[Federal Register Volume 68, Number 41 (Monday, March 3, 2003)]
[Rules and Regulations]
[Pages 10108-10140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4633]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 219, 225, and 240



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

  Federal Register / Vol. 68, No. 41 / Monday, March 3, 2003 / Rules 
and Regulations  

[[Page 10108]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 219, 225, and 240

[Docket No. FRA-2002-13221, Notice No. 2]
RIN 2130-AB51


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

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

ACTION: Final rule.

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

EFFECTIVE DATE: May 1, 2003.

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

SUPPLEMENTARY INFORMATION: In addition to revising its regulations in 
the Code of Federal Regulations, FRA has revised its Guide for 
Preparing Accident/Incident Reports (Guide or FRA's Guide). 
Instructions for electronically submitting monthly reports to FRA are 
available in the 2003 companion guide: Guidelines for Submitting 
Accident/Incident Reports by Alternative Methods. The 2003 Guide and 
companion guide are posted on FRA's Web site at http://safetydata.fra.dot.gov/guide.
    For more detailed information on OSHA's revised reporting 
regulations, see http://safetydata.fra.dot.gov/OSHA-materials.
    Also, note that for brevity, all references to CFR parts will be 
parts in 49 CFR, unless otherwise noted.
    Privacy Act Statement: Anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or 
you may visit http://dms.dot.gov.

Table of Contents for Supplementary Information

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

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

    On January 19, 2001, OSHA published revised regulations entitled, 
``Occupational Injury and Illness Recording and Reporting Requirements; 
Final Rule,'' including a lengthy preamble that explains OSHA's 
rationale for these amendments. See 66 FR 5916, to be codified at 29 
CFR parts 1904 and 1952; see also 66 FR 52031 (October 12, 2001) and 66 
FR 66943 (December 27, 2001) (collectively, OSHA's Final Rule). A side-
by-side comparison of OSHA's previous reporting and recordkeeping 
provisions with OSHA's new requirements appears at http://safetydata.fra.dot.gov/OSHA-materials. With the exception of three

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provisions, OSHA's final rule became effective on January 1, 2002. See 
66 FR 52031; see also 67 FR 44037 (July 1, 2002) and 67 FR 44124 (July 
1, 2002).
    FRA's railroad accident/incident reporting regulations, which are 
codified at part 225, include, among other provisions, sections that 
pertain to railroad occupational fatalities, injuries, and illnesses; 
these sections are consistent with prior OSHA regulations, with minor 
exceptions. These sections of FRA's accident/incident regulations that 
concern railroad occupational casualties should be maintained, to the 
extent practicable, in general conformity with OSHA's recordkeeping and 
reporting regulations to permit comparability of data on occupational 
casualties between various industries, to allow integration of railroad 
industry data into national statistical databases, and to improve the 
quality of data available for analysis of casualties in railroad 
accidents/incidents. Accordingly, through this final rule, FRA makes 
conforming amendments to its existing accident/incident reporting 
regulations and Guide. Further, FRA makes minor amendments to its 
alcohol and drug regulations (part 219) and locomotive engineer 
qualifications regulations (part 240) in those areas that incorporate 
terms from part 225.

    Note: Throughout this preamble to the final rule, excerpts from 
OSHA regulations are provided for the convenience of the reader. The 
official version of the OSHA regulations appears in 29 CFR part 
1904.

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

    If you create records to comply with another government agency's 
injury and illness recordkeeping requirements, OSHA will consider 
those records as meeting OSHA's Part 1904 recordkeeping requirements 
if OSHA accepts the other agency's records under a memorandum of 
understanding with that agency, or if the other agency's records 
contain the same information as this Part 1904 requires you to 
record.

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

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

A. The Development of the Railroad Safety Advisory Committee (RSAC) 
Accident/Incident Reporting Working Group

    FRA developed the Notice of Proposed Rulemaking (NPRM), published 
October 9, 2002, and this final rule through its Railroad Safety 
Advisory Committee (RSAC). See 67 FR 63022. RSAC was formed by FRA in 
March of 1996 to provide a forum for consensual rulemaking and program 
development. The Committee has representatives from all of the agency's 
major interest groups, including railroad carriers, labor 
organizations, suppliers, manufacturers, and other interested parties. 
FRA typically proposes to assign a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation to develop recommendations to 
FRA for action on the task. These recommendations are developed by 
consensus. If a working group comes to unanimous consensus on 
recommendations for action, the package is presented to the full RSAC 
for a vote. If the proposal is accepted by a simple majority of the 
RSAC, the proposal is formally recommended to FRA. If a working group 
is unable to reach consensus on recommendations for action, FRA will 
move ahead to resolve the issue through traditional rulemaking 
proceedings.
    On April 23, 2001, FRA presented task statement 2001-1, regarding 
accident/incident reporting conformity, to the full RSAC. When FRA 
presented the subject of revising its accident reporting regulations 
and Guide to RSAC, the agency stated that the purpose of the task was 
to bring FRA's regulations and Guide into conformity with OSHA's final 
rule, and to make certain other technical amendments. The task was 
accepted, and a working group was established to complete the task.
    Members of the Working Group, in addition to FRA, include 
representatives of the following 26 entities: the American Public 
Transportation Association (APTA); the National Railroad Passenger 
Corporation (Amtrak); the Association of American Railroads (AAR); The 
American Short Line and Regional Railroad Association (ASLRRA); the 
Brotherhood of Locomotive Engineers (BLE); the Brotherhood of Railroad 
Signalmen (BRS); Transportation Communications International Union/
Brotherhood Railway Carmen (TCIU/BRC); Canadian National Railway 
Company (CN) and Illinois Central Railroad Company (IC); the Sheet 
Metal Workers International Association; the Brotherhood of Maintenance 
of Way Employes (BMWE); The Burlington Northern and Santa Fe Railway 
Company (BNSF); Canadian Pacific Railway Company (CP); Consolidated 
Rail Corporation-Shared Assets (CR); CSX Transportation, Inc. (CSX); 
Norfolk Southern Railway Company (NS); Union Pacific Railroad Company 
(UP); The Long Island Rail Road (LIRR); Maryland Transit Administration 
(MARC); Southern California Regional Rail Authority (Metrolink); 
Virginia Railway Express (VRE); Trinity Rail (TR); North Carolina 
Department of Transportation (NCDOT); Northeast Illinois Regional 
Commuter Rail Corp. (Metra); the United Transportation Union (UTU); and 
Wisconsin Central Ltd. (WC).

B. The Working Group's Resolution of Issues Prior to Publication of the 
NPRM

    Prior to the publication of the NPRM, the Working Group held a 
total of eight meetings related to this task statement. As a result of 
these meetings, the Working Group developed consensus recommendations 
proposing to change the FRA regulations and Guide with respect to all 
issues presented except for one. Consensus could not be reached on 
whether railroads should be required to report deaths and injuries of 
the employees of railroad contractors who are killed or injured while 
off railroad property. Prior to this rulemaking, FRA had interpreted 
part 225 as not requiring the reporting of such cases. After the last 
Working Group session before publication of the NPRM, FRA developed a 
compromise position, proposing that railroads not be required to report 
deaths or injuries to persons who are not railroad employees that occur 
while off railroad property unless they result from a train accident, a 
train incident, a highway-rail grade crossing accident/incident, or a 
release of a hazardous material or other dangerous commodity related to 
the railroad's rail transportation business. To accomplish this result, 
FRA proposed a three-tier definition of the term ``event or exposure 
arising from the operation of a railroad.'' See proposed Sec.  225.5.
    The NPRM intended to reflect a Working Group consensus on all other 
issues that were summarized in the preamble. With regard to part 225, 
the Working Group recommended

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

C. Comments Received and Post-NPRM Working Group Meeting

    After publication of the NPRM on October 9, 2002, FRA received 
comments on the proposed rule and Guide from AAR \1\ and a private 
citizen.\2\ On December 4, 2002, the Working Group held a meeting in 
Washington, DC to discuss the comments on the NPRM. Because the 
majority of AAR's comments focused on clarifying the Guide, many of the 
issues were able to be resolved at the meeting. RSAC consensus on those 
issues and the summary of the Working Group meeting was confirmed by 
ballot on January 29, 2003. For those issues where consensus could not 
be reached, AAR sent FRA a post-meeting letter further explaining its 
views. The unresolved issues were outlined and presented to the Deputy 
Administrator, who acted on the rulemaking under a delegation from the 
Administrator, along with copies of the comments and responses, for 
resolution.
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    \1\ AAR's comments on the NPRM will be discussed throughout this 
preamble. After the publication of the NPRM and a discussion of the 
comments at the final Working Group meeting, AAR submitted a letter, 
dated December 13, 2002, and a supplemental response that was e-
mailed to FRA on January 3, 2003.
    \2\ FRA has reviewed the comments from the private citizen, 
which did not specifically address any of the proposed amendments 
and vaguely asserted that FRA was not fulfilling its duty to carry 
out statutory mandates. Although the commenter did not provide 
specific recommendations to FRA on how to revise the NPRM, FRA 
believes that the provisions in the final rule will improve the 
overall quality and integrity of FRA's accident/incident data.
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III. Issues Addressed by the Working Group

A. Applicability of Part 225--Sec.  225.3

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

    (1) A railroad that operates freight trains only on track inside 
an installation which is

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

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

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

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

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

Proposal
    The Working Group agreed to propose certain amendments to Sec.  
225.9, pertaining to telephonic reporting, and the corresponding 
instructions related to telephonic reporting in the Guide. Prior to 
this final rule, FRA had required immediate telephonic reporting of 
accidents/incidents to FRA through the National Response Center (NRC) 
in only a limited set of circumstances, i.e., the occurrence of an 
accident/incident arising from the operation of a railroad that results 
in the death of a rail passenger or employee or the death or injury of 
five or more persons. See 1997's Sec.  225.9(a). In contrast, under 
OSHA's final rule,

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

Emphasis added. 29 CFR 1904.39(a). Further, OSHA's final rule states,

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

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

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

Emphasis added. 29 CFR 1904.39(b)(4). This provision would seem to 
exempt railroads from telephonically reporting to OSHA all but a very 
few railroad accidents/incidents. The extent of the exemption from 
OSHA's telephonic reporting requirement depends on how broadly 
``commercial or public transportation system'' is interpreted.
    As recommended by the Working Group, FRA proposed to broaden the 
set of circumstances under which a railroad would be required to report 
an accident/incident telephonically to the NRC, and to make certain 
other refinements to the rule. Specifically, FRA first proposed to add 
requirements for telephonic reporting when there is a death to any 
employee of a contractor to a railroad performing work for the railroad 
on property owned, leased, or maintained by the contracting railroad. 
Railroads are increasingly using contractors to perform work previously 
performed by railroad employees. When those workers are exposed, the 
hazards are often unique to the railroad environment or otherwise 
involve conditions under FRA's responsibility. Receiving these reports 
will assist FRA in discharging its responsibility for monitoring the 
safety of railroad operations.
    FRA also proposed to require the telephonic reporting of certain 
train accidents that are relevant to the safety of railroad passenger 
service, including otherwise reportable collisions and derailments on 
lines used for scheduled passenger service and train accidents that 
foul such lines. These events are potentially quite significant, since 
they may indicate risks which affect passenger service (e.g., poor 
track maintenance or operating practices). Further, these events often 
cause disruption in intercity and commuter passenger service. Major 
delays in commuter trains, for instance, have direct economic effects 
on individuals and businesses.
    FRA also proposed to incorporate provisions similar to the National 
Transportation Safety Board's (NTSB) requirements for telephonic 
reporting (part 840) into its own regulations and Guide. The key 
provisions of NTSB's requirements, excerpted in the NPRM for the 
convenience of the reader, can be found at Sec. Sec.  840.3 and 840.4. 
See also 67 FR 63025-26.
    The reason FRA proposed to incorporate requirements similar to 
NTSB's standards for telephonic reporting into its own regulations and 
Guide is that, unlike NTSB, FRA can enforce these requirements through 
the use of civil penalties. FRA has long relied upon reports required 
to be made to NTSB as a means of alerting its own personnel who are 
required to respond to these events. Although most railroads are quite 
conscientious in making telephonic reports of significant events, 
including some not required to be reported, from time to time FRA does 
experience delays in reporting that adversely affect response times. In 
this regard, it should be noted that FRA conducts more investigations 
of railroad accidents and fatalities than any other public body, and 
even in the case of the

[[Page 10112]]

relatively small number of accidents that NTSB selects for major 
investigations, FRA provides a substantial portion of the technical 
team participating from the public sector. Accordingly, it is 
appropriate that FRA take responsibility for ensuring that timely 
notification is provided. As can be seen by comparing the referenced 
NTSB regulations to Sec.  225.9, FRA has not adopted NTSB's standards 
wholesale, but extracted necessary additions to FRA's existing 
requirements (e.g., train accident requiring evacuation of passengers), 
used terminology from FRA regulations to describe the triggering events 
(e.g., ``train accident'' as defined in Sec.  225.5), and slightly 
modified the contents of the required report (e.g, ``available 
estimates'' instead of ``estimate'').
    Some members of the Working Group expressed concern about which 
railroad should be responsible for making the telephonic report in the 
case of joint operations. The Working Group agreed that for purposes of 
telephonic reporting, the dispatching railroad, which controls the 
track involved, would be responsible for making the telephonic report.
    There was much discussion in the Working Group regarding whether 
railroads should be required to telephonically report certain incidents 
to the NRC ``immediately.'' One suggestion was to set a fixed period, 
such as three or four hours, to report an accident/incident, or in any 
event, to provide a reasonable amount of time in which to report. 
Prompt reporting permits FRA and (where applicable) NTSB to dispatch 
personnel quickly, thereby making it possible for them to arrive on 
scene before re-railing operations and track reconstruction begin and 
key personnel become unavailable for interview. Decades of experience 
in accident investigation have taught FRA that the best information is 
often available only very early in the investigation, before physical 
evidence is disturbed and memories cloud.
    In addition, there was a suggestion that railroads be permitted to 
immediately report certain incidents by several methods other than by a 
telephone call, including use of a facsimile, or notification by e-
mail. Railroad representatives indicated that telephonic reporting is 
sometimes burdensome, particularly when a busy manager must wait to 
speak to an emergency responder for extended periods of time. FRA 
rejected this suggestion, and is requiring that immediate notification 
be done by telephone, and only by telephone, because FRA is concerned 
that if notification is given by other methods, such as facsimile or e-
mail, it is possible that no one will be available to immediately 
receive the facsimile or e-mail message. Conversely, with a telephone 
call to an emergency response center, a railroad should be able to 
speak immediately to a person, or at the very least, should hear a 
recording that would immediately direct the caller to a person.
    Some members of the Working Group expressed concern that continued 
use of the term ``immediate'' in conjunction with a broadening of the 
events subject to the FRA rule might produce harsh results, due to the 
need to address emergency response requirements for the safety and 
health of those affected and to determine the facts that are predicates 
for reporting. The proposed rule addressed this concern by stating 
that,

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

Sec.  225.9(d).Since FRA and the Working Group believe that immediate 
telephonic reporting raises issues related to emergency response unique 
to the railroad industry, the Working Group agreed not to conform in 
some respects to OSHA's oral or in-person reporting requirements. 
Accordingly, to the extent that OSHA's requirements regarding oral 
reports by telephone or in person apply to the railroad industry and 
that part 225 diverges from those requirements, FRA will include in the 
MOU with OSHA a provision specifying how and why FRA has departed from 
OSHA's requirements in this area.
Comments and Final Rule/Decision
    No specific comments were received on this issue. For the reasons 
stated above, FRA has adopted the language as proposed in the NPRM for 
this final rule.

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

1. FRA's Reporting Criteria Applicable to Railroad Employees
Proposal
    Section 225.19(d), as in effect until May 1, 2003, reads as 
follows:

    Group III-Death, injury, or occupational illness. Each event 
arising from the operation of a railroad shall be reported on Form 
FRA F 6180.55a if it results in:
    (1) Death to any person;
    (2) Injury to any person that requires medical treatment;
    (3) Injury to a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer; or
    (iii) Loss of consciousness; or
    (4) Occupational illness of a railroad employee.
* * * * *

    The comparable provisions of OSHA's Final Rule, excerpted in the 
NPRM for the convenience of the reader, can be found at 29 CFR 
1904.4(a) and 1904.7(b). See also 67 FR 63026-27. As indicated in the 
NPRM and in the above-referenced rule text, OSHA's final rule has 
specific recording criteria for cases described in 29 CFR 1904.8 
through 1904.12. These cases involve work-related needlestick and 
sharps injuries, medical removal, occupational hearing loss, work-
related tuberculosis, and independently reportable work-related 
musculoskeletal disorders. See Web site for OSHA regulations located in 
the SUPPLEMENTARY INFORMATION section.
Comments and Final Rule/Decision
    No specific comments were received on the definitions of work-
related ``needlestick or sharps injury'' and ``occupational 
tuberculosis.'' FRA has adopted these definitions as proposed. Although 
no specific comments were received on the definition of ``medical 
removal,'' and FRA has adopted this definition almost exactly as 
proposed, this term will be discussed later in this section of the 
preamble, in context with the discussion of the ``float vs. fixed'' 
issue. Before addressing the comments received on occupational hearing 
loss and work-related musculoskeletal disorders, it is necessary to 
provide an overview of OSHA's evolved position on these issues, since 
OSHA had not yet adopted its position at the time that the Working 
Group had reached consensus.
Overview of OSHA's Position on Occupational Hearing Loss and 
Musculoskeletal Disorders
    In response to several comments received after publication of its 
Final Rule, which was scheduled to take effect on January 1, 2002, OSHA 
delayed the effective date of three of the rule's provisions until 
January 1, 2003, so as to allow itself further time to evaluate 29 CFR 
1904.10, regarding occupational hearing loss, and 29 CFR

[[Page 10113]]

1904.12 and 1904.29(b)(7)(vi),\3\ regarding musculoskeletal disorders 
(``MSDs''). See 66 FR 52031. On July 1, 2002, OSHA published a final 
rule establishing a new standard for the recording of occupational 
hearing loss cases for calendar year 2003. See 67 FR 44037. However, 
because OSHA was still uncertain about how to craft an appropriate 
definition for musculoskeletal disorders, and whether or not it was 
necessary to include a separate column on the OSHA log for the 
recording of these cases and occupational hearing loss cases, OSHA 
simultaneously published a proposed delay of the effective dates of 
these provisions, from January 1, 2003 to January 1, 2004, and 
requested public comment on the provisions. See 67 FR 44124. On 
December 17, 2002, OSHA published a final rule adopting the proposed 
delay. See 67 FR 77165.
---------------------------------------------------------------------------

    \3\ The effective date of the second sentence of Sec.  
1904.29(b)(7)(vi), which states that musculoskeletal disorders are 
not considered privacy concern cases, was delayed until January 1, 
2003 in OSHA's October 12, 2001, final rule. On July 1, 2002, OSHA 
proposed to delay the effective date of this same provision until 
January 1, 2004. See 67 FR 44124. On December 17, 2002, OSHA adopted 
this proposed delay. See 67 FR 77165. This provision will be 
discussed in the context of privacy concern cases in the section-by-
section analysis at ``III.G.1.'' of this preamble.
---------------------------------------------------------------------------

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

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

See 66 FR 6129 (January 19, 2001). On October 12, 2001, OSHA delayed 
the provision until January 1, 2003, in order to seek comments on what 
should be the appropriate hearing loss threshold. See 66 FR 52031. As 
an interim policy for calendar year 2002, OSHA added a new paragraph 
(c) to 29 CFR 1904.10 that adopted the 25-dB standard set forth in 
OSHA's enforcement policy, which had been in effect since 1991, and 
which was FRA's approach at the time of this rulemaking.\4\ The 
enforcement policy stated that OSHA would cite employers for failing to 
record work-related shifts in hearing of an average of 25 dB or more at 
2000, 3000, and 4000 Hz in either ear. Thus, the hearing loss of an 
employee would be tested by measuring the difference, or shift, between 
the employee's current audiogram and the employee's original baseline 
audiogram. See 67 FR 44037, 44038. If the shift was 25 dB or more, OSHA 
required that it be recorded. The employee's original baseline 
audiogram is one of two starting points, or baselines, from which you 
can measure a Standard Threshold Shift (STS), the other being 
audiometric zero.
---------------------------------------------------------------------------

    \4\ See 1997 Guide at Appendix E, p. 4. FRA's Occupational 
Illness Code 1151 in the 1997 Guide, concerning noise-
induced hearing loss, provides in part: ``An STS is a change in 
hearing threshold relative to a baseline audiogram that averages 10 
dB or more at 2000, 3000, and 4000 hertz in either ear. 
Documentation of a 10 dB shift is not, of and by itself, reportable. 
There must be a determination by a physician * * * that 
environmental factors at work were a significant cause of the STS. 
However, if an employee has an overall shift of 25 dB or more above 
the original baseline audiogram, then an evaluation must be made to 
determine to what extent it resulted from exposure at work.''
---------------------------------------------------------------------------

    Audiometric zero represents the statistical average hearing 
threshold level of young adults with no history of aural pathology, 
thus it is not specific to the employee. This is the starting point 
from which the American Medical Association (AMA) measures a 25-dB 
permanent hearing impairment. The employee's original baseline 
audiogram, on the other hand, is taken at the time the worker was first 
placed in a hearing conservation program.\5\ This starting point, which 
has been enforced by OSHA since 1991 and is the starting point in use 
by FRA until the effective date of this final rule, fails to take into 
account any hearing loss that the employee has suffered in previous 
jobs and can present a problem if the employee has had several 
successive employers at high-noise jobs.
---------------------------------------------------------------------------

    \5\ Not all employees are placed in a hearing conservation 
program. OSHA only requires such a program to be in place in general 
industry when the noise exposure exceeds an 8-hour time-weighted 
average of 85 dB.
---------------------------------------------------------------------------

    Thus, if an individual employee has experienced some hearing loss 
before being hired, a 25-dB shift from the employee's original baseline 
would be a larger hearing loss than the 25-dB shift from audiometric 
zero that the AMA recognizes as a hearing impairment and disabling 
condition. For example, if an employee experienced a 20-dB shift from 
audiometric zero prior to being hired in a job where he later suffered 
a 15-dB shift hearing loss from his original baseline audiogram, the 
AMA would count this as a 35-dB shift, a serious hearing impairment, 
but under OSHA's enforcement policy (and FRA's approach prior to this 
final rule), this would only have counted as a 15-dB shift that is not 
recordable under OSHA's enforcement policy or 29 CFR 1904.10 for 
calendar year 2002. In order for it to become recordable, the employee 
would have had to suffer an additional 10-dB shift, which would mean 
that the employee would have suffered a 45-dB shift from audiometric 
zero--almost twice the amount that the AMA considers to be a permanent 
hearing impairment.
    After considering several comments demonstrating that a 25-dB shift 
from an employee's original baseline audiogram was not protective 
enough and that a 10-dB shift from an employee's original baseline 
audiogram was overly protective (and more appropriate as an early 
warning mechanism that should trigger actions under the Occupational 
Noise Exposure Standard \6\ to prevent impairment from occurring), OSHA 
adopted a compromise position that made a 10-dB shift from an 
employee's original baseline audiogram recordable in those cases where 
this shift also represented a 25-dB shift from audiometric zero.
---------------------------------------------------------------------------

    \6\ Under 29 CFR 1910.95, employers must take protective 
measures (employee notification, providing hearing protectors or 
refitting of hearing protectors, referring employee for audiological 
evaluation where appropriate, etc.) to prevent further hearing loss 
for employees who have experienced a 10-dB shift from the employee's 
original baseline audiogram. See 67 FR at 44040-41.
---------------------------------------------------------------------------

Proposal
    As OSHA's new approach to defining and recording occupational 
hearing loss cases was not before the Working Group when consensus was 
reached, FRA sought comment on whether FRA should adopt OSHA's new 
(2003) approach as FRA's fixed approach, beginning on the effective 
date of FRA's final rule, or whether FRA should diverge from OSHA and 
continue to enforce OSHA's 2002 approach (which was approved by the 
Working Group and the RSAC and was the same as FRA's approach at the 
time of this rulemaking) as a fixed approach beginning on the effective 
date of FRA's final rule. See proposed Guide at Ch. 6, pp. 27-28, and 
Appendix E, p. 4.
Comments
    In its written comment, AAR strongly opposed the adoption of OSHA's 
new policy ``without any discussion of the wisdom of the policy by the 
RSAC working group considering the issues posed in this proceeding.'' 
AAR also noted that the policy would result in a greater number of 
hearing loss cases being reported by the railroad industry and result 
in an adverse trend in the occurrence of railroad injuries

[[Page 10114]]

regardless of the railroads' actual performance.
    At the post-NPRM working group meeting, FRA replied that the RSAC 
Working Group was able to consider only one approach at the Working 
Group meeting: whether or not to adopt OSHA's old enforcement policy 
(that was finally put into rule form), which was essentially the same 
as FRA's policy at that time. In contrast, OSHA was able to consider 
this issue in more detail and over a greater period of time than was 
FRA, as is evident from the overview of OSHA's evolved position on this 
issue.
    AAR acquiesced in accepting the criteria for reporting, but was 
concerned that there would be increases in reportables for the first 
few years, as OSHA had estimated that this new change would result in a 
significant increase in cases. AAR asked FRA to consider reporting the 
hearing loss cases under covered data, spread over three years. After 
the meeting, AAR sent a letter to FRA dated December 13, 2002, echoing 
the concerns expressed at the meeting.
Final Rule/Decision
    OSHA also noted concern among employers because the application of 
the new criteria in 29 CFR 1904.10 would result in an increase in 
recorded hearing loss cases. See 67 FR 44038-40. However, after 
recognizing that the new criteria will capture more hearing loss cases, 
and that caution must be used when comparing the future data with prior 
years, OSHA emphasized that by requiring an employer to record only 
those STSs that exceed 25 dB from audiometric zero, the regulation 
``assures that all recorded hearing losses are significant illnesses.'' 
See 67 FR 44040. In the discussion of its decision, OSHA concluded that 
it would be inappropriate to adopt a policy of recording only 25-dB 
shifts from the employee's baseline audiogram as this would ``clearly 
understate the true incidence of work-related hearing loss.'' See 67 FR 
44040-41. Additionally, aligning the recording threshold with the STS 
criterion in OSHA's Noise Standard will provide more opportunities for 
employer intervention and prevention of future hearing loss cases. See 
67 FR 44046. Thus, OSHA was fully aware of the expected increase in 
occupational hearing loss cases, but nevertheless concluded that it was 
very important that this data be collected. FRA agrees. The importance 
of capturing the true magnitude of work-related hearing loss, is 
justification alone for adopting these criteria; however, it is 
important to note that the increase in the number of reportables will 
be partially offset by OSHA's reclassification as non-reportable many 
events that previously were reportable.\7\ Because the Working Group 
could not reach full consensus, the issue was presented to FRA for 
resolution. Upon careful consideration and review of AAR's comments and 
letter, FRA has decided not to include occupational hearing loss cases 
under covered data. Note that, for clarification and simplicity, the 
rule text definition has been amended to reflect the actual recording 
criteria used by OSHA (for calendar year 2003 and beyond) rather than 
the citation to the relevant section of OSHA's regulation. This 
amendment does not represent a substantive change from OSHA's criteria.
---------------------------------------------------------------------------

    \7\ See later discussion concerning the definitions of ``medical 
treatment'' and ``first aid'' at section ``III.J.3.'' of this 
preamble.
---------------------------------------------------------------------------

Proposal
    As noted above, OSHA is reconsidering the definition of 
musculoskeletal disorder and the requirement of having a separate 
column on the OSHA 300 log for the recording of MSD and occupational 
hearing loss cases, having delayed these provisions until January 1, 
2004. See 67 FR 77165. As the issue of OSHA's proposed delay was not 
before the Working Group when consensus was reached and the delay had 
not been adopted by OSHA prior to the publication of FRA's NPRM, FRA 
sought comment on whether or not the definition and column requirements 
should be adopted if OSHA's proposed January 1, 2004 delay took effect. 
It was noted in the NPRM that if FRA were to go forth with the 
provisions as approved by the Working Group, FRA would be adopting 
these provisions in advance of OSHA, a result that may not have been 
contemplated by the Working Group when it agreed to follow OSHA on 
these issues prior to the proposed delays.
    In the event that OSHA chose not to delay the effective date of 
these provisions, FRA sought comment on whether or not to diverge from 
OSHA by not adopting the definition or column requirements, since FRA 
already had its own forms and methods in place to collect this data for 
OSHA's purposes. Instead of requiring railroads to record cases and 
check boxes on the OSHA 300 log, FRA requires railroads to report these 
cases using assigned injury codes on the FRA Form F 6180.55a. Code 
1151, for example, is the code for occupational hearing loss cases, 
thus no additional column would be necessary. Similarly, the different 
kinds of injuries that could qualify as an MSD are given separate 
codes. Once OSHA decides what types of injuries are appropriate to 
include in the category or definition of an MSD, OSHA would be able to 
identify the MSD cases by their respective code numbers, thereby 
allowing OSHA to use FRA's data for national statistical purposes. 
Although it is not practical for FRA's injury codes to be as extensive 
as OSHA's codes, it would be possible to amend the Guide so as to 
reflect the major codes recognized by OSHA and to add a category such 
as ``Other MSDs, as defined by OSHA in Sec.  1904.12.''
    FRA also sought comment on whether or not a definition of an MSD 
was necessary, since FRA had no special criteria in its regulations 
beyond the general recording criteria for determining which MSDs to 
record, and because OSHA's definition appeared to be used primarily as 
guidance for when to check the MSD column on the 300 Log. See 66 FR 
6129-6130.
Comments
    AAR believes no purpose would be served by having separate columns, 
since OSHA would still be able to use FRA's data for statistical 
purposes without adoption of this requirement. Although no specific 
comments were received regarding the adoption of a definition of an 
MSD, FRA raised the issue at the post-NPRM Working Group meeting. FRA 
pointed out that there were no special reporting criteria for MSDs and 
that there may be more problems in trying to delete the definition than 
to leave it in. Because MSDs must be independently reportable, there 
seemed to be little or no effect on the regulated community by 
retaining the proposed definition. AAR indicated that it was inclined 
to leave the definition in, but might reconsider the issue and provide 
FRA with a position on the issue after the meeting. However, no further 
comments were received.
Final Rule/Decision
    Since FRA already has its own forms and methods in place to collect 
data on occupational hearing loss and MSD cases for OSHA's statistical 
purposes, and because OSHA has not yet adopted the column requirement, 
FRA has not adopted the column requirement for the reporting of 
occupational hearing loss and MSD cases in its final rule. 
Additionally, for the reasons stated above, FRA has adopted the MSD 
definition as proposed. See also the discussion of deleting the 
exclusion of MSDs from the definition of ``privacy concern case.'' This 
difference will be

[[Page 10115]]

addressed in the MOU with OSHA, as appropriate.
Proposal
    FRA also sought comment on whether the definitions of terms in its 
regulations should ``float,'' i.e., change automatically anytime OSHA 
revises the definition of the term in its regulations, since the main 
purpose of this rulemaking was to bring FRA's rule into general 
conformity with OSHA's regulations (which are developed by OSHA after a 
full opportunity for notice and comment), or whether FRA's adoption of 
a fixed and certain approach to the definitions of terms could better 
serve FRA's safety objectives and the needs of the regulated community. 
This issue was particularly relevant for the proposed definition of 
``medical removal.'' Because medical removal is such a complex issue, 
and one that is rarely, if at all, encountered in the railroad 
environment, FRA sought comment on whether this particular definition 
should ``float'' with OSHA's. That is, should we word our definition so 
that it is tied to OSHA's standard anytime OSHA might change that 
standard? Since the proposed definition \8\ referenced OSHA's standard 
without restating it within the rule text or preamble, this would 
appear to reflect the intent of the Working Group.
---------------------------------------------------------------------------

    \8\ The proposed definition read: ``Medical removal means 
medical removal under the medical surveillance requirements of an 
Occupational Safety and Health Administration standard in 29 CFR 
part 1910, even if the case does not meet one of the general 
reporting criteria.''
---------------------------------------------------------------------------

Comments
    AAR commented that it was opposed to the concept of floating 
regulations, stating that there should be an opportunity for FRA's 
regulated community to comment on the suitability of any changes in 
OSHA's regulations since there is sometimes a need to differ from OSHA.
Final Rule/Decision
    FRA still believes that with respect to issues that are not unique 
to railroading, AAR would have a full opportunity for notice and 
comment through OSHA's rulemaking in the event that OSHA decides to 
change its regulations. However, FRA recognizes AAR's concerns and has 
decided not to float the definition of ``medical removal'' or any other 
terms. Accordingly, any definitions that have been modeled on OSHA's 
wording have been adopted by using the same or similar wording; any 
definitions that incorporate OSHA's regulations by reference are noted 
as adopting the year-specific version of such regulations.
Proposal
    Finally, OSHA added another category of reportable cases: 
``significant injuries or illnesses.'' With regard to the reportability 
of illnesses and injuries of railroad employees, there were at least 
three primary differences between OSHA's reporting criteria and FRA's 
reporting criteria at the time of this rulemaking, at least as stated 
in Sec.  225.19(d). First, FRA required that all occupational illnesses 
of railroad employees be reported. See Sec. Sec.  225.5 and 
225.19(d)(4). By contrast, under OSHA's Final Rule, only certain 
occupational illnesses are to be reported, namely those that: result in 
death, medical treatment, days away from work, or restricted work or 
job transfer; constitute a ``significant illness''; or meet the 
``application to specific cases of [29 CFR] 1904.8 through 1904.12.'' 
Second, for the reason that FRA's interpretation of part 225 was 
already very inclusive, FRA's Sec.  225.19(d) criteria did not use the 
term ``significant injuries,'' which is incorporated in OSHA's Final 
Rule. While FRA did not use the phrase ``significant injuries'' in its 
1997 rule text, the 1997 Guide did require the reporting of conditions 
similar to OSHA's ``significant injuries.''

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

1997 Guide, Ch. 6, p. 6. Accordingly, under the 1997 Guide, fractures 
were considered not to be minor injuries, and a punctured eardrum was 
likewise not considered a minor injury because it would involve 
impairment of ``normal use of senses.'' Id. Third, FRA did not have 
``specific cases'' reporting criteria for occupational injuries of 
railroad employees.
    FRA proposed to conform part 225 to OSHA's Final Rule with regard 
to these three differences by amending its regulations at Sec.  
225.19(d) and related definitions at Sec.  225.5. FRA would, however, 
distribute the specific conditions specified under OSHA's 
``significant'' category (Sec.  1904.7(b)(7)) into injuries and 
illnesses, subcategories that OSHA could, of course, aggregate, and FRA 
would omit the note to OSHA's description of ``significant illnesses 
and injuries,'' which did not appear to be necessary for a proper 
understanding of the concept and which might have been read as open-
ended, a result FRA did not intend. The text of the note is excerpted 
below:

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

29 CFR 1904.7(b)(7). FRA believed that the note was intended to 
reference a statutory issue not present in the case of FRA's reporting 
system and could be omitted from FRA's rule as not relevant and to 
avoid potential ambiguity. FRA also proposed to explain these new 
reporting requirements in the 2003 Guide. See later discussion of 
Chapter 6 of the 2003 Guide.
Comments and Final Rule/Decision
    No specific comments were received on this issue. For the reasons 
stated above, FRA has adopted the amendments to the rule and Guide as 
proposed.
2. FRA's Reporting Criteria Applicable to Employees of a Contractor to 
a Railroad
Proposal
    As previously noted, under the 1997 rule's Sec.  225.19(d), ``Each 
event arising from the operation of a railroad shall be reported * * * 
if it results in * * * (1) Death to any person; (2) Injury to any 
person that requires medical treatment * * *.'' Under the 
``definitions'' section of the accident reporting regulations, 
``person'' included an independent contractor to a railroad. See 1997's 
Sec.  225.5. Reading these regulatory provisions together, deaths to 
employees of railroad contractors that arose from the operation of a 
railroad, and injuries to employees of railroad contractors that arose 
from the operation of a railroad and required medical treatment would 
appear to be reportable to FRA. (The 1997 Guide, however, narrowed the 
requirement through its reading of ``arising from the operation of a 
railroad.'') FRA did not require reporting of occupational illnesses of 
contractors; under 1997's Sec.  225.19(d)(4), only the occupational 
illnesses of

[[Page 10116]]

railroad employees were required to be reported.
    By contrast, under OSHA's Final Rule, the reporting entity is 
required to report work-related injuries and illnesses, including those 
events or exposures meeting the special recording criteria for 
employees of contractors, only if the employee of the contractor is 
under the day-to-day supervision of the reporting entity.

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

29 CFR 1904.31(b)(3).
    In the Working Group meetings, APTA noted that it was difficult to 
comply with FRA's 1997 rule, read literally, with respect to an 
employee of a contractor to a railroad while he or she is off railroad 
property. Many commuter railroads often do not know whether an employee 
of a contractor to the railroad is injured or sickened if the event 
occurred on property other than property owned, leased, or maintained 
by the commuter railroad; it was difficult to follow up on an injury or 
illness suffered by such an employee. For example, ABC Railroad 
contracts with XYZ Contractor to repair ABC's railcars at XYZ's 
facilities. An employee of XYZ Contractor, while repairing ABC's 
railcar at XYZ's facility, receives an injury resulting in medical 
treatment. ABC Railroad notes that it may not know about the injury 
and, therefore, could not report it. Furthermore, no information is 
lost in the national database since the contractor must report the 
injury to OSHA even if ABC Railroad does not report the injury. The 
Working Group could not reach consensus on whether to require reporting 
of injuries to employees of railroad contractors while off railroad 
property.
    A similar difficulty with reporting occurred in the context of 
fatalities to employees of contractors to a railroad. With respect to 
whether to require that railroads report fatalities of employees of 
contractors that arose out of the operation of the railroad but 
occurred off railroad property, the Working Group also could not reach 
consensus. AAR noted that for the reasons stated above related to 
injuries and illnesses, it was difficult for railroads to track 
fatalities of persons who were not employed by the railroad. Rail labor 
representatives noted on the other hand, that fatalities were the most 
serious cases on the spectrum of reportable incidents and that it would 
be important that those cases be reported to FRA. In addition, rail 
labor representatives noted that railroads often contract for taxi 
services to deadhead railroad crews to their final release point and 
that if a driver died in a car accident transporting a railroad crew, 
FRA should know about those cases. FRA noted that as a practical 
matter, those types of cases occurred infrequently, and that FRA data 
showed only two possible fatal car accidents occurring off railroad 
property that involved employees of contractors to a railroad. As a 
compromise, rail labor representatives proposed that only fatalities 
that involved transporting or deadheading railroad crews be reportable, 
but that all other fatalities to employees of contractors to a railroad 
that occur off railroad property, not be reportable, even if the 
incident arose out of the operation of the railroad.
    Since the Working Group could not reach consensus on the issue of 
reporting injuries, illnesses, or fatalities of contractors to a 
railroad that arose out of the operation of the railroad but occurred 
off railroad property, FRA drafted a proposal based upon its reasoned 
consideration of the issue. In this regard, FRA attempted to balance 
its need for comprehensive safety data concerning the railroad industry 
against the practical limitations of expecting railroads to be aware of 
all injuries suffered by contractors off of railroad property.
    FRA recognized that certain types of accident/incidents occurring 
off of railroad property involved scenarios in which the fact that the 
contractor was performing work for a railroad was incidental to the 
accident or incident, and would offer no meaningful safety data to FRA, 
e.g., ordinary highway accidents involving an on-duty contractor to a 
railroad.
    FRA proposed deleting the term ``arising from the operation of a 
railroad'' and its definition from Sec.  225.5. The definition read as 
follows: ``Arising from the operation of a railroad includes all 
activities of a railroad that are related to the performance of its 
rail transportation business.'' The new term ``event or exposure 
arising from the operation of a railroad'' would be added to Sec.  
225.5's list of defined terms and given a three-tier definition. First, 
``event or exposure arising from the operation of a railroad'' would be 
defined broadly with respect to any person on property owned, leased, 
or maintained by the railroad, to include any activity of the railroad 
that relates to its rail transportation business and any exposure 
related to that activity. Second, the term would be defined broadly in 
the same way with respect to an employee of the railroad, but without 
regard for whether the employee is on or off railroad property. Third, 
the term would be defined narrowly with respect to a person who is 
neither on the railroad's property nor an employee of the railroad, to 
include only certain enumerated events or exposures, i.e., a train 
accident, a train incident, or a highway-rail crossing accident/
incident involving the railroad; or a release of hazardous material 
from a railcar in the railroad's possession or a release of another 
dangerous commodity if the release is related to the railroad's rail 
transportation business.
    When read together with the rest of proposed Sec.  225.19(d), the 
new definition of ``event or exposure arising from the operation of a 
railroad'' would mean that a railroad would not have to report to FRA 
the death or injury to an employee of a contractor to the railroad who 
is off railroad property (or deaths or injuries to any person who is 
not a railroad employee) unless the death or injury results from a 
train accident, train incident, or highway-rail grade crossing accident 
involving the railroad; or from a release of a hazardous material or 
some other dangerous commodity in the course of the railroad's rail 
transportation business. In addition, FRA would require railroads to 
report work-related illnesses only of railroad employees and under no 
circumstances the illness of employees of a railroad contractor. These 
proposed reporting requirements diverge from the OSHA standard, which 
would require the reporting of the work-related death, injury, or 
illness of an employee of a contractor to the reporting entity if the 
contractor employee is under the day-to-day supervision of the 
reporting entity. 29 CFR 1904.31(b)(3).
Comments
    Although no specific comments were received on the proposal itself, 
AAR commented that the Guide's discussion of contractors did not 
reflect FRA's proposed approach and should be amended to do so.
Final Rule/Decision
    For the reasons stated above, FRA has adopted the proposal as 
stated and has amended the Guide to reflect this new approach. FRA 
intends to address the divergence from OSHA on the employee of a 
contractor issue in the MOU.

[[Page 10117]]

3. Reporting Criteria Applicable to Illnesses
Proposal
    At a pre-NPRM meeting of the Working Group, AAR proposed that major 
member railroads would file, with their FRA annual report, a list of 
claimed but denied occupational illnesses not included on the Form FRA 
F 6180.56, ``Annual Railroad Report of Employee Hours and Casualties by 
State,'' because the railroads found the illnesses not to be work-
related. The list would be organized by State, and would include the 
name of the reporting contact person. FRA and other Working Group 
members had expressed appreciation for this undertaking. It was agreed 
that this was appropriate for implementation on a voluntary basis, and 
no comment was sought on this matter.
Comments and Final Rule/Decision
    No specific comments were received on this issue. The list, as an 
attachment to the annual report (FRA F 6180.56), will be adopted on a 
voluntary basis. Note, however, that after discussing the disadvantages 
of failing to capture data concerning claimed illnesses and injuries on 
a standard FRA form, the Working Group agreed to the mandatory 
recording of this data on a new form (FRA F 6180.107). See discussion 
of recording claimed illnesses in section ``III.G.2.'' of the preamble, 
below.

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

Proposal
    The Working Group agreed to add a new subsection Sec.  225.21(j) to 
create a new form (Form FRA F 6180.107), which would be labeled 
``Alternative Record for Illnesses Claimed to Be Work-Related.'' This 
form would call for the same information that is included on the Form 
FRA F 6180.98 and would have to be completed to the extent that the 
information is reasonably available. A further discussion of the nature 
of this new form is discussed under the revisions to Sec.  225.25, 
later in this preamble.
Comments and Final Rule/Decision
    No specific comments were received on this issue. The changes to 
this form have been adopted as proposed.

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

Proposal
    The Working Group agreed to propose certain minor changes to the 
regulatory text (specifically, to Sec.  225.23(a), concerning joint 
operations) simply to bring it into conformity with the other major 
changes to the regulatory text that are proposed. Note that for 
purposes of telephonic reporting in joint operations, the dispatching 
railroad would be required to make the telephonic report. See proposed 
Sec.  225.9.
Comments and Final Rule/Decision
    No specific comments were received on this issue. The regulatory 
text amendments have been adopted as proposed.

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

1. Privacy Concern Cases
Proposal
    The Working Group agreed to propose changes to the regulatory text 
under Sec.  225.25, concerning recordkeeping, by revising Sec.  
225.25(h) to address a class of cases described by OSHA as ``privacy 
concern cases.'' OSHA requires an employer to give its employees and 
their representatives access to injury and illness records required by 
OSHA, such as the OSHA 300 Log, with some limitations that apply to 
privacy concern cases. 29 CFR 1904.35(b)(2), 1904.29(b). A ``privacy 
concern case'' is defined by OSHA in 29 CFR 1904.29(b)(7); one type of 
a privacy concern case is, e.g., an injury or illness to an intimate 
body part. FRA proposed to define the term similarly in Sec.  225.5. In 
privacy concern cases, OSHA prohibits recording the name of the injured 
or ill employee on the Log. The words ``privacy case'' must be entered 
in lieu of the employee's name. The employer must ``keep a separate, 
confidential list of the case numbers and employee names for your 
privacy concern cases so you can update the cases and provide the 
information to the government if asked to do so.'' 29 CFR 
1904.29(b)(6). In addition, if the employer has a reasonable basis to 
believe that the information describing the privacy concern case may be 
personally identifiable even though the employee's name has been left 
out, the employer may use discretion in describing the injury or 
illness. The employer must, however, enter enough information to 
identify the cause of the incident and the general severity of the 
injury or illness, but need not include details, e.g., a sexual assault 
case may be described as an injury from assault.
    By contrast, FRA required that an employee have access to 
information in the FRA-required Railroad Employee Injury and/or Illness 
Record (Form FRA F 6180.98) regarding his or her own injury or illness, 
not the FRA-required records regarding injuries or illnesses of other 
employees. 1997's Sec.  225.25(a), (b), (c). This rendered the FRA-
required log of reportables and accountables with its information on 
the name and Social Security number of the employee, inaccessible to 
other employees. Id. Additionally, FRA proposed to amend the 
requirement that the record contain an employee's Social Security 
Number, opting to allow a railroad to enter an employee's 
identification number instead. See 2003's Sec.  225.25(b)(6). 
Therefore, FRA considered this difference a sufficient reason not to 
adopt OSHA's privacy requirements with regard to the reportable and 
accountable log.
Comments and Final Rule/Decision
    No specific comments were received on this issue. For the reasons 
stated above, the regulatory text amendments have been adopted as 
proposed. FRA intends to address its variation from OSHA's privacy 
requirements with regard to the reportable and accountable log in the 
MOU.
Proposal
    Although FRA has not allowed wide access to the reportable and 
accountable log, FRA requires, however, the posting in a conspicuous 
place in each of the employer's establishments, certain limited 
information on reportable accidents/incidents that occurred at the 
establishment, thereby making this information accessible to all those 
working at the establishment and not simply the particular employee who 
suffered the injury or illness. Sec.  225.25(h). That limited 
information that must be posted includes the incident number used to 
report the case, the date of the injury or illness, the regular job 
title of the employee involved, and a description of the injury or 
condition. Even though the name of the employee is not required to be 
listed, the identity of the person might in some cases be determined, 
particularly at small establishments. Under 1997's Sec.  225.25(h)(15), 
FRA permitted the railroad not to post an injury or illness at the 
establishment where it occurred if the ill or injured employee 
requested in writing to the railroad's reporting officer that the 
injury or illness not be posted. The proposed revision of the rule 
concerning the posting of injuries or illnesses would be consistent 
with OSHA's requirements with regard to its Log, but more expansive 
than those requirements. FRA would also give railroads discretion not 
to provide details of the injury or condition that constitutes a 
privacy case.

[[Page 10118]]

Comments and Final Rule/Decision
    No comments were received on these proposed changes. For the 
reasons stated above, the amendments have been adopted as proposed. FRA 
intends to address these slight variations from OSHA's privacy 
requirements in the MOU.
Proposal
    Another issue relevant to reporting privacy concern cases arose in 
Sec.  1904.29(b)(7)(vi) of OSHA's January 19, 2001, Final Rule, which 
stated that musculoskeletal disorders were not considered privacy 
concern cases. OSHA delayed the effective date of this exclusion until 
January 1, 2003, in its October 12, 2001, final rule. On July 1, 2002, 
OSHA proposed to delay the effective date of this same provision until 
January 1, 2004, and requested comment on the provision. See 67 FR 
44124. On December 17, 2002, OSHA published a final rule adopting the 
proposed delay. See 67 FR 77165. As the issue of OSHA's proposed delay 
of this provision was not before the Working Group when consensus was 
reached, FRA sought comment on whether or not this exclusion should be 
adopted if OSHA's proposed January 1, 2004, delay took effect. It was 
noted that if FRA were to adopt the exclusion as approved by the 
Working Group, FRA would be doing so in advance of OSHA's adoption of 
it and in advance of OSHA's defining the very term that is supposed to 
be excluded, a result that may not have been contemplated by the 
Working Group when it agreed to the proposed rule text on this issue 
prior to OSHA's issuance of the proposed delay. See discussion 
concerning reporting criteria for MSDs at section ``III.D.1.'' of the 
preamble, above. Even if OSHA chose not to delay the effective date of 
this provision and to give it effect on January 1, 2003, FRA sought 
comment on whether or not FRA should diverge from OSHA by not adopting 
the exclusion.
Comments
    Although no specific comments were received regarding the adoption 
of OSHA's proposed exclusion of MSDs from the definition of ``privacy 
concern case,'' FRA raised this issue at the post-NPRM Working Group 
meeting. FRA noted that because OSHA had not yet adopted this exclusion 
and had not even adopted a definition of MSDs that would indicate what 
should be excluded, it would not make sense for FRA to adopt this 
exclusion. When presented with the issue at the meeting, there seemed 
to be general agreement by all concerned to have this exclusion in the 
definition of ``privacy concern case'' deleted from the revised part 
225 and the FRA Guide.
Final Rule/Decision
    Because OSHA has not yet adopted the exclusion of MSDs from its 
definition of ``privacy concern case,'' and since FRA has not been 
provided with a justification for departing from OSHA on this issue, 
FRA has not adopted the exclusion of MSDs from the definition of 
``privacy concern case'' in its final rule.
    Finally, the question was raised in the Working Group whether FRA's 
proposed regulations conformed to the Health Insurance Portability and 
Accessibility Act of 1996 (Pub. L. 104-191 (HIPAA)) and to the 
Department of Health and Human Services' regulations implementing HIPAA 
with regard to the privacy of medical records. See ``the Standards for 
Privacy of Individually Identifiable Health Information.'' 65 FR 82462 
(Dec. 28, 2000), codified at 45 CFR parts 160 and 164. Since it appears 
that OSHA's regulations conform to HIPAA, and FRA proposes to conform 
to OSHA in all essential respects with regard to the treatment of 
medical information, FRA believes that its final regulations will not 
conflict with HIPAA requirements.
2. Claimed Illnesses for Which Work-Relatedness Is Doubted
a. Recording Claimed Illnesses
Proposal
    Under the 1997 FRA rule, all accountable or reportable injuries and 
illnesses were required to be recorded on Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record,'' or an equivalent 
record containing the same information. The subset of those cases that 
qualified for reporting were then reported on the appropriate forms. 
See 1997's Sec.  225.25(a), (b). If the case was not reported, the 
railroad was required to state a reason on Form FRA F 6180.98 or the 
equivalent record. See 1997's Sec.  225.25(b)(26). Although this system 
has generally worked well, problems have arisen with respect to 
accounting of claimed occupational illnesses. As further explained 
below, railroads are subject to tort-based liability for illnesses and 
injuries that arise as a result of conditions in the workplace. By 
their nature, many occupational illnesses, particularly repetitive 
stress cases, may arise either from exposures outside the workplace, 
inside the workplace, or a combination of the two. Accordingly, issues 
of work-relatedness become very prominent. Railroads evaluate claims of 
this nature using medical and ergonomic experts, often relying upon job 
analysis studies as well as focusing on the individual claims.
    With respect to accounting and reportability under part 225, 
railroad representatives stated their concern that mere allegations 
(e.g., receipt of a complaint in a tort suit naming a large number of 
plaintiffs) not give rise to a duty to report. They added that many 
such claims are settled for what amounts to nuisance values, often with 
no admission of liability on the part of the railroad, so even the 
payment of compensation is not clear evidence that the railroad viewed 
the claim of work-relatedness as valid.
    Although sympathetic to these concerns, FRA was disappointed in the 
quality of data provided in the past related to occupational illnesses. 
Indeed, in recent years the number of such events reported to FRA has 
been extremely small. FRA has an obligation to verify, insofar as 
possible, whether the railroad's judgments rest on a reasonable basis, 
and discharging that responsibility requires that there be a reasonable 
audit trail to verify on what basis the railroad's decisions were made. 
While the basic elements of the audit trail are evident within the 
internal control plans of most railroads, this is not universally the 
case.
    Accordingly, FRA asked the Working Group to consider establishing a 
separate category of claimed illnesses. This category would be 
comprised of (1) illnesses for which there is insufficient information 
to determine whether the illness is work-related; (2) illnesses for 
which the railroad has made a preliminary determination that the 
illness was not work-related; and (3) illnesses for which the railroad 
has made a final determination that the illness is not work-related. 
These records would contain the same information as the Form FRA F 
6180.98, but might at the railroad's election--
    [sbull] Be captioned ``alleged'';
    [sbull] Be retained in a separate file from other accountables; and
    [sbull] If accountables are maintained electronically, be excluded 
from the requirement to be provided at any railroad establishment 
within 4 hours of a request.

This would permit the records to be kept at a central location, in 
either paper or electronic format.
    The railroad's internal control plan would be required to specify 
the custodian of these records and where they could be found. For any 
case determined to be reportable, the

[[Page 10119]]

designation ``alleged'' would be removed, and the record would be 
transferred to the reporting officer for retention and reporting in the 
normal manner. In the event the narrative block (Form FRA F 6180.98, 
block 39) indicated that the case was not reportable, the explanation 
contained in that block would record the reasons the railroad 
determined that the case was not reportable, making reference to the 
``most authoritative'' information relied upon. Although the Form FRA F 
6180.107 or equivalent would not require a railroad to include all 
supporting documentation, such as medical records, it would require a 
railroad to note where the supporting documentation was located so that 
it would be readily accessible to FRA upon request.
    FRA believes that the system of accounting for contested illness 
cases described above will focus responsibility for these decisions and 
provide an appropriate audit trail. In addition, it will result in a 
body of information that can be used in the future for research into 
the causes of prevalent illnesses. Particularly in the case of 
musculoskeletal disorders, it is entirely possible that individual 
cases may appear not to be work-related due to an imperfect 
understanding of stressors in the workplace. Review of data may suggest 
the need for further investigation, which may lead to practical 
solutions that will be implemented either under the industrial hygiene 
programs of the railroads or as a result of further regulatory action. 
Putting this information ``on the books'' is a critical step in sorting 
out over time what types of disorders have a nexus to the workplace. 
See amendments to Sec. Sec.  225.21, 225.25, 225.33, and 225.35 and new 
Chapter 13 of the 2003 Guide.
Comments and Final Rule/Decision
    No specific comments were received on this issue. For the reasons 
stated above, FRA has adopted the amendments and new form as proposed.
b. FRA Review of Railroads' Work-Relatedness Determinations
Proposal
    Concern arose within the Working Group regarding how FRA planned to 
review a reporting officer's determination that the illness was not 
work-related. As discussed below in section ``III.P.3.'' of the 
preamble, it is the railroad's responsibility to determine whether an 
illness is work-related. In connection with an inspection or audit, 
FRA's role will be to determine whether the reporting officer's 
determination was reasonable. Even if FRA disagrees with the reporting 
officer's determination not to report, FRA will not find that a 
violation has been committed as long as the determination was 
reasonable. FRA understands that this is consistent with the approach 
OSHA is employing under its revised rule, and in any event it is most 
appropriate given the assignment of responsibility for reporting to the 
employing railroad. FRA plans to establish access to appropriate expert 
resources (medical, ergonomic, etc.) as necessary to evaluate the 
reasonableness of railroad decisions not to report particular cases.
Comments and Final Rule/Decision
    No specific comments were received on this issue. FRA has adopted 
the policy as proposed.
3. Technical Amendments
Proposal
    The Working Group also agreed to propose certain minor changes to 
subsections 225.25(b)(16), (b)(25), (e)(8), and (e)(24), simply to 
bring these subsections into conformity with the other major changes to 
the regulatory text that are proposed.
Comments and Final Rule/Decision
    No specific comments were received on these changes. For the 
reasons stated above, the amendments have been adopted as proposed.

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

Proposal
    FRA proposed to add a new section to the regulatory text that would 
include a policy statement on covered data. Specifically, Sec.  225.39 
would state that FRA will not include in its periodic summaries of data 
for the number of occupational injuries and illnesses, reports of a 
case, not otherwise reportable under part 225, involving (1) one day 
away from work when in fact the employee returned to work, contrary to 
the written recommendation to the employee by the treating physician or 
other licensed health care professional; (2) one day of restricted work 
when in fact the employee was not restricted, contrary to the written 
recommendation to the employee by the treating physician or other 
licensed health care professional; or (3) a written over-the-counter 
medication prescribed at prescription strength, whether or not the 
medication was taken.
Comments
    AAR commented that the Guide needed to be clearer in its discussion 
of covered data so as to include: a definition of that term; 
instructions on how to report such cases; and clarification of the 
treatment of these cases in the questions and answers section of the 
Guide and in the instructions for Form FRA F 6180.55a. In its comments 
on the NPRM, verbal comments at the post-NPRM Working Group Meeting, 
and post-meeting letter and e-mail, AAR expressed concern regarding the 
sharp increase in the number of reportables that would result upon 
adoption of the proposed changes. In order to soften the impact of 
these changes on railroad industry data, AAR requested that the covered 
data classification be extended to three other areas of reporting:
1. One Time Dosage of Prescription Medication
    In the revised OSHA regulation, a one-time dosage of a prescription 
medication, regardless of whether it is a topical medication or a drug 
that is taken orally, is now considered a reportable event. Multiple 
treatments or an injection have always been reportable. AAR requested 
that all one-time dosages be classified as ``covered data.''
2. Oxygen Therapy
    The administration of oxygen is often a matter of routine, e.g., a 
pre-hospital protocol performed by an Emergency Medical Technician 
(EMT). The administration of oxygen, in and of itself, is not 
reportable. However, when oxygen is provided in response to ``signs or 
symptoms,'' the case becomes reportable. Previously, oxygen 
administered for a short period of time was classified as ``first aid'' 
and not reportable, but OSHA has now removed that distinction. AAR 
requested that oxygen therapy for a short time be classified as a 
``covered data'' case.
3. Hearing Loss
    OSHA has revised its reporting rules for hearing loss, and the 
Working Group acquiesced in adopting OSHA's new standard in FRA's 
regulation. AAR, however, requested that the occupational illness cases 
involving hearing loss under the new OSHA regulation be classified as 
``covered data.''
Final Rule/Decision
    Because the Working Group could not reach full consensus on whether 
to extend covered data to include these additional three areas, the 
issues were

[[Page 10120]]

presented to the Administrator for resolution.
    With respect to one-time dosages of a prescription medication, FRA 
concluded that the one-time treatment of topical medication should be a 
``covered data'' case, because prescription strength Neosporin is often 
what is available to, and applied by, the treating medical 
professional, even when over-the-counter Neosporin would likely 
suffice. Prescription medication that is ingested is a different 
matter. Since the original OSHA regulation, major advances have been 
made with designer drugs and time-release medications. The single 
dosage prescription medicines have replaced medicine that previously 
would have required multiple dosages. Accordingly, FRA has concluded 
that medication ingested, even as a single dosage not be listed as a 
``covered data'' case. The definition of ``covered data'' in Sec.  
225.39 and the corresponding discussion of ``covered data'' in the 
Guide have been amended to address AAR's concerns regarding clarity and 
to reflect the addition of one-time dosages of topical prescription 
medication.
    With respect to the administration of oxygen issue, FRA has 
determined that the administration of oxygen should not be treated as 
``covered data'' cases, even if such administration was for a short 
time, if there were ``signs and symptoms'' that triggered the 
administration of oxygen. This is consistent with other parts of the 
OSHA/FRA reporting requirements, such as the administration of a 
vaccine due to exposure to a contagious disease. If the employee does 
not exhibit any ``signs or symptoms,'' then the case is not reportable; 
however, if the employee does exhibit signs, then the administration of 
the vaccine becomes reportable.
    As discussed earlier in section ``III.D.1.'' of the preamble, FRA 
decided not to classify new hearing loss cases as ``covered data.'' FRA 
has an interest in maintaining the integrity and value of its database.

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

Proposal
    Chapter 1 of the Guide was revised to reflect the major changes to 
part 225 and the rest of the Guide, such as important definitions, the 
revision of the telephonic reporting requirement, and the revision of 
the reportability criteria in Sec.  225.19(d). In addition, Chapter 1 
has been revised to change the closeout date for the reporting year. 
Under FRA's reporting requirements, in effect since 1997, railroads 
were permitted until April 15 to close out their accident/incident 
records for the previous reporting year. 1997 Guide, Ch. 1, p. 11. FRA 
has amended its Guide to extend the deadline for completing such 
accident/incident reporting records until December 1, and will extend 
the deadline even beyond that date on a case-by-case basis for 
individual records or cases, if warranted.
Comments and Final Rule/Decision
    Comments received will be discussed in context with the issues as 
stated elsewhere in this preamble.

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

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

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

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

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

29 CFR 1904.7(b)(3)(viii). In contrast, under FRA's 1997 Guide, a 
railroad was only required to report the actual number of days that the 
employee did not return to work or was on restricted work duty due to a 
work-related injury or illness: ``A record of the actual count of these 
days must be maintained for the affected employee.'' See 1997 Guide, 
Ch. 6, pp. 13-14.
    There was much discussion at the Working Group meetings as to 
whether FRA should conform to OSHA's final rule with respect to 
reporting the number of days away from work or number of days of 
restricted duty. Some Working Group members wanted to leave FRA's 
current reporting system in place, while others saw merit in OSHA's 
approach. FRA representatives met with OSHA representatives to address 
this issue. OSHA insisted that since it tracks an index of the severity 
of injuries, with days away from work being the most severe non-fatal 
injuries and illnesses, it was important to OSHA to maintain a uniform 
database and have those types of injuries captured in its statistics.
    A compromise was reached on the issue of reporting the number of 
days away and number of days of restricted work activity that was 
acceptable both to the Working Group and, preliminarily, to OSHA. 
Specifically, FRA proposed that if no other reporting criteria apply 
but a doctor orders a patient to rest and not to report to work for a 
number of days because of a work-related injury or illness, the 
railroad must report the case under a special category called ``covered 
data.'' The Guide would explain how this covered data would be coded. 
The principal

[[Page 10121]]

purpose of collecting covered data is so that this information can be 
provided to DOL for inter-industry comparison. The general rule is as 
follows: Where a doctor orders days of rest for an employee because of 
a work-related injury or illness, the railroad must report the 
resulting actual days away from work unless the employee misses no days 
of work because of the injury or illness, in which case, the railroad 
must report one day. Note: If the employee takes more days than the 
doctor ordered, the railroad must still report actual days away from 
work unless the railroad can show that the employee should have 
returned to work sooner. The following examples illustrate the 
application of this principle in combination with existing requirements 
that would be carried forward.
    [sbull] If the doctor orders the patient to five days of rest, and 
the employee reports to work the next day and takes no other days off 
as a result of the injury or illness, the railroad must report one day 
away from work. (This case would be separately coded and not included 
in FRA accident/incident aggregate statistics.)
    [sbull] If, on the other hand, the employee takes three days of 
rest, when the doctor ordered five days of rest, then the railroad must 
report the actual number of days away from work as three days away from 
work.
    [sbull] Of course, if the doctor orders five days of rest and the 
employee takes five days of rest, then the railroad must report the 
full five days away from work.
    [sbull] Finally, if the doctor orders five days of rest, and the 
employee takes more than the five days ordered, then the railroad must 
report the actual number of days away from work, unless the railroad 
can show that the employee should have returned to work sooner than the 
employee actually did.
    FRA noted that it may be appropriate to take into consideration 
special circumstances in determining the appropriate reporting system 
for the railroad industry. While compensation for injuries and 
illnesses in most industries is determined under state-level worker 
compensation systems, which provide recovery on a ``no-fault'' basis 
with fixed benefits, railroad claims departments generally compensate 
railroad employees for lost workdays resulting from injuries or 
occupational illnesses. In the event a railroad employee is not 
satisfied with the level of compensation offered by the railroad, the 
injured or ill employee may seek relief under FELA (Federal Employer's 
Liability Act), which is a fault-based system and subject to full 
recovery for compensatory damages. Further, railroad employees 
generally are subject to a federally-administered sickness program, 
which provides benefits less generous than under some private sector 
plans. Although it is not readily apparent in any quantitative sense 
how this combination of factors influences actual practices with 
respect to medical advice provided and employee decisions to return to 
work, clearly the external stimuli are different than one would expect 
to be found in a typical workplace. Accordingly, it seemed appropriate 
that the Working Group found it wise to recommend that FRA adopt a 
compromise approach that blends the new OSHA approach with the 
traditional emphasis on actual outcomes. The approach described above 
will foster continuity in rail accident/incident trend analysis while 
permitting inter-industry comparability, as well.
Comments
    In its comments, AAR sought clarification as to whether the same 
principles that applied to counting days away from work applied to 
counting days of restricted work. AAR also commented that the Guide 
needed to be clearer in its discussion of covered data. At the post-
NPRM Working Group meeting, FRA confirmed that the same principles that 
applied to counting days away from work would also apply to counting 
days of restricted work and vice versa.
Final Rule/Decision
    With some slight modifications in accordance with AAR's request for 
greater clarity, FRA has adopted the proposed method for counting days 
away from work and days of restricted work. FRA will address the slight 
variations on this issue in its MOU with OSHA.
2. Changes in the ``Cap'' on Days Away From Work and Days Restricted; 
Including All Calendar Days in the Count of Days Away From Work and 
Days of Restricted Work Activity
Proposal
    In addition, to conform to OSHA's Final Rule, FRA proposed 
amendments to its Guide that lower the maximum number of days away or 
days of restricted work activity that must be reported, from 365 days 
to 180 days, and change the method of counting days away from work and 
days of restricted work activity. The Working Group noted that counting 
calendar days is administratively simpler for employers than counting 
scheduled days of work that are missed. Using this simpler method of 
counting days away from work provides employers who keep records some 
relief from the complexities of counting days away from work under 
FRA's former system. Moreover, the calendar day approach makes it 
easier to compare an injury/illness date with a return-to-work date and 
to compute the difference between those two dates. The calendar method 
also facilitates computerized day counts. In addition, calendar day 
counts are a better measure of severity, because they are based on the 
length of disability instead of being dependent on the individual 
employee's work schedule. Accordingly, FRA proposed to adopt OSHA's 
approach of counting calendar days because this approach was easier 
than the former system and provided a more accurate and consistent 
measure of disability duration resulting from occupational injury and 
illness and thus would generate more reliable data. Under FRA's 1997 
Guide, days away from work and days of restricted work activity were 
counted only if the employee was scheduled to work on those days. In 
the 2003 Guide, because it is a preferred approach, and to be 
consistent with OSHA's Final Rule, days away from work includes all 
calendar days, even a Saturday, Sunday, holiday, vacation day, or other 
day off, after the day of the injury and before the employee reports to 
work, even if the employee was not scheduled to work on those days.
Comments
    Although there were no specific comments directly related to the 
proposed 180-day cap amendment, there was a comment with respect to an 
alleged disparity between the time period of the proposed cap and the 
time period of a pre-existing requirement for updating reports. AAR 
commented that there was a disparity between the proposed Guide's 
discussion of updating reports and the discussion that took place in 
the RSAC meetings. The proposed Guide stated that railroads were 
required to monitor employee illnesses and injuries for 180 days after 
the occurrence of the injury or the diagnosis of the illness and update 
accident/incident reports during that period. See Question and Answer 
No. 91 in the proposed Guide, Ch. 6, pp. 34-35. AAR concluded that this 
policy was inconsistent with FRA's requirement that a railroad file 
late reports for up to five years after the end of the calendar year to 
which the reports relate. See proposed Guide, Ch. 1, p. 12. It appears 
there was some confusion on what had actually been agreed upon related 
to this

[[Page 10122]]

comment and the difference in the requirement to update an injury 
versus an occupational illness, since occupational illnesses become 
reportable on the date of diagnosis.
    At the post-NPRM meeting, FRA explained that the requirements were 
not inconsistent. There is a difference between monitoring (for 180 
days) an illness or injury about which the railroad had prior 
knowledge, or already reported or listed as an accountable, versus 
having to file a late report for injuries or illnesses that were never 
reported in any form but should have been. With respect to the cases 
being monitored, the five-year reporting obligation would only hold the 
railroad responsible for failing to report a change in an employee's 
illness or injury that occurred within the 180-day monitoring period. 
Thus, if a change occurred on the 180th day, and the railroad did not 
discover its error in failing to report until two years later, an 
obligation to file a late report would still exist, but if a change 
occurred on the 181st day, the railroad is no longer under an 
obligation to actively monitor or investigate the case and would not be 
held accountable for failing to report such a change one day, one year, 
or five years later. If a railroad is provided with information or 
documentation of consequences that the employee claims is related to an 
injury that occurred more than 180 days ago, the railroad would have to 
handle the injury as it would a new case.
Final Rule/Decision
    FRA has adopted the 180-day cap as proposed. The new cap reflects 
Working Group agreement that reportable and accountable injuries are 
tracked for 180 days from the date of the incident. However, if an 
injury becomes reportable during that monitoring/tracking period, the 
carrier will report it when it becomes known, even after the 180 days. 
This approach differs slightly from OSHA's approach, which appears to 
require an employer to continue counting days until the 180-day maximum 
is reached, regardless of whether those days were consecutive or 
intermittent. Thus, an employer may have to monitor or track an injury 
for more than 180 days. In contrast, FRA's cap of 180 days will only be 
reached if the employee misses those days consecutively. It has 
generally been FRA's experience that a reportable injury will meet one 
or more of the general reportability criteria within the 180-day time 
frame and that only a few cases continue to result in missed days 
beyond this time frame. Additionally, this difference would not likely 
have a substantial effect on the data for purposes of OSHA's severity 
index, since under that index 120 days away from work missed 
intermittently over a 180-day period would be comparable in severity to 
180 days missed consecutively, or 180 days missed intermittently over a 
two-year period. Thus, FRA has concluded that the burden on the 
employer of having to monitor a case for as long a period as necessary 
to compile 180 days away from work outweighs the benefit of capturing 
more days in a few cases by adopting an intermittent 180-day cap.
    FRA has added to the 2003 Guide an explanation of the difference in 
occupational illness reporting versus injury and has clarified the 
discussion concerning the required time period for monitoring and how 
it relates to updating reports. FRA will address the differences in the 
180-day cap in its MOU with OSHA.
3. Definitions of ``Medical Treatment'' and ``First Aid''
Proposal
    FRA's 1997 Guide indicated what constituted ``medical treatment'' 
and what constituted ``first aid'' and how to categorize other kinds of 
treatment. See 1997 Guide, Ch. 6, pp. 6-9. As stated in the 1997 Guide, 
``medical treatment'' rendered an injury reportable. If an injury or 
illness required only ``first aid,'' the injury was not reportable, but 
was, instead, accountable. Under OSHA's final rule, a list is provided 
of what constitutes ``first aid.'' 29 CFR 1904.7(b)(5). If a particular 
procedure is not included on that list, and does not fit into one of 
the two categories of treatments that are expressly defined as not 
medical treatment (diagnostic procedures and visits for observation or 
counseling), then the procedure is considered to be ``medical 
treatment.'' Id. FRA proposed to amend its regulations and Guide to 
conform to OSHA's definition and new method of categorizing what 
constitutes medical treatment and first aid. Specifically, FRA proposed 
to amend its regulations and the Guide to address the following four 
items:
    a. Counseling. Under FRA's ``definitions'' section of its 
regulations,

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

See Sec.  225.5. In contrast, under OSHA's final rule, ``medical 
treatment does not include: (A) Visits to a physician or other licensed 
health care professional solely for observation or counseling. * * *'' 
Emphasis added. See 29 CFR 1904.7(b)(5)(i). Accordingly, to conform to 
OSHA's final rule, FRA proposed to amend its definition of ``medical 
treatment'' to exclude counseling as a type of medical treatment. See 
proposed Sec.  225.5.
    b. Eye patches, butterfly bandages, Steri-StripsTM, and 
similar items. Under FRA's 1997 Guide, use of an eye patch, butterfly 
bandage, Steri-StripTM, or similar item was considered 
medical treatment, rendering the injury reportable. Under OSHA's final 
rule, however, use of an eye patch, butterfly bandage, or Steri-
StripTM is considered to be first aid and, therefore, not 
reportable. In order to conform FRA's Guide to OSHA's Final Rule, FRA 
proposed to amend the Guide so that use of an eye patch, butterfly 
bandage, or Steri-StripTM would be considered first aid.
    c. Immobilization of a body part. Under FRA's 1997 Guide, 
immobilization of a body part for transport purposes was considered 
medical treatment. Given, however, that OSHA's final rule considers 
immobilization of a body part for transport to be first aid, FRA 
proposed to amend its Guide so that immobilization of a body part 
solely for purposes of transport would be considered first aid.
    d. Prescription versus non-prescription medication. Under FRA's 
1997 Guide, a doctor's order to take over-the-counter medication was 
not considered medical treatment even if a doctor ordered a dosage of 
the over-the-counter medication at prescription strength. Under OSHA's 
final rule, however, a doctor's order to take over-the-counter 
medication at prescription strength is considered medical treatment 
rather than first aid. For example, under OSHA's final rule, if a 
doctor orders a patient to take simultaneously three 200 mg. tablets of 
over-the-counter Ibuprofen, this case would be reportable, since 467 
mg. of Ibuprofen is considered to be prescription strength.
    The Working Group struggled with this issue. On the one hand, it is 
a legitimate concern that reportability not be manipulated by 
encouraging occupational clinics to substitute a non-prescription 
medication when a prescription medication is indicated. That result, 
however, may be more humane than a circumstance in which the medical 
provider is wrongly encouraged not to order an appropriate dosage.

[[Page 10123]]

    Further, in some cases, physicians may direct the use of patent 
medicines simply to save the employee the time of filling a 
prescription or simply to hold down costs to the insurer. Also, the 
physician may find the over-the-counter preparation to be more suitable 
in terms of formulation, including rate of release and absorption.
    As in the case of recommended days away from work not taken 
(discussed above), the Working Group settled on recommending a 
compromise position. Where the treating health care professional 
directs in writing the use of a non-prescription medication at a dose 
equal to or greater than that of the minimum amount typically 
prescribed, and no other reporting criterion applies, the railroad 
would report this as a special case (``covered data'' under Sec. Sec.  
225.5 and 225.39). FRA explored whether it was practical to add to 
Chapter 6 of the 2003 Guide, a list of commonly used over-the-counter 
medications, including the prescription strength for those medications. 
FRA has concluded that this list would be helpful to the regulated 
community; thus, a list of over-the-counter medications that conforms 
to OSHA's published standards has been added to Chapter 6. If OSHA 
revises its list of over-the-counter medications in the future, the 
revised list will be posted on FRA's Web site at http://safetydata.fra.dot.gov/guide. As covered data, the case would be 
included in aggregate data provided to DOL, but would not be included 
in FRA's periodic statistical summaries. FRA would have the data 
available to reference, and if a pattern of apparent abuse emerged, FRA 
could examine both the working conditions in question and also review 
possible further amendments to these reporting regulations.
Comments and Final Rule/Decision
    No specific comments were received concerning the above-proposed 
changes to the definitions of ``medical treatment'' and ``first aid.'' 
For the reasons stated above, the changes have been adopted as 
proposed. However, the issue was raised with respect to the 
classification of the administration of oxygen and one-time dosages of 
prescription medication. These issues were resolved by FRA, and the 
provisions have been amended accordingly. For a more detailed 
discussion, please see section ``III.H.'' of the preamble, above.

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

Proposal
    To allow for better analysis of railroad accident data, FRA 
proposed to amend Chapter 7 of the Guide to include the new codes for 
remote control locomotive operations, and for reporting the location of 
a rail equipment accident/incident using longitude and latitude 
variables. See also sections ``III.M.'' and ``III.P.1.'' of the 
preamble, below.
Comments and Final Rule/Decision
    No specific comments were received. For the reasons stated above, 
the amendments have been adopted as proposed.

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

Proposal
    FRA has been faced with a number of commuter rail service reporting 
issues. For example, in reviewing accident/incident data using 
automated processing routines, FRA could not distinguish Amtrak's 
commuter activities from its intercity service, and could not always 
distinguish between a commuter railroad that ran part of its operation 
and contracted for another part of its operation with a freight 
railroad. FRA developed alternative strategies with the affected 
railroads for collecting these data to ensure that commuter rail 
operations accurately reflected the entire scope of operations, yet did 
not increase the burden of reporting for affected railroads. This issue 
also arose in the context of an NTSB Safety Recommendation, R-97-11, 
following NTSB's investigation of a collision on February 16, 1996, in 
Silver Spring, Maryland, between an Amtrak passenger train and a MARC 
commuter train. During the accident investigation, NTSB requested from 
FRA a five-year accident history for commuter railroad operations. FRA 
was not, however, able to provide a composite accident history for some 
of the commuter railroad operations because they were operated under 
contract with Amtrak and other freight railroads, and the accident data 
for some commuter railroads were commingled with the data of Amtrak and 
the other contracted freight railroads. Accordingly, NTSB's Safety 
Recommendation R-97-11 addressed to FRA read as follows: ``Develop and 
maintain separate identifiable data records for commuter and intercity 
rail passenger operations.''
    When RSAC Task Statement 2001-1 was presented, FRA determined that 
a new chapter in the Guide was needed to address NTSB's and FRA's 
concerns regarding commuter railroad reporting. At the initial May 2001 
meeting, FRA representatives presented the issue to the Working Group. 
FRA representatives were tasked to develop a chapter specifically 
dealing with commuter rail reporting. In the August 2001 Working Group 
meeting, FRA presented a draft of the new chapter. A task group was 
formed that included representatives of Amtrak, Metra, APTA, and FRA. 
The new Chapter 12 was presented in November of 2001 to the entire 
Working Group, and the Working Group accepted the chapter in its 
entirety.
Comments and Final Rule/Decision
    No specific comments were received. For the reasons stated above, 
Chapter 12 has been adopted as proposed.

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

Proposal
    An FRA notice entitled, ``Notification of Modification of 
Information Collection Requirements on Remote Control Locomotives,'' 
stated that the Special Study Blocks on the rail equipment accident 
report and highway-rail crossing report, as well as special codes in 
the narrative section of the ``Injury and Illness Summary Report 
(Continuation Sheet),'' were for only temporary use until part 225 and 
the Guide were amended. 65 FR 79915, Dec. 20, 2000. At the November 
2001 Working Group meeting, some members raised the issue of addressing 
this statement in FRA's notice and the need to craft regular means for 
reporting accidents/incidents involving remote control locomotives 
(RCL). In response, a special task group was formed to study the 
reporting of RCL-related rail equipment accidents, highway-rail 
crashes, and casualties.
    In December of 2001, the task group initially decided to recommend 
modifying the ``Rail Equipment Accident/Incident Report Form'' (FRA F 
6180.54) and the ``Highway-Rail Grade Crossing Accident/Incident Report 
Form'' (FRA F 6180.57) to add an additional block to capture RCL 
operations, but the task group was not able to reach consensus on the 
``Injury and Illness Summary Report (Continuation Sheet)'' (FRA F 
6180.55a).
    Railroad representatives were concerned about modifying the 
accident/incident database with additional data elements. The FRA

[[Page 10124]]

representatives proposed a new, modified coding scheme that utilized 
the Probable Reason for Injury/Illness Code field in the set of 
Circumstance Codes and also included some additional Event Codes and 
two special Job Codes.
    During a subsequent Working Group meeting, a new element was added 
as Item 30a, ``Remote Control Locomotive,'' on the ``Rail Equipment 
Accident/Incident Report'' form to allow entry of one of four possible 
values:
    ``0''--Not a remotely controlled operation;
    ``1''--Remote control portable transmitter;
    ``2''--Remote control tower operation; and
    ``3''--Remote control portable transmitter--more than one remote 
control transmitter.

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

These recommendations were accepted by the Working Group, as well as 
the changes in the Job Codes and Circumstance Codes for the ``Injury 
and Illness Summary Report (Continuation Sheet).''
Comments and Final Rule/Decision
    No specific comments were received regarding the changes in the 
reporting of accidents/incidents involving remote control locomotives. 
The amendments have been adopted as proposed. See also discussion 
concerning changes in Circumstance Codes in section ``III.N.'' of this 
preamble, below.

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

    Prior to 1997, the ``Injury and Illness Summary Report 
(Continuation Sheet)'' contained a field called ``Occurrence Code.'' 
The field attempted to describe what the injured or ill person was 
doing at the time he or she was injured or became ill. Often the action 
of the individual was the same, but the equipment involved was 
different, so a different Occurrence Code was needed for each 
situation, e.g., getting off locomotive, getting off freight car, 
getting off passenger car. Another problem with the Occurrence Code was 
that the code did not provide the information necessary to explain the 
incident, e.g., if the injury was electric shock, the Occurrence Code 
was ``using hand held tools,'' so FRA could not tell from the report if 
the electrical shock was from the hand tool, the third rail, lightning, 
or drilling into a live electric wire.
    To address these concerns, the Occurrence Code field was replaced 
in 1997 with the Circumstance Code field. The change allowed for more 
flexibility in describing what the person was doing when injured or 
made ill. Under the broad category of Circumstance Codes, FRA had 
developed five subsets of codes: Physical Act; Location; Event; Tools, 
Machinery, Appliances, Structures, Surfaces (etc.); and Probable Reason 
for Injury/Illness.
    During the next five years, FRA and the railroad reporting officers 
realized that there were still gaps in the codes. FRA proposed 
expanding the list of Circumstance Codes and determined that some 
injuries and fatalities should always be reported using a narrative. 
Also, some Circumstance Codes required the use of narratives. At the 
July 2001 Working Group meeting, the railroads noted that expanded 
Circumstance Codes would assist in reporting and analysis. FRA asked 
the railroads to provide an expanded list of Circumstance Codes for the 
next meeting, with the understanding that a narrative would be required 
when the codes did not adequately describe the incident. By the 
September 2001 meeting, the railroads had produced many new codes, 
which FRA compiled and presented at the November 2001 meeting. At that 
meeting, rail labor representatives discussed RCL reporting. In the 
January 2002 Working Group meeting, the members reviewed the compiled 
list, including the special RCL codes. The Working Group made 
recommendations to move some of the codes to other areas. At the March 
2002 Working Group meeting, a task group was formed to resolve the 
remaining issues with respect to codes. Specifically, the Working Group 
started by referring to proposed codes that pertained to switching 
operations. These codes were Probable Reason codes that came out of a 
separate FRA Working Group on Switching Operations Fatality Analysis 
(SOFA). The task group revised the SOFA codes and added them to 
Appendix F. The entire Working Group then reviewed and voted to approve 
all of the task force's proposed codes.
Comments and Final Rule/Decision
    Although no specific comments were received with respect to 
Circumstance Codes during the comment period, FRA was later alerted to 
several errors in the Circumstance Codes by a representative of BNSF. A 
copy of BNSF e-mails concerning Circumstance codes have been placed in 
the docket. The proposed Guide did not reflect the codes as updated by 
a 1997 FRA memo. Accordingly, other than the edits incorporating the 
codes from the 1997 memo into Appendix F of the 2003 Guide, FRA has 
adopted the amendments to the codes as proposed.

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

Proposal
    The Working Group converted the Form FRA F 6180.78, ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor [and] Employee Statement 
Supplementing Railroad Accident Report,'' and Form FRA F 6180.81, 
``Employee Human Factor Attachment'' to question-and-answer format, and 
simplified the language so that they are easier to understand. One 
issue raised was whether a specific warning related to criminal 
liability for falsifying the form should be included on the form. Some 
Working Group members believed that a warning would only serve to 
intimidate employees from filling out the form. FRA noted that it was 
important to put the warning on the form to deter employees from 
falsifying information on the forms. FRA also noted that the same 
warning would be included on the form for reporting officers. In 
deference to the fact that rail labor representatives felt strongly 
that the language was too intimidating, it was agreed that a general 
warning would be included on the back of the form, which would not 
specifically state the penalties for falsifying information on the 
form. In addition, the Working Group agreed to modification of Form FRA 
F 6180.98 to include an item for the county in which the accident/
incident occurred.
Comments and Final Rule/Decision
    No specific comments were received. For the reasons stated above, 
the amendments have been adopted as proposed.

P. Miscellaneous Issues Regarding Part 225 or the Guide

1. Longitude and Latitude Blocks for Two Forms
Proposal
    Following discussion of this issue, the Working Group agreed that 
provision could be made for voluntarily reporting the latitude and 
longitude of a rail equipment accident/incident, a trespasser incident, 
and an employee

[[Page 10125]]

fatality. FRA proposed to add blocks to Form FRA F 6180.54 and Form FRA 
F 6180.55a for this information. The reason FRA is seeking to gather 
this information is to better determine if there is a pattern in the 
location of certain rail equipment accidents/incidents, trespasser 
incidents, and employee fatalities. Geographic information systems 
under development in the public and private sectors provide an 
increasingly capable means of organizing information. Railroads are 
mapping their route systems, and increasingly accurate and affordable 
Global Positioning System (GPS) receivers are available and in 
widespread use.
Comments and Final Rule/Decision
    No specific comments were received. For the reasons stated above, 
the blocks have been adopted as proposed.
2. Train Accident Cause Code ``Under Investigation'' (Appendix C of the 
Guide)
Proposal
    One of the tasks addressed by the Working Group was to define 
``under investigation,'' as that term is used in Cause Code M505, 
``Cause under investigation (Corrected report will be forwarded at a 
later date),'' and to put that definition in Chapter 7 of the Guide 
under subpart C, ``Instructions for Completing Form FRA F 6180.54,'' 
block 38, ``Primary Cause Code'' and Appendix C of the Guide. 
Currently, many accidents/incidents of a significant nature, e.g., ones 
that are involved in private litigation for many years, are coded as 
``under investigation.'' Even if FRA and the railroad think that they 
know the primary cause of an accident, some railroads will not assign a 
specific cause code to the accident, either for liability reasons, or 
because the railroad or a local jurisdiction (or some other authority) 
is still investigating the accident.
    To provide finality to the process of investigating an accident/
incident, the Working Group agreed that ``under investigation'' would 
mean under active investigation by the railroad. When the railroad has 
completed its own investigation and received all laboratory results, 
the railroad must make a ``good faith'' determination of the primary 
cause of the accident, any contributing causes, and their proper codes. 
The railroad must not wait for FRA or NTSB to complete their 
investigations before assigning the most applicable cause code(s) 
available. After FRA or NTSB completes its investigation, the railroad 
may choose to amend the cause code on the accident report. Accordingly, 
FRA proposed to revise the Guide to demonstrate that the meaning of the 
cause code in question has been changed to ``Cause under active 
investigation by reporting railroad (Amended report will be forwarded 
when reporting railroad's active investigation has been completed).''
    In addition, the Working Group agreed to add a new code ``M507'' to 
denote accidents/incidents in which the investigation is complete but 
the cause of the accident/incident could not be determined. If a 
railroad uses this code, the railroad is required to include in the 
narrative block an explanation for why the cause of the accident/
incident could not be determined.
Comments and Final Rule/Decision
    No specific comments were received. For the reasons stated above, 
the amendments have been adopted as proposed.
3. ``Most Authoritative'': Determining Work-Relatedness and Other 
Aspects of Reportability
Proposal
    The duty to report work-related illnesses under the current rule 
has occasioned concern and disagreement about not only whether an 
illness exists, but, more importantly and more controversially, whether 
the illness is work-related. Often an employee's doctor's opinion is 
that an employee's illness is work-related, while the railroad's 
doctor's opinion is that the illness is not work-related. In providing 
guidance as to how a reporting officer determines whether an illness is 
work-related, OSHA's final rule states,

    [the employer] must consider an injury or illness to be work-
related if an event or exposure in the work environment either 
caused or contributed to the resulting condition or significantly 
aggravated a pre-existing injury or illness. Work-relatedness is 
presumed for injuries and illnesses resulting from events or 
exposures occurring in the work environment, unless an exception in 
Sec. 1904.5(b)(2) applies.

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

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

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

    Under this language [29 CFR 1904.5(a)], a case is presumed work-
related if, and only if, an event or exposure in the work 
environment is a discernable cause of the injury or illness or of a 
significant aggravation to pre-existing condition. The work event or 
exposure need only be one of the discernable causes; it need not be 
the sole or predominant cause.
    Section 1904.5(b)(2) states that a case is not recordable if it 
``involves signs or symptoms that surface at work but result solely 
from a non-work-related event or exposure that occurs outside the 
work environment.'' This language is intended as a restatement of 
the principle expressed in 1904.5(a), described above. Regardless of 
where signs or symptoms surface, a case is recordable only if a work 
event or exposure is a discernable cause of the injury or illness or 
of a significant aggravation to a pre-existing condition.
    Section 1904.5(b)(3) states that if it is not obvious whether 
the precipitating event or exposure occurred in the work environment 
or elsewhere, the employer ``must evaluate the employee's work 
duties and environment to decide whether or not one or more events 
or exposures in the work environment caused or contributed to the 
resulting condition or significantly aggravated a pre-existing 
condition.'' This means that the employer must make a determination 
whether it is more likely than not that work events or exposures 
were a cause of the injury or illness, or a significant aggravation 
to a pre-existing condition. If the employer decides the case is not 
work-related, and OSHA subsequently issues a citation for failure to 
record, the Government would have the burden of proving that the 
injury or illness was work-related.

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

    If you receive recommendations from two or more physicians or 
other licensed health care professionals, you must make a decision

[[Page 10126]]

as to which recommendation is the most authoritative (best 
documented, best reasoned, or most [persuasive]) and record the case 
based upon that recommendation.

29 CFR 1904.6(b)(3). (Note: the preamble to OSHA's final rule uses the 
word ``persuasive'' while the rule text uses the word ``authoritative'' 
where FRA put the word ``persuasive'' in brackets. FRA chose to use the 
language from the preamble, instead of that in the rule text, to avoid 
redundancy.)
    The question of who is the ``most authoritative'' physician or 
other licensed health care professional arises in a number of contexts 
when there is a conflict of medical opinion. Conflicting medical 
opinions, often between an employee's physician and a railroad's 
company physician, arise regarding the following questions: whether an 
injury or illness is work-related; whether an employee needs days away 
from work (or days of restricted work) to recuperate from a work-
related injury or illness, and if so, how many days; and whether a 
fatality is work-related, or arose from the operation of a railroad. 
FRA proposed to adopt in its Guide OSHA's definition in its Final Rule 
of ``most authoritative,'' and to adopt the language from the NAM-OSHA 
settlement agreement in order to resolve this issue. See also 
discussion of FRA review of work-relatedness determinations under 
section ``III.G.2.b.'' of the preamble.
Comments
    Although no specific comments were received on this issue, a 
discussion occurred at the post-NPRM Working Group meeting, where 
representatives from AAR and TRE (Trinity Railway Express) expressed 
concern that FRA might adopt what they perceived as OSHA's position, 
namely, that work-relatedness was presumed in hearing loss cases unless 
the physician stated otherwise. After reviewing OSHA's final rule, FRA 
explained that although OSHA had originally proposed a presumption of 
work-relatedness, OSHA later determined that it was not appropriate to 
include this presumption in its final rule. See 67 FR 44045 (July 1, 
2002). Consequently, OSHA decided that there are no special rules for 
determining work relationship with respect to hearing loss cases, 
rather the general approach would apply; thus, a hearing loss would be 
work-related ``if one or more events or exposures in the work 
environment either caused or contributed to the hearing loss, or 
significantly aggravated a pre-existing hearing loss.'' Id.
Final Rule/Decision
    FRA has adopted its proposed policy concerning work-relatedness. 
However, based on the foregoing discussion of OSHA's rejection of the 
presumption of work-relatedness for hearing loss cases, Question and 
Answer No. 74 in the 2003 Guide has been amended to reflect OSHA's 
changed position.
4. Job Title versus Job Function
Proposal
    An additional issue resolved by the Working Group was to propose 
amending the Guide's instructions for completing blocks 40-43 of FRA 
Form F6180.54 to make it clear that the job function of the employee, 
rather than the employee's job title, would be used to determine the 
employee's job title for reporting purposes when the railroad gives the 
employee a job title other than ``engineer,'' ``fireman,'' 
``conductor,'' or ``brakeman.''
Comments and Final Rule/Decision
    No specific comments were received. The amendments have been 
adopted as proposed.
5. ``Recording'' versus ``Reporting''
Proposal
    Under OSHA's final rule, the term ``recording'' is used. Under 
FRA's regulations and Guide, the term ``reporting'' is used. Since FRA 
has always used the term ``reporting'' in its regulations and Guide, 
and since one of the statutes authorizing part 225 uses the term 
``reporting,'' FRA proposed to continue to use the term ``reporting'' 
instead of ``recording.'' See 49 U.S.C. 20901(b)(1) (``In establishing 
or changing a monetary threshold for the reporting of a railroad 
accident or incident * * * .'')
Comments and Final Rule/Decision
    No specific comments were received. FRA will continue to use the 
term ``reporting'' instead of ``recording'' as proposed.

IV. Section-by-Section Analysis

Section 219.5 Definitions

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

* * * * *
    The employee has been involved in an accident or incident 
reportable under Part 225 of this chapter, and a supervisory 
employee of the railroad has a reasonable belief, based on specific, 
articulable facts, that the employee's acts or omissions contributed 
to the occurrence or severity of the accident or incident;
* * * * *
[Emphasis added.] It should also be noted that Sec.  219.301(b)(2) is 
incorporated by reference in Sec.  219.301(c) as a basis for ``for 
cause drug testing.''
    In addition, the definition of ``reportable injury'' for purposes 
of part 219 was revised to mean an injury reportable under part 225 of 
this chapter except for an injury that is classified as ``covered 
data'' under Sec.  225.5 of this chapter. The term ``reportable 
injury'' appears in three provisions of part 219, each of which 
describes an event that triggers the requirement for post-accident 
toxicological testing: (i) A ``major train accident'' that includes a 
release of hazardous material lading with a ``reportable injury'' 
resulting from the release; (ii) an ``impact accident'' involving 
damage above the current reporting threshold and resulting in a 
``reportable injury''; and (iii) a passenger train accident with a 
``reportable injury'' to any person. Sec. Sec.  219.201(a)(1)(ii)(B), 
219.201(a)(2), and 219.201(a)(4).
    The reason that ``accident or incident reportable under Part 225'' 
and ``reportable injury'' does not, for purposes of part 219, include 
covered data cases is that while these cases are of importance from the 
standpoint of rail safety analysis and therefore reportable, they are, 
nevertheless, comparatively less severe than fatalities, other injuries 
and illnesses and, as such, should not trigger alcohol and drug testing 
or related requirements and sanctions.
Comments and Final Rule/Decision
    No specific comments were received on this section. Note, however, 
that comments were received on the definition of ``covered data'' and 
that the category of covered data has been expanded to include another 
subset of

[[Page 10127]]

cases. See Sec.  225.39 and above discussion of covered data at section 
``III.H.'' of this preamble. The definitions have been adopted as 
proposed, except for the modifications made to the description of 
covered data cases.

Section 225.5 Definitions

Proposal
    ``Accident/incident'' for purposes of FRA's accident/incident 
reporting rule was redefined to conform to OSHA's final rule. Under 
FRA's 1997 rule, ``accident/incident'' is defined in part as,

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

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

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

    The phrase ``discernable cause'' was included in the proposed 
definition, and the words ``or exposure'' were added before the word 
``arising.'' The addition of the word ``discernable'' was intended to 
take into account the OSHA-NAM settlement agreement, which also uses 
``discernable'' to describe ``cause.'' As defined in Webster's Third 
New International Dictionary, Unabridged (1971), ``discernable'' means 
``capable of being discerned by the senses or the understanding: 
distinguishable (a [sim] trend) (there was [sim] the outline of an old 
trunk-Floyd Dell).'' FRA understands why some Working Group members 
requested this change as a matter of conformity and to emphasize that 
the employer is not required to speculate regarding work-relatedness. 
By the same token, FRA emphasizes that when confronted with specific 
claims regarding work-relatedness, it is the employer's responsibility 
to fairly evaluate those claims and opt for reporting if an event, 
exposure, or series of exposures in the workplace likely contributed to 
the cause or significantly aggravated the illness.
    The Working Group agreed that the definition of ``accident/
incident'' also needed to include that the case had to be a new case, 
or a significant aggravation of a pre-existing condition. This 
reference to a ``new case'' was added to conform to 29 CFR 1904.4(a)(2) 
of OSHA's final rule, and the reference to ``significant'' aggravation 
of a pre-existing condition was added to conform to the OSHA-NAM 
settlement agreement.
    The inclusion of ``death to any person'' remained the same. 
``[I]njury to any person which requires medical treatment'' was changed 
to ``Injury to any person that results in medical treatment''; no 
substantive change was proposed. Injury to a railroad employee that 
results in ``(A) A day away from work; (B) Restricted work activity or 
job transfer; or (C) Loss of consciousness' was not changed. FRA did, 
however, propose a change to the 1997 rule that all occupational 
illnesses of railroad employees are to be reported and required that 
they be reported only under certain enumerated conditions. This also 
made it clear that an occupational illness of an employee to a 
contractor to a railroad is not to be reported. Further, FRA proposed 
to add to its criteria for reportability ``significant injuries or 
illnesses,'' ``needlestick or sharps injuries,'' ``medical removal,'' 
``occupational hearing loss,'' ``occupational tuberculosis,'' and an 
independently reportable ``occupational musculoskeletal disorder'' to 
railroad employees to track OSHA's Final Rule. Finally, as previously 
discussed, a three-tier definition of ``event or exposure arising from 
the operation of a railroad'' was added.
Comments and Final Rule/Decision
    No specific comments were received on this definition. For the 
reasons stated above, the amendments have been adopted as proposed.
Proposal
    The definition of ``accountable injury or illness'' was revised by 
substituting the words ``railroad employee'' for ``railroad worker,'' 
and by adding the word ``discernably'' before the word ``associated.'' 
These were technical changes to bring the language into conformity with 
the rest of the regulatory text.
Comments and Final Rule/Decision
    No specific comments were received on this definition. For the 
reasons stated above, the amendments have been adopted as proposed.
Proposal
    Under the 1997 rule, the definition of ``day away from work'' meant 
``any day subsequent to the day of the injury or diagnosis of 
occupational illness that a railroad employee does not report to work 
for reasons associated with his or her condition.'' Sec.  225.5. Under 
the 1997 Guide, ``If the days away from work were entirely unconnected 
with the injury (e.g., plant closing or scheduled seasonal layoff), 
then the count can cease at this time.'' 1997 Guide, Ch. 6, p. 31, 
question 34. FRA proposed to come closer to following OSHA's general 
recording criteria under 29 CFR 1904.7 of ``day away from work'' by 
proposing that the definition be ``any calendar day subsequent to the 
day of the injury or the diagnosis of the illness that a railroad 
employee does not report to work, or was recommended by a physician or 
other licensed health care professional not to return to work, as 
applicable, even if the employee was not scheduled to work on that 
day.'' Under the 1997 rule, if a doctor recommended that an employee 
not return to work, but the employee ignored the doctor's advice and 
returned to work anyway, this would not count as a day away from work. 
Under OSHA's Final Rule, however, the

[[Page 10128]]

reporting entity would still have to count all the days the doctor 
recommended that the employee not work. As a compromise, FRA proposed 
that the railroad be required to report as covered data one day away 
from work, even if the employee did not actually miss a day of work 
subsequent to the day of the injury or diagnosis of the illness, as 
discussed previously in the preamble. The revision of the definition of 
``day away from work'' was intended to take into account the new rule 
for reporting the number of days away from work.
    The definition of ``day of restricted work activity'' was revised 
for the same reason that FRA revised the definition of ``day away from 
work.''
Comments and Final Rule/Decision
    No specific comments were received on these definitions, however in 
its comments with respect to covered data cases, AAR sought 
clarification as to whether the same principles that applied to 
counting days away from work would apply to counting days of restricted 
work. At the post-NPRM Working Group meeting, FRA explained that the 
same principles would apply and agreed to edit the Guide to clarify 
that these cases are to be handled in the same manner. Upon further 
review of the Guide and the rule text definitions, FRA concluded that 
although all of the information concerning the reporting of days away 
from work and days of restricted work were present in the Guide and 
rule text collectively, the rule text definitions were not as clear as 
they could be in setting forth FRA's interpretation, as agreed upon by 
the Working Group. In an effort to avoid confusion and 
misinterpretation, FRA has amended the rule text definitions of ``day 
away from work'' and ``day of restricted work activity,'' and the 
corresponding discussions in the Guide, for clarification. See also 
comments and related discussion on change in method of counting days 
and 180 day cap at sections ``III.J.1.'' and ``III.J.2.'' of this 
preamble.
Proposal
    The definition of ``event or exposure arising from the operation of 
a railroad'' was added to include the following: (1) With respect to a 
person who is on property owned, leased, or maintained by the railroad, 
an activity of the railroad that is related to the performance of its 
rail transportation business or an exposure related to the activity; 
(2) with respect to an employee of the railroad (whether on or off 
property owned, leased, or maintained by the railroad), an activity of 
the railroad that is related to the performance of its rail 
transportation business or an exposure related to the activity; and (3) 
with respect to a person who is not a railroad employee and not on 
property owned, leased, or maintained by the railroad--(i) a train 
accident; a train incident; a highway-rail crossing accident/incident 
involving the railroad; or (ii) a release of a hazardous material from 
a railcar in the railroad's possession or a release of other dangerous 
commodity that is related to the performance of the railroad's rail 
transportation business. Accordingly, with respect to a person who is 
not a railroad employee and not on property owned, leased, or 
maintained by the railroad, the definition of ``event or exposure 
arising from the operation of a railroad'' is more narrow, covering a 
more limited number of circumstances than for persons who are either on 
railroad property, or for railroad employees whether on or off property 
owned, leased or maintained by the railroad. The justification for 
narrowing the set of circumstances in which a railroad is required to 
report certain injuries and illnesses for events that occur off 
railroad property is that it is difficult for railroads to know about, 
and follow up on, injuries off railroad property to persons who are not 
railroad employees, including employees of railroad contractors. 
Railroads simply have more limited opportunity to know about injuries 
and illnesses to persons other than those who are injured on their 
property or who are employed by the railroad. Accordingly, injuries to 
such persons are not to be considered for reporting purposes as events 
or exposures arising from the operation of the railroad.
Comments
    Although no specific comments were received on the substance of the 
definition or proposal itself, AAR commented that the Guide's 
discussion of contractors did not reflect FRA's proposed approach and 
should be amended to do so.
Final Rule/Decision
    FRA has adopted the proposal as stated and has amended the Guide to 
reflect this new approach. FRA intends to address the divergence from 
OSHA on the issue of the employee of a contractor in the MOU. See also 
earlier discussion of this issue at section ``III.D.2.'' of this 
preamble.
Proposal
    The definition of ``medical treatment'' was revised, as discussed 
earlier in the preamble, to conform generally to OSHA's new definition 
under 29 CFR 1904.7(b)(5)(i) of ``medical treatment.'' The proposed 
definition read,

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

    FRA proposed that any type of counseling, in and of itself, is not 
considered to be medical treatment. If, for example, a locomotive 
engineer witnesses a grade crossing fatality and subsequently receives 
counseling after being diagnosed as suffering from Post Traumatic 
Stress Syndrome, the case is not reportable. The only factors that 
would make the case reportable would be if, in addition to the 
counseling, the employee receives prescription medication (such as 
tranquilizers) has a day away from work, is placed on restricted work, 
is transferred to another job, or meets one of the other criteria for 
reportability in Sec.  225.19(d). In addition to the general objective 
of inter-industry conformity, this change is supported by the absence 
of meaningful interventions available to prevent such disorders. 
Although involvement in highway-rail grade crossing and trespass 
casualties is a known cause of stress in the railroad industry, FRA and 
the regulated community are already aware of that fact and are making 
every effort to prevent these occurrences. Further, the industry is 
actively engaged in preventive post-event counseling.
Comments and Final Rule/Decision
    No specific comments were received concerning the definition of 
``medical treatment.'' The definition of ``medical treatment'' has been 
adopted as proposed. However, the issue of what constitutes medical 
treatment was raised with respect to the classification of the 
administration of oxygen and one-time dosages of prescription 
medication. These issues were resolved by FRA, and the provisions have 
been amended accordingly. For a more detailed discussion, please see 
sections ``III.J.3.'' and ``III.H.'' of the preamble, above.
Proposal
    ``General reportability criteria'' was defined as the criteria set 
forth in Sec.  225.19(d)(1)-(5).
Comments and Final Rule/Decision
    No specific comments were received on this definition. FRA has 
adopted the definition as proposed.
Proposal
    ``Medical removal'' was defined as it is described in OSHA's 
recording

[[Page 10129]]

criteria under 29 CFR 1904.9 for medical removal cases. ``Medical 
removal'' refers to removing an employee from a work location because 
that location has been determined to be a health hazard. FRA proposed 
that this definition change automatically if OSHA elects to revise its 
recording criteria.
Comments
    Although no specific comments were received on the definition 
itself, AAR commented that it was opposed to the concept of floating 
regulations.
Final Rule/Decision
    FRA has adopted the proposed definition of ``medical removal'' and 
its incorporation of OSHA's provision in 29 CFR part 1910. However, in 
order to make clear that FRA is not ``floating'' this definition with 
OSHA's definition of that term, FRA has adopted a year-specific version 
of OSHA's definition, namely, the 2002 version. See also earlier 
discussion of this definition in the context of the ``float'' vs. 
``fixed'' issue at section ``III.D.1.'' of this preamble.
Proposal
    ``Needlestick and sharps injury'' and ``new case'' were defined in 
general conformity with OSHA's definitions of these terms under 29 CFR 
1904.8 and 1904.6, respectively.
Comments and Final Rule/Decision
    No specific comments were received on these definitions. The 
definitions have been adopted as proposed.
Proposal
    ``Privacy concern case'' was defined as in 29 CFR 1904.29, except 
that FRA would categorically exclude MSDs from its definition of 
``privacy concern case.'' As discussed in section ``III.G.1.,'' above, 
FRA sought comment on whether or not FRA should adopt this exclusion, 
especially if OSHA's proposed January 1, 2004, delay took effect, but 
in either case. FRA also sought comment on whether it should adopt the 
proposed exclusion of MSDs from its definition of ``privacy concern 
case'' as a fixed approach beginning on the effective date of FRA's 
final rule or whether FRA should ``float'' with OSHA, i.e., make the 
existence or nonexistence of the exclusion contingent on OSHA's action.
Comments and Final Rule/Decision
    No specific comments were received on this definition. FRA has 
adopted the definition as proposed and has not adopted the exclusion of 
MSDs from its definition of ``privacy concern case.'' See also 
discussion at section ``III.G.1.'' of this preamble. FRA intends to 
address the slight differences on this issue in its MOU with OSHA.
Proposal
    ``Occupational hearing loss'' was defined as OSHA defined it under 
29 CFR 1904.10 for calendar year 2002. As discussed in section 
``III.D.1.,'' above, FRA sought comment on whether FRA should adopt 
OSHA's new approach for calendar year 2003 as its fixed approach, 
beginning on the effective date of FRA's final rule, or whether FRA 
should diverge from OSHA and continue to enforce OSHA's current 
approach (which was approved by the Working Group and the RSAC and is 
the same as FRA's current approach) as a fixed approach beginning on 
the effective date of FRA's final rule.
Comments
    AAR strongly opposed the adoption of OSHA's new policy, noting that 
the policy would lead to a greater number of hearing loss cases being 
reported by the railroad industry and result in an adverse trend in the 
occurrence of railroad injuries regardless of the railroads' actual 
performance. After further discussion of the criteria at the post-NPRM 
meeting, AAR acquiesced in accepting the criteria for reporting, but 
was still concerned regarding the anticipated increases in reportables. 
AAR requested that FRA consider placing the hearing loss cases under 
covered data.
Final Rule/Decision
    The importance of capturing the true magnitude of work-related 
hearing loss is justification alone for adopting OSHA's criteria; 
however, it is important to note that the increase in the number of 
reportables will be partially offset by OSHA's reclassification as non-
reportable many events that previously were reportable.\9\ For a more 
detailed discussion of this issue, see sections ``III.D.1.'' and 
``III.H.'' of this preamble. Note that, for clarification and 
simplicity, the rule text definition has been amended to reflect the 
actual recording criteria used by OSHA (for calendar year 2003 and 
beyond) rather than the citation to the relevant section of OSHA's 
regulation. This amendment does not represent a substantive change from 
OSHA's criteria.
---------------------------------------------------------------------------

    \9\ See earlier discussion concerning the definitions of 
``medical treatment'' and ``first aid'' at section ``III.J.3.'' of 
this preamble.
---------------------------------------------------------------------------

Proposal
    The definition of ``occupational illness'' was revised to make it 
clear that only certain occupational illnesses of a person classified 
under Chapter 2 of the Guide as a Worker on Duty-Employee are to be 
reported. By contrast, under the 1997 definition of ``occupational 
illness,'' other categories of persons, such as Worker on Duty-
Contractor, were included in the definition, but illnesses to those 
persons were not reportable because Sec.  225.19(d)(4) limited the 
reportability of occupational illnesses to those of ``a railroad 
employee.''
Comments and Final Rule/Decision
    No specific comments were received on this definition. The 
definition has been adopted as proposed.
Proposal
    ``Occupational musculoskeletal disorder'' was defined essentially 
as it was set forth by OSHA in January 2001. See 29 CFR 1904.12 as 
published in 66 FR 6129. One of the most common forms of occupational 
musculoskeletal disorder is Carpal Tunnel Syndrome and other repetitive 
motion disorders. Under Sec.  1904.12 of its January 19, 2001, final 
rule, OSHA defined musculoskeletal disorders (MSDs) as:

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

66 FR at 6129. See also 66 FR at 52034. However, as noted in the 
overview in section ``I.'' of this preamble, OSHA delayed the effective 
date of this provision from January 1, 2002, to January 1, 2003, and 
proposed delaying the effective date until January 1, 2004, ``to give 
[OSHA] the time necessary to resolve whether and how MSDs should be 
defined for recordkeeping purposes.'' See 67 FR 44125. After the 
publication of this NPRM, OSHA adopted this proposed delay in its 
December 17, 2002 final rule. See 67 FR 77165.
    As the issue of OSHA's proposed delay of this provision was not 
before the Working Group when consensus was reached, FRA sought comment 
on whether or not FRA should still adopt the above definition of MSDs 
if OSHA's proposed January 1, 2004 delay took effect. FRA noted that if 
the provision were adopted as approved by the Working Group, FRA would 
be adopting

[[Page 10130]]

the definition in advance of OSHA's defining the term, a result that 
may not have been contemplated by the Working Group when it agreed to 
follow OSHA on this issue prior to issuance of the proposed delay. See 
discussion concerning reporting criteria for MSDs at section 
``III.D.1.'' of the preamble, above. Even if OSHA chose not to delay 
the effective date of this provision, FRA sought comment on whether or 
not FRA should even adopt OSHA's definition for calendar year 2003, 
since it stated that there were no special criteria beyond the general 
recording criteria for determining which MSDs to record and because 
OSHA's definition appeared to be used primarily as guidance for when to 
check the MSD column on the 300 Log. See 66 FR 6129-6130. It was noted 
that choosing to exclude this definition from FRA's final rule would 
not have affected an employer's obligation to report work-related 
injuries and illnesses involving muscles, nerves, tendons, ligaments, 
joints, cartilage and spinal discs in accordance with the requirements 
applicable to any injury or illness. FRA also sought comment on whether 
or not this definition should ``float'' with OSHA's. See discussion of 
``float'' vs. ``fixed'' at section ``III.D.1.'' of the preamble, above.
Comments
    Although no specific comments were received regarding the adoption 
of a definition of an MSD, FRA raised the issue at the post-NPRM 
Working Group meeting. FRA pointed out that there were no special 
reporting criteria for MSDs and that there may be more problems in 
trying to delete the definition than to leave it in. Because MSDs must 
be independently reportable, there seemed to be little or no effect on 
the regulated community by retaining the proposed definition. AAR 
indicated that it was inclined to leave the definition in, but might 
reconsider the issue and provide us with a position after the meeting. 
However, no further comments were received.
Final Rule/Decision
    For the reasons stated above, FRA has adopted the MSD definition as 
proposed. See also the discussion of MSDs in section ``III.D.1.'' of 
this preamble, and the discussion of deleting the exclusion of MSDs 
from the definition of ``privacy concern case'' at section ``III.G.1.'' 
of this preamble. Because FRA has adopted a requirement beyond what 
OSHA requires, this difference will be addressed in an MOU with OSHA, 
if necessary.
Proposal
    ``Occupational tuberculosis'' was defined in general conformity 
with OSHA's recording criteria under 29 CFR 1904.11 for work-related 
tuberculosis cases. The word ``occupational'' was included in the term 
because the term is intended to cover only the occupational illness; it 
would be confusing to define simply ``tuberculosis'' when the 
unmodified term would seem to call for a medical definition of 
tuberculosis in general.
Comments and Final Rule/Decision
    No specific comments were received on this definition. For the 
reasons stated above, the definition has been adopted as proposed.
Proposal
    ``Significant change in the number of reportable days away from 
work'' was defined as a 10-percent or greater change in the number of 
days away from work that the railroad would have to report. FRA decided 
on 10 percent as the threshold so that railroads would not have to 
submit amended reports for de minimis changes in data. For example, if 
a railroad estimated that an employee would be away from work for 30 
days and reported the 30-day estimate to FRA, but the employee was 
actually away from work for 32 days, the railroad would not have to 
amend its accident report to reflect this change. Moreover, FRA uses a 
10-percent threshold for amending rail equipment accident reports. 
Specifically, if a railroad estimates the damage from a rail equipment 
accident to be $7,000, a railroad need not amend that report unless the 
actual damage exceeds $7,700. If on the other hand, the actual damage 
is less than the reporting threshold, but less than 10-percent 
difference from the estimate, the railroad would be allowed to amend 
the report to indicate that the incident was not a reportable accident. 
For example, in the scenario above, if the actual damage was $6,400 
(less than 10-percent difference from the $7,000 estimate), the 
railroad would nevertheless be permitted to withdraw its report of that 
accident. While the 10-percent threshold was included in Chapter 6 of 
the 1997 Guide, FRA proposed to create a definition in the regulatory 
text since the General Accounting Office recommended that FRA define 
this term. For clarification of the terms ``significant illness'' and 
``significant injury,'' see discussion in section ``III.D.1.'' of the 
preamble, above.
Comments and Final Rule/Decision
    No specific comments were received on this definition, however in 
its comments with respect to covered data cases, AAR sought 
clarification as to whether the same principles that applied to 
counting days away from work would apply to counting days of restricted 
work. At the post-NPRM Working Group meeting, FRA explained that the 
same principles would apply and agreed to edit the Guide to clarify 
that these cases are to be handled in the same manner. Upon further 
review of the Guide and the rule text definitions, FRA found that the 
rule text definition concerning a ``significant change in the number of 
days away from work'' did not express FRA's policy that the 10-percent 
threshold also applies to days of restricted work activity. Given that 
this policy was set forth in the 1997 Guide and was re-approved by the 
Working Group and the full RSAC for the 2003 Guide, FRA concluded that 
the definition should be amended to clarify that the same 10-percent 
threshold policy that applies to amending reports with respect to days 
away from work also applies with respect to days of restricted work 
activity.
    Similarly, as noted in the preambles of the NPRM and this final 
rule, FRA uses a 10-percent threshold for amending rail equipment 
accident reports. Both the 1997 Guide and the 2003 Guide explain a 
railroad's duty to amend its rail equipment accident reports when an 
estimated value of the damage costs is significantly in error. A 
significant difference is defined as a 10-percent variance. Because FRA 
and the Working Group agreed that the Guide's explanation of 
``significant change in the number of reportable days away from work'' 
should be included in the rule text as a definition, FRA concluded that 
it would be equally appropriate to include the Guide's explanation 
concerning a significant change for purposes of amending rail equipment 
accident reports. Accordingly, FRA has added a definition of 
``significant change in the damage costs for reportable rail equipment 
accidents/incidents'' that conforms to FRA's previous policy on this 
matter.

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

Proposal
    Under the 1997 rule, Sec.  225.9 required a railroad to report 
immediately by telephone any accident/incident arising from the 
operation of the railroad that resulted in the death of a railroad 
employee or railroad passenger or the

[[Page 10131]]

death or injury of five or more persons. FRA proposed an amendment to 
this section, as recommended by the Working Group, to add new 
circumstances under which a railroad is to telephonically report and to 
clarify existing procedures for telephonic reporting of the expanded 
list of events.
    Proposed subsection (a) listed the events that a railroad would be 
required to report telephonically. In proposed subsection (a)(1), 
``Certain deaths or injuries,'' FRA proposed that each railroad must 
report immediately, whenever it learns of the occurrence of an 
accident/incident that arose from the operation of the railroad, or an 
event or exposure that may have arisen from the operation of the 
railroad, that has certain specified consequences. FRA proposed to use 
the phrase ``may have arisen'' in the proposed regulatory text, instead 
of keeping the current language ``arising from the operation of a 
railroad,'' because a railroad may not learn for some time that a 
particular event in fact arose from the operation of the railroad. By 
stating that a railroad must report an event that ``may'' have arisen 
from the operation of the railroad, FRA is assured to capture a broader 
group of cases. For example, if a railroad employee dies of a heart 
attack on the railroad's property, the railroad may not know for weeks, 
following a coroner's report, what the cause of death was and whether 
the death was work-related. This case might not get immediately 
reported because the railroad did not immediately learn that the death 
arose out of the operation of the railroad. Under the proposed change, 
if the death ``may'' have arisen out of the operation of the railroad, 
the case must be immediately reported, permitting FRA to commence its 
investigation in a timely manner. Even when death is ultimately 
determined to be caused by a coronary event, for instance, it is 
appropriate to inquire whether unusual workplace stressors (e.g., 
extreme heat, excessive physical activity without relief) may have 
played a role in causing the fatality. In addition, under subsection 
(a)(1), FRA has added the death of an employee of a contractor to a 
railroad performing work for the railroad on property owned, leased, or 
maintained by the contracting railroad as a new category requiring 
telephonic reporting.
    In proposed subsection (a)(2), FRA captures certain train accidents 
or train incidents even if death or injury does not necessarily occur 
as a result of the accident or incident. Under the 1997 rule, FRA did 
not require telephonic reporting of certain train accidents or train 
incidents per se, but required that they be reported only if they 
resulted in death of a rail passenger or employee, or death or injury 
of five or more persons. Accordingly, FRA proposed that railroads 
telephonically report immediately, whenever it learns of the occurrence 
of any of the following events:

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

    In proposed subsection (a)(3), FRA requires telephonic reporting of 
incidents in which a reportable derailment or collision occurs on, or 
fouls, a line used for scheduled passenger service. This final 
provision permits more timely initiation of investigation in cases 
where the underlying hazards involved could threaten the safety of 
passenger operations. For clarification of other aspects of this 
proposed section, see discussion at section ``III.C.'' of this 
preamble, above.
Comments and Final Rule/Decision
    No specific comments were received on this issue. For the reasons 
stated above, the amendments have been adopted as proposed.

Section 225.19 Primary Groups of Accidents/Incidents

Proposal
    FRA proposed to amend subsection (d), ``Group III, ``Death, injury, 
occupational illness.'' See prior discussion in section-by-section 
analysis of the definition of ``accident/incident'' and ``event or 
exposure arising from the operation of a railroad'' in Sec.  225.5.
Comments and Final Rule/Decision
    No specific comments were received on this provision. The 
amendments have been adopted as proposed.

Section 225.23 Joint Operations

Proposal
    FRA proposed to make technical amendments to Sec.  225.23(a) simply 
to bring it into conformity with the rest of the proposed regulatory 
text.
Comments and Final Rule/Decision
    No specific comments were received on this provision. The 
amendments have been adopted as proposed.

Section 225.25 Recordkeeping

Proposal
    FRA proposed to amend this section by revising subsection 
225.25(h)(15) to apply to ``privacy concern cases,'' which would be 
defined in proposed Sec.  225.5. Accordingly, under the proposed 
subsection, a railroad is permitted not to post information on an 
occupational injury or illness that is a ``privacy concern case.''
Comments and Final Rule/Decision
    No specific comments were received on this provision. The 
amendments have been adopted as proposed.

Section 225.39 FRA Policy Statement on Covered Data

Proposal
    In connection with the requirements for reporting employee illness/
injury cases exclusively resulting from a written recommendation of a 
physician or other licensed health care provider (POLHCP) for time off 
when the employee instead returned to work, or a written recommendation 
for a work restriction when the employee instead worked unrestricted, 
and in connection with the provision for special reporting of cases 
exclusively resulting from the direction of a POLHCP in writing to take 
a non-prescription medication at prescription dose, FRA proposed that 
these cases not be included in FRA's regular statistical summaries. The 
data are requested by DOL to ensure comparability of employment-related 
safety data across industries. The data may also be utilized for other 
purposes as the need arises, but they would not be reported in FRA's 
periodic statistical summaries for the railroad industry.
Comments
    AAR commented that the Guide needed to be clearer in its discussion 
of covered data so as to include: a definition of that term; 
instructions on how to report such cases; and clarification of the 
treatment of these cases in the questions-and-answers section of the 
Guide and in the instructions for Form FRA F 6180.55a. In its comments 
on the NPRM, verbal comments at the post-NPRM Working Group Meeting, 
and post-meeting letter and e-mail, AAR expressed a concern a concern 
regarding the sharp increase in the number of reportables that would 
result by adopting the proposed changes. In order to soften the impact 
of

[[Page 10132]]

these changes on the railroad industry data, AAR requested that the 
covered data criteria be extended to three other areas of reporting: 
one-time dosages of prescription medication, oxygen therapy, and 
occupational hearing loss.
Final Rule/Decision
    FRA determined that the definition of ``covered data'' in Sec.  
225.39 and the corresponding discussion of covered data in the Guide 
should be amended to address AAR's concerns regarding clarity and to 
reflect the addition of one-time dosages of topical prescription 
medication. For a more detailed discussion of FRA's policy statement on 
covered data, see section ``III.H.'' of this preamble.

Section 240.117 Criteria for Consideration of Operating Rules 
Compliance Data

Proposal
    FRA proposed a minor change to its locomotive engineer 
qualifications regulations, which uses a term from part 225. In 
particular, Sec.  240.117(e)(2) of the locomotive engineer 
qualifications regulations defines one of the types of violations of 
railroad rules and practices for the safe operation of trains that is a 
basis for revoking a locomotive engineer's certification pursuant to 
part 240; specifically, failures to adhere to the conditional clause of 
a restricted speed rule ``which cause reportable accidents or incidents 
under part 225 of this chapter. * * *'' This amendment creates an 
exception for accidents or incidents that are classified as ``covered 
data'' under part 225. The reason that ``covered data'' were excluded 
as a partial basis for decertification under Sec.  240.117(e)(2) is 
that the injuries and illnesses associated with ``covered data'' cases 
are comparatively less severe than other types of injuries and 
illnesses, and, as such, when coupled with a violation of restricted 
speed, should not trigger revocation under part 240.
Comments and Final Rule/Decision
    No specific comments were received on this section. The exception 
has been adopted as proposed. Note, however, that comments were 
received on the definition of ``covered data'' and that the category of 
covered data has been expanded to include another subset of cases. See 
Sec.  225.39 and above discussion of covered data at section ``III.H.'' 
of this preamble.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). FRA has prepared and placed in the docket a 
regulatory impact analysis addressing the economic impact of this rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may 
also be obtained by submitting a written request to the FRA Docket 
Clerk at Office of Chief Counsel, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590. Access to the docket may 
also be obtained electronically through the Web site for the DOT Docket 
Management System at http://dms.dot.gov.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of costs and benefits expected from the 
adoption of this final rule. The analysis also contains qualitative 
discussions of benefits that were not quantified. Over a 20-year 
period, the Present Value (PV) of the estimated costs is $476,000, and 
the PV of the estimated benefits is $612,000.
    The major costs anticipated from adopting this final rule include 
those incurred in complying with additional OSHA-conformity reporting 
requirements, such as the covered data cases. Additional reporting 
burdens on railroads will also occur from an increase in telephonic 
reporting, an increase in reporting of occupational hearing loss cases, 
and from the recording of claimed occupational illnesses cases. 
Finally, there are costs associated with the familiarization of the 
railroad reporting officers with the revised Guide, and for revisions 
to FRA and railroad electronic reporting systems and databases.
    The major benefits anticipated from implementing this final rule 
include savings from a simplification in the reporting of occupational 
injuries due to a new definition of ``first aid.'' This benefit will 
produce a savings in the decision making process for both reportable 
injuries and accountable injuries. Additional savings will also occur 
from a reduction in the average burden time to complete a Rail 
Equipment Accident/Incident Report. This savings is largely a product 
of a revision to the train accident cause codes. The revised casualty 
circumstance codes will produce a savings from a reduction in the use 
of the narrative block on the railroad injury and illness reports. 
Finally, railroads will receive a savings from a simplification in the 
counting of the number of days away from work or of restricted work 
activity. This includes a savings due to a reduction from 365 to 180 
days for the maximum number of days that the railroads would have to 
track and report injuries and illnesses. FRA also anticipates that 
there will be qualitative benefits from this rulemaking from better 
data on railroad reports, and the increased utility that the additional 
data codes would provide to future analysis.

B. Regulatory Flexibility Act of 1980 and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires 
a Federal agency to review its proposed and final rules in order to 
assess their impact on small entities (small businesses, small 
organizations, and local governments). If the agency determines that 
its final rule would have a significant economic impact on a 
substantial number of small entities, then the agency must prepare an 
Regulatory Flexibility Analysis (RFA). If the agency determines the 
opposite, then the agency must certify that determination; an RFA may 
also provide the basis for the agency's determination that the final 
rule would not have a significant economic impact on a substantial 
number of small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The Small Business Administration 
(SBA) stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity'' is 1,500 employees for ``Line-Haul Operating'' 
Railroads, and 500 employees for ``Switching and Terminal 
Establishments.'' SBA's ``size standards'' may be altered by Federal 
agencies on consultation with SBA and in conjunction with public 
comment. Pursuant to section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published 
an interim policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. 62 FR 43024, Aug. 11, 1997. Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
threshold for a Class III railroad carrier, which is

[[Page 10133]]

adjusted by applying the railroad revenue deflator adjustment. See 49 
CFR part 1201. The same dollar limit on revenues is established to 
determine whether a railroad shipper or contractor is a small entity. 
FRA proposed to use this alternative definition of ``small entity'' for 
this rulemaking, and requested comments on its use. No comments were 
received related to this proposal.
    Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' requires in part that a Federal agency notify the 
Chief Counsel for Advocacy of the SBA of any of its draft rules that 
would have a significant economic impact on a substantial number of 
small entities. This Executive Order also requires Federal agencies to 
consider any comments provided by the SBA, and to include in the 
preamble to the final rule the agency's response to any written 
comments by the SBA unless the agency head certifies that including 
such material would not serve the public interest. 67 FR 53461 (Aug. 
16, 2002). Since this final rule does not have a significant economic 
impact on a substantial number of small entities, FRA has not notified 
the Office of Advocacy at SBA, and therefore, has not received any 
comments from Advocacy.
    In accordance with the Regulatory Flexibility Act of 1980, FRA has 
prepared and placed in the docket an RFA, which assesses the small 
entity impact of this final rule. Document inspection and copying 
facilities are available at 1120 Vermont Avenue, NW., 7th Floor, 
Washington, DC 20590. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590. Access to the docket may also be obtained electronically 
through the Web site for the DOT Docket Management System at http://dms.dot.gov.
    As stated in the RFA, FRA has determined that there are over 650 
small railroads that could potentially be affected by this rulemaking; 
however, the frequency of accidents/incidents, and therefore reporting 
burden, is generally proportional to the size of the railroad. A 
railroad that employs thousands of employees and operates trains 
millions of miles is exposed to greater risks than one whose operation 
is substantially smaller, all other things being equal. For example, in 
1998, only 327 railroads reported one or more casualties.
    The economic impacts anticipated from final rule are primarily a 
result of an increase in casualty reporting due to the reporting of 
some casualties, due to OSHA recordkeeping requirements which this 
rulemaking is adopting into FRA reporting requirements. In addition, 
the railroad industry will incur small burdens for an increase in 
telephonic reporting of some accident/incidents, and for modifications 
made to computer software and databases. However, FRA does not 
anticipate that any of these burdens will be imposed on small entities 
due to the decreased likelihood of a casualty occurring on a small 
railroad. The computer-based burdens are not expected to impact small 
entities either since most small railroads report using personal 
computer (PC)-based software provided by FRA. It is estimated by FRA 
that small entities will incur five percent or less of the total costs 
for this final rule.
    It is important to note that this final rule will also reduce 
recordkeeping burdens by simplifying the method used to count employee 
absences and work restrictions, and by reducing the requirement to keep 
track of lengthy employee absences. The final rule also simplifies 
reporting requirements with clarifying definitions for things such as 
``medical treatment'' and ``first aid.'' Train accident cause codes and 
injury occurrence codes would be added, so that accident and injury 
data would be more precise and the need for some narratives will be 
eliminated.
    This final rule does not provide alternative treatment for small 
entities in the regulation or reporting requirements. However, small 
railroads that report using PC-based software will not be burdened with 
any costs for modifying or changing the software, since FRA provides 
this software free to all railroads that utilize it. It is important to 
note that just by the fact that small railroads report fewer accidents/
incidents and casualties, they are less likely to be burdened by the 
final rule.
    The RFA concludes that this final rule will not have a significant 
economic impact on a substantial number of small entities; therefore, 
FRA certifies that this final rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
For the same reason, consistent with Executive Order 13272, the draft 
rule has not been submitted to the SBA. In order to determine the 
significance of the economic impact for this RFA, FRA invited comments 
from all interested parties concerning the potential economic impact on 
small entities in the notice of proposed rulemaking. The Agency 
considered the lack of comments and data it received in making this 
decision and certification.

C. Paperwork Reduction Act of 1995

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

----------------------------------------------------------------------------------------------------------------
                                                                                              Total      Total
                                     Respondent         Total annual     Average time  per    annual     annual
      CFR Section--49 CFR             universe            responses           response        burden     burden
                                                                                              hours       cost
----------------------------------------------------------------------------------------------------------------
225.9--Telephone Reports--       685 railroads.....  500 reports.......  15 minutes.......        125     $5,250
 Certain Accidents/Incidents
 and Other Events.
225.11--Reporting of Rail        685 railroads.....  3,000 forms.......  2 hours..........      6,000    252,000
 Equipment Accidents/Incidents
 (Form FRA F 6180.54).
225.12(a)--Rail Equipment        685 railroads.....  1,000 forms.......  15 minutes.......        250     10,500
 Accident/Incident Reports--
 Human Factor (Form FRA F
 6180.81).
225.12(b)--Rail Equipment        685 railroads.....  4,100 notices/      10 minutes and 3         372     15,624
 Accident/Incident Reports--                          copies.             minutes.
 Human Factors (Part 1, Form
 FRA F 6180.78).
225.12(c)--Rail Equipment        685 railroads.....  100 requests......  20 minutes.......         33      1,386
 Accident/Incident Reports--
 Human Factor--Joint Operations.
225.12(d)--Rail Equipment        685 railroads.....  20 attachments +    15 minutes.......         10        420
 Accident/Incident Reports--                          20 notices.
 Human Factor--Late
 Identification.
225.12(e)--Rail Equipment        685 railroads.....  75 statements.....  1.5 hours........        113      2,938
 Accident/Incident Reports--
 Human Factor--Employee
 Supplement (Part II, Form FRA
 F 6180.78).

[[Page 10134]]

 
225.12(f)--Rail Equipment        Railroad Employees  10 letters........  2 hours..........         20        520
 Accident/Incident Reports--
 Human Factor--Employee
 Confidential Letter.
225.13--Amended Rail Equipment   685 railroads.....  10 amended          1 hour + 3                11        462
 Accident\Incident Reports.                           reports, 20         minutes.
                                                      copies.
225.17--Doubtful Cases; Alcohol/ 685 railroads.....  80 reports........  30 minutes.......         40      1,680
 Drug Involvement.
    --Appended Reports.........  685 railroads.....  5 reports.........  30 minutes.......          3        126
225.19--Highway--Rail Grade      685 railroads.....  3,400 forms.......  2 hours..........      6,800    285,600
 Crossing Accident\Incident
 Reports (Form FRA F 6180.57).
    --Death, Injury, or          685 railroads.....  13,800 forms......  20 minutes.......      4,400    184,800
     Occupational Illness (Form
     FRA F 6180.55a).
225.21 Forms:
    --Form FRA F 6180.55--       685 railroads.....  8,220 forms.......  10 minutes.......      1,370     57,540
     Railroad Injury\Illness
     Summary.
    --Form FRA F 6180.56--       685 railroads.....  685 forms.........  15 minutes.......        171      7,182
     Annual Report of Employee
     Hours and Casualties by
     State.
    --Form FRA F 6180.98--RR     685 railroads.....  18,000 forms......  1 hour...........     18,000    756,000
     Employee Injury and/or
     Illness Record.
    --Form FRA F 6180.98--       685 railroads.....  540 copies........  2 minutes........         18        756
     Copies.
    --Form FRA F 6180.97--       685 railroads.....  13,000 forms......  30 minutes.......      6,500    273,000
     Initial Rail Equipment
     Accident/Incident Record.
    --Form FRA F 6180.107--      685 railroads.....  300 forms.........  15 minutes.......         75      3,150
     Alternate Record For
     Illnesses Claimed to Be
     Work Related.
225.25--Posting of Monthly       685 railroads.....  8,220 lists.......  16 minutes.......      2,192     92,064
 Summary.
225.27--Retention of Records...  685 railroads.....  1,900 records.....  2 minutes........         63      2,646
225.33--Internal Control Plans-- 685 railroads.....  25 amendments.....  14 hours.........        350     14,700
 Amended.
225.35--Access to Records and    15 railroads......  400 lists.........  20 minutes.......        133      5,586
 Reports--Lists.
    --Subsequent Years.........  4 railroads.......  16 lists..........  20 minutes.......          5        210
225.37--Magnetic Media           8 railroads.......  96 transfers......  10 minutes.......         16        672
 Transfers.
    --Batch Control (Form FRA F  685 railroads.....  200 forms.........  3 minutes........         10        420
     6180.99).
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, 725 17th St., NW., Washington, DC 20503. OMB 
is required to make a decision concerning the information collection 
requirements contained in this final rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

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

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

49 CFR 225.1. FRA did not propose to change this provision that a State 
may require a railroad to submit to the State copies of reports 
required by part 225 regarding accidents in the State.
    Additionally, section 20902 of title 49 of the United States Code, 
which authorizes the Secretary of Transportation to investigate certain 
accidents and incidents, provides: ``[i]f the accident or incident is 
investigated by a commission of the State in which it occurred, the 
Secretary, if convenient, shall carry out the investigation at the same 
time as, and in coordination with, the commission's investigation.'' 
This section contemplates that States have an interest in carrying out 
simultaneous investigations in coordination with the Secretary, where 
convenient. It would be consistent with this interest to permit States 
to adopt their own accident notification requirements so as to allow a 
prompt, and perhaps coordinated, investigation. Accordingly, FRA 
believes that it has satisfied the Executive Order.

[[Page 10135]]

E. Environmental Impact

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

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

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

F. Unfunded Mandates Reform Act of 1995

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

G. Energy Impact

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

List of Subjects

49 CFR Part 219

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

49 CFR Part 225

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

49 CFR Part 240

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

The Final Rule

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

PART 219--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20140, 21301, 21304, 21311; 
28 U.S.C. 2461, note; and 49 CFR 1.49(m).


    2. Section 219.5 is amended by adding a definition of Accident or 
incident reportable under part 225 and revising the definition of 
Reportable injury to read as follows:


Sec.  219.5  Definitions.

* * * * *
    Accident or incident reportable under part 225 does not include a 
case that is classified as ``covered data'' under Sec.  225.5 of this 
chapter (i.e., employee injury/illness cases reportable exclusively 
because a physician or other licensed health care professional either 
made a one-time topical application of a prescription-strength 
medication to the employee's injury or made a written recommendation 
that the employee: Take one or more days away from work when the 
employee instead reports to work (or would have reported had he or she 
been scheduled) and takes no days away from work in connection with the 
injury or illness; work restricted duty for one or more days when the 
employee instead works unrestricted (or would have worked unrestricted 
had he or she been scheduled) and takes no other days of restricted 
work activity in connection with the injury or illness; or take over-
the-counter medication at a dosage equal to or greater than the minimum 
prescription strength, whether or not the employee actually takes the 
medication).
* * * * *
    Reportable injury means an injury reportable under part 225 of this 
chapter except for an injury that is classified as ``covered data'' 
under Sec.  225.5 of this chapter (i.e., employee injury/illness cases 
reportable exclusively because a physician or other licensed health 
care professional either made a one-time topical application of a 
prescription-strength medication to the employee's injury or made a 
written recommendation that the employee: Take one or more days away 
from work when the employee instead reports to work (or would have 
reported had he or she been scheduled) and takes no days away from work 
in connection with the injury or illness; work restricted duty for one 
or more days when the employee instead works unrestricted (or would 
have worked unrestricted had he or she been scheduled) and takes no 
other days of restricted work activity in

[[Page 10136]]

connection with the injury or illness; or take over-the-counter 
medication at a dosage equal to or greater than the minimum 
prescription strength, whether or not the employee actually takes the 
medication.
* * * * *

PART 225--[AMENDED]

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

    Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 
21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.


    4. Section 225.5 is amended as follows:
    a. By revising paragraph (3) of the definition of the term 
Accident/incident;
    b. By revising the definitions of the terms Accountable injury or 
illness, Day away from work, Day of restricted work activity, Medical 
treatment, and Occupational illness;
    c. By removing the term Arising from the operation of a railroad 
and its definition; and
    d. By adding definitions of the terms Covered data, Event or 
exposure arising from the operation of a railroad, General reporting 
criteria, Medical removal, Musculoskeletal disorder, Needlestick or 
sharps injury, New case, Occupational hearing loss, Occupational 
tuberculosis, Privacy concern case, Significant change in the damage 
costs for reportable rail equipment accidents/incidents, Significant 
change in the number of reportable days away from work or days 
restricted, Significant illness, and Significant injury to read as 
follows:


Sec.  225.5  Definitions.

* * * * *
    Accident/incident means:
* * * * *
    (3) Any event or exposure arising from the operation of a railroad, 
if the event or exposure is a discernable cause of one or more of the 
following outcomes, and this outcome is a new case or a significant 
aggravation of a pre-existing injury or illness:
    (i) Death to any person;
    (ii) Injury to any person that results in medical treatment;
    (iii) Injury to a railroad employee that results in:
    (A) A day away from work;
    (B) Restricted work activity or job transfer; or
    (C) Loss of consciousness;
    (iv) Occupational illness of a railroad employee that results in 
any of the following:
    (A) A day away from work;
    (B) Restricted work activity or job transfer;
    (C) Loss of consciousness; or
    (D) Medical treatment;
    (v) Significant injury to or significant illness of a railroad 
employee diagnosed by a physician or other licensed health care 
professional even if it does not result in death, a day away from work, 
restricted work activity or job transfer, medical treatment, or loss of 
consciousness;
    (vi) Illness or injury that meets the application of any of the 
following specific case criteria:
    (A) Needlestick or sharps injury to a railroad employee;
    (B) Medical removal of a railroad employee;
    (C) Occupational hearing loss of a railroad employee;
    (D) Occupational tuberculosis of a railroad employee; or
    (E) Musculoskeletal disorder of a railroad employee if this 
disorder is independently reportable under one or more of the general 
reporting criteria.
    Accountable injury or illness means any condition, not otherwise 
reportable, of a railroad employee that is discernably caused by an 
event, exposure, or activity in the work environment which condition 
causes or requires the railroad employee to be examined or treated by a 
qualified health care professional.
* * * * *
    Covered data means information that must be reported to FRA under 
this part concerning a railroad employee injury or illness case that is 
reportable exclusively because a physician or other licensed health 
care professional--
    (1) Recommended in writing that--
    (i) The employee take one or more days away from work when the 
employee instead reports to work (or would have reported had he or she 
been scheduled) and takes no days away from work in connection with the 
injury or illness,
    (ii) The employee work restricted duty for one or more days when 
the employee instead works unrestricted (or would have worked 
unrestricted had he or she been scheduled) and takes no days of 
restricted work activity in connection with the injury or illness, or
    (iii) The employee take over-the-counter medication at a dosage 
equal to or greater than the minimum prescription strength, whether or 
not the employee actually takes the medication; or
    (2) Made a one-time topical application of a prescription-strength 
medication to the employee's injury.
    Day away from work means a day away from work as described in 
paragraph (1) of this definition or, if paragraph (1) does not apply, a 
day away from work solely for reporting purposes as described in 
paragraph (2) of this definition. For purposes of this definition, the 
count of days includes all calendar days, regardless of whether the 
employee would normally be scheduled to work on those days (e.g., 
weekend days, holidays, rest days, and vacation days), and begins on 
the first calendar day after the railroad employee has been examined by 
a physician or other licensed health care professional (PLHCP) and 
diagnosed with a work-related injury or illness. In particular, the 
term means--
    (1) Each calendar day that the employee, for reasons associated 
with his or her condition, does not report to work (or would have been 
unable to report had he or she been scheduled) if not reporting results 
from:
    (i) A PLHCP's written recommendation not to work, or
    (ii) A railroad's instructions not to work, if the injury or 
illness is otherwise reportable; or
    (2) A minimum of one calendar day if a PLHCP, for reasons 
associated with the employee's condition, recommends in writing that 
the employee take one or more days away from work, but the employee 
instead reports to work (or would have reported had he or she been 
scheduled). This paragraph is intended to take into account ``covered 
data'' cases and also those non-covered data cases that are 
independently reportable for some other reason (e.g., ``medical 
treatment'' or ``day of restricted work activity''). The requirement to 
report ``a minimum of one calendar day'' is intended to give a railroad 
the discretion to report up to the total number of days recommended by 
the PLHCP.
    Day of restricted work activity means a day of restricted work 
activity as described in paragraph (1) of this definition or, if 
paragraph (1) does not apply, a day of restricted work activity solely 
for reporting purposes as described in paragraph (2) of this 
definition; in both cases, the work restriction must affect one or more 
of the employee's routine job functions (i.e., those work activities 
regularly performed at least once per week) or prevent the employee 
from working the full workday that he or she would otherwise have 
worked. For purposes of this definition, the count of days includes all 
calendar days, regardless of whether the employee would normally be 
scheduled to work on those days (e.g., weekend days, holidays, rest 
days, and vacation days), and begins on the first calendar day after 
the railroad employee has been examined by a

[[Page 10137]]

physician or other licensed health care professional (PLHCP) and 
diagnosed with a work-related injury or illness. In particular, the 
term means--
    (1) Each calendar day that the employee, for reasons associated 
with his or her condition, works restricted duty (or would have worked 
restricted duty had he or she been scheduled) if the restriction 
results from:
    (i) A PLHCP's written recommendation to work restricted duty, or
    (ii) A railroad's instructions to work restricted duty, if the 
injury or illness is otherwise reportable; or
    (2) A minimum of one calendar day if a PLHCP, for reasons 
associated with the employee's condition, recommends in writing that 
the employee work restricted duty for one or more days, but the 
employee instead works unrestricted (or would have worked unrestricted 
had he or she been scheduled). This paragraph is intended to take into 
account ``covered data'' cases and also those non-covered data cases 
that are independently reportable for some other reason (e.g., 
``medical treatment'' or ``day of restricted work activity''). The 
requirement to report ``a minimum of one calendar day'' is intended to 
give a railroad the discretion to report up to the total number of days 
recommended by the PLHCP.
* * * * *
    Event or exposure arising from the operation of a railroad 
includes--
    (1) With respect to a person who is on property owned, leased, or 
maintained by the railroad, an activity of the railroad that is related 
to the performance of its rail transportation business or an exposure 
related to the activity;
    (2) With respect to an employee of the railroad (whether on or off 
property owned, leased, or maintained by the railroad), an activity of 
the railroad that is related to the performance of its rail 
transportation business or an exposure related to the activity; and
    (3) With respect to a person who is not an employee of the railroad 
and not on property owned, leased, or maintained by the railroad--an 
event or exposure directly resulting from one or more of the following 
railroad operations:
    (i) A train accident, a train incident, or a highway-rail crossing 
accident or incident involving the railroad; or
    (ii) A release of a hazardous material from a railcar in the 
possession of the railroad or of another dangerous commodity that is 
related to the performance of the railroad's rail transportation 
business.
* * * * *
    General reporting criteria means the criteria listed in Sec.  
225.19(d)(1), (2), (3), (4), and (5).
* * * * *
    Medical removal means medical removal under the medical 
surveillance requirements of the Occupational Safety and Health 
Administration standard in 29 CFR part 1910 in effect during calendar 
year 2002, even if the case does not meet one of the general reporting 
criteria.
    Medical treatment means any medical care or treatment beyond 
``first aid'' regardless of who provides such treatment. Medical 
treatment does not include diagnostic procedures, such as X-rays and 
drawing blood samples. Medical treatment also does not include 
counseling.
    Musculoskeletal disorder (MSD) means a disorder of the muscles, 
nerves, tendons, ligaments, joints, cartilage, and spinal discs. The 
term does not include disorders caused by slips, trips, falls, motor 
vehicle accidents, or other similar accidents. Examples of MSDs 
include: Carpal tunnel syndrome, Rotator cuff syndrome, De Quervain's 
disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, 
Epicondylitis, Tendinitis, Raynaud's phenomenon, Carpet layers knee, 
Herniated spinal disc, and Low back pain.
    Needlestick or sharps injury means a cut, laceration, puncture, or 
scratch from a needle or other sharp object that involves contamination 
with another person's blood or other potentially infectious material, 
even if the case does not meet one of the general reporting criteria.
    New case means a case in which either the employee has not 
previously experienced a reported injury or illness of the same type 
that affects the same part of the body, or the employee previously 
experienced a reported injury or illness of the same type that affected 
the same part of the body but had recovered completely (all signs had 
disappeared) from the previous injury or illness and an event or 
exposure in the work environment caused the signs or symptoms to 
reappear.
* * * * *
    Occupational hearing loss means a diagnosis of occupational hearing 
loss by a physician or other licensed health care professional, where 
the employee's audiogram reveals a work-related Standard Threshold 
Shift (STS) (i.e., at least a 10-decibel change in hearing threshold, 
relative to the baseline audiogram for that employee) in hearing in one 
or both ears, and the employee's total hearing level is 25 decibels or 
more above audiometric zero (averaged at 2000, 3000, and 4000 Hz) in 
the same ear(s) as the STS.
    Occupational illness means any abnormal condition or disorder, as 
diagnosed by a physician or other licensed health care professional, of 
any person who falls under the definition for the classification of 
Worker on Duty--Employee, other than one resulting from injury, 
discernably caused by an environmental factor associated with the 
person's railroad employment, including, but not limited to, acute or 
chronic illnesses or diseases that may be caused by inhalation, 
absorption, ingestion, or direct contact.
    Occupational tuberculosis means the occupational exposure of an 
employee to anyone with a known case of active tuberculosis if the 
employee subsequently develops a tuberculosis infection, as evidenced 
by a positive skin test or diagnosis by a physician or other licensed 
health care professional, even if the case does not meet one of the 
general reporting criteria.
* * * * *
    Privacy concern case is any occupational injury or illness in the 
following list:
    (1) Any injury or illness to an intimate body part or the 
reproductive system;
    (2) An injury or illness resulting from a sexual assault;
    (3) Mental illnesses;
    (4) HIV infection, hepatitis, or tuberculosis;
    (5) Needlestick and sharps injuries; and
    (6) Other injuries or illnesses, if the employee independently and 
voluntarily requests in writing to the railroad reporting officer that 
his or her injury or illness not be posted.
* * * * *
    Significant change in the damage costs for reportable rail 
equipment accidents/incidents means at least a ten-percent variance 
between the damage amount reported to FRA and current cost figures.
    Significant change in the number of reportable days away from work 
or days restricted means at least a ten-percent variance in the number 
of actual reportable days away from work or days restricted compared to 
the number of days already reported.
    Significant illness means an illness involving cancer or a chronic 
irreversible disease such as byssinosis or silicosis, if the disease 
does not result in death, a day away from work, restricted work, job 
transfer, medical treatment, or loss of consciousness.
    Significant injury means an injury involving a fractured or cracked 
bone or a punctured eardrum, if the injury does

[[Page 10138]]

not result in death, a day away from work, restricted work, job 
transfer, medical treatment, or loss of consciousness.
* * * * *

    5. Section 225.9 is revised to read as follows:


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

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

    6. In section 225.19, paragraph (d) is revised to read as follows:


Sec.  225.19  Primary groups of accidents/incidents.

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

    7. In section 225.21, a new paragraph (j) is added to read as 
follows:


Sec.  225.21  Forms.

* * * * *
    (j) Form FRA 6180.107--Alternative Record for Illnesses Claimed to 
Be Work-Related. (1) Form FRA F 6180.107 shall be used by a railroad to 
record each illness claimed to be work-related that is reported to the 
railroad--
    (i) For which there is insufficient information to determine 
whether the illness is work-related;
    (ii) For which the railroad has made a preliminary determination 
that the illness is not work-related; or
    (iii) For which the railroad has made a final determination that 
the illness is not work-related.
    (2) For any case determined to be reportable, the designation 
``illness claimed to be work-related'' shall be removed, and the record 
shall be transferred to the reporting officer for retention and 
reporting in the normal manner.
    (3) In the event the narrative block (similar to Form FRA F 
6180.98, block

[[Page 10139]]

39) indicates that the case is not reportable, the explanation 
contained on that block shall record the reasons the railroad 
determined that the case is not reportable, making reference to the 
most authoritative information relied upon.
    (4) Although the Form FRA F 6180.107 may not include all supporting 
documentation, such as medical records, the Form FRA F 6180.107 shall 
note the name, title, and address of the custodian of those documents 
and where the supporting documents are located so that they are readily 
accessible to FRA upon request.

    8. In section 225.23, paragraph (a) is revised to read as follows:


Sec.  225.23  Joint operations.

    (a) Any reportable death, injury, or illness of an employee arising 
from an accident/incident involving joint operations must be reported 
on Form FRA F 6180.55a by the employing railroad.
* * * * *

    9. Section 225.25 is amended by revising paragraphs (b)(6), 
(b)(16), (b)(25)(v), (e)(8), (e)(24), (h)(15), and new paragraphs 
(b)(25)(xi), (b)(25)(xii) and (i) are added to read as follows:


Sec.  225.25  Recordkeeping.

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

    10. Section 225.33 is amended by adding new paragraph (a)(11) to 
read as follows:


Sec.  225.33  Internal Control Plans.

    (a) * * *
    (11) In the case of the Form FRA F 6180.107 or the alternate 
railroad-designed form, a statement that specifies the name, title, and 
address of the custodian of these records, all supporting 
documentation, such as medical records, and where the documents are 
located.
* * * * *

    11. Section 225.35 is amended by designating the first paragraph as 
paragraph (a), designating the second paragraph as paragraph (b), and 
adding after the fourth sentence of newly designated paragraph (b) the 
following two sentences:


Sec.  225.35  Access to records and reports.

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

    12. Section 225.39 is added to read as follows:


Sec.  225.39  FRA policy on covered data.

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

PART 240--[AMENDED]

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

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

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


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

* * * * *
    (e) * * *
    (2) Failure to adhere to limitations concerning train speed when 
the speed at which the train was operated exceeds the maximum 
authorized limit by at least 10 miles per hour. Where restricted speed 
is in effect, railroads shall consider only those violations of the 
conditional clause of restricted speed rules (i.e., the clause that 
requires stopping within one half of the locomotive engineer's range of 
vision), or the operational equivalent thereof, which cause reportable 
accidents or incidents under part 225 of this chapter, except for 
accidents and incidents that are classified as ``covered data'' under

[[Page 10140]]

Sec.  225.5 of this chapter (i.e., employee injury/illness cases 
reportable exclusively because a physician or other licensed health 
care professional either made a one-time topical application of a 
prescription-strength medication to the employee's injury or made a 
written recommendation that the employee: Take one or more days away 
from work when the employee instead reports to work (or would have 
reported had he or she been scheduled) and takes no days away from work 
in connection with the injury or illness; work restricted duty for one 
or more days when the employee instead works unrestricted (or would 
have worked unrestricted had he or she been scheduled) and takes no 
other days of restricted work activity in connection with the injury or 
illness; or take over-the-counter medication at a dosage equal to or 
greater than the minimum prescription strength, whether or not the 
employee actually takes the medication, as instances of failure to 
adhere to this section;
* * * * *

    Issued in Washington, DC, on February 19, 2003.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 03-4633 Filed 2-28-03; 8:45 am]
BILLING CODE 4910-06-P