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Safety Recommendation R-10-001
Details
Synopsis: About 4:22 p.m., Pacific daylight time, on Friday, September 12, 2008, westbound Southern California Regional Rail Authority (SCRRA) Metrolink train 111, consisting of one locomotive and three passenger cars, collided head on with eastbound Union Pacific Railroad (UP) freight train LOF6512 (Leesdale Local) near Chatsworth, California. The Metrolink train derailed its locomotive and lead passenger car; the UP train derailed its 2 locomotives and 10 of its 17 cars. The force of the collision caused the locomotive of train 111 to telescope into the lead passenger coach by about 52 feet. The accident resulted in 25 fatalities, including the engineer of train 111. Emergency response agencies reported transporting 102 injured passengers to local hospitals. Damages were estimated to be in excess of $12 million.
Recommendation: TO THE FEDERAL RAILROAD ADMINISTRATION: Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs.
Original recommendation transmittal letter: PDF
Overall Status: Open - Acceptable Response
Mode: Railroad
Location: Chatsworth, CA, United States
Is Reiterated: Yes
Is Hazmat: No
Is NPRM: No
Accident #: DCA08MR009
Accident Reports: Collision of Metrolink Train 111 with Union Pacific Train LOF65-12
Report #: RAR-10-01
Accident Date: 9/12/2008
Issue Date: 2/23/2010
Date Closed:
Addressee(s) and Addressee Status: FRA (Open - Acceptable Response)
Keyword(s): Recorders

Safety Recommendation History
From: NTSB
To: FRA
Date: 9/16/2019
Response: The National Transportation Safety Board (NTSB) has reviewed the Federal Railroad Administration’s (FRA) notice of proposed rulemaking (NPRM) titled “Locomotive Image and Audio Recording Devices for Passenger Trains,” which was published at 84 Federal Register 35712 on July 24, 2019. The NTSB notes the FRA is (1) proposing to require the installation of inward- and outward-facing locomotive image recording devices on all lead locomotives in passenger trains and (2) addressing the use of the recordings to conduct operational tests. To the extent applicable, the NTSB is pleased that the NPRM is partially responsive to our recommendations. However, for the reasons provided in this response, we are disappointed that these long awaited proposed requirements do not include audio recordings and do not apply to freight railroads—two critical factors identified in numerous accident investigations that have prompted our existing safety recommendations. The NTSB provides comments on the following: whether to require both passenger and freight railroads to install image recording devices and whether audio recording should be included, the extent to which the proposed requirements should apply to recording devices that are voluntarily installed, whether a specific run-time or shutoff requirement should be included for recording devices, whether additional equipment is needed to address high levels of background noise inside locomotive cabs, recorder technical and crashworthiness issues, whether the recorders should only operate when a train is in motion, the appropriateness of proposed implementation dates, and whether the final rule should include a prohibition on public disclosure of any audio or video recording. Background The NTSB has determined that dozens of previous railroad accident investigations would have benefitted from inward- and outward-facing audio and image recorders. In a number of those accidents, the operator died, was seriously injured, or could not recall details from moments before the accident. However, even in the accidents in which the operator was not injured, audio and image recorders could have verified what the operator saw and heard, as well as what actions the operator took during the accident sequence. Such recorded information allows the NTSB to identify critical safety improvements and issue recommendations to prevent similar accident circumstances from reoccurring. Recorders also definitively document relevant information that regulatory agencies, such as the FRA, often state they require to help justify the costs of implementing safety improvements. This NPRM was prompted in part by NTSB Safety Recommendations R-97-9, R-07-3, R 10-1 and -2, and reiterations of these recommendations following several other investigations involving both passenger and freight railroads. The currently applicable recommendations issued to the FRA are— R-10-1 Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. R-10-2 Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. Safety Recommendations R-10-1 and -2 are classified “Open—Acceptable Response.” The FRA requested comments addressing the benefits of both inward- and outward-facing image and audio recording. These types of recording devices have been extremely beneficial in many accident investigations, including the January 4, 2017, collision of two Southeastern Pennsylvania Transportation Authority trolleys in Philadelphia, Pennsylvania, and the April 3, 2016, Amtrak (National Railroad Passenger Corporation) accident in Chester, Pennsylvania. In both of those investigations, the NTSB used the inward- and outward-facing audio and image recorders to corroborate the statements made by the operating crews and to gather additional visual information about track conditions and the accident sequences. More recently, the January 31, 2018, collision between an Amtrak passenger train and a refuse truck at an active grade crossing in Crozet, Virginia, demonstrated the benefit of outward facing image and audio recording. In that accident, the locomotive’s outward-facing image and audio recorder captured the position of the refuse truck, the weather, and the visibility conditions on the train tracks. The recorder showed that the truck was not moving in the moments before the accident; it also captured the sound of the locomotive’s horn as it approached each grade crossing leading up to the accident site. The NTSB also highlighted the benefits of inward- and outward-facing audio and image recorders in its report on the Amtrak passenger train 501 derailment in DuPont, Washington, on December 18, 2017. In that accident, the locomotive was equipped with an inward-facing image recorder that provided both a visual and audio recording of the crewmember activities during the accident trip. The device was voluntarily installed, and the recorded information proved extremely useful in the NTSB investigation. The following are important discoveries from the DuPont accident investigation that would have been impossible to determine without the inward- and outward-facing image and audio recorder data: • It was clear that neither crewmember was using a personal electronic device in the time leading up to the accident; as a result, there was no need to expend time and resources to acquire records or attempt to extract data from crewmembers’ electronic devices. • The brief conversations between the engineer and the conductor during the trip did not distract them from their operational duties or hamper their ability to identify wayside signs. • The qualification program for the Point Defiance Bypass, where the accident occurred, did not effectively train and test qualifying crewmembers on the physical characteristics of a new territory. • The engineer’s unfamiliarity with, and fixation on, the audible and visual alerts associated with the overspeed alarm reduced his vigilance of events outside the locomotive moments before the accident. In our 2019 DuPont accident report, the NTSB concluded that “the FRA has demonstrated an unwillingness to implement the recommendations and regulation that would require inward facing video and audio devices that are critical to accident investigations and improving safety on our nation’s railroads.” We further concluded that “inward-facing recorders with both image and audio capabilities can increase the understanding of the circumstances of an accident, and, ultimately, provide greater precision in safety recommendations and subsequent safety improvements.” Consequently, we issued the following recommendation to the Secretary of Transportation on June 21, 2019: R-19-7 Require the Federal Railroad Administration to issue regulations for inward-facing recorders that include image and audio recordings as recommended by the National Transportation Safety Board in R-10-1 and R-10-2. Safety Recommendation R-19-7 is classified “Open—Await Response.”

From: FRA
To: NTSB
Date: 5/17/2018
Response: -From Karl Alexy, Deputy Associate Administrator for Railroad Safety: Thank you for the railroad accident brief Southwestern Railroad Collision, which was sent to the Federal Railroad Administration (FRA) on April 26, 2018. In the "Recommendations" section of the report, NTSB issued Safety Recommendation R-18-10 to FRA, and reiterated Safety Recommendations R-10-01, R-10-02, and R-12-27. Improving safety is FRA's top priority, and FRA will continue to work to make rail shipments as safe as possible. FRA is committed to working with NTSB to prevent future accidents and save lives. FRA welcomes and will consider all recommendations that will further that goal.

From: NTSB
To: FRA
Date: 4/26/2018
Response: From the NTSB Railroad Accident Brief “Southeastern Railroad Collision Roswell, New Mexico, April 28, 2015.” Report number RAB-18-04. Adopted on April 10, 2018 and published on April 26, 2018. This accident, in which 25 people were killed and 102 people were injured, underscored the importance of understanding the activities of crewmembers in the time leading up to the accident.9 As a result of that investigation, the NTSB made the following safety recommendations to the FRA: Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. (R-10-1) Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. (R-10-2) The NTSB reiterated these recommendations following the May 12, 2015, derailment of a National Railroad Passenger Corporation (Amtrak) passenger train in Philadelphia, Pennsylvania, in which 8 passengers died and over 200 passengers were injured.10 At the time, the FRA said that it had begun the process of issuing a notice of proposed rulemaking mandating the installation of inward- and outward-facing recording devices in the controlling locomotive cab and cab car operating compartments. As a result of FRA’s response, the NTSB classified Safety Recommendations R-10-1 and R-10-2 Open—Acceptable Response. The NTSB believes that inward- and outward-facing audio and image recorders improve the quality of accident investigations and provide the opportunity for proactive steps by railroad management and the FRA to improve operational safety. Therefore, the NTSB reiterates Safety Recommendation R-10-1 and Safety Recommendation R-10-2 to the FRA.

From: NTSB
To: FRA
Date: 9/29/2015
Response: Although it has been 5 years since this recommendation was issued, we are encouraged that you plan to issue a notice of proposed rulemaking (NPRM) mandating the installation of inward- and outward-facing recording devices in the controlling locomotive cab and cab car operating compartments. However, we noticed in our review of the minutes of the 53rd Meeting of the RSAC group that one of the issues on which the group could not agree was mandating audio as well as image recording. We emphasize that, in order for the FRA to satisfy Safety Recommendation R-10-1, your rulemaking will need to include both types of recording for both inward- and outward-facing recorders. We encourage you to move forward with the rulemaking process without further delay. Pending your timely completion of rulemaking as recommended, Safety Recommendation R 10 1 is classified OPEN—ACCEPTABLE RESPONSE.

From: FRA
To: NTSB
Date: 7/28/2015
Response: -From Sarah Feinberg, Acting Administrator: The FRA has begun a rulemaking proceeding to mandate installation of locomotive video cameras. Previously, FRA established a Railroad Safety Advisory Committee (RSAC) recording devices working group to address this issue, but no consensus on the topic was reached. The FRA announced at the RSAC meeting on May 28, 2015, that in the absence of RSAC consensus recommendations, FRA was proceeding with a Notice of Proposed Rulemaking (NPRM) addressing mandatory installation of locomotive recording devices. The FRA plans to publish the NPRM in 2016.

From: NTSB
To: FRA
Date: 7/8/2015
Response: Safety Recommendation R-10-001 was reiterated in the issuance letter issuing Safety Recommendations R-15-028 through -030 dated July 8, 2015. Based on the investigation of the May 12, 2015 derailment of the National Railroad Passenger Corporation (Amtrak) passenger train 188.

From: NTSB
To: FRA
Date: 3/17/2015
Response: We are encouraged to learn that you held three Railroad Safety Advisory Committee (RSAC) Recording Devices Working Group meetings to discuss inward- and outward-facing recording devices in controlling locomotives and that, on December 9, 2014, you advised the RSAC that you intend to initiate rulemaking for the installation of inward- and outward-facing image recorders. We recognize that many issues still need to be resolved, including potential crashworthiness requirements, chain-of-custody requirements, and data control and handling requirements, but that you are exploring potential regulation text governing the performance of operational tests via the use of locomotive video recordings. We understand that you planned to initiate rulemaking to mandate installation of locomotive video cameras at the conclusion of the working group session in early 2015. We point out that, to satisfy both recommendations, such devices must record both audio and video. Pending completion of the recommended actions, Safety Recommendations R-10-1 and -2 are classified OPEN—ACCEPTABLE RESPONSE.

From: FRA
To: NTSB
Date: 12/18/2014
Response: -From Joseph C. Szabo, Administrator: FRA has held three Railroad Safety Advisory Committee (RSAC) Recording Devices Working Group (Working Group) meetings to discuss with all industry stakeholders the installation and use of inward- and outward-facing recording devices in controlling locomotives. RSAC Working Group meeting was held on December 9, 2014. FRA has advised the RSAC Working Group that FRA intends to mandate via rulemaking the installation of inward- and outward facing image video recording devices. Currently, the main topics of discussion are in regard to the technical details concerning the recording devices (including potential crashworthiness requirements), chain-of-custody requirement, and data control and handling requirements. The Working Group has not yet achieved consensus on any of the issues related to the installation and use of recording devices to date. FRA is also exploring with the Working Group potential regulation text governing the performance of operational tests via the use of locomotive video recordings. FRA intends to undertake a rulemaking proceeding to mandate installation of locomotive video cameras at the conclusion of the Working Group's work in early 2015.

From: NTSB
To: FRA
Date: 12/8/2014
Response: R-10-001 was reiterated in the report Collision of Union Pacific Railroad Freight Train with BNSF Railway Freight Train near Chaffee, Missouri on May 25, 2013. RAR-14-02, adopted November 17, 2014, notation 8507A, published December 8, 2014. Additionally, although the RSAC recently undertook Task No. 14-01, the NTSB remains concerned that FRA’s delayed action on Safety Recommendations R-10-1 and -2 leaves many safety lessons unlearned and further delays improvements for the safety of railroad operations. 37 The NTSB recognizes that opportunities to understand and improve railroad safety have been missed because vital information on crew activities is not yet available, and the missed opportunities are not infrequent. Therefore, the NTSB reiterates Safety Recommendations R-10-1 and -2 to the FRA.

From: NTSB
To: FRA
Date: 2/24/2014
Response: We reiterated these recommendations because, more than 6 years after the deadliest passenger train accident in decades, the FRA still had not acted to protect railroad employees and the public, as recommended. Railroad accident investigations conducted since the issuance of Safety Recommendations R-10-1 and -2 consistently indicate that in-cab audio and video recorders could provide critical information about crew performance and the locomotive cab environment. The Goodwell accident reemphasizes investigators’ need for in-cab audio and video data that are sufficiently protected from fire and crash damage. We understand that you will address Safety Recommendations R-10-1 and -2 in a separate letter. Pending that update, these recommendations remain classified OPEN—UNACCEPTABLE RESPONSE.

From: NTSB
To: FRA
Date: 8/14/2013
Response: From the report of the Head-On Collision of Two Union Pacific Freight Trains Near Goodwell, Oklahoma, June 24, 2012, adopted June 18, 2013, RAR-13-02, issued August 14, 2013: Since the late 1990s, the NTSB has recommended that the FRA require audio recorders inside locomotive cabs so that accident investigators can understand the actions of crewmembers just before an accident. As a result of the investigation of the collision between a Maryland Rail Commuter train and an Amtrak train near Silver Spring, Maryland, on February 16, 1996 (NTSB 1997a), in which no operating crewmembers survived, the NTSB was unable to determine whether crewmember activities leading up to the accident contributed to the accident. Consequently, the NTSB made the following safety recommendation to the FRA: Amend 49 Code of Federal Regulations Part 229 to require the recording of train crewmembers’ voice communications for exclusive use in accident investigations and with appropriate limitations on the public release of such recordings. (R-97-9) After the NTSB’s investigation of a Bryan, Ohio, railroad accident that occurred in 1999 (NTSB 2001), with no surviving crewmembers, the NTSB reiterated this safety recommendation. The FRA responded that it … has reluctantly come to the conclusion that this recommendation should not be implemented at the present time. … [The] FRA appreciates that, as time passes and other uses are found for recording media that may create synergies with other public and private purposes, the [NTSB’s] recommendation may warrant re-examination. Based on this response and further meetings, the NTSB classified Safety Recommendation R-97-9 “Closed—Unacceptable Action.” Since the refusal by the FRA to act on the recommendation of in-cab recorders, the NTSB has continued to investigate accidents in which audio recorders, along with video recorders, would have provided valuable information to help determine probable cause and develop safety recommendations. These include the July 10, 2005, collision of two Canadian National Railroad (CN) freight trains in Anding, Mississippi (NTSB 2007), after which the NTSB made the following safety recommendation to the FRA: Require the installation of a crash- and fire-protected locomotive cab voice recorder, or a combined voice and video recorder, (for the exclusive use in accident investigations and with appropriate limitations on the public release of such recordings) in all controlling locomotive cabs and cab car operating compartments. The recorder should have a minimum 2-hour continuous recording capability, microphones capable of capturing crewmembers’ voices and sounds generated within the cab, and a channel to record all radio conversations to and from crewmembers. (R-07-3) The NTSB has found that in many accidents, the individuals involved either have limited recollection of events or, as at Goodwell, were killed in the accident. In the September 12, 2008, railroad accident in Chatsworth, California (NTSB 2010), a westbound Southern California Regional Rail Authority Metrolink train collided head-on with an eastbound UP freight train, resulting in 25 fatalities, including the engineer of the Metrolink train, and 101 injuries. For many accidents the NTSB has investigated, a better knowledge of crewmembers’ actions before the accident would have helped reveal key causal factors and facilitated the development of more effective safety recommendations. In the Goodwell accident, video could have shed light on the activities of the crew of the eastbound train leading up to the collision and why the crew did not respond to wayside signals. The NTSB believes that the only reasonable and reliable mechanism for making such observations is an in-cab audio and image recorder that would capture crewmembers’ activities while in the train operating compartment. As a result of the investigation of the Chatsworth accident, the NTSB made two safety recommendations to the FRA: Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. (R-10-1) The NTSB reclassified Safety Recommendation R-07-3 “Closed—Unacceptable Action/Superseded” when it issued Safety Recommendation R-10-1 to the FRA. The NTSB also issued the following safety recommendation to the FRA: Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. (R-10-2) The FRA has acknowledged the value of using audio and imaging technology in locomotives and cab cars; however, it has not taken action to implement the safety recommendations. Until the FRA requires that locomotives and cab cars operated under 49 CFR Part 229 be equipped with crash- and fire-protected inward-facing audio and image recorders, Safety Recommendations R-10-1 and -2 are classified “Open—Unacceptable Response.” The NTSB is concerned that the lack of action by the FRA leaves many safety lessons unlearned and thereby unnecessarily delays improvements in the safe operation of railroads. Until the actions of crewmembers during train operations can be meaningfully monitored, the NTSB recognizes that opportunities will be missed to understand and improve safety after some accidents, and the missed opportunities are not infrequent, as discussed below. The rear-end collision of two BNSF trains near Red Oak, Iowa, on April 17, 2011, again demonstrated the need for in-cab recording devices to better understand (and thereby help to prevent) serious railroad accidents that claim the lives of crewmembers, passengers, and the public. In the report on this accident, the NTSB stated that “while video recorders will assist in the investigation of accidents, their value in preventing accidents cannot be overstated” (NTSB 2012) and added that the installation of inward-facing cameras could also assist railroads in monitoring rules compliance and identifying fatigued engineers, which could lead to interventions that could prevent accidents. During the Red Oak accident investigation, NTSB investigators determined, based on medical records, work-rest histories, and event recorder data from the lead locomotive, that the crewmembers of the striking coal train had fallen asleep just before the collision. However, without visual evidence of the crewmembers’ actions during the trip, additional information about the crewmembers’ performance was not available for investigators. In that accident, the NTSB concluded that “had an inward-facing video and audio recorder been installed in the cab of the locomotive of the striking train, additional valuable information about the train crew’s actions before the collision would have been available” (NTSB 2012). Also, in its report on the May 24, 2011, collision of two CSX trains in Mineral Springs, North Carolina (NTSB 2013a), the NTSB stated it was unable to determine why the crew of the striking train failed to comply with a wayside signal, because the crewmembers had been killed and the cab was not equipped with either an inward-facing camera or an audio recorder. The NTSB cannot develop effective recommendations to improve safety when critical elements of information are unavailable to the investigation. In its recent report on the September 30, 2010, collision of two CN trains in Two Harbors, Minnesota, the NTSB noted that appropriate action had not been taken in response to Safety Recommendations R-10-1 and -2 (NTSB 2013b). In the investigation, investigators found that crewmembers of both trains had used cell phones in moving locomotives—a violation of railroad rules and FRA regulations. Moreover, the NTSB urged the FRA to “promptly initiate rulemaking activity for the audio and imaging requirements outlined in Safety Recommendations R-10-1 and -2” (NTSB 2013b) and reiterated these two safety recommendations, noting that FRA action on the recommendations would require locomotive manufacturers to implement important safety improvements. In the Two Harbors, Minnesota, accident report, the NTSB reiterated Safety Recommendations R-10-1 and -2, stating the following: The NTSB is disappointed that more than four years after the deadliest passenger train accident in decades, the FRA has not acted on two recommendations that would protect railroad employees, as well as the public. (NTSB 2013b) The NTSB railroad accident investigations conducted since the issuance of Safety Recommendations R-10-1 and -2 consistently indicate that in-cab audio and video recorders could provide critical information for accident investigations about crew performance and the locomotive cab environment. The Goodwell accident demonstrates clearly that in-cab audio and video data, if sufficiently protected from fire and crash damage, could have provided information for understanding the actions of the crew of the eastbound train. Therefore, the NTSB reiterates Safety Recommendations R-10-1 and -2 to the FRA. In its most recent response to the NTSB about Safety Recommendations R-10-1 and -2, on July 31, 2012, the FRA stated that it recognizes the inherent safety value of in-cab cameras and voice recordings for use in accident investigations. However, the FRA also stated that it is aware of “significant privacy concerns” among railroad employees; more specifically, the FRA stated that it fears that implementing Safety Recommendations R-10-1 and -2 might erode railroad employee morale, because some employees suspect that inward-facing cameras and voice recordings might be used for selective enforcement and retaliation by railroad management. Although the importance of management-labor relations is understood, the NTSB has based the two safety recommendations on objective and recurring evidence of significant risks to the safety of railroad employees and the public. Moreover, these safety risks are recognized within the railroad industry itself. The NTSB is aware that the Kansas City Southern Railway Company (KCSR), a Class I freight railroad, expressed intent on April 24, 2013, to install inward-facing cameras into its U.S. locomotives to improve its operational safety by reducing and mitigating the risks of human performance errors in locomotive cabs during train movements. The KCSR has encountered resistance to implementing its plan from two railroad labor unions, the BLET and the UTU, in the U.S. District Court for the Western District of Louisiana, Shreveport Division (Civil Action No. 5:13-cv-838); the case has not yet been resolved. The NTSB is pleased by the proactive initiative of the KCSR to implement inward-facing cameras and recognizes that the inherent safety value of inward-facing cameras and audio recorders applies equally to other Class I freight railroads. Therefore, the NTSB recommends that all Class I railroads install in all controlling locomotive cabs and cab car operating compartments crash- and fire-protected inward- and outward-facing audio and image recorders. The devices should have a minimum 12-hour continuous recording capability.

From: FRA
To: NTSB
Date: 6/13/2013
Response: -From Joseph C. Szabo, Administrator: Thank you for your March 8, 2013, letter to the Federal Railroad Administration (FRA) concerning the National Transportation Safety Board (NTSB) Safety Recommendations R-13-05 through R-13-08, R-06-10, R-12-17, R-10-01, and R-10-02. These recommendations were issued (or, in the case of previously issued recommendations, reiterated) as a result ofthe report on the September 30,2010, accident, in which two Canadian National Railway (CN) freight trains collided near Two Harbors, Minnesota. The enclosure outlines FRA's response to each recommendation (except R-10-01 and R-1 0-02, which NTSB reclassified in its March 8, 2013, letter) and the safety systems and regulations in place to address them. Based upon the information provided below, FRA respectfully requests that NTSB classify Safety Recommendations R-13-05, R-13-06, and R-06-10 as "Closed-Reconsidered" and R-13-07 as "Closed-Acceptable Alternate Action." Additionally, FRA requests that NTSB classify Safety Recommendation R-13-08 as "OpenAcceptable Response" and R-12-17 remain "Open-Acceptable Response." We look forward to continuing to work with you to address these important rail safety matters.

From: NTSB
To: FRA
Date: 3/8/2013
Response: From the report Collision of Two Canadian National Railway Freight Trains near Two Harbors, Minnesota, September 30, 2010, adopted Feb. 12, 2013, issued on March 8, 2013: NTSB investigators obtained cell phone records for the five crewmembers involved in the accident. The records indicated that four of the five crewmembers had used their cell phones while on duty on the day of the accident. CN operating rules and FRA regulations prohibit the use of cell phones and other portable electronic devices (PED) while on duty when (1) the train is in motion or (2) when a crewmember is on the ground (off the locomotive). CN operating rules prohibit text messaging at any time when on duty. Figure 4 shows the cell phone usage for the southbound and northbound train crews; most of the unauthorized cell phone use involved text messaging or occurred while the trains were moving or while the southbound train conductor was on the ground. In addition, one 33-second call made by the northbound train engineer at 3:39 p.m. occurred while the train was moving and he was at the controls. The records indicate that the northbound train conductor did not engage in any cell phone activity. The NTSB concludes that the use of cell phones by crewmembers on the southbound train and by the engineer on the northbound train was a distraction to the safe operation of both trains and an indication of a clear disregard for CN rules and FRA regulations. The NTSB recognizes that PED usage is a significant factor underlying many forms of transportation accidents. Moreover, the NTSB has advocated for the prohibition of unauthorized use of PEDs in railroad operations. In its investigation of a May 28, 2002, collision of two BNSF freight trains near Clarendon, Texas,35 the NTSB determined the probable cause of the accident was, “the coal train engineer’s use of a cell phone during the time he should have been attending to the requirements of the track warrant for his train.” As a result of that investigation, the NTSB made the following safety recommendation to the FRA: Promulgate new or amended regulations that will control the use of cellular telephones and similar wireless communication devices by railroad operating employees while on duty so that such use does not affect operational safety. (R-03-1) Following the Chatsworth, California, collision, the FRA published Emergency Order 26 restricting PED use by on-duty operations personnel. As a result of this action, the NTSB classified Safety Recommendation R-03-1 “Closed?Acceptable Alternate Action.” During the investigation of the May 19, 2004, Gunter, Texas, collision, the NTSB noted that the engineer of the train that overran its authority had been on his cell phone at the time that the conductor had experienced difficulty in copying an earlier track authority. The Gunter, Texas, investigation found that rules did not deter “frequent use [of cell phones] by all crew members of the two accident trains while the trains were in motion.” On September 12, 2008, a westbound Southern California Regional Rail Authority Metrolink train collided head on with an eastbound UP Railroad freight train near Chatsworth, California.37 The accident resulted in 25 fatalities, including the engineer of the Metrolink train, and 102 injured passengers. The NTSB noted as part of the probable cause, the locomotive engineer “…was engaged in prohibited use of a wireless device, specifically text messaging that distracted him from his duties.” As a result of this investigation, the NTSB made two safety recommendations to the FRA: Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. (R-10-1) Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. (R-10-2) Both safety recommendations were originally classified “Open?Acceptable Response.” While the FRA has indicated that it is favorable to the concept of using audio and imaging technology in locomotives and cab cars, it has yet to directly address the implementation of these specific safety recommendations. Pending a concrete action by the FRA to require that all locomotives and cab cars operated under 49 CFR Part 229 be equipped with a crash- and fire-protected inward- and outward-facing audio and image recorders, Safety Recommendations R-10-1 and -2 are classified OPEN--UNACCEPTABLE RESPONSE. The NTSB urges the FRA to promptly initiate rulemaking activity for the audio and imaging requirements outlined in Safety Recommendations R-10-1 and -2 and reiterates these two recommendations. By taking action now on the NTSB cab audio and image recorder recommendations, the FRA will require locomotive manufacturers to implement important safety improvements. NTSB accident investigations conducted since the issuance of these recommendations further demonstrate how cab audio and image recorders can play a key role in identifying and deterring unsafe acts as well as by providing critical human performance and cab environment information for accident investigations that would otherwise be unavailable. The NTSB, therefore, encourages the FRA to move quickly to implement the NTSB’s audio and imaging recommendations. In its most recent response to the NTSB on July 31, 2012, the FRA advised that it recognized the value of cameras and voice recordings for accident investigations. It also indicated awareness of “significant privacy concerns” and the belief that implementing the recommendations would erode employee morale and might result in selective enforcement and retaliation. The NTSB is disappointed that more than four years after the deadliest passenger train accident in decades, the FRA has not acted on two recommendations that would protect railroad employees, as well as the public. Therefore, the NTSB reiterates Safety Recommendations R-10-1 and -2 to the FRA. Following the Chatsworth, California, accident and the many others preceding it that involved improper PED usage, the FRA issued Emergency Order 26 on October 7, 2008.38 In the findings supporting the issuance of the emergency order, the FRA highlighted the need to “eliminate this source of extremely dangerous distraction in the railroad operating environment.” FRA Emergency Order 2639 contained three major components and included the following requirements: (1) Each personal electronic or electrical device must be turned off with any earpieces removed from the ear while on a moving train, except that, when radio failure occurs, a wireless communication device may be used in accordance with railroad rules and instructions. (2) Each personal electronic or electrical device must be turned off with any earpieces removed from the ear when a duty requires any railroad operating employee to be on the ground or to ride rolling equipment during a switching operation and during any period when another employee of the railroad is assisting in preparation of the train (e.g., during an air brake test). (3) Use of a personal electronic or electrical device to perform any function other than voice communication while on duty is prohibited. In no instance may a personal electronic or electrical device interfere with the railroad operating employee’s performance of safety-related duties. On September 27, 2010, the FRA published a final rule codifying the requirements of Emergency Order 26, prohibiting the unauthorized use of cell phones and other electronic devices by on-duty railroad operating employees at 49 CFR Part 220 Subpart C. The final rule became effective on March 28, 2011. At the time of the accident, CN’s operating rules were consistent with the restrictions in Emergency Order 26, with the added restriction that text messaging was not permitted at any time. The CN rules on PED use that were in effect at the time of the accident are shown in appendix C. On May 8, 2009, Massachusetts Bay Transportation Authority Green Line Train 3612 struck the rear end of a standing train. Sixty-eight passengers and crewmembers were injured, and damages exceeded $9 million. The NTSB again found that PED usage was part of the probable cause, remarking that the train operator was “…engaged in [the] prohibited use of a wireless device, specifically text messaging that distracted him from his duties.”40 The circumstances of PED misuse in the Two Harbors accident, as well as the series of previous accidents discussed earlier in this report, highlight a persistent and pervasive safety hazard in the rail industry; that is, the unauthorized use of PEDs by on-duty crewmembers is too difficult to prevent by rules, policies, and punitive consequences. The use of PEDs has become, and likely will continue to be, engrained in our daily lifestyles. Consequently, procedural guidelines and enforcement offer little, if any, assurance that all on-duty train crewmembers will refrain from PED misuse. Therefore, additional measures that prevent unauthorized PED use by on-duty train crewmembers are needed. The NTSB concludes that additional measures to prevent unauthorized PED use by train crewmembers is necessary because of the continuing use of these devices by some railroad crewmembers, and the resulting risks to safety caused by distraction. Commercial technology to detect the presence of cell phone signals is available and suitable for use in locomotive cabs. This technology only detects the presence of electronic signals. It does not record the contents and destination of communications or infringe on personal privacy. This technology could be used to alert railroad management about the presence of an active cell phone or other PED producing a signal in a locomotive cab, allowing railroad management to intervene with the train crew in a timely manner. The NTSB concludes that electronic signal detection technologies in locomotive cabs would enhance safety by deterring inappropriate PED use without affecting crewmember privacy. Therefore, the NTSB recommends that the FRA identify, and require railroads to use in locomotive cabs, technology-based solutions that detect the presence of signal-emitting PEDs and that inform the railroad management about the detected devices in real time. There are also commercially available and relatively inexpensive handheld cell phone-signal detectors that can be used by railroad management and FRA inspectors to detect the presence of cell phones that are in use or turned on, which could potentially create an unsafe distraction. Such handheld detectors can be put into use quickly and have the advantage of detecting the unauthorized use of PEDs, both on trains in switching operations and at other railroad locations where unauthorized use presents a safety hazard. The NTSB concludes that handheld cell phone-signal detectors can serve as an effective tool for personnel performing inspections and test to deter the unauthorized use of PEDs by railroad personnel. Therefore, the NTSB recommends that the FRA incorporate the use of handheld signal detection devices to aid in the enforcement of 49 CFR Part 220 Subpart C.

From: NTSB
To: FRA
Date: 10/16/2012
Response: 10/16/2012: The NTSB points out that, although the FRA has stated that it supports audio and image cameras in principle, it has yet to initiate any regulatory action to address these issues. However, because the FRA is investigating the implementation of the recorders as requested, Safety Recommendations R-10-1 and -2 are classified OPEN—ACCEPTABLE RESPONSE. The NTSB would appreciate receiving details from the FRA regarding its plans for requiring audio and image recorders.

From: FRA
To: NTSB
Date: 8/23/2012
Response: NOT from the Federal Railroad Administration: -From Mark A. Schulze, Vice President, Training and Operations Support, BNSF Railway: Inward and Outward Facing Audio and Image Recorders After the September 12, 2008 collision in Chatsworth, California involving a Metrolink commuter train and a Union Pacific freight train, NTSB issued safety recommendations including R-l 0-1 and R-l 0-2. Safety Recommendation R-l 0-1 requires the installation, in all controlling locomotive cabs and cab car operating compartments, of crash-and fire-protected inward-and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum l2-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and system wide performance monitoring programs. Safety Recommendation R-l 0-2 requires that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. BNSF strongly supports the concept of cameras and similar devices that are intended to enhance rail safety. BNSF has already installed outward facing cameras with recording devices outside of the cab on many of its locomotives and continues a process of installing them on many of its remaining locomotives. BNSF continues to study the use of electronic monitoring and inward facing video as a safety enhancement. We would hope that our employees, other law enforcement entities and the courts would agree that such activities can improve safety without compromising employee rights.

From: FRA
To: NTSB
Date: 7/31/2012
Response: -From Joseph C. Szabo, Administrator: Thank you for your May 10, 2012, letter to the Federal Railroad Administration (FRA) concerning National Transportation Safety Board (NTSB) Safety Recommendations R-12-16 through -22, R-02-24 through -26, and R-10-01 and -02. These recommendations were issued as a result the April17, 2011, rear-end collision of eastbound BNSF Railway (BNSF) coal train C-BTMCNM0-26, BNSF 9159 East, into standing BNSF maintenance-of-way equipment train U-BRGCRI-15, BNSF 9470 East, near Red Oak, Iowa. FRA has enclosed its responses to the above-mentioned recommendations. The FRA respectfully requests that NTSB classify Safety Recommendations R -12-16 through -20 and -22 as "Open-Acceptable Response." Additionally, we request that NTSB classify Safety Recommendations R-12-21 as "Closed-Reconsidered," and R-02-24 as "Closed-Acceptable Alternative Action." Lastly, FRA requests Safety Recommendations R-02-25 and -26, and R-10-01 and -02, remain "Open-Acceptable Response." I appreciate your interest in this important transportation matter. We look forward to working with you. As stated in previous correspondence, FRA recognizes the value of voice and image recording for accident investigation purposes, and believes that the information gathered could also play a constructive role in a concerted risk reduction effort having the support of employee representatives and progressive carrier management. However, FRA is aware of the significant privacy concerns implicated by this recommendation, and believes that the use of voice and image recording for railroad disciplinary purposes would erode morale and offer manifold opportunities for selective enforcement and possible retaliation against employees for reasons not related to safety. FRA is exploring options that will seek to affirm NTSB’s interest in accident investigation and prevention, while avoiding unwarranted publication of private conversations and guarding against further erosion of working relationships among employees and their supervisors and managers. For example, FRA has formed an RSAC working group to develop strategies and programs that prevent unauthorized use of electronic devices (cell phones, pagers, etc.) during safety-critical rail operations. This committee includes representatives from the Federal Government (FRA), industry (the Association of American Railroads, the American Short Line and Regional Railroad Association, the American Public Transportation Association), and labor (the Brotherhood of Locomotive Engineers and Trainmen, the United Transportation Union, the Brotherhood of Railroad Signalmen). Additionally, FRA is in the process of developing an RRP regulation for freight railroads and a System Safety Management regulation for use by passenger railroads, with the assistance of the RSAC. The regulations would require certain railroad carriers to establish programs that systematically evaluate railroad safety risks on their systems and manage those risks in order to reduce the numbers and rates of railroad accidents, incidents, injuries, and fatalities. Using this information, carriers will conduct assessments of safety performance against safety objectives. Further, FRA is actively pursuing understanding of critical safety errors through the Confidential Close Call Reporting System pilot projects currently underway on four railroads.

From: NTSB
To: FRA
Date: 5/10/2012
Response: -From the greensheet (transmittal letter) issuing safety recommendations R-12-16 through R-12-22, which were issued as a result of the 4/17/2011 railroad accident in Red Oak, Iowa: The lead locomotive of the striking train, BNSF 9159, was an Electro-Motive Diesel SD70ACe manufactured in March 2008. The design incorporates a modular operator’s cab at the front end of the unit and has a fabricated steel underframe that extends the length of the unit, upon which the diesel engine and alternator components are mounted (aft of the operator’s cab). During the collision sequence, the clip car at the rear end of the struck train immediately folded, derailed, and was displaced north of the track. A powered axle and truck from that car along with other train equipment became lodged in front of the snow plow of BNSF 9159, forming a ramp in front of the locomotive. The next car in the struck train, an 89 foot flatcar outfitted with a specialized loading ramp (scorpion car), rode up and over the trapped equipment in front of BNSF 9159 overriding the locomotive anti climber and collided with the modular operating cab. The collision forces lifted and rotated the modular operating cab toward the rear, shearing and separating it from its attachment points. When the modular operating cab separated and rolled rearward, the short hood and collision posts no longer provided the protection intended by the crashworthiness design standards. The cab was then crushed at the rooftop as it rolled into the electrical locker, and the forward-facing window frame was folded forward over the top of the cab. The side walls remained relatively intact below the window line. Diesel fuel from the scorpion car leaked onto the front end of BNSF 9159 and caught fire. Several other flatcars overrode the scorpion car before the striking train came to a stop. The detachment and upending of the cab module and subsequent crushing action exerted forces on the cab occupants that would not have been present had the cab remained fixed to the deck. Because the operating cab rotated into the electrical locker, the rear door was crushed. The NTSB concludes that because the isolated locomotive cab module detached from the deck of the locomotive and was subsequently rotated and crushed, the crew could not have survived. BNSF 9159 was constructed to meet the crashworthiness standards in AAR Standard S 580, “Locomotive Crashworthiness Requirements.” This standard is incorporated by reference in Title 49 Code of Federal Regulations (CFR) 229.205 and is applicable to all locomotives built after January 2009. Documentation from the manufacturer on the structural design and analysis of this model locomotive confirmed BNSF 9159 was in compliance with these regulatory requirements. However, AAR Standard S-580 does not specifically address modular (isolated) wide-nose locomotive operating cabs like the cab on BNSF 9159. Current crashworthiness requirements are design standards. Design standards fix requirements under prescribed conditions, which are not necessarily related to the variety of conditions that could occur in a collision. They were based on specific accident scenarios and on locomotive designs in use at the time of their development. In comparison, performance standards attempt to define equipment performance requirements. For example, maintaining survivable space in a control compartment following a collision is a performance standard; prescribing the strength of a collision post in front of the control compartment is a design standard. Modular cabs are very effective at reducing crew noise and vibration exposure, which can have a safety benefit. There are about 562 isolated cab locomotives operating in North America. Cab integrity is vital to crew safety in a variety of accident scenarios including train-train collisions, train-motor vehicle collisions, and train derailments in which a locomotive overturns. There are no crashworthiness criteria for modular cabs in the existing standards. The NTSB concludes that although the current locomotive crashworthiness standards include a procedure to validate alternative locomotive crashworthiness designs that are not consistent with any FRA-approved locomotive crashworthiness design standard, this requirement was not effective in identifying the modular operating cab as an alternate design. Consequently, the NTSB recommends that the FRA revise 49 CFR Part 229 to ensure the protection of the occupants of isolated locomotive operating cabs in the event of a collision. Make the revision applicable to all locomotives, including the existing fleet and those newly constructed, rebuilt, refurbished, and overhauled, unless the cab will never be occupied. To address future locomotive designs, the NTSB recommends that the FRA revise 49 CFR Part 229 to require crashworthiness performance validation for all new locomotive designs under conditions expected in a collision. The NTSB reiterates Safety Recommendations R-10-1 and R-10-2 issued to the Federal Railroad Administration.

From: NTSB
To: FRA
Date: 12/1/2011
Response: CC# 201100449 was closed administratively; no response was written or mailed.

From: FRA
To: NTSB
Date: 4/12/2011
Response: -From Ray LaHood, Secretary of the United States Department of Transportation: NTSB Classification and Actions Taken by FRA: Open – Response Received. FRA recognizes the value of voice and image recording for accident investigation purposes, and believes that the information gathered could also play a constructive role in a concerted risk reduction effort having the support of employee representatives and progressive carrier management. However, FRA is also confident that the use of voice and image recording for railroad disciplinary purposes would erode morale and offer manifold opportunities for selective enforcement and possible retaliation against employees for reasons having nothing to do with safety. FRA is exploring options that will seek to affirm NTSB’s interest in accident investigation and prevention, while avoiding unwarranted publication of private conversations and guarding against further erosion of working relationships among employees and their supervisors and managers. Actions Needed to Be Taken by FRA: Identify and pursue appropriate options to promote accident investigation and prevention through the use of audio and image recording devices.

From: NTSB
To: FRA
Date: 12/27/2010
Response: The NTSB is disappointed that the FRA has chosen not to implement the recommendations as written, despite its recognition, as noted in its June 1, 2010, letter, that review of audio and image recorders are constructive for accident investigations. The value of cameras for accident investigation was also noted in a May 18, 2010, e-mail from the FRA to Metrolink regarding an interpretation with reference to employees tampering or disabling inward-facing cameras on locomotives. In that e-mail, the FRA stated the following: While not considered safety devices that have real-time effects on safe train operations with the meaning of the Subpart D definition [part 218], FRA is aware that cameras can be a valuable tool in conducting post-accident investigations. As such, FRA has instituted a regulation found at 49 [Code of Federal Regulations] C.F.R. § 229.135(e) which by its terms would apply to in-cab video cameras. That section addresses procedures for the preservation of accident data captured on event recorders and “any other locomotive-mounted recording device or devices designed to record information concerning the functioning of a locomotive or train.” FRA considers in-cab locomotive cameras to be “other locomotive-mounted recording devices” within the meaning of that section, which requires that railroads preserve recording device data for one year after the date of a reportable accident as defined in 49 C.F.R. part 225. In instances where a camera has been tampered with, railroads retain the authority to discipline employees for violating railroad rules regardless of whether the rules have any parallel federal requirement. …[I]n Appendix C to part 218, FRA states that it does not condone the disabling of any devices, even if not considered safety devices. In addition, the FRA currently allows railroads to review the locomotive event recorder information as a criterion for monitoring operational performance of certified engineers as required by 49 CFR 240.129. The NTSB is aware that cameras were installed and functioning in all 52 Metrolink locomotives as of October 12, 2009, and that, on October 16, 2009, the Brotherhood of Locomotive Engineers and Trainmen filed lawsuits in the U.S. District Court for California’s Central Division and in the Superior Court of California, County of Los Angeles, in an effort to remove the recently installed video surveillance systems from Metrolink trains. The Federal lawsuit claimed, in part, that Metrolink had violated employees’ rights by installing the cameras to monitor train engineers’ activities. On June 30, 2010, the U.S. District Court dismissed the lawsuit, concluding that engineers retained disciplinary procedural rights and that the union had failed to prove violations of, or preemption by, Federal regulations. The case in California state court remains pending. The NTSB is encouraged by the District Court’s ruling and notes that, to date, no court has overturned Metrolink’s efforts to use cameras to ensure procedural and safety compliance by its engineers. We remain convinced that the FRA’s promulgation of rulemaking in this area could further encourage the use of cameras for these purposes. The NTSB is pleased that the FRA is in agreement with the importance of audio and image recorders for accident investigation and for ensuring the safety of rail transportation. We encourage the FRA to work closely with the industry and employee labor organizations to gain their support for these technologies as essential tools and to further indentify opportunities to implement our recommendations with appropriate limitation on public release. Pending completion of the FRA’s actions to fully implement the NTSB’s recommendations, Safety Recommendations R-10-1 and -2 are classified OPEN -- ACCEPTABLE RESPONSE.

From: NTSB
To: FRA
Date: 6/17/2010
Response: Notation 8215: The National Transportation Safety Board (NTSB) has reviewed the Federal Railroad Administration’s (FRA) notice of proposed rulemaking (NPRM), “Restrictions on Railroad Operating Employees’ Use of Cellular Telephones and Other Electronic Devices,” that was published at 75 Federal Register 27672 on May 18, 2010. The NPRM codifies most of the requirements of FRA Emergency Order No. 26, “Emergency Order to Restrict On-Duty Railroad Operating Employees’ Use of Cellular Telephones and Other Distracting Electronic and Electrical Devices,” published at 73 Federal Register 58702; however, the FRA proposes some substantive changes. The FRA also requests comments regarding whether violations of the proposed rule should be a basis for revoking a locomotive engineer’s certification. The NTSB notes that the proposed rule as written contains many elements that will improve railroad safety by eliminating significant distractions for railroad operating employees, but the NTSB also believes that some sections of the NPRM could be improved. Background The NTSB investigated a collision of two Burlington Northern Santa Fe freight trains near Clarendon, Texas, on May 28, 2002. The NTSB determined that the probable cause of the collision was (1) the coal train engineer’s use of a cell phone during the time he should have been attending to the requirements of the track warrant his train was operating under and (2) the unexplained failure of the conductor to ensure that the engineer complied with the track warrant restrictions. Contributing to the accident was the absence of a positive train control system that would have automatically stopped the coal train before it exceeded its authorized limits. The NTSB concluded that the engineer’s cellular telephone use likely distracted him to the extent that he did not take proper note of the after-arrival stipulations imposed by the track warrant and thus was unaware of the need to prepare to bring his train to a stop. Based on its investigation of this accident, the NTSB made the following safety recommendation to the FRA on June 13, 2003: Promulgate new or amended regulations that will control the use of cellular telephones and similar wireless communication devices by railroad operating employees while on duty so that such use does not affect operational safety. (R-03-1) (Closed—Acceptable Alternate Action) The NTSB investigated an accident that occurred on September 12, 2008, in which a Southern California Regional Rail Authority Metrolink passenger train collided head on with a Union Pacific Railroad freight train near Chatsworth, California. The accident resulted in 25 fatalities, including the engineer of the Metrolink train. Emergency response agencies reported transporting 102 injured passengers to local hospitals. The NTSB determined that the probable cause of the collision was the failure of the Metrolink engineer to observe and appropriately respond to the red signal aspect at a control point because he was engaged in prohibited use of a wireless device, specifically text messaging that distracted him from his duties. Contributing to the accident was the lack of a positive train control system that would have stopped the Metrolink train short of the red signal and thus prevented the collision. The NTSB’s investigation also showed that the conductor of the Union Pacific Leesdale Local had violated operating rules by sending and receiving text messages during times when he shared responsibility for the safe operations of his train; however, any distraction caused by such use did not cause or contribute to the accident. Following the Chatsworth, California, accident, on October 7, 2008, the FRA issued Emergency Order No. 26 to restrict on-duty railroad operating employees’ use of cellular telephones and other distracting electronic and electrical devices. In a letter dated September 17, 2009, the NTSB stated that it was disappointed that the FRA had not taken action to address this long-recognized safety threat until 25 lives were lost at Chatsworth. However, the NTSB acknowledged that Emergency Order No. 26 constitutes an acceptable alternate means of addressing Safety Recommendation R-03-1 and classified it “Closed—Acceptable Alternate Action.” State and Federal Restrictions on Cellular Telephone Use Much attention has been given to the use of cellular telephones while driving a motor vehicle. As noted in the NTSB’s May 17, 2010, comments on the Federal Motor Carrier Safety Administration’s NPRM “Limiting the Use of Wireless Communication Devices,” Nearly half of all the states (23, plus the District of Columbia and Guam) have enacted bans on texting while driving…. As of April 2010, seven states—California, Connecticut, New Jersey, New York, Oregon, Utah, and Washington—plus the District of Columbia—had laws banning the use of hand-held cellular telephones while driving. … In September 2009, the NTSB issued an internal operations bulletin establishing a policy to prevent distracted driving by NTSB staff. That policy states that employees may not use any wireless or other electronic device while driving on NTSB business or use an NTSB-issued electronic device while driving their own vehicles while off duty. The NTSB is also aware that, following the [U.S. Department of Transportation] DOT summit on distracted driving on October 1, 2009, the President issued Executive Order 13513, which bans federal employees from texting when using a Government-issued electronic device while driving any vehicle, whether Government or private. NPRM Sections The NTSB believes that the NPRM contains many elements, similar to Emergency Order No. 26, that improve railroad safety by eliminating significant distractions for railroad operating employees when they should be performing their required duties. The NTSB agrees with many of the NPRM sections, including those about Title 49 Code of Federal Regulations (CFR) 220.301, 220.303, 220.305, 220.307, 220.311, and 220.313. The NTSB offers the following comments on other sections of the NPRM. 49 CFR 220.309 “Permitted Uses” The NTSB acknowledges the fact that there are limited instances when the use of an electronic device is necessary. The NTSB believes that the six uses of electronic devices that the FRA finds to be permissible are an acceptable means of permitting this limited use while preventing unsafe distraction. As technology exists today, the NTSB does not envision a need for any other permitted use of electronic devices other than those described in this section. 49 CFR 220.315 “Operational Tests and Inspections; Further Restrictions on Use of Electronic Devices” The NTSB notes that the FRA addresses operational testing by restricting how those tests are performed and by providing railroads with guidance about including operational test requirements in the railroads’ operational testing programs. However, this section does not address acceptable ways for railroad managers to perform operational tests to identify violations of the proposed rule. The NTSB believes that more guidance is necessary to develop a uniform standard of testing across the railroad industry. During its investigation of the previously mentioned September 12, 2008, railroad accident near Chatsworth, California, the NTSB concluded that a train crew performance monitoring program that includes the use of in-cab audio and image recordings would serve as a significant deterrent to the types of noncompliance with safety rules engaged in by the Metrolink engineer and the Union Pacific Leesdale Local conductor in that accident and would provide railroads with a more comprehensive means to evaluate the adequacy of their safety programs. As a result of the Chatsworth, California, accident investigation, the NTSB issued the following recommendations to the FRA: Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. (R-10-1) (Open—Await Response) Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. (R-10-2) (Open—Await Response) Although the NTSB is concerned about not unduly invading individual privacy, we continue to believe that monitoring train crew compliance with safety rules and procedures via in-cab audio and image recordings is critical. The NTSB Chatsworth, California, accident investigation report notes Concerns about individual privacy have typically influenced decisions about the installation and use of audio or image recorders to record crewmembers at work. However, the NTSB does not believe that employee privacy should take precedence over public safety given the many accidents and incidents, in all transportation modes, that the NTSB has investigated that involved vehicle operator distraction. Workers in safety-critical positions in all industries should expect to be observed in the workplace, just as most employees should expect their employers to be able to monitor such activities as e-mail and Web browsing during work hours. The argument for complete privacy in settings such as a locomotive cab, where lives of many are entrusted to the care of one, is not persuasive. IV. C “Locomotive Engineer Certification Revocation” The FRA requested comments about amending 49 CFR Part 240 to add violations of the proposed restrictions on using cellular telephones or other electronic devices as a basis for revoking a locomotive engineer’s certification. The NTSB believes that this deterrent is a necessary addition and that applicable revisions to 49 CFR Part 240 should be made. The NTSB also believes that any future FRA rulemakings that address certification of safety-critical positions, such as a conductor certification program, should include similar deterrent enforcement provisions. V. “Enforcement Issues” The NPRM discusses the possibility of railroads requiring operating employees to allow access to their personal cellular telephone records if they are involved in an accident and there is reasonable belief that the employees’ acts or omissions contributed to the accident. The FRA has declined to pursue this route, choosing instead to rely on its investigative authority to issue subpoenas to obtain such records. The NTSB believes that a requirement for employee consent would allow the timely retrieval of cellular telephone use records. At the same time, the NTSB acknowledges that there could be concerns about the impact of such required consent on the ability of law enforcement authorities to prosecute criminal offenses that may be embodied in the accident’s circumstances. The NTSB, however, is concerned about the ability to obtain consent prospectively, to enforce a consent requirement after an accident or incident or when an employee is killed or injured, and to issue a subpoena within the context of current telecommunications laws. The NTSB is also concerned that the FRA’s current subpoena authority may not permit the FRA to obtain all relevant records, such as actual text messages, following an accident. Nevertheless, attempting to determine improper cellular telephone use can be a critical part of an accident investigation, and the NTSB would support an effort to amend current telecommunications legislation to permit an investigative body, such as the FRA or the NTSB, to subpoena all relevant cellular telephone records. The NTSB also notes that the FRA’s Emergency Order No. 26 identifies various sanctions for noncompliance with the order. The NTSB believes that similar sanctions should be identified when this NPRM becomes a final rule. The NTSB appreciates the opportunity to comment on this proposed rule. Should you require any additional information or clarification, please contact us.

From: FRA
To: NTSB
Date: 6/1/2010
Response: MC# 2100207: - From Joseph C. Szabo, Administrator: FRA recognizes the value of voice and image recording for accident investigation purposes, and we believe that the information gathered could also play a constructive role in a concerted risk reduction effort having the support of employee representatives an progressive carrier management. However, we are also confident that the use of voice and image recording for railroad disciplinary purposes would erode morale and offer manifold opportunities for selective enforcement and possible retaliation against employees for reasons having nothing to do with safety. Building a positive safety culture on the Nation’s railroads will require that we avoid that kind of corrosive influence. Accordingly, we are exploring options that will seek to affirm NTSB’s interest in accident investigations and advance safety while avoiding unwarranted publication of private conversations and guarding against further erosion of working relationships among employees and their supervisors and managers. Because we anticipate that this effort may require a legislative foundation, some time may be required to perfect an execute this strategy. We ask that NTSB remind itself of the immense gulf between what these recommendations suggest and what has traditionally been considered prudent practice in aviation and elsewhere in transportation, and accordingly provide FRA with the time required to complete these actions. Until such time as FRA is able to fully address these safety recommendations, we respectfully request that NTSB classify Safety Recommendations R-10-01 and R-10-02 as "Open--Acceptable Response."