Data drought haunts FRA crew-size mandate

Written by Frank N. Wilner, Capitol Hill Contributing Editor

By the Federal Railroad Administration’s own congressional testimony, the years 2012 and 2013 were among the railroads’ safest on record, while the relatively few train crashes were mostly the result of human error and track defects.

The FRA and the National Transportation Safety Board promise that implementation by year-end 2015 of PTC (Positive Train Control)—collision avoidance technology that monitors and controls train movements—will further improve railroad safety by eliminating opportunity for human error.

Yet on April 9, 2014, the FRA announced its intent to require two-person crews “for most main line train operations including those trains carrying crude oil.” This is startling for the following reasons:

• The FRA has produced no evidence that two-person crews are safer than single-person train operation.

• The California Public Utilities Commission found that “[a] second set of eyes provides only minimal safety improvement and should be employed only on a temporary basis, given the fact it could aggravate engineer distraction.”

• Los Angeles Metrolink, which conducted a 16-month pilot project substituting two-person crews for single-person train operation, found no improvement in safety as a result. Metrolink also cited studies by the FRA and the NTSB that found two crew members in the locomotive cab “can have an unintended contrary effect on safety due to potential for distraction.”

• The NTSB does not oppose phasing out of two-person crews as other safety enhancements, such as PTC, are implemented.

• While the horrific multiple-fatality derailment Lac-Mégantic, Quebec last summer involved a single-person crew—the engineer of the parked train was said to have failed to apply hand brakes properly—there is no evidence a second crew member might have prevented that accident. In fact, on Norfolk Southern in January 2005, in Graniteville, S.C., a multi-person crew failed to align a switch properly, resulting in a deadly release of chlorine gas. On four occasions since September 2010, multi-person crews have been involved in serious train accidents where human error was the cause. PTC likely would have prevented each of the accidents.

More startling is the timing of the FRA intent to mandate two-person crews. Indeed, Class I freight railroads currently utilize two-person crews under collectively bargained labor agreements, meaning the FRA intent now to require them is academic. Moreover, the Association of American Railroads has assured the FRA that the freight railroad industry will not reduce train-crew size prior to implementation of PTC. “Unfortunately, the FRA has rejected this logical, good-faith effort,” the AAR said.

The FRA made its announcement under the cover of supposed collaboration with rail labor and rail management through Railroad Safety Advisory Committee (RSAC) working groups, but the AAR asserts the process was “a sham … There was no consensus. There was no vote taken.” The FRA agrees there was neither consensus nor a vote.

So why the rush by the FRA to mandate minimum crew size in the absence of a compelling reason validated by scientific analysis, and prior to implementation of PTC and a study of its effectiveness in eliminating human error?

This is not to suggest that FRA Administrator Joe Szabo has a personal agenda, but one cannot ignore that:

• Prior to Szabo’s becoming Administrator, he was a legislative officer of the United Transportation Union, which represents, primarily, conductors, who would benefit most by the two-person crew requirement.

• A new round of collective bargaining will begin in January, and while federal courts have said crew-size is not an appropriate subject for national bargaining, this round of bargaining could break a decades-old pattern of national handling with bargaining taking place railroad-by-railroad. Thus, a federal rule prohibiting one-person crews would remove opportunity for a collectively bargained one-person crew pilot project—in conjunction with PTC operation—that would, for example, assure no layoffs or loss of income to conductors affected. Even with national handling, pilot projects could be negotiated on individual railroads so long as there is no federal rule preventing one-person crews.

• While the Brotherhood of Locomotive Engineers and Trainmen now opposes one-person crews, it has, in the past, offered to negotiate engineer-only operation in exchange for additional engineer pay; BLET has a contract on a portion of BNSF that would permit engineer-only operation if the UTU (now a division of the International Association of Sheet Metal, Air, Rail and Transportation Workers) agreed. When promoting one-person crews, the BLET raised no concerns over train safety.

• Until the 1970s, many states established minimum crew size—always defended on the basis of train safety. Those so-called full-crew laws served as an impediment to railroad revenue adequacy and contributed to financial failures that forced normalized maintenance to be deferred, resulting in costly derailments and service degradation. Some states required as many as seven crew members aboard freight trains—harking to decades past prior to air brakes and when link-and-pin couplers and steam-powered locomotives were in use. In anticipation of federal legislation barring states from establishing minimum crew size unconnected to safety requirements, unions collectively bargained to allow crew-size reduction in exchange for income protection and cash awards for affected workers. Train safety improved as crew size was reduced.

While the FRA might hang its intent to require two-person crews on a congressional mandate that the agency promote train safety, Congress also charges the FRA with promoting “sound, successful railroad transportation.” Mandating minimum crew size, absent validated scientific evidence of its safety necessity, arbitrarily interferes with the collective bargaining process, threatens improved productivity, increases operating costs, and places upward pressure on rates that could drive freight to more dangerous highways. All were bitter lessons learned when states mandated minimum crew size.

AAR President Ed Hamberger is spot-on with his comment, “If a regulation is proposed, then the least that can be expected is that a federal agency should back it up with grounded data that justifies the recommend rule. To date, nothing but rhetoric and empty pronouncements have been offered to validate their claims … [The FRA] never shared an iota of data that shows or proves two-person crews are safer. It takes grounded data, not rhetorical pronouncements, to justify further regulations.”

Interestingly, Szabo testified before the House Rail Subcommittee in December 2011, complaining of those who “limit your research to just those sources you want to hear from.”

The FRA will publish a Notice of Proposed Rulemaking this summer in the Federal Register. A 60-day comment period will follow, allowing the FRA, after it digests comments, to make changes to the proposed rule and publish a final rule that can then be challenged in the federal courts.

Likely in the near term is Szabo being called to Capitol Hill to explain the FRA’s action in light of no supporting scientific data to demonstrate any correlation between mandated two-person crews and train safety. Szabo has had more than one run-in with House Rail Subcommittee Chairman Jeff Denham (R-Calif.), who most recently publicly took him to task for failing to attend a January Subcommittee field hearing on high speed rail that Denham said was rescheduled for the convenience of Szabo.

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