(a) Rail Equipment Accident/Incident Report alleging employee human factor as cause; completion of Employee Human Factor Attachment. If, in reporting a rail equipment accident/incident to FRA, a railroad cites an employee human factor as the primary cause or a contributing cause of the accident; then the railroad that cited such employee human factor must complete, in accordance with instructions on the form and in the current “FRA Guide for Preparing Accident/Incident Reports,” an Employee Human Factor Attachment form on the accident. For purposes of this section, “employee” is defined as a Worker on Duty—Employee, Employee not on Duty, Worker on Duty—Contractor, or Worker on Duty—Volunteer.

(b) Notice to identified implicated employees. Except as provided in paragraphs (e) and (f) of this section, for each employee whose act, omission, or physical condition was alleged by the railroad as the employee human factor that was the primary cause or a contributing cause of a rail equipment accident/incident and whose name was listed in the Employee Human Factor Attachment for the accident and for each such railroad employee of whose identity the railroad has actual knowledge, the alleging railroad shall—

(1) Complete part I, “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor,” of Form FRA F 6180.78 with information regarding the accident, in accordance with instructions on the form and in the current “FRA Guide for Preparing Accident/Incident Reports”; and

(2) Hand deliver or send by first class mail (postage prepaid) to that employee, within 45 days after the end of the month in which the rail equipment accident/incident occurred—

(i) A copy of Form FRA F 6180.78, “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor; Employee Statement Supplementing Railroad Accident Report,” with part I completed as to the applicable employee and accident;

(ii) A copy of the railroad's Rail Equipment Accident/Incident Report and Employee Human Factor Attachment on the rail equipment accident/incident involved; and

(iii) If the accident was also reportable as a highway-rail grade crossing accident/incident, a copy of the railroad's Highway-Rail Grade Crossing Accident/Incident Report on that accident.

(c) Joint operations. If a reporting railroad makes allegations under paragraph (a) of this section concerning the employee of another railroad, the employing railroad must promptly provide the name, job title, address, and medical status of any employee reasonably identified by the alleging railroad, if requested by the alleging railroad.

(d) Late identification. Except as provided in paragraphs (e) and (f) of this section, if a railroad is initially unable to identify a particular railroad employee whose act, omission, or physical condition was cited by the railroad as a primary or contributing cause of the accident, but subsequently makes such identification, the railroad shall submit a revised Employee Human Factor Attachment to FRA immediately, and shall submit the Notice described in paragraph (b) of this section to that employee within 15 days of when the revised report is to be submitted.

(e) Deferred notification on medical grounds. The reporting railroad has reasonable discretion to defer notification of implicated employees on medical grounds.

(f) Implicated employees who have died by the time that the Notice is ready to be sent.

(1) If an implicated employee has died as a result of the accident, a Notice under paragraph (b) addressed to that employee must not be sent to any person.

(2) If an implicated employee has died of whatever causes by the time that the Notice is ready to be sent, no Notice addressed to that employee is required.

(g) Employee Statement Supplementing Railroad Accident Report (Supplements or Employee Supplements).

(1) Employee Statements Supplementing Railroad Accident Reports are voluntary, not mandatory; nonsubmission of a Supplement does not imply that the employee admits or endorses the railroad's conclusions as to cause or any other allegations.

(2) Although a Supplement is completely optional and not required, if an employee wishes to submit a Supplement and assure that, after receipt, it will be properly placed by FRA in a file with the railroad's Rail Equipment Accident/Incident Report and that it will be required to be reviewed by the railroad that issued the Notice, the Supplement must be made on part II of Form FRA F 6180.78 (entitled “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor; Employee Statement Supplementing Railroad Accident Report”), following the instructions printed on the form. These instructions require that, within 35 days of the date that the Notice was hand delivered or sent by first class mail (postage prepaid) to the employee (except for good cause shown), the original of the Supplement be filed with FRA and a copy be hand delivered or sent by first class mail (postage prepaid) to the railroad that issued the Notice so that the railroad will have an opportunity to reassess its reports to FRA concerning the accident.

(3) Information that the employee wishes to withhold from the railroad must not be included in this Supplement. If an employee wishes to provide confidential information to FRA, the employee should not use the Supplement form (part II of Form FRA F 6180.78, “Notice to Railroad Employee Involved in Rail Equipment Accident/Incident Attributed to Employee Human Factor; Employee Statement Supplementing Railroad Accident Report”), but rather provide such confidential information by other means, such as a letter to the employee's collective bargaining representative, or to the U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25 West Building 3rd Floor, Room W 33-306, 1200 New Jersey Avenue, SE., Washington, DC 20590. The letter should include the name of the railroad making the allegations, the date and place of the accident, and the rail equipment accident/incident number.

(h) Willful false statements; penalties. If an employee chooses to submit a Supplement to FRA, all of the employee's assertions in the Supplement must be true and correct to the best of the employee's knowledge and belief.

(1) Under 49 U.S.C. 21301, 21302, and 21304, any person who willfully files a false Supplement with FRA is subject to a civil penalty. See FRA's website at www.fra.dot.gov for a statement of agency civil penalty policy.

(2) Any person who knowingly and willfully files a false Supplement is subject to a $5,000 fine, or up to two years” imprisonment, or both, under 49 U.S.C. 21311.

[55 FR 37827, Sept. 13, 1990; 55 FR 39538, Sept. 27, 1990, as amended at 61 FR 30969, 30973, June 18, 1996; 75 FR 68905, Nov. 9, 2010; 84 FR 23735, May 23, 2019]