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Comments to the Federal Railroad Administration Regarding Train Crew Size Safety Requirements

Introduction and Summary

The Federal Railroad Administration (FRA) has promulgated a proposed rule regarding train crew size safety requirements. The Information Technology and Innovation Foundation (ITIF) appreciates this opportunity to comment on this proposed rule.

The proposed rule, while written to suggest that it will enable rail innovation and the operation of less-than-two-person crews, will in fact likely stifle continued rail innovation and limit any expansion of one-person crews and the economic productivity that generates. While the rule is careful to not frame this rule as a ban of less-than-two-person trains, it appears to in fact be an almost de facto ban, with a set of regulatory hurdles that are so opaque and difficult to meet that few if any train operators could pass it.

More fundamentally, the FRA should focus on promoting rail innovation, something many other governments around the world are doing. As such, ITIF recommends that the FRA abandon this rule and, if a rule is needed, it should establish a pilot program whereby freight rail companies could easily adopt one-person crew pilots on tracks with fully operational positive train control technology, with the guidance and assistance from the FRA. Such a program would involve extensive data collection to guide additional crew size reduction efforts.

Moreover, at first glance, the most positive aspect of the proposal regulation—the preemption of state crew size regulations—appears welcome. But on closer examination, it is likely negative as well, as it will prohibit pro-innovation states from allowing one-person or even fully autonomous trains from operating within their borders.

The overarching statement in the notice of proposed rulemaking (NPRM) is emblematic of overall intent and approach: “A minimum requirement of two crewmembers is proposed for all railroad operations, with exceptions proposed for those operations that do not pose significant safety risks to railroad employees, the public, or the environment.” There is no mention of innovation, productivity, or other benefits. In addition, the regulation assumes that, going forward, two crewmembers will always be needed, except on the few routes the FRA deems safe enough to grant approval.

Before discussing the specifics of the NPRM, it is important to note that whenever regulators address a safety issue they are always weighing trade-offs. The federal government could reduce the 43,000 automobile fatalities annually by significantly lowering speed limits, or even resurrecting red flag laws that require all cars to follow behind a person carrying a red flag. Obviously regulators don’t do that because this would significantly reduce consumer welfare and economic output.

As such, the principal question regarding this NPRM is what the appropriate trade-offs are, if any. But any discussion of safety data on one-person crew trains, whether operating in the United States or other nations, is absent—as is data on cost savings and performance improvements of one-person crews. Absent such data, how can the FRA balance costs and benefits?

Moreover, transportation safety is not static. In the future, motor vehicles that have higher levels of autonomy will likely be significantly safer than current vehicles, as most accidents are caused by driver error. In fact, at some point, fully autonomous (e.g., level 5) vehicles could be possible and would likely significantly reduce traffic accidents. Similar autonomy-enabling technologies for rail systems are improving as well. In either case, innovation is key to improvements in safety. However, because the proposed rule dramatically limits innovation by making it extremely difficult to deploy one-person trains, the regulation could actually mean less safety in the future.

Finally, the goal of economic regulation should not be to preserve jobs but to promote the public interest. Preserving jobs, even unionized jobs, that are no longer needed is redundant, the equivalent of the government imposing a tax on all Americans. If regulations keep workers employed when they are not needed, by definition, costs will not go down. If, instead, freight rail could become more efficient, including through the use of technology, rail costs would decline, with consumers and the U.S. economy being the ultimate beneficiaries.

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