FRA Rebuffs Labor Bid to Block Employee Citations in HF Rule

The Federal Railroad Administration has agreed to give railroads more time to set up their testing programs for a human factors rule that addresses misaligned switches and equipment handling as a way to curb incidents. The rule was issued in February and set a July 1 compliance deadline, but large rail groups asked for additional time, saying their members need to create electronic databases and missed a chance to include the necessary training in this year's first quarter because the rule came out late.

The key development in yesterday's Federal Register notice from FRA was that a labor petition failed to budge the agency's plan to make rail employees citable for willful violations and liable to pay civil penalties. The petition said there's no evidence rules discipline has broken down and, besides, incidents are dropping now, so there's no need to expose individuals to penalties. FRA disagreed. Current FRA regulations already make individuals citable, the agency said, adding, "Whether or not one subscribes to the proposition that penalties are necessary, giving the subject rules the status of Federal law should without question promote awareness among officers and employees regarding their responsibilities to one another and to the public. . . . Although FRA agrees with the Joint Labor Petition that the number of human factor incidents has declined over the past few years, we do not agree that this trend diminishes the need for a regulation containing the potential to demand payment of civil money penalties from individuals for willful violations. There are a variety of reasons for the recent downward trend including, but not limited to, FRA's focus on the increase in human factor caused accidents/incidents from 2000 through 2004. . . . "

FRA also rejected the Association of American Railroads' request to eliminate from the rule a provision that will allow rail workers to challenge a directive if they believe in good faith that it violates federal requirements. "The driving force for much of the final rule was the data showing significant increases in human factor caused accidents, and the high number of violations FRA found when it conducted inspections and investigations related to certain human factor cause codes," the agency replied. "Prior to the effective date of the final rule, each railroad maintained similar operating rules governing the safe operation of shoving or pushing movements, leaving cars out to foul, and handling switches and fixed derails; meanwhile, over the first five years of this decade, human factor caused accidents accounted for 38 percent of all train accidents, and, in 2004, violations of the operating rules required in 49 CFR part 218, subpart F accounted for nearly 48 percent of all human factor accidents. Considering the mandatory nature of these railroad operating rules, it seems that there has been a high disregard for them either intentionally or unintentionally. . . . FRA is aware of the pressure to occasionally shortcut an operating rule in order to maintain or increase production. FRA's awareness is derived from inspections and investigations, as well as shared experiences from FRA personnel who have previously worked for one or more railroads. The good faith challenge procedures are intended to empower employees who choose to abide by the railroad's operating rules but are either intentionally or unintentionally given a non-complying directive."

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    July/August 2021


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