The Federal Register, volume 82, No 151, August 8 2017, contained FRA’s decision to withdraw the ANPRM (advanced notice of proposed rule-making) entitled “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.”
The statement concluded “based on the foregoing reasons, the Agencies withdraw the ANPRM…” In truth no reasons are given for FRA withdrawing from its participation in the NPRM process. The “foregoing reasons” cited in the register refer to the work of the Federal Motor Carrier Safety Administration (FMCSA), which has already established requirements for medical examiners certifying the fitness of truckers, and others, under their jurisdiction. FMCSA already has guidelines for medical examiners and training organizations regarding the detection and treatment of sleep apnea. FRA doesn’t have those guidelines.
FMCSA has a pre-existing, and functioning, medical review board to do just that, review the developments in the information, and changes to information, obtained from medical professionals and associations regarding the incidents, incidence, diagnosis and treatment of sleep apnea in order to make sure that medical examiners fully understand their role in screening drivers for OSA. FRA does not have a medical review board working directly with it in oversight of the industry.
While FMCSA has a platform for evaluating, and analyzing the prevalence of OSA, FRA does not.
The RSAC charged with the task of developing medical standards couldn’t reach consensus, and after 6 years, shut down, and further resolution and regulation of the issues raised in that RSAC have not emerged from this suspended animation.
FRA does have Safety Advisory 2004-04 to “alert the railroad industry, and especially those employees with safety sensitive duties to the danger associated with the degradation of performance resulting from undiagnosed or unsuccessfully treated sleep disorders.”
However, the effectiveness of the SA is called into question by the fact that 10 of the 16 collisions cited by Bill Keppen in the previous post occurred after the issue date of that Safety Advisory.
In 2011, FRA attempted to address certain aspects of employee fatigue, by amending 49CFR 228 Subpart F “Substantive Hours of Service Requirements for Train Employees engaged in Commuter or Intercity Rail Passenger Transportation.”
As a close friend and co-worker of mine pointed out, all three of the OSA/fatigue collision/derailments involving passenger trains identified by Bill Keppen occurred after the changes to the regulation.
FRA stated that the justification for the initiation of the ANPRM was to obtain information “whether OSA is a problem among individuals occupying safety sensitive positions in highway and rail transportation.” However, in withdrawing the ANPRM, FRA makes no reference to the information it received from railroads already testing for OSA in relation to rates of occurrence.
The docket and the comments for the ANPRM are available on the US government regulatory docket website: www.regulations.gov docket identification FRA-2015-0111.
Check it out. I did. I checked out the response posted by MTA regarding OSA testing on Metro-North Railroad. I read:
ANPRM: What is prevalence of moderate-to-severe OSA among individuals occupying safety sensitive transportation positions? If it differs from that among the general population, why does it appear to do so? If no existing estimates exist, what methods and information sources can the agencies use to reliably estimate this prevalence?
Response: The MTA has screened all 438 of its Metro-North Railroad locomotive engineers; consequently, we can only speak to the results found among that cohort. Approximately 25% are currently undergoing treatment for OSA. This is less than originally expected based on rough estimates seen from FMCSA. The MTA is planning to expand this screening program to certain job titles at other MTA agencies, and we are soliciting proposals for sleep study vendors
Now there might be a discrepancy here, since 438 locomotive engineers on Metro-North seems like an extraordinarily high number at least from the 260 that were on the active-duty roster when I retired. Also, earlier in the MTA document, MTA states 12 percent of 438 locomotive engineers were diagnosed with OSA and required to pursue treatment.
Regardless of the discrepancy, 1 in 4 or 1 in 8, clearly the incidence of OSA presents, when not diagnosed and properly treated, a massive, and persistent risk to safe train operations.
When I was in a position on the railroad to make decisions that made a difference, I had a different statistical method for determining whether a procedure, method of operation, practice, level of employee fitness was “safe enough.” Everything I did, everything I weighed doing had to satisfy the (1X 2 X 2 X 365 X 10) matrix of safe train operations: Would I (1) allow my two (2) daughters to ride this train two (2) times a day, 365 days (365) a year for the next ten (10) years, and feel comfortable about their safety? If the answer I gave to my own question was not a “yes”—and a “yes” without equivocation, then I knew I had to change something.
If it’s not safe enough for my daughters, it’s not safe enough for anybody’s daughters. It’s not safe enough for me to let anyone put his/her daughter on the train.
That served me well, I think, during my tenure. Look, I know I was lucky. I know that as hard as you may work, as much as you may worry, as many nights as you wake up gasping after dreaming you miscalculated stopping distance (remember that one, Favilla?), you can’t control everything, and along with you doing your best you have to be lucky enough to have others, all others, doing their bests too.
But that’s the point, isn’t it? If we’re not actively testing, diagnosing, treating OSA, we’re preventing all others from doing their best. And that is truly what’s unacceptable about FRA’s withdrawal from the rule-making process in this matter.
FRA provides a point of contact in its notice: Doctor Amanda Emo, Fatigue Program Manager, Office of Safety Analysis, FRA, 1200 New Jersey Avenue SE, DC, 20590-0001; 202-281-0695; amanda.emo@fra.dot.gov.
I called Dr. Emo and left her a message expressing my profound dismay at FRA’s action, and leaving my phone number.
To my surprise, she called me back, and not reaching me, she left me a message and her phone number.
I wasn’t going to return her call, but in her message she used a rather unique phonetic alphabet to spell out her last name. And what a phonetic alphabet: “That’s E as in elephant; M as in Mary; O as in Octopus.”
Any person courageous enough to use elephant and octopus in a phonetic alphabet is a person I want to talk to, seriously. So I returned the call and she picked up. After I pointed out that she wasn’t exactly using the NATO standard phonetic alphabet but that was quite all right with me, she explained her reasoning for the withdrawal.
Basically, the withdrawal is driven by the imminent publication of the final rule requiring railroads to develop fatigue management plans. FRA did not want to overburden the rule, or the response by railroads by pursuing another regulation prior to assessing if, and how, railroads might engage with OSA testing on their own as part of the overall implementation of the fatigue rule.
Now I find that to be a reasonable explanation. I find it to be perfectly reasonable, and totally wrong. I find it to be reasonable, but tangential to the point; the point is that OSA has already been shown to be so widespread, and so dangerous to safe train operations that further delay is an abdication of responsibility.
I find that Dr. Emo's explanation to be perfectly wrong, particularly given the fact that Congress stipulated that fatigue management plans must be developed and submitted to the Secretary of Transportation in 2012, not 2017.
I find it perfectly irrational because FRA is using its previous failure to complete a task in a timely manner that can remediate risk, as the reason for further failures to complete, in a timely manner, a task that can remediate risk.
That’s not how we’re supposed to run this business. That is certainly no way to run a railroad.
I still use my matrix. FRA’s explanation does not make the statistical cut-off on the Schanoes matrix. I don’t “mark on a curve,” and neither do safe railroads.
David Schanoes
August 10, 2017
Great moments in rock and roll history (not in chronological, or any other sort, of order):
1978, Funkadelics release "One Nation Under A Groove."
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