Date: 3/27/2018

While a regulation proposed in 2016 by the U.S. Federal Railroad Administration (FRA) to mandate two-person crews in perpetuity is largely on hold, lawmakers have introduced related legislation in both the House and Senate.

“Beginning on the date that is 30 days after the date of enactment of this section, no freight train or light engine used in connection with the movement of freight may be operated unless the train has a crew consisting of not less than 2 individuals, of whom — (1) one is certified as a locomotive operator in accordance with regulations prescribed pursuant to section 20135; and (2) one is certified as a train conductor in accordance with regulations prescribed pursuant to section 20163,” the legislation reads.

Yet just as the proposed regulation was shortsighted — as the AAR argued in 2016 — so too is the legislation. A 2017 report from the Information Technology & Innovation Foundation noted the dynamic of such policy recommendations occurring against the backdrop of Positive Train Control (PTC) progress:

“A primary motive for going to one-person lines is to reduce operating costs. But the automation needed to accomplish this could have the secondary effect of producing technologies that also improve safety. Looked at another way, companies have a continuous incentive to improve safety, but it may not be profitable to develop automation that increases safety unless companies are allowed to reduce other operating costs, including labor, as they become unnecessary.”

Patrick McLaughlin, a scholar at the Mercatus Center at George Mason University, took a harsher tone with the 2016 NPRM, now under consideration as legislation:

“The demonstrably positive relationship between safety and investment in equipment and track maintenance raises the issue of unintended consequences. Any regulation — even a safety regulation — that deters investment in those areas that have driven the improvements in safety for decades could have the perverse effect of increasing the accident rate. By requiring a greater expenditure on labor (despite lacking any evidence that such expenditures would improve safety), the proposed rule could financially constrain some railroads from making other safety-improving investments.”

There is great uncertainty about the prospects of such legislation moving forward this year, but the proposed policy is nonetheless bad precedent as the industry continually boosts its technological capabilities. John Graham, former Administrator of the Office of Information and Regulatory Affairs summed up the issue nicely in opposing the desire to mandate crew sizes in the future:

“Today’s businesses need to be able to be able to accommodate changes in market trends and emerging technologies, making it vital for rules to be based on metrics. In other words, businesses should be required to meet safety and operational standards – not required to engage in specific operational practices that could become obsolete and saddle them with burdensome costs….

It would also set a dangerous precedent by ignoring tried and true practices for creating rules based on strong data and instead basing them almost on anecdotal evidence.”

Legislators should take a long look at the policy and consider more sensible, performance-based measures, rather than command and control dictates like crew size legislation.