States’ Mistakes Are No Justification for Federal Regulation

President Biden’s nominee to run the Federal Railroad Administration, Amit Bose, is the subject of a confirmation hearing this week in the Senate Committee on Commerce, Science, and Transportation. Bose recently spoke to the committee about the direction he has in mind for the FRA. One question related to train crew sizes. This years-long debate, while seemingly only applicable to the railroad industry, encapsulates a question that will probably come up repeatedly in the Biden administration: Will the president press regulators to implement smart, 21^st century regulatory approaches, or will it be business as usual in Washington?

Back in 2016, the FRA proposed a regulation that would have required all trains to operate with at least two people in the locomotive cab at all times, which its experts argued was necessary to ensure safety. After several commenters pointed out that there was no actual evidence that one-person crews were any less safe, the FRA retracted its proposal and admitted that despite studying the issue in depth, it could not provide reliable or conclusive enough data.

Nonetheless, the FRA is apparently resurrecting the rule. Senator Cynthia Lummis (R-Wyo.) raised the issue during the hearing, asking Mr. Bose — currently FRA’s deputy administrator — whether there is new evidence or data that would now justify the rulemaking. Instead of directly answering, Bose trotted out an alternative justification: that some states were proceeding with their own requirements, and that meant a federal standard needed to be created to avoid a “patchwork of laws.”

That’s a weak justification for any regulation, much less one that couldn’t stand on its own merits just a few years ago. Even if we allow for the idea that some federal standards make sense when state standards are causing demonstrable public harm, that doesn’t diminish the importance of smarter regulatory design.

Many states have unique laws regarding family matters (such as marriage, divorce and custody), labor practices (such as minimum wage and age requirements), and vehicle speed limits. Do multiple minimum wages across states and cities justify a uniform, federal minimum wage to replace them? Some say yes, but even the most ardent advocates might balk if a nationwide standard were set so prohibitively high that most jobs simply disappeared or became under-the-counter arrangements.

Policy and regulatory design matters. If the FRA decides that variation across the states is undesirable, replacing those state-level requirements with a poorly designed federal requirement begs one to question its motives in the first place. It’s clearly not about new evidence or safety data — if that were the case, Mr. Bose surely would have mentioned it when asked by Sen. Lummis.

And make no mistake, the 2016 proposal was poorly designed, as I wrote at the time. Perhaps we should simply ask: What would a better-designed standard look like?

For one, it would be accommodating to new technology. Regulations that incorporate specific design standards are notorious for locking in those designs, even if the designs become obsolete. The FRA knows this. Over the past decade, it has amended some of its own design standards with alternative performance requirements that, in its own words, would “allow industry greater flexibility to use contemporary design techniques and more fully apply emerging technology.”

For example, the FRA created alternative crashworthiness performance standards that it hoped would allow more modern passenger trains (like the high-speed trains that you see in Europe and much of Asia) to be deployed in the United States. Crashworthiness regulations are supposed to increase the likelihood of survival in accidents. The FRA’s old crashworthiness standards were very specific, requiring steel columns and plates, thick (and heavy) windows, and other design features that may have improved passenger safety, but limited the possibility of using modern, high-speed trains for passenger rail.

A modern approach would describe the crashworthiness performance that a train must achieve, and allow the manufacturer to decide how best to achieve that performance. This is how sensible, unbiased regulations work, and the FRA realized this when it updated its crashworthiness standards a few years ago to include alternative performance standards.

Passenger protection might, for example, be achieved by incorporating crush zones in unoccupied areas of train cars, thereby limiting the “decelerations that occupants experience” in the event of a crash. In other words, when a train suddenly stops because it has hit something, passengers will continue to move forward until something stops them (usually, the seat in front of them). The speed with which they hit the object is called secondary-impact velocity, and the greater it is, the lower the odds of survival.

But there are many possible approaches to limiting secondary-impact velocity, like rear-facing passenger seats. The important takeaway is that a performance standard allows innovation to occur, now and in the future.

A minimum crew size is, at best, a continuation of the “traditional approach” to regulating — part of the “command and control” school of thought in which regulators specify exactly how businesses are supposed to comply with regulations. But isn’t it reasonable to assume that at some point in the near future, trains will be capable of operating more safely on “autopilot” than with human operators? Requiring that humans be part of the equation will eventually be a safety limitation, not a safety enhancement.

Consider human error in other modes of transportation. The introduction of autopilot led to a 90 percent reduction in the pilot-attributable crash rate, according to one report. Automobile safety likewise improved because of the intelligent-driver technology introduced in recent years, such as lane-departure warnings, pedestrian detection and automatic emergency braking. Completely autonomous cars offer even more promise, primarily by reducing human error — which, according to the U.S. Department of Transportation, accounts for 94 percent of crashes.

If the FRA is determined to move forward regardless of the evidence, they should include alternative performance standards. Why not design a suite of tests allowing a railroad to demonstrate the safety efficacy of computer-enhanced or automated systems? A railroad lacking that capability could simply comply with the larger crew provision. It’s similar to what the FRA did for crashworthiness standards for passenger trains, where manufacturers have two options: pass the performance tests or follow the old design standards.

If the minimum crew size rule is about safety, then it should accommodate better, safety-enhancing technologies such as automation. There are proven ways to allow for this. That is, if the rule is about safety.

Patrick McLaughlin is a the director of policy analytics with the Mercatus Center at George Mason University and a former senior economist with the Federal Railroad Administration (FRA).