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.
The INVEST Act, as written, requires a certified locomotive engineer and certified conductor on most freight trains. According to the bill, there are instances that a train may be operated with a reduced crew. Exceptions are listed below:
A freight train may be operated with a reduced crew, if:
The train operations are within a rail yard, terminal area, or on auxiliary or industry track
It does not exceed a maximum speed of 25 mph on territory with an average track grade of less than 2% for any segment of track that is at least two continuous miles
The locomotives are performing assistance to a train that has incurred mechanical failure or lacks the power to traverse difficult terrain, including to or from the location where assistance is provided
The locomotives are not attached to any equipment (except a caboose) and do not travel further than 30 miles from a rail yard
A location where one-person operations were being utilized one year prior to the date of enactment of this bill, only if the DOT Secretary determines that the operation achieves an equivalent level of safety (Note: The Secretary of the DOT is appointed by the President of the United States)
SHORT LINE EXCEPTION
In addition to the above, a train may be operated with a reduced crew, if:
The carrier has fewer than 400,000 total employee work hours annually and an annual revenue of less than $20,000,000
A TRAIN MUST BE OPERATED BY A TWO-PERSON CREW (NO EXCEPTION), IF:
It is transporting one or more loaded cares carrying material toxic by inhalation
It is carrying 20 or more loaded tank cars of a Class 2 material or a Class 3 flammable liquid in a continuous block
It has 35 or more loaded tank cars of a Class 2 material or a Class 3 flammable liquid throughout its consist
It is 7,500 feet in length or longer
The INVEST Act is poised to be the most significant piece of rail-related legislation this generation of railroaders has seen since the passage of the Federal Railroad Safety Act of 1970.
The Investing in a New Vision for the Environment and Surface Transportation in America (INVEST in America) Act is the result of countless hours of work by this Union on the Hill and in the halls of Congress. The INVEST in America Act reauthorizes funding set to expire Sept. 30, but more so, sets standards for safety, training, and transportation reform that have long been sought by the members of SMART Transportation Division including:
Yardmaster Hours of Service
a “Cross Border” fix.
Additionally, Amtrak would see its funding triple to $29 billion over the five-year period of the bill, allowing for expansion of national, state and regional routes and facility modernization. Funding for the Consolidated Rail Infrastructure and Safety Improvements (CRISI) grant program also would be increased to $7 billion to fund passenger and freight rail projects. Provisions for/or against the transportation of liquid natural gas (LNG) via rail tank cars, blocked railroad crossings, and excessive freight train length, among others, also have been included.
Our National Legislative Office has been hard at work in Washington, D.C., to convey our issues to both sides of the aisle in the U.S. House and Senate, and the provisions within this bill are the fruits of that labor.
Undoubtedly, House Democrats have heard our cries and have answered the call. By including our issues within the context of this bill, they have let America know that the only safe operation of a Class I freight train is with a two-person crew; that our bus drivers and operators have the right to a safe work environment; and that the public should be shielded from the risks that rail carriers will take in the name of greed.
But make no mistake, this bill still has a long road to travel and a lot of heavy-handed opposition standing before it in the Republican-controlled Senate. We will need all hands on deck to protect the provisions we have all fought so hard for to survive that journey.
I am asking you to please watch this bill as it moves through the legislative process and see who and what hurdles it faces. I’m asking you to please pay attention to the party affiliations of the individuals as the yeas and nays are registered when the bill is voted upon. And I am asking you to listen to the rhetoric and testimony that will affect its final appearance. Once the dust has settled, I will call on you to please support those who support you and your family’s well-being, and I firmly believe that picture will be crystal clear.
There are only two parties at the table. The Democrats wrote it into the bill, only the Republicans will take it out.
President — Transportation Division
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, D.C. (March 22, 2019) – Two large railroad unions in the United States have pledged their joint support for the Safe Freight Act legislation introduced by U.S. Rep. Don Young (R – Alaska).
The Safe Freight Act (H.R. 1748) requires that two certified crew members operate freight trains on U.S. rails and has the backing of the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET).
“SMART Transportation Division has been working tirelessly to promote safety in the railroad industry, and there is no doubt that the only safe rail operation is one that includes at a minimum a certified conductor and a certified locomotive engineer,” SMART TD President John Previsich said. “A clear message must be sent to our lawmakers and to the general public that multi-person crews are essential to ensuring the safest rail operations possible in their communities. I would like to thank Congressman Young for his leadership on this critical issue as we continue to improve safety on our nation’s railroads for both our members and for the general public.”
“This is necessary safety legislation to protect railroad workers and the American public,” BLET National President Dennis R. Pierce said. “While the railroad industry talks of one-person train crews and even autonomous trains, the 2013 tragedy of Lac-Megantic is justification enough that we need two sets of eyes and ears in the locomotive cab.”
Recent well-publicized rail accidents in other nations involving trains with one or no crew members show how smaller crews increase the risk of catastrophe in railroad accidents.
In September 2018, an autonomous runaway TasRail train reached speeds of 31 mph before it derailed in the Tasmanian city of Devonport, injuring two people. The train had become unresponsive to remote control commands, including the train’s emergency stop feature.
On Nov. 5, 2018, a runaway BHP ore train of 268 cars with no one aboard reached speeds of 62 mph before it was forcibly derailed in Western Australia. The approximately 1.9-mile-long train loaded with iron ore was operated by a lone crew member who had left the locomotive to inspect an issue with the brakes when the train began moving.
And finally, an oil train with a single-person crew in Lac-Megantic, Quebec, Canada, rolled into the center of the town July 6, 2013, after its brakes disengaged. The resulting derailment touched off an inferno that killed 47 people and destroyed the town center.
In the United States, labor unions and others concerned with safety on the United States’ 140,000 miles of rail are seeking to prevent such events from happening. Legislation setting crew size at two people aboard has passed in five states. A two-person crew bill backed by both the SMART TD and BLET unions (H.B. 1034) was signed into law March 21 by Colorado Gov. Jared Polis.
“Automation of cars, buses, aircraft and trucks are being addressed by legislation and in regulation by the federal government and many states. It’s time the federal government provided some oversight on railroads,” SMART TD National Legislative Director John Risch said. “Congressman Young’s bill is a first step, and we thank him for his leadership on this. The safety of the public and our members depend on this.”
“Safety is non-negotiable, and this legislation is about railroad safety,” BLET Vice President and National Legislative Representative John Tolman said. “The members of the BLET and SMART TD are highly trained professionals who have dedicated their lives to performing their jobs as safely as possible, and we thank Congressman Young for his ongoing support and for introducing H.R. 1748.”
This national legislation introduced by Young, a longtime advocate of railroad safety, is a common-sense step toward making our nation’s rails safer for workers and the public alike. It has the full endorsement of both unions.
H.R. 1748 has been referred to the House Subcommittee on Railroads, Pipelines and Hazardous Materials.
### 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 different crafts, including as bus and commuter rail operators, in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 57,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
Colorado Gov. Jared Polis signs H.B. 1034 on March 21, a law making two-person freight crews required on the state’s rails.
On March 21, 2019, Colorado Gov. Jared Polis signed legislation into law that requires that all freight trains in the state are operated by a crew of at least two individuals.
The signing of H.B. 1034 caps a massive effort by SMART Transportation Division members that spanned years in the face of carrier opposition.
“It was a long haul and took a lot of time and energy on the part of many, many people,” Colorado State Legislative Director Carl Smith said. “Our concerted efforts did pay off, and it will ensure that the state’s railways stay safe with two crew members in each freight train’s cab.”
Smith and the Colorado State Legislative Board had an earlier two-person crew bill die in the state Senate in 2016, but tenaciously renewed their efforts early this year by gathering a broad group of supporters that included members from the six TD locals in the state, retirees, the Colorado AFL-CIO, Colorado Professional Firefighters, Conservation Colorado and American Federation of Teachers.
H.B. 1034 was first introduced by state Reps. Tom Sullivan and Daneya Esgar on Jan. 4, passed committee and was initially passed, 39-23, on Feb. 5 by the full House. State Sen. Jessie Danielson was the bill’s prime sponsor in the Senate, where it passed, 19-15, on Feb. 25 after amendment. The House passed the amended bill again March 4 by an identical 39-23 vote, putting the bill on Polis’ desk.
“Without these legislators’ understanding of the importance of this issue to the safety of our state’s railways, this would not have been possible,” Smith said.
Also helping the cause was strong public recognition by Colorado residents and legislators that train crew size is a safety-oriented issue.
On Jan. 9, the Colorado State Legislative Board released the results of a survey that showed strong support among Coloradans for a law requiring two-person crews. The survey, conducted Jan. 2 – Jan. 5, asked 550 random Colorado residents older than 18, using both cell phones and landlines, about issues centered around railroad safety. The results showed that 77 percent of Coloradans said that, given the chance, they would vote in favor of a two-person crew law.
A website (www.corailsafe.com) established by the state legislative board and a coalition of TD members and members of other unions also assisted in spreading understanding about the importance of the two-person legislation in Colorado, which joins Arizona, California, West Virginia and Wisconsin as states that have legislation requiring two people to operate freight trains.
“I am very pleased that Colorado has adopted this sensible requirement,” SMART Transportation Division National Legislative Director John Risch said. ”This is a matter of public safety, plain and simple. Freight railroad operations are complex and often entail the transport of highly hazardous materials; two crew members are vital to ensuring that these trains are operated safely and that our communities are secure.”
The Washington State Legislative Board had some good news to report this week about its effort to get two-person crew legislation passed in the state.
“For six consecutive years, we have doggedly pursued passage of this critical public safety bill. Today, for the first time we advanced train crew size legislation to the floor of the full House for a vote,” Washington State Legislative Director Herb Krohn reported. “House Speaker Frank Chopp personally presided over the chamber for this historic vote.”
The bill, H.B. 1841, passed, 72-24 (with two excused absent members), on March 13, marking the first time the Washington House of Representatives has OK’d final passage of train crew size legislation, Krohn said.
The passage marks the halfway point of efforts to get the legislation passed in Washington state. It next needs passage in the state’s Senate before heading to the governor’s desk.
“This year, the carriers have waged the most aggressive campaign ever against all of our rail safety bills,” Krohn said. “We can expect they will turn the heat up even higher and expend even greater resources in opposition as the bill is considered by the state Senate.
“It will continue to require dogged persistence along with considerable efforts on our part to overcome the organized business coalition the railroad carriers have strung together in their quest to block us from moving crewing legislation across the finish line into state law.”
Georgia State Legislative Director Matt Campbell reports that his two-person crew bill (H.B.190) has been held up by a subcommittee and that the efforts of members are needed to get the bill to a vote.
“The safety of railroad operations affect all Georgians; especially, those who live, work, or learn near a railroad line,” Campbell said. “Our state should not gamble with public safety, the stakes are too high.”
Survey results released by SMART Transportation Division’s Nevada State Legislative Board today show that voters in the state overwhelmingly side with the passage of regulations that require freight trains to be operated by crews consisting of a minimum of two people.
After being asked questions and given information on railroad safety, a staggering 89 percent of respondents to a phone survey, conducted Jan. 28 to 31, 2019, said they would vote for a two-person rail crew law in the interest of keeping their communities safe.
Just 13 percent of survey respondents had known that just two people serve on freight train crews, while 57 percent thought that three or more people operate a train.
A second crewmember on the train allows for better monitoring of traffic at rail grade crossings, investigates incidents such as grade crossing collisions or derailments when they occur and can communicate or supervise as needed with the engineer to avoid mistakes during the train’s operation, including when the train is secured (tied down).
The catastrophic Lac-Mégantic disaster in 2013 devastated a town in Quebec, Canada, and occurred when a lone crewmember left his train unattended. The oil-carrying train then rolled into the town with no one aboard, and the resulting blast and inferno leveled a portion of the town center and killed dozens of people.
“A second crewmember could have made all the difference in that tragedy,” said Jason Doering, director of the SMART TD Nevada State Legislative Board.
When asked in the survey, Nevada residents agreed:
“Nearly nine of 10 respondents to this poll came out with the understanding of the safety benefits of having more than one person operating a freight train. Safety is a top priority for them, and they want it made law. Requiring all trains in the state to be operated by a crew of at least two people, no exceptions, makes perfect sense, despite what industry interest groups say,” Doering said. “When the duties of each crewmember were spelled out, poll respondents recognized that running a freight train with a single crewmember was a safety risk they would not want to see taken, even with future enhancements in rail technology.”
Nearly 75 percent said that they did not trust advanced technology to serve as a replacement for a crewmember. More than eight of 10 (81 percent) of those surveyed expressed at least some concern of a single-person crew train derailing in their community, and more than half (51 percent) said they were “very” worried that a freight train with one crewmember would derail. Just 19 percent of respondents thought the replacement of a crewmember with advanced technologies would be sensible.
“Those surveyed did not want the safety of where they live left to chance,” Doering said. “They want more than one person on the trains that roll through our communities, carrying goods and hazardous materials through our state at all hours. There is absolutely no question in their minds that two-person crews are safer for all — workers and community members.”
Respondents expressed favorable views of passenger rail, with 55 percent in support of the creation of a high-speed rail line linking Las Vegas and southern California and 61 percent saying that Amtrak should increase available passenger rail service in the state.
The poll, taken by DFM Research of St. Paul, Minnesota, was of 500 random Nevada residents using both cell phones and landlines. The total margin of error of this poll is ±4.4 percentage points with a 95 percent confidence.
BOSTON – 7 News Boston reported that the Massachusetts state legislature recently mandated that all duck boats must be operated by two-person crews. The measure came in response to a growing number of duck boat-related injuries and fatalities. Read the complete story here.
Two-person crews on duck boats makes sense – and common sense also dictates that for safety’s sake, all freight and commuter trains should also be operated by two-person crews.
Click here to voice your support of HR 233 – The Safe Freight Act, that mandates two-person crews on all freight trains in the U.S.
ANNAPOLIS, Md. – On March 17, the Maryland House of Representatives voted in favor of HB 381, a measure that would require at least two crew members on all freight trains operating in the state of Maryland. The bi-partisan bill has moved to the Senate finance committee.
In light of the deadly NJT September 29th transit crash in Hoboken, NJ, that killed one person and injured more than 100, U.S. Senator Cory Booker, the top-ranking Democrat on the U.S. Senate subcommittee that oversees passenger rail safety, and U.S. Senator Bob Menendez, the top-ranking Democrat on the U.S. Senate mass transit subcommittee, submitted a letter to U.S. Department of Transportation (DOT) Secretary Anthony Foxx , calling for DOT to investigate the long list of safety violations, accidents and apparent systemic failures that have plagued the NJT in recent years. The NTSB is currently investigation the crash. Read the complete article posted in NJ.com, here.