Today, the Federal Railroad Administration (FRA) released a draft notice indicating that it will be withdrawing a 2016 proposed rule that would have required trains to have at least two crewmembers onboard at all times during operation. We noted at the time that even FRA conceded it possessed no data to support this rule. It was obvious this was a giveaway to railroad labor unions, who fear that future automation will make their members’ jobs redundant. Unions have a long history in the railroad industry of creating and protecting “featherbedding” jobs—make-work jobs—such as by requiring that diesel engine trains employ workers to shovel nonexistent coal into nonexistent boilers.
Importantly, FRA’s notice will preempt states on this matter. Since the rulemaking stalled a few years ago, railroad unions have been lobbying state legislators to do what the federal government wouldn’t and mandate two-person crew minimums. This last legislative session, dozens of states saw crew-size legislation introduced. We noted in February to the Maryland Senate Finance Committee that state action is both unnecessary and that it will likely invite federal action to preempt any state featherbedding rules. Fortunately, we were correct.
FRA argues that its rejection of a crew-size minimum and withdrawal of the proposed rule constitutes “negative” or “implicit” preemption, noting, “The [U.S. Supreme] Court recognized that ‘where failure of. . .federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute,’ any state law enacting such a regulation is preempted.”
As we noted in March, 49 U.S.C. § 20106(a) is clear that FRA has broad authority to set national, uniform railroad safety policy and that states have a high burden to meet to enact more stringent or divergent state regulations, where they must show the state regulation 1) is necessary to mitigate a local safety hazard, 2) is not incompatible with federal laws or regulations, and 3) does not unreasonably burden interstate commerce.
Even in the absence of FRA’s withdrawal and negative preemption, courts were likely to rule that state minimum crew-size laws at the very least unreasonably burden interstate commerce. But such court decisions would have taken years and the litigation would have cost a fortune. Kudos to FRA for adhering to sound legal principles and evidence-based policy making. This withdrawal and preemption of state crew-size laws will allow the railroad industry to continue innovating, ultimately benefiting shippers and consumers through lower costs and higher quality of service.