Among the thousands of comments received by the Federal Railroad Administration on a proposed rule that would require at least two crew members in a freight locomotive cab was one from the U.S. Small Business Administration saying FRA “significantly understated” costs and the number of potentially affected businesses.
SBA’s Office of Advocacy is asking FRA to revise and republish its initial regulatory flexibility analysis because SBA maintains that FRA grossly underestimated how much the regulation would cost short-line railroads.
“[FRA] significantly understated the cost and number of small businesses that would be impacted by the rule,” SBA said in a Dec. 21 letter to FRA Administrator Amit Bose.
FRA’s revision of its regulatory flexibility analysis should consider regulatory alternatives that could achieve its objectives while also minimizing costs to small entities, SBA said in a December fact sheet about the proposed rule.
While some short-line operators utilize two-person crews, smaller short-line railroads have typically used one person to drive the locomotive, according to the American Short Line and Regional Railroad Association (ASLRRA). At a December hearing about the proposed rule, ASLRRA said the costs of adding new crew members at small short-line railroads could put them out of business.
“It was very clear from the roundtable and public hearing that large Class I railroads are very different — both operationally and financially — from their Class II and III counterparts,” SBA’s Dec. 21 letter said. “While FRA does consider several regulatory alternatives in the proposed rule, the alternatives do not distinguish between large and small railroads or recognize the diverse and distinctive environments that short-line railroads face both operationally and financially.”
Some of the alternatives could include a more streamlined petition process, a longer compliance time for smaller railroads or a performance-based standard focused on clearly established safety metrics that would allow presumptive approvals or exemptions.
SBA noted that FRA would allow “legacy operations” with one-person train crews to apply and obtain permission from FRA to “initiate a new train operation.” But the government agency said short-line operators have noted the submissions would require detailed risk assessments that small businesses don’t possess the bandwidth to produce.
According to SBA’s letter, there are 696 short-line railroads in the U.S., and on average they employ fewer than 30 people, run an average of 79 miles and have $7.7 million or less in revenue. Smaller short-line railroads might have one person driving the locomotive and the other person in a truck or utility vehicle performing switching and other operational tasks, the letter said.
FRA conducted a public hearing in December to hear testimony from ASLRRA, several short lines, Union Pacific (NYSE: UNP), Norfolk Southern (NYSE: NSC), the Association of American Railroads and union representatives from the Brotherhood of Locomotive Engineers and Trainmen, Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD) and Transportation Trade Department of the AFL-CIO.
The agency collected public testimony through December.
Lines drawn in comments about the proposed rule
The thousands of submissions to FRA about the train crew size rule included views both for and against it.
Politicians who voiced hesitation included Republican Rep. Rick Crawford of Arkansas and Sen. Roger Wicker of Mississippi.
“Ultimately, FRA’s [notice of proposed rulemaking] fails on several fronts to meet the requisite standards required of proper and effective rulemaking,” Crawford said in a Dec. 21 letter to FRA’s Bose. “Instead, this stands as an arbitrary and capricious proposed rule that simply fits a campaign promise by President [Joe] Biden rather than meeting necessary standards for rulemaking or meeting the goal of improving and ensuring safety.”
When Crawford wrote the letter, he was the ranking member of the U.S. House Subcommittee on Railroads, Pipelines and Hazardous Materials.
Wicker also wrote in the letter that FRA should have conducted more testing, which would have helped the agency understand whether to continue with the proposed rule or modify it. He also pointed out that examples in the proposed rule don’t account for recent technological advances.
“FRA also published the [notice of proposed rulemaking] without developing data, thoroughly examining the status of operations in the industry and evaluating the level of burden the proposed rule would impose. …” Wicker wrote. “FRA could and should have remediated this lack of data in advance of proposing the rule. The collection of this data would undoubtedly have helped to determine whether regulation is necessary at all, while allowing for a more complete evaluation of the safety implications and tradeoffs involved in mandating crew size.”
Meanwhile, hundreds of individual crew members along with union and state groups urged FRA to press forward with the rule, contending the mandate will ensure safe practices in part because a conductor and train engineer can act as an internal checks-and-balances operational unit.
“Technology can and should be used to enhance the safety of railroad operations. However, technology cannot take the place of two sets of eyes and ears in the locomotive cab,” said Tony Cardwell, president of the Brotherhood of Maintenance of Way – Employes Division, in a December letter in support of the proposed rule. “The best way to ensure the highest level of safety for railroad operations is to have two qualified crew members on each freight train, just as there are two qualified crew members in the cockpit of each commercial airplane.”
Said Donald Roach, director of SMART-TD’s Michigan state legislative board: “Keeping two crew members on a train does not stifle innovation. The railroads have not stated how this regulation on crew size would stifle innovation. Currently, there is no technology that can replace either crew member.”
The California Public Utilities Commission (CPUC) not only urged FRA to adopt the proposed rule but remove the conditions that would enable one-crew legacy operations to be excluded. But if exclusion provisions remain, state agencies should have more power to make the decision.
“The FRA’s exemption process results in a two-person crew requirement that is weaker than California’s stringent two-person crew mandate, which does not provide an exemption for freight operations.” CPUC said in December. “Should the FRA grant exemptions to freight railroads operating in California, this would result in a return to pre-2015 conditions in which freight railroads were permitted to undergo long-distance freight operations without at least two crew members. As a result, the FRA’s proposed two-person crew exemption process could reduce safety along California’s rail system. The commission urges the FRA to remove its proposed exemption process — at least for rail freight operations — in order to ensure that safety is not being compromised and that state laws are not being undermined.”
Twenty state senators from Washington also urged FRA to pass the proposed rule. Washington itself passed a state law requiring a train crew size of at least two members in 2020.
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