FRA Proposes Rule Requiring At Least Two Crew Members for Trains Carrying Hazardous Materials

On July 28, 2022, the U.S. Department of Transportation’s Federal Railroad Administration (FRA) published a Notice of Proposed Rulemaking to establish minimum train crew sizes and other requirements related to train crew staffing (87 Fed. Reg. 45564).  The Proposed Rule would require a minimum of two crewmembers on most trains traveling on the interstate rail network.  It would, however, provide ten categorical exceptions for circumstances in which the FRA has deemed one-person crew operations to pose a low risk to railroad employees, the public, and the environment.  The Proposed Rule would also allow railroads to seek approvals for legacy one-person crew operations on a case-by-case basis.

The Proposed Rule would require, without exception, two crewmembers for many trains carrying hazardous materials.  Proposed 49 C.F.R. § 218.123(c) would provide that “without exception, two crewmembers are always required when a train contains certain quantities and types of hazardous materials that have been determined to pose the highest risk for transportation from both a safety and security perspective.”  The Proposed Rule indicates that the types and quantities of the hazardous materials identified in proposed § 218.123(c) are those that the FRA, the Pipeline and Hazardous Materials Safety Administration, and the Transportation Security Administration “have previously determined present heightened safety and security risks in rail transportation.”

The Notice of Proposed Rulemaking and concurrent press release by DOT emphasize that the proposal would enhance safety of rail workers and passengers, and improve the efficiency of rail operations by replacing the current patchwork of state requirements with a uniform national standard for train crew staffing.  The Notice references the 2013 Lac Megantic disaster as evidence of the dangers of one-person crews.  The FRA characterizes the proposed rule as complementary to other regulatory efforts it is undertaking to improve safety, such as requiring safety risk reduction and fatigue risk management programs.

The Association of American Railroads, the American Short Line and Regional Railroad Association, and various shipper groups have publicly asserted that regulatory efforts to require a minimum of two-person crews lack a safety justification.  Certainly, the Proposed Rule comes at a time when U.S. freight operations are already hamstrung by labor shortages and COVID-19 complications.  At the same time, consumers of chemicals, energy products, and other hazardous materials are facing higher prices related to supply chain disruptions and global inflation.  Opponents of the Proposed Rule further argue that it would result in more goods being transported by truck, leading to increased carbon emissions compared to rail transport.    

Comments on the Proposed Rule are due by September 26, 2022, and can be submitted to the docket, FRA-2021-0032, at www.regulations.gov.

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