Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements, 68862-68910 [2010-27641]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Rules and Regulations]
[Pages 68862-68910]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27641]



[[Page 68861]]

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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

Federal Register / Vol. 75 , No. 216 / Tuesday, November 9, 2010 / 
Rules and Regulations

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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 https://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 https://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

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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

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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 
https://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

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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

[[Page 68866]]

``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

[[Page 68867]]

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

[[Page 68868]]

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

[[Page 68869]]

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,

[[Page 68870]]

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 separatel