-From Ronald L. Batory, Administrator: This letter is the Federal Railroad Administration's (FRA) response to twelve National Transportation Safety Board (NTSB) Safety Recommendations (see list below). Over half of these recommendations are currently classified as "Open - Acceptable Response," and because the FRA has addressed the intent of the recommendations, no further action is necessary. FRA therefore requests that these be classified as "Closed- Acceptable Action."
For the remaining five, FRA has evaluated each recommendation relative to current and potential new regulations, including requirements for conducting cost-benefit analysis of each potential measure to address each recommendation, and has concluded FRA cannot reasonably take further action on them. Thus, FRA respectfully asks the NTSB to classify each of them as "Closed."
Overall, the twelve Safety Recommendations in question are: • R-01-02 • R-12-21 • R-13-22 • R-14-17 • R-01-17 • R-12-22 • R-13-38 • R-14-44 • R-08-06 • R-12-41 • R-14-16 • R-14-48
In the enclosure, FRA discusses the challenges to implement these recommendations, describes what actions the agency has performed, and explains why FRA cannot proceed further, other than to audit compliance as appropriate. Each recommendation is addressed in the enclosure in the following manner:
• NTSB Safety Recommendation Number;
• Text of the Safety Recommendation as issued by the NTSB;
• Status (e.g., "Open-Acceptable Response");
• FRA's position on the Safety Recommendation (see bolded text in shaded boxes);
• A summary of the accident that led the NTSB to issue the recommendation;
• A summary of the NTSB and FRA correspondence regarding each recommendation; and
• FRA's explanation for why we cannot pursue any further action on the recommendation.
To facilitate closure of these recommendations, FRA met with the NTSB on March 1, 2018, to expound on our reasoning and answer questions. This enclosure only includes those recommendations for which we believe we came to an understanding.
If FRA can provide further information or assistance, please contact Mr. Robert C. Lauby, Associate Administrator for Railroad Safety and Chief Safety Officer.
Please note that Federal agencies like FRA are required to follow the direction of Executive Orders 12866 and 13563 for rulemaking, which require quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 specifically states that:
Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
To meet the requirements of these Executive Orders, for each proposed and final regulation issued, FRA performs a regulatory analysis to:
1. Establish whether Federal regulation is necessary and justified to achieve a social goal; and
2. Clarify how to design regulations in the most efficient, least burdensome, and most cost effective manner.
While issuing regulations to implement many of these NTSB recommendations could improve railroad safety in the specific railroad accident or incident from which each arose, regulatory action to implement these recommendations would result in financial and safety costs that far exceed the societal benefits of improved safety or accident avoidance. Based on the associated cost-benefit analysis, implementing regulations that are required by some of these recommendations would not meet the intent of the Executive Orders listed above, which is inconsistent with the Administration's regulatory policy. Where applicable, FRA has calculated the anticipated costs and benefits of each recommendation and included that information with each detailed response.
Please also note, in the 2016 Federal Railroad Administration Report to Congress on Actions Taken to Implement Unmet Statutory Mandates and Address Open Recommendations by the National Transportation Safety Board and the Department of Transportation's Inspector General Regarding Railroad Safety, FRA informed Congress that the agency would be taking no further action on these twelve recommendations.
Current Status: Open-Unacceptable Response
FRA has published a final rule and taken other actions to fully address the recommendation, and respectfully requests that the NTSB close this recommendation.
The NTSB issued Safety Recommendation R-14-48 in response to an accident on May 28, 2013, in Rosedale, MD, in which a 3-axle roll-off straight truck failed to stop at a private grade crossing as a CSX freight train approached the crossing. The train struck the truck, and the first 15 cars of the CSX train derailed.
On December 18, 2014, FRA provided its response to this recommendation. In its reply on February 26, 2015, the NTSB stated that:
We are aware that, on October 18, 2012, you published a notice of proposed rule making (NPRM), titled National Highway-Rail Crossing Inventory Requirements at 77 Federal Register 64077 and that, in conjunction with its publication, you solicited public comment on a revised draft inventory form used for submitting data and a revised draft guide for completing the form. The draft guide directs railroads to submit data to the inventory for private highway-rail grade crossings information that railroads have not traditionally provided. We note that you have considered the comments you received and are developing a final rule, incorporating the proposals related to private crossings.
Although implementation of the final rule may lead to a significant improvement in the inventory's data related to private crossings, and you intend to continue to evaluate the feasibility and utility of requiring railroads to report additional data related to private highway-rail grade crossings, your plan falls short of the recommended requirement for equivalent levels of reporting. Please reconsider your plans, and implement the requested requirement. Pending your reply to this request, Safety Recommendation R-14-48 is classified OPEN-UNACCEPTABLE RESPONSE.
FRA's actions to address R-14-48: On January 6, 2015, FRA published a final rule (80 Fed. Reg. 745). The final rule, mandated by Section 204 of the Rail Safety Improvement Act of 2008, requires railroads to submit information about previously unreported and new highway-rail and pathway crossings to the U.S. DOT National Highway-Rail Crossing Inventory (Inventory), and to periodically update existing crossing data. A revised final rule was published on June 10, 2016, responding to petitions for reconsideration FRA received, and became effective upon publication.
In conjunction with the final rule, FRA also revised the Inventory Form (the FRA form used for submitting data to the Inventory), along with a revised guide for completing the Inventory Form. The guide directs railroads to submit data to the Inventory about private highway-rail grade crossings that railroads have not previously provided. This data includes:
• Current daily train counts for various types of train movements;
• Maximum timetable speed over the crossing;
• Typical speed range over the crossing;
• The number and types oftrack(s) through the crossing; and
• Type of train detection for automatic warning devices.
These new elements provide a significant increase in the operational data concerning train movements over private crossings. However, FRA did not require railroads to report information about highway traffic control devices (Part III), physical characteristics of the crossing (Part IV), or public highway information (Part V) for private crossings. The vast majority of private crossings are not equipped with the standard MUTCD-compliant traffic control devices reported in Part III of the Inventory Form. Although railroads are required to indicate whether private crossing signs are displayed at private crossings, it seems impractical to require railroads to report whether standard traffic control devices are present at each private crossing. Similarly, the public highway information provided in Part V of the Inventory Form, such as the functional classification of the road, is not relevant to private crossings, which by definition, consist of private roadways crossing the track. Further, railroads do not have information on the number and types of vehicles using a private road, nor could they reasonably be required to obtain this data.
Given the fact that the additional data reported for public crossings is generally unavailable for or inapplicable to private crossings, FRA does not intend to collect this information. However, the revised final rule does require railroads to report all relevant data on private crossings that is reasonably available to them. Therefore, FRA respectfully asks that that NTSB reclassify Safety Recommendation R-14-48 as, "Closed-Acceptable Action."