Good and Evil on the RailsAs a child Robert M. Sanchez counted the cars on passing trains. One day when he was seven heran to an idling locomotive and the engineer took him into the wondrous machine, let him blowthe horn, and, unwittingly, set his course for life. As he grew up he often visited nearby railyards, never losing his fascination with trains. After high school he drove Greyhound buses for atime and then found work with Union Pacific on a maintenance crew. After several years heworked his way up, fulfilling his dream of becoming an engineer. Soon Amtrak hired him. Heand his partner, a waiter, bought a home near Los Angeles. Neighbors de-scribed Sanchez asrelentlessly cheerful, buoyant, and passionate about trains. Yet trouble was there too. He wascaught shoplifting at Costco, pleaded guilty, and served 90 days in jail on weekends. He arguedwith his partner and suggested they breakup. On February 14, 2003, his partner hung himself intheir garage, leaving a note that read: “Rob, Happy Valentine’s Day. I love you.” 1 Two yearslater Sanchez became an engineer for Metro link, a commuter rail system crossing six SouthernCalifornia counties. Metro link carries about40,000 passengers a day on a busy 388-mile tracknet-work shared with freight traffic. He loved his job though he worked a tiring split shift. Soonhe bought a modest suburban house where he lived with four miniature greyhounds. Again,neighbors described him as cheerful, spirited, and exhilarated by railroading, but some saw himas a recluse who kept to him-self and avoided revealing his past. He abided with a dirt yard thatstood out in a neighborhood of tended landscapes. 2 Although friends said Sanchez found joy inhis work, there were a few difficulties. He received five informal discipline letters for absencesand failure to follow rules. Twice he was counseled orally about use of his cell phone while onduty. In July 2008 a suicidal man sidestepped a crossing arm and ran in front of the train he was operating. Under Metro-link’s policy he took some days off before returning to work, but,according to his family, he was forced to go back before his emotional recovery was complete.Friday, September 12, 2008On this day, Robert Sanchez was up before dawn. Here ported at 5:30 a.m. and worked fourhours, rested four hours, then returned to work in the afternoon. At 3:03 p.m. he took train 111, adiesel-electric loco-motive and three passenger cars, on a commuter route out of Union Station.After five stops he approached the Chatsworth station 33 miles northwest, passing a solid yellowlight indicating he should be prepared to stop at the next signal. He failed to radio the dispatcherand call it out as required. It was a beautiful day there with clear skies, calm winds, and a mild73 degrees. After stopping for 57 seconds the train departed the station, a random assembly of225 souls with perhaps the most troubled in the lead. At exactly4:20:07 p.m. Sanchez shifted thethrottle from the idle position to position 2 and released the train’s air brakes. As it moved, hepushed the throttle to its maximum 8 position. Rapidly, the train increased speed to42 mph. At4:20:20 he sounded the locomotive’s bell and horn for the Devonshire Road crossing. 4 At4:21:03 he received a short text message from a teenage rail fan: “I would like that too. We already need to meet 796. That would be best.” This was about a plan for Sanchez to sneak himaboard the locomotive later that day and let him take the controls for fun. At 4:21:23 Sanchezagain activated the bell and horn for the Chatsworth Street cross-ing. By 4:21:35 the train’s speedwas 54 mph and he moved the throttle back to position 4 and braked, slowing it to 44 mph inpreparation for a curve. At4:21:56 the train passed a red signal light ahead of the curve. It was acommand to stop. Sanchez failed to radio in the signal and did not stop. At 4:22:01 Sanchez senta text in reply to the teenager: “yea . . . usually @ north Camarillo.” At4:22:02 the train passedover a power switch turned to move a local freight train coming in the opposite direction off on a siding. The freight train was Union Pacific LOF65-12 consisting of two locomotives and 17 cars.It entered the curve eastbound at 41 mph as Sanchez came on at43 mph from the west. Closing ata combined 84 mph, each locomotive became visible to the engineer in the other only when theywere 540 feet apart and four to five seconds from impact. In that instant the Union Pacificengineer and the conductor, who was also in the cab, saw the Metro link locomotive. Theengineer hit an emergency brake and started to run out the cab’s rear door. Seeing there was toolittle time he “just stood there and watched it happen in disbelief.” 5 The conductor froze on hisfeet, uttering an epithet. In the other locomotive, Sanchez did nothing with the controls. At4:22:23 the trains collided. The lead Union Pacific locomotive crushed Sanchez before pushingthe massive bulk of his locomotive back 52 feet into the first coach. The compression killed 23passengers. Another person died in the second coach. A sheriff’s deputy described the scene. “Isaw locomotives en-gulfed in flames . . . and . . . I saw numerous people, maybe a dozen,walking in various means, I don’t know, delusioned, like they were zombies waking with varioustypes of injuries with their hands out and saying help . . .” 6 Rescue workers needed four hours toextricate all the victims from wreckage. Hospitals took in 102 injured including the engineer andconductor from the freight train.THE INVESTIGATIONThe National Transportation Safety Board (NTSB)was called in. The NTSB is a small,independent federal agency established by Congress in 1967 to investigate transportationaccidents and make safety recommendations. It did a detailed analysis of the collision,interviewing witnesses, holding hearings, and examining physical evidence such as the signalswitch wiring and even fasteners on the track’s wooden crossties. An autopsy found that Sanchez had adult-onset diabetes, high blood pressure, and an enlarged heart. He met the clinicaldefinition of obesity. And he was HIV positive. His use of prescription drugs kept theseconditions under control. The Union Pacific conductor’s blood and urine tested positive formarijuana use, though this was not relevant to the cause of the accident. The investigation alsofocused on management. Metro link is organized as a regional association with a governingboard of representatives from five Southern California counties. It was formed in 1992 toimprove mobility and reduce traffic congestion in densely populated areas. Most of its operationsare outsourced. Sanchez was hired and supervised by Connex, the subsidiary of a Frenchcorporation that ran Metro link’s trains under a contract worth about$25 million a year. Under thecontract Metro link retained overall responsibility for its operations. As one top Connex managernoted, “We run the railroad the way they want it run.” 7 However, much was delegated,including the supervision of train crews. Connex conducted the “efficiency tests” required ofevery railroad. 8 These tests are done by supervisors who observe trains, monitor radio traffic,and analyze data from recorders in locomotives to check rules compliance. For example, they usestopwatches to make sure engineers blow horns for 15 seconds before entering a street crossing.They use radar guns to check train speeds. They stop trains for surprise inspections. Connexsupervisors performed about 1,000 such tests monthly. During his three years with Metro linkSanchez had only a few failures on them. In 2006,when a rule against cell phone use on dutywent into effect, a safety manager arranged for someone to call Sanchez’ number, then stoppedhis train and boarded the locomotive. As they were talking, Sanchez’ phone rang. The phone wasnot supposed to be in the operator’s compartment or turned on, but it was stowed away in a bagand Sanchez said he had forgotten about it. The supervisor accepted this and simply counseledhim about the policy. No more calls were made to his phone to test his compliance. In 2007 he twice was cited for failing to call out a wayside signal. Engineers are supposed to radio the Metrolink operations center to acknowledge each lighted signal they encounter. Still, his supervisorsaid Sanchez was frequently tested on calling signals and his performance was “above average.”9 Earlier that year Sanchez also got a written warning for neglecting to light a marker at the endof his train. And about a month before the collision a conductor saw him using a cell phone as histrain was ready to leave a station. Sanchez told him he knew he should put the phone away anddid. The conductor reported this to their Connex supervisor, who spoke to Sanchez again aboutthe policy and did two observations of him in the next two weeks. He was confident that Sanchezunderstood the policy. However, the super-visor said it was hard to enforce.It’s almost impossible . . . [T]he engineers, first of all, is going to have the door locked. You’vegot to un-lock the door to get up on it. He’s probably going to hear you coming—he or she, and,you know, itwould be almost impossible to surprise somebody, you know, to inspect it . . . [O]fall the times I’ve gone up on a locomotive, I’ve never seen anybody with a cell phone or talkingon a cell phone.In themselves, these incidents on Sanchez’ record were not damning. The Connex safetymanager had a subjective faith in him. “[He] was a competent engineer,” he told investigators,“[a]nd I felt comfortable putting people with him.” 11 Several weeks before his final shiftSanchez even got an award for “safety and rules compliance.”However, his behavior on the day of the accident showed brazen deceit and disrespect for rules.He failed to call out two signals. And Verizon Wireless records showed he made four phone calls,sent 21 text messages, and received 21 text messages while operating the train. It was habitualbehavior. On each of seven working days preceding the accident he had made calls and sent andreceived between 30 and125 text messages while operating trains. 12 Most of the texting was with teenage rail fans. Interviews revealed he had once before let a teenager sneak onto run alocomotive. In its accident report the NTSB stated the probable cause of the collision as Sanchez’inattention to the red signal light because texting in violation of com-pany rules distracted him. Itmade one new recommendation, that railroads put audio and video devices in locomotive cabs tomonitor train crews. It repeated a previous recommendation for installing crash- and fireprotected cab voice recorder similar to those in commercial airliners. And it noted that anautomatic system called positive train control would have intervened to prevent the collision bytaking control of the train when Sanchez failed to stop at the red signal.POSITIVE TRAIN CONTROLPositive train control is an old idea in railroading. It had been on the NTSB’s “Most Wanted Listof Transportation Safety Improvements” for 18 years at the time of the accident. Now, thanks toRobert Sanchez, it would become a reality. Briefly explained, it is an interconnected network ofdigital data and controls. It allows remote operators to take control of trains from on-boardengineers if necessary. It includes these basic elements. Global positioning system receivers ontrains to continuously track movement. Computers on trains that record data and send information to displays in locomotive cabs about train position, speed, length, and weight; routespeed limits; actual and recommended throttle and brake settings; sensor readings on cars; signaland switch settings; and more. Wayside devices that monitor signals, switches, and trackalignment, and can detect overheated brakes, cracked wheels, rock slides, and other problems.Wireless interfaces on throttle and brake controls that allow remote control. Computers anddisplays in railroad operations centers that show the schedule, position, speed, and controlsettings of each train in the network and allow remote command of train and track functions.Modern train control is technically complex, but the basic invention, electro-mechanical automatic braking, came around 1900. In 1920 the Interstate Commerce Commission (ICC)ordered 49 railroads to install it on passenger lines to reduce accidents and fatalities. Thougheffective, the systems were very expensive to put in and maintain. When interstate highwaysspread in the 1950s, rail traffic faced more competition from trucking. Revenues fell, tracks wereabandoned, railroads failed or merged, and the ICC let companies discard the controls. After that,human error regularly led to avoidable fatalities from train collisions, over speed derailments,and runaway locomotives in work zones. Periodic headline accidents that killed passengers led toregular calls for reinstating automatic controls. However, little was done because the rail-roadsargued it was unaffordable.CONGREES ACTWhen the National Transportation Safety Board placed positive train controls on its “MostWanted “list in 1990 it revived the issue. Congress considered action, but retreated when theFederal Railroad Ad-ministration (FRA) did a study showing that the cost of controls faroutweighed safety benefits. 14 The FRA is part of the Department of Transportation. As anexecutive branch agency its administrator is nominatedby the president and approved by the Senate and, when appointed, reports to the Secretary ofTransportation. Congress created the agency in 1966 to regulate railroad safety. It alsoadministers federal programs that support railroads and promote passenger service, giving itclose ties with the industry it regulates. Most of its 900 employees have worked for railroads.After the early 1990s there were short bouts of Congressional interest in train controls aftermajor rail accidents. In 2003 Congress asked the FRA for an updated benefit–cost study. Itshowed that the costs still far outweighed safety benefits. 15 In 2005 the agency issued a rule to encourage voluntary use of train controls. 16 Lacking a mandate, railroads in-stalled automaticsystems on only about 4,000 track miles, most in the Northeast.A few legislators remained interested in train controls. When the Metro link crash occurred, therewere two moribund bills in Congress, a House bill requiring controls on several high-risk routesand a Senate bill seeking only further study. Neither was headed to passage because ofopposition from railroad lobbyists.The Metro link fatalities mobilized California’s two Democratic senators, Dianne Feinstein andBarbara Boxer, who zoomed in like superheroes on a mission. Within a week they introduced anamendment to the House bill, which had already passed, ordering rail-roads to install positivetrain control. In remarks on the Senate floor, Senator Feinstein grew irate and accused therailroads of “criminal negligence.”The accident happened because of a resistance in the railroad community in America to utilizingexisting technology to produce a fail-safe control of trains . . .Over the years the railroadsresisted, saying these systems are too expensive. Well, how expensive is the loss of human life?The cost of any system doesn’t come close to the cost of the lives that were lost this past Friday.A week later she and Senator Boxer invited Joseph H. Boardman, administrator of the FRA, topublic hearing. Senator Feinstein opened the hearing by saying she was upset with “lobbyingbehind the scenes to prevent an early date” for installation of train controls. Boardman explainedto the two senators why “progress has not been faster,” namely because of “limited availabilityof needed radio spectrum,” concerns about “interoperability, “and “braking algorithms that needrefinement.” 18 These technicalities must have sounded like excuses to Senator Boxer and theydrew a sharp rebuke. What powers do you have? What’s your job? You’re sitting there saying you can’t tell them to doany-thing? . . . You have the power, you don’t want to do it, you’d rather work for the railroads.After the hearing Senator Feinstein called the FRA “an old boys club.” “I think they sit downand talk to the railroads,” she said. “I think they do what the railroads want.” 20 In floor remarksshe tried to stir her Senate colleagues to action with a moral argument.When we know there is global positioning that can be in place to shut down the freight train andthe passenger train before they run into each other and we do nothing about it, then I believe thisbody is also culpable and negligent.This idea echoes Aristotle, who held that ethical decisions are a matter of choice and onlyignorance of facts or lack of freedom to act excuses a person from choosing the ethical action. 22Senator Feinstein deprived the senators of either excuse. But many Senate Republicans wereunmoved and still tried to stop the bill, believing it imposed a net economic burden on society.Their effort to thwart its passage with a filibuster was defeated, and on October 1,2008, just 19days after the Metro link accident, the Rail Safety Improvement Act of 2008 became law. 23 Theroll call was 74 to 24. Every Democrat voted for it and all the “nay” votes were Republicans.These are the main provisions of the 123-page statute.Mandatory installation by 2015 of positive train control on rail lines shared by freight andpassenger trains, on “main lines” carrying more than 5 million tons of freight yearly, and on anystretch of track carrying substances such as ammonia and chlorine that pose toxic inhalationhazards.•Rules designed to prevent crew fatigue, including prohibition of train crews working morethan12 hours a day or 266 hours a month .•A long list of new mandates for the Federal Rail-road Administration including certifyingconductors, monitoring locomotive radio traffic, and studying the safety of antique locomotivesused for rides at railroad museums.•Measures to improve safety at railroad–highway crossings. Assistance to families of victims ofpassenger train accidents.•A program of annual $50 million grants to rail-roads for safety improvements.REGULATORS GO TO WORKLike many laws passed by Congress, the Rail Safety Improvement Act is a mixture of specificsand generalities. It was very precise in dictating work-hour rules for train crews under varyingcircumstances, even prohibiting companies from telephoning or paging crew members at homeduring mandatory10-hour rest periods. Yet it also set broad new requirements such as positivetrain control that left much to the discretion of the Federal Railroad Ad-ministration. In fact, itgave the agency so much to do it authorized hiring 200 new employees. Quickly, the agencywent to work. Within a week of the bill’s passage it issued an emergency order prohibiting use ofwireless electronic devices in locomotive cabs and elsewhere on or near operating trains. 24 Itcited seven accidents besides the Metro link collision where cell phone use distracted engineers.Two led to fatalities. It also listed examples of unsafe behavior observed by its staff. Some of thestories were incredible.An FRA deputy regional administrator was con-ducting an initial pre employment interview overthe telephone with a locomotive engineer who was applying for an FRA operating practicesinspector position. The deputy regional administrator heard a train horn in a two long, one short,and one long pattern and asked the candidate if he was operating locomotive. The candidate replied that he was, and the deputy regional administrator terminated the telephone call. Thecandidate was not selected.The agency also set to work on a rule for implementing positive train controls. It began late in2008 by convening a working group with representatives from18 organizations includingrailroads, unions, suppliers, and the FRA. This group met five times. Between meetings it brokeinto task forces. Disagreements between participants were resolved by FRA decisions. Theagency also began a new benefit–cost study.Within six months it submitted a proposed rule to the Office of Information and RegulatoryAffairs(OIRA) along with its benefit–cost study. The 167-pagestudy revealed a stunning excessof costs over bene-fits. Depending on net present value assumptions, the costs of positive traincontrols over 20 years were estimated at between $10 billion and $14 billion. The safety benefitswere only $608 million to $931 million. Under either assumption the cost of controls was morethan 15 times the benefits.Although OIRA’s job is to make sure regulations have a net benefit for society, its hands weretied be-cause of the congressional mandate. It approved the proposed rule and the FRA publisheda 79-page No-tice of Proposed Rulemaking in the Federal Register. 26 This opened a 30-daycomment period. Written comments from anyone could be entered on the Federal RulemakingPortal mailed, faxed, or hand-delivered to the agency. During this comment period the FRA alsoheld a one-day hearing at a Washington hotel to give railroads, unions, and state transportationofficials a chance to comment before regulators. When all comments were in, the agencyreconvened its working group to review them and con-sider changes to the proposed rule. It tooksix more months. The final rule was published in the Federal Register on January 15, 2010, andlater entered in the Code of Federal Regulations. 27 It set standards for the design, functioning, certification, and maintenance of positive train control systems. It also responded to comments.For example, large railroad companies objected to a requirement for dual displays in locomotivecabs for both engineers and brakemen. The agency responded that both were necessary to ensuresafety. General Electric, which sells equipment to the railroads, objected to the agency’sinsistence on approving entire systems and asked it to approve individual parts or componentsinstead. The agency rejected this suggestion as complicating and more expensive. Chemicalshippers asked to exclude rail lines from controls if they carried fewer than 100 tank cars of toxicchemicals a year. The agency refused, saying that was contrary to the safety mission Congresshad given it. The final rule also revised the 20-year benefit–cost projection, making it even lessfavorable. Depending on net present value assumptions, the costs would be$9.6 billion to $13.3billion and the benefits $440 million to $674 million, a ratio of more than 20:1 in either case.WORTH IT?America now has another expensive regulatory pro-gram, one that will raise shipping rates,consumer prices, and rail passenger fares. Railroads are now more heavily regulated in theiroperations and employee relations. The Federal Railroad Administration grows larger and morepowerful. On the other hand, rail passengers are safer, and the railroads may see some efficiencygains. Was the Rail Safety Improvement Act of 2008 justified? Trains are dangerous. Exhibit 1shows an annual total of between 700 and 950 railroad fatalities over the past decade, but few ofthem were passengers killed in train accidents—only 85 over the 10-year period. Most fatalitiesare trespassers who ride trains or enter track corridors. Hundreds more are motorists hit atcrossings. In 2009, for example, there were 713 train fatalities. Of these only three werepassengers killed in accidents. Of the rest, 446 were people trespassing on tracks, 28 248 weremotorists at rail crossings, and 16 were on-duty railroad employees. A nationwide system of train controls might have saved the three passengers and some of the 16 railroad workers killed onduty, but would have done nothing to save the other 697 people. In absolute numbers, motorvehicles kill far more people than passenger trains, to be exact 33,960 more in 2009, but they aresafer per mile traveled. In 2009the fatality rate per 100 million miles traveled was6.07 forpassenger trains compared with 1.10 for motor vehicles.In the FRA’s benefit–cost calculations, the safety benefits of positive train controls were $440million to $674 million over 20 years. It assumed that train controls would lead to a 60 percentreduction in rail accident costs including casualties, train delay, emergency response, and trackand equipment damage. 30 A statistical life was valued at $6 million. The study also noted otherpotential benefits but did not monetize them. Possible business benefits for the railroads includethe ability to run more trains, greater reliability, and diesel fuel savings; a possible benefit forsociety is reduced pollution from diesel exhaust. However, the agency concluded that suchbenefits were uncertai…

Good and Evil on the RailsAs a child Robert M. Sanchez counted the cars on passing trains. One day when he was seven heran to an idling locomotive and the engineer took him into the wondrous machine, let him blowthe horn, and, unwittingly, set his course for life. As he grew up he often visited nearby railyards, never losing his fascination with trains. After high school he drove Greyhound buses for atime and then found work with Union Pacific on a maintenance crew. After several years heworked his way up, fulfilling his dream of becoming an engineer. Soon Amtrak hired him. Heand his partner, a waiter, bought a home near Los Angeles. Neighbors de-scribed Sanchez asrelentlessly cheerful, buoyant, and passionate about trains. Yet trouble was there too. He wascaught shoplifting at Costco, pleaded guilty, and served 90 days in jail on weekends. He arguedwith his partner and suggested they breakup. On February 14, 2003, his partner hung himself intheir garage, leaving a note that read: “Rob, Happy Valentine’s Day. I love you.” 1 Two yearslater Sanchez became an engineer for Metro link, a commuter rail system crossing six SouthernCalifornia counties. Metro link carries about40,000 passengers a day on a busy 388-mile tracknet-work shared with freight traffic. He loved his job though he worked a tiring split shift. Soonhe bought a modest suburban house where he lived with four miniature greyhounds. Again,neighbors described him as cheerful, spirited, and exhilarated by railroading, but some saw himas a recluse who kept to him-self and avoided revealing his past. He abided with a dirt yard thatstood out in a neighborhood of tended landscapes. 2 Although friends said Sanchez found joy inhis work, there were a few difficulties. He received five informal discipline letters for absencesand failure to follow rules. Twice he was counseled orally about use of his cell phone while onduty. In July 2008 a suicidal man sidestepped a crossing arm and ran in front of the train he was operating. Under Metro-link’s policy he took some days off before returning to work, but,according to his family, he was forced to go back before his emotional recovery was complete.Friday, September 12, 2008On this day, Robert Sanchez was up before dawn. Here ported at 5:30 a.m. and worked fourhours, rested four hours, then returned to work in the afternoon. At 3:03 p.m. he took train 111, adiesel-electric loco-motive and three passenger cars, on a commuter route out of Union Station.After five stops he approached the Chatsworth station 33 miles northwest, passing a solid yellowlight indicating he should be prepared to stop at the next signal. He failed to radio the dispatcherand call it out as required. It was a beautiful day there with clear skies, calm winds, and a mild73 degrees. After stopping for 57 seconds the train departed the station, a random assembly of225 souls with perhaps the most troubled in the lead. At exactly4:20:07 p.m. Sanchez shifted thethrottle from the idle position to position 2 and released the train’s air brakes. As it moved, hepushed the throttle to its maximum 8 position. Rapidly, the train increased speed to42 mph. At4:20:20 he sounded the locomotive’s bell and horn for the Devonshire Road crossing. 4 At4:21:03 he received a short text message from a teenage rail fan: “I would like that too. We already need to meet 796. That would be best.” This was about a plan for Sanchez to sneak himaboard the locomotive later that day and let him take the controls for fun. At 4:21:23 Sanchezagain activated the bell and horn for the Chatsworth Street cross-ing. By 4:21:35 the train’s speedwas 54 mph and he moved the throttle back to position 4 and braked, slowing it to 44 mph inpreparation for a curve. At4:21:56 the train passed a red signal light ahead of the curve. It was acommand to stop. Sanchez failed to radio in the signal and did not stop. At 4:22:01 Sanchez senta text in reply to the teenager: “yea . . . usually @ north Camarillo.” At4:22:02 the train passedover a power switch turned to move a local freight train coming in the opposite direction off on a siding. The freight train was Union Pacific LOF65-12 consisting of two locomotives and 17 cars.It entered the curve eastbound at 41 mph as Sanchez came on at43 mph from the west. Closing ata combined 84 mph, each locomotive became visible to the engineer in the other only when theywere 540 feet apart and four to five seconds from impact. In that instant the Union Pacificengineer and the conductor, who was also in the cab, saw the Metro link locomotive. Theengineer hit an emergency brake and started to run out the cab’s rear door. Seeing there was toolittle time he “just stood there and watched it happen in disbelief.” 5 The conductor froze on hisfeet, uttering an epithet. In the other locomotive, Sanchez did nothing with the controls. At4:22:23 the trains collided. The lead Union Pacific locomotive crushed Sanchez before pushingthe massive bulk of his locomotive back 52 feet into the first coach. The compression killed 23passengers. Another person died in the second coach. A sheriff’s deputy described the scene. “Isaw locomotives en-gulfed in flames . . . and . . . I saw numerous people, maybe a dozen,walking in various means, I don’t know, delusioned, like they were zombies waking with varioustypes of injuries with their hands out and saying help . . .” 6 Rescue workers needed four hours toextricate all the victims from wreckage. Hospitals took in 102 injured including the engineer andconductor from the freight train.THE INVESTIGATIONThe National Transportation Safety Board (NTSB)was called in. The NTSB is a small,independent federal agency established by Congress in 1967 to investigate transportationaccidents and make safety recommendations. It did a detailed analysis of the collision,interviewing witnesses, holding hearings, and examining physical evidence such as the signalswitch wiring and even fasteners on the track’s wooden crossties. An autopsy found that Sanchez had adult-onset diabetes, high blood pressure, and an enlarged heart. He met the clinicaldefinition of obesity. And he was HIV positive. His use of prescription drugs kept theseconditions under control. The Union Pacific conductor’s blood and urine tested positive formarijuana use, though this was not relevant to the cause of the accident. The investigation alsofocused on management. Metro link is organized as a regional association with a governingboard of representatives from five Southern California counties. It was formed in 1992 toimprove mobility and reduce traffic congestion in densely populated areas. Most of its operationsare outsourced. Sanchez was hired and supervised by Connex, the subsidiary of a Frenchcorporation that ran Metro link’s trains under a contract worth about$25 million a year. Under thecontract Metro link retained overall responsibility for its operations. As one top Connex managernoted, “We run the railroad the way they want it run.” 7 However, much was delegated,including the supervision of train crews. Connex conducted the “efficiency tests” required ofevery railroad. 8 These tests are done by supervisors who observe trains, monitor radio traffic,and analyze data from recorders in locomotives to check rules compliance. For example, they usestopwatches to make sure engineers blow horns for 15 seconds before entering a street crossing.They use radar guns to check train speeds. They stop trains for surprise inspections. Connexsupervisors performed about 1,000 such tests monthly. During his three years with Metro linkSanchez had only a few failures on them. In 2006,when a rule against cell phone use on dutywent into effect, a safety manager arranged for someone to call Sanchez’ number, then stoppedhis train and boarded the locomotive. As they were talking, Sanchez’ phone rang. The phone wasnot supposed to be in the operator’s compartment or turned on, but it was stowed away in a bagand Sanchez said he had forgotten about it. The supervisor accepted this and simply counseledhim about the policy. No more calls were made to his phone to test his compliance. In 2007 he twice was cited for failing to call out a wayside signal. Engineers are supposed to radio the Metrolink operations center to acknowledge each lighted signal they encounter. Still, his supervisorsaid Sanchez was frequently tested on calling signals and his performance was “above average.”9 Earlier that year Sanchez also got a written warning for neglecting to light a marker at the endof his train. And about a month before the collision a conductor saw him using a cell phone as histrain was ready to leave a station. Sanchez told him he knew he should put the phone away anddid. The conductor reported this to their Connex supervisor, who spoke to Sanchez again aboutthe policy and did two observations of him in the next two weeks. He was confident that Sanchezunderstood the policy. However, the super-visor said it was hard to enforce.It’s almost impossible . . . [T]he engineers, first of all, is going to have the door locked. You’vegot to un-lock the door to get up on it. He’s probably going to hear you coming—he or she, and,you know, itwould be almost impossible to surprise somebody, you know, to inspect it . . . [O]fall the times I’ve gone up on a locomotive, I’ve never seen anybody with a cell phone or talkingon a cell phone.In themselves, these incidents on Sanchez’ record were not damning. The Connex safetymanager had a subjective faith in him. “[He] was a competent engineer,” he told investigators,“[a]nd I felt comfortable putting people with him.” 11 Several weeks before his final shiftSanchez even got an award for “safety and rules compliance.”However, his behavior on the day of the accident showed brazen deceit and disrespect for rules.He failed to call out two signals. And Verizon Wireless records showed he made four phone calls,sent 21 text messages, and received 21 text messages while operating the train. It was habitualbehavior. On each of seven working days preceding the accident he had made calls and sent andreceived between 30 and125 text messages while operating trains. 12 Most of the texting was with teenage rail fans. Interviews revealed he had once before let a teenager sneak onto run alocomotive. In its accident report the NTSB stated the probable cause of the collision as Sanchez’inattention to the red signal light because texting in violation of com-pany rules distracted him. Itmade one new recommendation, that railroads put audio and video devices in locomotive cabs tomonitor train crews. It repeated a previous recommendation for installing crash- and fireprotected cab voice recorder similar to those in commercial airliners. And it noted that anautomatic system called positive train control would have intervened to prevent the collision bytaking control of the train when Sanchez failed to stop at the red signal.POSITIVE TRAIN CONTROLPositive train control is an old idea in railroading. It had been on the NTSB’s “Most Wanted Listof Transportation Safety Improvements” for 18 years at the time of the accident. Now, thanks toRobert Sanchez, it would become a reality. Briefly explained, it is an interconnected network ofdigital data and controls. It allows remote operators to take control of trains from on-boardengineers if necessary. It includes these basic elements. Global positioning system receivers ontrains to continuously track movement. Computers on trains that record data and send information to displays in locomotive cabs about train position, speed, length, and weight; routespeed limits; actual and recommended throttle and brake settings; sensor readings on cars; signaland switch settings; and more. Wayside devices that monitor signals, switches, and trackalignment, and can detect overheated brakes, cracked wheels, rock slides, and other problems.Wireless interfaces on throttle and brake controls that allow remote control. Computers anddisplays in railroad operations centers that show the schedule, position, speed, and controlsettings of each train in the network and allow remote command of train and track functions.Modern train control is technically complex, but the basic invention, electro-mechanical automatic braking, came around 1900. In 1920 the Interstate Commerce Commission (ICC)ordered 49 railroads to install it on passenger lines to reduce accidents and fatalities. Thougheffective, the systems were very expensive to put in and maintain. When interstate highwaysspread in the 1950s, rail traffic faced more competition from trucking. Revenues fell, tracks wereabandoned, railroads failed or merged, and the ICC let companies discard the controls. After that,human error regularly led to avoidable fatalities from train collisions, over speed derailments,and runaway locomotives in work zones. Periodic headline accidents that killed passengers led toregular calls for reinstating automatic controls. However, little was done because the rail-roadsargued it was unaffordable.CONGREES ACTWhen the National Transportation Safety Board placed positive train controls on its “MostWanted “list in 1990 it revived the issue. Congress considered action, but retreated when theFederal Railroad Ad-ministration (FRA) did a study showing that the cost of controls faroutweighed safety benefits. 14 The FRA is part of the Department of Transportation. As anexecutive branch agency its administrator is nominatedby the president and approved by the Senate and, when appointed, reports to the Secretary ofTransportation. Congress created the agency in 1966 to regulate railroad safety. It alsoadministers federal programs that support railroads and promote passenger service, giving itclose ties with the industry it regulates. Most of its 900 employees have worked for railroads.After the early 1990s there were short bouts of Congressional interest in train controls aftermajor rail accidents. In 2003 Congress asked the FRA for an updated benefit–cost study. Itshowed that the costs still far outweighed safety benefits. 15 In 2005 the agency issued a rule to encourage voluntary use of train controls. 16 Lacking a mandate, railroads in-stalled automaticsystems on only about 4,000 track miles, most in the Northeast.A few legislators remained interested in train controls. When the Metro link crash occurred, therewere two moribund bills in Congress, a House bill requiring controls on several high-risk routesand a Senate bill seeking only further study. Neither was headed to passage because ofopposition from railroad lobbyists.The Metro link fatalities mobilized California’s two Democratic senators, Dianne Feinstein andBarbara Boxer, who zoomed in like superheroes on a mission. Within a week they introduced anamendment to the House bill, which had already passed, ordering rail-roads to install positivetrain control. In remarks on the Senate floor, Senator Feinstein grew irate and accused therailroads of “criminal negligence.”The accident happened because of a resistance in the railroad community in America to utilizingexisting technology to produce a fail-safe control of trains . . .Over the years the railroadsresisted, saying these systems are too expensive. Well, how expensive is the loss of human life?The cost of any system doesn’t come close to the cost of the lives that were lost this past Friday.A week later she and Senator Boxer invited Joseph H. Boardman, administrator of the FRA, topublic hearing. Senator Feinstein opened the hearing by saying she was upset with “lobbyingbehind the scenes to prevent an early date” for installation of train controls. Boardman explainedto the two senators why “progress has not been faster,” namely because of “limited availabilityof needed radio spectrum,” concerns about “interoperability, “and “braking algorithms that needrefinement.” 18 These technicalities must have sounded like excuses to Senator Boxer and theydrew a sharp rebuke. What powers do you have? What’s your job? You’re sitting there saying you can’t tell them to doany-thing? . . . You have the power, you don’t want to do it, you’d rather work for the railroads.After the hearing Senator Feinstein called the FRA “an old boys club.” “I think they sit downand talk to the railroads,” she said. “I think they do what the railroads want.” 20 In floor remarksshe tried to stir her Senate colleagues to action with a moral argument.When we know there is global positioning that can be in place to shut down the freight train andthe passenger train before they run into each other and we do nothing about it, then I believe thisbody is also culpable and negligent.This idea echoes Aristotle, who held that ethical decisions are a matter of choice and onlyignorance of facts or lack of freedom to act excuses a person from choosing the ethical action. 22Senator Feinstein deprived the senators of either excuse. But many Senate Republicans wereunmoved and still tried to stop the bill, believing it imposed a net economic burden on society.Their effort to thwart its passage with a filibuster was defeated, and on October 1,2008, just 19days after the Metro link accident, the Rail Safety Improvement Act of 2008 became law. 23 Theroll call was 74 to 24. Every Democrat voted for it and all the “nay” votes were Republicans.These are the main provisions of the 123-page statute.Mandatory installation by 2015 of positive train control on rail lines shared by freight andpassenger trains, on “main lines” carrying more than 5 million tons of freight yearly, and on anystretch of track carrying substances such as ammonia and chlorine that pose toxic inhalationhazards.•Rules designed to prevent crew fatigue, including prohibition of train crews working morethan12 hours a day or 266 hours a month .•A long list of new mandates for the Federal Rail-road Administration including certifyingconductors, monitoring locomotive radio traffic, and studying the safety of antique locomotivesused for rides at railroad museums.•Measures to improve safety at railroad–highway crossings. Assistance to families of victims ofpassenger train accidents.•A program of annual $50 million grants to rail-roads for safety improvements.REGULATORS GO TO WORKLike many laws passed by Congress, the Rail Safety Improvement Act is a mixture of specificsand generalities. It was very precise in dictating work-hour rules for train crews under varyingcircumstances, even prohibiting companies from telephoning or paging crew members at homeduring mandatory10-hour rest periods. Yet it also set broad new requirements such as positivetrain control that left much to the discretion of the Federal Railroad Ad-ministration. In fact, itgave the agency so much to do it authorized hiring 200 new employees. Quickly, the agencywent to work. Within a week of the bill’s passage it issued an emergency order prohibiting use ofwireless electronic devices in locomotive cabs and elsewhere on or near operating trains. 24 Itcited seven accidents besides the Metro link collision where cell phone use distracted engineers.Two led to fatalities. It also listed examples of unsafe behavior observed by its staff. Some of thestories were incredible.An FRA deputy regional administrator was con-ducting an initial pre employment interview overthe telephone with a locomotive engineer who was applying for an FRA operating practicesinspector position. The deputy regional administrator heard a train horn in a two long, one short,and one long pattern and asked the candidate if he was operating locomotive. The candidate replied that he was, and the deputy regional administrator terminated the telephone call. Thecandidate was not selected.The agency also set to work on a rule for implementing positive train controls. It began late in2008 by convening a working group with representatives from18 organizations includingrailroads, unions, suppliers, and the FRA. This group met five times. Between meetings it brokeinto task forces. Disagreements between participants were resolved by FRA decisions. Theagency also began a new benefit–cost study.Within six months it submitted a proposed rule to the Office of Information and RegulatoryAffairs(OIRA) along with its benefit–cost study. The 167-pagestudy revealed a stunning excessof costs over bene-fits. Depending on net present value assumptions, the costs of positive traincontrols over 20 years were estimated at between $10 billion and $14 billion. The safety benefitswere only $608 million to $931 million. Under either assumption the cost of controls was morethan 15 times the benefits.Although OIRA’s job is to make sure regulations have a net benefit for society, its hands weretied be-cause of the congressional mandate. It approved the proposed rule and the FRA publisheda 79-page No-tice of Proposed Rulemaking in the Federal Register. 26 This opened a 30-daycomment period. Written comments from anyone could be entered on the Federal RulemakingPortal mailed, faxed, or hand-delivered to the agency. During this comment period the FRA alsoheld a one-day hearing at a Washington hotel to give railroads, unions, and state transportationofficials a chance to comment before regulators. When all comments were in, the agencyreconvened its working group to review them and con-sider changes to the proposed rule. It tooksix more months. The final rule was published in the Federal Register on January 15, 2010, andlater entered in the Code of Federal Regulations. 27 It set standards for the design, functioning, certification, and maintenance of positive train control systems. It also responded to comments.For example, large railroad companies objected to a requirement for dual displays in locomotivecabs for both engineers and brakemen. The agency responded that both were necessary to ensuresafety. General Electric, which sells equipment to the railroads, objected to the agency’sinsistence on approving entire systems and asked it to approve individual parts or componentsinstead. The agency rejected this suggestion as complicating and more expensive. Chemicalshippers asked to exclude rail lines from controls if they carried fewer than 100 tank cars of toxicchemicals a year. The agency refused, saying that was contrary to the safety mission Congresshad given it. The final rule also revised the 20-year benefit–cost projection, making it even lessfavorable. Depending on net present value assumptions, the costs would be$9.6 billion to $13.3billion and the benefits $440 million to $674 million, a ratio of more than 20:1 in either case.WORTH IT?America now has another expensive regulatory pro-gram, one that will raise shipping rates,consumer prices, and rail passenger fares. Railroads are now more heavily regulated in theiroperations and employee relations. The Federal Railroad Administration grows larger and morepowerful. On the other hand, rail passengers are safer, and the railroads may see some efficiencygains. Was the Rail Safety Improvement Act of 2008 justified? Trains are dangerous. Exhibit 1shows an annual total of between 700 and 950 railroad fatalities over the past decade, but few ofthem were passengers killed in train accidents—only 85 over the 10-year period. Most fatalitiesare trespassers who ride trains or enter track corridors. Hundreds more are motorists hit atcrossings. In 2009, for example, there were 713 train fatalities. Of these only three werepassengers killed in accidents. Of the rest, 446 were people trespassing on tracks, 28 248 weremotorists at rail crossings, and 16 were on-duty railroad employees. A nationwide system of train controls might have saved the three passengers and some of the 16 railroad workers killed onduty, but would have done nothing to save the other 697 people. In absolute numbers, motorvehicles kill far more people than passenger trains, to be exact 33,960 more in 2009, but they aresafer per mile traveled. In 2009the fatality rate per 100 million miles traveled was6.07 forpassenger trains compared with 1.10 for motor vehicles.In the FRA’s benefit–cost calculations, the safety benefits of positive train controls were $440million to $674 million over 20 years. It assumed that train controls would lead to a 60 percentreduction in rail accident costs including casualties, train delay, emergency response, and trackand equipment damage. 30 A statistical life was valued at $6 million. The study also noted otherpotential benefits but did not monetize them. Possible business benefits for the railroads includethe ability to run more trains, greater reliability, and diesel fuel savings; a possible benefit forsociety is reduced pollution from diesel exhaust. However, the agency concluded that suchbenefits were uncertai…