Office of Inspector General

Audit Report

FRA IS NEARING COMPLETION OF RULES 

REQUIRED BY THE RAIL SAFETY 

IMPROVEMENT ACT, BUT NEEDS TO 

IMPROVE OVERSIGHT

Federal Railroad Administration

Report Number: CR-2013-070

Date Issued: April 17, 2013
U.S. Department of

Memorandum

Transportation

Office of the Secretary

of Transportation

Office of Inspector General

Subject: ACTION: FRA Is Nearing Completion of Rules

Required by the Rail Safety Improvement Act, but

Needs to Improve Oversight

Federal Railroad Administration

Report No: CR-2013-070

Date: April 17, 2013

From: Mitchell L. Behm

Assistant Inspector General for Rail, Maritime, and 

Economic Analysis

Reply to 

Attn. of: JA-50

To: Federal Railroad Administrator

In response to several high profile accidents between 2002 and 2008 that resulted 

in hundreds of casualties and millions of dollars in damages, Congress passed the 

Rail Safety Improvement Act (RSIA) of 2008.1 For example, a 2005 collision—

between two freight trains in Graniteville, SC—resulted in the release of chlorine 

gas from a tank car. The accident killed 9 people, required the evacuation of 5,400 

others, and caused over $6.9 million in damages. In September 2008, the collision 

of a commuter train and a freight train in Chatsworth, CA, resulted in 25 deaths, 

125 injuries, and over $12 million in damages. 

RSIA—the first statute in almost 15 years that reauthorizes the Federal Railroad 

Administration’s (FRA) safety programs—requires FRA to undertake several 

wide-ranging tasks that broaden its safety-related responsibilities while it 

continues to meet its pre-existing responsibilities. Among these new 

responsibilities are requirements that FRA promulgate 17 rules to improve railroad 

safety. Because of this significant increase in the Agency’s rail safety 

responsibilities, we reviewed FRA’s implementation and oversight of the new 

safety rules. Our objectives were to assess FRA’s: (1) progress in completing the 

RSIA-required rules; and (2) ability to ensure compliance with the new rules. 

In conducting this audit, we reviewed RSIA and FRA documents related to 

regulatory development, promulgation, and enforcement. We interviewed FRA 

officials responsible for developing, issuing and ensuring industry compliance 

 1

Pub. L. No. 110-432, Div. A.
2

with rules. We also interviewed representatives of the railroad industry and

railroad labor organizations. We conducted this audit between February 2012 and 

January 2013, in accordance with generally accepted Government auditing 

standards. Exhibit A contains further details on our scope and methodology. 

RESULTS IN BRIEF

FRA has issued 8 of the 17 RSIA-required rules and has made progress on 

finalizing the remaining 9. However, the Agency issued seven of the eight after 

their statutory deadlines, and has missed the deadlines for six of the remaining 

nine. Weaknesses in FRA’s planning for its rulemaking work delayed rule

issuance. While FRA focused its early efforts almost entirely on the rule on 

positive train control (PTC),

2 Agency officials did not establish priorities for work 

on the other rules. Furthermore, FRA’s policy does not incorporate best practices 

for Federal Advisory Committees, and the Agency also did not follow its own 

policy for using its Rail Safety Advisory Committee (RSAC),

3 resulting in 

procedural inefficiencies. For example, FRA staff did not distribute an important

document in advance of a working group’s meeting, and the Agency’s economist 

did not identify the rule’s cost-benefit implications for stakeholders during group 

discussions. Delayed promulgation of RSIA-required rules delays the mitigation of 

railroad industry safety hazards that Congress intended the rules to address.

FRA did not provide its oversight staff with the guidance, training, and 

supervision required to oversee compliance with certain RSIA rules. The Agency

did not update its compliance manuals to reflect new rules before beginning 

oversight of five new rules—PTC, electronic recordkeeping for hours of service, 

concrete crossties, bridge safety standards, and camp car health and safety. 

Furthermore, FRA staff reported that they received insufficient training to oversee 

compliance with the PTC, camp car health and safety standards, and electronic 

recordkeeping rules. Finally, FRA has not defined what constitutes adequate 

supervisory review, and does not require documentation of supervisory reviews. 

As a result, supervisory review of safety oversight work has been limited and

inconsistent. The lack of updated compliance manuals, sufficient training, and 

consistent supervisory review of oversight work impedes FRA’s efforts to ensure 

compliance with RSIA rules.

 2

PTC is a communication-based system designed to prevent accidents caused by human factors, including train 

collisions, derailments due to speed, incursions into work zones, and movement of trains through switches left in wrong 

positions. Human factor accidents are accidents due to causes such as employee physical condition, improper 

communications, and improper train handling. 3

RSAC is a Federal Advisory Committee. These committees provide advice to the President and Executive Branch 

agencies on a broad range of issues that affect Federal policies and programs—including development of rules—and 

afford the public an opportunity to provide input to Government decisions. 
3

We are making a series of recommendations to strengthen FRA’s rulemaking 

planning process and subsequent oversight of implementation of new rules by the 

railroad industry.

BACKGROUND

RSIA requires FRA to complete a number of initiatives to improve rail safety. The 

17 new or revised rules will govern a wide variety of safety areas, including PTC, 

track maintenance, recordkeeping for employees’ hours of service, and 

highway-rail grade crossings.4 RSIA also mandated deadlines for 13 of the rules 

that span more than 4 years. 

FRA follows the standard process by which Federal agencies promulgate new or 

revised rules. After enactment of a Federal statute that requires an agency to 

promulgate rules, the agency initiates the rulemaking by preparing a proposed rule 

and publishing a Notice of Proposed Rulemaking (NPRM) in the Federal Register. 

An NPRM provides the public an opportunity to review and comment on the 

proposed rule. After the public comment period, the agency publishes a final rule 

that includes a discussion of the comments. The public then has 60 days to file 

petitions with the agency requesting reconsideration of the rule. After resolution of 

any petitions to reconsider, the rule is subject to judicial review in Federal court.

In 1996, FRA established RSAC, a Federal Advisory Committee, to assist in its 

development of rail safety rules. The RSAC process brings together stakeholders 

to facilitate communication and development of realistic rules that can be more 

readily and quickly implemented. RSAC members represent 39 entities, including 

the Federal Government, State governments, railroad industry associations, rail 

carriers, labor unions, railroad suppliers, and other industry associations. At its 

discretion, the Agency requests RSAC’s assistance, and RSAC forms a working 

group to address the task. Working groups develop recommendations that they 

send to the full Committee, which then recommends regulatory language to FRA. 

Though it is not required to, FRA generally develops its NPRMs based on RSAC’s 

recommendations. FRA staff represent the Agency on the working groups and 

provide leadership to guide working groups’ deliberations. The Agency has 

produced guidance that outlines goals for the process; defines the roles of each 

member of FRA’s team; and specifies requirements for communications within the 

team, with FRA management, with RSAC stakeholders, and with the Office of the 

Secretary of Transportation and the Office of Management and Budget. The 

guidance also calls for FRA’s team to plan for these working groups, and for 

senior management to approve the team’s positions, negotiation strategies, and 

 4

In addition to the 17 rules, RSIA requires FRA to develop a long-term safety strategy, issue 2 guidance documents, 

report to Congress on the results of 17 studies, and develop 2 model State laws.
4

timetables prior to working group meetings. The purpose of this planning is to 

allow the Agency to speak with one voice during negotiations, and ensure that 

working groups focus on realistic alternatives. 

FRA executes its inspection and compliance responsibilities through a staff of 

railroad safety experts. Safety inspectors are assigned to eight regions across the 

United States and specialize in one of five safety disciplines—operating practices; 

track; signal and train control; motive power and equipment; and hazardous 

materials. FRA also employs technical specialists in positive train control, rail and 

infrastructure integrity, and industrial hygiene. The specialists work throughout 

the country and report to Division directors in FRA’s headquarters in Washington, 

DC. Supervisors, also located throughout the country, are responsible for 

evaluating inspectors’ performance. 

FRA IS MAKING PROGRESS TOWARDS ISSUING RSIAREQUIRED RULES, BUT WEAKNESSES IN ITS PLANNING HAVE 

DELAYED COMPLETION 

FRA issued 8 of the 17 RSIA-required rules, and several others are nearing 

completion. However, weaknesses in the Agency’s planning for its rulemaking 

work have delayed rule issuance. FRA focused its early efforts almost entirely on 

the PTC rule, but Agency officials did not establish clear priorities for work on the 

other rules. Furthermore, FRA did not follow best practices for Federal Advisory 

Committees or its own policy for the use of RSAC, resulting in procedural 

inefficiencies such as no advance distribution of important documents.

FRA Has Made Progress on Issuing Rules but Missed Deadlines

FRA has issued eight rules, but missed statutory deadlines for seven, as shown in 

Table 1. These eight rules include those on PTC, bridge safety and concrete tie 

standards, and health and safety standards for camp cars—the camper-like units on 

rail cars that Norfolk Southern uses to house its track maintenance crews at work 

sites (see Exhibit C for further details).
5

Table 1: Final RSIA Rules

RSIA Section and Rule Topic RSIA Deadline Final Rule Date Missed 

Deadlines

104 - Positive Train Control (PTC) Nonea January 15, 2010

108 - Hours of Service 

Recordkeeping April 14, 2009 May 27, 2009 

202 - State Action Plans (Crossing 

Safety) October 16, 2009 June 28, 2010 

205 - Grade Crossing Emergency 

Reporting Number April 16, 2010 June 12, 2012 

402 - Conductor Certification April 16, 2010 February 8, 2012 

403 - Concrete Ties April 16, 2010 April 1, 2011 

417 - Bridge Safety Standards October 16, 2009 July 15, 2010 

420 - Camp Cars April 1, 2010 October 31, 2011 

Source: OIG Analysis

a

Although RSIA does not contain a deadline for the issuance of the PTC rule, it does contain a deadline for 

implementation of PTC systems by railroads.

As detailed in Table 2, FRA has made progress on the remaining 9 rules. These 

nine include those on risk reduction programs, minimum training standards and 

plans for safety-related railroad employees, and revisions of existing rules on drug 

and alcohol testing to include maintenance of way employees.5 Seven of the nine 

unissued rules also have mandated deadlines, six of which the Agency has missed. 

 5

Maintenance of way employees are workers that are responsible for the construction and maintenance of railroad 

rights of way.
6

Table 2: RSIA Rules in Progress

RSIA Section and Rule

Topic

RSIA Deadline Most Recent 

Action

Date of Most 

Recent Action

Missed 

Deadlines

103 - Risk Reduction 

Programs

October 16, 

2012 ANPRM October 8, 2010 

103 - System Safety 

Programs

October 16, 

2012 NPRM September 7, 2012



204 - Grade Crossing 

Inventory None NPRM October 18, 2012

401 - Minimum Training 

Standards and Plans

October 16, 

2009 NPRM February 7, 2012 

403 - Rail Integrity May 2, 2013 NPRM October 19, 2012

406 - Dark Territory 

Signaling

October 16, 

2009

NPRM in 

Development None Reported 

410 - Critical Incident 

Plans None Rulemaking 

Initiated

November 14, 

2008

412 - Drug and Alcohol 

Testing

October 16, 

2010

NPRM in 

Development None Reported 

413 - Emergency Escape 

Breathing Apparatus April 16, 2010 NPRM October 5, 2010 

Source: OIG Analysis

FRA’s delayed promulgation of the rules has deferred mitigation of railroad 

accidents that Congress intended the rules to address. For example, in the 

Committee Reports accompanying RSIA’s passage,6 Congress noted that human 

factors caused the largest percentage of accidents. However, the Agency’s 

promulgation of the rule setting minimum training standards for safety-related 

railroad employees—a rule intended to reduce human-factor accidents—remains 

incomplete even though the deadline was October 16, 2009. Even though this 

rule’s deadline passed over 3 years ago, Agency officials said they made it a high 

priority. Similarly, the rules that require freight and passenger railroads to 

implement risk reduction programs and system safety programs are intended to 

reduce the incidence of human-factor-caused accidents, but are still not finalized. 

Furthermore, rules on emergency breathing apparatuses, grade crossing 

inventories, and rail integrity are intended to mitigate risk of injury and death due 

to hazardous materials releases, highway-rail grade crossings, and track defects, 

respectively, but they are also all still outstanding.

FRA Focused Early Efforts on the PTC Rule, but Prioritization for the 

Other Rules Remains Unclear 

FRA officials informed us that they conducted comprehensive planning to 

prioritize RSIA rulemaking projects. However, they could not provide evidence of 

 6

S. Report 110-270 and H. Report 110-336
7

their decision making process, and prioritization of projects beyond the highest 

priority—the PTC rule—is unclear. According to FRA officials, the Agency

focused first on the PTC rule due to the size and scope of its expected impact on 

the railroad industry.7 The Agency also interpreted the statute’s explicit deadlines 

for industry implementation of PTC as deadlines for its promulgation of a rule. 

Furthermore, according to FRA officials, the PTC rule was a highly technical one

that required significant resources from both the Agency and external 

stakeholders. FRA issued its initial rule8 well in advance of other rules because it 

had allocated a substantial number of personnel to the rule’s development. 

Best practices outlined by the Administrative Conference of the United States9 call 

for senior managers of Federal regulatory agencies to develop strategies for setting 

rulemaking priorities and tracking initiatives. Other than the PTC rule as its first 

priority, however, FRA could not provide a record of its decision making on how 

it prioritized the other RSIA rules, and many of the officials involved in the 

process have left the Agency. Absent documentation, FRA officials told us that the 

Agency used a set of ten criteria—including project complexity, safety 

implications, and statutory deadlines10—to prioritize its RSIA rulemakings. 

However, based on our analysis, FRA did not apply these criteria consistently. For 

example, Agency officials stated that they gave high priority to certain projects—

chief among them the PTC rule—because they were complex, and others—such as 

the rule on State action plans to address highway-rail grade crossing safety—

because they were simple. They stated further that they gave high priority to rules 

with statutory deadlines. They also informed us that some rules with deadlines—

such as those on the health and safety standards for camp cars and emergency 

notification systems for highway-rail grade crossings—were given lower priority 

due to the Agency’s belief that the related safety issues had been largely resolved 

without regulatory action. 

FRA acknowledges that there is no document that clearly records how it made its 

decisions on prioritization and related actions. In annual reports to Congress on its 

RSIA initiatives, FRA summarized the mandates of the law and provided updates 

on the status and planned steps to complete the requirements. The Agency also 

cited priorities, but did not include its rationale for the prioritization of certain 

rules over others or explanations of why priorities changed. Furthermore, in at 

 7

In the regulatory impact analysis accompanying the first rulemaking on PTC, FRA estimated the cost to industry of 

implementing the rule at between $9.6 billion and $13.2 billion.

8

Due to litigation over the rule, FRA is required to issue two additional amendments to the rule on PTC, one of which is 

not yet final. 

9

The Administrative Conference of the United States is an independent Federal Agency. One of its purposes is to study 

the efficiency, adequacy, and fairness of the administrative procedures—including rulemaking—used by agencies in 

carrying out programs and to make recommendations to improve them. 10Their other criteria were: the number of staff needed to complete a rulemaking; assigned staff’s existing workloads; 

whether or not RSAC would participate; similar rulemakings already underway; a rulemaking’s impact on the regulated 

community; policy and political interest associated with a rulemaking; and time needed to complete a rulemaking. 
8

least one report, FRA identified a finalized rule as a high priority. For example, in 

its February 2011 report, the Agency cited work to finalize the rule on electronic 

recordkeeping for hours of service as a top priority, even though it had issued the

final rule 2 years prior to the report. In the July 2012 report, FRA gave the same

rule a lower priority and used language nearly identical to that in its previous 

report to describe its actions on the rule. 

Moreover, managers gave multiple explanations of the Agency’s rationale for 

prioritization. For example, according to one Agency manager, FRA started work 

on the rule on conductor certification almost immediately after RSIA’s enactment 

because it had an existing rule to use as a model and development would be 

simple. However, a more senior official later informed us that the Agency gave 

this rule high priority because it was a high priority for certain labor organizations.

Weaknesses in FRA’s Planning for the RSAC Working Group 

Meetings Resulted in Inefficiencies

FRA used RSAC to develop 11 of the 17 RSIA rules. However, FRA did not 

follow best practices or its own policy for use of the RSAC process, resulting in 

procedural inefficiencies. Furthermore, FRA’s use of RSAC did not result in

significant reductions in the time needed to finalize the rules, despite Agency 

officials’ naming faster rule issuance as one of the process’s major benefits. The 

General Services Administration (GSA), the Agency responsible for oversight of 

Federal Advisory Committees, has established best practices11 for management of 

successful committees. These best practices call for agencies to plan meaningful 

agendas and carefully organize meetings’ logistics. The best practices also suggest 

that agencies distribute agendas and materials in advance of meetings to help 

committee members prepare, and to make sure that members clearly understand 

the issues that fall within the committee’s scope. 

FRA’s own policy on RSAC’s process incorporates some but not all of these best 

practices. For example, the policy directs teams to plan for each RSAC working 

group meeting to ensure that all issues are identified, all team members’ concerns 

over the issues are addressed, and all team goals are met. However, the policy

does not require FRA staff to distribute meeting materials in advance to allow 

committee members to prepare. For example, prior to an RSAC working group 

meeting that we observed on an RSIA rule, FRA staff had not provided to 

stakeholders copies of the rule outline that they planned to use as the basis for 

meeting discussions. As a result, some stakeholders were not prepared to discuss 

 11The General Services Administration Office of Government-wide Policy, Advisory Committee Engagement Survey 

(ACES) Best Practices Report, March 2005.
9

FRA’s proposal and some major issues were tabled for a second day of 

discussions.

Furthermore, FRA staff did not follow the Agency’s policy on communicating 

important information to the working group regarding regulatory impact 

analyses.12 The policy requires FRA staff to make stakeholders aware of the costs

and benefits of the issues under discussion. At one working group meeting, 

however, committee members expressed confusion over how FRA staff had 

arrived at cost and benefit estimates that had been published in the NPRM for the

rule. A time-consuming discussion took place about how to correct the 

assumptions FRA staff had made in the regulatory impact analysis. At a working 

group meeting we attended for a different RSIA rule, FRA’s economist did not 

identify general cost-benefit implications during discussions of the proposals.

Consequently, because they did not have this information, the working group 

members could not compare FRA’s assumptions to their own experience during 

the group’s discussion. 

FRA missed deadlines for 8 of the 11 rules it developed using RSAC. According 

to FRA officials, working groups’ consensus prior to issuance of NPRMs allows 

the Agency to move more quickly from NPRMs to final rules, even though it is 

not a formal goal of the process. While the complexities of any given rule may 

make direct comparisons of rulemakings difficult, analysis of the time FRA 

required to issue final rules after NPRM publication is illustrative. FRA’s use of 

the RSAC process generally did not result in faster rule development, despite the 

intended benefit of making rule development more efficient. Table 3 compares the 

days between NPRM and final rule for completed RSIA rules for which FRA used 

RSAC to those that it did not.

 12A regulatory impact analysis is an assessment, including the underlying analysis, of benefits and costs anticipated 

from the regulatory action, together with a quantification of those benefits and costs, to the extent feasible.
10

Table 3: Time Required to Finalize RSIA Rules

RSIA Section and Regulatory Topic RSAC Days Between NPRM 

and Final Rule

§ 104 – PTC Yes 162

§ 108 - Hours of Service Recordkeeping Yes N/Aa

§ 402 - Conductor Certification Yes 383

§ 403 - Concrete Ties Yes 213

§ 417 - Bridge Safety Standards Yes 334

§ 202 - State Action Plans No 229

§ 205 - Grade Crossing Emergency 

Reporting Number No 459

§ 420 - Camp Cars No 305

Source: OIG Analysis

a

FRA took advantage of an RSIA option to use RSAC to develop the rule and then proceed directly to final rulemaking 

without issuing a NPRM.

Overall, the RSAC members we spoke with believed the RSAC provided value in 

rule development. They informed us that RSAC can be an effective process for 

bringing all stakeholders to the table to develop rules. However, several noted 

ways that FRA could improve the process that would eliminate the procedural 

inefficiencies that the RSIA working groups experienced. For example, one 

member informed us that, in general, RSAC members do not receive FRA’s 

assessments of proposed rules’ cost and benefit implications until FRA publishes

its regulatory impact analyses in NPRMs. The member noted that it would be 

helpful if economists were to make working group members aware of their 

analyses during group discussions to allow stakeholders to respond to FRA’s 

estimates. 

INSUFFICIENT GUIDANCE, TRAINING, AND SUPERVISORY 

REVIEW HAVE HINDERED OVERSIGHT OF COMPLIANCE WITH 

RSIA RULES 

FRA did not provide its oversight staff with the guidance, training, and 

supervision they needed to oversee compliance with certain RSIA rules. FRA 

began oversight of its new rules on PTC, hours of service recordkeeping, concrete 

crossties, bridge safety standards, and camp car health and safety before updating 

its compliance manuals and related training to reflect the new rules. As a result, 

FRA staff lacked the guidance and training that would have enhanced their 

abilities to conduct effective oversight. Furthermore, FRA management and staff 

informed us that some oversight work received little supervisory review. 
11

FRA Did Not Update Compliance Manuals before Starting RSIA Rule

Enforcement Activities 

FRA began compliance oversight for RSIA rules

13 before it provided completed 

compliance manuals to its oversight staff. The Government Accountability Office 

(GAO), which establishes standards for internal control in the Federal 

Government,14 directs Federal managers to clearly document internal controls in 

management directives, administrative policies, or operating manuals. 

Additionally, according to GAO, management is responsible for proper 

maintenance of the documentation and records. FRA produces compliance 

manuals for each of its safety disciplines. These manuals are the primary materials 

for inspection staff’s classroom and on-the-job training. FRA also publishes these 

compliance manuals on its Website to set organizational expectations for 

inspection tasks, establish investigation requirements, and explain FRA’s 

interpretation and application of rules to both the railroads it oversees and the 

public. In addition to the guidance provided in the manuals, FRA inspectors 

typically receive annual training on the rules they enforce. 

FRA has published two compliance manuals that cover RSIA rules, but three 

remain outstanding. As shown in Table 4, inspectors that oversee compliance on 

hours of service recordkeeping and bridge safety have been performing 

inspections for over a year without current compliance manuals. Additionally, 

inspectors did not have a compliance manual to guide them for the three 

inspections of camp cars they conducted. 

 13To analyze FRA’s ability to ensure compliance with the new rules, we limited our scope to final rules. See Exhibit A

for additional details about our methodology. 

14GAO, Standards for Internal Control in the Federal Government, November 1999. 
12

Table 4. Effective Dates of FRA’s Compliance Manuals 

Rule Topic Rule’s Effective Date

FRA 

Discipline

Most Recent 

Update to 

Manual

Number of 

Days Without 

Manual

PTC March 16, 2010 Signal and 

Train Control

April, 2012 747

Electronic 

Hours of 

Service 

Recordkeeping

July 16, 2009 Operating 

practices

No Manual in 

Effecta

1233

Conductor 

Certification

February 8, 2012 Operating 

Practices

No Manual in 

Effecta

296

Concrete Ties November 8, 2011 Track 

Maintenance

July, 2012 236

Bridge Safety 

Standards

September 13, 2010 Rail and 

Infrastructure 

Integrity

No Manual in 

Effect

809

Camp Cars December 30, 2011 Industrial 

Hygiene

No Manual in 

Effect

336

Source: OIG analysis of FRA data. a

FRA published a new Operating Practices Manual in November 2012, but the sections related to electronic 

recordkeeping of hours of service and conductor certification were not included.

Twelve of the 36 FRA safety staff that we interviewed15 told us that to enforce 

new rules without updated compliance manuals, they relied on the rules’ text and 

preambles published in the Federal Register. They also said that regulatory 

language is often open to interpretation, and to clarify aspects of the rules, they 

discussed their interpretations with colleagues and supervisors. For example, 

FRA’s new bridge safety standards went into effect in September 2010, but over 

2 years later, FRA has not yet issued a compliance manual. According to FRA 

officials, at the time of our review, the manual was still under development and 

had not been sent to FRA’s Office of Chief Counsel for review. One of the 

Agency’s five bridge safety specialists stated that a compliance manual is 

important for correct interpretation of the new rule.

Similarly, FRA’s new camp car health and safety rule went into effect in 

December 2011. FRA began enforcement activities in January 2012, but has not 

yet provided its inspectors with a compliance manual. According to both FRA 

inspectors that had conducted camp car inspections, the lack of a compliance 

manual makes it difficult to conduct complete oversight. For example, the new 

camp car rule defines potable water as water that meets the U.S. Environmental 

 15We interviewed all staff who have been responsible for oversight of the PTC (seven specialists and two senior test 

monitors), bridge safety standards (five specialists and the chief engineer), and camp car rules (two inspectors). We 

also interviewed random samples of ten operating practices and ten track inspectors. FRA employs 67 inspectors in 

operating practices discipline, which oversees compliance with hours of service rules. FRA employs 73 inspectors in its 

track discipline, which oversees the concrete cross tie rule. See Exhibit A for additional details on our methodology.
13

Protection Agency’s National Primary Drinking Water Standards. The rule also 

contains requirements for the storing, testing, and distributing of potable water for 

camp car inhabitants. However, an FRA inspector responsible for two camp car 

inspections informed us that because he had no guidance on how to test water 

quality, he would report that the water was potable if he observed that it looked 

clear. According to FRA officials responsible for the manual’s development, as of 

July 2012, the manual was still incomplete and would have to be reviewed by 

FRA’s Office of Chief Counsel before issuance to inspectors. 

FRA issued compliance manuals on the PTC and concrete crosstie rules after the 

rules were in effect. According to FRA officials, an internal review of the PTC 

manual—issued in April 2012, over 2 years after the rule’s effective date—

contributed to the manual’s late issuance. Similarly, FRA issued its track safety 

standards manual, which includes guidance on concrete crosstie rules, in July 

2012—almost 8 months after the concrete crossties rule went into effect. FRA 

officials attributed this delay to a lengthy review process and the collaboration 

with the training division on the manual’s update. According to FRA, compliance 

manuals are important for staff’s interpretation of the rules and the railroads’ 

education on the rules. 

This lack of current compliance manuals leaves FRA inspectors without formal, 

written guidance on complete oversight of the RSIA-required rules. Consequently, 

inspectors often develop ad hoc interpretations for enforcing the rules. Similarly, 

because they do not have access to FRA’s interpretation of the rules in these 

manuals, railroads and other industry stakeholders face difficulties planning for 

and adhering to new regulatory requirements.

Some Enforcement Staff Have Not Received Training on Compliance 

Enforcement 

We spoke with 21 staff responsible for oversight of three RSIA rules—PTC, camp 

car health and safety standards, and electronic hours of service recordkeeping—

and 13 informed us that they lacked sufficient training to oversee the industry’s 

implementation of the rules. According to GAO’s standards, personnel need a 

level of competence that allows them to accomplish their assigned duties. 

Additionally, according to GAO, management must identify the needed

knowledge and skills for various jobs and provide appropriate training.

While FRA policy requires training assessments for new rules, we found 

differences between managers’ assessments of inspectors’ training needs and what 

the inspectors told us their needs were. For example, Agency officials informed us 

that they did not have time to develop PTC training due to heavy workloads. FRA 

therefore provided on-the job training by sending PTC staff from FRA’s regions 
14

where little PTC testing16 occurs to assist with oversight in regions where testing 

does occur. Six of the nine PTC oversight staff informed us that they need 

additional training in order to be confident in their abilities to oversee PTC tests.

Both FRA inspectors that have conducted camp car inspections under the new 

health and safety standards reported that their oversight has been incomplete 

because it requires use of equipment with which they have no experience or 

training. For example, the rule contains requirements for the amount of light inside 

camp cars. The inspectors, however, informed us that they lacked training on how 

to measure the lighting and did not have the proper measuring equipment.

Consequently, they did not review compliance with this part of the rule. FRA 

management stated that the final compliance manual will contain clear instructions 

for complete oversight of the rule, including the use of necessary equipment, and 

staff will not need additional training. 

While all OP inspectors we spoke with indicated that they had received sufficient 

training about the content of the new hours of service rule, half of them also said 

they lacked sufficient training on how to access electronic records of employees’ 

hours of service—or hours spent on work shifts. In order to retrieve hours of 

service records from the railroads’ electronic systems, usually in response to an 

employee complaint or as part of an accident investigation, inspectors had 

to request assistance from FRA management or railroad employees. This need for 

assistance made their inspections of the records more time consuming. FRA 

management explained that there is training on electronic recordkeeping under 

development, but in general, hours of service enforcement is not a top priority for 

the OP Division because other rules are more likely to improve safety. 

Insufficient training for enforcement staff impedes FRA’s efforts to ensure that 

railroads comply with its rules. 

FRA Does Not Consistently Conduct Supervisory Reviews

FRA’s supervisory review of oversight work has been inconsistent. Staff and 

management responsible for enforcement of five regulatory areas—bridge safety 

standards, hours of service, concrete crossties, camp car health and safety 

standards, and PTC—informed us that there is a lack of supervisory review of 

some oversight work. GAO’s Standards for Internal Control call for Federal 

management to provide qualified and continuous supervision to ensure that 

internal control objectives are achieved. The Standards specify that ongoing 

monitoring should occur in the course of, and be integrated with, an agency’s 

normal operations. FRA has implemented this standard by requiring that 

 16FRA staff oversee the tests that railroads conduct to ensure that PTC technology functions safely.
15

supervisors review their staff’s work. However, the Agency has not defined what 

constitutes a qualified and continuous review, and does not require that 

supervisors create and maintain records of their reviews.17

In the absence of Agency policy for the conduct and documentation of supervisory 

review, supervisors’ reviews of safety oversight work have been inconsistent. For 

example, most OP and track inspectors we spoke with reported that continuous 

supervisory review of their oversight work on the hours of service and concrete 

crosstie rules does occur. Four of the 20 inspectors we interviewed, however,

informed us that, to their knowledge, their supervisors conducted few if any

reviews of their enforcement work. Managers in both the OP and track divisions 

reported that direct supervisors are responsible for reviews of inspectors’ work. 

However, they also informed us that FRA does not have policies on the frequency 

of supervisory review. Furthermore, while supervisors are responsible for 

documenting annual performance reviews, OP and track division policies do not 

call for supervisors to document their ongoing reviews of inspectors’ oversight 

work. 

Staff who oversee rules on bridge safety standards informed us that they had no 

knowledge of ongoing review of their inspections. The bridge specialists’ 

supervisor told us that he dedicates his time to reviews of railroads’ plans for 

maintenance of bridge structural integrity—the same work that the specialists 

do—but he does not review the specialists’ work. 

Staff and management responsible for oversight of the camp car and PTC rules 

informed us that there was a lack of qualified supervisory review of some work. 

Track division staff have been inspecting camp cars to supplement the industrial 

hygiene division’s staff, but there has been little supervisory review of the track 

division staff’s inspections by qualified industrial hygienists. Two of seven PTC 

specialists informed us that their supervisors did not provide regular feedback on 

their oversight work. One staff person attributed this lack of review to the 

supervisor’s lack of knowledge of the PTC system he oversees. 

This lack of continuous and qualified supervisory review of oversight work 

compromises FRA’s ability to ensure that oversight of RSIA rules is correct and 

complete.

 17FRA does require supervisors to document reviews of safety violation reports. By issuing a violation report to a 

railroad, FRA starts the process by which instances of noncompliance with Federal safety rules are ultimately brought 

to the railroad’s attention through the civil penalty process. Supervisors indicate their review and approval of 

inspectors’ violation reports by forwarding them to FRA’s Office of Chief Counsel for review and assessment of civil 

penalties.
16

CONCLUSION

RSIA gave FRA new regulatory responsibilities that have significant implications 

for railroad industry safety. Achievement of the safety-related outcomes that 

Congress intended under RSIA is dependent upon Agency managers’ planning and 

direction of resources and FRA’s attention to all of its oversight responsibilities. 

Deficiencies in FRA’s planning and actions to ensure compliance with new rules 

will hinder the Agency’s ability to meet its congressional mandates and improve 

rail safety.

RECOMMENDATIONS

We recommend that the Federal Railroad Administrator:

1. Develop a plan for completion of outstanding RSIA-required rulemakings. 

The plan should include milestones for completion and describe the 

Agency’s rationale for prioritization of rulemakings.

2. Conduct an assessment of the way that RSAC is used to identify 

improvements that could improve efficiency.

3. Require the updating of compliance manuals or other written guidance by 

rules’ effective dates to ensure that FRA inspectors and railroads are aware of 

the rules’ requirements and FRA’s interpretations of the rules.

4. Establish a formal process for inspectors to participate in the identification of 

training needs for new rules. 

5. Require inspectors to receive updated training prior to conducting 

compliance inspections to enforce new or revised rules.

6. Develop a policy that defines what constitutes qualified and continuous 

supervisory reviews and requires supervisors to create and maintain records 

of their reviews. 

AGENCY COMMENTS AND OFFICE OF INSPECTOR GENERAL 

RESPONSE

We provided a draft of this report to FRA on January 18, 2013, and received the 

Agency’s response, which is included in its entirety as an appendix to this report, 

on March 21, 2013. In addition, FRA provided technical comments on a draft of 

this report, which we incorporated, as appropriate. FRA concurred or partially 
17

concurred with all of our recommendations. FRA’s proposed actions for 

recommendation 2 are responsive and we consider it resolved but open pending 

completion of planned actions. 

However, in the introductory comments in its response, FRA incorrectly states that 

our conclusions leading to recommendation 2 are based on our partial attendance 

at only 3 of 50 RSAC meetings. In fact, our findings regarding the RSAC process 

derive from numerous meetings with FRA staff and managers and with a wide 

variety of stakeholder groups. Our observations of the RSAC meetings simply 

corroborated many of the concerns previously raised in those meetings. We have 

modified our scope and methodology in Exhibit A to more fully explain our work 

related to this finding.

FRA’s proposed actions for recommendations 1, 3, 4, 5, and 6 do not address the 

intent of our recommendations and we consider those recommendations open and 

unresolved. Specifically:

For recommendation 1, FRA partially concurred. The Agency proposes providing 

us with a document that broadly explains its prioritization and describes its 

progress on each remaining RSIA rulemaking requirement with associated 

milestones. However, we do not consider FRA’s proposed actions responsive. To 

consider the recommendation resolved, we will need additional information on 

FRA’s planned actions. Specifically, FRA’s document will need to outline a 

strategy for completing outstanding rulemaking requirements along with 

associated milestones, the Agency’s rationale for prioritization of the 

requirements, and how that prioritization will be translated into action. 

For recommendation 3, FRA partially concurred and indicated that it plans to 

“continue to ensure that inspectors and regulated entities have guidance documents 

in advance of the rules’ effective dates.” However, we found that the guidance 

provided to inspectors did not equip FRA inspectors to perform effective 

oversight. In its introductory comments, FRA cited positive replies to two 

questions from a broad survey of the Office of Railroad Safety workforce. 

Specifically, 80 percent agreed that the “workforce has the job-relevant knowledge 

and skills necessary to accomplish organizational goals[,]” and 77 percent of 

respondents agreed that they had “enough information to do [their jobs] well.” We 

cannot comment on the validity of the survey and do not have specifics on the 

response rate FRA received. In contrast to a broad based employee satisfaction 

survey, we spoke with numerous FRA staff responsible for oversight of the PTC 

rule, the bridge safety standards rule, and conducting inspections of camp cars, 

and additional staff from FRA’s track and operating practices disciplines. Many of 

these individuals told us that in the absence of additional written guidance, they 

relied on discussions with their colleagues to clarify aspects of rules that are open 
18

to interpretation. FRA’s plan to continue its current practice does not address the 

concern we identified. Therefore, we request that FRA reconsider its response and 

detail how it will develop a policy or alternative procedures to ensure that 

inspectors have sufficient written guidance prior to undertaking enforcement 

activities for new rules. 

For recommendation 4, FRA partially concurred. FRA references its performance 

management system, which provides for employee involvement in performance 

plan development and the use of performance appraisals as a basis for determining 

their training needs. FRA’s plan to reemphasize its current approach is a 

misinterpretation of the intent of our recommendation. We therefore have 

modified the language of our recommendation to clarify our intent. We recognize 

that in discussions regarding employees’ performance, supervisors likely discuss 

employees’ training needs. However, our concern is that FRA is not addressing 

specific training needs to meet newly developed requirements. Because many of 

the inspection staff we spoke with identified additional training needs in light of 

their new responsibilities, FRA’s plan to reemphasize its current approach is not 

sufficient. We agree with FRA that the Agency should not create redundant 

requirements, especially if those requirements do not address the identified 

management control weakness. We request that FRA reconsider its response and 

provide details on how it plans to meet the intent of the recommendation.

For recommendation 5, FRA concurred and stated that its current practice for 

training inspectors on new rules involves the use of “discipline-specific and multiregion meetings as cost-effective opportunities for rule development teams to 

discuss implementation with front-line inspectors.” However, the supervisors of 

staff responsible for overseeing three of FRA’s new rules informed us that training 

was not available at the time that enforcement began. Furthermore, many staff 

responsible for overseeing these rules informed us that they lacked sufficient 

training to oversee the industry’s implementation of the new rules. As a result, 

FRA’s intent to address our recommendation by incorporating current practice into 

policy is insufficient to ensure that FRA’s staff can confidently oversee railroads’ 

compliance with the Agency’s rules. Accordingly, FRA’s planned actions are not 

responsive and we consider the recommendation unresolved. 

For recommendation 6, FRA concurred and stated that it will review in more detail 

its supervisory review practices, and within 180 days of issuance of this report, 

provide us a summary of the review. However, as we noted in our report, the 

Agency has not defined what constitutes qualified and continuous supervisory 

review for all inspection activities, and does not require supervisors to maintain 

records of their reviews. FRA’s review of its supervisory practices will need to 

address these concerns in order for us to consider their actions fully responsive

and the recommendation resolved. 
19

ACTIONS REQUIRED

FRA’s planned actions and timeline for recommendation 2 is responsive, and we 

consider that recommendation resolved but open pending completion of the 

planned actions. FRA’s planned actions to address recommendations 1, 3, 4, 5, 

and 6 are not responsive. We consider these recommendations open and 

unresolved. In accordance with Department of Transportation Order 8000.1C, we 

request that FRA provide additional information regarding their planned actions

for recommendations 1, 3, 4, 5, and 6, as described above, within 30 days of this 

report. We appreciate the courtesies and cooperation of FRA representatives 

during this audit. If you have any questions concerning this report, please call me 

at (202) 366-9970, or Yana Hudson, Program Director, at (202) 366-2985.

#

cc: DOT Audit Liaison, M-1 

FRA Audit Liaison, RAD-43
20

Exhibit A. Scope and Methodology

EXHIBIT A. SCOPE AND METHODOLOGY

We conducted our work from February 2012 through January 2013 in accordance 

with generally accepted Government auditing standards. Those standards require 

that we plan and perform the audit to obtain sufficient, appropriate evidence to 

provide a reasonable basis for our findings and conclusions based on our audit 

objectives. We believe that the evidence obtained provides a reasonable basis for 

our findings and conclusions based on our audit objectives.

To evaluate FRA’s progress developing and issuing RSIA-required rules, we 

analyzed RSIA to determine which rules it directs FRA to promulgate, and 

verified the status of the rules as of October 31, 2012, using documents obtained 

from the Federal Register, the Unified Regulatory Agenda, and FRA. To 

determine how late overdue rules were, we calculated the number of days that had 

elapsed after the statutory deadlines. We interviewed the Acting Associate 

Administrator, Staff Directors responsible for appropriate Divisions, and 

appropriate Specialists from FRA’s Office of Safety Assurance and Compliance; 

several Economists and the Director of the Office of Safety Analysis; and trial 

attorneys and Deputy Associate Chief Counsels from FRA’s Office of Chief 

Counsel to identify the challenges FRA faced in developing and issuing RSIA 

rules. 

To assess FRA’s planning for RSAC working group meetings, we analyzed best 

practices for the management of Federal Advisory Committees published by the 

GSA, assessed FRA’s policy for the RSAC process, and conducted more than 15

interviews with FRA staff and managers involved in the development of rules 

using the RSAC process and representatives of RSAC member organizations. We

also attended three RSAC meetings to corroborate the information provided in 

those interviews.

To assess FRA’s ability to ensure compliance with RSIA rules, we examined all 

five final RSIA-required rules for which FRA had oversight responsibilities as of 

or prior to July 1, 2012 and for which FRA will have ongoing oversight 

responsibility. These five rules were the PTC, electronic hours of service 

recordkeeping, concrete crossties, bridge safety standards, and camp car rules. We 

met with Staff Directors and Specialists in FRA’s Office of Safety Assurance and 

Compliance to determine FRA’s progress updating compliance manuals and 

training to incorporate new rules. 

To determine the preparedness of FRA’s safety inspectors to enforce the RSIA 

rules, we conducted structured interviews with 36 inspectors responsible for the 

oversight of all five rules within the scope of the analysis. We spoke with all FRA 

staff who have been responsible for overseeing PTC (seven inspectors and two 
21

Exhibit A. Scope and Methodology

senior test monitors), bridge safety standards (five specialists), and camp car rules

(two inspectors). For electronic hours of service recordkeeping, and concrete 

crossties, we coordinated with OIG’s statistician to select, from the Department of 

Transportation’s Pay and Personnel database, a random sample of 10 out of 

73 track and 10 out of 67 OP inspectors. Because our samples were random, they 

are unbiased, but because of small sample sizes, they may not be representative.

Only one railroad, Norfolk Southern, is affected by the camp car rule because it is 

the only one that houses employees in camp cars. To determine whether Norfolk 

Southern had received sufficient guidance from FRA about the new rule and what 

role FRA officials have played in overseeing Norfolk Southern’s 

continued compliance, we visited the Norfolk Southern railroad to meet with 

officials and see a set of refurbished camp cars.
22

Exhibit B. Activities Visited or Contacted

EXHIBIT B. ACTIVITIES VISITED OR CONTACTED

• Federal Railroad Administration, Headquarters (DC)

o Office of Chief Counsel

o Office of Safety Assurance and Compliance

 Industrial Hygiene Division

 Operating Practices Division

 Rail Infrastructure and Integrity Division

• Bridge and Structures Safety Staff

 Signal and Train Control Division

• PTC Staff

 Track Division

o Office of Safety Analysis

 Railroad Safety Information Management Division

 Risk Reduction Program Division

 Highway-Rail Crossing and Trespasser Programs Division

 Railroad Safety Technical Training and Standards Division

 Safety Regulatory Analysis Division

• Offices of the Regional Administrators (Inspection staff)

o Region 1, Cambridge, MA

o Region 2, Crum Lynne, PA

o Region 3, Atlanta, GA

o Region 4, Chicago, IL

o Region 5, Ft. Worth, TX

o Region 6, Kansas City, MO

o Region 7, Sacramento, CA

o Region 8, Vancouver, WA

• RSAC working group meetings

Labor Organizations

• United Transportation Union (UTU)

• Brotherhood of Maintenance of Way Employees Division (BMWED)

Trade Associations

• Association of American Railroads (AAR)

• National Railroad Construction and Maintenance Association (NRCMA)
23

Exhibit B. Activities Visited or Contacted

• American Short Line & Regional Railroad Association (ASLRRA)

• American Public Transit Association (APTA)

Railroads

• Norfolk Southern (NS)
24

Exhibit C. FRA’s PROGRESS ON RSIA-MANDATED RULES

EXHIBIT C. FRA’S PROGRESS ON RSIA-MANDATED RULES 

RSIA Section Description of Rules Requirements and FRA's Progress to 

Date

Rule's 

Status

Rulemaking in Progress:  Rulemaking Complete: 

§ 103

Risk Reduction 

Programs

Requires FRA to issue rules requiring all Class I freight 

railroads and freight railroads with inadequate safety 

performance to develop and implement safety risk reduction 

programs that systematically evaluate railroad safety risks on 

the railroads' systems and manage those risks in order to 

reduce the number and rates of railroad accidents, injuries, and 

fatalities. The deadline for issuance of this rule was October 

16, 2012.

FRA issued an Advanced Notice of Proposed Rulemaking 

(ANPRM) on December 2, 2010, and a Notice of Proposed 

Rulemaking (NPRM) is currently under development. 



§ 103

System Safety 

Programs

Requires FRA to issue rules requiring all intercity passenger 

and commuter railroads to develop and implement system 

safety programs that systematically evaluate railroad safety 

risks on the railroads' systems and manage those risks in order 

to reduce the number and rates of railroad accidents, injuries, 

and fatalities. The deadline for issuance of this rule was 

October 16, 2012.

FRA issued an NPRM on August 17, 2012 and a Final Rule is 

currently under development.



§ 104

Positive Train 

Control

(PTC)

Requires FRA to issue a rule which establishes in appropriate 

detail the essential functions of PTC systems and the process 

by which those systems will be qualified by FRA. The rule must 

require all Class I, intercity passenger, and commuter railroads 

to submit to FRA a plan for implementation of positive train 

control by December 31, 2015. 

FRA issued a final rule on December 30, 2009, with 

amendments published on September 15, 2010, and May 9, 

2012. As a result of a settlement agreement related to pending 

litigation, FRA is developing amendments to the rule.



§ 108 

Hours of 

Service 

Recordkeeping

Requires FRA to issue a rule that revises hours of service 

recordkeeping regulations and authorizes electronic 

recordkeeping for rail employees' hours of service. The 

deadline for issuance of this rule was April 14, 2009.

FRA issued its final rule on May 19, 2009, over a month 

(35 calendar days) after the deadline established in RSIA.


25

Exhibit C. FRA’s PROGRESS ON RSIA-MANDATED RULES

§ 202

State Action 

Plans for 

Crossing Safety

Requires FRA to issue a rule to require the 10 States with the 

highest number of grade crossing collisions over the previous 

3 years to submit grade crossing safety plans to FRA for 

approval. The deadline for issuance of this rule was October 

16, 2009

FRA issued its final rule on June 22, 2010, almost 8 and a half

months (249 calendar days) after the deadline established in 

RSIA.



§ 204

Inventory of 

Grade Crossings

Requires FRA to issue a rule mandating reporting to the 

National Highway-Rail Crossing Inventory by all States and 

railroads.1

FRA has established guidance for the States and railroads and 

issued a NPRM on October 12, 2012.



§ 205

Grade Crossing 

Emergency 

Reporting 

Systems

Requires FRA to issue a rule calling for all railroads to establish 

reporting systems for the public to advise them of safety issues 

at their grade crossings. The deadline for issuance of this rule

was April 16, 2010.

FRA issued its final rule on June 1, 2012, over 2 years (777

calendar days) after the deadline established in RSIA.



§ 401

Minimum 

Training 

Standards and 

Plans

Requires FRA to issue a rule establishing minimum training 

standards for all safety-related railroad employees and to 

require the railroads to submit to FRA for approval plans for 

training programs that meet those standards. The deadline for

issuance of this rule was October 16, 2009.

FRA issued an NPRM on January 25, 2012. FRA held a 

meeting with the RSAC Working Group tasked with developing 

this rule to discuss the comments the Agency received in 

response to its proposed rule on May 8, 2012. A final rule is 

under development.



§ 402

Certification of 

Conductors

Requires FRA to issue a rule requiring the certification of 

railroad conductors. Railroads’ certification programs should 

meet the minimum training standards established pursuant to 

§401.The deadline for issuance of this rule was April 16, 2010.

FRA issued a final rule on October 26, 2011, over a year and 

half (558 calendar days) after the deadline established in RSIA.

In response to petitions for reconsideration, FRA issued 

amendments on February 2, 2012.



 1

The Moving Ahead for Progress in the 21st Century Act of 2012 (Pub. L. No. 112-141) repealed the RSIA mandate 

that FRA issue a rule requiring states to update the inventory, but the mandate regarding railroad reporting stands.
26

Exhibit C. FRA’s PROGRESS ON RSIA-MANDATED RULES

§ 403

Rail Integrity

Requires FRA to conduct a study of inspection practices and 

then issue rules based on the study's results within two years 

of the study’s completion.

FRA has completed the study and issued a NPRM on 

October 12, 2012. The study was published on May 2, 2011. 

As a result, the final rule deadline is May 2, 2013. 



§ 403

Concrete Ties

Requires FRA to issue a rule on the integrity and safety of 

concrete crossties. The deadline for issuance of this rule was

April 16, 2010.

FRA issued its final rule on March 24, 2011, almost a year and 

a half (342 calendar days) after the deadline established in 

RSIA. The rule was subsequently amended in response to 

petitions for reconsideration.



§ 406

Signaling in 

Dark Territory

Requires FRA to issue standards, guidance or rules governing 

railroads’ use of signaling technology in "dark territories"—

areas that have no signaling or other control systems. The 

deadline for issuance of this rule was October 16, 2009.

FRA initiated the RSAC process for this rulemaking, however 

the Agency suspended the working group’s activities when it 

became apparent to the Agency that the committee was 

unlikely to reach consensus. FRA is independently developing 

a NPRM.



§ 410

Critical Incident 

Plans

Requires FRA to issue a rule that defines the term "critical 

incident" and requires all Class I, intercity passenger and 

commuter railroads to submit to FRA for approval plans for 

offering debriefing, counseling, and other support services to 

employees affected by critical incidents. The deadline to initiate 

this rulemaking was November 16, 2008.

FRA initiated this rulemaking on November 14, 2008, 2 days 

before the deadline to initiate this rulemaking.FRA spent a year 

to design and plan a study, followed by another year to solicit 

and award a grant for the study. FRA initially tasked the RSAC 

Medical Standards working group with this rulemaking, 

however the Agency decided to task RSAC with the Critical 

Incident Plan rule separately when it judged the Medical 

Standards Working Group to be to contentious. FRA is 

developing a NPRM based on its study and the discussions of 

the working group, and anticipates issuing a NPRM in 

February, 2013.


27

Exhibit C. FRA’s PROGRESS ON RSIA-MANDATED RULES

§ 412

Drug and 

Alcohol Testing

Calls for FRA to revise its existing rule on drug and alcohol 

testing to include maintenance of way workers—workers that 

are responsible for the construction and maintenance of 

railroad rights of way. The deadline for issuing this rule was 

October 16, 2010.

A NPRM is currently under development.



§ 413

Emergency 

Escape 

Breathing 

Apparatus

Requires FRA to issue a rule calling for railroads to make 

emergency breathing equipment available on locomotives for 

employees' use in case of hazardous materials spills. 

FRA issued a NPRM on September 28, 2010, and a final rule is 

under development. FRA has completed a draft of the final 

rule; however the anticipated costs far exceed the anticipated 

benefits. As a result, FRA is considering whether there is an 

economically efficient method for complying with the statutory 

mandate.



§ 417

Bridge Safety 

Standards

Requires FRA to issue a rule calling for owners of track carried 

on one or more railroad bridges to adopt bridge management 

programs. The deadline for issuance of this rule was October 

16, 2009. 

FRA issued a final rule on July 7, 2010, almost a year 

(264 calendar days) after the deadline established in RSIA. 



§ 420

Camp Car 

Standards

Calls for FRA to promulgate new health and safety standards 

for camp cars that serve as housing for railroad employees. 

The deadline for issuance of this rule was April 1, 2010.

FRA issued a final rule on October 24, 2011, over a year and a 

half (571 calendar days) after the deadline established in RSIA.


28

Exhibit D. Major Contributors to This Report

EXHIBIT D. MAJOR CONTRIBUTORS TO THIS REPORT 

Yana Hudson Program Director

Name Title

Brendan Culley Project Manager

Matt Williams Senior Analyst

Aaron Schwarz Analyst

Olivia Starr Analyst

Susan Neill Writer-Editor

Megha Joshipura Statistician
29

Appendix. Agency Comments

U.S. Department

of Transportation

Federal Railroad 

Administration MEMORANDUM

Subject: INFORMATION: FRA Response to OIG Draft Report: 

Rail Safety Improvement Act of 2008 Date: March 21, 2013

From: Joseph C. Szabo

Administrator

To:

Mitchell L. Behm

Assistant Inspector General for Rail, Maritime, 

and Economic Analysis

Reply to the 

Attn of: ROA-03

2012 was the safest year in rail history,1

This safety record, although never sufficient, is due primarily to the Federal Railroad 

Administration’s (FRA) comprehensive approach, which melds research and development, 

establishment of minimum requirements, outreach and stakeholder collaboration, compliance 

inspections, and enforcement. FRA’s multidimensional safety strategy is fostering a safety 

culture evolution toward non-punitive hazard analysis, accident prevention, and innovation. 

Positive train control systems will be the technology backbone that ensures continuous safety 

improvement through elimination of certain human factor related incidents and will compliment 

FRA's efforts related to crash energy management.

continuing the decades-long reductions in accidents and 

incidents and improvements in departmental and FRA safety performance measures. This 

achievement is even more noteworthy because Amtrak ridership reached an all-time high; rail 

was the fastest-growing mode of public transit; and intermodal freight traffic surged toward a 

new record. As demand for rail services grew, record-setting federal investment—combined 

with substantial private sector support—continued building the foundation for safer, more 

reliable, and more efficient rail transportation in the future.

While FRA values the rail industry’s tremendous progress, we are not satisfied with current 

safety outcomes. Congress demonstrated its similar concern by enacting the far-reaching Rail 

Safety Improvement Act of 2008 (RSIA). FRA has successfully implemented many of RSIA’s 

numerous mandates, including rulemakings, and is pursuing completion of remaining provisions, 

consistent with the availability of resources.

Successful Rulemaking

 1 Based on preliminary data from the FRA Safety Database.
30

Appendix. Agency Comments

OIG’s draft report acknowledges some FRA accomplishments on RSIA mandates, but it does not 

convey the context, complexities, and requirements of FRA’s mission and the rulemaking 

process. FRA measures its mission success in terms of safety progress—lower rates of railrelated accidents and incidents. FRA’s regulatory program maximizes safety by developing 

rules based on facts, incident and accident causation analysis, comparison of alternative 

mitigation measures, and cost-effective solutions. Successful rules consider current and future 

industry capabilities, compliance burden and cost, and other economic and social realities. In 

this context, FRA makes every effort to reach statutory milestones with its available resources.

To maximize safety through its regulatory program, FRA often works with the Railroad Safety 

Advisory Committee (the Committee), thereby improving the quality and transparency of rule 

development. As its charter states, in part,

The Committee . . . fully involves our affected entities, makes the best use of resources, and 

accommodates the rapidly evolving changes in the rail transportation industry. By 

harnessing the combined wisdom, resources, and experience of railroad industry experts who 

have the greatest knowledge and interest in promoting rail safety, including security, FRA is 

able to leverage its resources to produce rules that are more responsive, flexible, and better 

accepted by those required to implement them.

In 2012, the Committee held approximately 50 working group and other meetings, many of 

which were multiple days long. OIG’s report includes conclusions about the Committee’s 

efficiency based on auditors’ partial attendance at 3 of the 50 meetings. Other modal 

administrations within the U.S. Department of Transportation are modeling their advisory 

committees on FRA’s experience.

Moreover, the federal rulemaking process is designed to ensure analytical rigor, multiple 

opportunities for public participation, and coordination across agencies. Consequently, a 

rulemaking might take years to complete. When rules involve particularly complex, contentious, 

or novel issues, the process takes much longer. For example, “significant regulatory actions”2

Ensuring Compliance

require departmental and Office of Management and Budget review and clearance, which 

lengthens the process by up to 4 months at each of the proposed rule and final rule stages. Many 

RSIA rulemakings fall into the significant regulatory action category, with the associated longer 

process, further increasing FRA’s challenge to meet statutory milestones.

As OIG recognizes in its draft report, ensuring compliance with new rules is essential to 

maximizing safety outcomes. To that end, FRA has built a safety oversight workforce that is 

highly motivated, well trained, and expertly skilled in numerous technical disciplines and 

 2 The criteria for “significance” include any regulatory action that is likely to result in a rule that may have an annual effect on 

the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, 

competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. (Executive 

Order 12866, Regulatory Planning and Review, September 30, 1993)
31

Appendix. Agency Comments

specialties. Many inspectors and specialists come to FRA with decades of operational 

experience, which we build on and refine through continuous, comprehensive, and specialized 

guidance, classroom and on-the-job training, mentoring, and developmental opportunities. 

FRA’s results on the 2012 government-wide Employee Viewpoint Survey confirm this 

achievement,3

Because FRA’s goal is continuous safety improvement, it devotes substantial resources to 

supporting and developing our mission-critical workforce. FRA is committed to exploring 

additional tools and techniques that will further develop our inspectors and specialists, as FRA’s 

responses to the recommendations below explain further.

in contrast with OIG’s anecdotes from a small number of employees. Almost 

80 percent of Office of Railroad Safety respondents agreed or strongly agreed with the statement, 

“The workforce has the job-relevant knowledge and skills necessary to accomplish 

organizational goals,” compared to the government-wide average of 72 percent. In addition, 

almost 77 percent of Office of Railroad Safety respondents agreed or strongly agreed with the 

statement, “I have enough information to do my job well,” 5 percentage points higher than the 

government-wide average.

OIG Recommendations and FRA Responses

OIG Recommendation 1: Develop a plan for completion of outstanding RSIA-required 

rulemakings. The plan should include milestones for completion and describe the Agency’s 

rationale for prioritization of rulemakings.

FRA Response: Concur in part. FRA has maintained a continuous planning effort, 

through DOT’s regulatory review process and consultations with stakeholders, since RSIA’s 

enactment. DOT’s Regulatory Management System contains FRA’s milestones for the 

remaining RSIA rulemaking mandates, reflecting this planning, review, and consultation 

effort. To fulfill this recommendation explicitly, FRA will provide a document within 90 

days of OIG’s issuance of its final report that synthesizes FRA’s RSIA-related planning 

materials. The document will broadly explain FRA’s prioritization and describe FRA’s 

progress on each remaining RSIA rulemaking requirement with associated milestones.

OIG Recommendation 2: Conduct an assessment of the way that [the Rail Safety Advisory 

Committee (the Committee)] is used to identify improvements that could improve efficiency.

FRA Response: Concur. Since its inception, the Committee has developed remarkable 

consensuses on numerous complex and challenging regulatory matters. Nevertheless, FRA 

welcomes ideas to improve the Committee’s future efficiency and effectiveness, thereby 

further leveraging FRA’s resources to produce safety solutions that are more responsive, 

 3 About 77 percent of FRA employees responded to the 2012 survey, compared to the department rate of 62 percent and the 

government-wide rate of 46 percent.
32

Appendix. Agency Comments

flexible, and readily implemented. FRA will solicit ideas from the Committee participants 

and review relevant federal advisory committee best practices for efficiency opportunities. 

Moreover, FRA looks forward to learning about the Committee member suggestions OIG 

heard during its audit. Not later than 12 months after OIG’s issuance of its final report, FRA 

will provide OIG a summary of this effort.

OIG Recommendation 3: Require the updating of compliance manuals or other written 

guidance by rules’ effective dates to ensure that FRA inspectors and railroads are aware of the 

rules’ requirements and FRA’s interpretations of the rules.

FRA Response: Concur in part. FRA agrees that its inspectors and regulated parties 

should be fully aware of FRA requirements and interpretations as regulatory changes become 

effective. To that end, FRA uses numerous methods to maintain the currency of its 

inspectors’ knowledge base, including the preamble and section-by-section analysis in the 

rulemaking documents; training sessions, webinars, and video teleconferences; public and 

internal Web site postings; technical bulletins; and consultations, in addition to compliance 

manuals.

Moreover, as affected parties and inspectors gain experience with new requirements, FRA 

refines its interpretations and perfects its guidance to reflect this accumulated knowledge. 

Issuing compliance manual updates before this learning process unfolds would be premature 

and not a cost-effective use of resources. Furthermore, FRA compliance manuals by 

themselves are not the proper instrument—nor are they intended to be used—for providing 

new guidance, addressing issues of first impression, or training inspectors on new 

regulations. Compliance manuals are compilations of enforcement and interpretative 

guidance that is developed and updated over time. FRA recently completed new versions of 

its compliance manuals. Looking forward 5 to 10 years, advances in technology and 

communications will likely enable FRA to rely increasingly on flexible, electronic solutions, 

rather than static compliance manuals.

As FRA completes the remaining RSIA rules, FRA will continue to ensure that inspectors 

and regulated entities have guidance documents in advance of the rules’ effective dates. 

Accordingly, FRA requests that OIG close this recommendation.

OIG Recommendation 4: Establish a formal process for inspectors to participate in the 

identification of their training needs.

FRA Response: Concur in part. Identifying training needs and opportunities is necessarily 

a collaborative effort between employee and supervisor; FRA requires such collaboration 

(Order FRA 3430.5D, October 2011). FRA’s performance management program specifically 

provides for employee involvement in performance plan development (Section 2, 1.a) and the
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Appendix. Agency Comments

use of performance appraisals as a basis for determining training needs (Section 9, 4.a). 

Supervisors discuss training needs with each employee no less frequently than twice each 

year—at the beginning and midpoint of each performance period. The supervisor discusses 

with the employee past performance, areas for improvement, and training needs and 

opportunities.

In addition, FRA’s competency model, Learning and Development Guide for Employees, 

Team Leaders, and Supervisors, identifies 16 core competencies for inspectors. FRA policy 

requires inspectors and supervisors to use this model and planning tool to help identify 

employee strengths and weakness non-punitively. The tool, which is available electronically, 

encourages two-way communication between supervisor and subordinate. As a result, they 

might agree that the employee will take FRA technical training courses, study independently, 

or engage in formal practice sessions with coaching and on-the-job training or informal 

practice with feedback. FRA also conducts a formal needs analysis at the end of each fiscal 

year to determine technical training needs.

Rather than create a redundant requirement, FRA proposes to close this recommendation by 

reemphasizing the existing requirements with supervisors and employees and underscoring it 

in FRA’s supervisory training materials. FRA expects to accomplish these measures within 

45 days of OIG’s issuance of its final report.

OIG Recommendation 5: Require inspectors to receive updated training prior to conducting

compliance inspections to enforce new or revised rules.

FRA Response: Concur. This recommendation reflects FRA’s current practice for 

implementing regulatory changes. In addition to the practices described in FRA’s response 

to recommendation 3 above, FRA has used discipline-specific and multi-region meetings as 

cost-effective opportunities for rule development teams to discuss implementation with frontline inspectors. To close this recommendation, FRA proposes to incorporate existing 

practices, subject to the availability of funds, into policy. FRA expects to accomplish this 

action within 180 days of OIG’s issuance of its final report.

OIG Recommendation 6: Develop a policy that defines what constitutes qualified and 

continuous supervisory reviews and requires supervisors to create and maintain records of their 

reviews.

FRA Response: Concur. FRA organizes its oversight and enforcement workforce 

geographically, with further distinctions based on technical disciplines and functions. Each 

discipline and functional group has distinct responsibilities and supervision structures and 

practices, which also reflect FRA’s grade structure. In all cases, FRA takes advantage of 

technology to ensure employees and supervisors communicate frequently whether or not they 

are in the same location.
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Appendix. Agency Comments

FRA assigns the rail safety inspectors to geographic regions. Within each region, the 

inspectors report to supervisory specialists by technical discipline (i.e., operating practices, 

track, hazardous materials, motive power and equipment, and signal and train control). 

Inspector grades include GS-7 through GS-12; supervisory specialists are GS-13s. FRA’s 

National Inspection Plan guides the field inspectors’ work plan and activities. Supervisory 

specialists accompany inspectors on some inspections to verify that they conduct inspections 

properly and in accordance with the General Manual. In addition, FRA’s Inspection 

Dashboard helps supervisory specialists monitor the productivity of individual inspectors, 

including their adherence to the National Inspection Plan and the numbers and types of 

defects. The Dashboard also includes accident data, which helps supervisory specialists 

detect emerging safety issues that the frequency or quality of inspections might influence.

FRA strategically locates functional specialists (i.e., positive train control, bridge, rail 

integrity, and industrial hygiene) throughout the United States. These specialists, regardless 

of their primary duty stations, report to Washington, D.C.-based staff directors. 

Commensurate with their grade levels, functional specialists generally work independently. 

Functional specialist grades are GS-12, GS-13, and GS-14; staff directors are GS-15s. Staff 

directors review all responses to enforcement findings, which are documented for the record 

and then subject to FRA senior leadership review. In addition to unscheduled contacts, staff 

directors typically hold at least six staff meetings each year to provide guidance and discuss 

issues.

Layering onto these supervisory practices, FRA’s performance management program applies 

to all staff, as referenced in FRA’s response to recommendation 4 above. This program 

includes employee and supervisor agreement on the employee’s critical performance 

objectives and standards, coaching and feedback throughout the year, and mid-year reviews 

and year-end appraisals to document each employee’s individual and team accomplishments.

In response to OIG’s recommendation, FRA will review in more detail its supervisory 

practices, with particular focus on functional specialists and documentation. Within 180 days 

of OIG’s issuance of its final report, FRA will provide OIG a summary of the review, 

including identification of cost-effective opportunities to strengthen employee-supervisor 

communication, information sharing, and record keeping.

We appreciate this opportunity to offer additional perspective on the OIG draft report. We also 

appreciate the courtesies of the OIG staff in conducting this review. Please contact Rosalyn G. 

Millman, FRA Planning and Performance Officer, at 202.493.1339, with any questions or 

requests for additional assistance.