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 that the FRA ” “significantly underestimated” the costs and the number of businesses potentially affected. .
SBA’s Office of Advocacy is asking FRA to revise and republish its initial regulatory flexibility analysis because SBA contends that FRA grossly underestimated how much the regulation would cost short-line railroads.
“[FRA] significantly underestimated the cost and number of small businesses that would be affected by the rule,” SBA said in a Dec. 21 letter to FRA Administrator Amit Bose.
FRA’s review of its regulatory flexibility analysis should consider regulatory alternatives that can 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 use 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). In a December hearing on the proposed rule, ASLRRA said the costs of adding new crew members to small, short-line railroads could put them out of business.
“It was abundantly 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,” the SBA letter said on December 21. “While FRA considers several regulatory alternatives in the proposed rule, the alternatives do not distinguish between large and small railroads or recognize the different and distinct 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 defined safety metrics that would allow presumptive approvals or exemptions. .
SBA noted that FRA would allow “legacy operations” with one-person train crews to apply for and receive permission from FRA to “commence a new train operation.” But the government agency said short-haul operators have noted that the filings would require detailed risk assessments that small businesses don’t have the bandwidth to produce.
According to the SBA 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 may have one person driving the locomotive and another person in a truck or service vehicle performing shifts and other operational duties, the letter said.
FRA held a public hearing in December to hear testimony from ASLRRA, a few short lines, Union Pacific (NYSE: UNP ), Norfolk Southern (NYSE: NSC ), the Association of American Railroads, and union representatives from the Brotherhood of Engineers and Trainers of Locomotive, the Transportation Division of the Sheet Metal, Air, Railroad and Transportation Workers International (SMART-TD) and the Transportation Trades Department of the AFL-CIO.
The agency collected public testimony through December.
Lines drawn in comments about the proposed rule
Thousands of submissions to FRA regarding the train crew size rule included views for and against it.
Politicians who expressed reluctance included Republican Rick Crawford of Arkansas and Sen. Roger Wicker of Mississippi.
“Ultimately, FRA’s [notice of proposed rulemaking] fails on several fronts to meet the necessary standards required for appropriate and effective rulemaking,” Crawford said in a Dec. 21 letter to FRA’s Bose. “Instead, this stands as an arbitrary proposed rule and capricious that just fits a campaign promise from the President [Joe] Biden instead of meeting the necessary standards for rulemaking or fulfilling the purpose of improving and ensuring safety.”
When Crawford wrote the letter, he was the ranking member of the US House Subcommittee on Railroads, Pipelines and Hazardous Materials.
Wicker also wrote in the letter that the FRA should have conducted more testing, which would have helped the agency figure out whether to proceed with the proposed rule or modify it. He also noted that the examples in the proposed rule do not take into account recent technological advances.
“FRA also published [notice of proposed rulemaking] without developing data, thoroughly examining the status of industry operations and evaluating the level of burden that the proposed rule would impose. …” Wicker wrote. “FRA could and should have corrected this lack of data before proposing the rule. The collection of this data would undoubtedly have helped to determine whether regulation is necessary at all, allowing for a more complete assessment of the safety implications and trade-offs involved in determining crew size.
Meanwhile, hundreds of individual crew members along with union and state groups urged the FRA to move forward with the rule, claiming the mandate will ensure safe practices in part because a conductor and train engineer can act as an operational control unit. and internal balancing.
“Technology can and should be used to enhance the safety of rail 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 – Employees Division, in a December letter supporting the proposed rule. “The way the best way to ensure the highest level of safety for rail operations is to have two qualified crew members on every freight train, just as there are two qualified crew members in the cockpit of every commercial airplane.”
Donald Roach, SMART-TD’s Michigan state legislative board director said, “Keeping two crew members on a train does not stifle innovation. The railroads have not stated how this crew size regulation would stifle innovation. Currently, there is no technology that can replace any of the crew members.”
The California Public Utilities Commission (CPUC) not only asked the FRA to adopt the proposed rule, but to remove the conditions that would allow single-crew legacy operations to be exempted. But if the exemption provisions remain, state agencies should have more power to make the decision.
“FRA’s exemption process results in a two-person crew requirement that is weaker than California’s strict two-person crew mandate, which does not provide an exemption for freight operations.” The CPUC said in December. “If the FRA grants exemptions for freight railroads operating in California, it would result in a return to the pre-2015 conditions in which freight railroads were allowed to engage in long-haul 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 waive its proposed waiver process—at least for rail transportation operations—to ensure that safety is not compromised and state laws are not violated.
Twenty state senators from Washington also urged the FRA to pass the proposed rule. Washington itself passed a state law requiring a train crew of at least two members in 2020.
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