CLEVELAND, Ohio (Feb. 23, 2021) — Two of the country’s largest freight railroad unions achieved a favorable decision in the Ninth Circuit Court of Appeals on Tuesday regarding an attempt by the Federal Railroad Administration (FRA) to preempt legislation passed by a number of states that established a minimum of two-person operating crews on freight trains.
The case, brought by the states of California, Washington and Nevada and by the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), challenged former FRA Administrator Ron Batory’s attempt to cancel the laws of those and other states while at the same time attempting to authorize nationwide one-person crews. The unions and states argued that Batory’s May 2019 order violated the comment-and-notice procedures of Administrative Procedures Act (APA) and that his agency could not implicitly preempt the state safety rules.
The Court of Appeals ruled that FRA’s order was “arbitrary and capricious,” taking particular note that the assertions by FRA and the rail carriers that reducing the number of crew members in the cab to one person could improve safety “did not withstand scrutiny” and “was lacking.” The court also criticized the order as not being a “logical outgrowth” of the two-person crew proposal, because “[t]here was nothing in the [proposed regulation] to put a person on notice that the FRA might adopt a national one-person crew limit.”
The court chided FRA for basing its negative preemption decision on “an economic rationale” instead of what is its main obligation — safety.
The court also found the order’s “real and intended effect is to authorize nationwide one-person train crews and to bar any contrary state regulations.” In that it utterly failed to address the safety concerns raised by nearly 1,550 commenters who support two-person crews, the court found the order’s rationale was arbitrary and capricious, thus violating the APA.
Likewise, the court eviscerated the lack of a sound factual basis in the order, which merely cited a study funded by the Association of American Railroads, holding that “a single study suggesting that one-person crew operations ‘appear as safe’ as two-person crews seems a thin reed on which to base a national rule.”
“First, we thank the more than 1,500 BLET and SMART–TD members who took the time to comment on the need for two-person crews, because you have made a difference,” said SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce. “We also congratulate the judges in this case for recognizing the former Administrator overstepped his bounds, and we look ahead to working with the FRA when crew size is again considered on a national level by the agency as a matter of public and operational safety.”
“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,” the union presidents said.
The court ruling, in vacating and remanding the FRA order, sends the matter of a potential rulemaking for freight railroad crew size back to FRA for the agency’s consideration. It also means that two-person crew legislation in the states that had been targeted by FRA’s order remain in effect.
The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
Federal Railroad Administrator Ron Batory in a Jan. 14 letter to union leaders denied a request from the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) to issue an emergency order to safeguard passenger rail travelers and workers, even in the face of known threats and the potential for violence, according to the FBI.
“Regrettably, we received a response from FRA Administrator Ron Batory that denied our Emergency Order request from earlier this week,” SMART-TD President Jeremy R. Ferguson said. “It seems that the safety-first mentality has fleeted under his watch and now the agency is not even willing to strengthen or increase enforcement actions against those that may do harm to the people, equipment, or infrastructure of this nation’s rail system – a complete deviation from FAA, its sister agency under the same DOT umbrella.
“FAA has announced extremely aggressive measures to deter those willing to do harm from boarding commercial aircraft. It’s sad that FRA refuses to do the same.”
In his letter, Batory deferred to the Department of Homeland Security (DHS), which oversees the Transportation Security Administration (TSA), and encouraged rail labor to work with the carriers on bulking up security. This is in spite of the FRA being the primary agency responsible for regulating and enforcing passenger behavior, including the interference or assault of a train crew.
“While your petition correctly notes the differences in statutory and regulatory authorities between the Federal Aviation Administration and the FRA, which evolved based upon operational differences and legislative considerations, these differences do not provide a basis for FRA to take the requested action,” Batory responded. “Accordingly, FRA declines to grant your request for an emergency order. In addition, FRA does not believe it would be appropriate to introduce such an emergency order into the long-standing, well-established law enforcement partnerships between railroads and Federal, state, and local agencies.
“Consistent with your stated willingness ‘to work with the applicable agencies,’ we encourage you to work with railroads as they coordinate to provide for safe passenger rail service at the upcoming Inauguration and beyond,” Batory wrote.
Leaders from both SMART-TD and the BLET, two of the nation’s largest railroad labor unions, expressed concerns to FRA on Jan. 11 and to DHS on Jan. 13 about security vulnerabilities in passenger rail service in the wake of the Jan. 6, 2021, insurrection that occurred at the U.S. Capitol. While airport and air travel security administered by the FAA is well-equipped to react to bar those suspected of causing violence from air travel, no such measures are in place for passenger rail.
“Realizing years of neglect cannot be fixed overnight, we are demanding that significant changes to passenger rail protocol be granted immediately to protect against the imminent threat of danger that exists today,” President Ferguson and BLET President Dennis R. Pierce said. “It is our recommendation, as a minimal standard, that any regulation granted to prohibit the interference of a train crew’s duty be in line with that of aviation statutes and regulations.”
Among the remedies suggested by the union leaders to FRA was the establishment and implementation of a “No-Ride List,” which would mirror the FAA’s “No Fly List” and restrict people from using passenger rail. This solution also was shared with the DHS in the Jan. 13 emergency order request.
“There is nothing more important than the safety of our employees. Since the start of the pandemic, our dedicated frontline employees have kept our trains running, providing a vital transportation service to essential workers. We join our labor partners in continuing to call upon Congress and the Administration to make assaults against rail workers a Federal crime, as it is for aviation workers, and to expand the TSA’s “No Fly List” to rail passenger service,” Flynn said.
“After last week’s violent attack on the U.S. Capitol, we are taking extra steps to continue ensuring the safety of our employees and customers in Washington DC and across our network as we prepare for the Inauguration. In addition to limiting ticket sales and requiring masks to be worn at all times, we are increasing our police enforcement to ensure strong compliance, remove noncomplying customers and ban those that don’t follow our policies,” Flynn said. “This includes deploying additional Amtrak Police officers onboard our trains and in our stations to support our frontline staff, and utilizing additional support from TSA and partner law enforcement agencies.”
As a precaution in advance of the inauguration of President-elect Joe Biden next week, two regional passenger rail carriers have announced service changes. The Maryland Department of Transportation stated it was halting traffic on three MARC lines from Jan. 17th to the 20th. Virginia Railway Express (VRE) said it will not operate trains Monday, Jan. 18 through Jan. 20 as well, citing security concerns.
DHS continues to weigh the emergency order request from the unions to implement a “No-Ride List” despite Batory’s rejection of the unions’ emergency order request and FRA’s failure to act.
“Ron Batory’s notice withdrawal absolutely paved the way for the district court to rule,” SMART Transportation Division President Jeremy Ferguson said. “We must keep in mind, however, that this issue is not yet settled. A larger discussion in court remains ahead, as the judgment states.”
Indeed, the district court noted that the issue of validity of the FRA’s action, which was raised by SMART-TD and the Brotherhood of Locomotive Engineers and Trainmen, was not properly before it and as such, the action stood for the time being.
The court went on to note that those issues are currently pending before the U.S. Ninth Circuit Court of Appeals involving a challenge by the states of California, Washington and Nevada, along with SMART-TD and BLET, as to the FRA’s compliance with the required APA procedures and its ability to declare state law preempted.
Oral argument was heard in that case Monday, October 5, 2020. The court has taken the matter under advisement and will issue a decision hopefully in the near future.
“It is worth noting that if the Ninth Circuit later holds that the FRA Withdrawal Order is invalid, then the Illinois Commerce Commission may move to vacate the judgment,” the district court ruling stated regarding the Illinois case.
The Illinois Commerce Commission, which would have enforced the law, was joined by SMART-TD and the BLET in defending the two-person crew law.
The court’s ruling effectively voids enforcement of the law, which took effect in January.
SMART Transportation Division President Jeremy R. Ferguson and Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce sought clarification today from the Federal Railroad Administration (FRA) after the agency granted 60-day emergency waiver requests to railroads on March 25, ostensibly to maintain their operations during the COVID-19 pandemic.
“As you are already aware, SMART Transportation Division, Brotherhood of Locomotive Engineers and Trainmen, and other rail labor Organizations take strong exception to certain aspects of FRA’s seemingly absolute and unconditional approval of such requests,” the presidents wrote in a letter to Administrator Ron Batory. “We find the sweeping nature of these approvals alarming, especially in view of the fact that the rules waived are written with the safety of our members, and the general public, in mind.
“Notwithstanding the unfounded nature of some of the carriers’ claims in their applications, our immediate concerns are founded in our firm belief that if the carriers understand and apply FRA’s waiver to be carte blanche invitation to ignore rules, it will have a substantial chilling effect on safety.”
The waivers, granted by Batory and signed by Karl Alexy, associate administrator for railroad safety for FRA, were held for a number of days by the agency, which limited the ability of labor organizations to comment and seek a public hearing.
Meanwhile, an emergency order request sought by SMART-TD and the BLET seeking sanitation of areas frequented by frontline rail workers through the course of performing their “essential” duties remains under consideration on the desks of FRA officials.
The waivers grant the Association of American Railroads (AAR), American Short Line and Regional Railroad Association (ASLRRA) and American Public Transportation Association (APTA) as well as other railroad entities the ability to temporarily circumvent established federally mandated requirements for:
Operational tests and inspections
Restrictions on utility employees
Locomotive and conductor certifications
The reason cited by carriers in their petition was to cope with potential workforce shortages the railroads may experience during the coronavirus pandemic.
“Petitioners assert that a reduction in availability of employees due to the COVID-19 pandemic will affect railroads’ ability to keep freight trains carrying critical goods and materials necessary for the country’s welfare operating during this emergency, and that compliance with all Federal railroad safety regulations, with the expected workforce shortage, would significantly hinder railroads’ ability to operate,” the FRA said in its response granting the waivers.
But thanks in part to their adoption of Precision Scheduled Railroading (PSR) practices since 2017, the total employee headcount for Class I freight carriers – including administration/management, maintenance and transportation crew, as reported by the federal Surface Transportation Board (STB), has been axed by roughly 14,000 people in 2019 and by 33,000 since 2000.
STB says that in February 2020 that Class Is had 56,767 transportation crew employees, down from a three-year peak of 68,980 in November 2018.
“There is also a concern that the carriers would use the excuse of a ‘downturn in business’ to artificially create a shortage of manpower to exploit the use of the waivers,” Ferguson and Pierce wrote.
Numbers provided to the union show that approximately 15 percent of T&E personnel are furloughed at the time. SMART-TD leader also have knowledge that carriers recently contacted the Railroad Retirement Board (RRB) in anticipation of offering voluntary furloughs to employees during the pandemic, which incidentally would make the employee ineligible for RRB unemployment benefits.
Among the most-dangerous aspects of this set of waivers is carriers being permitted to allow employees who are unqualified in the territory and uncertified to operate trains as long as Positive Train Control (PTC) technology is present and engaged.
The federally mandated deadline for full PTC implementation is Jan. 1, 2021, and full interoperability among railroads has not been achieved, yet these waivers make the assumption that PTC functionality is sufficient to allow for unqualified crew members to operate over America’s railroads.
Shortened time intervals for required locomotive maintenance and inspections
The movement of defective equipment to the “nearest available” repair location
95% operative brakes to be permissible for trains leaving their initial terminal
Trains can travel 1,200 miles without an intermediate Class IA brake inspection
Extended haul trains can travel 2,000 miles without an intermediate Class IA brake test
The four-hour off-air time is extended to 24 hours and 48 hours with FRA permission
Transfer test requirements are relaxed
The ability to combine two operating trains without additional inspections other than a Class III brake test
Relaxation of yard air source testing and calibration requirements and of requirements for single-care air brake tests
Relaxation of required testing and calibration of telemetry equipment
“These regulations were written with the public’s safety in mind,” SMART-TD President Jeremy Ferguson said. “A number of these waivers are not in the interest of safety and could be creating a recipe for disaster to rail workers and for the public.”
If particular properties do not have a demonstrated reduction of personnel directly related to the COVID-19 pandemic, for instance, illness or self-quarantine, and these waivers are being employed, members are asked to report it to union leadership immediately.
Officers and Staff
SMART Transportation Division
Dear Brothers and Sisters:
As the COVID-19 continues to impact our country and its day-to-day operations, I have received a number of inquiries concerning travel and day-to-day business for union officers and staff.
I will simply state that at this time, it is my personal decision to continue as normal with our mission to serve the membership. As a leader I would never ask our members who are working on buses, trains, and commuter operations every day to do something I would not do. I know they are in harm’s way every day they go to work, with or without COVID-19, and as long as they are there, I too will be traveling by all means necessary to move us forward. This past week, I flew to the AFL-CIO Transportation Trades Department executive council meetings and the UTUIA Field Supervisor annual training class. Next week, I look forward to traveling to Los Angeles to meet with many bus drivers and SMART-TD officers. Until a government agency tells me I can no longer travel, my schedule will not be altered.
In doing so, I will also be monitoring this situation and keeping current with the U.S. Centers for Disease Control and Prevention (CDC) guidelines, while staying particularly mindful of the links provided below my signature. If you are not already, I would encourage you to do the same.
With that being said, should anyone have issues with having to travel while serving in a union capacity due to personal health reasons or fear of contamination of a family member, then I understand. That is your personal decision to make, in conjunction with your doctor or family members.
We will do our best to keep everyone apprised of any changes and we will take every precaution necessary to keep everyone safe. Many letters went out last week and early this week from my office requesting advice for the safety of our members, and also demanding relief from the draconian attendance policies currently in place. So far, the FRA has been the only one to respond. It is sad, yet not surprising, to see the FRA has responded in such a pathetic manner. It is also disconcerting how the FAA stepped up and issued advisories to airports, pilots, and flight attendants; yet the FRA relies on “having no authority in this area” (via Frank Wilner of Railway Age) as their excuse for inaction. We will continue to push all agencies to do everything possible to protect our membership when on duty.
President — Transportation Division
CLEVELAND, Ohio (March 6) — SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) jointly petitioned the Federal Railroad Administration (FRA) on March 6 to take action in responding to the rapidly spreading COVID-19 (coronavirus) in the United States.
“With at least 231 patients treated in 22 states, and at least 14 deaths at the present time … we and other rail labor Organizations take this issue very seriously, and we have been monitoring it closely,” wrote SMART-TD President Jeremy Ferguson and BLET President Dennis R. Pierce in a letter to FRA Administrator Ronald J. Batory.
The two union presidents pointedly questioned the FRA’s lack of an action plan to help address the potential spread of the coronavirus among rail workers.
“As you are likely already aware, over the last several weeks multiple departments within the Department of Transportation … have issued guidelines to employers on how to approach this issue, along with statements and guidelines focused on educating and protecting the crew members, passengers, and consumers who may be impacted by this deadly disease,” the union presidents wrote. “To our knowledge, the FRA has overlooked, or perhaps outright disregarded, its responsibility to get involved with this matter.”
The presidents urged FRA to issue guidelines directed at U.S. rail carriers, employees and passengers similar to those issued by other departments within the DOT.
Those would include:
Sanitizing equipment such as (but not limited to) locomotive cabs, computers, remote control boxes and communal areas such as passenger cars, offices, crew staging areas, company provided ground transportation, and away-from-home lodging facilities.
Providing crews and passengers with personal protective equipment, alcohol-based hand sanitizer strong enough to kill viruses, and other cleaning supplies as deemed appropriate.
Encouraging employees to stay home if they have respiratory symptoms (such as coughing, sneezing, shortness of breath, and/or fever) that are similar to those associated with the coronavirus and to leave if they develop such symptoms while working.
Strongly encouraging rail carriers to relax current attendance policies which can be described as unforgiving, at best, to employees who miss work due to illness.
Educating all rail employees (including supervisory staff) on the appropriate guidelines for self-monitoring of their health, as well as monitoring and addressing others who appear to be symptomatic.
Reporting to appropriate health departments where employees have shown aforementioned symptoms that prevent them from carrying out their assigned duties.
Developing plans for employees who reside with, and/or come into direct contact with individuals who are symptomatic.
Encouraging carriers to develop health programs and practices which exceed FRA’s recommended guidelines.
Encouraging all parties to understand and comply with other such guidelines issued by the Centers of Disease Control and Prevention (CDC).
Presidents Ferguson and Pierce concluded by again urging prompt action from FRA to protect the safety of railroad workers and the traveling public.
“Further, we ask that you provide continual updates to these guidelines, as other departments have done. Please advise of your plans pertaining to this very serious situation,” they wrote.
The Federal Railroad Administration (FRA) in a 41-page report released Jan. 13th by its Office of Research, Development and Technology said what railroaders already know.
Researchers at the Volpe Center over a period of years performed cognitive task analyses (CTAs) that examined the mental demands placed on rail workers, including operating personnel, as they engaged with technology and performed their jobs.
SMART Transportation Division President Jeremy R. Ferguson
“Results from the locomotive engineer and conductor CTAs indicate that train crews, a primary example of an elemental team in railroad operations, exhibit characteristics of high performing teams that are found across industries,” the report said. “These include mutual performance monitoring — to catch and correct errors — and active support of each other’s activities.”
“These teamwork activities went beyond the requirements of formal operating rules and were not explicitly covered in training,” the report states.
The Volpe Center has even received accolades from Transportation Secretary Elaine Chao herself, who praised its work at enabling safety and innovation for the nation in regard to transportation and infrastructure during the center’s groundbreaking in Oct. 2019.
“It has worked to reduce rail-grade crossing accidents, improve vehicle safety, and better manage the airspace…. The Volpe Center continues to provide important contributions to our national transportation system. Especially now, when we have entered a historic period of transportation innovation that promises to boost economic growth and improve quality of life. These innovations are occurring in all modes of transportation, including roads, rail, maritime, and aerospace…. All these innovations are exciting, but they can be disruptive. This is where Volpe’s contribution plays an important role. Volpe’s data and analysis provides trustworthy information that helps us distinguish between ‘High’ and ‘Hype’ performance innovations. Volpe’s data helps build confidence among stakeholders, including the public whose acceptance is critical to realizing the potential of ground-breaking innovations.”
So, when a facility respected for its research of transportation issues provides evidence in an FRA report saying that cooperative efforts and communications exhibited by the two operating crew members help keep railroad operations safe beyond the baseline training that every rail worker receives upon hire, it blows a hole in the argument that “rail safety data does not support a train crew staffing rulemaking” from FRA Administrator Ron Batory last May in withdrawing the Notice of Proposed Rulemaking on two-person crews.
There’s the old saying that “two heads are better than one.” Railroaders live this life, especially when coping with the unimaginable fatigue being an over-the-road crewmember brings. The ability of two people to work together and their collected experience helps them to react to unexpected and potentially dangerous situations as they happen, preserving the safety of the crew and others while crossing the country.
Earlier research from the Volpe Center released in December 2013 also proves this:
“The locomotive engineer and conductor function as a joint cognitive system, meaning that conductors and locomotive engineers jointly contribute to the set of cognitive activities required to operate the train safely and efficiently.”
“While each crew member has a distinct set of formal responsibilities, in practice they operate as an integrated team, contributing knowledge and backing each other up as necessary.”
“When operating on the mainline conductors not only serve as a ‘second pair of eyes’, alerting the locomotive engineer to upcoming signals and potential hazards (e.g., activity at grade crossings; people working on or around the track), they also contribute knowledge and decision-making judgment.”
“Conductors also serve an important, redundant check and backup role, reminding locomotive engineers of upcoming work zones and speed restrictions.”
“If necessary, they will also handle unanticipated situations and activate the emergency brake, in cases where the locomotive engineer has not responded quickly enough.”
“Conductors have developed a variety of skills and strategies that enable them to handle non-routine situations safely and efficiently.”
It truly is puzzling. Both AAR and Batory’s agency tout safe operations as a primary goal on their websites, and they praise the efforts of railroad workers in keeping operations safe in public testimony. Then they simultaneously argue in court and in state legislatures against keeping those personnel working on America’s railroads because maintaining two on the crew might crack some fragile egg of future technological advancement.
By the way, Volpe research says Positive Train Control (PTC), will not provide all of the cognitive support functions the conductor currently provides to the locomotive engineer.
Technology does not need to be approached with the final goal of slashing a workforce to save costs and thus fill the pockets of those at the top in the form of higher share prices and lower operating ratios. The FRA Office of Research, Development and Technology report even suggests that new technologies can be layered atop current personnel configurations that carriers operate under, and that approach would make sense from a workers’ safety and public safety standpoint.
Technological advances will not deliver first aid to the person whose vehicle has been struck by a train and is trapped and injured after an accident at a rail crossing. Technological advances will not perform CPR on the co-worker in the cab who suffers a medical event while the train is being operated. Technological advances will not physically assist a co-worker in evacuating when a locomotive has derailed into a river.
That people have survived the above scenarios that have occurred on the nation’s railroads are examples of safe operation as well. Unexpected events and calamities do happen. But definitive data aren’t kept by the FRA or the railroads about accidents that are prevented by worker intervention or assistance that is provided. How can you really track what might have happened if the incident is avoided?
What we can look at what is in the here and now. The level of worker and public safety that the railroad industry has achieved is a result of the collaboration of engineers and conductors and all other employees out in the field. Yes, there are still fatalities — our union lost three members in 2019 — and safety performance can still be improved by adding technology without a further reduction of on-train personnel.
An update on the railroad industry’s implementation of positive train control (PTC) will be one of the major topics covered in the next meeting of the Rail Safety Advisory Committee (RSAC) scheduled 9:30 a.m. to 4:30 p.m. Nov. 26, according to a notice published in the Federal Register.
The meeting will be at the National Association of Home Builders, 1201 15th St. NW, Washington, D.C. 20005. Representatives from 29 member organizations, including SMART TD, will convene at the meeting, which is open to the public on a first-come, first-served basis.
The agenda also will include remarks from FRA Administrator Ron Batory and committee reports from the Working Groups for Tourist and Historic Railroads; Track Standards; Passenger Safety; Part 225 Accident Reporting; Train Dispatcher Certification; and Signal Employees Certification and is subject to change, the Federal Register notice stated.
RSAC is a federal advisory committee to the FRA intended to develop railroad safety regulations through a consensus process.
More information about RSAC and a finalized agenda for the meeting will be posted on the RSAC website at least a week in advance of the meeting.
By John Previsich, SMART TD President, and Dennis Pierce, BLET National President
On Thursday, May 23, 2019, we were informed that the Federal Railroad Administration (FRA) had released a notice, withdrawing a 2016 notice of proposed rulemaking establishing a minimum train crew size for most rail freight operations in the United States. This news was not surprising.
What is shocking, however, is the degree to which FRA has chosen to subordinate the safety of BLET and SMART TD members, other railroad workers, and the American public to the interests of the nation’s major railroads.
FRA’s reference to current crew sizes, which have existed for decades, as mere “crew redundancy” displays an astonishing ignorance of the findings of the agency’s own research studies, which establish — in detail and beyond dispute — the unique and specific duties of each crewmember.
FRA also disappointingly engages in self-serving fact selection in its attempts to negate the importance of the 2013 Lac-Mégantic tragedy and the Casselton, North Dakota, oil train derailment — and subsequent explosion and fire — to the crew size debate. And it simply ignores several subsequent accidents where a two-person crew saved the public from an even more horrific outcome.
In its rush to diminish the safety impact of common-sense crew size regulations, FRA also points to various regulations requiring risk analyses and the adoption of risk reduction plans by railroads. While our Organizations fully support such plans, we note that Congress mandated regulations governing these subjects more than a decade ago, but they have yet to be promulgated because of industry recalcitrance and obstructionism.
Also, the argument that two-person crews have not been proven safer — because of FRA’s failure to collect crew size data — while the data support a conclusion that single-person crews are not demonstrably less safe is mystifying in its logic, to be charitable.
Moreover, the federal rail safety regulator hints that there is no “specific requirement that would prohibit autonomous technology from operating a locomotive or train” in the absence of any human crewmember whatsoever as a means of “reducing accidents caused by human error.” If the ongoing grounding of the Boeing MAX aircraft has taught nothing else, FRA and the Department of Transportation should be mindful of the danger of transferring the risk of a human factors accident from operator to programmer when autonomous technology is implemented. For this reason, FRA’s declared “support [for] the integration and implementation of new automation technologies” on the nation’s locomotives should give everyone pause.
Lastly, the Agency’s invocation of the negative preemption doctrine is incredible. Both the industry and the Agency reject prescriptive safety regulations as a philosophical matter, because they supposedly require a “one size fits all” approach; indeed, this was part of the industry’s argument against the proposed rule.
In stark contrast to this philosophy, FRA’s invocation of negative preemption seeks to promulgate a prescriptive prohibition, regardless of the implications of its action on federalism. In so doing, the valid safety concerns expressed by supporters of the proposed rule such as National League of Cities — representing more than 19,000 cities, villages, and towns — and the Western Organization of Resource Councils are dismissed out of hand.
We frankly did not expect this Administration to complete this rulemaking, but we did afford the new Federal Railroad Administrator a fair opportunity to demonstrate that safety was his primary objective. Given the scope of this withdrawal, the Administrator has clearly failed the test, because he has placed corporate profits above public safety. Railroad safety has taken a giant step backward today, but our Organizations do not intend to let this development go unchallenged.
The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents over 57,500 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
WASHINGTON – The U.S. Department of Transportation’s (DOT) Federal Railroad Administration (FRA) May 8 announced a Notice of Proposed Rulemaking (NPRM) to update the regulation that governs locomotive engineer qualification and certification to make it consistent with the corresponding regulation for conductors.
“The proposed revisions would modernize locomotive engineer certification regulations to match those for train conductors, and provide regulatory efficiencies and cost savings without compromising safety,” FRA Administrator Ronald L. Batory said. “The proposal would streamline the engineer certification process, and reduce paperwork burdens for the responsible parties.”
The proposed rule would adopt the conductor certification regulation process established in 2012 by making conforming amendments to the engineer certification regulation, which was first issued in 1991 and last amended in 2000. Consistent with Executive Order 13771, the proposed rule would reduce overall regulatory reporting and cost burdens for railroads and locomotive engineers. Harmonization of the conductor and engineer regulations would also provide greater clarity to locomotive engineers.
The NPRM includes the following five proposed changes to Title 49 of the Code of Federal Regulations, Part 240:
Clarifies locomotive engineer certification requirements (Part 240) and aligns them with conductor certification requirements (Part 242) to make it easier for railroad certification managers to become familiar with and administer both regulations.
Reduces the reporting burden of a person’s former employer to clarify that only certain listed information in the individual’s railroad service record that directly relates to FRA’s requirements in the certification regulation needs to be shared.
Defers the requirement for railroads to seek a waiver from annual testing of certified locomotive engineers when individuals take an extended absence from performing service requiring certification.
Modernizes the dispute resolution process by reducing the paperwork burdens for both employees and railroads and allowing for web-based dockets.
Simplifies the submission process by which qualification and certification programs are modified by allowing electronic submissions.
The proposed revisions for locomotive engineer qualification and certification ensure that certain provisions are consistent, to the extent possible, with those for conductors. FRA is seeking comments on the proposed rule, and will address comments received when preparing a final rule. Comments may be submitted to the docket for the proceeding FRA-2018-0053, and are due by July 8, 2019. Read the full proposed rule here.
After months of waiting, Ronald L. Batory was sworn in on Feb. 28 as the new administrator of the Federal Railroad Administration (FRA).
“This day could not have happened soon enough,” Batory said in remarks delivered during the ceremony administered by Department of Transportation Secretary Elaine Chao. “Those of you familiar with railroad work rules will appreciate (this): While I was ‘held away from home terminal’ from August 2nd to November 19th of last year and on ‘initial terminal delay’ until today, so needless to say, I’m ready to release the brakes and throttle out.”
The former COO and president of Conrail was nominated by President Donald Trump in July 2017 to lead the FRA. However, U.S. Sen. Chuck Schumer (D-N.Y.), the Senate minority leader, placed a hold on Batory’s nomination in an attempt to work out federal funding for the multi-billion-dollar Gateway Tunnel project between Schumer’s home state and New Jersey.
As the delay on his confirmation dragged on, Batory began working in November as a
special assistant to Chao, advising on rail matters. He was finally confirmed Feb. 13 by unanimous voice vote in the U.S. Senate after Schumer lifted his hold.
Now that he’s in, Batory said he’ll be focusing on safety and technology – how to improve the former and the application of the latter.
“Rail safety is first and foremost. Its practice is non-compromising and non-negotiable,” he said. “Safety is embedded into our lives. It is the keystone of the railroad industry.”
Batory said FRA safety efforts will extend beyond the industry to the general public, noting that his agency launched a $4.3 million campaign Feb. 26 in conjunction with the National Highway Traffic Safety Administration (NHTSA) to educate people about the dangers of rail grade crossings, something Batory experienced firsthand aboard locomotives that collided with vehicles at crossings.
In addition, Batory also said that his agency will explore technology that decreases the amount of risk and danger on the nation’s rails.
“FRA will continue with renewed urgency in seeking ways to foster and encourage the railroad industry’s use of technology to bring about continued safety improvements and increased efficiency in railroad operations and maintenance,” he said. “We have many fields of opportunity awaiting us to harvest change whether it be safety, technology, infrastructure or a combination thereof.”
SMART and SMART Transportation Division leadership, which had supported Batory’s nomination from the outset, reacted positively to the long-awaited installation of the new administrator, who has more than 45 years of rail industry experience.
“Ron Batory’s swearing-in brings real-world experience and a solid background in railroad operations and safety to the FRA that all stakeholders can respect,” SMART Transportation Division President John Previsich said. “In remarks today, he mentioned that ‘Rail safety is first and foremost.’ We agree wholeheartedly with that statement, and we look forward to working with Administrator Batory and his agency to reduce risk and enhance safety on our nation’s rails.”
“We are pleased to have Ron Batory as the administrator of the Federal Railroad Administration.” SMART General President Joseph Sellers said. “Ron Batory is knowledgeable and experienced in the railroad industry. We look forward to collaborating with him on PTC and other safety initiatives.”
John Risch, SMART TD’s national legislative director, also highlighted the new administrator’s experience and looks forward to working with Batory.
“This is very good news that Ron Batory was confirmed today. We have been very supportive of him becoming FRA administrator, because he knows the railroad industry and because he has always been fair in his dealings with our membership.” Risch said. “We look forward to working with Ron and his FRA team in improving safety on our nation’s railroads.”
While Batory’s confirmation remained in political limbo, the FRA was being described as “rudderless” in some media reports.
Deputy Administrator Heath Hall, who had been leading the agency on an interim basis, resigned mere days before Batory’s confirmation after allegations surfaced in the media that Hall was working a second job.
Hall had been on a leave of absence from the agency since late January, and Juan D. Reyes III had stepped in to oversee the FRA.
Martinez installed as FMCSA chief
Also on Feb. 28, Chao swore in Raymond B. Martinez to lead the Federal Motor Carrier Safety Administration, which regulates large trucks and buses.
“Ray’s years of experience promoting traffic safety at the state level, as well as his knowledge of the commercial motor vehicle industry, will help FMCSA fulfill its critical mission of improving truck and bus safety,” Chao said.
Martinez most recently served eight years as the New Jersey Motor Vehicle Commission’s chairman and chief administrator, where he oversaw the agency’s 2,500 employees and a $330 million annual operating budget with more than $1 billion in annual revenue.
“It’s an honor and privilege to serve my fellow Americans in this capacity and, under Secretary Chao’s leadership, I look forward to working with all commercial vehicle stakeholders to effectively reduce the number of truck and bus crashes on our nation’s roads,” said Martinez, a former commissioner of the New York State Department of Motor Vehicles.
On February 28, 2018, Ron Batory was sworn in as Administrator of the Federal Railroad Administration. Representing SMART General President Joe Sellers is Steve Dodd, director of government affairs, who is pictured with Ron Batory.
Batory has more than 45 years of rail industry experience and most recently served as president and chief operating officer of Conrail. Batory joined the company in 1998 as vice president-operations and was appointed COO in 2004. He retired from Conrail last year.
Before that, he was president of the Belt Railway Co. of Chicago. Batory also spent more than 20 years working for both eastern and western Class Is, in addition to assisting a court-appointed trustee’s oversight of a regional railroad bankruptcy.
According to GP Sellers, “We are pleased to have Ron Batory as the administrator of the Federal Railroad Administration (FRA).” He added that, “Ron Batory is knowledgeable and experienced in the railroad industry. We look forward to collaborating with him on PTC and other safety initiatives.”