4. Summary of Proposed Settlement and GO 172

GO 172 balances the fiscal concerns associated with the installation and monitoring of in-cab inward-facing cameras, with public safety goals and the needs and concerns of the rail transit agencies' employees and union members. GO 172 would apply to all rail transit agencies in California.

Currently, the Commission oversees the safety of the following rail transit agencies:¹⁰

BART: San Francisco Bay Area Rapid Transit District

MUNI: San Francisco Municipal Railway

(San Francisco MTA, or "Muni")

MTA: Los Angeles County Metropolitan Transportation Authority

SDTI: San Diego Trolley, Inc.

SRT: Sacramento Regional Transit

VTA: Santa Clara Valley Transportation Authority

NCTD: North (San Diego) County Transit District

("Sprinter" Light Rail)

Angel's Flight: Los Angeles' downtown funicular

POLA: Port of Los Angeles (Waterfront Red Car Line)

SFO: San Francisco International Airport ("AirTrain")

The Grove Trolley (Los Angeles)

Americana at Brand Trolley (Glendale)

Some key provisions of GO 172 are discussed below.

4.1. In-Cab Inward-facing Camera and PED Possession

Staff Report originally proposed that the agencies be required to install and monitor inward-facing cameras in the rail transit cabs or, absent such monitoring, the operators would be banned from possession of PEDs on the transit vehicles. Agencies objected on grounds that the monitoring requirement was too costly and only marginally beneficial. Unions objected that cameras would violate privacy rights. Unions also argued that PED possession and use with reasonable restrictions should be permitted, with or without the cameras. GO 172 is a compromise by all parties to some extent.

GO 172 allows possession of PED on rail transit vehicles if the device is turned off and stowed and not on the operator's person. Operational in-cab inward-facing video cameras are required within three years of the effective date of GO 172. During the three-year interim period until the cameras are installed and operational, supervisory observations for compliance are required, with CPSD oversight of the supervisory monitoring.

We agree that this provision provides a necessary monitoring tool that would deter or prevent PED use in the cab environment. Specifically, although immediate implementation of in-cab camera surveillance may not be feasible for all of the agencies, the parties have committed and accepted such surveillance requirement and schedule for implementing it. This provision therefore is critically important because it will result in video cameras being installed and video footage being monitored.

PEDs in today's society have become customary, and this provision will provide a framework for prudent and safe possession and use of PEDs by the operators while concurrently providing better protections from behaviors that could compromise safety.

Ideally, installation of these cameras would occur sooner than three years from now. However, we understand the agencies' concerns that securing funding, working with funding cycles, installation of the cameras and testing of the cameras will take considerable time. Therefore, we find that allowing up to three years for the agencies to secure, install and begin in-cab video monitoring is reasonable.

We commend CPSD and the Settling Parties for their efforts in reaching the compromised solution reflected in this provision. Because of this historic joining of forces, California will be the first state to require in-cab inward-facing cameras on any rail vehicle, including both railroad and rail transit agencies.

4.2. In-Cab Camera and Video Retention or Storage Requirements

Staff Report originally recommended that the agencies be required to retain video footage for all cameras for 60 consecutive days. Agencies claimed that the 60-day requirement would be prohibitively expensive while adding only marginal safety benefits.¹¹

Instead of the 60-day requirement, GO 172 requires that cameras have an eight-day continuous loop recording so that any time the recording is downloaded, the most recent eight days are available for review.

In addition, GO 172 requires each of the agencies to develop and submit an enforcement and monitoring plan that includes provisions for reviewing those recordings both randomly and after any derailment, impact, death or injury, complaint, or observation of a violation, and for the purposes of a testing program to ensure compliance with GO 172. The enforcement and monitoring plan would then be reviewed and approved by the CPSD Director or Deputy Director.¹²

We find that the eight-day continuous loop recording and related safety requirements set forth in GO 172 are a reasonable and a cost-effective approach to introducing the in-cab camera technology as an enforcement tool. Specifically, these provisions set forth an approach that effectively creates the means for non-compliance to be monitored and sets a framework for the agencies' disciplinary programs.

4.3. Zero Tolerance Policy and Discipline of Rail Transit Employees

Unlike the draft GO provisions originally proposed by CPSD, which set out specific disciplinary consequences to violations, GO 172 gives latitude to agencies to devise appropriate sanctions for GO violations by their employees (including contractors), while requiring varying degrees of discipline "up to and including discharge."¹³ Specifically, within 90 days of the effective date of GO 172, each rail transit agency must develop, adopt, and submit to the Commission, for review and approval, a clear and effective zero tolerance policy and program designed to effectively deter and prevent violations and promote a culture of safer behavior.¹⁴

GO 172, Section 5.2a provides that each agency's disciplinary program must set out disciplinary consequences appropriate to the violations "and sufficiently serious to be reasonably expected to prevent violations of this General Order." For instance, a relatively non-punitive disciplinary action may be commensurate with an inadvertent or otherwise less egregious non-compliance, while suspension or discharge from operator duties may be appropriate for more serious or repeat violations.

GO 172 also requires each rail transit agency to keep records of any violation of GO 172 and to make the records available to the Commission staff upon request. Such mandatory record-keeping and Commission oversight are added assurances for successful implementation of the zero tolerance policy and program by the agencies.

These GO provisions were developed collaboratively by the rail transit agencies and their employees' unions. Such collaborative development shows the stakeholders' commitment to the framework for the disciplinary programs and their uniform buy-in to those envisioned programs. Therefore, the collaboratively developed disciplinary framework and resulting disciplinary programs should be well received by the agencies for their implementation and by the agencies' employees for speedier acceptance and compliance. In addition, this collaboration should moot any potential collective bargaining issues or other potential for litigation which could delay or hamper GO 172 implementation. For these reasons, we find that the GO 172 provisions regarding the disciplinary policy and program are reasonable.

4.4. Personal versus Agency-issued Devices

Staff Report originally proposed different draft GO provisions for personal versus rail transit agency-issued (agency-issued) devices. CPSD believed that less strict regulation of agency-issued PEDs might be appropriate so as not to unduly interfere with the agencies' operations. GO 172 makes no distinction between personal and agency-issued devices. All PEDs are treated equally. Specifically, all PEDs, irrespective of whether they are personal or agency-issued, must be turned off and stowed when a transit employee is operating a rail transit or on-track vehicle. A PED may be used in an emergency, and only when "the rail transit or on-track vehicle is stopped and the person is not in the controlling compartment of the rail transit vehicle."¹⁵

This GO 172 shows that the agencies and their employees' unions acknowledge the importance of minimizing transit operator distractions. GO 172 recognizes that any use of the PEDs, personal or agency-issued, while operating the transit vehicles poses unacceptable safety risk.

We find this strict use prohibition to be an appropriate and reasonable regulatory response to effectively address the underlying public safety concerns. We also find this provision to be simpler and easier to enforce than the draft GO previously proposed by CPSD.

4.5. Other Refinements

In addition to the foregoing modifications and refinements, GO 172 also reflects several other proposed modifications by the Settling Parties, to the draft GO provisions originally proposed by CPSD. Mainly, the modifications clarify or update definitions and eliminate ambiguities or inconsistencies.

¹⁰ GO 172 would also apply to any new rail transit agencies that may begin operation in the future.

¹¹ Los Angeles County Metropolitan Transportation Authority estimated costs at $55 million to comply with the 60-day video retention requirement. Los Angeles County Metropolitan Transportation Authority, Comment dated January 22, 2010, at 7.

¹² GO 172, Section 6.1 requires that each rail transit agency must submit the video-based monitoring and enforcement plan for review and approval "at least 90 days prior to video camera operation." Section 4 also requires the agencies to store and retain the recordings, if an agency's monitoring uncovers recordings of an operator violating GO 172, of an impact, derailment, etc.

¹³ Id., Section 5.1.

¹⁴ Id., Section 5.2b.

¹⁵ See GO 172, Section 3.2.