributed to the resulting condition or significantly aggravated a
pre-existing injury or illness,'' and that ``[w]ork-relatedness is
presumed for injuries and illnesses resulting from events or exposures
occurring in the work environment, unless an exception in [29 CFR]
1904.5(b)(2) specifically applies.'' 66 FR 5916, 5946, January 19,
2001, codified at 29 CFR 1904.5(a).
    After OSHA's 2001 Final Rule was published, the National
Association of Manufacturers (NAM) filed a legal challenge to the final
rule, with respect to (among other things) the final rule's presumption
of work-relatedness. On November 16, 2001, OSHA and NAM entered into a
settlement agreement to resolve NAM's legal challenge. The parties then
entered into a revised

settlement agreement on November 29, 2001. The revised settlement
agreement was published in the Federal Register at 66 FR 66943,
December 27, 2001. As part of the NAM-OSHA settlement, the parties
agreed to the following:

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

    In 2003, FRA revised its accident/incident reporting regulations to
conform, to the extent practicable, to OSHA's revised requirements. See
68 FR 10108-10140, March 3, 2003. In doing so, FRA took into account
the NAM-OSHA settlement agreement, in particular the agreement's
reference to the term ``discernable,'' to qualify or describe cause.
FRA included the phrase ``discernable cause'' in its definitions of
``Accident/incident,'' ``Accountable injury or illness,'' and
``Occupational illness'' in Sec.  225.5, and added the phrase to its
reporting requirement for ``Deaths, injuries and occupational
illnesses'' at Sec.  225.19(d). While FRA did discuss the meaning of
``discernable cause'' in the preamble of FRA's 2003 Final Rule, see 68
FR 10108, 10127, March 3, 2003, the agency did not explicitly define
the term ``Discernable cause'' in the rule text.
    On January 15, 2008, FRA received a letter from the DOL's Office of
the Solicitor (OSHA Letter) confirming FRA's understanding and
application of the NAM-OSHA settlement agreement and OSHA's
recordkeeping requirements with regard to ``work-relatedness,'' in
addition to providing further clarification on particular points of
law. In the OSHA Letter, OSHA stated that ```[d]iscernable' is used in
the ordinary sense; that is, capable of being recognized by the senses
or the understanding.'' OSHA Letter at 3. OSHA's definition came from
Webster's Third International Dictionary. The OSHA Letter goes on to
state that an event or exposure is a discernable cause if,
``considering the circumstances, it is more likely than not that the
event or exposure is a cause of the injury or illness.'' Id. FRA
submitted the OSHA Letter to Docket Number FRA 2006-26173 on December
10, 2008.
    FRA received several comments from the railroads and other
organizations regarding the proposed definition of discernable cause.
Many comments stated that the proposed definition was inconsistent with
OSHA's reporting requirements. As explained above, FRA adopted a
definition that is virtually identical to and consistent with OSHA's
definition to ensure that railroads need to report only to one agency
and that there is consistent reporting across industries. One comment
suggested that OSHA requires that the cause be distinguishable from
other causes, and that FRA's definition is inconsistent. Although OSHA
requires that an event or exposure be a tangible cause, it does not
require that the event or exposure be the main or predominate cause of
the injury or illness. In addition, neither OSHA nor FRA require that
the railroad calculate the exact amount of cause a particular event or
exposure played in the subsequent injury or illness, only that it be a
cause. Moreover, like OSHA, where it is difficult to determine whether
the event or exposure is a cause, FRA requires that the employer
consider the circumstances surrounding the event or exposure to
determine whether it is more likely than not a cause.
    Other comments suggested requiring that the event or exposure in
the work environment be the predominant or main cause to ease the
reporting burden and to simplify the reporting scheme. However, this
suggestion would make the definition inconsistent with OSHA. In the
OSHA Letter, OSHA stated, with regards to ``causation,'' that ``the
employer need not weigh the relative contributions of occupational and
non-occupational factors to the injury or quantify the extent of the
occupational contributions.'' Id. As such, ``discernable'' in this
context does not mean obvious. In addition, requiring that the event or
exposure be the predominant or main cause would exclude certain
injuries and illnesses, and would be difficult to measure and enforce.
    Some comments requested that medical evidence factor into the
causation decision. Consistent with OSHA, FRA recognizes that when
causation is not obvious, that ``consultation with a health care
professional'' may play a part in the reportability determination. Id.
However, the final reporting decision is made by a railroad's reporting
officer and the responsibility cannot be delegated to another
individual. Railroads also asked what weight FRA gives to medical
evidence compared to other types of evidence. Again, FRA, like OSHA,
acknowledges that medical consultation may be a factor the railroad
reporting officer considers, but the reporting officer may not delegate
the reporting decision to a health care professional. As stated in the
definition, ``[i]f it is unclear whether the work event was a cause of
the injury, the employer must evaluate the employee's work duties and
environment and decide whether it is more likely than not that work was
a cause.'' Id. Thus, an employer is responsible for considering all of
the relevant evidence obtained through its inquiry when making a
reporting decision. When reviewing the railroad's reporting decision,
FRA considers various factors when giving weight to a health care
professional's opinion, including, but not limited to, whether the
health care professional clearly documented his or her findings,
whether the conclusion is supported by evidence, and whether the health
care professional provided a medical assessment or, instead, a
conclusory statement.
    Finally, commenters asserted that FRA ``always'' takes employees at
their word and, therefore, railroads are not truly free to consider
contradictory medical evidence. However, that is not the case. As
stated in Sec.  225.17, ``Doubtful cases,'' FRA has the authority to
resolve factual disputes. During its audit, FRA reviews the basis for a
railroad's reporting decision, in addition to the ``investigatory
materials,

including, but not limited to, the following: The initial report filed
by the affected person, witness statements, transcripts of hearings,
medical records, time and attendance records, and the purpose of
payouts made in connection with the accident/incident.'' See FRA Guide,
Chapter 1. Moreover, FRA conducts additional investigation and consults
with its own health care professional when appropriate. At the
conclusion of its investigation, FRA will review the railroad's
reporting decision and all of the associated evidence to determine
whether it is more likely than not that an event or exposure arising
from the operation of the railroad is a discernable cause of the
injury.
    Commenters suggested using an evidence-based approach to determine
causation. During his testimony, Dr. M. Hadler commented that
individuals often have difficultly recognizing what caused their
injuries and tend to attribute cause to the environment they are in at
the time their pain becomes unbearable. Consequently, Dr. Hadler
suggested using a more scientific approach (such as a pain diary) to
determine causation. Additionally, KCS and UP suggested that FRA use
the National Institute for Occupational Safety and Health's (NIOSH)
approach to determine causation. FRA, however, has chosen to adopt
OSHA's language and method of determining causation so that railroads
may report injuries and illnesses to only one agency, FRA. If FRA
adopted the NIOSH approach then railroads would be responsible for
reporting employee injuries and illnesses separately to both OSHA and
FRA. FRA collection of employee injuries and illnesses must be
consistent with OSHA's system to make a reliable national database.
Failure to be consistent with OSHA would trigger dual reporting
requirements for railroads (to OSHA and to FRA). UP supported adopting
the NIOSH approach because it believes that each person shows injuries
and illnesses differently. Thus, UP and KCS would like an approach that
considers the unique factors for each person. Under FRA's approach, a
railroad should conduct an inquiry into any potentially reportable or
accountable injury or illness. At the conclusion of its investigation,
the railroad must decide whether, considering the circumstances, it is
more likely than not that an event or exposure arising from the
operation of the railroad is a discernable cause of an injury or
illness. Consequently, under this approach, a railroad may consider the
various unique factors associated with each employee's potentially
reportable or accountable injury or illness, including but not limited
to an employee's medical and work history, in addition to an employee's
statements regarding his or her injury or illness.
    Commenters also suggested that the definition of discernable cause
is too broad. Specifically, commenters suggested that the definition
requires railroads to collect information that is not relevant to
occupational safety and will result in over-reporting. Again, the
definition of discernable cause is consistent with FRA's longstanding
policy and with OSHA's interpretation. As a result, the definition will
not change railroad reporting responsibilities and, in fact, will ease
the reporting burden (as railroads have to report to only one agency).
Like OSHA, FRA does not require that the cause be occupational in
nature. See also Section-by-Section Analysis for Sec.  225.5,
``Definitions--Work-related.'' Also, the definition is appropriate as
it allows FRA to identify injuries and illnesses for which events or
exposures arising from the operation of the railroad play a role, and
it is not overly broad as the injuries and illnesses must also meet one
of the reporting criteria. In addition to the benefits of collecting
uniform data across industries, FRA is not collecting information
regarding minor injuries with no safety impact as an event or exposure
arising from the operation of the railroad must be a discernable cause
and the injury or illness must be severe enough to meet one of the
reporting criteria.
    Commenters also stated that the definition of discernable cause is
vague and fails to provide clear guidance to railroads. Specifically,
one comment stated that the dictionary definition was uninformative. As
explained above, the cause need not be the sole or predominant cause,
rather it must be a contributing factor. If it is not clear whether the
event or exposure was a discernable cause, the employer must consider
the surrounding circumstances to determine reportability. FRA believes
that the definition and standard are clear. Moreover, when a railroad
is unsure about the reportability of an injury or illness, FRA
recommends that a railroad make a report or utilize FRA's ``claimed but
not admitted'' process as described in 49 CFR 225.17(c).
    Commenters suggested that FRA is creating a geographic presumption
and, therefore, the definition is inconsistent with OSHA. Moreover,
commenters want to limit the cause to just those injuries that are
occupational in nature (i.e., related to performing job-related
activities). See Section-by-Section Analysis for Sec.  225.5,
``Definitions--Event or exposure arising from the operation of the
railroad'' and ``Definition Work related.'' For employees, consistent
with OSHA, the final rule requires that an event or exposure in the
work environment be a discernable cause of the injury or illness.
Therefore, FRA is still requiring causation and, as such, an injury or
illness is not work-related simply because signs or symptoms arise in
the work environment. For non-employees, FRA requires that an event or
exposure arising from the operations of the railroad be a discernable
cause of the casualty, and, as such, FRA did not create a geographic
presumption. Although the railroads would like to limit reportable
injuries and illnesses to those caused by events and exposure that are
uniquely occupational, consistent with OSHA, FRA simply requires for
employees that an event or exposure arising from the operation of the
railroad be a discernable cause of the injury or illness. See Section-
by-Section Analysis for Sec.  225.5, ``Definition--Work related.''
    Finally, commenters suggest that employers, and not FRA, are in the
best position to determine causation. Consistent with OSHA, for
purposes of Sec.  225.11, FRA is not reviewing a railroad's reporting
decision to determine whether it was reasonable (except in the case of
occupational illness (See FRA's 2003 Final Rule)); rather, FRA is
determining whether an injury or illness is reportable.
    The final rule defines an ``Event or exposure'' as an ``incident,
activity, or occurrence.'' FRA included the definition to clarify that
event or exposure is a term that is to be broadly interpreted and to
eliminate redundant language in the rule text.
    Many of the comments that FRA received suggested that normal body
movements such as walking or sneezing do not constitute an event or
exposure. However, consistent with OSHA, FRA considers ``normal body
movements'' to be events within the definition. See OSHA Letter at 3.
Such normal body movement cases are only reportable if they arise from
the operation of the railroad and cause or contribute to the injury or
illness. See Section-by-Section Analysis for Sec.  225.5,
``Definition--Work related'' and ``Definition--Discernable cause.''
Consistent with OSHA's requirements, FRA does not require that the
event or exposure be an ``obvious cause'' of the injury or illness, or
be occupational in nature and, therefore, normal body movements may
result in reportable injuries or illnesses.

    The final rule amends and restructures the definition of ``Event or
exposure arising from the operation of a railroad'' to clarify its
meaning. The term ``event or exposure arising from the operation of a
railroad'' and its definition were added in FRA's 2003 Final Rule to
more narrowly tailor what types of accidents/incidents were considered
to ``arise from the operation of a railroad'' and were, therefore,
potentially reportable. 68 FR 10108, 10115-16, March 3, 2003.
    FRA's 2003 Final Rule's definition consisted of three-tiers that
addressed the different classifications of persons on and off railroad
property. The first tier defined ``event or exposure arising from the
operation of a railroad'' broadly ``with respect to any person on
property owned, leased, or maintained by the railroad, an activity of
the railroad that is related to its rail transportation business or an
exposure related to the activity.'' The final rule revises this first
tier of the definition by changing ``any person'' to ``a person who is
not an employee of the railroad.'' This amendment is consistent with
the intent of FRA's 2003 Final Rule:

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

68 FR 10108, 10109, March 3, 2003. The revision clarifies that the
definition was intended to apply only to persons who are not railroad
employees. The final rule also removes the phrase ``an activity of the
railroad'' such that tier one of the definition concerns an event or
exposure that is related to the performance of the railroad's rail
transportation business. The final rule also removes the reference to
``activity'' since the definition of ``event or exposure'' in the final
rule includes ``activity.'' The final rule also revises the language
proposed in the NPRM to clarify that the newly consolidated tier one
subpart (i) deals with a person who is not an employee and is on
railroad property, rather than an event or exposure occurring on
property. FRA believes this clarifying language is consistent with the
intent of FRA's 2003 Final Rule. As this change is consistent with
current industry reporting practices and the language in the FRA's 2003
Final Rule, the amendment to the final rule should have no impact on
reporting practices and, in fact, is more consistent with current
practices than the language proposed in the NPRM.
    The second tier also defined ``event or exposure arising from the
operation of a railroad'' broadly, but ``with respect to an employee of
the railroad (whether on or off property owned, leased or maintained by
the railroad), an activity of the railroad that is related to the
performance of its rail transportation business or an exposure related
to that activity.'' The final rule clarifies this paragraph by revising
the definition to state ``with respect to a person who is an employee
of a railroad, an event or exposure that is work-related.'' This
amendment removes the phrase ``an activity of the railroad,'' since the
definition of ``event or exposure'' in the final rule includes
``activity.'' The final rule also removes the phrase ``(whether on or
off property owned, leased, or maintained by the railroad)'' and the
phrase ``that is related to the performance of the railroad's rail
transportation business * * *'' because the term ``work-related''
encompasses both of those requirements.
    The third tier defined ``Event or exposure arising from the
operation of a railroad'' narrowly with respect to a person who is
neither on the railroad's property nor an employee of the railroad, to
include only certain enumerated events or exposures, i.e., a train
accident, a train incident, or a highway-rail crossing accident/
incident involving the railroad; or a release of hazardous material
from a railcar in the railroad's possession or a release of another
dangerous commodity if the release is related to the railroad's rail
transportation business. 68 FR 10108, 10116, March 3, 2003. The final
rule revises the language proposed in the NPRM to clarify that the new
consolidated tier one subpart (ii) deals with a person who is not an
employee and is not on railroad property, rather than an event or
exposure not occurring on property. FRA believes this clarifying
language is consistent with the intent of FRA's 2003 Final Rule. As
this change is consistent with current industry reporting practices and
the language in FRA's 2003 Final Rule, the amendment to this final rule
should have no impact on reporting practices and, in fact, is more
consistent with current industry practices than the language proposed
in the NPRM.
    The final rule consolidates tier one, tier two, and tier three of
the definition into two tiers so that tier one is applicable to non-
employees and tier two is applicable to employees. The amendments and
restructuring are clarifying measures and do not change the meaning of
the definition. The definition continues to mean, consistent with FRA's
2003 Final Rule, ``that a railroad would not have to report to FRA the
death of or injury to an employee of a contractor to the railroad who
is off railroad property (or deaths or injuries to any person who is
not a railroad employee) unless the death or injury results from a
train accident, train incident, or highway-rail grade crossing accident
involving the railroad; or from a release of a hazardous material or
some other dangerous commodity in the course of the railroad's rail
transportation business. In addition, FRA would require railroads to
report work related illnesses only of railroad employees and under no
circumstances the illness of employees of a railroad contractor.'' 68
FR 10108, 10116, March 3, 2003.
    The final rule amends the language proposed in the NPRM in the
first tier by clarifying that a person who is not an employee is
considered to be on railroad property when they are on property that
the railroad operates over (e.g., operating rights), in addition to
property owned, leased, or maintained by the railroad. FRA does not
believe that this clarifying amendment increases the burden on
railroads because it is consistent with common industry practice as
well as FRA's long-standing policy. Any burden created by this
amendment would be nominal, as a majority of these incidents would have
been captured elsewhere under the prior definition.
    The final rule also amends the language proposed in the NPRM in the
first tier (ii)(A) by removing ``highway-rail grade crossing accident
or incident'' from the list of accidents/incidents considered to be
``events or exposures arising from the operation of the railroad'' when
a non-employee is off railroad property. FRA is removing highway-rail
grade crossing accident or incident from the list of off property
accidents/incidents because it is repetitive, as those types of
accidents and incidents are already captured under train accident and
train incident. FRA also added the term ``non-train incident.'' Non-
train incident is defined as an ``event that results in a reportable
casualty, but does not involve the movement of on-track equipment nor
cause reportable damage above the threshold established for train
accidents.'' See Sec.  225.5, ``Definitions--Non train incident.'' FRA
included ``non-train incident'' to make the definition consistent with
FRA's 2003 Final Rule and the 2003 FRA Guide. In the 2003 FRA Guide,
non-train incidents were included in the list of accidents/incidents.
This amendment

simply clarifies that FRA wants to retain the non-train incidents
events captured under the prior rule and it was inadvertently removed
in the NPRM. FRA does not believe that this clarifying amendment
increases the burden on railroads because it is consistent with the
FRA's 2003 Final Rule, the 2003 FRA Guide, common industry practice, as
well as FRA's long-standing policy.
    Amtrak's comments suggested that FRA's definition creates a
geographic presumption of work-relatedness. However, for an injury or
illness to be reportable, an event or exposure arising from the
operation of the railroad must be a discernable cause. As such, it is
not enough that the signs or symptoms of an injury or illness arose in
the work environment. See Section-by-Section Analysis for Sec.  225.5,
``Definition--Work related.''
    The final rule makes a technical amendment to the definition of
``General reporting criteria'' to include criteria number [225.19(d)]
(6), ``Illness or injury that meets the application of any of the
[enumerated] specific case criteria,'' which was inadvertently omitted
in FRA's 2003 Final Rule.
    The final rule also revises the definition of ``Highway-rail grade
crossing'' to mean a location where a public highway, road, street, or
a private roadway, including associated sidewalks, crosses one or more
railroad tracks at grade, or a location where a pathway explicitly
authorized by a public authority or railroad carrier that is dedicated
for the use of non-vehicular traffic, including pedestrians,
bicyclists, and others, that is not associated with a public highway,
road, or street, or a private roadway, crosses one or more railroad
tracks at grade. The definition further provides that the term
``sidewalk'' means that portion of a street between the curb line, or
the lateral line of a roadway, and the adjacent property line or, on
easements of private property, that portion of a street that is paved
or improved and intended for use by pedestrians.
    Although this revision was not expressly addressed in the NPRM, it
is consistent with FRA's long-standing practice as well as the Railroad
Safety Improvement Act of 2008 (the ``RSIA''). Specifically, sections 2
and 204 of the RSIA define ``crossing'' to include such pathway
crossings. Furthermore, section 209 of the RSIA requires that FRA audit
railroads to ensure that all grade crossing collisions and fatalities
are properly reported. Thus, FRA's audits must review railroad records
to ensure that crossings, including such pathway crossing accidents/
incidents, are reported. The final rule's definition makes FRA's
regulations consistent with the RSIA's requirements and enables
accurate auditing and reporting. Moreover, FRA proposed revisions to
the definition of ``Accident/Incident'' with respect to impacts at
highway-rail grade crossings, and received comments on the proposal.
FRA's responses to those comments are discussed above.
    The final rule defines ``Injury or illness'' to mean an ``abnormal
condition or disorder,'' (this is consistent with OSHA's definition at
29 CFR 1904.46). FRA is adding the definition to provide examples of
injuries and illnesses and to clarify that pain is an injury or illness
when it is sufficiently severe to meet the general reporting criteria
listed in Sec.  225.19(d)(1) through (d)(6). See OSHA's Final Rule, 66
FR 5916, 6080, January 19, 2001. The final rule also amends the
definition to clarify that a musculoskeletal disorder (MSD) is an
injury or illness. See OSHA's Final Rule, 66 FR 5916, 6017, January 19,
2001 and 68 FR 38601, 38602, June 30, 2003. The addition of the
definition is not a substantive change to FRA's current accident/
incident recording and reporting requirements. Rather, the final rule
added the definition in an effort to eliminate confusion as to what
constitutes an injury or illness. FRA also wishes to emphasize that
injuries and illnesses are reportable only if they are new cases
discernably caused or significantly aggravated by an event or exposure
arising from the operation of a railroad, that meet one or more of the
general reporting criteria.
    In response to the NPRM, FRA received comments that asserted that
the proposed definition was not consistent with OSHA because pain and
MSDs are not injuries or illnesses. However, in the OSHA Letter, OSHA
confirmed FRA's understanding that ``pain is an injury or illness * * *
when it is sufficiently severe to meet the general reporting criteria''
and that the MSDs are injuries and illnesses as they constitute
``abnormal conditions.'' OSHA Letter at 4.
    Commenters also stated that the proposed definition is overly broad
and would require the railroads to report minor injuries and illnesses.
Because the injury or illness must still meet the general reporting
criteria, FRA will not be capturing minor injuries and illnesses.
Moreover, these amendments are clarifications and do not alter the
railroads' current responsibilities. FRA uses all of this information,
including information about MSDs and lower back pain, to identify
health and safety risks arising from railroad operations.
    Other commenters suggested that the experience of pain in the work
environment should not be considered an injury as the person might
simply be experiencing pain as the result of an injury or illness that
was caused by an event or exposure not arising from the operation of
the railroad. UP argued, for example, that a person may experience pain
simply as a result of age or psychological reasons. The final rule does
not require railroads to report injuries or illnesses that are not
caused by an event or exposure in the work environment. Thus, signs or
symptoms of a prior injury or illness that simply manifest within the
work environment or on property owned, leased, operated over or
maintained by railroad, are not reportable. Pain is only reportable
when an event or exposure arising from the operation of the railroad is
a discernable cause of that pain or significantly aggravated that pain
and it meets the general reporting criteria.
    Several commenters stated that the term ``abnormal condition'' is
not clear. This terminology is consistent with OSHA's requirements.
Moreover, FRA believes that the term is, in fact, clear and requires
railroads to report adverse medical conditions caused by events or
exposures arising from the operation of the railroad. This definition,
in addition to the examples, provides sufficient guidance for railroads
to properly identify reportable injuries and illnesses. UP stated that
the definition was vague and unclear, and, as a result, UP suggested a
definition based upon diagnostic criteria. An injury or illness that is
simply the result of events or exposures outside of the work
environment is not reportable. Thus, an injury that is simply the
result of the aging process is not reportable. Moreover, an injury or
illness must be caused by an event or exposure arising from the
operation of the railroad. Thus, if an event or exposure arising from
the operation of the railroad significantly aggravated a preexisting
condition or if the person is more susceptible to an injury or illness
discernably caused by an event or exposure arising from the operation
of the railroad due to age, then the injury or illness is reportable.
As the workforce ages, FRA is interested in learning more about the
impact on these demographics and work place safety. As such, FRA
believes that the definition contained in the final rule is
appropriate.
    The final rule amends the definition of ``New case'' to apply to
all persons rather than only to employees. Correspondingly, the final
rule replaces the phrase ``in the work environment'' with ``arising
from the operation of a railroad,'' because the term ``work
environment'' applies only to

employees. This revision is consistent with the statutory requirement
that railroads report to FRA ``all accidents and incidents resulting in
injury or death to an individual * * * arising from the carrier's
operations during the month,'' not just accidents and incidents
resulting in injury or death to railroad employees. See 49 U.S.C.
20901. FRA believes that this amendment does not affect the reporting
requirements. The final rule also includes the descriptor
``discernably'' before the word ``caused'' in order to maintain
consistency within part 225.
    Commenters to the NPRM stated that the amendments to the definition
of ``New case'' inappropriately expanded the definition to apply to all
persons and, in so doing, would create significant costs and reporting
burdens. While the amendments do expand ``New case'' to address persons
beyond employees, the changes are meant to make the definition
consistent with the statutory requirement that railroads report
casualties to all persons. 49 U.S.C. 20901. Moreover, expanding the
term ``New case'' to address casualties to non-employees should not
create significant additional burdens as the revision is meant to
provide guidance to the railroads about when a new record or report
must be created and when the railroads should only update a previously
created record or report for an ``existing case.'' As such, railroads
need only make a new record or report when it is a ``new case'' and may
simply update a record or report for an ``existing case.''
    The final rule also amends the definition of ``Qualified health
care professional'' by removing the otolaryngologist example (which had
stated: ``[f]or example, an otolaryngologist is qualified to diagnose a
case of noise induced hearing loss and identify potential causal
factors, but may not be qualified to diagnose a case of repetitive
motion injuries.''). The final rule removes this example in order to
clarify that physicians are not limited by their specialty and may
diagnosis conditions while operating within the scope of their license,
registration, or certification. As such, as a licensed physician, an
otolaryngologist may diagnose conditions other than those related to
the ear, nose, and throat. A comment to the NPRM stated that the
example should not be removed, that doctors should not be able to
diagnosis conditions outside of their specialty, and that the example
should be amended from referencing ``repetitive motion injuries'' to
``work-related musculoskeletal disorders.'' As noted, the final rule
clarifies that physicians may diagnose conditions outside of their
specialty while operating within the scope of their license,
registration, or certification. This position is consistent with the
current rule; however, the otolaryngologist example created confusion
(which is why it was removed).
    The final rule revises the definition of ``Railroad.'' Currently,
part 225 defines ``railroad'' as ``a person providing railroad
transportation.'' In order to attain better consistency with Congress'
1994 revisions to 49 U.S.C. 20102, the final rule defines ``railroad''
to mean ``a railroad carrier,'' and adds a definition to Sec.  225.5
for ``railroad carrier'' to mean a ``person providing railroad
transportation.'' Congress added the term ``Railroad carrier'' to 49
U.S.C. 20102 in 1994 (Pub. L. 103-272, 108 Stat 745), as part of a
larger effort ``[t]o restate the laws related to transportation in one
comprehensive title'' and ``attain uniformity [of language] within the
title.'' See House Report No. 103-180 at 3, reprinted in 1994
U.S.C.C.A.N. 818, 820. Specifically, Congress defined ``railroad
carrier'' at 49 U.S.C. 20102 (2) as a ``person providing railroad
transportation,'' in order to ``distinguish between railroad
transportation and the entity providing railroad transportation.'' See
House Report No. 103-180 at 79, reprinted in 1994 U.S.C.C.A.N. 818,
898. FRA's definition of ``railroad transportation'' remains unchanged.
    The final rule adds a definition for ``Significant aggravation of a
pre-existing injury or illness.'' This definition is consistent with
both OSHA's definition as set forth at 29 CFR 1904.5(b)(4) and the
current version (effective May 1, 2003) of the FRA Guide. FRA has added
this definition to Sec.  225.5 for clarification and ease of reference.
    The final rule further clarifies that the provisions concerning
days away from work and restricted duty only relate to railroad
employees. This clarifying amendment was made in response to a comment
requesting additional clarification about whether these provisions
apply to ``any person.'' This amendment is consistent with the
reporting criteria found in Sec.  225.19 and will not create any
additional burden on the railroads.
    Commenters stated that the definition for ``Significant aggravation
of a pre-existing injury or illness'' is not consistent with the OSHA
definition. Specifically, Amtrak argued that FRA's definition is
different than OSHA's because it contains the term ``discernable
cause.'' However, FRA included this language for clarity and the
definition is, in fact, consistent with OSHA's language. Pursuant to
the OSHA-NAM Agreement, a case ``is presumed work-related if, and only
if, an event or exposure in the work environment is a discernable cause
of the injury or illness or of a significant aggravation to [sic]
preexisting condition.''
    Amtrak further argued that FRA's removal of ``occupational''
preceding the phrase ``event or exposure'' is also inconsistent with
OSHA. This revision is consistent with the statutory requirement that
railroads report to FRA ``all accidents and incidents resulting in
injury or death to an individual arising from the carrier's operations
during the month,'' not just accidents and incidents resulting in
injury or death to railroad employees. See 49 U.S.C. 20901. While OSHA
only captures information relating to employees, FRA collects and uses
information for various classifications of persons. As such, FRA
requires railroads to submit information relating to non-employee
injuries and illnesses that arise from the operation of the railroad.
    The final rule also adds a definition for ``Suicide data.''
Consistent with FRA's decision to remove suicide and attempted suicide
from its current Sec.  225.15 reporting exceptions (see Section-by-
Section Analysis for 225.15, ``Accidents/Incident not to be
reported''), and to begin collecting suicide related data, FRA is
adding to Sec.  225.5 a definition for ``Suicide data.'' In the NPRM,
FRA proposed that ``Suicide data'' mean data regarding the death of an
individual due to that individual's commission of suicide as determined
by a coroner or other public authority; or injury to an individual due
to that individual's attempted commission of suicide as determined by a
public authority.
    The final rule revises the definition of ``Suicide data'' to mean
``data regarding the death of an individual due to the individual's
commission of suicide as determined by a coroner, public police officer
or other public authority; or injury to an individual due to that
individual's attempted commission of suicide as determined by a public
police officer or other public authority.'' The FRA Guide explains that
a ``public authority'' is a Federal, State or local government entity,
such as a public health department, that has the legal authority to
declare a fatality a suicide or a casualty to a person as an attempted
suicide. Moreover, the FRA Guide provides for what documentation a
railroad is required to have to show that a person committed suicide or
attempted to commit suicide. See

Section-by-Section Analysis for Sec.  225.41, ``Suicide data.''
    FRA emphasizes that only the information about the death of, or
injury to, the individual who committed the suicidal act is considered
to be suicide data. Thus, information about the death of, or injury to,
any other person caused by another person's commission of a suicidal
act is not suicide data. FRA will not report suicide data to OSHA. FRA
will not include suicide data (as defined in Sec.  225.5) in its
periodic summaries of data on the number of injuries and illnesses
associated with railroad operations. FRA will maintain suicide data in
a database that is not publicly accessible. Accordingly, suicide data
will not be available on FRA's Web site for individual reports or
downloads, however, suicide data will be available to the public in
aggregate format on FRA's Web site and via requests under the Freedom
of Information Act. See Sec.  225.41, ``Suicide data.'' FRA inspectors
and State agencies participating in investigative activities under part
212 will have access to the individual records and reports. See Sec.
225.31. States also can obtain individual reports directly from the
railroads pursuant to Sec.  225.1.
    Commenters requested that FRA clarify what is considered a public
authority. As explained above, a ``public authority'' is a Federal,
State or local government entity, such as a public health department,
that has the legal authority to declare a fatality a suicide or a
casualty to a person an attempted suicide. MTA asked whether public
authority would include ``a railroad police department or other State
or local police department.'' FRA does not consider a railroad police
officer a public authority within the meaning of those terms. Another
commenter suggested using the phrase ``appropriately qualified public
authority'' to define public authority. FRA believes that the revised
definition provides sufficient clarity as to what is considered a
public authority.
    Commenters also suggested that collecting this information (e.g., a
coroner's report) is time consuming and that FRA should consider this
fact when requiring that a railroad complete the relevant forms within
a specific period of time. FRA acknowledges that it may take additional
time to confirm cause of death. As explained, FRA needs this
information to prevent future casualties and to improve rail safety.
However, after acquiring knowledge that a reportable injury or illness
occurred, a railroad must create a Form FRA F 6180.55a for reportable
injury and illness within thirty days after the expiration of the month
during which the accidents/incidents occurred. As such, a railroad may
submit the report as a fatality if a final determination with regard to
cause of death has not yet been reached and, at a later time, update
and amend the record or report once the railroad is able to confirm
cause of death. If a railroad is unable to confirm whether an
individual committed suicide at the end of the investigative period,
the deceased should be listed as the applicable type person (e.g.,
trespasser, non-trespasser). FRA allows railroads to accept verbal
confirmation of an attempted suicide or suicide from a public
authority, so long as the railroad documents in writing the specifics
of the conversation and creates the required audit trail, as explained
in the FRA Guide, rather than requiring written confirmation from the
public police officer, coroner or other public authority. See Section-
by-Section Analysis for Sec.  225.41, ``Suicide data.''
    The final rule revises the definition of ``Work environment'' to
explain that the work environment means the establishment and other
locations where one or more railroad employees are working or are
present as a condition of employment. This revision provides additional
clarity and better conforms FRA's definition with OSHA's definition at
29 CFR 1904.5(b)(1).
    The final rule revises the definition of ``Work-related'' by
removing the words ``incident, activity, or the like'' and replacing
them with ``event or exposure'' because the definition of ``event or
exposure'' in this section encompasses those terms. The definition
explains that an injury or illness is presumed work-related if an event
or exposure in the work environment is a discernable cause of the
resulting condition or a discernable cause of a significant aggravation
to a pre-existing injury or illness. The causal event need not be
peculiarly occupational in nature so long as it occurs in the work
environment, and is a discernable cause (i.e., contributory factor).
Further, the final rule states that if an injury or illness is within
the presumption, the employer can rebut the work-relatedness only by
showing that the case falls within an exception listed in 49 CFR
225.15. This presumption is consistent with the NAM-OSHA settlement
agreement, 66 FR 66943, December 27, 2001, and with OSHA's regulations
which require that ``[employers] must consider an injury or illness to
be work-related if an event or exposure in the work environment either
caused or contributed to the resulting condition or significantly
aggravated a pre-existing condition.'' 29 CFR 1904.5(a). That
regulation goes on to explain that ``[w]ork-relatedness is presumed for
injuries and illnesses resulting from events or exposures occurring in
the work environment, unless an exception in [29 CFR] 1904.5(b)
specifically applies.'' Id. at 29 CFR 1904.5(b)(2), OSHA also sets
forth nine exceptions to its injury and illness reporting requirements.
The final rule sets forth all FRA accident/incident reporting
exceptions in Sec.  225.15. See Section-by-Section Analysis for Sec.
225.15, ``Accidents/Incident not to be reported.''
    In addition, in cases where it is not obvious whether a
precipitating event or exposure occurred in the work environment, the
employer must evaluate the employee's work duties and environment to
decide whether it is more likely than not that an event or exposure in
the work environment contributed to the employee's injury or illness.
FRA's requirement is consistent with the NAM-OSHA settlement agreement
and OSHA's regulations at 29 CFR 1904.5(b)(3), in which OSHA addresses
how an employer should handle a case if it is not obvious whether the
precipitating event or exposure occurred in the work environment,
stating ``in these situations, [the employer] must evaluate the
employee's work duties and environment to decide whether or not one or
more events or exposures in the work environment either caused or
contributed to the resulting condition or significantly aggravated a
pre-existing condition.''
    FRA also wishes to clarify that an event or exposure that occurs in
the work environment need not have a clear connection to a specific
work activity, condition, or substance that is peculiar to the railroad
transportation business in order be an ``event or exposure arising from
the operation of a railroad.'' Examples of events or exposures arising
from the operation of a railroad include an employee tripping for no
apparent reason while walking across a level floor; an employee being
sexually assaulted by a co-worker; or an employee being injured by an
act of violence perpetrated by one co-worker against a third party. See
OSHA's 2001 Rule, 66 FR 5916, 5946, January 19, 2001. In such cases,
the employee's job-related tasks and exposures did not create or
contribute to the risk that an injury or illness would occur. Id.
Rather, these activities are events or exposures arising from the
operation of a railroad because they occurred in the work environment.
Likewise, normal body movements (e.g., walking, climbing a staircase,
bending, sneezing) engaged in

by an employee at the time of injury are also events arising from the
operation of a railroad, even if the body movement is not related to
the employee's job-related tasks. See 66 FR 5916, 5957-5958, January
19, 2001. Correspondingly, events or exposures involving contractors or
volunteers, that occur on property owned, leased, operated over or
maintained by the railroad, also arise from the operation of a
railroad, even if they do not have a clear connection to a specific
work activity, condition, or substance that is peculiar to the railroad
transportation business.
    UP contests the work-relatedness presumption. However, the final
rule specifically adopts a presumption of work-relatedness that is
identical to OSHA's presumption to provide uniformity in reporting
requirements between OSHA and FRA and amongst railroads. Moreover, this
allows railroads to report to one agency, FRA. In addition, uniform
reporting requirements allow for comparing safety trends across
industries and among railroads.
    UP also suggests that a method/evidence-based approach should be
employed. UP proposes that an injury or illness is considered work-
related if ``1. The medical findings of disease or injury are
compatible with the effects of a disease-producing agent or an injury
producing event to which the worker has been exposed; 2. Sufficient
exposure is present in the worker's occupational environment to have
caused the disease; and 3. The weight of the evidence supports the
disease as having occupational rather than non-occupational origin.''
Alternatively, BNSF suggested using the NIOSH approach when causation
is not obvious. As explained above, under part 225, the railroad must
decide whether, considering the circumstances, it is more likely than
not that an event or exposure arising from the operation of the
railroad is a discernable cause of an injury or illness. If an event or
exposure is a discernable cause, then the injury or illness is presumed
to be work-related. Under this approach, a railroad may consider the
various unique factors associated with each employee's potentially
work-related injury or illness, including, but not limited to, an
employee's medical and work history, in addition to an employee's
statements regarding his or her injury or illness.
    Other commenters stated that the definition creates a geographic
presumption because experiencing pain in the work environment is
sufficient to make an injury or illness work-related and reportable.
Contrary to this assertion, the final rule does not create a
``geographic presumption,'' as the event or exposure arising from the
operation of the railroad must be a cause of the injury or illness;
and, therefore, the manifestation of a sign or symptom in the work
environment, by itself, does not make an injury work-related.
Similarly, comments stated that the definition is so broad that
everything is work-related. Again, an injury or illness is not work-
related unless an event or exposure arising from the work environment
is a discernable cause, and it meets one of the general reporting
criteria. Moreover, FRA's definition of work-relatedness is consistent
with OSHA's definition and enables OSHA and FRA to compare safety
trends across industries.
    Commenters stated that FRA should collect information about only
injuries and illnesses caused by ``occupational'' events or exposures.
UP claimed that, when railroads are required to report injuries or
illnesses that result from non-occupational events, that data will not
improve railroad safety. Commenters also stated that FRA is not
collecting data about the hazards and risks actually associated with
the railroad industry. For employee injuries and illnesses, OSHA does
not require that the event or exposure be occupational in nature.
Again, adopting OSHA's approach allows the railroads to report to one
agency, FRA, and, so long as FRA maintains reporting requirements
consistent with those of OSHA, FRA's regulations also allow for
comparing safety trends between industries. Finally, FRA uses the
information regarding injuries and illnesses that are not solely
occupational in nature to improve safety and to more fully understand
injuries and illnesses in the work environment.

Sec.  225.6 Consolidated Reporting

    The final rule adds Sec.  225.6, which provides an option for
consolidated railroad accident/incident reporting for certain
integrated railroad systems.
    Section 20901 of title 49 of the United States Code requires that
each ``railroad carrier'' submit to FRA a monthly report of its
accidents/incidents. A ``railroad carrier'' is defined by 49 U.S.C.
20102 as a ``person providing railroad transportation, except that,
upon petition by a group of commonly controlled railroad carriers that
the Secretary determines is operating within the United States as a
single, integrated rail system, the Secretary may by order treat the
group of railroad carriers as a single railroad carrier for purposes of
one or more provisions of part A, subtitle V of this title and
implementing regulations and order, subject to any appropriate
conditions that the Secretary may impose.'' ``Person,'' as defined by 1
U.S.C. 1, ``include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals.''
    The final rule provides that a parent corporation may request in
writing that FRA treat its commonly controlled railroad carriers, which
operate as a single, seamless, integrated United States rail system, as
a single railroad carrier for purposes of part 225 compliance. The
written request must provide a list of the subsidiary railroads
controlled by the parent corporation and an explanation as to how the
subsidiary railroads operate as a single, seamless, integrated United
States railroad system. If FRA grants such a request, the parent
corporation must enter into a written agreement with FRA specifying
which subsidiaries are included in its railroad system, consenting to
assume responsibility for compliance with part 225 for all named
subsidiaries making up the system, and consenting to guarantee any
liabilities owed to the United States government that are incurred by
its named subsidiaries for violating part 225. Any change in the
subsidiaries making up such a railroad system will require immediate
notification to FRA and the execution of an amended agreement. In
addition, executed agreements will be published in the docket.
    FRA's final rule is consistent with the Surface Transportation
Board's (STB) decision in Ex Parte No. 634 (Proposal to Require
Consolidated Reporting by Commonly Controlled Railroads) (November 7,
2001). In this decision, STB required that each group of railroads that
operate as a single, integrated United States rail system whose
cumulative operating revenues meet the Class I threshold, submit
consolidated annual financial reports that combine the operations of
all their commonly controlled railroads that operate as an integrated
rail system within the United States.
    Commenters to the NPRM suggested that this revision will dilute
reporting, and make it more difficult to compare trends and to identify
problems. However, FRA believes that this revision will, in fact,
enable the agency to gather more meaningful and accurate data. One
comment also sought additional clarification on who can use
consolidated reporting. Again, as discussed, a parent corporation may
request consolidated reporting where its commonly controlled railroad
carriers operate as a single, seamless, integrated

United States rail system. In addition, the STB decision, referenced
above, provides further clarification.

Sec.  225.9 Telephonic Reports of Certain Accidents/Incidents and Other
Events

    The final rule amends the accident/incident telephonic reporting
requirements related to fatalities that occur at highway-rail grade
crossings as a result of train accidents or train incidents. FRA had
required railroads to report immediately to the National Response
Center (NRC), via telephone, ``a fatality at a highway-rail grade
crossing as a result of a train accident or train incident.'' 49 CFR
225.9(a)(2)(iii). FRA has found that confusion exists as to the
applicability of this requirement when death does not occur at the
scene of the accident/incident, but occurs several hours or days later,
after the fatally injured person is taken to the hospital for
treatment.
    As a result, the final rule revises the telephonic reporting
requirement for highway-rail grade crossing fatalities to require
telephonic reporting only if death occurs within 24 hours of the
accident/incident. This revision is consistent with the Department of
Transportation, Office of Inspector General's November 28, 2005
recommendation (Report No. MH-2006-016), which recommended that FRA
amend Sec.  225.9 to clarify the reporting requirements and to include
criteria requiring railroads to report to NRC any death at a highway-
rail grade crossing, only if death occurs within 24 hours of the
accident/incident.
    The final rule also makes a technical amendment to paragraph
(a)(2)(iv) by adding the words ``or more'' after $150,000, to clarify
that the telephonic reporting requirement is triggered when a train
accident results in damage of $150,000 or more to railroad and non-
railroad property.
    In the NPRM, FRA requested comments and suggestions on four issues
of concern. One of these issues was Sec.  225.9 telephonic reporting.
Specifically, the NPRM noted that FRA was considering changing the
method by which telephonic reports of accidents/incidents, as required
by Sec.  225.9, are made. Under FRA's current regulations, railroads
are required to telephonically report certain accidents/incidents to
the NRC, who in turn provides notification of the accidents/incidents
to FRA. The NPRM indicated that FRA was reviewing whether it would be
preferable for railroads to report these accidents/incidents directly
to FRA via electronic transmission, and invited comments and
suggestions on the issue.
    FRA received comments that were generally in favor of reporting
such accidents/incidents directly to FRA via electronic transmission.
One comment suggested that certain data should be collected, including
railroad contact information closely associated with the accident/
incident, train equipment identification, and hazardous materials
identification. Another comment suggested that railroads should
immediately report any type of railroad related fatality, including
trespasser fatalities and suicides. After reviewing the issue and the
comments, no changes are being made relating to direct reporting
because FRA does not currently have the infrastructure to adequately
address such reporting. However, FRA will take these comments into
consideration in any further evaluation concerning direct reporting.
    A commenter suggested that the immediate notification of such
fatalities is not necessary because such data is captured in the
monthly report submitted to FRA. FRA believes, however, that immediate
reporting is necessary so that FRA has the opportunity to physically
investigate the accident/incident before the scene is cleared. Such
reporting ultimately results in the creation of more accurate data. A
comment to the NPRM also suggested that a railroad cannot easily
determine whether there has been a fatality if the individual does not
die at the scene of the accident/incident. FRA believes that railroads
must take reasonable steps to learn whether a fatality occurred within
24 hours of the highway-rail grade crossing accident/incident. Under
the current regulation at Sec.  225.9, there is no such time limit. As
such, the final rule lessens the burden on the railroads to follow-up
on such accidents/incidents under Sec.  225.9 by only requiring
railroads to report if a fatality occurs within 24 hours. As discussed,
this final rule is consistent with the Department of Transportation,
Office of Inspector General's November 28, 2005 recommendation (Report
No. MH-2006-016). A comment to the NPRM also suggested that such
reports be made electronically, rather than telephonically, to allow
for greater efficiency and accuracy. FRA does not currently have the
infrastructure to accommodate this suggestion. FRA does, however,
currently receive electronic updates after the initial report to the
NRC, which ensures that FRA has all of the relevant information.
Lastly, a comment to the NPRM suggested that ``horrible injuries''
should also be reported under Sec.  225.9. The final rule does not
adopt this suggestion because the phrase ``horrible injuries'' is
vague, would be difficult to enforce, and FRA Form F 6180.55a captures
information relating to the nature of the injury.
    The final rule also revises the Telephonic Reporting Chart
contained in the FRA Guide, Appendix M in order to make it consistent
with the final rule text as the chart contained in the 2003 Final Rule
was not consistent with the regulatory text. These amendments are
clarifying in nature, and will impose no additional burden on
railroads. See FRA Guide for additional information.

Sec.  225.11 Reporting of Accidents/Incidents

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

Sec.  225.15 Accidents/Incidents Not To Be Reported

    In this section, Sec.  225.15 is revised to include a comprehensive
list of injury/illness and rail equipment accident/incident reporting
exceptions (formerly listed partially in Sec.  225.15 and in the 2003
FRA Guide). As discussed in the Section-by-Section Analysis of Sec.
225.5, ``Definitions'' with respect to the definition of ``Work-
relatedness,'' OSHA's regulations require that ``[employers] must
consider an injury or illness to be work-related if an event or
exposure in the work environment either caused or contributed to the
resulting condition or significantly aggravated a pre-existing
condition.'' 29

CFR 1904.5(a). OSHA's regulation goes on to explain that ``[w]ork-
relatedness is presumed for injuries and illnesses resulting from
events or exposures occurring in the work environment, unless an
exception in [29 CFR] 1904.5(b) specifically applies.'' 29 CFR
1904.5(a). FRA established certain reporting exceptions in Sec.  225.15
in FRA's 2003 Final Rule and also adopted OSHA's reporting exceptions
in the 2003 FRA Guide.
    FRA's list of exceptions in this final rule includes both the FRA
created exceptions and the exceptions set forth by OSHA at 29 CFR
1904.5(b) as adopted by FRA. FRA reviewed the applicability of each
injury and illness reporting exception as related to the class of
injured person, and incorporates this information into the final rule
text.
    In making this revision, FRA leaves paragraph (a) substantively
unchanged.
    In paragraph (b), FRA addresses reporting exceptions for Worker on
Duty--Employee (Class A) injuries and illnesses. Paragraph (b) retains
the current paragraph (b)(1) reporting exception relating to injuries
and illnesses occurring in living quarters. The final rule also adds
additional reporting exceptions applicable to Worker on Duty--Employee
(Class A) (paragraphs (b)(2) through (b)(3)). The final rule also
revises the NPRM language to clarify that these exceptions do not
affect a railroad's obligation to evaluate and report those injuries
and illnesses as another class of persons (i.e., Employee not on duty
(Class B); Passenger on Trains (Class C); Nontrespassers-On Railroad
Property (Class D); Trespassers (Class E)), rather than as only
Employee Not On Duty (Class B). For example, an employer who is present
in the work environment as a member of the general public and is
injured may qualify as a Class C or Class D person, rather than as a
Class B person. This is a clarifying amendment; therefore, it should
not alter railroads' reporting responsibilities and is consistent with
the exceptions contained in FRA's 2003 Final Rule and 2003 FRA Guide.
    Paragraph (c) contains reporting exceptions applicable to all
employees (whether on or off duty). With respect to the reporting
exception listed in paragraph (c)(3), FRA wishes to clarify that an
injury or illness that is solely the result of an employee eating,
drinking, or preparing food or drink for personal consumption is not
reportable. It does not matter if the employee bought the food on the
employer's premises or brought the food into work. For example, if the
employee is injured by choking on a sandwich while in the employer's
establishment, the case would not be considered work-related. If,
however, the employee is made ill by ingesting food contaminated by
workplace contaminants (such as lead), or gets food poisoning from food
supplied by the employer, the case would be considered reportable if
the case meets the general reporting criteria set forth at Sec.
225.19(d)(1)-(d)(6). With respect to the reporting exception listed in
paragraph (c)(5), self-inflicted casualties do not need to be reported
except that, for FRA reporting purposes, a railroad will still be
responsible for reporting or recording self-inflicted casualties that
are determined to be suicides and attempted suicides that qualify as
accountable or reportable. FRA will not be providing suicide data to
DOL.
    In paragraph (d), FRA addresses the applicability of the reporting
exceptions listed in paragraph (b) and (c) to contractors and
volunteers. The reporting exceptions for employee injuries and
illnesses apply equally to volunteer injuries and illnesses and to
contractor injuries (contractor illnesses are not reportable to FRA).
Because an injury to a contractor, or injury to or illness of a
volunteer, must occur on property owned, leased, operated over or
maintained by the railroad (rather than in the work environment), any
reference to the term ``work environment'' in paragraph (b) is
construed to mean, for the purposes of paragraph (d) only, on property
owned, leased, operated over, or maintained by the railroad. The
application of the exceptions as stated in paragraph (d) do not reflect
any change to FRA's provisions, but is included to clarify the
applicability of the reporting exceptions to contractors and
volunteers. Consistent with the changes made to the definition of
``event or exposure arising from the operation of the railroad,''
paragraph (d) was amended to include the term ``operated over.'' FRA
does not believe that this clarifying amendment increases the burden on
railroads because it is consistent with common industry practice as
well as FRA's long-standing policy.
    Lastly, paragraph (e) addresses reporting exceptions for rail
equipment accidents/incidents which were included in the 2003 FRA
Guide.
    The agency believes that the incorporation of these exceptions into
the rule will provide a better understanding of FRA's employee injury
and illness reporting requirements. Again, the reporting exceptions do
not affect a railroad's obligation to maintain records of accidents/
incidents as required by Sec.  225.25 (Form FRA F 6180.98, ``Railroad
Employee Injury and/or Illness Record,'' and Form FRA F 6180.97,
``Initial Rail Equipment Accident/Incident Record''), as applicable.
    The final rule also eliminates from the reporting exceptions
suicides and attempted suicides. In doing so, FRA is requiring that
casualties due to suicides and attempted suicides, that arise from the
operation of the railroad and meet the general reporting criteria
listed in Sec.  225.19(d)(1) through (d)(6), be reported to the agency
on Form FRA F 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet),'' as a new category of data called ``suicide
data.'' In addition, casualties due to suicides and attempted suicides
that arise from the operation of the railroad and meet the general
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6) should
be included on Form FRA F 6180.55, ``Railroad Injury and Illness
Summary,'' in Field 18, Reported Casualties. Under this system, a
reportable injury caused as a result of a suicidal act is reported to
FRA regardless of the need for other reporting of the event (i.e., the
suicide resulted in a reportable train accident or highway-rail grade
crossing collision). FRA will not report such suicide data cases to
DOL. FRA will also not include suicide data (as defined in Sec.  225.5)
in its periodic summaries of data on the number of injuries and
illnesses associated with railroad operations. Instead, FRA will
maintain such suicide data in a database that is not publicly
accessible. Accordingly, suicide data will not be available on FRA's
Web site for individual reports or downloads. Suicide data will,
however, be available to the public in aggregate format on FRA's Web
site and via requests under the Freedom of Information Act (FOIA). For
additional information about FOIA requests, see FRA's Web site at
http://www.fra.dot.gov/us/foia. Suicide data will be available to FRA's
inspectors and other authorized representatives, including State
agencies participating in investigative surveillance activities under
part 212. See Section-by-Section Analysis for Sec.  225.41, ``Suicide
data.'' States will also be able to obtain individual reports directly
from the railroads pursuant to Sec.  225.1. See Sec.  225.1, ``Suicide
data;'' see also Section-by-Section Analysis for Sec.  225.1, ``Suicide
data.''
    In addition, casualties due to suicides and attempted suicides that
arise from the operation of the railroad and meet the general reporting
criteria listed in Sec.  225.19(d)(1) through (d)(6) shall also be
included in Field 18, Reported Casualties, on Forms FRA F 6180.55,

``Railroad Injury and Illness Summary.'' This will allow FRA to verify
the number of forms submitted with the count listed on the form. The
railroad should report the person by the ``type of person'' regardless
of the fact that it is suicide data. As such, if a trespasser commits
suicide on the railroad, the railroad should report it as a trespasser
fatality. See FRA Guide, Chapter 3.
    Suicide data counts will also be included in casualty counts on
Forms FRA F 6180.57, ``Highway-Rail Grade Crossing Accident/Incident
Report,'' and FRA F 6180.54, ``Rail Equipment Accident/Incident
Report,'' so that the number of casualties reported to FRA on Form FRA
F 6180.55a, ``Railroad Injury and Illness Summary (Continuation
Sheet),'' for the month is consistent with the number of casualties
reported to FRA on each of these accident/incident reporting forms. In
addition, suicide data counts will also be included in casualty counts
on Form FRA F 6180.97, ``Initial Rail Equipment Accident/Incident
Record.'' See Sec.  225.41, ``Suicide data;'' see also Section-by-
Section Analysis for Sec.  225.5, ``Definitions,'' and the FRA Guide,
for additional information.
    UP requested that highway-rail grade crossing accident/incidents
that result from suicides or attempted suicides not be included on the
Form FRA F 6180.57. As explained above, the final rule requires the
inclusion of this information on the Form FRA F 6180.57 so that the
number of casualties is consistent with the number of casualties on
Form FRA F 6180.55a and on the Form FRA F 6180.54 that might also be
required for the same incident. In addition, FRA only excludes the
individuals who committed or attempted suicide and, therefore,
casualties to others involved in the same incident as a result of the
suicidal act may be reportable. Moreover, a Form FRA F 6180.57 must be
created for any impact regardless of cause or intent. The Form FRA F
6180.57 does not require any Personal Identifying Information (PII)
and, as such, FRA is not as concerned about making the individual forms
available to the public. See FRA Guide.
    FRA believes that it is important to collect data on suicides.
Death by suicide is a national problem as indicated by the fact that
more than 30,000 Americans die by suicide each year. Currently, there
are no reliable reports about how many of these deaths occur on