Passenger Rail Update

Introduction

Recent developments have put labor issues front and center for passenger railroads this past summer. First, the Federal Railroad Administration’s (“FRA”) proposed rule regarding train crew size safety imposes two-person crews for passenger operations, with limited exceptions. Second, federal intervention has not stopped ongoing contract disputes between most major railroads and the labor unions representing their employees, which continue to risk impacting passenger railroads that share tracks with freight operations or that are directly involved in the union disputes.

FRA’s Proposed Rule on Train Crew Size Safety Requirements

As covered from the perspective of carriage of hazardous materials in the ATLP Blog’s recent posting, on July 28, 2022, FRA issued a notice of proposed rulemaking to impose a minimum two-person crew size for most kinds of rail operations. 87 Fed. Reg. 45,564 (July 28, 2022) These requirements apply to passenger and freight rail operations, with certain exceptions. The purpose of the rule is to promoted safety and replace the current “patchwork” of state laws with a single federal standard. Previously, the FRA had limited regulatory requirements for crew staffing levels on passenger trains through review of emergency preparedness plans under 49 C.F.R. part 239.

The proposed rule proposes that covered railroads, including passenger railroads, staff every train operation with a minimum of two crewmembers, including a locomotive engineer and an additional crewmember. Covered passenger train service is broadly defined by reference to 49 C.F.R. § 239.7, which includes transportation of persons (other than employees, contractors, or persons riding equipment to observe or monitor railroad operations) by railroad in intercity passenger service or commuter or other short-haul passenger service in a metropolitan or suburban area. The proposed rule requires the second crewmember on a passenger train, even if not conductor-qualified, to have functions connected with the movement of the train and be called to perform service subject to the Federal hours of service requirements during a tour of duty. The proposed rule also prescribes the minimum requirements for the location of crewmembers on a moving train and requirements to ensure that the locomotive engineer can directly communicate with other crewmembers.

The proposed rule (proposed section 218.127) provides for four exceptions for passenger (and tourist) train operations to the two-crewmember requirement:

  1. For tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation.
  2. For passenger or tourist operations in which cars are empty of passenger and are being moved (unless other circumstances, such as switches that need to be thrown or other safety-related tasks require more than one crewmember).
  3. For passenger or tourist operations where the locomotive engineer has direct access to the passenger seating compartment.
  4. For rapid transit operations in an urban area, i.e., an urban rapid transit system that is connected with the general railroad system of transportation where (1) the operation is temporally separated from any conventional railroad operations; (2) there is an FTA-approved designated State Safety Oversight (SSO) Agency that is qualified to provide safety oversight; and (3) the operator has an FTA/SSO-approved Public Transportation Agency Safety Plan in accordance with parts 673 and 674 of Title 49 of the United State Code.

The proposed rule also provides for passenger operators currently operating with one-person crewmembers to be able to file for exemption from the proposed rule. Passenger railroads may  seek exception from the proposed rule where it provides an approved passenger train emergency preparedness plan under 49 C.F.R. part 239 for the operation, or it obtains an approved waiver from the passenger train emergency preparedness plan requirements as permitted under 49 C.F.R. part 211. The FRA notes that it expects to approve the continuation of legacy operations with a one-person train crew if the railroad in question provides a thorough description of that operation, has sufficiently assessed the risks associated with the operation, and has taken appropriate measures to mitigate or address any risks or safety hazards associated with the operation.

The proposed rule provides for application for special approval in certain cases where an adequate case can be made to the FRA that a less than two-person crew would not pose any heightened safety risks.  A railroad must perform a risk assessment and hazard analysis that the FRA deems acceptable in order to operate with less than two crew members.  This special approval would only be granted by the FRA after careful analysis. Proposed passenger train operations with fewer than two crewmember would still need to comply with or seek a waiver from FRA's passenger train emergency preparedness requirements in 49 CFR part 239.

FRA views this rule as a compliment to previous rules relating to railroad safety risk reduction and fatigue risk management. 

Comments on the proposed rule can be submitted to the docket FRA-2021-0032 via www.regulations.gov and must be received by September 26, 2022.

Freight Labor Issues Have Potential to Impact Passenger Rail

Resolution of contract negotiations between many of the country’s freight railroads and the unions representing their employees remains up in the air even after federal intervention this summer, meaning that the risk of impacts to passenger railroads involved in the dispute or sharing lines with freight railroads remains real.

Earlier this summer, railroad workers at all major freight railroads and many smaller ones, who have been without a new contract for nearly three years, began balloting to approve strike action. In order to avoid the threat of strikes interrupting interstate rail transportation, on July 18, 2022, President Biden signed an executive order establishing a Presidential Emergency Board (“PEB”) pursuant to the Railway Labor Act (“RLA”) to impose a 30-day “cooling off” period preventing any “change in the condition out of which the disputes arose.” The Executive Order required the PEB to issue a report within 30 days of its creation with non-binding recommendations for settlement.

On August 16, 2022, after accepting public comments, the appointed PEB issued a 124-page report recommending, amongst other things, a 22% increase in worker wages over five years, a compromise between the railroads’ and unions’ proposals. For 30 days after the Board has submitted its report to the President, no change in the conditions out of which the disputes arose can be made by the parties, except by agreement of the parties. This 30-day period will expire on September 15th, although the parties could agree to additional cooling-off periods if they believe they are warranted. If the parties cannot come to an agreement, it may lead to a national rail strike of 115,000 workers this fall.

As indicated in the letter to the PEB by the American Public Transportation Association (“APTA”), disruptions to the freight rail system from labor strife would have serious negative impacts on the nation’s commuter rail network. Commuter railroads alone operate on more than 3,000 miles of freight railroad track. They often rely upon freight railroad workers to enable passenger railroads to operate safely, such as through dispatchers who cover both freight and passenger service on the same line. Therefore, APTA maintains that “[a]ny shutdown of the freight railroad system would have severe repercussions to U.S. commuter and intercity passenger rail networks.”

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