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Safety Recommendation Details

Safety Recommendation R-14-071
Details
Synopsis: During the time period between May 2013 and March 2014, the National Transportation Safety Board (NTSB) launched investigative teams to five significant accidents on the Metro-North Railroad (Metro-North): (1) the May 17, 2013, derailment and subsequent collision in Bridgeport, Connecticut; (2) the May 28, 2013, employee fatality in West Haven, Connecticut; (3) the July 18, 2013, CSX derailment on Metro-North tracks in The Bronx, New York; (4) the December 1, 2013, derailment in The Bronx, New York; and (5) the March 10, 2014, employee fatality in Manhattan, New York. In combination, these accidents resulted in 6 fatalities, 126 injuries and more than $28 million in damages. The continued safe operation of Metro-North is vital to New York City and the tri-state area of New York, New Jersey, and Connecticut. As the NTSB investigations progressed, it became apparent that several organizational factors issues were involved in the accidents. The November 2013 NTSB investigative hearing on the Bridgeport and West Haven accidents (the NTSB hearing) explored the role of Metro-North and the Federal Railroad Administration (FRA) organizational factors in these accidents. The NTSB was not alone in observing that organizational factors were relevant to the series of Metro-North accidents. Subsequent actions by the FRA, which conducted a focused audit, and the Metropolitan Transportation Authority (MTA), which formed a Blue Ribbon Panel (BRP) to review safety and created an MTA Board Safety Committee to monitor safety, have reinforced the need to examine both the role of Metro-North and FRA organizational factors in relation to these five accidents. This special investigation report discusses all five of the recent Metro-North accidents investigated by the NTSB, examines some of the common elements of these accidents, and addresses the steps that Metro-North, the MTA, and the FRA have taken as a result of these investigations. The report also highlights lessons learned and provides recommendations to Metro-North, MTA, and several other entities to improve railroad safety on Metro-North and elsewhere.
Recommendation: TO THE ASSOCIATION OF AMERICAN RAILROADS, THE AMERICAN PUBLIC TRANSPORTATION ASSOCIATION, THE AMERICAN SHORT LINE AND REGIONAL RAILROAD ASSOCIATION, THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, AND THE INTERNATIONAL ASSOCIATION OF SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS: Collaborate to develop a model national labor agreement that supports effective programs for addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel.
Original recommendation transmittal letter: PDF
Overall Status: Open Acceptable Alternate Response
Mode: Railroad
Location: United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DCA14SS005
Accident Reports:
Report #: SIR-14-04
Accident Date: 4/2/2014
Issue Date: 11/24/2014
Date Closed:
Addressee(s) and Addressee Status: American Public Transportation Association (Open Acceptable Alternate Response)
American Short Line and Regional Railroad Association (Open Acceptable Alternate Response)
Association of American Railroads (Open - Unacceptable Response)
Brotherhood of Locomotive Engineers and Trainmen (Open - Acceptable Response)
Sheet Metal, Air, Rail and Transportation (formerly United Transportation Union) (Open - Await Response)
Keyword(s):

Safety Recommendation History
From: NTSB
To: Association of American Railroads
Date: 8/20/2015
Response: We are aware that the Rail Safety Improvement Act of 2008 (RSIA) requires Class I railroads to have fatigue management plans and that robust fatigue management plans would improve railroad safety; however, we point out that the deadline written into the RSIA of 2008 for developing fatigue management plans passed in 2012. In addition, the FRA’s February 27, 2015, notice of proposed rulemaking regarding risk reduction plans explicitly delayed any discussion of sleep disorders and other medical conditions in fatigue management plans. We believe that addressing fatigue is a critical facet of advancing a culture of safety in the railroad industry and that effectively addressing sleep disorders and other medical conditions is a crucial component of any fatigue managment plan. We are discouraged that the AAR does not believe a model national labor agreement in this area would be appropriate, particularly in light of BLET’s willingness to move forward with such a plan, as communicated in its February 23, 2015, letter. We continue to believe that a model national labor agreement addressing sleep disorders and other medical conditions would facilitate railroads’ implementation of the safety enhancements encompassed in the RSIA, and urge you to seek support from the labor unions in crafting the recommended safety proposal. Pending completion of the recommended action, Safety Recommendation R 14 71 is classified OPEN—UNACCEPTABLE RESPONSE.

From: Association of American Railroads
To: NTSB
Date: 3/24/2015
Response: -From Edward R. Hamberger, President and Chief Executive Officer: NTSB Safety Recommendation R -14-71, issued to the Association of American Railroads, the American Public Transportation Association, the American Short Line and Regional Railroad Association, the Brotherhood of Locomotive Engineers, and the International Association of Sheet Metal, Air, Rail and Transportation Workers, suggests that those organizations collaborate to develop a model national labor agreement that supports effective programs for addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel. This recommendation stems from the December 1, 2013, derailment of a Metro North train in the Bronx, New York. As noted in the NTSB Special Report, the RSIA requires Class I railroads to have fatigue management plans. RSAC discussions concerning implementation of the statutory mandate have taken place and FRA will be initiating a formal rulemaking proceeding. The RSIA requires that the fatigue management plans be comprehensive, addressing (A) Employee education and training on the physiological and human factors that affect fatigue, as well as strategies to reduce or mitigate the effects of fatigue, based on the most current scientific and medical research and literature. (B) Opportunities for identification, diagnosis, and treatment of any medical condition that may affect alertness or fatigue, including sleep disorders. (C) Effects on employee fatigue of an employee's short term or sustained response to emergency situations, such as derailments and natural disasters, or engagement in other intensive working conditions. (D) Scheduling practices for employees, including innovative scheduling practices, on duty call practices, work and rest cycles, increased consecutive days off for employees, changes in shift patterns, appropriate scheduling practices for varying types of work, and other aspects of employee scheduling that would reduce employee fatigue and cumulative sleep loss. (E) Methods to minimize accidents and incidents that occur as a result of working at times when scientific and medical research have shown increased fatigue disrupts employees' circadian rhythm. (F) Alertness strategies, such as policies on napping, to address acute drowsiness and fatigue while an employee is on duty. (G) Opportunities to obtain restful sleep at lodging facilities, including employee sleeping quarters provided by the railroad carrier. (H) The increase of the number of consecutive hours of off-duty rest, during which an employee receives no communication from the employing railroad carrier or its managers, supervisors, officers, or agents. (I) A voidance of abrupt changes in rest cycles for employees. FRA's impending rulemaking proceeding on fatigue management plans clearly supersedes Recommendation R -14-71. That is not to say the railroads do not have ongoing programs addressing fatigue in the workplace. For many years, AAR and its member railroads have developed programs to address fatigue in the railroad industry, some in collaboration with the labor organizations although AAR does not believe a model labor agreement in this area would be appropriate. Accordingly, AAR recommends that Safety Recommendation R -14-71 be designated "Closed-Alternate Action."

From: NTSB
To: American Public Transportation Association
Date: 5/29/2019
Response: We believe that you do not understand this recommendation or our basis for issuing it. You told us that collaborating on a sleep-disorders model with international labor unions, as recommended, is not the best approach for your commuter rail members because the train operating personnel of many your member railroads are either not represented by any labor organization or are represented by labor organizations other than the BLET or SMART. We wish to clarify that the purpose of the recommended labor agreement is to understand the legitimate concerns of commuter railroad employees, regardless of if they are represented by a labor union, who would be subject to sleep-disorder screenings, and ensure that such concerns are not the basis for opposition to and noncompliance with sleep-screening programs. Our purpose in recommending that you collaborate with the BLET and SMART was not for you or your commuter rail members to enter into any labor agreements with these labor unions; rather, we believe that they can share personnel concerns regarding screening programs—and what procedures could be developed to address them—with you and other rail management organizations, such as the AAR and the ASLRRA. Among the topics of concern that have been given as examples of why labor unions may oppose sleep-disorder screening programs are the following: 1) Possible adverse action taken by a railroad against an employee identified as needing a sleep screen study or treatment for a sleep disorder. 2) Potential periods during which the employee may not be paid until a sleep study is completed. 3) Disciplinary action that may be taken against an employee with an elevated body mass index. 4) A requirement that an employee will have to pay the cost of a medical sleep study or purchase expensive equipment (such as a continuous positive pressure breathing device) to treat a sleep disorder. We note that you and your transit members have made employee fatigue, physical and medical fitness for duty, and related issues a top priority. We further note that you recently surveyed your commuter rail members, and of the top 10 commuter rail operators, which carry over 90 percent of commuter rail passengers, 6 have programs to screen employees for sleep disorders, with 1 of the remaining 4 planning to initiate a screening program by the summer of 2019. Of the remaining 5 other commuter railroads that responded (not in the top 10 in terms of numbers of passengers carried), 4 have programs to screen employees for sleep apnea and other sleep disorders. We believe that for a sleep-disorder screening program to be optimally effective, the employer needs to determine its employees’ concerns about the perceived negative consequences of participating in the program, and should implement procedures and policies to protect and assure the employee that there will be no negative consequences from participating. Please describe the portions of the sleep-screening programs used by the 10 commuter railroads that reported having implemented them so we can evaluate if these form the basis for an alternate response that satisfies Safety Recommendation R-14-71. Also, please tell us if you collected this information into a best practices guide that you shared with the other recipients of our recommendation. Pending our receipt and review of this information, Safety Recommendation R-14-71 is classified OPEN--ACCEPTABLE ALTERNATE RESPONSE.

From: American Public Transportation Association
To: NTSB
Date: 1/28/2019
Response: -From Paul P. Skoutelas, President and Chief Executive Officer: This recommendation requests that APTA and other trade association groups, such as the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA), collaborate with International labor unions to develop a model national labor agreement “that supports effective programs for addressing sleep disorders and other medical conditions among safety sensitive train operating personnel.” I should note that collaborating on development of a sleep disorders model with international labor unions, as suggested by NTSB, may not be the best approach for APTA’s commuter rail members. The train operating personnel of many APTA member commuter railroads either are not represented by any labor organization or are represented by labor organizations other than those named in this Safety Recommendation. However, APTA and its transit members have made employee fatigue, physical and medical fitness for duty, and related issues a top priority and we work to address this issue in many valuable forums, including our standards program, as detailed below, and our many conferences and safety workshops. Importantly, the transit Industry has taken a leading role in establishing and executing programs to medically screen employees in safety-sensitive positions for sleep apnea and other sleep disorders. APTA recently conducted a brief survey with its commuter rail members and received 15 responses. The results show that six (6) of the top ten (10) commuter rail operations by ridership use a program to screen employees for sleep disorder conditions. The top 10 commuter rail operations carry 91% of the passengers in the US. Additionally, out of the remaining four operations, one railroad will be commissioning their program prior to Summer of 2019. Six other railroads responded. Four of them use a program to screen their employees for sleep apnea and other disorders. The other railroad operations that are not using a dedicated program to screen employees nonetheless employ important mitigatory approaches, typically consisting of a mix of recurring training and awareness programs combined with a liberal leave program for fatigue related instances. We understand that FRA and FMCSA have withdrawn their joint ANPRM. However, importantly, FRA did issue a safety advisory 2004-04 (69 FR 58995, Oct. 1, 2004), Effect of Sleep Disorders on Safety of Railroad Operations. Additionally, this safety advisory has been referenced in several other safety advisories related to incidents attributed to employee fatigue. Our members are well aware of the safety advisory and are constantly evaluating their operations to ensure safety. Given the increase in use of such programs by the commuter rail industry, APTA believes that it has met the intent of the recommendation and requests that NTSB classify this recommendation as “Acceptable-Closed.”

From: NTSB
To: American Public Transportation Association
Date: 10/16/2018
Response: We received Mr. Melaniphy’s letter shortly after the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) published an advanced notice of proposed rulemaking (ANPRM), “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea [OSA],” at 81 Federal Register 12642 on March 10, 2016. On April 7, 2016, we said that, because the content of the ANPRM was directly related to this recommendation, we would classify your response to the recommendation at a later date. On August 8, 2017, the FMCSA and the FRA published a notice at Federal Register 37038 withdrawing the ANPRM because they believed that “current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” and they said they would not be pursuing any additional rulemaking. Because the ANPRM was withdrawn, this letter will address Mr. Melaniphy’s response to Safety Recommendation R-17-41. When we issued Safety Recommendation R-14-71, we pointed out that we had previously issued Safety Recommendation R-12-26 to the BNSF Railroad asking BNSF to medically screen employees in safety sensitive positions for sleep apnea and other sleep disorders. In its August 23, 2012, initial response, BNSF wrote the following: Previous attempts by BNSF to require additional medical information about certain safety related medical conditions, specifically including attempts to obtain medical information on sleep apnea, met with stiff resistance from our labor organizations who alleged that these attempts to obtain medical information were in violation of various federal and state laws. Indeed, 10 unions filed charges with the Equal Employment Opportunity Commission alleging that the BNSF requirement violated the federal Americans with Disabilities Act. Those charges remain pending. Simply stated, until there are some federal standards on medical qualification for such conditions as sleep apnea, other sleep disorders or, medical conditions that affect an employee's ability to work safely, it will be difficult to obtain and use such information without facing a variety of legal challenges. BNSF believes such information may be lawfully used to improve safety without violating employee rights and is an active participant in FRA’s Medical Standards Railroad Safety Advisory Council (RSAC) where this issue has been discussed. We issued Safety Recommendation R-14-71 to APTA because we were concerned that the FRA was not making progress promulgating regulations requiring screening for OSA and other sleep disorders. We were equally concerned that some railroads, like BNSF, believed they were unable to adequately address the issue without an FRA regulation. We recognize the challenges organizations face with screening employees for sleep disorders and other medical conditions, despite the fact that such screening, evaluation, and treatment will reduce the risk of catastrophic accidents and potentially improve employees’ health and well-being. In our report on the five Metro-North Railroad accidents, we concluded that, without evaluating employees in safety sensitive positions for sleep disorders or other medical conditions, railroad employees, passengers, and the general public will remain at increased risk, and we pointed out that the FRA had not adequately addressed the issue. We envisioned that a model agreement developed jointly by operators (as represented by AAR, ASLRRA, and APTA) and labor unions (represented by BLET and SMART) could be used to reduce labor unions’ resistance to obtaining the needed information. Mr. Melaniphy wrote that APTA is not an appropriate recipient for this recommendation because labor agreements are local, and many APTA member commuter railroads have train operating personnel who are not represented by any labor organization, or are represented by labor organizations other than BLET and SMART. Further, Mr. Melaniphy pointed out that APTA does not participate, assist, or otherwise engage in developing or negotiating labor agreements; therefore, it was unclear how APTA was to develop or legally enter into a national labor agreement pertaining to sleep disorders, or how the product of this work effort would benefit APTA’s members or personnel in safety-sensitive positions. Mr. Melaniphy said that APTA does not have experts on staff who specialize in sleep disorders and related medical conditions, and obtaining the needed expertise would require significant revenue. He recognized, however, that fatigue and sleep disorders jeopardize transportation safety, and he described APTA’s alternative actions supporting improved sleep disorder education, assessment, and treatment for train operating personnel, citing several APTA standards, including the following: • RT-OP-S-015-09, “Standard for Train Operators Hours of Service Requirements” • RT-OP-S-005-03 REV 2, “Operations Control Centers” • BTS-BO-RP-001-07, “Recommended Practice for Transit Bus Operator Training” We note that you have been working with the RSAC to develop a fatigue management program (FMP), as required by the congressionally mandated 2008 Rail Safety Improvement Act. You have also provided standards development personnel to work with the Federal Transit Administration to develop “Transit Advisory Committee for Safety Report 14-02; Establishing a Fatigue Management Program for the Bus and Rail Transit Industry.” Although we strongly support FMP development and use in the railroad industry, we do not agree that developing and advocating for FMPs satisfies Safety Recommendation R-14-71, and we are concerned that you may not fully understand what we are recommending. We are not asking that you enter into a labor agreement, nor are we limiting the agreements to any particular labor unions. We issued this recommendation to address resistance and legal challenges from labor unions to allow railroads to perform the needed screening and to obtain effective treatment for their employees in safety-sensitive positions who have sleep disorders (as described in BNSF’s August 23, 2016, response to Safety Recommendation R 12 26). A model agreement developed in collaboration between rail management organizations (like APTA) and labor unions (like BLET and SMART) would address the need to obtain the information as well as the unions’ concerns about the how the information would be gathered and used. Such a model agreement could be used by your members during negotiations with organized labor unions. We continue to be concerned about the safety problem associated with undiagnosed and inadequately treated sleep disorders in employees in safety-sensitive positions. In the 3½ years since Safety Recommendation R-14-71 was issued, we have completed three major railroad accident investigations in which undiagnosed or inadequately treated OSA was cited as the probable cause or as a contributing factor. Two of these three accidents involved trains being operated in public transportation service. Although an FMP may (and should) address medical sleep issues, the issue addressed by Safety Recommendation R-14-71—potential labor union resistance to collecting needed screening information and effectively treating medical sleep issues—will remain an impediment to anything that an FMP may address. An FMP will not be complete or fully effective without a satisfactory resolution that addresses Safety Recommendation R-14-71. Mr. Melaniphy argued that several APTA standards address this recommendation; however, none that he cited addresses medical sleep issues. We note that APTA standard RT OP S-018-12, “Rail Standard: Fitness for Duty Program (FFD) Requirements,” was not included in the list of standards that Mr. Melaniphy referenced, even though it is relevant to the issues in our recommendation and shows that APTA has developed standards related to medical fitness for duty in the past. For example, in response to Safety Recommendation R 09 11, the Bay Area Rapid Transit District in San Francisco formed an interdisciplinary team that relied on APTA RT-OP-S-018-12 to address medical fitness for duty. Because the FMCSA and FRA withdrew their ANPRM, and in light of the additional background information we have provided, we urge you to reconsider your response to this recommendation. Pending completion of the recommended model labor agreement, Safety Recommendation R-14-71 is classified OPEN--UNACCEPTABLE RESPONSE.

From: NTSB
To: American Public Transportation Association
Date: 4/7/2016
Response: Thank you for your March 14, 2016, letter to the National Transportation Safety Board regarding Safety Recommendations R-12-36, R-14-71, R-15-6, and R-15-11 and -12, which we issued to the American Public Transportation Association (APTA) between 2012 and 2015. We are currently reviewing the Federal Motor Carrier Safety Administration and Federal Railroad Administration’s Advanced Notice of Proposed Rulemaking Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea, published in the Federal Register on March 10, 2016. Because the content of that rulemaking is directly related to Safety Recommendation R-14-71, we will address that recommendation in separate correspondence.

From: American Public Transportation Association
To: NTSB
Date: 3/14/2016
Response: -From Michael P. Melaniphy, President and CEO: About APTA The American Public Transportation Association (APTA) is a non-profit international trade association of public and private member organizations, including public transit systems; high-speed intercity passenger rail agencies; planning, design, construction and finance firms; product and service providers; academic institutions; and state associations and departments of transportation. More than ninety percent of the 10.7 billion of Americans who use public transportation are served by APTA member transit systems. As the primary advocacy group for public transportation in North America, we fully appreciate and accept as our primary duty to lead the industry in moving people safely. This safety and security role is deeply imbedded in the over 100 year history1 of our organization and is exemplified as being the top goal of APTA’s Strategic Plan. Status of Recommendation R-14-71, Model National Labor Agreement on Sleep Disorders This recommendation requests that APTA and other trade association groups such as the Association of American Railroads and the American Short Line and Regional Railroad Association collaborate with International Labor Unions to develop a model national labor agreement “that supports effective programs for addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel.” As most commuter railroads operate within one region/state, any labor agreements that exist are local in nature. Many APTA member commuter railroads have train operating personnel who are not represented by any labor organization, or are represented by labor organizations other than those named in this Safety Recommendation. As a membership association, APTA does not participate in, assist in, or otherwise engage in the development or negotiation of any labor agreements. Based on these facts, it is unclear to APTA how to develop or legally enter into a national labor agreement pertaining to sleep disorders, or how the product of this work effort would be of benefit to our members or their safety-sensitive train operating personnel. Further, APTA does not have on staff any experts in the area of sleep disorders and related medical conditions. This would mean that any such collaboration would require a significant outlay of revenue to acquire expert consultants or contractors. APTA and its member commuter railroads fully appreciate that fatigue and sleep disorders jeopardize safe operation of transportation systems. While we do not see what role we could play in the collaboration as envisioned in Safety Recommendation R-14-71, we offer alternative actions that we have taken that have resulted in collaborative solutions in the spirit of the recommendation by supporting improved education, assessment and treatment of sleep disorders among train operating personnel. The APTA Standard program is a publically reviewed consensus based process that has produced several standards designed to address the effects of fatigue in operations. The standard most specific to R-14-71 criteria of “safety sensitive train operating personnel” is RT-OP-S-015-09 the “Standard for Train Operators Hours of Service Requirements”2. Other related standards include RT-OP-S-005-03 REV 2 which is addresses the safety sensitive work applicable to “Operations Control Centers” 3 and BTS-BO—RP-001-07 concerning “Recommended Practice for Transit Bus Operator Training”4. It should be noted that these standards advocate Fatigue Awareness approaches, but the new focus is to develop Fatigue Management Programs and APTA is collaborating with government, Industry and labor in designing those programs as well. In 2012, APTA began working with the FRA in a Rail Safety Advisory Committee to develop a Fatigue Management Plan as part of the responsibilities required from the RSIA 2008 congressional legislation. Although these efforts have yet to come to fruition, APTA has provided standards development personnel to work with the FTA in the development of a guideline “Transit Advisory Committee for Safety (TRACS) Report 14-02; Establishing a Fatigue Management Program for the Bus and Rail Transit Industry” 5 Following the release of this recommendation, APTA presented a special session at the APTA Rail Conference June 24, 2015 in Salt Lake City titled “Fatigue Risk Management Programs” to highlight the work that proactive transit agencies are doing to develop Fatigue Management Programs in the industry and the new science on the topic. Additional presentations on Fatigue Management programs and sleep disorders are scheduled for the 2016 Bus and Rail conferences. Based on the actions and leadership APTA members have taken and the ongoing efforts to assertively address fatigue issues, not just for safety sensitive train operating personnel, but across all passenger transportation modes in the industry, APTA believes that we have more than satisfied the Board’s recommendation and respectfully requests R14-71 to be reclassified as “Closed – Acceptable Action”.

From: NTSB
To: American Public Transportation Association
Date: 10/27/2015
Response: We expect to receive an initial response from recipients of our recommendations within 90 days after recommendations are issued, and within 30 days in the case of urgent recommendations; completing actions to address our safety recommendations usually takes recipients 3 to 5 years. Safety Recommendation R-12-36 is now over 3 years old, yet we have received no update regarding your actions to address it since your June 28, 2012, letter. We classified this recommendation “Open—Acceptable Response” on August 22, 2012, pending issuance of the recommended guidelines and standards. To date we have received no response from you regarding Safety Recommendation R-14-71 or Safety Recommendations R-15-6, -11 or -12, currently classified OPEN--AWAIT RESPONSE. Accordingly, we would appreciate receiving a prompt update regarding your actions and plans for satisfying these recommendations. We are interested in knowing whether and how our recommendations are implemented, both to ensure the public the highest level of safety and to identify creative solutions that can be shared with others. Pending your timely reply, all the recommendations will retain their current classifications. Copies of our letters issuing each of these recommendations are enclosed, as are copies of your June 28, 2012, letter regarding Safety Recommendation R 12-36 and our August 22, 2012 reply.

From: NTSB
To: American Short Line and Regional Railroad Association
Date: 6/10/2019
Response: Our August 24, 2018, meeting allowed us to clarify the intent of this recommendation, which is not that the ASLRRA enter into a labor agreement with the BLET or SMART, nor that either you or any of your members enter into a national labor agreement. Rather, we issued this recommendation because of employee concerns about possible negative consequences of sleep disorder screening and treatment programs, which might result in strong labor union opposition to the needed programs. We recommended that groups representing railroad management (such as the AAR, APTA, and ASLRRA) collaborate with railroad labor organizations (such as the BLET and SMART), who were familiar with the employees’ concerns about potential negative consequences associated with sleep-disorder screening and treatment, to develop policies and procedures (the model national labor agreement) to ensure that employees’ legitimate concerns were acknowledged and that employees were protected from any negative consequences. Safety Recommendation R-14-71 asks for a model agreement that could be the basis for these policies, regardless of whether the employees are represented by the BLET, SMART, or another union, or are not represented by any labor union. Among the topics of concern that have been given as examples of why labor unions may oppose sleep-disorder screening programs are the following: • Possible adverse action taken by a railroad against an employee identified as needing a sleep screen or treatment for a sleep disorder. • Potential periods during which the employee may not be paid until a sleep study is completed. • Disciplinary action that may be taken against an employee with an elevated body mass index. • A requirement that employees will have to pay for a medical sleep study or purchase expensive equipment (such as a continuous positive pressure breathing device) to treat a sleep disorder. We note that short line and regional railroads typically operate with scheduled service employees and have not seen fatigue-related safety issues. During our August 24, 2018, meeting, the ASLRRA said that many short line railroads do not have, and do not see the need for, fatigue management plans or sleep-disorder screening and treatment programs. We point out, however, that sleep disorders affect the ability of anyone in a safety-sensitive position to perform the job safely. Although short line and regional railroads operate with scheduled service employees and may not be subject to other human fatigue issues, sleep disorders affect a person’s ability to perform their job regardless of their schedule or circadian disruption issues. We were pleased to learn during our meeting that some short line and regional railroads have fatigue programs that include sleep-disorder screening and treatment. We suggested that a possible alternate response to Safety Recommendation R-14-71 would be to collect information from the sleep-disorder screening and treatment programs used by some short line and regional railroads and distribute it to other recipients of this recommendation. We reviewed the frequently-asked-questions (FAQs) section of an ASLRRA member’s obstructive sleep apnea (OSA) program that Ms. Strang included with her letter. The following are several FAQs relevant to Safety Recommendation R 14 71, which are found on page 3 of this document: What happens if I am diagnosed with OSA? • Once diagnosed and treatment has begun, the employee has up to 60 days to work with the Sleep Specialist and the railroad’s medical service to come into compliance with a prescribed treatment plan. • As long as the employee is working cooperatively with the sleep specialist and the railroad’s medical service, and no other medical risk factors are involved, the employee will continue to work during that time. How will the screening, any diagnostic testing, and treatment for OSA be paid for? Employees are not charged for the cost of the screening, any diagnostic testing or the procurement and support for the performance of positive airway pressure (PAP) therapy. The railroad procures the PAP device, provides the initial year of PAP supplies and needed professional medical services and support. The railroad pays for periodic resupplies for the PAP device as long as the affected individual remains an employee of the railroad and complies with the program requirements. Will the employee be held out of service if they have OSA? The intent of the program is to keep employees working. These FAQs address employee concerns and form the basis for an alternate response that satisfies the recommendation. We believe it would be beneficial for you to share this information with other ASLRRA members. To satisfy the intent of Safety Recommendation R-14-71, please distribute this information to the recommendation’s other recipients and ask if they believe the program adequately addresses all legitimate employee concerns about the possible negative consequences of a sleep-disorder screening and treatment program. Pending that distribution, and appropriate action in response to any comments you receive, Safety Recommendation R-14-71 is classified OPEN--ACCEPTABLE ALTERNATE RESPONSE.

From: American Short Line and Regional Railroad Association
To: NTSB
Date: 9/21/2018
Response: -From Jo Strang, Senior Vice President, Safety and Regulatory Policy: I would like to thank you for the opportunity to address the NTSB’s concerns with railroad safety recommendations R-11-9, R-14-24, R-14-25, R-14-52, R-14-71, which are currently classified “Open – Await Response.” The American Short Line and Regional Railroad Association (ASLRRA) is a non-profit trade association representing the interests of approximately 450 short line and regional railroad members and railroad supply company members in legislative and regulatory matters. Short lines operate 50,000 miles of track in 49 states, touching in origination or termination one out of every four cars moving on the national railroad system, servicing customers who otherwise would be cut off from the national rail network. ASLRRA staff met with NTSB representatives on August 24, 2018 to resolve the open recommendations. It was decided that R-14-24 and R-14-25 are not within the scope of operations of the short line industry. The ASLRRA does not conduct compulsory audits of our members. We provide safety assessments upon request due to our limited staffing and resources. As a small non-profit organization, the ASLRRA looks to Federal Railroad Administration (FRA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) to draft analytical risk models. PHMSA has acted to address the concerns within these two safety recommendations. As a result, NTSB representatives have agreed to issue a letter to close out those two recommendations. Recommendation R-11-9 was addressed by ASLRRA on October 30, 2014, when our membership was informed about the effectiveness of restricted speed and compliance programs in our newsletter. The association does not engage in any kind of involuntary examination of member railroads. We have agreed to provide our membership with additional education on this topic through a webinar. Safety Recommendation R-14-52 was addressed by the Federal Railroad Administration (FRA) in 49 CFR Part 234 Subpart F. ASLRRA communicated the safety recommendation information and the FRA update to the CFR in late 2014. We conducted a webinar on 49 CFR Part 234 Subpart F on September 21, 2017. An on-demand archive version of the webinar is currently available in the members only area of the ASLRRA website. The association has since upgraded our communication system and do not have access to the original emails and newsletters from 2014. We have listed the safety recommendation and linked to the proper CFR discussing grade crossing safety on the member resources page on our website. Recommendation R-14-71 references developing a model national labor agreement supporting programs addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel ASLRRA membership are primarily non-union operations. ASLRRA does not have authority from our members to negotiation labor agreements. We recommend that the word “national” be removed from the safety recommendation in order to remedy any confusion with our industry’s involvement with union labor. Short line and regional railroads typically operate with scheduled service employees and have not seen fatigue related safety issued. Some of our larger railroad members have been proactive in creating their own obstructive sleep apnea (OSA) programs. The appendix attached to this letter contains a redacted overview of a member railroad’s OSA program and a Q&A document that has been distributed to their employees. These programs require the collection of private medical information, which each railroad will need to address based on the needs of their own employees. While screening for OSA and other health issues is an important aspect of railroad safety culture, as stated above, most short line and regional railroads have different operating conditions than with Class 1 or commuter operations with fatigue management programs due to the limited operating schedule. Thank you again for following up with ASLRRA on these important matters. Please reach out again if there are any remaining concerns with the railroad safety recommendations.

From: NTSB
To: American Short Line and Regional Railroad Association
Date: 7/20/2018
Response: In the 3½ years since these recommendations were issued, you have not sent us any information on actions that you have completed or are taking to satisfy them. They are each currently classified OPEN--AWAIT RESPONSE. We are interested in knowing whether and how our recommendations are implemented, both to ensure that the traveling public is provided the highest level of safety and to identify creative solutions that might be shared with others. We normally expect actions to address our recommendations to be completed within 3 to 5 years. Please update us at correspondence@ntsb.gov regarding your actions to address Safety Recommendations R-11-9, R-14-24 and -25, R-14-52, and R-14-71, and do not submit both an electronic and a hard copy of the same response.

From: NTSB
To: American Short Line and Regional Railroad Association
Date: 11/24/2014
Response: The National Transportation Safety Board (NTSB) is an independent federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in other modes of transportation—railroad, highway, marine, and pipeline. We determine the probable cause of the accidents and issue safety recommendations aimed at preventing future accidents. In addition, we carry out special studies concerning transportation safety and coordinate the resources of the federal government and other organizations to provide assistance to victims and their family members affected by major transportation disasters. We are providing the following information to urge the American Short Line and Regional Railroad Association to take action on the safety recommendation being issued in this letter. On November 19, 2014,we adopted our report Organizational Factors in Metro-North Railroad Accidents in which the results of five investigations involving Metro-North Railroad were discussed. The accidents examined included: (1) the May 17, 2013,derailment and subsequent collision in Bridgeport, Connecticut; (2) the May 28, 2013, employee fatality in West Haven, Connecticut;.(3) the July 18, 2013, CSX derailment on Metro-North tracks in The Bronx, New York; (4) the December 1, 2013, derailment in The Bronx, New York; and (5)the March 10, 2014, employee fatality in Manhattan, New York.1 Additional information about these accidents and the resulting recommendations may be found in the report of the investigation, which can be accessed at our website, http://www.ntsb.gov, under report number SIR-14/04. As a result of this investigation, we reiterated Safety RecommendationsR-12-16, R-13-21, and R-14-34; reclassified Safety Recommendations R-08-06, R-14-07, and R-14-23; and issued 17new recommendations, including eight to the Metro-North Railroad; one to the Long Island Railroad; three to the Metropolitan Transportation Authority; two to the Federal Railroad Administration; one to the American College of Physicians; one to the American Academy of Family Physicians; and the following recommendation to the Association of American Railroads, the American Public Transportation Association, the American Short Line and Regional Railroad Association, the Brotherhood of Locomotive Engineers, and the International Association of Sheet Metal, Air, Rail and Transportation Workers: R-14-71 Collaborate to develop a model national labor agreement that supports effective programs for addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel. Acting Chairman HART and Members SUMWALT, ROSEKIND, and WEENER concurred in this recommendation. The NTSB is vitally interested in this recommendation because it is designed to prevent accidents and save lives. We would appreciate receiving a response from you within 90days detailing the actions you have taken or intend to take to implement it. When replying, please refer to the safety recommendation by number. We encourage you to submit your response electronically to correspondence@ntsb.gov. If it exceeds 10megabytes, including attachments, please e-mail us at the same address for instructions. Please do not submit both an electronic copy and a hard copy of the same response.

From: NTSB
To: Brotherhood of Locomotive Engineers and Trainmen
Date: 10/16/2018
Response: You wrote to us about this recommendation on February 23, 2015, discussing your concerns about the general issue of fatigue within the railroad industry, not just issues related to sleep apnea. You also said at that time that you were open to developing a labor agreement to address the recommendation. You made your general chairmen aware of Safety Recommendation R-14-71, and you said you would provide them the resources and assistance necessary to pursue such agreements in their respective jurisdictions, should the railroads with which they bargain show an interest in addressing fatigue and sleep apnea. On August 20, 2015, we replied that we shared your concerns about this issue, and we recognized that addressing fatigue would be difficult, given the many aspects of doing so. Pending completion of actions to satisfy Safety Recommendation R-14-71, it was classified “Open—Acceptable Response.” We wish to clarify that the intent of Safety Recommendation R-14-71 is to develop a model agreement that addresses the issues that have motivated other labor unions, in some cases, to have strongly opposed programs by railroads to diagnose and treat sleep disorders in employees in safety sensitive positions. A model agreement developed to satisfy this recommendation could be used anywhere in the United States, but would not be limited to organizations subject to national agreements. It could be readily adopted by railroad transit organizations, short line and regional railroads, and railroads whose employees in safety-sensitive positions are not represented by a labor union. The issues concerning labor unions—such as ensuring that an employee will not be placed in a nonpay status while their potential sleep disorder and fitness for duty is evaluated—apply regardless of whether the railroad provides passenger or freight service, is a public transit or long haul operation, or is a national or regional operation. We note that the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) published an advanced notice of proposed rulemaking (ANPRM), “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea [OSA],” at 81 Federal Register 12642 on March 10, 2016. On August 8, 2017, the FMCSA and the FRA published a notice at Federal Register 37038 withdrawing the ANPRM because they believed that “current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” and they said they would not be pursuing any additional rulemaking. We do not agree with the FRA that current safety programs and FRA rulemaking are the appropriate avenues through which to address OSA. The issues that are the basis for organized labor’s opposition to OSA screening and treatment programs need to be addressed before these programs and rulemaking can be effective. In the 3½ years since your previous letter, we have not received any further information from you regarding your progress toward implementing this recommendation. Please update us on any activities you have initiated or completed since your previous letter. Safety Recommendation R 14 71 is currently classified OPEN--ACCEPTABLE RESPONSE.

From: NTSB
To: Brotherhood of Locomotive Engineers and Trainmen
Date: 8/20/2015
Response: We share your concerns about the issue of fatigue in the railroad industry, and recognize that addressing this issue will be difficult, given the many aspects of doing so, some of which you discuss in your letter. Addressing fatigue is one facet of advancing a culture of safety in the railroad industry, and we believe developing a national labor agreement that supports programs for addressing sleep disorders and other medical conditions will improve safety. We are well aware that no one recommendation can address the many factors involved in these complex issues; nevertheless, every action that leads toward the development of a safer industry helps. Our expectation in issuing Safety Recommendation R-14-71 was not that its implementation would, in and of itself, fully address the issue of fatigue among personnel holding safety sensitive positions in the railroad industry; nevertheless, it focuses on one aspect that may lead to fatigue—sleep disorders—as well as other medical conditions that can pose additional safety risks. We are encouraged that you are willing to address fatigue issues and that you support the development of a labor agreement that would satisfy our recommendation. We appreciate your dissemination of the recommendation to BLET’s General Chairmen in their respective jurisdictions, your offer of support to them, and your willingness to assist them in pursuing the recommended programs. Pending completion of the recommended action, Safety Recommendation R-14-71 is classified OPEN—ACCEPTABLE RESPONSE.

From: Brotherhood of Locomotive Engineers and Trainmen
To: NTSB
Date: 2/23/2015
Response: -From Dennis R. Pierce, National President: Your letter also requested that we respond within ninety (90) days detailing the actions we have taken or intend to take to implement it. As you know, collective bargaining agreements in the railroad industry are negotiated under the terms and conditions of the Railway Labor Act at both the national and the local level. BLET has long been an advocate for voluntary collective bargaining agreement solutions to the issues that confront the railroad industry. Although BLET is also willing to seek collectively bargained solutions in response to your recommendation, I must note that history clearly shows that only those issues that both the unions and the railroads show an interest in bargaining over result in voluntary labor agreements. I must also add that truly addressing fatigue in the railroad industry will take much more than a labor agreement that addresses sleep disorders or medical conditions. The vast majority of the locomotive engineers who are governed by national agreements work in "unassigned" freight service. This type of service generally has no set on-duty times, but instead requires engineers and conductors to be "on call," thus requiring them to report for duty for up to twelve hours of covered service with as little as an hour and a halfs notice. The only hope that an engineer so assigned has to obtain proper rest is built on their Carrier's willingness to provide meaningful and accurate train lineups, which are at best only predictions as to when they will be called. The result is that time and time again, engineers are called at all hours of the day without sufficient notice to allow them to obtain proper rest prior to reporting for work, all by no fault of their own. I share this just to make clear that a labor agreement addressing sleep apnea, for example, will hardly address fatigue if an engineer so diagnosed has no predictability as to when he should don a CP AP machine to obtain better rest. Further, NTSB's own reports have shown that these variable work schedules result in unpredictable and inconsistent patterns of awake and asleep time, which are well-known to be disruptive to normal human circadian rhythms. NTSB has also found that "fatigue induced performance degradation" all too often contributes to or directly causes catastrophic accidents. (See RAR1402) It is clear to me that there is more to addressing the fatigue that plagues the railroad industry than just addressing sleep disorders. Perhaps even more disturbing is that many Class 1 Carriers do not allow locomotive engineers and conductors who are caught without proper rest due to a bad lineup to refuse that call, or "lay off' for that trip, due to being fatigued. Instead, fatigued engineers and conductors are routinely threatened with violations of their Carrier's attendance policies and disciplinary actions, if they lay off fatigued. These Carrier actions and policies all but force engineers and conductors to work fatigued, risking their safety and that of the general public, under threat of losing their employment. These actions by the Carriers should concern all who have a true interest in railroad safety. Nevertheless, and as I have stated, the BLET National Division is open to development of a labor agreement to address NTSB's recommendation. However it is critical that NTSB is aware of the broader ramifications of fatigue in the industry and what it will take to actually make meaningful improvements. To that end, the BLET National Division has made BLET's General Chairmen aware of Safety Recommendation R-14-71, and will make available to them the resources and assistance necessary for them to pursue such agreements in their respective jurisdictions should the railroads with which they bargain evince an interest in addressing the subject at that level.

From: NTSB
To: Sheet Metal, Air, Rail and Transportation (formerly United Transportation Union)
Date: 10/16/2018
Response: When we issued Safety Recommendation R-14-71, we pointed out that we had previously issued Safety Recommendation R-12-26 to the BNSF Railroad asking BNSF to medically screen employees in safety sensitive positions for obstructive sleep apnea (OSA) and other sleep disorders. In its August 23, 2012, initial response, BNSF wrote the following: Previous attempts by BNSF to require additional medical information about certain safety related medical conditions, specifically including attempts to obtain medical information on sleep apnea, met with stiff resistance from our labor organizations who alleged that these attempts to obtain medical information were in violation of various federal and state laws. Indeed, 10 unions filed charges with the Equal Employment Opportunity Commission alleging that the BNSF requirement violated the federal Americans with Disabilities Act. Those charges remain pending. Simply stated, until there are some federal standards on medical qualification for such conditions as sleep apnea, other sleep disorders or, medical conditions that affect an employee’s ability to work safely, it will be difficult to obtain and use such information without facing a variety of legal challenges. BNSF believes such information may be lawfully used to improve safety without violating employee rights and is an active participant in FRA’s Medical Standards Railroad Safety Advisory Council (RSAC) where this issue has been discussed. We issued Safety Recommendation R-14-71 because we were concerned that the Federal Railroad Administration (FRA) was not making progress promulgating regulations requiring screening for OSA and other sleep disorders. We were equally concerned that some railroads, like BNSF, believed they were unable to adequately address the issue without an FRA regulation. In our report on the five Metro-North Railroad accidents that resulted in this recommendation, we concluded that, without evaluating employees in safety sensitive positions for sleep disorders or other medical conditions, railroad employees, passengers, and the general public would remain at increased risk, and we pointed out that the FRA had not adequately addressed the issue. We envisioned that a model agreement, developed jointly by operators (as represented by AAR, ASLRRA, and APTA) and labor unions (represented by BLET and SMART), could address labor unions’ concerns about obtaining the needed information. We continue to be concerned about the safety problem associated with undiagnosed and inadequately treated sleep disorders in employees in safety-sensitive positions. In the 3½ years since Safety Recommendation R-14-71 was issued, we have completed three major railroad accident investigations in which undiagnosed or inadequately treated OSA was cited as the probable cause or as a contributing factor. Neither Mr. Gibson’s nor Mr. Bates’s e-mails described any activities that you have started, completed, or plan to take to develop the model labor agreement. Please describe what actions you are taking to satisfy Safety Recommendation R 14 71, which remains classified OPEN--AWAIT RESPONSE.

From: NTSB
To: Sheet Metal, Air, Rail and Transportation (formerly United Transportation Union)
Date: 11/24/2014
Response: The National Transportation Safety Board (NTSB) is an independent federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in other modes of transportation—railroad, highway, marine, and pipeline. We determine the probable cause of the accidents and issue safety recommendations aimed at preventing future accidents. In addition, we carry out special studies concerning transportation safety and coordinate the resources of the federal government and other organizations to provide assistance to victims and their family members affected by major transportation disasters. We are providing the following information to urge the International Association of Sheet Metal, Air, Rail and Transportation Workers to take action on the safety recommendation being issued in this letter. On November 19, 2014,we adopted our report Organizational Factors in Metro-North Railroad Accidents in which the results of five investigations involving Metro-North Railroad were discussed. The accidents examined included: (1) the May 17, 2013,derailment and subsequent collision in Bridgeport, Connecticut; (2) the May 28, 2013, employee fatality in West Haven, Connecticut;.(3) the July 18, 2013, CSX derailment on Metro-North tracks in The Bronx, New York; (4) the December 1, 2013, derailment in The Bronx, New York; and (5)the March 10, 2014, employee fatality in Manhattan, New York.1 Additional information about these accidents and the resulting recommendations may be found in the report of the investigation, which can be accessed at our website, http://www.ntsb.gov,under report number SIR-14/04. As a result of this investigation, we reiterated Safety RecommendationsR-12-16, R-13-21, and R-14-34; reclassified Safety Recommendations R-08-06, R-14-07, and R-14-23; and issued 17new recommendations, including eight to the Metro-North Railroad; one to the Long Island Railroad; three to the Metropolitan Transportation Authority; two to the Federal Railroad Administration; one to the American College of Physicians; one to the American Academy of Family Physicians; and the following recommendation to the Association of American Railroads, the American Public Transportation Association, the American Short Line and Regional Railroad Association, the Brotherhood of Locomotive Engineers, and the International Association of Sheet Metal, Air, Rail and Transportation Workers: R-14-71 Collaborate to develop a model national labor agreement that supports effective programs for addressing sleep disorders and other medical conditions among safety-sensitive train operating personnel. Acting Chairman HART and Members SUMWALT, ROSEKIND, and WEENER concurred in this recommendation. The NTSB is vitally interested in this recommendation because it is designed to prevent accidents and save lives. We would appreciate receiving a response from you within 90days detailing the actions you have taken or intend to take to implement it. When replying, please refer to the safety recommendation by number. We encourage you to submit your response electronically to correspondence@ntsb.gov. If it exceeds 10megabytes, including attachments, please e-mail us at the same address for instructions. Please do not submit both an electronic copy and a hard copy of the same response.