Monday, June 01, 2015

A fine kettle of fish for FRA's Feinberg

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A fine kettle of fish for FRA's Feinberg

It’s no surprise that Federal Railroad Administration Acting Administrator Sarah Feinberg, a Democratic political operative—and a darn good one by all accounts—is President Obama’s choice to become the agency’s permanent chief. Politics generally determines executive branch appointments and it’s a shrewd wager the Senate will confirm her.

Yes, there are more qualified candidates in terms of skill sets—there always are more qualified candidates—but they are far fewer in the waning days of a presidential administration. President Obama leaves office Jan. 20, 2017, along with his Executive Branch choices, reducing dramatically the number of qualified candidates keen on a 19-month gig.

The FRA is not—these days or for the foreseeable future—a cake-walkin’ assignment. Chief among grievances that railroads say require amendment is an emerging agency pattern over the past two years—under Feinberg’s acting-administrator watch and the watch of ex-administrator Joe Szabo—that is described by one railroad executive as “bold action of any kind in place of consideration of cause.”

Distilled down, the argument goes that recent FRA actions carry a stench of politically motivated expediency—that untoward pressure is being exerted on the FRA by lawmakers politically tethered to a labor-union constituency. Adding propellant is an unproven public worry that crude oil trains are racing off the tracks in helter-skelter fireballs more dangerous than an invasion of suicide bombers.

No matter that not a single U.S. rail-related fatality is traceable to trains hauling crude oil.

No matter that had similar regulations on setting of train brakes, as already governed U.S. railroads, also been in place at the time in Canada, the July 2013 deadly Lac-Mégantic rail disaster might well have been avoided.

No matter that the science of rail safety, as all science, is reliant on accurate data.

No matter that more regulation typically does not translate into more useful investment in infrastructure.

No matter all of this, say FRA critics, the agency has quenched political thirst with hurried actions that insult mainstream science, rebuff mainstream economics and offend an agency history rich in data-driven decision making.

In fewer than two years, the FRA has issued three Emergency Orders and five safety advisories—the latter establishing rules as a practical matter—that avoid required notice and comment specified by the Administrative Procedure Act. In each case, say railroads, there was no imminent safety risk so crucial as to justify the FRA’s deliberate sidestepping of an appropriate notice and comment period.

What we have is the FRA behaving as the toughest dude in a Flatbush Avenue bar, decreeing “the Duke” (as in Snider of the Brooklyn Dodgers) the better all-round centerfielder than the Giants’ Willie Mays, absent any discussion and denying use of any statistics from the Baseball Encyclopedia.

Railroads, after all, with near unlimited liability exposure and being heavily self-insured, have the greatest incentive to operate safely, and some of the most competent safety experts are employed by railroads. The worth of engaging railroad experts in safety rule decision-making—the purpose, after all, of government agencies providing notice and soliciting comment before issuing edicts—is as obvious and precious as the obligation of a scientist to collect credible data and perform an unbiased cost-benefit analysis rather than bend expediently to political bluster, special interest bullying or undocumented public fear.

In this vein, railroads also fault Szabo, who previously spent a career as a labor union officer advocating job security for his members, for penning— almost immediately following the Lac-Mégantic accident—a Notice of Proposed Rulemaking to require two-person crews for most main line train operations including those trains carrying crude oil.

This edict was despite the FRA possessing no evidence that two-person crews are safer than engineer-only train operation; that at least two data-driven studies conclude a second crew member can aggravate engineer distraction; and that Szabo’s hasty action, as confirmed by the FRA, was made without consensus of a working group previously created by the FRA to study the issue and reach consensus. These flaws and others—said to make a final rule highly susceptible to successful court challenge—are reportedly the reason DOT and the White House Office of Management and Budget is keeping the two-person crew mandate from moving beyond the proposal stage.

Curiously, the National Highway Traffic Safety Administration (NHTSA)—a FRA sister agency also within the Department of Transportation—encourages the testing on public roads of driverless automobiles. Driverless highway vehicles, says NHTSA, offer “enormous safety potential” and the technology offers an “even wider range of possible benefits.” Railroads request the same open-mindedness by the FRA toward the capability of technology such as Positive Train Control (PTC) to assure engineer-only safe train operation as NHTSA is exhibiting toward driverless highway vehicles; and to avoid FRA-imposed excess crew consist requirements that lack a demonstrated nexus to safe train operation.

Szabo earlier (December 2013) issued an Emergency Order that MTA Metro-North Railroad assign two qualified crew members to the cab of each commuter train pending installation of improved signals following a Metro-North accident. Again, there was no data or other scientific evidence that single-person train operation—long in place on all commuter railroads—was or is unsafe.

Meanwhile, under Feinberg’s watch as acting administrator, the FRA published a Final Rule in April—again supported by rail labor—to require, among other things, installation of electronically controlled pneumatic (ECP) brakes on certain oil-carrying trains under certain speed conditions. This rule also lacks supporting data or analysis.

In fact, Transportation Secretary Anthony Foxx said legal challenges, alleging ECP brakes are unreliable and unnecessary, are likely. The Financial Times on May 31 quoted Union Pacific CEO Lance Fritz as intending to challenge the Final Rule in court, with Fritz calling it “ill-considered” and with a price tag, for UP alone, of some $500 million to equip just UP locomotives.

As with a mandate for two-person crews, an unjustified federal requirement for ECP brakes unnecessarily increases costs, diverts scarce investment from projects with demonstrated safety benefits, can adversely affect rail system fluidity, and divert some of this hazardous cargo to highways where accident exposure is significantly higher.

Moreover, there is concern that Feinberg is preparing yet another Emergency Order—this one in the wake of the Philadelphia Amtrak derailment—requiring two-person crews on Amtrak passenger trains on the Northeast Corridor even though conclusions as to the derailment’s cause, and recommendations to prevent a recurrence, are months away.

There is no denying political pressure, and it remains to be seen whether any senators on the Commerce Committee grill Feinberg on how the FRA deals with that political pressure, defends its independence and protects the integrity of science that is at the core of every safety agency’s mandate.

Feinberg surely will be interrogated on the reasons for delay in implementation by railroads of congressionally mandated and FRA-superintended PTC, including how the Federal Communications Commission’s delay in issuing siting authority has affected the mandate’s timeline.

It is in the technology arena where one eminently qualified rail scientist thinks Feinberg, despite her lack of rail or even transportation experience, can make a positive contribution to the FRA.

Steve Ditmeyer, who led development of an early PTC system at Burlington Northern Railroad (now BNSF), once guided the FRA’s research and development, and worked on various railroad engineering studies including Amtrak’s Northeast Corridor, says Feinberg’s background in information technology and its applications provides her with “a much better understanding of the workings of the new communications-based railroad technologies than do traditional railroaders.”

Ditmeyer is referring to Feinberg’s previous employment as policy and crisis communications director at Facebook, and director of global communications and business strategy at Bloomberg, a leader in developing software tools, analytics and data services for the financial industry. “Sarah Feinberg cut her teeth on information technology,” Ditmeyer said.

The in-depth knowledge of traditional railroaders “of systems that have been in use on railroads for more than a century seems to inhibit the ability of some to grasp that the old paradigms are being replaced with new paradigms that use digital data communications to transmit the continuous real-time information that railroads need to run their trains with greater safety and efficiency,” Ditmeyer said.

“Similar paradigm shifts are occurring at the Federal Aviation Administration with the coming of the Next Generation Air Traffic Control, and with Intelligent Transportation Systems (driverless cars and even trucks). FRA is not the only agency at DOT to need a new type of administrator,” Ditmeyer said.

Feinberg’s political posts, prior to Obama naming her FRA’s acting administrator, included DOT’s chief of staff, senior adviser to the White House chief of staff, communications director for the House Democratic Caucus, and national press secretary for the Democratic Congressional Campaign Committee.

As Oliver Hardy said to Stanley Laurel, “Well, here’s another fine kettle of fish you’ve pickled me in.” If nothing else, although in a different professional context, Feinberg’s been there before—and survived and prospered. From a similar kettle she’s is more than likely to be running the FRA into January 2017.

Frank N. Wilner, Contributing Editor

Frank N. Wilner is author of six books, including, Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and, Railroad Mergers: History, Analysis, Insight. He earned undergraduate and graduate degrees in economics and labor relations from Virginia Tech. He has been assistant vice president, policy, for the Association of American Railroads; a White House appointed chief of staff at the Surface Transportation Board; and director of public relations for the United Transportation Union. He is a past president of the Association of Transportation Law Professionals. Wilner drafted the railroad section of the Heritage Foundation’s Mandate for Change (Volumes I and II), which were policy blueprints for the two Reagan Administrations; and was a guest columnist for the Cato Institute’s Regulation magazine.

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