Freight trains in a railyard
The recent train derailment in Ohio has focused attention not only on railroads, but on their federal regulator. The Federal Railroad Administration (FRA) has an important mission—“to enable the safe, reliable, and efficient movement of people and goods for a strong America, now and in the future.” Nothing is ever completely safe, of course, but FRA commits to “empower employees to focus time and resources on data-driven, cost-effective solutions that promote FRA mission accomplishment.”
Unfortunately, its recent rulemaking on crew size is neither data-driven nor evidence-based, and it is unlikely to support FRA’s mission. The proposal would require, with few exceptions, all railroad operations to have a minimum of two crewmembers. While FRA offers no evidence that these requirements will make rails any safer, they will increase costs and divert resources from other potentially safety-enhancing investments.
For more than 40 years, presidents have directed agencies to regulate only to address a “compelling public need,” and to “adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The crewmember rulemaking has done none of that.
FRA has not identified a compelling public need for this rule
FRA asserts that the “proposed rule is necessary for FRA to proactively protect railroad employees, the public, and the environment,” but provides no evidence that current crewmember practices—or practices that may evolve with increases in safety-enhancing automation—are inadequate to provide such protection. The train that derailed earlier this month had 3 crewmembers aboard. Rather than demonstrating a compelling public need, FRA’s proposal would flip the burden of proof so that individual railroads would have to prove that one-person crews are not less safe. Even railroads that have long track records of operating safely with one crewmember would have to go through a vaguely described petition process to receive FRA approval to continue their operations.
FRA has not identified any benefits of the proposal
Not surprisingly, given the lack of justification for commencing this rulemaking, FRA finds it difficult to identify expected safety benefits. It relies on the circular argument that benefits would accrue when, to obtain a waiver from the two-crewmember requirement, railroads would assess safety concerns, but the rulemaking acknowledges FRA “does not have sufficient data to monetize those benefits” nor does it offer a plan to gather such data.
It does have data that cast doubt on those benefits, however. The Alliance for Innovation and Infrastructure’s analysis of government data was “unable to find that multiple-person crews are more likely to prevent accidents nor that single-person crews are more accident-prone.” European freight trains typically run with one crewmember, and an analysis of U.S. and European rail safety data similarly found “no evidence that railroads operating with two-person crews are statistically safer than railroads operating with one-person crews.”
FRA ignores countervailing risks
FRA estimates that its rule would cost around $2 million over 10 years. But that estimate only includes the costs to railroads and the agency of developing and processing waiver petitions. As former FRA senior economist Patrick McLaughlin, now a senior research fellow at the Mercatus Center at George Mason University, points out, the rule could actually decrease safety. “By requiring a greater expenditure on additional personnel, this proposal may induce some railroads to reallocate scarce resources away from those activities that are historically associated with improved safety, such as track and equipment maintenance or investments into technologies that further automate the operations that train crews currently perform.” FRA weakly counters that “a train crew staffing rule would not necessarily halt rail innovation or automation” (emphasis added).
FRA also neglects to appreciate that railroads compete with other transportation modes, and increasing costs could shift commerce to trucks, which could affect highway safety and emissions.
FRA needs firmer ground for its final rule
Given the lack of evidence to support this rule, one may wonder why FRA is pursuing it. The answer may be that the proposal has the support of the labor unions representing railroad workers. President Biden addressed them by video during his campaign and explicitly committed to requiring two crewmembers on all railroads.
Presidents have considerable control over the regulations their agencies issue, but it isn’t absolute. A rule that isn’t well-reasoned is likely to be overturned by the courts, which are alert to agencies’ use of pretext to justify an action; as the Trump administration learned when the Supreme Court rejected its attempt to add a citizenship question to the 2020 Census on an unsupported argument about law enforcement.
FRA has received more than 13,000 comments on its proposal. Many (if not most) of those appear to be short expressions of support for the regulation (likely an organized “mass comment campaign”), but experts emphasize that the public comment process is not a referendum. Research shows that such campaigns “generally contain little ‘relevant matter.’” The number of comments for or against a rule won’t help agencies defend it in court, because they “are required to consider the substance of comments,” not how many “votes” they receive.
FRA does not expect to issue a final rule until 2024. Perhaps that will be enough time to examine the evidence, including information from the recent derailment, and make a more reasoned decision in keeping with its mission.
