By Keith T. Borman
Legislative “cures” to improve railroad safety act just like medicines on human populations: Drugs developed for one group can be disastrous when given to another for whom they were not intended. In the Rail Safety Improvement Act of 2008, Congress concocted a powerful cocktail of safety remedies enacted primarily for Class I railroad consumption. As the Federal Railroad Administration begins to dispense the implementing regulations, serious operational and financial side effects are starting to appear among small Class II and Class III carriers.
The forthcoming new hours-of-service rules illustrate why small railroads are starting to feel queasy. The Rail Safety Improvement Act created a new 276-hour cap on the number of hours train service employees may work in any calendar month, and mandated two days rest after six consecutive days of train service and three days rest after seven consecutive days of train service. These and other provisions throughout the new law reveal a consistent intent by Congress to address perceived safety issues arising from train crew fatigue. For example, in the legislation Congress imposed for the first time ever limitations on so-called “limbo time,” the hours spent in tasks other than operating a train, such as waiting for transportation back to the terminal before marking off duty or attending training classes. Further, Congress was so concerned about train crew fatigue that it expressly prohibited railroad managers from any form of communication with a train crew employee during a statutory rest period that “could reasonably be expected to disrupt the employee's rest.”
Certainly the demands of Class I operations create potential opportunities for fatigue. Big railroads operate 24 hours a day, seven days a week. Their train crews operate over long distances and often that requires them to work longer than the typical eight-hour day, and at the end of their run they often must check into hotels far from their home terminals to get their required rest. Crew schedules are sometimes unpredictable, and crew members can be called for service at odd hours with only a few hours notice.
Small railroad train service employees inhabit a different world. They don't have to lay over at remote, away-from-home terminals. Their routes are short and at the end of the workday they go home, not to a hotel. Most work exclusively during daylight hours, and while some may work six or seven days in a row, it is often because their workday is five or six hours, and they want and need the extra days to put in a normal 40-hour workweek. In other words, six-or seven-day workweeks on short lines are not the fatigue issue Congress had in mind when it mandated two days' rest for six days work and three days off for seven consecutive days on the job. For short line employees, six-and seven-day workweeks are a lifestyle choice, not a fatigue problem.
Tasked by Congress to deliver the medicine, FRA has been sympathetic to the small railroads' claim that fatigue is not a short line problem. But FRA sees no alternative to imposing the new rest requirements on short lines as well as Class I's. When ASLRRA cried, “Stop! These medicines are meant for huge 24/7 railroads only!” FRA responded, in effect, “Doctor's orders! Congress didn't expressly exempt small railroads; now open wide!”
So the small railroad industry must swallow a bitter pill that will have painful side effects. The short lines that seasonally work seven days a week to bring in the wheat harvest will tell their customers that they just don't have the crews available, and moving the grain will have to wait. Other small carriers serving shippers once a day six or seven days a week will reduce their service levels. Hiring more employees is no antidote: Small railroads work on thin margins and are unlikely and often unable to increase their operating expenses to maintain the same level of service.
The side effects will be contagious as well. Small carrier train crews will begin to feel cramps in their paychecks as the days available to work diminish. Some may even experience job losses as the smallest carriers succumb, because they can no longer serve the customer adequately with their existing crews and cannot afford to hire more.
One way to remedy this malady is to go back to Congress for a new “prescription,” to exempt small railroads who do not suffer from fatigue related safety issues. But by the time Congress finds time to take a second look, it may be too late for some short lines. Seeking relief from the FRA under its limited statutory authority to grant waivers is another possibility which ASLRRA will explore. Meanwhile, public policy makers would do well to recall the ancient advice given to all healers who prescribe medicines: primum non nocere: First, do no harm.
Keith T. Borman is Vice President and General Counsel of the American Short Line & Regional Railroad Association.