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The June Issue of Trains magazine has an interview with FRA Administrator, Ron Batory.

Batory says some very good things in the interview, like:

"You are always looking for ways to reduce risk and enhance safety." 

like: "It [railroad safety culture] requires leadership and not just at the top.  Everybody has to take on responsibility when it comes to safety." 

However, when we get down to specifics, Mr. Batory says something not quite so good, and strangely enough, in direct contradiction to those good statements. 

Commenting on FRA's decision to withdraw from rule-making regarding the testing and treatment of obstructive sleep apnea (OSA) among safety sensitive railroad employees,  Batory says, "Does there have to be a regulation for everything in life?" 

It's not clear if the Administrator meant the statement to be taken seriously, rhetorically, or humorously, so being a cautious person, I'll presume he meant it all three ways and try to give the three-in-one answer: 

Seriously: No, not everything in life needs to be regulated and nobody is advocating that FRA regulate everything in life.  However, when there are conditions, syndromes, patterns, behaviors that can be, and have been, shown to increase risk and degrade safety, and to do so on a system  level such that the increased risk and degraded safety become a threat to the employees and customers of the industry, and to the general public, then yes, that specific condition leading to an increased risk and the degradation of system safety must become the target of regulation. 

Now FRA does not, despite what some believe, or what I may have felt personally at times, develop regulations just for the hell of it; or just to make life miserable for operating officers.  FRA develops regulations to impose minimum acceptable standards for safe train operations. 

The regulations really aren't arbitrary, random, or capricious.  Rather the intent of the regulation is to remove the arbitrary, random, individualized actions that present the greatest obstact to developing exactly that type of safety culture where everybody can and does take responsibility. 

Like anything else, some regulations are better at achieving those goals than others, but that does not mean a regulation requiring testing and treatment of OSA, a medical condition that has been indentified as a cause of fatal train accidents, is regulatory overreach, unwarranted, or a threat to business. 

Rhetorically: No, not everything in life has to be regulated, and nobody's asking for everything in life to be regulated.  The impulse behind an OSA regulation is the painful fact that the parties, i.e. the railroads and its employees, have not been able to resolve issues surrounding testing and treatment themselves. 

Now that failure is the same failure that compelled FRA to regulate mandatory and random drug and alcohol tesing, hours of service, operation of hand-thrown switches in "dark" territory, locomotive crashworthiness, locomotive engineer certification-- in fact almost all the issues so regulated in 49CFR Parts 200-244.  So the rhetorical question becomes  "Why regulate anything?  Why even have an FRA?" 

Now that rhetorical question might bring smiles to the faces of Charles and David Koch {Are you happy to see me, or is that a deregulation in your pocket?} but it's a hell of a way to run a railroad.  I suggest everybody think back to what the railroads were like before random and mandatory drug and alcohol testing; before crashworthiness standards; before engineer certification; before roadway worker protection requirements.  I suggest everyone take a look at the data available on FRA's Safety Data website, and see exactly how far we've come in the last 40 years, and how much further we still have to go when it comes to human error/crew failure accidents.  Look back as far as you can and then tell me whether you think the Koch brothers' philosophy has the slightest relevance to safe train operations. 

Humorously:  Well there's nothing funny here.  I suspect that the Administrator's remarks were a sign of exasperation, exasperation with the competing demands he faces, particularly the demands from the Mulvaney crew in the Office of Management and Budget who are to effective, targeted regulation what clear cutting a forest is to songbirds. 

Maybe the Administrator wants to hold off on a separate OSA regulation, folding it into a comprehensive "fitness for duty" standard or the incredible disappearing system safety/risk reduction regulation. Maybe.  However, that would contradict one other great thing Mr. Batory said in the interview,

like: "If you continue to try and do better in safety every day, you have to be aware of the world around us, and it doesn't wait for us." 

Indeed, more serious less rhetorical words have never been spoken.   

David Schanoes

May 7, 2018

Like most native New Yorkers, I moved here long ago.