Editor’s Note: Grady C. Cothen Jr., though he retired from the Federal Railroad Administration in 2010, has remained active in the industry, writing papers on safety-related subjects, several of which Railway Age has published. He most recently assisted as a “friend” to a major RSAC working group. Grady retired from FRA after 36 years in various positions: Deputy Associate Administrator for Safety Standards and Program Development (1994-2010); Associate Administrator for Safety (1991-1994); and Special Assistant to the Chief Counsel for rail safety, labor protection and asset sale projects (1975-1991). Prior to that, he served as a trial attorney in the Enforcement Division of the FRA Office of Chief Counsel. Grady was also Acting Associate Administrator for Policy from 1986-1988, where he provided executive direction for economic, financial and traffic analysis and freight policy studies, including recommendations for Departmental positions in rail proceedings before the Interstate Commerce Commission. This editorial is adapted from remarks he gave at the 55th meeting of the Railroad Safety Advisory Committee (RSAC) in 2016, marking its 20th anniversary. We publish this in the wake of FRA’s disbanding of RSAC after 29 years, and the uncertainty surrounding whether it will be resurrected in some form. – William C. Vantuono
I earned my grey hair in large part tending the vineyard we know as the Railroad Safety Advisory Committee. Although I retired from FRA in 2010, I continue to have a strong interest in the success of that body.
The RSAC is one tool that FRA and its partners use to advance safety, and we need every effective tool we can get. Let me trace how we got here, why that matters, and a little about what we need to do to keep the RSAC relevant and effective.
The RSAC was something of a surprise to all its parents in 1995. It wasn’t planned. It sprang from good intentions and lots of desperation. The good intentions were bestowed by the Clinton Administration, particularly by Vice President Gore and his plan to transform government. All citizens were now “customers,” and our success was dependent upon the customer’s satisfaction—an awkward posture if you are operating under authorities that mandate regulation and enforcement. About this time, I had written myself a job description as regulatory czar in the Office of Safety. The regulatory program, with lots of “to dos” already listed, was dead in the water as statutory deadlines floated by. Administrator Jolene Molitoris, understandably, didn’t want to roll out new rules produced solely by agency staff—several of which were already about finished—because they might offend “customers.”
The matter of perhaps greatest urgency was roadway worker protection, a matter of life and death, for sure, as tragic circumstances once again declared. There were calls for an emergency order. When we couldn’t agree what to do internally, I suggested a formal negotiated rulemaking to get things moving. Jolene concurred; and the parties, to their credit, accepted the challenge. The product was a clear step forward, but there were issues that had not been sufficiently developed under the pressure to agree. Neutral facilitation produced movement but not clarity. Litigation and further rulemaking ensued.
From this initial experience it was clear that the industry parties were game for getting in there and working on problems, and it was clear the FRA had learned a lot from the parties during the process. But we could hardly afford to do formal negotiated rulemakings for every topic on the agenda, and it was not clear from the roadway worker outcome that that process was the best.
Desperation led to some degree of hard-won inspiration in the form of the RSAC. FRA invited the industry parties to join a broader advisory committee to work on most of the regulatory agenda. This was met with a firm “yes, but” from management and labor, in particular. So, we almost literally had to negotiate the shape of the table first. Nobody wanted to be outvoted, and the Class I’s and labor were not so sure anybody else should be at the table. FRA wanted the committee to include every legitimate interest affected and probably couldn’t have gotten the RSAC chartered on any other basis. All the industry parties were obviously fearful that their constituencies would blame them for any unfavorable outcome they could not block. FRA had a non-delegable responsibility to decide, at the end of the day, whether or not the RSAC came up with a recommendation, and couldn’t just let the process run amok.
The result was a unique structure, with no precedent under the Federal Advisory Committee Act. If just you looked at it on paper, it was apparently designed to fail miserably.
Under the bargain worked out with the industry parties, FRA would reserve the right to offer tasks, after prior informal consultation. The committee would consist of organizational representatives, not individuals. Just as examples, the organizations would include more than the usual suspects, with the National Association of Railroad Passengers (now the Rail Passengers Association) playing an active role, Safe Travel America keeping all us mindful that our inaction can have consequences, and the governments of Canada and Mexico invited to work on standards harmonization. Over time, additional organizations were added in an attempt to benefit from, and promote, the industry’s diversity.
Under this construct, FRA would chair the committee and vote along with everyone else. The RSAC would establish working groups where the heavy lifting would occur, comprised exclusively of those parties with a stake in the subject matter—always including FRA. Complete consensus would be required to discharge a recommendation from a working group, and a simple majority would be required to get it accepted in the full RSAC. The full RSAC could remand the issue once, by a unanimous vote, but the working group product would not be subject to amendment in the full body. FRA committed to using the resulting recommendations to formulate proposals whenever possible.
These principles were embodied in a document called “The RSAC Process.” Over the years, the committee, to my knowledge, has deviated only slightly from this prescription, and then only by unanimous consent. Notably, parties have often been generous by entering into partial consensus when they have felt unable to support the entirety of a proposed working group recommendation. In some cases, parties have remained in a negotiation even when they knew (and privately warned us) that factors external to the negotiation would prevent them from reaching a final consensus—just to ensure FRA got the best picture of how their legitimate interests might be protected.
When this process was hammered out, there were many voices within and outside the Department of Transportation that said we couldn’t do business that way. Forming a Federal Advisory Committee comprised of organizations was unusual, to say the least. By tradition, advisory committee members were supposed to be selected individually for their expertise and would “serve the public interest.”
The idea that members would carry their interests into the meeting openly and proudly, rather than in their back pockets, was anathema. To mix metaphors, you were supposed to leave your hat at the door—good luck with that if you are an elected union officer or trade association staffer!
The idea that the FRA would really manage and participate in the committee was shocking—you know, somebody could say something that would embarrass or overcommit the Department; and what we would do then? Bureaucrats are supposed to be seen but not heard on any “controversial issue.”
These concerns were not without some basis, of course, but the notion that the Federal Advisory Committee Act did not permit this kind of body, just because it hadn’t been done quite this way before, was just flat wrong—as I insisted. Let’s just say we won the battle. The RSAC commenced operations on April 1, 1996.
Over time, the RSAC process forced major changes in how FRA did business internally. At least when the process worked well, silos fell and the Administrator’s office became involved, materially, much earlier in the process. The responsible FRA senior executives had to ensure that the Administrator was briefed when useful and that the FRA team always operated within the Administrator’s instructions.
The RSAC Process also required investments in training for all concerned. FRA made “interest-based bargaining” the engine of working group activities.
History matters, because—through whatever serendipity—form followed function. The industry and FRA were at a point where we needed something like the RSAC very badly.
Many FRA staff members had been Federal civil servants for quite a while and needed to be updated on the state of the industry. FRA lawyers, economists and analysts needed a rapid education in the particulars of the issues before the agency. The RSAC provided that mechanism.
Industry personnel in departments such as transportation, engineering and mechanical were often wary of their counterparts in labor—and the anxiousness was, let us say, “reciprocated.” Particularly in the early days, when working groups went on the road, members got to spend time together socially, barriers began to fall, and mutual respect on a personal level often flourished. Good relationships don’t guarantee good outcomes, but they greatly facilitate that result. It may be growing trust at this level helped, at least a little, to enable Confidential Close Call Reporting and other risk reduction elements.
State rail program representatives, some suppliers, and other stakeholders were alienated from the regulatory process, sometimes questioning FRA’s good faith as steward of the national rail safety program. The RSAC let everybody see the process of making regulations up close, and if you wanted to you could pitch in! Many did.
The issues coming before the agency were becoming more complex and highly technical. FRA could get expert advice from its own staff, including the Office of R&D and the Department’s Volpe Center; but how much better to have access to industry experts, as well! Real time peer review, iterative analysis, and reference to international standards sometimes permitted the RSAC working groups and task forces to advance the state of the art.
Technology was rapidly outstripping FRA’s ability to reduce risk using traditional, prescriptive regulations; and at times, existing regulations threatened to constrain progress. So RSAC working groups helped fashion processes and standards for approval of new and alternative technology that FRA would have struggled to conceive by itself. Dialogue within the working groups helped to educate all of us regarding the need to migrate in the direction of performance-based regulations.
I am painfully aware that the RSAC is not an emblem of unvarnished success. Consensus has not been achieved for every task. Things have taken too long. For some, traveling to high-cost Washington D.C. so FRA could save money has been galling. Despite the training and hand holding, members have sometimes had to endure ad hominem attacks issued by other members who were desperate to protect their interests and unable to muster a better argument.
If all of us take this process for granted, it can rapidly fail and become a fading memory. But if we remember where we came from, and how far backwards we could go, I submit we will want to look forward and try to make it work. For that to happen, everybody will have to give a little and some a lot.
The Department of Transportation needs to give the most, because this process serves its mission. Efforts to rebuild internal silos need to be stopped cold. Tasks can only be accomplished if FRA teams—specialists, engineers, lawyers and economists drawn from disparate organizational elements—work well together and pull in the same direction. Team members must be willing, and their immediate supervisors must buy in, or at least act like it.
The Administrator must be empowered to guide the agency’s participation, and consensus outcomes must be supported within the Executive Branch rather than second-guessed by lawyers upstairs or analysts across town, most of whom have scant domain knowledge.
FRA must ensure that its budget requests support a robust RSAC schedule of activities, including opportunities for working groups and task forces to get out on the railroad and into the supply community to gain first-hand familiarity with the subject matter of pending tasks. Rolling out a national program also provides the opportunity for system and local union officers to participate and grow in their leadership positions and come to understand “what’s going on in Washington.”
FRA’s senior executives need to be properly appointed and tasked, and incumbents need to be supported. FRA should ensure that each working group is sponsored by a senior executive or other senior officer who is willing to roll up their sleeves and learn the issues with a degree of granularity that will permit that individual to provide the necessary liaison between the Administrator and the working group, subject to the guidance of the Chief Safety Officer.
FRA must keep offering well-timed proposals to focus working group discussion and crystalize the issues. However unpopular, FRA must hold the working groups to reasonable timetables while recognizing exceptions when it makes sense. But FRA needs to step up the pace of production. When consensus is in hand, the proposed and final rules need to be produced in a timely manner. The RSAC can’t be prodded to work more briskly if FRA can’t produce. That will happen only if individual counsel and staff are held accountable, and if the Office of the Secretary of Transportation and Office of Management & Budget behave sensibly, reserving formal review for rules that are truly significant and keeping to their own deadlines without manipulation of the process to make the agency look like the culprit. FRA must continue to speak for those who are not directly represented in the process.
Industry parties need to play their part, as well. Nothing tears at the fabric of RSAC more than surprises. Each party representative needs to keep that individual’s organization briefed on the issues in play and needs to seek support for pending consensus recommendations before final working group action. The whole idea, beyond good outcomes on paper, is buy-in for implementation.
Nothing drains energy and good feeling from a process more than unfair collateral attacks. RSAC participants need to ensure that their lobbyists and press offices know about the good work going on within the RSAC. That doesn’t mean all will be sweetness and light, but in some cases, we can save everybody embarrassment—and that will increase the likelihood that we will be able to control our own futures, collectively.
Everybody will need to take a breath when the opportunity presents itself and make a serious effort to simplify the growing corpus of regulations already on the books, to relieve unnecessary regulatory burdens, and to ensure that remaining regulations are as progressive and robust as the industry they govern.
So here we have a collaborative forum consisting of those affected by regulations who are willing to invest time and effort to make them better, which came into being out of unusual circumstances, and which has achieved a record much more distinguished than many of us might have expected. It calls to mind that oft-cited legend about Benjamin Franklin, as he left the constitutional convention in Philadelphia. He is said to have bumped into his friend Elizabeth Powell, who inquired about the form of government produced inside. He replied, “A republic, madam, if you can keep it.”
I’m no Franklin, but the RSAC is a demonstrably successful collaborative body—if you can keep it.
