2023-18840. Authority of NTSB in Railroad, Pipeline, and Hazardous Materials Investigations

AGENCY:

National Transportation Safety Board (NTSB).

ACTION:

Advance notice of proposed rulemaking (ANPRM).

SUMMARY:

The National Transportation Safety Board (NTSB) is publishing this advance notice of proposed rulemaking (ANPRM) to seek public feedback on whether it should define the term “substantial property damage” as it relates to the agency's authority to investigate railroad accidents. Neither the agency's statute nor the regulation currently defines this term, thus, the NTSB seeks comments on whether defining “substantial property damage” would better clarify the scope of regulatory coverage for its railroad investigations. The issues raised in the comments submitted in response to this ANPRM will inform whether and how the NTSB will define this term in its regulation.

DATES:

Send comments on or before October 30, 2023.

ADDRESSES:

You may send comments, identified by Docket Number (No.) NTSB–2023–0007, by any of the following methods:

• Federal e-Rulemaking Portal: https://www.regulations.gov.

• Email: [e-mail].

• Fax: [phone].

• Mail/Hand Delivery/Courier: NTSB, Office of General Counsel, 490 L'Enfant Plaza East SW, Washington, DC 20594.

Instructions: All submissions in response to this ANPRM must include Docket No. NTSB–2023–0007. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.

Docket: For access to the docket, go to https://www.regulations.gov and search Docket No. NTSB–2023–0007.

FOR FURTHER INFORMATION CONTACT:

William Thomas (Tom) McMurry, Jr., General Counsel, (202) 314–6080, [e-mail].

SUPPLEMENTARY INFORMATION:

In accordance with the Independent Safety Board Act of 1974, as amended, the NTSB is required to “investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of . . . a railroad accident in which there is a fatality or substantial property damage, or that involves a passenger train.” 49 U.S.C. 1131(a)(1)(C). The NTSB's regulations found at 49 CFR 831.40(a)(1) further explain that the NTSB has the authority to investigate “railroad accidents, collisions, crashes, derailments, explosions, incidents, and releases in which involve a fatality, substantial property damage, or a passenger train.” Section 840.2 defines railroad as “any system of surface transportation of persons or property over rails. It includes, but is not limited to, line-haul freight and passenger-carrying railroads, and rapid transit, commuter, scenic, subway, and elevated railways.”

Notably, the agency's regulation has neither a definition nor a monetary threshold for the term “substantial property damage” as reflected in § 831.40(a)(1). The NTSB believes that defining this term will clarify the types of railroad accidents the NTSB will investigate. Thus, the NTSB is soliciting comments on the promulgation of a regulatory definition of “substantial property damage” particular to railroad accidents.

To define “substantial property damage,” the NTSB has considered regulatory thresholds utilized by the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA) at the United States Department of Transportation (DOT). The FRA “[e]nables the safe, reliable, and efficient movement of people and goods along the Nation's railroads.” ^[1] The FRA has a monetary threshold for reporting rail equipment accidents/incidents of $11,300 for calendar year (CY) 2022.^[2] The NTSB is disinclined to align itself with FRA's threshold as the NTSB believes that $11,300 is too low of a value. However, if the NTSB does promulgate a rule establishing a monetary value for “substantial property damage,” the NTSB may consider periodically adjusting for inflation the monetary threshold as the FRA recently did for CY 2022. See85 FR 79130 (Dec. 9, 2020).

By contrast, the FTA, which “[p]rovides financial and technical assistance to local public transit systems, including buses, subways, light rail, commuter rail, trolleys and ferries,” ^[3] does not have a monetary value for reporting major events, but bases reporting requirements on whether there is “substantial damage” as defined by FTA.^[4] The FTA defines “substantial damage” as “[d]amage to transit or non-transit property including vehicles, facilities, equipment, rolling stock, or infrastructure that disrupts the operations of the rail transit agency and adversely affects the structural strength, performance, or operating characteristics of the of the property, requiring towing, rescue, on-site maintenance, or immediate removal prior to safe operation.” ^[5] Notably, excluded from this definition is damage that is limited to: cracked windows; dents, bends, or small puncture holes in the body; broken lights or mirrors; or removal from service under the vehicle's own power for minor repair or maintenance, testing, or video and event recorder download.

The NTSB does have a reporting threshold notification requirement contained in 49 CFR 840.3(b), which requires reporting of accidents with $150,000 damage or more to railroad and nonrailroad property; or $25,000 or more for a passenger train, and railroad and nonrailroad property. The NTSB is considering these monetary values to establish the threshold for “substantial property damage.” However, with the different threshold reporting requirements for freight and passenger trains, the NTSB is considering whether the same distinctions should apply to “substantial property damage.”

Further, the NTSB is considering whether its proposed definition of “substantial property damage” should contain a distinction between public railroads and private railroads reporting thresholds. The Board acknowledges, however, that if the NTSB were to define “substantial property damage” differently between public and private railroads, doing so may give rise to a question regarding which definition of “substantial property damage” applies if there were an accident involving both a public and private railroad.

Accordingly, the public is asked to address any or all of the following questions:

1. Should the NTSB define “substantial property damage”?

2. If not, why not?

3. If so, how should the NTSB define “substantial property damage”?

4. If “substantial property damage” is defined using a specific dollar amount, what would be a reasonable monetary threshold?

5. How should the NTSB calculate the threshold value of “substantial property damage”?

6. Should the dollar amount established be indexed for inflation?

7. Should the property damage value be consistent with the reporting threshold established by the FRA? Why or why not?

8. Should the property damage value be consistent with the reporting threshold established by the NTSB? Why or why not?

9. Should “substantial property damage” be based on total property damage, railroad property damage, or non-railroad property damage?

10. Should “substantial property damage” consider factors other than monetary value?

11. Should there be a distinction in threshold reporting requirements between public railroads and private railroads?

12. And which definition should apply to an accident involving both a public railroad and private railroad?

13. The NTSB has different threshold reporting requirements for freight and passenger trains. Should the definition of “substantial property damage” contain a similar distinction?

List of Subjects in 49 CFR Part 831

• Aircraft accidents
• Aircraft incidents
• Aviation safety
• Hazardous materials transportation
• Highway safety
• Investigations
• Marine safety
• Pipeline safety
• Railroad safety

William T. McMurry, Jr.,

General Counsel.

Footnotes

1.   https://www.transportation.gov/​railroads.

2.  The FRA's Monetary Threshold Notice is available at: https://railroads.dot.gov/​safety-data/​forms-guides-publications/​guides/​monetary-threshold-notice.

3.   https://www.transportation.gov/​public-transit.

4.   https://www.transit.dot.gov/​ntd/​national-transit-database-ntd-glossary#S.

5.   https://www.transit.dot.gov/​ntd/​national-transit-database-ntd-glossary#S.