Rose to DOT: We'll sue and win

Posted by Fred Frailey
on Monday, November 14, 2016

The executive chairman of BNSF Railway has a message for Transportation Secretary Anthony Foxx and whoever replaces him next January in the new Donald Trump Administration. His message: If the Department of Transportation’s Federal Railroad Administration pushes through a rule requiring two people on moving trains, then his railroad will sue to invalidate the rule—and prevail in court.

In a conversation with Trains Magazine today, Matt Rose says the railroad industry is in an untenable position, regulated by a government that is funding the development of autonomous (driverless) trucks with one hand while with the other trying to mandate two-person crews aboard trains.

“The drafts we’ve seen on the rule don’t meet the giggle test of cost-benefit analysis,” says Rose. Indeed, FRA in public statements has said it cannot offer statistical proof that having one person in a locomotive is more dangerous than two. The agency is paying Duke University to come up with just such justification.

“We’ll work with the current White House to show that the cost-benefit analysis won’t work,” says Rose. “And if the rule goes through anyway, we have the right to sue. And we will win.”

Challenges to regulatory rulings are heard by the U.S. Circuit Court of Appeals for the District of Columbia Circuit.

What Rose really wants is the freedom for BNSF to negotiate the issue of crew size with its unions without the government standing in the way. Three years ago BNSF negotiated just such an agreement with SMART, the union representing its conductors. It provided for conductors to work from a vehicle and assist by road all trains in a designated territory. That agreement was voted down, and no railroad has publicly raised the issue with its unions since.

But behind the scenes, there is more going on. It’s safe to say that Rose’s fellow rail executives share his concern about the debut (Rose thinks within five years) of driverless trucks. If that technology is widely adopted, it could mean a massive loss of both railroad traffic and jobs—that is, unless railroads reduce their own costs by adopting new practices made possible by such technology as positive train control, which is designed to prevent collisions.

“We’ve had more conversations with our labor leaders” since the contract was shot down, Rose says. “There is a change in attitude happening. Our employees see what’s happening with trucks. They see what happened to our coal business, too.”

Both CSX and Norfolk Southern have let it be known within the industry that their goal is a crew size of zero. Asked about this, Rose says he’d be happy with a single person aboard his trains.

Almost the stuff of science fiction a few years ago, autonomous trucks—either driverless or platooned closely together with one lead driver controlling trucks that follow—have become the stuff of nightmares to railroaders whose business it is to keep their companies competitive with highway competition. And the closer such trucks come to appearing in numbers, the closer the railroad industry comes to having to decide whether to fight. . . . or contract. Today, Matt Rose served notice that he’s in fight mode.—Fred W. Frailey

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