Report: USDOT Calls on Appeals Court to Reject Petitions Against its Two-Person Crew Rule
While it “doesn’t specifically preclude railroads from operating trains with one person crews (OPTO, ‘one-person train operations’), it makes it extremely difficult, if not impossible, for them to do so, going forward,” Railway Age Editor-in-Chief William C. Vantuono reported when the rule was issued April 2.
FRA explained at that time that the rule “enhances safety in the rail industry by generally requiring and emphasizing the importance and necessity of a second crew member on all trains. A second crew member performs important safety functions that could be lost when reducing crew size to a single person. Without the final rule, railroads could initiate single-crew operations without performing a rigorous risk assessment, mitigating known risks, or even notifying FRA. The final rule closes this loophole by establishing minimum standards and a federal oversight process to empower communities and railroad workers to make their voices heard by allowing for public input during FRA’s decision-making process on whether to grant special approval for one-person train crew operations. In finalizing this rule, FRA reviewed and considered more than 13,500 written comments received during the 146-day comment period—in addition to the testimony from a one-day public hearing.”
The final rule “codifies train crew staffing rules at a federal level, ensuring that freight and passenger rail operations are governed by consistent safety rules in all states,” FRA reported. “This is an ongoing issue as Ohio, Virginia, and Colorado, among others, have recently considered legislation to require two-person rail crews. In addition, the final rule contains some differences from the initial notice of proposed rulemaking in how it treats freight railroads, especially Class II and III freight railroads. In limited cases, the rule permits exceptions for smaller railroads to continue or initiate certain one-person train crew operations by notifying FRA and complying with new federal safety standards.”
According to Law360, USDOT and FRA have requested that the court “reject petitions” from the “Association of American Railroads, and other individual railroads, including Union Pacific Railroad Co. and BNSF Railway Co., in a consolidated challenge seeking to vacate the rule.” Eight consolidated rail-industry petitions are being considered by the court, “alleging the Biden administration recklessly forged ahead with an ‘unwarranted’ mandate to garner support from rail workers’ unions,” the news outlet reported. “They say the FRA failed to back up its rule with any data suggesting that a two-person crew was ‘necessary’ for railroad safety. The railroad petitioners have argued that ‘in fact, the data and evidence that is in the record establish that one-person crews are just as safe as — and possibly even safer than — two-person crews.’”
The USDOT and FRA in their Sept. 24 reply brief said “FRA reasonably exercised its discretion, based on evidence developed in this rulemaking, when it determined that a Class I railroad operating longhaul trains must first demonstrate through a special-approval petition that it can operate one-person trains as safely or safer than a two-person crew before changing its operations from the status quo,” according to Law360. “Moreover, this is not a case where an agency rule will require sweeping changes across the industry, the [US]DOT said. Currently, none of the Class I railroads operate with one-person crews for mainline operations. But various regional and short-line railroads in the U.S. sometimes operate with one-person crews.”
According to Law360, USDOT and FRA are “saying the railroads are downplaying ‘the importance of separate conductors to the safe operation of trains to support their claim,’ while elsewhere ‘they repeatedly take the opposite view by highlighting a conductor’s role in their operational practices.’ In essence, the railroads ‘wish to be free to eliminate the second crewmember whenever they decide in their judgment that it would be prudent to do so instead of demonstrating to FRA that one-person crews are at least as safe as a two-person train crew operation,’ according to the [US]DOT and FRA.”
The railroad petitioners told the court that “the consequences of this rule for the nation’s rail industry — and the millions of shippers and consumers who depend on freight rail — cannot be overstated,” Law360 reported. “‘At a time when governments around the world are realizing the promise of technology in delivering more efficient transportation services, FRA is locking the American rail industry into the past,’ the AAR and petitioners said in their opening brief.”
They recommended that the rule be struck down “following the U.S. Supreme Court’s recent Loper Bright ruling,” the news outlet said. SCOTUS “overturned a decades-old precedent that has guided judges on when to defer to federal agencies’ interpretations of law in rulemaking. Under the so-called Chevron doctrine, courts were obligated to defer to a federal agency’s reasoning for adopting regulations under laws that might be ambiguous. But the Supreme Court held that courts should have more say in what federal agencies do.”
Additionally, the American Short Line and Regional Railroad Association “and other petitioners have argued that the final rule includes burdensome and complicated preclearance requirements for smaller railroads seeking ‘legacy’ exemptions from the mandate,” Law360 reported. “FRA’s rule exempts from the two-person crew requirement regional and short line railroads that were operating legacy one-person crews two years before final rule was issued, including those carrying hazmat. But if those railroads weren’t already transporting hazmat, but have subsequently been required to transport hazmat, they may not operate with one-person crews without first petitioning the FRA for approval.”
While the FRA rule’s effective date was early June, this court challenge will “keep it in limbo into 2025,” according to Railway Age Capitol Hill Contributing Editor Frank N. Wilner, whose commentary on it, “Labor Beware: Even the Best of Friends Can Be Wrong,” was published in May.
“There is no immediate effect on Class I railroads as collective bargaining agreements require two crew members in the cab—but many will be up for renegotiation within a few years,” he wrote. “For regionals and short lines, with or without labor agreements and now operating with one crew member in the cab, there is no immediate impact. Should the new rule survive court challenge, those operations will be grandfathered. However, those who initiated such operations since mid-2022, or wishing to do so, will have to seek FRA approval, navigating through an arguably cumbersome process requiring notice and comment.”
The FRA in April 2014 first announced its intent to require two-person crews “for most main line train operations including those trains carrying crude oil.” Wilner opined at that time that “FRA has produced no evidence that two-person crews are safer than single-person train operation.” He pointed that out that five year earlier, “FRA said it had ‘no factual evidence to support [a] prohibition against one-person crew operations.’ The California Public Utilities Commission concluded a two-person crew ‘could aggravate engineer distraction,’ while the National Transportation Safety Board does not oppose phasing out two-person crews as other safety enhancements, such as PTC, are implemented. Yet in April [2014], the FRA, at the urging of labor, said it would promulgate a rule requiring two-person crews. Privately, some at FRA disparage the agency’s effort as ‘the Book of Mormon,’ saying FRA lacks data, and its arguments are ubiquitous with the term ‘we believe.’ With U.S. crude-by-rail accidents traceable entirely to rail flaws, the data-phobic FRA’s motive in requiring two-person crews is highly suspect, and diverts scarce resources that should be focused elsewhere. Regulatory actions should be data driven. Yet when a carrier official suggested a data-driven approach, an FRA official responded—according to FRA-prepared meeting minutes—‘What would be the objective of this exercise?’ That the FRA Administrator is a former union officer legitimately adds to anxieties.”
