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So FRA and FMCSA (Federal Motor Carrier Safety Administration) have issued a joint statement announcing that both agencies will withdraw the March 2016 advanced notice of proposed rule making on testing and treatment of safety-sensitive personnel in both the railroad and trucking industries who may suffer from moderate to severe obstructive sleep apnea.

Here are the final paragraphs of the notification for your edification and reading pleasure:   

On September 21, 2004, FRA issued Safety Advisory 2004-04 to alert the railroad industry, and especially those employees with safety sensitive duties, to the danger associated with degradation of performance resulting from undiagnosed or unsuccessfully treated sleep disorders (69 FR 58995, Oct. 1, 2004). That Safety Advisory set forth recommended actions regarding OSA, which FRA reiterated in Safety Advisory 2016-03 (81 FR 87649, Dec. 5, 2016). Additionally, FRA is aware several railroads are implementing OSA identification and treatment programs. FRA anticipates these programs will identify best practices for OSA screening, diagnosis, treatment, and mitigation. These programs will help identify the current and future needs of the industry, potential costs, and help define FRA’s role in addressing OSA in the railroad industry. In addition, under the Rail Safety Improvement Act of 2008 (RSIA), railroads must establish a fatigue management plan as part of their Risk Reduction Program (RRP) or System Safety Program (SSP) (49 U.S.C. 20156(f)). RSIA requires a railroad to consider the need to include in its fatigue management plan “opportunities for identification, diagnosis, and treatment of any medical condition that may affect alertness or fatigue, including sleep disorders.” (Id. at section 20156(f)(3)(B).) While RSIA does not address OSA by name, FRA believes railroads will consider OSA when addressing medical conditions that affect alertness under a railroad’s fatigue risk management plan as part of an RRP or SSP. FRA will continue to monitor railroads’ voluntary OSA programs, as well as the implementation of fatigue risk management plans, as part of an RRP or SSP.

Based on the foregoing reasons, the Agencies withdraw the March 2016 ANPRM 7 entitled “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” If FRA or FMCSA determines further action to be necessary, it will consider regulatory action.

Issued under the authority of delegations in 49 CFR 1.87(f) and (i) and 49 CFR 1.89(a), respectively: July 31, 2017 _____________________________________ Daphne Y. Jefferson, Deputy Administrator Federal Motor Carrier Safety Administration _____________________________________ Heath Hall, Acting Administrator Federal Railroad Administration

[FR Doc. 2017-16451 Filed: 8/4/2017 8:45 am; Publication Date: 8/8/2017]

Well that's quite a paragraph or three.  

Let's work our way up from the bottom.

Remember how humorous we thought it was when then Secretary of Transportation Foxx selected Sarah Feinberg to be FRA administrator during then President Obama's second term?  

Of course you do. I know I chuckled.  I know I did not chuckle alone.  I know because I never chuckle alone, just as I never drink alone (although that might change given the downward vortex that passes for politics in the US these days).  

I know I chuckled because Ms. Feinberg had exactly zero experience with railroad operations, railroad oversight, directing railroad management, supervising railroad labor, or with railroad-ing period, as an -ing. Ms. Feinberg had worked as chief of staff for the US DOT; she had worked for Bloomberg, for Facebook; she had worked with Democrats, as individuals, and as a party, but for, on, in, over a railroad?? She had not.  

And I'm a goddam dinosaur.   I think you actually have to know something about the details of the job, the tasks, the challenges, and the principles of the business you are supposed to supervise.  I do not believe there is such a thing as "effective management" that can stand separate and apart from the actual knowledge and experience required for making decisions, which is what effective management is supposed to be about. 

And Heath Hall?  According to Railway Age: 

Hall is currently a vice president in the marketing and external affairs department of non-profit Innovate Mississippi. He also manages Pointe Innovation magazine. Prior to joining Innovate Mississippi, he served as senior vice president of external affairs at the Mississippi Economic Council, the State Chamber of Commerces. He served for two years (1998-1999) as executive director of Mississippians for Civil Justice Reform/STOP Lawsuit Abuse in Mississippi. In 1998, he was a Republican candidate for the U.S. Congress in Mississippi's fourth congressional district. Hall also served as Governor Kirk Fordice's director of public affairs, deputy press secretary, and deputy director of communications for Fordice’s re-election campaign.

Hall began his public relations career as an FRA intern, later moving into the USDOT deputy secretary’s office. He was also an intern in the White House Office of Political Affairs during the George H. W. Bush Administration. Following his position at the White House, Heath became a staff assistant to the director of the Peace Corps. He later became a public relations/financial development specialist for the American Red Cross of Mississippi.  

I don't think it unfair of me to suggest that Mr. Hall was given his position in FRA based on his political ideology and advocacy; his experience as an ideologue, and not because of his extensive knowledge of railroads and the challenges railroads face.

"I may be synthetic, but I'm not stupid," said Bishop in Aliens.   

I may be a dinosaur, but the comet hasn't hit earth....yet. 

I don't think it's unfair of me to suggest that perhaps Mr. Hall received this position in FRA to continue the sort of service he performed as executive director of Mississippians for Civil Justice Reform, which was dedicated to relieving corporations from the burden of regulations, and civil liabilities, penalties, and damages that the legal system might impose on corporations.  

Maybe I'm wrong. Maybe the cynical and jaded New Yorker in me, which is probably almost all of me,  has hardened my already fossilized heart, addled my reptilean brain, and clouded my lizard-like vision.  Maybe.  Show me.  I can show you this and you can decide how fossilized I have really become. 

Now we've worked our way up that next to last paragraph that supposedly explains Acting Administrator Hall's reasoning:

"FRA is aware several railroads are implementing OSA identification and treatment programs." 

And several are not.  

That's actually why we have governments, and regulations, to introduce uniformity, and consistency to the operating environment; to create a common platform, exactly as we look to government to create, and maintain, a common currency, and the vitality of that common currency, so we all know what the costs are, what the prices are, and what a dollar's worth of transportation service gets you in New Mexico, New York, or New Hampshire.  

"FRA anticipates these programs will identify best practices for OSA screening, diagnosis, treatment, and mitigation."

Really?  How will anyone ever know?  If there is no regulatory requirement, then there is no reporting requirement.  So exactly how will the industry, as an industry ever know what the best practices for screening, diagnosis, treatment, and mitigation might be?  Exactly how, who, and where will data be collected, submitted, analyzed, and evaluated?  AAR can do some of this.  TTCI might do some of it.  But TTCI has to be contracted, engaged, to do it.  So do we expect this to happen by magic?  Or by the action of Adam Smith's invisible, and dead, hands?  

Let's get this straight:  we already have all the information we need to determine best practices regarding screening, diagnosis, treatment, and mitigation.  Where is it?  Why it's in the office right next door to you, gentlemen and gentlewomen of FRA and FMCSA; in the offices of the FAA, which has required the testing and treatment of pilots and other aircraft operating personnel for and with OSA for years.  We already know such testing and treatment is essential to safe transportation operations.

"In addition, under the Rail Safety Improvement Act of 2008 (RSIA), railroads must establish a fatigue management plan as part of their Risk Reduction Program (RRP) or System Safety Program (SSP) (49 U.S.C. 20156(f)). RSIA requires a railroad to consider the need to include in its fatigue management plan “opportunities for identification, diagnosis, and treatment of any medical condition that may affect alertness or fatigue, including sleep disorders."  

Well fair enough, except (1) OSA has absolutely ZERO to do with fatigue or fatigue management. OSA is not a result of working extended hours; of shift change; of being held away from home terminal; etc. etc. etc.  It is a medical condition that might or might not be exacerbated by those other factors, but cannot be eliminated by remediating those other factors.  

Railroads may indeed consider the need for identification,  diagnosis, of any medical condition, and the railroads may indeed dismiss OSA as a remote risk despite the evidence and best practices developed and regulated by FAA.

FRA's decision to withdraw the ANPRM effectively returns the challenge of sleep apnea to the twilight zone of a collective-bargaining issue.

Those of you who know me, know I have consistently objected, and rejected, FRA attempts to regulate as safety issues matters that are indeed collective bargaining issues, i.e. crew sizes.  FRA's obligations include maintaining a rigorous distinction between collective bargaining and safety matters.  The latter should be regulated by FRA.  The former cannot be regulated by FRA.  Confusing the two by FRA will prove worse that costly.  It will prove deadly. 

Fitness for duty, including sleep apnea, is no more a collective bargaining issue than the use of alcohol or intoxicants when performing service is a collective bargaining issue.  After years of collective bargaining failures, when both sides refused to, or proved incapable of separating the safety concern from their collective bargaining concerns, FRA effectively intervened, regulating and enforcing the prohibition of, and the testing for the use of controlled substances by safety-sensitive employees.  That was the single most important contribution made to the dramatic improvement in rail safety over the last 30 years. 

Does anyone think, for a second, that we should withdraw the regulations on drug and alcohol use and testing and go back to the "good old days" when GC 6 (the famous Geismar, La. to Chicago train affectionately known as the "rolling bomb") derailed in Livingston, Louisiana forcing the evacuation of thousands because the train was being operated in excess of permanent speed restrictions by a clerk....while she sat on the engineer's lap and he held on to her with one hand, and a bottle of beer with the other?

We can look at the long-standing impasse the RSAC process has reached, waiting, hoping for consensus among labor and management for medical fitness for duty standards.  How's that been working out over the past 9 years of stasis, good you think?  

I wonder what's next?  Maybe DOT will scrap the tank car requirements for those cars handling hazardous materials and decide to preempt and annul state regulations for the stabilization of shale crude oil when moving across state lines... in the interests of course of "eliminating red tape," "reducing the regulatory burden," "freeing entrepreneurship." Nothing says "economic liberty" like blowing a whole town off the map on a Saturday night, does it? 

I've always said that if airlines were operated and regulated like we operate our trains,  the planes would be falling out of the sky like hailstones.

And I mean it every time I say it.

The withdrawal of the ANPRM is disgraceful.  It is a dereliction of the duty to protect and preserve public safety.

David Schanoes

August 7, 2017



Private Drake: What? Is that a joke?

Corporal Dietrich: Oh, I wish it were.