US Circuit Court rejects FRA’s actions on train crew size

Unions laud decision while Association of American Railroads expresses frustration

A federal appeals court on Tuesday vacated the Federal Railroad Administration’s May 2019 order on train crew size because the agency didn’t undergo an adequate public review process prior to issuing the order.

A three-judge panel with the U.S. Court of Appeals for the 9th Circuit in San Francisco said FRA didn’t conduct adequate due process prior to declaring that its May 2019 order on train crew size preempted state laws requiring a minimum number of employees working on a freight train crew. The court remanded the issue back to FRA for review.

In May 2019, FRA withdrew a notice of proposed rulemaking that would have set guidelines for how many workers should be staffing a freight train. The agency also ordered that its withdrawal of the proposed rulemaking preempt all state laws attempting to regulate train crew staffing in any manner. 

The agency said in May 2019 that the railroads maintained a strong safety record in the absence of regulation and that regulating train crew staffing was not necessary or appropriate for rail operations to be conducted safely at this time. The agency also said a crew staffing rule would have posed an unnecessary obstacle to future innovation in the rail industry, which has had crew staffing matters addressed by the Railway Labor Act since 1926.

Following FRA’s order, the states of California, Washington and Nevada filed lawsuits against FRA because those states had sought state laws requiring at least two workers to run a freight crew train. 

But on Tuesday, the court determined that FRA failed to comply with the minimum notice-and-comment provisions of the Administrative Procedures Act, and there was no language about one-person train crews included in the 2016 notice of proposed rulemaking on establishing a minimum train crew size, according to the decision’s summary.

FRA sought “to change its position without fully explaining its reasons for doing so and without following its usual procedures for rulemaking. The FRA went from proposing, as required by safety concerns, a nationally minimum two-person train crew rule to imposing a maximum one person train-crew rule and preempting safety laws,” according to the court opinion written by Judge Consuelo M. Callahan.

In a separate concurrence, Circuit Judge Morgan Christen said, “I would vacate the notice of withdrawal solely based on our conclusion that the Notice of Proposed Rulemaking did provide adequate notice or opportunity to comment. I would not reach whether the notice of withdrawal negatively preempted state laws or whether the Federal Railroad Administration provided a satisfactory explanation for the notice.”

Reactions to the court’s ruling

In response to Tuesday’s court ruling, an FRA spokeswoman said, “FRA is currently reviewing the court’s decision.”

Meanwhile, the Association of American Railroads (AAR), an intervenor in the court proceeding, was disappointed by the ruling.

“Railroads are frustrated and perplexed by the 9th Circuit’s decision. The panel rejected robust data, sound reason and well-established law in favor of judges’ personal opinions on how the expert rail safety agency should evaluate safety data and how the railroads should operate their trains,” an AAR spokesperson said. 

“FRA has never regulated train crew size, and the 9th Circuit’s opinion fundamentally misconstrues the agency’s thoroughly supported decision in 2019 to decline doing so. Particularly at a time when DOT [Department of Transportation] is championing increased automation on our nation’s highways, rules preventing the railroad industry from efficiently and effectively deploying similar technologies make no sense. Hamstringing the rail industry with 20th century staffing rules is a clear step in the wrong direction. AAR is evaluating next steps,” the AAR spokesperson said.

But unions praised the court ruling. The Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) had each filed lawsuits against FRA on the train crew size issue, but the court dismissed their petitions because the headquarters of the unions were outside of the 9th circuit’s jurisdiction.

“We assert, and will continue to assert, that having two sets of eyes and two people working in concert together with any improvements in technology will be the best way to serve public safety and to continue the effective and efficient movement of our nation’s railroads,” said SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce in a joint statement.

Greg Regan, president of the Transportation Trades Department of the AFL-CIO, said, “The 9th Circuit rightfully cast aside FRA’s order as arbitrary and capricious and castigated the administration for its ill-conceived actions and its unsupported logic in its assault on rail safety. We are thankful that state safety laws can go back into effect, but today’s decision is only a first step. Congress and the FRA must act to deploy a strong nationwide crew size mandate that will keep railroaders and the communities they travel through safe. We look forward to working with them in this effort.”

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Joanna Marsh

Joanna is a Washington, DC-based writer covering the freight railroad industry. She has worked for Argus Media as a contributing reporter for Argus Rail Business and as a market reporter for Argus Coal Daily.