# Conforming the Federal Railroad Administration's Accident/Incident Reporting Requirements to the Occupational Safety and Health Administration's Revised Reporting Requirements; Other Amendments > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A03-4633 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 3, 2003 - **Citation:** 68 FR 10108 ## Text 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. 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-§ 225.3 B. Revisions and Additions to Definitions in the Regulatory Text-§ 225.5 C. Revisions to Provision on Telephonic Reporting-§ 225.9 D. Revisions to Criteria for Reporting Occupational Fatalities, Injuries, and Illnesses—§ 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 § 225.21, “Forms” F. Technical Revision to § 225.23, “Joint Operations” G. Revisions to § 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 § 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-Strips TM , 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 Remote Control 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 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 § 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 amending § 225.5, which contains definitions; § 225.9, which pertains to telephonic reporting of certain accidents/incidents; and § 225.19(d), which pertains to reporting deaths, injuries, and occupational illnesses. To make certain other miscellaneous conforming changes, the Working Group recommended amending § 225.21, which pertains to forms; § 225.23(a), which pertains to joint operations; § 225.33, which pertains to internal control plans; and § 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 § 225.25, pertaining to recordkeeping. Finally, the Working Group recommended adding a new § 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 § 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 § 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 § 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. 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. III. Issues Addressed by the Working Group A. Applicability of Part 225—§ 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 § 1904.41 or § 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 § 225.3. Under § 225.3(a), the central provisions of part 225 apply to: All railroads except— (1) A railroad that operates freight trains only on track inside an installation which is not part of the general railroad system of transportation or that owns no track except for track that is inside an installation that is not part of the general railroad system of transportation and used for freight operations. (2) Rail mass transit operations in an urban area that are not connected with the general railroad system of transportation. (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 § 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—§ 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—§ 225.9 Proposal The Working Group agreed to propose certain amendments to § 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 § 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 §§ 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 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 § 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 § 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. § 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—§ 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 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 § 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 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 § 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 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 § 225.19(d). First, FRA required that all occupational illnesses of railroad employees be reported. See §§ 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 § 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 § 225.19(d) and related definitions at § 225.5. FRA would, however, distribute the specific conditions specified under OSHA's “significant” category (§ 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 § 1904.7: OSHA believes that most significant injuries and illnesses will result in one of the criteria listed in § 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 § 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 § 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 § 225.19(d)(4), only the occupational illnesses of 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 § 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 § 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 § 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. 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 § 225.21, “Forms” Proposal The Working Group agreed to add a new subsection § 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 § 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 § 225.23, “Joint Operations” Proposal The Working Group agreed to propose certain minor changes to the regulatory text (specifically, to § 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 § 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 § 225.25, “Recordkeeping” 1. Privacy Concern Cases Proposal The Working Group agreed to propose changes to the regulatory text under § 225.25, concerning recordkeeping, by revising § 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 § 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 § 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 § 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. § 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 § 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. 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 § 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 § 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 § 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— • Be captioned “alleged”; • Be retained in a separate file from other accountables; and • If accountables are maintained electronically, be excluded from the requirement to be provided at any railroad establishment within 4 hours of a request. This would permit the records to be kept at a central location, in either paper or electronic format. The railroad's internal control plan would be required to specify the custodian of these records and where they could be found. For any case determined to be reportable, the designation “alleged” would be removed, and the record would be transferred to the reporting officer for retention and reporting in the normal manner. In the event the narrative block (Form FRA F 6180.98, block 39) 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 §§ 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 § 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, § 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 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 § 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 § 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 § 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 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. • 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.) • 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. • 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. • 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 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 § 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 § 225.5. b. Eye patches, butterfly bandages, Steri-Strips TM , and similar items. Under FRA's 1997 Guide, use of an eye patch, butterfly bandage, Steri-Strip TM , 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-Strip TM is considered to be first aid and, therefore, not reportable. In order to conform FRA's Guide to OSHA's Final Rule, FRA proposed to amend the Guide so that use of an eye patch, butterfly bandage, or Steri-Strip TM 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. 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 §§ 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 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 pe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-4633. Public record. Not legal advice.