Attorney General denies KDOT’s proposed regulation on mandatory minimum crew size for railroads

Attorney General denies KDOT’s proposed regulation on mandatory minimum crew size for railroads

The Kansas Department of Transportation (KDOT) had recently proposed a new regulation (KAR 36-43-1) requiring mandatory minimum crew sizes for rail transport. KDOT had submitted this proposed regulation to the Kansas Attorney General’s office for their required review.

Currently, most short line rail transport in Kansas do not utilize two crewman in the lead engine at all times. However, short line railroads do utilize a second person on the ground during switching and at crossings – where any accidents are most likely to occur. Adding a second full-time crewman to each of the short line engines would have greatly increased labor costs involved in short line grain shipments.

As much of the grain shipped in Kansas is initially moved by truck or short line rail, this unnecessary regulation would have resulted in a substantial increase in the cost of grain transport for many Kansas Grain and Feed Association (KGFA) members. Additionally, the regulation would have likely pushed hundreds of additional grain trucks back onto the state highway system, which would have negatively affected local cash basis for ag producers.

For these reasons, KGFA submitted a comment in opposition to the proposed regulation to the office of Attorney General Derek Schmidt. KGFA argued that the proposed regulation was unlawful, as the subject matter was preempted by federal law. KGFA also argued that the proposed regulation was unnecessary, and would directly harm the Kansas ag industry and the state highway system. KGFA submitted similar comments to KDOT, the Kansas Department of Agriculture, and Governor Laura Kelly’s office.

This week, the Attorney General’s office officially released its opinion on the proposed regulation. The opinion letter denies adoption of the proposed regulation, stating that the subject matter is preempted by federal law through the Interstate Commerce Commission Termination Act (ICCTA), 49 USC 10101, et seq. “We are pleased the Attorney General’s office agreed with and adopted the preemption arguments presented by KGFA and other stakeholders,” KGFA President and CEO Ron Seeber said. “This is a positive outcome for our membership, who would have likely seen increased shipping rates to offset railroad costs for additional crew members.”



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