[Federal Register Volume 68, Number 41 (Monday, March 3, 2003)]
[Rules and Regulations]
[Pages 10108-10140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4633]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 219, 225, and 240
Conforming the Federal Railroad Administration's Accident/Incident
Reporting Requirements to the Occupational Safety and Health
Administration's Revised Reporting Requirements; Other Amendments;
Final Rule
Federal Register / Vol. 68, No. 41 / Monday, March 3, 2003 / Rules
and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 219, 225, and 240
[Docket No. FRA-2002-13221, Notice No. 2]
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: Final rule.
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SUMMARY: FRA conforms, 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 (DOL). This action permits the comparability of data on
occupational fatalities, injuries, and illnesses in the railroad
industry with such data for other industries, allows the integration of
these railroad industry data into national statistical databases, and
enhances the quality of information available for railroad casualty
analysis. In addition, FRA makes certain other amendments to its
accident reporting regulations unrelated to conforming to OSHA's
revised reporting regulations. Finally, FRA makes minor changes to its
alcohol and drug regulations and locomotive engineer qualifications
regulations in those areas that incorporate concepts from its accident
reporting regulations.
EFFECTIVE DATE: May 1, 2003.
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: In addition to revising its regulations in
the Code of Federal Regulations, FRA has revised its Guide for
Preparing Accident/Incident Reports (Guide or FRA's Guide).
Instructions for electronically submitting monthly reports to FRA are
available in the 2003 companion guide: Guidelines for Submitting
Accident/Incident Reports by Alternative Methods. The 2003 Guide and
companion guide are posted on FRA's Web site at http://safetydata.fra.dot.gov/guide.
For more detailed information on OSHA's revised reporting
regulations, see http://safetydata.fra.dot.gov/OSHA-materials.
Also, note that for brevity, all references to CFR parts will be
parts in 49 CFR, unless otherwise noted.
Privacy Act Statement: Anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or
you may visit http://dms.dot.gov.
Table of Contents for Supplementary Information
I. Overview of OSHA's Revised Reporting Regulations and FRA's Final
Rule
II. Proceedings and Summary of Issues Addressed by the Working Group
A. The Development of the Railroad Safety Advisory Committee
(RSAC) Accident/Incident Reporting Working Group
B. The Working Group's Resolution of Issues Prior to Publication
of the NPRM
C. Comments Received and Post-NPRM Working Group Meeting
III. Issues Addressed by the Working Group
A. Applicability of Part 225-Sec. 225.3
B. Revisions and Additions to Definitions in the Regulatory
Text-Sec. 225.5
C. Revisions to Provision on Telephonic Reporting-Sec. 225.9
D. Revisions to Criteria for Reporting Occupational Fatalities,
Injuries, and Illnesses--Sec. 225.19(d)
1. FRA's Reporting Criteria Applicable to Railroad Employees
2. FRA's Reporting Criteria Applicable to Employees of a
Contractor to a Railroad
3. Reporting Criteria Applicable to Illnesses
E. Technical Revision to Sec. 225.21, ``Forms''
F. Technical Revision to Sec. 225.23, ``Joint Operations''
G. 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. Addition of Sec. 225.39, ``FRA Policy Statement on Covered
Data''
I. Revisions to Chapter 1 of the Guide, ``Overview of Accident/
Incident Reporting and Recordkeeping Requirements''
J. 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; Inclusion of 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. Revisions to Chapter 7 of the Guide, ``Rail Equipment
Accident/Incident Report''
L. New Chapter 12 of the Guide on Reporting by Commuter
Railroads
M. Changes in Reporting of Accidents/Incidents Involving
RemoteControl Locomotives
N. Changes in Circumstance Codes (Appendix F of the Guide)
O. Changes in Three Forms (Appendix H of the Guide)
P. Miscellaneous Issues Regarding Part 225 and 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
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 Final
Rule
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 http://safetydata.fra.dot.gov/OSHA-materials. With the exception of three
[[Page 10109]]
provisions, OSHA's final rule became effective 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 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, through this final rule, FRA makes
conforming amendments to its existing accident/incident reporting
regulations and Guide. Further, FRA makes minor amendments to its
alcohol and drug regulations (part 219) and locomotive engineer
qualifications regulations (part 240) in those areas that incorporate
terms from part 225.
Note: Throughout this preamble to the final 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
1904.
In addition, FRA will draft a memorandum of understanding (MOU)
between FRA and OSHA to address specific areas that are unique to the
railroad industry, and where it was not 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 conform to OSHA's final rule are discussed in detail in the
preamble.
Finally, FRA makes 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 and Summary of Issues Addressed by the Working Group
A. The Development of the Railroad Safety Advisory Committee (RSAC)
Accident/Incident Reporting Working Group
FRA developed the Notice of Proposed Rulemaking (NPRM), published
October 9, 2002, and this final rule through its Railroad Safety
Advisory Committee (RSAC). See 67 FR 63022. RSAC was formed by FRA in
March of 1996 to provide a forum for consensual rulemaking and program
development. The Committee has representatives 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 Employes (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).
B. The Working Group's Resolution of Issues Prior to Publication of the
NPRM
Prior to the publication of the NPRM, the Working Group held a
total of eight meetings related to this task statement. As a result of
these meetings, the Working Group developed consensus recommendations
proposing 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. Prior to this rulemaking, FRA had interpreted
part 225 as not requiring the reporting of such cases. After the last
Working Group session before publication of the NPRM, FRA developed a
compromise position, proposing that railroads not be required to report
deaths or injuries to persons who are not railroad employees that occur
while off railroad property unless they result from a train accident, a
train incident, a highway-rail grade crossing accident/incident, or a
release of a hazardous material or other dangerous commodity related to
the railroad's rail transportation business. To accomplish this result,
FRA proposed a three-tier definition of the term ``event or exposure
arising from the operation of a railroad.'' See proposed Sec. 225.5.
The NPRM intended to reflect a Working Group consensus on all other
issues that were summarized in the preamble. With regard to part 225,
the Working Group recommended
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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 changing 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 accepted the recommendations of
the Working Group as to those changes that were 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 accepted FRA staff recommendations. In turn, FRA's
Administrator adopted the recommendations embodied in the proposal, and
the NPRM was subsequently published.
C. Comments Received and Post-NPRM Working Group Meeting
After publication of the NPRM on October 9, 2002, FRA received
comments on the proposed rule and Guide from AAR \1\ and a private
citizen.\2\ On December 4, 2002, the Working Group held a meeting in
Washington, DC to discuss the comments on the NPRM. Because the
majority of AAR's comments focused on clarifying the Guide, many of the
issues were able to be resolved at the meeting. RSAC consensus on those
issues and the summary of the Working Group meeting was confirmed by
ballot on January 29, 2003. For those issues where consensus could not
be reached, AAR sent FRA a post-meeting letter further explaining its
views. The unresolved issues were outlined and presented to the Deputy
Administrator, who acted on the rulemaking under a delegation from the
Administrator, along with copies of the comments and responses, for
resolution.
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\1\ AAR's comments on the NPRM will be discussed throughout this
preamble. After the publication of the NPRM and a discussion of the
comments at the final Working Group meeting, AAR submitted a letter,
dated December 13, 2002, and a supplemental response that was e-
mailed to FRA on January 3, 2003.
\2\ FRA has reviewed the comments from the private citizen,
which did not specifically address any of the proposed amendments
and vaguely asserted that FRA was not fulfilling its duty to carry
out statutory mandates. Although the commenter did not provide
specific recommendations to FRA on how to revise the NPRM, FRA
believes that the provisions in the final rule will improve the
overall quality and integrity of FRA's accident/incident data.
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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
[Bureau of Labor Statistics] 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 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
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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.
(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 Public Law 103-272.
Accordingly, FRA will 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 will address the difference as to
which entities are covered by the reporting requirements, in an MOU
with OSHA.
B. Revisions and Additions to Definitions in the Regulatory Text--Sec.
225.5
Proposal
FRA proposed to amend and add certain definitions to conform to
OSHA's final rule or to achieve other objectives. Specifically, FRA
proposed 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 proposed 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 proposed 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.''
Comments and Final Rule/Decision
These changes will be discussed in context later in the section-by-
section analysis or elsewhere in this preamble.
C. Revisions to Provision on Telephonic Reporting--Sec. 225.9
Proposal
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. Prior to
this final rule, FRA had required 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 1997's Sec. 225.9(a). In contrast, 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 proposed 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 proposed 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. When those workers are exposed, the
hazards are often unique to the railroad environment or 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 proposed 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 proposed to incorporate provisions similar to the National
Transportation Safety Board's (NTSB) requirements for telephonic
reporting (part 840) into its own regulations and Guide. The key
provisions of NTSB's requirements, excerpted in the NPRM for the
convenience of the reader, can be found at Sec. Sec. 840.3 and 840.4.
See also 67 FR 63025-26.
The reason FRA proposed 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
[[Page 10112]]
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 referenced
NTSB regulations to 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'').
Some members of the Working Group expressed concern about which
railroad should be responsible for making the telephonic report in the
case of joint operations. 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, to provide a reasonable amount of time in which to report.
Prompt reporting permits FRA and (where applicable) NTSB to dispatch
personnel quickly, thereby 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 requiring 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.
Some members of the Working Group expressed concern 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 addressed 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.
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 will include in the
MOU with OSHA a provision specifying how and why FRA has departed from
OSHA's requirements in this area.
Comments and Final Rule/Decision
No specific comments were received on this issue. For the reasons
stated above, FRA has adopted the language as proposed in the NPRM for
this final rule.
D. Revisions to Criteria for Reporting Occupational Fatalities,
Injuries, and Illnesses--Sec. 225.19(d)
1. FRA's Reporting Criteria Applicable to Railroad Employees
Proposal
Section 225.19(d), as in effect until May 1, 2003, 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, excerpted in the
NPRM for the convenience of the reader, can be found at 29 CFR
1904.4(a) and 1904.7(b). See also 67 FR 63026-27. As indicated in the
NPRM and in the above-referenced 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 SUPPLEMENTARY INFORMATION section.
Comments and Final Rule/Decision
No specific comments were received on the definitions of work-
related ``needlestick or sharps injury'' and ``occupational
tuberculosis.'' FRA has adopted these definitions as proposed. Although
no specific comments were received on the definition of ``medical
removal,'' and FRA has adopted this definition almost exactly as
proposed, this term will be discussed later in this section of the
preamble, in context with the discussion of the ``float vs. fixed''
issue. Before addressing the comments received on occupational hearing
loss and work-related musculoskeletal disorders, it is necessary to
provide an overview of OSHA's evolved position on these issues, since
OSHA had not yet adopted its position at the time that the Working
Group had reached consensus.
Overview of OSHA's Position on Occupational Hearing Loss and
Musculoskeletal Disorders
In response to several comments received after publication of its
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 29 CFR
1904.10, regarding occupational hearing loss, and 29 CFR
[[Page 10113]]
1904.12 and 1904.29(b)(7)(vi),\3\ regarding musculoskeletal disorders
(``MSDs''). 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 public comment on the provisions. See 67 FR 44124. On
December 17, 2002, OSHA published a final rule adopting the proposed
delay. See 67 FR 77165.
---------------------------------------------------------------------------
\3\ 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. On December 17, 2002, OSHA adopted
this proposed delay. See 67 FR 77165. This provision will be
discussed in the context of privacy concern cases in the section-by-
section analysis at ``III.G.1.'' of this 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 until January 1, 2003, in order to seek comments on what
should be the appropriate hearing loss threshold. See 66 FR 52031. As
an interim policy for calendar year 2002, OSHA added a new paragraph
(c) to 29 CFR 1904.10 that adopted the 25-dB standard set forth in
OSHA's enforcement policy, which had been in effect since 1991, and
which was FRA's approach at the time of this rulemaking.\4\ 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.
---------------------------------------------------------------------------
\4\ See 1997 Guide at Appendix E, p. 4. FRA's Occupational
Illness Code 1151 in the 1997 Guide, 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.\5\ This starting point, which
has been enforced by OSHA since 1991 and is the starting point in use
by FRA until the effective date of this final rule, 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.
---------------------------------------------------------------------------
\5\ 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
would 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 approach prior to this
final rule), this would only have counted as a 15-dB shift that is not
recordable under OSHA's enforcement policy or 29 CFR 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 \6\ to prevent impairment from occurring), OSHA
adopted a compromise position that made a 10-dB shift from an
employee's original baseline audiogram recordable in those cases where
this shift also represented a 25-dB shift from audiometric zero.
---------------------------------------------------------------------------
\6\ Under 29 CFR 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.
---------------------------------------------------------------------------
Proposal
As OSHA's new approach to defining and recording occupational
hearing loss cases was not before the Working Group when consensus was
reached, FRA sought comment on whether FRA should adopt OSHA's new
(2003) 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 2002 approach (which was approved by the
Working Group and the RSAC and was the same as FRA's approach at the
time of this rulemaking) 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.
Comments
In its written comment, AAR strongly opposed the adoption of OSHA's
new policy ``without any discussion of the wisdom of the policy by the
RSAC working group considering the issues posed in this proceeding.''
AAR also noted that the policy would result in a greater number of
hearing loss cases being reported by the railroad industry and result
in an adverse trend in the occurrence of railroad injuries
[[Page 10114]]
regardless of the railroads' actual performance.
At the post-NPRM working group meeting, FRA replied that the RSAC
Working Group was able to consider only one approach at the Working
Group meeting: whether or not to adopt OSHA's old enforcement policy
(that was finally put into rule form), which was essentially the same
as FRA's policy at that time. In contrast, OSHA was able to consider
this issue in more detail and over a greater period of time than was
FRA, as is evident from the overview of OSHA's evolved position on this
issue.
AAR acquiesced in accepting the criteria for reporting, but was
concerned that there would be increases in reportables for the first
few years, as OSHA had estimated that this new change would result in a
significant increase in cases. AAR asked FRA to consider reporting the
hearing loss cases under covered data, spread over three years. After
the meeting, AAR sent a letter to FRA dated December 13, 2002, echoing
the concerns expressed at the meeting.
Final Rule/Decision
OSHA also noted concern among employers because the application of
the new criteria in 29 CFR 1904.10 would result in an increase in
recorded hearing loss cases. See 67 FR 44038-40. However, after
recognizing that the new criteria will capture more hearing loss cases,
and that caution must be used when comparing the future data with prior
years, OSHA emphasized that by requiring an employer to record only
those STSs that exceed 25 dB from audiometric zero, the regulation
``assures that all recorded hearing losses are significant illnesses.''
See 67 FR 44040. In the discussion of its decision, OSHA concluded that
it would be inappropriate to adopt a policy of recording only 25-dB
shifts from the employee's baseline audiogram as this would ``clearly
understate the true incidence of work-related hearing loss.'' See 67 FR
44040-41. Additionally, aligning the recording threshold with the STS
criterion in OSHA's Noise Standard will provide more opportunities for
employer intervention and prevention of future hearing loss cases. See
67 FR 44046. Thus, OSHA was fully aware of the expected increase in
occupational hearing loss cases, but nevertheless concluded that it was
very important that this data be collected. FRA agrees. The importance
of capturing the true magnitude of work-related hearing loss, is
justification alone for adopting these criteria; however, it is
important to note that the increase in the number of reportables will
be partially offset by OSHA's reclassification as non-reportable many
events that previously were reportable.\7\ Because the Working Group
could not reach full consensus, the issue was presented to FRA for
resolution. Upon careful consideration and review of AAR's comments and
letter, FRA has decided not to include occupational hearing loss cases
under covered data. Note that, for clarification and simplicity, the
rule text definition has been amended to reflect the actual recording
criteria used by OSHA (for calendar year 2003 and beyond) rather than
the citation to the relevant section of OSHA's regulation. This
amendment does not represent a substantive change from OSHA's criteria.
---------------------------------------------------------------------------
\7\ See later discussion concerning the definitions of ``medical
treatment'' and ``first aid'' at section ``III.J.3.'' of this
preamble.
---------------------------------------------------------------------------
Proposal
As noted above, OSHA is reconsidering the definition of
musculoskeletal disorder and the requirement of having a separate
column on the OSHA 300 log for the recording of MSD and occupational
hearing loss cases, having delayed these provisions until January 1,
2004. See 67 FR 77165. As the issue of OSHA's proposed delay was not
before the Working Group when consensus was reached and the delay had
not been adopted by OSHA prior to the publication of FRA's NPRM, FRA
sought comment on whether or not the definition and column requirements
should be adopted if OSHA's proposed January 1, 2004 delay took effect.
It was noted in the NPRM that if FRA were to go 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 proposed delays.
In the event that OSHA chose not to delay the effective date of
these provisions, FRA sought comment on whether or not to diverge from
OSHA by not adopting the definition or column requirements, since FRA
already had 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 sought comment on whether or not a definition of an MSD
was necessary, since FRA had no special criteria in its regulations
beyond the general recording criteria for determining which MSDs to
record, and because OSHA's definition appeared to be used primarily as
guidance for when to check the MSD column on the 300 Log. See 66 FR
6129-6130.
Comments
AAR believes no purpose would be served by having separate columns,
since OSHA would still be able to use FRA's data for statistical
purposes without adoption of this requirement. Although no specific
comments were received regarding the adoption of a definition of an
MSD, FRA raised the issue at the post-NPRM Working Group meeting. FRA
pointed out that there were no special reporting criteria for MSDs and
that there may be more problems in trying to delete the definition than
to leave it in. Because MSDs must be independently reportable, there
seemed to be little or no effect on the regulated community by
retaining the proposed definition. AAR indicated that it was inclined
to leave the definition in, but might reconsider the issue and provide
FRA with a position on the issue after the meeting. However, no further
comments were received.
Final Rule/Decision
Since FRA already has its own forms and methods in place to collect
data on occupational hearing loss and MSD cases for OSHA's statistical
purposes, and because OSHA has not yet adopted the column requirement,
FRA has not adopted the column requirement for the reporting of
occupational hearing loss and MSD cases in its final rule.
Additionally, for the reasons stated above, FRA has adopted the MSD
definition as proposed. See also the discussion of deleting the
exclusion of MSDs from the definition of ``privacy concern case.'' This
difference will be
[[Page 10115]]
addressed in the MOU with OSHA, as appropriate.
Proposal
FRA also sought comment on whether the definitions of terms in its
regulations should ``float,'' i.e., change automatically anytime OSHA
revises the definition of the term in its regulations, since the main
purpose of this rulemaking was to bring FRA's rule into general
conformity with OSHA's regulations (which are developed by OSHA after a
full opportunity for notice and comment), or whether FRA's adoption of
a fixed and certain approach to the definitions of terms could better
serve FRA's safety objectives and the needs of the regulated community.
This issue was 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 sought comment on whether this particular 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 \8\ referenced OSHA's standard
without restating it within the rule text or preamble, this would
appear to reflect the intent of the Working Group.
---------------------------------------------------------------------------
\8\ The proposed definition read: ``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.''
---------------------------------------------------------------------------
Comments
AAR commented that it was opposed to the concept of floating
regulations, stating that there should be an opportunity for FRA's
regulated community to comment on the suitability of any changes in
OSHA's regulations since there is sometimes a need to differ from OSHA.
Final Rule/Decision
FRA still believes that with respect to issues that are not unique
to railroading, AAR would have a full opportunity for notice and
comment through OSHA's rulemaking in the event that OSHA decides to
change its regulations. However, FRA recognizes AAR's concerns and has
decided not to float the definition of ``medical removal'' or any other
terms. Accordingly, any definitions that have been modeled on OSHA's
wording have been adopted by using the same or similar wording; any
definitions that incorporate OSHA's regulations by reference are noted
as adopting the year-specific version of such regulations.
Proposal
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 were at least
three primary differences between OSHA's reporting criteria and FRA's
reporting criteria at the time of this rulemaking, at least as stated
in Sec. 225.19(d). First, FRA required that all occupational illnesses
of railroad employees be reported. See Sec. Sec. 225.5 and
225.19(d)(4). By contrast, 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] 1904.8 through 1904.12.''
Second, for the reason that FRA's interpretation of part 225 was
already very inclusive, FRA's Sec. 225.19(d) criteria did not use the
term ``significant injuries,'' which is incorporated in OSHA's Final
Rule. While FRA did not use the phrase ``significant injuries'' in its
1997 rule text, the 1997 Guide did 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); * * *
1997 Guide, Ch. 6, p. 6. Accordingly, under the 1997 Guide, fractures
were considered not to be minor injuries, and a punctured eardrum was
likewise not considered a minor injury because it would involve
impairment of ``normal use of senses.'' Id. Third, FRA did not have
``specific cases'' reporting criteria for occupational injuries of
railroad employees.
FRA proposed 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 did not appear to be necessary for a proper
understanding of the concept and which might have been read as open-
ended, a result FRA did 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 believed that the note was intended to
reference a statutory issue not present in the case of FRA's reporting
system and could be omitted from FRA's rule as not relevant and to
avoid potential ambiguity. FRA also proposed to explain these new
reporting requirements in the 2003 Guide. See later discussion of
Chapter 6 of the 2003 Guide.
Comments and Final Rule/Decision
No specific comments were received on this issue. For the reasons
stated above, FRA has adopted the amendments to the rule and Guide as
proposed.
2. FRA's Reporting Criteria Applicable to Employees of a Contractor to
a Railroad
Proposal
As previously noted, under the 1997 rule's 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'' included an independent contractor to a railroad. See 1997's
Sec. 225.5. Reading these regulatory provisions together, deaths to
employees of railroad contractors that arose from the operation of a
railroad, and injuries to employees of railroad contractors that arose
from the operation of a railroad and required medical treatment would
appear to be reportable to FRA. (The 1997 Guide, however, narrowed the
requirement through its reading of ``arising from the operation of a
railroad.'') FRA did not require reporting of occupational illnesses of
contractors; under 1997's Sec. 225.19(d)(4), only the occupational
illnesses of
[[Page 10116]]
railroad employees were required to be reported.
By contrast, 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 the employee of the contractor is
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 was difficult to
comply with FRA's 1997 rule, read literally, with respect to an
employee of a contractor to a railroad while he or she is 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 was 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
railcar 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 occurred 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 arose out of the operation of the railroad but
occurred 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 was difficult for railroads to track
fatalities of persons who were not employed by the railroad. Rail labor
representatives noted on the other hand, that fatalities were 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, rail
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, and 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, rail 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 drafted a proposal based upon its reasoned
consideration of the issue. In this regard, FRA 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 recognized that certain types of accident/incidents occurring
off of railroad property involved scenarios in which the fact that the
contractor was performing work for a railroad was 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.
FRA proposed deleting the term ``arising from the operation of a
railroad'' and its definition from Sec. 225.5. The definition read 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 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).
Comments
Although no specific comments were received on the proposal itself,
AAR commented that the Guide's discussion of contractors did not
reflect FRA's proposed approach and should be amended to do so.
Final Rule/Decision
For the reasons stated above, FRA has adopted the proposal as
stated and has amended the Guide to reflect this new approach. FRA
intends to address the divergence from OSHA on the employee of a
contractor issue in the MOU.
[[Page 10117]]
3. Reporting Criteria Applicable to Illnesses
Proposal
At a pre-NPRM meeting of the Working Group, 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. FRA and other Working Group
members had expressed appreciation for this undertaking. It was agreed
that this was appropriate for implementation on a voluntary basis, and
no comment was sought on this matter.
Comments and Final Rule/Decision
No specific comments were received on this issue. The list, as an
attachment to the annual report (FRA F 6180.56), will be adopted on a
voluntary basis. Note, however, that after discussing the disadvantages
of failing to capture data concerning claimed illnesses and injuries on
a standard FRA form, the Working Group agreed to the mandatory
recording of this data on a new form (FRA F 6180.107). See discussion
of recording claimed illnesses in section ``III.G.2.'' of the preamble,
below.
E. Technical Revision to Sec. 225.21, ``Forms''
Proposal
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.
Comments and Final Rule/Decision
No specific comments were received on this issue. The changes to
this form have been adopted as proposed.
F. Technical Revision to Sec. 225.23, ``Joint Operations''
Proposal
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.
Comments and Final Rule/Decision
No specific comments were received on this issue. The regulatory
text amendments have been adopted as proposed.
G. Revisions to Sec. 225.25, ``Recordkeeping''
1. Privacy Concern Cases
Proposal
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 proposed to define the term similarly in 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 required 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. 1997's Sec. 225.25(a), (b), (c). This rendered 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. Id. Additionally, FRA proposed 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 2003's Sec. 225.25(b)(6).
Therefore, FRA considered this difference a sufficient reason not to
adopt OSHA's privacy requirements with regard to the reportable and
accountable log.
Comments and Final Rule/Decision
No specific comments were received on this issue. For the reasons
stated above, the regulatory text amendments have been adopted as
proposed. FRA intends to address its variation from OSHA's privacy
requirements with regard to the reportable and accountable log in the
MOU.
Proposal
Although FRA has not allowed wide access to the reportable and
accountable log, FRA requires, 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 that must be posted 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. Under 1997's Sec. 225.25(h)(15),
FRA permitted the railroad not to post an injury or illness at the
establishment where it occurred if the ill or injured employee
requested in writing to the railroad's reporting officer that the
injury or illness not be posted. The proposed revision of the rule
concerning the posting of injuries or illnesses 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.
[[Page 10118]]
Comments and Final Rule/Decision
No comments were received on these proposed changes. For the
reasons stated above, the amendments have been adopted as proposed. FRA
intends to address these slight variations from OSHA's privacy
requirements in the MOU.
Proposal
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
stated that musculoskeletal disorders were 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, and requested comment on the provision. See 67 FR
44124. On December 17, 2002, OSHA published a final rule adopting the
proposed delay. See 67 FR 77165. As the issue of OSHA's proposed delay
of this provision was not before the Working Group when consensus was
reached, FRA sought comment on whether or not this exclusion should be
adopted if OSHA's proposed January 1, 2004, delay took effect. It was
noted that if FRA were to adopt the exclusion as approved by the
Working Group, FRA would be doing so 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 chose not to delay the effective date of
this provision and to give it effect on January 1, 2003, FRA sought
comment on whether or not FRA should diverge from OSHA by not adopting
the exclusion.
Comments
Although no specific comments were received regarding the adoption
of OSHA's proposed exclusion of MSDs from the definition of ``privacy
concern case,'' FRA raised this issue at the post-NPRM Working Group
meeting. FRA noted that because OSHA had not yet adopted this exclusion
and had not even adopted a definition of MSDs that would indicate what
should be excluded, it would not make sense for FRA to adopt this
exclusion. When presented with the issue at the meeting, there seemed
to be general agreement by all concerned to have this exclusion in the
definition of ``privacy concern case'' deleted from the revised part
225 and the FRA Guide.
Final Rule/Decision
Because OSHA has not yet adopted the exclusion of MSDs from its
definition of ``privacy concern case,'' and since FRA has not been
provided with a justification for departing from OSHA on this issue,
FRA has not adopted the exclusion of MSDs from the definition of
``privacy concern case'' in its final rule.
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 final regulations will not
conflict with HIPAA requirements.
2. Claimed Illnesses for Which Work-Relatedness Is Doubted
a. Recording Claimed Illnesses
Proposal
Under the 1997 FRA rule, all accountable or reportable injuries and
illnesses were 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
qualified for reporting were then reported on the appropriate forms.
See 1997's Sec. 225.25(a), (b). If the case was not reported, the
railroad was required to state a reason on Form FRA F 6180.98 or the
equivalent record. See 1997's 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 stated 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 added 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 viewed
the claim of work-relatedness as valid.
Although sympathetic to these concerns, FRA was 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
[[Page 10119]]
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) indicated that the case was 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 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 was located so that
it would 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 amendments to Sec. Sec. 225.21, 225.25, 225.33, and 225.35 and new
Chapter 13 of the 2003 Guide.
Comments and Final Rule/Decision
No specific comments were received on this issue. For the reasons
stated above, FRA has adopted the amendments and new form as proposed.
b. FRA Review of Railroads' Work-Relatedness Determinations
Proposal
Concern arose within the Working Group regarding how FRA planned to
review a reporting officer's determination that the illness was not
work-related. As discussed below in section ``III.P.3.'' of the
preamble, it is 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.
Comments and Final Rule/Decision
No specific comments were received on this issue. FRA has adopted
the policy as proposed.
3. Technical Amendments
Proposal
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.
Comments and Final Rule/Decision
No specific comments were received on these changes. For the
reasons stated above, the amendments have been adopted as proposed.
H. Addition of Sec. 225.39, ``FRA Policy Statement on Covered Data''
Proposal
FRA proposed to add a new section to the regulatory text that would
include a policy statement on covered data. Specifically, 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.
Comments
AAR commented that the Guide needed to be clearer in its discussion
of covered data so as to include: a definition of that term;
instructions on how to report such cases; and clarification of the
treatment of these cases in the questions and answers section of the
Guide and in the instructions for Form FRA F 6180.55a. In its comments
on the NPRM, verbal comments at the post-NPRM Working Group Meeting,
and post-meeting letter and e-mail, AAR expressed concern regarding the
sharp increase in the number of reportables that would result upon
adoption of the proposed changes. In order to soften the impact of
these changes on railroad industry data, AAR requested that the covered
data classification be extended to three other areas of reporting:
1. One Time Dosage of Prescription Medication
In the revised OSHA regulation, a one-time dosage of a prescription
medication, regardless of whether it is a topical medication or a drug
that is taken orally, is now considered a reportable event. Multiple
treatments or an injection have always been reportable. AAR requested
that all one-time dosages be classified as ``covered data.''
2. Oxygen Therapy
The administration of oxygen is often a matter of routine, e.g., a
pre-hospital protocol performed by an Emergency Medical Technician
(EMT). The administration of oxygen, in and of itself, is not
reportable. However, when oxygen is provided in response to ``signs or
symptoms,'' the case becomes reportable. Previously, oxygen
administered for a short period of time was classified as ``first aid''
and not reportable, but OSHA has now removed that distinction. AAR
requested that oxygen therapy for a short time be classified as a
``covered data'' case.
3. Hearing Loss
OSHA has revised its reporting rules for hearing loss, and the
Working Group acquiesced in adopting OSHA's new standard in FRA's
regulation. AAR, however, requested that the occupational illness cases
involving hearing loss under the new OSHA regulation be classified as
``covered data.''
Final Rule/Decision
Because the Working Group could not reach full consensus on whether
to extend covered data to include these additional three areas, the
issues were
[[Page 10120]]
presented to the Administrator for resolution.
With respect to one-time dosages of a prescription medication, FRA
concluded that the one-time treatment of topical medication should be a
``covered data'' case, because prescription strength Neosporin is often
what is available to, and applied by, the treating medical
professional, even when over-the-counter Neosporin would likely
suffice. Prescription medication that is ingested is a different
matter. Since the original OSHA regulation, major advances have been
made with designer drugs and time-release medications. The single
dosage prescription medicines have replaced medicine that previously
would have required multiple dosages. Accordingly, FRA has concluded
that medication ingested, even as a single dosage not be listed as a
``covered data'' case. The definition of ``covered data'' in Sec.
225.39 and the corresponding discussion of ``covered data'' in the
Guide have been amended to address AAR's concerns regarding clarity and
to reflect the addition of one-time dosages of topical prescription
medication.
With respect to the administration of oxygen issue, FRA has
determined that the administration of oxygen should not be treated as
``covered data'' cases, even if such administration was for a short
time, if there were ``signs and symptoms'' that triggered the
administration of oxygen. This is consistent with other parts of the
OSHA/FRA reporting requirements, such as the administration of a
vaccine due to exposure to a contagious disease. If the employee does
not exhibit any ``signs or symptoms,'' then the case is not reportable;
however, if the employee does exhibit signs, then the administration of
the vaccine becomes reportable.
As discussed earlier in section ``III.D.1.'' of the preamble, FRA
decided not to classify new hearing loss cases as ``covered data.'' FRA
has an interest in maintaining the integrity and value of its database.
I. Revisions to Chapter 1 of the Guide, ``Overview of Accident/Incident
Reporting and Recordkeeping Requirements'
Proposal
Chapter 1 of the Guide was revised to reflect the major changes to
part 225 and the rest of the Guide, such as important definitions, the
revision of the telephonic reporting requirement, and the 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 reporting requirements, in effect since 1997, railroads
were permitted until April 15 to close out their accident/incident
records for the previous reporting year. 1997 Guide, Ch. 1, p. 11. FRA
has amended 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.
Comments and Final Rule/Decision
Comments received will be discussed in context with the issues as
stated elsewhere in this preamble.
J. Revisions to Chapter 6 of the Guide, Pertaining to Form FRA F
6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet)''
FRA has amended 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 have entered 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 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
Proposal
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 ordered
to restrict the type of work performed, even if the employee decides to
ignore the doctor's orders by opting 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). 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). In contrast, under FRA's 1997 Guide, a
railroad was only required to report the actual number of days that the
employee did not return to work or was 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 1997 Guide,
Ch. 6, pp. 13-14.
There was much discussion at the Working Group meetings as to
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 OSHA's
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 proposed 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 because of a work-related injury or illness, 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
[[Page 10121]]
purpose of collecting covered data is so that this information can be
provided to DOL for inter-industry comparison. The general rule is as
follows: Where a doctor orders days of rest for an employee because of
a work-related injury or illness, the railroad must report the
resulting actual days away from work unless the employee misses no days
of work because of the injury or illness, 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 and takes no other days off
as a result of the injury or illness, 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.
FRA noted 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 (Federal Employer's
Liability Act), 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, clearly the external stimuli are different than one would expect
to be found in a typical workplace. Accordingly, it seemed appropriate
that the Working Group found it wise to recommend that FRA 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.
Comments
In its comments, AAR sought clarification as to whether the same
principles that applied to counting days away from work applied to
counting days of restricted work. AAR also commented that the Guide
needed to be clearer in its discussion of covered data. At the post-
NPRM Working Group meeting, FRA confirmed that the same principles that
applied to counting days away from work would also apply to counting
days of restricted work and vice versa.
Final Rule/Decision
With some slight modifications in accordance with AAR's request for
greater clarity, FRA has adopted the proposed method for counting days
away from work and days of restricted work. FRA will address the slight
variations on this issue in its MOU with OSHA.
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
Proposal
In addition, to conform to OSHA's Final Rule, FRA proposed
amendments to its Guide that lower the maximum number of days away or
days of restricted work activity that must be reported, from 365 days
to 180 days, and 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 are a better measure of severity, because they are based on the
length of disability instead of being dependent on the individual
employee's work schedule. Accordingly, FRA proposed to adopt OSHA's
approach of counting calendar days because this approach was easier
than the former system and provided a more accurate and consistent
measure of disability duration resulting from occupational injury and
illness and thus would generate more reliable data. Under FRA's 1997
Guide, days away from work and days of restricted work activity were
counted only if the employee was scheduled to work on those days. In
the 2003 Guide, because it is a preferred approach, and to be
consistent with OSHA's Final Rule, days away from work includes 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.
Comments
Although there were no specific comments directly related to the
proposed 180-day cap amendment, there was a comment with respect to an
alleged disparity between the time period of the proposed cap and the
time period of a pre-existing requirement for updating reports. AAR
commented that there was a disparity between the proposed Guide's
discussion of updating reports and the discussion that took place in
the RSAC meetings. The proposed Guide stated that railroads were
required to monitor employee illnesses and injuries for 180 days after
the occurrence of the injury or the diagnosis of the illness and update
accident/incident reports during that period. See Question and Answer
No. 91 in the proposed Guide, Ch. 6, pp. 34-35. AAR concluded that this
policy was inconsistent with FRA's requirement that a railroad file
late reports for up to five years after the end of the calendar year to
which the reports relate. See proposed Guide, Ch. 1, p. 12. It appears
there was some confusion on what had actually been agreed upon related
to this
[[Page 10122]]
comment and the difference in the requirement to update an injury
versus an occupational illness, since occupational illnesses become
reportable on the date of diagnosis.
At the post-NPRM meeting, FRA explained that the requirements were
not inconsistent. There is a difference between monitoring (for 180
days) an illness or injury about which the railroad had prior
knowledge, or already reported or listed as an accountable, versus
having to file a late report for injuries or illnesses that were never
reported in any form but should have been. With respect to the cases
being monitored, the five-year reporting obligation would only hold the
railroad responsible for failing to report a change in an employee's
illness or injury that occurred within the 180-day monitoring period.
Thus, if a change occurred on the 180th day, and the railroad did not
discover its error in failing to report until two years later, an
obligation to file a late report would still exist, but if a change
occurred on the 181st day, the railroad is no longer under an
obligation to actively monitor or investigate the case and would not be
held accountable for failing to report such a change one day, one year,
or five years later. If a railroad is provided with information or
documentation of consequences that the employee claims is related to an
injury that occurred more than 180 days ago, the railroad would have to
handle the injury as it would a new case.
Final Rule/Decision
FRA has adopted the 180-day cap as proposed. The new cap reflects
Working Group agreement that reportable and accountable injuries are
tracked for 180 days from the date of the incident. However, if an
injury becomes reportable during that monitoring/tracking period, the
carrier will report it when it becomes known, even after the 180 days.
This approach differs slightly from OSHA's approach, which appears to
require an employer to continue counting days until the 180-day maximum
is reached, regardless of whether those days were consecutive or
intermittent. Thus, an employer may have to monitor or track an injury
for more than 180 days. In contrast, FRA's cap of 180 days will only be
reached if the employee misses those days consecutively. It has
generally been FRA's experience that a reportable injury will meet one
or more of the general reportability criteria within the 180-day time
frame and that only a few cases continue to result in missed days
beyond this time frame. Additionally, this difference would not likely
have a substantial effect on the data for purposes of OSHA's severity
index, since under that index 120 days away from work missed
intermittently over a 180-day period would be comparable in severity to
180 days missed consecutively, or 180 days missed intermittently over a
two-year period. Thus, FRA has concluded that the burden on the
employer of having to monitor a case for as long a period as necessary
to compile 180 days away from work outweighs the benefit of capturing
more days in a few cases by adopting an intermittent 180-day cap.
FRA has added to the 2003 Guide an explanation of the difference in
occupational illness reporting versus injury and has clarified the
discussion concerning the required time period for monitoring and how
it relates to updating reports. FRA will address the differences in the
180-day cap in its MOU with OSHA.
3. Definitions of ``Medical Treatment'' and ``First Aid''
Proposal
FRA's 1997 Guide indicated what constituted ``medical treatment''
and what constituted ``first aid'' and how to categorize other kinds of
treatment. See 1997 Guide, Ch. 6, pp. 6-9. As stated in the 1997 Guide,
``medical treatment'' rendered an injury reportable. If an injury or
illness required only ``first aid,'' the injury was not reportable, but
was, instead, 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 proposed 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 proposed
to amend its regulations and the Guide to address the following four
items:
a. Counseling. Under FRA's ``definitions'' section of its
regulations,
* * * 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. In contrast, 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 proposed 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-StripsTM, and
similar items. Under FRA's 1997 Guide, use of an eye patch, butterfly
bandage, Steri-StripTM, or similar item was considered
medical treatment, rendering the injury reportable. Under OSHA's final
rule, however, use of an eye patch, butterfly bandage, or Steri-
StripTM is considered to be first aid and, therefore, not
reportable. In order to conform FRA's Guide to OSHA's Final Rule, FRA
proposed to amend the Guide so that use of an eye patch, butterfly
bandage, or Steri-StripTM would be considered first aid.
c. Immobilization of a body part. Under FRA's 1997 Guide,
immobilization of a body part for transport purposes was considered
medical treatment. Given, however, that OSHA's final rule considers
immobilization of a body part for transport to be first aid, FRA
proposed to amend its Guide so that immobilization of a body part
solely for purposes of transport would be considered first aid.
d. Prescription versus non-prescription medication. Under FRA's
1997 Guide, a doctor's order to take over-the-counter medication was
not considered medical treatment even if a doctor ordered a dosage of
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, this case would be reportable, since 467
mg. of Ibuprofen is considered to be prescription strength.
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 wrongly encouraged not to order an appropriate dosage.
[[Page 10123]]
Further, in some cases, physicians may direct the use of patent
medicines simply to save the employee the time of filling a
prescription or simply to hold down costs to the insurer. Also, 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 recommending a
compromise position. Where the treating health care professional
directs in writing the use of a non-prescription medication at a dose
equal to or greater than that of the minimum amount typically
prescribed, and no other reporting criterion applies, the railroad
would report this as a special case (``covered data'' under Sec. Sec.
225.5 and 225.39). FRA explored whether it was practical to add to
Chapter 6 of the 2003 Guide, a list of commonly used over-the-counter
medications, including the prescription strength for those medications.
FRA has concluded that this list would be helpful to the regulated
community; thus, a list of over-the-counter medications that conforms
to OSHA's published standards has been added to Chapter 6. If OSHA
revises its list of over-the-counter medications in the future, the
revised list will be posted on FRA's Web site at http://safetydata.fra.dot.gov/guide. As covered data, the case would be
included in aggregate data provided to DOL, 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 examine both the working conditions in question and also review
possible further amendments to these reporting regulations.
Comments and Final Rule/Decision
No specific comments were received concerning the above-proposed
changes to the definitions of ``medical treatment'' and ``first aid.''
For the reasons stated above, the changes have been adopted as
proposed. However, the issue was raised with respect to the
classification of the administration of oxygen and one-time dosages of
prescription medication. These issues were resolved by FRA, and the
provisions have been amended accordingly. For a more detailed
discussion, please see section ``III.H.'' of the preamble, above.
K. Revisions to Chapter 7 of the Guide, ``Rail Equipment Accident/
Incident Report''
Proposal
To allow for better analysis of railroad accident data, FRA
proposed 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. See also sections ``III.M.'' and ``III.P.1.'' of the
preamble, below.
Comments and Final Rule/Decision
No specific comments were received. For the reasons stated above,
the amendments have been adopted as proposed.
L. New Chapter 12 of the Guide on Reporting by Commuter Railroads
Proposal
FRA has been faced with a number of commuter rail service 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
operations 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 they 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 as follows: ``Develop and
maintain separate identifiable data records for commuter and intercity
rail passenger operations.''
When 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.
Comments and Final Rule/Decision
No specific comments were received. For the reasons stated above,
Chapter 12 has been adopted as proposed.
M. Changes in Reporting of Accidents/Incidents Involving Remote Control
Locomotives
Proposal
An FRA notice entitled, ``Notification of Modification of
Information Collection Requirements on Remote Control Locomotives,''
stated 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 the ``Injury and Illness Summary Report
(Continuation Sheet),'' were for only temporary use until part 225 and
the Guide were amended. 65 FR 79915, Dec. 20, 2000. At the November
2001 Working Group meeting, some members raised the issue of addressing
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
[[Page 10124]]
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 was
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).''
Comments and Final Rule/Decision
No specific comments were received regarding the changes in the
reporting of accidents/incidents involving remote control locomotives.
The amendments have been adopted as proposed. See also discussion
concerning changes in Circumstance Codes in section ``III.N.'' of this
preamble, below.
N. 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 the injured or ill person was
doing at the time he or she was injured or became ill. Often the action
of the individual was the same, but the equipment involved was
different, so a different Occurrence Code was needed for each
situation, e.g., getting off locomotive, getting off freight car,
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 or
made ill. 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. At 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 representatives 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. At 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.
Comments and Final Rule/Decision
Although no specific comments were received with respect to
Circumstance Codes during the comment period, FRA was later alerted to
several errors in the Circumstance Codes by a representative of BNSF. A
copy of BNSF e-mails concerning Circumstance codes have been placed in
the docket. The proposed Guide did not reflect the codes as updated by
a 1997 FRA memo. Accordingly, other than the edits incorporating the
codes from the 1997 memo into Appendix F of the 2003 Guide, FRA has
adopted the amendments to the codes as proposed.
O. Changes in Three Forms (Appendix H of the Guide)
Proposal
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. In
deference to the fact that rail 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, which would not
specifically state the penalties for falsifying information on the
form. In addition, the Working Group agreed to modification of Form FRA
F 6180.98 to include an item for the county in which the accident/
incident occurred.
Comments and Final Rule/Decision
No specific comments were received. For the reasons stated above,
the amendments have been adopted as proposed.
P. Miscellaneous Issues Regarding Part 225 or the Guide
1. Longitude and Latitude Blocks for Two Forms
Proposal
Following discussion 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
[[Page 10125]]
fatality. FRA proposed to add blocks to 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 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.
Comments and Final Rule/Decision
No specific comments were received. For the reasons stated above,
the blocks have been adopted as proposed.
2. Train Accident Cause Code ``Under Investigation'' (Appendix C of the
Guide)
Proposal
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 accident/
incident, 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 their
investigations before assigning the most applicable cause code(s)
available. After FRA or NTSB completes its investigation, the railroad
may choose to amend the cause code on the accident report. Accordingly,
FRA proposed to revise the Guide to demonstrate 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 is required to include in the
narrative block an explanation for why the cause of the accident/
incident could not be determined.
Comments and Final Rule/Decision
No specific comments were received. For the reasons stated above,
the amendments have been adopted as proposed.
3. ``Most Authoritative'': Determining Work-Relatedness and Other
Aspects of Reportability
Proposal
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 as to how a reporting officer determines 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 proposed 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 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
[[Page 10126]]
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 regarding the following questions: whether an
injury or illness is work-related; whether an employee needs days away
from work (or days of restricted work) to recuperate from a work-
related injury or illness, and if so, how many days; and whether a
fatality is work-related, or arose from the operation of a railroad.
FRA proposed 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.
Comments
Although no specific comments were received on this issue, a
discussion occurred at the post-NPRM Working Group meeting, where
representatives from AAR and TRE (Trinity Railway Express) expressed
concern that FRA might adopt what they perceived as OSHA's position,
namely, that work-relatedness was presumed in hearing loss cases unless
the physician stated otherwise. After reviewing OSHA's final rule, FRA
explained that although OSHA had originally proposed a presumption of
work-relatedness, OSHA later determined that it was not appropriate to
include this presumption in its final rule. See 67 FR 44045 (July 1,
2002). Consequently, OSHA decided that there are no special rules for
determining work relationship with respect to hearing loss cases,
rather the general approach would apply; thus, a hearing loss would be
work-related ``if one or more events or exposures in the work
environment either caused or contributed to the hearing loss, or
significantly aggravated a pre-existing hearing loss.'' Id.
Final Rule/Decision
FRA has adopted its proposed policy concerning work-relatedness.
However, based on the foregoing discussion of OSHA's rejection of the
presumption of work-relatedness for hearing loss cases, Question and
Answer No. 74 in the 2003 Guide has been amended to reflect OSHA's
changed position.
4. Job Title versus Job Function
Proposal
An additional issue resolved by the Working Group was to propose
amending 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.''
Comments and Final Rule/Decision
No specific comments were received. The amendments have been
adopted as proposed.
5. ``Recording'' versus ``Reporting''
Proposal
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'' in its regulations and Guide,
and since one of the statutes authorizing part 225 uses the term
``reporting,'' FRA proposed to continue to use 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 * * * .'')
Comments and Final Rule/Decision
No specific comments were received. FRA will continue to use the
term ``reporting'' instead of ``recording'' as proposed.
IV. Section-by-Section Analysis
Section 219.5 Definitions
Proposal
For purposes of FRA's rule on alcohol and drugs (part 219), the
term ``accident or incident reportable under Part 225'' was redefined
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 when the
employee instead worked unrestricted, 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.''
In addition, the definition of ``reportable injury'' for purposes
of part 219 was 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'' does 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.
Comments and Final Rule/Decision
No specific comments were received on this section. Note, however,
that comments were received on the definition of ``covered data'' and
that the category of covered data has been expanded to include another
subset of
[[Page 10127]]
cases. See Sec. 225.39 and above discussion of covered data at section
``III.H.'' of this preamble. The definitions have been adopted as
proposed, except for the modifications made to the description of
covered data cases.
Section 225.5 Definitions
Proposal
``Accident/incident'' for purposes of FRA's accident/incident
reporting rule was redefined to conform to OSHA's final rule. Under
FRA's 1997 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 read 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 one or
more of the following outcomes, and this outcome 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'' was included in the proposed
definition, and the words ``or exposure'' were added before the word
``arising.'' The addition of the word ``discernable'' was 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 [sim] trend) (there was [sim] 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 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 29 CFR 1904.4(a)(2)
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'' remained the same.
``[I]njury to any person which requires medical treatment'' was changed
to ``Injury to any person that results in medical treatment''; no
substantive change was 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' was not changed. FRA did,
however, propose a change to the 1997 rule that all occupational
illnesses of railroad employees are to be reported and required that
they be reported only under certain enumerated conditions. This also
made it clear that an occupational illness of an employee to a
contractor to a railroad is not to be reported. Further, FRA proposed
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'' was added.
Comments and Final Rule/Decision
No specific comments were received on this definition. For the
reasons stated above, the amendments have been adopted as proposed.
Proposal
The definition of ``accountable injury or illness'' was revised by
substituting the words ``railroad employee'' for ``railroad worker,''
and by adding the word ``discernably'' before the word ``associated.''
These were technical changes to bring the language into conformity with
the rest of the regulatory text.
Comments and Final Rule/Decision
No specific comments were received on this definition. For the
reasons stated above, the amendments have been adopted as proposed.
Proposal
Under the 1997 rule, the definition of ``day away from work'' meant
``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 1997 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.'' 1997 Guide, Ch. 6, p. 31,
question 34. FRA proposed 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.'' Under the 1997 rule, if a doctor recommended that an employee
not return to work, but the employee ignored the doctor's advice and
returned to work anyway, this would not count as a day away from work.
Under OSHA's Final Rule, however, the
[[Page 10128]]
reporting entity would still have to count all the days the doctor
recommended that the employee not work. As a compromise, FRA proposed
that the railroad be required to report as covered data one day away
from work, even if the employee did not actually miss a day of work
subsequent to the day of the injury or diagnosis of the illness, as
discussed previously in the preamble. The revision of the definition of
``day away from work'' was 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'' was revised
for the same reason that FRA revised the definition of ``day away from
work.''
Comments and Final Rule/Decision
No specific comments were received on these definitions, however in
its comments with respect to covered data cases, AAR sought
clarification as to whether the same principles that applied to
counting days away from work would apply to counting days of restricted
work. At the post-NPRM Working Group meeting, FRA explained that the
same principles would apply and agreed to edit the Guide to clarify
that these cases are to be handled in the same manner. Upon further
review of the Guide and the rule text definitions, FRA concluded that
although all of the information concerning the reporting of days away
from work and days of restricted work were present in the Guide and
rule text collectively, the rule text definitions were not as clear as
they could be in setting forth FRA's interpretation, as agreed upon by
the Working Group. In an effort to avoid confusion and
misinterpretation, FRA has amended the rule text definitions of ``day
away from work'' and ``day of restricted work activity,'' and the
corresponding discussions in the Guide, for clarification. See also
comments and related discussion on change in method of counting days
and 180 day cap at sections ``III.J.1.'' and ``III.J.2.'' of this
preamble.
Proposal
The definition of ``event or exposure arising from the operation of
a railroad'' was added to include the following: (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 is required to
report certain injuries and illnesses for events that occur off
railroad property is that it is difficult for railroads to know about,
and follow up on, injuries off railroad property to persons who are not
railroad employees, including employees of railroad contractors.
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 are not to be considered for reporting purposes as events
or exposures arising from the operation of the railroad.
Comments
Although no specific comments were received on the substance of the
definition or proposal itself, AAR commented that the Guide's
discussion of contractors did not reflect FRA's proposed approach and
should be amended to do so.
Final Rule/Decision
FRA has adopted the proposal as stated and has amended the Guide to
reflect this new approach. FRA intends to address the divergence from
OSHA on the issue of the employee of a contractor in the MOU. See also
earlier discussion of this issue at section ``III.D.2.'' of this
preamble.
Proposal
The definition of ``medical treatment'' was 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 read,
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 proposed 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 receives
counseling after being diagnosed as suffering from Post Traumatic
Stress Syndrome, the case is not reportable. The only factors that
would make the case reportable would be if, in addition to the
counseling, the employee receives prescription medication (such as
tranquilizers) has a day away from work, is placed on restricted work,
is transferred to another job, or meets one of the other criteria for
reportability in Sec. 225.19(d). In addition to the general objective
of inter-industry conformity, this change is supported by the absence
of meaningful interventions available to prevent such disorders.
Although involvement in highway-rail grade crossing and trespass
casualties is a known cause of stress in the railroad industry, FRA and
the regulated community 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.
Comments and Final Rule/Decision
No specific comments were received concerning the definition of
``medical treatment.'' The definition of ``medical treatment'' has been
adopted as proposed. However, the issue of what constitutes medical
treatment was raised with respect to the classification of the
administration of oxygen and one-time dosages of prescription
medication. These issues were resolved by FRA, and the provisions have
been amended accordingly. For a more detailed discussion, please see
sections ``III.J.3.'' and ``III.H.'' of the preamble, above.
Proposal
``General reportability criteria'' was defined as the criteria set
forth in Sec. 225.19(d)(1)-(5).
Comments and Final Rule/Decision
No specific comments were received on this definition. FRA has
adopted the definition as proposed.
Proposal
``Medical removal'' was defined as it is described in OSHA's
recording
[[Page 10129]]
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 proposed
that this definition change automatically if OSHA elects to revise its
recording criteria.
Comments
Although no specific comments were received on the definition
itself, AAR commented that it was opposed to the concept of floating
regulations.
Final Rule/Decision
FRA has adopted the proposed definition of ``medical removal'' and
its incorporation of OSHA's provision in 29 CFR part 1910. However, in
order to make clear that FRA is not ``floating'' this definition with
OSHA's definition of that term, FRA has adopted a year-specific version
of OSHA's definition, namely, the 2002 version. See also earlier
discussion of this definition in the context of the ``float'' vs.
``fixed'' issue at section ``III.D.1.'' of this preamble.
Proposal
``Needlestick and sharps injury'' and ``new case'' were defined in
general conformity with OSHA's definitions of these terms under 29 CFR
1904.8 and 1904.6, respectively.
Comments and Final Rule/Decision
No specific comments were received on these definitions. The
definitions have been adopted as proposed.
Proposal
``Privacy concern case'' was defined as in 29 CFR 1904.29, except
that FRA would categorically exclude MSDs from its definition of
``privacy concern case.'' As discussed in section ``III.G.1.,'' above,
FRA sought comment on whether or not FRA should adopt this exclusion,
especially if OSHA's proposed January 1, 2004, delay took effect, but
in either case. FRA also sought comment on whether it should adopt the
proposed exclusion of MSDs from its definition of ``privacy concern
case'' 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.
Comments and Final Rule/Decision
No specific comments were received on this definition. FRA has
adopted the definition as proposed and has not adopted the exclusion of
MSDs from its definition of ``privacy concern case.'' See also
discussion at section ``III.G.1.'' of this preamble. FRA intends to
address the slight differences on this issue in its MOU with OSHA.
Proposal
``Occupational hearing loss'' was defined as OSHA defined it under
29 CFR 1904.10 for calendar year 2002. As discussed in section
``III.D.1.,'' above, FRA sought 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.
Comments
AAR strongly opposed the adoption of OSHA's new policy, noting that
the policy would lead to a greater number of hearing loss cases being
reported by the railroad industry and result in an adverse trend in the
occurrence of railroad injuries regardless of the railroads' actual
performance. After further discussion of the criteria at the post-NPRM
meeting, AAR acquiesced in accepting the criteria for reporting, but
was still concerned regarding the anticipated increases in reportables.
AAR requested that FRA consider placing the hearing loss cases under
covered data.
Final Rule/Decision
The importance of capturing the true magnitude of work-related
hearing loss is justification alone for adopting OSHA's criteria;
however, it is important to note that the increase in the number of
reportables will be partially offset by OSHA's reclassification as non-
reportable many events that previously were reportable.\9\ For a more
detailed discussion of this issue, see sections ``III.D.1.'' and
``III.H.'' of this preamble. Note that, for clarification and
simplicity, the rule text definition has been amended to reflect the
actual recording criteria used by OSHA (for calendar year 2003 and
beyond) rather than the citation to the relevant section of OSHA's
regulation. This amendment does not represent a substantive change from
OSHA's criteria.
---------------------------------------------------------------------------
\9\ See earlier discussion concerning the definitions of
``medical treatment'' and ``first aid'' at section ``III.J.3.'' of
this preamble.
---------------------------------------------------------------------------
Proposal
The definition of ``occupational illness'' was 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. By contrast, under the 1997 definition of ``occupational
illness,'' other categories of persons, such as Worker on Duty-
Contractor, were included in the definition, but illnesses to those
persons were not reportable because Sec. 225.19(d)(4) limited the
reportability of occupational illnesses to those of ``a railroad
employee.''
Comments and Final Rule/Decision
No specific comments were received on this definition. The
definition has been adopted as proposed.
Proposal
``Occupational musculoskeletal disorder'' was defined essentially
as it was set forth by OSHA in January 2001. See 29 CFR 1904.12 as
published in 66 FR 6129. One of the most common forms of occupational
musculoskeletal disorder is Carpal Tunnel Syndrome and other repetitive
motion disorders. Under Sec. 1904.12 of its January 19, 2001, final
rule, OSHA defined 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 delayed the effective
date of this provision from January 1, 2002, to January 1, 2003, and
proposed delaying 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. After the
publication of this NPRM, OSHA adopted this proposed delay in its
December 17, 2002 final rule. See 67 FR 77165.
As the issue of OSHA's proposed delay of this provision was not
before the Working Group when consensus was reached, FRA sought comment
on whether or not FRA should still adopt the above definition of MSDs
if OSHA's proposed January 1, 2004 delay took effect. FRA noted that if
the provision were adopted as approved by the Working Group, FRA would
be adopting
[[Page 10130]]
the definition in advance of OSHA's defining 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 issuance of the proposed delay. See
discussion concerning reporting criteria for MSDs at section
``III.D.1.'' of the preamble, above. Even if OSHA chose not to delay
the effective date of this provision, FRA sought comment on whether or
not FRA should even adopt OSHA's definition for calendar year 2003,
since it stated that there were no special criteria beyond the general
recording criteria for determining which MSDs to record and because
OSHA's definition appeared to be used primarily as guidance for when to
check the MSD column on the 300 Log. See 66 FR 6129-6130. It was noted
that choosing to exclude this definition from FRA's final rule would
not have affected 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. FRA also sought 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.
Comments
Although no specific comments were received regarding the adoption
of a definition of an MSD, FRA raised the issue at the post-NPRM
Working Group meeting. FRA pointed out that there were no special
reporting criteria for MSDs and that there may be more problems in
trying to delete the definition than to leave it in. Because MSDs must
be independently reportable, there seemed to be little or no effect on
the regulated community by retaining the proposed definition. AAR
indicated that it was inclined to leave the definition in, but might
reconsider the issue and provide us with a position after the meeting.
However, no further comments were received.
Final Rule/Decision
For the reasons stated above, FRA has adopted the MSD definition as
proposed. See also the discussion of MSDs in section ``III.D.1.'' of
this preamble, and the discussion of deleting the exclusion of MSDs
from the definition of ``privacy concern case'' at section ``III.G.1.''
of this preamble. Because FRA has adopted a requirement beyond what
OSHA requires, this difference will be addressed in an MOU with OSHA,
if necessary.
Proposal
``Occupational tuberculosis'' was defined in general conformity
with OSHA's recording criteria under 29 CFR 1904.11 for work-related
tuberculosis cases. The word ``occupational'' was included in the term
because the term is intended to cover only the occupational illness; it
would be confusing to define simply ``tuberculosis'' when the
unmodified term would seem to call for a medical definition of
tuberculosis in general.
Comments and Final Rule/Decision
No specific comments were received on this definition. For the
reasons stated above, the definition has been adopted as proposed.
Proposal
``Significant change in the number of reportable days away from
work'' was defined as a 10-percent or greater change in the number of
days away from work that the railroad would have to report. FRA decided
on 10 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, but 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
10-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 10-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 to withdraw its report of that
accident. While the 10-percent threshold was included in Chapter 6 of
the 1997 Guide, FRA proposed to create a 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 in section ``III.D.1.'' of the
preamble, above.
Comments and Final Rule/Decision
No specific comments were received on this definition, however in
its comments with respect to covered data cases, AAR sought
clarification as to whether the same principles that applied to
counting days away from work would apply to counting days of restricted
work. At the post-NPRM Working Group meeting, FRA explained that the
same principles would apply and agreed to edit the Guide to clarify
that these cases are to be handled in the same manner. Upon further
review of the Guide and the rule text definitions, FRA found that the
rule text definition concerning a ``significant change in the number of
days away from work'' did not express FRA's policy that the 10-percent
threshold also applies to days of restricted work activity. Given that
this policy was set forth in the 1997 Guide and was re-approved by the
Working Group and the full RSAC for the 2003 Guide, FRA concluded that
the definition should be amended to clarify that the same 10-percent
threshold policy that applies to amending reports with respect to days
away from work also applies with respect to days of restricted work
activity.
Similarly, as noted in the preambles of the NPRM and this final
rule, FRA uses a 10-percent threshold for amending rail equipment
accident reports. Both the 1997 Guide and the 2003 Guide explain a
railroad's duty to amend its rail equipment accident reports when an
estimated value of the damage costs is significantly in error. A
significant difference is defined as a 10-percent variance. Because FRA
and the Working Group agreed that the Guide's explanation of
``significant change in the number of reportable days away from work''
should be included in the rule text as a definition, FRA concluded that
it would be equally appropriate to include the Guide's explanation
concerning a significant change for purposes of amending rail equipment
accident reports. Accordingly, FRA has added a definition of
``significant change in the damage costs for reportable rail equipment
accidents/incidents'' that conforms to FRA's previous policy on this
matter.
Section 225.9 Telephonic Reports of Certain Accidents/Incidents and
Other Events
Proposal
Under the 1997 rule, Sec. 225.9 required a railroad to report
immediately by telephone any accident/incident arising from the
operation of the railroad that resulted in the death of a railroad
employee or railroad passenger or the
[[Page 10131]]
death or injury of five or more persons. FRA proposed 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) listed the events that a railroad would be
required to report telephonically. In proposed subsection (a)(1),
``Certain deaths or injuries,'' FRA proposed 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 proposed 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 the railroad. Under the proposed change,
if the death ``may'' have arisen out of the operation of the railroad,
the case must 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 has added 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 requiring
telephonic reporting.
In proposed subsection (a)(2), FRA captures certain train accidents
or train incidents even if death or injury does not necessarily occur
as a result of the accident or incident. Under the 1997 rule, FRA did
not require telephonic reporting of certain train accidents or train
incidents per se, but required that they be reported only if they
resulted in death of a rail passenger or employee, or death or injury
of five or more persons. Accordingly, FRA proposed 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, including railroad and nonrailroad property.
In proposed subsection (a)(3), FRA requires telephonic reporting of
incidents in which a reportable derailment or collision occurs on, or
fouls, a line used for scheduled passenger service. This final
provision permits 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.
Comments and Final Rule/Decision
No specific comments were received on this issue. For the reasons
stated above, the amendments have been adopted as proposed.
Section 225.19 Primary Groups of Accidents/Incidents
Proposal
FRA proposed 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'' in Sec. 225.5.
Comments and Final Rule/Decision
No specific comments were received on this provision. The
amendments have been adopted as proposed.
Section 225.23 Joint Operations
Proposal
FRA proposed to make technical amendments to Sec. 225.23(a) simply
to bring it into conformity with the rest of the proposed regulatory
text.
Comments and Final Rule/Decision
No specific comments were received on this provision. The
amendments have been adopted as proposed.
Section 225.25 Recordkeeping
Proposal
FRA proposed to amend this section by revising subsection
225.25(h)(15) to apply to ``privacy concern cases,'' which would be
defined in proposed Sec. 225.5. 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.''
Comments and Final Rule/Decision
No specific comments were received on this provision. The
amendments have been adopted as proposed.
Section 225.39 FRA Policy Statement on Covered Data
Proposal
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 when the employee instead worked unrestricted,
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 proposed that
these cases not be included in FRA's regular statistical summaries. The
data are requested by DOL 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.
Comments
AAR commented that the Guide needed to be clearer in its discussion
of covered data so as to include: a definition of that term;
instructions on how to report such cases; and clarification of the
treatment of these cases in the questions-and-answers section of the
Guide and in the instructions for Form FRA F 6180.55a. In its comments
on the NPRM, verbal comments at the post-NPRM Working Group Meeting,
and post-meeting letter and e-mail, AAR expressed a concern a concern
regarding the sharp increase in the number of reportables that would
result by adopting the proposed changes. In order to soften the impact
of
[[Page 10132]]
these changes on the railroad industry data, AAR requested that the
covered data criteria be extended to three other areas of reporting:
one-time dosages of prescription medication, oxygen therapy, and
occupational hearing loss.
Final Rule/Decision
FRA determined that the definition of ``covered data'' in Sec.
225.39 and the corresponding discussion of covered data in the Guide
should be amended to address AAR's concerns regarding clarity and to
reflect the addition of one-time dosages of topical prescription
medication. For a more detailed discussion of FRA's policy statement on
covered data, see section ``III.H.'' of this preamble.
Section 240.117 Criteria for Consideration of Operating Rules
Compliance Data
Proposal
FRA proposed 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 revoking a locomotive engineer's certification pursuant to
part 240; specifically, 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 amendment creates an
exception for accidents or incidents that are classified as ``covered
data'' under part 225. The reason that ``covered data'' were 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 revocation under part 240.
Comments and Final Rule/Decision
No specific comments were received on this section. The exception
has been adopted as proposed. Note, however, that comments were
received on the definition of ``covered data'' and that the category of
covered data has been expanded to include another subset of cases. See
Sec. 225.39 and above discussion of covered data at section ``III.H.''
of this preamble.
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final 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 impact analysis 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.
As part of the regulatory impact analysis, FRA has assessed
quantitative measurements of costs and benefits expected from the
adoption of this final rule. The analysis also contains qualitative
discussions of benefits that were not quantified. Over a 20-year
period, the Present Value (PV) of the estimated costs is $476,000, and
the PV of the estimated benefits is $612,000.
The major costs anticipated from adopting this final rule include
those incurred in complying with additional OSHA-conformity reporting
requirements, such as the covered data cases. Additional reporting
burdens on railroads will also occur from an increase in telephonic
reporting, an increase in reporting of occupational hearing loss cases,
and from the recording of claimed occupational illnesses cases.
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 final 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 will 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 will produce a savings from a reduction in the use
of the narrative block on the railroad injury and illness reports.
Finally, railroads will receive a savings from a simplification in the
counting of 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 will be qualitative benefits from this rulemaking from better
data 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 final rule would have a significant economic impact on a
substantial number of small entities, then the agency must prepare an
Regulatory Flexibility Analysis (RFA). If the agency determines the
opposite, then the agency must certify that determination; an RFA may
also provide the basis for the agency's determination that the final
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 for a Class III railroad carrier, which is
[[Page 10133]]
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 proposed to use this alternative definition of ``small entity'' for
this rulemaking, and requested comments on its use. No comments were
received related to this proposal.
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. This Executive Order also requires Federal agencies 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). Since this final rule does not have a significant economic
impact on a substantial number of small entities, FRA has not notified
the Office of Advocacy at SBA, and therefore, has not received any
comments from Advocacy.
In accordance with the Regulatory Flexibility Act of 1980, FRA has
prepared and placed in the docket an RFA, which assesses the small
entity impact of this final 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.
As stated in the RFA, FRA has determined that there are over 650
small railroads that could potentially be affected by this rulemaking;
however, the 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 anticipated from final rule 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 final rule.
It is important to note that this final rule will 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 final rule also simplifies
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 will be
eliminated.
This final rule does 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
final rule.
The RFA concludes that this final rule will not have a significant
economic impact on a substantial number of small entities; therefore,
FRA certifies that this final 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. In order to determine the
significance of the economic impact for this RFA, FRA invited comments
from all interested parties concerning the potential economic impact on
small entities in the notice of proposed rulemaking. The Agency
considered the lack of comments and data it received in making this
decision and certification.
C. Paperwork Reduction Act of 1995
The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Total Total
Respondent Total annual Average time per annual annual
CFR Section--49 CFR universe responses response burden burden
hours cost
----------------------------------------------------------------------------------------------------------------
225.9--Telephone Reports-- 685 railroads..... 500 reports....... 15 minutes....... 125 $5,250
Certain Accidents/Incidents
and Other Events.
225.11--Reporting of Rail 685 railroads..... 3,000 forms....... 2 hours.......... 6,000 252,000
Equipment Accidents/Incidents
(Form FRA F 6180.54).
225.12(a)--Rail Equipment 685 railroads..... 1,000 forms....... 15 minutes....... 250 10,500
Accident/Incident Reports--
Human Factor (Form FRA F
6180.81).
225.12(b)--Rail Equipment 685 railroads..... 4,100 notices/ 10 minutes and 3 372 15,624
Accident/Incident Reports-- copies. minutes.
Human Factors (Part 1, Form
FRA F 6180.78).
225.12(c)--Rail Equipment 685 railroads..... 100 requests...... 20 minutes....... 33 1,386
Accident/Incident Reports--
Human Factor--Joint Operations.
225.12(d)--Rail Equipment 685 railroads..... 20 attachments + 15 minutes....... 10 420
Accident/Incident Reports-- 20 notices.
Human Factor--Late
Identification.
225.12(e)--Rail Equipment 685 railroads..... 75 statements..... 1.5 hours........ 113 2,938
Accident/Incident Reports--
Human Factor--Employee
Supplement (Part II, Form FRA
F 6180.78).
[[Page 10134]]
225.12(f)--Rail Equipment Railroad Employees 10 letters........ 2 hours.......... 20 520
Accident/Incident Reports--
Human Factor--Employee
Confidential Letter.
225.13--Amended Rail Equipment 685 railroads..... 10 amended 1 hour + 3 11 462
Accident\Incident Reports. reports, 20 minutes.
copies.
225.17--Doubtful Cases; Alcohol/ 685 railroads..... 80 reports........ 30 minutes....... 40 1,680
Drug Involvement.
--Appended Reports......... 685 railroads..... 5 reports......... 30 minutes....... 3 126
225.19--Highway--Rail Grade 685 railroads..... 3,400 forms....... 2 hours.......... 6,800 285,600
Crossing Accident\Incident
Reports (Form FRA F 6180.57).
--Death, Injury, or 685 railroads..... 13,800 forms...... 20 minutes....... 4,400 184,800
Occupational Illness (Form
FRA F 6180.55a).
225.21 Forms:
--Form FRA F 6180.55-- 685 railroads..... 8,220 forms....... 10 minutes....... 1,370 57,540
Railroad Injury\Illness
Summary.
--Form FRA F 6180.56-- 685 railroads..... 685 forms......... 15 minutes....... 171 7,182
Annual Report of Employee
Hours and Casualties by
State.
--Form FRA F 6180.98--RR 685 railroads..... 18,000 forms...... 1 hour........... 18,000 756,000
Employee Injury and/or
Illness Record.
--Form FRA F 6180.98-- 685 railroads..... 540 copies........ 2 minutes........ 18 756
Copies.
--Form FRA F 6180.97-- 685 railroads..... 13,000 forms...... 30 minutes....... 6,500 273,000
Initial Rail Equipment
Accident/Incident Record.
--Form FRA F 6180.107-- 685 railroads..... 300 forms......... 15 minutes....... 75 3,150
Alternate Record For
Illnesses Claimed to Be
Work Related.
225.25--Posting of Monthly 685 railroads..... 8,220 lists....... 16 minutes....... 2,192 92,064
Summary.
225.27--Retention of Records... 685 railroads..... 1,900 records..... 2 minutes........ 63 2,646
225.33--Internal Control Plans-- 685 railroads..... 25 amendments..... 14 hours......... 350 14,700
Amended.
225.35--Access to Records and 15 railroads...... 400 lists......... 20 minutes....... 133 5,586
Reports--Lists.
--Subsequent Years......... 4 railroads....... 16 lists.......... 20 minutes....... 5 210
225.37--Magnetic Media 8 railroads....... 96 transfers...... 10 minutes....... 16 672
Transfers.
--Batch Control (Form FRA F 685 railroads..... 200 forms......... 3 minutes........ 10 420
6180.99).
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions,
searching existing data sources, gathering or maintaining the needed
data, and reviewing the information.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, 725 17th St., NW., Washington, DC 20503. OMB
is required to make a decision concerning the information collection
requirements contained in this final rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
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 and final 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 FRA's regulations under part 225 preempt States
from prescribing accident/incident reporting requirements, there is
nothing in these 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 did 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 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.
[[Page 10135]]
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 final 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 final rule in
accordance with Executive Order 13211. FRA has determined that this
final rule is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
Consequently, FRA has determined that this 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 Final Rule
For the reasons discussed in the preamble, FRA amends 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 and revising the definition of
Reportable injury to read as follows:
Sec. 219.5 Definitions.
* * * * *
Accident or incident reportable under part 225 does not include a
case that is classified as ``covered data'' under Sec. 225.5 of this
chapter (i.e., employee injury/illness cases reportable exclusively
because a physician or other licensed health care professional either
made a one-time topical application of a prescription-strength
medication to the employee's injury or made a written recommendation
that the employee: Take one or more days away from work when the
employee instead reports to work (or would have reported had he or she
been scheduled) and takes no days away from work in connection with the
injury or illness; work restricted duty for one or more days when the
employee instead works unrestricted (or would have worked unrestricted
had he or she been scheduled) and takes no other days of restricted
work activity in connection with the injury or illness; or take over-
the-counter medication at a dosage equal to or greater than the minimum
prescription strength, whether or not the employee actually takes the
medication).
* * * * *
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
reportable exclusively because a physician or other licensed health
care professional either made a one-time topical application of a
prescription-strength medication to the employee's injury or made a
written recommendation that the employee: Take one or more days away
from work when the employee instead reports to work (or would have
reported had he or she been scheduled) and takes no days away from work
in connection with the injury or illness; work restricted duty for one
or more days when the employee instead works unrestricted (or would
have worked unrestricted had he or she been scheduled) and takes no
other days of restricted work activity in
[[Page 10136]]
connection with the injury or illness; or take over-the-counter
medication at a dosage equal to or greater than the minimum
prescription strength, whether or not the employee actually takes the
medication.
* * * * *
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 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 the terms 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 damage
costs for reportable rail equipment accidents/incidents, Significant
change in the number of reportable days away from work or days
restricted, Significant illness, and Significant injury to read 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 outcomes, and this outcome 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 any 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 if this
disorder 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 information that must be reported to FRA under
this part concerning a railroad employee injury or illness case that is
reportable exclusively because a physician or other licensed health
care professional--
(1) Recommended in writing that--
(i) The employee take one or more days away from work when the
employee instead reports to work (or would have reported had he or she
been scheduled) and takes no days away from work in connection with the
injury or illness,
(ii) The employee work restricted duty for one or more days when
the employee instead works unrestricted (or would have worked
unrestricted had he or she been scheduled) and takes no days of
restricted work activity in connection with the injury or illness, or
(iii) The employee take over-the-counter medication at a dosage
equal to or greater than the minimum prescription strength, whether or
not the employee actually takes the medication; or
(2) Made a one-time topical application of a prescription-strength
medication to the employee's injury.
Day away from work means a day away from work as described in
paragraph (1) of this definition or, if paragraph (1) does not apply, a
day away from work solely for reporting purposes as described in
paragraph (2) of this definition. For purposes of this definition, the
count of days includes all calendar days, regardless of whether the
employee would normally be scheduled to work on those days (e.g.,
weekend days, holidays, rest days, and vacation days), and begins on
the first calendar day after the railroad employee has been examined by
a physician or other licensed health care professional (PLHCP) and
diagnosed with a work-related injury or illness. In particular, the
term means--
(1) Each calendar day that the employee, for reasons associated
with his or her condition, does not report to work (or would have been
unable to report had he or she been scheduled) if not reporting results
from:
(i) A PLHCP's written recommendation not to work, or
(ii) A railroad's instructions not to work, if the injury or
illness is otherwise reportable; or
(2) A minimum of one calendar day if a PLHCP, for reasons
associated with the employee's condition, recommends in writing that
the employee take one or more days away from work, but the employee
instead reports to work (or would have reported had he or she been
scheduled). This paragraph is intended to take into account ``covered
data'' cases and also those non-covered data cases that are
independently reportable for some other reason (e.g., ``medical
treatment'' or ``day of restricted work activity''). The requirement to
report ``a minimum of one calendar day'' is intended to give a railroad
the discretion to report up to the total number of days recommended by
the PLHCP.
Day of restricted work activity means a day of restricted work
activity as described in paragraph (1) of this definition or, if
paragraph (1) does not apply, a day of restricted work activity solely
for reporting purposes as described in paragraph (2) of this
definition; in both cases, the work restriction must affect one or more
of the employee's routine job functions (i.e., those work activities
regularly performed at least once per week) or prevent the employee
from working the full workday that he or she would otherwise have
worked. For purposes of this definition, the count of days includes all
calendar days, regardless of whether the employee would normally be
scheduled to work on those days (e.g., weekend days, holidays, rest
days, and vacation days), and begins on the first calendar day after
the railroad employee has been examined by a
[[Page 10137]]
physician or other licensed health care professional (PLHCP) and
diagnosed with a work-related injury or illness. In particular, the
term means--
(1) Each calendar day that the employee, for reasons associated
with his or her condition, works restricted duty (or would have worked
restricted duty had he or she been scheduled) if the restriction
results from:
(i) A PLHCP's written recommendation to work restricted duty, or
(ii) A railroad's instructions to work restricted duty, if the
injury or illness is otherwise reportable; or
(2) A minimum of one calendar day if a PLHCP, for reasons
associated with the employee's condition, recommends in writing that
the employee work restricted duty for one or more days, but the
employee instead works unrestricted (or would have worked unrestricted
had he or she been scheduled). This paragraph is intended to take into
account ``covered data'' cases and also those non-covered data cases
that are independently reportable for some other reason (e.g.,
``medical treatment'' or ``day of restricted work activity''). The
requirement to report ``a minimum of one calendar day'' is intended to
give a railroad the discretion to report up to the total number of days
recommended by the PLHCP.
* * * * *
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 one or more of 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 the Occupational Safety and Health
Administration standard in 29 CFR part 1910 in effect during calendar
year 2002, 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 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, where
the employee's audiogram reveals a work-related Standard Threshold
Shift (STS) (i.e., at least a 10-decibel change in hearing threshold,
relative to the baseline audiogram for that employee) in hearing in one
or both ears, and the employee's total hearing level is 25 decibels or
more above audiometric zero (averaged at 2000, 3000, and 4000 Hz) in
the same ear(s) as the STS.
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 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 injuries or 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 damage costs for reportable rail
equipment accidents/incidents means at least a ten-percent variance
between the damage amount reported to FRA and current cost figures.
Significant change in the number of reportable days away from work
or days restricted means at least a ten-percent variance in the number
of actual reportable days away from work or days restricted compared to
the number of days already 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
[[Page 10138]]
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, including 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 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 outcomes, and this outcome 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 any 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 if this
disorder 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 a railroad 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
[[Page 10139]]
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 they are 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 where the
supporting documents are located so that they are 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
[[Page 10140]]
Sec. 225.5 of this chapter (i.e., employee injury/illness cases
reportable exclusively because a physician or other licensed health
care professional either made a one-time topical application of a
prescription-strength medication to the employee's injury or made a
written recommendation that the employee: Take one or more days away
from work when the employee instead reports to work (or would have
reported had he or she been scheduled) and takes no days away from work
in connection with the injury or illness; work restricted duty for one
or more days when the employee instead works unrestricted (or would
have worked unrestricted had he or she been scheduled) and takes no
other days of restricted work activity in connection with the injury or
illness; or take over-the-counter medication at a dosage equal to or
greater than the minimum prescription strength, whether or not the
employee actually takes the medication, as instances of failure to
adhere to this section;
* * * * *
Issued in Washington, DC, on February 19, 2003.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 03-4633 Filed 2-28-03; 8:45 am]
BILLING CODE 4910-06-P