Railroad Accident Reporting

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]

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