This month, the Federal Railroad Administration (FRA) issued a long-awaited final rule on crew sizes. A similar rule had been proposed a decade before, withdrawn by the agency, and then put forth again under a new administration. Aii has followed the developments closely and written analyses over the years.
In issuing its final rule, the FRA responded to Aii analysis in the report The Safety Impact of Technology and Crew Size: An analysis of accident data, incorporation of technology, and train crew staff levels on rail safety trends. The response engages with only one minor aspect from the report, but does not engage with our major findings or conclusions.
We appreciate the work of the FRA and the diligence to read our report along with the numerous comments submitted throughout the rulemaking process. However, it is clear the reading led to a false understanding that ends up misrepresenting our work in the final rule.
In full, FRA mentions Aii and our work in a section defending the agency’s rule on grounds that a mandatory crew size does have a mitigating effect on accident severity.
Similarly, the Alliance for Innovation and Infrastructure (AII) commented on the NPRM that a second crewmember has the potential to reduce damage only based on “a host of assumptions that cannot be proven” and that, “hypothetical[ly], it is equally likely that all crewmembers die or are incapacitated, that the crew members are impacted by the bystander effect and do little or no mitigating activity, or that the main mitigation [is] by non-rail personnel.”239 FRA disagrees with AII’s comment because the comment fails to acknowledge that FRA’s central approach, i.e., for each railroad to conduct a risk assessment, would produce an objective risk-based analysis that addresses such questions. This final rule will impose reasonable restrictions, collect data, and address the unique complexities of U.S. railroad operations through a review process.
If data or analysis later suggests FRA should consider a different approach, any person could petition FRA for a new rulemaking, or FRA could initiate one.
Quoting our report once more, FRA includes in footnote 239:
FRA-2021-0032-12313 at 35. Although AII clearly opposed the NPRM, its analysis seemed conflicted when it concluded that “[f]or [accident] mitigation, that [a] conductor being anywhere on the train would theoretically help reduce damage.” Id. at 32
While we stand by the full report and quoted line in the main body of the rule despite FRA’s disagreement, it is the quote found in the footnote that reveals FRA misunderstands our analysis.
The statement is indeed found in our report, but it is not conclusory. In fact, it is found before the relevant analysis in that section of the report. The effect of this footnote is FRA assuming we support their theory precisely because we are evaluating their theory. They essentially end up quoting themselves.
The quoted line functions as a hypothesis. In setting up the analysis, the report uses it as a statement to check against data, this is indicated by its placement in the section, the tone and approach throughout the report, and the use of the word “theoretically.” The use of “anywhere on the train” is in response to FRA-supporting qualitative data for in-locomotive crew and enables our analysis to be much broader to capture the impact of additional personnel regardless of location in mitigating incidents. Reading two paragraphs later, the conclusions reject the hypothesis:
“From this analysis, we can see that having a conductor on duty did not mitigate damage costs.”
Another three paragraphs into the report and another conclusion states: “This analysis shows that at best, there is no correlation between conductors on duty and mitigation of accidents. The results further undermine the case presented by the FRA and emphasize the need for further data collection and statistical analysis.” In fact, this section of the report is replete with similar conclusory statements: “For the mitigation theory to hold, we would expect to find that the proportion of crew is inversely related to accident severity…In fact, we see the opposite…” and “More personnel do not appear from this data to support the theory of accident mitigation.” The report makes clear that these statements apply to personnel “anywhere on the train.”
The report expands on the mitigation topic with four pages of data analysis. Then once more, the report restates its conclusion on this matter in a summary fashion:
“Before assessing the most cited case of mitigation, it is worth noting four points: first, mitigation is a theory postulated without data, second, the available data does not seem to bolster it, third, the argument relies on a counterfactual, and fourth, the theory contradicts safety training.”
Counter to the FRA footnote, the report is not conflicted, but consistent and resolved that the data does not support the theory put forward by the administration. While it is unfortunate that the administration proceeded with a rule that our analysis showed was not supported by data, it is also unfortunate that the FRA misunderstood our analysis and did not accept the plain findings of the report.
To read the full report, click here.
To read a summary blog of the report’s findings, click here.
Written by Benjamin Dierker, Executive Director
The Alliance for Innovation and Infrastructure (Aii) is an independent, national research and educational organization. An innovative think tank, Aii explores the intersection of economics, law, and public policy in the areas of climate, damage prevention, energy, infrastructure, innovation, technology, and transportation.