-From Ronald L. Batory, Administrator: This letter is the Federal Railroad Administration's (FRA) response to twelve National Transportation Safety Board (NTSB) Safety Recommendations (see list below). Over half of these recommendations are currently classified as "Open - Acceptable Response," and because the FRA has addressed the intent of the recommendations, no further action is necessary. FRA therefore requests that these be classified as "Closed- Acceptable Action."
For the remaining five, FRA has evaluated each recommendation relative to current and potential new regulations, including requirements for conducting cost-benefit analysis of each potential measure to address each recommendation, and has concluded FRA cannot reasonably take further action on them. Thus, FRA respectfully asks the NTSB to classify each of them as "Closed."
Overall, the twelve Safety Recommendations in question are: • R-01-02 • R-12-21 • R-13-22 • R-14-17 • R-01-17 • R-12-22 • R-13-38 • R-14-44 • R-08-06 • R-12-41 • R-14-16 • R-14-48
In the enclosure, FRA discusses the challenges to implement these recommendations, describes what actions the agency has performed, and explains why FRA cannot proceed further, other than to audit compliance as appropriate. Each recommendation is addressed in the enclosure in the following manner:
• NTSB Safety Recommendation Number;
• Text of the Safety Recommendation as issued by the NTSB;
• Status (e.g., "Open-Acceptable Response");
• FRA's position on the Safety Recommendation (see bolded text in shaded boxes);
• A summary of the accident that led the NTSB to issue the recommendation;
• A summary of the NTSB and FRA correspondence regarding each recommendation; and
• FRA's explanation for why we cannot pursue any further action on the recommendation.
To facilitate closure of these recommendations, FRA met with the NTSB on March 1, 2018, to expound on our reasoning and answer questions. This enclosure only includes those recommendations for which we believe we came to an understanding.
If FRA can provide further information or assistance, please contact Mr. Robert C. Lauby, Associate Administrator for Railroad Safety and Chief Safety Officer.
Please note that Federal agencies like FRA are required to follow the direction of Executive Orders 12866 and 13563 for rulemaking, which require quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 specifically states that:
Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
To meet the requirements of these Executive Orders, for each proposed and final regulation issued, FRA performs a regulatory analysis to:
1. Establish whether Federal regulation is necessary and justified to achieve a social goal; and
2. Clarify how to design regulations in the most efficient, least burdensome, and most cost effective manner.
While issuing regulations to implement many of these NTSB recommendations could improve railroad safety in the specific railroad accident or incident from which each arose, regulatory action to implement these recommendations would result in financial and safety costs that far exceed the societal benefits of improved safety or accident avoidance. Based on the associated cost-benefit analysis, implementing regulations that are required by some of these recommendations would not meet the intent of the Executive Orders listed above, which is inconsistent with the Administration's regulatory policy. Where applicable, FRA has calculated the anticipated costs and benefits of each recommendation and included that information with each detailed response.
Please also note, in the 2016 Federal Railroad Administration Report to Congress on Actions Taken to Implement Unmet Statutory Mandates and Address Open Recommendations by the National Transportation Safety Board and the Department of Transportation's Inspector General Regarding Railroad Safety, FRA informed Congress that the agency would be taking no further action on these twelve recommendations.
Current Status: Open-Unacceptable Response
FRA has published a final rule that fulfills the intent of the recommendation. FRA intends to take no further action on the recommendation, and respectfully requests that the NTSB close it.
The NTSB issued Safety Recommendation R-12-22 in response to the previously-mentioned accident on April 17, 2011, near Red Oak, IA. (See Safety Recommendation R-12-21, above). In its February 12, 2015, correspondence to the NTSB, FRA stated that it was not feasible to develop regulation based on an exhaustive catalog of conditions expected in a collision, and that these varied and rare conditions are not a good basis for establishing broadly applicable performance standards. If regulations were developed to cover extremely unusual accident scenarios, such as what occurred at Red Oak, the resulting requirements would be marginally effective, cost-inefficient, and not properly address most accident scenarios. Under 49 CFR § 229 .209, FRA may consider proposals for the development and use of alternative crash worthy designs, including those based on performance standards.
In its reply dated August 11, 2016, the NTSB stated:
We are aware of the provisions of 49 CFR section 229.209, which is why we ask that you determine the metrics of crashworthiness of new locomotive designs with railroad equipment expected in the operating environment, such as maintenance-of-way equipment, locomotives, hi-rail vehicles, freight cars, and passenger cars. We have not asked you to create a complete catalog of conditions expected in a collision; however, we do ask that you evaluate other crash-involved equipment in addition to freight cars and locomotives. Pending such action and the completion of rulemaking as recommended, Safety Recommendation R-12-22 is classified OPEN--UNACCEPTABLE RESPONSE.
FRA's actions to address R-12-22: FRA's Crashworthiness Design Requirements (49 CFR part 229, subpart D) sets forth standards for the design of crashworthy locomotives. While these standards will not protect all occupants in all collision situations, they will have the greatest effect on the reduction of cab crew injuries and fatalities associated with the most prevalent types of locomotive collisions, including several inline and oblique collision scenarios. The term "design standard" means a specification for the crashworthiness design of locomotives-a set of design requirements which specify ultimate performance, yet are not so specific in nature that they leave little flexibility to the designer. The overall design of the locomotive is allowed to vary so long as the specified crashworthiness design requirements are met. FRA does not want to inhibit innovation of equipment designs and will consider alternative crashworthy designs pursuant to the requirements of 49 CFR § 229 .209. FRA believes that its Crash worthiness Design Requirements address the most prevalent types of locomotive collisions.
Additionally, the estimated cost to the industry to comply with potential regulations created to address this specific recommendation is estimated to be $2.3 billion. Benefits for such a rulemaking would come from a reduction in injuries or fatalities once an accident occurred, but improving the crash worthiness of the locomotive does not prevent the accident from occurring.
FRA and railroads are investing resources in crash prevention, which overall has a significantly larger benefit than improved crashworthiness. As new technologies are more broadly implemented like positive train control (PTC) which NTSB agrees will greatly improve crash prevention, potential benefits will be further reduced. FRA has addressed the recommendation, and respectfully requests that NTSB reclassify this recommendation as, "Closed--Acceptable Action."