Railroad Safety Advisory Committee (RSAC)

1. Federal Railroad Administration Railroad Safety Advisory Committee (RSAC)

2. Federal Railroad Administration Federal Advisory Committees Railroad Safety Advisory Committee (RSAC) History Interest Based Bargaining General RSAC Structure RSAC Process Current RSAC Efforts April 2008 – Office of Safety

3. Federal Advisory Committees • Federal Advisory Committee Act (1972) applies whenever the President or an agency establishes or uses an outside group to receive recommendations • The Negotiated Rulemaking Act was passed by Congress in 1990

4. Federal Advisory Committees & the FRA • In 1994, the FRA established it’s first “ad hoc” formal regulatory negotiation committee (“Reg-Neg”) to address roadway worker safety • The resulting rulemaking both developed a new rule that would reduce/eliminate the deaths and injuries occurring to the industry’s roadway or track side workers and demonstrated the validity of collaborative rulemaking • FRA’s successful use of negotiated rulemaking pointed to the need for the establishment of a formal advisory committee and process

5. RSAC History • The success of the initial government-industry working groups led FRA to transition from; • March 1996 The Railroad Safety Advisory Committee (RSAC) was officially chartered by the Secretary of Transportation and was comprised of 48 voting representatives drawn from 27 member organizations representing large and small railroads, rail labor organizations, state associations, rail passenger representatives with suppliers and other interested parties participating as non-voting associate or advisory partners a hear-and-decide regulatory procedure a consensus model

6. Railroad Safety Advisory Committee Essentially RSAC provides a forum where: “Enhanced communication enables all concerned stakeholders to become more directly involved in improving our Nation’s rail safety through a collaborative rulemaking process”

7. RSAC History • Established to develop new regulatory standards, through a collaborative process, with all segments of the rail community to find solutions on safety regulatory issues • RSAC: • Early milestones: • Track Safety Standards revision (final 1998) • Railroad Communications (final 1998) RULES RAIL INDUSTRY EXPERTS RESPONSIVE FLEXIBLE BENEFICAL WISDOM RESOURCES EXPERIENCE PRODUCE

8. RSAC History • Since the RSAC was federally chartered on March 25, 1996, thirty-eight tasks have been accepted and more than 500 Committee, working group, and task force meetings have been conducted to address critical railroad safety issues • Full RSAC Committee today - 37 organizations representing labor, railroads, suppliers, States, chemical suppliers and passenger advocates - plus advisors from FTA, NTSB, TSA, Canada, Mexico, and other diverse groups

9. RSAC Today

10. RSAC Today

11. RSAC Guiding Principles • Decisions about the best approach to safety is made with full participation of all affected parties • Provide a continuing forum for advice and recommendations to FRA on major railroad safety issues • Seek agreement on the facts and data underlying any real or perceived safety problems • Identify cost-effective solutions to safety problems and regulatory options to implement solutions • RSAC is solely advisory in nature • The RSAC provides advice and recommendations on specific tasks assigned to it by FRA

12. RSAC Guiding Principles • RSAC may elect to accept or reject a task, or to recommend that a task be restructured • Working groups are formed for each task; they are comprised of stakeholders interested in the particular subject area, as determined by the chair after expressions of interest • Working group recommendations can only proceed to full RSAC committee with consensus among stakeholders • FRA sets a target date for the presentation of RSAC’s recommendations to the Administrator • FRA may withdraw a task from the RSAC at any time

13. RSAC Process Flow RSAC accepts task from FRA WG presentation to RSAC WG undertakes task & acts as staff to RSAC RSAC forms working groups (WG) RSAC Considers WG Recommendations Chairperson briefs on task, resources, and timetable for completion Initial working group meeting Presentation of RSAC Recommendations to Administrator Address relevant facts Define safety problem Develop options WG Deliberations All participants must support recommendations of the group for consensus to be reached FRA Publishes Proposed and Final Rulemaking Actions WG Reaches Consensus

14. How Caucus Works • During RSAC proceedings, a group represented by several members, or even one member, can ask for a caucus to meet privately within their group • The person/s who have requested a caucus break report back to the RSAC group the results of their caucus • It is important that the members maintain clear channels of communication with the organization that they represent and accurately convey the organizations position on an issue

15. How Caucus Works • This method is used routinely and effectively for the following reasons: • To clarify unity of the vote • To request information from additional experts • To clarify their private discussions  • To verify the group’s position prior to a vote • To compose documents to present their positions • To review their positions • Upon invitation, FRA staff may meet with a caucus to gain a better understanding on the concerns underlying expressed positions

16. Principles of Interest Based Bargaining • A bargaining technique in which the parties start with (or at least focus on); • Interests rather than proposals • Agree on criteria of acceptability that will be used to evaluate alternatives • Generate several alternatives that are consistent with their interests • Apply the agreed-upon acceptability criteria to the alternatives so generated in order to arrive at mutually acceptable positions

17. Principles of Interest Based Bargaining • Successful Interest Based Bargaining depends in large measure upon the following: • Mutual trust • Candor • Willingness to share information • But even where these are lacking, the technique, with its focus on interests and on developing alternatives, tends to make the parties more flexible and open to alternative solutions and thus increases the likelihood of agreement

18. General RSAC Structure The RSAC consists of three membership levels, all of which will reflect representative parity: • The RSAC full Committee, which is appointed and chaired by FRA; • Working groups responsible for developing recommendations on one or more specific tasks assigned to the RSAC; and • Task Forces that develop data and recommended actions with respect to elements of tasks assigned to working groups

19. FULL RSAC COMMITTEE WORKING GROUPS “WG” TASK FORCES “TF” General RSAC Structure Accepts or rejects tasks from FRA, appoints and assigns tasks to working groups, approves or rejects WG recommendations Develops recommendations on one or more specific tasks assigned to RSAC Develops data and recommended actions with respect to elements of tasks assigned to working groups

20. Task Statements • Task statements are drafted by FRA with approval of Administrator • 38 accepted tasks to date • Tasks are numbered by year i.e. 2008-01 • Contain a purpose, description, specifics and target dates for deliverables

21. Authority & Responsibility The RSAC and all Working Groups established under authority of the RSAC will: • Seek agreement on the facts and data underlying any real or perceived safety problem • Identify cost effective solutions based on the agreed-upon facts • Identify regulatory options where necessary to implement those solutions

22. Voting • Proxy voting is essential to accommodate the busy schedules of those who will serve at the various levels without jeopardizing representation of their interests • Voting by proxy is permitted at any of the three levels, using a simple form developed by RSAC to record them • The RSAC, working group, or task force can choose to waive the use of written proxy as long as the proxy is noted in the records of the meeting

23. Working Group Formation • RSAC establishes a working group to undertake each program development task (e.g., rulemaking or issue to be examined for possible rulemaking) • A working group may be assigned more than one task if tasks are clearly related, but standing working groups are not employed

24. Working Group Formation • The working group functions as staff to the RSAC and is comprised of individual representatives from RSAC member organizations who may be, but need not be, RSAC members themselves • That working group will be dissolved when the task is completed (normally following issuance of a final rule or decision not to institute rulemaking)

25. Working Group Deliberations • The working group meets as necessary, assigning responsibility for specific tasks and formulating the structure of their recommendations to the RSAC • If the working group has established a task force, the working group is responsible for ensuring that it meets the goal set for reporting to the working group

26. Working Group Deliberations • For each task assigned, the working group addresses the relevant facts, defines the safety problem presented, develops a range of options and decides upon a recommended option • When necessary to reach agreement on the relevant facts, the working group is expected to visit appropriate sites on railroads to observe the facts directly

27. Working Group Deliberations • The working group will operate by full consensus, with all participants supporting the recommendations of the group, after having had ample opportunity to persuade others of the rightness of their preferred positions • Consensus: If all participants can live with and support the final working group recommendation

28. Task Force Formation • The working group may establish a task force on any task • This may be especially useful where significant fact finding and data development are necessary, where the working group has more than one task at a time, and/or where the overall task assigned by FRA can be efficiently divided into sub-tasks

29. Task Force Formation • The task force reports to the working group that established it • The task force must adopt its report by full consensus, i.e., unanimously • When full consensus cannot be reached, the task force notifies the working group of this fact

30. Working Group Presentation to the RSAC • Once the working group has reached consensus about its recommendations to the full RSAC, the RSAC Chairperson is notified • The RSAC receives the working group report and considers whether to adopt the recommendations set forth in the report • The working group normally presents its recommendations during a public meeting of the RSAC but mail ballot may be employed with prior briefing with the Committee’s approval

31. Working Group Presentation to the RSAC • The Chairperson places the working group presentation on the agenda for the next RSAC meeting • Public notice of the presentation of the working group’s recommendations to the RSAC is published in the Federal Register, indicating the date, time, and location for the meeting

32. Working Group Presentation to the RSAC • When the RSAC meeting is convened, the working group spokesperson presents its recommendations to the RSAC and: • Responds to any questions regarding the factual basis of the recommendations • Responds to any questions regarding the options reviewed • Responds to any questions regarding specific considerations bearing on those options

33. Committee Consideration of Recommendations (cont) • Having received the full consensus recommendations of the working group, the RSAC has the following three options: • By full consensus (unanimous vote), accept the working group’s recommendations and forward them to the Administrator without change • By majority consensus, accept the working group’s recommendations and forward them, without change, to the Administrator along with any non-consensus views offered by any non-concurring voting members of RSAC that were not represented on the working group

34. Committee Consideration of Recommendations (cont) • By full consensus (unanimous vote) return the working group’s recommendations to the working group for further consideration of specific issues • With regard to a particular task, the third option is available only once

35. Committee Consideration of Recommendations (cont) • In event that there is no majority consensus to send the working group’s recommendations to the Administrator, but also no unanimous consensus to return the task to the working group, the Chairperson shall; • Formally report to the Administrator that no RSAC recommendations will be made on that particular task • Task is normally withdrawn

36. Committee Consideration of Recommendations (cont) • The same is true where, on the second time before the RSAC, there is no majority consensus to send the working group’s recommendations to the Administrator (In this case return to the working group no longer being an option) • The RSAC considers the working group’s recommendations in their entirety, seeking consensus for approval of the recommendations as a whole

37. Committee Consideration of Recommendations (cont) • For the recommendation to be submitted to FRA, the voting members of RSAC must approve the working group’s recommendation without change • The full RSAC is not the appropriate level at which to write or rewrite detailed recommendations. That is the job of the working groups

38. Committee Consideration of Recommendations (cont) • Members of the RSAC consider whether they can live with and support the recommendations embodied in the working group report, taken as a whole. FRA employs its full resources and energy to encourage and facilitate the achievement of consensus

39. Recommendations to the Administrator • Once the RSAC reaches consensus, the Chairperson transmits the RSAC’s recommendations to the Administrator • If, with regard to a particular task, there was no full consensus at the task force or working group level, or no majority consensus at the RSAC level, the RSAC reports the absence of consensus to the Administrator

40. Recommendations to the Administrator • In the absence of consensus recommendations, FRA will simply determine the best course of action on a particular issue without benefit of the RSAC’s advice • FRA may withdraw a task from RSAC at any time, and will provide the RSAC an explanation when it does so

41. Proposed and Final Actions • To the maximum extent practicable, FRA utilizes the RSAC to provide consensus recommendations with respect both to proposed and final agency action • Except for those limited circumstances where an opportunity for prior comment is unnecessary, FRA provides to the general public in the Federal Register notice of its regulatory proposals, an opportunity to comment in writing, and an opportunity for an oral presentation (hearing)

42. Proposed and Final Actions • Following issuance of a proposed rule, FRA may request RSAC assist the FRA in considering comments received. • With respect to either a proposed or final rule, FRA may schedule one or more meetings of the RSAC during which information and views are received from other interested persons

43. Regulations Any rules resulting from the RSAC process must be: • Reasonable, clear, effective, and enforceable • Impose as small a burden as is practicable • Specify performance objectives (to the extent feasible), rather than specifying the behavior or manner of compliance

44. Historical Accomplishments • Task 96-2: Track Safety Standards, general revision; final rule published June 22, 1998. • Task 96-3: Railroad Communications; final rule published September 4, 1998. • Task 96-5: Steam Powered Locomotives, revision of inspection standards; final rule published November 17, 1999. • Task 96-6: Locomotive Engineer Qualification and Certification; final rule published November 8, 1999. • Task 96-7: Roadway Maintenance Machines; final rule published July 28, 2003.

45. Historical Accomplishments • Task 97-2: Locomotive Cab Working Conditions, sanitation; final rule published April 4, 2002. • Task 97-3: Event Recorders, data survivability; final rule published June 30, 2005. • Tasks 97-4, -5, -6: Performance Standards for Processor-Based Signal and Train Control Systems; final rule published March 7, 2005. • Task 01-1: Accident/Incident Reporting Conformity with OSHA; final rule published March 3, 2003.

46. Historical Accomplishments • Task 03-01: Passenger Safety-Mechanical; final rule published October 19, 2006. • Task 03-01: Passenger Safety-Passenger Train Emergency Systems; final rule published February 1, 2008. • Task 03-01: Passenger Safety-Crashworthiness; final rule published January 8, 2009. • Task 05-02: Reduce Human Factor-Caused Train Accident/Incidents; final rule published February 13, 2008. • Task 06-02: Track Safety Standards and Continuous Welded Rail; final rule published August 25, 2009.

47. Historical Accomplishments • Task 08-01: Report on the Nation's Railroad Bridges; report submitted December 10, 2008. • Task 08-04: Positive Train Control; final rule published January 15, 2010. • Task 08-06: Hours of Service Recordkeeping and Reporting; final rule published May 27, 2009, with an effective date of July 16, 2009. • Task 07-01 Track Safety Standards- Concrete Crossties; final rule published April 1, 2011. • Task 09-01: Passenger Hours of Service; final rule published August 12, 2011.

48. Historical Accomplishments • Task 08-07: Conductor Certification; final rule published November 9, 2011. • Task 03-01 Passenger Train Emergency Systems II NPRM - Jan. 3, 2012 • Task 10-01: Training Standards for Safety-Related Railroad Employees NPRM – Feb. 7, 2012 • Task 03-01 Passenger Train Emergency Preparedness NPRM – June 27, 2012 • Task 05-01 Railroad Workplace Safety – Adjacent Track On track Safety for Roadway Workers Final Rule – Nov. 30, 2011

49. Process Recipe for Success • A recognition by all parties that an issue needs to be addressed • Participation by an FRA interdisciplinary team • Agreement on procedures before the negotiation • Clear focus on the details of the proposed remedy • Flexibility to incorporate industry rules and standards into the Federal regime • Appropriate consideration of costs and benefits • Follow-through by FRA to apply the results of the negotiations

50. Wrap Up Federal Advisory Committees Railroad Safety Advisory Committee (RSAC) History Interest Based Bargaining General RSAC Structure RSAC Process Current RSAC Efforts