Citing that “no regulation of train crew staffing is necessary or appropriate for railroad operations to be conducted safely at this time,” the Federal Railroad Administration on May 23 cancelled its April 2014 Notice of Proposed Rulemaking (NPRM) to mandate a minimum of two crew members on every freight train. Additionally, FRA is preempting—under Article I, Section 8 of the Constitution, which gives the federal government dominion over interstate commerce—all state laws mandating crew size within state borders.
Following numerous comment submissions during the past five years from interested parties on both sides of the issue, FRA determined, in part, that rail safety data as well as comments to the NPRM “do not support a train crew staffing rulemaking.” As well, “a train crew staffing rule would unnecessarily impede the future of rail innovation and automation.” FRA noted that its withdrawal of the NPRM “is an affirmative decision not to regulate with the intention to preempt state laws.”
The Association of American Railroads quickly lauded FRA’s decision to pull the plug. “Train crew size has been a matter of collective bargaining between railroads and their employees for decades,” AAR noted. “Over that time, the safety of train operations has steadily improved even as crew sizes have been reduced, through the bargaining process, from five or more down to today’s standard of two—and in some cases, one. Today’s action by the FRA directs federal and state lawmakers to stop pushing crew size legislation and let railroads maintain that record of bargaining with their dedicated and professional workforce to continue to modernize rail operations while enhancing safety.
“Both [USDOT] Secretary Chao and [Federal Railroad] Administrator Batory have made clear that safety is of paramount concern; new technologies can be powerful tools for achieving safety; and overly prescriptive regulations can chill innovation. FRA’s careful, evidence-driven conclusion that there is no safety justification to lock railroads into their current crew size practices is consistent with these policies and recognizes the technology revolution occurring throughout the railroad industry. Positive Train Control (PTC) … is one game-changer; others not yet imagined may follow. Allowing railroads the flexibility to adjust their operations to reflect the capabilities of technologies like PTC will help advance railroads’ mission to achieve an accident-free future.”
Labor and management have been negotiating crew consist size since the Railway Labor Act was passed in 1926. Remarked one industry observer, “The people best-qualified to determine how to safely operate a railroad are those actually doing the work. Crew consist size should not be determined by politicians or regulators.”
Rail labor—though sources told Railway Age that, privately, labor agrees that crew consist size should be negotiated, not regulated—lashed out at FRA’s decision. SMART-Transportation Division National Legislative Director John Risch called it “terrible” in a website notice to members, accusing USDOT officials of having “taken sides … with the railroads that want to eliminate operating crew members to the detriment of rail safety and to the detriment of the communities through which our members operate trains. We are considering legal action and other avenues to protect our members and the American public from the prospects of driverless trains. The action today flies in the face of so-called conservative values and states’ rights. The federal government is refusing to protect the public and at the same time is prohibiting states from doing so by posting this federal notice.”