5. Discussion
The Settlement, as described above, and as reflected in GO 172 is an effective and thoughtfully crafted solution to the significant rail transit safety concern for which the OIR was issued. Through this collaborative process, the industry stakeholders arrived at a solution that effectively accommodated and addressed their respective concerns while also achieving the shared goal of the OIR, rail transit safety.
GO 172 will deter and prevent unsafe transit operator behaviors which were the unintended byproduct of the new PED technologies. The National Transportation and Safety Board (NTSB) chairperson said:
Technology has the ability to increase the number of distractions, but it also has the ability to increase safety in the cab. Technology's a game changer. It's already changing the way we do business. When it comes to using technology, enforcement and oversight can't be left behind. It has to advance along with everything else that we're relying on technology to improve.
...
I hope that the rail regulators, industry, and labor will work together towards solutions, and take a chance on leading when it comes to safety and distractions, and not be the last mode to address this important issue.16
We agree. GO 172 is an important safety precaution necessitated by changing times. We next consider the Settlement and GO 172 under the specific criteria by which we review proposed settlements. As set forth in Rule 12.1(d), the criteria are whether a proposed settlement is reasonable in light of the entire record, consistent with the law, and in the public interest.
5.1. The Settlement is Reasonable in Light of the Entire Record of this Proceeding
As noted earlier, the record in this proceeding is extensive and demonstrates a clear safety need for GO 172. CPSD prepared the Staff Report and a draft GO, based on this record. The Settling Parties, with active CPSD facilitation, then collaborated on revisions to draft a GO that found a workable solution to the issues presented in the OIR while addressing the parties' concerns.
In Section 4, above, of today's decision, we discussed the major provisions of GO 172, with special attention to those provisions that revised CPSD's draft GO. For all of these provisions, we found that the approach taken in GO 172 is reasonable. In fact, for each major concern, the Settling Parties propose a solution that is reasonable, both in itself and as accommodation of various concerns by stakeholders.
We further find GO 172 to be coherent and comprehensive. For example, GO 172, Section 1.4, anticipates future updates to GO 172 as technology changes and other social media circumstances change to keep up with continually changing times. Section 1.5 also provides for any potential exemptions or modifications to GO.
GO 172 will be an effective regulatory response to a clear safety issue facing the transit industry. Review of the record in this proceeding provides support for the Settlement and adoption of GO 172. Thus, we find the Settlement and GO 172 are reasonable in light of the entire record.
5.2. The Settlement is Consistent with the Law
The Settlement and GO 172 are consistent with the law. Taken together, California Public Utilities Code (Code) Sections 778, 29047, 30646, 100168 and 99152 authorize the Commission to prohibit the use of PEDs by safety-sensitive rail transit employees, when operating rail transit vehicles.
The rail transit agencies in operation prior to January 1, 1979, Code Sections specifically outlines the Commission jurisdiction. Examples of these jurisdiction-conferring statutes include Code Section 29047 for Bay Area Rapid Transit, Section 100168 for the Santa Clara Valley Transit Authority, and Section 30646 for the Los Angeles County Metropolitan Transportation Authority.17
Code Section 29047 provides, in pertinent part, that:
The [BART] district shall be subject to regulations of the Public Utilities Commission relating to safety appliances and procedures, and the commission shall inspect all work done pursuant to this part and may make such further additions or changes necessary for the purpose of safety to employees and the general public. The commission shall enforce the provisions of this section . . . .
Code Section 100168 is identical to the quoted portion of Section 29047 and provides for the Commission's rail transit safety jurisdiction over the Santa Clara Valley Transit District (San Jose). Code Section 30646 does likewise for the Los Angeles County Metropolitan Transportation Authority, adding that it: "... shall [also] be subject to the jurisdiction of the Public Utilities Commission with respect to safety rules and other regulations governing the operation of street railways."
Generally, as to all rail transit agencies, Code Section 778 provides: "The commission shall adopt rules and regulations, which shall become effective on July 1, 1977, relating to safety appliances and procedures for rail transit services operated at grade and in vehicular traffic...."
For transit guideways, Code Section 99152 provides:
Any public transit guideway planned, acquired, or constructed, on or after January 1, 1979, is subject to regulations of the Public Utilities Commission relating to safety appliances and procedures. The commission shall inspect all work done on those guideways and may make further additions or changes necessary for the purpose of safety to employees and the general public. The commission shall develop an oversight program employing safety planning criteria, guidelines, safety standards, and safety procedures to be met by operators in the design, construction, and operation of those guideways. Existing industry standards shall be used where applicable.
Consistent with the foregoing authorities, the Commission has adopted various rules and regulations concerning rail transit safety. For example, GO 26-D establishes clearances as to side and overhead structures, parallel tracks and crossings; GO 95 sets forth, among other things, safety requirements for overhead electric/catenary lines; GO 127 provides for the maintenance and operation of automatic train control systems for the rail transit agencies; GO 143-B addresses the design, construction, and operation of light rail transit systems; and GO 164-D provides safety oversight for rail fixed guideway systems.
Consistent with the foregoing authorities, the Commission continues to oversee and update these safety GOs. Moreover, the Commission has been identified by the Federal Transit Administration as the State Safety Oversight Agency (SSO) for transit agencies in California under Title 49 C.F.R. part 659. As an SSO, the Commission is also required to execute certain federally-mandated oversight responsibilities over the rail transit agencies.
The Commission adopted Resolution SX-88 which prohibited the "Personal use of commercial mobile radio services and devices by on-duty railroad engineers, brakemen, conductors, or rail transit vehicle operators...except for personal communications which take place while the train or transit vehicle is stopped and with approval of the appropriate management personnel."18 Resolution SX-88 continues in effect today, on an interim basis, for rail transit agencies. As stated in the OIR, this proceeding considers the permanent adoption of the prohibitions in the Resolution SX-88 as well as other measures to address safety regarding rail transit employees' use of PEDs.
The Settling Parties have complied with Commission's Rule 12.1. The Commission has jurisdiction and authority to adopt GO 172 as a safety regulation. No party objects to the Commission's jurisdiction or authority. No party objects or otherwise opposes the approval of Settlement and adoption of GO 172. Also, GO 172 provides more comprehensive measures than Resolution SX-88. Based on the foregoing, we find that the Settlement and GO 172 are consistent with the applicable laws.
5.3. The Settlement is in the Public Interest
The Settlement and GO 172 are in the public interest. The GO effectively requires agencies to implement safety programs which include this important safety technology (inward-facing cameras) as part of the transit agencies' safety programs. GO 172 successfully addresses an important rail transit safety issue at a time when the agencies, who will bear the cost of the implementation, face severe fiscal constraints. Finally, the Settlement resolves both privacy and collective bargaining concerns that might otherwise hinder successful implementation of GO 172. We also find the public interest to be served by this successful collaboration among the stakeholders in the transit industry.
Therefore, we believe adoption of GO 172 should avoid potential delays and costs of protracted litigation and should readily be accepted by the industry. We expect that speedier and smoother implementation will result. We therefore find that the Settlement and GO 172 are reasonable compromises of the Settling Parties' respective positions and are in the public interest.
5.4. Adopting the Settlement is Reasonable
Based on our review and the discussion above, the Commission finds the Settlement and GO 172 to be reasonable in light of the whole record, consistent with the law, and in the public interest. Therefore, we approve the Settlement and adopt GO 172.
16 Chairperson Deborah A. P. Hersman's closing remarks at the January 21, 2010, NTSB Board meeting adopting the final report and recommendations regarding the September 12, 2008, Chatsworth Metrolink-UPRR collision.
17 The Los Angeles County Transportation Authority is the successor to the Southern California Rapid Transit District (the original statutory target agency) and the Los Angeles County Transportation Commission. The change-over took place February 1, 1993.
18 Ibid.
