Ten90 Solutions LLC

On September 27, 2017 four senators and two congressional representatives announced their intention to introduce legislation that would "require the US Department of Transportation (DOT) to implement the proposed rule mandating sleep apnea testing and treatment for rail operators and commercial truck drivers..."

We appreciate the effort, but the truth is that there is no proposed rule to be implemented. 

After years of studying these issues and the attendant safety risks, FRA finally issued an ANPRM in March, 2016.  Three public hearings, 700+ comments in the docket, and seventeen months later, FRA joined FMCSA in withdrawing from the  rulemaking process. 

The public release of NTSB's findings regarding the train-bumping block collisions in Hoboken, New Jersey, and Atlantic Terminal, Brooklyn, New York, reveals that in each instance, the locomotive engineers suffered from severe obstructive sleep apnea (OSA).  This finding makes it clear that testing and treatment of railroad employees for OSA is a matter of national urgency.  Time, when it comes to preventing the next "accident," is always of the essence: 

• Had the rulemaking moved forward, FRA would have to review and address comments that were gathered in formulating the Notice of Proposed Rulemaking (NPRM).  The time required to do that could be substantial. 
• The issuance of a NPRM opens the proposed rule to another comment period.  This process can be 12 to 18 months in duration.
• Following the NPRM comment period, FRA would again evaluate and consider all comments prior to issuing a final rule.
• The entire process can take years
• Setting the clock back before zero is not the direction to take. 

The risk to public safety from delayed action is real:

• In the span of forty months, three New York area commuter trains derailed with OSA cited as a contributing, if not the determining, factor.  In these three accidents five commuters died and 250+ suffered non-fatal injuries.
• NTSB has also identified six freight train collisions in which OSA may have caused the failure of the train and engine crews to respond properly to the operating conditions.  These six claimed the lives of eight engineers and conductors, while others suffered serious injuries.  Other collisions are still being investigated in which OSA may have contributed to the failure. 

We can deal with this problem rapidly and efficiently, while preserving the "due process" that railroads and railroad employees are entitled to when regulation is required in the interest of public safety. 

FRA can immediately require railroads, by emergency order,  to apply Medical Fitness-for-Duty Standards and protocols established by FMCSA for the testing, evaluation, and treatment of train operating employees for obstructive sleep apnea. 

FRA's can and should include reporting requirements for railroads to provide monthly updates on numbers and classifications of employees tested; results of those tests; numbers referred for further evaluation and treatment; and the numbers remaining to be tested. 

FRA can review those results, and correlate those results with the frequency of accidents that are generally associated with human factors to a)judge the impacts and adequacy of the testing over time  and b)improve upon testing protocols when fashioning a permanent regulation to replace the temporary emergency order. 

William Keppen; Bkeppen@msn.com 

Joe Pasanello; jcpasa@comcast.net   

DM Schanoes; dmschanoes@ten90solutions.com

 October 3, 2017