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The specific responsibilities of state inspectors are as follows:
DUTIES OF RAILROAD SAFETY INSPECTOR
1. Correctly and uniformly apply Federal Standards.
2. Provide instruction to carrier personnel in the requirements of law and regulation and the preparatory steps required to achieve compliance.
3. Display a level of technical competence equal to that of carrier supervisors with whom the inspector works.
4. Conduct thorough accident investigations utilizing extensive background knowledge of railroad equipment, facilities and operations to identify fruitful avenues of inquiry.
5. Effectively communicate by written memorandum the circumstances and significance of alleged violations, setting forth evidence supporting each element of the civil offense.
6. Acquire technical data related to developing problems which may be the subject of future regulation.
7. Evaluate waiver petitions and other requests for special approvals.
8. Investigate complaints and seek remedial action in areas where regulations do not exist.
9. Identify and evaluate serious conditions which may warrant the removal of track or equipment from service.
There is no negotiating per se between FRA and states to enter the state participation program. Instead, FRA explains the program's function, certification/agreement procedures and other requirements. FRA offers assistance, guidance, and encouragement to the states. The following is the current status of those states not yet participating.
STATUS OF STATES NOT YET PARTICIPATING IN THE STATE PARTICIPATION PROGRAM
Arkansas.-State regards rail safety as a Federal function.
California. -FRA has received their application to participate in track inspection; recruitment is under way.
Colorado.-Lack of interest and funding appropriation.
Delaware.-Not interested in joining the program.
Georgia.-Continuing to deliberate jurisdictional issues within the State.
Idaho.-State legislature has not provided approval.
Maine. Withdrew due to State funding constraints. Maine will participate when State funds are approved by the legislature.
Mississippi.-Low salary level makes recruitment difficult.
Montana.-Budgetary constraints and lack of interest impede this State's partici
New Mexico.-Jurisdictional issue still exists between various state agencies.
Oklahoma.-Submitted application to participate in track inspections; recruitment in process.
South Dakota.-Jurisdictional issue not yet resolved.
Tennessee.-Inspectors not qualified. State commission seems to be unwilling to recruit qualified and experienced candidates.
Texas.-State legislature has not provided the funding approval for participation. Virginia.-State legislature has not provided approval and has referred the question of participation to a State committee for study.
Wisconsin.-State legislature has not authorized funding. Rail safety is not a high
Wyoming.-Budgetary constraints have lessened the State's interest in the pro
Lack of adequate authority of State program
Question. The state/federal cooperative inspection program has frequently been criticized. One area of criticism is that the state inspectors have not been given adequate authority by Washington. For example, the Federal Railroad Administration has only allowed state inspector to enforce in two areas: track and freight car safety. On what basis has the Federal Railroad Administration made a determination that such a limitation is warranted? What evidence is there that the states could not adequately carry out other areas of inspection now being handled solely by the Federal Government?
Answer. In the past, the National Association of Regulatory Utility Commissioners has indicated that some states were interested in expanded participation. Their request has not, however, conveyed a commitment on the part of a substantial number of states.
FRA has given considerable thought and study to expanding the state's authority to inspect the remaining areas of freight car safety-Power Brakes and Safety Appliances. FRA believes that if the program achieves full integration with the Federal program, consideration should be given to expanding the State's authority to monitor all freight car safety regulations. This would provide more overall concentration in the area of equipment inspection, which, along with track, account for more than 60 percent of the rail related accidents.
However, we must be cautious in making this decision because many states are at various stages of development. The development of many states and the participation by others is curtailed by their legislatures, budget authorization, and recruitment difficulties which continue to impose constraints on growth of participation and expertise.
State enforcement power
Question. Do you believe that it is appropriate for the states only to be allowed to carry out an enforcement action when the state notifies the Federal Government and the Federal Government does not act within 90 days? Why shouldn't the states be able to enforce against violations immediately rather than waiting for federal action?
Answer. The law should not be changed to grant the states initial enforcement responsibility. Such a change is not necessary from an enforcement standpoint. FRA has never failed to take action at the request of a state where such action was within the law. Further, granting the states initial enforcement responsibility would fragment the effort to deal with the carriers on a national basis-a fundamental requirement in a transportation sector primarily interstate in nature. Most importantly, it would significantly complicate matters for the carriers, thereby increasing their legal costs. Rather than dealing with a single agency, they would be faced with a multiplicity of principals.
The primary benefit to granting selected states initial enforcement responsibility would be to improve the relative status of state inspectors. FRA believes that the self-esteem of state inspectors is a serious concern, but that granting independent enforcement authority is not the best way to remedy the situation. In its State Participation report, FRA describes the steps it will take to integrate the efforts of the Federal and State inspection forces. We believe that when the states are truly a part of the national rail safety inspection effort status differences that now exist will be significantly reduced.
Willingness of States to join inspection program
Question. Do you believe limitations in regard to the amount of enforcement and the coverage of the state/federal cooperative inspection program have lessened the states' willingness in joining this program?
Answer. The Federal and state inspection efforts have not been well integrated. There needs to be a clear understanding of the respective roles of the two inspection forces. We will demonstrate our commitment to the program by seeking to put the state inspection forces in the mainstream of the overall inspection effort. At the same time the states must recognize the need for a coordinated national effort. If these objectives can be realized, continued advances in the effectiveness of the State Participation Program are assured.
Specifically, we promise that:
1. The Office of Safety will select special instructors for on-the-job training. 2. The Office of Safety will issue uniform monitoring procedures to the FRA regional offices.
3. FRA has an obligation to inform the states of its inspection plans, so that the states can see how their activities fit in with the overall Federal effort.
4. FRA must make the state inspection forces a well integrated part of its inspection effort.
All relevant communications from FRA headquarters to our regional offices will also be sent to the appropriate state authorities.
State inspectors will be encouraged to attend FRA regional track and equipment safety conferences.
5. FRA will solicit state views in shaping policy and providing input to revisions to track and equipment regulations in the same way that the views of our field staff are sought.
1. The states should permit their trainees to cross state lines in the course of an investigation.
2. Assist us in special assessments, where requested.
State inspection of hazardous materials shipments
Question. The states have expressed a particular concern about the issue of hazardous materials shipments. In light of this concern, why are you not allowing the states to carry out hazardous materials inspections as part of the state/federal cooperative inspection program? Wouldn't such a high level of interest lead to a likely greater participation by the states?
Answer. It is the position of the Department that expansion of the program would be premature and inadvisable. The entry of states into the track and equipment subprograms has, thus far, been gradual. Much work remains to be done to assure that these subprograms functions as an integral part of the national compliance effort.
Payment of inspection personnel
Question. It has been alleged that the states have had difficulty in adequately funding and paying for competent inspection personnel. Do you have any suggestions as to how this problem could be mitigated?
Answer. Low state salary structures are causing a negative impact on recruitment and program stability.
Under the program, the Federal government pays 50 percent of the salaries and related expenses of the state inspectors and trainees and 100 percent of the training costs. There must be a stronger commitment by several of the states to make the salaries competitive.
Question. Has the Federal Railroad Administration established goals and target dates for the state participation program? If so, what are these goals and are they being met? How were the goals established?
Answer. Goals and objectives for the entire rail safety effort are being developed under the System Safety Plan which will be submitted to Congress by December 31, 1980. Projections of the level of state participation are based on the best available information provided by the states participating in the program and those in the planning process to do so.
Evaluation of the State inspection program
Question. How does the FRA measure the effectiveness of the state/federal cooperative inspection program? What studies/evaluations have been made of the program? What have been the results of these studies and evaluations?
Answer. A determination of the effectiveness of inspection efforts both State and Federal has been undertaken as part of the System Safety Plan effort. This work will be completed by the end of the year.
An FRA report on the effectiveness of the State Participation Program was forwarded to Congress March 19, 1980. The conclusion reached was that states must be brought into the mainstream of the overall inspection effort. Program management has been improved by streamlining the flow of information to the states and clarified program direction. In addition, FRA is seeking out state inspector candidates with engineering degrees or technical experience not only those with railroad backgrounds. There is also a new on-the-job training effort establishing a cadre of FRA instructors for new state trainees.
An FRA report comparing the Pipeline and Railroad Safety Grant Programs is also available. We feel that the main reasons for greater participation in the Gas Pipeline Safety Program are as follows:
1. Historically, many states had their own pipeline safety laws and inspectors long before MTB's Office of Pipeline Safety Regulation came into being. Since its origin, a major function of the Federal pipeline program has been to encourage states to adopt the Federal regulations, which were initially based on industry standards and a few standards from individual states. The FRA did not find a comparable situation of existing widespread state participation at the start of its program.
2. Any valid comparison of the two programs is difficult because the railroad system is primarily interstate, while the pipeline system is 80 percent interstate. Only 14 states participate in interstate pipeline inspection because of the preference to maintain this review on the Federal level. However, there are 30 states participating in the Grants-in-Aid for Railroad Safety Program involving interstate movement.
3. Since 80 percent of the pipeline network is intrastate, the benefits from pipeline safety regulation are more confined within a state's limits. Conversely, most train movements are interstate and inspection/regulation in one state carries over to other states. If one state allocates funds to inspect railroad equipment, other states will also benfit from the action. Since many states are unwilling to pay for benefits to other states, some states consider the Federal government to be a more appropriate agent to regulate rail equipment safety.
4. Some state legislatures feel that railroad safety is a Federal responsibility and that inspections should be performed by existing Federal forces. Therefore, these legislatures have passed stringent funding constraints, thus ensuring non-participation by their state. However, with only 16 Federal pipeline inspectors, the states cannot rely on a Federal presence to ensure pipeline safety.
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Hon. HOWARD W. CANNON,
DEAR SENATOR CANNON: As Chairman of the Pennsylvania Public Utility Commission, I would like to express my support for an appropriation authorization in the amount of $3.5 million for the fiscal year ending September 30, 1981, and an additional $3.5 million for the fiscal year ending September 30, 1982, to carry out State safety programs under Section 206(d) of the Federal Railroad Safety Act of 1970 (45 U.S.C., Section 435(d)).
The provisions of such financial assistance to State agencies, on a matching basis, will reduce the need for establishing a large Federal field staff and thereby permit the Congress to implement its national safety programs for far less than what it would otherwise cost for the Federal Government to assume the entire fiscal burden. In other words, the use of matching funds would in effect pull State money into the Federal programs.
The tragic loss of life and the infliction of personal injury and property damage on the Nation's railroads is still unnecessarily high. In 1978 alone, 1,646 people lost their lives on the railroads and another 72,545 were injured.
Accordingly, I believe that the modest appropriation authorization request of $3.5 million annually will be money well spend to increase the safety of our railroads. In addition, I respectfully urge that the above legislation contain two amendments to strengthen the State role in cooperating with the FRA in the enforcement of Federal safety standards.
Under Section 207 of the Federal Railroad Safety Act of 1979 (45 U.S.C., Section 436), a participating State agency may only report violations to the FRA and the State agency is helpless to correct the violations, no matter how dangerous they may be, unless FRA takes no action for 90 days, in which case the State agency can seek injunctive relief in Federal district court. I respectfully urge that the 90 day waiting period be eliminated to afford an independent enforcement mechanism to State agencies in the Federal district courts and thereby significantly strengthen State participation in the rail safety program.
This amendment may be made by revising Section 207 of the 1970 Act (45 U.S.C., Section 436) to read as follows:
"(a) In any case in which the Secretary has failed to access the civil penalty applicable under Section 209 of this title with respect to a violation of any railroad safety rule, regulation, order, or standard issued under this title, or otherwise required by law, within 60 days after the date on which notification was received by the Secretary from a State agency participating in investigative and surveillance activities under the provisions of Section 206 of this title, that State agency may apply to the district court of the United States within the jurisdiction of which the violation occurred for the assessment and collection of the civil penalty included in or made applicable to such rule, regulation, order, or standard. The provisions of this section shall not apply in any case in which the Secretary has affirmatively determined in writing that no violation has occurred.
"(b) A State agency participating in investigative or surveillance activities under the provisions of Section 206 of this title may, with respect to a violation that occurred within the State of any railroad safety rule, regulation, order, or standard issued under this title, or otherwise required by law, apply under Section 210 of this title to the district court of the United States within the jurisdiction in which the violation occurred for injunctive relief to restrain any further violation thereof or to enjoin compliance therewith."
Secondly, the NARUC believes the Nation's rail safety program can be further improved by authorizing the States to participate in investigative activities in connection with all Federal rail safety laws and regulations. The FRA interprets the State participation program under Section 206(a) of the Federal Railroad Safety Act as only applying to regulations adopted thereunder. State agencies are not authorized to carry out investigative and surveillance activities with respect to other Federal rail safety laws adopted before or after the 1970 Act. The earlier safety laws include the Safety Appliance Acts (45 U.S.C., Sections 1-16), the Ash Pan Acts (45 U.S.C., Sections 17-21), the Boiler Inspection Acts (45 U.S.C., Sections 22-34), the Signal Inspection Act (49 U.S.C., Section 26), and the Hours of Service Acts (49 U.S.C., Sections 61-66). A subsequent safety law is the Hazardous Materials Transportation Act (49 U.S.C., Sections 1801-1812).
Such an interpretation results in an inefficient use of State inspectors when they are present on railroad property to enforce the 1970 Act, but are not permitted to check for compliance with pre- or post-1970 safety laws. Such an expansion of the State participation program would eliminate this inefficiency and assure maximum use of State personnel. This amendment may be accomplished by adding at the end of Section 206 of the Federal Railroad Safety Act of 1970 a new subsection to read as follows:
"(g) Nothwithstanding any other provision of this title or any other law, a State agency may also participate, in the manner set forth in this section, in carrying out investigative and surveillance activities in connection with railroad safety laws and regulations in effect on the date of enactment of this title or enacted or adopted after such date."
Your support for these amendments will be deeply appreciated.
SUSAN M. SHANAMAN, Chairman.