[Federal Register Volume 88, Number 168 (Thursday, August 31, 2023)]
[Proposed Rules]
[Pages 60164-60165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18840]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 831

[Docket No.: NTSB-2023-0007]
RIN 3147-AA28


Authority of NTSB in Railroad, Pipeline, and Hazardous Materials 
Investigations

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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

DATES: Send comments on or before October 30, 2023.

ADDRESSES: You may send comments, identified by Docket Number (No.) 
NTSB-2023-0007, by any of the following methods:
    <bullet> Federal e-Rulemaking Portal: https://www.regulations.gov.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#9fedeaf3faf2fef4f6f1f8dff1ebecfdb1f8f0e9"><span class="__cf_email__" data-cfemail="8af8ffe6efe7ebe1e3e4edcae4fef9e8a4ede5fc">[email protected]</span></a>.

[[Page 60165]]

    <bullet> Fax: 202-314-6090.
    <bullet> Mail/Hand Delivery/Courier: NTSB, Office of General 
Counsel, 490 L'Enfant Plaza East SW, Washington, DC 20594.
    Instructions: All submissions in response to this ANPRM must 
include Docket No. NTSB-2023-0007. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket, go to https://www.regulations.gov 
and search Docket No. NTSB-2023-0007.

FOR FURTHER INFORMATION CONTACT: William Thomas (Tom) McMurry, Jr., 
General Counsel, (202) 314-6080, <a href="/cdn-cgi/l/email-protection#81f3f4ede4ece0eae8efe6c1eff5f2e3afe6eef7"><span class="__cf_email__" data-cfemail="7200071e171f13191b1c15321c0601105c151d04">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In accordance with the Independent Safety 
Board Act of 1974, as amended, the NTSB is required to ``investigate or 
have investigated (in detail the Board prescribes) and establish the 
facts, circumstances, and cause or probable cause of . . . a railroad 
accident in which there is a fatality or substantial property damage, 
or that involves a passenger train.'' 49 U.S.C. 1131(a)(1)(C). The 
NTSB's regulations found at 49 CFR 831.40(a)(1) further explain that 
the NTSB has the authority to investigate ``railroad accidents, 
collisions, crashes, derailments, explosions, incidents, and releases 
in which involve a fatality, substantial property damage, or a 
passenger train.'' Section 840.2 defines railroad as ``any system of 
surface transportation of persons or property over rails. It includes, 
but is not limited to, line-haul freight and passenger-carrying 
railroads, and rapid transit, commuter, scenic, subway, and elevated 
railways.''
    Notably, the agency's regulation has neither a definition nor a 
monetary threshold for the term ``substantial property damage'' as 
reflected in Sec.  831.40(a)(1). The NTSB believes that defining this 
term will clarify the types of railroad accidents the NTSB will 
investigate. Thus, the NTSB is soliciting comments on the promulgation 
of a regulatory definition of ``substantial property damage'' 
particular to railroad accidents.
    To define ``substantial property damage,'' the NTSB has considered 
regulatory thresholds utilized by the Federal Railroad Administration 
(FRA) and the Federal Transit Administration (FTA) at the United States 
Department of Transportation (DOT). The FRA ``[e]nables the safe, 
reliable, and efficient movement of people and goods along the Nation's 
railroads.'' \1\ The FRA has a monetary threshold for reporting rail 
equipment accidents/incidents of $11,300 for calendar year (CY) 
2022.\2\ The NTSB is disinclined to align itself with FRA's threshold 
as the NTSB believes that $11,300 is too low of a value. However, if 
the NTSB does promulgate a rule establishing a monetary value for 
``substantial property damage,'' the NTSB may consider periodically 
adjusting for inflation the monetary threshold as the FRA recently did 
for CY 2022. See 85 FR 79130 (Dec. 9, 2020).
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    \1\ https://www.transportation.gov/railroads.
    \2\ The FRA's Monetary Threshold Notice is available at: https://railroads.dot.gov/safety-data/forms-guides-publications/guides/monetary-threshold-notice.
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    By contrast, the FTA, which ``[p]rovides financial and technical 
assistance to local public transit systems, including buses, subways, 
light rail, commuter rail, trolleys and ferries,'' \3\ does not have a 
monetary value for reporting major events, but bases reporting 
requirements on whether there is ``substantial damage'' as defined by 
FTA.\4\ The FTA defines ``substantial damage'' as ``[d]amage to transit 
or non-transit property including vehicles, facilities, equipment, 
rolling stock, or infrastructure that disrupts the operations of the 
rail transit agency and adversely affects the structural strength, 
performance, or operating characteristics of the of the property, 
requiring towing, rescue, on-site maintenance, or immediate removal 
prior to safe operation.'' \5\ Notably, excluded from this definition 
is damage that is limited to: cracked windows; dents, bends, or small 
puncture holes in the body; broken lights or mirrors; or removal from 
service under the vehicle's own power for minor repair or maintenance, 
testing, or video and event recorder download.
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    \3\ https://www.transportation.gov/public-transit.
    \4\ https://www.transit.dot.gov/ntd/national-transit-database-ntd-glossary#S.
    \5\ https://www.transit.dot.gov/ntd/national-transit-database-ntd-glossary#S.
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    The NTSB does have a reporting threshold notification requirement 
contained in 49 CFR 840.3(b), which requires reporting of accidents 
with $150,000 damage or more to railroad and nonrailroad property; or 
$25,000 or more for a passenger train, and railroad and nonrailroad 
property. The NTSB is considering these monetary values to establish 
the threshold for ``substantial property damage.'' However, with the 
different threshold reporting requirements for freight and passenger 
trains, the NTSB is considering whether the same distinctions should 
apply to ``substantial property damage.''
    Further, the NTSB is considering whether its proposed definition of 
``substantial property damage'' should contain a distinction between 
public railroads and private railroads reporting thresholds. The Board 
acknowledges, however, that if the NTSB were to define ``substantial 
property damage'' differently between public and private railroads, 
doing so may give rise to a question regarding which definition of 
``substantial property damage'' applies if there were an accident 
involving both a public and private railroad.
    Accordingly, the public is asked to address any or all of the 
following questions:
    1. Should the NTSB define ``substantial property damage''?
    2. If not, why not?
    3. If so, how should the NTSB define ``substantial property 
damage''?
    4. If ``substantial property damage'' is defined using a specific 
dollar amount, what would be a reasonable monetary threshold?
    5. How should the NTSB calculate the threshold value of 
``substantial property damage''?
    6. Should the dollar amount established be indexed for inflation?
    7. Should the property damage value be consistent with the 
reporting threshold established by the FRA? Why or why not?
    8. Should the property damage value be consistent with the 
reporting threshold established by the NTSB? Why or why not?
    9. Should ``substantial property damage'' be based on total 
property damage, railroad property damage, or non-railroad property 
damage?
    10. Should ``substantial property damage'' consider factors other 
than monetary value?
    11. Should there be a distinction in threshold reporting 
requirements between public railroads and private railroads?
    12. And which definition should apply to an accident involving both 
a public railroad and private railroad?
    13. The NTSB has different threshold reporting requirements for 
freight and passenger trains. Should the definition of ``substantial 
property damage'' contain a similar distinction?

List of Subjects in 49 CFR Part 831

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

William T. McMurry, Jr.,
General Counsel.
[FR Doc. 2023-18840 Filed 8-30-23; 8:45 am]
BILLING CODE 7533-01-P


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