94-31738. Railroad Accident Reporting  

  • [Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-31738]
    
    
    [[Page Unknown]]
    
    [Federal Register: December 27, 1994]
    
    
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    DEPARTMENT OF TRANSPORTATION
    
    Federal Railroad Administration
    
    49 CFR Part 225
    
    [FRA Docket No. RAR-4, Notice No. 9]
    RIN 2130-AA58
    
     
    
    Railroad Accident Reporting
    
    AGENCY: Federal Railroad Administration (FRA).
    
    ACTION: Public regulatory conference; date and location change, format 
    and extension of comment period.
    
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    SUMMARY: By notice published on November 18, 1994 (59 FR 59744), FRA 
    scheduled a public regulatory conference for January 9-13, 1995, at the 
    Executive Inn in Sacramento, California, to allow interested parties 
    the opportunity to further discuss issues related to its notice of 
    proposed rulemaking (NPRM) on railroad accident reporting. The location 
    for this public regulatory conference has been changed to Washington, 
    D.C. and the dates have been changed to Monday, January 30, 1995 
    through no later than Friday, February 3, 1995. FRA is also extending 
    the comment period on the accident reporting NPRM to March 10, 1995.
    
    DATES: (1) Written Comments: Written comments filed in response to the 
    NPRM must be received no later than March 10, 1995. Comments received 
    after that date will be considered to the extent practicable without 
    incurring additional expense or delay.
        (2) Public Regulatory Conference: A public regulatory conference to 
    discuss particular issues raised in the NPRM will be held January 30, 
    1995 through no later than February 3, 1995, in Washington, D.C.
    
    ADDRESSES: (1) Written Comments: Written comments should identify the 
    docket number and the notice number and must be submitted in triplicate 
    to the Docket Clerk, Office of Chief Counsel, Federal Railroad 
    Administration, 400 Seventh Street, S.W., Room 8201, Washington, D.C. 
    20590. Persons desiring to be notified that their written comments have 
    been received by FRA should submit a stamped, self-addressed postcard 
    with their comments. The Docket Clerk will indicate on the postcard the 
    date on which the comments were received and will return the card to 
    the addressee. Written comments will be available for examination, both 
    before and after the closing date for comments, during regular business 
    hours in room 8201 of the Nassif Building at the above address.
        (2) Public Regulatory Conference: The public regulatory conference 
    will be held at the following location and on the following dates.
        Location: Department of Transportation, Nassif Building, room 3328, 
    400 Seventh Street, S.W., Washington, D.C.
        Dates: January 30, 1995 through no later than February 3, 1995.
        Time: beginning at 9:00 a.m. each day.
        Persons desiring to attend the conference should notify the Docket 
    Clerk in writing at the above address or by telephone at (202) 366-2257 
    by close of business January 27, 1995.
    
    FOR FURTHER INFORMATION CONTACT: Marina C. Appleton, Trial Attorney, 
    Office of Chief Counsel, FRA, 400 Seventh Street, S.W., Washington, 
    D.C. 20590 (telephone 202-366-0628); or Robert Finkelstein, Chief, 
    Systems Support Division, Office of Safety Analysis, Office of Safety, 
    FRA, 400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-
    366-2760).
    
    SUPPLEMENTARY INFORMATION:
    
    (I) History and Purpose
    
        Following publication of the NPRM on accident reporting in the 
    Federal Register (59 FR 42880), FRA conducted a series of public 
    hearings to obtain the industry's views and comments on specific issues 
    addressed in the NPRM. Public hearings were held in Washington, D.C. on 
    October 5-6; in Kansas City, Missouri on October 19; and in Portland, 
    Oregon on November 3. FRA examined the issues and interests involved 
    and made a preliminary inquiry among the hearing participants to 
    determine whether additional hearings or regulatory meetings could be 
    successful in narrowing areas of disagreement and exploring possible 
    accommodations. Most participants expressed interest in continuing the 
    rulemaking process by holding additional or supplementary regulatory 
    meetings, roundtables or workshops. After further deliberation, FRA 
    decided that an informal public regulatory conference would prove 
    advantageous in the development of the accident reporting regulations. 
    FRA also believes that the quality of the agency's final rule will be 
    improved by facilitating an exchange of ideas that may lead to 
    solutions acceptable to all interested groups.
    
    (II) Methodology
    
        In accordance with the provisions of the Administrative Procedure 
    Act (5 U.S.C. 551 et seq.), the public regulatory conference is a 
    continuation of the accident reporting rulemaking proceeding. A court 
    reporter will take a verbatim transcript of the conference which will 
    be placed in the public docket for this rulemaking. The format of the 
    discussions will be informal and will employ a topical, interactive 
    approach. The public regulatory conference is currently scheduled for 
    one week. FRA believes the time allotted for this conference will prove 
    more than adequate. Of course, the conference will conclude earlier 
    than initially planned if a majority of participants in attendance 
    agree that the key issues have been adequately addressed.
    
    (III) Participants
    
        FRA invites all affected parties, including small entities, to 
    participate in the public regulatory conference. FRA believes that 
    extensive comment from all interested parties is necessary to develop 
    the most effective and reasonable final regulation. For this conference 
    to be successful, participants should come prepared to discuss, at a 
    minimum, the key issues identified below and to suggest reasonable 
    alternatives to the various proposals in the NPRM. FRA also encourages 
    participants to bring supporting documentation where appropriate.
    
    (IV) Key Issues
    
        A number of issues were raised in the written comments received to 
    date and at the public hearings. We encourage interested parties to 
    come prepared to respond to the following questions and to make any 
    other comments or suggestions regarding the issues presented. Please 
    note that the conference is not limited to these issues. FRA does 
    retain the authority, however, to limit the issues discussed at the 
    regulatory conference.
    
    A. Internal Control Plans (Proposed Section 225.33)
    
        The regulation proposed by FRA would require railroads to maintain 
    written internal control plans for the preparation of reports required 
    under part 225. Most railroad commenters believe the internal control 
    plan in proposed Sec. 225.33 is burdensome and recommend that a 
    performance standard of 99-percent be established to replace the 
    internal control plan. Dividing the number of reported accidents or 
    incidents by the number of actual reportable accidents or incidents 
    would yield a number (percentage) that would then be compared against 
    the 99-percent performance level to determine actual performance by the 
    railroad.
        (1) Would a performance standard system, in lieu of the proposed 
    internal control plan, ensure FRA receives reliable and consistent 
    reporting data?
        (2) How should FRA address accountability and enforceability if the 
    carrier does not meet the 99-percent standard?
        (3) If a performance standard were adopted by FRA, penalties might 
    be assessed based upon actual performance by the railroad. Such a 
    penalty would increase geometrically for each percentage point below 
    the 99-percent performance level, i.e., $1,000 penalty assessment for 
    performance at the 98-percent level; $3,000 penalty assessment for 
    performance at the 97-percent level; $9,000 penalty assessment for 
    performance at the 96-percent level, etc. Please comment on this 
    sliding-scale approach.
        (4) FRA has determined that a 100-percent verification of reporting 
    for a major railroad is not practicable given the size of its current 
    work force. Even 100-percent verification at a small facility might not 
    be feasible. What is the minimum sample size that would be required 
    before a performance standard should be applied?
        (5) The Association of American Railroads (AAR) acknowledged and 
    agreed that most of its members already have internal control plans in 
    place. Please describe these plans in detail.
        (6) If FRA determines that a written internal control plan is in 
    fact necessary, how would you modify the existing proposal?
        (7) Should the regulation indicate that the internal control plan 
    be continuously updated and maintained?
    
    B. Magnetic Media Submissions (Proposed Section 225.37)
    
        The proposed rule allows railroads the option of reporting data by 
    way of magnetic media in lieu of paper forms. Please refer to proposed 
    Sec. 225.37.
        (1) Would substitute forms be acceptable for verification when a 
    railroad submits magnetic media?
        (2) What would be the railroad cost differentials for developing a 
    new computer format or modifying an existing one?
        (3) Should ``railroad-designed formats'' for the various reporting 
    forms be allowed? How would this be accomplished?
    
    C. Definitions (Proposed Section 225.5)
    
        FRA proposed several new definitions in Sec. 225.5. Those new 
    definitions warranting further discussion are listed below.
    1. ``Worker on Duty''
        FRA proposed that a ``worker on duty'' be defined to include 
    individuals who receive monetary compensation from the reporting 
    railroad, or who are engaged in either (1) the operation of on-track 
    equipment or (2) any other rail safety-sensitive function for reporting 
    railroad as described in Sec. 209.303.
        Similarly, a ``volunteer'' would be sort of service for the 
    reporting railroad without receiving direct monetary compensation from 
    that railroad and are not engaged in either (1) the operation of on-
    track equipment or (2) any other rail safety-sensitive function for the 
    reporting railroad as described in Sec. 209.303.
        (a) Should ``contractors'' and ``volunteers'' in safety-sensitive 
    positions be reported separately from ``workers on duty''?
        (b) Should a separate classification for ``employees'' remain?
        (c) A ``contractor'' is currently a separate classification for 
    reporting purposes. If FRA should decide to delete the proposed 
    ``worker on duty'' classification, should ``volunteer'' be added as a 
    separate classification?
        (d) How would ``hours worked'' be calculated for contractors and 
    volunteers involved in safety-sensitive functions? Should these hours 
    be listed separately?
    2. ``Establishment'' and ``Posted''
        As proposed in the NPRM, an ``establishment'' would be defined as a 
    single physical location where business is conducted or where services 
    or operations are performed, for example, an operating division, 
    general office, and major installation, such as a locomotive or care 
    repair or construction facility. FRA also proposed in Sec. 225.25(e) 
    that each railroad ``post'' a listing of all reported injuries and 
    illnesses for the previous month at each ``establishment.''
        (a) If FRA determines that the proposed ``posting'' requirement is 
    in fact necessary, how would you redefine ``establishment'' such that 
    any burden to the railroad is minimized?
        (b) Should each railroad be required to identify a ``recordkeeping 
    establishment''?
        (c) Should the proposed list of definitions include one for 
    ``posted''? Should that definition encompass ``electronic posting,'' 
    wherein railroad workers may view accident and injury logs via 
    computer? Where computers are not available at establishments, manual 
    posting would remain a requirement. Please comment.
    3. ``Qualified Health Care Professional'' and ``Medical Treatment''
        As proposed, a ``qualified health care professional'' is defined as 
    a health care professional operating within the scope of his or her 
    license, registration, or certification. For example, an 
    otolaryngologist is qualified to diagnose a case of noise-induced 
    hearing loss and to identify potential causal factors, but may not be 
    qualified to diagnose a case of silicosis.
        (a) Should the definition be narrowed so as to include only people 
    with a medical degree, i.e., an M.D.? Should the definition be expanded 
    to include additional individuals (e.g., physical therapists) as 
    qualified health care professionals?
        (b) Should a railroad's employee assistance officer (EAP) be 
    considered a ``qualified health care professional'' when he or she 
    provides counseling to an employee who has experienced traumatic stress 
    from involvement in a serious or fatal accident?
        As proposed, ``medical treatment'' would include 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.
        (a) Are there other definitions of ``medical treatment'' that could 
    clarify reportability?
    
    D. Injury/Illness Reportability
    
        (1) How are cases involving alleged noise-induced hearing loss by 
    employees subjected to review or evaluation within companies to 
    determine whether FRA reportability criteria have been met?
        (2) Does the railroad's reporting officer determine reportability 
    of noise-induced hearing loss or is this determination made by another 
    employee (e.g., industrial hygienist, supervisor)? If the 
    ``reportability'' decision is made by someone other than the reporting 
    officer, how is this decision conveyed to the reporting officer?
        (3) Should the proposed internal control plan indicate how the 
    review of an alleged noise-induced hearing loss case is accomplished?
    
    E. ``Recordable'' Injury/Illness
    
        FRA proposed to define ``recordable'' injury or illness as 
    intending to encompass any condition, not otherwise reportable, of a 
    railroad worker that is associated with an event, exposure, or activity 
    in the work environment that causes or requires the worker to be 
    examined or treated by a qualified health care professional. Such 
    treatment would usually occur at a location other than the work 
    environment.
        (1) Does this proposed definition of ``recordable'' result in 
    greater risk of a railroad supervisor exerting pressure on an injured 
    or ill employee to avoid seeing a physician so that the injury or 
    illness is not reported to FRA?
    
    F. ``Recordable'' Rail Equipment Accident/Incident
    
        Likewise, a ``recordable'' rail equipment accident/incident would 
    encompass any event not otherwise reportable involving the operation of 
    on-track equipment that causes physical damage to either the on-track 
    equipment or the track upon which such equipment was operated and that 
    requires the removal or repair of rail equipment before any rail 
    operations over the track can continue. A ``recordable'' rail equipment 
    accident/incident, if not tended to, would thus disrupt railroad 
    service.
        (1) FRA does not wish to place an undue reporting burden on 
    railroads by requiring them to maintain a log of ``fender bender'' 
    accidents. What term or threshold could be used to capture these 
    accidents in a listing or log?
        (2) What elements or fields should be kept in the log that would 
    provide FRA inspectors with enough information to audit these 
    nonreportable accidents without placing an undue burden on the 
    railroads?
        (3) Is there a method of recording these accidents (below the 
    reporting threshold) by means other than a standard form?
        (4) Please comment on the following alternate definition for a 
    ``recordable'' rail equipment accident: a ``recordable'' rail equipment 
    accident/incident is any event not otherwise reportable, involving the 
    operation of on-track equipment that causes physical damage to either 
    the on-track equipment or to the track, roadbed, signals and/or 
    structures provided such equipment could be safely operated to its full 
    range of function without repairs. (Note: Incidents arising from broken 
    knuckles, failed journals, and dragging equipment that does not cause 
    damage beyond that of the item of equipment that failed, are not 
    required to be ``logged'' on Form FRA F 6180.xx).
    
    G. Calculation of Damage Costs
    
        FRA proposed that material/equipment costs could be calculated 
    based upon the costs of acquired new material, even if the railroad 
    chooses to use used or refurbished materials in its actual repairs.
        (1) What method(s) could be employed to accurately reflect the cost 
    of accidents that would provide a comparable method of comparison when 
    using refurbished equipment?
        (2) What alternative method could be employed that would accurately 
    reflect the severity of accidents such that when two identical 
    derailments occur, they are reflected or rated identically even though 
    their actual repair cost using refurbished material are very different?
    
    H. Seven-Day Notification (Proposed Section 225.39(a))
    
        FRA proposed that each railroad worker must notify his or her 
    employer, in writing, of any reportable or recordable injury or illness 
    within seven calendar days of incurring or obtaining knowledge of such 
    injury or illness.
        (1) Should railroads require more immediate notice?
        (2) Should the railroad worker be assessed a monetary penalty for 
    failure to report an accident or injury to his or her employer?
        (3) Should the railroad worker's supervisor be assessed a monetary 
    penalty for failure to report a known accident or injury that occurred 
    to a railroad worker?
        (4) With respect to ``notifying his or her employer in writing,'' 
    would the seven-day provision require employees to complete the 
    company's standard ``personal injury/illness statement'' for any 
    alleged noise-induced hearing loss case?
        (5) Should proposed Sec. 225.39(a) contain language that would 
    exclude the employee's ``seven-day notification in writing 
    requirement'' in the event of severe injury and fatality cases when it 
    may not be possible for the employee to comply with this provision?
    
    I. Notification to Worker (Proposed Section 225.39(b))
    
        FRA proposed that each railroad shall provide a copy of the 
    proposed Railroad Worker Injury and Illness Log (Form FRA F 6180.xx) to 
    the injured or ill worker within seven calendar days of completing the 
    log.
        (1) What steps should be taken to notify the employee that his or 
    her case has been reported to FRA? Could this be accomplished without 
    placing an excessive burden on the reporting railroad?
        (2) Should proposed Sec. 225.39(b) contain language that would 
    exclude the railroad from providing a copy of the proposed Railroad 
    Worker Injury and Illness Log to the injured or ill worker within seven 
    calendar days of completing the log when this may not be possible in 
    severe injury and fatality cases?
    
    J. Recordkeeping (Proposed Section 225.25)
    
    1. Logs for Recording Injuries (Proposed Section 225.25(a))
        FRA proposed that each railroad shall maintain the Railroad Worker 
    Injury and Illness Log (Form FRA F 6180.xx) of all reportable and 
    recordable injuries and illnesses to railroad workers for each railroad 
    establishment, including, but not limited to, an operating division, 
    general office, and major installation such as a locomotive or car 
    repair or construction facility.
        (a) What technique do railroads currently utilize to record 
    injuries, even those not reportable to the FRA?
        (b) Should FRA require railroads to maintain the employee's 
    handwritten personal injury/illness statement on file?
    2. Logs for Recording Accidents (Proposed Section 225.25(b))
        FRA proposed that each railroad shall maintain the Rail Equipment 
    Accident/Incident Log (Form FRA F 6180.xx(a)) and Property Damage 
    Estimate Worksheet and Record (Form FRA F 6180.xx(b)) of reportable and 
    recordable collisions, derailments, fires, explosions, acts of God, or 
    other events involving the operation of railroad on-track equipment, 
    signals, track, or track equipment (standing or moving) that result in 
    damages to railroad on-track equipment, signals, tracks, track 
    structures, or roadbed, including labor costs and all other costs for 
    repairs or replacement in kind for each railroad establishment.
        (a) What technique do railroads use to record accidents, even those 
    not reportable to the FRA?
    
    K. Data Elements
    
    1. Ethnic and Gender Codes
        FRA proposed requiring the gender and ethnicity of the injured or 
    ill person on Form FRA F 6180.55a (Railroad Injury and Illness 
    (Continuation Sheet)), in an effort to help identify whether particular 
    groups of individuals are more susceptible than others to certain 
    injuries and illnesses, particularly as trespassers.
        (a) Are these elements (gender and ethnicity) necessary or 
    desirable? Could an alternative be found that would serve the same 
    purpose, such as ``ability to read or comprehend instructions, signs, 
    or warnings in English'' or ``ability to interpret non-verbal 
    instructions, signs, or warnings''?
        (b) Would the collection of gender and ethnicity be acceptable when 
    reporting trespasser injuries and fatalities?
    2. Cause Codes for Injuries
        (a) What additional codes could be used in the ``Cause Code'' block 
    on the proposed Form FRA F 6180.55a? Is this block necessary or 
    desirable? Why or why not?
    3. Special Study Blocks (SSB)
        FRA proposes to establish three SSB's on Form FRA F 6180.54 (Rail 
    Equipment Accident/Incident Report) for the purpose of temporarily 
    collecting information on these issues of immediate safety concern. 
    When one or more critical safety issues arise, FRA would notify the 
    railroad reporting officers and request that they, for a specified 
    time-frame, collect and report on the critical issues using the SSB. 
    Upon expiration of the pre-defined time period, the SSB would not be 
    used again until the next issues of immediate concern.
        (a) Are the SSB's necessary or desirable?
        (b) What limitations should be placed on the SSB usage?
    4. SSB for Form FRA F 6180.57 (Highway-Rail Grade Crossing Accident/
    Incident Form
        (a) Should FRA add a similar special study block (SSB) to Form FRA 
    F 6180.57 to capture data on unusual or special situations? How could 
    it be utilized?
    5. Motorist Impairment
        In order to collect more information on motorists involved in 
    highway-rail grade crossing accidents, FRA proposed to amend Form FRA F 
    6180.57 (Highway-Rail Grade Crossing Accident/Incident Report) to 
    require information under the heading ``Motorist,'' if known, on the 
    motorist's age and gender, and whether the motorist was impaired by 
    alcohol or drugs at the time of the accident/incident.
        (a) How readily available is this information?
        (b) How many times has a railroad been denied access to a police 
    report? Please cite specific instances.
        (c) Does the claim department investigate every grade crossing 
    accident?
        (d) Is there another source for this information? FHWA or NHTSA? 
    Could the two data bases be linked?
    6. Signal Failure and Whistle Bans
        FRA proposes to add two new questions to the Highway-Rail Grade 
    Crossing Accident/Incident Report (Form FRA F 6180.57) to gather 
    information on whistle bans and signal system failures. New block 
    ``34'' asks whether a whistle ban was in effect and observed at the 
    time of the accident/incident. New block ``35'' asks whether there was 
    a signal system failure within the last seven calendar days up to and 
    including the day of the accident. The codes for completing both items 
    would be included in the FRA Guide.
        (a) Are the proposed blocks for ``Signal Failure'' and ``Whistle 
    Ban'' necessary? Why or why not?
        (b) Should Form FRA F 6180.57 also collect responses for situations 
    where the motorist is ``trapped by other motor vehicle traffic'' at the 
    time of the highway-rail grade crossing accident?
    7. Specific Location of the Accident
        (a) Would a requirement for additional accident location 
    information (based on the host railroad's timetable, the division, sub-
    division, specific track segment name or timetable designation, and 
    milepost number where the accident/incident occurred) provide 
    sufficient information to pinpoint the accident site?
        (b) Would a requirement for the specific latitude and longitude of 
    the accident site be beneficial? Why or why not?
        (c) Which of the above would prove least burdensome to the railroad 
    industry?
    
    L. Access to Records (Proposed Section 225.41)
    
        FRA proposed in Sec. 225.41 that all reports, logs, plans, and 
    records (including relevant claims and medical records) provided for in 
    part 225 shall, upon request, be made available to any representative 
    of the Federal Railroad Administration or of a State agency 
    participating in investigative and surveillance activities under part 
    212 of this chapter, for examination and photocopying in a reasonable 
    manner during normal business hours at a central location(s) identified 
    pursuant to proposed Sec. 225.27(c).
        (1) What part(s) of a worker's medical records should be exempt 
    from disclosure to the FRA inspector?
        (2) Does your railroad have a centralized claims department or 
    individual claims offices scattered throughout the system?
        (3) Does your main claims office have all information that the 
    individual claim representative has, or is the entire file forwarded 
    only when closed?
    
        Issued in Washington, D.C., on December 20, 1994.
    Jolene M. Molitoris,
    Federal Railroad Administrator.
    [FR Doc. 94-31738 Filed 12-23-94; 8:45 am]
    BILLING CODE 4910-06-M
    
    
    

Document Information

Published:
12/27/1994
Department:
Federal Railroad Administration
Entry Type:
Uncategorized Document
Action:
Public regulatory conference; date and location change, format and extension of comment period.
Document Number:
94-31738
Dates:
(1) Written Comments: Written comments filed in response to the NPRM must be received no later than March 10, 1995. Comments received after that date will be considered to the extent practicable without incurring additional expense or delay.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: December 27, 1994, FRA Docket No. RAR-4, Notice No. 9
RINs:
2130-AA58: Railroad Accident Reporting
RIN Links:
https://www.federalregister.gov/regulations/2130-AA58/railroad-accident-reporting
CFR: (1)
49 CFR 225.37