United States: FRA Again Proposes Crew Size Regulation, Complicating Rail Union Negotiations

The Federal Railroad Administration (FRA), the federal agency that regulates rail safety, introduced a Notice of Proposed Rulemaking (NPRM) on July 28, 2022, that addresses the number of employees required to operate a train, revitalizing a rule initially proposed during the Obama Administration but dropped during the Trump Administration. Presently, certain railroads operate with only one person in the cab of the locomotive. Other railroads have looked seriously at one-person operations if and when 1) certain technologies, such as Positive Train Control, allow for one-person operations without negatively impacting the railroads' track record of consistently improving rail safety; and 2) when such operations would not conflict with the railroads' various collective bargaining agreements on crew size or so-called "crew consist."

Although this may seem like an arcane issue that only a labor lawyer could appreciate, the effects could be more broad-based. That is because historically, research suggests that much of the value of productivity gains in railroad operations, such as gains from previous crew consist reductions, inured to the benefit of shippers. Because 28 percent of the freight ton-miles shipped in the U.S. are moved by rail, the issues around crew size could have a further reach regardless of the competing (and contradictory) positions of the federal government concerning the effect of crew size on rail safety.

Background

Because of the back and forth regulatory history of this issue, some context may be helpful. In the "steam era" of locomotives, there could be as many as five different "crafts" of employees operating a train (engineers, conductors, brakeman, switchmen and locomotive fireman) with five different unions representing each of these crafts of employees. Thus, even though diesel engines were routine in freight service by the 1950s and trains no longer needed a fireman, the elimination of the fireman position was a very contentious subject for railroads. The process typically involved the collective bargaining processes of the Railway Labor Act and often involved the appointment of Presidential Emergency Boards or an act of Congress to resolve the issue. Indeed, the current Presidential Emergency Board established on July 15, 2022, by President Joe Biden to consider various wage and rules issues currently has crew size before it as one of several contentious issues. The threat of a proposed rule adds an additional dimension to those negotiations.

Despite the long history of crew reductions, which again have typically involved legislation and extensive litigation, the FRA, which has been in existence since 1970, had not regulated or even publicly considered regulatory issues relating to crew size prior to 2016. That changed on March 15, 2016, when the FRA published its first Notice of Proposed Rulemaking to address crew size. Train Crew Staffing, 81 Fed. Reg. 13,918. This was, as the rail industry's comments repeatedly pointed out, the FRA's first "real" foray into the issue of train crew size or staffing. The NPRM, if enacted, would have set a "baseline" for freight trains at two persons and would have established certain duties and qualifications for the "second crewmember," who was identified as typically a conductor.

The Proposed Rule never went into effect, then sat dormant following a change in administrations until May 29, 2019, when the FRA reversed course and stated that "FRA finds that no regulation of train crew staffing is necessary or appropriate at this time." 84 Fed. Reg. 24, 735 at 24,737. The FRA withdrew the 2016 NPRM and further attempted to federalize the issue so as to preempt state law efforts to regulate crew size.

The Latest Proposal

The most recent NPRM does another 180-degree policy turn and seeks a return to a regulatory approach to the issue of crew size. 87 Fed. Reg. 45564 (July 28, 2022). This time, the FRA again comes out in favor of a federally mandated crew size of at least two persons absent an extraordinary showing and would further require certain existing operations that use only one crew member to provide a post hac rationalization for the safety of those existing operations.

This proposed rule is necessary for FRA to proactively protect railroad employees, the public, and the environment. By requiring railroads to petition FRA for approval of existing (legacy) or new one-person crewmember operations, this proposed rule would allow FRA to closely examine the safety of legacy operations in accordance with established, minimum safety requirements, and prohibit the initiation of one-person crewmember operations that would not be consistent with railroad safety.

87 Fed. Reg. at 45564

The NPRM would require any carrier seeking to implement one-person operations to do so only with FRA permission and only after a process where the railroad demonstrates that it could operate safely with one person. The new process set forth in the NPRM would further create an opportunity for the public or other stakeholders to comment on a particular railroad's proposed operation before the FRA would make an individualized ruling on the railroad's petition.

Comments on the proposed rule can be submitted to docket FRA-2021-0032 via www.regulations.gov and must be received by Sept. 26, 2022. If the FRA adopts a crew size rule, the history of this issue – and rulemakings generally – suggests that litigation challenges are likely.

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