[Federal Register Volume 67, Number 196 (Wednesday, October 9, 2002)]
[Proposed Rules]
[Pages 63022-63048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24393]



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 219, et al.



Conforming the Federal Railroad Administration's Accident/Incident 
Reporting Requirements to the Occupational Safety and Health 
Administration's Revised Reporting Requirements; Other Amendments; 
Proposed Rule

  Federal Register / Vol. 67, No. 196 / Wednesday, October 9, 2002 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 219, 225, and 240

[Docket No. FRA-2002-13221, Notice No. 1]
RIN 2130-AB51


Conforming the Federal Railroad Administration's Accident/
Incident Reporting Requirements to the Occupational Safety and Health 
Administration's Revised Reporting Requirements; Other Amendments

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

ACTION: Notice of proposed rulemaking (NPRM) and request for comments.

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SUMMARY: FRA proposes to conform, to the extent practicable, its 
regulations on accident/incident reporting to the revised reporting 
regulations of the Occupational Safety and Health Administration 
(OSHA), U.S. Department of Labor. This action will permit the 
comparability of data on occupational fatalities, injuries, and 
illnesses in the railroad industry with such data for other industries, 
will allow the integration of these railroad industry data into 
national statistical databases, and will enhance the quality of 
information available for railroad casualty analysis. In addition, FRA 
proposes to make certain other amendments to its accident reporting 
regulations unrelated to conforming to OSHA's revised reporting 
regulations. Finally, FRA proposes minor changes to its alcohol and 
drug regulations and locomotive engineer qualifications regulations in 
those areas that incorporate concepts from its accident reporting 
regulations.

DATES: (1) Written Comments: Written comments on the proposed rule must 
be received by November 8, 2002. Comments received after that date will 
be considered to the extent possible without incurring additional 
expense or delay.
    (2) Public Hearing: If any person desires an opportunity for oral 
comment, he or she should notify FRA in writing and specify the basis 
for the request. FRA will schedule a public hearing in connection with 
this proceeding if the agency receives a written request for hearing by 
November 8, 2002.

ADDRESSES: Anyone wishing to file a comment or request a public hearing 
should refer to the FRA docket and notice numbers (Docket No. FRA-2002-
13221, Notice No. 1) in such comment or request. You may submit your 
comments and related material, or request for a public hearing, by only 
one of the following methods:
    By mail to the Docket Management System, Department of 
Transportation, Room PL-401, 400 7th Street, SW., Washington, DC 20590-
0001; or
    Electronically through the Web site for the Docket Management 
System at http://dms.dot.gov. For instructions on how to submit 
comments or a request for a public hearing electronically, visit the 
Docket Management System Web site and click on the ``help'' menu.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and documents as indicated in this preamble will 
become part of this docket and will be available for inspection or 
copying at Room PL-401 on the Plaza Level of the Nassif Building at the 
same address during regular business hours. You may also obtain access 
to this docket on the Internet at http://dms.dot.gov.
    For more detailed information on OSHA's revised reporting 
regulations, see http://safetydata.fra.dot.gov/OSHA-materials.

FOR FURTHER INFORMATION CONTACT: For technical issues, Robert L. 
Finkelstein, Staff Director, Office of Safety Analysis, RRS-22, Mail 
Stop 17, Office of Safety, FRA, 1120 Vermont Ave., NW., Washington, DC 
20590 (telephone 202-493-6280). For legal issues, Anna L. Nassif, Trial 
Attorney, or David H. Kasminoff, Trial Attorney, Office of Chief 
Counsel, RCC-12, Mail Stop 12, FRA, 1120 Vermont Ave., NW., Washington, 
DC 20590 (telephone 202-493-6166 or 202-493-6043, respectively).

SUPPLEMENTARY INFORMATION: Note that, for brevity, references to a 
section in part 225 will omit ``49 CFR''; e.g. Sec.  225.5.

Table of Contents for Supplementary Information

I. Overview of OSHA's Revised Reporting Regulations and FRA's 
Proposal
II. Proceedings to Date and Summary of Issues Addressed by the 
Working Group
III. Issues Addressed by the Working Group
    A. Applicability of Part 225--Sec.  225.3
    B. Proposed Revisions and Additions to Definitions in the 
Regulatory Text--Sec.  225.5
    C. Proposed Revisions to Provision on Telephonic Reporting--
Sec.  225.9
    D. Proposed Revisions to Criteria for Reporting Occupational 
Fatalities, Injuries, and Illnesses--Sec.  225.19(d)
    1. FRA's Current and Proposed Reporting Criteria Applicable to 
Railroad Employees
    2. FRA's Current and Proposed Reporting Criteria Applicable to 
Employees of a Contractor to a Railroad
    3. Reporting Criteria Applicable to Illnesses
    E. Proposed Technical Revision to Sec.  225.21, ``Forms''
    F. Proposed Technical Revision to Sec.  225.23, ``Joint 
Operations''
    G. Proposed Revisions to Sec.  225.25, ``Recordkeeping''
    1. Privacy Concern Cases
    2. Claimed Illnesses for which Work-Relatedness Is Doubted
    a. Recording claimed illnesses
    b. FRA review of railroads' work-relatedness determinations
    3. Technical Amendments
    H. Proposed Addition of Sec.  225.39, ``FRA Policy Statement on 
Covered Data''
    I. Proposed Revisions to Chapter 1 of the Guide, ``Overview of 
Accident/Incident Reporting and Recordkeeping Requirements''
    J. Proposed Revisions to Chapter 6 of the Guide, pertaining to 
Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet)'
    1. Changes in How Days Away from Work and Days of Restricted 
Work Are Counted
    2. Changes in the ``Cap'' on Days Away from Work and Days 
Restricted; Including All Calendar Days in the Count of Days Away 
from Work and Days of Restricted Work Activity
    3. Definitions of ``Medical Treatment'' and ``First Aid''
    a. Counseling
    b. Eye patches, butterfly bandages, Steri-StripsTM, 
and similar items
    c. Immobilization of a body part
    d. Prescription versus non-prescription medication
    K. Proposed Revisions to Chapter 7 of the Guide, ``Rail 
Equipment Accident/Incident Report'
    L. Proposed New Chapter 12 of the Guide on Reporting by Commuter 
Railroads
    M. Proposed Changes in Reporting of Accidents/Incidents 
involving Remote Control Locomotives
    N. Proposed Changes in Circumstance Codes (Appendix F of the 
Guide)
    O. Proposed Changes in Three Forms (Appendix H of the Guide)
    P. Miscellaneous Issues regarding Part 225 or the Guide
    1. Longitude and Latitude Blocks for Two Forms
    2. Train Accident Cause Code ``Under Investigation'' (Appendix C 
of the Guide)
    3. ``Most Authoritative': Determining Work-Relatedness and Other 
Aspects of Reportability
    4. Job Title versus Job Function
    5. ``Recording'' versus ``Reporting''
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act of 1980 and Executive Order 13272
    C. Paperwork Reduction Act of 1995
    D. Federalism Implications
    E. Environmental Impact

[[Page 63023]]

    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
VI. List of Subjects

I . Overview of OSHA's Revised Reporting Regulations and FRA's Proposal

    On January 19, 2001, OSHA published revised regulations entitled, 
``Occupational Injury and Illness Recording and Reporting Requirements; 
Final Rule,'' including a lengthy preamble that explains OSHA's 
rationale for these amendments. See 66 FR 5916, to be codified at 29 
CFR parts 1904 and 1952; see also 66 FR 52031 (October 12, 2001) and 66 
FR 66943 (December 27, 2001) (collectively, OSHA's Final Rule). A side-
by-side comparison of OSHA's previous reporting and recordkeeping 
provisions with OSHA's new requirements appears at Appendix A of this 
NPRM. OSHA's Final Rule became effective, with the exception of three 
provisions, on January 1, 2002. See 66 FR 52031; see also 67 FR 44037 
(July 1, 2002) and 67 FR 44124 (July 1, 2002).
    FRA's railroad accident/incident reporting regulations, which are 
codified at 49 CFR part 225 (part 225), include, among other 
provisions, sections that pertain to railroad occupational fatalities, 
injuries, and illnesses; these sections are consistent with prior OSHA 
regulations, with minor exceptions. These sections of FRA's accident/
incident regulations that concern railroad occupational casualties 
should be maintained, to the extent practicable, in general conformity 
with OSHA's recordkeeping and reporting regulations 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. 
Accordingly, FRA proposes conforming amendments to its existing 
accident/incident reporting regulations and Guide. Further, FRA 
proposes minor amendments to its alcohol and drug regulations (49 CFR 
part 219) (part 219) and locomotive engineer qualifications regulations 
(49 CFR part 240) (part 240) in those areas that incorporate terms from 
part 225.

    Note: Throughout this preamble to the proposed rule, excerpts 
from OSHA regulations are provided for the convenience of the 
reader. The official version of the OSHA regulations appears in 29 
CFR part 104.

    In addition, FRA proposes to draft a memorandum of understanding 
(MOU) between FRA and OSHA to address specific areas that are unique to 
the railroad industry, and where it may not be practical for FRA's 
regulations to be maintained in conformity with OSHA's Final Rule. Such 
divergence from OSHA's Final Rule is permitted under a provision of the 
rule:

    If 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.

Emphasis added. See 29 CFR 1904.3. Specific provisions of part 225 that 
do not or may not conform to OSHA's Final Rule are discussed in detail 
in the preamble.
    Finally, FRA proposes other miscellaneous amendments to part 225 
and the Guide, including revisions not solely related to railroad 
occupational casualties, such as the telephonic reporting of a train 
accident that fouls a main line track used for scheduled passenger 
service.

II. Proceedings to Date and Summary of Issues Addressed by the Working 
Group

    FRA has developed this proposal through its Railroad Safety 
Advisory Committee (RSAC). RSAC was formed by FRA in March of 1996 to 
provide a forum for consensual rulemaking and program development. The 
Committee had representation from all of the agency's major interest 
groups, including railroad carriers, labor organizations, suppliers, 
manufacturers, and other interested parties. FRA typically proposes to 
assign a task to RSAC, and after consideration and debate, RSAC may 
accept or reject the task. If the task is accepted, RSAC establishes a 
working group that possesses the appropriate expertise and 
representation to develop recommendations to FRA for action on the 
task. These recommendations are developed by consensus. If a working 
group comes to unanimous consensus on recommendations for action, the 
package is presented to the full RSAC for a vote. If the proposal is 
accepted by a simple majority of the RSAC, the proposal is formally 
recommended to FRA. If a working group is unable to reach consensus on 
recommendations for action, FRA will move ahead to resolve the issue 
through traditional rulemaking proceedings.
    On April 23, 2001, FRA presented task statement 2001-1, regarding 
accident/incident reporting conformity, to the full RSAC. When FRA 
presented the subject of revising its accident reporting regulations 
and Guide to RSAC, the agency stated that the purpose of the task was 
to bring FRA's regulations and Guide into conformity with OSHA's Final 
Rule, and to make certain other technical amendments. The task was 
accepted, and a working group was established to complete the task.
    Members of the Working Group, in addition to FRA, include 
representatives of the following 26 entities: the American Public 
Transportation Association (APTA); the National Railroad Passenger 
Corporation (Amtrak); the Association of American Railroads (AAR); The 
American Short Line and Regional Railroad Association (ASLRRA); the 
Brotherhood of Locomotive Engineers (BLE); the Brotherhood of Railroad 
Signalmen (BRS); Transportation Communications International Union/
Brotherhood Railway Carmen (TCIU/BRC); Canadian National Railway 
Company (CN) and Illinois Central Railroad Company (IC); the Sheet 
Metal Workers International Association; the Brotherhood of Maintenance 
of Way Employees (BMWE); The Burlington Northern and Santa Fe Railway 
Company (BNSF); Canadian Pacific Railway Company (CP); Consolidated 
Rail Corporation--Shared Assets (CR); CSX Transportation, Inc. (CSX); 
Norfolk Southern Railway Company (NS); Union Pacific Railroad Company 
(UP); The Long Island Rail Road (LIRR); Maryland Transit Administration 
(MARC); Southern California Regional Rail Authority (Metrolink); 
Virginia Railway Express (VRE); Trinity Rail (TR); North Carolina 
Department of Transportation (NCDOT); Northeast Illinois Regional 
Commuter Rail Corp. (Metra); the United Transportation Union (UTU); and 
Wisconsin Central Ltd. (WC).
    The Working Group held a total of eight meetings related to this 
task statement. The first Working Group meeting occurred on May 21-23, 
2001, in Washington, DC. A second meeting was held on July 1-3, 2001, 
in Washington, DC. A third meeting was held on August 7-8, 2001, in 
Denver, CO. A fourth meeting was held briefly on September 11, 2001, in 
Chicago, IL, but was cancelled due to the extraordinary events that 
occurred on that day. A fifth meeting was held on November 14-15, 2001, 
in St. Louis, MO. A sixth meeting was held on January 22-24, 2002, in 
Baltimore, MD. A seventh meeting was held on March 12-13, 2002, in New 
Orleans, LA. An eighth meeting was held on April 24-25, 2002, in 
Washington, DC.

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    As a result of these meetings, the Working Group developed 
consensus recommendations to propose to change the FRA regulations and 
Guide with respect to all issues presented except for one. Consensus 
could not be reached on whether railroads should be required to report 
deaths and injuries of the employees of railroad contractors who are 
killed or injured while off railroad property. Currently, FRA 
interprets part 225 as not requiring the reporting of such cases. Since 
the end of the last Working Group session, FRA has developed a 
compromise position and proposes 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. To 
accomplish this result, FRA proposes a three-tier definition of the 
term ``event or exposure arising from the operation of a railroad.'' 
See proposed Sec.  225.5.
    This NPRM is intended to reflect a Working Group consensus on all 
other issues, which are summarized in the following section of the 
preamble. With regard to part 225, the Working Group recommended 
amending Sec.  225.5, which contains definitions; Sec.  225.9, which 
pertains to telephonic reporting of certain accidents/incidents; and 
Sec.  225.19(d), which pertains to reporting deaths, injuries, and 
occupational illnesses. To make certain other miscellaneous conforming 
changes, the Working Group recommended amending Sec.  225.21, which 
pertains to forms; Sec.  225.23(a), which pertains to joint operations; 
Sec.  225.33, which pertains to internal control plans; and Sec.  
225.35, which pertains to access to records and reports. To address 
occupational illnesses and injuries that are privacy concern cases, 
claimed occupational illnesses, and other issues, the Working Group 
also recommended amending Sec.  225.25, pertaining to recordkeeping. 
Finally, the Working Group recommended adding a new Sec.  225.39, 
pertaining to FRA's policy on how FRA will maintain and make available 
to OSHA certain data FRA receives pertaining to cases that meet the 
criteria as recordable injuries or illnesses under OSHA's regulations 
and that are reportable to FRA, but that would not count towards the 
data in totals compiled for FRA's periodic reports on injuries and 
illnesses.
    With regard to the Guide, the Working Group proposed to revise 
Chapter 1, pertaining to an overview of accident/incident reporting and 
recordkeeping requirements; Chapter 2, containing definitions; Chapter 
4, pertaining to Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record'; Chapter 6, pertaining to Form FRA F 6180.55a, 
``Railroad Injury and Illness Summary (Continuation Sheet)'; and 
Chapter 7, pertaining to Form FRA F 6180.54, ``Rail Equipment Accident/
Incident Report'; and to create a new Chapter 12, pertaining to 
reporting by commuter railroads, and a new Chapter 13, pertaining to 
new Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to 
Be Work-Related.'' The Working Group also proposed to change various 
codes used in making accident/incident reports to FRA. These codes are 
listed in appendices of the Guide. The Working Group supported revising 
Appendix C, ``Train Accident Cause Codes'; Appendix E, ``Injury and 
Illness Codes,'' including revising codes related to the nature of the 
injury or illness, and the location of the injury; and Appendix F, 
``Circumstance Codes.'' The latter included revising codes related to 
the physical act the person was doing when hurt; where the person was 
located when injured; what, if any, type of on-track equipment was 
involved when the person was injured or became ill; what event was 
involved that caused the person to be injured or become ill; what 
tools, machinery, appliances, structures, or surfaces were involved 
when the person was injured or became ill; and the probable reason for 
the injury or illness. Further, the Working Group advocated revising 
Appendix H, pertaining to accident/incident reporting forms, 
particularly Form FRA F 6180.78, ``Notice to Railroad Employee Involved 
in Rail Equipment Accident/Incident Attributed to Employee Human Factor 
[and] Employee Statement Supplementing Railroad Accident Report,'' and 
Form FRA F 6180.81, ``Employee Human Factor Attachment.'' Finally, the 
Working Group recommended making additional conforming changes to the 
Guide.
    With regard to part 219, FRA decided that two terms used in that 
part, ``reportable injury'' and ``accident or incident reportable under 
Part 225 of this chapter,'' should be given a slightly different 
meaning. In particular, the terms would be defined for purposes of part 
219 as excluding accidents or incidents that are classified as 
``covered data'' under proposed Sec.  225.5 (i.e., accidents or 
incidents that are reportable solely because a physician or other 
licensed health care professional recommended in writing that a 
railroad employee take one or more days away from work, that the 
employee's work activity be restricted for one or more days, or that 
the employee take over-the-counter medication at a dosage equal to or 
greater than the minimum prescription strength, whether or not the 
medication was taken). In part 240, the term ``accidents or incidents 
reportable under part 225'' is used in Sec.  240.117(e)(2). Instead of 
creating a separate definition of the term for purposes of part 240, an 
explicit exception for covered data would be added to Sec.  
240.117(e)(2) itself.
    Each of these issues is described in greater detail in the next 
sections of the preamble. The full RSAC has accepted the 
recommendations of the Working Group as to the changes to be proposed 
for part 225 and the Guide on which consensus was reached. With regard 
to the one issue on which consensus was not reached, and with regard to 
the minor proposed revisions to parts 219 and 240, not presented to the 
Working Group, the full RSAC has accepted FRA staff recommendations. In 
turn, FRA's Administrator has adopted these recommendations, which are 
embodied in this NPRM.

III. Issues Addressed by the Working Group

A. Applicability of Part 225-Sec.  225.3

    OSHA's Final Rule states, ``(1) If your company had ten (10) or 
fewer employees at all times during the last calendar year, you do not 
need to keep OSHA injury and illness records unless OSHA or the BLS 
informs you in writing that you must keep records under Sec.  1904.41 
or Sec.  1904.42.'' 29 CFR 1904.1(a). FRA's accident reporting 
regulations do not have such an exemption from the central reporting 
requirements for railroads with ten or fewer employees at all times 
during the last calendar year. Rather, the extent and exercise of FRA's 
delegated statutory safety jurisdiction are addressed fully in 49 CFR 
part 209, Appendix A, and the applicability of part 225 in particular 
is addressed in Sec.  225.3. Under Sec.  225.3(a), the central 
provisions of part 225 apply to:

    all railroads except--
    (1) A railroad that operates freight trains only on track inside 
an installation which is not part of the general railroad system of 
transportation or that owns no track except for track that is inside 
an installation that is not part of the general railroad system of 
transportation and used for freight operations.
    (2) Rail mass transit operations in an urban area that are not 
connected with the general railroad system of transportation.

[[Page 63025]]

    (3) A railroad that exclusively hauls passengers inside an 
installation that is insular or that owns no track except for track 
used exclusively for the hauling of passengers inside an 
installation that is insular. An operation is not considered insular 
if one or more of the following exists on its line:
    (i) A public highway-rail grade crossing that is in use;
    (ii) An at-grade rail crossing that is in use;
    (iii) A bridge over a public road or waters used for commercial 
navigation; or
    (iv) A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad.

    Section 20901 of title 49, U.S. Code (superseding 45 U.S.C. 38 and 
re-codifying provisions formerly contained in the Accident Reports Act, 
36 Stat. 350 (1910), as amended), requires each railroad to file a 
monthly report of railroad accidents. See Pub. L. 103-272. Accordingly, 
FRA intends to apply its accident reporting regulations to all 
railroads under FRA's jurisdiction, unless the entity meets one of the 
exceptions noted in Sec.  225.3. FRA intends to address the difference 
as to which entities are covered by the reporting requirements, in an 
MOU between FRA and OSHA.

B. Proposed Revisions and Additions to Definitions in the Regulatory 
Text--Sec.  225.5

    FRA proposes to amend and add certain definitions to conform to 
OSHA's Final Rule or to achieve other objectives. Specifically, FRA 
proposes to revise the definitions of ``accident/incident,'' 
``accountable injury or illness,'' ``day away from work,'' ``day of 
restricted work activity,'' ``medical treatment,'' and ``occupational 
illness.'' As previously mentioned, FRA proposes to remove the term 
``arising from the operation of a railroad'' and its definition and add 
the term ``event or exposure arising from the operation of a railroad'' 
and its definition. FRA proposes to create definitions of ``covered 
data,'' ``general reportability criteria,'' ``medical removal,'' 
``musculoskeletal disorder,'' ``needlestick or sharps injury,'' ``new 
case,'' ``occupational hearing loss,'' ``occupational tuberculosis,'' 
``privacy concern case,'' ``significant change in the number of 
reportable days away from work,'' ``significant illness,'' and 
``significant injury.'' Some of these changes are discussed in context 
later in the section-by-section analysis or elsewhere in the preamble.

C. Proposed Revisions to Provision on Telephonic Reporting--Sec.  225.9

    The Working Group agreed to propose certain amendments to Sec.  
225.9, pertaining to telephonic reporting, and the corresponding 
instructions related to telephonic reporting in the Guide. Currently, 
FRA requires immediate telephonic reporting of accidents/incidents to 
FRA through the National Response Center (NRC) in only a limited set of 
circumstances, i.e., the occurrence of an accident/incident arising 
from the operation of a railroad that results in the death of a rail 
passenger or employee or the death or injury of five or more persons. 
See Sec.  225.9(a). Contrarily, under OSHA's Final Rule,

    Within eight (8) hours after the death of any employee from a 
work-related incident or the in-patient hospitalization of three or 
more employees as a result of a work-related incident, you must 
orally report the fatality/multiple hospitalization by telephone or 
in person to the Area Office of the Occupational Safety and Health 
Administration (OSHA), U.S. Department of Labor, that is nearest to 
the site of the incident.

Emphasis added. 29 CFR 1904.39(a). Further, OSHA's Final Rule states,

    Do I have to report a fatality or hospitalization that occurs 
long after the incident? No, you must only report each fatality or 
multiple hospitalization incident that occurs within (30) days of an 
incident.

Emphasis added. 29 CFR 1904.39(b)(6). Finally, OSHA's Final Rule 
states,

    Do I have to report a fatality or multiple hospitalization 
incident that occurs on a commercial or public transportation 
system? No, you do not have to call OSHA to report a fatality or 
multiple hospitalization incident if it involves a commercial 
airplane, train, subway or bus accident. * * *

Emphasis added. 29 CFR 1904.39(b)(4). This provision would seem to 
exempt railroads from telephonically reporting to OSHA all but a very 
few railroad accidents/incidents. The extent of the exemption from 
OSHA's telephonic reporting requirement depends on how broadly 
``commercial or public transportation system'' is interpreted.
    As recommended by the Working Group, FRA proposes to broaden the 
set of circumstances under which a railroad would be required to report 
an accident/incident telephonically to the NRC, and to make certain 
other refinements to the rule. Specifically, FRA first proposes to add 
requirements for telephonic reporting when there is a death to any 
employee of a contractor to a railroad performing work for the railroad 
on property owned, leased, or maintained by the contracting railroad. 
Railroads are increasingly using contractors to perform work previously 
performed by railroad employees. Often, those workers are exposed to 
hazards unique to the railroad environment or that otherwise involve 
conditions under FRA's responsibility. Receiving these reports will 
assist FRA in discharging its responsibility for monitoring the safety 
of railroad operations.
    FRA also proposes to require the telephonic reporting of certain 
train accidents that are relevant to the safety of railroad passenger 
service, including otherwise reportable collisions and derailments on 
lines used for scheduled passenger service and train accidents that 
foul such lines. These events are potentially quite significant, since 
they may indicate risks which affect passenger service (e.g., poor 
track maintenance or operating practices). Further, these events often 
cause disruption in intercity and commuter passenger service. Major 
delays in commuter trains, for instance, have direct economic effects 
on individuals and businesses.
    FRA also proposes to incorporate provisions similar to the National 
Transportation Safety Board's (NTSB) requirements for telephonic 
reporting (49 CFR part 840) into its own regulations and Guide. The key 
provisions of NTSB's requirements, Sec. Sec.  840.3 and 840.4, read as 
follows:

    Note: Excerpts from NTSB requirements are provided for the 
convenience of the reader. The official version of the requirements 
appears at 49 CFR 840.3 and 840.4.

Sec.  840.3  Notification of railroad accidents.

    The operator of a railroad shall notify the Board by telephoning 
the National Response Center at telephone 800-424-0201 at the earliest 
practicable time after the occurrence of any one of the following 
railroad accidents:
    (a) No later than 2 hours after an accident which results in:
    (1) A passenger or employee fatality or serious injury to two or 
more crewmembers or passengers requiring admission to a hospital;
    (2) The evacuation of a passenger train;
    (3) Damage to a tank car or container resulting in release of 
hazardous materials or involving evacuation of the general public; or
    (4) A fatality at a grade crossing.
    (b) No later than 4 hours after an accident which does not involve 
any of the circumstances enumerated in paragraph (a) of this section 
but which results in:
    (1) Damage (based on a preliminary gross estimate) of $150,000 or 
more for repairs, or the current replacement cost, to railroad and 
nonrailroad property; or
    (2) Damage of $25,000 or more to a passenger train and railroad and 
non-railroad property.

[[Page 63026]]

    (c) Accidents involving joint operations must be reported by the 
railroad that controls the track and directs the movement of trains 
where the accident has occurred.
    (d) Where an accident for which notification is required by 
paragraph (a) or (b) of this section occurs in a remote area, the time 
limits set forth in that paragraph shall commence from the time the 
first railroad employee who was not at the accident site at the time of 
its occurrence has received notice thereof.


Sec.  840.4  Information to be given in notification.

    The notice required by Sec.  840.3 shall include the following 
information:
    (a) Name and title of person reporting.
    (b) Name of railroad.
    (c) Location of accident (relate to nearest city).
    (d) Time and date of accident.
    (e) Description of accident.
    (f) Casualties:
    (1) Fatalities.
    (2) Injuries.
    (g) Property damage (estimate).
    (h) Name and telephone number of person from whom additional 
information may be obtained.
    The reason FRA proposes to incorporate requirements similar to 
NTSB's standards for telephonic reporting into its own regulations and 
Guide is that, unlike NTSB, FRA can enforce these requirements through 
the use of civil penalties. FRA has long relied upon reports required 
to be made to NTSB as a means of alerting its own personnel who are 
required to respond to these events. Although most railroads are quite 
conscientious in making telephonic reports of significant events, 
including some not required to be reported, from time to time FRA does 
experience delays in reporting that adversely affect response times. In 
this regard, it should be noted that FRA conducts more investigations 
of railroad accidents and fatalities than any other public body, and 
even in the case of the relatively small number of accidents that NTSB 
selects for major investigations, FRA provides a substantial portion of 
the technical team participating from the public sector. Accordingly, 
it is appropriate that FRA take responsibility for ensuring that timely 
notification is provided. As can be seen by comparing the quoted NTSB 
regulations to proposed Sec.  225.9, FRA has not adopted NTSB's 
standards wholesale, but extracted necessary additions to FRA's 
existing requirements (e.g., train accident requiring evacuation of 
passengers), used terminology from FRA regulations to describe the 
triggering events (e.g., ``train accident'' as defined in Sec.  225.5), 
and slightly modified the contents of the required report (e.g., 
``available estimates'' instead of ``estimate'').
    Concern was expressed within the Working Group about joint 
operations as to which railroad should be responsible for making the 
telephonic report. The Working Group agreed that for purposes of 
telephonic reporting, the dispatching railroad, which controls the 
track involved, would be responsible for making the telephonic report.
    There was much discussion in the Working Group regarding whether 
railroads should be required to telephonically report certain incidents 
to the NRC ``immediately.'' One suggestion was to set a fixed period, 
such as three or four hours, to report an accident/incident, or in any 
event, be given a reasonable amount of time to report. Prompt reporting 
permits FRA and (where applicable) NTSB to dispatch personnel quickly, 
in most cases making it possible for them to arrive on scene before re-
railing operations and track reconstruction begin and key personnel 
become unavailable for interview. Decades of experience in accident 
investigation have taught FRA that the best information is often 
available only very early in the investigation, before physical 
evidence is disturbed and memories cloud.
    In addition, there was a suggestion that railroads be permitted to 
immediately report certain incidents by several methods other than by a 
telephone call, including use of a facsimile, or notification by e-
mail. Railroad representatives indicated that telephonic reporting is 
sometimes burdensome, particularly when a busy manager must wait to 
speak to an emergency responder for extended periods of time. FRA 
rejected this suggestion, and is proposing to require that immediate 
notification be done by telephone, and only by telephone, because FRA 
is concerned that if notification is given by other methods, such as 
facsimile or e-mail, it is possible that no one will be available to 
immediately receive the facsimile or e-mail message. Conversely, with a 
telephone call to an emergency response center, a railroad should be 
able to speak immediately to a person, or at the very least, should 
hear a recording that would immediately direct the caller to a person.
    Concern was expressed within the Working Group that continued use 
of the term ``immediate'' in conjunction with a broadening of the 
events subject to the FRA rule might produce harsh results, due to the 
need to address emergency response requirements for the safety and 
health of those affected and to determine the facts that are predicates 
for reporting. The proposed rule addresses this concern by stating 
that,

    [t]o the extent the necessity to report an accident/incident 
depends upon a determination of fact or an estimate of property 
damage, a report would be considered immediate if made as soon as 
possible following the time that the determination or estimate is 
made, or could reasonably have been made, whichever comes first, 
taking into consideration the health and safety of those affected by 
the accident/incident, including actions to protect the environment.


Proposed Sec.  225.9(d). Since FRA and the Working Group believe that 
immediate telephonic reporting raises issues related to emergency 
response unique to the railroad industry, the Working Group agreed not 
to conform in some respects to OSHA's oral or in-person reporting 
requirements. Accordingly, to the extent that OSHA's requirements 
regarding oral reports by telephone or in person apply to the railroad 
industry and that part 225 diverges from those requirements, FRA 
intends to include in the MOU with OSHA a provision specifying how and 
why FRA intends to depart from OSHA's requirements in this area.

D. Proposed Revisions to Criteria for Reporting Occupational 
Fatalities, Injuries, and Illnesses--Sec.  225.19(d)

1. FRA's Current and Proposed Reporting Criteria Applicable to Railroad 
Employees
    Currently, Sec.  225.19(d) reads as follows:

    Group III-Death, injury, or occupational illness. Each event 
arising from the operation of a railroad shall be reported on Form 
FRA F 6180.55a if it results in:
    (1) Death to any person;
    (2) Injury to any person that requires medical treatment;
    (3) Injury to a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer; or
    (iii) Loss of consciousness; or
    (4) Occupational illness of a railroad employee.
* * * * *
    The comparable provisions of OSHA's Final Rule are at Sec. Sec.  
1904.4(a) and 1904.7(b), which read as follows:


Sec.  1904.4  Recording criteria.

    (a) Basic requirement. Each employer required by this Part to keep 
records of fatalities, injuries, and illnesses must

[[Page 63027]]

record each fatality, injury and illness that:
    (1) Is work-related; and
    (2) Is a new case; and
    (3) Meets one or more of the general recording criteria of Sec.  
1904.7 or the application to specific cases of Sec.  1904.8 through 
Sec.  1904.12.
* * * * *


Sec.  1904.7  General recording criteria.

* * * * *
    (b) Implementation. (1) How do I decide if a case meets one or more 
of the general recording criteria? A work-related injury or illness 
must be recorded if it results in one or more of the following:
    (i) Death. See Sec.  1904.7(b)(2).
    (ii) Days away from work. See Sec.  1904.7(b)(3).
    (iii) Restricted work or transfer to another job. See Sec.  
1904.7(b)(4).
    (iv) Medical treatment beyond first aid. See Sec.  1904.7(b)(5).
    (v) Loss of consciousness. See Sec.  1904.7(b)(6).
    (vi) A significant injury or illness diagnosed by a physician or 
other licensed health care professional. See Sec.  1904.7(b)(7).

    As indicated by the preceding rule text, OSHA's Final Rule has 
specific recording criteria for cases described in 29 CFR 1904.8 
through 1904.12. These cases involve work-related needlestick and 
sharps injuries, medical removal, occupational hearing loss, work-
related tuberculosis, and independently reportable work-related 
musculoskeletal disorders. See Web site for OSHA regulations located in 
the ADDRESSES section.
    In response to several comments received after publication of the 
Final Rule, which was scheduled to take effect on January 1, 2002, OSHA 
delayed the effective date of three of the rule's provisions until 
January 1, 2003, so as to allow itself further time to evaluate Sec.  
1904.10, regarding occupational hearing loss, and Sec. Sec.  1904.12 
and 1904.29(b)(7)(vi),\1\ regarding musculoskeletal disorders. See 66 
FR 52031. On July 1, 2002, OSHA published a final rule establishing a 
new standard for the recording of occupational hearing loss cases for 
calendar year 2003. See 67 FR 44037. However, because OSHA was still 
uncertain about how to craft an appropriate definition for 
musculoskeletal disorders and whether or not it was necessary to 
include a separate column on the OSHA log for the recording of these 
cases and occupational hearing loss cases, OSHA simultaneously 
published a proposed delay of the effective dates of these provisions, 
from January 1, 2003, to January 1, 2004, and requested comment on the 
provisions. See 67 FR 44124.
---------------------------------------------------------------------------

    \1\ The effective date of the second sentence of Sec.  
1904.29(b)(7)(vi), which states that musculoskeletal disorders are 
not considered privacy concern cases, was delayed until January 1, 
2003 in OSHA's October 12, 2001, final rule. On July 1, 2002, OSHA 
proposed to delay the effective date of this same provision until 
January 1, 2004. See 67 FR 44124. This provision will be discussed 
in the context of privacy concern cases in the section-by-section 
analysis at ``III.G.1.'' of the preamble.
---------------------------------------------------------------------------

    Prior to OSHA's Final Rule, the recordkeeping rule had no specific 
threshold for recording hearing loss cases. See 67 FR 44038. The Final 
Rule established a new 10-dB standard at 29 CFR 1904.10:

    If an employee's hearing test (audiogram) reveals that a 
Standard Threshold Shift (STS) has occurred, you must record the 
case on the OSHA 300 Log by checking the ``hearing loss'' column. . 
. . A standard Threshold Shift, or STS, is defined in the 
occupational noise exposure standard at 29 CFR 1910.95(c)(10)(i) as 
a change in hearing threshold, relative to the most recent audiogram 
for that employee, of an average of 10 decibels (dB) or more at 
2000, 3000, and 4000 hertz in one or both ears.


See 66 FR 6129 (January 19, 2001). On October 12, 2001, OSHA delayed 
the provision and instead adopted the standard set forth in OSHA's 
enforcement policy, which had been in effect since 1991, and which is 
FRA's current approach,\2\ in order to seek comments on what should be 
the appropriate hearing loss threshold. See 66 FR 52031. The 
enforcement policy stated that OSHA would cite employers for failing to 
record work-related shifts in hearing of an average of 25 dB or more at 
2000, 3000, and 4000 Hz in either ear. Thus, the hearing loss of an 
employee would be tested by measuring the difference, or shift, between 
the employee's current audiogram and the employee's original baseline 
audiogram. See 67 FR 44037, 44038. If the shift was 25 dB or more, OSHA 
required that it be recorded. The employee's original baseline 
audiogram is one of two starting points, or baselines, from which you 
can measure a Standard Threshold Shift (STS), the other being 
audiometric zero.
---------------------------------------------------------------------------

    \2\ See current Guide at Appendix E, p. 4. FRA's Occupational 
Illness Code 1151, concerning noise induced hearing loss, 
provides in part: ``An STS is a change in hearing threshold relative 
to a baseline audiogram that averages 10 dB or more at 2000, 3000, 
and 4000 hertz in either ear. Documentation of a 10 dB shift is not, 
of and by itself, reportable. There must be a determination by a 
physician . . . that environmental factors at work were a 
significant cause of the STS. However, if an employee has an overall 
shift of 25 dB or more above the original baseline audiogram, then 
an evaluation must be made to determine to what extent it resulted 
from exposure at work.''
---------------------------------------------------------------------------

    Audiometric zero represents the statistical average hearing 
threshold level of young adults with no history of aural pathology, 
thus it is not specific to the employee. This is the starting point 
from which the American Medical Association (AMA) measures a 25-dB 
permanent hearing impairment. The employee's original baseline 
audiogram, on the other hand, is taken at the time the worker was first 
placed in a hearing conservation program.\3\ This starting point, which 
has been enforced by OSHA since 1991 and is the starting point 
currently used by FRA, fails to take into account any hearing loss that 
the employee has suffered in previous jobs and can present a problem if 
the employee has had several successive employers at high-noise jobs.
---------------------------------------------------------------------------

    \3\ Not all employees are placed in a hearing conservation 
program. OSHA only requires such a program to be in place in general 
industry when the noise exposure exceeds an 8-hour time-weighted 
average of 85 dB.
---------------------------------------------------------------------------

    Thus, if an individual employee has experienced some hearing loss 
before being hired, a 25-dB shift from the employee's original baseline 
will be a larger hearing loss than the 25-dB shift from audiometric 
zero that the AMA recognizes as a hearing impairment and disabling 
condition. For example, if an employee experienced a 20-dB shift from 
audiometric zero prior to being hired in a job where he later suffered 
a 15-dB shift hearing loss from his original baseline audiogram, the 
AMA would count this as a 35-dB shift, a serious hearing impairment, 
but under OSHA's enforcement policy (and FRA's current approach), this 
would only have counted as a 15-dB shift that is not recordable under 
OSHA's enforcement policy or Sec.  1904.10 for calendar year 2002. In 
order for it to become recordable, the employee would have had to 
suffer an additional 10-dB shift, which would mean that the employee 
would have suffered a 45-dB shift from audiometric zero--almost twice 
the amount that the AMA considers to be a permanent hearing impairment.
    After considering several comments demonstrating that a 25-dB shift 
from an employee's original baseline audiogram was not protective 
enough and that a 10-dB shift from an employee's original baseline 
audiogram was overly protective (and more appropriate as an early 
warning mechanism that should trigger actions under the Occupational 
Noise Exposure Standard \4\ to prevent impairment from

[[Page 63028]]

occurring), OSHA adopted a compromise position that makes a 10-dB shift 
from an employee's original baseline audiogram recordable in those 
cases where this shift also represents a 25-dB shift from audiometric 
zero.
---------------------------------------------------------------------------

    \4\ Under Sec.  1910.95, employers must take protective measures 
(employee notification, providing hearing protectors or refitting of 
hearing protectors, referring employee for audiological evaluation 
where appropriate, etc.) to prevent further hearing loss for 
employees who have experienced a 10-dB shift from the employee's 
original baseline audiogram. See 67 FR at 44040-41.
---------------------------------------------------------------------------

    As OSHA's new approach to defining and recording occupational 
hearing loss cases was not presented to the Working Group, FRA seeks 
comment on whether FRA should adopt OSHA's new approach as FRA's fixed 
approach, beginning on the effective date of FRA's final rule, or 
whether FRA should diverge from OSHA and continue to enforce OSHA's 
current approach (which was approved by the Working Group and the RSAC 
and is the same as FRA's current approach) as a fixed approach 
beginning on the effective date of FRA's final rule. See proposed Guide 
at Ch. 6, pp. 27-28, and Appendix E, p. 4. If OSHA's current approach 
is permitted to continue in effect as FRA's approach, this divergence 
would need to be addressed in the MOU and approved by OSHA so as to 
avoid dual reporting on this issue. If OSHA's new approach for calendar 
year 2003 is adopted, the proposed Guide would be updated to reflect 
the new approach.
    As noted above, OSHA may be reconsidering for calendar year 2003 
the definition of musculoskeletal disorder (MSD) and the requirement of 
having a separate column on the OSHA 300 log for the recording of MSD 
and occupational hearing loss cases. As the issue of OSHA's proposed 
delays was not before the Working Group when consensus was reached, FRA 
seeks comment on whether or not the definition and column requirements 
should be adopted if OSHA's proposed January 1, 2004 delay takes 
effect. If FRA goes forth with the provisions as approved by the 
Working Group, FRA would be adopting these provisions in advance of 
OSHA, a result that may not have been contemplated by the Working Group 
when it agreed to follow OSHA on these issues prior to the issuance of 
the proposed delays.
    Even if OSHA chooses not to delay the effective date of these 
provisions, FRA seeks comment on whether or not we should diverge from 
OSHA by not adopting the definition or column requirements, since FRA 
already has its own forms and methods in place to collect this data for 
OSHA's purposes. Instead of requiring railroads to record cases and 
check boxes on the OSHA 300 log, FRA requires railroads to report these 
cases using assigned injury codes on the FRA Form F 6180.55a. Code 
1151, for example, is the code for occupational hearing loss cases, 
thus no additional column would be necessary. Similarly, the different 
kinds of injuries that could qualify as an MSD are given separate 
codes. Once OSHA decides what types of injuries are appropriate to 
include in the category or definition of an MSD, OSHA would be able to 
identify the MSD cases by their respective code numbers, thereby 
allowing OSHA to use FRA's data for national statistical purposes. 
Although it is not practical for FRA's injury codes to be as extensive 
as OSHA's codes, it would be possible to amend the Guide so as to 
reflect the major codes recognized by OSHA and to add a category such 
as ``Other MSDs, as defined by OSHA in Sec.  1904.12.''
    FRA also seeks comment on whether or not a definition of an MSD is 
necessary, since currently there are no special criteria beyond the 
general recording criteria for determining which MSDs to record, and 
because OSHA's definition appears to be used primarily as guidance for 
when to check the MSD column on the 300 Log. See 66 FR 6129-6130. If 
the definition of an MSD and the column requirements were to be omitted 
from the Final Rule, these differences would be discussed in the MOU.
    FRA also seeks comment on whether its regulations should ``float,'' 
i.e., change automatically anytime OSHA revises its regulations, since 
the main purpose of this rulemaking is to bring FRA's rule into general 
conformity with OSHA's regulations (which are developed after a full 
opportunity for notice and comment) or whether FRA's adoption of a 
fixed and certain approach can better serve FRA's safety objectives and 
the needs of the regulated community. This issue is particularly 
relevant for the proposed definition of medical removal. Because 
medical removal is such a complex issue, and one that is rarely, if at 
all, encountered in the railroad environment, FRA seeks comment on 
whether this definition should ``float'' with OSHA's. That is, should 
we word our definition so that it is tied to OSHA's standard anytime 
OSHA might change that standard? Since the proposed definition \5\ 
references OSHA's standard without restating it within the rule text or 
preamble, this would reflect the intent of the Working Group.
---------------------------------------------------------------------------

    \5\ The proposed definition currently reads: ``Medical removal 
means medical removal under the medical surveillance requirements of 
an Occupational Safety and Health Administration standard in 29 CFR 
part 1910, even if the case does not meet one of the general 
reporting criteria.''
---------------------------------------------------------------------------

    Finally, OSHA added another category of reportable cases: 
``significant injuries or illnesses.'' With regard to the reportability 
of illnesses and injuries of railroad employees, there are at least 
three primary differences between OSHA's reporting criteria and FRA's 
current reporting criteria, at least as stated in Sec.  225.19(d). 
First, FRA requires that all occupational illnesses of railroad 
employees be reported. See Sec. Sec.  225.5 and 225.19(d)(4). 
Contrarily, under OSHA's Final Rule, only certain occupational 
illnesses are to be reported, namely those that result in death, 
medical treatment, days away from work, or restricted work or job 
transfer; constitute a ``significant illness'; or meet the 
``application to specific cases of [29 CFR] Sec. Sec.  1904.8 through 
1904.12.'' Second, for the reason that FRA's interpretation of part 225 
is presently very inclusive, it does not use the term ``significant 
injuries,'' which is incorporated in the OSHA Final Rule. While FRA 
does not use the phrase ``significant injuries'' in the current rule 
text, the current Guide does require the reporting of conditions 
similar to OSHA's ``significant injuries.''

    The distinction between medical treatment and first aid depends 
not only on the treatment provided, but also on the severity of the 
injury being treated. First aid * * * [i]nvolves treatment of only 
minor injuries. * * * An injury is not minor if * * * [i]t impairs 
bodily function (i.e., normal use of senses, limbs, etc.); * * * 
[or] [i]t results in damage to the physical structure of a 
nonsuperficial nature (e.g. fractures); * * *.


Guide, Ch. 6, p. 6. Accordingly, under the Guide, fractures are 
considered not to be minor injuries, and a punctured eardrum would 
likewise not be considered a minor injury because it would involve 
impairment of ``normal use of senses.'' Id. Third, FRA does not have 
``specific cases'' reporting criteria for occupational injuries of 
railroad employees.
    FRA proposes to conform part 225 to OSHA's Final Rule with regard 
to these three differences by amending its regulations at Sec.  
225.19(d) and related definitions at Sec.  225.5. FRA would, however, 
distribute the specific conditions specified under OSHA's 
``significant'' category (Sec.  1904.7(b)(7)) into injuries and 
illnesses, subcategories that OSHA could, of course, aggregate, and FRA 
would omit the note to OSHA's description of ``significant illnesses 
and injuries,'' which does not appear to be necessary for a proper 
understanding of the concept and which might be read as open-ended, a 
result

[[Page 63029]]

FRA does not intend. The text of the note is excerpted below:

    Note to Sec.  1904.7: OSHA believes that most significant 
injuries and illnesses will result in one of the criteria listed in 
Sec.  1904.7(a). * * * In addition, there are some significant 
progressive diseases, such as byssinosis, silicosis, and some types 
of cancer, for which medical treatment or work restrictions may not 
be recommended at the time of the diagnosis but are likely to be 
recommended as the disease progresses. OSHA believes that cancer, 
chronic irreversible diseases, fractured or cracked bones, and 
punctured eardrums are generally considered significant injuries and 
illnesses, and must be recorded at the initial diagnosis even if 
medical treatment or work restrictions are not recommended, or are 
postponed, in a particular case.


29 CFR 1904.7(b)(7). FRA believes that the note is intended to 
reference a statutory issue not present in the case of FRA's reporting 
system and can be omitted from FRA's rule as not relevant and to avoid 
potential ambiguity. FRA also proposes to explain these new reporting 
requirements in the Guide. (See later discussion of proposed Chapter 6 
of the Guide.)
2. FRA's Current and Proposed Reporting Criteria Applicable to 
Employees of a Contractor to a Railroad
    As previously noted, under Sec.  225.19(d), ``Each event arising 
from the operation of a railroad shall be reported * * * if it results 
in * * * (1) Death to any person; (2) Injury to any person that 
requires medical treatment. * * *'' Under the ``definitions'' section 
of the accident reporting regulations, ``person'' includes an 
independent contractor to a railroad. See Sec.  225.5. Reading these 
regulatory provisions together, deaths to employees of railroad 
contractors that arise from the operation of a railroad, and injuries 
to employees of railroad contractors that arise from the operation of a 
railroad and require medical treatment would appear to be reportable to 
FRA. (The Guide, however, narrows the requirement through its reading 
of ``arising from the operation of a railroad.'') FRA does not require 
reporting of occupational illnesses of contractors; under Sec.  
225.19(d)(4), only the occupational illnesses of railroad employees 
must be reported.
    Contrarily, under OSHA's Final Rule, the reporting entity is 
required to report work-related injuries and illnesses, including those 
events or exposures meeting the special recording criteria for 
employees of contractors, only if they are under the day-to-day 
supervision of the reporting entity.

    If an employee in my establishment is a contractor's employee, 
must I record an injury or illness occurring to that employee? If 
the contractor's employee is under the day-to-day supervision of the 
contractor, the contractor is responsible for recording the injury 
or illness. If you supervise the contractor employee's work on a 
day-to-day basis, you must record the injury or illness.


29 CFR 1904.31(b)(3).
    In the Working Group meetings, APTA noted that it is difficult to 
comply with FRA's current rule, read literally, with respect to an 
employee of a contractor to a railroad while off railroad property. 
Many commuter railroads often do not know whether an employee of a 
contractor to the railroad is injured or sickened if the event occurred 
on property other than property owned, leased, or maintained by the 
commuter railroad; it is difficult to follow up on an injury or illness 
suffered by such an employee. For example, ABC Railroad contracts with 
XYZ Contractor to repair ABC's railcars at XYZ's facilities. An 
employee of XYZ Contractor, while repairing ABC's rail car at XYZ's 
facility, receives an injury resulting in medical treatment. ABC 
Railroad notes that it may not know about the injury and, therefore, 
could not report it. Furthermore, no information is lost in the 
national database since the contractor must report the injury to OSHA 
even if ABC Railroad does not report the injury. The Working Group 
could not reach consensus on whether to require reporting of injuries 
to employees of railroad contractors while off railroad property.
    A similar difficulty with reporting occurs in the context of 
fatalities to employees of contractors to a railroad. With respect to 
whether to require that railroads report fatalities of employees of 
contractors that arise out of the operation of the railroad but occur 
off railroad property, the Working Group also could not reach 
consensus. AAR noted that for the reasons stated above related to 
injuries and illnesses, it is difficult for railroads to track 
fatalities of persons who are not employed by the railroad. Labor noted 
on the other hand, that fatalities are the most serious cases on the 
spectrum of reportable incidents and that it would be important that 
those cases be reported to FRA. In addition, labor representatives 
noted that railroads often contract for taxi services to deadhead 
railroad crews to their final release point and that if a driver died 
in a car accident transporting a railroad crew, FRA should know about 
those cases. FRA noted that as a practical matter, those types of cases 
occurred infrequently, that FRA data showed only two possible fatal car 
accidents occurring off railroad property that involved employees of 
contractors to a railroad. As a compromise, labor representatives 
proposed that only fatalities that involved transporting or deadheading 
railroad crews be reportable, but that all other fatalities to 
employees of contractors to a railroad that occur off railroad 
property, not be reportable, even if the incident arose out of the 
operation of the railroad.
    Since the Working Group could not reach consensus on the issue of 
reporting injuries, illnesses, or fatalities of contractors to a 
railroad that arose out of the operation of the railroad but occurred 
off railroad property, FRA makes the following proposal based upon its 
reasoned consideration of the issue. In this regard, FRA has attempted 
to balance its need for comprehensive safety data concerning the 
railroad industry against the practical limitations of expecting 
railroads to be aware of all injuries suffered by contractors off of 
railroad property. FRA recognizes that certain types of accident/
incidents occurring off of railroad property involve scenarios in which 
the fact that the contractor was performing work for a railroad is 
incidental to the accident or incident, and would offer no meaningful 
safety data to FRA, e.g., ordinary highway accidents involving an on-
duty contractor to a railroad.
    The existing term ``arising from the operation of a railroad'' and 
its definition would be deleted from Sec.  225.5. Currently, the 
definition reads as follows: ``Arising from the operation of a railroad 
includes all activities of a railroad that are related to the 
performance of its rail transportation business.'' The new term ``event 
or exposure arising from the operation of a railroad'' would be added 
to Sec.  225.5's list of defined terms and given a three-tier 
definition. First, ``event or exposure arising from the operation of a 
railroad'' would be defined broadly with respect to any person on 
property owned, leased, or maintained by the railroad, to include any 
activity of the railroad that relates to its rail transportation 
business and any exposure related to that activity. Second, the term 
would be defined broadly in the same way with respect to an employee of 
the railroad, but without regard for whether the employee is on or off 
railroad property. Third, the term would be defined 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

[[Page 63030]]

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.
    When read together with the rest of proposed Sec.  225.19(d), the 
new definition of ``event or exposure arising from the operation of a 
railroad'' would mean that a railroad would not have to report to FRA 
the death 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. These 
proposed reporting requirements diverge from the OSHA standard, which 
would require the reporting of the work-related death, injury, or 
illness of an employee of a contractor to the reporting entity if the 
contractor employee is under the day-to-day supervision of the 
reporting entity. 29 CFR 1904.31(b)(3). If FRA adopts this proposal, 
FRA's divergence from OSHA would be addressed in the MOU.
3. Reporting Criteria Applicable to Illnesses
    At a Working Group meeting, AAR proposed that major member 
railroads would file, with their FRA annual report, a list of claimed 
but denied occupational illnesses not included on the Form FRA F 
6180.56, ``Annual Railroad Report of Employee Hours and Casualties by 
State,'' because the railroads found the illnesses not to be work-
related. The list would be organized by State, and would include the 
name of the reporting contact person. See also the discussion of 
recording claimed illnesses, discussed later in the preamble under 
section ``III.G.2.,'' below. FRA and other Working Group members have 
expressed appreciation for this undertaking. It was agreed that this is 
appropriate for implementation on a voluntary basis, and no comment is 
sought on this matter.

E. Proposed Technical Revision to Sec.  225.21, ``Forms''

    The Working Group agreed to add a new subsection Sec.  225.21(j) to 
create a new form (Form FRA F 6180.107), which would be labeled 
``Alternative Record for Illnesses Claimed to Be Work-Related.'' This 
form would call for the same information that is included on the Form 
FRA F 6180.98 and would have to be completed to the extent that the 
information is reasonably available. A further discussion of the nature 
of this new form is discussed under the revisions to Sec.  225.25, 
later in this preamble.

F. Proposed Technical Revision to Sec.  225.23, ``Joint Operations''

    The Working Group agreed to propose certain minor changes to the 
regulatory text; specifically, to Sec.  225.23(a), concerning joint 
operations, simply to bring it into conformity with the other major 
changes to the regulatory text that are proposed. Note that for 
purposes of telephonic reporting in joint operations, the dispatching 
railroad would be required to make the telephonic report. See proposed 
Sec.  225.9.

G. Proposed Revisions to Sec.  225.25, ``Recordkeeping''

1. Privacy Concern Cases
    The Working Group agreed to propose changes to the regulatory text 
under Sec.  225.25, concerning recordkeeping, by revising Sec.  
225.25(h) to address a class of cases described by OSHA as ``privacy 
concern cases.'' OSHA requires an employer to give its employees and 
their representatives access to injury and illness records required by 
OSHA, such as the OSHA 300 Log, with some limitations that apply to 
privacy concern cases. 29 CFR 1904.35(b)(2), 1904.29(b). A ``privacy 
concern case'' is defined by OSHA in 29 CFR 1904.29(b)(7); one type of 
a privacy concern case is, e.g., an injury or illness to an intimate 
body part. FRA would define the term similarly in proposed Sec.  225.5. 
In privacy concern cases, OSHA prohibits recording the name of the 
injured or ill employee on the Log. The words ``privacy case'' must be 
entered in lieu of the employee's name. The employer must ``keep a 
separate, confidential list of the case numbers and employee names for 
your privacy concern cases so you can update the cases and provide the 
information to the government if asked to do so.'' 29 CFR 
1904.29(b)(6). In addition, if the employer has a reasonable basis to 
believe that the information describing the privacy concern case may be 
personally identifiable even though the employee's name has been left 
out, the employer may use discretion in describing the injury or 
illness. The employer must, however, enter enough information to 
identify the cause of the incident and the general severity of the 
injury or illness, but need not include details, e.g., a sexual assault 
case may be described as an injury from assault.
    By contrast, FRA requires that an employee have access to 
information in the FRA-required Railroad Employee Injury and/or Illness 
Record (Form FRA F 6180.98) regarding his or her own injury or illness, 
not the FRA-required records regarding injuries or illnesses of other 
employees. Sec.  225.25(a), (b), (c). This renders the FRA-required log 
of reportables and accountables with its information on the name and 
Social Security number of the employee, inaccessible to other employees 
or anyone else. Id. Additionally, FRA proposes to amend the requirement 
that the record contain an employee's Social Security Number, opting to 
allow a railroad to enter an employee's identification number instead. 
See proposed Sec.  225.25(b)(6). Therefore, FRA considers this 
difference a sufficient reason not to adopt OSHA's privacy requirements 
with regard to the reportable and accountable log. This proposed 
variation from OSHA will be discussed in the MOU.
    Although FRA does not allow wide access to the reportable and 
accountable log, FRA does require, however, the posting in a 
conspicuous place in each of the employer's establishments, certain 
limited information on reportable accidents/incidents that occurred at 
the establishment, thereby making this information accessible to all 
those working at the establishment and not simply the particular 
employee who suffered the injury or illness. Sec.  225.25(h). That 
limited information includes the incident number used to report the 
case, the date of the injury or illness, the regular job title of the 
employee involved, and a description of the injury or condition. Even 
though the name of the employee is not required to be listed, the 
identity of the person might in some cases be determined, particularly 
at small establishments. Currently, under Sec.  225.25(h)(15), FRA 
permits the railroad not to post an injury or illness at the 
establishment where it occurred if the ill or injured employee requests 
in writing to the railroad's reporting officer that the injury or 
illness not be posted. The preceding revision of the rule would be 
consistent with OSHA's requirements with regard to its Log, but more 
expansive than those requirements. FRA would also give railroads 
discretion not to provide details of the injury or condition that 
constitutes a privacy case. FRA will discuss these slight variations 
from OSHA's privacy requirements in the MOU.

[[Page 63031]]

    Another issue relevant to reporting privacy concern cases arose in 
Sec.  1904.29(b)(7)(vi) of OSHA's January 19, 2001, Final Rule, which 
states that musculoskeletal disorders (MSDs) are not considered privacy 
concern cases. OSHA delayed the effective date of this exclusion until 
January 1, 2003, in its October 12, 2001, final rule. On July 1, 2002, 
OSHA proposed to delay the effective date of this same provision until 
January 1, 2004. See 67 FR 44124. As the issue of OSHA's proposed delay 
of this provision was not before the Working Group when consensus was 
reached, FRA seeks comment on whether or not this exclusion should be 
adopted if OSHA's proposed January 1, 2004, delay takes effect. If FRA 
goes forth with the provision as approved by the Working Group, FRA 
would be adopting the exclusion in advance of OSHA's adoption of it and 
in advance of OSHA's defining the very term that is supposed to be 
excluded, a result that may not have been contemplated by the Working 
Group when it agreed to the proposed rule text on this issue prior to 
OSHA's issuance of the proposed delay. See discussion concerning 
reporting criteria for MSDs at section III.D.1 of the preamble, above. 
Even if OSHA chooses not to delay the effective date of this provision 
and to give it effect on January 1, 2003, FRA seeks comment on whether 
or not we should diverge from OSHA by not adopting the exclusion. If 
FRA's final definition of privacy concern case differs from OSHA's 
eventual definition of the term, then the difference would be discussed 
in the MOU.
    Finally, the question was raised in the Working Group whether FRA's 
proposed regulations conformed to the Health Insurance Portability and 
Accessibility Act of 1996 (Pub. L. 104-191 (HIPAA)) and to the 
Department of Health and Human Services' regulations implementing HIPAA 
with regard to the privacy of medical records. See ``the Standards for 
Privacy of Individually Identifiable Health Information.'' 65 FR 82462 
(Dec. 28, 2000), codified at 45 CFR parts 160 and 164. Since it appears 
that OSHA's regulations conform to HIPAA, and FRA proposes to conform 
to OSHA in all essential respects with regard to the treatment of 
medical information, FRA believes that its proposed regulations will 
not conflict with HIPAA requirements.
2. Claimed Illnesses for Which Work-Relatedness Is Doubted
    a. Recording claimed illnesses. Under the current FRA rule, all 
accountable or reportable injuries and illnesses are required to be 
recorded on Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record,'' or an equivalent record containing the same 
information. The subset of those cases that qualify for reporting are 
then reported on the appropriate forms. Sec.  225.25(a), (b). If the 
case is not reported, the railroad is required to state why not on Form 
FRA F 6180.98 or the equivalent record. Sec.  225.25(b)(26).
    Although this system has generally worked well, problems have 
arisen with respect to accounting of claimed occupational illnesses. As 
further explained below, railroads are subject to tort-based liability 
for illnesses and injuries that arise as a result of conditions in the 
workplace. By their nature, many occupational illnesses, particularly 
repetitive stress cases, may arise either from exposures outside the 
workplace, inside the workplace, or a combination of the two. 
Accordingly, issues of work-relatedness become very prominent. 
Railroads evaluate claims of this nature using medical and ergonomic 
experts, often relying upon job analysis studies as well as focusing on 
the individual claims.
    With respect to accounting and reportability under part 225, 
railroad representatives state their concern that mere allegations 
(e.g., receipt of a complaint in a tort suit naming a large number of 
plaintiffs) not give rise to a duty to report. They add that many such 
claims are settled for what amounts to nuisance values, often with no 
admission of liability on the part of the railroad, so even the payment 
of compensation is not clear evidence that the railroad views the claim 
of work-relatedness as valid.
    Although sympathetic to these concerns, FRA is disappointed in the 
quality of data provided in the past related to occupational illnesses. 
Indeed, in recent years the number of such events reported to FRA has 
been extremely small. FRA has an obligation to verify, insofar as 
possible, whether the railroad's judgments rest on a reasonable basis, 
and discharging that responsibility requires that there be a reasonable 
audit trail to verify on what basis the railroad's decisions were made. 
While the basic elements of the audit trail are evident within the 
internal control plans of most railroads, this is not universally the 
case.
    Accordingly, FRA asked the Working Group to consider establishing a 
separate category of claimed illnesses. This category would be 
comprised of (1) Illnesses for which there is insufficient information 
to determine whether the illness is work-related; (2) Illnesses for 
which the railroad has made a preliminary determination that the 
illness was not work-related; and (3) Illnesses for which the railroad 
has made a final determination that the illness is not work-related. 
These records would contain the same information as the Form FRA F 
6180.98, but might at the railroad's election--
    [sbull] Be captioned ``alleged'';
    [sbull] Be retained in a separate file from other accountables; and
    [sbull] If accountables are maintained electronically, be excluded 
from the requirement to be provided at any railroad establishment 
within 4 hours of a request.
    This would permit the records to be kept at a central location, in 
either paper or electronic format.
    The railroad's internal control plan would be required to specify 
the custodian of these records and where they could be found. For any 
case determined to be reportable, the designation ``alleged'' would be 
removed, and the record would be transferred to the reporting officer 
for retention and reporting in the normal manner. In the event the 
narrative block (Form FRA F 6180.98, block 39) indicates that the case 
is not reportable, the explanation contained in that block would record 
the reasons the railroad determined that the case was not reportable, 
making reference to the ``most authoritative'' information relied upon. 
Although the proposed Form FRA F 6180.107 or equivalent would not 
require a railroad to include all supporting documentation, such as 
medical records, it would require a railroad to note where the 
supporting documentation is located so that it will be readily 
accessible to FRA upon request.
    FRA believes that the system of accounting for contested illness 
cases described above will focus responsibility for these decisions and 
provide an appropriate audit trail. In addition, it will result in a 
body of information that can be used in the future for research into 
the causes of prevalent illnesses. Particularly in the case of 
musculoskeletal disorders, it is entirely possible that individual 
cases may appear not to be work-related due to an imperfect 
understanding of stressors in the workplace. Review of data may suggest 
the need for further investigation, which may lead to practical 
solutions that will be implemented either under the industrial hygiene 
programs of the railroads or as a result of further regulatory action. 
Putting this information ``on the books'' is a critical step in sorting 
out over time what types of disorders have a nexus to the workplace. 
See proposed amendments to Sec. Sec.  225.21, 225.25,

[[Page 63032]]

225.33, and 225.35 and proposed new Chapter 13 of the Guide.
    b. FRA review of railroads' work-relatedness determinations. 
Concern arose within the Working Group regarding how FRA planned to 
review a reporting officer's determination that the illness is not 
work-related. As discussed in section ``III.P.3.,'' below, of the 
preamble, it will be the railroad's responsibility to determine whether 
an illness is work-related. In connection with an inspection or audit, 
FRA's role will be to determine whether the reporting officer's 
determination was reasonable. Even if FRA disagrees with the reporting 
officer's determination not to report, FRA will not find that a 
violation has been committed as long as the determination was 
reasonable. FRA understands that this is consistent with the approach 
OSHA is employing under its revised rule, and in any event it is most 
appropriate given the assignment of responsibility for reporting to the 
employing railroad. FRA plans to establish access to appropriate expert 
resources (medical, ergonomic, etc.) as necessary to evaluate the 
reasonableness of railroad decisions not to report particular cases.
3. Technical Amendments
    The Working Group also agreed to propose certain minor changes to 
subsections 225.25(b)(16), (b)(25), (e)(8), and (e)(24), simply to 
bring these subsections into conformity with the other major changes to 
the regulatory text that are proposed.

H. Proposed Addition of Sec.  225.39, ``FRA Policy Statement on Covered 
Data''

    FRA proposes to add a new section to the regulatory text that would 
include a policy statement on covered data. Specifically, proposed 
Sec.  225.39 would state that FRA will not include in its periodic 
summaries of data for the number of occupational injuries and 
illnesses, reports of a case, not otherwise reportable under part 225, 
involving (1) One day away from work when in fact the employee returned 
to work, contrary to the written recommendation to the employee by the 
treating physician or other licensed health care professional; (2) One 
day of restricted work when in fact the employee was not restricted, 
contrary to the written recommendation to the employee by the treating 
physician or other licensed health care professional; or (3) A written 
over-the-counter medication prescribed at prescription strength, 
whether or not the medication was taken.
    In addition to proposing revisions to its regulations in the Code 
of Federal Regulations, FRA is proposing revisions to its Guide for 
Preparing Accident/Incident Reports (Guide or FRA's Guide).
    Written comments on the proposed Guide must be received by November 
8, 2002. Comments may be mailed to the address or submitted 
electronically to the Web site given under ADDRESSES at the beginning 
of this document. The proposed Guide is posted on FRA's Web site at 
http://safetydata.fra.dot.gov/guide.

I. Proposed Revisions to Chapter 1 of the Guide, ``Overview of 
Accident/Incident Reporting and Recordkeeping Requirements''

    Proposed Chapter 1 of the Guide has been revised to reflect the 
major proposed changes to part 225 and the rest of the Guide, such as 
important proposed definitions, the proposed revision of the telephonic 
reporting requirement, and the proposed revision of the reportability 
criteria in Sec.  225.19(d). In addition, Chapter 1 has been revised to 
change the closeout date for the reporting year. Under FRA's current 
reporting requirements, railroads are permitted until April 15 to close 
out their accident/incident records for the previous reporting year. 
Guide, Ch. 1, p. 11. FRA proposes to amend its Guide to extend the 
deadline for completing such accident/incident reporting records until 
December 1, and will extend the deadline even beyond that date on a 
case-by-case basis for individual records or cases, if warranted.

J. Proposed Revisions to Chapter 6 of the Guide, Pertaining to Form FRA 
F 6180.55a, ``Railroad Injury and Illness Summary (Continuation 
Sheet)''

    FRA proposes to amend its Guide to bring it, for the most part, 
into conformity with OSHA's recently published Final Rule on 
recordkeeping and reporting. The Working Group also wanted to make it 
clear, by noting in Chapter 6, that railroads are not required to 
report occupational fatalities, injuries, and illnesses to OSHA if FRA 
and OSHA enter into an MOU that so provides.
    Under OSHA's Final Rule, reporting requirements have changed in 
many ways, several of which are described below. See also proposed 
Sec.  225.39 regarding FRA's treatment of cases reportable under 
proposed part 225 solely because of, e.g., recommended days away from 
work that are not actually taken.
1. Changes in How Days Away From Work and Days of Restricted Work Are 
Counted
    Under OSHA's Final Rule, if a doctor orders a patient to rest and 
not return to work for a number of days, or recommends that an employee 
engage only in restricted work, for purposes of reporting days away 
from work or restricted work, an employer must report the actual number 
of days that the employee was ordered not to return to work or was 
ordered to restrict the type of work performed, even if the employee 
decides to ignore the doctor's orders, and instead opts to return to 
work or to work without restriction. Specifically, under OSHA's Final 
Rule,

    If a physician or other licensed health care professional 
recommends days away, you should encourage your employee to follow 
that recommendation. However, the days away must be recorded whether 
the injured or ill employee follows the physician or licensed health 
care professional's recommendation or not.


29 CFR 1904.7(b)(3)(ii). The FRA agrees with the position taken by 
OSHA, that the employee should be encouraged to follow the doctor's 
advice about not reporting to work and or/taking restricted time to 
allow the employee to heal from the injury.
    OSHA states a similar rule with respect to reporting the number of 
days of recommended restricted duty. Specifically, OSHA's Final Rule 
states,

    May I stop counting days if an employee who is away from work 
because of an injury or illness retires or leaves my company? Yes, 
if the employee leaves your company for some reason unrelated to the 
injury or illness, such as retirement, a plant closing, or to take 
another job, you may stop counting days away from work or days of 
restricted/job transfer. If the employee leaves your company because 
of the injury or illness, you must estimate the number of days away 
or days of restriction/job transfer and enter the day count on the 
300 Log.


29 CFR 1904.7(b)(3)(viii). Contrarily, under FRA's current Guide, a 
railroad must report only the actual number of days that an employee 
does not return to work or is on restricted work duty due to a work-
related injury or illness. ``A record of the actual count of these days 
must be maintained for the affected employee.'' See Guide, Ch. 6, pp. 
13-14.
    There was much discussion at the Working Group meetings of whether 
FRA should conform to OSHA's Final Rule with respect to reporting the 
number of days away from work or number of days of restricted duty. 
Some Working Group members wanted to leave FRA's current reporting 
system in place, while others saw merit in the

[[Page 63033]]

OSHA approach. FRA representatives met with OSHA representatives to 
address this issue. OSHA insisted that since it tracks an index of the 
severity of injuries, with days away from work being the most severe 
non-fatal injuries and illnesses, it was important to OSHA to maintain 
a uniform database and have those types of injuries captured in its 
statistics.
    A compromise was reached on the issue of reporting the number of 
days away and number of days of restricted work activity that was 
acceptable both to the Working Group and, preliminarily, to OSHA. 
Specifically, FRA proposes that if no other reporting criteria apply 
but a doctor orders a patient to rest and not to report to work for a 
number of days, the railroad must report the case under a special 
category called ``covered data.'' The Guide would explain how this 
covered data would be coded. The principal purpose of collecting 
covered data is so that this information can be provided to the 
Department of Labor for inter-industry comparison. The general rule is 
as follows: Where a doctor orders days of rest for an employee, the 
railroad must report actual days away from work unless the employee 
reports for work the next day, in which case, the railroad must report 
one day. Note: If the employee takes more days than the doctor ordered, 
the railroad must still report actual days away from work unless the 
railroad can show that the employee should have returned to work 
sooner. The following examples illustrate the application of this 
principle in combination with existing requirements that would be 
carried forward.
    [sbull] If the doctor orders the patient to five days of rest, and 
the employee reports to work the next day, the railroad must report one 
day away from work. (This case would be separately coded and not 
included in FRA accident/incident aggregate statistics.)
    [sbull] If, on the other hand, the employee takes three days of 
rest, when the doctor ordered five days of rest, then the railroad must 
report the actual number of days away from work as three days away from 
work.
    [sbull] Of course, if the doctor orders five days of rest and the 
employee takes five days of rest, then the railroad must report the 
full five days away from work.
    [sbull] Finally, if the doctor orders five days of rest, and the 
employee takes more than the five days ordered, then the railroad must 
report the actual number of days away from work, unless the railroad 
can show that the employee should have returned to work sooner than the 
employee actually did.


An MOU between FRA and OSHA would address these issues.
    FRA notes that it may be appropriate to take into consideration 
special circumstances in determining the appropriate reporting system 
for the railroad industry. While compensation for injuries and 
illnesses in most industries is determined under state-level worker 
compensation systems, which provide recovery on a ``no-fault'' basis 
with fixed benefits, railroad claims departments generally compensate 
railroad employees for lost workdays resulting from injuries or 
occupational illnesses. In the event a railroad employee is not 
satisfied with the level of compensation offered by the railroad, the 
injured or ill employee may seek relief under FELA, which is a fault-
based system and subject to full recovery for compensatory damages. 
Further, railroad employees generally are subject to a federally-
administered sickness program, which provides benefits less generous 
than under some private sector plans. Although it is not readily 
apparent in any quantitative sense how this combination of factors 
influences actual practices with respect to medical advice provided and 
employee decisions to return to work, very clearly the external stimuli 
are different than one would expect to be found in a typical workplace. 
Accordingly, it seems particularly appropriate that the Working Group 
found it wise to adopt a compromise approach that blends the new OSHA 
approach with the traditional emphasis on actual outcomes. The approach 
described above will foster continuity in rail accident/incident trend 
analysis while permitting inter-industry comparability, as well.
2. Changes in the ``Cap'' on Days Away From Work and Days Restricted; 
Including All Calendar Days in the Count of Days Away From Work and 
Days of Restricted Work Activity
    In addition, to conform to OSHA's Final Rule, FRA proposes to amend 
its Guide to lower the maximum number of days away or days of 
restricted work activity that must be reported, from 365 days to 180 
days, and to change the method of counting days away from work and days 
of restricted work activity. The Working Group noted that counting 
calendar days is administratively simpler for employers than counting 
scheduled days of work that are missed. Using this simpler method of 
counting days away from work provides employers who keep records some 
relief from the complexities of counting days away from work under 
FRA's former system. Moreover, the calendar day approach makes it 
easier to compare an injury/illness date with a return-to-work date and 
to compute the difference between those two dates. The calendar method 
also facilitates computerized day counts. In addition, calendar day 
counts will also be a better measure of severity, because they will be 
based on the length of disability instead of being dependent on the 
individual employee's work schedule. Accordingly, FRA proposes to adopt 
OSHA's approach of counting calendar days because this approach is 
easier than the former system and provides a more accurate and 
consistent measure of disability duration resulting from occupational 
injury and illness and thus will generate more reliable data. 
Currently, under FRA's Guide, days away from work and days of 
restricted work activity are counted only if the employee was scheduled 
to work on those days. In the proposed Guide, because it is a preferred 
approach, and to be consistent with OSHA's Final Rule, days away from 
work would include all calendar days, even a Saturday, Sunday, holiday, 
vacation day, or other day off, after the day of the injury and before 
the employee reports to work, even if the employee was not scheduled to 
work on those days.
3. Definitions of ``Medical Treatment'' and ``First Aid''
    FRA's current Guide states what constitutes ``medical treatment'' 
and what constitutes ``first aid'' and how to categorize other kinds of 
treatment. See Guide, Ch. 6, pp. 6-9. As stated in the current Guide, 
``medical treatment'' renders an injury reportable. If an injury or 
illness requires only ``first aid,'' the injury is not reportable, but 
will, instead, be accountable. Under OSHA's Final Rule, a list is 
provided of what constitutes ``first aid.'' 29 CFR 1904.7(b)(5). If a 
particular procedure is not included on that list, and does not fit 
into one of the two categories of treatments that are expressly defined 
as not medical treatment (diagnostic procedures and visits for 
observation or counseling), then the procedure is considered to be 
``medical treatment.'' Id. FRA proposes to amend its regulations and 
Guide to conform to OSHA's definition and new method of categorizing 
what constitutes medical treatment and first aid. Specifically, FRA 
proposes to amend its regulations and the Guide to address the 
following four items:
    a. Counseling. Under FRA's ``definitions'' section of its 
regulations,


[[Page 63034]]


    * * * Medical treatment also does not include preventive 
emotional trauma counseling provided by the railroad's employee 
counseling and assistance officer unless the participating worker 
has been diagnosed as having a mental disorder that was 
significantly caused or aggravated by an accident/incident and this 
condition requires a regimen of treatment to correct.


See Sec.  225.5. Contrarily, under OSHA's Final Rule, ``medical 
treatment does not include: (A) Visits to a physician or other licensed 
health care professional solely for observation or counseling * * *.'' 
Emphasis added. See 29 CFR 1904.7(b)(5)(i). Accordingly, to conform to 
OSHA's Final Rule, FRA proposes to amend its definition of ``medical 
treatment'' to exclude counseling as a type of medical treatment. See 
proposed Sec.  225.5.
    b. Eye patches, butterfly bandages, Steri-Strips\TM\, and similar 
items Under FRA's current Guide, use of an eye patch, butterfly 
bandage, Steri-Strip\TM\, or similar item is considered medical 
treatment, rendering the injury reportable. Under OSHA's Final Rule, 
however, use of an eye patch, butterfly bandage, or Steri-Strip\TM\ is 
considered to be first aid and, therefore, not reportable. In order to 
conform FRA's Guide to OSHA's Final Rule, FRA proposes to amend the 
Guide so that use of an eye patch, butterfly bandage, or Steri-
Strip\TM\ will be considered to be first aid.
    c. Immobilization of a body part Under FRA's current Guide, 
immobilization of a body part for transport purposes is considered 
medical treatment. Given, however, that OSHA's Final Rule considers 
immobilization of a body part for transport to be first aid, FRA 
proposes to amend its Guide so that immobilization of a body part for 
transport would be considered first aid.
    d. Prescription versus non-prescription medication Under FRA's 
current Guide, a doctor's order to take over-the-counter medication is 
not considered medical treatment even if a doctor orders the over-the-
counter medication at prescription strength. Under OSHA's Final Rule, 
however, a doctor's order to take over-the-counter medication at 
prescription strength is considered medical treatment rather than first 
aid. For example, under OSHA's Final Rule, if a doctor orders a patient 
to take simultaneously three 200 mg. tablets of over-the-counter 
Ibuprofen, since 467 mg. of Ibuprofen is considered to be prescription 
strength, this case would be reportable.
    The Working Group struggled with this issue. On the one hand, it is 
a legitimate concern that reportability not be manipulated by 
encouraging occupational clinics to substitute a non-prescription 
medication when a prescription medication is indicated. That result, 
however, may be more humane than a circumstance in which the medical 
provider is encouraged not to order an appropriate dosage.
    Further, in some cases, physicians may direct the use of patent 
medicines simply to save the employee the time to fill a prescription 
or simply to hold down costs to the insurer; and the physician may find 
the over-the-counter preparation to be more suitable in terms of 
formulation, including rate of release and absorption.
    As in the case of recommended days away from work not taken 
(discussed above), the Working Group settled on a compromise position. 
Where the treating health care professional directs in writing the use 
of a non-prescription preparation at a dose at least that of the 
minimum prescribed amount, and no other reporting criteria apply, the 
railroad would report this as a special case (``covered data'' under 
Sec. Sec.  225.5 and 225.39). FRA will explore whether it is practical 
to add to Chapter 6 of the Guide, a list of commonly used over-the-
counter medications, including the prescription strength for those 
medications. This list of over-the-counter medications would conform to 
OSHA's published standards. Future over-the-counter medication added by 
OSHA would be posted on FRA's Web site. The case would be included in 
aggregate data provided to the Department of Labor, but would not be 
included in FRA's periodic statistical summaries. FRA would have the 
data available to reference, and if a pattern of apparent abuse 
emerged, FRA could both examine the working conditions in question and 
also review possible further amendments to these reporting regulations.

K. Proposed Revisions to Chapter 7 of the Guide, ``Rail Equipment 
Accident/Incident Report''

    FRA proposes to amend Chapter 7 of the Guide to include the new 
codes for remote control locomotive operations, and for reporting the 
location of a rail equipment accident/incident using longitude and 
latitude variables.

L. Proposed New Chapter 12 of the Guide on Reporting by Commuter 
Railroads

    FRA has been faced with a number of commuter rail service accident 
reporting issues. For example, in reviewing accident/incident data 
using automated processing routines, FRA could not distinguish Amtrak's 
commuter activities from its intercity service, and could not always 
distinguish between a commuter railroad that ran part of its operation 
and contracted for another part of its operation with a freight 
railroad. FRA developed alternative strategies with the affected 
railroads for collecting these data to ensure that commuter rail 
operation accurately reflected the entire scope of operations, yet did 
not increase the burden of reporting for affected railroads. This issue 
also arose in the context of an NTSB Safety Recommendation, R-97-11, 
following NTSB's investigation of a collision on February 16, 1996, in 
Silver Spring, Maryland, between an Amtrak passenger train and a MARC 
commuter train. During the accident investigation, NTSB requested from 
FRA, a five-year accident history for commuter railroad operations. FRA 
was not, however, able to provide a composite accident history for some 
of the commuter railroad operations because some of the commuter 
operations were operated under contract with Amtrak and other freight 
railroads, and the accident data for some commuter railroads were 
commingled with the data of Amtrak and the other contracted freight 
railroads. Accordingly, NTSB's Safety Recommendation R-97-11 addressed 
to FRA read, ``Develop and maintain separate identifiable data records 
for commuter and intercity rail passenger operations.''
    When the RSAC Task Statement 2001-1 was presented, FRA determined 
that a new chapter in the Guide was needed to address NTSB's and FRA's 
concerns regarding commuter railroad reporting. At the initial May 2001 
meeting, FRA representatives presented the issue to the Working Group. 
FRA representatives were tasked to develop a chapter specifically 
dealing with commuter rail reporting. In the August 2001 Working Group 
meeting, FRA presented a draft of the new chapter. A task group was 
formed that included representatives of Amtrak, Metra, APTA, and FRA. 
The new Chapter 12 was presented in November of 2001 to the entire 
Working Group, and the Working Group accepted the chapter in its 
entirety.

M. Proposed Changes in Reporting of Accidents/Incidents Involving 
Remote Control Locomotives

    An FRA notice entitled, ``Notification of Modification of 
Information Collection Requirements on Remote Control Locomotives,'' 
says that the Special Study Blocks on the rail equipment accident 
report and highway-rail crossing report, as well as special codes in 
the narrative section of

[[Page 63035]]

the ``Injury and Illness Summary Report (Continuation Sheet),'' are for 
only temporary use until part 225 and the Guide are amended. 65 FR 
79915, Dec. 20, 2000. At the November 2001 Working Group meeting, some 
members brought up this statement in FRA's notice and the need to craft 
regular means for reporting accidents/incidents involving remote 
control locomotives (RCL). In response, a special task group was formed 
to study the reporting of RCL-related rail equipment accidents, 
highway-rail crashes, and casualties.
    In December of 2001, the task group initially decided to recommend 
modifying the ``Rail Equipment Accident/Incident Report Form'' (FRA F 
6180.54) and the ``Highway-Rail Grade Crossing Accident/Incident Report 
Form'' (FRA F 6180.57) to add an additional block to capture RCL 
operations, but the task group was not able to reach consensus on the 
``Injury and Illness Summary Report (Continuation Sheet)'' (FRA F 
6180.55a).
    Railroad representatives were concerned about modifying the 
accident/incident database with additional data elements. The FRA 
representatives proposed a new, modified coding scheme that utilized 
the Probable Reason for Injury/Illness Code field in the set of 
Circumstance Codes and also included some additional Event Codes and 
two special Job Codes.
    During a subsequent Working Group meeting, a new element was added 
as Item 30a, ``Remote Control Locomotive,'' on the ``Rail Equipment 
Accident/Incident Report'' form to allow entry of one of four possible 
values:
    ``0''--Not a remotely controlled operation;
    ``1''--Remote control portable transmitter;
    ``2''--Remote control tower operation; and
    ``3''--Remote control portable transmitter--more than one remote 
control transmitter.


For the ``Highway-Rail Grade Crossing Accident/Incident Report'' form 
to capture RCL operations, the ``Rail Equipment Involved'' block would 
be modified to add three additional values:
    ``A''--Train pulling--RCL;
    ``B''--Train pushing--RCL; and
    ``C''--Train standing--RCL.


These recommendations were accepted by the Working Group, as well as 
the changes in the Job Codes and Circumstance Codes for the ``Injury 
and Illness Summary Report (Continuation Sheet).''

N. Proposed Changes in Circumstance Codes (Appendix F of the Guide)

    Prior to 1997, the ``Injury and Illness Summary Report 
(Continuation Sheet)'' contained a field called ``Occurrence Code.'' 
The field attempted to describe what a person was doing at the time the 
person was injured. Often the action of the injured person was the 
same, but the equipment involved was different, so a different 
Occurrence Code was needed for each situation, e.g., person getting off 
locomotive, person getting off freight car, person getting off 
passenger car. Another problem with the Occurrence Code was that the 
code did not provide the information necessary to explain the incident, 
e.g., if the injury was electric shock, the Occurrence Code was ``using 
hand held tools,'' so FRA could not tell from the report if the 
electrical shock was from the hand tool, the third rail, lightning, or 
drilling into a live electric wire.
    To address these concerns, the Occurrence Code field was replaced 
in 1997 with the Circumstance Code field. The change allowed for more 
flexibility in describing what the person was doing when injured. Under 
the broad category of Circumstance Codes, FRA had developed five 
subsets of codes: Physical Act; Location; Event; Tools, Machinery, 
Appliances, Structures, Surfaces (etc.); and Probable Reason for 
Injury/Illness.
    During the next five years, FRA and the railroad reporting officers 
realized that there were still gaps in the codes. FRA proposed 
expanding the list of Circumstance Codes and determined that some 
injuries and fatalities should always be reported using a narrative. 
Also, some Circumstance Codes required the use of narratives. In the 
July 2001 Working Group meeting, the railroads noted that expanded 
Circumstance Codes would assist in reporting and analysis. FRA asked 
the railroads to provide an expanded list of Circumstance Codes for the 
next meeting, with the understanding that a narrative would be required 
when the codes did not adequately describe the incident. By the 
September 2001 meeting, the railroads had produced many new codes, 
which FRA compiled and presented at the November 2001 meeting. At that 
meeting, rail labor discussed RCL reporting. In the January 2002 
Working Group meeting, the members reviewed the compiled list, 
including the special RCL codes. The Working Group made recommendations 
to move some of the codes to other areas. In the March 2002 Working 
Group meeting, a task group was formed to resolve the remaining issues 
with respect to codes. Specifically, the Working Group started by 
referring to proposed codes that pertained to switching operations. 
These codes were Probable Reason codes that came out of a separate FRA 
Working Group on Switching Operations Fatality Analysis (SOFA). The 
task group revised the SOFA codes and added them to Appendix F. The 
entire Working Group then reviewed and voted to approve all of the task 
force's proposed codes.

O. Proposed Changes in Three Forms (Appendix H of the Guide)

    The Working Group converted the Form FRA F 6180.78, ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor [and] Employee Statement 
Supplementing Railroad Accident Report,'' and Form FRA F 6180.81, 
``Employee Human Factor Attachment'' to question-and-answer format, and 
simplified the language so that they are easier to understand. One 
issue raised was whether a specific warning related to criminal 
liability for falsifying the form should be included on the form. Some 
Working Group members believed that a warning would only serve to 
intimidate employees from filling out the form. FRA noted that it was 
important to put the warning on the form to deter employees from 
falsifying information on the forms. FRA also noted that the same 
warning would be included on the form for reporting officers. Given 
that labor representatives felt strongly that the language was too 
intimidating, it was agreed that a general warning would be included on 
the back of the form, and that the warning would not specifically state 
the penalties for falsifying information on the form. In addition, the 
Working Group agreed to propose to modify Form FRA F 6180.98 to include 
an item for the county in which the accident/incident occurred.

P. Miscellaneous Issues Regarding Part 225 of the Guide

1. Longitude and Latitude Blocks for Two Forms
    Following discussions of this issue, the Working Group agreed that 
provision could be made for voluntarily reporting the latitude and 
longitude of a rail equipment accident/incident, a trespasser incident, 
and an employee fatality. FRA proposes to add blocks to the Form FRA F 
6180.54 and Form FRA F 6180.55a for this information. The reason FRA is 
seeking to gather this information is to better determine if there is a 
pattern in the location of

[[Page 63036]]

certain rail equipment accidents/incidents, trespasser incidents, and 
employee fatalities. Geographic information systems under development 
in the public and private sectors provide an increasingly capable means 
of organizing information. Railroads are mapping their route systems, 
and increasingly accurate and affordable Global Positioning System 
(GPS) receivers are available and in widespread use.

2. Train Accident Cause Code ``Under Investigation'' (Appendix C of the 
Guide)

    One of the tasks addressed by the Working Group was to define 
``under investigation'' as that term is used in Cause Code M505, 
``Cause under investigation (Corrected report will be forwarded at a 
later date),'' and to put that definition in Chapter 7 of the Guide, 
under subpart C, ``Instructions for Completing Form FRA F 6180.54,'' 
block 38, ``Primary Cause Code'' and Appendix C of the Guide. 
Currently, many accidents/incidents of a significant nature, e.g., ones 
that are involved in private litigation for many years, are coded as 
``under investigation.'' Even if FRA and the railroad think that they 
know the primary cause of an accident, some railroads will not assign a 
specific cause code to the accident, either for liability reasons, or 
because the railroad or a local jurisdiction, or some other authority 
is still investigating the accident.
    To provide finality to the process of investigating an 
investigation, the Working Group agreed that ``under investigation'' 
would mean under active investigation by the railroad. When the 
railroad has completed its own investigation and received all 
laboratory results the railroad must make a ``good faith'' 
determination of the primary cause of the accident, any contributing 
causes, and their proper codes. The railroad must not wait for FRA or 
NTSB to complete its investigation before assigning a cause code. After 
FRA or NTSB completes its investigation, the railroad may choose to 
amend the cause code on the accident report. Accordingly, FRA proposes 
to revise the Guide to show that the meaning of the cause code in 
question has been changed to ``Cause under active investigation by 
reporting railroad (Amended report will be forwarded when reporting 
railroad's active investigation has been completed).''
    In addition, the Working Group agreed to add a new code ``M507'' to 
denote accidents/incidents in which the investigation is complete but 
the cause of the accident/incident could not be determined. If a 
railroad uses this code, the railroad would be required to include in 
the narrative block, an explanation for why the cause of the accident/
incident could not be determined.
3. ``Most Authoritative'': Determining Work-Relatedness and Other 
Aspects of Reportability
    The duty to report work-related illnesses under the current rule 
has occasioned concern and disagreement about not only whether an 
illness exists, but, more importantly and more controversially, whether 
the illness is work-related. Often an employee's doctor's opinion is 
that an employee's illness is work-related, while the railroad's 
doctor's opinion is that the illness is not work-related. In providing 
guidance in how a reporting officer is to determine whether an illness 
is work-related, OSHA's Final Rule states,

    [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 injury or illness. Work-relatedness is 
presumed for injuries and illnesses resulting from events or 
exposures occurring in the work environment, unless an exception in 
Sec. 1904.5(b)(2) applies.


29 CFR 1904.5(a). In addition, the preamble to OSHA's Final Rule 
states,

    Accordingly, OSHA has concluded that the determination of work-
relatedness is best made by the employer, as it has been in the 
past. Employers are in the best position to obtain the information, 
both from the employee and the workplace, that is necessary to make 
this determination. Although expert advice may occasionally be 
sought by employers in particularly complex cases, the final rule 
provides that the determination of work-relatedness ultimately rests 
with the employer.


66 FR 5950.
    Following publication of this Final Rule, the National Association 
of Manufacturers (NAM) filed a First Amended Complaint challenging 
portions of the Final Rule. As part of the NAM-OSHA settlement 
agreement, published in the Federal Register, the parties agreed to the 
following:

Under this language [29 CFR 1904.5(a)], 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 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.


(Emphasis added.) 66 FR 66944. FRA proposes to conform to this 
language, particularly with respect to making reference to the terms 
``discernable'' and ``significant'' to qualify the type of causation 
and aggravation, respectively. See proposed definition of ``accident/
incident'' and proposed reportability criteria at proposed Sec.  
225.19(d).
    The other part of the problem of determining whether an injury or 
illness is work-related is ``who decides.'' The Working Group proposed 
to adopt OSHA's Final Rule definition of ``most authoritative'' stated 
in OSHA's Final Rule. In the context of discussing how to determine 
whether or not a case is new, OSHA's Final Rule states,

    If you receive recommendations from two or more physicians or 
other licensed health care professionals, you must make a decision 
as to which recommendation is the most authoritative (best 
documented, best reasoned, or most [persuasive]) and record the case 
based upon that recommendation.


29 CFR 1904.6(b)(3). (Note: the preamble to OSHA's Final Rule uses the 
word ``persuasive'' while the rule text uses the word ``authoritative'' 
where FRA put the word ``persuasive'' in brackets. FRA chose to use the 
language from the preamble, instead of that in the rule text, to avoid 
redundancy.)
    The question of who is the ``most authoritative'' physician or 
other licensed health care professional arises in a number of contexts 
when there is a conflict of medical opinion. Conflicting medical 
opinions, often between an employee's physician and a railroad's 
company physician, arise

[[Page 63037]]

regarding whether an injury or illness is work-related, whether and how 
many days away from work an employee needs to recuperate from a work-
related injury or illness, and whether a fatality was work-related, or 
arose from the operation of a railroad. FRA proposes to adopt in its 
Guide OSHA's definition in its Final Rule of ``most authoritative,'' 
and to adopt the language from the NAM-OSHA settlement agreement in 
order to resolve this issue. (See also discussion of FRA review of 
work-relatedness determinations under section ``III.G.2.b.'' of the 
preamble.)
4. Job Title versus Job Function
    An additional issue resolved by the Working Group was to propose to 
amend the Guide's instructions for completing blocks 40-43 of FRA Form 
F6180.54 to make it clear that the job function of the employee, rather 
than the employee's job title, would be used to determine the 
employee's job title for reporting purposes, when the railroad gives 
the employee a job title other than ``engineer,'' ``fireman,'' 
``conductor,'' or ``brakeman.''
5. ``Recording'' versus ``Reporting''
    Under OSHA's Final Rule, the term ``recording'' is used. Under 
FRA's regulations and Guide, the term ``reporting'' is used. Since FRA 
has always used the term ``reporting'' and since one of the statutes 
authorizing part 225 uses the term ``reporting,'' FRA proposes to 
continue to use in its regulations and Guide the term ``reporting'' 
instead of ``recording.'' See 49 U.S.C. 20901(b)(1) (``In establishing 
or changing a monetary threshold for the reporting of a railroad 
accident or incident * * *'')

IV. Section-by-Section Analysis

Section 219.5 Definitions

    For purposes of part 219, ``accident or incident reportable under 
Part 225'' would be defined to exclude a case that is classified as 
``covered data'' under Sec.  225.5 of this chapter (i.e., employee 
injury/illness cases exclusively resulting from a written 
recommendation to the employee by a physician or other licensed health 
care professional for time off when the employee instead returned to 
work, or for a work restriction that was not imposed, or for a non-
prescription medication recommended in writing to be taken at a 
prescription dose, whether or not the medication was taken). The term 
``accident or incident reportable under Part 225'' appears in Sec.  
219.301(b)(2), in the description of an event that authorizes breath 
testing for reasonable cause:

* * * * *
    The employee has been involved in an accident or incident 
reportable under Part 225 of this chapter, and a supervisory 
employee of the railroad has a reasonable belief, based on specific, 
articulable facts, that the employee's acts or omissions contributed 
to the occurrence or severity of the accident or incident;
* * * * *


[Emphasis added.] It should also be noted that Sec.  219.301(b)(2) is 
incorporated by reference in Sec.  219.301(c) as a basis for ``for 
cause drug testing.''
    The definition of ``reportable injury'' would be revised to mean an 
injury reportable under part 225 of this chapter except for an injury 
that is classified as ``covered data'' under Sec.  225.5 of this 
chapter. The term ``reportable injury'' appears in three provisions of 
part 219, each of which describes an event that triggers the 
requirement for post-accident toxicological testing: (i) A ``major 
train accident'' that includes a release of hazardous material lading 
with a ``reportable injury'' resulting from the release; (ii) an 
``impact accident'' involving damage above the current reporting 
threshold and resulting in a ``reportable injury''; and (iii) a 
passenger train accident with a ``reportable injury'' to any person. 
Sec. Sec.  219.201(a)(1)(ii)(B), 219.201(a)(2), and 219.201(a)(4).
    The reason that ``accident or incident reportable under Part 225'' 
and ``reportable injury'' would not, for purposes of part 219, include 
covered data cases is that while these cases are of importance from the 
standpoint of rail safety analysis and therefore reportable, they are, 
nevertheless, comparatively less severe than fatalities, other injuries 
and illnesses and, as such, should not trigger alcohol and drug testing 
or related requirements and sanctions.

Section 225.5 Definitions

    ``Accident/incident'' would be redefined to conform to OSHA's Final 
Rule. Under FRA's current rule, ``accident/incident'' is defined in 
part as,

    (3) Any event arising from the operation of a railroad which 
results in:
    (i) Death to any person;
    (ii) Injury to any person that requires medical treatment;
    (iii) Injury to a railroad employee that results in:
    (A) A day away from work;
    (B) Restricted work activity or job transfer; or
    (C) Loss of consciousness; or
    (4) Occupational illness.


(The designation ``(4)'' in the definition above should read ``(iv).'' 
See Sec.  225.19(d)(3).) The parallel language in FRA's proposed 
definition reads as follows:

    ``Accident/incident'' means:
* * * * *
    (3) Any event or exposure arising from the operation of a 
railroad, if the event or exposure is a discernable cause of any of 
the following, and the following is a new case or a significant 
aggravation of a pre-existing injury or illness:
    (i) Death to any person;
    (ii) Injury to any person that results in medical treatment;
    (iii) Injury to a railroad employee that results in:
    (A) A day away from work;
    (B) Restricted work activity or job transfer; or
    (C) Loss of consciousness;
    (iv) Occupational illness of a railroad employee that results in 
any of the following:
    (A) A day away from work;
    (B) Restricted work activity or job transfer;
    (C) Loss of consciousness; or
    (D) Medical treatment;
    (v) A significant injury to or significant illness of a railroad 
employee diagnosed by a physician or other licensed health care 
professional even if it does not result in death, a day away from 
work, restricted work activity or job transfer, medical treatment, 
or loss of consciousness;
    (vi) An illness or injury that meets the application of the 
following specific case criteria:
    (A) A needlestick or sharps injury to a railroad employee;
    (B) Medical removal of a railroad employee;
    (C) Occupational hearing loss of a railroad employee;
    (D) Occupational tuberculosis of a railroad employee; or
    (E) An occupational musculoskeletal disorder of a railroad 
employee that is independently reportable under one or more of the 
general reporting criteria.

    The phrase ``discernable cause'' would be included in the proposed 
definition, and the words ``or exposure'' would be added before the 
word ``arising.'' The addition of the word ``discernable'' is intended 
to take into account the OSHA-NAM settlement agreement, which also uses 
``discernable'' to describe ``cause.'' As defined in Webster's Third 
New International Dictionary, Unabridged (1971), ``discernable'' means 
``capable of being discerned by the senses or the understanding: 
distinguishable (a trend) (there was the outline of an old trunk-Floyd 
Dell).'' FRA understands why some Working Group members requested this 
change as a matter of conformity and to emphasize that the employer is 
not required to speculate regarding work-relatedness. By the same

[[Page 63038]]

token, FRA emphasizes that when confronted with specific claims 
regarding work-relatedness, it is the employer's responsibility to 
fairly evaluate those claims and opt for reporting if an event, 
exposure, or series of exposures in the workplace likely contributed to 
the cause or significantly aggravated the illness.
    The Working Group agreed that the definition of ``accident/
incident'' also needed to include that the case had to be a new case, 
or a significant aggravation of a pre-existing condition. This 
reference to a ``new case'' was added to conform to Sec.  1904.4 of 
OSHA's Final Rule, and the reference to ``significant'' aggravation of 
a pre-existing condition was added to conform to the OSHA-NAM 
settlement agreement.
    The inclusion of ``death to any person'' would remain the same. 
``[I]njury to any person which requires medical treatment'' would be 
changed to ``Injury to any person that results in medical treatment'; 
no substantive change is proposed. Injury to a railroad employee that 
results in ``(A) A day away from work; (B) Restricted work activity or 
job transfer; or (C) Loss of consciousness' would not change. FRA 
would, however, change the existing rule that all occupational 
illnesses of railroad employees are to be reported and require that 
they be reported only under certain enumerated conditions. This would 
also make it clear that an occupational illness of an employee to a 
contractor to a railroad is not to be reported. Further, FRA proposes 
to add to its criteria for reportability ``significant injuries or 
illnesses,'' ``needlestick or sharps injuries,'' ``medical removal,'' 
``occupational hearing loss,'' ``occupational tuberculosis,'' and an 
independently reportable ``occupational musculoskeletal disorder'' to 
railroad employees to track OSHA's Final Rule. Finally, as previously 
discussed, a three-tier definition of ``event or exposure arising from 
the operation of a railroad'' would be added.
    The definition of ``accountable injury or illness'' would be 
revised by substituting the words ``railroad employee'' for ``railroad 
worker,'' and by adding the word ``discernably'' before the word 
``associated.'' These are technical changes to bring the language into 
conformity with the rest of the regulatory text.
    The definition of ``day away from work'' currently means ``any day 
subsequent to the day of the injury or diagnosis of occupational 
illness that a railroad employee does not report to work for reasons 
associated with his or her condition.'' Sec.  225.5. Under the Guide, 
``If the days away from work were entirely unconnected with the injury 
(e.g., plant closing or scheduled seasonal layoff), then the count can 
cease at this time.'' Guide, Ch. 6, p. 31, question 34. FRA proposes to 
come closer to following OSHA's general recording criteria under 29 CFR 
1904.7 of ``day away from work'' by proposing that the definition be 
``any calendar day subsequent to the day of the injury or the diagnosis 
of the illness that a railroad employee does not report to work, or was 
recommended by a physician or other licensed health care professional 
not to return to work, as applicable, even if the employee was not 
scheduled to work on that day.'' Currently, if a doctor recommends that 
an employee not return to work, but the employee ignores the doctor's 
advice and returns to work anyway, this would not count as a day away 
from work. Under OSHA's Final Rule, however, the reporting entity would 
still have to count all the days the doctor recommended that the 
employee not work. As a compromise, FRA proposes that the railroad 
would have to report one day away from work, even if the employee 
actually returned to work on that day, as discussed previously in the 
preamble. The revision of the definition of ``day away from work'' is 
intended to take into account the new rule for reporting the number of 
days away from work.
    The definition of ``day of restricted work activity'' would be 
revised for the same reason that FRA is proposing to revise the 
definition of ``day away from work.''
    The definition of ``event or exposure arising from the operation of 
a railroad'' would be added to include, (1) with respect to a person 
who is on 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 the activity; (2) 
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 the activity; and (3) with respect 
to a person who is not a railroad employee and not on property owned, 
leased, or maintained by the railroad--(i) a train accident; a train 
incident; a highway-rail crossing accident/incident involving the 
railroad; or (ii) a release of a hazardous material from a railcar in 
the railroad's possession or a release of other dangerous commodity 
that is related to the performance of the railroad's rail 
transportation business. Accordingly, with respect to a person who is 
not a railroad employee and not on property owned, leased, or 
maintained by the railroad, the definition of ``event or exposure 
arising from the operation of a railroad'' is more narrow, covering a 
more limited number of circumstances than for persons who are either on 
railroad property, or for railroad employees whether on or off property 
owned, leased or maintained by the railroad. The justification for 
narrowing the set of circumstances in which a railroad would be 
required to report certain injuries and illnesses for events that occur 
off railroad property is because it is difficult for railroads to know 
about and follow up on injuries to persons who are not railroad 
employees. Even more so for persons who are not employees to 
contractors to a railroad, a reporting railroad would have difficulty 
tracking, for example, a slip and fall case of a passenger, who may 
subsequently seek medical treatment from his or her doctor, but not 
report this to the railroad. Railroads simply have more limited 
opportunity to know about injuries and illnesses to persons other than 
those who are injured on their property or who are employed by the 
railroad. Accordingly, injuries to such persons would not be considered 
for reporting purposes as events or exposures arising from the 
operation of the railroad.
    The definition of ``medical treatment'' would be revised as 
discussed earlier in the preamble, to conform generally to OSHA's new 
definition under 29 CFR 1904.7(b)(5)(i) of ``medical treatment.'' The 
proposed definition reads,

any medical care or treatment beyond ``first aid'' regardless of who 
provides such treatment. Medical treatment does not include 
diagnostic procedures, such as X-rays and drawing blood samples. 
Medical treatment also does not include counseling.


FRA proposes that any type of counseling, in and of itself, is not 
considered to be medical treatment. If, for example, a locomotive 
engineer witnesses a grade crossing fatality and subsequently is 
diagnosed as suffering from Post Traumatic Stress Syndrome as a result 
of the incident, and receives counseling for this, the case is not 
reportable. The only factors that would make the case reportable would 
be if, in addition to the counseling, the employee received 
prescription medication, such as tranquilizers, had a day away from 
work or was placed on restricted work, was transferred to another job, 
or met one of the other criteria for reportability in Sec.  225.19(d). 
In addition to the general objective of

[[Page 63039]]

inter-industry conformity, this change is supported by the absence of 
meaningful interventions available to prevent such disorders. Although 
involvement in highway-rail crossing and trespass casualties is a known 
cause of stress in the railroad industry, FRA and its partners are 
already aware of that fact and are making every effort to prevent these 
occurrences. Further, the industry is actively engaged in preventive 
post-event counseling.
    ``General reportability criteria'' would mean the criteria set 
forth in Sec.  225.19(d)(1)-(5).
    ``Medical removal'' would be defined as it is described in OSHA's 
recording criteria under 29 CFR 1904.9 for medical removal cases. 
``Medical removal'' refers to removing an employee from a work location 
because that location has been determined to be a health hazard. FRA 
proposes that this definition would change automatically if OSHA 
elected to revise its recording criteria.
    ``Needlestick and sharps injury'' and ``new case'' would be defined 
in general conformity with OSHA's definitions of these terms under 29 
CFR 1904.8 and 1904.6, respectively. ``Privacy concern case'' would be 
defined as in 29 CFR 1904.29, except that FRA would categorically 
exclude MSDs from privacy concern cases. As discussed in section 
``III.G.1.,'' above, FRA seeks comment on whether or not FRA should 
adopt this exclusion, especially if OSHA's proposed January 1, 2004, 
delay takes effect, but in either case. FRA also seeks comment on 
whether it should adopt the proposed exclusion of MSDs from privacy 
concern cases as a fixed approach beginning on the effective date of 
FRA's final rule or whether FRA should ``float'' with OSHA, i.e., make 
the existence or nonexistence of the exclusion contingent on OSHA's 
action.
    ``Occupational hearing loss'' would be defined as OSHA currently 
defines it under 29 CFR 1904.10 for calendar year 2002. As discussed in 
section ``III.D.1.,'' above, FRA seeks comment on whether FRA should 
adopt OSHA's new approach for calendar year 2003 as its fixed approach, 
beginning on the effective date of FRA's final rule, or whether FRA 
should diverge from OSHA and continue to enforce OSHA's current 
approach (which was approved by the Working Group and the RSAC and is 
the same as FRA's current approach) as a fixed approach beginning on 
the effective date of FRA's final rule.
    The definition of ``occupational illness'' has been revised to make 
it clear that only certain occupational illnesses of a person 
classified under Chapter 2 of the Guide as a Worker on Duty--Employee 
are to be reported. Contrarily, under the current definition of 
``occupational illness'' other categories of persons, such as Worker on 
Duty--Contractor, are included in the definition, but illnesses to 
those persons are not reportable because Sec.  225.19(d)(4) limits the 
reportability of occupational illnesses to those of ``a railroad 
employee.''
    ``Occupational musculoskeletal disorder'' would be defined 
essentially as it is set forth by OSHA in 29 CFR 1904.12. One of the 
most common forms of occupational musculoskeletal disorder is Carpal 
Tunnel Syndrome and other repetitive motion disorders. Under 1904.12 of 
its January 19, 2001, Final Rule, OSHA defines musculoskeletal 
disorders (MSDs) as:

disorders of the muscles, nerves, tendons, ligaments, joints, 
cartilage and spinal discs. MSDs do not include disorders caused by 
slips, trips, falls, motor vehicle accidents, or other similar 
accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator 
cuff syndrome, De Quervain's disease, Trigger finger, Tarsal tunnel 
syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud's phenomenon, 
Carpet layers knee, Herniated spinal disc, and Low back pain.


66 FR at 6129. See also 66 FR at 52034. However, as noted in the 
overview in Section I of this preamble, OSHA has delayed the effective 
date of this provision from January 1, 2002, to January 1, 2003, and 
has proposed to delay the effective date until January 1, 2004, ``to 
give [OSHA] the time necessary to resolve whether and how MSDs should 
be defined for recordkeeping purposes.'' See 67 FR 44125. As the issue 
of OSHA's proposed delay of this provision was not before the Working 
Group when consensus was reached, FRA seeks comment on whether or not 
FRA should still adopt the above definition of MSDs if OSHA's proposed 
January 1, 2004, delay takes effect. If FRA goes forth with the 
provision as approved by the Working Group, FRA would be adopting the 
definition in advance of OSHA's defining of the term, a result that may 
not have been contemplated by the Working Group when it agreed to 
follow OSHA on this issue prior to the issuance of the proposed delay. 
See discussion concerning reporting criteria for MSDs at section 
III.D.1 of the preamble, above. Even if OSHA chooses not to delay the 
effective date of this provision, FRA seeks comment on whether or not 
we should even adopt OSHA's definition for calendar year 2003, since it 
states that there are no special criteria beyond the general recording 
criteria for determining which MSDs to record and because OSHA's 
definition appears to be used primarily as guidance for when to check 
the MSD column on the 300 Log. See 66 FR 6129-6130. Note that choosing 
to exclude this definition from FRA's final rule would not affect an 
employer's obligation to report work-related injuries and illnesses 
involving muscles, nerves, tendons, ligaments, joints, cartilage and 
spinal discs in accordance with the requirements applicable to any 
injury or illness. If the definition of MSD were to be omitted from the 
Final Rule, this difference would be discussed in the MOU. FRA also 
seeks comment on whether or not this definition should ``float'' with 
OSHA's. See discussion of ``float'' vs. ``fixed'' at section III.D.1 of 
the preamble, above.
    ``Occupational tuberculosis'' would be defined in general 
conformity with OSHA's recording criteria under 29 CFR 1904.11 for 
work-related tuberculosis cases. The word ``occupational'' would be 
included in the term because the term is intended to cover only the 
occupational illness and it would be confusing to define simply 
``tuberculosis'' when the unmodified term would seem to call for 
medical definition of tuberculosis in general.
    ``Significant change in the number of reportable days away from 
work'' would be defined as a ten-percent or greater change in the 
number of days away from work that the railroad would have to report. 
FRA decided on ten percent as the threshold so that railroads would not 
have to submit amended reports for de minimis changes in data. For 
example, if a railroad estimated that an employee would be away from 
work for 30 days and reported the 30-day estimate to FRA, and the 
employee was actually away from work for 32 days, the railroad would 
not have to amend its accident report to reflect this change. Moreover, 
FRA uses a ten-percent threshold for amending rail equipment accident 
reports. Specifically, if a railroad estimates the damage from a rail 
equipment accident to be $7,000, a railroad need not amend that report 
unless the actual damage exceeds $7,700. If on the other hand, the 
actual damage is less than the reporting threshold, but less than ten 
percent difference from the estimate, the railroad would be allowed to 
amend the report to indicate that the incident was not a reportable 
accident. For example, in the scenario above, if the actual damage was 
$6,400 (less than 10-percent difference from the $7,000 estimate), the 
railroad would nevertheless be permitted not to report the incident. 
While the ten-percent threshold is currently in Chapter 6 of the Guide, 
FRA proposes to create a

[[Page 63040]]

definition in the regulatory text since the General Accounting Office 
recommended that FRA define this term.
    For clarification of the terms ``Significant illness'' and 
``Significant injury'', see discussion earlier in section ``III.D.1.'' 
of the preamble, above.

Section 225.9 Telephonic Reports of Certain Accidents/Incidents and 
Other Events

    Currently, Sec.  225.9 requires a railroad to report immediately by 
telephone any accident/incident arising from the operation of the 
railroad that results in the death of a railroad employee or railroad 
passenger or the death or injury of five or more persons. FRA proposes 
an amendment to this section, as recommended by the Working Group, to 
add new circumstances under which a railroad is to telephonically 
report and to clarify existing procedures for telephonic reporting of 
the expanded list of events.
    Proposed subsection (a) lists the events that a railroad would be 
required to report telephonically. In proposed subsection (a)(1), 
``Certain deaths or injuries,'' FRA proposes that each railroad must 
report immediately, whenever it learns of the occurrence of an 
accident/incident that arose from the operation of the railroad, or an 
event or exposure that may have arisen from the operation of the 
railroad, that has certain specified consequences. FRA proposes to use 
the phrase ``may have arisen'' in the proposed regulatory text, instead 
of keeping the current language ``arising from the operation of a 
railroad,'' because a railroad may not learn for some time that a 
particular event in fact arose from the operation of the railroad. By 
stating that a railroad must report an event that ``may'' have arisen 
from the operation of the railroad, FRA is assured to capture a broader 
group of cases. For example, if a railroad employee dies of a heart 
attack on the railroad's property, the railroad may not know for weeks, 
following a coroner's report, what the cause of death was, and whether 
the death was work-related. This case might not get immediately 
reported because the railroad did not immediately learn that the death 
arose out of the operation of a railroad. Under the proposed change, if 
the death ``may'' have arisen out of the operation of the railroad, the 
case would be immediately reported, permitting FRA to commence its 
investigation in a timely manner. Even when death is ultimately 
determined to be caused by a coronary event, for instance, it is 
appropriate to inquire whether unusual workplace stressors (e.g., 
extreme heat, excessive physical activity without relief) may have 
played a role in causing the fatality. In addition, under subsection 
(a)(1), FRA would add the death of an employee of a contractor to a 
railroad performing work for the railroad on property owned, leased, or 
maintained by the contracting railroad as a new category for telephonic 
reporting.
    In proposed subsection (a)(2), FRA would capture certain train 
accidents or train incidents, even if death or injury does not 
necessarily occur as a result of the accident or incident. Currently, 
FRA does not require telephonic reporting of certain train accidents or 
train incidents per se, but requires that they be reported only if they 
result in death of a rail passenger or employee, or death or injury of 
five or more persons. Accordingly, FRA proposes that railroads 
telephonically report immediately, whenever it learns of the occurrence 
of any of the following events:

    (i) A train accident that results in serious injury to two or 
more train crewmembers or passengers requiring admission to a 
hospital;
    (ii) A train accident resulting in evacuation of a passenger 
train;
    (iii) A fatality at a highway-rail grade crossing as a result of 
a train accident or train incident;
    (iv) A train accident resulting in damage (based on a 
preliminary gross estimate) of $150,000, to railroad and nonrailroad 
property; or
    (v) A train accident resulting in damage of $25,000 or more to a 
passenger train and railroad and nonrailroad property.

    In proposed subsection (a)(3), FRA would require telephonic 
reporting of incidents in which reportable derailment or collision 
occurs on, or fouls, a line used for scheduled passenger service. This 
final provision would permit more timely initiation of investigation in 
cases where the underlying hazards involved could threaten the safety 
of passenger operations.
    For clarification of other aspects of this proposed section, see 
discussion at section ``III.C.'' of this preamble, above.

Section 225.19 Primary Groups of Accidents/Incidents

    FRA proposes to amend subsection (d), ``Group III, ``Death, injury, 
occupational illness.'' See prior discussion in section-by-section 
analysis of the definition of ``accident/incident'' and ``event or 
exposure arising from the operation of a railroad.'' Proposed 225.5.

Section 225.23 Joint Operations

    FRA proposes to make technical amendments to Sec.  225.23(a) simply 
to bring it into conformity with the rest of the proposed regulatory 
text.

Section 225.25 Recordkeeping

    FRA proposes to amend this section by revising subsection 
225.25(h)(15) to apply to ``privacy concern cases.'' Accordingly, under 
the proposed subsection, a railroad is permitted not to post 
information on an occupational injury or illness that is a ``privacy 
concern case.'' ``Privacy concern case'' would be defined in proposed 
Sec.  225.5.

Section 225.39 FRA Policy Statement on Covered Data

    In connection with the requirements for reporting employee illness/
injury cases exclusively resulting from a written recommendation of a 
physician or other licensed health care provider (POLHCP) for time off 
when the employee instead returned to work, or a written recommendation 
for a work restriction that was not imposed, and in connection with the 
provision for special reporting of cases exclusively resulting from the 
direction of a POLHCP in writing to take a non-prescription medication 
at prescription dose, FRA proposes to express its policy that these 
cases would not be included in FRA's regular statistical summaries. The 
data are requested by the Department of Labor to ensure comparability 
of employment-related safety data across industries. The data may also 
be utilized for other purposes as the need arises, but they would not 
be reported in FRA's periodic statistical summaries for the railroad 
industry.

Section 240.117 Criteria for Consideration of Operating Rules 
Compliance Data

    FRA proposes a minor change to its locomotive engineer 
qualifications regulations, which uses a term from part 225. In 
particular, Sec.  240.117(e)(2) of the locomotive engineer 
qualifications regulations defines one of the types of violations of 
railroad rules and practices for the safe operation of trains that is a 
basis for decertifying a locomotive engineer: failures to adhere to the 
conditional clause of a restricted speed rule ``which cause reportable 
accidents or incidents under part 225 of this chapter. * * *'' This 
proposed amendment would create an exception for accidents or incidents 
that are classified as ``covered data'' under proposed part 225. 
``Covered data'' would be defined as accidents or incidents that are 
reportable only because a physician or other licensed health care 
professional recommended in writing that a railroad employee take one 
or more days away from work, that

[[Page 63041]]

the employee's work activity be restricted for one or more days, or 
that the employee take over-the-counter medication at a dosage equal to 
or greater than the minimum prescription strength, whether or not the 
medication is taken. The reason that ``covered data'' would be excluded 
as a partial basis for decertification under Sec.  240.117(e)(2) is 
that the injuries and illnesses associated with ``covered data'' cases 
are comparatively less severe than other types of injuries and 
illnesses, and, as such, when coupled with a violation of restricted 
speed, should not trigger a decertification hearing under part 240.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may 
also be obtained by submitting a written request to the FRA Docket 
Clerk at Office of Chief Counsel, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590. Access to the docket may 
also be obtained electronically through the Web site for the DOT Docket 
Management System at http://dms.dot.gov. FRA invites comments on this 
regulatory evaluation.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of costs and a qualitative discussion of the 
benefits expected from the adoption of this proposed rule. Over a 20-
year period, the Present Value (PV) of the estimated costs is $410 
thousand, and the PV of the estimated benefits is $612 thousand.
    The major costs anticipated from adopting this proposed rule 
include those incurred in complying with additional OSHA-conformity 
reporting requirements, such as the covered data cases. Additional 
reporting burdens will also occur from an increase in telephonic 
reporting, and from the reporting of claimed occupational illnesses 
cases by railroads. Finally, there are costs associated with the 
familiarization of the railroad reporting officers with the revised 
Guide, and for revisions to FRA and railroad electronic reporting 
systems and databases.
    The major benefits anticipated from implementing this proposed rule 
include savings from a simplification in the reporting of occupational 
injuries due to a new definition of ``first aid.'' This benefit will 
produce a savings in the decision making process for both reportable 
injuries and accountable injuries. Additional savings would also occur 
from a reduction in the average burden time to complete a Rail 
Equipment Accident/Incident Report. This savings is largely a product 
of a revision to the train accident cause codes. The revised casualty 
circumstance codes would produce a savings from a reduction in the use 
of the narrative block on the railroad injury and illness reports. 
Finally, railroads should receive a savings from a simplification in 
counting the number of days away from work or of restricted work 
activity. This includes a savings due to a reduction from 365 to 180 
days for the maximum number of days that the railroads would have to 
track and report injuries and illnesses. FRA also anticipates that 
there would also be qualitative benefits from this rulemaking from 
better data or information on railroad reports, and the increased 
utility that the additional data codes would provide to future 
analysis.

B. Regulatory Flexibility Act of 1980 and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
a Federal agency to review its proposed and final rules in order to 
assess their impact on small entities (small businesses, small 
organizations, and local governments). If the agency determines that 
its proposed rule would have a significant economic impact on a 
substantial number of small entities, then the agency must prepare an 
Initial Regulatory Flexibility Analysis (IRFA). If the agency 
determines the opposite, then the agency must certify that 
determination; an IRFA may also provide the basis for the agency's 
determination that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The Small Business Administration 
(SBA) stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity'' is 1,500 employees for ``Line-Haul Operating'' 
Railroads, and 500 employees for ``Switching and Terminal 
Establishments.'' SBA's ``size standards'' may be altered by Federal 
agencies on consultation with SBA and in conjunction with public 
comment. Pursuant to Section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published 
an interim policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. 62 FR 43024, Aug. 11, 1997. Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment. See 49 CFR Part 
1201. The same dollar limit on revenues is established to determine 
whether a railroad shipper or contractor is a small entity. FRA 
proposes to use this alternative definition of ``small entity'' for 
this rulemaking. Since this is still considered to be an alternative 
definition, FRA is using this definition in consultation with the 
Office of Advocacy, SBA, and therefore requests public comment on its 
use.
    Like the Regulatory Flexibility Act of 1980, a recently published 
executive order also establishes rulemaking procedures related to small 
entities. Executive Order 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking,'' requires in part that a Federal agency 
notify the Chief Counsel for Advocacy of the SBA of any of its draft 
rules that would have a significant economic impact on a substantial 
number of small entities, to consider any comments provided by the SBA, 
and to include in the preamble to the final rule the agency's response 
to any written comments by the SBA unless the agency head certifies 
that including such material would not serve the public interest. 67 FR 
53461 (Aug. 16, 2002).
    In accordance with the Regulatory Flexibility Act of 1980, FRA has 
prepared and placed in the docket an IRFA, which assesses the small 
entity impact of this proposed rule. Document inspection and copying 
facilities are available at 1120 Vermont Avenue, NW., 7th Floor, 
Washington, DC 20590. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590; please refer to Docket No. FRA-2002-13221, Notice 
No. 1.
    As stated in the IRFA, FRA has determined that there are over 650 
small railroads that could potentially be affected by this proposal; 
however, the

[[Page 63042]]

frequency of accidents/incidents, and therefore reporting burden, is 
generally proportional to the size of the railroad. A railroad that 
employs thousands of employees and operates trains millions of miles is 
exposed to greater risks than one whose operation is substantially 
smaller, all other things being equal. For example, in 1998, only 327 
railroads reported one or more casualties.
    The economic impacts from this proposed regulation are primarily a 
result of an increase in casualty reporting due to the reporting of 
some casualties, due to OSHA recordkeeping requirements which this 
rulemaking is adopting into FRA reporting requirements. In addition, 
the railroad industry will incur small burdens for an increase in 
telephonic reporting of some accident/incidents, and for modifications 
made to computer software and databases, however, FRA does not 
anticipate that any of these burdens will be imposed on small entities 
due to the decreased likelihood of a casualty occurring on a small 
railroad. The computer-based burdens are not expected to impact small 
entities either since most small railroads report using personal 
computer (PC)-based software provided by FRA. It is estimated by FRA 
that small entities will incur five percent or less of the total costs 
for this proposed rulemaking.
    It is important to note that this proposed rule would also reduce 
recordkeeping burdens by simplifying the method used to count employee 
absences and work restrictions, and by reducing the requirement to keep 
track of lengthy employee absences. The proposed rule would also 
simplify reporting requirements with clarifying definitions for things 
such as ``medical treatment'' and ``first aid.'' Train accident cause 
codes and injury occurrence codes would be added, so that accident and 
injury data would be more precise and the need for some narratives 
would be eliminated.
    This proposed rule would not provide alternative treatment for 
small entities in the regulation or reporting requirements. However, 
small railroads that report using PC-based software will not be 
burdened with any costs for modifying or changing the software, since 
FRA provides this software free to all railroads that utilize it. It is 
important to note that just by the fact that small railroads report 
fewer accidents/incidents and casualties, they are less likely to be 
burdened by the proposed rule.
    The IRFA concludes that this proposed rule would not have a 
significant economic impact on a substantial number of small entities; 
therefore, FRA certifies that this proposed rule is not expected to 
have a significant economic impact on a substantial number of small 
entities. For the same reason, consistent with Executive Order 13272, 
the draft rule has not been submitted to the SBA. However, FRA will 
consider any comments submitted by the SBA in developing the final 
rule. In order to determine the significance of the economic impact for 
the final rule's Regulatory Flexibility Assessment (RFA), FRA invites 
comments from all interested parties concerning the potential economic 
impact on small entities caused by this proposed rule. The Agency will 
consider the comments and data it receives--or lack of comments and 
data--in making a decision on the RFA for the final rule.

C. Paperwork Reduction Act of 1995

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

----------------------------------------------------------------------------------------------------------------
                                                                                                         Total
                                  Respondent       Total annual    Average time per    Total annual      annual
     CFR Section--49 CFR           universe          responses         response        burden hours      burden
                                   responses                                                              cost
----------------------------------------------------------------------------------------------------------------
225.9--Telephone Reports--     685 railroads...  500 Reports.....  15 minutes......  125 hours.......     $5,250
 Certain Accidents/Incidents
 and Other Events.
225.11--Reporting of Rail      685 railroads...  3,000 forms.....  2 hours.........  6,000 hours.....   $252,000
 Equipment Accidents/
 Incidents (Form FRA F
 6180.54).
225.12(a)--Rail Equipment      685 railroads...  1,000 forms.....  15 minutes......  250 hours.......    $10,500
 Accident/Incident Reports--
 Human Factor (Form FRA F
 6180.81).
225.12(b)--Rail Equipment      685 railroads...  8,200             10 minutes and 3  527 hours.......    $22,134
 Accident/Incident Repots--                       notices+copies.   minutes.
 Human Factor (Part 1, Form
 FRA F 6180.78).
225.12(c)--Rail Equipment      685 railroads...  100 requests....  20 minutes......  33 hours........     $1,386
 Accident/Incident Reports--
 Human Factor--Joint
 Operations.
225.12(d)--Rail Equipment      685 railroads...  20                15 minutes......  10 hours........       $420
 Accident/Incident Reports--                      attachments+20
 Human Factor--Late                               notices.
 Identification.
225.12(e)--Rail Equipment      685 railroads...  75 statements...  1.5 hours.......  113 hours.......     $2,938
 Accident/Incident Reports--
 Human Factor--Employee
 Supplement (Part II, Form
 FRA F 6180.78).
225.12(f)--Rail Equipment      Railroad          10 letters......  2 hours.........  20 hours........       $520
 Accident/Incident Reports--    Employees.
 Human Factor--Employee
 Confidential Letter.
225.13--Amended Rail           685 railroads...  10 amended        1 hour+3 minutes  11 hours........       $462
 Equipment Accident/Incident                      reports/20
 Reports.                                         copies.
225.17--Doubtful Cases;        685 railroads...  80 reports......  30 minutes......  40 hours........     $1,680
 Alcohol/Drug Involvement.
    --Appended Reports.......  685 railroads...  5 reports.......  30 minutes......  3 hours.........       $126
225.19--Highway-Rail Grade     685 railroads...  3,400 forms.....  2 hours.........  6,800 hours.....   $285,600
 Crossing Accident/Incident
 Reports (Form FRA F 6180.57).

[[Page 63043]]

 
    --Death, Injury, or        685 railroads...  13,200 forms....  20 minutes......  4,400 hours.....   $184,800
     Occupational Illness
     (Form FRA F 6180.55a).
225.21 Forms:
    --Form FRA F 6180.55--     685 railroads...  8,220 forms.....  10 minutes......  1,370 hours.....    $57,540
     Railroad Injury/Illness
     Summary.
    --Form FRA 6180.56--       685 railroads...  685 forms.......  15 minutes......  171 hours.......     $7,182
     Annual Report of
     Manhours By State.
    --Form FRA F 6180.98--RR   685 railroads...  18,000 forms....  1 hour..........  18,000 hours....   $756,000
     Employee Injury and/or
     Illness Record.
    --Form FRA F 6180.98--     685 railroads...  540 copies......  2 minutes.......  18 hours........       $756
     Copies.
    --Form FRA F 6180.97--     685 railroads...  13,000 forms....  30 minutes......  6,500 hours.....   $273,000
     Initial Rail Equipment
     Accident/Incident Record.
225.25--Posting of Monthly     685 railroads...  8,220 lists.....  16 minutes......  2,191 hours.....    $92,064
 Summary.
225.27--Retention of Records.  685 railroads...  1,900 records...  2 minutes.......  63 hours........     $2,646
225.33--Internal Control       685 railroads...  60 amendments...  14 hours........  840 hours.......    $35,280
 Plans--Amended.
225.35--Access to Records and  15 railroads....  400 lists.......  20 minutes......  133 hours.......     $5,586
 Reports--Lists.
    --Subsequent Years.......  4 railroads.....  16 lists........  20 minutes......  5 hours.........       $210
225.37--Magnetic Media         8 railroads.....  96 transfers....  10 minutes......  16 hours........       $672
 Transfers.
    --Batch Control (Form FRA  685 railroads...  200 forms.......  3 minutes.......  10 hours........       $420
     F 6180.99).
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning the following issues: 
whether these information collection requirements are necessary for the 
proper performance of the functions of FRA, including whether the 
information has practical utility; the accuracy of FRA's estimates of 
the burden of the information collection requirements; the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized. For information or a 
copy of the paperwork package submitted to OMB, contact Mr. Robert 
Brogan at 202-493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 17, Washington, DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, entitled, ``Federalism,'' issued on August 
4, 1999, requires that each agency ``in a separately identified portion 
of the preamble to the regulation as it is to be issued in the Federal 
Register, provide to the Director of the Office of Management and 
Budget a federalism summary impact statement, which consists of a 
description of the extent of the agency's prior consultation with State 
and local officials, a summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation, and a 
statement of the extent to which the concerns of the State and local 
officials have been met * * *.''
    When issuing the proposed rule in this proceeding, FRA has adhered 
to Executive Order 13132. FRA engaged in the required Federalism 
consultation during the early stages of the rulemaking through meetings 
of the full RSAC, on which several representatives of groups 
representing State and local officials sit. To date, FRA has received 
only one concern about the Federalism implications of this rulemaking 
from these representatives, regarding whether or not FRA's notification 
requirements would preempt State accident notification requirements. 
Although our regulations under part 225 preempt States from prescribing 
accident/incident reporting requirements, there is nothing in our 
regulations that preempts States from having their own, perhaps even 
different, accident notification requirements:

    Issuance of these regulations under the federal railroad safety 
laws and regulations preempts States from prescribing accident/
incident reporting requirements. Any State may, however, require 
railroads to submit to it copies of accident/incident and injury/
illness reports filed with FRA under this part, for accident/
incidents and injuries/illnesses which occur in that State.


49 CFR 225.1. FRA does not propose to change this provision that a 
State may require a railroad to submit to the State copies of reports 
required by part 225 regarding accidents in the State.
    Additionally, section 20902 of title 49 of the United States Code, 
which authorizes the Secretary of Transportation to investigate certain 
accidents and incidents, provides: ``[i]f the accident or incident is 
investigated by a commission of the State in which it occurred, the 
Secretary, if convenient, shall carry out the investigation at the same 
time as, and in coordination with, the commission's investigation.'' 
This section contemplates that States have an

[[Page 63044]]

interest in carrying out simultaneous investigations in coordination 
with the Secretary, where convenient. It would be consistent with this 
interest to permit States to adopt their own accident notification 
requirements so as to allow a prompt, and perhaps coordinated, 
investigation. Accordingly, FRA believes that it has satisfied the 
Executive Order.

E. Environmental Impact

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

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


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

F. Unfunded Mandates Reform Act of 1995

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

G. Energy Impact

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

List of Subjects

49 CFR Part 219

    Alcohol abuse, Drug abuse, Drug testing, Penalties, Railroad 
safety, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 225

    Accident investigation, Penalties, Railroad safety, Railroads, 
Reporting and recordkeeping requirements.

49 CFR Part 240

    Administrative practice and procedure, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
Chapter II, Subtitle B of Title 49, Code of Federal Regulations, as 
follows:

PART 219--[AMENDED]

    1. The authority citation for part 219 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49(m).
    2. Section 219.5 is amended by adding a definition of Accident or 
incident reportable under part 225 of this chapter and revising the 
definition of Reportable injury to read as follows:


Sec.  219.5  Definitions.

* * * * *
    Accident or incident reportable under part 225 of this chapter does 
not include a case that is classified as ``covered data'' under Sec.  
225.5 of this chapter (i.e., employee injury/illness cases exclusively 
resulting from a written recommendation to the employee by a physician 
or other licensed health care professional for time off when the 
employee instead returned to work, for a work restriction that was not 
imposed, or for a non-prescription medication at prescription strength, 
whether or not the medication was taken).
* * * * *
    Reportable injury means an injury reportable under part 225 of this 
chapter except for an injury that is classified as ``covered data'' 
under Sec.  225.5 of this chapter (i.e., employee injury/illness cases 
exclusively resulting from a written recommendation to the employee by 
a physician or other licensed health care professional for time off 
when the employee instead returned to work, for a work restriction that 
was not imposed, or for a non-prescription medication at prescription 
strength, whether or not the medication was taken).
* * * * *

PART 225--[AMENDED]

    3. The authority citation for part 225 is revised to read as 
follows:

    Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 
21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
    4. Section 225.5 is amended as follows:
    a. By revising paragraph (3) of the definition of the term 
Accident/incident.
    b. By revising the definitions of the terms Accountable injury or 
illness, Day

[[Page 63045]]

away from work, Day of restricted work activity, Medical treatment, and 
Occupational illness;
    c. By removing the term Arising from the operation of a railroad 
and its definition, and;
    d. By adding definitions of Covered data, Event or exposure arising 
from the operation of a railroad, General reporting criteria, Medical 
removal, Musculoskeletal disorder, Needlestick or sharps injury, New 
case, Occupational hearing loss, Occupational tuberculosis, Privacy 
concern case, Significant change in the number of reportable days away 
from work, Significant illness, and Significant injury.
    The revised and added text reads as follows:


Sec.  225.5  Definitions.

* * * * *
    Accident/incident means:
    * * *
    (3) Any event or exposure arising from the operation of a railroad, 
if the event or exposure is a discernable cause of one or more of the 
following, and the following is a new case or a significant aggravation 
of a pre-existing injury or illness:
    (i) Death to any person;
    (ii) Injury to any person that results in medical treatment;
    (iii) Injury to a railroad employee that results in:
    (A) A day away from work;
    (B) Restricted work activity or job transfer; or
    (C) Loss of consciousness;
    (iv) Occupational illness of a railroad employee that results in 
any of the following:
    (A) A day away from work;
    (B) Restricted work activity or job transfer;
    (C) Loss of consciousness; or
    (D) Medical treatment;
    (v) Significant injury to or significant illness of a railroad 
employee diagnosed by a physician or other licensed health care 
professional even if it does not result in death, a day away from work, 
restricted work activity or job transfer, medical treatment, or loss of 
consciousness;
    (vi) Illness or injury that meets the application of the following 
specific case criteria:
    (A) Needlestick or sharps injury to a railroad employee;
    (B) Medical removal of a railroad employee;
    (C) Occupational hearing loss of a railroad employee;
    (D) Occupational tuberculosis of a railroad employee; or
    (E) Musculoskeletal disorder of a railroad employee that is 
independently reportable under one or more of the general reporting 
criteria.
    Accountable injury or illness means any condition, not otherwise 
reportable, of a railroad employee that is discernably caused by an 
event, exposure, or activity in the work environment which condition 
causes or requires the railroad employee to be examined or treated by a 
qualified health care professional.
* * * * *
    Covered data means a case involving an employee of a railroad that 
is reportable exclusively because a physician or other licensed health 
care professional recommended in writing that--
    (1) The employee take one or more days away from work when the 
employee instead returned to work;
    (2) The employee's work activity be restricted for one or more days 
when the work restriction was not imposed; or
    (3) The employee take over-the-counter medication at a dosage equal 
to or greater than the minimum prescription strength, whether or not 
the employee takes the medication.
    Day away from work means any calendar day subsequent to the day of 
the injury or the diagnosis of the illness that a railroad employee 
does not report to work, or was recommended by a physician or other 
licensed health care professional not to return to work, as applicable, 
for reasons associated with the employee's condition even if the 
employee was not scheduled to work on that day.
    Day of restricted work activity means any calendar day that an 
employee is restricted in his or her job following the day of the 
injury or the diagnosis of the illness, or was recommended by a 
physician or other licensed health care professional not to return to 
work, as applicable, for reasons associated with the employee's 
condition if the work restriction affects one or more of the employee's 
routine job functions or from working the full workday that the 
employee would otherwise have worked. An employee's routine job 
functions are those work activities that the employee regularly 
performs at least once per week.
* * * * *
    Event or exposure arising from the operation of a railroad 
includes--
    (1) With respect to a person who is on 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 the activity;
    (2) 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 the activity; and
    (3) With respect to a person who is not an employee of the railroad 
and not on property owned, leased, or maintained by the railroad--an 
event or exposure directly resulting from the following railroad 
operations:
    (i) A train accident, a train incident, or a highway-rail crossing 
accident or incident involving the railroad; or
    (ii) A release of a hazardous material from a railcar in the 
possession of the railroad or of another dangerous commodity that is 
related to the performance of the railroad's rail transportation 
business.
* * * * *
    General reporting criteria means the criteria listed in Sec.  
225.19(d)(1), (2), (3), (4), and (5).
* * * * *
    Medical removal means medical removal under the medical 
surveillance requirements of an Occupational Safety and Health 
Administration standard in 29 CFR part 1910, even if the case does not 
meet one of the general reporting criteria.
    Medical treatment means any medical care or treatment beyond 
``first aid'' regardless of who provides such treatment. Medical 
treatment does not include diagnostic procedures, such as X-rays and 
drawing blood samples. Medical treatment also does not include 
counseling.
    Musculoskeletal disorder (MSD) means a disorder of the muscles, 
nerves, tendons, ligaments, joints, cartilage, and spinal discs. The 
term does not include disorders caused by slips, trips, falls, motor 
vehicle accidents, or other similar accidents. Examples of MSDs 
include: Carpal tunnel syndrome, Rotator cuff syndrome, De Quervain's 
disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, 
Epicondylitis, Tendinitis, Raynaud's phenomenon, Carpet layers knee, 
Herniated spinal disc, and Low back pain.
    Needlestick or sharps injury means a cut, laceration, puncture, or 
scratch from a needle or other sharp object that involves contamination 
with another person's blood or other potentially infectious material, 
even if the case does not meet one of the general reporting criteria.
    New case means a case in which either the employee has not 
previously experienced a reported injury or illness of the same type 
that affects the same part of the body, or the employee previously 
experienced a reported

[[Page 63046]]

injury or illness of the same type that affected the same part of the 
body but had recovered completely (all signs had disappeared) from the 
previous injury or illness and an event or exposure in the work 
environment caused the signs or symptoms to reappear.
* * * * *
    Occupational hearing loss means a diagnosis of occupational hearing 
loss by a physician or other licensed health care professional, under 
the criteria established by the Occupational Safety and Health 
Administration in 29 CFR 1904.10 for calendar year 2002, even if the 
case does not meet one of the general reporting criteria.
    Occupational illness means any abnormal condition or disorder, as 
diagnosed by a physician or other licensed health care professional, of 
any person who falls under the definition for the classification of 
Worker on Duty--Employee, other than one resulting from injury, 
discernably caused by an environmental factor associated with the 
person's railroad employment, including, but not limited to, acute or 
chronic illnesses or diseases that may be caused by inhalation, 
absorption, ingestion, or direct contact.
    Occupational tuberculosis means the occupational exposure of an 
employee to anyone with a known case of active tuberculosis if the 
employee subsequently develops a tuberculosis infection, as evidenced 
by a positive skin test or diagnosis by a physician or other licensed 
health care professional, even if the case does not meet one of the 
general reporting criteria.
* * * * *
    Privacy concern case is any occupational injury or illness, other 
than a musculoskeletal disorder, in the following list:
    (1) Any injury or illness to an intimate body part or the 
reproductive system;
    (2) An injury or illness resulting from a sexual assault;
    (3) Mental illnesses;
    (4) HIV infection, hepatitis, or tuberculosis;
    (5) Needlestick and sharps injuries; and
    (6) Other illnesses, if the employee independently and voluntarily 
requests in writing to the railroad reporting officer that his or her 
injury or illness not be posted.
* * * * *
    Significant change in the number of reportable days away from work 
means at least a ten-percent increase in the number of reportable days 
away from work compared to the number of reportable days away from work 
actually reported.
    Significant illness means an illness involving cancer or a chronic 
irreversible disease such as byssinosis or silicosis, if the disease 
does not result in death, a day away from work, restricted work, job 
transfer, medical treatment, or loss of consciousness.
    Significant injury means an injury involving a fractured or cracked 
bone or a punctured eardrum, if the injury does not result in death, a 
day away from work, restricted work, job transfer, medical treatment, 
or loss of consciousness.
* * * * *
    5. Section 225.9 is revised to read as follows:


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

    (a) Types of accidents/incidents and other events to be reported. 
(1) Certain deaths or injuries. Each railroad must report immediately, 
as prescribed in paragraphs (b) through (d) of this section, whenever 
it learns of the occurrence of an accident/incident arising from the 
operation of the railroad, or an event or exposure that may have arisen 
from the operation of the railroad, that results in the--
    (i) Death of a rail passenger or a railroad employee;
    (ii) Death of an employee of a contractor to a railroad performing 
work for the railroad on property owned, leased, or maintained by the 
contracting railroad; or
    (iii) Death or injury of five or more persons.
    (2) Certain train accidents or train incidents. Each railroad must 
report immediately, as prescribed in paragraphs (b) through (d) of this 
section, whenever it learns of the occurrence of any of the following 
events that arose from the operation of the railroad:
    (i) A train accident that results in serious injury to two or more 
train crewmembers or passengers requiring their admission to a 
hospital;
    (ii) A train accident resulting in evacuation of a passenger train;
    (iii) A fatality at a highway-rail grade crossing as a result of a 
train accident or train incident;
    (iv) A train accident resulting in damage (based on a preliminary 
gross estimate) of $150,000, to railroad and nonrailroad property; or
    (v) A train accident resulting in damage of $25,000 or more to a 
passenger train and railroad and nonrailroad property.
    (3) Train accidents on or fouling passenger service main lines. The 
dispatching railroad must report immediately, as prescribed in 
paragraphs (b) through (d) of this section, whenever it learns of the 
occurrence of any train accident reportable as a rail equipment 
accident/incident under Sec. Sec.  225.11 and 225.19(c)--
    (i) That involves a collision or derailment on a main line that is 
used for scheduled passenger service; or
    (ii) That fouls a main line used for scheduled passenger service.
    (b) Method of reporting. (1) Telephonic reports required by this 
section shall be made by toll-free telephone to the National Response 
Center, Area Code 800-424-8802 or 800-424-0201.
    (2) Through one of the same telephone numbers (800-424-0201), the 
National Response Center (NRC) also receives notifications of rail 
accidents for the National Transportation Safety Board (49 CFR part 
840) and the Research and Special Programs Administration of the U.S. 
Department of Transportation (Hazardous Materials Regulations, 49 CFR 
171.15). FRA Locomotive Safety Standards require certain locomotive 
accidents to be reported by telephone to the NRC at the same toll-free 
number (800-424-0201). 49 CFR 229.17.
    (c) Contents of report. Each report must state the:
    (1) Name of the railroad;
    (2) Name, title, and telephone number of the individual making the 
report;
    (3) Time, date, and location of the accident/incident;
    (4) Circumstances of the accident/incident;
    (5) Number of persons killed or injured; and
    (6) Available estimates of railroad and non-railroad property 
damage.
    (d) Timing of report. (1) To the extent that the necessity to 
report an accident/incident depends upon a determination of fact or an 
estimate of property damage, a report will be considered immediate if 
made as soon as possible following the time that the determination or 
estimate is made, or could reasonably have been made, whichever comes 
first, taking into consideration the health and safety of those 
affected by the accident/incident, including actions to protect the 
environment.
    (2) NTSB has other specific requirements regarding the timeliness 
of reporting. See 49 CFR part 840.
    6. In section 225.19, paragraph (d) is revised to read as follows:


Sec.  225.19  Primary groups of accidents/incidents.

* * * * *
    (d) Group III--Death, injury, or occupational illness. Each event 
or

[[Page 63047]]

exposure arising from the operation of a railroad shall be reported on 
Form FRA F 6180.55a if the event or exposure is a discernable cause of 
one or more of the following, and the following is a new case or a 
significant aggravation of a pre-existing injury or illness:
    (1) Death to any person;
    (2) Injury to any person that results in medical treatment;
    (3) Injury to a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer; or
    (iii) Loss of consciousness;
    (4) Occupational illness of a railroad employee that results in any 
of the following:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer;
    (iii) Loss of consciousness; or
    (iv) Medical treatment;
    (5) Significant injury to or significant illness of a railroad 
employee diagnosed by a physician or other licensed health care 
professional even if it does not result in death, a day away from work, 
restricted work activity or job transfer, medical treatment, or loss of 
consciousness;
    (6) Illness or injury that meets the application of the following 
specific case criteria:
    (i) Needlestick or sharps injury to a railroad employee;
    (ii) Medical removal of a railroad employee;
    (iii) Occupational hearing loss of a railroad employee;
    (iv) Occupational tuberculosis of a railroad employee; or
    (v) Musculoskeletal disorder of a railroad employee that is 
independently reportable under one or more of the general reporting 
criteria.
* * * * *
    7. In section 225.21, a new paragraph (j) is added to read as 
follows:


Sec.  225.21  Forms.

* * * * *
    (j) Form FRA 6180.107--Alternative Record for Illnesses Claimed to 
Be Work-Related. (1) Form FRA F 6180.107 shall be used by the railroads 
to record each illness claimed to be work-related that is reported to 
the railroad--
    (i) For which there is insufficient information to determine 
whether the illness is work-related;
    (ii) For which the railroad has made a preliminary determination 
that the illness is not work-related; or
    (iii) For which the railroad has made a final determination that 
the illness is not work-related.
    (2) For any case determined to be reportable, the designation 
``illness claimed to be work-related'' shall be removed, and the record 
shall be transferred to the reporting officer for retention and 
reporting in the normal manner.
    (3) In the event the narrative block (similar to Form FRA F 
6180.98, block 39) indicates that the case is not reportable, the 
explanation contained on that block shall record the reasons the 
railroad determined that the case is not reportable, making reference 
to the most authoritative information relied upon.
    (4) Although the Form FRA F 6180.107 may not include all supporting 
documentation, such as medical records, the Form FRA F 6180.107 shall 
note the name, title, and address of the custodian of those documents 
and where the supporting documents are located so that it is readily 
accessible to FRA upon request.
    8. In section 225.23, paragraph (a) is revised to read as follows:


Sec.  225.23  Joint operations.

    (a) Any reportable death, injury, or illness of an employee arising 
from an accident/incident involving joint operations must be reported 
on Form FRA F 6180.55a by the employing railroad.
* * * * *
    9. Section 225.25 is amended by revising paragraphs (b)(6), 
(b)(16), (b)(25)(v), (e)(8), (e)(24), (h)(15), and new paragraphs 
(b)(25)(xi), (b)(25)(xii) and (i) are added to read as follows:


Sec.  225.25  Recordkeeping.

* * * * *
    (b) * * *
    (6) Employee identification number or, in the alternative, Social 
Security Number of railroad employee;
* * * * *
    (16) Whether employee was on premises when injury, illness, or 
condition occurred;
* * * * *
    (25) * * *
    (v) If one or more days away from work, provide the number of days 
away and the beginning date;
* * * * *
    (xi) Significant injury or illness of a railroad employee;
    (xii) Needlestick or sharps injury to a railroad employee, medical 
removal of a railroad employee, occupational hearing loss of a railroad 
employee, occupational tuberculosis of a railroad employee, or 
musculoskeletal disorder of a railroad employee which musculoskeletal 
disorder is reportable under one or more of the general reporting 
criteria.
* * * * *
    (e) * * *
    (8) County and nearest city or town;
* * * * *
    (24) Persons injured, persons killed, and employees with an 
occupational illness, broken down into the following classifications: 
worker on duty--employee; employee not on duty; passenger on train; 
nontrespasser-on railroad property; trespasser; worker on duty--
contractor; contractor--other; worker on duty--volunteer; volunteer--
other; and nontrespasser-off railroad property;
* * * * *
    (h) * * *
    (15) The railroad is permitted not to post information on an 
occupational injury or illness that is a privacy concern case.
* * * * *
    (i) Claimed occupational illnesses. (1) Each railroad shall 
maintain either the Form FRA F 6180.107, to the extent that the 
information is reasonably available, or an alternate railroad-designed 
record containing the same information as called for on the Form FRA F 
6180.107, to the extent that the information is reasonably available, 
for each illness claimed to be work-related--
    (i) For which there is insufficient information to determine 
whether the illness is work-related;
    (ii) For which the railroad has made a preliminary determination 
that the illness is not work-related; or
    (iii) For which the railroad has made a final determination that 
the illness is not work-related.
    (2) For any case determined to be reportable, the designation 
``illness claimed to be work-related'' shall be removed, and the record 
shall be transferred to the reporting officer for retention and 
reporting in the normal manner.
    (3) In the event the narrative block (similar to Form FRA F 
6180.98, block 39) indicates that the case is not reportable, the 
explanation contained on that block shall record the reasons the 
railroad determined that the case is not reportable, making reference 
to the most authoritative information relied upon.
    (4) In the event the railroad must amend the record with new or 
additional information, the railroad shall have up until December 1 of 
the next calendar year for reporting accidents/incidents to make the 
update.
    (5) Although the Alternative Record for Illnesses Claimed to be 
Work-Related (or the alternate railroad-designed form) may not include 
all supporting documentation, such as medical records, the alternative 
record shall note the custodian of those documents and

[[Page 63048]]

where the supporting documents are located so that it is readily 
accessible to FRA upon request.
    10. Section 225.33 is amended by adding new paragraph (a)(11) to 
read as follows:


Sec.  225.33  Internal Control Plans.

    (a) * * *
    (11) In the case of the Form FRA F 6180.107 or the alternate 
railroad-designed form, a statement that specifies the name, title, and 
address of the custodian of these records, all supporting 
documentation, such as medical records, and where the documents are 
located.
* * * * *
    11. Section 225.35 is amended by designating the first paragraph as 
paragraph (a), designating the second paragraph as paragraph (b), and 
adding after the fourth sentence of newly designated paragraph (b) the 
following two sentences:


Sec.  225.35  Access to records and reports.

* * * * *
    (b) * * * The Form FRA F 6180.107 or the alternate railroad-
designed form need not be provided at any railroad establishment within 
4 hours of a request. Rather, the Form FRA F 6180.107 or the alternate 
railroad-designed form must be provided upon request, within five 
business days, and may be kept at a central location, in either paper 
or electronic format. * * *
    12. Section 225.39 is added to read as follows:


Sec.  225.39  FRA policy on covered data.

    FRA will not include covered data (as defined in Sec.  225.5) in 
its periodic summaries of data on the number of occupational injuries 
and illnesses.

PART 240--[AMENDED]

    13. The authority citation for part 240 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20135, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49.

    14. In section 240.117, paragraph (e)(2) is revised to read as 
follows:


Sec.  240.117  Criteria for consideration of operating rules compliance 
data.

* * * * *
    (e) * * *
    (2) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum 
authorized limit by at least 10 miles per hour. Where restricted speed 
is in effect, railroads shall consider only those violations of the 
conditional clause of restricted speed rules (i.e., the clause that 
requires stopping within one half of the locomotive engineer's range of 
vision), or the operational equivalent thereof, which cause reportable 
accidents or incidents under part 225 of this chapter, except for 
accidents and incidents that are classified as ``covered data'' under 
Sec.  225.5 of this chapter (i.e., employee injury/illness cases 
exclusively resulting from a written recommendation to the employee by 
a physician or other licensed health care professional for time off 
when the employee instead returned to work, for a work restriction that 
was not imposed, or for a non-prescription medication to be taken at 
prescription strength, whether or not the medication was taken), as 
instances of failure to adhere to this section;
* * * * *

    Issued in Washington, DC, on September 18, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-24393 Filed 10-8-02; 8:45 am]
BILLING CODE 4910-06-P