For House Rail Subcommittee, an Earful on Safety - Railway Age

2022-06-16 05:44:33 By : Ms. Sales Manager

The House Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials called a June 14 hearing to address rail safety. Pictured: Subcommittee Chair Donald M. Payne, Jr. (D-N.J.).

“Examining Freight Rail Safety” was the theme of a June 14 hearing of the House Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials. The aim: for members “to hear from government and stakeholder witnesses about the state of freight rail safety and issues pertinent to keeping rail operations, rail workers and communities safe.” Railway Age provides a roundup.

The National Transportation Safety Board’s 2021-22 Most Wanted List of Transportation Safety Improvements “includes the call to improve safety for rail workers,” Chair of the Subcommittee on Railroads, Pipelines, and Hazardous Materials Donald M. Payne, Jr. (D-N.J.) said in a prepared opening statement. “Their recommendations speak to recurring safety issues impacting rail workers. These include better track protection, proper training and job briefings, and access to protective equipment. Most importantly, it calls for work schedules and limitations that prevent workers from working overtime while fatigued. Railway worker fatigue is one of the most persistent and pressing issues facing our national transportation system. It’s a condition we’ve known about for years but haven’t solved.

“Just last week the FRA [Federal Railroad Administration] took a major step to address this with their final Fatigue Risk Management Rule [released for public review on June 10 and published in the Federal Register on June 13].”

Payne pointed out that the “freight rail industry has lost nearly a third of its workforce in the past eight years. The workers who remain report they are being worked harder, with longer and more unpredictable hours. They say these conditions are worsening fatigue and making an industry that’s inherently demanding even tougher to work for.

“Cutting labor costs may have made Wall Street happy, but it’s left our national rail system more rigid and less able to respond to the ongoing supply chain shocks.

“The increased pressures on railway workers have made it harder for the railroads to retain workers or recall them from furlough. It takes several months to fully train freight rail crews. These trainings cannot be rushed as we seek to fill vacancies created when the railroads laid off workers—both before and during the COVID-19 pandemic.

“Not having enough rail workers isn’t just a problem with the lack of conductors and engineers, it is across the freight rail industry. This includes the carmen who inspect and repair railcars and maintenance-of-way workers who build, inspect, maintain, and repair track, bridges, and rights of way. …

“It is through the diligent work of every actor in the rail space—railway workers, railroads and regulators—that freight rail has made significant strides to move goods safely across the nation. There has been, however, a plateauing of safety improvements in recent years, and the Class I railroads’ adoption of PSR [Precision Scheduled Railroading] has added new complications.

“This is why this Committee is concerned—we are concerned that recent attempts to reduce short-term costs have had a negative impact on safety practices and the historically proud railroad safety culture. And today’s hearing is intended to consider some of those current issues.”

In his prepared opening remarks, Railroads, Pipelines, and Hazardous Materials Subcommittee Ranking Member Rick Crawford (R-Ark.) pointed out that “[m]onitoring and protecting our 140,000-mile freight rail network is no easy job. Improving highway-rail grade crossing protections, reducing human error, and supporting innovative new drone and automated safety technologies can all contribute toward reaching the zero-accident goal.”

Specifically, he said, “we must continue to encourage the development of automated track inspection safety technology, which has been shown to decrease accidents, identify new safety issues, and free up safety inspectors to focus on other important duties.”

Crawford noted that he recently sent FRA a letter “raising concerns about its denials of waivers to continue testing automated track inspection technology,” which was also submitted to Railway Age. (Read: “Crawford to Bose: Safety Policy Changes ‘Politically Motivated.”)

Automated track inspection technology was among the topics addressed by hearing witnesses. Others were fatigue, crew size and scheduling, PSR, highway/rail grade crossing and trespassing incidents, railroad workplace safety regulations, and management of in-train forces.

Testifying at the hearing were: • Amit Bose, Administrator, FRA • Thomas B. Chapman, Member, National Transportation Safety Board (NTSB) • Roy L. Morrison, Director of Safety, Brotherhood of Maintenance of Way Employes Division, International Brotherhood of Teamsters • Don Grissom, Assistant General President, Brotherhood of Railway Carmen Division, TCU/IAM • Grady C. Cothen Jr., Transportation Policy Consultant and retired FRA Deputy Associate Administrator for Safety Standards and Program Development • Nathan Bachman, Vice President of Sales and Business Development, Loram Technologies, Inc., and Secretary/Treasurer of the Railway Engineering-Maintenance Suppliers Association (REMSA) • Cindy Sanborn, Executive Vice President and Chief Operating Officer, Norfolk Southern (NS) and Member of the Association of American Railroads’ Safety and Operations Management Committee • Jeremy Ferguson, President, Sheet Metal, Air, Rail, Transportation-Transportation Division.

Following are highlights from the presenters’ written testimony (also downloadable).

Bose told the Subcommittee that FRA’s top priority is safety—with an approach that’s “data-driven, risk-based, proactive and collaborative.”

The Bipartisan Infrastructure Law (BIL), signed Nov. 15, 2021, is an “unprecedented investment in our country’s intermodal transportation system,” Bose said, and “presents a unique opportunity for FRA and other stakeholders to make wise investments in critical infrastructure, technology and human capital that will make it safer, more reliable, resilient, sustainable, and equitable.” FRA will use BIL resources “to bolster and expand its existing safety programs, and where appropriate, to work with industry, labor, and others to develop and implement new and innovative solutions to address rail safety challenges,” he reported.

Bose outlined a number of FRA safety initiatives. Among them:

• Full implementation of Positive Train Control (PTC) “has made railroad transportation safer,” he noted, and FRA will continue monitoring it, including software updates, training and integration into operations.

• With FRA’s “issuance of its Risk Reduction Program (RRP) and System Safety Program (SSP) rules, railroads have been required to implement a comprehensive, system-oriented approach to improving safety,” Bose reported. “Although implementation of these rules is just beginning, they bring the tried-and-true principles of safety management systems to the rail industry. The rules require railroads to systematically identify, prioritize and mitigate risks in their operating environment and to actively promote continuous safety improvement and strengthen safety culture.”

• While “industry works to identify and prioritize risk on individual railroad systems, FRA continues to work on regulatory initiatives mandated by Congress and to address known hazards on a broader basis,” Bose said. In February, FRA published a final rule “implementing Congress’s mandate to expand the scope of the agency’s alcohol and drug control regulations to cover railroad mechanical employees. Soon, FRA expects to issue a final rule responsive to a Congressional mandate related to locomotive recording devices.” Also, on June 13, it published a final rule addressing railroad employee fatigue.

• “As required by the BIL, FRA will continue to work with both rail and labor stakeholders to identify parties willing to participate in a pilot project under 49 U.S.C. § 21109 to evaluate the fatigue implications of certain railroad employee scheduling practices,” Bose reported. “FRA will also continue to conduct fatigue analyses as part of its investigations of major rail accidents suspected of being human-factor caused.”

• Slated for continued review and analysis: railroads’ attendance and other scheduling policies. This is “to ensure they do not conflict with the federal hours of service laws or otherwise adversely affect safety,” Bose said.

• FRA is developing a Notice of Proposed Rulemaking (NPRM) addressing train crew staffing safety requirements. “This proposed rule demonstrates FRA’s belief that safety and innovation go hand-in-hand,” Bose reported. “Historically, technological advances have enabled a gradual reduction in the number of train crew members. Today, with certain exceptions, most trains are operated with two-person crews. As technology continues to advance and automation is on the horizon, FRA intends this rule to serve as a tool to proactively address the potential safety impact of train operations with fewer than two crew members. The draft NPRM is currently under review with the Office of Management and Budget. Once issued, FRA looks forward to receiving and considering feedback from all stakeholders.”

• FRA’s Confidential Close Call Reporting System (C3RS) program “enables railroad employees to report close calls and unsafe events and conditions without fear of reprisal or discipline,” Bose told the Subcommittee. The voluntary program includes 21 railroads—passenger, commuter, and Class II and III railroads. “Recognizing the value in the data generated from this program, FRA is currently working to expand the program to include Class I freight railroads, and through a pilot program with the Short Line Safety Institute, FRA is working to encourage the participation of additional Class III railroads,” he reported.

• FRA in 2021 “initiated a program of conducting periodic comprehensive system-wide safety audits of Class I railroads,” Bose reported. So far, it has completed an audit of Union Pacific and is auditing Norfolk Southern. Within the next few months, FRA will begin “the BIL-mandated comprehensive rail safety review of Amtrak as part of this existing program,” Bose said.

• In 2021, “out of concern about some railroads’ changes to their longstanding approaches to training under their FRA-approved operating crew certification programs and consistent with recommendations of the Department’s Office of Inspector General,” Bose told the Subcommittee that FRA began conducting “more detailed reviews” of training programs. “Subsequently, in November 2021, I directed FRA’s Office of Railroad Safety to begin a process of comprehensively reviewing and auditing all railroads’ conductor certification programs in response to accidents involving the severe on-duty injuries of railroad conductors, including three accidents in which railroad conductors were fatally injured,” Bose reported. “Thus far, that review has found that some railroads’ written programs do not conform with the regulation. FRA technical experts are working with the railroads to ensure that their programs conform with FRA regulations.”

• FRA is “working to identify innovative and non-traditional ways to enhance grade crossing safety and prevent illegal trespassing on railroad property,” Bose reported. “The agency continues to take a comprehensive approach to both issues, and although the Department [of Transportation] recognized grade crossing safety in its 2021 Roadway Safety Strategy, neither the Department nor FRA alone can solve these issues. Collaboration with Departmental modal partners is key, as is collaboration and the empowerment of all stakeholders, including states, local communities, law enforcement, and others. For this reason, FRA continues to implement its National Strategy to Prevent Trespassing on Railroad Property and has launched the National High Risk Crossing Initiative.”

Bose also told the Subcommittee that FRA “is working to make all stakeholders aware of the funding opportunities presented by the BIL—including the new Railroad Crossing Elimination Program (RCEP) and the availability of Consolidated Rail Infrastructure and Safety Improvements (CRISI) funds not only for capital improvement projects, but projects addressing trespass prevention as well.” FRA has conducted three outreach sessions on the RCEP and expects to publish a Notice of Funding Opportunity (NOFO) for the program this summer.

FRA expects to release the FY22 CRISI NOFO (Notice of Funding Opportunity)—the first round of CRISI funding provided by the BIL—in late summer or early fall, Bose said. “The level of CRISI funding provided by the BIL will also allow FRA to invest in traditional, hard infrastructure safety projects, including track and bridge replacements, but also more new, innovative, and collaborative projects, such as the Rail Pulse project selected in FY20 CRISI funding cycle,” he pointed out.  

FRA’s 2023 budget request includes the establishment of a Railroad Workforce Development program with dedicated funding within CRISI, as well as a National Railroad Institute that will develop and conduct training and education programs for both public- and private-sector railroad and allied industry employees, Bose told the Subcommittee.

“NTSB is required to investigate any railroad accident in which there is a fatality or substantial property damage, or that involves a passenger train,” Chapman explained to the Subcommittee. He noted that the agency must “meet this mandate with only 15 railroad investigators, two of whom are eligible for retirement. Those 15 investigators are currently working on 22 investigations, and we open about 11 new investigations each year. This office is understaffed. In fact, as part of our reauthorization proposal, we identified a need for 21 additional staff over the next 5 years. Our reauthorization request only fills a portion of this need.”

Even with the requested resources and workforce flexibilities, Chapman reported, “we would be challenged to meet the broad mandate in Title 49 United States Code (U.S.C.) 1131, given the tragic number of fatalities that result from crashes at highway– rail grade crossings or involving trespassers on railroad property each year. In 2021, 238 people were killed in crashes at grade crossings, and 625 people were killed in trespassing-related accidents. This represents the overwhelming majority of rail fatalities in the United States, and we are grateful that Congress included several provisions in the Infrastructure Investment and Jobs Act of 2021 (IIJA) to address grade crossing and trespasser safety.”

According to Chapman, NTSB’s reauthorization proposal “would amend the current mandate so that crashes at grade crossings or accidents involving rail trespassers no longer fall under our investigative mandate. Instead, we would maintain the flexibility to investigate those grade-crossing crashes or trespasser accidents that may provide a significant safety benefit to the public, similar to how we approach highway crashes. In fact, the Board traditionally treats such grade-crossing crashes as highway investigations that include railroad investigators. This change to our mandate would allow us to focus our resources on investigating those accidents and crashes where we can provide the most effective findings and recommendations to improve safety.

“For those railroad accidents that we do not investigate, it is important to note that the Federal Railroad Administration (FRA), as the regulator, may still conduct an accident or incident investigation.”

Chapman added that NTSB has “expressed concern in the past that FRA investigations do not use the party process, as we do, to encourage participation from relevant organizations, including employee unions. We have found that union representation brings operations-specific knowledge to the accident investigation team and helps facilitate employee cooperation. As a result, in 2014, we recommended that the FRA include union participation in its accident investigations, seeking congressional authority to allow such participation, if necessary. We appreciate that the IIJA includes a provision to address this issue by requiring the Department of Transportation (DOT) to develop a standard process for its rail accident and incident investigations, including consulting with relevant entities, including employees.”

Chapman also addressed the railroad workplace safety regulations that were implemented by the FRA in 1997. Since that time, he reported, there have been 466 railroad employee fatalities and 134,850 injuries. “Although rail worker fatalities have declined overall in recent years, we continue to see recurring safety issues in our accident investigations that are 100% preventable, highlighting the need for better worker protections,” he said. “The FRA’s railroad workplace safety regulations include requirements to protect workers when they are on the tracks and specify railroads’ oversight responsibilities. There are several ways to provide on-track safety to roadway workers when their duties require them to foul a track. For example, roadway workers can request protection from the train dispatcher, who will set the signals to prevent trains from entering the work area. Further, if positive train control (PTC) is in effect, the trains will be stopped before entering the designated work areas even if the locomotive engineer fails to do so. The regulations also include the train approach warning (TAW) method for roadway workers who foul a live track for incidental inspections and minor repairs. TAW is a method of establishing on-track safety for roadway workers using a watchperson or lookout whose sole duty is to look out for approaching trains and on-track equipment and provide ample warning time to allow workers to clear to a predetermined place of safety at least 15 seconds before the arrival of a train or other equipment.

“Many of the accidents we have investigated have involved TAW, which is susceptible to human errors like miscalculating site distance and underestimating the time needed for workers to clear tracks. We have long been concerned with the risks of using TAW as the sole form of worker protection, especially because it lacks safety redundancy. Trains travel at deceptively high speeds and, without proper warning, workers may not have enough time to react. Additional recurrent issues we see in our investigations are the need to address training, scheduling practices and briefings.”

Chapman also discussed FRA hours-of-service regulations, which “cover service positions and certain employees involved with the movement of a train, including operators, dispatchers and signal employees.” The regulations, he noted, do not “classify roadway workers as personnel in covered service positions and do not, therefore, limit their on-duty time. Consequently, there are limited or no safety controls from the FRA or railroads beyond union agreements and local work practices that limit roadway workers’ maximum work hours and ensure adequate opportunities for needed sleep. Because roadway workers’ duties often affect the movement of a train and could possibly create unnecessary safety risks for employees and the traveling public, we have recommended that the FRA promulgate scientifically based hours-of-service requirements for roadway workers. The NTSB believes the FRA has the legal authority, under 49 U.S.C. chapter 211, to apply hours-of-service requirements to roadway workers, as it does with all its service positions. However, in April 2021, the FRA told us that it disagrees. Although we maintain that FRA already has the required legal authority, we believe that Congress should consider clarifying the agency’s authority in this regard.”

Chapman also discussed NTSB accident investigations involving high-hazard flammable trains (HHFTs) that resulted in breached tank cars and hazardous material fires, “increasing the risk of death and injury to crewmembers.”

“In several accidents, we have seen that there was not enough separation between cars carrying hazardous materials and those on which crewmembers were serving,” he reported. “We have also seen issues with placing older tank cars in trains with other cars carrying flammable liquids. In HHFT accidents, freight train crews may survive collisions and derailments only to be injured or killed by hazardous materials released subsequently. A crew involved in a locomotive collision may experience injuries that would limit their ability to rapidly exit the locomotive, thereby increasing their risk of injury from hazardous material release or fire. We have made recommendations to industry, the FRA, and the Pipeline and Hazardous Materials Safety Administration (PHMSA) to address these risks.”

He added that as long as DOT-111 tank cars remain in service—nonjacketed and jacketed DOT-111 tank cars must be phased out  by May 1, 2023, he said—NTSB continues “to urge shippers and carriers to reduce risks by adopting placement strategies that account for tank car type.”

Chapman thanked the Subcommittee for its efforts to address safety issues in the IIJA, “specifically the provision requiring the DOT to seek to enter into an agreement with the National Academies of Science to study the impact that train length has on safety, including loss of communication between the ETD [end-of-train device] and locomotive cab and braking performance. In addition, the provision requiring the FRA to collect more data on its Rail Equipment Accident/Incident Report regarding the number and length of cars as well as the size of the crew on involved trains … will help us understand if further safety improvements are needed following accidents.”

Morrison outlined for the Subcommittee BMWED’s five top concerns:

“Like other crafts, carmen have been cut to the bone in the PSR era,” Grissom told the Subcommittee. “Depending on the carrier, we’ve lost anywhere from 15%-30% of our craft. This alone wouldn’t necessarily impact safety if railcar loads had been cut by the similar ratios, but that isn’t the case. Rail traffic has largely stayed the same or declined only slightly. And, as many in the rail industry say— at least those outside of Class 1 C-Suites—PSR amounts to doing ‘less with less’– or moving fewer car loads with drastically fewer employees.

“The net effect on carmen is one of constant and sustained pressure on employees.”

Grissom explained that each railcar has up to 90 inspection points per car, per side (up to 180 in total). “That’s why, for most of my [41-year] career, carmen were permitted around 3 minutes per car on pre-departure inspections,” he reported. “That is, until the PSR era. Today, in most locations, on all the Class I’s, carmen are only allowed approximately 1 minute for pre-departure inspections. Carmen used to get underneath cars to perform physical touch inspections of components, but now they only get a brief visual inspection. …

“All of this is due to the pressures applied to local management and workers to do whatever it takes to get the train out the door. Terminal dwell is a key metric by which C-Suite executives are scrutinizing managers, so any increase in dwell time places their jobs at risk, which forces them to work our members to the bone.”

While Grissom is appreciative that “some attention has been paid to railroad workers on fatigue issues in the industry,” it is not enough, he said. “And rarely are studies aimed at carmen or other shop crafts,” he reported. “As noted, in the PSR era, carmen are being forced into overtime constantly. Many report forced overtime to include 16-hour shifts, 5-6 days in a row. Many of our members sleep in their cars between shifts so they can get an extra hour or two of rest, instead of wasting time commuting home and back. This is NOT a healthy working environment.”

He urged the FRA and Congress to study and adopt policies that cover “the whole health of shop and yard craft employees.”

“A wise colleague of mine said to me: ‘The railroads are burning the candle at both ends—burning their customers one, and burning out their employees on the other,’” Grissom summed up. “I believe that to be true.”

Cothen testified on management of in-train forces—a challenge, he said, that “has been with us throughout the history of railroads. From the advent of ‘automatic’ train air brakes in the 1870’s, to joint government and industry research on track/train dynamics in the 1970’s, to the adoption of mandatory two-way end-of-train telemetry as a replacement for the caboose in the 1990s, and to the more widespread use of distributed power locomotives, this is a field that has benefitted from enhanced knowledge and improved technology.”

Still, FRA reported in 2005 that train accidents related to train make-up and train handling continued, according to Cothen. “That pattern continues to the present date … [and] should be disrupted,” Cothen said. Why? “FRA research has developed and validated a computer model (“TEDS”2) which, like its industry counterpart (“TOES”3) is capable of evaluating management of in-train forces for purposes of accident investigation and accident prevention,” he said. “Thus, it would seem to be time for FRA to take a more active role in overseeing this area of railroad safety, quite apart from the other developments,” such as PSR.

Cothen told the Subcommittee that there has been “a lack of progress in derailment prevention during the PSR era, which began among the major railroads in the United States in mid-decade. But how can this be? Aren’t we making big progress in automated track inspections, more frequent internal rail flaw testing, better wayside detectors and much improved use of the data from these systems?” In general, “yes,” he reported.

According to Cothen, “FRA accident reporting breaks up the various ‘cause codes’ into ‘buckets,’ and historically track/structure causes were most numerous.” While those have declined, there has been “a steady rise in so-called ‘human factor’ accidents and the persistence of equipment-caused accidents,” he said. “The latter is surprising, given the widespread deployment of wheel temperature and bearing detectors, flat wheel detectors, and other technology (and the advent of ‘big data’ used to trend individual cars in service to permit early intervention).”

How does this relate to management of in-train forces? “Based on federal accident investigations and my own review of the data, derailments caused by poor management of in-train forces are being reported primarily under ‘human factor’ codes,” Cothen told the Subcommittee. “This categorization fits the reporting system, which was established with heavy industry input and is managed by FRA.

“However, it is important to know the ‘human factors’ include organizational failures (e.g., train make-up, pushing technology farther than it is ready to go) as well as individual mistakes. Further, even events reported as individual mistakes may grow out of organizational failures (e.g., dispatching a train that has little chance of making it safely over the railroad). My own assessment, after review of multiple years of raw train accident records, is that organizational factors (management decisions related to PSR) are behind this lackluster performance.

“From the review, it is also evident that mechanical (equipment) codes get applied to derailments caused by improper management of in-train forces, sometimes questionably (e.g., when a coupler fails without prior crack) and sometimes because the equipment code is the only one available (e.g., when communication fails among locomotives in the very long train).”

What can be done? “Preventing each and every accident involving management of in-train forces is not a goal within our grasp given present technology and knowledge,” Cothen said. “However, the industry can do much better today from the point of view of safety, and provide much better service to its customers by using common sense.” He said it should: • “Utilize the knowledge and experience that has been reduced to train make-up rules on every railroad. Follow your own rules, and update them promptly. • “Don’t rely on technology that is not ready (e.g., using automated operations in territory where expertise and air brakes are required) or that is not properly deployed (e.g., without supplementary communications to close gaps). • “Don’t ask employees to do the impossible. If you have to put multiple locomotives both in the middle of the train and in the rear, and the train has to traverse undulating terrain with air brakes used to avoid run-in or arrest movement down a grade, think twice. Would you want to try to manage that train?”

Cothen suggested that “Congress and FRA need to impose some discipline through an appropriately flexible regulatory structure.” He also recommended the phased implementation of electronically controlled pneumatic brakes (ECP brakes), which have the potential “to prevent or mitigate some highway-rail grade crossing accidents and similar obstruction events.”

For more details, download his full testimony below and read: “WHITE PAPER: Management of In-Train Forces – Challenges and Directions.”

Bachman provided insight on how technology is contributing to increased safety in the freight rail industry. Loram is one of several companies offering “rail inspection technologies that complement the hard-working men and women on the ground,” he said. He pointed out that the intent of those technologies “is not to replace workers. In our experience, the most successful work environment is one where technology, such as Automated Track Inspection (ATI), can complement the work on the ground to both augment and improve safety for workers and the railroads. … Both Congress and the FRA should strive to enact policies that foster this critical relationship.”

“By utilizing technologically advanced vision systems, we have been able to collect and catalog data on hundreds of thousands of miles of track,” Bachman told the Subcommittee. “This information has been effectively utilized to help railroads focus their people and dollars to most pressing maintenance needs.”

Bachman summed up: “It is clear that through both our own experience … and the data acquired through the Class I railroad test programs that the ATI waivers have yielded positive safety results. Moreover, as we have seen, the development of automated inspection technologies is crucial to enhancing safety by reducing the number of track-related and -caused derailments.

“To that end, we encourage Congress and the FRA to work collaboratively to promote rail technologies that enhance safety in the industry.”

At the hearing, Sanborn covered “a series of broad principles that should govern the relationship between railroads and rail safety regulators,” as well as safety-related topics.

“Laws and regulations, however well intended, that place operational burdens on railroads can distort competition within the freight transportation sector and divert freight from the much safer rail system to other far more dangerous modes of transportation,” she told the Subcommittee. “We urge all federal officials—not just safety regulators—to take these impacts into account when they craft rail regulatory policy. Taking an evidence-based, holistic view of the nation’s entire transportation ecosystem is vitally important to creating a national transportation policy that works for all stakeholders and delivers continuous improvements in safety.”

Additionally, “[r]ailroads respectfully suggest that the FRA and other agencies with regulatory authority over railroads should become more forward-looking in how they propose and promulgate new rules and in their approach to new safety technologies,” Sanborn said. She called on agencies to: • “Carefully identify and describe beforehand the specific concern that a particular new rule is meant to address and ensure that the new rule actually would address the concern efficiently and effectively. Meaningful dialogue with railroads and other interested parties is essential in this effort. • “Use current data and sound science to establish the need for a new rule and to validate that the benefits of a new rule exceed its costs. Assess the impact of any rule on the competitiveness of the freight railroad industry and any likely freight diversions to less safe modes of transportation. • “When proposing rules, also propose metrics by which the rules’ effectiveness in achieving their stated objectives can be judged. Regularly review final rules to determine if they are still meeting those objectives. • “Issue emergency orders only after finding a high risk of imminent harm. Emergency orders should be narrowly tailored and expire automatically after the unusual risk has passed or has been adequately addressed. • “Regulation of technologies should occur at the federal level to avoid a patchwork of state and local rules that would create confusion, inhibit the deployment of new innovations, and undercut the efficient functioning of the national rail network. • “Adopt performance-based, rather than prescriptive, regulations. Take care not to ‘lock in’ existing technologies and processes so that new innovations and new technologies that could improve safety and efficiency are not stifled. Performance-based standards would give industry discretion to innovate, while still being subject to effective agency oversight and continuing to ensure the safety of rail employees, customers, and the public-at-large.”

Sanborn specifically addressed ATI, which she said allows inspection data to be “sent wirelessly in real time to an inspection office where track engineers verify the data and arrange for needed repairs. If necessary, maintenance personnel are dispatched to visually inspect track identified as potentially having a defect. ATI systems allow track inspections at frequencies and levels of detail that are not possible under standard visual inspection techniques. Put another way, ATI detects track defects with far more accuracy, consistency and frequency than do manual visual inspections. ATI also results in the collection of huge amounts of track inspection data, allowing railroads to better understand and evaluate the safety of their infrastructure and to develop improved preventative maintenance.”

Sanborn pointed out that “ATI inspections reduce (but do not eliminate) the need for visual inspections. In fact, they help to make visual inspections more effective by directing track inspectors to focus on areas that need greater attention.”

Sanborn explained how FRA has given several railroads, including NS, “permission to test ATI systems on portions of their networks in conjunction with a reduced level of traditional visual inspections.” The results, she said, “were impressive. NS’s experience is illustrative. We call our ATI system an ‘automated track geometry measurement system,’ or ATGMS. We conducted our test program in our Blue Ridge Division, where the wide variety of climatological, topological and operational features render it representative of our rail system as a whole.

“On every single metric tested, ATGMS increased track safety and quality, even as the frequency of manual inspections was reduced. ATGMS was able to detect defects that were imperceptible under visual inspection, while human inspectors were able to concentrate on making track repairs and finding defects in switches, crossing diamonds, and other areas that ATGMS could not evaluate.

“Because our data clearly demonstrated that ATGMS was safer than legacy methods, in March 2021, we petitioned the FRA for a permanent waiver that would allow us to reduce manual inspection for all lines on which we had implemented ATGMS. However, in March of this year, FRA denied that request. With all due respect to the FRA, its denial in our case was contrary to the evidence. The FRA did not explain how granting our waiver request could possibly endanger rail safety or the public interest. It did not explain how granting a waiver could “short-circuit” the existing Railroad Safety Advisory Committee’s (RSAC) consideration of ATI technology. Indeed, even as the FRA described the test program as ‘successful,’ it ignored the key finding—that system-wide implementation of ATGMS would improve rail and worker safety.

“On the same day that it denied our request for a waiver, the FRA denied a similar request from BNSF Railway,” Sanborn reported. “In BNSF’s case, the FRA denied BNSF the ability to expand a pre-existing waiver to new territories even though the data BNSF had already developed under that waiver conclusively showed that doing so would improve safety on those new territories. The FRA has previously announced that it will allow existing ATI test programs performed by other railroads to expire in November 2022, when their initial terms are up, despite their positive safety improvements. The FRA’s actions are difficult to understand. The combination of enhanced track inspections with reduced visual inspections provides a far, far better system in terms of detecting track defects than the 50-year-old visual inspection regime. The FRA had encouraged the development and deployment of this technology for years until abruptly changing their approach. The FRA should go back to encouraging, not discouraging, technological advancements like these that advance safety.”

Sanborn pointed out that ATI “shows how a broader use of the FRA’s waiver authority could be used to modify FRA regulatory directives in light of changed circumstances, without sacrificing appropriate regulatory oversight. Unfortunately, the timeline for granting even simple FRA waiver requests is typically measured in months or years, and waivers often come with conditions that largely negate their value. Congress should direct the FRA to make permanent those long-standing waivers whose value has been proven through successful test programs.

“In addition, because short-term waivers from existing regulations do not give the rail industry sufficient confidence to invest in new technologies, regulatory barriers should be overcome in ways that are more enduring than waivers. For example, the FRA could issue waivers of indefinite duration and provide procedures for the expedited conversion of time-limited waivers to permanent waivers or final rules if equivalent or improved safety has been demonstrated.”

Sanborn also addressed scheduling and one-person crews. Noting that scheduling “is a complicated issue with circumstances unique to each railroad,” the FRA “should refrain from interjecting itself into this matter and instead allow railroads to continue to address the issue as part of the collective bargaining process,” she said. “Neither NS nor other Class I railroads seek the ability to impose one-person crews unilaterally,” she continued. “Rather, we seek the flexibility to continue to work with rail labor under the existing collective bargaining framework to identify when the presence of PTC, or other technologies, allow a reduction in the number of crew-members in a locomotive cab without jeopardizing rail safety.”

In sum, “[w]e respectfully urge policymakers at all levels—on this Committee, at the FRA, and elsewhere—to be proactive, collaborative partners with railroads to meet our shared safety goals,” Sanborn said.

“A cry for rail safety has never been more needed or more appropriate,” Ferguson told the Subcommittee. “Despite all of the technology and modern-day advancements, the functionality of rail equipment is still crude, the hours are still relentless, and the work environment is still unsafe. Granted, some progress was made over the years, but much, if not most, has been undone with the adoption of a business model called Precision Scheduled Railroading (PSR). …”

He called on Congress to address such issues as:

• Long trains. “On April 25, 2017, the National Legislative Director of SMART-TD wrote to the Administrator of the FRA, expressing specific safety concerns about railroads operating excessively long trains,” Ferguson said. “He sought an emergency order to limit the length of trains. FRA responded on March 7, 2018, that the railroads are operating the longer trains ‘in an attempt to enhance service delivery and operational efficiencies.’ The response by FRA did not acknowledge the safety problems inherent in such operations.”

• Train make-up. FRA should be required to promulgate regulations mandating proper train make-up, he said, noting that the Association of American Railroads has a Train Make-Up Manual, which provides guidelines, but they “are not enforceable.”

• Fatigue. “Fatigue continues to be the greatest safety issue in the rail industry,” Ferguson said. “Fatigue can be significantly eliminated by requiring some hours of service changes. All freight service assignments without defined start times should have at least 10 hours prior notice calling time. All yardmaster assignments should be covered service under the freight employee’s hours of service provisions. This craft typically works 16 hours per day. Yardmasters are safety-sensitive employees, and, in the interests of safety, should not be forced to work excessive hours. All deadheads in excess of three hours should be counted as a job start.” He added that interim release periods “should require railroads to notify the crew before going off-duty. If the crew is not notified, the 10 hours uninterrupted rest should apply.”

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