Claris Law Legal Blogging Community

Editor: Rick Shapiro
Profession: FELA Attorney

Category: Train Accidents

In November 2005, the Office of Inspector General of the Department of Transportation released an audit of the Federal Railroad Administration (FRA) oversight of railroad-highway-roadway crossing accidents. The audit had some interesting findings, revealing the lax regulatory oversight of rail-crossing safety:

1. Of the collisions that occurred at public grade crossings between 2000 and 2004, railroads attribute the cause to "motorist fault" in more than 90 percent of those accidents. However, the federal government, including the FRA, investigated only 9 of 3,045 collisions that occurred in the same time frame. This essentially means that the railroad can attribute any cause they select, and there is virtually no oversight except the tiny fraction of investigated collisions. Clearly, we need increased FRA oversight and investigation of crossing accidents in order to increase safety (e.g., whether active lights and gates are working as intended).

2. While deaths at railroad crossings increased to 368 from 332 between calendar years 2003 and 2004, the audit found that for the 18-month period beginning May 2003, over 20 percent of all reportable grade crossing collisions were not reported to the National Response Center (NRC) immediately. The NRC receives serious accident information for not only railroad accidents, but for maritime, aviation, and highway accidents. Apparently, the FRA regulations required reporting known fatalities to the NRC. FRA regulations also provide for FRA reporting of injury and death by end of month, or within the next month thereafter after a crossing wreck. What the audit points out is that safety changes and recommendations are nearly impossible to make if the railroad never reports an incident until 45 days after a collision, when evidence has been moved, changed, and can no longer be freshly investigated. For this and similar reasons, the NRC convinced the FRA to publish a new rule in the code of federal regulations that provides that if any fatality occurs at the scene of a public grade crossing, within the first 24 hours such information must be provided to the NRC right away, as railroads were simply not complying because they claimed there were ambiguities in the reporting requirement, especially if an injury was known but later caused death.

3. The most staggering finding of the audit was that for the time frame between 2000 and 2004, less than 5 percent of all regulatory violations (many of which involved active warningdevice defects at crossings) were actually written up as violations because the FRA inspector has discretion on even issuing a violation. The audit then pointed out that the federal law gives the FRA discretion to compromise all fines against railroads. Amazingly, nationwide, the FRA collected only $271,000 in penalties during 2004 from all railroads. After the audit and the increased awareness, FRA assessed and collected $298,000 in 2005 from one railroad fine alone (for a 2004 violation)!

The railroad section of the Association of Trial Lawyers of America has long argued that the FRA is not acting independently enough of industry influence and is not enforcing the regulations already on our books. Let's hope this type of outside audit occurs more regularly in the future.