A federal appeals court has upheld the Federal Railroad Administration's two-person crew requirement, keeping the 2024 rule in force for U.S. railroads and rejecting industry arguments that the rule was arbitrary, capricious, and a case of regulatory overreach. According to FreightWaves, the U.S. Court of Appeals for the 11th Circuit issued a 93-page, 2-1 decision on Tuesday, turning down the challenge brought by the Association of American Railroads (AAR), the American Short Line and Regional Railroad Association (ASLRRA), and six railroads.
The court wrote that "none of the railroads' arguments have merit," FreightWaves reported. The International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART-TD), which was granted status to participate in the case, called the ruling "a major victory for railroad safety."
Decision denies seven industry arguments
The 11th Circuit organized the challenges into two groups of arguments. One set, from the AAR, BNSF Railway, Union Pacific, Florida East Coast Railway, and the Indiana Rail Road, raised five separate objections. The other, from the ASLRRA, Texas & Northern Railway, and Nebraska Central Railroad, raised two other issues. Judge Robin Rosenbaum authored the decision, with Judge Embry Kidd concurring; all seven arguments were turned down.
| Petitioner group | Railroads | Issues raised | Outcome |
|---|---|---|---|
| AAR petitioners | AAR, BNSF, Union Pacific, Florida East Coast Railway, Indiana Rail Road | 5 | Rejected |
| ASLRRA petitioners | ASLRRA, Texas & Northern Railway, Nebraska Central Railroad | 2 | Rejected |
Why the court rejected the AAR's five arguments
FreightWaves detailed the court's reasoning on each AAR objection:
- "As necessary" authority. The AAR argued the statute authorizing the FRA to make rules "as necessary" requires an action to be "essential" to safety. The court found the rule fell within the FRA's general rulemaking authority, and that the "as necessary" language implies discretion to act.
- Reversal of a 2019 decision. The AAR contended the rule was arbitrary and capricious because it reversed a 2019 decision that evidence did not support a two-person crew rule, and because it did not address a National Transportation Safety Board (NTSB) recommendation that would have gathered more data. Noting that the 2019 decision withdrawing a two-person rule was struck down by a lower court, the decision says the court does not see "how a judicially invalidated action leaves anything that constitutes agency policy." It also said the AAR misread the NTSB recommendation, since the safety agency "never urged the FRA to refrain from regulating crew size without first collecting more accident data."
- Cost considerations. The AAR argued the rule did not fully consider the costs in terms of savings lost by not allowing one-person operation, and pointed to a higher cost estimate for an earlier 2016 version of the rule than for the 2024 rule. The court found that the new rule allows one-person crews through a special approval process, and so "it's no surprise if that difference shows up as a lower cost estimate."
- Conflict with the Rail Safety Improvement Act of 2008. The AAR argued the rule conflicts with the "risk reduction program" created by that law. The court described the program as broad in addressing aspects of a railroad that impact safety, and wrote: "Nothing in this statute poses an impediment to the Crew Size Rule."
- Delay in finalizing the rule. The AAR group asked that the rule be vacated because the FRA took more than a year to finalize it, citing a congressional directive that rules be disposed of "not … more than 12 months after the date it begins." The court cited two decisions by the D.C. Circuit that declined to vacate FRA rules for the same reason.
Industry reaction
SMART General President Michael Coleman said the court's decision reinforces what SMART-TD members and rail workers already know: having two qualified workers on a train crew is just common sense. It's about safety, security and the well-being of workers and communities nationwide.
The AAR and ASLRRA said they are reviewing the decision and considering their options, according to FreightWaves. The Brotherhood of Locomotive Engineers and Trainmen indicated in a message to Trains that it would have a reaction later today. BNSF (NYSE: BRK-B) and Union Pacific (NYSE: UNP) deferred to the AAR for comment. Trains has also asked the FRA for a comment.
Watch list
- The AAR and ASLRRA are reviewing the decision and considering their options.
- The Brotherhood of Locomotive Engineers and Trainmen has indicated it would have a reaction later today.
- The FRA has not yet responded to Trains' request for comment.
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