On May 23, the Federal Railroad Administration (FRA) canceled the 2016 Notice of Proposed Rulemaking (NPRM) to mandate minimum staffing requirements depending on the type of rail operation.
FRA proposed developing the rule due to the 2013 Lac-Mégantic and Casselton rail accidents. On December 13, 2013, a 74-car train carrying Bakken Formation crude oil derailed in the Quebec town of Lac-Mégantic, resulting in fires, explosions and 47 deaths. On December 30 of the same year, a westbound BNSF train carrying soybeans derailed outside of the North Dakota town of Casselton. A BNSF train traveling east struck wreckage from the westbound derailment, resulting in large explosions visible for several miles. There were no reported casualties from the Casselton incident, but the accident could have been fatal had it occurred in an area with greater population density.
The FRA initially believed that there may have been a causal relationship between the accidents’ causes and the number of qualified personnel staffing each train. Following the accidents, the Railroad Safety Advisory Committee (RSAC) formed a task force to better understand any potential links between safety and train crew size. The task force met five times between October 2013 and March 2014 but was unable to point to any data that conclusively showed that having a minimum train crew size led to increased or decreased safety.
Despite RSAC’s inability to reach a conclusion, the FRA opened a comment period to the general public, between March 15, 2016, and August 15, 2016. Nearly 1,600 comments were submitted during the five-month window, with 1,545 in favor of train crew staffing requirements, and only 39 opposed. Despite yielding overwhelming support for train crew staffing requirements, the FRA determined that the evidence produced from the comment period was mostly anecdotal and not precise enough to sway its decision.
The Association of American Railroads (AAR) supported the decision, claiming that regulating train crew sizes was a collective bargaining issue between railroads and unions, and less about safety. AAR also cited an inverse correlation between train crew size and safety. As the safety of train operations has increased gradually, crew sizes have declined. Many in the industry believe that with the advent of new technologies, such as Positive Train Control (PTC), there is less of a need to staff most trains with two qualified crew members.
Railroad unions, specifically the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division (SMART TD) had opposed the cancellation. In a press release published on May 24, Dennis R. Pierce, BLET national president, and John Previsich, SMART TD president, issued a joint statement condemning the FRA’s decision to cancel the proposed mandate. The press release claimed the FRA exhibited an “astonishing ignorance of the findings of the agency’s own research studies, which establish—in detail and beyond dispute—the unique and specific duties of each crewmember.”
The statement also contended that the FRA was placing the interest of America’s railroads ahead of its workers and the general public, further compromising safety as each crew member in a multi-member crew plays a unique role in averting accidents.
In a document released on May 29, Ronald L. Batory, administrator of the Federal Railroad Administration, further gave five reasons that were part of the decision to cancel the NPRM mandate:
(I) There Is No Direct Safety Connection Between Train Crew Staffing and the Lac-Mégantic or Casselton Accidents
In conjunction with Canada’s Transportation Safety Board (TSB), the FRA could not draw any conclusions regarding the trains’ staffing impact on safety. Specifically, “TSB of Canada found no direct causal connection between this catastrophic accident and the number of train crew members.” The Lac-Mégantic train was operated by a one-person crew.
(II) Rail Safety Data Does Not Support a Train Crew Staffing Rulemaking
After reviewing accident and incident data for the last 17 years ending in 2018, the FRA could not determine that the accidents and incidents from that data set involving a single-person crew would have been prevented if multiple crew members had been aboard. Additionally, the NTSB investigated several accidents during that time frame where a crew with two-qualified individuals operated the locomotive and failed to prevent an accident.
(III) Comments to the NPRM Do Not Support a Train Crew Staffing Rulemaking
After careful review of the comments received by the NPRM, the FRA has determined that it is not prudent to regulate train crew staffing at this time. The FRA reasons that the data from accidents involving one-person crews are inconclusive, and there is no evidence to suggest that trains staffed with single crews are inherently less safe than those staffed with two qualified individuals.
(IV) A Train Crew Staffing Rule Would Unnecessarily Impede the Future of Rail Innovation and Automation
FRA’s current regulatory structure is based largely on “legacy” equipment, traditional technology lagging behind current technological innovations. The railroads have been pivoting away from legacy technology and moving toward innovations, such as automation and Positive Train Control (PTC), that have the potential to improve safety by eliminating human error, to increase productivity, and to create new jobs. If a new staffing rule were to be implemented requiring two individuals to work on each train, then that could potentially redirect resources away from new, innovative technologies.
(V) FRA’s Withdrawal Is an Affirmative Decision Not to Regulate With the Intention to Preempt State Laws
As part of the decision to withdraw from the 2016 NPRM, the decision will preempt all state laws that attempt to regulate train crew staffing. The FRA believes that there are nine states currently attempting to regulate train crew staffing in some way. The nine states are Arizona, California, Massachusetts, New Jersey, Ohio, Oregon, Washington, West Virginia, and Wisconsin. The former Federal Railroad Safety Act of 1970 (FRSA) describes the requirements for preemption of state law. State law can be preempted where the FRA “prescribes a regulation or issues an order covering the subject matter of the State requirement.” The FRA determined that federal and state actions covered the same subject matter area in specific regards to railroad safety, and thus federal law preempts state law. The ability of federal law to preempt state law traces its origins back to Article I, Section 8 of the Constitution, which grants the federal government dominion over interstate commerce.
Based on the lack of quantitative evidence to support minimum staffing requirements, canceling the 2016 NPRM was the correct decision.
Minimum staffing requirements would have strained railroads’ balance sheets by increasing labor costs and potentially diverting freight traffic from railroads to highway-utilizing trucks. Trucks are not only less fuel-efficient than trains, but increase congestion and add wear-and-tear to America’s already highways.
Additionally, the regulation would have been counterproductive for advancing railroad technology. As a response to the FRA’s decision, the AAR stated that “new technologies can be powerful tools for achieving safety and overly prescriptive regulations can chill innovation.” The AAR statement cited PTC as a technology at risk of being stifled if minimum staffing requirements were to be implemented. Minimum staffing requirements may have afforded railroads less flexibility to invest in safety-driven technologies such as PTC. Additionally, a minimum staffing requirement would fail to acknowledge the freight railroad’s strong safety record.
The onus is now on the FRA to collect accurate data on one-crew and potentially driverless trains moving forward. If safety is truly the FRA’s top priority, then requisite data will be essential. The FRA’s decision should not be set in stone; the agency should begin to collect more robust data that may provide more insight. If these data do in fact produce concrete evidence that one-crew or driverless trains do have an adverse effect on safety, then the FRA should be prepared to take appropriate actions to ensure it is keeping railroad workers and the American public safe.