[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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