Monday, November 03, 2014

NTSB, Metro-North, and politicians, Part 3

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NTSB, Metro-North, and politicians, Part 3
Let’s continue with my comments from Part 1 and Part 2 on the Oct. 28, 2014 National Transportation Safety Board press conference regarding NTSB’s determination of the causes of five accidents on Metro-North Railway (MNR). To reiterate, I’m going through the video second by second just so I can set the record straight, or at least correct some of the more egregious errors presented as facts by NSTB Acting Chairman Christopher A. Hart, and Senators Schumer, Blumenthal, and Murphy.

Times refer to approximate times on the video recording. The speaker’s name is in parentheses after the time. The speaker’s assertion follows the name. We pick up the story here:

16:07.16:07 (Schumer): “…the other the Bronx, Westchester ...” None of the five accidents investigated by NTSB occurred in Westchester.

16:25 (Schumer): “… a total lack of emphasis on safety ...” “… ignoring existing NTSB recommendations ...”

17:10 (Schumer): “…the emphasis was on on-time, on-time, on-time without regard to safety.”

Let’s first take the assertion about MNR ignoring existing NTSB recommendations. Prior to the fatal accident of Dec. 1, 2013, NTSB had issued only a single recommendation regarding three prior accidents, recommendation R-13-17. This recommendation urged MNR to adopt a secondary system, such as shunting, for the protection of roadway workers. MNR agreed to and complied with this recommendation. The railroad deployed an additional system for roadway worker protection, one with much greater utility and reliability than shunting.

Now regarding a so-called “total lack of safety,” Schumer is merely displaying his unfamiliarity with the millions, literally, of daily actions, decisions, and functions that make for safe railroading. Despite the obvious and inexcusable breakdowns in MNR’s record of safe train operations, the breakdowns do not amount to a “total lack of safety.”

Were equipment inspections being performed throughout this period? Yes. Are such inspections part of safe train operations and safety culture? Yes. Were signal inspections being performed throughout this period? Yes. Are such inspections part of safe train operations? Yes, they are, literally, a vital part. Were switch obstruction tests being performed during this period? Yes. Are such inspections required for safe train operations? Yes. Were train and engine crews performing the proper brake tests prior to operating trains? Yes. Are such brake tests essential to safe train operations? Yes. Were trains with train control apparatus failures operated safely to a point where passengers could be discharged and the equipment removed from service for repair? Yes. Are such arrangements necessary for safe train operations? Yes. Were blue lights being applied when rolling stock was being inspected? Yes. Is the application of such devices part of safe train operations? Yes.

I could go on and on, but you get the point even if the Senator doesn’t—and the point is not only that there was no complete disregard for safety but, more important, that accidents don’t require a complete and total disregard for safety to occur.

Momentary, repeated, accumulated, individual, or convergent mistakes, errors, or failures are all that is required for an accident to occur.

If MNR had truly been operating with a total lack of emphasis on safety, striving for on-time performance without regard for safety, there would have been far more than five accidents in 10 months. There would have been more than five accidents in five minutes—but only five minutes as the railroad would have ground itself to a halt.

As unacceptable as these incidents were, there is no reason to distort the actual circumstances, and the actual failures behind the accidents, just as there is no reason to identify as locations of accidents locations where no accidents occurred.

17:25 (Schumer): “The reports have an almost Alice in Wonderland-like quality ... students in training operating trains without supervision ... allowing an engineer who had sleep apnea to drive ...”

None of the five accidents involved a student operating a train without supervision. Petty detail? The difference between safe train operations and unsafe train operations is exactly that—attention to detail.

Metro-North did not “allow” an engineer with sleep apnea to operate train 8808. To allow means to sanction, to permit. Permission means to have the knowledge beforehand. No such knowledge was provided to the railroad by the locomotive engineer.

You might as well argue that the state of New York is responsible for all DWI accidents because the state provides driver’s licenses while alcohol remains available for legal purchase.

Operating a safe railroad is not at all like campaigning for elected office. You have to know what you are talking about. You have to say exactly what you mean. You have to act on what you say. Those are the petty details of railroad management.

20:10 (Schumer): “We shouldn’t pick and choose which transit lines should implement each recommendation. Instead when we take action it should be for the entire MTA system as well as for Amtrak and other commuter and passenger rail services.”

Really? I for one am looking forward to the mandatory installation of PTC on the New York City Subway system, on Hudson-Bergen Light Rail, on Newark Light Rail. I, for one, can’t wait to see roadway worker protections as outlined in Subpart C, 214 applied to subways. I, and there’s got to be more, look forward to the registration and certification of NYCT motormen and conductors under FRA regulations 240 and 242. I for one can’t wait to see the supervisors of bus lines and intra-city transport modes out there conducting “banner testing” under the FRA guidelines.

Before we conclude this section of our analysis, let’s take a look at the frequent and numerous complaints from the NTSB and the Senators about the number of “open recommendations” NTSB has provided to FRA and railroads over the years. According to the acting chairman of NTSB and the Senators, more than 60 such recommendations remain open with one or some open for years. Let’s look at NTSB’s own “10 most wanted list” of safety improvements, and into its own annual report.

First, of the top ten most wanted safety improvements, only one applies directly to FRA and the railroads—PTC, and Congress has already mandated the implementation of PTC. Will railroads meet the deadline? I don’t know. Nevertheless, deployment of the system is no longer up to FRA.

NTSB’s 2013 annual report to Congress lists 143 recommendations issued to all transportation modes for the year. During 2013, 183 existing recommendations were closed “acceptably,” and 73 were closed “unacceptably.” NTSB notes with pride that for the period 2009-2013, 75% of its recommendations have been successfully implemented.

For the aviation sector, NTSB issued 27 recommendations, closed 83 “acceptably,” and closed 54 “unacceptably.”

For the railroad industry, in 2013, NTSB issued 45 recommendations, closed 24 “acceptably,” and closed only 2 “unacceptably.”

In 2012, NTSB issued 72 new recommendations to the aviation industry; closed 69 “acceptably,” and closed 37 “unacceptably.”

Meanwhile in that same year, NTSB issued 45 recommendations to the rail industry and its regulator, closed 26 “acceptably,” and only 3 were classified as closed “unacceptably.”

So does this read to you like the rail industry and its regulator have been “out to lunch” when it comes to safety? Does this sound like a regulator, and an industry, trying to cut corners, break the law?

24:30 (Blumenthal): “The MTA has blood on its hands, but the blame belongs to the federal oversight agency as well. The Federal Railway [sic] Administration has simply failed to do its job ... It has to be held accountable ... for the law it failed to apply and enforce.”

Will somebody please inform the Senator that the name of the federal agency involved is the Federal RailROAD Administration?

So far we have had NTSB reporting that 8808 passed another train on the Hudson Line at a location that does not exist. We have had an incorrect identification of the location of the press conference itself. We have had an assertion that an accident occurred where no such accident took place. We have had a characterization of an accident that matches none of the accidents investigated. We have had an assertion that MNR deliberately ignored recommendations of the NTSB. We have had NTSB providing a cause for the Dec. 1, 2013 accident based on unverifiable assumption.

And now one of the Senators can’t get the name of the regulatory agency right.

If these people were running a railroad ... that’s a scary thought, so let’s just say we’re all better off that they aren’t.

Usually, when a criminal indictment is issued, the indictment cites the sections of the criminal code that have been violated. We’re not talking semantics here. We’re talking law. So Joe Szabo or FRA’s (R as in railROAD) chief counsel should ask the Senator to identify what sections of what law(s) FRA has failed to apply and enforce that have contributed to the deaths of these six people and the injury to approximately 140 others.

And we’re not talking about “enabling,” “facilitating,” or creating an atmosphere. We’re not talking about failure to provide a requested or required report to Congress. We’re talking criminal evidence. “Blood on the hands” means criminal violence has occurred. An unkind person might tell the Senator to put up or shut up. But that’s the thing about being Senator. Nobody’s ever unkind.

25:20 (Blumenthal): “There were five recommendations on fatigue, two on cameras ... all unimplemented and unenforced by the Federal Railway Administration.”

You can accuse FRA, the Federal RailROAD Administration, of lagging behind on certain issues. Fatigue is not one of those issues. Maybe the Federal Railway Administration has ignored issues of fatigue, but the agency that regulates railroads in the U.S.—the FRA— has not.

FRA has initiated studies and sponsored investigations into fatigue for at least the past 20 years. It has made recommendations to railroads. It has sponsored, co-sponsored, and endorsed pilot projects. And here’s a news flash: It has even revised regulations and instituted new requirements in order to mitigate the risk potential in the issue of fatigue. The hours of service law was recently changed to expand its coverage, provide more rest to those covered, and reduce the likelihood of what I like to call circadian arrythmia, where changes of shift put the employee into a fatigued condition.

Maybe I’m wrong, but I think if you read 228 Subpart F, “Substantive Hours of Service Requirement for Train Employees Engaged in Commuter or Intercity Rail Transportation,” adopted in 2011, you’ll find some evidence to support my position.

27:16 (Blumenthal): [In reference to the death of a roadway worker (May 28, 2013) due to unauthorized removal of protection], “There was a requirement for a back-up system to protect workers and that system was never implemented.”

Again, there is no such requirement. Unless Congress chooses to enact recommendations from NTSB into law, if the Federal RailROAD Administration does not submit the suggestions to the rulemaking process, they remain exactly that: recommendations. Does this matter? Yes, because the process by which regulations are themselves required to be vetted, debated, and even amended means all those (theoretically) with interests impacted by the proposed regulation can express those interests, improve the regulation where possible, and reach an understanding as to obligations about to be imposed.

If the Senator is frustrated by the slow, cumbersome, and imperfect nature of the rulemaking process— where recommendations are not automatically regulations; the regulatory agency does not even pursue certain recommendations because, in its experience, with its expertise, it considers such suggestions unviable in the operating environment of a railroad—I understand. But that does not make the agency a “rogue” agency, a “lawless” organization. We can look back over the past 30 years at the trend in accidents and injuries and at the regulations enacted and enforced, and we can say, from that evidence, this process has yielded sustained benefits.

33:21 (Murphy): “... of all the things workers for MTA need to worry about, one of them should not be whether or not a train will collide with you as you are doing your job…”

Well, yes Senator, and no Senator. No, no train should ever be allowed into a work zone without the authority of the employee-in-charge. That’s the regulation. Yes, Senator, all employees when on or about the tracks need to worry about this.

We, railroad officers, require employees to “worry”—be alert to the ever-present danger and possibility of such an incident. We demand it of them in writing: “When on or about the tracks, employees must (be alert for) (expect) the movement of trains and equipment at any time, on any track, in either direction.” I found those words, or words substantially similar in the safety instructions to employees on every railroad I ever worked for.

Because we know that errors, mistakes, and failures can happen, we create procedures that become increasingly elaborate to counter the complacency, the comfort, human beings find in routine.

Because we must always be aware, alert to, and worry about the unauthorized as well as the authorized movement of trains, we hold job safety briefings, designate a path of safe egress, and micro-manage the application and removal of blocking devices.

33:54 (Murphy): “... we thank God that M8s were on the rails that day.”

I’m not a religious person, but when I heard the Senator say that I almost shouted out “hallelujah!”

But I’m not a religious person. We don’t have to thank God; we should be thanking FRA, which after the 1996 collisions at Secaucus on New Jersey Transit and Silver Spring on MARC took the appropriate, and deliberate, action.

FRA expended considerable time and effort developing, evaluating, and submitting crashworthiness requirements to the rulemaking process, thereby developing the standards that are effective because they are viable, and are viable only because they are the product of the process.

NTSB investigated both accidents, and issued numerous recommendations to FRA. Interestingly enough, to my reading, none of the recommendations to FRA in those reports address the structural strength of the locomotives or control cars. Nor does NTSB reiterate previous recommendations regarding “crashworthiness.”

34:40 (Murphy): “FRA hasn’t adopted dozens of recommendation from the NTSB because they seem more interested in facilitating the cutting of corners by railways than in investing in saving lives.”

Of the “dozens of recommendations” not adopted for the reasons of “cutting corners,” the Senator from Connecticut cites a single recommendation, regarding the previously discussed and explained FRA exemption of on-track inspections for high-density commuter lines.

We can search the NTSB for open recommendations made to FRA, and I did, going back through January 2013 just to get a sense of what’s going on here. According to the database, since January 2013, NTSB has 21 open recommendation made to FRA. Of those, five are “open awaiting response” as they were issued in late August 2013, some two years after the Conrail accident at a moveable bridge in Paulsboro, N.J.

Of the remaining 16, 10 are classified as “open acceptable response,” meaning exactly that: Final action has not yet been taken, but in NTSB’s view the addressed party has responded positively to the recommendation.

So now we look at the “open unacceptable” responses. Of these, two involve the medical standards issues previously discussed.

One involves an NTSB recommendation that FRA require event recorder data on the lead locomotive also, and simultaneously, be stored at a remote location to reduce the possibility of loss of data due to damage to the lead locomotive.

FRA is, in my opinion, correct to reject this recommendation. And the rejection does not amount to “cutting corners” rather than “investing in safety,” as there is nothing being cut here, and there is no basis for reasonable expectation, much less any evidence, for an increase in rail safety if the recommendation becomes the rule.

One “unacceptable” is NTSB’s recommendation that FRA publish on its website the “update reports” it receives from railroads implementing PTC. I understand that NTSB is concerned that railroads are dragging their feet, and it would like to see periodic updates. I’d like to see it, too. But FRA’s disagreement does not constitute a risk to safety, a cutting of corners, a breaking of the law, or any of that stuff.

The remaining two “unacceptables” refer to NTSB’s recommendations that FRA require railroads to install technology on locomotives that will detect the signals emitted by personal electronic devices (cell phones, for example), and also require the use of handheld technologies capable of making the same detection so that, theoretically, railroad managers can what? Be made aware of the use of the cell phone without having to get on the locomotive? Or detect the use of the cell phone by an employee not on a locomotive who is in fact using the personal electronic device properly?

Some might call NTSB’s recommendations in this area unnecessary, unhelpful, and unworkable. I would. And I’m a kind person.

FRA has already prohibited the use of personal electronic devices by those operating trains, and by anyone in the operating cab of a train.

The demand that a specific means of technology be used to meet an obligation, including reporting and enforcement requirements, can only be justified if that technology is demonstrably superior in preventing the violations in the first place.

And here we get to another problem, a big one with these types of recommendations—including those for inward and outward cameras—when translating them into regulations: Regulations have an enforcement feature, an action that is taken when aviolation occurs.

NTSB—long an advocate of close-call confidential reporting, long a critic of the “blame culture” supposedly imposed by railroad management, long in favor of protecting employees who violate regulations from the disciplinary process— is advocating technologies, regulations, and processes that will be rendered meaningless by its own support for “employee protection.”

I could extend my review of the NTSB database, but you know what? Why don’t we ask the Senators to provide that review. Why don’t the Senators ask NTSB to provide that review? Why don’t the Senators vet the open recommendations as to “awaiting response,” “acceptable response,” or “unacceptable response”?

Good questions, don’t you think? Right now, those questions will be marked “open awaiting response.” I can’t wait to move them into the other categories, to see how many move to “open acceptable response.” But don’t hold your breath. I’m not holding mine.

David Schanoes

David Schanoes is Principal of Ten90 Solutions LLC, a consulting firm he established upon retiring from MTA Metro-North Railroad in 2008. David began his railroad career in 1972 with the Chicago & North Western, as a brakeman in Chicago. He came to New York 1977, working for Conrail’s New Jersey Division. David joined Metro-North in 1985. He has spent his entire career in the operating division, working his way up from brakeman to conductor, block operator, dispatcher, supervisor of train operations, trainmaster, superintendent, and deputy chief of field operations. “Better railroading is ten percent planning plus ninety percent execution,” he says. “It’s simple math. Yet, we also know, or should know, that technology is no substitute for supervision, and supervision that doesn’t utilize technology isn’t going to do the job. That's not so simple.”

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