issue-1996-06-18•Federal Register final rules — 1996-06-18
Federal Register final rules — 1996-06-18
issue-1996-06-18Federal Register final rules — 1996-06-18Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-15456 Federal Motor Vehicle Safety Standards; Child Restraint Systems
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30824-30836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15456]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 74-09; Notice 46]
RIN 2127-AF02
Federal Motor Vehicle Safety Standards; Child Restraint Systems
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule; response to petitions for reconsideration;
correction.
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SUMMARY: This document responds to petitions for reconsideration of a
July 1995 final rule that amended Federal Motor Vehicle Safety Standard
(FMVSS) No. 213, Child Restraint Systems to add a greater array of
sizes and weights of test dummies for use in Standard 213 compliance
tests. This is the second of two documents responding to those
petitions. An earlier document delayed the compliance date of the rule
until September 1, 1996, for manufacturers of add-on (portable) child
restraint systems.
Most of the amendments made by today's rule correct or clarify
provisions of the July 1995 rule. The only substantive changes made by
today's rule are to amend provisions in that standard to permit
manufacturers to produce belt-positioning seats with a mass of up to
4.4 kg (rather than limit the mass to 4 kg), and to permit them to use
the word ``mass'' in labeling child seats. Petitions for
reconsideration of matters relating to other issues are denied.
DATES: This rule is effective July 18, 1996. The compliance date for
the amendments made by this rule (i.e., the date on which manufacturers
must begin complying with the amendments) is September 1, 1996.
Beginning July 18, 1996, manufacturers may begin voluntarily complying
with the amendments made by this rule.
Petitions for reconsideration of this rule must be received by
August 2, 1996.
ADDRESSES: Petitions for reconsideration should refer to the docket and
number of this document and be submitted to: Administrator, Room 5220,
National Highway Traffic Safety Administration, 400 Seventh Street SW.,
Washington, DC, 20590.
FOR FURTHER INFORMATION CONTACT: For nonlegal issues: Dr. George
Mouchahoir, Office of Vehicle Safety Standards (telephone 202-366-
4919). For legal issues: Ms. Deirdre Fujita, Office of the Chief
Counsel (202-366-2992). Both can be reached at the National Highway
Traffic Safety Administration, 400 Seventh St., SW., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Current requirements
III. Final Rule
IV. Petitions for Reconsideration
V. Issues
a. Mass Ranges
b. Ninety-fifth percentile child dummy
c. Weight and height should match
d. Test Principles
1. Speed Close to 30 mph
2. Representative Seat Assembly
3. Worst Case Testing
4. Testing ``New'' Restraints
e. Allowable Mass for Belt-Positioning Boosters
f. Knee Excursion
VI. Corrections
a. Metrication
b. Labeling
c. Dummy Positioning
d. Dummy Selection
VII. Compliance Date
VIII. Rulemaking Analyses and Notices
a. Executive Order 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
b. Regulatory Flexibility Act
c. Executive Order 12612 (Federalism)
d. National Environmental Policy Act
e. Paperwork Reduction Act
f. Executive Order 12778 (Civil Justice Reform)
I. Introduction
This document is the second of two documents responding to
petitions for reconsideration of a final rule published July 6, 1995
(60 FR 35126), and corrected September 29, 1995 (60 FR 50477). It also
responds to other requests for rulemaking. The final rule amended
Federal Motor Vehicle Safety Standard No. 213, ``Child Restraint
Systems'' (49 CFR 571.213), by adding a greater array of sizes and
weights of test dummies to Standard 213 for use in compliance tests.
The rule, completing a substantial upgrade of the standard long
envisioned by the agency, also responded to the NHTSA Authorization Act
of 1991 (sections 2500-2509 of the Intermodal Surface Transportation
Efficiency Act (``ISTEA'')), which directed NHTSA to initiate
rulemaking on child seat safety. The notice of proposed rulemaking
(NPRM) for the rule was published March 16, 1994 (59 FR 12225).
On December 12, 1995 (60 FR 63651), NHTSA published the first
document responding to petitions for reconsideration of the rule. In
response to petitions from Cosco Inc. and Gerry Baby Products Company,
two manufacturers of add-on child restraint systems, NHTSA extended the
compliance date of the rule from January 3, 1996, to September 1, 1996.
The agency extended the compliance date to provide manufacturers of
add-on systems sufficient time to evaluate their products and make any
necessary changes to them.
II. Current Requirements
Standard 213 applies to any device, except Type I (lap) or Type II
(lap/shoulder) seat belts, designed for use in a motor vehicle or
aircraft to restrain, seat, or position children whose mass is 23
kilograms (kg) (50 pounds) or less. The standard evaluates the
performance of child restraint systems in dynamic
[[Page 30825]]
tests under conditions simulating a frontal crash of an average
automobile at 48 kilometers per hour (kph) (30 miles per hour (mph)).
The dynamic tests are conducted using a test dummy. Currently,
Standard 213 (S7) specifies two different dummies for use in compliance
testing. A dummy representing a 6-month-old child is used for testing a
child restraint system that is recommended by its manufacturer for use
by children in a mass range that includes children whose mass is 9 kg
(weighing 20 pounds) or less. That dummy, which is uninstrumented, is
specified in subpart D of 49 CFR part 572. A dummy whose mass is 15 kg
(weighing 33 pounds), representing a 3-year-old child, is used for
testing a child restraint system that is recommended for children whose
mass is more than 9 kg (weighing more than 20 pounds). This dummy is
instrumented with accelerometers for measuring accelerations in the
head and chest during impacts, and is specified in 49 CFR part 572,
subpart C.
The requirements to be met by a child restraint in the dynamic
testing include maintaining its structural integrity, retaining
portions of the dummy within specified excursion limits (limits on how
far specified portions of the body may move forward), and in the case
of the 3-year-old dummy, limiting the forces exerted on the head and
chest of the dummy in the crash. These requirements reduce the
likelihood that the child using a child seat will be injured by the
collapse or disintegration of the seat, by contact with the interior of
the vehicle, or by imposition of intolerable forces by the seat.
III. Final Rule
The final rule that is the subject of today's document amended
Standard 213 to add three dummies, representing a newborn infant, 9-
month-old and 6-year-old child, for use in the future in compliance
testing under the standard. The rule will remove the 6-month-old child
dummy currently used, since the need for it was obviated by the
addition of the new dummies.
In adopting the new dummies, the agency sought to better evaluate
the ability of child restraint systems to restrain and protect the
range of children recommended for those systems. As a result of the
rule, child restraints will have to meet the performance requirements
of the standard while tested with dummies more representative of the
children for whom the restraints are recommended. As a result, the
performance of child restraints will be more thoroughly evaluated. A
dummy representing children at the lower end of the weight ranges
recommended for a restraint will evaluate the ability of the restraint
to restrain its occupant. A dummy at the higher end will evaluate the
structural integrity of the restraint.
The rule adopted the following provisions specifying which of the
new dummies NHTSA will use in the compliance testing of child restraint
systems:
------------------------------------------------------------------------
The following dummy(ies)
If the range of children recommended by a is(are) used in the
child restraint's manufacturer includes compliance testing of that
any children in the following range, restraint
------------------------------------------------------------------------
Birth to 5 kg (11 lb) or less............ Newborn.
More than 5 kg to 10 kg (22 lb).......... Newborn.
9-month-old
(20 lb).
More than 10 kg to 18 kg (40 lb)......... 9-month-old
(20 lb).*
3-yr-old
(33 lb).
More than 18 kg (40 lb).................. 6-yr-old
(47 lb).
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* This dummy is not to be used to test booster seats.
IV. Petitions for Reconsideration
NHTSA received five petitions for reconsideration of the rule. One
of these, from the Connecticut Attorney General's office, was untimely,
and will be considered as a petition for rulemaking in accordance with
Sec. 553.35 of NHTSA's regulations. In addition, Mr. Louis F. Sokol, a
metrication consultant, in a letter to the agency, pointed out minor
errors relating to the use of SI measurements, and suggested use of a
particular metric unit on child seat labels. That letter is also
addressed in today's document.
Discussion of Petitions
This section briefly discusses the issues raised by each of the
petitions, except issues relating to an extension of the compliance
date for the rule. The agency responded to those compliance date issues
in the earlier Federal Register document.
Consumers Union (``CU'') petitioned for reconsideration of several
aspects of the rule, including the mass/weight ranges and the
specifications of which dummy or dummies will be used to test
restraints in each mass/weight class. Consumers Union stated that the
rule should not ``allow manufacturers to recommend any particular
restraint system for children larger in weight than the weight for
which the system is required to be tested by the standard.'' In
addition, CU suggested changes to specific aspects of the dynamic test
procedure.
The Connecticut Attorney General's office expressed concerns
similar to CU's. This petitioner asked NHTSA to require that all tests
of child restraint systems use a test dummy ``with a weight consistent
with the maximum recommended weight for use in the car seat.'' Similar
to CU, this petitioner stated that the rule does not ``guarantee'' that
infant seats recommended for infants up to 22 lb are safe for children
who weigh up to 22 lb.
Cosco, Inc. (``Cosco''), a manufacturer of add-on child restraints,
raised several issues in its petition, the most significant of which
related to one aspect of the mass ranges. Cosco wanted the 10 kg to 18
kg (22 lb to 40 lb) category to be changed so that the upper limit is
20 kg (44 lb). Cosco stated that restraints with a 43 lb maximum
recommendation have been in the marketplace for years without evidence
of a safety problem. The bulk of Cosco's other issues related to
apparent errors or omissions in the rule.
Advocates for Highway and Auto Safety (``Advocates'') petitioned
for reconsideration of an aspect of the mass ranges adopted by the
rule. Advocates objected to the 18 kg (40 lb) dividing line between the
third and fourth mass classes because there is no 18 kg test dummy. The
petitioner stated that, without such a dummy, child restraints cannot
be appropriately tested at 18 kg, which may be one extreme of a
recommended mass range for a child restraint. In addition, Advocates
objected to a discussion in the final rule relating to ``worst case''
testing.
Two petitioners, a child restraint manufacturer and a consortium of
built-in restraint manufacturers, petitioned about certain specific
performance requirements. Gerry Baby Products Company (``Gerry'')
requested a change to the requirement limiting the force that may be
imposed on a child by the vehicle lap belt used to anchor a child seat
to the vehicle (S5.4.3.2). The rule prohibited any loads except those
resulting from a child seat with a mass less than 4 kg. Gerry
petitioned to raise the limit from 4 kg to 4.4 kg. The American
Automobile Manufacturers Association (``AAMA'') petitioned to increase
the knee excursion limit of 305 mm for built-in restraints (S5.1.3.1
(b)). AAMA stated that an allowance of 305 mm is too restrictive with
respect to testing a booster seat with the 6-year-old dummy, and that
until such time as an appropriate knee excursion limit can be developed
for use with the dummy, no knee excursion limit should be in force.
[[Page 30826]]
V. Issues
Most of the amendments made by today's rule correct or clarify
provisions of the July 1995 rule. The only substantive changes made by
today's rule are to amend S5.4.3.2 to permit manufacturers to produce
belt-positioning seats with a mass of up to 4.4 kg (rather than limit
the mass to 4 kg), and to permit them to use the word ``mass'' in
labeling child seats. Petitions for reconsideration of matters relating
to other issues are denied.
a. Mass Ranges
Consumers Union (CU) petitioned for reconsideration of the
provisions of the rule that specify which child test dummies are used
to evaluate the performance of a particular child restraint system. CU
stated that the standard should specify testing with ``a dummy
representing the maximum weight of a child for whom the safety seat is
designed.'' CU further stated that the standard should not permit
manufacturers to recommend their restraints for any child weighing more
than the heaviest test dummy used in the compliance testing of the
product.
The main provisions with which CU is concerned are those that
specify how to test a rear-facing seat and a convertible seat. The
provisions for testing rear-facing seats specify that, if the range of
children recommended by a child restraint's manufacturer includes any
children of masses in a range of 5 kg to 10 kg (approximately 11 to 22
lb), the restraint is tested with both the newborn and 9-month-old (20
lb) dummies (S7.1(b)). CU believed that it is unsafe to permit
manufacturers to label a rear-facing restraint as suitable for infants
with masses up to 10 kg (22 lb), when the heaviest dummy used in
testing the restraint weighs only 20 lb. CU described tests it
conducted using the 20 lb 9-month-old dummy in infant seats that were
generally labeled for children up to 20 lb.
Two popular models, certified by the manufacturers as safe based
on tests with a smaller, lighter six-month-old [17.5 pound] dummy,
and labeled for use by children up to 20 pounds, performed poorly
when tested with the 20-pound dummy. In one case, the Century 590,
the product barely passed our tests when tested with a 17.5-pound
dummy, but failed dramatically when tested with a 20-pound dummy. In
the second case, involving the Evenflo On My Way 206, the product
failed in the same manner mentioned in NHTSA's press release of July
25, 1995 (i.e., a crack in the shell) when tested with a 17.5 dummy,
but failed in a dramatic fashion when tested with a 20-pound dummy.
CU was thus concerned that, under the July 1995 rule, a rear-facing
child restraint could meet Standard 213's requirements when tested with
the 9-month-old (20 lb) dummy, but may or may not perform adequately
when restraining a 22 lb child, even though the restraint is
recommended for children weighing up to 22 lb.
CU had similar concerns about convertible and toddler restraint
systems. (Convertible restraints are adjustable so that in one
adjustment position they can be used rear-facing by an infant or a very
young child in the same manner as an infant-only seat and in another
position, by a toddler who is forward-facing, i.e., restrained facing
in the normal direction of travel of the vehicle.) The rule specifies
that a restraint recommended for use by children of masses in a range
from 10 kg to 18 kg (22 to 40 lb) is tested with the 9-month-old 1
and 3-year old (33 lb) dummies (S7.1(c)). CU stated that these
restraints should not be permitted to be recommended for children
weighing more than 33 lb:
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1 The 9-month-old dummy is not used to test booster
seats.
Because there is no standard 40-pound dummy available, we could
test only with the 33-pound dummy. Hence, neither we nor the public
nor NHTSA knows how these seats will perform with a child weighing
between 33 and 40 pounds. In our view, this is an unacceptable
situation for parents who are led by product labeling to believe
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that these seats will provide the necessary restraint in a crash.
After carefully reviewing CU's petition, NHTSA has determined that
safety is best served by denying it.
The basis for the agency's decision to retain the 10 kg (22 lb)
dividing line between the second and third weight ranges is grounded in
the anatomical characteristics of infants and the corresponding real-
world need to keep infants in rear-facing child restraints up through
the end of their first year. As discussed below, adoption of CU's
request could have the unintended and undesired effect of encouraging
the premature transition of infants to front facing child restraints.
Infants have unique skeletal and muscular attributes. An article
2 by F. von Wimmersperg and Waldemar J. Czernakowski, ``The Safe
Deceleration of Infants in Car Crashes,'' describes the biomechanical
characteristics of infants, for consideration in developing adequate
infant restraining devices:
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2 This article was part of a petition for rulemaking
submitted to NHTSA in 1992 by Century Products Co. (docket PRM-213-
22) concerning a requirement then in Standard 213 that infant seats
not change adjustment position in dynamic testing (S5.1.1). See
docket 74-09, notice 36.
To facilitate the passage of the fetus through the birth canal,
the mother and the fetus can deform during the slow, almost static
loads of the birth process. This ability of the fetus to deform
safely under slow loads is mortgaged by a high vulnerability to
local, blunt dynamic loads by impact on the head or chest, or
violent movements of the head by shaking or otherwise. * * * The
infant is not just a scaled down older child. The anatomical
differences are of such magnitude that engineering solutions
adequate to decelerate older children can be expected to injure the
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infant.
``The Safe Deceleration of Infants in Car Crashes,'' Wimmersperg and
Czernakowski, Proceedings of 20th STAPP Car Crash Conference, October
1976, pp. 545-585.
In addition to the undeveloped skeletal and muscular system of the
infant, the size of the child's head and the stresses it produces on
the neck make the infant extremely vulnerable to injury in frontal
crashes. The head of a newborn represents one-third of the infant's
total body weight. Unless properly supported, the head can produce a
massive amount of force pulling on the undeveloped muscle system of an
infant's neck in a crash.
Because of these anatomical features, child passenger safety
experts have strongly recommended that infants should be positioned
rear-facing in a vehicle. Infant restraints are designed to face the
child rearward so that in a frontal crash, the forces are spread evenly
across the infant's back and shoulders, the strongest part of the
child's body. Further, the back of the head rests against the seating
surface. In this way, severe neck injuries are prevented. Von
Wimmersperg and Czernakowski state that ``Injuries of the (infant's)
neck and of the brain can be prevented only when the head mass and the
torso mass decelerate gradually and simultaneously, with a minimum of
relative movement.'' 3 Kathleen Weber of the Child Passenger
Protection Research Program of the University of Michigan Medical
School (UM-CPP) found that stretching forces acting on the neck can be
reduced by half when forward-facing child dummies are turned to face
the rear. She found that, in the forward-facing position, the neck of a
six-month-old child dummy was subjected to about 1200 N of force, or
over fifty times the weight of the head pulling on the neck. In tests
in which
[[Page 30827]]
the dummy was restrained rear-facing, measured neck forces were less
than half of the forward-facing values. ``Rear-Facing Restraint for
Small Child Passengers,'' UMTRI Research Review, April-June 1995. Ms.
Weber determined from her research that ``children are much less prone
to serious neck injury in a rear-facing than a forward-facing child
restraint, and that children should therefore be kept facing the rear
of the vehicle until they are at least one-year old.'' Id., emphasis
added. One-year is believed to be the earliest age at which a child
should be turned to face forward because the infant's bones and
muscular system take about eight to 12 months to ossify and develop to
the point where it has outgrown the most serious vulnerability to
local, blunt impacts on the head or chest, or violent movements of the
head. Wimmersperg and Czernakowski, id.
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3 In their article, these authors discuss a new type of
infant restraint, a swinging bed, which they believe transfers the
load from a frontal impact over a large area of the infant and
reduces the duration of maximal impact for each area element.
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While safety advocates recommend infants should be rear-facing
until at least one year old, Standard 213's testing provisions
inadvertently prevented manufacturers from recommending an upper weight
limit that would enable children to stay rear-facing until one year of
age. As noted in section II above, the standard specified that the 6-
month-old child dummy is used for testing a child restraint system that
is recommended by its manufacturer for use by children in a weight
range that includes children weighing 20 lb or less. The 3-year-old
child dummy is used for testing a child restraint system recommended
for children weighing more than 20 lb. (The 20 lb weight corresponds to
the average nine-month-old child.) Recommending any rear-facing
restraint for the average 12-month-old (whose average weight is 22 lb)
would necessitate recommending the restraint for children weighing in
excess of 20 lb. A rear-facing restraint recommended for children
weighing more than 20 lb had to be certified as meeting Standard 213
when tested with the 33 lb 3-year-old dummy.
Testing a rear-facing child restraint with the 3-year-old dummy was
problematic. In an April 22, 1992 interpretation letter to Century
Products, NHTSA determined that if a convertible restraint could not
physically permit the 3-year-old dummy to be positioned for the dynamic
test, the restraint could not be recommended by its manufacturer for
use in the rear-facing position by children weighing more than 20
pounds. Moreover, since a rear-facing restraint recommended for a child
weighing more than 20 lb must meet all performance criteria when tested
with the 3-year-old dummy, most manufacturers will not certify their
infant restraints to Standard 213. Rear-facing restraints typically
have a seat back that is too low to enable the restraint to meet the
standard's occupant head excursion requirement (S5.1.3.2) when tested
with the 3-year-old dummy.
To enable manufacturers to recommend rear-facing restraints for
infants up to 12 months in age without making it necessary to test
those restraints with the 33 lb 3-year-old dummy, the July 1995 rule
divided the weight ranges in such a manner that the 3-year-old dummy is
used to test a restraint only if the restraint is recommended for use
by a child weighing more than 22 lb. In the proposed rule, NHTSA
proposed a dividing line of 20 lb, but raised it to 22 lb in the final
rule in response to commenters who believed that the change would
encourage manufacturers to recommend positioning an infant in a rear-
facing position at least until the child is one year old. 60 FR at
35131, 35132. NHTSA concluded that safety would be served by better
ensuring that infants ride rear-facing until their skeletal and
muscular structure can develop to where they can more safely withstand
crash forces in a forward-facing position.
While based on a desire to promote safety, CU's request to prohibit
manufacturers from specifying their products for use by children
exceeding the weight of the test dummy would have the opposite effect.
Granting that request would not comport with real world needs of
infants. As noted above, taking action that would have the effect of
prohibiting rear-facing restraints from being recommended for children
weighing more than 20 lb does not accord with safety data that indicate
infants are safer riding rear-facing until at least 12 months old
(i.e., until they reach 22 lb). It perpetuates a current ``impediment''
(Weber, id.) in Standard 213 that resulted in less than optimal, and
possibly misleading, weight recommendations. Because 20 pounds is the
weight of an average nine-month-old child, CU's approach would continue
to limit weight recommendations in such a way as to possibly mislead
consumers into thinking that an infant must be switched to face forward
when the baby is only nine months old. This is likely to be before the
infant's bones and muscular system have developed sufficiently to make
seating the child in a forward facing position appropriate. Thus, CU's
approach could have the unintended effect of detracting from the real-
world safety needs of older infants (ages nine- to 12-months).
NHTSA notes that the potential adverse effect of CU's suggestion
that the weights of the dummies used for Standard 213 compliance tests
should determine the limits of the weight recommendations made by the
manufacturers would have been even greater under Standard 213 prior to
the July 1995 amendment. Under CU's approach and under that version of
the Standard, infant restraint manufacturers would not have been
allowed to recommend their restraints for children weighing more than
the 17.5 lb (six-month-old) dummy. That limit would have pushed infants
out of rear facing infant seats and into forward facing child
restraints even more prematurely than under the July 1995 amendment.
The agency recognizes that, even with the new test dummies
incorporated into Standard 213, it may be possible to gain still more
safety benefits from making further changes to the standard. The more
dummies that were added to the standard, the more likely it would be
that there would be dummies that coincided more exactly with the lower
and upper limits of the range of recommended weight and sizes of
children for a particular child restraint.
A perfect standard might be one that incorporated test dummies
representative of all children for whom a child restraint is
recommended, including all children at the extremes of the recommended
weight ranges. A perfect standard might be one that specified testing
with ``a dummy representing the maximum weight of a child for whom the
safety seat is designed,'' as CU suggested in its petition, assuming
that dummies representing children of all types exist, and that the
added costs and burdens of such testing could be justified by safety
benefits. However, such dummies do not exist.
In addition, the agency believes such an approach is unnecessarily
restrictive, given that there has been no showing that the wider array
of dummies incorporated into Standard 213 by the July 1995 rule are
insufficient surrogates for the children for whom the restraints are
recommended. There is no question that Standard 213 could possibly more
extensively evaluate a restraint's performance if it incorporated more
test dummies representing more of the children for whom the restraint
is designed. In that regard, NHTSA notes that it is considering
incorporating a 12-month-old (22 lb) child test dummy into Standard 213
compliance testing, to make the evaluation of infant seats even more
extensive. The agency is currently evaluating the 12-month-old CRABI
dummy. However, the agency does not
[[Page 30828]]
believe that there is a safety problem that warrants prohibiting
manufacturers from recommending infant seats for children up to a mass
of 10 kg (22 lb) in the absence of such a dummy. NHTSA notes further
that the test dummy that CU used to test infant seats, resulting in
``not acceptable'' performance ratings, was the 20 lb nine-month-old
adopted by the July 1995 rule. Thus, CU's testing of infant seats was
not more thorough than that which will be required by the July 1995
rule. After September 1, 1996, NHTSA will evaluate all infant seats
using the same general methodology that CU used in its tests. Seats
whose performance was found by CU to be ``not acceptable'' will need to
be improved, to ensure that Standard 213's requirements will be met
when NHTSA conducts its compliance tests.
CU's belief that the upper end of the recommended weight ranges for
users of infant restraints should be limited to 20 lb is based on its
concern that the restraint may fail when restraining a heavier child.
NHTSA notes that there is no information showing that failures will
occur above 20 lb, or the nature and magnitude of such failures. While
NHTSA agrees that child restraints should be tested with a test dummy
representative of the children for whom the restraint is recommended,
the agency does not agree that the nine-month-old dummy inadequately
demonstrates the suitability of a restraint for children weighing 20 to
22 lb.
In contrast to CU's supposition that infant restraints could fail
when restraining children weighing 20 to 22 lb, there is a demonstrable
need, discussed above, to keep infants rear-facing longer. Even if some
restraints were to fail in some degree when restraining a child
weighing 20 to 22 pounds, the safety impact of these failures--to a
limited portion of the infant population--must be weighed against the
impact of forcing all children to make a premature shift from the safer
rear-facing position to forward-facing. On balance, the agency believes
there is a net safety benefit from keeping infants rear-facing longer.
Accordingly, NHTSA is denying CU's request that the agency prohibit
infant restraint manufacturers from recommending their restraints for
children weighing more than 20 lb.
For related reasons, the agency is also denying CU's suggestion
that convertible and toddler restraints should not be permitted to be
recommended for children weighing more than 33 lb. CU's approach would
have the effect of forcing toddlers out of child restraints specially
designed for young children (typically 20 to 40 lb) and into restraints
that may not be appropriate for them, i.e., booster seats or the
vehicle's belt systems. It is hypothetically possible that a restraint
that passes the Standard 213 criteria when tested with a 33-lb dummy
could fail when restraining a child weighing 33 to 40 lb. However, on
balance, that possibility of such a failure is outweighed by the safety
risk of forcing children into restraints that might not be appropriate
for them.
It is stressed that, even though Federal motor vehicle safety
standards are minimum requirements, manufacturers of motor vehicles and
child restraint systems generally aim at overdesigning their products
to provide for higher performance to account for unforeseen
uncertainties. Further, child restraints that are currently recommended
for use up to 50 pounds are tested with just a three year (33 lb)
dummy. More importantly, there are no data indicating a safety problem
with these restraints when used to restrain children weighing 34 to 50
lb. This rule is a substantial improvement to current testing
requirements in Standard 213. Prior to the amendment, only the 33 lb
dummy was used to test restraints recommended for children from 20 to
50 lb. Under the amendment, the 33 lb dummy would be used to test
restraints recommended for children weighing 22 to 40 lb, a much
narrower range of weights.
Since the agency is denying the parts of CU's petition relating to
the mass ranges, it is also denying the petition for rulemaking from
the Attorney General's Office for Connecticut. This petitioner asked
NHTSA to require ``that all tests for child restraint systems use a
test dummy with a weight consistent with the maximum recommended weight
for use in the car seat.'' The petition raised issues identical to
those of CU. For the reasons discussed above, NHTSA has not found a
reasonable possibility that the order requested by Connecticut will be
issued at the conclusion of the appropriate proceeding. Accordingly,
NHTSA denies the rulemaking petition.
Advocates for Highway and Auto Safety (``Advocates'') objected to
the agency's drawing the line between the third and fourth mass classes
using the 18 kg (40 lb) limit because there is no 18 kg test dummy. The
petitioner believed that, without such a dummy, child restraints cannot
be adequately tested at 18 kg, which may be one extreme of a
recommended mass range. Advocates preferred the mass classes proposed
by the NPRM. The NPRM proposed that restraints recommended for children
having a mass from 4 kg to not more than 9 kg (weights of 9 to 20 lb)
would be tested with the newborn and 9-month-old dummies. Restraints
recommended for children with masses from 9 to not more than 13.5 kg
(20 to 30 lb) were to be tested with the 9-month-old and 3-year-old
dummies, and those recommended for children with masses greater than
13.5 kg were to be tested with the 3-year and 6-year-old dummies.
NHTSA is denying Advocates' request to return to the mass
categories of the NPRM. As explained in the final rule, Cosco pointed
out in its comment that the proposed mass classes could cause problems
for convertible restraints. The agency quoted a comment from Cosco,
which stated that:
NHTSA's fourth category covers any car seats for children more than
30 pounds. This includes both convertible seats and auto boosters,
and would force manufacturers to test convertible seats with the 6-
year-old dummy, which weighs from 4 to 7 pounds more than the
maximum weight recommended for these seats (40 to 43 pounds). The 6-
year-old dummy is also 9'' taller than the 3-year-old dummy and
would almost certainly exceed the head excursion limit. Since it is
doubtful that convertible car seats could pass with the 6-year-old
dummy, it is likely that manufacturers would be forced to put a
maximum weight of 30 pounds on their convertible seats. The proposal
as it stands would therefore regulate out of existence one of the
most effective types of car seats available.
NHTSA concurred with Cosco's comment that convertible child
restraints should not be tested with the six-year-old, 21.5 kg (47.3
lb) dummy (60 FR at 35132). Convertible restraints are typically
recommended for children from newborn to 18 kg (40 lb). The six-year-
old dummy is not representative of a child for whom the restraint is
recommended. Further, according to Cosco, convertible restraints would
have difficulty in meeting Standard 213's requirements when tested with
the 6-year-old dummy. If the NPRM's mass ranges were adopted,
manufacturers of convertible restraints would likely restrict use of
their restraints to children with masses of less than 13.5 kg (30 lb),
to avoid testing with the 6-year-old dummy. Since convertible
restraints are generally considered effective at restraining children
up to 18 kg (40 lb), such a restriction could likely result in parents
moving their 30 lb toddlers into a booster seat or a vehicle belt
system before booster seats or seat belts should be used by the younger
child, assuming a restraint system is used at all after the convertible
child restraint.
NHTSA recommends that children should be kept in a convertible
restraint for as long as they will fit such a
[[Page 30829]]
restraint, usually until they reach about 40 lb or four years. A
convertible seat, which has shoulder straps, provides greater
protection for children less than 40 lb than a booster seat, especially
in rollover and other non-frontal crashes. See NHTSA's ``Child
Passenger Safety Resource Manual,'' March 1992. A convertible seat may
provide greater protection than a vehicle's belt system, which may not
properly fit a young child. To be used correctly, the lap belt must be
snug across the child's hips and must not ride up across the stomach,
and the shoulder belt must not cross the face or the front of the neck.
As a result of Advocate's approach, young children could be moved out
of convertible restraints into a booster seat or a vehicle belt system
too early (e.g., at 30 lb), which could have an overall negative safety
impact.
Given the above, Advocates has not provided sufficient reason for
amending the mass ranges to return to those proposed in the NPRM. While
under ideal circumstances, it might be desirable to have a 40 lb test
dummy, such a dummy is unavailable. NHTSA has determined that, on
balance, safety is better served with the mass ranges of the final
rule, since it ensures the availability of convertible seats for
toddlers in the 13.5 to 18 kg (30 to 40 lb) range.
Cosco wanted the 10 kg to 18 kg (22 lb to 40 lb) category to be
changed so that its upper limit is 20 kg (44 lb), to avoid subjecting
convertible restraints to tests with the 47 lb 6-year-old child dummy.
Cosco said that convertible restraints recommended for use by children
up to 43 lb have been in the marketplace for years, without evidence of
a safety problem. Cosco stated that raising the limit to 20 kg would be
consistent with the recommendations of ``many passenger safety
advocates'' that consumers should be encouraged to keep children in
convertible restraints for as long as possible. Cosco argued that the
rule is inconsistent in that under it manufacturers may recommend a
convertible restraint for children of heights up to 1100 mm, which is
the 95th percentile for children in the 3.5- to 4.5-year age group, and
the restraint will not be tested with the 6-year-old dummy, yet
manufacturers that recommend a restraint for children weighing up to
the 95th-percentile child (43.2 lb), subject their restraints to
testing with the 6-year-old dummy.
NHTSA is denying Cosco's request to increase the upper limit to 20
kg (44 lb). The agency believes that a restraint that is recommended
for use by children with a mass of up to 20 kg (44 lb) should be tested
with the 6-year-old (47 lb) dummy, because the dummy is sufficiently
representative of children at the upper end of the recommended range of
users. NHTSA recognizes that, as a result of this decision,
manufacturers, such as Cosco, will likely revise their recommendations
downward, such that, convertible restraints will not be recommended for
children with a mass of more than 18 kg (40 lb). The issue of the
relative safety of placing children with a mass more than 18 kg (40 lb)
in convertible restraints as opposed to booster seats or vehicle belt
systems is not nearly so easily resolved as is the issue of whether to
place the child under 18 kg in a convertible restraint or the issue of
whether to place a child less than one year old in a rear-facing or a
forward-facing restraint. NHTSA anticipates that manufacturers will be
able to develop designs that would enable a convertible restraint to
meet Standard 213's performance requirements when tested with the 6-
year-old dummy, if such a restraint meets market demands. However,
until a complying design is developed, the agency believes that a
restraint that is recommended for a child with a mass of 18 to 20 kg
(weight of 40 to 44 lb) should be tested with the 6-year-old (47-lb)
dummy, to ensure that the restraint can maintain its structural
integrity and properly retain a child in the upper recommended weight
range.
The agency does not agree with Cosco's comment that Standard 213 is
inconsistent in that it permits manufacturers to recommend a
convertible restraint for a child as tall as a 95th-percentile three-
year-old (height 1100 mm) without subjecting the seat to testing with
the 6-year-old dummy. The agency did not intend to imply that
manufacturers should label their restraints as suitable for a child in
the 95th-percentile for height. The rule was intended to subject a
child restraint to testing with an additional (larger) dummy if the
manufacturer's recommended child height exceeds the height of the 95th
percentile child. For example, a child restraint is to be tested with
the 6-year-old dummy if its manufacturer recommended it for children
taller than the 95th-percentile 3-year-old. The rule enabled NHTSA to
use the manufacturer's height recommendations, in addition to the
manufacturer's weight recommendation, to select the test dummies used
in Standard 213's compliance test. If height were not a factor, it
might be possible for a restraint to be tested with a dummy or dummies
insufficiently representative of the range of children recommended for
the restraint. This could occur if a manufacturer were to recommend
inconsistent mass and height ranges. A manufacturer could create an
inconsistency by recommending a height range that corresponds to
children who are of greater mass than the masses expressly recommended
by the manufacturer for the restraint. The rule used the 95th-
percentile values to give manufacturers wide latitude in recommending
the reasonable height ranges they think are appropriate for their
restraints. 60 FR at 35134.
The agency does not believe the same wide latitude should be
provided with regard to the mass recommendations. A dummy representing
a 50th-percentile three-year-old child (33 lb), does not provide a full
evaluation of the performance of a restraint when restraining a child
of a mass of a 95th-percentile three-year-old (weighing 44 lb). NHTSA
believes that if a manufacturer recommends its restraint for a child of
a mass of a 95th-percentile three-year-old, the six-year-old child
dummy (weighing 47 lb) better assesses the structural soundness of the
seat and its ability to restrain children at the upper recommended mass
range.
b. Ninety-fifth Percentile Child Dummy
CU raised another issue about the adequacy of the test dummy used
to evaluate the performance of a rear-facing seat. In its petition, CU
recognized that ``most child development and safety experts advise that
infants should ride in a rear-facing position up to the age of about
one year.'' CU believed that, in the case where a seat is recommended
for a particular age of child (i.e., infants up to the age of one
year), the dummy used to test the restraint should be one representing
``an above-average-sized'' child, i.e., a 95th-percentile one-year-old
male child (weighing 26 lb), rather than a 50th percentile child. CU
argued that by definition, half the children of a particular age weigh
more than the median weight for that age. CU believed an above-average-
sized dummy is needed to ensure that results apply to most children in
the user population.
The agency is denying this request. As far as NHTSA is aware,
manufacturers recommend their restraints for children based on the
child's weight and height, as required by Standard 213's labeling
provisions, rather than for a particular age of child (e.g., infants up
to the age of one year). Thus, it does not appear the situation
addressed by CU raises a safety problem.
Further, assuming there are restraints that are recommended for
infants up to the age of one year, the agency does not
[[Page 30830]]
entirely agree with CU. The agency agrees with the implication, raised
in CU's petition, that in an ideal world, dummies would exist
representing every size of child from birth to 50 lb, in each age and
weight group. If such dummies existed, a most complete evaluation of a
child restraint might be (barring cost implications) to test all child
restraints with all dummies representative of any child for whom the
restraint is recommended. However, such dummies do not exist. While a
12-month-old dummy may have potential advantages over the nine-month-
old in testing rear-facing restraints, the 12-month-old dummy is not
available at this time. Rulemaking requiring rear-facing restraints to
be tested with the nine-month-old should not be suspended pending
assessment of the suitability and availability of the 12-month-old
child dummy as a test device.
NHTSA also does not agree that a dummy representing a 95th-
percentile one-year-old male child is preferable over one representing
a 50th-percentile child. The latter dummy is more representative of the
children for whom the restraint is recommended, and thus gives a better
representation of the overall performance of the restraint. Also, it
appears that CU is making its determination of ``adequate protection''
only in terms of whether a restraint is capable of maintaining its
structural integrity in the dynamic test. The agency agrees that the
structural integrity of a restraint is better evaluated using a larger
dummy than a smaller one. However, the ability of the restraint to
contain an occupant is more effectively evaluated using a smaller dummy
than a larger one. Using a dummy representing a 95th-percentile dummy
could thus result in trade-offs between measuring the structural
integrity of a restraint and the potential for ejection.
c. Weight and Height Should Match
CU said that it observed inconsistencies in the height and weight
limits specified on the labels for many safety seats. In particular, CU
believed manufacturers are not ensuring that their height
recommendations match the weight recommendations. CU said it noticed
that some infant seats are labeled for use by infants weighing up to 20
lb and up to 26 inches in height. CU states:
Twenty pounds is the 50th-percentile weight of a nine-month-old,
while 26 inches is the 50th-percentile height of a six-month-old.
Since children may exceed the height limit in this example before
they reach the weight limit, parents who rely on the weight limit
may use the product in a manner contrary to labeled instructions.
The petitioner suggested that NHTSA require manufacturers to make
recommendations for maximum height and weight that match both the
height and weight of test dummies used in the tests on which the seat's
certification was based.
To the extent that CU is requesting that manufacturers should be
prohibited from labeling their seats for use by children with weights
exceeding the weight of the test dummy used to test the seat, this
issue was addressed under section a, above, and will not be repeated
here. To the extent that the petitioner requests that NHTSA adopt a
provision in Standard 213 that requires the height and weight
recommendations to ``match,'' NHTSA denies this request. The agency has
not observed the labeling practices reported by CU. To the extent such
practices have occurred, NHTSA does not believe they are widespread, or
in need of the requirement suggested by CU. However, the agency will
continue to monitor labeling practices.
d. Test Principles
The effect of specifying the additional test dummies in Standard
213 compliance testing is to require child restraints to meet the
standard's performance criteria when restraining the new dummies. CU,
Advocates and Cosco had questions about the agency's method of testing
child restraints to the standard's dynamic performance requirements.
1. Speed Close to 30 MPH
CU raised an issue about the test speeds used to test add-on child
restraints. Under Standard 213, add-on systems are compliance tested in
sled tests that simulate frontal barrier impacts. Standard 213
specifies that the sled test for add-on child restraint systems is at a
velocity change of 48 km/h (30 mph) ``with the acceleration of the test
platform entirely within the curve shown in Figure 2'' of the standard.
S6.1.1(b)(1).4 In its petition for reconsideration, CU said that,
based on its review of NHTSA compliance reports, NHTSA routinely
conducts the compliance test at speeds in a range from 27.6 mph to 28.7
mph. * * * (NHTSA's) compliance procedures, as spelled out in its
Laboratory Procedure For Child Restraint System Testing (April 1981),
permit impact speeds ranging from 27 mph to 30 mph. Hence, the current
compliance program is significantly less demanding than the standard it
professes to enforce. * * * Throughout our testing, we specified 30 mph
as the target impact speed, and the lab was able to control the speed
of the test sleds within .3 m.p.h. Based on our experience,
therefore, we recommend that the certification and compliance
procedures specify a test speed ranging from 29.7 to 30.3 mph.
---------------------------------------------------------------------------
\4\ The 48 km/h test is specified for ``Test Configuration I,''
which all applies to all child restraints. ``Test Configuration II''
is an additional 32 km/h (20 mph) misuse test for certain
restraints.
---------------------------------------------------------------------------
CU is correct that NHTSA's Laboratory Procedure for Standard 213
compliance tests specifies that add-on restraints are tested at a
velocity change of 27 to 30 mph. Test speeds are permitted to fall
below 30 mph primarily because of the limit, also specified in Standard
213 as a dynamic test condition, that ``the acceleration of the test
platform (must be) entirely within the curve shown in Figure 2'' of the
standard. The velocity at which the sled test is conducted controls
whether the acceleration of the sled is within the curve depicted in
Figure 2. In order to ensure that no portion of the acceleration curve
is outside of the curve shown in Figure 2, NHTSA must adjust the
velocity downward. Similarly, the test speed is carefully monitored,
and adjusted slightly downward, to ensure that 30 mph is not exceeded.
Contrary to CU's view, the agency believes it must ``err'' on the side
of slightly reducing the test speeds to preserve the integrity of the
compliance test. The agency must ensure that its compliance test data
can withstand legal challenge. Exceeding the test conditions subjects
the agency to claims that NHTSA conducted a more demanding test than
that required in the standard. Thus, exceeding the test conditions at
best would complicate enforcement efforts; worse, it could undermine
the validity of the test. For these reasons, NHTSA concludes that,
given the conditions in Standard 213 for the dynamic sled test, its
test procedures should not be changed at this time.
NHTSA is, however, undertaking an effort to evaluate Standard 213's
test procedures and conditions, and will consider whether the provision
limiting the acceleration of the test platform to the curve of Figure 2
should be revised. Such an evaluation could result in an upward
adjustment of the test velocities specified in the laboratory
procedures. In the meantime, NHTSA stresses that Standard 213 specifies
a velocity change of 30 mph that manufacturers should achieve, at a
minimum, when designing and manufacturing child restraint systems.
[[Page 30831]]
2. Representative Seat Assembly
NHTSA's compliance procedures specify that the test device for
testing add-on child restraints is a ``standard seat assembly
consisting of a simulated vehicle bench seat.'' (S6.1.1(a)(1), July
1995 rule.) CU stated that the seat assembly is of a design
representative of those used in vehicles of the early 1970's, and is
not representative of current vehicle seat designs. While acknowledging
``We (CU) have no data demonstrating what differences in test results
or actual use performance this difference might have,'' CU believed the
assembly should be updated.
NHTSA agrees that the standard seat assembly should be
representative of current vehicle seats, particularly if features of
the assembly significantly affect the outcome of compliance tests
conducted on it. Modifying the standard seat assembly could also be
desirable for other reasons, such as possible cost reductions due to
not having to change the flexible pin in the seat hinges of the
standard seat assembly after each test. The agency is reviewing these
issues in an on-going feasibility study at NHTSA's Vehicle Research and
Test Center. The results will help NHTSA decide whether it needs to
upgrade the seat assembly.
3. Worst Case Testing
Advocates objected to the agency's discussion of ``worst case''
testing in the final rule (60 FR at 35133). The discussion responded to
some commenters who generally believed that adopting the new dummies
would result in unnecessary cost increases. They argued that testing a
rear-facing seat with the infant dummy, and a forward-facing restraint
(other than a booster seat) with the nine-month-old dummy would serve
no useful purpose since the commenters believed there is no question
that the restraints will pass the Standard 213 performance criteria
using the dummies. The agency disagreed that no useful purpose is
served by subjecting child restraints to tests with the array of
dummies. NHTSA stated that, when child restraints are tested with only
one dummy to represent a wide range of children, there is a risk that a
restraint could be designed to perform adequately using the dummy, but
could perform inadequately in restraining children at the extremes of
the recommended weight ranges.
The agency further stated:
It should be noted that this rule does not require manufacturers to
test with all the specified dummies. A manufacturer may believe that
testing with only the largest of a set of specified dummies
represents ``worst case'' testing, and that there is no need to test
its restraints with the smaller dummies. That is, a manufacturer may
determine that a child restraint meeting Standard 213's performance
criteria when tested under worst case conditions will likely meet
those criteria when tested under less severe conditions. A
manufacturer that tests its child restraint for certification
purposes could limit its testing cost by deciding to test only a
worst case scenario, i.e., testing under the most austere or
unfavorable conditions and circumstances specified in the
standard.5 In the event that the agency found an apparent
noncompliance, such as an ejection, using one of the smaller
dummies, the manufacturer would have to demonstrate that it was
reasonable for it to conclude that testing with the large dummy
represented the worst case scenario. Id.
---------------------------------------------------------------------------
\5\ Relying on worst case testing as a basis for a
manufacturer's certification is commonplace among manufacturers. For
example, Standard 208, ``Occupant Crash Protection,'' requires
injury criteria to be met with the test vehicle traveling forward at
any speed ``up to and including 30 mph'' into a fixed barrier ``that
is perpendicular to the line of travel of the vehicle, or at any
angle up to 30 degrees in either direction from the perpendicular''
(S5.1). Manufacturers typically test a vehicle at 30 mph into a
perpendicular barrier since that is the worst case test. The
manufacturers believe that if the vehicle passes that worst case
test, it is reasonable to conclude it will pass less severe tests
(e.g., at lower speeds into angled barriers). (Footnote 3 in text.)
Advocates believed that this discussion meant that ``NHTSA has
decided to permit manufacturers to avoid testing child restraints with
all applicable test dummies.'' Advocates requested that NHTSA ``rescind
permitting certification testing based on 'worst case' tests conducted
only with the largest test dummy for the specified weight range.''
NHTSA believes this comment reflects a misunderstanding of the
compliance test procedures set forth in the FMVSSs. The July 1995 rule,
which adopted the new test dummies into Standard 213, enabled NHTSA to
test child restraints using the new dummies. As a result of the rule,
manufacturers must ensure that their restraints will meet the
requirements of Standard 213 when tested in the manner specified in the
standard. The rule did not require manufacturers to use the new test
dummies. None of the safety standards require manufacturers to test in
a particular manner; manufacturers are not required to conduct any
testing whatsoever before certifying that their products comply with
Standard 213. If manufacturers choose to conduct testing in accordance
with the compliance test procedures, they are free to simulate any or
all parts of the test procedures.
Thus, NHTSA's statements about worst case testing did not affect
any responsibilities of manufacturers to test and certify their
products. It did not ``permit'' manufacturers to certify their
restraints using only the heavier of two test dummies; there never was
a requirement that both dummies be used. Instead, the statement bore on
whether the rule necessarily increased testing costs for manufacturers.
NHTSA sought to explain that a manufacturer may choose to use only one
of two test dummies to test its restraint, provided that the
manufacturer exercises ``due care'' in making its certifications, as
provided in section 30115 of 49 U.S.C. Chapter 301 (formerly the
National Traffic and Motor Vehicle Safety Act). Whether a manufacturer
has exercised due care in using only one of two dummies is an issue
that bears on NHTSA's consideration of the appropriateness of a civil
penalty for a noncompliance. A manufacturer that can show that it
exercised due care in making its certification would still be subject
to the statutory obligation to recall and remedy its restraints that do
not conform to the requirements of Standard 213. This same obligation
would apply even if the manufacturer had conducted full compliance
testing and used all the dummies specified for a given mass/weight
range.
4. Testing ``New'' Restraints
Cosco objected to an amendment concerning the condition of the
child restraints that NHTSA will obtain for compliance testing. At one
time, Standard 213 specified in its test procedure that the compliance
test is conducted by, first, attaching a ``new'' child restraint on the
standard seat assembly used to test child restraints. In amending this
provision, NHTSA removed the reference to a ``new'' seat, and revised
it to simply describe the child restraint test specimen as ``the''
restraint. Cosco was alarmed by this change, believing that it allowed
NHTSA to conduct compliance testing with ``used seats, in any condition
of wear, possibly with missing or damaged components,'' or with seats
that have been in accidents.
The amendment that is the cause of Cosco's concern (removal of
``new'') was made in a final rule that was published in 1994. 59 FR
37167, July 21, 1994. Amendments made by that rule cannot be
reconsidered at this time through petitions for reconsideration.
However, NHTSA will address Cosco's concern, because it reflects a
fundamental misunderstanding of NHTSA's authority.
NHTSA can only test new products for compliance with the FMVSSs.
The agency lacks the authority to conduct compliance tests on any used,
[[Page 30832]]
previously-owned product, including a child seat, because under section
30112 of 49 U.S.C. Chapter 301, manufacturers are not responsible for
ensuring the continued compliance of their products ``after the first
purchase * * * in good faith other than for resale.'' Since NHTSA
cannot require a used child seat to meet Standard 213, the agency does
not test them for compliance. Thus, the word ``new'' was removed as
unnecessary.
e. Allowable Mass for Belt-Positioning Boosters
In response to Gerry Baby Products, this rule amends the
requirement of S5.4.3.2 that limits the force that may be imposed on a
child by a belt used to attach a child seat to a vehicle. This rule
prohibits any loads except those resulting from a child seat with a
mass less than 4.4 kg. The current exclusion is for child seats with a
mass less than 4 kg.
Prior to the July 1995 amendment, S5.4.3.2 specified that for add-
on child restraints (another provision specifies comparable
requirements for built-in restraints),
Each belt that is part of the child restraint system and that is
designed to restrain a child using the system and to attach the
system to the vehicle shall, when tested in accordance with [the
dynamic test of] S6.1, impose no loads on the child that result from
the mass of the system, or * * * (from) the mass of the seat back of
the standard seat assembly * * *.
The NPRM preceding the July rule (March 1994) proposed to expand
S5.4.3.2 to also apply it to each Type I and the lap portion of a Type
II vehicle belt that is used to attach the child seat to the vehicle.
These belts, which anchor the child seat to the vehicle, function to
absorb the forces of the crash into the frame of the vehicle. NHTSA
proposed that these belts not be permitted to transfer those crash
forces to the occupant child.
However, comments to the NPRM indicated that the proposed amendment
of S5.4.3.2 would prohibit belt-positioning seats with a back, since
the mass of those systems contributes to the loading of the vehicle
seat belt on the restrained child during a crash. The agency did not
intend that effect, nor did NHTSA believe that there is a sufficient
safety problem to warrant prohibiting current designs of belt-
positioning seats with backs. Yet, at the same time, NHTSA believed
that limits should be established to keep in check the potential for
injury due to overloading a child occupant, such as from a massive
child seat back.
The agency adopted an approach suggested by some commenters.
Century and the University of Michigan Child Passenger Program (UM-CPP)
suggested retaining the proposal but excluding from the requirement any
restraint with a mass of less than 4 kg (8.8 lb). These commenters
indicated the 4 kg limit is consistent with requirements in Europe and
the current U.S. market. NHTSA agreed to this approach, since there
have been no data showing that a child seat with a mass less than 4 kg
imposes harmful loads on a child.
Gerry petitioned for reconsideration of the 4 kg limit. Gerry
pointed out that the agency's belief that all the belt-positioning
seats in the U.S. market have a mass less than 4 kg was incorrect.
Gerry said that its Model 631 and 632 BeltRight and Evolution Booster
seats were shipped in March and April 1995, respectively. According to
the petitioner, these seats have a mass of up to 4.4 kg. In an October
13, 1995 addendum to its petition for reconsideration, Gerry stated
that it has received no report from the field ``indicating directly or
indirectly that any problems or injuries were associated with loads
being placed on the child by the booster seats.''
In view of Gerry's submission, NHTSA's decision to limit the
exclusion to 4 kg was based on erroneous information. NHTSA was not
aware of Gerry's Model 631 and 632 booster seats, and did not realize
that there were belt-positioning boosters with a mass greater than 4
kg. Gerry stated that its field experience indicates that its booster
seats, with a mass up to 4.4 kg, do not appear to be imposing unsafe
loads on the child occupant. Based on the above, the 4 kg limit
excluding seats from S5.4.3.2 is increased to 4.4 kg.
f. Knee Excursion
This document denies the request of the AAMA to increase the knee
excursion limit of 305 mm for built-in restraints (S5.1.3.1 (b)), or in
the alternative, remove the limit until such time as another knee
excursion limit can be developed.
AAMA's request relates to an amendment NHTSA adopted to clarify
Standard 213's knee excursion requirements. Prior to the amendment, the
excursion requirement for built-in child restraints (S5.1.3.1(b))
prohibited the dummy's knee pivot from passing through a plane that is
a specified distance ``forward of the hinge point of the specific
vehicle seat into which the system is built.'' Chrysler suggested
(docket 74-09-N24-001) that NHTSA amend the reference point because the
``hinge point of the specific vehicle seat'' cannot be readily
determined for most vehicle seats. This is because most vehicle seats
into which a built-in child restraint is fabricated do not have hinges
for their backs, or are configured so that the hinge point is not
easily seen during dynamic testing.
NHTSA proposed to address this concern by referencing the H-point
on the seat. The H-point is located at approximately the same location
as the ``hinge point'' on a vehicle seat. The H-point of a specific
vehicle seating position is determined by using equipment and
procedures specified in the Society of Automotive Engineers (SAE)
recommended practice SAE J826 (May 1987), ``Devices for Use in Defining
and Measuring Vehicle Seating Accommodation.'' The H-point is
identified either during the seat's design by means of a two-
dimensional drafting template, or after the vehicle is completely
manufactured, by means of a three-dimensional device. However, comments
on this proposal expressed concern that using the H-point as a
reference still results in ambiguity in the test procedure, since the
H-point varies from vehicle to vehicle, and is not easily seen during
dynamic testing.
Commenters suggested that, instead of using the H-point, the agency
should adopt Transport Canada's approach to measuring knee excursion
for built-in restraints. That approach limits the forward knee movement
to a maximum of 305 mm (12 inches) at any time during the test from the
initial knee position of the dummy.
NHTSA agreed to base the knee excursion limit for built-in seats on
the approach of Transport Canada. Thus, the agency adopted a
requirement that limited maximum knee translation in terms of the
initial position of the knee itself. Knee excursion is measured using a
point on the ``knee pivot'' that is easily defined on the test dummy.
The knee pivot point is easily observed during the dynamic test. The
rule limited the longitudinal horizontal movement of the knee pivot
point, from the initial position of the knee pivot, to a maximum of 305
mm (12 inches). The 12 inch value is equivalent to the level of
performance currently required by Standard 213 (i.e., 914 mm (36
inches) measured from the hinge point of the seat assembly).
AAMA petitioned for an increase in the allowance of 305 mm, when
testing a built-in booster seat with the 6-year-old dummy. AAMA
believed Transport Canada's knee excursion limits, on which the adopted
provisions were based, apply only to built-in conventional child seats,
and not to ``booster seats which would be tested
[[Page 30833]]
with the six-year-old dummy.'' AAMA believed ``an allowance greater
than 305 mm would appear to be required for the heavier six-year-old
dummy.''
NHTSA is denying AAMA's request because the requested change does
not appear warranted. The petitioner submitted no information to
support its request. For built-in restraints, knee excursion is
measured relative to the knee pivot on the test dummy. Thus, the 6-
year-old dummy's knees are allowed to move horizontally the same
distance, relative to the dummy, as the three-year-old dummy. Also,
when measured from a point fixed on the built-in child seat in which
the dummy is seated, the 6-year-old dummy is already permitted two
additional inches of forward excursion than the limit for the three-
year-old dummy. This is because the 6-year-old dummy's upper legs are
two inches longer than those of the three-year-old dummy. AAMA has not
demonstrated a need to increase the knee excursion limit for child
booster seats tested with the 6-year-old dummy.
VI. Corrections
a. Metrication
Cosco pointed out several errors or omissions in the rule. One
error concerned metrication, with regard to Standard 213's limits on
head excursion (S5.1.3.1(a)). Prior to the amendment, Standard 213
specified a head excursion limit of 32 inches, as measured from a point
on the standard seat assembly. The rule converted this limit to 810 mm.
Cosco said that in converting to the metric system, the rule changed
the head excursion requirement for add-on restraints from 32 inches to
31.89 inches, and thus made the requirement more stringent. In answer
to this comment, NHTSA did not intend to reduce allowable head
excursion. Thus, S5.1.3.1(a) will be corrected to specify a head
excursion limit of 813 mm. Mr. Louis Sokol suggested editorial
corrections to various references to centigrade. NHTSA has made these
corrections to S6.1.1(d), S9.2 and S9.3.
b. Labeling
Cosco petitioned for NHTSA to reconsider various aspects of the
labeling requirements adopted by the rule. The rule required
manufacturers to use both English and metric units in their child seat
labels, pertaining to the size of child for whom the restraint is
recommended. Cosco suggested deleting the word ``mass'' before the
metric unit, believing that this is unnecessary and will confuse
consumers. NHTSA agrees the word ``mass'' is not necessary and will not
require its use, although manufacturers may use the word if they wish.
Mr. Sokol was concerned that the rule did not specify whether
manufacturers should specify their height recommendations in
millimeters or centimeters, and suggested centimeters be used as more
``user friendly.'' NHTSA is not specifying which unit should be used,
but is allowing manufacturers to use any metric unit they feel is
appropriate for the recommended height limits for their restraints.
Cosco also suggested that the references to height on the child seat
label include ``between'' and ``less,'' as is currently required by
Standard 213. This rule retains those words.
c. Dummy Positioning
Another error that Cosco identified relates to the provisions for
positioning the test dummies in a child seat in preparation for dynamic
testing. Cosco said that, unlike current specifications that provide
for the lowering of the 3-year-old dummy's arms and legs, the rule did
not specify a similar provision for positioning the dummies used to
test forward-facing child restraints. This rule corrects the oversight
by adding a provision that provides for the rotating downwards of the
dummies' arms and legs, when testing forward-facing child restraint
systems. S10.2.1(c)(1)(ii), S10.2.2(d). This rule also corrects the
procedure for positioning the test dummies in testing rear-facing child
restraints (S10.2.1(c)(2) in the July 1995 rule). Paragraph
S10.2.1(c)(2) should specify rotating just the dummy's arms, and not
the legs. In addition, this rule clarifies the description of the
sequence of events preparing for the dynamic test (S6.1.2).
d. Dummy Selection
In both the preamble for the final rule and the June 1995 Final
Regulatory Evaluation for the rule (entry number 001 in docket 74-09-
N42), NHTSA indicated that if the range of children recommended by a
child restraint's manufacturer includes any children with a mass more
than 18 kg (40 lb), or a height of more than 1100 mm, the 6-year-old
dummy will be used in the compliance testing of that restraint. (60 FR
at 35133, 35134) However, the regulatory text implementing these
provisions (S7.1(d)) inadvertently specified that the 3-year-old (33
lb) dummy will also be used to test these restraints. This error in
S7.1(d) is corrected today.
VII. Compliance Date
The compliance date for this rule (the date on which manufacturers
must begin complying with the amendments) is September 1, 1996. This
date is the same compliance date as for the July 1995 final rule which
today's rule amends. It is in the public interest for the compliance
dates to be the same because most of the amendments made by today's
rule correct or clarify provisions of the July 1995 rule. The only
substantive changes made by today's rule are to amend S5.4.3.2 to
permit manufacturers to produce belt-positioning seats with a mass of
up to 4.4 kg (rather than limit the mass to 4 kg), and to provide them
the optional use of the word ``mass'' in labeling child seats. This
rule does not impose new requirements on manufacturers.
NHTSA is providing manufacturers the option of voluntarily
complying with the amendments made by today's rule before September 1,
1996. Manufacturers may comply with today's amendments beginning 30
days after the date of publication of this rule without violating any
provision in Standard 213 or 49 U.S.C. 30101 et seq. This accords with
an earlier decision by NHTSA to permit manufacturers the option of
voluntarily complying with the requirements adopted by the July 1995
final rule before the September 1 mandatory compliance date. Since
January 3, 1996, manufacturers could choose to voluntarily meet the
requirements of the July 1995 rule in lieu of the current requirements
in Standard 213.
FR Doc. 96-15456 Federal Motor Vehicle Safety Standards; Child Restraint Systems
(See NHTSA's clarification of compliance date, 61 FR
4938, February 9, 1996.)
VII. Rulemaking Analyses and Notices
a. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This rulemaking document was not reviewed under E.O. 12866,
``Regulatory Planning and Review.'' The agency has considered the
impacts of this rulemaking action and has determined that this action
is not ``significant'' within the meaning of the Department of
Transportation's regulatory policies and procedures. NHTSA has further
determined that the effects of this rulemaking are so minimal that
preparation of a full preliminary regulatory evaluation is not
warranted. The agency believes that manufacturers will be minimally
affected by this rulemaking because the main substantive change it
makes to the July 1995 final rule is to amend S5.4.3.2. That change, in
effect, permits belt-positioning seats to have a mass of up to 4.4 kg,
rather than limit the mass to 4 kg. The agency believes the effect of
this is minimal because there appears to be only one manufacturer,
Gerry Baby
[[Page 30834]]
Products, that is affected by this change. Further, the amendment will
affect just one product made by Gerry. Gerry manufactures different
types of child restraint systems, only one of which is the belt-
positioning booster. The agency thus concludes that this rule will have
a minimal effect on the manufacture of child restraints generally,
including Gerry's restraints.
b. Regulatory Flexibility Act
NHTSA has considered the effects of this rulemaking action under
the Regulatory Flexibility Act. I hereby certify that it will not have
a significant economic impact on a substantial number of small
entities. The agency knows of 13 manufacturers of child restraints,
seven of which NHTSA considers to be small businesses (including
Kolcraft, which with an estimated 500 employees, is on the borderline
of being a small business). This number does not constitute a
substantial number of small entities. Regardless of this number, NHTSA
does not believe this rule will have a significant impact on small
businesses, since the only substantive amendment made by this rule is
to permit belt-positioning seats to have a mass of up to 4.4 kg, rather
than limit the mass to 4 kg. The effect of this is minimal because to
the agency's knowledge, there is only one manufacturer that is affected
by this change. Further, the amendment will affect just one product
made by that manufacturer. Since the amendment is permissive in nature,
there are no costs associated with it. This rule clarifies labeling
requirements and slightly revises the wording of the labels.
Manufacturers will incur some costs in changing the labels on their
child seats, but because the wording changes are minimal, those costs
should be negligible. Accordingly, the agency has not prepared a
regulatory flexibility analysis.
c. Executive Order 12612 (Federalism)
This rulemaking action has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612, and the
agency has determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
d. National Environmental Policy Act
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of this action will not have any significant impact on
the quality of the human environment.
e. Paperwork Reduction Act
This final rule includes new ``collections of information'' as that
term is defined by the Office of Management and Budget (OMB). For
Standard 213, OMB has previously approved a collection of information
(OMB Control Number 2127-0511 ``Child Restraint Systems--49 CFR
571.213'') for use through August 31, 1996. NHTSA is preparing a
request for an extension of this collection of information approval for
an additional three years, and will include in the request, an estimate
of the new collection of information burden resulting from this final
rule. In the near future, NHTSA expects to issue a Federal Register
document asking for public comment on the request for extension of OMB
Control Number 2127-0511.
Pursuant to the Paperwork Reduction Act of 1995 and OMB's
regulations at 5 CFR section 1320.5(b)(2), NHTSA informs the potential
persons who are to respond to the collection of information that such
persons are not required to respond to the collection of information
unless it displays a currently valid OMB control number. The currently
valid OMB control number is displayed above and in NHTSA's regulations
at 49 CFR Part 509, OMB Control Numbers for Information Collection
Requirements.
f. Executive Order 12778 (Civil Justice Reform)
This rule does not have any retroactive effect. Under section 49
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a state may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the state requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as
set forth below.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.213 is amended by--
a. revising S5.1.3.1(a), the introductory paragraph of S5.4.3.2,
S5.5.2(f), S5.5.5(f), S6.1.1(d), S6.1.2(b) through (f), removing
S6.1.2(g), revising S7.1(d), S9.2, S9.3, S10.2.1(c)(1), S10.2.1(c)(2),
b. adding S10.2.2(d), to read as follows:
Sec. 571.213 Standard No. 213, Child Restraint Systems.
* * * * *
S5.1.3.1 * * *
(a) In the case of an add-on child restraint system, no portion of
the test dummy's head shall pass through a vertical, transverse plane
that is 813 mm forward of point Z on the standard seat assembly,
measured along the center SORL (as illustrated in figure 1B), and
neither knee pivot point shall pass through a vertical, transverse
plane that is 915 mm forward of point Z on the standard seat assembly,
measured along the center SORL.
* * * * *
S5.4.3.2 Direct restraint. Except for a child restraint system
whose mass is less than 4.4 kg, each belt that is part of a child
restraint system and that is designed to restrain a child using the
system and to attach the system to the vehicle, and each Type I and lap
portion of a Type II vehicle belt that is used to attach the system to
the vehicle shall, when tested in accordance with S6.1, impose no loads
on the child that result from the mass of the system, or
* * * * *
S5.5.2 * * *
(f) One of the following statements, inserting the manufacturer's
recommendations for the maximum mass and height of children who can
safely occupy the system, except that booster seats shall not be
recommended for children whose masses are less than 13.6 kg:
(1) This infant restraint is designed for use by children who weigh
____________ pounds (____________ kg) or less and whose height is
(insert values in English and metric units; use of word ``mass'' in
label is optional) or less; or
(2) This child restraint is designed for use only by children who
weigh between ____________ and ____________ pounds (insert appropriate
metric
[[Page 30835]]
values; use of word ``mass'' is optional) and whose height is (insert
appropriate values in English and metric units) or less and who are
capable of sitting upright alone; or
(3) This child restraint is designed for use only by children who
weigh between ____________ and ____________ pounds (insert appropriate
metric values; use of word ``mass'' is optional) and whose height is
between ____________ and ____________ inches (insert appropriate values
in English and metric units).
* * * * *
S5.5.5 * * *
(f) One of the following statements, inserting the manufacturer's
recommendations for the maximum mass and height of children who can
safely occupy the system, except that booster seats shall not be
recommended for children whose masses are less than 13.6 kg:
(1) This infant restraint is designed for use by children who weigh
____________ pounds (____________ kg) or less and whose height is
(insert values in English and metric units; use of word ``mass'' in
label is optional); or
(2) This child restraint is designed for use only by children who
weigh between ____________ and____________ pounds (insert appropriate
metric values; use of word ``mass'' is optional) and whose height is
(insert appropriate values in English and metric units) or less and who
are capable of sitting upright alone; or
(3) This child restraint is designed for use only by children who
weigh between ____________ and ____________ pounds (insert appropriate
metric values; use of word ``mass'' is optional) and whose height is
between ____________ and ____________ inches (insert appropriate values
in English and metric units).
* * * * *
S6.1.1 * * *
(d) Performance tests under S6.1 are conducted at any ambient
temperature from 19 deg.C to 26 deg.C and at any relative humidity
from 10 percent to 70 percent.
* * * * *
S6.1.2 * * *
(b) Select any dummy specified in S7 for testing systems for use by
children of the heights and weights for which the system is recommended
in accordance with S5.5. The dummy is assembled, clothed and prepared
as specified in S7 and S9 and Part 572 of this chapter, as appropriate.
(c) Place the dummy in the child restraint. Position it, and attach
the child restraint belts, if appropriate, as specified in S10.
(d) Belt adjustment.
(1) Add-on systems other than belt-positioning seats.
(i) If appropriate, shoulder and pelvic belts that directly
restrain the dummy shall be adjusted as follows: Tighten the belts
until a 9 N force applied (as illustrated in figure 5) to the webbing
at the top of each dummy shoulder and to the pelvic webbing 50 mm on
either side of the torso midsagittal plane pulls the webbing 7 mm from
the dummy.
(ii) All Type I belt systems used to attach an add-on child
restraint system to the standard seat assembly, and any provided
additional anchorage belt (tether), are tightened to a tension of not
less than 53.5 N and not more than 67 N, as measured by a load cell
used on the webbing portion of the belt.
(2) Add-on belt-positioning seats.
(i) The lap portion of Type II belt systems used to attach the
child restraint to the standard seat assembly is tightened to a tension
of not less than 53.5 N and not more than 67 N, as measured by a load
cell used on the webbing portion of the belt.
(ii) The shoulder portion of Type II belt systems used to restrain
the dummy is tightened to a tension of not less than 9 N and not more
than 18 N, as measured by a load cell used on the webbing portion of
the belt.
(3) Built-in child restraint systems.
(i) The lap portion of Type II belt systems used to secure a dummy
to the built-in child restraint system is tightened to a tension of not
less than 53.5 N and not more than 67 N, as measured by a load cell
used on the webbing portion of the belt.
(ii) The shoulder portion of Type II belt systems used to secure a
child is tightened to a tension of not less than 9 N and not more than
18 N, as measured by a load cell used on the webbing portion of the
belt.
(iii) If provided, and if appropriate to attach the child restraint
belts under S10, shoulder (other than the shoulder portion of a Type II
vehicle belt system) and pelvic belts that directly restrain the dummy
shall be adjusted as follows: Tighten the belts until a 9 N force
applied (as illustrated in figure 5) to the webbing at the top of each
dummy shoulder and to the pelvic webbing 50 mm on either side of the
torso midsagittal plane pulls the webbing 7 mm from the dummy.
(e) Accelerate the test platform to simulate frontal impact in
accordance with Test Configuration I or II, as appropriate.
(f) Determine conformance with the requirements in S5.1.
S7.1 * * *
(d) A child restraint that is recommended by its manufacturer in
accordance with S5.5 for use either by children in a specified mass
range that includes any children having a mass greater than 18 kg, or
by children in a specified height range that includes any children
whose height is greater than 1100 mm, is tested with a 6-year-old child
dummy conforming to part 572 subpart I.
* * * * *
S9.2 Preparing clothing. Clothing other than the shoes is
machined-washed in 71 deg.C to 82 deg.C and machine-dried at 49
deg.C to 60 deg.C for 30 minutes.
S9.3 Preparing dummies. Before being used in testing under this
standard, dummies must be conditioned at any ambient temperature from
19 deg.C to 25.5 deg.C and at any relative humidity from 10 percent
to 70 percent for at least 4 hours.
S10.2.1 * * *
(c)(1)(i) When testing forward-facing child restraint systems,
extend the arms of the 9-month-old test dummy as far as possible in the
upward vertical direction. Extend the legs of the 9-month-old dummy as
far as possible in the forward horizontal direction, with the dummy
feet perpendicular to the centerline of the lower legs. Using a flat
square surface with an area of 2,580 square mm, apply a force of 178 N,
perpendicular to:
(A) The plane of the back of the standard seat assembly, in the
case of an add-on system, or
(B) The back of the vehicle seat in the specific vehicle shell or
the specific vehicle, in the case of a built-in system, first against
the dummy crotch and then at the dummy thorax in the midsagittal plane
of the dummy. For a child restraint system with a fixed or movable
surface described in S5.2.2.2, which is being tested under the
conditions of test configuration II, do not attach any of the child
restraint belts unless they are an integral part of the fixed or
movable surface. For all other child restraint systems and for a child
restraint system with a fixed or movable surface which is being tested
under the conditions of test configuration I, attach all appropriate
child restraint belts and tighten them as specified in S6.1.2. Attach
all appropriate vehicle belts and tighten them as specified in S6.1.2.
Position each movable surface in accordance with the instructions that
the manufacturer provided under S5.6.1 or S5.6.2.
(ii) After the steps specified in paragraph (c)(1)(i) of this
section, rotate each dummy limb downwards in the plane parallel to the
dummy's
[[Page 30836]]
midsagittal plane until the limb contacts a surface of the child
restraint system or the standard seat assembly, in the case of an add-
on system, or the specific vehicle shell or specific vehicle, in the
case of a built-in system, as appropriate. Position the limbs, if
necessary, so that limb placement does not inhibit torso or head
movement in tests conducted under S6.
(2) When testing rear-facing child restraints, position the newborn
and 9-month-old dummy arms vertically upwards and then rotate each arm
downward toward the dummy's lower body until the arm contacts a surface
of the child restraint system or the standard seat assembly in the case
of an add-on child restraint system, or the specific vehicle shell or
the specific vehicle, in the case of a built-in child restraint system.
Ensure that no arm is restrained from movement in other than the
downward direction, by any part of the system or the belts used to
anchor the system to the standard seat assembly, the specific shell, or
the specific vehicle.
S10.2.2 * * *
(d) After the steps specified in paragraph (c) of this section,
rotate each dummy limb downwards in the plane parallel to the dummy's
midsagittal plane until the limb contacts a surface of the child
restraint system or the standard seat assembly, in the case of an add-
on system, or the specific vehicle shell or specific vehicle, in the
case of a built-in system, as appropriate. Position the limbs, if
necessary, so that limb placement does not inhibit torso or head
movement in tests conducted under S6.
Issued on June 13, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-15456 Filed 6-17-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-15445 Hazardous Air Pollutant List; Modification
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30816-30823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15445]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5520-5]
RIN 2060-AF33
Hazardous Air Pollutant List; Modification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is amending the list of hazardous air pollutants in
Clean Air Act Section 112(b)(1) by removing the compound caprolactam
(CAS No. 105-60-2). This rulemaking was initiated in response to a
petition to delete the substance caprolactam which was filed by
AlliedSignal, Inc., BASF Corporation, and DSM Chemicals North
[[Page 30817]]
America under section 112(b)(3) of the Act. Based on the available
information concerning the potential hazards of and projected exposures
to caprolactam, EPA has made a determination pursuant to Clean Air Act
Section 112(b)(3)(C) that there are adequate data on the health and
environmental effects of caprolactam to determine that emissions,
ambient concentrations, bioaccumulation, or deposition of the compound
may not be reasonably anticipated to cause adverse human health or
environmental effects. Although EPA acknowledges that there are
scientific uncertainties in its analysis of the potential effects of
ambient caprolactam exposures, EPA does not regard any of these
uncertainties to be sufficiently material to preclude this
determination.
DATES: This final rule will be effective on June 18, 1996. Because this
final rule is based on a determination of nationwide scope and effect,
any petition for judicial review of this rule may be filed only in the
United States Court of Appeals for the District of Columbia and must be
filed no later than August 19, 1996.
ADDRESSES: The administrative record supporting this final rule is
collected in Docket Number A-94-33. All documents in that docket,
including a complete copy of the original petition, all comments on the
proposed rule, and a transcript of the public hearing, may be examined
between 8:00 A.M. and 4:30 P.M. on business days at the EPA Central
Docket Section, Waterside Mall, 401 M St., SW, Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: For specific information concerning
this final rule, contact Dr. Nancy B. Pate, Office of Air Quality
Planning and Standards (MD-12), U.S. EPA, Research Triangle Park, NC
27711, telephone (919) 541-5347.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. The Delisting Process
Section 112 of the Clean Air Act contains a mandate for EPA to
evaluate and control emissions of hazardous air pollutants. Section
112(b)(1) includes an initial list of hazardous air pollutants that is
composed of specific chemical compounds and compound classes to be used
to identify source categories for which the EPA will subsequently
promulgate emissions standards.
Clean Air Act Section 112(b)(2) requires EPA to make periodic
revisions to the initial list of hazardous air pollutants set forth in
Section 112(b)(1) and outlines criteria to be applied in deciding
whether to add or delete particular substances. Section 112(b)(2)
identifies pollutants that should be listed as:
* * * pollutants which present, or may present, through inhalation
or other routes of exposure, a threat of adverse human health
effects (including, but not limited to, substances which are known
to be, or may reasonably be anticipated to be, carcinogenic,
mutagenic, teratogenic, neurotoxic, which cause reproductive
dysfunction, or which are acutely or chronically toxic) or adverse
environmental effects whether through ambient concentrations,
bioaccumulation, deposition, or otherwise * * *
To assist EPA in making judgments about whether a pollutant causes
an adverse environmental effect, Section 112(a)(7) defines an ``adverse
environmental effect'' as:
* * * any significant and widespread adverse effect, which may
reasonably be anticipated, to wildlife, aquatic life, or other
natural resources, including adverse impacts on populations of
endangered or threatened species or significant degradation of
environmental quality over broad areas.
Section 112(b)(3) establishes general requirements for petitioning
EPA to modify the hazardous air pollutant list by adding or deleting a
substance. Although the Administrator may add or delete a substance on
his own initiative, the burden is on a petitioner to include sufficient
information to support the requested addition or deletion under the
substantive criteria set forth in Sections 112(b)(3) (B) and (C). The
Administrator must either grant or deny a petition within 18 months of
receipt. If the Administrator decides to grant a petition, the Agency
publishes a written explanation of the Administrator's decision, along
with a proposed rule to add or delete the substance. If the
Administrator decides to deny the petition, the Agency publishes a
written explanation of the basis for denial. A decision to deny a
petition is final Agency action subject to review in the D.C. Circuit
Court of Appeals under Clean Air Act Section 307(b).
To promulgate a final rule deleting a substance from the hazardous
air pollutant list, Section 112(b)(3)(C) provides that the
Administrator must determine that:
* * * there is adequate data on the health and environmental effects
of the substance to determine that emissions, ambient
concentrations, bioaccumulation, or deposition of the substance may
not reasonably be anticipated to cause any adverse effects to the
human health or adverse environmental effects.
EPA will grant a petition to delete a substance, and publish a proposed
rule to delete that substance, if it makes an initial determination
that this criterion has been met. After affording an opportunity for
comment and for a hearing, EPA will make a final determination whether
the criterion has been met.
EPA does not interpret Section 112(b)(3)(C) to require absolute
certainty that a pollutant will not cause adverse effects on human
health or the environment before it may be deleted from the list. The
use of the terms ``adequate'' and ``reasonably'' indicate that the
Agency must weigh the potential uncertainties and their likely
significance. Uncertainties concerning the risk of adverse health or
environmental effects may be mitigated if EPA can determine that
projected exposures are sufficiently low to provide reasonable
assurance that such adverse effects will not occur. Similarly,
uncertainties concerning the magnitude of projected exposures may be
mitigated if EPA can determine that the levels which might cause
adverse health or environmental effects are sufficiently high to
provide reasonable assurance that exposures will not reach harmful
levels. However, the burden remains on a petitioner to resolve any
critical uncertainties associated with missing information. EPA will
not grant a petition to delete a substance if there are major
uncertainties which need to be addressed before EPA would have
sufficient information to make the requisite determination.
B. The Present Petition and Rulemaking
On July 19, 1993, EPA received a petition from AlliedSignal, Inc.,
BASF Corporation, and DSM Chemicals North America, Inc.
(``petitioners'') to delete caprolactam (CAS No. 105-60-2) from the
hazardous air pollutant list in Section 112(b)(1). Following receipt of
the petition, EPA conducted a preliminary evaluation to determine
whether the petition was complete according to Agency criteria. To be
deemed complete, a petition must consider all available health and
environmental effects data. A petition must also provide emissions data
sufficient to assess peak and average emissions for each source, and
must estimate the resultant exposures of people living in the vicinity
of the source. In addition, a petition must address the environmental
impacts associated with emissions to the ambient air and impacts
associated with the subsequent cross-media transport of those
emissions. EPA found the petition to delete caprolactam to be complete
and published a notice of receipt and request for comments in the
Federal
[[Page 30818]]
Register on August 26, 1993 (58 FR 45081).
After evaluating submissions received by EPA in response to the
notice of receipt, which included concerns expressed by citizens
concerning emissions of caprolactam by the AlliedSignal facility in
Irmo, South Carolina, EPA entered into discussions with AlliedSignal to
determine what could be done to address these concerns. On March 13,
1995, EPA executed two detailed emission reduction agreements with
AlliedSignal concerning the Irmo manufacturing facility and another
facility located in Chesterfield, Virginia, copies of which are
included in the public docket for this rulemaking. Under these
agreements, AlliedSignal is installing emission controls for
caprolactam which EPA believes are equivalent to the controls which
would have been required had EPA issued a standard to control these
sources under Section 112. The agreed emission controls will be
incorporated in federally enforceable operating permits for the
affected facilities, and will be in place years earlier than controls
would have otherwise been required. In addition, AlliedSignal has
established a citizen advisory panel concerning the Irmo facility,
which EPA is hopeful will improve communications with the community and
provide citizens an ongoing role in implementation of the agreed
emission reductions.
On September 8, 1995, based on a comprehensive review of the data
provided in the petition and otherwise provided to EPA, the Agency made
an initial determination that the statutory criterion for deletion of
caprolactam from the hazardous air pollutant list had been met. EPA
therefore granted the petition by AlliedSignal, Inc., BASF Corporation,
and DSM Chemicals and issued a proposed rule to delist caprolactam. (60
FR 48081, September 18, 1995).
EPA received a total of 19 comments on the September 18, 1995
proposed rule. EPA subsequently granted a request by a citizen's group
concerned about emissions from the AlliedSignal Irmo, SC facility to
extend the comment period until November 2, 1995. (60 FR 58589,
November 28, 1995). EPA conducted this delisting rulemaking pursuant to
the procedures established by Clean Air Act Section 307(d).
Accordingly, as provided by Section 307(d)(5), EPA held a public
hearing concerning the proposed rule in Irmo, SC on December 7, 1995. A
transcript of the hearing is included in the public docket for this
rulemaking. Pursuant to Section 307(d)(5), EPA kept the record of this
rulemaking open for thirty days after the December 7, 1995 hearing to
receive rebuttal and supplementary information.
II. Adverse Comments and EPA Responses
A. Overview
Of the 19 written comments which were received concerning the
proposed delisting of caprolactam, seven commenters supported and seven
commenters opposed delisting. Other commenters expressed concerns
regarding particular elements of the Agency's assessment, but did not
expressly support or oppose the proposal. Many of the persons who made
statements at the public hearing held on December 7, 1995 in Irmo, SC
expressed opposition to the proposed delisting, in most cases because
of a belief that emissions by AlliedSignal's Irmo facility were the
cause of adverse health effects in their homes or community. Many of
the commenters opposing the delisting of caprolactam were members or
representatives of People United for a Responsible Environment (PURE),
a citizen's group located in the Irmo-St. Andrews area of Columbia, SC.
EPA has considered carefully all of the comments both supporting
and opposing the proposed delisting, focussing in particular on those
comments which suggested potential deficiencies in the substantive
rationale upon which EPA based its initial determination that the
criterion in Clean Air Act Section 112(b)(3)(C) had been met. A summary
of the comments and the EPA responses to them has been included in the
docket for this proceeding. In this notice, EPA will discuss adverse
comments which it received and its response to them.
B. Toxicity Data
Opponents of delisting commented that EPA should place greater
emphasis on the findings in several Eastern European studies, which
reported adverse reproductive effects in animals and exposed workers
following inhalation of caprolactam. Unfortunately, there are numerous
methodologic problems with the manner in which the cited studies were
performed and documented which severely limit their value for risk
assessment. Well-designed, documented and conducted animal studies do
indicate that the most sensitive chronic health effect endpoint
associated with caprolactam exposure is reduced mean fetal body weight
(noted in a rodent reproductive study). However, since the reported
results in these Eastern European studies cannot be readily reconciled
with subsequent studies, EPA does not believe that these studies
warrant any change in its risk assessment for caprolactam.
Opponents of delisting also have argued that the available animal
data on inhalation of caprolactam is inadequate to support the Agency's
conclusions, and that EPA should wait for the results from the
subchronic rat inhalation study of caprolactam which AlliedSignal is
currently performing before taking final action in this rulemaking. EPA
agrees that the available animal data on inhalation of caprolactam is
very limited in comparison to the large number of studies of
caprolactam ingestion. This is largely because the physical properties
of the substance make it difficult to generate stable atmospheres of
caprolactam at levels which would be toxicologically significant and to
control for possible secondary exposure to caprolactam by the oral
route. However, EPA believes that the commenters who assert that EPA
should wait to take action until after the current subchronic
inhalation study has been completed misunderstand the study's purpose
and likely significance.
Based on the currently available human and animal data, the most
sensitive effect of inhalation exposure to caprolactam is irritation of
the eye, nose, and throat. In a limited but reliable occupational study
of workers exposed to airborne caprolactam over nearly two decades,
irritant effects in the nose and throat were observed in some workers
at all levels above 46 mg/m3, and no distress was noted among
workers at concentrations ranging up to 32 mg/m3. This approximate
no observed effect level of 32 mg/m3 for acute irritation by
caprolactam in humans is consistent with one animal study, in which
brief exposure to caprolactam levels up to 26 mg/m3 did not elicit
any of the physiologic responses typical of irritants.
EPA believes that projected exposures of the general population to
a substance in the ambient air at concentrations which result in acute
irritation can be an appropriate basis for inclusion of that substance
on the list of hazardous air pollutants. However, in the case of
caprolactam, the highest modeled one-hour caprolactam concentration
near any facility based on reported emissions was approximately 1 mg/
m3, well below the lowest documented irritation level of 46 mg/
m3.
The target exposure levels in the subchronic inhalation study being
conducted by AlliedSignal are 25, 75,
[[Page 30819]]
and 250 mg/m3. The new inhalation study will provide additional
information on potential adverse effects on the respiratory tract, as
well as any adverse systemic effects, associated with sustained
inhalation of caprolactam. Although EPA is reluctant to make
quantitative comparisons between the oral and inhalation routes, EPA
has previously calculated that the oral NOAEL (No Observed Adverse
Effect Level) for reproductive effects of 50 mg/kg/day would be
approximately equivalent to 175 mg/m3, after adjusting for a human
body weight of 70 kg, 100 percent absorption, and a human inhalation
rate of 20 m3/day. EPA considers it probable that the new
inhalation study will permit better quantification of the dose-response
relationship for potential portal of entry effects, but it is less
clear whether even the highest concentration achieved by the new study
will be sufficient to cause any of the systemic effects observed in
previous oral studies.
The purpose of the new inhalation study is to enable a more precise
quantitative dose response assessment for the inhalation effects of
caprolactam exposure. While the study may be quite useful in this
respect, EPA considers it unlikely that the study will change the more
general conclusions of the risk assessment on which this final rule is
based. In other words, EPA does not consider the uncertainties the new
study is designed to address to be material to the overall risk
determination underlying today's action.
Even if the new study were to detect portal of entry effects in
rats following repeated exposure at the lowest target concentration of
25 mg/m3, this would probably have greater significance in an
occupational context than in assessing the risks associated with
ambient exposures. The new study will expose animals to this
concentration for 13 weeks. The maximum modeled ambient caprolactam
concentration for a 24-hour period is 0.25 mg/m3, two orders of
magnitude below the lowest target concentration in the new study. (The
maximum modeled ambient concentration on an annual basis is 0.05 mg/
m3.)
Given the animal and human data already available, EPA considers it
quite improbable that the new study will detect adverse systemic
effects at the lower exposure levels. However, in the event that such
effects are observed, EPA will review today's action in light of such
data.
EPA wishes to stress that its decision that there is no need to
wait for submission of the new inhalation study is based on the
Agency's conclusion that the present data are already adequate to
support the requisite statutory determination. EPA does not agree with
the argument made by AlliedSignal in its comments that previous EPA
delisting actions under Section 313 of the Emergency Planning and
Community Right-to-Know Act (EPCRA) provide precedent that would enable
EPA to proceed with delisting under Clean Air Act Section 112 when
research which is clearly material to its risk assessment is still
underway. Unlike Clean Air Act Section 112(b)(3)(C), which requires EPA
to determine that currently available data are adequate to support a
determination that a substance may not reasonably be expected to cause
adverse effects, EPCRA Section 313(d)(3) provides that a chemical may
be deleted if there is not sufficient evidence to establish that it
causes certain adverse effects.
C. Human Effects Information
In comments submitted by PURE and statements by individual citizens
at the public hearing, many commenters asserted their belief that there
is a relation between various adverse human health effects and
caprolactam emissions by the AlliedSignal Irmo facility. The effects
described include headaches, allergies, sinus problems, respiratory
disorders, multiple chemical sensitivity, chronic fatigue syndrome,
various digestive disorders, neurologic disorders, and several types of
cancer. Although reports of irritation of the upper respiratory tract
are qualitatively similar to the effects observed at far higher
concentrations in occupational studies, EPA is not aware of any
evidence which would indicate a relation between the occurrence of
these common disorders in the general population and caprolactam
exposure. EPA is also unaware of any evidence which would support the
claimed relationship between caprolactam exposure and the other
specific diseases which were mentioned. In the absence of any reliable
epidemiologic or clinical information, or any other collateral evidence
which would suggest the biological plausibility of the described
effects, EPA cannot justify affording any weight to such anecdotal
evidence in its risk assessment.
The purported relationship between caprolactam exposure and the
symptoms of multiple chemical sensitivity (MCS) requires separate
discussion. There is at present no medical consensus concerning the
definition or the nature of this disorder. EPA is aware that some
individuals and their physicians report they are unusually sensitive to
multiple chemicals to which the general population is commonly exposed
without ill effect. One person who spoke at the public hearing asserted
that she is so sensitive to chemicals that she cannot use a dishwashing
machine in her home. While EPA recognizes the formidable challenges and
problems which may be faced by such individuals as they attempt to
function in modern industrial society, such unusual and extreme
sensitivity is not among the effects that EPA was directed to consider
in identifying and listing hazardous air pollutants.
EPA is aware that a number of individuals in the Irmo-St. Andrews
area have firmly concluded that caprolactam is the cause of health
problems which they or their families have experienced. EPA accepts the
concern and personal sincerity of these individuals' beliefs, but is
not aware of any scientific evidence which would support them. EPA
acknowledges the disappointment its decision to delist will cause these
individuals, but respectfully suggests that the substantive changes at
the Irmo facility have more practical significance to them than the
plausibility of the claimed effects. EPA has taken steps which assure
that there will be Federally enforceable reductions of caprolactam
emissions at the Irmo facility equivalent to those which would have
been required had caprolactam remained on the list of hazardous air
pollutants, and that such reductions will be in place years before they
would otherwise have been required.
The Agency for Toxic Substances and Disease Registry (ATSDR)
commented on the EPA discussion of an ATSDR report in the proposed
rule. ATSDR noted that EPA had called the report a ``preliminary
screening study,'' although the ATSDR reviewed only the available
literature, environmental monitoring data, and written and verbal
reports of health concerns from individuals, and no health screening
was performed on individuals. ATSDR also noted that the proposed rule
had misquoted the ATSDR report, and that its conclusions concerning the
Irmo Facility should not be generalized or applied to other facilities.
The use by EPA of the term ``preliminary screening study'' was not
intended to imply that any health screening had been performed by
ATSDR, and EPA regrets any confusion this phrase may have caused. In
its report, ATSDR did reach conclusions regarding the Irmo facility
which are consistent with the EPA analysis, but the determination by
EPA that the
[[Page 30820]]
statutory criterion for delisting has been met is not predicated on the
ATSDR conclusions. As far as the quotation from the ATSDR report in the
proposed rule, the omission of several words was inadvertent. The
correct quotation is:
``* * * the concentration of hazardous substances found in
ambient air sampling were not of health concern and the community
health concerns were not plausibly related to the release of
hazardous substances.'' (correction italicized)
Finally, although the determination by EPA that caprolactam meets
the statutory criterion for delisting is generic in nature, EPA never
intended to generalize the ATSDR findings to other facilities or the
communities in which they are located.
One frequent comment by the residents in the Irmo-St. Andrews area
was that EPA should study the residents of that area before proceeding
to delist caprolactam. EPA has carefully evaluated the feasibility and
scientific value of an epidemiologic study and has determined that it
would neither be practical or informative. In its evaluation, EPA
utilized five criteria for determining the feasibility of community
environmental studies suggested by Bender, et al., in a 1990 article in
the American Journal of Epidemiology. A memorandum summarizing this EPA
evaluation has been included in the docket.
The EPA evaluation makes it clear that a meaningful study of
persons exposed to caprolactam emissions from the Irmo facility cannot
be conducted. Key problems with such a study include the selection of
biologically plausible health effects in the exposed population, the
identification and measurement of other factors which might contribute
to these health effects, and the lack of adequate statistical power to
detect differences between exposed and unexposed populations.
As noted above, it is difficult to identify the specific health
effects which would be the focus of such a study. If there were an
unusual cluster of a single rare disease in the community, a credible
allegation of a potential relation between that disease and caprolactam
exposure, and all persons with that disease from an identified
population including exposed individuals could be examined, a case-
control study might be practicable. However, none of these factors are
present here.
A cohort study of an exposed population (such as students at a
nearby elementary school) would also be impractical. The non-specific
complaints in the upper respiratory tract which are most frequently
asserted by residents to be potentially related to caprolactam exposure
have a very high incidence in any population. Such upper respiratory
complaints can be caused by other pollutants, allergens, and infectious
agents, and it would be difficult if not impossible to adequately
control for these confounding factors in the study and control
populations. Finally, the size of any potentially exposed valid study
population that could be identified would probably not be large enough
to provide sufficient statistical power to detect significant
differences even if they do exist.
EPA realizes that there is a perception by many concerned citizens
that any hypothetical relation between actual exposures and actual
health effects can be scientifically studied. Unfortunately, this is
not the case. Given the currently available information and the
analytic tools provided by current science, EPA sees little or no
utility to an epidemiologic study of caprolactam exposure in the Irmo-
St. Andrews area. This is similar to the conclusion reached by ATSDR in
its report.
D. Exposure Information
One commenter stated that the exposure estimates by the petitioners
and by EPA were incomplete because they did not consider caprolactam
emissions from hot mix asphalt (HMA) plants. The commenter estimated
that caprolactam emissions from individual HMA plants could exceed the
major source threshold of 10 tons per year, and that total caprolactam
emissions from such facilities could be as high as 18,000 tons per
year. Caprolactam is an ingredient in liquid anti-stripping agents
containing bis(hexamethylene)triamine (BHMT), which are used in some
HMA plants.
Prior to submission of this comment, EPA was unaware of HMA plants
as a potential source of caprolactam emissions. If the commenter's
estimates of emissions from HMA plants were determined to be correct,
it was clear that the failure of the petitioners to address such
emissions in their petition had been a significant omission.
AlliedSignal investigated emissions of caprolactam from HMA plants
and submitted comments summarizing its findings. Although the commenter
had estimated based on a material safety data sheet for one anti-
stripping agent that caprolactam levels in such products are 5%, the
actual level of caprolactam found in this product by AlliedSignal was
.38%. In nine such products tested by AlliedSignal, the average
caprolactam level was .79%, and the highest level found was 1.8%. Based
on other assumptions suggested by the original commenter, AlliedSignal
estimated that worst-case emissions from an HMA plant using a liquid
anti-stripping agent containing the maximum caprolactam level of 1.8%
would be 3.6 tons per year. AlliedSignal noted that not all HMA plants
use liquid anti-stripping agents, and not all such agents contain BHMT
(and thus caprolactam). Based on estimates of the total quantity of
liquid anti-stripping agents produced annually, and the percentage of
such agents containing BHMT, AlliedSignal concluded that no more than
27 tons/year of caprolactam is emitted from all HMA plants.
EPA considers the estimates by AlliedSignal of caprolactam
emissions by HMA plants to be reasonable based on the information
provided. Based on these estimates, no single HMA plant would
constitute a major source of caprolactam. Because the estimated
emissions from plants in the HMA source category are lower than
reported emissions from the other source categories evaluated in the
original petition, EPA does not believe that emissions from such
sources would affect its conclusion that the statutory criterion for
delisting has been met.
Several commenters expressed doubt as to the reliability of the
exposure modeling on which the caprolactam delisting petition and the
EPA risk assessment are based. In general, EPA believes that the
exposure models utilized by the petitioners produce conservative
results. Although actual ambient monitoring data around facilities
emitting caprolactam is very limited, AlliedSignal submitted
information indicating that actual measurements of ambient caprolactam
levels at a monitoring station near its Irmo facility operated by the
State of South Carolina Department of Health and Environmental Control
were generally less than the concentrations for that location which
were predicted by modeling.
Several commenters expressed concern that the EPA conclusions
regarding the adverse effects of current caprolactam emissions do not
assure that new sources with greater caprolactam emissions than those
identified in the petition will not emerge in the future. A related
concern was that the agreements with AlliedSignal regarding control of
caprolactam emissions at its manufacturing facilities will not affect
emissions at future facilities.
EPA does not interpret Section 112(b)(3)(C) to require
consideration of hypothetical emissions from facilities that might be
constructed in the future.
[[Page 30821]]
The logical consequence of such an expansive construction would be that
no substance could ever be delisted, due to the hypothetical
possibility of some future facility with emissions large enough to
cause adverse effects. In the event that some future facility has
uncontrolled caprolactam emissions great enough to change the
conclusions of the present EPA risk assessment, EPA can revisit its
decision to delist caprolactam at that time.
EPA readily acknowledges that the agreements with AlliedSignal do
not apply to other caprolactam emitting facilities, either those
presently in existence or those which might be constructed in the
future. Although EPA has been unable to establish any link between
caprolactam emissions at the Irmo facility and health effects in that
community, EPA negotiated an agreement with AlliedSignal concerning
installation of additional emission controls in order to alleviate the
stated concerns of the residents in that community. EPA also reached
agreement with AlliedSignal concerning control of emissions at its
Chesterfield, VA manufacturing facility because that facility had large
uncontrolled caprolactam emissions analogous to those at the Irmo
facility. While EPA does not consider the Federally enforceable
reductions in caprolactam emissions at either of these facilities to be
essential to meet the statutory criteria for delisting, these
reductions do provide substantial additional assurance that adverse
human health effects will not occur. Moreover, the agreed reductions
will be in place well before any mandatory emission reductions which
would have resulted from the continued listing of caprolactam as a
hazardous air pollutant.
E. Emission Reductions by AlliedSignal
Several commenters from the Irmo-St. Andrews area expressed doubt
concerning the enforceability of the caprolactam reductions at the Irmo
facility which have been agreed to by AlliedSignal. Such comments are
simply erroneous. AlliedSignal has unequivocally agreed that the key
terms and conditions which assure such reductions will be incorporated
into the Federally enforceable Title V operating permit for the Irmo
facility. This is the same permit which would have been utilized to
enforce any emission standard controlling caprolactam emissions from
this facility adopted pursuant to Clean Air Act Section 112.
In its comments, PURE argued that EPA should not presume that the
emission reductions to be achieved by AlliedSignal at the Irmo facility
are equivalent to the reductions which would be required by a Maximum
Achievable Control Technology (MACT) standard issued under Section 112,
because EPA has not gone through the steps which would be necessary to
determine what MACT would be. Since any MACT standard issued for the
source category including the AlliedSignal Irmo facility would not be
issued until years from now, EPA cannot say with precision what such a
standard would ultimately require. However, EPA has determined that the
emissions control technology being installed at the AlliedSignal Irmo
and Chesterfield facilities is likely to perform at least as well as
that which has been demonstrated at other well-controlled facilities.
EPA bases its conclusions concerning the effectiveness of emission
controls being installed at the AlliedSignal facilities on the emission
and production information contained in the petition and produced by
the petitioners during the rulemaking, and on visits by EPA to several
operating Nylon 6 production facilities, including the AlliedSignal
Irmo facility and the BASF Clemson facility. (PURE representatives have
cited BASF as a company which does a good job of controlling its
caprolactam emissions.) EPA has evaluated each of six Nylon 6
production facilities to determine the ratio of the amount of
caprolactam emitted to the amount of Nylon 6 fiber production. The
ratio of emissions to production at the AlliedSignal Irmo and
Chesterfield facilities after all required controls have been installed
will be less than the present ratio of emissions to production at all
other facilities except the BASF Anderson plant, which has lower
emissions because it spins Nylon 6 fiber but receives polymerized
caprolactam from another site. Although the analysis underlying a MACT
standard would be more detailed, and would likely involve separate
analysis of caprolactam emissions for polymerization, depolymerization,
and spinning operations, EPA considers it improbable that a MACT
standard based on presently demonstrated technologies would require
greater control of caprolactam emissions at the AlliedSignal facilities
than is required by the agreements AlliedSignal has executed.
Several commenters complained that the agreement between EPA and
AlliedSignal does not adequately regulate emergency releases from the
plant. Under general MACT provisions, releases during periods of upset
and abnormal operation are not considered in determining compliance
with MACT standards. Thus, the implicit assumption that a MACT standard
would regulate emergency releases more stringently than the agreement
is mistaken. In addition, the commenters appear to overestimate the
significance of such releases. Figures provided by AlliedSignal
indicate that additional caprolactam emissions associated with
scheduled maintenance and unscheduled malfunctions of emission control
equipment at the Irmo facility represent less than one percent of the
total caprolactam emissions by that facility.
The agreement concerning the AlliedSignal Irmo facility does
contain provisions which require expeditious reporting of any emission
control equipment upset or malfunction, as well as any emergency
releases, to the South Carolina Department of Health and Environmental
Control. The agreement also requires prompt repair of any
malfunctioning emission control equipment, and installation of pressure
control devices on those emission points most susceptible to emergency
releases.
F. Delisting Criteria
In its comments, PURE asserted that EPA is required to consider
occupational exposures in deciding whether to delist caprolactam. EPA
firmly disagrees with this comment. The language of Section
112(b)(3)(C) refers to ``emissions, ambient concentrations,
bioaccumulation, or deposition of the substance.'' Nothing in this
language suggests that EPA should consider worker exposures in its
delisting assessment. Moreover, it would be illogical to assume that
worker exposures should be considered in deciding whether to delist
when continued listing would not itself lead to any requirement that
occupational exposures be controlled.
In its comments, PURE also argued that the proposed delisting would
be unlawful because it assumes future compliance by AlliedSignal with
the agreed emission reductions, thereby circumventing the purposes of
the Clean Air Act. It could be argued that consideration of future
emission reductions in a decision to delist a substance from the list
of hazardous air pollutants is a reasonable construction of Section
112(b)(3)(C) consistent with the purposes of the Clean Air Act, so long
as such reductions will be as enforceable as those which might be
required by a MACT standard and will be in place before any MACT
standard could be issued. However, in this instance it was not
necessary to resolve this question. EPA has determined that
[[Page 30822]]
the petitioners have satisfied the statutory criterion for delisting in
Section 112(b)(3)(C) based on the emissions reported in the delisting
petition. The agreements by AlliedSignal requiring enforceable
reductions in caprolactam emissions at its facilities provide
additional assurance that the agency's determination is correct, but
are not an essential element in the risk assessment on which that
determination is based.
III. Final Rule
A. Rationale for Action
The detailed factual rationale supporting the Agency's initial
determination that the criterion in Clean Air Act Section 112(b)(3)(C)
had been met is set forth in the proposed rule published in the Federal
Register on September 18, 1995 (60 FR 48081). As is apparent from the
discussion above, although EPA has done substantial additional analysis
pursuant to the comments submitted during the subsequent rulemaking,
none of those comments have caused EPA to revise the basic scientific
analysis on which that initial determination was predicated. EPA hereby
incorporates in its rationale for this final rule the substantive
assessment of potential hazards, projected exposures, human risk, and
environmental effects set forth in the proposed rule to delist
caprolactam. Based on that assessment, the Agency's evaluation of the
comments and additional information submitted during the rulemaking (as
summarized above), and on the other materials which have been
incorporated in the public docket for this rulemaking, EPA has made a
determination that there is adequate data on the health and
environmental effects of caprolactam to determine that emissions,
ambient concentrations, bioaccumulation or deposition of caprolactam
may not reasonably be anticipated to cause any adverse effects to human
health or adverse environmental effects. On that basis, caprolactam is
hereby deleted from the list of hazardous air pollutants set forth in
Clean Air Act Section 112(b)(1). This deletion shall be final on the
effective date of this rule.
B. Implementation
Although EPA intends in the future to conduct a rulemaking to
codify the hazardous air pollutant list set forth in Clean Air Act
Section 112(b)(1) and to correct various technical errors in the
statutory list which have been identified since 1990, the list is at
present uncodified. Therefore, today's rule does not revise the text of
any existing provision of the Code of Federal Regulations. However, on
the effective date of this rule, caprolactam will be deleted for all
purposes from the list set forth in Section 112(b)(1). To avoid
confusion concerning the status of caprolactam, pending the rulemaking
which will codify and correct the list set forth in Section 112(b)(1),
EPA will add to the Code of Federal Regulations a brief provision
confirming that caprolactam has been deleted from the list.
EPA included in the proposed rule to delist caprolactam a provision
providing immediate relief, on an interim basis, for certain facilities
which might otherwise have been required to apply for Title V operating
permits based solely on the continued inclusion of caprolactam on the
list of hazardous air pollutants. That provision suspended the listing
of caprolactam, for the duration of this rulemaking, solely for the
limited purpose of determining the applicability of Title V permitting
requirements. The interim relief provided in the proposed rule is no
longer necessary and will expire by its own terms on the effective date
of this final rule.
C. Effective Date
This final rule will be effective on June 18, 1996, the date it is
published in the Federal Register. Although Section 553(d) of the
Administrative Procedure Act, 5 U.S.C. 553(d), provides that
substantive rules must be published at least 30 days prior to their
effective date, this requirement does not apply to this rule. First,
this rule was promulgated pursuant to Clean Air Act Section 307(d), and
that provision expressly states that the provisions of Section 553 do
not apply to this action. Second, even under Section 553, the
requirement that a rule be published 30 days prior to its effective
date does not apply to a rule
``which grants or recognizes an exemption or relieves a
restriction.''
D. Judicial Review
This final rule deleting caprolactam from the list of hazardous air
pollutants in Clean Air Act Section 112(b)(1) is based on a
determination of nationwide scope and effect. A petition for judicial
review of this final rule may be filed solely in the United States
Court of Appeals for the District of Columbia. Any such petition for
judicial review of this rule must be filed no later than August 19,
1996. In any resulting action, no objection can be made which was not
raised with reasonable specificity during the period for public comment
(including the public hearing).
IV. Miscellaneous
A. Executive Order 12866
Under Executive Order 12866 (58 FR 57735, October 4, 1993), EPA
must determine whether this rule is ``significant'' and therefore
subject to review by the Office of Management and Budget under the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This action will not result in an annual effect on the economy of
$100 million or another adverse economic impact, does not create a
serious inconsistency or interfere with another agency's action, and
does not materially alter the budgetary impacts of entitlement, grants,
user fees, etc. While States may lose Title 5 permit fees as a direct
result of this rule, the number of affected facilities is not believed
to be significant. However, since this action is the Agency's first
decision to modify the hazardous air pollutant list, EPA believes that
it could be construed as raising novel legal or policy issues and has
therefore submitted this rule for OMB review under Executive Order
12866.
B. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. This rule will
reduce regulatory burdens on small businesses which would otherwise be
associated with retention of caprolactam on the list of hazardous air
pollutants. EPA has determined that this rule will have no adverse
effect on small businesses. Accordingly, this rule will not have ``a
significant impact on a substantial number of small entities,'' as that
phrase is utilized in Section 605(b) of the Regulatory Flexibility Act,
as amended.
[[Page 30823]]
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995, EPA
must prepare a written statement to accompany any rules that have
``Federal mandates'' that may result in the expenditure by the private
sector of $100 million or more in any one year. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objective of such a rule and that is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising small governments that may be significantly
and uniquely affected by the rule.
The Unfunded Mandates Act defines a ``Federal private sector
mandate'' for regulatory purposes as one that, among other things,
``would impose an enforceable duty upon the private sector.'' This
final rule to modify the hazardous air pollutant list to delete
caprolactam is deregulatory in nature and does not impose any
enforceable duties upon the private sector. Therefore, this rulemaking
is not a ``Federal private sector mandat'' and is not subject to the
requirements of Section 202 or Section 205 of the Unfunded Mandates
Act. As to Section 203, EPA finds that small governments will not be
significantly and uniquely affected by this rulemaking.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances.
Dated: June 7, 1996.
Carol M. Browner,
Administrator.
40 CFR part 63 is amended as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--[Amended]
2. Subpart C is amended by adding Sec. 63.60 and adding and
reserving Secs. 63.61 through 63.69 to read as follows:
Sec. 63.60 Deletion of caprolactam from the list of hazardous air
pollutants.
The substance caprolactam (CAS number 105602) is deleted from the
list of hazardous air pollutants established by 42 U.S.C. 7412(b)(1).
Secs. 63.61-63.69 [Reserved]
[FR Doc. 96-15445 Filed 6-17-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15439 National Emission Standards for Hazardous Air Pollutants for Shipbuilding and Ship Repair (Surface Coating) Operations
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30814-30816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15439]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5521-5]
RIN 2060-AD98
National Emission Standards for Hazardous Air Pollutants for
Shipbuilding and Ship Repair (Surface Coating) Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On December 15, 1995, the EPA issued national emission
standards for hazardous air pollutants (NESHAP) under Section 112 of
the Clean Air Act as amended in 1990 for shipbuilding and ship repair
(surface coating) operations. The NESHAP requires existing and new
major sources to control emissions using the maximum achievable control
technology to control hazardous air pollutants. This action revises the
compliance date for sources subject to this standard and revises the
date for submittal of implementation plans. Specifically, this action
extends the June 13, 1996 deadline for submittal of an implementation
plan to December 16, 1996. The compliance date is extended from
December 16, 1996 to December 16, 1997. This action is being taken
because the EPA has learned that sufficient time was not provided to
[[Page 30815]]
prepare the implementation plans and establish the necessary inventory
management systems to ensure compliance with the standard. This action
is also being taken to improve coordination of compliance with the
NESHAP with the anticipated implementation of the control techniques
guidelines (CTG) requirements for shipbuilding and ship repair
facilities.
This action also removes the requirement that implementation plans
be approved by the EPA. This requirement is being removed because it
was not EPA's intent for the implementation plan to be the mechanism
for enforcing the rule.
DATES: The direct final rule will be effective August 19, 1996 unless
significant, adverse comments are received by July 18, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Comments should be submitted to: Air and Radiation Docket
and Information Center (6102), Attention Docket Number A-92-11, Room M-
1500, U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Dr. Mohamed Serageldin, Emission
Standards Division (MD-13), U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Research Triangle Park,
North Carolina 27711, telephone number (919) 541-2379.
SUPPLEMENTARY INFORMATION:
Regulated Entities. The regulated category and entities affected by
this action include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.......................... Facilities that build, repair,
repaint, convert, or alter ships.
The term ship means any marine or
fresh-water vessel, including self-
propelled vessels, those propelled
by other craft (barges), and
navigational aids (buoys).
Note: An offshore oil and gas
drilling platform is not considered
a ship for purposes of this
regulation.
Federal Govt...................... Federal Agencies which undertake
shipbuilding or repair operations
(see above) such as the Navy and
Coast guards.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine wheher
your facility is regulated by this action, you should carefully examine
the applicability criteria in Sec. 63.782 of the regulation. If you
have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Any significant and timely adverse comments received on any portion
of this direct final rule will be addressed in a subsequent final rule
based on the proposed rule contained in the Proposed Rules Section of
this Federal Register that is identical to this direct final rule. If
no significant and timely adverse comments are received on this direct
final rule, then the direct final rule will become effective August 19,
1996 and no further action is contemplated on the parallel proposal
published today.
I. Basis for Changes to Rule
A. Compliance Date
The EPA is extending the compliance date from December 16, 1996 to
December 16, 1997 to allow time for sources to develop the necessary
inventory management systems, administrative controls, and to allow
coordination of compliance plans for this rule and the CTG, which is
planned for publication in the near future. When the final NESHAP was
issued, the EPA selected a one-year compliance period to allow time for
sources to deplete existing inventories of coatings and to conduct
compliance planning procedures. Since the final rule was issued on
December 15, 1995, the EPA has learned that there are a number of
companies subject to this rule that presently do not have inventory
management systems necessary to ensure compliance, and that some
facilities are relying on outside consultants to develop such systems.
In such cases, at least one year is needed to establish the paint
inventory management and administrative control system. Additionally,
at the time the final NESHAP was issued, EPA expected to issue final
guidance for the CTG for shipbuilding and ship repair (surface coating)
operations in the near future. Issuance of this CTG has been delayed.
Since control techniques for volatile organic compound emissions could
affect the compliance approach selected for the NESHAP, the EPA
believes that it is appropriate to extend the compliance date for the
NESHAP to allow coordination with rules adopted by States to implement
the CTG. Based on the anticipated schedule for issuance of the CTG, the
EPA believes that extension of the compliance date to December 16, 1997
should provide sufficient time to allow coordination of compliance
planning for both the NESHAP and any applicable State rules.
B. Implementation Plan
The EPA is extending the June 13, 1996 deadline for submittal of
implementation plans to December 16, 1996. The deadline for submitting
these plans is being extended because the EPA has learned that
sufficient time was not provided to prepare the implementation plans
and establish the necessary paint inventory management and
administrative control systems to ensure compliance with the standard.
Because information available to the EPA during the development of the
NESHAP suggested that most shipyards had some form of inventory
management system, the EPA expected that 180 days should be sufficient
to prepare the implementation plan. Due to information received from
the industry since the final rule was issued, the EPA believes that one
year is a more appropriate time-frame for selection of the compliance
approach and development of the implementation plan. Therefore, this
document revises the date for submittal of implementation plans to
December 16, 1996.
This action also removes the requirement that implementation plans
be approved by the EPA. This requirement is being eliminated since it
was not the EPA's intent for the implementation plan to be the
mechanism for enforcing the rule and, if the plans are subject to
approval, some people might argue that was the role of the plan. The
implementation plan will serve to provide guidance and assist in
enforcement of the rule.
II. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated NESHAP were submitted to and approved by the Office of
Management and Budget (OMB). A copy of this Information Collection
Request (ICR) document (OMB number 1414.02) may be obtained from Sandy
Farmer, Information Policy Branch (PM-223Y); U.S. Environmental
Protection Agency; 401 M Street, SW; Washington, DC 20460 or by calling
(202) 260-2740.
Today's changes to the NESHAP should have no impact on the
[[Page 30816]]
information collection burden estimates made previously. The change to
the implementation plan requirements merely extends the date for
submission of plans from existing sources. These changes do not impose
new requirements. Consequently, the ICR has not been revised.
B. Executive Order 12866 Review
Under Executive Order 12866, the EPA must determine whether the
proposed regulatory action is ``not significant'' and therefore,
subject to OMB review and the requirements of the executive order. The
Order defines ``significant'' regulatory action as one that is likely
to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the executive order.
The Shipbuilding NESHAP promulgated on December 15, 1995 was
determined to not be a ``significant regulatory action'' under
Executive Order 12866. Therefore, a regulatory impact analysis was not
prepared. The amendments issued today extend dates for submittal of
implementation plans and the compliance date and remove the requirement
for approval of implementation plans. These changes do not add any
additional control requirements or costs. Therefore, this regulatory
action does not affect the previous decision and is not considered to
be significant.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires the identification
of potentially adverse impacts of Federal regulations upon small
business entities. The Act specifically requires the completion of a
Regulatory Flexibility Analysis in those instances where small business
impacts are possible. Because this rulemaking imposes no adverse
economic impacts, a Regulatory Flexibility Analysis has not been
prepared. Pursuant to Section 605(b) of the Regulatory Flexibility Act,
5 U.S.C. 605(b), the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
E. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995, the
EPA must prepare a budgetary impact statement to accompany any proposed
or final rule that includes a Federal mandate that may result in
estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Under
Section 205, the EPA must select the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule and is consistent with statutory requirements. Section 203
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that the action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. Therefore, the requirements of the
Unfunded Mandates Reform Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: June 7, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, part
63, subpart II, of the Code of Federal Regulations is amended as
follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart II--National Emission Standards for Shipbuilding and Ship
Repair (Surface Coating)
2. Section 63.784 is amended by revising paragraph (a) to read as
follows:
Sec. 63.784 Compliance dates.
(a) Each owner or operator of an existing affected source shall
comply within two years after the effective date of this subpart.
* * * * *
3. Section 63.787 is amended by revising paragraphs (b)(1)(ii) and
(b)(4) and by removing and reserving paragraph (b)(2) to read as
follows:
Sec. 63.787 Notification requirements.
* * * * *
(b) * * *
(1) * * *
(ii) Not later than one year after the effective date of this
subpart, submit the implementation plan to the Administrator along with
the notification required by Sec. 63.9(b)(2) or (b)(5) of subpart A, as
applicable.
(2) [Reserved]
* * * * *
(4) Major sources that intend to become area sources by the
compliance date. Existing major sources that intend to become area
sources by the December 16, 1997 compliance date may choose to submit,
in lieu of the implementation plan required under paragraph (b)(1) of
this section, a statement that, by the compliance date, the major
source intends to obtain and comply with federally enforceable limits
on their potential to emit which make the facility an area source.
* * * * *
[FR Doc. 96-15439 Filed 6-17-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15416 Alteration of Class E Airspace; Nome and Unalakleet, AK
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30803-30804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15416]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AAL-3]
Alteration of Class E Airspace; Nome and Unalakleet, AK
AGENCY: Federal Aviation Administration [FAA], DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment amends the Class E2 airspace at Unalakleet, AK,
and Class E5 airspace area at Nome, and Unalakleet, Alaska, to provide
controlled airspace for aircraft executing the Standard Instrument
Approach Procedure (SIAP) at the Nome and Unalakleet Airports. The
areas will be depicted on aeronautical charts to provide a reference
for pilots operating under VFR.
EFFECTIVE DATE: 0901 UTC, August 15, 1996.
FURTHER INFORMATION CONTACT: Robert C. Durand, AAL-531, 222 West 7th
Avenue #14, Anchorage, AK, 99513-7587; telephone: (907) 271-5898.
SUPPLEMENTARY INFORMATION:
History
On July 14,1995, the FAA proposed to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) by amending the Class E2 surface
areas and the Class E5 airspace at Nome and Unalakleet, AK (60 FR
37969). This action was to provide controlled airspace for newly
developed Microwave Landing System (MLS) approaches at Nome and
Unalakleet; and a Global Positioning System (GPS) Instrument Flight
Rules (IFR) procedure at the Unalakleet Airport. The additional
airspace will provide required controlled airspace for aircraft
operating under IFR procedures. The area would be depicted on
appropriate aeronautical charts thereby enabling pilots to
circumnavigate the area or otherwise comply with IFR procedures.
Interested parties were invited to participate in this rulemaking
proceeding by submitting written comments on the proposal to the FAA.
One comment objecting to the Nome, AK, Class E2 proposal was received.
The FAA has reevaluated the airspace requirements for the Nome MLS
approach to runway 9 and determined that sufficient Class E2 airspace
exists and therefore, withdraws the proposal to expand the Nome, AK,
Class E2 airspace at this time. No other comments were received. The
Class E airspace designations for surface areas of an airport are
published in paragraph 6002 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1, and Class E airspace designations for
airspace areas extending upward from 700 feet or more above the surface
of the earth are published in paragraph 6005 of FAA Order 7400.9C,
dated August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document will be published subsequently in
the Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulations (14
CFR part 71) revises the Class E2 surface area at Unalakleet, AK, and
revises the Class E5 airspace at Nome and Unalakleet, AK. This action
will provide required controlled airspace for IFR procedures at the
Nome and Unalakleet Airports and allow charting of the airspace that
will enable pilots to circumnavigate the area or otherwise comply with
IFR procedures.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation--(1) is not a ``significant regulatory
action'' under Executive Order 12866; (2) is not a ``significant rule''
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6002 Class E airspace areas designated as a -----surface
area for an airport.
* * * * *
AAL AK E2 Unalakleet, AK [Revised]
Unalakleet Airport, AK
(Lat. 63 deg.53'17''N, long. 160 deg.47'55''W)
North River NDB
(Lat. 63 deg.54'27''N, long. 160 deg.48'43''W)
Unalakleet VORTAC
(Lat. 63 deg.53'31''N, long. 160 deg.41'04''W)
Within a 4.2-mile radius of Unalakleet Airport and within 3.5
miles each side of the North River NDB 314 deg. bearing extending
from the 4.2-mile radius of Unalakleet Airport to 8.4 miles west of
the North River NDB and within 1.6 miles each side of the 289 deg.
radial of the Unalakleet VORTAC extending from the 4.2 mile radius
to 11 miles west of the Unalakleet VORTAC. This Class E airspace
area is effective during the specific dates and times established in
advance by Notice to Airmen. The effective date and time will
thereafter be continuously published in the Supplement Alaska
(Airport/Facility Directory).
* * * * *
Paragraph 6005 Class E airspace areas extending from 700 feet or
more above the surface of the earth.
* * * * *
AAL AK E5 Nome, AK [Revised]
Nome Airport, AK
(Lat. 64 deg.30'44''N, long. 165 deg.26'43''W)
Nome VORTAC
[[Page 30804]]
(Lat. 64 deg.29'06''N, long. 165 deg.15'11''W)
That airspace extending upward from 700 feet above the surface
within a 6.6-mile radius of the Nome Airport and within 14 miles of
the Nome VORTAC extending clockwise from the 002 deg. radial to the
185 deg. radial of the VORTAC and within 20 miles of the Nome VORTAC
extending clockwise from the 185 deg. radial to the 305 deg. radial
of the VORTAC and within 4 miles north and 8 miles south of the
106 deg. radial of the Nome VORTAC extending from the VORTAC to 16
miles east and within 4 miles north and 8 miles south of the Nome
VORTAC 271 deg. radial extending from the 6.6-miles radius to 27
miles west of the VORTAC; and that airspace extending upward from
1,200 feet above the surface within a 39-mile radius of the Nome
VORTAC and within 39 miles each side of the Nome VORTAC 092 deg.
radial extending from the 39-mile radius to 77.4 miles east of the
VORTAC; excluding that airspace more than 12 miles from the
shoreline .
* * * * *
AAL AK E5 Unalakleet, AK [Revised]
Unalakleet Airport, AK
(Lat. 63 deg.53'17''N, long. 160 deg.47'55''W)
Unalakleet VORTAC
(Lat. 63 deg.53'31''N, long. 160 deg.41'04''W)
Unalakleet Localizer
(Lat. 63 deg.52'52''N, long. 160 deg.47'42''W)
That airspace extending upward from 700 feet above the surface
within a 6.7-mile radius of the Unalakleet Airport and within 2
miles each side of the 289 deg. radial of the Unalakleet VORTAC
extending from the 6.7-mile radius to 14.1 miles west of the VORTAC
and within 3 miles east and 3 miles west of the Unalakleet Localizer
front course extending from the 6.7-mile radius to 12.9 miles north
of the airport; and that airspace extending upward from 1,200 feet
above the surface within a 20-mile radius of the Unalakleet VORTAC
extending clockwise from the 165 deg. radial to the 322 deg. radial
and within 4 miles east and 8 miles west of the Unalakleet Localizer
front course extending from the Localizer to 21.7 miles north of the
airport and within 4 miles north and 8 miles south of the Unalakleet
VORTAC 289 deg. radial extending from 11 miles west of the VORTAC to
27 miles west of the VORTAC; excluding that airspace more than 12
miles from the shoreline.
* * * * *
Issued in Anchorage, AK, on May 29, 1996.
Trent Cummings,
Acting Manager, Air Traffic Division, Alaskan Region.
[FR Doc. 96-15416 Filed 6-17-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15405 Open Access Same-Time Information System
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Page 30804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15405]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 37
[Docket No. RM95-9-000]
Open Access Same-Time Information System
June 11, 1996.
AGENCY: Federal Energy Regulatory Commission, Energy.
ACTION: Final rule; cancellation of technical conference and provision
for filing of comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) had
previously announced that it would hold a technical conference on June
17, 1996 \1\ following the submission of an additional report from the
How Group correcting any deficiencies in the standards and protocols
document issued with the final rule in this proceeding. This notice
cancels the technical conference and allows comments on the report
filed with the Commission on June 7, 1996.
\1\ See, Open Access Same-time Information System and Standards
of Conduct, Order No. 889, FERC Stats. & Regs. para. 31,037, 61 FR
21737 (May 10, 1996).
---------------------------------------------------------------------------
DATES: Comments on the report must be received by July 8, 1996.
ADDRESSES: Comments should be filed with the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 20426.
FOR FURTHER INFORMATION CONTACT:
Marvin Rosenberg (Technical Information), Office of Economic Policy,
Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 20426, (202) 208-1283
William Booth (Technical Information), Office of Electric Power
Regulation, Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, D.C. 20426, (202) 208-0849
Gary D. Cohen (Legal Information), Electric Rates and Corporate
Regulation, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street, N.E., Washington, D.C. 20426, (202) 208-
0321
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street, N.E., Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the text of formal documents
issued by the Commission. CIPS is available at no charge to the user
and may be accessed using a personal computer with a modem at (202)
208-1397 if dialing locally, or 1-800-856-3920 if dialing long
distance. CIPS may also be accessed through the Fed world system (by
modem or Internet). To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps. full duplex,
no parity, 8 data bits and 1 stop bit. The full text of this document
will be available on CIPS in ASCII and Wordperfect 5.1 format. The
complete text on diskette in WordPerfect format may also be purchased
from the Commission's copy contractor, La Dorn Systems Corporation,
also located in Room 3104, 888 First Street, N.E., Washington, D.C.
20426.
The Commission previously announced that it would hold a technical
conference on June 17, 1996 to discuss any remaining issues in this
proceeding. The Commission scheduled the technical conference to follow
the submission of an additional report from the How Group correcting
any deficiencies in the standards and protocols document (Standards and
Protocols) that accompanied the OASIS Final Rule. The How Group
submitted the requested report to the Commission on June 7, 1996.
After a review of this report, the Commission has concluded that
the technical conference scheduled for June 17, 1996 is unnecessary and
is hereby cancelled.
The June 7, 1996 report is available for inspection and copying in
the Commission's Public Reference Room and is accessible through the
Commission Issuance Posting System. Interested persons may submit
comments on this report on or before July 8, 1996.
Lois D. Cashell,
Secretary.
[FR Doc. 96-15405 Filed 6-17-96; 8:45 am]
BILLING CODE 6717-01-M
Complete official Federal Register PDF
FR Doc. 96-15390 Digital Audio Recording Devices and Media; Verification of Statements of Account
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30808-30814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15390]
=======================================================================
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 93-2B]
Digital Audio Recording Devices and Media; Verification of
Statements of Account
AGENCY: Copyright Office, Library of Congress.
ACTION: Interim regulation.
-----------------------------------------------------------------------
SUMMARY: The Audio Home Recording Act of 1992 requires the Register of
Copyrights to issue regulations that provide for the verification of
the information contained in digital audio recording technology (DART)
Statements of Account filed with the Office. The Copyright Office is
adopting Interim Regulations that establish procedures for requesting
verification, the scope of the verification, and the allocation of
costs. The regulations are intended to ensure that proper payments have
been made to copyright owners.
DATES: This interim regulation is effective June 18, 1996. Comments
must be submitted on or before September 16, 1996. Reply comments must
be
[[Page 30809]]
submitted on or before October 16, 1996.
ADDRESSES: If sent by mail, fifteen copies of written comments should
be addressed to Marilyn J. Kretsinger, Acting General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C.
20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366. If by hand,
fifteen copies should be brought to: Office of the General Counsel,
Copyright Office, James Madison Memorial Building, Room LM-407, First
and Independence Avenue, S.E., Washington, D.C. 20540.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024, or Tanya Sandros. Telephone: (202) 707-8380.
Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
The Audio Home Recording Act (AHRA) requires manufacturing and
importing parties that distribute digital audio recording devices or
media in the United States to file Statements of Account with, and make
royalty payments to, the Copyright Office. It also requires the
Register of Copyrights to issue regulations to protect the
confidentiality of the information contained in Statements of Account,
to provide for the disclosure, in confidence, of Statements to
interested copyright parties, and to provide for the verification of
Statements of Account. 17 U.S.C. 1003(c)(2).
We published a Notice of Proposed Rulemaking on May 7, 1993. 58 FR
27251 (May 7, 1993). The Notice contained a proposed regulation
concerning access to, and confidentiality of, Statements of Account and
asked for public comment on that proposal and also on the form and
content of a regulation governing audit and verification procedures.
In separate proceedings, we issued interim regulations governing
the filing of Notices of Initial Distribution, 57 FR 55464 (November
25, 1992), and establishing requirements governing the filing dates,
frequency of filing, and content of Statements of Account and the
primary auditor's report that must be filed by persons subject to the
statutory obligation. 59 FR 4586 (February 1, 1994). In a separate
proceeding, we published interim regulations governing access to and
confidentiality of Statements of Account. 60 FR 25995 (May 16, 1995).
II. Verification of Statements of Account
In the Notice of Proposed Rulemaking (NPRM), 58 FR 27251 (1993), we
did not propose the actual language of a verification regulation.
Instead, we noted that the Senate version of AHRA, S. 1623,\1\
contained detailed provisions regarding audit and verification which
were eliminated from the bill as passed, but which we indicated we were
inclined to use as the framework for the regulations. We therefore
solicited public comments and detailed proposals for the form and
content of a verification regulation based on S. 1623. In addition, we
asked ten specific questions.
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\1\ S. 1623, 102d Cong., 1st Sess. (1991).
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The Office received eleven comments, including direct, reply, and
surreply comments, from four parties. Comments were received from (1)
the American Institute of Certified Public Accountants (AICPA); (2) the
American Society of Composers, Authors, and Publishers, Broadcast
Music, Inc., Copyright Management, Inc., the National Music Publishers'
Association, Inc., SESAC, Inc., and the Songwriters Guild of America
(The Copyright Parties); (3) the Alliance of Artists and Recording
Companies (AARC); and (4) the Electronic Industries Association (EIA).
The comments revealed that while there was general agreement on a
number of issues, there were sharp differences among the parties on
certain key issues, especially, the scope of the verification
procedure, the possible role of an arbitrating accountant or the
Copyright Office in resolving disputes, and the standards to measure
the independence of the verifying auditor. The Office believes these
issues need to be resolved through another round of comments. However,
the Office believes that interim regulations need to be adopted to
allow for the verification of the Annual Statements of Accounts that
have already been received.\2\ Therefore, in order to go forward, the
Copyright Office has had to take a certain approach, but these interim
regulations represent only the Office's initial position, and are not
intended necessarily to indicate the Office's final conclusions.
Comments on the specific regulatory language and the issues they raise
are particularly solicited.
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\2\ The first Annual DART Statement of Account was filed with
the Office March 1, 1994. Since we are proposing that a verification
procedure of an Annual Statement of Account can be invoked no later
than three years after the filing deadline, it is important to
provide interim regulations even while the verification procedure is
being further refined.
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What follows is a discussion of the comments and a description of
the interim regulations adopted by the Office.
III. Period for Invoking a Verification Procedure
The first issue is one of timing: when should the Annual Statements
of Account be available for a verification procedure and for how long?
How often should the Annual Statements be audited?
S. 1623 did not provide for a time limit for initiating a
verification procedure, but did state that no filer should be audited
more than once a year.
EIA said it would accept a two or three year time limit following
the filing of the Annual Statement of Account for verification. EIA,
comments at 28. The Copyright Parties supported a rule stating that the
verification procedure should not be conducted more than three years
after the filing date of the Annual Statement of Account. Copyright
Parties, reply at 25. AICPA supported a deadline beyond which
verification procedures could not be conducted, and in its reply
comments supported the three-year rule advanced by the Copyright
Parties. AICPA, comments at 5, reply at 6.
AICPA recommends that only one verification audit should be
permitted per Statement of Account. AICPA, comments at 5. EIA states
there should be no more than one verification audit per year per
Statement of Account. EIA, comments at 27. The Copyright Parties urge
the adoption of regulations that permit interested parties to
consolidate the verification procedure for several Annual Statements.
The Copyright Parties agree that no manufacturer or importer should be
audited more than once in a calendar or fiscal year and the Annual
Statements should be verified no more than once. Copyright Parties,
comments at 29, reply at 24.
While there was general agreement among the commentators supporting
a time limit, because of the procedure for selecting a verifying
auditor discussed below, we are measuring the time limit somewhat
differently from the measurements proposed in the comments.
First, within three months of the filing deadline of the Annual
Statement of Account, no verification procedure may be invoked. This
will give the Licensing Division time to review the Annual Statement
and resolve any discrepancies.
Second, after the three months, any interested copyright party will
have until the third year anniversary of the filing deadline of the
Annual Statement to notify the Copyright Office, the filer
[[Page 30810]]
and the primary auditor of his or her intent to invoke a verification
procedure. The notice of one party will preserve the right of all
interested copyright parties to participate in a verification
procedure. While EIA's and the Copyright Parties' comments contemplated
that the verification procedure itself would have to commence within
three years of the filing of the Annual Statement of Account, the
Office believes that this is not workable, because too many events,
such as the Office publishing a notice in the Federal Register, and the
subsequent coordination and selection of the verifying auditor, are
beyond the petitioning party's sole control. The interested copyright
party could not know how much time before the end of the three years he
or she needed to allow to assure that the verification procedure began
within three years of the filing deadline. Therefore, the Office has
moved the tolling of the deadline from the time the verification
procedure commences to the time when notice is filed by the interested
copyright party that he or she wants to begin a verification procedure.
The interim regulations provide that there can be no more than one
verification procedure a year of any manufacturing or importing party,
but the verification procedure may include more than one Annual
Statement of Account.
IV. Selection of Verifying Auditor
Assuming that one or more copyright parties wants to invoke a
verification procedure, how do they coordinate the selection of the
verifying auditor? S. 1623 provided that the Register of Copyrights
should establish a procedure by which interested copyright parties will
coordinate the engagement of a verifying auditor to perform the
verification procedure.
EIA commented that all parties would be best served by a formal
procedure by which interested copyright parties provide public notice
of their intent to invoke a verification procedure, permit other
interested copyright parties to express an interest, and then jointly
select a verifying auditor. EIA, comments at 29. The Copyright Parties
recommended that we establish procedures by which interested copyright
parties may coordinate the engagement of a verifying auditor to ensure
that no manufacturing or importing party is audited more than once per
year. Copyright Parties, comments at 10-11.
The Office believes that it is the responsibility of the copyright
parties to select the verifying auditor and coordinate the verification
procedure. The Office can only play a limited role in this process,
acting to notify the copyright parties that a verification procedure is
contemplated and who is proposing the procedure.
The Office will perform that role by publishing a notice in the
Federal Register when it has been informed by an interested copyright
party that he or she is interested in invoking a verification
procedure. The notice will include whom to contact so that all
interested copyright parties who want to be involved may coordinate
their selection of the auditor. The party, or, if more than one, the
joint interested parties will select the verifying auditor and will
notify, within two months of the publication of the original Federal
Register notice, the filer of the Annual Statement of Account, the
primary auditor and the Register of Copyrights whether or not they wish
to start a verification procedure.\3\
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\3\ The interested copyright parties may, after consultation
with each other, decide not to conduct a verification procedure. In
that case, they will not select a verifying auditor, but will,
instead, notify the filer, the primary auditor and the Register of
Copyrights that they do not intend to proceed.
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V. Notice and Length of Verification Procedure
The NPRM also asked what would be reasonable notice before
commencing a verification procedure, and how long the verification
procedure should take.
EIA recommended that at least 30 days notice should be required and
the manufacturer, importer, or primary auditor should be able to
postpone the verification up to 60 days. EIA, comments at 6The
Copyright Parties stated that 60 days is a reasonable notice before the
verification procedure commences. The Copyright Parties observed that
the duration of a verification procedure will vary from case to case,
and that the duration is as much in the control of the manufacturer or
importer as of the interested copyright parties or their verifying
auditor. Copyright Parties, comments at 21-22. AICPA had no comment on
the length of time required for notice of a verification procedure. It
did suggest that the length of time to perform the procedure should be
90 to 120 days. AICPA, comments at 3.
The Office's interim regulations state that after the joint
interested parties notify the filer of their intent to conduct a
verification procedure, the verification procedure can begin one month
later, or up to two months later if the filer or the primary auditor
asks for a postponement. The Office agrees with the comments of the
Copyright Parties that the duration of the verification procedure can
vary from case to case and, therefore, the Office has not adopted any
rules concerning how long the verification procedure should take.
VI. Scope of Verification Procedure
The scope of the verification procedure has been one of the most
contentious issues faced by the Office in drafting regulations to
implement the AHRA. The Office is required to balance the need of the
manufacturing and importing parties to avoid the disruption of their
business and the exposure of confidential information, with the need of
the interested copyright parties to be assured that sufficient
royalties are deposited for distribution. EIA, comments at 2; Copyright
Owners, comments at 2.
Section 1011(e)(1)(D) of S. 1623 provided that the goal of
verification should be limited to examining the accuracy of information
contained in the Statements of Account filed by manufacturing and
importing parties, and that the procedure to achieve this goal should
be no broader than is reasonably necessary in accordance with generally
accepted auditing standards (GAAS). All parties to this proceeding
agreed with these two principles, but nevertheless disagreed on how
much review was needed to verify the information in the Statements of
Accounts.
Of the four commenting parties, EIA advocated the narrowest scope
of review. The Copyright Parties advocated the widest scope of review.
AICPA and AARC took positions somewhere in between.
EIA said that the scope of the verification procedure should be a
review by the verifying auditor of the audit performed by the primary
auditor. This review would encompass an evaluation of the primary
auditor's audit procedures, examination of the primary auditor's work
papers, and consideration of the primary auditor's conclusions. In the
event the verifying auditor believes the audit was not properly
performed, or that additional procedures are needed, he or she would
consult with the primary auditor. If the two auditors are unable to
agree, they would submit the matter to a neutral, independent
accountant selected by both parties to arbitrate the dispute. The role
of this third party accountant would be strictly to determine whether
the primary auditor complied with GAAS in performing the work and to
determine, and possibly perform, the additional procedures needed to
correct noted deficiencies. EIA, comments at 5.
[[Page 30811]]
EIA opposes any regulation that would provide for or permit a
verifying auditor to conduct a duplicative full scope audit or to have
unfettered access to the books and records of a filer that has already
been audited by a primary auditor. Such an approach, in EIA's view,
would impose unreasonable burden and expense, and would be a
prescription for misunderstanding, controversy, and the unanticipated
disclosure of confidential information. Furthermore, such an approach
would not provide additional assurance beyond the assurance provided by
EIA's proposed procedure. EIA, comments at 6.
The Copyright Parties believe that the Copyright Office should
allow for the possibility of a full scale audit without specific
limitations on audit tests and procedures to be performed. The
Copyright Parties assert that the verification procedure should include
``the examination of evidence supporting the amounts and disclosure in
the Statement of Account, an assessment of the accounting principles
used by the manufacturer or importer in preparing the statement, and an
evaluation of the overall presentation of the statement.'' Copyright
Parties, comments at 27.
The Copyright Parties state that the limited review of working
papers proposed by EIA does not contribute to effective enforcement of
royalty obligations under AHRA. Instead, they want the ability to use
an independent verifying auditor to determine whether the Statement of
Account fairly presents, in all material respects, the royalty
obligations of a particular filer. Copyright Parties, reply at 18.
However, the Copyright Parties supported a regulation that would
promote initial reliance on the working papers and related documents
generated in the course of the primary audit to avoid duplication of
effort, and to concentrate the verifying auditor's focus on the
additional work he or she considers necessary under the circumstances.
Copyright Parties, surreply at 13-14.
AICPA commented that consideration should be given to using
``agreed-upon procedures'' which all users of the report would agree to
so that the verifying auditor does not duplicate the effort of the
first auditor. AICPA noted that ``agreed-upon procedures'' are
generally less in scope than an audit under generally accepted auditing
standards, and the verifying auditor would not express an opinion on
the fair presentation of the information. He or she would report the
procedures performed and any findings. Further, users of the report,
namely, the Copyright Office and the interested copyright parties, must
agree upon the procedures that the verifying auditor would perform.
AICPA, comments at 4.
While disagreeing with the Copyright Parties about the wisdom of a
full scale verifying audit, AICPA also did not believe that the
suggested procedures and approach of the EIA were appropriate. AICPA
argued that the procedures to be performed must be more than the EIA
suggested review of the working papers of the initial audit. The
procedures should be objective procedures that test the amounts
reported by the manufacturer or importer. The EIA proposal would
require the auditor to formulate an opinion that the audit was properly
conducted based upon a review of the working papers. This proposal is
more in the nature of a quality review of the primary auditor's work
than an audit of the royalty schedule, and in AICPA's view, not an
appropriate ``agreed-upon procedures'' engagement. AICPA, reply at 2.
AARC took a similar position to AICPA in finding problems with both
EIA's and the Copyright Parties' positions. AARC commented that while
it agrees with the EIA that a full scope audit by a verifying auditor
may be inappropriate, AARC believes that the approach suggested by EIA
does not go far enough. AARC argues that the interested copyright
parties must have the ability to direct their own verifying auditor in
the conduct of a verification procedure. At the same time, while AARC
is generally in agreement with the intent of the approach suggested by
the Copyright Parties, AARC believes the scope of verification sought
in their initial comments may be unnecessarily broad in order to
achieve the intended results.
AARC believes that what is more appropriate is a ``compliance''
type audit; a type customarily used within the music industry to
determine the proper payment of music publishers and/or artist
royalties. When preparing royalty accountings, the manufacturers and
distributors will have to set up a system that will provide information
to their accounting department. The basis of this information will be
their manufacturing, inventory, sales and shipping records. AARC
asserts that the verifying auditor retained by the interested copyright
parties should be able, at minimum, to test these accounting records
and the underlying documents. AARC, reply at 2-3.
With access to the documents described above, AARC does not believe
it would be necessary for the verifying auditor to have access to the
manufacturer's or importer's general ledgers as proposed by the
Copyright Parties, so long as the primary auditor's opinion indicates
that the royalty accountings tie into the general books of account.
AARC, reply at 4.
VII. Discussion of Scope of Verification
Clearly, the most contentious issue in this rulemaking is the very
scope of the verification audit which, in turn dictates the need to
access particular business records to perform the verification
procedure. The Copyright Parties want the potential for a full scale
audit. EIA wants the verifying auditor simply to review the primary
auditor's work. AICPA recommends ``agreed-upon procedures,'' agreed to
by the Copyright Parties and the verifying auditor which is something
more than just a review of the primary auditor's work but something
less than full access to all records. AARC recommends a ``compliance''
audit where the filer is told in advance what business records to
segregate.
The Office has decided to adopt a procedure for these interim
regulations whereby the verifying auditor first reviews the primary
auditor's work papers. If, in the verifying auditor's opinion,
according to generally accepted auditing standards (GAAS), he or she
needs access to the business records of the filer, the verifying
auditor, after consulting with the primary auditor, shall be able to
have access to those records as well.4
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\4\ The consultation with the primary auditor is not intended to
give the primary auditor any veto over the decision of the verifying
auditor to require additional records. It is only intended as a
means to get additional advice on what records may or may not be
needed.
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The Office believes that two independent accountants--the verifying
auditor and the primary auditor--acting in good faith, are the best
judge of what additional information is needed from the filer.
However, we highlight this provision in our interim regulations as
one in which we particularly solicit comments from the parties. If the
parties believe that the question of the scope of the verification
should not rest with the independent accountants, they should so notify
the Office in their comments. Moreover, the Office asks the parties
whether they could agree upon which business records the filer should
make available, in addition to the primary auditor's work papers, that
would assure the accuracy of the Annual Statement of Account but at the
same time would not create an overly extensive demand on the filer.
[[Page 30812]]
VIII. Independence of the Verifying Auditor
AICPA states that GAAS requires that a verifying auditor be
independent. AICPA recommends that if there is a question about an
auditor's independence, it should be referred to the AICPA Professional
Ethics Division and/or the State Board of Accountancy. AICPA, comments
at 3.
The Copyright Parties believe the Office should require that the
verifying auditor be independent within the meaning of AICPA's Code of
Professional Conduct. In addition, the Copyright Parties recommend that
we establish a procedure to accept petitions from parties wishing to
challenge the use of a particular auditor. Such petition should explain
why the verifying auditor should not be used and should provide
specific facts to support the petition. Where the Office considers that
the petition raises a question as to whether the verifying auditor is
independent, the matter should be referred to the proper professional
authorities. Copyright Owners, comments at 17-19.
EIA believes that the Office need not become involved in the
question of a verifying auditor's independence, but it opposes sending
the question to the AICPA Professional Ethics Division and/or the
appropriate State Board because ``(1) these bodies have not applied a
financial dependence standard and (2) they apply the traditional
independence standard most often in a disciplinary context, where
generally the presumptions and burdens favor the accused accountant.''
EIA, reply at 13. It suggested that an independent arbitrating
accountant, chosen by the primary auditor and the verifying auditor,
should help determine the independence of the verifying auditor. EIA,
comments at 30-32, reply at 13.
The Office agrees that it should not become involved in deciding
whether a verifying auditor is independent, and any disputes involving
the independence of an auditor should be referred to the AICPA or State
Boards of Accountancy. EIA's opposition, notwithstanding, the Office
considers that referring the matter to AICPA or State Boards is
preferable to referring it to an independent arbitrating accountant.
See, discussion at X, below. If there is a challenge to the verifying
auditor's independence, the interim regulations nonetheless call for
the verification procedure to continue while the question of the
auditor's independence is being resolved.
The Office considered two specific proposals concerning a verifying
auditor's independence, but ultimately decided not to adopt them in the
interim regulations. They were that the auditing firm retained to
perform the verification procedure does not receive more than 15% of
its gross revenues from services performed for the interested copyright
parties, and that the auditor is not performing the verification
procedure for a contingent fee. These proposals were supported by EIA
but opposed by AICPA. EIA, comments at Appendix 2, at 18; AICPA, reply
at 5. The Office solicits comments on whether these two specific
proposals should be added to the definition of an independent verifying
auditor. The Office also is aware that its current regulations on the
primary auditor found in Sec. 201.28 do not discuss the primary
auditor's independence beyond stating that the primary audit shall be
performed according to GAAS. The Office solicits comments on whether
any additional provisions should be adopted to assure the primary
auditor's independence.
IX. Work Papers of the Verifying Auditor
Section 1011(e)(2) of S. 1623 provided that the certification and
results of all verification procedures shall be filed with the Register
of Copyrights. In our Notice we asked if we should require the filing
of the verifying auditor's work papers along with the results of a
verification procedure.
AICPA filed a strong objection to any requirement to file work
papers in addition to the results of the verification procedure. It
states that the auditor's report, not the work papers, provides the
auditor's opinion as to the fairness of the presentation of figures on
the Statement of Account and the primary auditor's report. The work
papers are considered the personal property of the independent auditor.
AICPA, comments at 4.
EIA believes that work papers will contain extremely confidential
information and should not be filed in the Office. EIA, comments at 2.
The Copyright Parties believe that only the auditor's report must
be filed with the Office. They propose that all work papers be
deposited only if the verification procedure results in a dispute.
Copyright Parties, comments at 24-25.
In our interim regulations, therefore, the auditor's report to the
Copyright Office will contain only the auditor's conclusions. If the
verifying auditor concludes that there was any failure of the primary
auditor to conduct properly the primary audit or obtain a reliable
result, or that there was any error in the Annual Statement of Account,
the supporting documentation will be included in an appendix to the
report and distributed to the interested copyright parties, the filer,
and the primary auditor only. It will not be included in the report
sent to the Copyright Office.
X. Disputes Regarding Conduct of Verification Procedure
AICPA had no comment on whether the Copyright Office has a role in
the event there is a dispute in the conduct or the result of the
verification procedure. It recommended requiring arbitration of
disputes. AICPA, comment at 4. EIA said the Office should not be
burdened with the task of resolving disputes. Disputes would best be
handled between the primary auditor and the verifying auditor. If such
discussions do not resolve the dispute, the auditors should mutually
select a neutral arbitrating accountant who will examine all work
papers and decide if additional procedures are required. EIA, comments
at 22. The Copyright Parties also stated that ``there is no statutory
role for the Office in resolving disputes arising from the conduct of a
verification procedure or the primary audit.'' They said that, in
practice, disputes will be resolved through negotiation. Copyright
Parties, comments at 23.
From the Office's viewpoint, there are three key points in the
verification procedure when a dispute could take place. One, the filer
could refuse to produce business records the verifying auditor
considers necessary. Two, the filer could object that the verifying
auditor is not independent. Three, the verifying auditor could file a
report that there was a failure of the primary auditor to conduct the
primary audit properly or to obtain a reliable result, or there was an
error in the Annual Statement of Account.
At this point, the Office has decided not to institute binding
arbitration in these interim regulations. The Office solicits comments
on how such disputes should be resolved. If the commentators believe
binding arbitration should be established, the Office solicits comments
on how it would work, and whether the Office has the authority to
require it.
XI. Cost of Verification Procedure
Sec. 1011(f) of S. 1623 specified that in the case of a
verification procedure that ``leads ultimately to recovery of an annual
royalty payment of 5 percent or more of the annual payment made, the
[[Page 30813]]
importing or manufacturing party shall provide reimbursement of the
reasonable cost'' of such procedure.
In all other cases, ``any recovery of royalty underpayments as a
result of the audit shall be used first to provide reimbursement for
the reasonable costs of such audit,'' and ``any remaining recovery
shall be deposited with the Register.''
EIA did not object to the cost allocation scheme proposed in S.
1623, provided that the verification procedure is limited to an
``agreed-upon procedures'' audit and there is arbitration between the
primary and verification auditors in case of dispute to avoid
duplication of audit work. EIA, comments at 30, and Appendix 2, at 16.
The Copyright Parties recommended that the interested copyright parties
who initiate the engagement of a verifying auditor should bear the cost
of the verification procedure, but such cost should be reimbursable
under the system proposed in S. 1623. Copyright Parties, comments at
28. AICPA recommended that the cost of the verification procedure
should be borne by the copyright party(s) that engage the verification
auditor, but was silent on the 5% provision in S. 1623. AICPA, comments
at 5.
The interim regulation is based upon the system detailed in S.
1623, described above, with which the Copyright Parties and EIA agree.
XII. Miscellaneous--Retention of Report; Use of the Word
``Verification''
AICPA had no comment on the length of time verification procedure
reports should be retained by the Office. EIA and the Copyright Parties
proposed that they be retained for three years. EIA, comments at 28;
Copyright Parties, comments at 13. AICPA supported EIA's and the
Copyright Parties' three-year proposal in its reply comments. AICPA,
reply at 6. The Office has adopted the proposed three-year retention,
but seeks more comments on how it should work. Should it apply equally
to positive as well as negative verification procedure reports? Should
it include follow-up reports if the filer and the verifying auditor
come to subsequent agreements addressing the concerns of a negative
report? May the Office, in its discretion, retain the report more than
three years?
Last, AICPA commented that the word ``verification'' is a misnomer
because it implies a full scale audit while the scope of the verifying
auditor's work might be well less than that. AICPA recommends that the
procedure to be followed by the verifying auditor be called a ``second
audit'' or a ``special audit.'' We have chosen to call it a
``verification procedure,'' because the word ``verification'' was used
in the AHRA, but we have given it its own special definition in
Sec. 201.30(b)(5), so that it will not carry the implication of a full
scale audit.
List of Subjects in 37 CFR Part 201
Copyright; Digital audio recording products.
Interim Regulations
In consideration of the foregoing, the Copyright Office is amending
part 201 of 37 CFR, chapter II in the manner set forth below:
PART 201--GENERAL PROVISIONS [AMENDED]
1. The authority citation for part 201 is revised to read as
follows:
Authority: 17 U.S.C. 702; 17 U.S.C. 1003.
2. Section 201.30 is added to read as follows:
Sec. 201.30 Verification of Statements of Account.
(a) General. This section prescribes rules pertaining to the
verification of information contained in the Statements of Account by
interested copyright parties pursuant to section 1003(c) of title 17 of
the United States Code.
(b) Definitions.
(1) Annual Statement of Account, generally accepted auditing
standards (GAAS), and primary auditor have the same meaning as the
definition in Sec. 201.28 of this part.
(2) Filer is a manufacturer or importer of digital devices or media
who is required by 17 U.S.C. 1003 to file with the Copyright Office
Quarterly and Annual Statements of Account and a primary auditor's
report on the Annual Statement of Account.
(3) Interested copyright party has the same meaning as the
definition in Sec. 201.29 of this part.
(4) Verifying auditor is the person retained by interested
copyright parties to perform a verification procedure. He or she is
independent and qualified as defined in paragraphs (j)(2) and (j)(3) of
this section.
(5) Verification procedure is the process followed by the verifying
auditor to verify the information reported on an Annual Statement of
Account.
(c) Purpose of Verification. The purpose of verification is to
determine whether there was any failure of the primary auditor to
conduct the primary audit properly or to obtain a reliable result, or
whether there was any error in the Annual Statement of Account.
(d) Timing of Verification Procedure.
(1) Requesting a verification procedure. No sooner than three
months nor later than three years after the filing deadline of the
Annual Statement of Account to be verified, any interested copyright
party shall notify the Register of Copyrights of its interest in
instituting a verification procedure. Such notification of interest
shall also be served at the same time on the filer and the primary
auditor identified in the Annual Statement of Account. Such
notification shall include the year of the Annual Statement of Account
to be verified, the name of the filer, information on how other
interested copyright parties may contact the party interested in the
verification including name, address, telephone number, facsimile
number and electronic mail address, if any, and a statement
establishing the party filing the notification as an interested
copyright party. The notification of interest may apply to more than
one Annual Statement of Account and more than one filer.
(2) Coordination and selection of verifying auditor. The Copyright
Office will publish in the Federal Register notice of having received a
notification of interest to institute a verification procedure.
Interested copyright parties have one month from the date of
publication of the Federal Register notice to notify the party
interested in instituting the verification procedure of their intent to
join with it and to participate in the selection of the verifying
auditor. Any dispute about the selection of the verifying auditor shall
be resolved by the parties themselves.
(3) Notification of the filer and primary auditor. As soon as the
verifying auditor has been selected, and in no case later than two
months after the publication in the Federal Register of the notice
described in paragraph (d)(2) of this section, the joint interested
copyright parties shall notify the Register of Copyrights, the filer,
and the primary auditor identified in the Annual Statement of Account
to be verified, that they intend or do not intend to initiate a
verification procedure.
(4) Commencement of the verification procedure. The verification
procedure shall begin no sooner than one month after notice of intent
to initiate a verification procedure was given to the filer and the
primary auditor by the joint interested copyright parties. The joint
interested copyright parties shall grant the filer or the primary
auditor a postponement of the beginning of the verification procedure
of up to one additional month if either one requests
[[Page 30814]]
it. Verification procedures shall be conducted at reasonable times
during normal business hours.
(5) Anti-duplication rules. A filer shall be subject to no more
than one verification procedure per calendar year. An Annual Statement
of Account shall be subject to a verification procedure only once.
(e) Scope of verification. The verifying auditor shall limit his or
her examination to verifying the information required in the Annual
Statement of Account. To the extent possible, the verifying auditor
shall inspect the information contained in the primary auditor's report
and the primary auditor's working papers. If the verifying auditor
believes that access to the records, files, or other materials in the
control of the filer is required according to GAAS, he or she may,
after consultation with the primary auditor, require the production of
these documents as well. The verifying auditor and the primary auditor
shall act in good faith using reasonable professional judgment, with
the intention of reaching a reasonable accommodation as to the
necessity and scope of examination of any additional documents, but the
decision to require the production of additional documents is solely
that of the verifying auditor.
(f) Verification Report. Upon concluding the verification
procedure, the verifying auditor shall render a report enumerating in
reasonable detail the procedures performed by the verifying auditor and
his or her findings. Such findings shall state whether there was any
failure of the primary auditor to conduct properly the primary audit or
obtain a reliable result, and whether there was any error in the Annual
Statement of Account, itemized by amount and by the filer's elected
fiscal year. If there was such failure or error, the report shall
specify all evidence from which the verifying auditor reached such
conclusions. Such evidence shall be listed and identified in an
appendix to the report in sufficient detail to enable a third party to
reasonably understand or interpret the evidence on which the verifying
auditor based his or her conclusion. If there was no such failure or
error, the report shall so state.
(g) Distribution of Report. Copies of the verifying auditor's
report shall be subject to the confidentiality provisions of
Sec. 201.29 and shall be distributed as follows:
(1) One copy, excluding the appendix, if applicable, shall be filed
with the Register of Copyrights.
(2) One copy, with the appendix, if applicable, shall be submitted
to each of the interested copyright parties who retained the services
of the verifying auditor and who are authorized to receive such
information according to Sec. 201.29.
(3) One copy, with the appendix, if applicable, shall be submitted
to the filer of the Annual Statement of Account.
(4) One copy, with the appendix, if applicable, shall be submitted
to the primary auditor.
(h) Retention of Report. The Register of Copyrights will retain his
or her copy of the verifying auditor's report for three years following
the date the copy of the verifying auditor's report is filed.
(i) Costs of Verification. The joint interested copyright parties
who requested the verification procedure shall pay the fees of the
verifying auditor and the primary auditor for their work performed in
connection with the verification procedure, except, if the verification
procedure results in a judicial determination or the filer's agreement
that royalty payments were understated on the Annual Statement of
Account, then,
(1) if the amount is less than five percent (5%) of the amount
stated on the Annual Statement of Account, that amount shall first be
used to pay the fees of the verifying auditor and the primary auditor,
and any remaining amount plus any applicable interest on the total
amount shall be deposited, allocated by the filer's elected fiscal
year, with the Register of Copyrights, or
(2) if the amount is equal to or greater than five percent (5%) of
the amount stated on the Annual Statement of Account, the filer shall
pay the fees of the verifying auditor and the primary auditor, and, in
addition, shall deposit the amount found to be due plus any applicable
interest on the total amount, allocated by the filer's elected fiscal
year, with the Register of Copyrights.
(j) Independence and qualifications of verifying auditor.
(1) The verifying auditor shall be qualified and independent as
defined in this section. If the filer has reason to believe that the
verifying auditor is not qualified or independent, it shall raise the
matter with the joint interested copyright parties before the
commencement of the verification procedure, and if the matter is not
resolved, it may raise the issue with the American Institute of
Certified Public Accountants' Professional Ethics Division and/or the
verifying auditor's State Board of Accountancy while the verification
procedure is being performed.
(2) A verifying auditor shall be considered qualified if he or she
is a certified public accountant or works under the supervision of a
certified public accounting firm.
(3) A verifying auditor shall be considered independent if:
(i) he or she is independent as that term is used in the Code of
Professional Conduct of the American Institute of Certified Public
Accountants, including the Principles, Rules and Interpretations of
such Code applicable generally to attest engagements (collectively, the
``AICPA Code''); and (ii) he or she is independent as that term is used
in the Statements on Auditing Standards promulgated by the Auditing
Standards Board of the AICPA and Interpretations thereof issued by the
Auditing Standards Division of the AICPA.
Dated: June 6, 1996.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 96-15390 Filed 6-17-96; 8:45 am]
BILLING CODE 1410-30-P
Complete official Federal Register PDF
FR Doc. 96-15352 Regulatory Review; Gas Pipeline Safety Standards
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Page 30824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15352]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 192
[Docket PS-124; Amdt. 192-78]
RIN 2137-AC25
Regulatory Review; Gas Pipeline Safety Standards
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Correction of amendment number of final rule document.
-----------------------------------------------------------------------
SUMMARY: This action corrects the amendment number of the Final Rule
document published in the Federal Register on Thursday, June 6, 1996
(61 FR 28770). In the document heading on page 28770, the amendment
number ``Amdt. 192-76'' is changed to read ``Amdt. 192-78.'' The Final
Rule makes miscellaneous changes to the gas pipeline safety standards
to provide clarity, eliminate unnecessary or burdensome requirements,
and foster economic growth.
EFFECTIVE DATE: July 8, 1996.
FOR FURTHER INFORMATION CONTACT: Jenny Donohue, (202) 366-4046.
Issued in Washington D.C. on June 12, 1996.
Richard B. Felder,
Associate Administrator for Pipeline Safety.
[FR Doc. 96-15352 Filed 6-17-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-15249 Airworthiness Directives; MDB Flugtechnik AG Model MD3-160 Airplanes
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30801-30803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15249]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules
and Regulations
[[Page 30801]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-CE-18-AD; Amendment 39-9669; AD 96-13-01]
RIN 2120-AA64
Airworthiness Directives; MDB Flugtechnik AG Model MD3-160
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to MDB Flugtechnik AG Model MD3-160 airplanes. This action
requires inserting a supplement Aircraft Flight Manual (AFM),
installing a placard prohibiting aerobatics and spinning, inspecting
the nosewheel steering system for damaged parts and improper rigging,
and if necessary, replacing the parts and re-rigging the nosewheel
steering system (NWS). Two incidents on certain MD3-160 airplanes while
in flight causing the airplanes to go into a left spin and loose rudder
control prior to landing prompted this AD action. The actions specified
by this AD are intended to prevent the rudder pedals from locking up
and the nosewheel steering from disengaging, which if not detected and
corrected, could cause loss of control of the airplane.
DATES: Effective July 12, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 12, 1996.
Comments for inclusion in the Rules Docket must be received on or
before August 12, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket 96-CE-18-AD, Room 1558, 601 E. 12th
Street, Kansas City, Missouri 64106.
Service information that applies to this AD may be obtained from
MDB Flugtechnik AG, Flugplatz, CH-3368 Bleienbach, Switzerland. This
information may also be examined at the Federal Aviation Administration
(FAA), Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket 96-CE-18-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106; or at the Office of the Federal Register,
800 North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Gregory J. Holt, Program Manager,
Brussels Aircraft Certification Office, FAA, Europe, Africa, and Middle
East Office, c/o American Embassy, B-1000 Brussels, Belgium; telephone
(322) 513.3830, ext. 2716; facsimile (322) 230.6899 or Mr. Roman T.
Gabrys, Project Officer, Small Airplane Directorate, Aircraft
Certification Service, FAA, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6932; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: The Swiss Federal Office for Civil Aviation
(FOCA), which is the airworthiness authority for Switzerland, recently
notified the FAA that an unsafe condition may exist on MDB Flugtechnik
AG (Flugtechnik) Model MD3-160 airplanes. The Swiss FOCA advises that
two incidents on certain MD3-160 airplanes were caused by disengagement
of the nosewheel steering while in flight making the airplane roll into
a left turn, which was controllable with aileron inputs. The airplane
was able to land with restricted rudder control. During the second
incident, the pilot was unable to re-engage the nosewheel steering
while in flight and prior to landing, and rudder control was never
effected. In test flights, the manufacturer has succeeded at
reproducing this rudder pedal lockup under unusual combinations of
nosewheel steering angle, steering disengage lever position, and rudder
pedal position. This situation can only occur when the nose wheel
steering disengage link is rotated above its disengage ``neutral''
position either by excessive nosewheel rotation, or by excessive
rotation of the selector lever. The NWS mechanism may be sensitive to
play in the nosewheel steering damper block assembly at the top of the
nose leg and also sensitive to inconsistencies in rigging procedures.
Further investigations have revealed that it is possible to
inadvertently damage the disengage mechanism if the nosewheel is
maneuvered by a towbar with the steering disengaged.
Flugtechnik has issued service bulletin (SB) No. MD-SB-27-001,
Original Issue May 1995, which specifies inserting a supplement to the
Aircraft Flight Manual (AFM), fabricating and installing a placard on
the instrument panel, and inspecting the NWS system and replacing any
damaged parts prior to further flight.
The Swiss FOCA classified this service bulletin as mandatory and
issued airworthiness directive (AD) HB 95-303, dated July 17, 1995, in
order to assure the continued airworthiness of these airplanes in
Switzerland. This airplane model is manufactured in Switzerland and is
type certificated for operation in the United States under the
provisions of section 21.29 of the Federal Aviation Regulations (14 CFR
21.29) and the applicable bilateral airworthiness agreement between the
United States and Switzerland. Pursuant to this bilateral airworthiness
agreement, the Swiss FOCA has kept the FAA informed of the situation
described above.
After examining the circumstances and reviewing all available
information related to the incidents described above including that
received from the Swiss FOCA, the FAA has determined that AD action
should be taken in order to prevent the rudder pedals from locking up
and the nosewheel steering from disengaging, which if not detected and
corrected, could cause loss of control of the airplane.
Since an unsafe condition has been identified that is likely to
exist or develop in other Flugtechnik Model MD3-160 airplanes of the
same type design registered for operation in the United States, this AD
requires:
--inserting a supplement to the AFM prohibiting aerobatics and
spinning,
--fabricating and installing a placard in the pilot's clear view, that
prohibits aerobatics and spinning,
--inspecting the NWS engage/disengage mechanism for extensive
rotational
[[Page 30802]]
play, and if rotational play exists, prior to further flight, adjusting
the rigging of the rudder/nosewheel steering mechanism,
--inspecting the shimmy damper for a bent piston rod, and if bent or
the damper bottoms out, prior to further flight, replacing the damping
pieces.
The actions are to be done in accordance with the instructions in
the ACCOMPLISHMENT INSTRUCTIONS section of MDB Flugtechnik AG Service
Bulletin No. MD-SB-27-001, Original Issue May 1995.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting immediate flight safety and, thus, was not
preceded by notice and opportunity to comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified above. All communications
received on or before the closing date for comments will be considered,
and this rule may be amended in light of the comments received. Factual
information that supports the commenter's ideas and suggestions is
extremely helpful in evaluating the effectiveness of the AD action and
determining whether additional rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-CE-18-AD.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation and that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket (otherwise, an evaluation is
not required). A copy of it, if filed, may be obtained from the Rules
Docket.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-13-01 MDB Flugtechnik AG: Amendment 39-9669; Docket No. 96-CE-
18-AD.
Applicability: Model MD3-160 airplanes, all serial numbers,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (h) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required within the next 25 hours time-in-service
(TIS) after the effective date of this AD, and thereafter, as
indicated in this AD.
To prevent the rudder pedals from locking up and the nosewheel
steering (NWS) from disengaging, which if not detected and
corrected, could cause loss of control of the airplane, accomplish
the following:
(a) Insert Temporary Flight Manual Supplement No. TEMP AFM-001,
dated April 1995, into the MD3-160 Swiss Trainer Airplane Flight
Manual in accordance with the ACCOMPLISHMENT INSTRUCTIONS section,
paragraph B(1) in Flugtechnik Service Bulletin (SB) No. MD-SB-27-
001, Original Issue May 1995.
(b) Fabricate and install a placard, in an area visible to the
pilot (using letters no smaller than \1/8\-inch in height) with the
following language on the airplane instrument panel:
``AEROBATICS AND SPINNING IN AEROBATIC AND UTILITY CATEGORY IS
PROHIBITED''
(c) Inspect the shimmy damper for a bent piston rod and proper
operation in accordance the ACCOMPLISHMENT INSTRUCTIONS section,
paragraphs D (1) and (2) of Flugtechnik SB MD-SB-27-001, Original
Issue May 1995. If the piston rod is bent, prior to further flight,
replace the piston rod in accordance with the applicable portion of
the airplane maintenance manual.
(d) Inspect the NWS engage/disengage mechanism and rudder for
proper rotation position and excessive rotational play in accordance
with paragraphs E (1), (2), and (3) of the service bulletin
referenced in paragraph (c) of this AD. If the rotation is not
correct or excessive play is evident, prior to further flight, re-
adjust the rigging for the rudder/nosewheel steering mechanism in
accordance with the applicable portion of the airplane maintenance
manual.
(e) Inspect the nosewheel steering for excessive play in the
damping mechanism in accordance with paragraphs F (1) through (5) in
the service bulletin referenced in paragraph (c) of this AD. If any
play exists, prior to further flight, replace the damping pieces and
the console covers in accordance with the applicable portion of the
airplane maintenance manual.
(f) After the initial inspections, repetitively inspect, at
intervals not to exceed 50 hours TIS, in accordance with paragraphs
(c), (d), and (e) of this AD.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(h) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety may be approved by the Manager, Brussels Aircraft
Certification Office, FAA, Europe, Africa, and Middle East Office,
c/o American Embassy, B-1000 Brussels, Belgium. The request shall be
forwarded through an appropriate FAA Maintenance Inspector, who may
add comments and then send it to the Manager, Brussels Aircraft
Certification Office.
[[Page 30803]]
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Brussels Aircraft Certification Office.
(i) The inspections and replacements required by this AD shall
be done in accordance with MDB Flugtechnik AG Service Bulletin No.
MD-SB-27-001, Original Issue May 1995. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from MDB Flugtechnik AG, Flugplatz, CH-3368 Bleienbach,
Switzerland. Copies may be inspected at the FAA, Central Region,
Office of the Assistant Chief Counsel, Room 1558, 601 E. 12th
Street, Kansas City, Missouri, or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(j) This amendment (39-9669) becomes effective on July 12, 1996.
Issued in Kansas City, Missouri, on June 11, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15249 Filed 6-17-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-15145 Texas Regulatory Program
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30804-30808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15145]
=======================================================================
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[[Page 30805]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 943
[SPATS No. TX-027-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving a proposed amendment to the Texas regulatory
program (hereinafter referred to as the ``Texas program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of revisions to Texas' existing regulations
pertaining to identification of interests and compliance information
and Commission of Texas (Commission) review of outstanding permits and
revisions and one addition to Texas' existing statures pertaining to
rulemaking and permitting, permit approval or denial, and suspension or
rescission of improvidently issued permits. The amendment is intended
to revise the Texas program to be consistent with the corresponding
Federal regulations and SMCRA.
EFFECTIVE DATE: June 18, 1996.
FOR FURTHER INFORMATION CONTACT:
Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,
Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. Background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 943.10, 943.15, and 943.16.
II. Submission of the Proposed Amendment
By letter dated August 30, 1995 (Administrative Record No. TX-595),
Texas submitted a proposed amendment to its program pursuant to SMCRA.
Texas submitted the proposed amendment in response to required program
amendments codified at 30 CFR 943.16 (r), (t), and (u) [59 FR 13200,
March 21, 1994, and 60 FR 15675, March 27, 1995]. The provisions of the
Texas Coal Mining Regulations (TCMR) and of the Texas Surface Coal
Mining and Reclamation Act (TSCMRA) at Article 5920-11 that Texas
proposed to amend were TCMR 778.116(m), identification of interests and
compliance information; TCMR 788.225(g)(1), Commission review of
outstanding permits; section 6(b) of TSCMRA, rulemaking and permitting;
section 21(c) of TSCMRA, reporting notices of violation in permit
applications; and section 21a of TSCMRA, suspension or rescission of
improvidently issued permits.
OSM announced receipt of the proposed amendment in the September
20, 1995, Federal Register (60 FR 48675), and in the same document
opened the public comment period and provided an opportunity for a
public hearing on the adequacy of the proposed amendment. The public
comment period closed on October 20, 1995.
By letter dated May 13, 1993 (Administrative Record No. TX-551),
Texas submitted a proposed amendment to its program pursuant to SMCRA.
By letter dated September 18, 1995 (Administrative Record No. TX-598),
Texas revised the May 13, 1993, proposed amendment. The revised
amendment included a definition for the term ``violation notice'' at
TCMR 701.008(104), which was proposed as partial response to a required
amendment at 30 CFR 943.16(k). Since this proposed definition is
closely associated with Texas' August 30, 1995, proposed revisions
pertaining to identification of interests and compliance information,
it is being transferred to and addressed in this final rule. Decisions
concerning the rest of the proposed changes in the May 13, 1993,
proposed amendment, as revised on September 18, 1995, will be addressed
in a separate Federal Register.
OSM announced receipt of the September 18, 1995, revised amendment
in the October 25, 1995, Federal Register (60 FR 54620), and in the
same document opened the public comment period. The public comment
period closed on November 9, 1995. No comments were received pertaining
to the proposed definition of ``violation notice.''
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
A. Texas Coal Mining Regulations (TCMR)
1. TCMR 701.008(104) Definition of Violation Notice
Texas proposed to add the following definition of ``violation
notice'' at TCMR 701.008(104).
``Violation notice'' means any written notification from a
governmental entity of a violation of law, whether by letter,
memorandum, legal or administrative pleading, or other written
communication.
The definition for ``violation notice'' was inadvertently omitted
from the State regulations in Texas' Final Rule Adoption No. SMRD 2-88
(May 22, 1989). At 30 CFR 943.16(k), OSM required Texas to submit an
amendment that included this definition (57 FR 37447, August 19, 1992).
The proposed definition is substantively identical to the counterpart
Federal definition that existed on August 19, 1992. However, OSM
revised its definition of violation notice on October 28, 1994 (59 FR
54306). As show below, the revised Federal definition clarifies the
types of violations that would form the basis for permit denial under
section 510(c) of SMCRA and under the implementing Federal regulation
at 30 CFR 778.14(c). OSM determined that incorporating by reference the
amended definition of ``violation notice'' into 30 CFR 778.14(c)
eliminated the need for including regulation language on the types of
violation information that must be reported in a permit application.
``Violation notice'' means any written notification from a
governmental entity, whether by letter, memorandum, judicial or
administrative pleading, or other written communication, of a
violation of the Act; any Federal rule or regulation promulgated
pursuant thereto; a State program; or any Federal or State law,
rule, or regulation pertaining to air or water environmental
protection in connection with a surface coal mining operation. It
includes, but is not limited to, or notice of violation; an imminent
harm cessation order; a failure-to abate cessation order; a final
order, bill, or
[[Page 30806]]
demand letter pertaining to a delinquent civil penalty; a bill or
demand letter pertaining to delinquent abandoned mine reclamation
fees; and a notice of bond forfeiture, where one or more violations
upon which the forfeiture was based have not been corrected.
While the Texas definition lacks the clarity of the revised Federal
definition, it is not inconsistent with it. On March 15, 1996
(Administrative Record No. TX-595.06), OSM contacted Texas to discuss
this issue. Texas responded that it will interpret its proposed
definition of ``violation notice'' consistent with the revised Federal
definition. Also, as discussed in finding B.2., the Texas statute at
Article 5920-11, section 21(c) of TSCMRA does require the reporting of
notices of violation in permit applications consistent with the
requirements under section 510(c) of SMCRA. Therefore, the Director
approves the definition of ``violation notice'' at TCMR 701.008(104) to
the extent that Texas interprets it consistent with the Federal
definition. The required amendment at 30 CFR 943.16(k) is being revised
to remove the requirement for a definition of ``violation notice.''
2. TCMR 778.116(m) Identification of Interests and Compliance
Information
In response to the required amendment at 30 CFR 943.16(t) [finding
No. 3, 60 FR 15675, March 27, 1995], Texas proposed revisions to TCMR
778.116(m) that are substantive in nature and contain language that is
substantively identical to the language in the corresponding Federal
regulation provisions at 30 CFR 778.14(c). Therefore, the Director
finds that TCMR 778.116(m) is no less effective than the counterpart
Federal regulation at 30 CFR 778.14(c). The Director approves the
proposed revision to TCMR 778.116(m) and removes the required amendment
at 30 CFR 943.16(t).
3. TCMR 788.225(g)(1) Commission Review of Outstanding Permits;
Automatic Suspension and Rescission
In responds to the required amendment at 30 CFR 943.16(u) [finding
No. 5, 60 FR 15675, March 27, 1995], Texas proposed a revision to TCMR
788.225(g)(1) that is substantive in nature and contains language that
renders its provisions substantively identical to the corresponding
Federal regulation provisions at 30 CFR 773.21(a).
The Federal regulation at 30 CFR 773.21(a) provides that the
regulatory authority's findings with regard to a permittee's challenge
of its decision to suspend and rescind an improvidently issued permit
must be consistent with the provisions of 30 CFR 773.25. The provisions
of 30 CFR 773.25 specify standards for challenging ownership and
control links and the status of violations.
Since the Texas program did not have a direct counterpart to the
Federal standards for challenging ownership and control links and the
status of violations contained in 30 CFR 773.25 or to other
requirements referred to in 30 CFR 773.25, Texas proposed a revision to
TCMR 788.225(g)(1) to require that the Commission's findings with
regard to a permittee's challenge of the Commission's decision to
suspend and rescind an improvidently issued permit be consistent with
the provisions of the Federal requirements at 30 CFR 773.25. Thus,
Texas incorporated by reference the criteria for challenging ownership
and control links and the status of violations specified by the Federal
regulations.
Based on the above discussions, the Director finds the proposed
revision to TCMR 788.225(g)(1) renders its provisions no less effective
than the Federal regulation provisions at 30 CFR 773.21(a). Therefore,
the Director approves the proposed revision to TCMR 778.225(g)(1) and
removes the required amendment at 30 CFR 743.16(u).
B. Texas Surface Coal Mining and Reclamation Act (TSCMRA), Article
5920-11
Under Section 323.007 of the Government Code, the Texas Legislative
Council revised the Texas statutes in a general code update bill. This
bill, Chapter 76, Senate Bill (S.B.) 959, Acts of the 74th Legislature,
Regular Session, 1995, codified the Texas Surface Coal Mining and
Reclamation Act as Chapter 134, Natural Resources Code, and repealed
Article 5920-11, Vernon's Texas Civil Statutes, subject to certain
exceptions. During the same session, Chapter 272, S.B. 271 amended the
Texas Surface Coal Mining and Reclamation Act, Article 5920-11,
Vernon's Texas Civil Statutes. In a letter dated August 14, 1995
(Administrative Record No. TX-597), the Texas Legislative Counsel
explained that ``under Section 311.031(c), Government Code, the repeal
of a statute by a code does not affect an amendment of the statute by
the same legislature that enacted the code. The amendment is preserved
and given effect as part of the code provision that revised the statute
so amended.''
In its August 30, 1995, submittal (Administrative Record No. TX-
595), Texas provided a legal opinion of the effect of the enactments of
S.B. 271 and S.B. 959. The opinion stated that ``the S.B. 271
amendments survive the repealer provision of S.B. 959 and are preserved
as part of Chapter 134 of the Natural Resources Code. The statutory
authority for the rules exists through the preservation of the
amendments made through S.B. 271.'' S.B. 271 amends Article 5920-11 at
section 6(b) of TSCMRA, rulemaking and permitting and section 21(c) of
TSCMRA, permit approval or denial; and it adds new section 21a,
suspension or rescission of improvidently issued permits.
1. Article 5920-11 Section 6(b) of TSCMRA, Rulemaking and Permitting
Pursuant to the Administrative Procedure Act
The substantive revision proposed in section 6(b) of TSCMRA is the
addition of the following provision allowing Texas to issue a notice of
permit suspension or rescission of an improvidently issued permit
without first conducting a formal adjudicative proceeding under the
Texas Administrative Procedure Act (Chapter 2001, Government Code),
while still allowing the permittee to file an appeal for administrative
review of Texas' decision to suspend or rescind a permit.
(b) * * * The Administrative Procedure Act does not apply to
actions by the Commission to suspend or rescind an improvidently
issued permit as authorized by Section 21a of this Act, except that
a permittee who is the subject of a suspension or rescission notice
issued by the Commission under Section 21a of this Act may file an
appeal for administrative review of the notice as provided by
Commission rules, and such review shall be governed by the
Administrative Procedure Act.
In a letter dated July 7, 1993 (Administrative Record No. TX-562),
Texas had explained that it could not automatically suspend or rescind
a permit because its Administrative Procedure Act at section 13(a)
required that all parties in a contested case have the opportunity for
an adjudicative hearing before legal rights, duties or privileges are
determined. The proposed revision will allow Texas to automatically
suspend or rescind a permit.
The general authority for suspension or revocation (rescission) of
permits is found at section 201(c)(1) of SMCRA. The Federal regulation
provisions at 30 CFR 773.21(a) provide for an automatic permit
suspension and rescission process and 30 CFR 773.20(c)(2) requires
regulatory authorities to give permittees the opportunity to request
administrative review of a notice of suspension or rescission of an
improvidently issued permit. Therefore,
[[Page 30807]]
the Director finds the revision to section 6(b) of TSCMRA is not
inconsistent with SMCRA or the Federal regulations and is approving it.
2. Article 5920-11 Section 21(c) of TSCMRA, Reporting Notices of
Violations in Permit Applications
In response to the required amendment at 30 CFR 943.16(r) [finding
No. 2, 59 FR 13200, March 21, 1994], Texas proposed revisions to
section 21(c) of TSCMRA that are substantive in nature and contain
language that is substantively identical to section 510(c) of SMCRA.
The substantive proposed changes include revising the existing
language of the first sentence of section 21(c) by adding the
requirement that applicants report notices of violations of SMCRA and
deleting the words ``within the state'' from the phrase ``in connection
with any surface coal mining operation within the state during the
three-year period * * *.'' Texas further clarified section 21(c) by
adding new language requiring that the schedule include notices of
violations of Federal regulations or Federal or state programs adopted
under SMCRA. Texas, also, revised the existing second sentence (now the
third sentence) by deleting the phrase ``or that the notice of
violation is being contested by the applicant'' and adding the phrase
``or other laws referred to in this subsection'' after the phrases
``with a demonstrated pattern of willful violations of this Act'' and
``with such resulting irreparable damage to the environment as to
indicate an intent not to comply with this Act.''
The proposed revisions remove the previous limitation contained in
section 21(c) of TSCMRA regarding the listing of information for
violations incurred only within the State of Texas. The proposed
revisions clarify that a permit application must include information on
(1) violations of Federal regulations and violations of Federal and
State programs approved pursuant to SMCRA, not just the Texas program,
and (2) air and water environmental protection violations of any
governmental department or agency physically located in any state of
the United States, not just Texas.
Therefore, based on the above discussions, the Director finds
section 21(c) of TSCMRA, as revised, is consistent with and no less
stringent than section 510(c) of SMCRA and is removing the required
amendment at 30 CFR 943.16(r).
3. Article 5920-11 TSCMRA, section 21a, Suspension or Rescission of
Improvidently Issued Permits
Texas proposes to add a new section which authorizes the Commission
to adopt and enforce rules relating to suspension or rescission of
improvidently issued permits that are consistent with and no less
effective than Federal regulations adopted under SMCRA.
Section 201(c)(1) of SMCRA authorizes the suspension or rescission
of permits for failure to comply with any of the provisions of SMCRA or
any rules and regulations adopted pursuant to SMCRA. Furthermore,
Section 503(a)(2) of SMCRA requires State programs to demonstrate that
the State has the capability of carrying out the provisions of SMCRA
and meeting its purposes through ``a State law which provides sanctions
for violations of State laws, regulations, or conditions of permits
concerning surface coal mining and reclamation operations, which
sanctions shall meet the minimum requirements of this Act, including
civil and criminal actions, forfeiture of bonds, suspensions,
revocations * * *''
Therefore, the Director finds section 21a of TSCMRA is consistent
with the intent of sections 201(c)(1) and 503(a)(2) of SMCRA and is
approving it.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Texas program.
The Bureau of Land Management responded on September 15, 1995, that
the revised regulations addressed by the documents appeared to exceed
Federal coal standards, and it had no other comments to that effect
(Administrative Record No. TX-595.04).
The U.S. Army Corps of Engineers responded on September 18, 1995,
that it found the changes to be satisfactory to that agency
(Administrative Record No. TX-595.02).
The Soil Conservation Service (Natural Resources Conservation
Service) responded on October 2, 1995, that it had no comments on the
proposal (Administrative Record No. TX-595.05.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean air act (42 U.S.C. 7401 et seq.).
None of the revisions that Texas proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA, Region VI (Administrative Record No. TX-
595.01). EPA did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
TX-595.01). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Texas on August 30, 1995.
The Director approves, as discussed in: finding No. A.1., TCMR
701.008(104), definition of ``violation notice; finding No. A.2., TCMR
778.116(m), concerning identification of interests and compliance
information; finding No. A.3., TCMR 788.225(g)(1), concerning automatic
suspension and rescission of a permit; finding No. B.1., Article 5920-
11, section 6(b) of TSCMRA, concerning rulemaking and permitting;
finding No. B.2., Article 5920-11, section 21(c) of TSCMRA, concerning
reporting notices of violations in permit applications; and finding No.
B.3., Article 5920-11, section 21a of TSCMRA, concerning suspension or
rescission of improvidently issued permits.
The Director approves the regulations and statutes as proposed by
Texas with the provision that they be fully promulgated in identical
form to the rules submitted to and reviewed by OSM and the public.
[[Page 30808]]
The Federal regulations at 30 CFR Part 943, codifying decisions
concerning the Texas program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
unilateral changes to approved State programs. In the oversight of the
Texas program, the Director will recognize only the statutes,
regulations and other materials approved by OSM, together with any
consistent implementing policies, directives and other materials, and
will require the enforcement by Texas of only such provisions.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
however, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the
Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
National Environmental Policy Act
No evironmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 28, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 943--TEXAS
1. The authority citation for Part 943 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 943.15 is amended by adding paragraph (n) to read as
follows:
Sec. 943.15 Approval of regulatory program amendments.
* * * * *
(n) The amendment submitted by Texas to OSM by letter dated August
30, 1995, and the definition of ``violation notice'' submitted by Texas
to OSM by letter dated September 18, 1995, are approved effective June
18, 1996.
3. Section 943.16 is amended by removing paragraphs (r), (t), and
(u) and by revising paragraph (k) to read as follows:
Sec. 943.16 Required program amendments.
* * * * *
(k) By October 19, 1992, Texas shall submit to OSM a proposed
amendment for the definitions at TCMR 770.101 to replace the
definitions for ``applicant,'' ``application,'' ``complete
application,'' ``general area,'' ``principal shareholder,'' and
``property to be mined,'' or otherwise demonstrate that these
definitions are not necessary for the Texas program to be no less
effective than the Federal regulations.
* * * * *
[FR Doc. 96-15145 Filed 6-17-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-14943 Railroad Accident Reporting
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30940-30987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14943]
[[Page 30939]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
_______________________________________________________________________
49 CFR Part 225
Railroad Accident Reporting; Final Rule
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules
and Regulations
[[Page 30940]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA Docket No. RAR-4, Notice No. 13]
RIN 2130-AA58
Railroad Accident Reporting
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is amending the railroad accident reporting regulations in
several ways. First, railroads are required to adopt internal control
procedures to ensure accurate reporting of accidents, casualties,
injuries, illnesses and highway-rail grade crossing accidents. Second,
railroads are allowed the option to submit, update, and amend accident,
casualty, and highway-rail accident reports through transfer of
information on computer diskettes, magnetic tapes, or electronically
over telephone lines. Third, the accident and injury reporting forms,
including definitions, are amended to allow for the collection of
additional safety information. Fourth, injury and illness, as well as
derailment and collision, recordkeeping requirements are amended to
require the recordation of reportable and accountable, i.e.,
nonreportable, illnesses and injuries as well as the recordation of
reportable and accountable rail equipment accidents and incidents.
Finally, the method for calculation of the accident reporting monetary
threshold is amended to allow for use of publicly available data and
statistics. The purpose of the rule is to enhance the quality of
information FRA collects pertaining to rail equipment accidents and
incidents, as well as illnesses, injuries and casualties to railroad
employees, passengers and other persons on railroad property.
EFFECTIVE DATE: The rule is effective January 1, 1997.
ADDRESSES: Any petition for reconsideration should be submitted to the
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,
400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director,
Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street,
S.W., Washington, D.C. 20590 (telephone 202-501-4863 or 202-366-0543);
or Marina C. Appleton, Trial Attorney, Office of Chief Counsel, FRA,
400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-366-
0628).
SUPPLEMENTARY INFORMATION:
Background
A. Purpose and Structure of the Accident Reporting Regulations
FRA's primary function is to promote safety within the railroad
industry. To carry out its safety mission, FRA requires information
about the conditions of the nation's railroads to set safety standards,
to enforce those standards, and to develop railroad injury and accident
prevention programs. The injury and accident reports submitted by the
railroads form a principal basis for FRA's railroad safety program. FRA
uses injury and accident data for, among other things, establishing its
inspection strategy, determining comparative trends of railroad safety,
and calculating the costs and benefits of proposed safety rules. FRA
also uses railroad accident, injury and illness data to determine if
new regulations are needed or if current regulations are in need of
revision. Because FRA uses the data in all aspects of its operations,
it is important that the data it receives be as accurate and consistent
as possible.
The railroad accident reporting regulations set forth in 49 CFR
Part 225 require railroads to submit monthly reports to FRA summarizing
collisions, derailments, and certain other accidents/incidents
involving damages above a periodically revised dollar threshold, as
well as certain injuries to passengers, employees, and other persons on
railroad property.
Section 225.19 of the regulations divides railroad accidents/
incidents into three categories: (1) highway-rail grade crossing
accidents/incidents; (2) rail equipment accidents/incidents; and (3)
death, injury, or occupational illness accidents/incidents. Every
railroad accident/incident that meets the stated criteria for each
category must be reported to FRA as required under 49 CFR 225.11.
Because the reporting requirements and the information needed regarding
each category of accident/incident are unique, a different reporting
form is used for each category. If the circumstances of an accident/
incident are such that it falls within two or even all three
categories, then a separate reporting form for each category must be
completed by the railroad.
B. General Accounting Office Study on Accident Reporting to FRA
During the late 1980s, Congress, increasingly concerned with
railroad safety, asked the General Accounting Office (GAO) to determine
whether FRA's safety programs were adequate to protect railroad
employees and the general public from injuries associated with train
accidents. GAO studied FRA's railroad injury and accident reporting
data and issued a report in April 1989 (GAO/RCED-89-109) that raised
important questions about the quality of railroad compliance with FRA's
accident reporting regulations. GAO found that there were
underreporting and inaccurate reporting of injury and accident data for
1987 by the railroads it audited.
GAO recommended that FRA (a) require railroads to establish injury
and accident reporting internal control procedures; (b) include an
analysis of railroads' internal control procedures for reporting in
FRA's safety records inspections; (c) provide inspectors with the
authority to take enforcement actions against railroads with deficient
internal control procedures; (d) require railroads to update reports on
workdays lost due to injuries; and (e) clarify FRA's requirement for
railroads to update accident reports when significant changes occur.
C. Advance Notice of Proposed Rulemaking on Accident Reporting
In response to the GAO audit, FRA published an advance notice of
proposed rulemaking (ANPRM) on March 14, 1990 (55 FR 9469) soliciting
comments and suggestions from the public regarding methods for
improving FRA's injury and accident reporting system and its governing
regulations. Interested parties were invited to participate in a public
hearing held on May 17, 1990, and to file written comments prior to May
25, 1990. The responses to that public notice provided additional
information and identified further issues and subissues related to the
matters in the ANPRM. In order to further explore matters related to
the accident/incident reporting system, FRA held informal, open
meetings on June 13, 1991, August 22, 1991, and August 18, 1992, in
Washington, D.C., with members of the Association of American Railroads
(AAR) Committee for Uniformity in Reporting. At the request of rail
labor representatives, FRA also held an informal, open meeting on
October 21, 1991, in Washington, D.C., to discuss the same issues with
representatives of various rail unions.
D. Notice of Proposed Rulemaking on Accident Reporting
FRA published a notice of proposed rulemaking (NPRM) on accident
reporting on August 19, 1994 (59 FR
[[Page 30941]]
42880), and 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, 1994; in
Kansas City, Missouri on October 19, 1994; and in Portland, Oregon on
November 3, 1994. 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.
E. Public Regulatory Conference
In accordance with a notice published on December 27, 1994 (59 FR
66501), FRA held an informal public regulatory conference on January
30-February 2, 1995, in Washington, D.C. to further discuss issues
related to its NPRM on railroad accident reporting. In accordance with
the provisions of the Administrative Procedure Act (5 U.S.C. 551 et
seq.), the public regulatory conference was a continuation of the
accident reporting rulemaking proceeding. The format of the discussions
was informal and employed a topical, interactive approach. Conference
participants offered various alternative approaches in response to the
specific proposals set forth in the NPRM. The AAR and The American
Short Line Railroad Association (ASLRA) requested that they be allowed
to address specific topics by the existing comment deadline of March
10, 1995, and that such comments be incorporated into a second or
supplemental NPRM. FRA believed that a decision as to whether or not to
issue a supplemental NPRM was premature at this point in the rulemaking
proceeding. FRA therefore requested, through publication in the Federal
Register (60 FR 9001), that written comments addressing all issues in
the NPRM be filed no later than March 10, 1995, as specified in FRA's
December 27, 1994, notice. After thorough review and analysis of the
submitted comments, FRA stated that it would decide whether a
supplemental NPRM was warranted for this rulemaking and would issue a
decision in the Federal Register. FRA also stated that the decision
whether or not to issue a supplemental NPRM would be based primarily on
the extent that written comments addressed constructive, creative
solutions to the subjects and issues involved in the NPRM.
F. Supplemental Notice of Proposed Rulemaking
FRA published a notice on July 3, 1995 (60 FR 34498), which stated
that a second or supplemental NPRM would be issued for the rulemaking
to revise the railroad accident reporting regulations. The decision to
issue a supplemental NPRM was made pursuant to requests advanced by
some participants at the public regulatory conference held on January
30-February 2, 1995, in Washington, D.C., during which specific topics
were discussed related to the accident reporting NPRM. It was
anticipated that the supplemental NPRM would address whether or not a
meaningful performance standard for accident reporting could be devised
for use by the railroads. It was also anticipated that the supplemental
NPRM would discuss revised documentation requirements for the proposed
Internal Control Plan; calculation of damage costs for rail equipment
accidents and incidents for the determination of whether the threshold
is met for FRA reporting purposes; and the proposed definition for the
classification ``Worker on Duty'' as it pertains to ``Contractors'' and
``Volunteers'' performing safety-sensitive functions.
FRA reviewed thoroughly the written comments received in response
to the NPRM, the transcripts of the public hearings, as well as the
transcripts of the public regulatory conference. This review revealed
that a supplemental NPRM was not warranted. By notice published in the
Federal Register on January 24, 1996 (61 FR 1892), FRA announced that
it would not issue a supplemental NPRM in the rulemaking; instead, the
final rule would deal fully with major alternative resolutions for the
issues in the rulemaking, explaining clearly why they were endorsed or
rejected in favor of the option selected.
Summary of Public Comments
FRA received comments from the AAR, ASLRA, the Brotherhood of
Railway Carmen (BRC), the Brotherhood of Maintenance of Way Employes
(BMWE), the Brotherhood of Locomotive Engineers (BLE), the Brotherhood
of Railroad Signalmen (BRS), individual members of some of these
associations, the State of California's Public Utilities Commission,
the Contra Costa County Health Services Department of the State of
California, the American Trucking Associations (ATA), the Tourist
Railroad Association, the Association of Railway Museums, Inc. (ARM),
the Illinois Railway Museum, the American Public Transit Association
(APTA), the National Railroad Construction and Maintenance Association,
Inc. (NRC), and individual members of the public.
Section-by-Section Analysis
A. Section 225.33 Internal Control Plan
Proposed Rule
FRA proposed that each railroad must prepare and maintain an
Internal Control Plan (ICP) that required institution of proper
internal control procedures for reporting. FRA believed that requiring
an ICP would ensure the reconciliation and incorporation of accident/
incident and injury/illness data from the various departments within
the railroad for submission to the railroad's reporting officer. The
proposed rule required that the reporting office have access to all
pertinent claims records, including medical records and payroll
records, and be notified by claims and medical departments of each new
case/claim opened by a railroad worker. The proposal also stated that
identification of offices and responsible railroad officers would aid
FRA in identification of procedural weaknesses in reporting. FRA
proposed periodical review of the ICP by FRA in order to detect
procedural deficiencies. If FRA should find the railroad to be in
noncompliance, the proposed regulation allowed FRA to cite that
railroad for violating procedural requirements of the ICP when
inaccurate reporting was found and the cause could be attributed to
internal control weakness.
Comments
This proposal created significant controversy among the railroad
representatives who participated in the proceeding. Most railroad
commenters did not support mandated internal control procedures.
Railroad representatives stated that they did not want to change or
modify any internal control plan, if such a plan was already in place,
to fit the ICP as proposed by FRA. Railroad members also believed that
the plan was too detailed and, as such, would require constant updating
in order to accommodate normal changes such as personnel changes and
reorganizations. These members also perceived that the ICP would result
in additional, unjust monetary penalties for steps missed in the ICP
that led to
[[Page 30942]]
inaccurate accident reporting. As proposed, if a reporting violation
was found, then the railroad might be fined for both the reporting
violation and any departure from the ICP which resulted in the
reporting violation. Instead of an ICP mandated by FRA, AAR and its
constituent members suggested that FRA adopt a performance standard for
determining and measuring a railroad's compliance with reporting
requirements.
ASLRA and its members stated that the performance standard proposed
by AAR should be adopted for Class I railroads, but that such a
standard would be impracticable for the short line industry since each
short line's sample size would be too small to make such an approach
meaningful. ASLRA supported the concept of development and maintenance
of an ICP by other than Class I railroads. However, ASLRA believed that
elements of the ICP should be determined by each railroad to suit its
unique needs and circumstances and that such elements should not be
mandated by FRA.
Rail labor associations and other commenters opposed adoption of
the performance standard proposed by AAR in lieu of specific ICP's
because they believed that such a standard could not ensure reliable,
accurate and uniform reporting data on an industry-wide basis. These
commenters proposed adoption of uniform, formalized ICP's with some
minor modifications to FRA's proposed ICP to allow for more flexibility
in its actual requirements.
Most railroads did not support FRA's provision authorizing civil
penalties for inaccurate reporting due to internal control weakness.
Most other commenters favored an enforcement system in which monetary
penalties might be issued against the railroad for inaccurate reporting
resulting from noncompliance with procedures outlined in the ICP.
AAR's Proposed Performance Standard
AAR proposed that FRA adopt a performance standard for determining
whether a railroad complied with reporting requirements. The
performance standard proposed by AAR was based on methods selected from
a set of statistical procedures developed for use by the U.S. Military
(MIL-STD-105E, 1989) as means of statistically controlling process
quality in a stable environment. Specifically, AAR proposed that:
(a) Each railroad would maintain a written ICP which would achieve
a compliance rate of 99 percent for the accident and incident reports
required under Sec. 225.11. This written ICP would be developed
internally by each reporting railroad.
(b) The compliance rate would be based on a reporting period
covering a closed twelve-month calendar year.
(c) The compliance rate would be determined by comparing accident
and incident reports filed with FRA against the railroad-maintained
data base which contains information about employee injuries, employee
illnesses, as well as property damage, so that determinations about
reportability may be reasonably made.
(d) Audits conducted to determine the compliance rate would conform
to the following procedures:
(1) Each railroad would provide FRA a list of both reportable and
nonreportable accidents/incidents and illnesses/injuries for a
specified calendar year and would make accident/incident and injury/
illness reports available for inspection by FRA;
(2) FRA would take a random sample from the list of these reports.
Sampling procedures would conform to the military performance standard.
Railroads would have to achieve a compliance rate of 99 percent; for
example, one rejection out of a random sample of 100 cases. A rejection
would be defined as a railroad's failure to report a reportable
occurrence; and
(3) Audits would be conducted by FRA personnel, and audit results
would be provided in writing to the railroad.
(e) If a railroad failed to achieve a compliance rate of 99
percent, then the railroad would be subject to a monetary penalty and
would have to submit an action plan within 30 days to FRA explaining
what corrective action had been taken to achieve 99-percent compliance.
(f) If a railroad failed to achieve a compliance rate of 99 percent
in two consecutive audits, then the railroad would be subject to
another monetary penalty; would be required to submit an action plan
within 30 days to FRA explaining what corrective action had been taken
to achieve 99-percent compliance; and would be subject to a follow-up
audit after 30 days from submission of the action plan to FRA. Further,
the railroad might be directed to file with FRA an ICP detailing
internal reporting processes and procedures.
FRA had an independent statistical firm examine and review the
military performance standard to determine whether it was feasible to
apply the standard to measure compliance with accident/incident
reporting requirements. A summary of this report has been included as
Attachment 1. This firm concluded that the military performance
standard invoked by AAR (MIL-STD-105E, 1989) was based on sound
statistical methods; however, several problems existed with the
standard's application to accident reporting. A brief description of
the deficiencies follows:
(a) Reporting by a railroad is not a stable process. AAR's
reporting process has not been fully defined or tested in the real
world; and its stability has not been demonstrated. AAR assumed that
reporting would be a stable process and applied procedures appropriate
only for stable processes.
(b) AAR's sample-inclusion criterion is flawed. The denominator for
nonreportable accidents and incidents can be inflated to ensure that
the 99-percent compliance rate is achieved. The AAR formula for
determining a railroad's compliance rate is:
compliance rate = 1.00 - (number of failures to report reportable
cases/(total number of reportable cases + total number of nonreportable
cases)).
For determining sample size, AAR's sampling plan combines
reportable and nonreportable accidents and incidents. For counting
failures or rejections, AAR's sampling plan recognizes only the
reporting errors in nonreportable accidents and incidents, but not the
reporting errors related to reportable accidents and incidents. In this
scenario, therefore, increasing the number of nonreportable cases would
improve the compliance rate for that reporting railroad.
(c) AAR overstated the compliance rate. Using any reasonable
definition of ``compliance rate,'' the AAR sampling plan, at best,
achieves only a 97-percent compliance rate. See Attachment 1 for
further discussion.
(d) AAR's performance standard lacks requirements for maintaining
written ICPs. The Military Standard includes a general requirement for
developing written procedures (such as an ICP), which FRA could require
to be made available to its inspectors for review. AAR's performance
standard does not permit FRA to direct a railroad to develop an ICP
until after the railroad fails to demonstrate 99-percent compliance in
two consecutive audits. Without written procedures, i.e., an ICP, it is
not possible to guarantee full implementation of management decisions
by line employees.
(e) AAR's performance standard does not implement the full set of
procedures prescribed in the Military Standard. Specifically, AAR's
performance standard fails to implement ``switching procedures,'' which
are needed when consecutive lots or batches are rejected. ``Switching
procedures'' are a set of
[[Page 30943]]
rules that tell users when to adopt ``normal,'' ``tightened,'' or
``reduced'' inspection. AAR's performance standard lacks switching
procedures and rules, and AAR has not determined the compliance rate
bias resulting from this lack.
Even if the AAR's performance standard were revised to deal with
some of these problems, it would still fail to meet the main objective
of the ICP, which is to improve the accuracy of the submitted accident
and injury reports. Hypothetically, a railroad could meet an improved
version of the AAR's performance standard by reporting all of the
reportable accidents and incidents, but the submitted reports could be
riddled with inaccuracies that the ICP would have prevented. For
example, in the case where an employee is injured, the submitted
``Railroad Injury and Illness (Continuation Sheet)'' (Form FRA F
6180.55a) may state that the employee missed five days from work
because the employee's initial medical report indicated that he or she
missed five work days. However, in actuality, the employee missed 20
work days for his or her injury. In this example, the failure to
provide the reporting officer with the correct payroll ``time and
attendance'' information resulted in an inaccurate filed report, with
no harm to the railroad's compliance rate under even a modified AAR
performance standard.
Final Rule
Section 225.33 Internal Control Plan
FRA believes that an Internal Control Plan (ICP) best provides the
procedures necessary to ensure that complete, reliable, and accurate
data is obtained, maintained, and disclosed by the railroads. FRA
investigations have repeatedly found instances in which departments
within the same railroad failed to provide to the railroad reporting
officer information critical to determining reportability or
information necessary for filing an accurate and complete report. Thus,
the final rule adopts the proposed ICP with modifications recommended
by various parties in this proceeding.
The ICP is not a ``command and control'' system; it is a type of
performance standard which ensures the accuracy of a process and, in
this case, the process is accident/incident reporting. This ICP
requirement does not tell the railroad how to develop the internal
control procedures; how the lines of communication should be
established; the type of correspondence to be used; the forms that
should be used; which executives in the company are responsible for
reportability decisions; nor the periods of time necessary for
information exchange. The ICP is a performance standard that dictates
the necessity for communication within each railroad to ensure that
proper reporting will be accomplished. The changes to the proposed ICP
allow each railroad, including the short lines, the flexibility to
design an ICP suitable to the needs and circumstances of the particular
railroad. The ICP, therefore, may vary in size from one that is a few
pages for smaller railroads and short lines, to one of considerable
size for the major carriers.
In general, the ICP challenges the railroads to develop a Total
Quality Management (TQM) system to ensure that there are no errors in
reporting. ``No errors'' means that all reportable accidents and
incidents are reported to the FRA and that each report is accurately
completed prior to submission to FRA, in other words, a ``zero
tolerance'' policy with respect to inaccurate reporting. TQM focuses on
continuous and incremental improvements of process performance. In
contrast, acceptance testing, as in AAR's proposed performance
standard, judges acceptability of process output by applying predefined
criteria. AAR's proposed performance standard suggests, therefore, that
some defects in reporting are permissible.
The ICP also addresses intimidation and harassment of any person
calculated to prevent or discourage such person from either receiving
proper medical treatment for an injury or illness or from reporting an
accident, incident, illness or injury. FRA has become increasingly
aware that many railroad employees fail to disclose their injuries to
the railroad or fail to accept reportable treatment from a physician
because they wish to avoid potential harassment from management or
possible discipline that is sometimes associated with the reporting of
such injuries. FRA is also aware that in some instances supervisory
personnel and mid-level managers are urged to engage in practices which
may undermine or circumvent the reporting of injuries and illnesses.
Railroads must remain proactive in accurate reporting of all reportable
accidents, injuries and illnesses, and must not engage in practices
that could manipulate reportability of these incidents. In some
instances, railroads report an injury or illness to FRA only after FRA
inspectors make management aware that a particular injury or illness
was not reported. Many times FRA inspectors conduct an investigation
pursuant to a complaint from an employee alleging that his or her
injury/illness was not properly reported or was not reported at all.
Again, the railroad usually reports this injury/illness to FRA only
after FRA informs management of the situation.
FRA remains committed to improving the accuracy of the accident
reporting data base and can do so only with the full cooperation of
both rail workers and management. In order to address this widespread
problem, the ICP mandates that each railroad adopt a policy statement
which affirms that intimidation or harassment by any officer, manager,
supervisor, or employee of the railroad that aims to undermine or
negatively influence the treatment of persons with an injury or illness
or that adversely affects the reporting of such injuries and illnesses
will not be tolerated nor permitted and that appropriate prescribed
disciplinary action may be taken by the railroad against such person
committing the harassment or intimidation. The policy statement
addressing intimidation and harassment must be disseminated to all
employees, supervisors and to all levels of railroad management.
Further, the railroad must have procedures in place to process
complaints when the railroad's intimidation and harassment policy has
been violated, and such procedures must also be disseminated to all
employees and management/supervisory personnel.
Consequently, the final rule states in Sec. 225.33(a) that each
railroad shall adopt and comply with a written Internal Control Plan
that must be maintained at the office where the railroad's reporting
officer conducts his or her official business or duties. The ICP must
be amended, as necessary, to reflect any significant changes to the
railroad's internal reporting procedures. The ICP is to include, at a
minimum, each of the following ten components:
(1) A policy statement indicating the railroad's commitment to
complete and accurate reporting of all accidents, incidents, injuries,
and occupational illnesses arising from the operation of the railroad.
This statement should include, in absolute terms, that harassment or
intimidation of any person that is calculated to discourage or prevent
such person from receiving proper medical treatment or from reporting
an accident, incident, injury or illness will not be permitted or
tolerated and will result in some stated disciplinary action against
such person committing the harassment or intimidation.
(2) The dissemination of the policy statement; complaint
procedures. Each railroad must provide to all employees,
[[Page 30944]]
supervisory personnel, and management the policy statement described in
paragraph (a)(1). Each railroad must have procedures to process
complaints from any person when the policy stated in paragraph (a)(1)
is violated, and to impose the appropriate prescribed disciplinary
actions on each person found to have violated the policy. These
procedures must be disclosed to railroad employees, supervisors and
management. The railroad must provide ``whistle blower'' protection to
any person subject to this policy, and such policy must be disclosed to
all railroad employees, supervisors and management.
(3) Copies of internal forms and/or a description of the internal
computer reporting system used for the collection and internal
recording of accident and incident information.
(4) A description of the internal procedures used by the railroad
for the processing of forms and/or computerized data regarding accident
and incident information.
(5) A description of the internal review procedures applicable to
accident and incident information collected, and reports prepared by,
the railroad's safety, claims, medical and/or other departments engaged
in collecting and reporting accident and incident information.
(6) A description of the internal procedures used for collecting
cost data and compiling costs with respect to accident and incident
information.
(7) A description of applicable internal procedures for ensuring
adequate communication between the railroad department responsible for
submitting accident and incident reports to FRA and any other
department within the railroad responsible for collecting, receiving,
processing and reporting accidents and incidents.
(8) A statement of applicable procedures providing for the updating
of accident and incident information prior to reporting to FRA and a
statement of applicable procedures providing for the amendment of
accident and incident information as specified in the FRA Guide for
Preparing Accidents/Incidents Reports.
(9) A statement that specifies the name and title of the railroad
officer responsible for auditing the performance of the reporting
function; a statement of the frequency (not less than once per calendar
year) with which audits are conducted; and identification of the site
where the most recent audit report may be found for inspection and
photocopying.
(10) A brief description of the railroad organization, including
identification of (i) all components that regularly come into
possession of information pertinent to the preparation of reports under
this part (e.g., medical, claims, and legal departments; operating,
mechanical, and track and structures departments; payroll, accounting,
and personnel departments); (ii) the title of each railroad reporting
officer; (iii) the title of each manager of such components, by
component; and (iv) all officers to whom managers of such components
are responsible, by component. A current organization chart would
satisfy items (iii) and (iv).
The penalty schedule is amended so that if the railroad fails to
adopt the ICP, then that railroad is subject to the assessment of a
civil monetary penalty in the amount of $2,500 or, if willful, $5,000.
Also each railroad's reporting error arising from noncompliance with
the ICP subjects that railroad to the assessment of a civil monetary
penalty in the amount of $2,500 or, if willful, $5,000. Consequently,
if a reporting violation is found, then the railroad may be fined for
both the reporting violation and any departure from the ICP which
resulted in the reporting violation. FRA may require the railroad to
make modifications to its ICP to prevent such reporting errors in the
future. However, if there is a reporting violation, but FRA determines
that the ICP was followed by the railroad, then just one violation may
be written. FRA believes that availability of a monetary civil penalty
is necessary in order to compel the railroads to correct procedural
deficiencies and weaknesses in their ICPs. However, in some instances
FRA may employ use of a compliance order or other remedy in lieu of
civil penalties where appropriate in order to promote future
compliance.
Additionally, FRA may assess a civil monetary penalty against any
railroad employee, manager, or supervisor who willfully causes a
violation or noncompliance with any requirement of Part 225, including
Secs. 225.33(a) and (b), requiring adherence to the railroad's
intimidation and harassment policy and noninterference with that
policy. FRA may issue these civil penalties pursuant to 49 U.S.C.
21301, 21302, and 21304. Also see Appendix A to Part 209 of the Code of
Federal Regulations for other sanctions. Criminal penalties and/or
imprisonment provided for in 49 U.S.C. 21311 may also be imposed on any
individual who knowingly and willfully makes a false entry in a record
or report required by the accident reporting regulations or other
regulations issued under 49 U.S.C. chapter 201; destroys, mutilates,
changes, or falsifies such a record or report; does not enter required
specified facts in a such record or report; makes or preserves such a
record or report in violation of such a regulation or order; or who
files a false record or report with FRA. FRA wants to make it clear to
all railroads that it will be diligent in its efforts to ensure that
all parties adhere to and comply with the intimidation and harassment
policy in the ICP. It should be noted that FRA will be aggressive in
pursuing enforcement sanctions against any person found to be in
violation of the railroad's harassment and intimidation policy.
FRA's proposal in Sec. 225.33(b) which stated that railroads must
make ``a reasonable and conscientious effort to adhere to the Plan'' is
too vague and would undoubtedly create considerable variability in
perceptions of compliance. Thus, FRA has eliminated this requirement.
FRA believes that imposition of a monetary penalty and other
enforcement sanctions on the reporting railroad and against individuals
as discussed above provides an incentive for the reporting railroad and
all parties to observe and follow its internal control procedures.
B. Section 225.37 Computer Magnetic Media Transfer and Electronic
Submission
Proposed Rule
FRA proposed, in Sec. 225.37, to amend the current reporting
requirements to provide railroads the option of using magnetic media
(computer diskettes and magnetic tape) in lieu of the paper (``hard
copy'') forms currently submitted to transmit both the initial and
updated versions of the following reports: (a) the ``Rail Equipment
Accident/ Incident Report'' (Form FRA F 6180.54); (b) the ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F
6180.55a); and (c) the ``Highway-Rail Grade Crossing Accident/Incident
Report'' (Form FRA F 6180.57). FRA proposed that reports submitted via
magnetic media would be due within 30 days after expiration of the
month in which the accident/incident occurred.
In particular, the proposed rule allowed railroads, in
Sec. 225.37(a), subject to various conditions, the option to submit
magnetic media that would contain: (a) initial accident/incident
reports, (b) updates or amendments to all reports previously submitted
in hard copy, and (c) updates or amendments to reports initially
transmitted on magnetic media.
The proposed rule allowed railroads to continue to submit hard copy
reports,
[[Page 30945]]
as the current regulations require, but to update the data contained on
the hard copy by way of magnetic media. Alternatively, the proposal
allowed railroads the option of utilizing magnetic media exclusively
for all initial reports and all updates and amendments to those
reports. FRA proposed that all transmissions of updated or amended
reports by means of magnetic media would be added to a year-to-date
file created exclusively for each reporting railroad. This year-to-date
file would include all updates and amendments on reported accidents and
incidents and would be maintained by FRA.
FRA also proposed, in Sec. 225.37(b), to require that when a
railroad utilizes the magnetic media option, whether to submit an
initial report, or an updated or amended report, it was to submit along
with the magnetic media: (a) a sworn report, as required by 49 U.S.C.
20901 (formerly contained at Sec. 1 of the Accident Reports Act, 45
U.S.C. 38), in the form of a notarized ``Railroad Injury and Illness
Summary'' (Form FRA F 6180.55), and (b) a signed ``Batch Control Form''
for magnetic media. The requirement to submit a notarized Form FRA F
6180.55 is necessary to ensure that railroad reporting officials attest
to the validity of the information reported to FRA in the magnetic
media. It also provides FRA with evidence necessary to hold those
officials accountable for false reporting.
Since the magnetic media option is a fairly new concept, FRA
proposed, in Sec. 225.37(c), to require the railroads that utilize this
medium to initially include the hard copy of the particular accident/
incident report with the magnetic media. During this assimilation
period, FRA would compare the data on hard copy reports to the data
contained in the magnetic media to determine if the information
reported via magnetic media was consistent and reliable. This
requirement would ensure quality control and would provide FRA a
measure by which to gauge accurate reporting. After a three-month
period of 100-percent accuracy verification, FRA would notify the
railroad in writing that the hard copy was no longer necessary.
Comments
Nearly all commenters expressed an interest in implementing some
kind of electronic transmission and exchange of data from the railroads
to FRA. Several commenters expressed the desire to have a standard,
consistent format that would assure the credibility of the original
report while others expressed the desire to submit data utilizing a
variety of different reporting formats designed by the individual
railroads. Some commenters recommended that FRA should design and make
available to all railroads a software package of the formats required
for transmission of all types of data in order to ensure uniformity in
reporting. Several commenters suggested that FRA should examine another
option for the transfer of data to FRA, i.e., electronic submission of
data over telephone lines.
Final Rule
Section 225.37 Magnetic Media Transfer and Electronic Submission
Section 225.37 of the final rule allows for the submission of
accident reporting data to FRA by two alternate means: (1) magnetic
media (computer diskette or magnetic tape), or (2) electronically, over
telephonic lines. Submission of this data through either means remains
optional for the reporting railroad.
Section 225.37(a) states that railroads utilizing either option may
submit the following reports, updates to reports, and amendments to
reports to FRA:
(1) the ``Rail Equipment Accident/Incident Report'' (Form FRA F
6180.54);
(2) the ``Railroad Injury and Illness Summary'' (Form FRA F
6180.55);
(3) the ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (Form FRA F 6180.55a);
(4) the ``Highway-Rail Grade Crossing Accident/Incident Report''
(Form FRA F 6180.57); and
(5) the ``Batch Control Form'' (Form FRA F 6180.99). Section
225.37(d) states that each railroad that employs either option must
submit its monthly reporting data to FRA in a year-to-date file format.
For example, the railroad's April submission must contain the reporting
data for the months of January through April, including any amendments
or updates for the months of January through March.
Section 225.37(b) states that each railroad utilizing the magnetic
media option must submit the following:
(1) the computer diskette or magnetic tape;
(2) the ``Batch Control Form'' (Form FRA F 6180.99); and
(3) the notarized hard copy of the ``Railroad Injury and Illness
Summary'' (Form FRA F 6180.55), signed by the railroad's reporting
officer.
Also note that each railroad need submit only one ``Batch Control
Form'' (Form FRA F 6180.99) with its monthly submission since the
``Batch Control Form'' contains the sum totals for the four reports
that appear on the form.
As previously stated, the notarization of Form FRA F 6180.55 is
required by 49 U.S.C. 20901 and this form must continue to be submitted
to FRA in hard copy format. Also note that the proposal requiring the
railroad reporting officer's signature on the Batch Control Form is not
adopted in the final rule. The format for the Batch Control Form is set
forth in Attachment 2 to this final rule.
Legislation before Congress (the ``Department of Transportation
Regulatory Reform Act of 1996'') would amend 49 U.S.C. 20901(a) to
eliminate the requirement that railroads file notarized monthly reports
with FRA regarding accidents and incidents on their properties. The
amendment would allow the Secretary to specify the frequency with which
reports must be filed; provide discretion to set different reporting
requirements for different classes of railroads; and facilitate
electronic filing and a corresponding reduction in paper filings. It is
believed these amendments would reduce unnecessary expense and delay
associated with filing monthly reports, particularly for small
railroads and those railroads which may have no events to report for a
particular month.
Section 225.37(c) outlines the requirements for submission of data
electronically, through telephonic means. The requirements for
electronic submission parallel those for magnetic media submissions.
The only difference is that a railroad utilizing the electronic
submission option must transmit its year-to-date file reporting data to
an FRA-designated computer. Note, however, that each railroad must
continue to submit the notarized hard copy of the ``Railroad Injury and
Illness Summary'' (Form FRA F 6180.55).
Section 225.37(e) states that, initially, each railroad utilizing
either the magnetic media or electronic submission option must submit
the hard copy report(s) for each accident/incident it reports by such
means. FRA will continually review the hard copy reports against the
data submitted electronically or by means of magnetic media for that
reporting railroad. Once the magnetic media or electronic submission is
in total agreement with the submitted hard copies of the reports for
three consecutive reporting months, FRA will notify the railroad, in
writing, that submission of the hard copy reports is no longer
required. However, note that each railroad must continue to submit the
notarized hard copy of the ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55) with its magnetic media or electronic submissions
until such time that legislation is passed eliminating this
requirement.
The next revised FRA Guide will contain more detail concerning the
submission of data via magnetic media
[[Page 30946]]
or, electronically, over telephone lines or other means.
C. Section 225.27 Retention of Records
Proposed Rule
FRA proposed that railroads that chose to submit their data via
magnetic media or electronically, over telephone lines, as discussed in
the previous section, would remain responsible for having on file hard
copies of the reports identified in the current regulations at
Sec. 225.21. Therefore, FRA proposed, in Sec. 225.27(c), that each
railroad must maintain on file, at one or more central locations
designated by the railroad, a signed copy of both 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), as well
as a copy of all other reports pursuant to Part 225. This requirement
was also meant to include a hard copy of any record submitted via
magnetic media or, electronically, over telephone lines, so as to
enable both federal and State inspectors, as well as other authorized
representatives, a means by which to verify whether the railroad
reported a specific accident/incident or injury/illness to FRA.
Comments
Most railroads expressed concern that the requirement for records
to be maintained at one or more central locations was far too stringent
and impracticable. In contrast, rail labor representatives agreed with
the FRA proposal that railroads should have a hard copy of all records
on file at a central location designated by that railroad. With new
moves by railroads to centralize functions of their operations, the
State of California suggested that railroads should be required to
provide a central location for retention of records within the
boundaries of each State in which it operates.
Final Rule
Section 225.27 Retention of Records
Section 225.27(a) states that each railroad must retain the
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
and the Monthly List of Injuries and Illnesses (both discussed in
detail later in this preamble), as required by Sec. 225.25, for at
least five years after the end of the calendar year to which they
relate. The ``Initial Rail Equipment Accident/Incident Record'' (Form
FRA F 6180.97), as required by Sec. 225.25, must be retained for at
least two years after the end of the calendar year to which they
relate. The ``Initial Rail Equipment Accident/Incident Record'' is
discussed in detail later in this preamble.
Please note that maintenance and access to any record and report
required under this part are discussed in this preamble in the section
entitled ``Access to Records and Reports'' (Sec. 225.35).
D. Reporting Definitions and Forms
1. Form FRA F 6180.45--``Annual Summary Report of Railroad Injury and
Illness''
Form FRA F 6180.45 has been used by the rail industry to report all
deaths, injuries, and occupational illnesses of on-duty railroad
employees that occurred during the calendar year.
Proposal
FRA proposed to eliminate the requirement for submission of the
``Annual Summary Report of Railroad Injury and Illness'' (Form FRA F
6180.45). However, certain blocks of information on this form were
deemed important for accurate injury and illness data analysis.
Information regarding ``Terminations or Permanent Transfers'' found in
column ``8'' on the annual summary report lists the number of cases in
column ``3'' (Total Lost Workday Cases) and column ``7'' (Non-Fatal
Cases without Lost Workdays) that resulted in either the termination or
the permanent transfer of the employee for reasons related to the
sustained injury or occupational illness. FRA proposed to move the
block designated ``Terminations or Permanent Transfers'' to the
``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form FRA
F 6180.55a). Similarly, FRA proposed to move the blocks that solicit
information on ``Establishments Included in this Report'' and ``Average
Employment in Reporting Year'' on the annual summary report to the
``Annual Railroad Report of Employee Hours and Casualties, by State''
(Form FRA F 6180.56).
Comments
Commenters agreed with FRA's proposal to eliminate Form FRA F
6180.45 and to transfer the information blocks pertaining to
``Terminations or Permanent Transfers,'' ``Establishments Included in
this Report, and ``Average Employment in Reporting Year'' to other
existing reporting forms.
Final Rule and Decision
The final rule eliminates the requirement for railroads to submit
the ``Annual Summary Report of Railroad Injury and Illness'' (Form FRA
F 6180.45). Blocks that solicit information on ``Establishments
Included in this Report'' and ``Average Employment in Report Year'' are
transferred to the ``Annual Railroad Report of Employee Hours and
Casualties, by State'' (Form FRA F 6180.56) as blocks ``4'' and ``5,''
respectively. The block designated ``Termination or Permanent
Transfer'' is transferred to the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' (Form FRA F 6180.55a) as block ``5r.''
2. Form FRA F 6180.54--``Rail Equipment Accident/Incident Report''
Collisions, derailments, explosions, fires, acts of God, and other
events involving the operation of standing or moving on-track equipment
resulting in more than $6,300 of reportable damage (the current
reporting threshold) must be reported using Form FRA F 6180.54. FRA
proposed to make limited changes to the ``Rail Equipment Accident/
Incident Report.'' The format for the revised ``Rail Equipment
Accident/Incident Report'' (Form FRA F 6180.54) is set forth in
Attachment 3 to this final rule.
a. Special Study Blocks
Proposal
FRA proposed establishment of three new blocks on Form FRA F
6180.54, each designated as a ``Special Study Block'' (SSB), to collect
information on specific accident issues over a specified time period in
response to particular hazards or associated railroad risks that are of
safety concern.
Comments
AAR and its constituent members opposed the addition of the special
study blocks to the ``Rail Equipment Accident/Incident Report'' (Form
FRA F 6180.54). AAR stated that gathering information, as the need may
arise, would be somewhat expensive due to the computer programming
necessary to complete the SSB information. These same members stated
that collection of SSB information would be time consuming for the rail
industry since instructions would have to be issued to the field as to
what type of information is actually needed.
Several union representatives felt that the addition of the SSBs to
Form FRA F 6180.54 was necessary to collect pertinent data but that FRA
should be very specific in its information request.
Other parties stated that if FRA decided not to add the SSBs as
proposed, then the block allowing for a narrative description of the
special event should be completed by the reporting railroad only when
other blocks did not define the special circumstances surrounding the
accident.
[[Page 30947]]
Final Decision
The ``Rail Equipment Accident/Incident Report'' (Form FRA F
6180.54) contains two SSBs in block ``49.'' As the need arises, FRA
will notify the railroads in writing or, if appropriate, through
publication in the Federal Register, of the purpose and the type of
information that is to be collected. FRA will be as specific as
possible in order to minimize both costs and the amount of time
associated with the collection of this new information. Each SSB has 20
characters in order to standardize the data structure for computer
files. FRA believes the SSBs will prove extremely valuable in
collecting information to help FRA identify and evaluate issues of
safety concern as well as other nonsafety issues as the need arises.
FRA anticipates that use of one or more SSBs will be occasional,
rather than continuous. As appropriate, FRA will consult with the
Railroad Safety Advisory Committee (RSAC) before formulating the
respective information collections.
b. Reporting Definitions
Proposal
First, FRA proposed to make it clear that when estimating damage
costs, the labor costs to be reported are only the direct labor costs
to the railroad, e.g., hourly wages, transportation costs, and hotel
expenses. The cost of fringe benefits would be excluded when
calculating direct labor costs. Second, for services performed by a
contractor, FRA proposed that the railroad would estimate a direct
hourly labor cost by multiplying the contractor's total labor hours
charged to the railroad by the applicable direct hourly wage rate for a
railroad worker in that particular craft. Third, FRA proposed to make
it clear that overhead is to be excluded from damage costs due to the
unacceptable non-uniform treatment of overhead under the current
process. Lastly, FRA proposed that material costs would be calculated
based upon the costs of acquiring new material, even if the railroad
chose to use refurbished or used material in its actual repairs.
Comments
Most commenters favored the proposal to include only direct labor
costs when estimating damage costs for labor, and to exclude overhead
costs from reporting. On the other hand, most railroads did not support
the proposal that material/equipment costs should be calculated based
upon the costs of newly acquired material, even if the railroad chose
to use refurbished or used material in its actual repairs. Railroad
representatives stated that if the railroad has available, or is able
to obtain, used material to repair or replace ``in kind'' the damaged
material, charging the material at an artificial cost would
inaccurately assess the real economic impact of the incident. Further,
these commenters stated that to charge material ``incorrectly'' would
require railroads to set up expensive duplicate recordkeeping. Most
railroad representatives also stated that it would be difficult to
derive the equivalent direct labor hours and rates from contractual
services involved in railroad accident and repair costs.
Most rail labor associations stated that the costs of all materials
utilized to effectuate repair (whether to new, used or refurbished
equipment) should be based upon a uniform cost for new material and
that such costs should be determined by FRA using a uniform scale.
These commenters stated that such standardized costs based on a uniform
scale would eliminate any advantage or disadvantage relative to the
volume of materials purchased, the vendor or manufacturer used, or the
age of equipment or materials involved in the incident. Further, rail
labor representatives favored standardized person-hour costs to assure
a uniform mechanism for accurate comparison of identical or similar
accidents. Using this approach, these commenters stated that accident
reporting would be reduced to a ``level playing field'' from one
railroad to the next.
Final Decision
When estimating damage costs, the labor costs to be reported are
only the direct labor costs to the railroad, e.g., hourly wages,
transportation costs, and hotel expenses. The cost of fringe benefits
is excluded when calculating direct labor costs. Overhead is also
excluded when calculating damage costs due to the unacceptable non-
uniform treatment of overhead under the current process.
For services performed by a contractor, a direct hourly labor cost
is calculated by multiplying the contractor's total labor hours charged
to the railroad by the applicable direct hourly wage rate for a
railroad worker in that particular craft. However, if a railroad cannot
match the equivalent craft to the labor hours spent by a contractor,
then the railroad must use the loaded rate, i.e., the cost by hour for
labor, fringe benefits, and other costs and fees for services charged
by the contractor for the tasks associated with the repair of the
track, equipment, and structures due to the train accident.
Due to the controversy surrounding FRA's proposal to calculate
material costs based upon the costs of acquiring new material, even if
the railroad chose to use refurbished or used material in its actual
repairs, FRA has decided to reexamine this issue in a subsequent
rulemaking for the accident reporting regulations in consultation with
the Railroad Safety Advisory Committee. Therefore, the current
methodology used to calculate material costs, i.e., depreciated value
estimates, will continue to be used by all railroads.
c. Filing of an Amended Form FRA F 6180.54
As stated in the proposed rule, the FRA Guide was changed to
specifically provide that amended reports are filed only if
subsequently acquired information showed the damage to be at least a
ten-percent variance from the amount originally reported to FRA (see
page V-2 of the FRA Guide). This change became effective January 1,
1993.
3. Form FRA F 6180.55a--``Railroad Injury and Illness Summary
(Continuation Sheet)''
The ``Railroad Injury and Illness Summary (Continuation Sheet)''
(Form FRA F 6180.55a) collects information about injuries, fatalities,
and illnesses of railroad workers, trespassers, contractors, and
passengers and about highway-rail grade crossing injuries and
fatalities. FRA proposed numerous changes to this form in order to
collect data that would aid in development of railroad injury and
accident prevention programs. The format for the revised ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 6180.55a)
is set forth in Attachment 4 to this final rule.
a. Exposure to Hazardous Materials
Proposal
FRA proposed to add an additional block to Form FRA F 6180.55a to
collect data on the number of persons injured, as well as the type of
injury (e.g., burn, inhalation, rash), due to release and exposure to
hazardous materials.
Comments
Some commenters supported the proposal to add this block of
information while others stated that this type of information would be
better collected by expanding the existing injury/illness codes
currently used to complete Form FRA F 6180.55a. Several commenters
expressed concern with this proposal since they believed it would be
difficult to obtain this information, especially in the case
[[Page 30948]]
where the individual does not tell the railroad that he or she was
exposed to hazardous materials.
Final Decision
Form FRA F 6180.55a contains block ``5q'' entitled ``Exposure to
Hazmat,'' which is used to collect data on the number of persons
injured and the type of injury resulting from exposure to hazardous
materials.
The Research and Special Projects Administration (RSPA) collects
injury and fatality data associated with the release of hazmat. RSPA
Form DOT 5800.1 counts the number of fatalities, hospitalized injuries
and non-hospitalized injuries associated with a hazmat release.
However, RSPA's data cannot provide FRA with the type of person injured
or the type of exposure. FRA believes that collection of this
information is critical to its data base. The next revised FRA Guide
will contain the codes used to complete this block.
FRA does not agree with the comments that obtaining information on
hazardous materials exposure would be very difficult for a railroad to
obtain. For employees of the railroad, most would inform their employer
of such exposure and, for those employees who did not inform their
employer, the railroad would not have knowledge of the exposure and
therefore would not be able to report it on the Form. Further, for
members of the general public, the reporting railroad usually can
gather information on their exposure to release of a hazardous material
from the claims filed by such persons.
b. County/Day of Month/Time of Day
Proposal
FRA proposed the addition of blocks to collect information on the
county where the incident occurred, as well as the day of the month and
the time of day when the incident occurred.
Comments
Most commenters believed that information that would help pinpoint
and identify an accident site was useful and would help identify
problem areas and regional patterns. A few commenters stated that
present requirements for location information provide sufficient
information to identify accident sites.
Final Decision
Form FRA F 6180.55a contains blocks ``5b'' (day of the month);
``5c'' (time of day); and ``5d'' (county) in order for FRA safety
inspectors to determine which sites or railroad shops have more
injuries or illnesses and to assist FRA inspectors in records
inspections.
c. Gender/Ethnicity.
Proposal
FRA proposed requiring the gender and ethnicity of the person
injured or ill in an effort to help identify whether particular groups
of individuals, particularly trespassers, are more susceptible than
others to certain injuries and illnesses.
Comments
Almost all commenters opposed the addition of blocks to gather
information on the ethnicity and gender of the injured or ill person.
These commenters stated that reporting of gender and ethnicity would
lead to misunderstandings between employees and supervisors as to why
this information was necessary and, that for trespassers, verification
of ethnicity would be difficult, if not impossible.
Final Decision
FRA agrees that collection of information, particularly with
respect to ethnicity, would be difficult to collect and may be
perceived as violating privacy rights of the employee, trespasser,
passenger or any other individual injured in a train related accident/
incident. Therefore, the proposed blocks to collect gender and
ethnicity information on the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' are not adopted in the final rule.
d. Circumstance Codes
Proposal
FRA proposed to develop new codes, in addition to those currently
used, to describe the cause and/or circumstance of injuries and
illnesses not currently covered by the regulations. Specifically, these
circumstance codes would be used to complete the following blocks of
information on Form FRA F 6180.55a: ``Physical Act,'' ``Location,''
``Event,'' ``Result,'' and ``Cause.''
Comments
Most commenters agreed that the existing occurrence codes were
outdated and in need of revision; however, they stated that there was
no need to add an entire set of new circumstance codes. These
commenters stated that some of the circumstance codes, as proposed,
were redundant and lacked objectivity and thus recommended revision of
the existing occurrence codes through the AAR's Uniformity in Reporting
Committee. Other commenters believed that the addition of the proposed
codes was necessary and desirable because such data would help identify
particular hazards.
These commenters also suggested that FRA should expand the codes to
include special non-employee cause codes.
Final Decision
The occurrence codes used to best describe the event or activity
that caused the casualty (found in Appendix F of the FRA Guide) will
become obsolete as of December 31, 1996. A set of codes will be
developed to complete the information in blocks ``5j--Physical Act,''
``5k--Location,'' ``5l--Event,'' ``5m--Result,'' and ``5n--Cause'' for
Form FRA F 6180.55a. FRA will shortly issue a letter requesting one or
more special meetings with an advisory committee or, with the AAR
Committee for Uniformity in Reporting, members of ASLRA, rail labor
associations, and other interested groups, to assist in the development
of the new circumstance codes for reporting accidents/incidents.
e. Termination or Permanent Transfer
Since FRA eliminated the requirement for submission of the ``Annual
Summary Report of Railroad Injury and Illness'' (Form FRA F 6180.45),
data on ``Termination or Permanent Transfer'' is now collected in block
``5r'' on the ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (Form FRA F 6180.55a).
f. Narrative on Unusual Circumstances.
Proposal
FRA proposed the addition of a narrative block on Form FRA F
6180.55a that would allow the reporting railroad the opportunity to
provide details (up to 250 characters) on any unusual circumstance(s)
surrounding the railroad worker's injury or illness.
Comments
Many commenters expressed concern regarding the intended use of the
narrative and questioned whether or not completion of the narrative
would be optional for the reporting railroad.
Final Decision
Form FRA F 6180.55a contains a narrative block ``5s'' that allows
the railroad the opportunity to further explain unusual circumstances
surrounding a worker's injury or illness using up to 250 characters.
Completion of this narrative is mandatory for the reporting railroad
unless the injury or illness can be adequately described using all
other entries (information blocks) on the form.
[[Page 30949]]
4. Form FRA F 6180.55--``Railroad Injury and Illness Summary''
The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55) is
used by the industry to summarize a railroad's accidents/incidents for
a given month. This report must be filed with FRA even when no
accidents/incidents occurred during the reporting month.
The FRA Guide currently classifies persons as:
(1) Employees on Duty (Class A),
(2) Employees Not on Duty (Class B),
(3) Passengers on Trains (Class C),
(4) Other Nontrespassers (Class D),
(5) Trespassers (All Classes)(Class E), and
(6) Contractor Employees (Class F).
These ``person'' classifications are used by the reporting railroad
for completing the ``Railroad Injury and Illness Summary'' (Form FRA F
6180.55) and the ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (Form FRA F 6180.55a).
The format for the revised ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55) is set forth in Attachment 5 to this final rule.
a. Classifications of Persons
Proposal
1. ``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On
Railroad Property''
FRA proposed to add a new classification of person entitled
``Nontrespassers--Off Railroad Property'' to include those individuals
(nontrespassers) who are injured while off railroad property and to
distinguish them from nontrespassers injured while on railroad
property.
Comments
All commenters supported the proposal for the breakdown of the
classification ``Nontrespassers'' into the classifications of
``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On
Railroad Property'' and believed that these distinctions would be
useful in identifying particular safety problems with these person
groups.
Final Decision
The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55)
contains the classifications of persons entitled ``Nontrespassers--On
Railroad Property'' (Class D) and ``Nontrespassers--Off Railroad
Property'' (Class J). An injury ``off railroad property,'' includes an
injury resulting from an event, such as a derailment or collision, that
begins on railroad property but ends on public or private non-railroad
property, so long as the injury is incurred while the person is
physically located off railroad property. Similarly, if a derailment
results in a release of hazardous materials onto public or private non-
railroad property and the hazardous material injures a
``Nontrespasser'' located on public or private non-railroad property,
the injury is reported as an injury to ``Nontrespassers--Off Railroad
Property'' (Class J). Conversely, injuries to nontrespassers occurring
while on public or private railroad property are reported as injuries
to ``Nontrespassers--On Railroad Property'' (Class D).
2. ``Worker on Duty'' and ``Worker Not on Duty''
FRA proposed that a ``Worker on Duty'' be defined as an individual
who receives direct monetary compensation from the railroad or who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad. FRA proposed that the
classifications ``Worker on Duty'' (Class A) and ``Worker Not on Duty''
(Class B) would replace the presently used classifications of persons
``Employee on Duty'' (Class A) and ``Employee Not on Duty'' (Class B),
respectively. Additionally, FRA proposed that the definition of a
``Worker on Duty'' would be expanded to include individuals who do not
necessarily receive direct compensation from the railroad (including
certain contractor employees and volunteers) and who perform either (i)
the operation of on-track equipment or (ii) any other safety-sensitive
activity for the reporting railroad.
Comments
Most commenters did not object to the proposal to change the terms
``Employee on Duty'' and ``Employee not on Duty'' to ``Worker on Duty''
and ``Worker not on Duty,'' respectively. Commenters, however, did
object to the proposed expansion of the definition of a ``Worker on
Duty'' to include ``Contractors'' and ``Volunteers'' who perform either
safety-sensitive functions for the railroad or who operate on-track
equipment. Commenters did not want injuries and illnesses sustained by
such contractors and volunteers to be counted under the ``Worker on
Duty'' classification. Nor did commenters want the hours worked by such
``Contractors'' and ``Volunteers'' to be reported as ``railroad worker
hours.''
Railroads strongly opposed the proposal to make carriers
responsible for gathering and submitting information relative to hours
worked by contractor employees. Railroad representatives claimed that
they did not have data on contractor hours and had no process in place
to accumulate and verify total hours worked by contractor employees.
Railroads believed that if FRA deemed this information critical to its
data base, then the contractor should be compelled to report its hours
directly to FRA or other pertinent federal agencies, such as the
Occupational Safety and Health Administration (OSHA).
Final Decision
A ``Worker on Duty--Employee'' (Class A) is defined as an
individual who receives direct monetary compensation from the railroad.
All reportable injuries and illnesses are reported as those to a
``Worker on Duty--Employee'' (Class A) in block ``5f'' on Form FRA F
6180.55a together with the applicable job code series of the service
performed.
An ``Employee not on Duty'' (Class B) is defined as an individual
(i) who receives direct monetary compensation from the railroad and
(ii) who is on railroad property for purposes connected with his or her
employment or with other railroad permission, but (iii) who is not ``on
duty'' as currently defined in the FRA Guide.
3. (i) ``Volunteer'' and (ii) Volunteer or Contractor Employee Who Is
Classified as a ``Worker on Duty''
FRA proposed that ``Volunteer'' be added to the classes of persons,
for purposes of completing Sections A and B on Form FRA F 6180.55, and
that ``Volunteer'' be defined to include an individual who willingly
performs a service for the reporting railroad; who does not receive
direct monetary compensation from that railroad; and who is not engaged
in either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the reporting railroad. As proposed, such
injuries or illnesses sustained by this volunteer would be reported on
the ``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form
FRA F 6180.55a) as injuries to a ``Volunteer.'' Further, FRA proposed
that the railroad report all hours for that tour of service as
``volunteer hours'' on the ``Railroad Injury and Illness Summary''
(Form FRA F 6180.55).
In contrast, FRA proposed that injuries or illnesses sustained by
an individual, including a ``Volunteer'' or a ``Contractor'' who was
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad, would be reported as
[[Page 30950]]
injuries/illnesses to a ``Worker on Duty'' (Class A) on the ``Railroad
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F
6180.55a). Further, FRA proposed that the railroad report all hours
worked by such a ``Volunteer'' or ``Contractor'' for that tour of
service as ``railroad worker hours'' on the ``Railroad Injury and
Illness Summary'' (Form FRA F 6180.55).
FRA further elaborated on this issue at the public regulatory
conference held in Washington, D.C. where FRA proposed development of
three new subclasses of ``Worker on Duty,'' which would include (i)
``Worker on Duty--Employee,'' (ii) ``Worker on Duty--Contractor,'' and
(iii) ``Worker on Duty--Volunteer.''
Comments
Many commenters supported the development of the three
classifications of a ``Worker on Duty'' as proposed and discussed at
the public regulatory conference. These commenters stated that the
three classifications would be beneficial for recordkeeping purposes
and would aid in tracking the frequency rate of accidents and injuries
for each person category. Commenters agreed that the three proposed
classifications of ``Worker on Duty'' were qualitatively and
quantitatively different in terms of training, tenure, supervisory
oversight, motivational and disciplinary regimes, and experience and,
that such a distinction should be captured in FRA's database to ensure
the opportunity to analyze these differences. Many railroads supported
the development of the three classifications of a ``Worker on Duty''
provided that the FRA reportable injury ratio would still reflect only
the classification of ``Worker on Duty--Employee'' (Class A). As stated
previously, most commenters we
FR Doc. 96-14943 Railroad Accident Reporting
re opposed to reporting injuries and
illnesses sustained by ``Contractors'' and ``Volunteers'' who perform
either ``safety-sensitive functions'' or who ``operate on-track
equipment'' under the classification of ``Worker on Duty.'' These
commenters believed that a distinction between railroad employees and
such contractors and volunteer workers should be maintained for
reporting purposes and, that such a distinction would allow FRA to
compare the accident/injury rates of ``Railroad Workers on Duty'' to
those of ``Contractors'' and/or ``Volunteers.''
Railroads also opposed reporting hours worked by a ``Volunteer'' or
``Contractor'' who was engaged in either (i) the operation of on-track
equipment or (ii) any other safety-sensitive function for the railroad
as ``railroad worker hours'' on Form FRA F 6180.55.
Final Decision
A ``Worker on Duty--Volunteer'' (Class H) is a volunteer who does
not receive direct monetary compensation from the railroad and who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Section 209.303 of title 49 of the Code of Federal Regulations
describes ``safety-sensitive functions'' as applying to the following
individuals:
(a) Railroad employees who are assigned to perform service subject
to the Hours of Service Act (45 U.S.C. 61-64b) during a duty tour,
whether or not the person has performed or is currently performing such
service, and any person who performs such service;
(b) Railroad employees or agents who:
(1) Inspect, install, repair, or maintain track and roadbed;
(2) Inspect, repair, or maintain, locomotives, passenger cars, and
freight cars;
(3) Conduct training and testing of employees when the training or
testing is required by the FRA's safety regulations; or
(c) Railroad managers, supervisors, or agents when they:
(1) Perform the safety-sensitive functions listed in paragraphs (a)
and (b) of this section;
(2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section;
or
(3) Are in a position to direct the commission of violations of any
of the requirements of parts 213 through 236 of this title.
Note that there have been amendments and additions to the set of
railroad safety regulations found in the Code of Federal Regulations;
thus, ``safety-sensitive functions'' in Sec. 209.303(c)(3) is
interpreted to include railroad managers, supervisors, etc., when they
are in a position to direct the commission of violations of any of the
requirements of parts 213 through 240 of title 49 of the Code of
Federal Regulations.
Hours worked by a ``Worker on Duty--Volunteer'' (Class H) are not
reported on any form because FRA recognizes from the comments received
in response to this proposal that railroads may have difficulty in
acquiring this information.
A volunteer who does not receive direct monetary compensation from
the railroad and who is not engaged in either (i) the operation of on-
track equipment or (ii) any other safety-sensitive function for the
railroad as defined in Sec. 209.303 is classified as a ``Volunteer--
Other'' (Class I), and hours worked by this person also are not
reported on any FRA form.
Similarly, a ``Worker on Duty--Contractor'' (Class F) is an
employee of a contractor for a railroad who does not receive direct
monetary compensation from the railroad and who, while on railroad
property, is engaged in either (i) the operation of on-track equipment
or (ii) any other safety-sensitive function for the railroad as defined
in Sec. 209.303. Hours worked by persons in Class F are not reported on
any FRA form due to the difficulty railroad representatives expressed
they would have in acquiring this data.
A contractor employee for a railroad who does not receive direct
monetary compensation from the railroad and who is not engaged in
either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the railroad as defined in Sec. 209.303
is classified as a ``Contractor--Other'' (Class G) and hours worked by
this person are similarly not reported on any FRA form.
Also note that the FRA reportable injury ratio will continue to
reflect only injuries sustained by the persons in Class A, ``Worker on
Duty--Employee.'' This will preserve the bench marking tool utilized by
the railroad industry while ensuring that FRA has the information
necessary to distinguish injuries between railroad workers, and
contractors and volunteers engaged in any safety-sensitive function or
in the operation of on-track equipment.
To summarize, Form FRA F 6180.55 (Railroad Injury and Illness
Summary) now contains the following classifications of persons:
(1) Worker on Duty--Employee (Class A),
(2) Employee not on Duty (Class B),
(3) Passengers on Trains (Class C),
(4) Nontrespassers--On Railroad Property (Class D),
(5) Trespassers (Class E),
(6) Worker on Duty--Contractor (Class F),
(7) Contractor--Other (Class G),
(8) Worker on Duty--Volunteer (Class H),
(9) Volunteer--Other (Class I), and
(10) Nontrespassers--Off Railroad Property (Class J).
These classifications will not be defined in the rule text for the
accident reporting regulations; rather, they will be defined in the
next revised FRA Guide.
The following are examples of situations involving reportable
injuries suffered by a ``Worker on Duty--Volunteer,'' a ``Volunteer--
Other,'' a
[[Page 30951]]
``Worker on Duty-- Contractor,'' and a ``Contractor--Other'' in the
course of different types of work performed:
Example 1. A volunteer operates a locomotive for an excursion
railroad. Operation of a locomotive clearly falls within the realm
of ``operation of on-track equipment.'' If the volunteer sustains a
reportable injury during operation of the locomotive, then the
incident is reported on the ``Railroad Injury and Illness Summary
(Continuation Sheet)'' (Form FRA F 6180.55a) as an injury to a
``Worker on Duty-- Volunteer'' (Class H), with the applicable job
code series.
Example 2. A volunteer sells memorabilia at a historic railroad.
Selling memorabilia does not fall within the scope of either ``the
operation of on-track equipment'' or ``any other safety-sensitive
function.'' When such a volunteer sustains a reportable injury, such
injury, is reported on Form FRA F 6180.55a as an injury to a
``Volunteer--Other'' (Class I).
Example 3. A volunteer sells tickets for train rides on a
tourist railroad and also clears vegetation adjacent to roadbed.
Under 49 CFR 213.37, vegetation is to be cleared from the roadbed
for safe rail operations; vegetation clearing is thus an aspect of
maintaining roadbed under Sec. 209.303(b)(1) and, therefore,
considered a ``safety-sensitive function.'' Any injury or illness
sustained by the volunteer during the vegetation clearing is
classified as one to a ``Worker on Duty--Volunteer'' (Class H) with
the applicable reporting requirements for purposes of Form FRA F
6180.55a. If any reportable injury is sustained by the volunteer
during the process of selling tickets, then such injury is
classified as one to a ``Volunteer--Other'' (Class I). If, however,
the volunteer sells tickets and then clears vegetation during the
same tour, then all injuries are considered as those attributable to
a ``Worker on Duty--Volunteer'' (Class H). Therefore, when a
volunteer is engaged in ``mixed service,'' the railroad must report
all reportable injuries and illnesses for that volunteer as those to
a ``Worker on Duty--Volunteer'' (Class H) on Form FRA F 6180.55a.
Conversely, when a contractor employee is engaged in such ``mixed
service'' on railroad property, the railroad must report all
reportable injuries and illnesses for that volunteer as those to a
``Worker on Duty-- Contractor'' (Class F) on Form FRA F 6180.55a,
with the applicable job code series of the service performed.
Example 4. The employee of a contractor performs payroll as well
as time-and-attendance functions for the railroad on railroad
property. Such functions are not considered ``safety-sensitive''
because they are not related to the continued safety of the railroad
and do not fall under the definition of any ``safety-sensitive
function'' as defined in Sec. 209.303. Thus, injuries sustained by
this contractor performing those tasks are reported on Form FRA F
6180.55a as those attributable to a ``Contractor--Other'' (Class G).
Example 5. A contractor employee inspects and replaces roller
bearings for the reporting railroad on the railroad's property.
Injuries sustained by this contractor are reported as those to a
``Worker on Duty--Contractor'' (Class F) on Form FRA F 6180.55a.
Under 49 CFR 215.113, cars with defective roller bearings should not
be in service, thus any illness or injury associated with
replacement of roller bearings is a ``safety-sensitive function''
qualifying as an injury or illness attributable to a ``Worker on
Duty-- Contractor'' (Class F). In contrast, if this same injury was
sustained by a contractor employee at the contractor's facility off
railroad property, then such injury would not be reported to FRA.
5. FRA Form F 6180.56--``Annual Railroad Report of Employee Hours and
Casualties, by State''
A summary of all hours worked by railroad employees during the
report year is made on Form FRA F 6180.56. This form is submitted as
part of the monthly ``Railroad Injury and Illness Summary'' (Form FRA F
6180.55) for the month of December of each year. The format for the
revised ``Annual Railroad Report of Employee Hours and Casualties, by
State'' (Form FRA F 6180.56) is set forth in Attachment 6 to this final
rule.
Final Decision
Information on ``Establishments Included in this Report'' and
``Average Employment in Report Year,'' which previously appeared on
Form FRA F 6180.45, is now found on Form FRA F 6180.56 in blocks ``4''
and ``5'' respectively, because, as discussed previously in this
preamble, FRA has eliminated the requirement to submit Form FRA F
6180.45. A column reflecting a count for ``Casualties'' is also added
to Form FRA F 6180.56.
6. FRA Form F 6180.57--``Highway-Rail Grade Crossing Accident/Incident
Report''
Form FRA F 6180.57 collects information on accidents and incidents
occurring at highway-rail grade crossings. Any impact, regardless of
severity, between a railroad on-track equipment consist and any user of
a public or private crossing site, including sidewalks and pathways,
must be reported on this form. The information collected on this report
is vital to identifying and resolving problems at highway-rail grade
crossings. The format for the revised ``Highway-Rail Grade Crossing
Accident/Incident Report'' (Form FRA F 6180.57) is set forth in
Attachment 7 to this final rule.
a. Occupants
Proposal
Under the heading ``Highway Vehicle Property Damage/Casualties'' on
the currently used form, FRA proposed to delete blocks ``43'' through
``45,'' which requested information on the total number of occupants
and the total number of occupants killed and injured, and to replace
those blocks with several new ones to gather additional information on
the number of highway-rail crossing users killed or injured; the total
number of highway-rail grade crossing users involved in the incident;
the number of railroad workers killed or injured; the total number of
people on the train at the time of the incident; and the number of
train passengers killed or injured.
Comments
No negative comments were received in response to this proposal.
Final Decision
Form FRA F 6180.57 requests the following information under the
heading ``Highway Vehicle Property Damage/Casualties'':
Block 46: the number of highway-rail crossing users (i.e.,
pedestrians and vehicle occupants) killed; and the number of highway-
rail crossing users injured;
Block 48: the total number of highway-rail crossing users involved
in the incident (including the driver);
Block 49: the number of railroad employees killed; and the number
of railroad employees injured;
Block 50: the total number of people on the train at the time of
the incident (including passengers and train crew); and
Block 52: the number of train passengers killed; and the number of
train passengers injured.
b. Amtrak/Autotrain Distinction
Proposal
FRA proposed to eliminate the distinction between Amtrak and
Autotrain in item ``1'' on the current Form, as such a distinction is
now obsolete.
Comments
No negative comments were received in response to this proposal.
Final Decision
The distinction between Amtrak and Autotrain is deleted from Form
FRA F 6180.57.
c. Signal Crossing Warning
Proposal
FRA further proposed to clarify the question in block ``32,''
``[w]as the signaled crossing warning identified in item ``31''
operating?'' Item ``31'' listed several types of signal devices (active
and passive). Confusion existed in
[[Page 30952]]
completing this information when the report identified a passive device
and then the railroad reported it as not operating.
Comments
Rail labor associations believed that this information would
effectively capture the status of the warning device at the time of the
accident and that such information was crucial to FRA's data bank to
track the effectiveness of rail safety regulations pertaining to
highway-rail grade crossings. Most other commenters agreed that this
question was in need of further clarification by FRA.
Final Decision
Block ``32'' is now block ``33'' on Form FRA F 6180.57, is entitled
``Signaled Crossing Warning,'' and refers the reader to the reverse
side of the form for instructions and codes in completing this block.
The instructions for completing block ``33'' read as follows:
Only if Types 1-6, Item 32, are indicated, mark in Block 33 the
status of the warning devices at the crossing at the time of the
accident using the following codes:
1. Provided minimum 20-second warning.
2. Alleged warning time greater than 60 seconds.
3. Alleged warning time less than 20 seconds.
4. Alleged no warning.
5. Confirmed warning time greater than 60 seconds.
6. Confirmed warning time less than 20 seconds.
7. Confirmed no warning.
If status code 5, 6, or 7 was entered, also enter a letter code
explanation from the list below:
A. Insulated rail vehicle.
B. Storm/lightning damage.
C. Vandalism.
D. No power/batteries dead.
E. Devices down for repair.
F. Devices out of service.
G. Warning time greater than 60 seconds attributed to accident-
involved train stopping short of the crossing, but within track
circuit limits, while warning devices remain continuously active
with no other in-motion train present.
H. Warning time greater than 60 seconds attributed to track
circuit failure (e.g., insulated rail joint or rail bonding failure,
track or ballast fouled, etc.).
J. Warning time greater than 60 seconds attributed to other
train/equipment within track circuit limits.
K. Warning time less than 20 seconds attributed to signals
timing out before train's arrival at the crossing/island circuit.
L. Warning time less than 20 seconds attributed to train
operating counter to track circuit design direction.
M. Warning time less than 20 seconds attributed to train speed
in excess of track circuit's design speed.
N. Warning time less than 20 seconds attributed to signal
system's failure to detect train approach.
P. Warning time less than 20 seconds attributed to violation of
special train operating instructions.
R. No warning attributed to signal system's failure to detect
the train.
S. Other cause(s). Explain in Narrative Description.
d. Narrative Block
Proposal
A narrative block allowing for up to 250 characters was proposed
for addition to Form FRA F 6180.57 in order to gather information on
unusual causes/circumstances surrounding the highway-rail grade
crossing accident/incident.
Comments
Almost all commenters requested that completion of the narrative
block remain optional on their part.
Final Decision
Form FRA F 6180.57 contains block ``54'', entitled ``Narrative
Description.'' Completion of this narrative is mandatory for the
reporting railroad unless the accident/incident can be described
adequately using all other informational blocks on the form.
e. Special Study Blocks
Proposal
FRA also proposed at the public regulatory conference the addition
of three Special Study Blocks (SSBs) to Form FRA F 6180.57 in order to
gather essential data as the need arises.
Comments
Some commenters believed that SSBs on this form would be useful for
capturing specialized data which could be used, for instance, to
analyze or predict trends in safety hazards or to initiate planning for
correction of identified problems. The American Trucking Associations
(ATA) requested that the use of the SSB should be publicly announced in
the Federal Register so that affected highway users would be aware of
any special study that may be undertaken, and that they be afforded an
opportunity for appropriate input.
Final Decision
The ``Highway-Rail Grade Crossing Accident/Incident Report'' (Form
FRA F 6180.57) contains two special study blocks (SSBs) in block
``53.'' As the need arises, FRA will notify the railroads in writing,
or if appropriate, through publication in the Federal Register, of the
purpose and the type of information that is to be collected. In
conjunction with the Federal Highway Administration (FHWA), FRA will
publish in the Federal Register any announcement affecting highway
users, thus allowing motor carriers the opportunity to provide FRA
pertinent special study information. FRA will be as specific as
possible in order to minimize both costs and the amount of time
associated with the collection of this new information. Each SSB has 20
characters in order to standardize the data structure for computer
files. FRA believes the SSBs will prove extremely valuable in
collecting information to help FRA identify and evaluate issues of
safety concern as well as other nonsafety issues as the need arises.
f. Whistle Bans and Signal System Failure
Proposal
FRA also proposed to add two new questions to the ``Highway-Rail
Grade Crossing Accident/Incident Report'' to gather information on
whether whistle bans were in effect and observed at the time of the
accident/incident, and whether there was 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
next revised FRA Guide.
Comments
Rail labor associations viewed these information blocks necessary
as this information would effectively capture the status of the warning
device prior to the time of the accident. Many railroads stated that
the proposed question on whistle bans was necessary to collect
information on this subject due to the increased focus by the media, as
well as state and federal agencies, on accidents occurring at grade
crossings. A few railroads opposed addition of these questions but
failed to express their reasoning as to why such questions should not
be added to the form. All participants at the public hearings and at
the public regulatory conference acknowledged their concern in
connection with whistle bans and further emphasized the need for
federal regulations requiring the sounding of a locomotive horn upon
approaching and entering public highway-rail grade crossings.
ATA stated that current whistle bans were unacceptable and that
highway users approaching a grade crossing are fully entitled to be
warned of the approach of a train by every practicable means. They
further commented that active warning devices frequently
[[Page 30953]]
malfunction in a manner indicating the approach of a train when such is
not the case. ATA stated that a specific warning of the approach of a
train, through sounding of the whistle, is essential to safety and that
active warning devices were not adequate substitutes for the
requirement to have the engineer sound the whistle.
The proposal to add the question regarding signal system failure to
Form FRA F 6180.57 had a similar response in that some commenters
opposed addition of this question while others stated that the
information was critical to identifying problems at highway-rail grade
crossings. ATA urged that, not only should the existence of a failure
be noted, but that the nature of the failure should be included in the
record. ATA stated that this information could be a significant factor
particularly where active warning devices falsely indicate the approach
of a train.
Final Decision
It is imperative that FRA ascertain as many details concerning
accidents connected with whistle bans. Thus, the ``Highway-Rail Grade
Crossing Accident/Incident Form'' (Form FRA F 6180.57) contains
question ``34'' to gather information on whether whistle bans were in
effect and observed at the time of the accident/incident. The codes for
completing this block will be included in the next revised FRA Guide.
However, the proposal to gather information on whether there was
signal system failure within the last seven calendar days up to and
including the day of the accident is not adopted. FRA collected
information about signal failures and false activations for a period of
27 months over the past several years. The statistical results did not
indicate a correlation between a signal failure and an accident within
seven days of such failure. The burden to collect this information
therefore cannot be justified based upon FRA's study. If new data
should indicate that this information is needed, then FRA will gather
such information using the Special Study Blocks (SSBs) on Form FRA F
6180.57.
g. Motorist Age/Gender/Impairment
Proposal
In order to collect more information on motorists involved in
highway-rail grade crossing accidents, FRA proposed to amend Form FRA F
6180.57 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.
Comments
As to the proposed block for ``Motorist Impairment,'' most
commenters believed the information was useful but preferred that
reporting of this data remain optional for the reporting railroad.
Since all grade crossing accidents are routinely investigated by the
local police, information on motorist impairment is normally provided
to the railroad only after the police conclude their investigation,
which may be several weeks or months after the actual accident. Most
commenters agreed that motorist age and gender information was readily
available and easier to collect than information on motorist
impairment.
Final Decision
Form FRA F 6180.57 does not contain a block on ``Motorist
Impairment.'' If FRA deems this information necessary at some point in
the future, the Special Study Blocks (SSBs) on Form FRA F 6180.57 may
be utilized to collect data regarding impaired motorists.
The ``Highway-Rail Grade Crossing Accident/Incident Report''
contains block ``38'' for the driver's age, and block ``39'' for the
driver's gender (sex). This information is readily available to the
reporting railroad, however, completion of driver's age in block ``38''
and driver's gender in block ``39'' remains optional for the reporting
railroad. However, FRA encourages each railroad to be as diligent as
possible in completing these and any other optional information blocks.
h. Trapped Motorist
Proposal
At the public regulatory conference, FRA proposed the collection of
information regarding situations where motorists are trapped by other
motor vehicle traffic in order to help identify alternative grade
crossing protection systems that may prevent this situation.
Comments
Rail labor associations regarded this information useful for
identifying alternate grade crossing protection systems that may help
prevent this type of situation. A few commenters believed that this
requirement was troublesome because in most cases railroads would have
to make a judgment call. These commenters requested that completion of
this information remain optional for the reporting railroad. ATA
supported the inclusion of this data element so that FRA receive clear
information as to what actually happens in such a situation.
Final Decision
Form FRA F 6180.57 contains entry ``#4. Trapped'' in block ``16''
entitled ``Position'' to allow for the collection of information
regarding situations where motorists are trapped by other motor vehicle
traffic. FRA will include the codes for completion of this entry in the
next revised FRA Guide. The narrative block (block ``54'') can also be
used to explain and expand on the actual occurrence. FRA believes this
information is critical to its data base in order to identify alternate
grade crossing protection systems that may help prevent occurrence of
this type of situation.
7. Form FRA F 6180.78--``Notice to Railroad Employee Involved in Rail
Equipment Accident/Incident Attributed to Employee Human Factor;
Employee Statement Supplementing Railroad Accident Report''
If a railroad should cite an employee human factor as the primary
or contributing cause of a rail equipment accident/incident, then
current regulations require the reporting railroad to complete the
``Railroad Employee Human Factor Attachment'' (Form FRA F 6180.81), and
attach it to the ``Rail Equipment Accident/Incident Report'' (Form FRA
F 6180.54). Additionally, for each employee listed on Form FRA F
6180.81, the reporting railroad must complete part I, ``Notice to
Railroad Employee Involved in Rail Equipment Accident/Incident
Attributed to Employee Human Factor,'' on Form FRA F 6180.78, and must
provide a copy of this form to the employee within 45 days after the
end of the month in which the accident/incident occurred. Upon receipt
of Form FRA F 6180.78, the employee has the option of providing a
statement in part II (entitled ``Employee Statement Supplementing
Railroad Accident Report''). The format for the revised ``Notice to
Railroad Employee Involved in Rail Equipment Accident/Incident
Attributed to Employee Human Factor; Employee Statement Supplementing
Railroad Accident Report'' (Form FRA F 6180.78) is set forth in
Attachment 8 to this final rule.
Proposal
Recipients of the notice (Form FRA F 6180.78) are to include only
those railroad employees who were the primary cause or a contributing
cause of the rail equipment accident/incident. In order to minimize any
confusion or misunderstanding for recipients of the
[[Page 30954]]
notice, FRA proposed refinement of the language in the block entitled
``Notice to Recipient'' so that only those railroad employees who were
determined by the railroad to be the primary cause or a contributing
cause of the rail equipment accident/incident receive Form FRA F
6180.78.
Comments
The few comments received in response to this proposal were
favorable.
Final Decision
The block entitled ``Notice to Recipient'' on Form FRA F 6180.78
reads as follows:
Notice to Recipient. An accident occurred on the above date
which the railroad alleges was at least partially caused by an
action, lack of action, or the physical condition of a railroad
employee. The railroad is sending you this notice because it
believes that you had a role, but may not necessarily be the primary
or only person responsible for the accident's occurrence. The
railroad has reported to FRA that the primary and/or major
contributing cause(s) of this accident are those listed above. Other
causal factors related to this event may be described in the
narrative portion of the railroad's report; a copy of which is
attached.
You may submit a statement to FRA with a copy to this railroad
and comment on any aspect of the railroad's report. The decision
whether to submit such a statement is entirely optional on your
part. If you choose to do so, please see the additional notices and
instructions on the reverse of this form.
D. Recordkeeping
1. Sections 225.25(a) and (b) and the ``Railroad Employee Injury and/or
Illness Record'' (Form FRA F 6180.98)
Proposal
Section 225.25(a) currently refers to the log of injuries and
occupational illnesses at and for each railroad establishment. In order
to accurately identify and review both reportable and nonreportable
railroad injuries and illnesses, FRA proposed to amend Sec. 225.25(a)
to require that railroads maintain a log or report of all reportable
and ``nonreportable'' (i.e., ``recordable'') injuries and illnesses to
railroad employees for each railroad establishment using a new form
entitled ``Railroad Employee Injury and/or Illness Log'' (Form FRA F
6180.98). Over the years, FRA inspectors have found it increasingly
difficult to ascertain whether the railroad is reaching a correct
decision on whether to report a given injury or illness. Thus, the
requirement was proposed in order to alleviate the problem FRA
inspectors encounter during routine inspections. The format for the
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
is set forth in Attachment 9 to this final rule.
Comments
Many commenters expressed concern with the proposal to add
nonreportable injuries (``recordable'' injuries) to the proposed
``Railroad Employee Injury and/or Illness Log.'' Most railroad
representatives stated that this proposal would create another class of
reportable injuries, i.e., nonreportable recordables. These commenters
saw no justification for what they believed was a burdensome exercise
in recordkeeping. They also stated that this proposal would create
another avenue for issuance of citations and that FRA was taking
another step toward classifying every injury as reportable. Some
commenters suggested that the proposed definition of ``recordable'' was
too stringent in that every single injury or illness, however minor,
would have to be logged by the reporting railroad.
Some participants at the public regulatory conference requested
that FRA use the term ``nonreportable'' instead of the proposed
``recordable'' so that FRA's proposed ``recordables'' would not be
confused with OSHA's ``recordables.''
Many commenters urged FRA to allow each railroad use of a railroad-
designed log or form, instead of the specific log proposed in the NPRM,
as long as the railroad captured the data required on the FRA log.
Other commenters favored the proposal to log all ``recordable''
injuries and illnesses, and stated that such information should be
maintained on either FRA's log or some other format.
Final Rule
Recordkeeping--Sections 225.25(a) and (b) and the ``Railroad Employee
Injury and/or Illness Record'' (Form FRA F 6180.98)
FRA concludes that in order to effectively enforce railroad injury
reporting, all injuries and illnesses to railroad employees that arise
from the operation of the railroad and that cause the employee to be
examined or treated by a qualified health care professional must be
recorded using the ``Railroad Employee Injury and/or Illness Record''
(Form FRA F 6180.98). Unless FRA has the opportunity to examine those
injuries and illnesses deemed ``nonreportable'' as well as those deemed
``reportable'' by the railroad, it is difficult for FRA to determine
whether a railroad is properly making the ``reportable'' decision.
FRA agrees that use of the terms ``recordable'' and ``nonreportable
recordables'' to define those injuries and illnesses which are not
reportable to FRA but are recordable on the log may be confusing for
the railroad. The proposed term ``recordable'' or ``nonreportable
recordables'' is replaced therefore with the term ``accountable'' so as
to minimize any confusion.
An ``accountable'' injury or illness is defined as encompassing any
condition, not otherwise reportable, of a railroad worker that is
associated with an event, exposure, or activity in the work environment
that causes 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; however, it may be provided at any
location, including the work site.
Any condition initially classified as accountable, i.e.,
``nonreportable'' or ``recordable,'' may subsequently become reportable
if certain consequences occur. For example, a minor cut that is
disinfected and covered with a bandage may later become infected and
require medical treatment. It would be difficult, if not impossible,
for the railroad to monitor self-treatment of such minor injuries.
Thus, the type of injuries that are generally expected to be recorded
on the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F
6180.98) are those that create a ``documentation trail.'' This
documentation could include records such as: incident reports; health
care provider records; claim payouts; or any other records that may
identify the fact that an employee has sustained physical harm while in
the work environment that required treatment. This broad scope is
necessary since all conditions, regardless of severity, must be
evaluated to determine if the requirements necessary for reporting the
injury/illness have been met.
Section 225.25(a) states that each railroad must maintain either
the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F
6180.98), or an alternative railroad-designed record as described in
Sec. 225.25(b), to record all reportable and accountable injuries and
illnesses to railroad employees that arise from the operation of a
railroad for each railroad establishment where such employees report to
work. Section 225.25(b) outlines the information FRA requires on the
alternative railroad-designed record used in lieu of the ``Railroad
Employee Injury and/or Illness Record.'' All the information requested
on ``Railroad Employee Injury and/or Illness Record'' must be present
on the
[[Page 30955]]
alternative record. Although this information may be displayed in a
different order from that on the Railroad Employee Injury and/or
Illness Record, the order of the information shall be consistent from
one such record to another such record. The order chosen by the
railroad must be consistent for each of the railroad's reporting
establishments. Also note that the reporting railroad may choose to
have additional information on its record extending beyond the
information required on Form FRA F 6180.98.
Section 225.25(a) states that the ``Railroad Employee Injury and/or
Illness Record,'' or its alternate, must be maintained for each
operational railroad establishment, i.e., an establishment wherein
workers report to work such as an operating division, general office,
and major installations such as a locomotive or car repair or
construction facility. FRA believes that this requirement will help
alleviate the difficulty FRA inspectors encounter when attempting to
locate injury and illness information at railroad establishments.
Please refer to the discussion in Sec. 225.25(g) regarding maintenance
of these records at railroad establishments.
Section 225.25(c) states that each railroad must provide the
employee a copy of either the completed ``Railroad Employee Injury and/
or Illness Record'' (Form FRA F 6180.98) or the alternative railroad-
designed record upon his or her request, as well as a copy of any other
record or report filed with FRA or held by the railroad pertaining to
the employee's injury or illness. This requirement is necessary in
order to provide the injured or ill employee a means by which to review
and verify the reporting status of his or her injury or illness.
2. Elimination of Supplementary Record--Former Sec. 225.25(b) Proposal
FRA determined that much of the information requested in the
supplementary record of injuries and illnesses pursuant to former
Sec. 225.25(b) would be collected on the new ``Railroad Employee Injury
and/or Illness Record'' (Form FRA F 6180.98). Thus, FRA proposed
elimination of this supplementary record.
Comments
All comments received in response to this proposal were favorable.
Final Rule
The requirement that each railroad maintain a supplementary record,
as required under former Sec. 225.25(b), is eliminated in the final
rule.
3. Sections 225.25 (d) and (e) and the ``Initial Rail Equipment
Accident/Incident Record'' (Form FRA F 6180.97)
Railroads have been required to maintain a log of only reportable
rail equipment accidents. Information on nonreportable events may be
found in ``unusual occurrence'' reports and ``morning reports'' that
are maintained at various locations by the railroad. However, there is
no guarantee that all of those reports are either available or
complete. As a result, during routine accident/incident records
inspections it is often difficult, if not impossible, for FRA
inspectors to identify the events that were determined by the railroad
to be nonreportable. The format for the ``Initial Rail Equipment
Accident/Incident Record'' (Form FRA F 6180.97) is set forth in
Attachment 10 to this final rule.
Proposal
In order to accurately identify and review both reportable and
nonreportable rail equipment accident/incidents, FRA proposed that
railroads must maintain a log to list all reportable and ``recordable''
rail equipment accidents using a new form entitled ``Rail Equipment
Accident/Incident Log'' (Form FRA F 6180.97). FRA proposed that 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. A scrape or
indentation to rail equipment, however, would not make a rail
equipment/accident recordable if routine rail operations over the track
can continue without such equipment being repaired or removed from
service.
Comments
Rail labor representatives supported use of the proposed
standardized FRA form for reporting certain rail equipment accidents/
incidents deemed nonreportable by the railroad. However, these
commenters proposed that a ``recordable'' accident and incident be
defined as:
Any event not otherwise reportable, involving the operation of
on-track equipment that causes personal injury requiring the worker
to be examined or treated by a qualified health care professional or
causes physical damage to either the on-track equipment or the
track, roadbed, signals and/or structures which requires removal,
replacement or repair of equipment, track, roadbed, signals and/or
structures. Incidents arising from broken knuckles, failed journals,
and dragging equipment that do not cause damage beyond that of the
item of equipment that failed, are not required to be logged on Form
FRA F 6180.97.
Under the definition proposed by rail labor, recordable rail
equipment accidents/incidents would not be limited to those occurring
exclusively on the railroad right-of-way; thus rail equipment
accidents/incidents involving ``shop crafts'' in the performance of
worker duties would be encompassed within the definition.
Many railroad representatives opposed a new log to record
reportable and recordable rail equipment accidents. They stated that
the log would create additional recordkeeping requirements with little
or no real benefit to rail safety and, that the proposal would create
another avenue for FRA to issue fines and penalties for what they
considered to be minor paperwork entries. Railroad representatives also
wanted further clarification on the definition of a ``recordable''
accident/incident especially with respect to what constituted a
``disruption'' to rail service.
Most commenters suggested that the term ``recordable'' should be
replaced with the term ``nonreportable'' so as to limit confusion with
the terminology.
Final Rule
Recordkeeping--Sections 225.25 (d) and (e) and the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97)
As stated previously, FRA agrees that use of the term
``recordable'' or ``nonreportable recordables'' to define those rail
equipment accidents and incidents which are not reportable to FRA but
are required to be recorded on the log may be confusing for the
railroad. The proposed term ``recordable'' or ``nonreportable
recordable'' is replaced therefore with the term ``accountable'' so as
to minimize any confusion.
FRA concludes that both reportable and accountable rail equipment
accidents and incidents must be recorded on the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97). FRA
inspectors must have a means by which they can determine whether the
reporting railroad is accurately making its ``reportability'' decision
pertaining to rail equipment accidents and incidents. In addition,
accountable events may be of
[[Page 30956]]
considerable interest in determining the safety of railroad facilities
and operations.
Further, the definition of an ``accountable'' rail equipment
accident/incident as proposed by rail labor is not adopted in the final
rule. FRA believes that personal injuries resulting from the operation
of on-track equipment do not need to be tied into the ``accountable''
rail equipment accident/incident definition since all reported injuries
and illnesses will be recorded on the monthly injury/illness list. This
list will be posted in a conspicuous location for and at each
establishment as described and discussed in the preamble to this final
rule under the section entitled ``Monthly List of Injuries and
Illnesses'' (Sec. 225.25(h)).
Consequently, an ``accountable'' rail equipment accident/incident
is defined as encompassing 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 from the track before any rail operations over the track can
continue. An accountable rail equipment accident/incident, if not
tended to, thus would disrupt railroad service. Examples of
``disruption of service'' would include: loss of main track; one or
more derailed wheels; any train failing to arrive or depart at its
scheduled time; one or more cars or locomotives taken out of service;
or rerouting trains due to a damaged car or locomotive.
Section 225.25(d) states that each railroad must maintain either
the ``Initial Rail Equipment Accident/Incident Record'' (Form FRA F
6180.97), or an alternative railroad-designed record, to record all
reportable and accountable rail equipment accidents and incidents for
each railroad establishment. Thus, Sec. 225.25(e) allows railroads to
design and use an alternative railroad-designed record in lieu of the
``Initial Rail Equipment Accident/Incident Record.'' All the
information requested on the ``Initial Rail Equipment Accident/Incident
Record'' (Form FRA F 6180.97) must be present on the alternative record
designed and used by the railroad. Although this information may be
displayed in a different order from that on the Initial Rail Equipment
Accident/Incident Record, the order of the information shall be
consistent from one such record to another such record. The order
chosen by the railroad must also be consistent for each of the
railroad's reporting establishments. Also note that the reporting
railroad may choose to have additional information on its record
extending beyond the information required on Form FRA F 6180.97.
Section 225.25(d) states that the ``Initial Rail Equipment
Accident/Incident Record,'' or its alternate, must be maintained for
each operational railroad establishment, i.e., an establishment wherein
workers report to work, including, but not limited to, an operating
division, general office, and major installation such as a locomotive
or car repair or construction facility. FRA believes that this
requirement will help alleviate the difficulty FRA inspectors encounter
when attempting to locate rail equipment accident and incident
information at railroad establishments. Please refer to Sec. 225.25(g)
for a discussion of maintenance of these records at railroad
establishments.
4. Property Damage Estimate Worksheet and Record (Proposed Form FRA F
6180.xx(b))
Proposal
FRA proposed use of a ``Property Damage Estimate Worksheet and
Record'' (Form FRA F 6180.xx(b)) by the reporting railroad to determine
costs associated with damage to (i) on-track equipment, (ii) signal
equipment, (iii) track, (iv) track structures and roadbed, and (v)
costs of equipment rental and operation. These five cost categories
would be totaled to derive the total accident cost. As proposed, if the
total accident cost met or exceeded the reporting threshold, then the
total cost for ``damage to on-track equipment'' in ``Part A'' would be
transferred to a block entitled ``Equipment Damage'' on the ``Initial
Rail Equipment Accident/Incident Record'' (Form FRA F 6180.97).
Likewise, FRA proposed that the total cost for ``damage to signal
equipment,'' ``damage to track,'' and ``damage to track structures and
roadbed'' in ``Parts B, C, and D'' respectively, would be totaled and
that this amount would be transferred to a block entitled ``Track,
Signal, Way & Structure Damage'' on the ``Initial Rail Equipment
Accident/Incident Record.'' Finally, FRA proposed to print the
``Property Damage Estimate Worksheet and Record'' on the reverse side
of the ``Initial Rail Equipment Accident/Incident Record.''
Comments
Most hearing participants opposed adoption of this proposal. These
same participants expressed their concern with the proposed estimation
of property damage at the public regulatory conference. Written
comments received in response to this proposal further elucidated
problems with the proposed methods of determining the cost of the
damage.
Final Rule
Due to the controversy surrounding FRA's proposal to calculate
costs associated with damage to (i) on-track equipment, (ii) signal
equipment, (iii) track, (iv) track structures and roadbed, and (v)
costs of equipment rental and operation, FRA has decided to reexamine
this issue in a subsequent rulemaking for the accident reporting
regulations in consultation with FRA's Railroad Safety Advisory
Committee. Therefore, the final rule does not adopt the ``Property
Damage Estimate Worksheet and Record.''
5. Sections 225.25 (f) and (g) Updating and Maintaining the ``Railroad
Employee Injury and/or Illness Record'' (Form FRA F 6180.98) and the
``Initial Rail Equipment Accident/Incident Record'' (Form FRA F
6180.97)
Proposal
Discrepancies in logs are the most recurring problems FRA
inspectors encounter during an inspection. FRA has found that many
railroads fail to update existing logs in a timely manner, particularly
with respect to lost/restricted workdays. Therefore, in order to assure
that each railroad continuously updates the ``Railroad Employee Injury
and/or Illness Record'' (Form FRA F 6180.98) and the ``Initial Rail
Equipment Accident/Incident Record'' (Form FRA F 6180.97), or the
alternative railroad-designed records (each record hereinafter is
referred to as ``Record''), FRA proposed that each reportable and
recordable injury and illness, as well as each reportable and
recordable rail equipment accident/incident, must be entered on the
appropriate Record as early as practicable, but in any event no later
than seven working days after receiving information or acquiring
knowledge that an illness or injury has occurred or, that a rail
equipment accident/incident has occurred.
Additionally, FRA proposed that if either Record is maintained at a
centralized location, but not through electronic means, then a paper
copy of the record or report that is current within 35 days of the
month to which it applies must be available at the appropriate
establishment. When the Record for an establishment is maintained at a
central location through electronic means, FRA proposed, the records
for that establishment must be
[[Page 30957]]
available for review in a hard copy format (paper printout) within four
business hours of the request.
Comments
The few comments received in response to these proposals were
favorable. However, some commenters objected to the requirement that
records maintained through electronic means must be available for
review in ``hard copy'' within four business hours of the request.
These commenters were concerned with what action FRA would take if the
request could not be fulfilled within this prescribed time limit due to
problems outside the railroad's control.
Most commenters believed that, in most cases, seven days should be
sufficient to update the records. Some commenters were concerned that
this proposal failed to recognize the varying factual circumstances
that railroads may encounter before the initial information provided to
the railroad by the employee is verified. These commenters stated that
many times there are conflicting facts which must be sorted out before
a determination can be made as to whether the accident/incident or the
injury/illness is reportable or nonreportable.
Final Rule
Updating and Maintaining the Records--Sections 225.25 (f) and (g)
Section 225.25(f) states that each railroad must enter each
reportable and accountable injury and illness on the ``Railroad
Employee Injury and/or Illness Record'' or the alternative railroad-
designed record, as early as practicable, but in any event, no later
than seven working days after receiving information or acquiring
knowledge that an illness or injury has occurred. Likewise, each
railroad must enter each reportable and accountable rail equipment
accident and incident on the ``Initial Rail Equipment Accident/Incident
Record'' or the alternative railroad-designed record, as early as
practicable, but in any event, no later than seven working days after
receiving information or acquiring knowledge that a rail equipment
accident or incident has occurred. FRA believes the seven-day
requirement is an extremely reasonable and generous amount of time
afforded railroads to enter information on the Record and to make a
decision on whether the illness/injury and/or accident/incident is
reportable or accountable.
Section 225.25(g) states that if either Record is maintained at a
centralized location, but not through electronic means, then a paper
copy of the Record that is current within 35 days of the month to which
it applies must be available at the appropriate establishment. When
either Record is maintained at a central location through electronic
means, the Record for that establishment must be available for review
in a hard copy format within four business hours of the request. Of
course, FRA anticipates that railroads would be able to provide the
requested information as soon as practicable. FRA believes the four-
hour time limit is more than a reasonable amount of time for the
railroad to provide information made pursuant to a request. FRA
recognizes that this request may be impossible to fulfill if the
establishment is experiencing problems with its computer or other
instruments used in obtaining the information electronically. No
punitive action would be taken by FRA for the railroad's failure to
supply the requested documents when circumstances outside the control
of the railroad preclude it from obtaining the information and the
railroad has exercised reasonable effort to correct the problem.
6. Section 225.25(h) Monthly List of Injuries and Illnesses
Proposal
FRA proposed that each railroad must maintain a list of all
reported injuries and illnesses for the previous month and that such
list be posted in a conspicuous location at each railroad establishment
within 30 days after expiration of the month during which the injuries
and illnesses occurred. For example, the monthly list of injuries and
illnesses for the month of May would have to be completed and posted by
the railroad no later than June 30th. Moreover, FRA proposed that the
monthly injury and illness list would be displayed for a minimum of 60
consecutive days so as to allow all workers at that establishment the
opportunity to view the list. Given the example above, the list, if
posted on June 30th, would remain posted for a minimum of 60 days, or
until August 30th. Further, if no reported injuries or illnesses were
associated with an establishment, FRA proposed that the posting shall
make reference to that fact.
Comments
Most commenters supported this proposal with some modifications.
Namely, commenters stated that the proposal requiring that the list be
posted within 30 days after expiration of the month during which the
injuries and illnesses occurred, coupled with the proposal that the
list be displayed for a minimum of 60 consecutive days was confusing.
Several railroad representatives suggested that railroads should be
allowed to post a ``year to date'' list of reportable and nonreportable
illnesses and injuries quarterly. These commenters stated that this
would provide more accurate information than a monthly listing and that
it would also produce less burdensome paperwork.
Some railroad representatives expressed concern that posting this
information (date, type and location of injury) in a public place may
lead to identification of the injured or ill person and, that the
identified person may perceive that his or her privacy rights have been
violated.
Rail labor associations supported the posting of the monthly
listing of injuries and illnesses and stated that ``each railroad
establishment'' should be consistently interpreted to require posting
at each establishment or assembly point where railroad workers report
to work.
Final Rule
Monthly List of Injuries and Illnesses--Section 225.25(h)
Section 225.25(h) states that a listing of all reported injuries
and occupational illnesses for the previous month shall be posted in a
conspicuous location for and at each railroad establishment within 30
days after expiration of the month during which the injuries and
illnesses occurred. For purposes of fulfilling this requirement, this
posting will be necessary only for those establishments that are in
continual operation for a minimum of 90 calendar days or more. For
those establishments that do not meet this level of operation or time
requirement, the posting of reported injuries and illnesses must be
made at the next higher organizational level, i.e., the establishment
that controls or directs the activities that take place at the
temporary work site. Further, this listing must be posted in a
conspicuous location so that it may be observed by workers at that
establishment and shall remain continuously displayed for the next 12
months. This requirement therefore allows the employee the opportunity
to get a one-year ``snapshot'' of reportable injuries and illnesses
associated with that establishment. Thus, for example, April's list of
reportable injuries and illnesses must be posted by June 1, and must
remain posted until May 31 of the following year. This requirement
allows railroad workers the opportunity to easily and readily review
reportable illnesses and injuries for that
[[Page 30958]]
establishment in a cumulative fashion. FRA also believes that posting
of this monthly list of injuries and illnesses will improve the general
quality of illness and injury data.
Section 225.25(h) further states that incidents reported for
employees on the listing must be displayed in date sequence. The
listing must contain, at a minimum, the following information:
Name and address of the establishment;
Calendar year of the cases being displayed;
Incident number used to report case;
Date of the injury or illness;
Location of incident;
Regular job title of employee injured or ill;
Description of the injury or condition;
Number of days employee was absent from work at time of
posting; and the number of days of work restriction at time of posting;
Date of death, if the employee died;
Annual average number of railroad employees reporting to
this establishment;
Name, title, telephone number with area code, and
signature of preparer; and
Date the report was completed.
When there are no reportable injuries or occupational
illnesses associated with an establishment for that month, the listing
must make reference to this fact.
E. Employer Notification (Proposed Sec. 225.39(a)) and Copy of
``Railroad Employee Injury and/or Illness Record'' to Employee
(Proposed Sec. 225.39(b))
Proposal
Rail labor organizations have repeatedly expressed concern that
many injured employees fail to inform their employers of injuries. By
placing part of the burden for reporting on the individual railroad
employee, FRA believed it could improve the general quality of the
injury/illness reporting data. Consequently, FRA proposed in
Sec. 225.39(a) that railroad employees must notify their employer, in
writing, that they have sustained an injury and/or illness (whether
reportable or nonreportable) within seven calendar days of incurring
either the injury or illness or obtaining knowledge that they incurred
the injury or illness. FRA also recommended a civil monetary penalty
against the railroad employee for failure to notify his or her employer
of the injury or illness within the prescribed time period.
FRA also was concerned with the fact that injured workers did not
have the opportunity to review and verify the information on the
accident/illness report prior to submission of that report to FRA. FRA
thus proposed, in Sec. 225.39(b), that the reporting railroad must
provide the railroad employee with a copy of the completed ``Railroad
Employee Injury and/or Illness Record'' (Form FRA F 6180.98). FRA
believed that the general quality of injury and illness data would
improve by allowing the employee to participate in the reporting
process as set forth above. Similarly, FRA recommended a civil monetary
penalty against the railroad for its failure to issue this log to the
railroad employee within the prescribed time limit.
Comments
Railroad representatives strongly opposed this proposal and instead
recommended that all known injuries should be reported by the employee
to railroad officials immediately, but in any event, no later than the
end of the employee's shift. They also recommended that after obtaining
knowledge of incurring the injury or illness, notification to the
proper railroad official(s) should be mandatory within 24 hours of
obtaining such knowledge. These commenters also stated that if the
railroad had more stringent notification rules, then the railroad's
rules should govern the matter. Many railroad representatives commented
that they already require immediate notification of an injury and that
they cannot adequately investigate the circumstances and potential
causes of the injury or illness without immediate notice by the
employee. Further, these same commenters stated that a monetary penalty
issued to the employee was not appropriate and, that such sanctions
(i.e., disciplinary measures) were better left between the railroad and
the railroad employee.
In contrast, rail labor associations fully supported FRA's seven-
day notification proposal. However, these commenters did not support
the proposal to assess monetary penalties against an employee for his
or her failure to report an accident or injury within the seven-day
time frame. Instead, these commenters stated that railroads should be
held accountable for the actions of their supervisory personnel who
knowingly fail to report accidents or injuries that occur to railroad
employees. Rail labor representatives acknowledged that railroad policy
can, and often does, require more immediate notice than that proposed
by FRA, but they also stated that FRA's proposal did not in any way
hinder the right of railroads to establish their own policy regarding
the timeliness of injury or illness reporting. Rail labor also stated
that the proposed regulations should contain language that would
suspend the employee's seven-day notification in writing requirement in
the event of a severe injury which may prevent the employee from
complying with this provision.
In response to the proposal to require railroads to provide
employees with a copy of the completed injury and illness log (proposed
Sec. 225.39(b)), rail labor representatives stated that an employee
should be notified that his or her case has been reported to FRA by
either U.S. mail or by hand delivery in a sealed envelope on the
property at a time when the employee would regularly receive other
company correspondence. Rail labor supported the proposal to exempt the
railroad from the seven-day notification requirement when compliance
would not be possible due to a severe injury.
Final Rule
FRA does not adopt the proposed seven-day employer notification
requirement. Similarly, FRA does not adopt the proposal that would
require railroads to provide employees a copy of the completed
``Railroad Employee Injury and/or Illness Record'' within the
prescribed time limit of seven days. However, as discussed previously
in this preamble, Sec. 225.25(c) does require each railroad to provide
the employee, upon his or her request, a copy of either the completed
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)
or the alternative railroad-designed record, as well as a copy of any
other form, record, or report filed with FRA or held by the railroad
pertaining to the employee's injury or illness. Section 225.25(c) thus
eliminates the seven-day time limit in which to accomplish this
requirement. By providing this requested information, the employee will
have the opportunity to assess why, or why not, a particular event was,
or was not, reported to FRA.
FRA believes that requiring a paper trail to prove that employees
were in fact notified of how the railroad reported their injury, with a
receipt, places an unnecessary burden on railroads. Problems also exist
with the seven-day requirement in the case where the injured employee
may not be at his or her residence during this time period.
FRA believes that the amended recordkeeping requirements in
Sec. 225.25 will provide injured and ill railroad employees a means by
which to review
[[Page 30959]]
and verify the reporting status of their injury or illness.
F. Reporting Threshold
FRA has periodically adjusted the reporting threshold based on the
prices of a market basket of railroad labor and materials. The purpose
of these adjustments has been to maintain comparability between
different years of data by having the threshold keep pace with
equipment and labor costs so that each year the same groups of
accidents are included in the reportable accident counts.
Congress has given FRA some direction for modifying the procedure
for calculating the threshold in 49 U.S.C. 20901(b) (formerly contained
at section 15(a) of the Rail Safety Enforcement and Review Act (Pub. L.
102-365)): ``[i]n establishing or changing a monetary threshold for the
reporting of a railroad accident or incident, * * * damage cost
calculations'' shall be based ``only on publicly available information
obtained from (A) the Bureau of Labor Statistics; or (B) another
department, agency or instrumentality of the United States Government
if the information has been collected through objective, statistically
sound survey methods or has been previously subject to a public notice
and comment process in a proceeding of a Government department, agency,
or instrumentality.'' Congress allows an exception to this general rule
only if the necessary data is not available from the sources described,
and only after public notice and comment.
Proposal
FRA proposed to obtain in October, of the year that it would
publish a final rule on accident reporting, the latest Producer Price
Index (``PPI'') and National Employment Hours and Earnings figures from
the Department of Labor's Bureau of Labor Statistics (``BLS''). At that
time, the latest final figures, as opposed to preliminary figures,
would be available to cover the period through June of that year. In
October of each subsequent year, FRA would obtain the latest 12 months
of final BLS figures and calculate the threshold for the upcoming year,
publishing the new figure in the Federal Register prior to its
implementation.
Proposed Equation
Specifically, FRA proposed to use data from the U.S. Department of
Labor, LABSTAT Series Reports for calculating the threshold. The
equation used to adjust the reporting threshold would be based on the
average hourly earnings reported for Class I railroads and an overall
railroad equipment cost index determined by the BLS. The two factors
would be weighted equally.
For the wage component, FRA proposed to use LABSTAT Series Report,
Standard Industrial Classification (SIC) code 4011 for Class I Railroad
Average Hourly Earnings. For the equipment component, FRA proposed to
use LABSTAT Series Report, Producer Price Index (PPI) Series WPU 144
for Railroad Equipment. In the month of October of each year, FRA would
obtain from the BLS, finalized cost data covering the twelve-month
period ending with the month of June. The monthly figures would then be
totaled and divided by twelve to produce annual averages. The wage data
would be reported in terms of dollars earned per hour, while the
equipment cost data would be indexed to a base year of 1982.
As proposed in the NPRM, the procedure for adjusting the reporting
threshold is shown in the formula below. The wage component appears as
a fractional change relative to the prior year, while the equipment
component is a difference of two percentages which must be divided by
100 to present it in a consistent fractional form. After performing the
calculation, the result would be rounded to the nearest $100.
Formula
[GRAPHIC] [TIFF OMITTED] TR18JN96.000
Where:
Wn = New average hourly wage rate ($)
Wp = Prior average hourly wage rate ($)
En = New equipment average PPI value
Ep = Prior equipment average PPI value
The current weightings represent the general assumption that damage
repair costs, at levels at or near the threshold, are split
approximately evenly between labor and materials.
Comments
The few comments received in response to the proposal to amend the
calculation of the monetary accident reporting threshold using publicly
available data were favorable.
Final Rule
The formula to calculate the monetary accident reporting threshold
is adopted as proposed. FRA will gather the necessary data in October
1996 and will issue a notice in the Federal Register announcing the
revised threshold dollar value. The threshold will then become
effective beginning January 1, 1997.
G. Miscellaneous Amendments
This segment of the final rule outlines a number of amendments to
various sections of the rule text.
1. Section 225.3 Applicability
Section 225.3 defines the applicability of the accident reporting
regulations. FRA's delegated regulatory authority under 49 U.S.C. 20101
et seq. (formerly contained in the Federal Railroad Safety Act of 1970
(the ``FRSA'') (45 U.S.C. 431 et seq.)) permits FRA to amend the
current applicability sections of its various regulations so as to
contract the populations of railroads covered by a particular set of
regulations or to expand them to the full extent of that authority.
FRA, as the Secretary's delegate, has had jurisdiction over all
``railroads'' since the FRSA was enacted. In 1988, Congress amended the
older railroad safety laws, including the Accident Reports Act, to
conform their reach to that of the FRSA (while also extending FRA's
safety jurisdiction to certain other fixed guideway systems). There is
a very wide range of operations that could be considered tourist
railroads under the broadest reading of the term ``railroad.''
Beginning in 1992, FRA announced that the Agency intended to exercise
jurisdiction over ``non-insular'' railroads that are not part of the
general railroad system and that Part 225, among certain laws and
regulations, applies to those entities in the same manner as railroads
that are part of the general system. Tourist railroads have written
several letters to members of Congress questioning the basis for FRA's
assertion of jurisdiction. Additionally, in 1992, FRA received a
petition from a scenic railway requesting that regulations be tailored
specifically to the tourist rail industry.
Proposal
In an effort to clarify the proper extent of the exercise of FRA's
jurisdiction,
[[Page 30960]]
FRA announced several principles that would be used as guidelines. FRA
stated that it would exercise jurisdiction over all tourist operations,
whether or not they operate over the general railroad system, except
those that are (1) less than 24 inches in gage and/or (2) insular.
To determine insularity, FRA described criteria that would measure
the likelihood that a railroad's operations might affect a member of
the public. FRA stated that a tourist operation is insular if its
operations were limited to a separate enclave in such a way that there
is no reasonable expectation that the safety of any member of the
public (except a business guest, a licensee of the tourist operation or
an affiliated entity, or a trespasser) would be affected by the
operation. An operation would not be considered insular if one or more
of the following exists on its line: (a) A public highway-rail crossing
that is in use; (b) an at-grade rail crossing that is in use; (c) a
bridge over a public road or waters used for commercial navigation; or
(d) a common corridor with a railroad, i.e., its operations are within
30 feet of those of any railroad. Thus, the mere fact that a tourist
operation was not connected to the general system did not make it
insular under these criteria. While these criteria tend to sort out the
insular theme parks and museums, a need to do case-by- case analysis in
certain close situations still existed.
As a matter of clarification, FRA proposed to conform Part 225 to
its policy on exercise of jurisdiction so that Part 225 would apply to
non-general system, non-insular tourist operations confined to an
installation that is not part of the general system (i.e., it is a
stand-alone with no freight traffic but has one or more features that
preclude its being considered insular).
Comments
The Association of Railway Museums, Inc. (ARM), the Tourist
Railroad Association, and the Illinois Railway Museum, strongly opposed
this proposal. In general, these commenters made the following
assertions:
(a) Any requirements imposed on railway museum operations should
also be imposed on amusement park railroads.
(b) The non-accident information requirements would be extremely
costly and burdensome, and the imposition of the proposed requirements
would be contrary to the Regulatory Flexibility Act and the Swift Rail
Development Act.
(c) The insular/non-insular railroad criteria proposed by FRA to
determine which non-general system passenger railroads would be subject
to regulations is irrational and arbitrary. Regulatory burdens are
focused on an insignificant sector of non-general system passenger
railroads since large amusement park rail operations that haul millions
of passengers a year would be excluded from the regulations.
(d) FRA's practice of subjecting museum and tourist railroads to
multiple rulemaking proceedings is extremely burdensome. These
commenters urged FRA to deal with museum and tourist railroad issues in
a separate, single proceeding.
Final Rule
Section 225.3 Applicability
Tourist railroad commenters had no objections to the proposed
accident reporting requirements, but did oppose the non-accident
information requirements due to the costs and burdens of collecting
what they believed to be information of little value and use to FRA.
These commenters further stated that any requirements imposed on the
tourist/museum railroads should likewise be imposed on amusement park
railroads. These commenters, in essence, are stating that since FRA
does not require the amusement park railroads to be subject to Part
225, nor should FRA require the tourist, excursion, scenic, and museum
railroads to be subject to the requirements of Part 225. FRA does not
believe that exclusion of part of one industry (insular amusement park
railroads) compels the exclusion of other parts of an industry (non-
insular tourist and museum railroads). The accident reporting
regulations set forth in Part 225 have always applied to non-general
system, non-insular railroad operations, e.g., a tourist railroad that
confines its operations to an installation that is not part of the
general system. Exclusion of insular amusement park railroads is not
irrational given state and local regulation of these entities as
amusements.
Consequently, Sec. 225.3 states that Part 225 will apply to all
railroads except (a) A railroad that operates freight trains only on
track inside an installation which is 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; (b) rail mass transit operations in an urban area
that are not connected with the general railroad system of
transportation; and (c) a railroad that exclusively hauls passengers
FR Doc. 96-14943 Railroad Accident Reporting
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 will not be considered insular if one or more of the
following exists on its line: (1) A public highway-rail grade crossing
that is in use; (2) an at-grade rail crossing that is in use; (3) a
bridge over a public road or waters used for commercial navigation; or
(4) a common corridor with a railroad, i.e., its operations are within
30 feet of those of any railroad.
FRA appreciates the concerns of small tourist operations that
reviewing applicability of individual parts of the Code of Federal
Regulations (CFR) in individual proceedings involves some burden on
commenters. In order to foster broader and better coordinated dialogue
with small rail passenger operations, FRA has established, within the
Railroad Safety Advisory Committee (RSAC), a Tourist and Historic
Railroads Working Group. This Working Group will review applicability
of current and future regulations to these entities.
As discussed previously, legislation before Congress (the
``Department of Transportation Regulatory Reform Act of 1996'') would
amend 49 U.S.C. 20901(a) to eliminate the requirement that railroads
file notarized monthly accident/incident reports with FRA. The
amendment would allow the Secretary to specify the frequency with which
reports must be filed; provide discretion to set different reporting
requirements for different classes of railroads; and facilitate
electronic filing and a corresponding reduction in paper filings. This
amendment would particularly benefit the tourist, excursion, scenic and
museum rail industries which may have no events to report for a
particular month.
2. Section 225.5 Definitions
Section 225.5 lists definitions applicable to part 225. FRA
proposed that Sec. 225.5 be reorganized so that definitions would
appear in alphabetical order and without paragraph designations.
Definitions proposed for revision included: ``accident/incident,''
``employee human factor,'' ``medical treatment,'' ``occupational
illness,'' and ``railroad.'' New terms proposed for addition to the
list of definitions included: ``day away from work,'' ``day of
restricted work activity,'' ``establishment,'' ``first aid treatment,''
``FRA representative,'' ``nonreportable injury or illness,''
``nonreportable rail equipment accident/incident,'' ``non-train
incident,'' ``person,'' ``qualified health care professional,'' ``train
accident,'' ``train
[[Page 30961]]
incident,'' ``volunteer,'' ``work environment,'' ``worker on duty,''
and ``work related.'' Finally, FRA proposed deletion of the definitions
of ``lost workdays'' and ``restriction of work or motion.''
As discussed previously in this preamble, the proposed term
``recordable'' is replaced with the term ``accountable'' for purposes
of defining those injuries/illnesses and rail equipment accidents/
incidents which are not reportable to FRA but which are required to be
recorded on the appropriate injury/illness and rail equipment accident/
incident record.
Also note that ``railroad'' has been redefined to mean a person
providing railroad transportation. The old definition for ``railroad''
has been reassigned to the term ``railroad transportation.'' Further,
the definition of ``accident/incident'' is redefined in the final rule
to conform to the amendment of Sec. 225.19(d).
Train Accident
Proposed Rule
A ``train accident'' was defined as any collision, derailment,
fire, explosion, act of God, or other event involving operation of
railroad on-track equipment (standing or moving) that results in
reportable damages greater than the current reporting threshold to
railroad on-track equipment, signals, track, track structures, and
roadbed.
Comments
No comments received.
Final Rule
Adopted as proposed.
Train Incident
Proposed Rule
A ``train incident'' was defined as an event involving the movement
of on-track equipment that results in a reportable casualty but does
not cause reportable damage above the threshold established for train
accidents.
Comments
No comments received.
Final Rule
Adopted as proposed.
Employee Human Factor
Proposed Rule
In the definition of ``employee human factor,'' the proposed rule
removed reference to ``cause code 506'' because it was obsolete and
replaced it with the term ``train accident cause codes pertaining to
non-railroad employees.''
Comments
No comments received.
Final Rule
The definition of ``railroad employee human factor'' removes
reference to ``cause code 506'' and is amended so as to capture the
classifications for a ``Worker on Duty-- Employee,'' ``Employee not on
Duty,'' ``Worker on Duty-- Contractor,'' and ``Worker on Duty--
Volunteer.''
Medical Treatment
Proposed Rule
``Medical treatment'' was defined to include any medical care or
treatment beyond ``first aid'' regardless of who provided such
treatment. The definition would not include diagnostic procedures, such
as X-rays or drawing blood samples.
Comments
Several commenters believed the proposed change to the definition
of ``medical treatment'' would create confusion. Commenters questioned
whether employees who sought their own treatment, such as purchasing a
sling for a strained arm, would qualify as ``medical treatment.'' They
also questioned whether the definition would include the scenario where
an employee chooses to take leftover prescribed medication to treat his
or her injury or illness. Railroad representatives stated that the
determination of appropriate treatment and the administration of
reportable medical attention should be performed solely by licensed
physicians and medical professionals working under the direction of
physicians. These commenters urged FRA to retain the current definition
of ``medical treatment'' to reduce the probability of confusion and
possible abuse by employees who may jeopardize their treatment.
Final Rule
The definition of ``medical treatment'' is adopted as proposed with
minor modification. FRA's definition of ``medical treatment'' is
intended to remove the association between the type of treatment
rendered and the person who provided the treatment. If a physician
treats an injury using first aid measures, the treatment is
nonreportable even though a highly skilled medical person administered
the care. Conversely, someone with medical skills less than those of a
physician (M.D.) may provide medical treatment for a condition.
Generally, injuries that are self-treated would not satisfy the
reporting requirements since the employee would not normally have the
credentials of a ``qualified health care professional.'' However, an
employee engaged in self-treatment may later have complications making
the treatment ``reportable.'' For example, an employee may drill or
puncture a finger nail at the work site so as to remove pressure from
the blood that has pooled beneath the nail (a nonreportable injury at
this point). If the nail should later become infected requiring
treatment by a ``qualified health care professional,'' then the
railroad must report the injury.
Medical treatment 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. Further, the railroad's employee counseling and
assistance officer rendering counseling to an employee diagnosed with
such a mental disorder meets the definition of a ``qualified health
care professional'' as discussed later in this preamble.
Occupational Illness
Proposed Rule
In the definition of ``occupational illness,'' FRA proposed that
the reference to ``his or her railroad employment'' be replaced with
the phrase ``worker's railroad employment.''
Comments
No comments received.
Final Rule
The definition of ''occupational illness'' is amended so as to
include and capture occupational illnesses of the classifications of
``Worker on Duty--Employee,'' ``Worker on Duty--Contractor,'' and
``Worker on Duty--Volunteer.''
Railroad and Railroad Transportation
Proposed Rule
``Railroad'' was defined as it is in 49 U.S.C. 20102(1) (formerly
contained in the Federal Railroad Safety Act of 1970 (45 U.S.C.
431(e)).
Comments
No comments received.
Final Rule
The proposed definition for ``railroad'' is correctly reassigned to
the term ``railroad transportation.'' Note that ``railroad'' is
redefined to mean a person providing railroad transportation, which
[[Page 30962]]
is the definition of ``railroad carrier'' in 49 U.S.C. 20102(2).
Day Away From Work
Proposed Rule
``Day away from work'' was defined as any day subsequent to the day
of the injury or diagnosis of occupational illness that a railroad
worker does not report to work for reasons associated with his or her
condition.
Comments
No comments received.
Final Rule
Adopted as proposed.
Day of Restricted Work Activity
Proposed Rule
A ``day of restricted work activity'' was defined as any day that a
worker is restricted in his or her job following the day of the injury
or diagnosis of occupational illness.
Comments
No comments received.
Final Rule
Adopted as proposed.
Establishment
Proposed Rule
``Establishment'' was defined as a physical location where workers
report to work, where business is conducted or where services or
operations are performed.
Comments
Some commenters proposed that ``establishment'' should be defined
as one single, central location. Others suggested that ``each railroad
establishment'' should be consistently interpreted to require posting
of reports at ``designated assembly points where employees report for
work.'' These commenters stated that such posting would not place an
undue administrative burden on the railroad as railroads are already
required under most collective bargaining agreements to regularly post
and/or distribute job bulletins, awards and certain notices. They
further stated each railroad should be required to identify
``establishments'' where pertinent records are maintained.
Some commenters stated that each railroad should be authorized to
designate the ``establishments'' for which it would tabulate injury and
illness data and at which ``establishments'' records would be
maintained. They further commented that the railroad would provide FRA
with a list of establishments it has designated and would inform FRA of
periodic changes to its list.
Final Rule
The definition of ``establishment'' is adopted as proposed. In
order to provide compatible counts for the railroad industry that
duplicate those being reported by all other industries to the
Department of Labor, FRA needs a total count of the number of railroad
``establishments'' that exist in the country. Thus, the block
soliciting information on ``Establishments Included in this Report''
appears on the ``Annual Railroad Report of Employee Hours and
Casualties, by State'' (Form FRA F 6180.56) as block ``4.'' In the
NPRM, FRA proposed that railroads must maintain certain records ``at
and for'' each establishment. The final rule, in Secs. 225.25 and
225.27, states that records must be maintained for each establishment,
but that centralization of recordkeeping may be performed at any
location(s), as long as prescribed accessibility requirements are met.
Refer to Sec. 225.35 for a discussion of ``access to records and
reports.''
First Aid Treatment
Proposed Rule
``First aid treatment'' was defined as being limited to simple
procedures used to treat minor conditions, such as abrasions, cuts,
bruises, or splinters. First aid treatment is typically confined to a
single treatment and does not require special skills or procedures.
Comments
Commenters requested that FRA clarify the definition of ``first aid
treatment'' in order to reduce or eliminate confusion as to what
actually constituted such treatment.
Final Rule
The definition of ``first aid treatment'' is adopted as proposed.
FRA believes this definition is adequate and the examples of first aid
treatments found in the FRA Guide are sufficient to assist the
reporting officer in identifying which treatments are reportable and
which are nonreportable. FRA intends to review the examples in the FRA
Guide to determine if any additional examples and/or guidance
pertaining to ``first aid treatment'' and ``medical treatment'' would
be beneficial to the railroad reporting officer.
FRA Representative
Proposed Rule
``FRA representative'' was defined to include the Associate
Administrator for Safety, FRA; the Associate Administrator's delegate
(including a qualified State inspector acting under part 212 of this
chapter); the Chief Counsel, FRA; or the Chief Counsel's delegate.
Comments
No comments received.
Final Rule
Adopted as proposed.
Non-Train Incident
Proposed Rule
A ``non-train incident'' was defined as an event that results in a
reportable casualty, but does not involve the movement of on-track
equipment nor cause reportable damage above the threshold established
for train accidents.
Comments
No comments received.
Final Rule
Adopted as proposed.
Person
Proposed Rule
``Person'' was defined to add independent contractors and their
employees and workers, as well as volunteers.
Comments
No comments received.
Final Rule
Adopted as proposed.
Qualified Health Care Professional
Proposed Rule
A ``qualified health care professional'' was defined to include a
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 identify
potential causal factors, but may not be qualified to diagnose a case
of silicosis. FRA also asked for comments regarding whether the
railroad's employee assistance officer (EAO) should 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.
Comments
Some rail labor representatives commented that the proposed
definition was reasonable and that there was no need to restrict the
definition of a ``qualified health care professional'' to an ``M.D.''
as long as the treating or
[[Page 30963]]
attending individual was qualified and operated within the scope of his
or her license, registration, or certification. However, some of these
commenters stated that the railroad's employee assistance officer (EAO)
should not be considered a ``qualified health care professional'' when
he or she counsels employees on a preventive basis.
Several railroad representatives stated that the definition should
remain as broad as possible and that the railroad's EAO should be
considered a ``qualified health care professional.'' Some of these
commenters further emphasized that FRA should make it clear that when
prescribed medical treatment is refused by an employee, the injury
should continue to be considered reportable, provided such medical
treatment meets reportability criteria.
Other railroad representatives opposed the definition because they
believed that the latitude resulting from the proposed definition would
allow treatment by nearly anyone who claimed to be a health care
professional. One example offered by a major carrier involved the
situation where a registered massage therapist, qualified to diagnose
muscle strain due to work stress, could provide ``treatments'' which
would cause the injury to be reportable. These commenters emphasized
that the definition of a ``qualified health care professional'' should
be restricted to physicians who are universally recognized as capable
of diagnosing and treating individuals for illnesses and injuries.
Final Rule
The definition of ``qualified health care professional'' is adopted
as proposed. However, the railroad's employee assistance officer (EAO)
is considered a ``qualified health care professional'' when he or she
provides counseling to an employee who 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.
As discussed previously in this preamble under the definition of
``first aid'' treatment, many reportable injuries can be treated by a
``qualified health care professional'' who is not a physician, i.e.,
who does not hold an M.D. Likewise, a physician (M.D.) may perform
first aid treatment. In many instances, emergency medical treatment is
performed in the absence of physicians. With all the variables, FRA
believes that limiting the definition of ``qualified health care
professional'' to encompass only physicians, would result in the
underreporting of many injuries that require more than first aid
treatment, thus rendering the injury reportable.
Volunteer
Proposed Rule
``Volunteer'' was defined to include individuals who willingly
perform a service for the reporting railroad, who do not receive direct
monetary compensation from that railroad and who are not involved in
either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the reporting railroad as described in
Sec. 209.303.
Comments
Please refer to the detailed discussion of the definition of
``Volunteer'' in the preamble to this rule in the section entitled
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
The following definitions will not appear in Sec. 225.5. They will
however, be defined in the next revised FRA Guide.
Worker on Duty--Volunteer (Class H) is a volunteer who does not
receive direct monetary compensation from the railroad and who is
engaged in either (i) the operation of on-track equipment or (ii) any
other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Volunteer--Other (Class I) is a volunteer who does not receive
direct monetary compensation from the railroad and who is not engaged
in either (i) the operation of on-track equipment or (ii) any other
safety-sensitive function for the railroad as defined in Sec. 209.303.
Worker on Duty--Contractor (Class F) is an employee of a contractor
who does not receive direct monetary compensation from the railroad and
who, while on railroad property, is engaged in either (i) the operation
of on-track equipment or (ii) any other safety-sensitive function for
the railroad as defined in Sec. 209.303.
Contractor--Other (Class G) is an employee of a contractor who does
not receive direct monetary compensation from the railroad and who is
not engaged in either (i) the operation of on-track equipment or (ii)
any other safety-sensitive function for the railroad as defined in
Sec. 209.303.
Work Environment
Proposal
``Work environment'' was defined as the physical location,
equipment, materials processed or used, and activities of a worker
associated with his or her work, whether on or off the railroad's
property.
Comments
No comments received.
Final Rule
Adopted as proposed.
Work Related
Proposed Rule
``Work related'' was defined as relating to any incident, activity,
exposure, etc. occurring within the work environment.
Comments
No comments received.
Final Rule
Adopted as proposed.
Worker on Duty
Proposal
A ``worker on duty'' was defined as an individual who receives
direct monetary compensation from the railroad or who is engaged in
either (i) the operation of on-track equipment or (ii) with any other
safety-sensitive function as described in Sec. 209.303.
Comments
Please refer to the detailed discussion of the definition of
``Worker on Duty'' in the preamble to this rule in the section entitled
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
Worker on Duty--Employee (Class A) is defined as an individual who
receives direct monetary compensation from the railroad. Please note
that this definition will not appear in Sec. 225.5, but will appear in
the next revised FRA Guide.
Lost Workdays and Restriction of Work or Motion
Proposal
FRA proposed deletion of the definitions for ``Lost Workdays'' and
``Restriction of Work or Motion.''
Comments
No comments received.
Final Rule
Adopted as proposed.
3. Section 225.7 Public Examination and Use of Reports Proposal
In Sec. 225.7(a), FRA proposed that the reference to ``Executive
Director'' would be removed as obsolete, and would be replaced with
``Office of Safety.'' Thus, written requests for a copy of any report
would be addressed to the Office of Safety at FRA.
[[Page 30964]]
In Sec. 225.7(b), FRA proposed that ``Accident Reports Act'' would
replace the erroneous reference to ``Accidents Reports Act.''
Comments
No comments received.
Final Rule
Section 225.7 Public Examination and Use of Reports
Section 225.7(a) removes reference to ``Executive Director'' and
replaces it with ``Freedom of Information Officer, Office of Chief
Counsel.'' Thus, written requests for a copy of any report would be
addressed to the Freedom of Information Officer, Office of Chief
Counsel, at FRA.
The statutory reference also is revised to reflect the 1994 repeal
of the Accident Reports Act and the simultaneous revision and
reenactment without substantive change of its provisions in title 49 of
the United States Code.
4. Section 225.11 Reporting of Accidents/Incidents Proposal
As proposed, Sec. 225.11 would be revised to reflect that reports
identified in Sec. 225.19 submitted via magnetic media or
electronically, over telephone lines, would be due within 30 days after
the end of the month in which the accident/incident occurred.
Comments
No comments received.
Final Rule
Section 225.11 Reporting of Accidents/Incidents
Adopted as proposed. Additionally, this section is amended to
identify the office, i.e., RRS-22, within the Office of Safety, where
one may obtain a copy of the ``FRA Guide for Preparing Accidents/
Incidents Reports.''
5. Section 225.12 Rail Equipment Accident/Incident Reports Alleging
Employee Human Factor as Cause; Employee Human Factor Attachment;
Notice to Employee; Employee Supplement
Final Rule
Since employee human factor is redefined to include the
classifications of Worker on Duty--Employee, Employee not on Duty,
Worker on Duty--Contractor, and Worker on Duty--Volunteer,
Sec. 225.12(a) is amended to clarify that, for purposes of this
section, ``employee'' is defined to include Worker on Duty--Employee,
Employee not on Duty, Worker on Duty--Contractor, or Worker on Duty--
Volunteer.
6. Section 225.19 Primary Groups of Accidents/Incidents Proposal
Proposed revisions to Secs. 225.19 (a) and (b) would remove
reference to the current threshold of ``$6,300'' and would replace it
with the phrase ``current reporting threshold.''
Section 225.19(d) identifies the third group of accidents (``death,
injury or occupational illness'') that are to be reported on Form FRA F
6180.55a. FRA proposed that the language be simplified to read as
follows: ``Each event arising from the operation of a railroad, must 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 worker 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 worker.
Comments
No comments received.
Final Rule
Section 225.19 Primary Groups of Accidents/Incidents
Adopted as proposed. Additionally, Sec. 225.19(e) is added to
clarify that the current accident/incident reporting threshold of
$6,300 is effective until FRA amends that amount and provides notice in
the Federal Register.
7. Section 225.21 Forms
Proposal
In addition to the revisions to the titles of the forms listed in
Sec. 225.21, FRA proposed that the reference to ``Class I and II line-
haul and terminal and switching railroads'' in Sec. 225.21(b), would be
removed as obsolete, and replaced with ``All railroads subject to this
part.''
Because FRA proposed deletion of the annual summary report (as
discussed previously in this preamble), reference to Form FRA F 6180.45
(entitled ``Annual Summary Report of Railroad Injury and Illness'') in
Sec. 225.25(f) would be removed.
The Records discussed in new Secs. 225.25 (a) and (b) and in
Secs. 225.25 (d) and (e) and the alternative, railroad-designed records
would be added to the list of forms as Sec. 225.21(h) (Form FRA F
6180.98--Railroad Employee Injury and/or Illness Record) and as
Sec. 225.21(i) (Form FRA F 6180.97--Initial Rail Equipment Accident/
Incident Record).
Comments
No comments received.
Final Rule
Section 225.21 Forms
Adopted as proposed.
8. Section 225.29 Penalties
Proposal
Section 225.29 identifies the penalties FRA may impose upon any
person that violates any requirement of this part. FRA proposed
amendment to the language of this section to reflect the 1992
amendments to the Federal Railroad Safety Act of 1970 which increased
the minimum penalty and settlement per violation to $500.
Comments
No comments received.
Final Rule
Section 225.29 Penalties
Adopted as proposed.
9. Section 225.35 Access to Records and Reports
Proposal
FRA inspectors frequently encounter reluctance from the railroads
when examining and photocopying claims department records, particularly
railroad employee medical records. FRA proposed that FRA
representatives, or any representative of a State participating in
investigative and surveillance activities under the Federal railroad
safety laws and regulations, must have access to all records, reports,
logs, and supplementary records related to (a) rail equipment
accidents/incidents, including collisions and derailments; (b) highway-
rail grade crossing accidents/incidents; (c) death, injuries, and
illnesses, including claims and medical records; as well as all records
and reports identified in Sec. 225.25, for examination and photocopying
(at no expense to the representative) in a reasonable manner during
normal business hours. Further, a penalty was proposed for each
instance the railroad denies a representative access to any record,
report, log, and supplementary record identified above.
Comments
Most railroads representatives stated that the requirement for
records to be maintained at one or more central locations was far too
stringent and impracticable. In contrast, rail labor representatives
agreed with the FRA proposal that railroads should have a hard copy of
all records on file at a
[[Page 30965]]
central location designated by that railroad and that such records
should be easily and readily accessible upon request.
Final Rule
Section 225.35 Access to Records and Reports
Section 225.35 requires that each railroad must have at least one
location, and must identify the location(s), where both federal and
State inspectors, and authorized representatives, have centralized
access to a copy of all records and reports provided for in this Part.
Each railroad must identify at least one location where a copy of any
record or report is accessible for inspection by maintaining a list of
such establishments in the office where the railroad's reporting
officer conducts his or her business. Further, inspectors and
representatives must be able to access within a reasonable time, but in
any event no later than four business hours after the request, a hard
copy of the signed ``Rail Equipment Accident/Incident Report'' (Form
FRA F 6180.54) and the ``Highway-Rail Grade Crossing Accident/Incident
Report'' (Form FRA F 6180.57), as well as a hard copy of all other
records and reports pursuant to Part 225. This requirement also
includes access to a hard copy of any report submitted to FRA via
magnetic media or, electronically, over telephonic lines, and also
includes copies of the records and reports identified in Sec. 225.25.
Note that the requirement under Sec. 225.35 does not state that
original records and reports must be kept at a centralized location by
the railroad. Rather, it states that each railroad must have a list (in
the office where the railroad's reporting officer conducts his or her
official duties/business) which identifies at least one location where
a copy of all records and reports pursuant to Part 225 may be accessed
by the inspector or other authorized representative. The four business
hours time period affords railroads sufficient time to fulfill any
record request.
10. Appendix A Schedule of Penalties
Proposal
FRA proposed that Appendix B to Part 225 would be redesignated as
Appendix A and would be revised to add penalties for the following
sections: Sec. 225.33, ``Failure to Adhere to the Internal Control
Plan''; Sec. 225.39, ``Failure to Inform Employer of Injury and/or
Illness'' and ``Failure to Provide Employee with a Copy of Form FRA F
6180.98''; and Sec. 225.35, ``Access to Records and Reports.''
Additionally, the rule proposed that the dual entries under each of
paragraphs (a), (b), and (d) of Sec. 225.12 would be coded ``(1)'' and
``(2),'' respectively, to allow the proper entry of data into FRA's
enforcement database. Further, the penalties for violations of
Sec. 225.12(a) code (2) would be increased, in light of the 1992
amendments to the Federal Railroad Safety Act of 1970 which increased
the minimum penalty and settlement to $500.
Comments
Railroad representatives opposed the addition of any penalty. Rail
labor representatives opposed the addition of a penalty against the
employee for his or her ``failure to notify the railroad within seven
calendar days of incurring an injury or illness'' but favored the
addition of a penalty for both Sec. 225.33, the railroad's failure to
adhere to its Internal Control Plan, and Sec. 225.39, the railroad's
failure to provide the employee with a copy of Form FRA F 6180.98 (the
``Railroad Employee Injury and/or Illness Record'').
Final Rule
Appendix A Schedule of Penalties
The Schedule of Civil Penalties, Appendix A, contains additional
penalties for violations of Sec. 225.33(1), ``Failure to Adopt the
Internal Control Plan''; Sec. 225.33(2), ``Inaccurate Reporting due to
Failure to Comply with the Internal Control Plan''; Sec. 225.33(3),
``Failure to Comply with the Intimidation/Harassment Policy in the
Internal Control Plan''; and Sec. 225.35, ``Access to Records and
Reports.'' The dual entries under each of paragraphs (a), (b), and (d)
of Sec. 225.12 are coded ``(1)'' and ``(2),'' respectively, to allow
the proper entry of data into FRA's enforcement database. The penalties
for violations of Sec. 225.12(a) code (2) are increased, in light of
the 1992 amendments to the Federal Railroad Safety Act of 1970 which
increased the minimum penalty and settlement to $500.
11. Revision of Title 49, United States Code
On July 5, 1994, all the general and permanent Federal railroad
safety laws were simultaneously repealed, reenacted without substantive
change, and recodified as positive law in Title 49 of the United States
Code by Public Law 103-272. Due to this change, Part 225 is amended
throughout to reference the newly codified provisions.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule has been evaluated in accordance with existing
regulatory policies and procedures and is considered to be a
nonsignificant regulatory action under DOT policies and procedures (44
FR 11034; February 26, 1979). This final rule also has been reviewed
under Executive Order 12866 and is considered ``nonsignificant'' under
that Order.
AAR stated in its written comments that FRA is required by law to
explain its noncompliance with Executive Order 12866. AAR and member
railroads claimed that GAO's 1989 audit on accident/incident reporting
was outdated and that GAO's findings should not be considered for this
rulemaking. GAO's audit concluded that only one railroad, out of the
five it studied, had a written ICP and, only that railroad did not have
serious errors in accident/incident reporting. GAO found that the other
railroads underreported the actual number of reportable accidents and
incidents, and that many of the reports submitted to FRA contained
inaccurate or incomplete information. During the several days of public
hearings and in the written comments provided in response to this
rulemaking, there was no statement from any party that an independent
audit was conducted by any railroad to determine whether that railroad
was properly reporting accidents and incidents; nor did any railroad
state that even an internal audit was performed to determine whether
the GAO audit was in fact outdated. Based on the lack of empirical
evidence, FRA rejects AAR's claim that it is in noncompliance with
Executive Order 12866.
Although the rulemaking is ``nonsignificant,'' FRA nonetheless has
prepared a regulatory impact analysis addressing the economic impact of
the final rule. The regulatory evaluation estimates the economic costs
and consequences of this final rule as well as its anticipated benefits
of the impact. This regulatory impact analysis has been placed in the
docket and is available for public inspection and copying during normal
business hours in Room 8201, Office of Chief Counsel, FRA, 400 Seventh
Street, SW., Washington, DC 20590. Copies may also be obtained by
submitting a written request to the FRA Docket Clerk at the above
address. FRA has assessed quantitative measurements of the costs and
benefits expected from the implementation of this rule. The Net Present
Value (NPV) of the net costs is
[[Page 30966]]
$2.34 million or, $117,000 per year. Over a 20-year period, the NPV of
the estimated quantifiable societal benefits is $2.62 million, and the
NPV of the estimated quantifiable societal costs is $4.96 million.
Assuming the improved data generated by this rule led to regulatory
decisions that provided the margin of safety necessary to prevent even
one rail-related death over 20 years, this rule would produce
quantified benefits equaling the quantified costs. Thus, it is FRA's
position that the qualitative benefits as a result of this final rule,
i.e., the collection of consistent and uniform data and the value of
well focused regulatory decisions and properly targeted compliance
activities, will far exceed the costs.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities,
unless the Secretary certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Some small entities (e.g., tourist, scenic, museum and excursion
railroads) expressed a concern for FRA's accident reporting NPRM due to
the proposal to include ``Volunteers'' who perform safety-sensitive
functions or who operate on-track equipment in the ``Worker on Duty''
classification. This concern was based on the fact that tourist
railroads would have to collect and report to FRA the number of safety-
sensitive hours its volunteers worked each month. Tourist and museum
railroads viewed this proposal as being excessively burdensome. This
final rule revises this proposal so that there are new categories for
the classification of ``Volunteer'' on Form FRA F 6180.55. Further, the
final rule eliminates the proposal that would have required railroads
to collect and report any of the hours worked by volunteers.
The final rule requires railroads to implement an Internal Control
Plan (ICP) for their railroad accident reporting process. This
requirement is a process standard that will promote the accuracy of the
reporting process. The requirement does not tell the railroads how to
develop and implement an ICP or how the lines of communication should
be established. Nor does the ICP dictate who is responsible for which
functions or information exchange. The final rule adopts an ICP which
allows railroads greater flexibility in design and implementation.
Therefore, the needs, resources, and suitability of an ICP for each
railroad can be reflected in its implementation. Most small railroads
will be burdened proportionately less by this requirement than large or
medium sized railroads.
Small railroads also expressed some concern for the proposal to
calculate costs associated with damage to (i) On-track equipment, (ii)
signal equipment, (iii) track, (iv) track structures and roadbed, and
(v) costs of equipment rental and operation. The proposed damage
worksheet required the damages to be estimated using the costs
associated with acquiring new parts. This differed greatly from the
current methods that railroads use to estimate accident damages. This
potentially created problems and additional burdens for small railroads
because they generally perform repairs with used or refurbished parts.
This final rule does not adopt this method of calculating accident
damages and does not adopt use of the property damage worksheet by
railroads. The burden on small railroads therefore has been reduced
with elimination of this proposal.
FRA appreciates the concerns small railroads and tourist operations
expressed concerning the impact the accident reporting and other
regulations have on these entities. As stated previously, there is
legislation before Congress (the ``Department of Transportation
Regulatory Reform Act of 1996'') which, if passed, would amend 49
U.S.C. 20901(a) to eliminate the requirement that railroads file
notarized monthly reports with FRA regarding accidents and incidents on
their properties. The amendment also would allow the Secretary to
specify the frequency with which reports must be filed; provide
discretion to set different reporting requirements for different
classes of railroads; and facilitate electronic filing and a
corresponding reduction in paper filings. It is believed these
amendments would reduce unnecessary expense and delay associated with
filing monthly reports, particularly for small railroads and tourist
operations which may have no events to report for a particular month.
In reviewing the economic impact of the rule, FRA has concluded
that it will have a small economic impact on small entities. Therefore,
it is certified that this rule will not have a significant economic
impact on a substantial number of small entities under the provisions
of the Regulatory Flexibility Act.
FRA has prepared a regulatory flexibility assessment addressing the
impact of the final rule on small entities. This regulatory flexibility
assessment has been placed in the docket and is available for public
inspection and copying during normal business hours in Room 8201,
Office of Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC
20590. Copies may also be obtained by submitting a written request to
the FRA Docket Clerk at the above address.
Paperwork Reduction Act
The information collections contained in the accident reporting
NPRM were approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (Pub. L. 104-13) under control
number 2130-0500. This approval will expire on June 30, 1997. This
final rule contains amendments to the approved information collections,
and these revisions are subject to review by OMB under the Paperwork
Reduction Act of 1995. The sections that contain the new and/or revised
information collection requirements and the estimated time to fulfill
each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Proposed section Brief description Estimated average time
----------------------------------------------------------------------------------------------------------------
225.19(b), 225.21(e).............. Form FRA F 6180.57--Highway-Rail Grade 4 hours.
Crossing Accident/Incident Report.
225.19(c), 225.21(a).............. Form FRA F 6180.54--Rail Equipment 2 hours.
Accident/Incident Report.
225.19(d), 225.21(c).............. Form FRA F 6180.55a--Railroad Injury and 10 minutes.
Illness Summary (Continuation Sheet).
225.21(b)......................... Form FRA F 6180.55--Railroad Injury and 45 minutes.
Illness Summary.
225.21(d)......................... Form FRA F 6180.56--Annual Railroad 3 hours.
Report of Manhours and Casualties by
State.
225.21(g)......................... Form FRA F 6180.78--Notice to Railroad 15 min./2 hours.
Employee Involved in Rail Equipment
Accident/Incident Attributed to Employee
Human Factor; Employee Statement
Supplementing Railroad Accident Report.
225.21(h), 225.25(a).............. Form FRA F 6180.98--Railroad Employee 30 minutes.
Injury and/or Illness Record.
225.21(i), 225.25(b).............. Form FRA F 6180.97--Initial Rail 30 minutes.
Equipment Accident/Incident Record.
[[Page 30967]]
225.25(h)......................... Monthly List of Injuries and Illnesses... 5 hours
(Class I RR).
45 minutes (RR with 400,000
manhours or more, excluding
Class I RR).
10 minutes (RR with less than
400,000 manhours)
225.33(a)......................... Internal Control Plans................... 32 hours
(Class I RR).
20 hours (RR with 400,000
manhours or more, excluding
Class I RR))
1.75 hours (RR with less than
400,000 manhours).
225.37(b)(2), 225.37(c)(1)........ FRA F Form 6180.99--Batch Control Form... 10 minutes.
225.25(c)......................... Copy of Railroad Employee Injury and/or 2 minutes.
Illness Record to Employee.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning whether these
information collection requirements are necessary for the proper
performance of the function of FRA, including whether the information
shall have practical utility; on the accuracy of FRA''s estimates of
the burden of the information collection requirements; on the quality,
utility, and clarity of the information to be collected; and whether
the burden of collection of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology, may be minimized. For information or a
copy of the paperwork package submitted to OMB, contact Ms. Gloria
Swanson at (202) 501-4982.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Attention: Desk Officer for the Federal
Railroad Administration, Office of Information and Regulatory Affairs,
Washington, D.C. 20503, and should also send a copy of their comments
to Ms. Gloria Swanson, Federal Railroad Administration, Room 8301, RRS-
211, 400 Seventh Street, S.W., Washington, D.C. 20590.
OMB is required to make a decision concerning the collection of
information 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 cannot impose a penalty on persons for violating information
collection requirements when they do not display a current OMB control
number, if required. FRA intends to obtain current OMB control numbers
for any new or revised information collection requirements resulting
from this rulemaking action prior to the effective date of this final
rule. The OMB control number, when assigned, will be announced by
separate notice in the Federal Register.
Environmental Impact
FRA has evaluated these regulations in accordance with its
procedures for ensuring full consideration of the environmental impact
of FRA actions, as required by the National Environmental Policy Act
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and DOT Order 5610.1c. It has been determined that this rule
will not have any effect on the quality of the environment.
Federalism Implications
This rule will not have a substantial effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Thus, in accordance with Executive Order 12612, preparation
of a Federalism Assessment is not warranted.
List of Subjects in 49 CFR Part 225
Railroad accident reporting rules, Railroad safety.
The Final Rule
In consideration of the foregoing, FRA amends part 225, Title 49,
Code of Federal Regulations as follows:
PART 225--[AMENDED]
1. The authority citation for part 225 is revised to read as
follows:
Authority: 49 U.S.C. 20901, 20102, 322(a), 21302, 21304,
formerly codified at 45 U.S.C. 38, 42, 43, and 43a; 49 U.S.C. 20102-
20103, 20107, 20108, 20110, 20131-20143, 21301-21302, 21304, 21311,
24902, formerly codified at 45 U.S.C. 39, 431, 437, and 438; 49
U.S.C. 103, 49 U.S.C. 20901-20902, 21302, formerly codified at 49
App. U.S.C. 1655(e)(1)(K); 49 CFR 1.49 (c), (g), and (m).
2. By revising Sec. 225.1 to read as follows:
Sec. 225.1 Purpose.
The purpose of this part is to provide the Federal Railroad
Administration with accurate information concerning the hazards and
risks that exist on the Nation's railroads. FRA needs this information
to effectively carry out its regulatory responsibilities under 49
U.S.C. chapters 201-213. FRA also uses this information for determining
comparative trends of railroad safety and to develop hazard elimination
and risk reduction programs that focus on preventing railroad injuries
and accidents. 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 accidents/incidents
and injuries/illnesses which occur in that State.
3. By revising Sec. 225.3 to read as follows:
Sec. 225.3 Applicability.
This part applies to all railroads except--
(a) A railroad that operates freight trains only on track inside an
installation which is not part of the general railroad system of
transportation
[[Page 30968]]
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.
(b) Rail mass transit operations in an urban area that are not
connected with the general railroad system of transportation.
(c) 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:
(1) A public highway-rail grade crossing that is in use;
(2) An at-grade rail crossing that is in use;
(3) A bridge over a public road or waters used for commercial
navigation; or
(4) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
4. By revising Sec. 225.5 to read as follows:
Sec. 225.5 Definitions
As used in this part--
Accident/incident means:
(1) Any impact between railroad on-track equipment and an
automobile, bus, truck, motorcycle, bicycle, farm vehicle or pedestrian
at a highway-rail grade crossing;
(2) Any collision, derailment, fire, explosion, act of God, or
other event involving operation of railroad on-track equipment
(standing or moving) that results in reportable damages greater than
the current reporting threshold to railroad on-track equipment,
signals, track, track structures, and roadbed;
(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 of a railroad employee. Accountable injury
or illness means 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; however,
it may be provided at any location, including the work site.
Accountable rail equipment accident/incident means 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 from the track before any rail
operations over the track can continue. An accountable rail equipment
accident/incident, if not tended to, thus would disrupt railroad
service. Examples of ``disruption of service'' would include: loss of
main track; one or more derailed wheels; any train failing to arrive or
depart at its scheduled time; one or more cars or locomotives taken out
of service; or rerouting trains due to a damaged car or locomotive.
Arising from the operation of a railroad includes all activities of
a railroad that are related to the performance of its rail
transportation business.
Day away from work is 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.
Day of restricted work activity is any day that a employee is
restricted (as defined below) in his or her job following the day of
the injury or diagnosis of occupational illness.
Employee human factor includes any of the accident causes signified
by the train accident cause codes listed under ``Train Operation--Human
Factors'' in the current ``FRA Guide for Preparing Accidents/Incidents
Reports,'' except for those train accident cause codes pertaining to
non-railroad workers. For purposes of this definition ``employee''
includes the classifications of Worker on Duty--Employee, Employee not
on Duty, Worker on Duty--Contractor, and Worker on Duty--Volunteer.
Establishment means a single physical location where workers report
to work, 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 car repair or construction
facility.
First aid treatment means treatment limited to simple procedures
used to treat minor conditions, such as abrasions, cuts, bruises, and
splinters. First aid treatment is typically confined to a single
treatment and does not require special skills or procedures.
FRA representative means the Associate Administrator for Safety,
FRA; the Associate Administrator's delegate (including a qualified
State inspector acting under part 212 of this chapter); the Chief
Counsel, FRA; or the Chief Counsel's delegate.
Highway-rail grade crossing means a location where a public
highway, road, street, or private roadway, including associated
sidewalks and pathways, crosses one or more railroad tracks at grade.
Joint operations means rail operations conducted on a track used
jointly or in common by two or more railroads subject to this part or
operation of a train, locomotive, car, or other on-track equipment by
one railroad over the track of another railroad.
Medical treatment includes 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
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.
Non-train incident means an event that results in a reportable
casualty, but does not involve the movement of on-track equipment nor
cause reportable damage above the threshold established for train
accidents.
Occupational illness means any abnormal condition or disorder, of
any person who falls under the definition for the classifications of
Worker on Duty--Employee, Worker on Duty--Contractor, or Worker on
Duty--Volunteer, other than one resulting from injury, caused by
environmental factors 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.
Person includes all categories of entities covered under 1 U.S.C.
1, including, but not limited to, a railroad; any manager, supervisor,
official, or other employee or agent of a railroad; any owner,
manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any passenger; any trespasser or nontrespasser; any
independent contractor providing goods or services to a railroad; any
volunteer providing goods or services to a railroad; and any employee
of such owner, manufacturer, lessor, lessee, or independent contractor.
Qualified health care professional is a health care professional
operating within the scope of his or her license,
[[Page 30969]]
registration, or certification. For example, an otolaryngologist is
qualified to diagnose a case of noise-induced hearing loss and identify
potential causal factors, but may not be qualified to diagnose a case
of repetitive motion injuries.
Railroad means a person providing railroad transportation.
Railroad transportation means any form of non-highway ground
transportation that run on rails or electro-magnetic guideways,
including commuter or other short-haul railroad passenger service in a
metropolitan or suburban area, as well as any commuter railroad service
that was operated by the Consolidated Rail Corporation as of January 1,
1979, and high speed ground transportation systems that connect
metropolitan areas, without regard to whether they use new technologies
not associated with traditional railroads. Such term does not include
rapid transit operations within an urban area that are not connected to
the general railroad system of transportation.
Train accident means any collision, derailment, fire, explosion,
act of God, or other event involving operation of railroad on-track
equipment (standing or moving) that results in damages greater than the
current reporting threshold to railroad on-track equipment, signals,
track, track structures, and roadbed.
Train incident means any event involving the movement of on-track
equipment that results in a reportable casualty but does not cause
reportable damage above the current threshold established for train
accidents.
Work environment is the physical location, equipment, materials
processed or used, and activities of a railroad employee associated
with his or her work, whether on or off the railroad's property.
Work related means related to any incident, activity, exposure, or
the like occurring within the work environment.
Sec. 225.7 [Amended]
5. By removing ``Executive Director'' in the third sentence in
Sec. 225.7(a) and adding in lieu thereof ``Freedom of Information
Officer, Office of Chief Counsel'' and by removing ``Section 4 of the
Accidents Reports Act (36 Stat. 351, 45 U.S.C. 41)'' in the first
sentence in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C.
20903'' and by removing ''Accident Reports Act'' in the second sentence
in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C. 20901'' and by
removing ``45 U.S.C. 41'' at the end of paragraph (b) and adding in
lieu thereof ``49 U.S.C. 20903.''
6. By revising Sec. 225.11 to read as follows:
Sec. 225.11 Reporting of accidents/incidents.
Each railroad subject to this part shall submit to FRA a monthly
report of all railroad accidents/incidents described in Sec. 225.19.
The report shall be made on the forms prescribed in Sec. 225.21 in hard
copy or, alternatively, by means of magnetic media or electronic
submission, as prescribed in Sec. 225.37, and shall be submitted within
30 days after expiration of the month during which the accidents/
incidents occurred. Reports shall be completed as required by the
current ``FRA Guide for Preparing Accidents/Incidents Reports.'' A copy
of this guide may be obtained from the Office of Safety, RRS-22,
Federal Railroad Administration, 400 Seventh Street, S.W., Washington,
D.C. 20590.
7. By adding a sentence to Sec. 225.12(a), by revising the second
sentence in Sec. 225.12(g)(3), and by revising Secs. 225.12(h) (1) and
(2) to read as follows:
Sec. 225.12 Rail Equipment Accident/Incident Reports alleging employee
human factor as cause; Employee Human Factor Attachment; notice to
employee; employee supplement.
(a) * * * For purposes of this section, ``employee'' is defined as
a Worker on Duty--Employee, Employee not on Duty, Worker on Duty--
Contractor, or Worker on Duty--Volunteer.
* * * * *
(g) * * *
(1) * * *
(2) * * *
(3) * * * If an employee wishes to provide confidential information
to FRA, the employee should not use the Supplement form (part II of
Form FRA F 6180.78), but rather provide such confidential information
by other means, such as a letter to the employee's collective
bargaining representative, or to the Federal Railroad Administration,
Office of Safety Assurance and Compliance, RRS-11, 400 Seventh Street,
S.W., Washington, D.C. 20590. * * *
(h) * * *
(1) Under 49 U.S.C. 21301, 21302, and 21304, any person who
willfully files a false Supplement with FRA is subject to a civil
penalty. See Appendix A to this part.
(2) Any person who knowingly and willfully files a false Supplement
is subject to a $5,000 fine, or up to two years'' imprisonment, or
both, under 49 U.S.C. 21311.
8. By revising the second sentence in Sec. 225.19(b), by revising
the first, third, and fifth sentences of Sec. 225.19(c), by revising
Sec. 225.19(d), and by adding Sec. 225.19(e) to read as follows:
Sec. 225.19 Primary groups of accidents/incidents.
* * * * *
(b) * * * In addition, whenever a highway-rail grade crossing
accident/incident results in damages greater than the current reporting
threshold to railroad on-track equipment, signals, track, track
structures, or roadbed, that accident/incident shall be reported to the
FRA on Form FRA F 6180.54. * * *
(c) * * * Rail equipment accidents/incidents are collisions,
derailments, fires, explosions, acts of God, or other events involving
the operation of railroad on-track equipment, signals, track, track
equipment (standing or moving) that result in damages greater than the
current reporting threshold to railroad on-track equipment, signals,
tracks, track structures, or roadbed, including labor costs and the
costs for acquiring new equipment and material. * * * If the property
of more than one railroad is involved in an accident/incident, the
reporting threshold is calculated by including the damages suffered by
all of the railroads involved. * * * The reporting threshold will be
reviewed periodically and will be adjusted every year.
(d) 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.
(e) The accident/incident reporting threshold for calendar years
1991 through 1996 is $6,300. This threshold dollar amount will remain
in effect until FRA amends that amount and provides notice in the
Federal Register. The procedure for determining the reporting threshold
will appear as Appendix B to Part 225.
9. By revising the fourth sentence in Sec. 225.21(b), by removing
Sec. 225.21(f) and redesignating Secs. 225.21(g) and 225.21(h) as
Secs. 225.21(f) and 225.21(g), respectively, and by adding new
Secs. 225.21 (h) and (i) to read as follows:
Sec. 225.21 Forms.
* * * * *
(b) * * * All railroads subject to this part, shall show on this
form the total number of freight train miles, passenger train miles,
yard switching train miles,
[[Page 30970]]
and other train miles run during the month.
* * * * *
(h) Form FRA F 6180.98--Railroad Employee Injury and/or Illness
Record. Form FRA F 6180.98 or an alternative railroad-designed record
shall be used by the railroads to record all reportable and accountable
injuries and illnesses to railroad employees for each establishment.
This record shall be completed and maintained in accordance with the
requirements set forth in Sec. 225.25.
(i) Form FRA F 6180.97--Initial Rail Equipment Accident/Incident
Record. Form FRA F 6180.97 or an alternative railroad-designed record
shall be used by the railroads to record all reportable and accountable
rail equipment accidents/incidents for each establishment. This record
shall be completed and maintained in accordance with the requirements
set forth in Sec. 225.25.
10. By revising Sec. 225.25 to read as follows:
Sec. 225.25 Recordkeeping.
(a) Each railroad shall maintain either the Railroad Employee
Injury and/or Illness Record (Form FRA F 6180.98) or an alternative
railroad-designed record as described in paragraph (b) of this section
of all reportable and accountable injuries and illnesses of its
employees that arise from the operation of the railroad for each
railroad establishment where such employees report to work, including,
but not limited to, an operating division, general office, and major
installation such as a locomotive or car repair or construction
facility.
(b) The alternative railroad-designed record may be used in lieu of
the Railroad Employee Injury and/or Illness Record (Form FRA F 6180.98)
described in paragraph (a) of this section. Any such alternative record
shall contain all of the information required on the Railroad Employee
Injury and/or Illness Record. Although this information may be
displayed in a different order from that on the Railroad Employee
Injury and/or Illness Record, the order of the information shall be
consistent from one such record to another such record. The order
chosen by the railroad shall be consistent for each of the railroad''s
reporting establishments. Railroads may list additional information on
the alternative record beyond the information required on the Railroad
Employee Injury and/or Illness Record. The alternative record shall
contain, at a minimum, the following information:
(1) Name of railroad;
(2) Case/incident number;
(3) Full name of railroad employee;
(4) Date of birth of railroad employee;
(5) Gender of railroad employee;
(6) Social security number of railroad employee;
(7) Date the railroad employee was hired;
(8) Home address of railroad employee; include the street address,
city, State, ZIP code, and home telephone number with area code;
(9) Name of facility where railroad employee normally reports to
work;
(10) Address of facility where railroad employee normally reports
to work; include the street address, city, State, and ZIP code;
(11) Job title of railroad employee;
(12) Department assigned;
(13) Specific site where accident/incident/exposure occurred;
include the city, county, State, and ZIP code;
(14) Date and time of occurrence; military time or AM/PM;
(15) Time employee's shift began; military time or AM/PM;
(16) Whether employee was on premises when injury occurred;
(17) Whether employee was on or off duty;
(18) Date and time when employee notified company personnel of
condition; military time or AM/PM;
(19) Name and title of railroad official notified;
(20) Description of the general activity this employee was engaged
in prior to the injury/illness/condition;
(21) Description of all factors associated with the case that are
pertinent to an understanding of how it occurred. Include a discussion
of the sequence of events leading up to it; and the tools, machinery,
processes, material, environmental conditions, etc., involved;
(22) Description, in detail, of the injury/illness/condition that
the employee sustained, including the body parts affected. If a
recurrence, list the date of the last occurrence;
(23) Identification of all persons and organizations used to
evaluate or treat the condition, or both. Include the facility,
provider and complete address;
(24) Description of all procedures, medications, therapy, etc.,
used or recommended for the treatment of the condition.
(25) Extent and outcome of injury or illness to show the following
as applicable:
(i) Fatality--enter date of death;
(ii) Restricted work; number of days; beginning date;
(iii) Occupational illness; date of initial diagnosis;
(iv) Instructions to obtain prescription medication, or receipt of
prescription medication;
(v) If missed one or more days of work or next shift, provide
number of work days; and beginning date;
(vi) Medical treatment beyond ``first aid'';
(vii) Hospitalization for treatment as an inpatient;
(viii) Multiple treatments or therapy sessions;
(ix) Loss of consciousness;
(x) Transfer to another job or termination of employment;
(26) Each railroad shall indicate if the Railroad Injury and
Illness Summary (Continuation Sheet) (FRA Form F 6180.55a) has been
filed with FRA for the injury or illness. If FRA Form F 6180.55a was
not filed with FRA, then the railroad shall provide an explanation of
the basis for its decision.
(27) The reporting railroad shall indicate if the injured or ill
railroad employee was provided an opportunity to review his or her
file; and
(28) The reporting railroad shall identify the preparer's name;
title; telephone number with area code; and the date the log entry was
completed.
(c) Each railroad shall provide the employee, upon request, a copy
of either the completed Railroad Employee Injury and/or Illness Record
(Form FRA F 6180.98) or the alternative railroad-designed record as
described in paragraphs (a) and (b) of this section as well as a copy
of any other form, record or report filed with FRA or held by the
railroad pertaining to the employee's injury or illness.
(d) Each railroad shall maintain the Initial Rail Equipment
Accident/Incident Record (Form FRA F 6180.97) or an alternative
railroad-designed record as described in paragraph (e) of this section
of reportable and accountable 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 where workers report to work, including,
but not limited to, an operating division, general office, and major
installation such as a locomotive or car repair or construction
facility.
(e) The alternative railroad-designed record may be used in lieu of
the Initial Rail Equipment Accident/Incident Record (Form FRA F
6180.97). Any such alternative record shall contain all of the
information required on the Initial Rail Equipment Accident/Incident
Record. Although this information may be
[[Page 30971]]
displayed in a different order from that on the Initial Rail Equipment
Accident/Incident Record, the order of the information shall be
consistent from one such record to another such record. The order
chosen by the railroad shall be consistent for each of the railroad's
reporting establishments. Railroads may list additional information in
the alternative record beyond the information required on the Initial
Rail Equipment Accident/Incident Record. The alternative record shall
contain, at a minimum, the following information:
(1) Date and time of accident;
(2) Reporting railroad, and accident/incident number;
(3) Other railroad, if applicable, and other railroad's accident/
incident number;
(4) Railroad responsible for track maintenance, and that railroad's
incident number;
(5) Type of accident/incident (derailment, collision, etc.);
(6) Number of cars carrying hazardous materials that derailed or
were damaged; and number of cars carrying hazardous materials that
released product;
(7) Division;
(8) Nearest city or town;
(9) State;
(10) Milepost (to the nearest tenth);
(11) Specific site;
(12) Speed (indicate if actual or estimate);
(13) Train number or job number;
(14) Type of equipment (freight, passenger, yard switching, etc.);
(15) Type of track (main, yard, siding, industry);
(16) Total number of locomotives in train;
(17) Total number of locomotives that derailed;
(18) Total number of cars in train;
(19) Total number of cars that derailed;
(20) Total amount of damage in dollars to equipment based on
computations as described in the ``FRA Guide for Preparing Accidents/
Incidents Reports'';
(21) Total amount of damage in dollars to track, signal, way and
structures based on computations as described in the ``FRA Guide for
Preparing Accidents/Incidents Reports'';
(22) Primary cause;
(23) Contributing cause;
(24) Persons injured and persons killed, 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;
(25) Narrative description of the accident;
(26) Whether the accident/incident was reported to FRA;
(27) Preparer's name, title, telephone number with area code, and
signature; and
(28) Date the report was completed.
(f) Each railroad shall enter each reportable and accountable
injury and illness and each reportable and accountable rail equipment
accident/incident on the appropriate record, as required by paragraphs
(a) through (e) of this section, as early as practicable but no later
than seven working days after receiving information or acquiring
knowledge that an injury or illne
FR Doc. 96-14943 Railroad Accident Reporting
ss or rail equipment accident/incident
has occurred.
(g) The records required under paragraphs (a) through (e) of this
section may be maintained at the local establishment or, alternatively,
at a centralized location. If the records are maintained at a
centralized location, but not through electronic means, then a paper
copy of the records that is current within 35 days of the month to
which it applies shall be available for that establishment. If the
records are maintained at a centralized location through electronic
means, then the records for that establishment shall be available for
review in a hard copy format within four business hours of FRA's
request. FRA recognizes that circumstances outside the railroad's
control may preclude it from fulfilling the four-business-hour time
limit. In these circumstances, FRA will not assess a monetary penalty
against the railroad for its failure to provide the requested
documentation provided the railroad made a reasonable effort to correct
the problem.
(h) A listing of all reported injuries and occupational illnesses
for the previous month shall be posted in a conspicuous location at and
for each railroad establishment within 30 days after expiration of the
month during which the injuries and illnesses occurred. For purposes of
this paragraph, this list is required to be posted only at those
establishments that are in continual operation for a minimum of 90
calendar days; otherwise the list shall be posted at the next higher
organizational level establishment. This listing shall be posted and
shall remain continuously displayed for the next twelve consecutive
months. Incidents reported for employees at that establishment shall be
displayed in date sequence. The listing shall contain, at a minimum,
the following information:
(1) Name and address of the establishment;
(2) Calendar year of the cases being displayed;
(3) Incident number used to report case;
(4) Date of the injury or illness;
(5) Location of incident;
(6) Regular job title of employee injured or ill;
(7) Description of the injury or condition;
(8) Number of days employee absent from work at time of posting;
(9) Number of days of work restriction for employee at time of
posting;
(10) If fatality--enter date of death;
(11) Annual average number of railroad employees reporting to this
establishment;
(12) Preparer's name, title, telephone number with area code, and
signature; and
(13) Date the report was completed.
(14) When there are no reportable injuries or occupational
illnesses associated with an establishment for that month, the listing
shall make reference to this fact.
11. By revising the first sentence in Sec. 225.27(a) and by adding
a new sentence after the revised first sentence to read as follows:
Sec. 225.27 Retention of records.
(a) Each railroad shall retain the Railroad Employee Injury and/or
Illness Record and the Monthly List of Injuries and Illnesses required
by Sec. 225.25 for at least five years after the end of the calendar
year to which they relate. Each railroad shall retain the Initial Rail
Equipment Accident/Incident Record required by Sec. 225.25 for at least
two years after the end of the calendar year to which they relate. * *
*
* * * * *
12. By removing ``$250'' in the first sentence in Sec. 225.29 and
adding in lieu thereof ``$500'' and by revising the third and fourth
sentences in Sec. 225.29 to read as follows:
Sec. 225.29 Penalties.
* * * See Appendix A to this part for a statement of agency civil
penalty policy. A person may also be subject to the criminal penalties
provided for in 49 U.S.C. 21311.
13. By revising 225.31(f) to read as follows:
Sec. 225.31 Investigations.
* * * * *
(f) Section 20903 of title 49 of the United States Code provides
that no part of a report of an accident investigation
[[Page 30972]]
under section 20902 of title 49 of the United States Code may be
admitted as evidence or used for any purpose in any suit or action for
damages growing out of any matter mentioned in the accident
investigation report.
14. By adding new Sec. 225.33 as follows:
Sec. 225.33 Internal Control Plans.
(a) Each railroad shall adopt and comply with a written Internal
Control Plan that shall be maintained at the office where the
railroad's reporting officer conducts his or her official business.
Each railroad shall amend its Internal Control Plan, as necessary, to
reflect any significant changes to the railroad's internal reporting
procedures. The Internal Control Plan shall be designed to maintain
absolute accuracy and shall include, at a minimum, each of the
following ten components:
(1) A policy statement declaring the railroad's commitment to
complete and accurate reporting of all accidents, incidents, injuries,
and occupational illnesses arising from the operation of the railroad,
to full compliance with the letter and spirit of FRA's accident
reporting regulations, and to the principle, in absolute terms, that
harassment or intimidation of any person that is calculated to
discourage or prevent such person from receiving proper medical
treatment or from reporting such accident, incident, injury or illness
will not be permitted or tolerated and will result in some stated
disciplinary action against any employee, supervisor, manager, or
officer of the railroad committing such harassment or intimidation.
(2) The dissemination of the policy statement; complaint
procedures. Each railroad shall provide to all employees, supervisory
personnel, and management the policy statement described in paragraph
(a)(1). Each railroad shall have procedures to process complaints from
any person about the policy stated in paragraph (a)(1) being violated,
and to impose the appropriate prescribed disciplinary actions on each
employee, supervisor, manager, or officer of the railroad found to have
violated the policy. These procedures shall be disclosed to railroad
employees, supervisors, managers, and officers. The railroad shall
provide ``whistle blower'' protection to any person subject to this
policy, and such policy shall be disclosed to all railroad employees,
supervisors and management.
(3) Copies of internal forms and/or a description of the internal
computer reporting system used for the collection and internal
recording of accident and incident information.
(4) A description of the internal procedures used by the railroad
for the processing of forms and/or computerized data regarding accident
and incident information.
(5) A description of the internal review procedures applicable to
accident and incident information collected, and reports prepared by,
the railroad's safety, claims, medical and/or other departments engaged
in collecting and reporting accident and incident information.
(6) A description of the internal procedures used for collecting
cost data and compiling costs with respect to accident and incident
information.
(7) A description of applicable internal procedures for ensuring
adequate communication between the railroad department responsible for
submitting accident and incident reports to FRA and any other
department within the railroad responsible for collecting, receiving,
processing and reporting accidents and incidents.
(8) A statement of applicable procedures providing for the updating
of accident and incident information prior to reporting to FRA and a
statement of applicable procedures providing for the amendment of
accident and incident information as specified in the ``FRA Guide for
Preparing Accidents/Incidents Reports.''
(9) A statement that specifies the name and title of the railroad
officer responsible for auditing the performance of the reporting
function; a statement of the frequency (not less than once per calendar
year) with which audits are conducted; and identification of the site
where the most recent audit report may be found for inspection and
photocopying.
(10)(i) A brief description of the railroad organization, including
identification of:
(A) All components that regularly come into possession of
information pertinent to the preparation of reports under this part
(e.g., medical, claims, and legal departments; operating, mechanical,
and track and structures departments; payroll, accounting, and
personnel departments);
(B) The title of each railroad reporting officer;
(C) The title of each manager of such components, by component; and
(D) All officers to whom managers of such components are
responsible, by component.
(ii) A current organization chart satisfies paragraphs
(a)(10)(i)(C)(D) (iii) and (iv) of this section.
(b) [Reserved]
15. By adding new Sec. 225.35 to read as follows:
Sec. 225.35 Access to records and reports.
Each railroad subject to this part shall have at least one
location, and shall identify each location, where any representative of
the Federal Railroad Administration or of a State agency participating
in investigative and surveillance activities under Part 212 of this
chapter or any other authorized representative, has centralized access
to a copy of any record and report (including relevant claims and
medical records) required under this part, for examination and
photocopying in a reasonable manner during normal business hours. Such
representatives shall display proper credentials when requested. Each
railroad shall identify the locations where a copy of any record and
report required under this part is accessible for inspection and
photocopying by maintaining a list of such establishment locations at
the office where the railroad's reporting officer conducts his or her
official business. A copy of any record and report required under this
part shall be accessible within four business hours after the request.
FRA will not assess a monetary penalty against the railroad for its
failure to provide the requested documentation when circumstances
outside the railroad's control preclude it from fulfilling the four-
business-hour time limit and the railroad has made a reasonable effort
to correct the problem.
16. By adding new Sec. 225.37 to read as follows:
Sec. 225.37 Magnetic media transfer and electronic submission.
(a) A railroad has the option of submitting the following reports,
updates, and amendments by way of magnetic media (computer diskette or
magnetic tape), or by means of electronic submission over telephone
lines or other means:
(1) The Rail Equipment Accident/Incident Report (Form FRA F
6180.54);
(2) the Railroad Injury and Illness Summary (Form FRA F 6180.55);
(3) the Railroad Injury and Illness Summary (Continuation Sheet)
(Form FRA F 6180.55a);
(4) the Highway-Rail Grade Crossing Accident/Incident Report (Form
FRA F 6180.57); and
(5) the Batch Control Form (Form FRA F 6180.99).
(b) Each railroad utilizing the magnetic media option shall submit
to FRA the following:
(1) the computer diskette or magnetic tape;
(2) the Batch Control Form (Form FRA F 6180.99); and
[[Page 30973]]
(3) a notarized hard copy of the Railroad Injury and Illness
Summary (Form FRA F 6180.55), signed by the railroad's reporting
officer.
(c) Each railroad utilizing the electronic submission option shall
submit to FRA the following:
(1) the Batch Control Form (Form FRA F 6180.99) which is submitted
to an FRA-designated computer; and
(2) a notarized hard copy of the Railroad Injury and Illness
Summary (Form FRA F 6180.55), signed by the railroad's reporting
officer.
(d) Each railroad employing either the magnetic media or electronic
submission option, shall submit its monthly reporting data for the
reports identified in paragraph (a) of this section in a year-to-date
file format as described in the ``FRA Guide for Preparing Accidents/
Incidents Reports.''
(e) In addition to fulfilling the requirements stated in paragraph
(b) through (d) of this section, each railroad initially utilizing
either the magnetic media or electronic submission option, shall submit
the hard copy report(s) for each accident/incident it reports by such
means. FRA will continually review the railroad``s submitted hard copy
reports against the data it has submitted electronically, or by means
of magnetic media. Once the magnetic media or electronic submission is
in total agreement with the submitted hard copies of the reports for
three consecutive reporting months, FRA will notify the railroad, in
writing, that submission of the hard copy reports, except for the
notarized Railroad Injury and Illness Summary, is no longer required.
Appendix A--[Removed]
17. By removing Appendix A.
18. By redesignating Appendix B as Appendix A and by revising newly
redesignated Appendix A to read as follows:
Appendix A to Part 225--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Section (including computer code, if Willful
applicable) Violation violation
------------------------------------------------------------------------
225.9 Telephonic reports of certain accidents/
incidents.................................... $1,000 $2,000
225.11 Reports of accidents/ incidents....... 2,500 5,000
225.12(a):
Failure to file Railroad Employee Human
Factor Attachment properly...............
(1) Employee identified............... 2,500 5,000
(2) No employee identified............ 1,000 2,000
225.12(b):
(1) Failure to notify employee properly... 2,500 5,000
(2) Notification of employee not involved
in accident.............................. 2,500 5,000
225.12(c):
Failure of employing railroad to provide
requested information properly........... 1,000 2,000
225.12(d):
(1) Failure to revise report when identity
becomes known............................ 2,500 5,000
(2) Failure to notify after late
identification........................... 2,500 5,000
225.12(f)(1):
Submission of notice if employee dies as
result of the reported accident.......... 2,500 5,000
225.12(g):
Willfully false accident statement by
employee................................. ........... 5,000
225.13 Late reports...................... 2,500 5,000
225.17(d) Alcohol or drug involvement.... 2,500 5,000
225.23 Joint operations.................. (\1\) (\1\)
225.25 Recordkeeping..................... 2,500 5,000
225.27 Retention of records.............. 1,000 2,000
225.33:
(1) Failure to adopt the Internal
Control Plan......................... 2,500 5,000
(2) Inaccurate reporting due to
failure to comply with the Internal
Control Plan......................... 2,500 5,000
(3) Failure to comply with the
intimidation/harassment policy in the
Internal Control Plan................ 2,500 5,000
225.35 Access to records and reports..... 2,500 5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $20,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. A failure to comply with Sec. 225.23
constitutes a violation of Sec. 225.11. For purposes of Secs. 225.25
and 225.27 of this part, each of the following constitutes a single
act of noncompliance: (1) a missing or incomplete log entry for a
particular employee's injury or illness; or (2) a missing or
incomplete log record for a particular rail equipment accident or
incident. Each day a violation continues is a separate offense.
Secs. 225.12, 225.13, 225.15, 225.19, 225.21 [Amended]
19. In addition to the amendments set forth above, in 49 CFR part
225 remove the word ``rail-highway'' and add, in its place, the word
``highway-rail'' in the following places:
(a) Sec. 225.12(b)(2)(iii);
(b) Sec. 225.13;
(c) Sec. 225.15(a);
(d) Secs. 225.19(a) and (b); and
(e) Sec. 225.21(e).
Issued in Washington, DC, on May 30, 1996.
Donald M. Itzkoff,
Deputy Federal Railroad Administrator.
Attachments
Note: These attachments will not appear in the Code of Federal
Regulations.
Attachments 1--Review of AAR's Proposed Performance Standards
I. Introduction
The NPRM for amending the Accident/Incident Report Regulations
(49 CFR 225) included a section on Internal Control Procedures
(ICP). The Association of American Railroads (AAR) and its members
objected to the ICP and, instead proposed that a Performance
Standard be used to measure compliance with the reporting
requirements.
Westat, Inc. reviewed the statistical implications of the
Performance Standards for Railroad Accident/Incident Reporting as
proposed by AAR. Our comments on AAR's proposal, are presented
below.
AAR's recommended approach relies on auditing a sample of
records, rather than all records, to assure a specified rate of
compliance with reporting requirements. A
[[Page 30974]]
statistical audit can be designed to reduce the labor requirements
of the monitoring process without compromising reliable reporting of
reportable occurrences. It has become common in recent years to view
statistical audits as an important part of Total Quality Management
(TQM), rather than as just a tool of the more traditional approach
to quality assurance based on acceptance testing. The key difference
between the two approaches is that TQM focuses on continuous and
incremental improvements of process performance, whereas acceptance
testing, as in AAR's Performance Standards, simply judges
acceptability of process output by applying pre-defined criteria
(Gitlow, et. al., Tools and Methods for the Improvement of Quality,
1989, IRWIN, Homewood, IL, Boston, MA).
II. AAR'S Recommendations for Auditing a Sample of Records
AAR's Performance Standards are based on methods selected from a
set of statistical procedures that were developed for the U.S.
military (MIL-STD-105E, 1989) as means of statistically controlling
process quality in a stable environment. The military standard
(Standard, for short) invoked by AAR is based on sound statistical
methods. However, AAR's application of the Standard suffers from at
least the five major deficiencies discussed below. A detailed
summary of AAR's recommendations for applying the Standard is given
in Appendix 1. Westat's critique of the proposed Performance
Standards is presented here.
1. Reporting Process May Not Be Stable
AAR's reporting process has not been fully defined, it has not
been tested in the real world, and its stability in the sense the
Standard uses this term has not been demonstrated, yet AAR assumed
that reporting will be a stable process, and applied procedures
appropriate only for stable processes. The documentation of the
Standard clearly states that the procedures described therein are
directly applicable only to stable processes.
2. AAR's Sample Inclusion Criterion Is Flawed
The Standard established batch sampling plans and procedures for
inspection by attributes. To apply the procedures, batches would be
sampled at random, and sampled items classified by inspection either
as ``acceptable'' or as ``defective.'' It is assumed that all items
can be classified, and leaving items unclassified is not permitted.
The Standard offers rules for choosing sample sizes and acceptance
criteria. The Standard formulates acceptance criteria in terms of
the number, or the percentage, of defectives in the sample.
Acceptance criteria logic is to accept the batch if a random sample
of a specified size contained fewer than a pre-determined number of
defectives, otherwise, reject the batch.
In Westat's understanding of AAR's scheme for applying the
Standard, a batch is ``* * * a list of all reportable and non-
reportable accidents/incidents occurrences for a specified calendar
year,'' ``* * * a rejection is defined as railroad's failure to
report an occurrence required to be reported * * * [that is] not
reported * * * '', and ``random sample[s] [would] be taken from the
list of occurrences.''
AAR's lists can include two types of records, R-type, and NR-
type (See Table 1):
* R-type records are records of occurrences classified by the
railroad as reportable, and
* NR-type records are records of occurrences classified by the
railroad as non-reportable.
AAR uses reportability as the inspection attribute. AAR's method
counts rejections only among NR-type records, and equates the number
of rejections to the number of reportable occurrences that were
mistakenly reported as NR-type records. These records are identified
in the second row of Table 1. Note that records in the third row of
Table 1 are also in error, but they are not rejections according to
the rules proposed by AAR.
AAR plans to sample lists containing records classified as R-
type and NR-type, and reject a list whenever a random sample from it
includes too many reportable NR-type records. For statistical
reasons, this is expected to happen if the number of reportable
occurrences that were classified as NR-type (i.e., N2 in Table
1) was large relative to the total number of records, N, in the
list. It is clear that AAR's sampling plan treats R-type records and
NR-type records differently. For determining sample size, AAR's
sampling plan combines R-type and NR-type records. For counting
rejections, it recognizes only the reporting errors in NR-type
records (row 2 in Table 1) but not the reporting errors in R-type
records (row 3 in Table 1). Whether in error, or not in error, R-
type records are not rejected according to AAR's criteria. This
implies that increasing the proportion of R-type records reduces the
expected number of rejections in fixed-sized random samples.
Metaphorically speaking, increasing the size of the lake (R-type
records) without increasing the stock of fish in it (NR-type
records) makes it harder to catch the large fish (rejected records).
We have showed that AAR's audit scheme makes audit results
depend on the number of out-of-scope (non-reportable) records on the
audited list. Surely, making audit results depend on data outside
the audit's scope is not acceptable: valid acceptance criteria must
be based only on data relevant to rejection rate, e.g., the total
number reportable occurrences, and the number of reportable
occurrences in error.
3. AAR Overstated Compliance Rate
Using any reasonable definition of compliance rate, AAR's audit
does not actually deliver the claimed compliance rate of 99-percent
for accident/incident reports. In fact, we show in the Appendix 2
that AAR's sampling plan, at best, achieves 97-percent compliance
rate. But even this weaker claim requires an unreasonable, and
inappropriate, stretch of what one means by ``compliance rate.''
Specifically, if one were willing to assume the reporting
process to be stable, with no evidence for this assumption, and if
AAR was willing to adopt the full set of procedures specified in the
Standard for monitoring stable processes, then such a strengthened
plan would actually ensure roughly even odds for rejecting a
composite list of 5,000 records of reportable occurrences that
included about three-percent of miss-classified reportable
occurrences (cf. Appendix 2).
However, as we showed earlier, even a plan strengthened in this
way could say absolutely NOTHING about the actual under-reporting
rate of reportable occurrences without determining the split between
the true frequencies of reportable and non-reportable occurrences.
4. AAR's Performance Standards Lack Requirements for Maintaining
Written Internal Control Procedures (ICP)
Westat believes that high quality accident/incident reporting
cannot be achieved without maintaining a written ICP. The Military
Standard includes a general requirement for developing written
procedure (cf. General Requirements, 4.1) which would be made
available to the Government representative's review upon request.
This requirement is fully in line with standard business practice of
making explicit all major parts of complex systems. Without written
directives governing company policy and operational procedures, it
is not possible to guarantee full implementation of management
decisions by line employees.
In contrast, AAR's proposal for a Performance Standard does not
permit FRA to direct a railroad to develop and maintain a written
ICP until after the railroad failed to demonstrate compliance in two
consecutive audits.
5. Non-compliance With the Standard
AAR's Performance Standards do not implement the full set of
procedures prescribed in Military Standard. Most importantly, AAR's
Performance Standards fail to implement the ``switching
procedures.'' These are explained below. The Military Standard
defines three levels of inspection (normal, tightened, and reduced)
and specifies conditions for their applicability. For example, users
are directed to institute tightened inspection ``when 2 out of 2, 3,
4, or 5 consecutive lots or batches have been rejected by the
original inspection.'' Switching procedures, in general, refer to a
set of rules that tell users when to adopt normal, tightened, or
reduced inspection. The Standard clearly states that the sampling
plan performance characteristics it published are valid only when
the full set of procedures, including the switching procedures, are
adopted. AAR's Performance Standard lacks switching rules, and AAR
has not determined the compliance rate bias resulting from this
lack.
Appendix 1--Review of AAR'S Performance Standard Proposal
1. Summary of AAR's Proposal
Key features of the proposals by AAR's Performance Standard for
Part 225 Reporting by Class I Railroads and Amtrak are as follow:
(a) Class I Railroads shall maintain Internal Control Procedures
(ICP) designed to assure 99-percent compliance for accident/incident
reporting under Sec. 225.11.
(b) Accident/incident compliance rate will be estimated for
reporting periods of 12
[[Page 30975]]
months or more from comparisons between reports filed with FRA and
the railroad's own data base containing records for employee
injuries, illnesses, and property damage.
(c) Key features of audits to be conducted to monitor compliance
rates are as follow:
(1) Each railroad will provide to FRA a list of reportable
occurrences for a specified calendar year containing all relevant
information and record locations, and make records available for
inspection upon FRA request, subject to special rules.
(2) FRA will draw a random sample of entries from each list in
accordance with the General Inspection Level II procedures contained
in Military Standard (MIL-STD-105E), and assess the sample for
compliance based on procedures specified in that Standard.
(3) A rejection is defined as failure to report a reportable
occurrence under Sec. 225.19, subject to applicable procedures for
resolving reporting requirements.
(4) Audits will be conducted by qualified FRA personnel. Results
will be reported to railroads in writing.
(d) Failure to achieve a 99-percent compliance rate is subject
to civil penalties. Railroads must propose corrective action within
30 days. FRA may reschedule new audits within a reasonable period.
(e) Failure to achieve 99-percent compliance rate for a second
time is treated as in paragraph (d), except that FRA may also direct
the railroad to file a written ICP with FRA.
(f) Each railroad directed to file a written ICP in accordance
with this paragraph, shall maintain a written ICP, covering internal
processes/procedures within the railroad's control, for the
preparation of accident/incident reports under Sec. 225.11.
(g) Railroads may petition for relief from paragraph (f) after
achieving 99-percent compliance rate twice in a row.
2. Overview of Audit Using MIL-STD-105E
The procedure identified by AAR in paragraph (c)(2) involves the
following operational steps:
Step 1. Determine the sample size (N) of reported occurrences
for checking by reference to the family of single sampling plans for
normal inspection that are contained in Master Table II-A. The
applicable sample size is in the 2nd column of Table II-A in the row
identified by the sample size code letter for the number of reported
occurrences on the list. The code letter is to be found in the
column headed ``General inspection level II'' using reported number
of occurrences as ``Lot or batch size'' to select the row in Table
I.
Step 2. Draw a random sample of N occurrences from the list of
all reportable and non-reportable accidents/incident occurrences
submitted to FRA by the railroad company.
Step 3. Examine relevant data items for all occurrences in the
sample, classify the reporting requirements for each element, and
determine the total number of rejects, i.e., reportable occurrences
that were reported as non-reportable (n).
Step 4. Reject the sample if the total number of rejects equaled
or exceeded the acceptance number (Ac) for the sampling plan. In
general, sample size and acceptance number jointly determine the
stringency of reporting requirements. For the plans advocated by
AAR, Ac is located at the intersection of the row for the sample
size code letter, and the column for which Acceptable Quality Level
(normal inspection) in Table II-A equals 1.0.
3. Interpreting AAR's Inspection Plan and Some Comments
The sampling plans and procedures contained in Military Standard
(MIL-STD-105E, 1989) were designed for use in planning and
conducting inspection by attributes. As the foreword to the
documentation states, ``the sampling concept is based on the
probabilistic recurrence of events when a series of lots or batches
are produced in a stable environment.''
When applying the Standard (MIL-STD-105E), AAR views a
railroad's list of all reportable and non-reportable accidents/
incidence occurrences for a 12 month period as ``a lot or a batch.''
The Standard defines ``inspection by attributes'' as
``inspection whereby either a unit of product is classified simply
as defective or non-defective, or the number of defects in the unit
is counted, with respect to a given requirement or set of
requirements.'' AAR has provided only an implicit definition for the
attribute it proposes to use by defining rejection ``* * *as a
railroad's failure to report an occurrence required to be reported
under section 225.19 and not reported, * * *'' With this definition
of inspection attribute, only reportable accidents that were not
reported can give rise to a rejection under any circumstance.
Reportable accidents that were reported, and non-reportable
accidents are always correctly classified.
Note that list size depends on the number of non-reportable
occurrences. AAR has not identified the class of non-reportable
occurrences that railroads expect to include on lists.
The documentation for the Standard contains three types of
sampling plans: single, double, and multiple. AAR recommended the
use of single sampling plans. With a single sampling plan, a single
random sample is drawn from each list. The documentation recognizes
that samples may need to be stratified based on ``some rational
criterion,'' or may need to be collected over time. AAR has not
recommended the use of stratification.
Once sampling plan type has been chosen, inspection level
determines the relationship between the number of occurrences
included in the list (the lot or batch size) and sample size. The
documentation recognizes three general inspection levels (I, II, and
III), and four special inspection levels. Inspection level II is
regarded as normal. Relative to the use of a level II plan, the use
of a level I plan would reduce discrimination level, and the use of
a level II plan would increase it. AAR recommends the use of level
II plans.
Once sampling plan and inspection levels have been selected, the
remaining choice is Acceptable Quality Level (AQL). According to the
documentation, ``when a continuous series of lots is considered, the
AQL is the quality level which, for the purpose of sampling
inspection, is the limit of a satisfactory process average.'' For a
given sampling plan, inspection level, and AQL, the documentation
provides tables for determining sample size, acceptance numbers, and
rejection numbers.
The Standard instructs users to choose AQL in a manner that is
appropriate for the level of acceptable risk. This choice involves
balancing the consequences of accepting lots with too many or too
few defectives. The documentation of the Standard emphasizes that,
by itself, AQL does not determine the chances of accepting or
rejecting individual lots or batches. AQL relates directly only to
what might be expected from a series of lots of batches provided
appropriate ``switching procedures'' (see discussion below) and
other related steps contained in the Standard, are also implemented.
AAR recommended the use of 0.01 as the AQL value for audits.
In the terminology of the Standard, ``switching procedures''
describe how the inspection procedures need to be modified under
special circumstances. Normal procedures would be in effect until 2
out of 2-5 consecutive lots have been rejected. When that happens,
inspection procedures would need to be tightened. There are other
rules for switching from tightened to normal, and from normal to
reduced, procedures.
As stated earlier, by itself, AQL does not characterize the
performance of a sampling plan. AQL is the designated value of
percent defectives for which lots will be accepted most of the time
by the sampling procedure. Understanding the full implications of a
sampling plan requires looking at its operating characteristic curve
(OCC). In general, OCCs indicate the percentage of lots and batches
which may be expected to be accepted under various sampling plans
for a given process quality. Table X in the documentation of the
Standard provides the OCCs for normal inspection of a range of
sample sizes and sampling plans.
Appendix 2--Nominal Compliance Rate Under AAR's Performance Standard
AAR's scheme monitors the rate of reporting errors of reportable
accidents/incidents relative to all records (R-type and NR-type
combined), which is not interesting, rather than relative to all
reportable occurrences (R-type records plus reportable occurrences
reported as NR-type records), which is interesting. As proposed,
AAR's Performance Standards would deliver 97-percent compliance
based on the former compliance rate which is of no interest. The
proposed Performance Standards are completely uninformative
regarding the latter compliance rate, which does matter.
We apply AAR's scheme (cf paragraph (c)(2) in the Appendix to
AAR's Comments) to AAR's example of 5,000 occurrences and an
acceptable quality level of one-percent, AQL = 0.01. In this case,
Tables I and II-A require drawing a random sample of size 200, and
set the acceptance number to five, and the rejection number to six.
The list is accepted whenever the random sample of
[[Page 30976]]
200 records contains five or fewer rejects. It is rejected whenever
it contains six or more rejects.
Under this sampling plan, railroads that underreport up to one-
percent of all reportable occurrences will pass the audit most of
the time.
The OCC for this sampling plan is shown in Table X-L. According
to Table X-L, the acceptance rate at AQL = 0.01 is 89-percent. In
other words, if the list of 5,000 occurrences contained exactly 50
defectives (1%), there would be a 89-percent chance of accepting it
based on auditing a random sample of size N = 200, and using five as
the maximum acceptable number of rejects.
The tables show that if the list contains 142 defectives for an
underreporting rate of 2.84-percent, expected rejection rate rises
to 50-percent; if it contains 232 defectives for an underreporting
rate of 4.64-percent, expected rejection rate rises to 90-percent.
Thus, rejection and acceptance are more or less in balance when
underreporting is close to three-percent and they reach extreme
values above and below it. Specifically, the chances of acceptance
and rejection are about the same when the underreporting rate is
about 2.8-percent. Rejection rate increases to 90-percent when
underreporting is about 4.6-percent, and it decreases to about ten-
percent when underreporting is about one-percent.
Noting that three-percent underreporting could be considered the
same as 97-percent compliance, one may reasonably characterize a
sampling plan with the above characteristics as a plan that achieves
97-percent of compliance. It is hard to justify the claim that it
achieves 99-percent compliance.
Table 1.--Correct and Reported Event/Occurrence Classifications
------------------------------------------------------------------------
Event/occurrence: Report
------------------------------------------ rejected
Report in by
Correct Reported error sampling
plan
------------------------------------------------------------------------
Reportable................... R-type.... No........ No........ N1
Reportable................... NR-type... Yes....... Yes....... N2
Non-reportable............... R-type.... Yes....... No........ N3
Non-reportable............... NR-type... No........ No........ N4
All.......................... All....... All....... All....... N
------------------------------------------------------------------------
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[FR Doc. 96-14943 Filed 6-17-96; 8:45 am]
BILLING CODE 4910-06-C
Complete official Federal Register PDF
FR Doc. 96-14895 Acquisition Regulation; Technical Amendments
[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30823-30824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14895]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
48 CFR Parts 911, 952, and 970
RIN 1991-AB27
Acquisition Regulation; Technical Amendments
AGENCY: Department of Energy.
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This notice corrects errors appearing in the final rule
published at 61 FR 21975 on May 13, 1996. The rule made technical
amendments to the Department of Energy Acquisition Regulation (DEAR) to
conform to changes made in the Federal Acquisition Regulation (FAR) as
a result of the Federal Acquisition Streamlining Act of 1994.
EFFECTIVE DATE: June 12, 1996.
FOR FURTHER INFORMATION CONTACT: Richard B. Langston, Office of Policy
(HR-51), Office of the Deputy Assistant Secretary for Procurement and
Assistance Management, Department of Energy, 1000 Independence Avenue,
SW., Washington, D.C. 20585 (202) 586-8247.
SUPPLEMENTARY INFORMATION:
Need for Correction
As published, the rule contained errors which could be confusing to
the reader and need correction.
Correction of Publication
Accordingly, the final rule published on May 13, 1996, which was
the subject of FR Doc. 96-11918 is corrected as follows:
911.600 [Corrected]
1. At page 21976, in subpart 911.600, at the bottom of the center
column, the reference to ``FAR subpart 911.6'' is corrected to read
``FAR subpart 11.6.''
952.211 [Corrected]
2. At page 21977, second column, insert amendment 18.d to read as
follows:
18.d In newly redesignated sections 952.211-70, including its
Alternate I, and 952.211-71, including its Alternate I, the date ``JUNE
1987'' following the clause heading is revised to read ``JUN 1996.'' In
newly redesignated section 952.211-72, the date ``MAY 1987'' following
the clause heading is revised to read ``JUN 1996.'' In newly
redesignated 952.211-73, the date ``APR 1987'' following the clause
heading is revised to read ``JUN 1996.''
952.226 [Corrected]
3. At page 21977, second column, insert amendment 19.a to read as
follows:
19.a At sections 952.226-70, 952.226-71, 952.226-72, and 952.226-
73, the date ``May 1995'' following the clause heading is revised to
read ``JUN 1996.''
952.250-70 [Corrected]
4. At page 21977, second column, insert amendment 20.a to read as
follows:
20.a At section 952.250-70, the date ``JAN 1992'' following the
clause heading is revised to read ``JUN 1996.''
970.5204-9 [Corrected]
5. At page 21977, second column, insert amendment 23.a to read as
follows:
23.a At section 970.5204-9, the date ``APR 1984'' following the
clause heading is revised to read ``JUN 1996.''
6. At page 21977, third column, at 970.5204-9, the date ``APR
1996'' following the clause heading is corrected to read ``JUN 1996.''
970.5204-13 [Corrected]
7. At page 21977, third column, insert amendment 24.a to read as
follows:
24.a At 970.5204-13, the date ``SEPT 1991'' following the clause
heading is revised to read ``JUN 1996.''
970.5204-14 [Corrected]
8. At page 21978, first column, insert amendment 25.a to read as
follows:
25.a At 970.5204-14, the date ``OCT 1990'' following the clause
heading is revised to ``JUN 1996.''
970.5204-44 [Corrected]
9. At page 21978, first column, insert amendment 26.a to read as
follows:
26.a At 970.5204-44, the date ``Oct 1995'' following the clause
heading is revised to ``JUN 1996.''
[[Page 30824]]
Signed in Washington, D.C. on June 6, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
[FR Doc. 96-14895 Filed 6-17-96; 8:45 am]
BILLING CODE 6450-01-P
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