[Federal Register Volume 81, Number 50 (Tuesday, March 15, 2016)]
[Proposed Rules]
[Pages 13918-13966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05553]



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Vol. 81

Tuesday,

No. 50

March 15, 2016

Part III





Department of Transportation





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 Federal Railroad Administration





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49 CFR Part 218





Train Crew Staffing; Proposed Rule

  Federal Register / Vol. 81 , No. 50 / Tuesday, March 15, 2016 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

[Docket No. FRA-2014-0033, Notice No. 1]
RIN 2130-AC48


Train Crew Staffing

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations establishing minimum requirements for 
the size of train crew staffs depending on the type of operation. A 
minimum requirement of two crewmembers is proposed for all railroad 
operations, with exceptions proposed for those operations that FRA 
believes do not pose significant safety risks to railroad employees, 
the general public, and the environment by using fewer than two-person 
crews. This proposed rule would also establish minimum requirements for 
the roles and responsibilities of the second train crewmember on a 
moving train, and promote safe and effective teamwork. Additionally, 
FRA co-proposes two different options for situations where a railroad 
wants to continue an existing operation with a one-person train crew or 
start up an operation with less than two crewmembers. Under both co-
proposal options, a railroad that wants to continue an existing 
operation or start a new operation with less than a two-person train 
crew would be required to describe the operation and provide safety-
related information to FRA; however, proposed Option 1 includes an FRA 
review and approval period lasting up to 90 days while Option 2 
proposes permitting such operations to initiate or continue without a 
mandatory FRA review and approval waiting period or while such review 
is taking place. For start-up freight operations with less than two 
crewmembers, proposed Option 2 also requires a statement signed by the 
railroad officer in charge of the operation certifying a safety hazard 
analysis of the operation has been completed and that the operation 
provides an appropriate level of safety.

DATES: (1) Written Comments: Written comments on the proposed rule must 
be received by May 16, 2016. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to April 14, 2016, one will be scheduled and 
FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: You may submit comments identified by the docket number FRA-
2014-0033 by any of the following methods:
     Online: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590 between 
9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (RIN 2130-AC48). Note that all comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the Supplementary Information section of this document for Privacy Act 
information related to any submitted petitions or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
the U.S. Department of Transportation, Docket Operations, M-30, West 
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Joseph D. Riley, Railroad Safety 
Specialist (OP)-Operating Crew Certification, U.S. Department of 
Transportation, Federal Railroad Administration, Mail Stop-25, Room 
W33-412, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-
6318, or Alan H. Nagler, Senior Trial Attorney, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-309, 
1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6038).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Analysis of Two Recent Catastrophic Accidents Raising Crew 
Size Issues
    1. Lac-M[eacute]gantic, Quebec, Canada
    2. Casselton, ND
    B. Research Identifies Crewmember Tasks and the Positive 
Attributes of Teamwork, Raises Concerns With One-Person Crews, 
Especially When Implementing New Technology
    1. Cognitive and Collaborative Demands of Freight Conductor 
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations
    2. Rail Industry Job Analysis: Passenger Conductor
    3. Fatigue Status in the U.S. Railroad Industry
    4. Technology Implications of a Cognitive Task Analysis for 
Locomotive Engineers--Human Factors in Railroad Operations
    5. Using Cognitive Task Analysis To Inform Issues in Human 
Systems Integration in Railroad Operations--Human Factors in 
Railroad Operations
    6. Teamwork in U.S. Railroad Operations
    C. The Acknowledged Limitations of FRA Accident/Incident 
Reporting Data
    D. FRA's Regulations Suggest Safety Hazards Are Created When a 
Train Has Less Than Two Crewmembers
    1. Difficulty Providing Point Protection for Shoving or Pushing 
Movements
    2. Complications Returning Switches to the Normal Position and 
Loss of Job Briefings
    3. Concerns Protecting Train Passengers in an Emergency
    4. Deterrence of Electronic Device Distraction and Observing 
Alcohol or Drug Impairment, Reduced Possibility of Co-Worker 
Referrals
    5. Complicating Radio Communication Procedures
    6. Adding a Potential Safety Hazard to Highway-Rail Grade 
Crossing Activation Failures
    E. Defining the Crewmembers' Qualifications
III. Railroad Safety Advisory Committee (RSAC) Overview
IV. No Recommendation From the RSAC Working Group
V. FRA's Overall Post-RSAC Approach
    A. The Proposal Is Largely Focused on Influencing How Railroads 
Approach Future One-Person Operations
    B. The Proposal Is Complimentary to Other Regulatory 
Initiatives, Not Duplicative
    C. Identifying How the NPRM Differs From FRA's RSAC Suggested 
Recommendations
    D. Electronic Submission and Approval Process
VI. Section-by-Section Analysis

[[Page 13919]]

VII. Regulatory Impact and Notices
    A. Executive Order 12866, Executive Order 13563, and DOT 
Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

 I. Executive Summary

Purpose of the Regulatory Action and Legal Authority

    FRA is concerned that as railroads implement positive train control 
(PTC) and other technologies, they may expand use of less than two-
person crews on operations without considering safety risks or 
implementing risk mitigating actions that FRA believes are necessary. 
Because there are currently few railroad operations that utilize a one-
person crew and FRA has not been specifically tracking the safety of 
those operations through its recordkeeping and reporting requirements, 
FRA cannot provide reliable or conclusive statistical data to suggest 
whether one-person crew operations are generally safer or less safe 
than multiple-person crew operations. FRA does not currently collect 
sufficient data related to the size of a train crew nor do accident 
reports and investigations generally address the size of a crew in 
order for FRA or any entity to definitively compare one-person 
operations to multiple person operations. However, FRA has studies 
showing the benefits of a second crewmember and other information 
detailing the potential safety benefits of multiple-person crews. A 
recent catastrophic accident in Canada occurred in which a one-person 
crew did not properly secure an unattended train and another accident 
occurred in which a multiple-person crew was able to effectively 
respond to an accident and remove cars from danger. In addition, 
qualitative studies show that one-person train operations pose 
increased risks by potentially overloading the sole crewmember with 
tasks, and that PTC does not substitute for all the tasks performed by 
properly trained conductors. Task overload can lead to a loss of 
situational awareness, and potentially to accidents. Moreover, other 
nations require government approval of railroad decisions to use less 
than two-person crews. Further, even if FRA does not have data to prove 
a direct correlation between higher rates of safety and multiple person 
crews, it is true that railroads have achieved a continually improving 
safety record during a period in which the industry largely employed 
two-person train crews.
    Persons in the railroad industry have pointed to countervailing 
effects of a requirement to have more than one crewmember on a train, 
such as additional incidents caused by crew distraction. In addition, 
having a second crew person on board a train may not prevent or 
mitigate an incident but could add to the number of persons killed or 
seriously injured when one occurs. FRA believes such instances are very 
rare, but does not have readily available information for estimating 
such potential countervailing impacts of this proposed rule. FRA 
believes that having a properly trained second crew person on board, or 
implementing risk mitigating actions that FRA believes are necessary to 
address any additional safety risks from using fewer than two-person 
crews, provides net safety benefits relative to using fewer than two-
person crews or not implementing mitigating measures that FRA believes 
are necessary.
    In discussing the future of train operations with officials from 
various railroads, FRA has become aware that some railroads have shown 
a willingness to conduct more operations with only one crewmember. FRA 
has existing authority to take emergency action to prohibit an unsafe 
operation if the agency is aware of it (49 U.S.C. 20104), but FRA often 
lacks information to use this authority to address unsafe one-person 
crews. FRA does not currently have a mechanism to collect detailed 
information about railroad one-person train operations to determine 
railroad safety risk. Furthermore, FRA believes it would be 
inappropriate to wait until an emergency situation arises before it 
takes action against a one-person operation that is not providing an 
appropriate level of safety. FRA believes this proposed rule is 
necessary for FRA to protect railroad employees, the general public, 
and the environment by considering the safety risks of each type of 
operation and prohibiting operations that pose an unacceptable level of 
risk as compared to operations utilizing a two-person crew. This 
rulemaking is also necessary to ensure that the public, through FRA, 
has a voice in the railroad's decision to utilize less than a two-
person crew.
    FRA research demonstrates the effectiveness of properly trained 
teams. It is not the act of adding a second person that makes the train 
safer, but instead it is the act of adding a properly qualified person, 
who understands the roles of all the crewmembers, and who has the 
experience or ability to relieve the locomotive engineer of some of the 
mental strain that can contribute to accidents attributed to human 
factor errors. FRA understands that expert teamwork can be achieved 
through effective coordination, cooperation, and communication. 
However, FRA estimates both options of the proposal would have a small 
impact on teamwork because FRA expects that either co-proposal option 
would result in no more than the labor hour equivalent of two to three 
additional crewmembers nationwide annually relative to what would occur 
with existing operations with less than two crewmembers if the rule 
were not in place and because FRA believes that all railroads with 
multiple-person crews are operating in compliance with the proposal's 
requirements for the roles and responsibilities of a second crewmember. 
FRA expects that under the first co-proposal it would require some 
start-up one-person crew operations (but not existing one-person crew 
operations) to implement risk mitigating measures that FRA believes are 
necessary to address safety risks of using one-person crews in specific 
operating environments. However, FRA expects to require such measures 
in very few circumstances, and estimates a cost range of $5.1 million 
to $27.7 million over 10 years and discounted at 7 percent from 
implementing such measures under either co-proposal option.
    The proposed rulemaking would be expected to grant an exception to 
most existing operations with less than two crewmembers. However, some 
operations would still not be able to meet the requirements of the 
proposed exceptions and those railroads would have to add one person to 
their train crews. FRA estimates that about 10,361 train starts would 
not be eligible for the proposed specific freight train exception Sec.  
218.131. Furthermore, FRA estimated that around 15,185 train starts 
would not be covered by the exception for existing one-person 
operations in Sec.  218.133. Given the proposed structure of the 
passenger train exceptions in Sec.  218.129, FRA does not expect any 
passenger railroad to have to add a crewmember to an existing train 
operation as a result of the NPRM. Freight railroads would be expected 
to take full advantage of the special approval procedure in Sec.  
218.135. FRA used a range of values to estimate the costs that would be 
related to Sec.  218.135 due to the uncertainty in the future of crew 
staffing. This range stipulates that

[[Page 13920]]

between 850,266 and 15,675,000 train starts would be affected by crew 
reduction over the next 10 years and enter the special approval 
procedure as proposed in Sec.  218.135. For passenger railroads, the 
proposed special approval procedure would maintain the status quo, as 
any railroad that could potentially request special approval under 
Sec.  218.135 would have done it through a passenger train emergency 
preparedness plan under part 239.
    FRA is proposing regulations concerning train crew staffing based 
on the statutory general authority of the Secretary of Transportation 
(Secretary). The general authority states, in relevant part, that the 
Secretary ``as necessary, shall prescribe regulations and issue orders 
for every area of railroad safety supplementing laws and regulations in 
effect on October 16, 1970.'' 49 U.S.C. 20103. The Secretary delegated 
this authority to the Federal Railroad Administrator. 49 CFR 1.89(a).

Summary of the Major Provisions of the Regulatory Action in Question

    FRA is co-proposing regulations to address train crew sizes. FRA's 
first co-proposal would establish minimum requirements for the size of 
different train crew staffs depending on the type of operation and the 
safety risks posed by the operation to railroad employees and the 
general public. This proposal also prescribes minimum requirements for 
the appropriate roles and responsibilities of train crewmembers on a 
moving train, and promotes safe and effective teamwork. Each railroad 
may prescribe additional or more stringent requirements in its 
operating rules, timetables, timetable special instructions, and other 
instructions.
    FRA's first proposed approach starts with a general requirement 
that each train shall be assigned a minimum of two crewmembers, 
regardless of whether the train is a freight or passenger operation. 
The NPRM contains several proposed requirements detailing the roles and 
responsibilities of the second crewmember when the train is moving. The 
primary role of a second crewmember, typically a conductor, is to have 
the ability to directly communicate with the crewmember in the cab of 
the controlling locomotive, i.e., the locomotive engineer, even if the 
second crewmember is located outside of the operating cab.
    Several of the proposed sections contain exceptions to this general 
requirement, specifying when a train would not require a minimum of two 
crewmembers. These are generally low risk operations that are not 
hauling large quantities of hazardous materials, traveling at high 
speeds, or putting passengers on passenger trains at risk. Among other 
exceptions, there is a proposed exception for a tourist, scenic, 
historic, or excursion operation that is not part of the general 
railroad system of transportation. Other exceptions allow railroads to 
use one-person crews to assist other trains (i.e., helper service), 
maintain track, or move locomotives where they are needed without being 
burdened by the proposed two crewmember minimum staffing requirement.
    Two of the proposed sections suggest how a railroad could apply for 
FRA approval to operate one-person train crews. One of those proposed 
sections would require a railroad to provide information describing an 
operation that existed prior to January 1, 2015, and FRA would have 90 
days from the day of receipt of the submission to issue written 
notification of approval or disapproval. The railroad would be allowed 
to continue the operation unless FRA notifies the railroad it must 
cease the operation and provides the reason(s) for the decision. If FRA 
failed to disapprove the proposal within 90 days of the submission, the 
railroad would be permitted to go forward with its plan. The second of 
the proposed sections under the first co-proposal would allow any 
railroad, at any time, to provide information describing an operation 
and petition FRA for special approval of a train operation with less 
than two crewmembers. FRA would normally grant or deny the petition 
within 90 days of receipt, but could attach special conditions to the 
approval of any petition after considering the benefits and costs of 
the condition(s).
    Under the second co-proposal, an existing one-person train 
operation would be required to provide information to FRA in order to 
continue the operation, and a start-up train operation with less than 
two crewmembers would be required to provide information to FRA before 
initiating the operation. The railroad with the start-up operation 
would also be required to attest that it has studied the operating 
environment and circumstances of the intended operation and that the 
railroad believes that it has taken any precautions necessary to ensure 
that the proposed single-person operation will not pose significant 
safety risks to railroad employees, the general public, and the 
environment. Under this co-proposal, the railroad would not be required 
to wait for FRA approval prior to beginning single-person service. With 
the railroad's notice and attestation the railroad would be permitted 
to operate a single-person service. Both existing and start-up train 
operations with less than two crewmembers would be required to provide 
an appropriate level of safety. However, FRA reserves the right to 
investigate an operation and halt or add conditions to an operation's 
continuance if FRA determines that an operation is not providing an 
appropriate level of safety.

Costs and Benefits

    FRA estimated the benefit and cost ranges of the two co-proposals 
using a 10-year time horizon, and performed sensitivity analysis using 
a 20-year time horizon. Compliance costs include the addition of the 
labor hour equivalent of about one to three additional crewmembers 
nationwide annually to certain train movements for existing operations 
(an estimated cost of roughly $120,000-$200,000 annually over 10 years, 
undiscounted), off-setting actions required by FRA in order for a 
railroad to obtain FRA approval to start up new fewer than two-person 
crew operations, and information submission and data analysis.
    FRA estimated a 10-year cost range which would be between $7.65 
million and $40.86 million, undiscounted. Discounted values of this 
range are $5.19 million and $27.72 million at the 7-percent level. FRA 
is confident that the benefits outlined in this NPRM would exceed the 
costs. Preventing a single fatal injury would exceed the break-even 
point in the low range and preventing five fatalities would exceed the 
break-even point at the high range. The proposed rule will help ensure 
that train crew staffing does not result in inappropriate levels of 
safety risks to railroad employees, the general public, and the 
environment, while allowing technology innovations to advance industry 
efficiency and effectiveness without compromising safety. The proposal 
contains minimum requirements for roles and responsibilities of second 
train crewmembers on certain operations and promotes safe and effective 
teamwork. Due to lack of information, these cost estimates do not 
include any safety costs from using two-person crews instead of one or 
zero person crews, such as additional accidents caused by non-engineer 
crew distracting the engineer or additional deaths and serious injuries 
from having more people on board trains involved in accidents.
    FRA is confident that the proposed rulemaking would generate the 
benefits necessary to at least break-even. These benefits would result 
from improved

[[Page 13921]]

post-accident/incident emergency response and management, reporting of 
troubled employees due to drug and alcohol use, compliance with 
restrictions on electronic device use in place to prevent distraction, 
and the potential avoidance of a high-consequence train accident. While 
FRA does not have information that suggests that there have been any 
previous accidents involving one-person crew operations that could have 
been avoided by adding a second crewmember, this rule would break even 
with its estimated costs if it prevents one fatal injury or high-
consequence accident in the first 10 years of the rule (and no 
additional safety costs result from the presence of additional crew). 
This proposed rule would help ensure that passengers and high risk 
commodities are transported safely by rail and FRA is confident that 
the resulting safety benefits would justify the costs. The cost 
increase would result from additional crewmembers on the trains that 
are currently operating with a one-person crew and from the possibility 
that the railroad is required to use more technology to mitigate the 
risk related to crew conversions. FRA has assessed both co-proposals 
and concluded that monetary, quantifiable costs under both co-proposals 
are equal. However, railroads may perceive each option differently, 
especially as it pertains to business risk. Under co-proposal Option 1, 
railroads would have to wait for approval and that would delay 
implementation of crew size reduction in the short-term. However, once 
FRA grants approval railroads would have spent adequate amount of 
resources to meet regulatory requirements and oversight. Under co-
proposal Option 2, each railroad would be able to initiate crew 
reductions after a petition is submitted to FRA. This means that 
railroads would be able to reduce costs once petitions are submitted. 
However, under co-proposal Option 2, railroads may assume more business 
risk as an initiated crew reduction would be subject to regulatory 
action (discontinuance or more conditions for approval). This means 
that railroads could end up acquiring equipment or resources for 
unapproved crew reductions or to modify initial plans for crew 
reductions. This would be costly and bring more uncertainty to the 
railroads' business plans in the short-term.
    FRA conducted a sensitivity analysis of its first co-proposal using 
a 20-year time horizon and a scenario with a more rapid crew size 
reduction schedule. FRA estimates that the cost range of the co-
proposals would be $7.44 million to $36.25 million over this timeframe 
using a 7-percent discount rate, and $11.93 million to $50.71 million 
using a 3-percent discount rate.

 II. Background

A. Analysis of Two Recent Catastrophic Accidents Raising Crew Size 
Issues

    During the last five months of 2013, the railroad industry had two 
accidents that suggest the need for greater Federal oversight of crew 
size issues. The first incident at Lac-M[eacute]gantic, Quebec, Canada, 
was the driving force for bringing the crew size issue to FRA's Federal 
advisory committee known as the Railroad Safety Advisory Committee 
(RSAC). While Canada's Transportation Safety Board could not conclude 
that use of a one-person crew was a cause or contributing factor to the 
accident, as described below, the Lac-M[eacute]gantic accident involved 
a one-person crew that did not properly secure a train at the end of a 
tour of duty leading to a deadly, catastrophic accident.
    The RSAC includes representatives from all of the agency's major 
stakeholder groups, including railroads, labor organizations, suppliers 
and manufacturers, and other interested parties. (An RSAC overview is 
provided below.) During the time that the RSAC's Working Group was 
deliberating whether it could make recommendations to FRA on the crew 
size issue, the other accident summarized here occurred. This accident 
involved trains carrying multi-person crews and is illustrative of the 
positive mitigation measures multiperson train crews took following a 
track-based derailment of one train that led to a second train 
colliding with the first (Casselton, ND). With regard to the Lac-
M[eacute]gantic accident, FRA exercised its oversight following the 
accident through use of its emergency order authority to ensure that 
the railroad involved had at least one adequate backstop to human 
error. FRA has also issued several other regulations to address the 
safety issues raised by these accidents which are described within the 
summaries of the accidents.
Lac-M[eacute]gantic, Quebec, Canada
    FRA published Emergency Order 28 (78 FR 48218) on August 7, 2013, 
(issued on August 2, 2013) which contains the preliminarily known 
details of the events on July 5-6, 2013, that led to the catastrophic 
accident at Lac-M[eacute]gantic. On August 20, 2014, the Transportation 
Safety Board (TSB) of Canada released its railway investigation report, 
which refines the known factual findings and makes recommendations for 
preventing similar accidents. TSB of Canada Railway Investigation 
R13D0054 is available online at http://bit.ly/VLqVBk. In summary, an 
unattended train on mainline track did not stay secured and rolled down 
a grade to the center of town, where 63 of the 72 crude oil tank cars 
in the train derailed, and about one-third of the derailed tank car 
shells had large breaches. There were multiple explosions and fires 
causing an estimated 47 fatalities to the general public, extensive 
damage to the town, and approximately 2,000 people to be evacuated from 
the surrounding area.
    The train had been secured by its one-person crew prior to it being 
left unattended. Because of a mechanical problem with the train, the 
engineer left the train running. Prior to leaving the train, the 
engineer consulted with another railroad employee about how to handle 
the problem and applied brakes on the train. However, TSB of Canada 
determined that the one-person crew did not comply with the railroad's 
rules requiring the hand brakes alone to be capable of holding the 
train. According to the railroad's rules, a 72-car train should have 
had a minimum of nine hand brakes applied. Instead, the one-person crew 
used a combination of the locomotive air brakes and seven hand brakes 
to give the false impression during the verification test that the hand 
brakes alone would hold the train. TSB of Canada concluded that, 
without the extra force provided by the air brakes, a minimum of 17 and 
possibly as many as 26 hand brakes would have been needed to secure the 
train, depending on the amount of force with which they had been 
applied. Testing conducted by TSB of Canada concluded that it would 
have been possible for a single operator to apply a sufficient number 
of hand brakes within a reasonable amount of time. Shortly after the 
one-person crew left the train, the local fire department responded to 
an emergency call about a fire on the train. The responders followed 
the railroad's instructions in shutting down the locomotive and then 
extinguished the fire. The responders met with an employee of the 
railroad, a track foreman, to discuss the train's condition prior to 
departing the area. The track foreman dispatched by the railroad did 
not have a locomotive operations background. With all the locomotives 
shut down, the air compressor no longer supplied air to the air brake 
system, the air leaked, and the air brakes gradually become less 
effective until the combination of

[[Page 13922]]

locomotive air brakes and hand brakes could no longer hold the train.
    In the aftermath of the Montreal, Maine and Atlantic Railway (MMA) 
derailment at Lac-M[eacute]gantic, Transport Canada issued an order for 
all Canadian railroad companies to provide for minimum operating crew 
requirements considering technology, length of train, speeds, 
classification of dangerous goods being transported, and other risk 
factors. In response, MMA changed its operating procedures to use two-
person crews on trains in Canada. However, FRA was concerned that MMA 
did not automatically make corresponding changes to its operating 
procedures in the U.S. even though the risk associated with this 
catastrophic accident also exists in the U.S.\1\ It may have been that, 
without a specific two-person train crew requirement in the U.S., MMA 
did not feel compelled to take any action to enhance the safety of its 
U.S. operations in a like-minded way to the preventive measures it took 
in Canada.
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    \1\ Letter from Joseph C. Szabo, FRA Administrator, to Mr. 
Edward Burkhardt, CEO of MMA (Aug. 21, 2013), placed in the docket.
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    The Lac-M[eacute]gantic accident is also relevant to the issue of 
crew size because the tank cars that derailed were carrying crude oil 
from the Bakken deposit in North Dakota and Montana and this proposed 
rule carries forward FRA's position that at least a two-person train 
crew is warranted on any train carrying 20 or more tank cars loaded 
with crude oil or ethanol. Over the past few years, a technological 
advancement has allowed crude oil to be recovered from under 
nonpermeable shale rock. This advancement of hydraulic fracturing, 
better known as ``fracking,'' resulted in a substantial increase in 
crude oil shipments in both Canada and the U.S. between 2009 and 
2015.\2\ The prevalence of crude oil tank cars on U.S. railroads, and 
the volatility of some of the blended crude oil from different sources 
or mixed with the chemicals used in the fracking process, suggested 
that Bakken crude oil might have a significantly greater potential to 
be improperly classified and packaged for transportation. Investigators 
initially considered that improper classification and packaging was 
likely a contributing cause to the catastrophic result at Lac-
M[eacute]gantic. Consequently, DOT has taken or is taking a variety of 
actions to address the issues created by transporting crude oil 
produced through fracking from various approaches. See, the following 
examples
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    \2\ https://www.eia.gov/dnav/pet/PET_MOVE_RAILNA_A_EPC0_RAIL_MBBL_M.htm.
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     FRA's Emergency Order 28, 78 FR 48218, Aug. 7, 2013.
     FRA's Safety Advisory 2013-06, 78 FR 48224, Aug. 7, 2013, 
jointly issued with the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) (discussing the circumstances surrounding the 
Lac-M[eacute]gantic accident and making certain safety-related 
recommendations to railroads and crude oil offerors).
     FRA's Safety Advisory 2013-07, 78 FR 69745, Nov. 20, 2013, 
jointly issued with PHMSA (reinforcing the importance of proper 
characterization, classification, and selection of a packing group for 
Class 3 materials and the corresponding requirements in the Federal 
hazardous materials regulations for safety and security planning after 
the Lac-M[eacute]gantic accident).
     FRA's Safety Advisory 2014-01, jointly issued with PHMSA, 
79 FR 27370, May 13, 2014, (encouraging the use of railroad tank car 
designs with the highest level of integrity reasonably available).
     PHMSA's final rule, issued in coordination with FRA, 
``Hazardous Materials: Enhanced Tank Car Standards and Operational 
Controls for High Hazard Flammable Trains,'' 80 FR 26643, May 8, 2015, 
(adopting new operational requirements for certain trains transporting 
large quantities of flammable liquids known as ``high-hazard flammable 
trains'' (HHFT), creating improvements in tank car standards, providing 
a sampling and classification program for unrefined petroleum-based 
products; and creating notification requirements).
     FRA's final rule ``Securement of Unattended Equipment,'' 
80 FR 47349, Aug. 6, 2015, (adopting requirements to prevent unattended 
trains that carry crude oil, ethanol, poisonous by inhalation (PIH), 
toxic by inhalation (TIH), and other highly flammable contents from 
rolling away).
    Also, in 2013, DOT launched Operation Safe Delivery (OSD), which is 
examining the entire system of crude oil delivery. OSD concluded, after 
months of unannounced inspections, testing, and analysis, that ``the 
current classification applied to Bakken crude is accurate under the 
current classification system, but that the crude has a higher gas 
content, higher vapor pressure, lower flash point and boiling point and 
thus a higher degree of volatility than most other crudes in the U.S., 
which correlates to increased ignitability and flammability.'' See OSD 
Update (July 23, 2014) summarizing PHMSA and FRA testing results of 
Bakken crude oil as of May 2014; available online at http://1.usa.gov/1piQJB1.
    Some people in the railroad industry view the accident at Lac-
M[eacute]gantic as having nothing to do with crew size. They argue that 
there are potential safety benefits to single-person train operations, 
such as increased attentiveness by the lone operator because of the 
absence of a second crewmember on whom to rely. It is also said that 
there are fewer distractions from extraneous conversations. The TSB of 
Canada report on the Lac-M[eacute]gantic accident found that it could 
not be concluded that a one-person crew contributed to the accident. 
However, TSB of Canada found that the risk of implementing single-
person train operations is a risk that must be addressed because it is 
related to unsafe acts, unsafe conditions, or safety issues with the 
potential to degrade rail safety. TSB of Canada concluded that 
addressing the risk of one-person operations is essential to preventing 
future similar accidents, even if the risk itself cannot be determined 
to directly have led to this accident.
    Related to the risks associated with one-person operations, TSB of 
Canada found that MMA did not have a strong safety culture, which made 
MMA a poor candidate to implement one-person operations. For instance, 
TSB of Canada notes that an organization with a strong safety culture 
is generally proactive when it comes to addressing safety issues, and 
yet MMA was generally reactive. MMA had significant gaps between the 
company's operating instructions and how work was performed day-to-day. 
Furthermore, TSB of Canada's investigation found MMA had inadequate 
training, testing, and supervision. In contrast, an effective safety 
culture is characterized by an informed workforce where people 
understand the hazards and risks involved in their own operation and 
work continuously to identify and overcome threats to safety.
    At the time of the accident, there were no rules or regulations 
preventing Canadian railroads from implementing one-person train 
operations. Thus, TSB of Canada concluded that the risks posed by one-
person operations suggest that Transport Canada, i.e., Canada's DOT, 
should consider whether each railroad has the measures in place to 
mitigate those risks by creating a process to approve and monitor each 
railroad's one-person operation plans. TSB of Canada reasoned that if 
one-person operations are implemented ``without identifying all risks, 
and if mitigation measures are not implemented, an equivalent level of 
safety to that of multi-person crews will not be maintained.'' 
Considering that

[[Page 13923]]

there are only two Canadian railroads that have operated using one-
person operations, TSB of Canada seems to be making a prudent 
recommendation before one-person operations are more widely used 
throughout the Canadian rail system. This is the exact lesson learned 
that FRA would like to apply to U.S. rail operations through 
promulgation of this rulemaking.
    Even though TSB of Canada was not able to conclude that having 
another crewmember would have prevented the accident, and certainly FRA 
agrees that this could not be determined with any absolute certainty, 
it is distinctly possible that a train crew with a minimum of two-
persons would have had more options available to secure the train 
safely, thereby potentially posing less of a risk of a runaway train. 
This was an issue raised by some labor members of FRA's Federal 
advisory committee and has some support in TSB of Canada's report. For 
instance, a one-person crew was limited to where the train could be 
parked so that it would not block a grade crossing, where it is 
significantly more feasible operationally for a two-person crew to 
choose to split the train and park each part on a lesser grade than the 
choice left for the one-person crew. There are four main reasons why 
splitting a train is generally considered a two-person job: (1) If a 
one-person crew leaves the locomotive cab unoccupied and has not taken 
appropriate measures to secure the train, it could become a runaway; 
(2) even if the train is secure, some cars may move depending on the 
terrain, making it difficult for the one-person crew to go between cars 
at a desired location without applying hand brakes, which can be time-
consuming and strenuous work; (3) depending on the length of the train, 
it could be time-consuming for the one crewmember to walk the train to 
get to the desired location for a cut and find that the car needs to 
move to release the coupler lock; and (4) when the one-person crew 
stops occupying the lead locomotive cab, the train and crew are more 
vulnerable to vandalism and malicious acts by trespassers who might 
actually want to operate the train. In addition, a second person might 
be needed to flag a grade crossing and it would be easier to reposition 
one or more cars with a second crewmember. Another issue that favors 
two-person crews is that a TSB of Canada survey determined that there 
were instances when MMA one-person crews applied less than the minimum 
number of hand brakes required by MMA's rules and that the minimum hand 
brake requirement was more consistently met when trains were operated 
by two crewmembers. This seems to be the case here, as the engineer 
only set seven hand brakes instead of the minimum of nine. Although TSB 
of Canada's investigation found that even nine hand brakes would not 
have been enough to hold the train, a second crewmember could have 
ensured proper securement if the railroad had issued proper 
instructions regarding the minimum number of hand brakes to apply. Even 
TSB of Canada's report summarizing its investigations of other 
shortline runaway train accidents that it investigated previously 
suggests that, without having another crewmember available, no other 
person had the opportunity to verify whether the train was properly 
secured. Additionally, although it is not unusual for some types of 
locomotives to smoke and that the engineer did contact the railroad and 
was told to leave the engine while it was smoking, TSB of Canada found 
that the taxi driver that questioned the decision to leave the 
locomotive in a smoking condition did not carry the same weight as a 
qualified railroad employee. Similarly, the one-person crew and the 
dispatcher did not discuss the MMA procedure requiring that a 
locomotive be shut down due to abnormal smoke, and TSB of Canada states 
that it is impossible to conclude whether the presence of another 
crewmember would have resulted in different actions to secure the 
train--although FRA believes it is impossible to exclude either.
    Thus, in consideration of the safety concerns involved in the rail 
transportation of crude oil, the catastrophic accident at Lac-
M[eacute]gantic serves as the trigger to create redundant safeguards 
that have a high potential of preventing other accidents. FRA's 
position is reinforced by research and review of accident information, 
which confirms that railroads that provide two qualified crewmembers, 
who can work as an effective team on those unit trains (which commonly 
consist of over 100 loaded tank cars of crude oil), improve the safety 
of those operations.
Casselton, ND
    Another train accident illustrates how having multiple train 
crewmembers can improve safety for the general public and the 
crewmembers themselves. On December 30, 2013, an eastbound BNSF Railway 
(BNSF) ``key train,'' consisting of two head end locomotives, one rear 
distributive power unit (DPU), and two buffer cars on each end of 104 
loaded crude oil cars, collided with a car from a westbound BNSF 
``grain train'' that had derailed less than 2 minutes earlier from an 
adjacent main track. Thirteen cars in the middle of the 112-car grain 
train had derailed, most likely due to a broken axle on the 45th 
railcar, and that railcar ended up fouling the main track the key train 
was operating over. The collision derailed the key train's two leading 
locomotives, as well as the first 21 trailing cars behind the 
locomotives. After the collision, an estimated 474,936 gallons of crude 
oil was released from 18 loaded tank cars fueling a fire which caused 
subsequent explosions as the loaded oil tank cars burned. The local 
fire department had requested that nearby residents voluntarily 
evacuate immediately following the collision and approximately 1,500 
residents did evacuate. The voluntary evacuation was lifted 
approximately 25 hours after the collision. There were no injuries to 
crewmembers, emergency responders, or the general public, but images 
and video of the burning railcars made the accident national news.
    Many members of the general public who viewed the news accounts of 
burning wreckage may not be aware that the heroic actions of the grain 
train's crewmembers potentially prevented the environmental and 
property damages from being much worse, in addition to potentially 
shortening the evacuation period. The grain train was operated by a 
three-person crew, which included a locomotive engineer, a conductor, 
and a student locomotive engineer (i.e., a conductor training to be a 
locomotive engineer). Post-accident, the grain train crew was 
approached by the Assistant Fire Chief of the Casselton Fire Department 
who asked whether the crew could assist the emergency responders by 
pulling a cut of tank cars away from the burning derailed cars. Upon 
receiving the request, a BNSF road foreman of engines consulted with 
the crew to see if the crewmembers believed it was safe to move the 
cars, which they did. The grain train's locomotive engineer and student 
locomotive engineer went to the DPU on the key train and the conductor 
and road foreman of engines went to the east to the nearest grade 
crossing and made a cut of an estimated 50 tank cars. The engineer and 
student engineer then pulled the cars about a quarter of a mile west 
away from the burning train.
    Approximately 45 minutes after that move was completed, the 
Assistant Fire Chief met the grain train's crew again and asked if 
additional tank cars from the key train could be moved. The grain 
train's crew made contact with a BNSF trainmaster and communicated the 
request. The trainmaster told the crew that if the move could be 
completed safely, they had permission to proceed.

[[Page 13924]]

The student engineer borrowed the Assistant Fire Chief's fire 
protective clothing and walked within 10 car lengths of the fire and 
uncoupled approximately 20 additional cars from the burning train. 
Then, the locomotive engineer coupled to these cars and moved them to 
the west creating a safety gap of approximately 25 to 30 car-lengths 
from the burning cars.
    Adding these two emergency response moves together, the grain 
train's crew was responsible for moving approximately 70 loaded crude 
oil cars in the key train out of harm's way. These urgent moves would 
have been much more time consuming and logistically difficult if the 
grain train was operated with only a one-person crew. For those 
reasons, there is a question of whether either of these emergency 
response moves would have been attempted with a one-person crew.
    Meanwhile, it is arguable that the two-person key train crew 
benefited from each other's presence in the cab of the controlling 
locomotive. The crew helped each other through the emergency by issuing 
appropriate warnings and sharing tasks. First, the locomotive engineer 
was able to warn the conductor to get down and brace for impact 4 to 5 
seconds before colliding with the derailed grain train railcar, and 
they both were able to get down on the floor and brace themselves. The 
conductor admitted that he had never been in a situation where a 
collision was imminent, and he did not know what he was supposed to do. 
Although a one-person crew would not need to warn another crewmember of 
an impending impact, this is an example of an expert crew working 
together. Second, after the impact, the crew was able to assess that 
they were not seriously injured, and it was the conductor who first 
noticed that their train was on fire when he looked out the window and 
was able to warn the locomotive engineer of that fact. This is a clear 
example of the benefit a second crewmember can provide. Without a 
second person, the engineer may not have realized that he was in 
immediate danger. Third, upon hearing this news, the engineer told the 
conductor to ``grab your cell phone and run.'' This is another example 
of effective teamwork during an emergency situation. Some people do not 
think as clearly as others during an emergency and, in this case, the 
engineer, with about 9 years of experience, recognized that it was 
important for him to instruct the conductor with less than 2 years of 
experience that the crew should have their cell phones to report 
information and to leave the locomotive quickly. Fourth, the engineer 
announced the collision by radio. Reporting the incident as quickly as 
possible is always crucial to getting first responders to the scene of 
an accident. By contacting the dispatcher on the railroad's radio, the 
engineer was taking an important precaution to ensure other railroad 
operations were not adversely impacted. Had this been a one-person 
crew, there is a question of whether the engineer might have desired to 
exit the locomotive first and then notify the dispatcher, assuming the 
engineer believed his life was in immediate danger. Having a second 
crewmember present working to exit the locomotive may have freed the 
engineer to report the accident. Fifth, the conductor attempted to exit 
the front door while the engineer was reporting the accident over the 
radio, but finding it jammed shut, the conductor departed the 
locomotive through the back door located behind the engineer's seat. 
The engineer soon followed the conductor as it was clearly determined 
to be the only viable way to exit the locomotive. As the crew escaped 
from the locomotive, the conductor described the heat from the fire as 
``intense.'' The crew could not get away from the locomotive quickly as 
they found themselves in knee-deep snow immediately upon exiting the 
locomotive. About a minute after exiting the locomotive, it was 
engulfed in flames. Sixth, they ran together away from the train with 
the engineer using his cell phone on the run to call 911 and the 
conductor answering the dispatcher's call on the conductor's cell 
phone. Thus, the two crewmembers were able to simultaneously assist 
with providing different officials with information that would assist 
the railroad and first responders. Seventh, when the engineer found out 
local citizens were at the crash site, he strongly urged the local 
police to get those citizens away from the site because the oil train 
was just like the one in (Lac-M[eacute]gantic) Canada, and the deputy 
sheriff recognized the danger. These two crewmembers worked as a team 
in an emergency situation to divide up tasks, warn the dispatcher and 
local emergency responders, and protect each other's safety. 
Fortunately, neither crewmember suffered any serious injuries 
preventing them from escaping the damaged locomotive or running to 
safety. Certainly, with two crewmembers, there is the potential that 
both crewmembers could be hurt, but there is also the possibility that 
one crewmember could physically assist an injured colleague. FRA 
believes that, from a post-accident risk mitigation standpoint, this 
accident is illustrative of the safety benefits a second crewmember can 
provide and that railroad operations, railroad crewmembers, the 
environment, and the general public are better served by the 
availability of a second crewmember. As explained in relation to the 
Lac-M[eacute]gantic accident, it is often impractical to expect a one-
person crew to split a train, and in the case of an accident, there are 
added concerns regarding a one-person crew's ability to maintain 
communications with the dispatcher and emergency personnel while 
performing this potentially dangerous emergency movement. For instance, 
although an employee is permitted to use a cell phone during emergency 
situations involving the operation of the railroad under 49 CFR 
220.309(b), the employee would have to remember to grab it, and the 
dispatcher and emergency personnel might not know the employee's phone 
number. If the employee took a portable railroad radio while conducting 
the train splitting operation, there is a significant probability that 
the radio signal would not be strong enough to communicate with the 
dispatcher. These concerns also do not take into account the fact that 
FRA purposely prohibits the use of electronic devices during railroad 
operations as they can be distractions that lead to preventable 
injuries and accidents. See 49 CFR part 220, subpart C. The benefits of 
a second crewmember following an accident may be especially useful when 
the commodities hauled pose significant risks, or a single crewmember 
is injured or is simply unable to perform as many tasks as quickly as 
two crewmembers.

B. Research Identifies Crewmember Tasks and the Positive Attributes of 
Teamwork; Raises Concerns With One-Person Crews, Especially When 
Implementing New Technology

    Before FRA asked RSAC to consider accepting a crew size task, FRA 
was aware that some research revealed significant safety concerns with 
one-person crew operations. To aid the Working Group in its development 
of recommendations for appropriate crew size minimum standards, FRA 
provided five FRA-sponsored research reports, as well as one 
Transportation Research Board (TRB) conference report that contains 
presentations from multiple research reports, prior to the first 
meeting. This background offers a summary of the important findings of 
these reports, as well as a list of those reports presented, with an 
internet link to each report.

[[Page 13925]]

    (1) ``Cognitive and Collaborative Demands of Freight Conductor 
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations,'' Final Report, July 2012, DOT/
FRA/ORD-12/13. The research and report was performed by the John A. 
Volpe National Transportation Systems Center. The report is available 
online at http://www.fra.dot.gov/eLib/details/L04331.
    A primary finding of this FRA-sponsored study is that conductors 
and locomotive engineers operate as a joint cognitive system. The 
findings indicate that the conductor and the locomotive engineer 
function as an integrated team that often operate as a single unit with 
a common goal. These two crewmembers not only work together to monitor 
the operating environment outside the locomotive, they also collaborate 
in planning activities, problem solving, and identifying and mitigating 
potential risk. A conductor is defined as the crewmember in charge of a 
train or yard crew. Freight conductors supervise pre-trip activities, 
over-the-road operation, and post-trip activities to ensure overall 
safe and efficient train movement.
    The freight conductor's role has evolved from primarily a physical 
in nature job to one that emphasizes cognitive work. The research 
identifies five broad categories of cognitive job duties that a freight 
conductor normally faces, which raises issues for each railroad that 
might be considering one-person train operations and how the one-person 
operation can be as safe as a two-person operation.
    One of those five categories of cognitive job duties is to manage 
the train consist, including the train makeup. This duty requires the 
freight conductor to understand train makeup rules and apply them both 
in the yard and on the mainline. Experienced conductors understand the 
implications of car placement, car consist, and car weight and shape 
when building trains. Conductors must understand how the train's 
consist will affect train handling, which is important to ensure 
locomotive engineer compliance when operating the train. (It is 
possible that this duty could also carry over to passenger train 
conductors, if there were different types of passenger cars in the same 
train that had the potential for compatibility issues, e.g., 
incompatible doors.)
    Second, a freight conductor also has the duty to coordinate with 
the engineer for safe and efficient en route operations, which includes 
checking speed, signal indications, and engineer alertness. This duty 
could also include filling an engineer's knowledge gap about a 
territory (e.g., the conductor instructs the engineer where to place a 
train of a certain length so the train does not block a crossing). The 
conductor also serves to remind the engineer about upcoming signals and 
slow orders and provides ``look ahead'' information to alert the 
engineer about hills, curves, grade crossings, and other physical 
characteristics of the territory that have the potential to cause 
operational problems. If the locomotive engineer is not in compliance 
with the railroad's operating rules, it is the conductor's job to bring 
it to the locomotive engineer's attention, or take appropriate 
corrective action that may include actuating the emergency brake to 
bring the train to an emergency stop if the conductor feels the train, 
its crew, or others outside the train are in danger. A significant 
finding was that operating in mountain-grade territory adds complexity 
to the job and introduces additional cognitive demands on both the 
conductor and the locomotive engineer.
    Third, a freight conductor's duties usually extend to taking the 
lead on interacting with non-crewmembers, such as dispatchers and 
roadway workers. These communications with non-crewmembers typically 
takes place by radio. There may be expected and unexpected radio 
communications, and there may be lulls in communication and times of 
heavy interaction that require conductors to multitask in order to 
simultaneously receive/copy information received by radio while calling 
out signals and speed restrictions.
    Fourth, the freight conductor's duties require diagnosing and 
responding to train problems, as well as dealing with other exceptional 
situations.
    Fifth, railroads typically assign the freight conductor the job of 
managing the train crew's paperwork. Examples of paperwork managed by a 
freight conductor include the conductor's log, writing down orders, 
copying bulletins for both crewmembers received by radio, and keeping 
an up-to-date rulebook. When a conductor is handling all of these 
duties, the safety benefit is that the engineer can concentrate on 
operating the train.
    Another issue mentioned separately in this study's final report is 
that in order to gain the cognitive skill and knowledge to be an expert 
freight conductor, a person needs about 5 years of experience. This is 
because there are a significant number of overarching cognitive 
challenges that differentiate expert conductors from less experienced 
ones. A quick list of these overarching cognitive challenges include 
knowledge of the territory, the ability to maintain situational 
awareness of surroundings, the ability to project the effect of consist 
on train dynamics, the ability to problem-solve, the ability to plan 
ahead, the ability to multitask, the ability to exploit external memory 
aids, and the ability to foster situational awareness through active 
communication. The study concluded that less experienced conductors are 
less able to handle situations that require multiple demands on 
attention, and they are less able to effectively problem-solve, plan 
ahead, or identify and avoid potential hazards. Because they have had 
less ``first-hand'' experience on the job, they are typically less 
confident in their knowledge and ability. Having a two-person crew 
broadens the number of experiences from which the crew can draw from.
    This research also addresses the role of PTC technology and whether 
it can substitute for a conductor, thereby paving the way for one-
person operations. The cognitive task analysis addresses this issue by 
laying out the multiple ways in which conductors contribute to safe and 
efficient train operations and contrasts this with the anticipated 
features of PTC systems. The report concludes that PTC can provide 
warnings of upcoming signals, work zones and speed restrictions; 
however, PTC cannot account for all the physical and cognitive 
functions that a conductor currently provides. For instance, conductors 
can support locomotive engineers in monitoring events outside the cab 
window for potential obstacles and hazards undetected by automated 
systems (e.g., people working on or around the track, trespassers, cars 
at grade crossings). FRA acknowledges that to the extent railroads 
comply with this rule using crewmembers in places other than the 
controlling cab, the crewmember is less likely to be able to provide 
this function. Other functions the conductor provides is filling 
knowledge gaps that locomotive engineers may have, supporting decision 
making, handling unanticipated events, and keeping the locomotive 
engineer alert, especially on long, monotonous trips where there is a 
risk of falling asleep. For this reason, the research recommends that 
each railroad seeking implementation of one-person operations in the 
future compile a detailed list of all of the physical and cognitive 
tasks both the engineer and conductor perform in the cab, determine 
which of these tasks PTC will cover, and understand how the locomotive 
engineer's responsibilities would change in a one-person operation. Of 
course, as the one-person crew would

[[Page 13926]]

presumably have more required tasks than an engineer in a two-person 
crew (even if PTC addresses some of those tasks), the railroad should 
consider how the strain of additional responsibilities may impact 
situational awareness. FRA requests comments on how railroads can and 
do safely and effectively perform these tasks using one-person crews.
    Removal of the freight conductor from the most common arrangement 
of a two-person train crew team would have significant implications for 
the remaining one-person crewmember. One-person train crews would need 
to absorb the physical tasks necessary for operations, as well as the 
many cognitive tasks. Some of the freight conductor's current cognitive 
duties would be impossible with one person. For example, with a one-
person crew, there will not be a second crewmember to fill in the 
knowledge or experience gaps of the sole crewmember. One of the 
problems is that inexperienced people ``don't know what they don't 
know'' and therefore cannot anticipate the risk and challenges, and 
cannot prepare for them. Pairing a conductor and locomotive engineer so 
that at least one of them is highly experienced can mitigate that 
problem.
    Another potential issue of one-person crews is that it eliminates 
the opportunity to work as a conductor before promotion to locomotive 
engineer. This is a two-fold problem. First, engineers do not get the 
experience of separately learning the freight conductor position. 
Second, engineers who are never conductors are likely to begin their 
engineer careers with less railroad experience than those who first 
become conductors. Railroads that have used previously promoted 
conductors for their current one-person operations may find a shortage 
of such competent candidates to promote within the company if they 
eliminate the conductor position.
    (2) ``Rail Industry Job Analysis: Passenger Conductor,'' Final 
Report, dated February 2013, DOT/FRA/ORD-13/07. The research and report 
was performed by the John A. Volpe National Transportation Systems 
Center and can be found online at http://www.fra.dot.gov/eLib/details/L04321.
    The purpose of this analysis was to identify key aspects of the 
passenger train conductor job, including the main responsibilities of 
the job, and the kinds of knowledge, skills, abilities, and other 
characteristics (KSAOs) required to successfully perform the job. The 
results of the analysis are useful to the railroad industry for three 
reasons. First, the results can be used to build training programs that 
address relevant and measurable KSAOs. Second, the results can be used 
to form the foundation for performance appraisal systems that are 
legally defensible and evaluate employees based on KSAOs that have been 
identified as related to the job. Third, the results can be used to 
help ensure that a hiring organization will appropriately screen new 
talent.
    In relation to the crew size issue, this study is relevant because 
it explains the wide variety of KSAOs a passenger train conductor needs 
to possess in order to do the job well. Therefore, if a passenger 
railroad employs only a one-person train crew, there is a question of 
how one person can do all of these tasks and the tasks required of a 
locomotive engineer. Examples of passenger conductor KSAOs include 
knowledge of operating and safety rules, skill in working on and around 
moving equipment, judgment and decision-making ability, and a 
commitment to safety. Conductors use a number of different tools and 
types of equipment, and work with a variety of railroad personnel such 
as locomotive engineers, dispatchers, and foremen. The job is also 
physically and psychologically demanding for workers because of the 
prevalence of irregular work hours, out-of-doors work, and the need to 
lift and move heavy equipment. Passenger conductors also need to be 
able to carry out tasks involving passenger interaction; crew 
communication; crew supervision; form and record management; train 
inspection, troubleshooting, and repair; train makeup and handling; and 
emergency situations.
    (3) ``Fatigue Status in the U.S. Railroad Industry,'' Final Report, 
dated February 2013, DOT/FRA/ORD-13/06. This report can be found online 
at www.fra.dot.gov/Elib/Document/2929. The research and report was 
performed by QinetiQ North America and an Engineering Psychologist 
within FRA's Office of Research and Development.
    Train and Engine (T&E) workers, such as locomotive engineers and 
conductors, are safety-critical railroad employees that have the 
highest exposure to fatigue in the railroad industry. They are also 
among employees that have the longest work hours and work at night. 
Passenger T&E workers, as a group, are workers with the least fatigue 
exposure because of the predictability of their schedules and less 
nighttime work; however, some passenger or commuter workers are 
required to stay at an out-of-town location and do not return to their 
starting location at the end of the work period. Freight T&E work can 
be divided into two groups: (1) ``road freight'' work which involves 
moving trains over long distances between major terminals or 
interchange points and frequently requires overnight stays at an out-
of-town location, and (2) ``local freight'' work which involves moving 
trains between a railroad yard and a nearby location so that the 
employee returns to the starting location at the end of the work 
period. Railroad workers are more likely to get less than seven hours 
of total sleep on a work day, which puts them at risk of fatigue.
    Extrapolating from the findings in the study, it appears that a 
railroad considering a one-person train crew operation should consider 
whether the crewmember is likely to be fatigued. In a railroad's safety 
analysis, prior to implementing a one-person operation, it would be 
prudent for the railroad to consider what redundancy backstops have 
been implemented in case the crewmember falls asleep on the job. If FRA 
needed to review and approve an operation with less than two 
crewmembers, the agency would be looking to see if the railroad 
implemented strategies for reducing railroad worker fatigue, such as 
improving the predictability of schedules, considering the time of day 
it permits one-person train crews to operate, and educating workers 
about human fatigue and sleep disorders. This study could help provide 
a railroad with some ideas for reducing fatigue in its train 
crewmembers.
    (4) ``Technology Implications of a Cognitive Task Analysis for 
Locomotive Engineers--Human Factors in Railroad Operations,'' Final 
Report, dated January 2009, DOT/FRA/ORD-09/03. The research and report 
was performed by the John A. Volpe National Transportation Systems 
Center and can be found online at www.fra.dot.gov/Elib/Document/381.
    This report documents the results of a cognitive task analysis 
(CTA) that examined the cognitive demands and activities of locomotive 
engineers in today's environment and the changes in cognitive demands 
and activities that are likely to arise with the introduction of new 
train control technologies. One of the objectives of this CTA was to 
understand these potential new performance demands. Another of the 
CTA's objectives was to evaluate the interaction between the locomotive 
engineer and the conductor and how they work jointly to operate the 
train in a safe and efficient manner. At the time of the CTA, the 
researchers assumed that railroads would continue to use a two-person 
crew configuration and so the analysis in this report does not 
explicitly consider any additional

[[Page 13927]]

sources of cognitive workload that may arise should there be a 
transition to single-person operations. The study notes that each 
crewmember has a duty to catch and correct the errors made by the other 
crewmember.
    The research examined the following types of PTC systems: (1) 
Communications-based train management (CBTM), (2) advanced speed 
enforcement system (ASES), (3) incremental train control system (ITCS), 
(4) electronic train management system (ETMS), and (5) North American 
Joint Positive Train Control (NAJPTC). This 2009 study acknowledges 
that the PTC systems are described and analyzed as they were 
implemented at the time of the site visits and, in some cases, the PTC 
systems may have undergone substantial redesign since then.
    The results pointed to major cognitive challenges involved in 
operating a train, including the need for sustained monitoring and 
attention; maintaining an accurate situation model of the immediate 
environment (including the location, activities and intentions of other 
agents in the vicinity such as other trains and roadway workers); 
anticipating and taking action in preparation for upcoming situations; 
and planning and decision-making, particularly in response to 
unanticipated conditions (e.g., person or object obstructing the 
track). Introduction of new train control technology reduces some 
cognitive demands while creating new ones. For example, as four out of 
the five PTC systems tested used conservative braking profiles to slow 
the train to the desired target speed under restrictive assumptions 
(e.g., heavy train or slippery track), train crews discovered that they 
would need to initiate braking at an earlier point than they were 
normally accustomed to if they wanted to prevent the PTC system from 
braking the train for them. This earlier braking point conflicts with 
the experienced crews' effective strategies for operating as 
efficiently as possible. A penalty brake application is highly 
undesirable because it significantly delays train operations and may 
trigger report or documentation requirements to explain why the penalty 
brake occurred. The report also discusses the implication of the 
results for design of in-cab displays and development of training, 
particularly for PTC systems. The research suggests there is a need for 
development of in-cab displays that make it easier to anticipate and 
stay within the braking curve without having to look closely at the in-
cab display so that more attention can be directed to looking outside 
the window.
    The PTC systems also created new sources of workload and 
distraction. Sources of workload and distractions include the need to 
acknowledge frequent (and often non-informative) audio alerts generated 
by the PTC system and the need for extensive input to the PTC system 
during initialization and when error messages occur while operating the 
train. For example, the NAJPTC system is described as having a train 
location determination system (LDS) that is able to locate train 
position within 10 feet but it would trigger a failure alarm when the 
LDS system experienced difficulty identifying the train location. The 
failure alarm sounded repeatedly, requiring the train crew's attention. 
Although this situation described was an early test of the system, and 
no consequences of failing to respond to the alert occurred, when the 
test period ends a failure to respond to an alert quickly might result 
in a penalty brake. The experiences of European railroads suggest that 
the concern expressed by the locomotive engineers regarding too many 
non-informative alerts has a potential for negative safety 
consequences. Operators may respond to poorly designed audio alerts 
automatically without fully processing their meaning, thus defeating 
their purpose. This is consistent with an extensive body of human 
factors literature that indicates that individuals are likely to ignore 
alarms when a high false alarm rate exists. (Please note that FRA's PTC 
regulation prohibits requiring a locomotive engineer to ``perform 
functions related to the PTC system while the train is moving that have 
the potential to distract the locomotive engineer from performance of 
other safety-critical duties,'' which would include distracting, non-
useful alerts. See 49 CFR 236.1006(d)(1), formerly Sec.  236.1029(f)).
    The new cognitive demands created by new technologies such as PTC 
can lead to changes in how locomotive engineers operate the train. 
Locomotive engineers certainly combine the current information they can 
obtain from direct perception (e.g., displays inside the cab as well as 
the scene outside the cab), in addition to knowledge and skills gained 
through training and experience to develop train handling strategies. 
Sources of new cognitive demands include constraints imposed by the PTC 
braking profile that require locomotive engineers to modify train 
handling strategies, increases in information and alerts provided by 
the in-cab displays that require locomotive engineers to focus more 
attention on in-cab displays versus out the window, and requirements 
for extensive interaction with the PTC systems (e.g., to initialize it 
and to acknowledge messages and alerts) that impose new sources of 
workload. The research concluded that although PTC technology is likely 
to have a positive impact on overall risk of accidents, these new 
sources of cognitive demand can contribute to errors and accidents.
    Railroads and PTC system designers need to be made aware that 
measures can be taken in the design of PTC displays and in development 
of user training to improve train crew performance and reduce the 
potential for human error. The final section of this report discusses a 
number of suggestions for ways to improve in-cab displays to reduce 
cognitive demands on train crews and facilitate train crew performance 
as well as suggestions for improved training. For example, one 
promising area for research and development is improved in-cab displays 
that minimize the need to visually attend to the in-cab display to 
extract important information. The research found that a substantial 
learning curve exists to reach the point where the in-cab display does 
not serve as a source of distraction, diverting attention away from 
events out the window. Locomotive engineers must have sufficient 
experience in running a PTC-equipped train as part of training so that 
they get beyond the point where close monitoring of the in-cab display 
is required to avoid a penalty brake application.
    Another PTC issue related to crew size is that PTC systems 
generally require manually entered inputs at the start of a trip and 
after a shutdown of the system during train operations. The train crew 
must enter information that the system will use as parameters for safe 
operation. These data entry tasks provide another source of workload 
and distraction, yet they are highly important because manual entry 
errors can have safety implications. With a one-person crew, the task 
burden would fall on the sole crewmember. Although a railroad might 
consider that if there is only one-person in the locomotive cab, the 
person should not operate without the PTC system operational, 
reinitializing the PTC system after it has initiated a penalty brake 
application can be a complex and time-consuming procedure. On one 
railroad described in the research, the procedure is so complex, 
difficult to follow, and time-consuming that, during the PTC system's 
trial period, the locomotive engineers were allowed to forego 
reinitializing the PTC system. However, the study noted that once the 
system

[[Page 13928]]

becomes fully operational, running a train without PTC activated may no 
longer be an option.
    This study is important to the crew size issue because it 
challenges the possibility that a train with PTC is inherently safe 
with only a one-person crew and that no safety analysis or FRA 
oversight of the operation is warranted. The study concluded that 
although PTC technologies have the potential to improve safety and 
efficiency of railroad operations, they also have the potential to 
create new failure modes and impose new cognitive demands on locomotive 
engineers who need to monitor PTC displays and provide inputs to the 
system. For example, without PTC technology, locomotive engineers are 
highly engaged with the train operation, noticing visual cues (i.e., 
landmarks and mileposts), monitoring radio communications of other 
trains, and relaying information by radio to other trains about 
potential hazards. Some locomotive engineers even indicated that they 
get a variety of sensory-based cues that help them perceive their 
location, such as vibrations associated with a portion of track or a 
smell that reminds them they are near a farm. The research suggests 
that because the PTC technology may require locomotive engineers to 
focus more of their attention on in-cab displays, it will reduce their 
ability to monitor activity outside the cab and raises a question about 
whether the engineers will lose any situational awareness in relation 
to the coherent mental picture (i.e., the situation model) of where the 
engineer perceives the train to be based on prior experience. 
Typically, a locomotive engineer will use that situation model to help 
the engineer anticipate future events. Furthermore, the research 
concluded that train crews must avoid too much reliance on the new 
train control technologies because, if the system ever fails, the 
engineer must still be able to operate the train safely.
    (5) ``Using Cognitive Task Analysis to Inform Issues in Human 
Systems Integration in Railroad Operations-Human Factors in Railroad 
Operations,'' Final Report, dated May 2013, DOT/FRA/ORD-13/31. The 
research and report was performed by the John A. Volpe National 
Transportation Systems Center and can be found online at http://www.fra.dot.gov/eLib/details/L04589.
    Human Systems Integration (HSI) is defined as a systematic, 
organization-wide approach to implementing new technologies and 
modernizing existing systems that emphasizes the importance of the end-
user in the system acquisition process. FRA sponsored this research 
because it would like the railroad industry to consider HSI when 
implementing new technologies such as PTC, energy management systems 
(EMS), and electronically controlled pneumatic (ECP) brakes in the 
locomotive cab. The expectation is that an HSI approach to railroad 
technology acquisition and implementation can increase user acceptance 
and usability of the technology, as well as increase the likelihood 
that it is deployed successfully. This report provides guidance to the 
industry with respect to the need for HSI in the technology acquisition 
process, and more specifically, how to use Cognitive Task Analysis 
(CTA) methods and results as part of the HSI process.
    The nature of the work associated with many railway worker 
positions (e.g., locomotive engineers, conductors, and roadway workers) 
is rapidly shifting from being primarily physical to placing greater 
emphasis on cognitive demands (e.g., monitoring, supervising automated 
systems, planning, communicating and coordinating, and handling 
unanticipated situations). CTA methods provide a means to explicitly 
identify the knowledge and mental processing demands of work so as to 
be able to anticipate contributors to performance problems (e.g., lack 
of information, high attention demands, inaccurate understanding) and 
specify ways to improve individual and team performance (be it through 
new forms of training, user interfaces, or decision-aids). CTAs can 
inform all aspects of HSI starting from early system requirements 
exploration and definition through late stage validation and field 
testing. The information in the report can serve as a lead-in to the 
kinds of insights that can be drawn from performing a CTA when 
introducing new technologies into railroad operations, as well as a 
starting point for the industry as far as identifying the likely 
emerging issues that need to be explored as a result of the 
introduction of new technology. For example, CTA methods can examine 
how the introduction of PTC might impact the monitoring demands placed 
on locomotive engineers, or alter the patterns of communication between 
locomotive engineers and other railroad workers. CTA methods can inform 
the design of systems that are more likely to be successful when 
deployed by ensuring that they address the specific performance 
challenges users face and are sensitive to the larger system context. A 
CTA can be used to better understand the various roles and 
responsibilities associated with each crew position to be able to 
assess which of those roles and responsibilities are eliminated (or 
taken on) by the new technology and which remain and must be accounted 
for in some other way if the crew position is eliminated. FRA has 
significantly aided this HSI analysis by previously sponsoring CTA 
reports that focused on railroad dispatchers, roadway worker 
activities, locomotive engineers, and freight train conductors (the two 
latter reports were previously described in this preamble section).
    The report cites a prior research finding that the introduction of 
new technology does not necessarily guarantee improved human-machine 
system performance. Woods, D. & Dekker, S., ``Anticipating the effects 
of technological change: A new era of dynamics for human factors,'' 
Theoretical Issues in Ergonomics Science, 1(3), 272-282 (2000); 
National Research Council (NRC) Committee on Human-System Design 
Support for Changing Technology, ``Human-System Integration in the 
System Development Process,'' National Academies Press (2007), http://www.nap.edu/catalog.php?record_id=11893; and Wreathall, J., Woods, 
D.D., Bing, A.J. & Christoffersen, K., ``Relative risk of workload 
transitions in positive train control,'' Washington, DC: U.S. 
Department of Transportation, Federal Railroad Administration. DOT/FRA/
ORD-07/12 (2007), http://ntl.bts.gov/lib/42000/42400/42472/ord0712.pdf. 
Poor use of technology can create additional workload for system users, 
can result in systems that are difficult to learn or use, or, in the 
extreme, can result in systems that are more likely to lead to 
catastrophic errors. The introduction of new technology results in the 
following types of common changes in operating practice: (1) Changes in 
practitioner roles, including emergence of new tasks; (2) changes in 
what is routine and what is exceptional; (3) changes to the kinds of 
human errors that can occur; and (4) people in their various roles 
adapting by actively altering tools and strategies to achieve goals and 
avoid failure. HSI is a way to employ a comprehensive analysis, design, 
and evaluation process that mitigates the risk of designing systems 
that create potential mismatches between the technology and the human 
operator limitations or capabilities. For example, in reviewing the 
freight train conductor CTA and how it could inform the HSI process 
regarding issues of one versus two-person train crew operation, the 
study concluded that ``[i]t is not clear how the introduction of PTC 
will affect cognitive and collaborative

[[Page 13929]]

processes, but findings suggest that it will not account for all the 
cognitive and physical support functions the conductor currently 
provides.''
    The study found that there are other CTA methods that can be used 
to provide more fine-grained input to HSI analysis and design 
activities. For example, there are CTA methods that provide a more 
detailed, second-by-second description of the mental processes (e.g., 
perceptual processes, attention processes, memory store and retrieval 
processes) involved in performing complex cognitive tasks such as 
operating a train. The study provides descriptions and citations to 
these recent attempts to examine the microlevel (second-by-second) 
information processing involved in operating the train over a route. 
These more microcognitive-level analyses can be particularly helpful 
for analyzing attention and workload demands at an in-depth level.
    In the emerging issues section of the report, the study explained 
that if a railroad chooses to transition to one-person operations based 
on technology such as PTC, a proper HSI analysis would require that the 
railroad answer certain fundamental questions about the operation for 
the system designers. For instance, will the engineer still be 
responsible for manually operating the train? If not, when will the 
engineer manually control the train? When will the software 
(automation) system operate the train with the engineer acting as 
supervisor? And, when will the roles be blended? Answers to these 
questions may introduce additional concerns. For example, situational 
awareness and operator vigilance may become more of a concern when the 
engineer's role becomes more supervisory. If crew size is reduced to 
one person, how will the reduction in crew size impact safety when the 
one-person crew is used to relying on cooperative strategies with the 
second person that fosters shared situational awareness and creates 
safety nets?
    (6) ``Teamwork in U.S. Railroad Operations,'' A Conference, April 
23-24, 2009, Irvine, California, Transportation Research Board, Number 
E-C159, dated December 2011. The many authors of the research and 
reports are listed in the publication which can be found online at 
http://onlinepubs.trb.org/onlinepubs/circulars/ec159.pdf.
    This conference report discusses the key aspects of successful 
teams, such as train crews. The Transportation Research Board is a 
division of the National Research Council, and an independent adviser 
to the Federal government and others on scientific and technical 
questions of national importance. This particular conference drew upon 
the expertise of researchers and operating personnel concerned with 
human performance and human factors research issues related to railroad 
operations. The following is a summary of some of the relevant 
discussions in the conference report. The report contains citations to 
the research each presenter relied on in forming their analyses and 
conclusions.
    One central theme is that teams do not become expert without 
guidance. They must be trained according to the established scientific 
principles. But training alone is not enough. To facilitate its 
success, organizations must promote and reinforce teamwork behaviors. 
Long-term organizational commitment is crucial to demonstrating that 
teamwork training is not just a fad, but is a central component of 
company policies and procedures. In other words, there needs to be a 
``culture of teamwork'' embedded within the organization.
    Team performance can be improved when members effectively 
communicate. One effective example is when crews use periods of low 
workload to plan ahead, so that if a difficult situation arose, the 
explicit discussions become the basis for actions. Of course, a 
question implied from this report is that if the train crew consists of 
only one person, can the lone crewmember plan ahead during periods of 
low workload to the same extent as a crew of two or more persons who 
understand how to effectively communicate? Unfortunately, the 
conference report does not answer this implied question.
    There are five critical components of teamwork: Mutual performance 
monitoring, backup behavior, adaptability, team leadership, and team 
orientation. Although not addressed by the conference report, arguably 
three of these strengths of teamwork are lost when the team consists of 
only one person. Team orientation refers to a person's tendency to 
prefer working with others, which could certainly be problematic if a 
person with a team orientation is ordered to operate a train as a one-
person team. Mutual performance monitoring refers to the ability to 
keep track of fellow team members' work while carrying out their own, 
to ensure that everything is running as expected, and to ensure that 
they are following procedures correctly. Mutual performance monitoring 
is necessary in teams in order to prevent teams from making errors and 
enable teams to engage in backup behaviors. Backup behavior occurs when 
a team member recognizes that another team member is in need of aid and 
offers assistance. Backup behavior requires team members to know enough 
about other team members' responsibilities to anticipate their needs. 
Research has identified three types of backup behavior: (1) Providing 
feedback to improve performance, (2) assisting a teammate in performing 
a task, and (3) completing a task for a team member who is overloaded. 
The benefits of mutual performance monitoring and backup behavior are 
simply lost when the team consists of a single employee.
    One comment FRA heard during the RSAC Working Group meetings was 
that multiple person train crews could be less safe than a one-person 
crew because sometimes crewmembers distract each other from the train 
operation activities. This issue was addressed in the conference report 
with regard to a discussion of how expert teams perform versus non-
expert teams. An example was given of a train accident in which a 
student engineer was allowed to operate a train independently, 
receiving no guidance through supervisor role modeling or feedback 
prior to a collision. The incident was an exemplary prototype of a non-
expert team because not only were the crewmembers not trained 
adequately with effective feedback prior to the day of the accident, 
but also communication and coordination completely broke down between 
all team members directly before the incident. In contrast, expert 
teams have a clear and common purpose, as well as an understanding of 
each individual member's roles. It is that understanding that allows 
expert team members to anticipate each other's actions and back each 
other up when needed, as well as coordinate without explicit and 
lengthy communication. Furthermore, unlike non-expert teams, expert 
teams engage in a regular cycle of prebrief, performance, and debrief. 
This performance cycle engages the expert teams to identify high and 
low priorities, revise goals and plans, identify lessons learned, and 
evaluate whether the team is or is not effective both in performing the 
task and identifying the needs of team members. The research in the 
conference report concludes that the main advantage of developing 
expert teams is that they have higher levels of performance. For 
example, expert teams make better decisions and fewer errors, which in 
turn enable expert teams to have a higher probability of mission 
success.
    In yet another of the presentations in the conference report, an 
issue raised was whether internal and external

[[Page 13930]]

communications of train crewmembers could be captured to consider the 
impact of new technology, such as PTC, on crew interactions and 
performance. The report states that making the most of new technologies 
to improve efficiency while maintaining safety and augmenting 
effectiveness will always present challenges, but that prudent 
application of team science in general and of communications analysis 
in particular can both facilitate their achievement and enhance their 
utility. The report explains that those technologies place new demands 
on train crews in terms of tasks to be performed, skills required, and 
the size and mix of both onboard and distributed teams. FRA notes that, 
based on RSAC Working Group discussions, some railroads appear ready to 
reduce train crew size from two persons to one, upon implementation of 
PTC, under what FRA and the presenters of this report suggest would be 
a wrong presumption that with PTC there would be less tasks for the 
crew to do or the tasks would be easier to accomplish with a single 
person. The report counters that presumption and suggests that the 
impact is unknown until PTC is implemented and the impact it would have 
on a two-person crew is studied.

C. The Acknowledged Limitations of FRA Accident/Incident Reporting Data

    FRA's accident/incident data is derived from the agency's 
requirements for railroads to record and self-report specific 
information to FRA. The purpose of FRA's accident/incident 
recordkeeping and reporting regulation, contained in 49 CFR part 225, 
is ``to provide the Federal Railroad Administration with accurate 
information concerning the hazards and risks that exist on the Nation's 
railroads. FRA needs this information to effectively carry out its 
statutory responsibilities under 49 U.S.C. chapters 201-213. FRA also 
uses this information for determining comparative trends of railroad 
safety and to develop hazard elimination and risk reduction programs 
that focus on preventing railroad injuries and accidents.'' 49 CFR 
225.1. Over the life of the part 225 regulation, FRA has amended these 
requirements in an effort to require railroads to improve the accuracy 
of their reporting. See 75 FR 68862, 68863-64 (providing an overview of 
part 225 and recent amendments). FRA does not investigate every 
reportable accident/incident, but frequently conducts audits and 
investigations to ensure that railroads are accurately reporting. In 
2013, FRA conducted its own investigation of 89 train accidents/
incidents that FRA determined might have greater significance to the 
industry or the general public. FRA did not have the resources to 
investigate all of the 1,781 train accidents/incidents railroads 
reported to FRA in 2013. FRA is not aware that any of the accidents/
incidents it investigated involved a one-person crew operation.
    Part 225's central provision requires that each railroad subject to 
part 225 submit to FRA monthly reports of all accidents and incidents 
that meet FRA's reporting criteria. 49 CFR 225.11. Railroad accidents/
incidents are divided into three groups, each of which corresponds to 
the type of reporting form that a railroad must file with FRA: (1) 
Highway-rail grade crossing accidents/incidents (FRA Form F 6180.57); 
(2) rail equipment accidents/incidents (FRA Form F 6180.54); and (3) 
deaths, injuries and occupational illnesses (FRA Form F 6180.55a). See 
49 CFR 225.19. For the reporting of deaths, injuries, and occupational 
illnesses that result from an event or exposure arising from the 
operation of a railroad, the FRA forms do not request that the railroad 
record the number of crewmembers as that distinction is unlikely to be 
pertinent to accident analysis for those types of accidents/incidents; 
instead, FRA only requires that the railroad report which crewmembers 
were injured, killed, or suffered an illness. Thus, it is impossible to 
search FRA's accident/incident database for those forms to find whether 
a death, injury, or occupational illness did arise from the operation 
of a train with a one-person crew. Meanwhile, for the first and second 
group, highway-rail grade crossing accidents/incidents and rail 
equipment accidents/incidents, the FRA forms record the number of 
crewmembers. The highway-rail grade crossing accidents/incidents form 
records the number of people on the train at the time of the accident 
(both passengers and train crew). The rail equipment accidents/
incidents form records the number of crewmembers in boxes 40-43, with 
four different work positions listed: Engineer/Operator, Fireman, 
Conductor, and Brakeman. Obviously, FRA does not see as many Fireman 
and Brakeman listed as it once did, but they are still occasionally 
listed. The railroad must record the number of each type of crewmember 
that was working on the train at the time of the accident/incident. 
Thus, FRA is able to search the records to determine how many train 
crewmembers were assigned to a train that was involved in a reportable 
rail equipment accident/incident or a grade crossing accident.
    FRA is considering including in the final rule a requirement to 
report train crew size data in the deaths, injuries, and occupational 
illnesses accident report form. Such a regulatory change would allow 
FRA to have crew staffing information and to better assess the 
performance of train crews with less than two members. The benefits of 
this proposed change would be evaluated while FRA conducts a future 
comprehensive reform of its accident/incident reporting forms to 
modernize and meet data needs. As it relates to crew staffing and its 
characteristics, the impetus for this effort originated during the RSAC 
Working Group meetings regarding train crew size. This effort made it 
clear that there is a need to improve both the quality and the scope 
related to the collection of information of train crew staffing safety. 
As presented above, existing data forms do collect information about 
the number of crewmembers involved in a train accident. However, 
current reporting requirements do not provide all the information 
required to assess the safety performance of crews with less than two 
members. Likewise, FRA data needs outside of this rulemaking are 
numerous and need to be contemplated. For these reasons, FRA is engaged 
in an effort to review and determine what data collection practices 
need to be changed. However, FRA also concluded that this effort has to 
be thoughtful and broad to ensure it collects high quality data. FRA is 
considering how to prioritize items and decide what data to collect on 
items such as ECP brakes, PTC, or crude oil or ethanol transportation 
by rail. All these matters are of high priority and would have to be 
considered in a comprehensive manner to minimize information collection 
burden on the regulated community. This NPRM is useful to request 
public input as it pertains to crew staffing data and determine what 
type of information collection needs to be refined or what 
clarification in the part 225 guidance needs to be amended to ensure 
forms are completed correctly. This input would be used to inform a 
future rulemaking that would propose changes to part 225, FRA Form F 
6180.54, and its related guidance.
    For the benefit of the RSAC Working Group, FRA reviewed nearly 12 
years of railroad safety data between January 2002 and October 2013 by 
searching the F 6180.54 rail equipment accidents/incidents forms. FRA 
manually reviewed 1,443 reports and applied several filters to 
eliminate redundant reports, other than human-factor caused

[[Page 13931]]

accidents/incidents, accidents/incidents that occurred within railroad 
yards, and accidents/incidents involving railroad maintenance 
equipment. After applying these filters, FRA was left with accidents/
incidents that railroads informed FRA were caused by human error and 
involved a one-person crew operating on main track. The result of this 
review was that FRA identified 28 human-factor caused accidents/
incidents involving one-person crews operating conventionally and four 
accidents/incidents involving remotely controlled operations on main 
track. Since FRA does not capture data that would provide information 
regarding the total operating mileage for one-person crew operations in 
the United States (or even two-person operations), it is impossible for 
FRA to normalize the data and be able to compare the accident/incident 
rate of one-person operations to that of two-person train crew 
operations to see if one-person operations appear safer or less safe. 
Additionally, one-person operations over this period are not constant 
and use of one-person train crews for operations on main track appear 
to be increasing over the past several years, so there are additional 
factors that could make historical rates less of an indicator of 
current or future rates.
    The accident/incident reports involving one-person train crews also 
do not clearly help determine that the accident/incident would have 
been prevented by having multiple crewmembers. FRA requires railroads 
to determine the primary cause of a rail equipment accident/incident 
and enter a primary cause code on the form. If possible, railroads are 
also encouraged to enter a contributing cause code on the form as well. 
FRA does not have a cause code that a railroad could use to indicate 
that a one-person train crew caused the accident. In other words, there 
is no cause code that directly suggests that the reporting railroad 
believes the accident/incident could have been prevented by having a 
second crewmember. Even if FRA were to add such a code, a railroad 
would have a disincentive to use it as doing so might suggest that the 
railroad employ more crewmembers, increasing wage costs. Of course, if 
a railroad thought that only having one person was a factor, FRA has a 
cause code, M599, that may be used when no other cause codes apply. If 
M599 is used, the railroad must describe the events in a narrative. 
Furthermore, FRA relies on each railroad to self-report a description 
of the accident/incident, as well as the primary and contributing 
causes. Without an accurate description and identification of the 
causes, FRA personnel reviewing the report might not believe there is 
the potential that a second person could have helped prevent the 
accident/incident.
    After RSAC failed to reach consensus, FRA conducted additional 
accident/incident data searches in an effort to determine whether there 
were any trends that could be identified. FRA looked at whether any 
data might have suggested a safety problem with MMA, which operated the 
train in the tragic Lac-M[eacute]gantic accident described earlier, or 
with any problems with shortline railroads that were similar in size to 
MMA. Rather than compare MMA to the entire railroad industry which 
could provide a distorted result (as just a few accidents on a 
shortline might make it look like it has a high accident rate compared 
to a major railroad that operates many more miles over the course of a 
year), FRA compared MMA to its shortline peers. In 2012, the last full 
year before the accident, MMA had about 160,000 total miles. FRA 
reviewed its accident/incident database from 2003 through April 2014 
and compared MMA to the 52 other railroads that had total miles in 2012 
of between 100,000 and 200,000. FRA also looked at the data to see if 
it could determine the number of accidents for each of these 
shortlines, with and without one-person crews. For the one-person 
crews, FRA was able to isolate train accidents where hazardous 
materials were in the train, and eliminate remote control operations 
and any operation that occurred on yard track.
    The data concerning MMA and its shortline peers revealed that 
nearly half of the 52 shortlines (25, or 48 percent) had at least one 
accident where hazardous materials were in the train, but that MMA had 
the worst record in this category. MMA had 18 accidents, which was 
twice as many as its closest shortline peer. MMA's 18 accidents 
accounted for 23 percent of the 78 total number of accidents in its 
shortline peer group where hazardous materials were in the train. 
Although only 4 of these 78 accidents/incidents occurred with a one-
person crew (about 5 percent), 2 of the 4 occurred on MMA. Looking at 
all one-person crew train accidents in which a MMA shortline railroad 
peer reported the cause to be a human factor failure, MMA reported no 
such accidents and 9 of MMA's shortline peers reported a total of 13. 
Consequently, while it can be determined that the two MMA one-person 
crew accidents involving hazardous materials in the train were not 
reported by MMA to be caused by a human factor failure, the data 
suggests that MMA stood out as having significantly more accidents 
involving trains carrying hazardous materials than its peers.
    When looking at all train accidents in which a MMA shortline 
railroad peer reported the cause to be a human factor failure, MMA 
reported four such accidents, 4 of MMA's shortline peers also reported 
4 such accidents, 13 of MMA's shortline peers reported more than 4 such 
accidents, and 39 of MMA's shortline peers, including MMA, reported a 
total of 153 human factor failure caused accidents. Including MMA, over 
70 percent of MMA's shortline peers had at least one train accident 
caused by human factor failure, and 25 percent had more human factor 
failure train accidents than MMA. Thus, MMA did not stand out among its 
peers as having a much higher number of accidents attributed to human 
factor failure. FRA believes that even in cases where problematic one-
person train operations cannot be identified by their number of past 
human factor accidents, FRA would be able to identify such operations 
with other information including inspection reports, and the railroad's 
description of operations and contingency plans to evaluate the safety 
culture and overall emergency preparedness to handle one-person 
operations.
    If FRA were only to focus on the one-person crew safety data prior 
to the Lac-M[eacute]gantic accident, it would have been difficult to 
make the case that MMA did not have a good enough safety record to 
operate one-person train crews as MMA did not have any accidents/
incidents that it attributed to human factor failure of the one-person 
train crew. It also only had 2 one-person crew accidents involving 
hazardous materials in the train over the more than 10-year period 
analyzed. However, if this NPRM is finalized, FRA could use the data 
suggesting MMA had significantly more accidents involving trains 
carrying hazardous materials than its peers to have MMA address safety 
issues to reduce the overall high number of accidents before providing 
FRA approval of the continuance of a one-person train operation or 
approval for a new one-person operation. See 49 CFR 218.133 and 
218.135.
    Furthermore, this is an example of when the limitations of FRA's 
safety data would not help make a direct case that one-person 
operations are less safe than multiperson train crews but may still 
provide some possible basis for this proposed rule. That is, FRA's 
safety data suggests that a particular railroad that has a higher rate 
of train accidents

[[Page 13932]]

where hazardous materials are in the train could find itself more 
likely to continue that trend regardless of the size of the crew, 
assuming the railroad takes no action to further prevent such accidents 
from occurring. And if such accidents were to eventually occur, FRA has 
found that multiperson train crews are better equipped to protect each 
other, other railroad workers, railroad equipment, the environment, and 
the general public, because they have more options available to them 
for taking mitigation measures than a single crewmember. Thus, a 
derailment might occur, regardless of the number of train crewmembers, 
but it might be the actions of the train crew post-accident that 
determine the severity of the damages or injuries that result. This may 
be especially so when hazardous materials are present in the train or 
are in other trains operating on the same or adjacent track.
    While data and information about one-person operations around the 
world are limited, evidence found by FRA and explained in the 
Regulatory Impact Analysis (RIA) that accompanies this rulemaking 
indicates that the safety records of these foreign operations are 
acceptable. FRA also found that most of these foreign operations would 
meet the requirements in one of the exceptions of the proposed rule 
(due to their size), and that most foreign governments have a role in 
the implementation of one-person crews (where they exist). Another 
factor to consider is that railroad workers in other countries have a 
more predictable work schedule, fewer working hours per week, and more 
opportunities to rest. See RIA Table 4. Nonetheless, FRA requests 
public comment on the lessons learned from these nations to implement 
one-person crews under a balanced regulatory oversight. Additionally, 
FRA requests public input about the safety performance of passenger and 
freight rail operations with less than two people in other countries. 
This is important because FRA could not find specific data on the 
safety records of international one-person crew passenger operations 
that do and do not meet the proposed exceptions.
    Finally, railroads have achieved an improving safety record during 
a period in which the industry largely employed two-person train crews. 
FRA has no empirical evidence to suggest a causal relationship between 
these variables rather than a correlative one. In fact, it is possible 
that one-person crews have contributed to the improving safety record. 
Comparing calendar year 2004 to 2013, total accidents/incidents are 
down over 21.5 percent and human factor-caused train accidents/
incidents are down over 50 percent. Over that same period, the number 
of reportable train accidents/incidents has decreased from 3,385 in 
2004 to 1,781 in 2013, a decrease of over 47 percent. The normalized 
frequency index of 2.380 per one million train miles for 2013 
represents the safest year in that 10-year period, and is a decrease of 
nearly 46 percent from 2004. Meanwhile, it is impossible to keep data 
on how many accidents/incidents were prevented by having a properly 
trained two-person crew, where each crewmember understood each other's 
duties and together could perform as an expert team. Thus, although the 
limitations of the data collected make it difficult to make a 
straightforward finding that one-person operations are more or less 
safe than two-person operations, FRA's approval process in this NPRM is 
expected to provide some insight into exposing dangerous operations and 
lead to safety improvements for those railroads that want to reduce the 
number of train crewmembers to less than two.

D. FRA's Regulations Were Designed for at Least Two Crewmembers

    During the Working Group's first meeting, FRA presented the 
agency's position that many of the Federal rail safety regulations were 
written with the expectation that each train would have multiple 
crewmembers. That does not mean that FRA expects that at least two 
crewmembers will be in the cab of the controlling locomotive at all 
times, which may surprise some people who are not familiar with a wide-
variety of railroad operations. A typical freight locomotive is founded 
with the expectation that multiple crewmembers could be working in the 
cab of the controlling locomotive. However, there are many operating 
circumstances in which a second crewmember could more effectively 
safeguard the operation by being somewhere other than the locomotive 
cab of the controlling locomotive and it would be difficult for a one-
person train crew to perform the same operation. Because a railroad's 
operating rules and practices for a one-person operation will be a bit 
different than for multiple person train crews, some safeguards will be 
lost and new methods of operation will be developed to try and plug any 
regulatory holes. Without a crew size regulation, railroads would be 
free to jettison certain requirements that apply to multiple person 
crews without specifically being required to fully consider the 
potential safety repercussions. The following background explains some 
of the Federal rail safety requirements that will not work as intended 
when one-person train crews are deployed.
1. Difficulty Providing Point Protection for Shoving or Pushing 
Movements
    For shoving or pushing movements, a second crewmember routinely 
provides point protection where the controlling locomotive is the 
furthest car in the train from the leading end. See 49 CFR 218.99. In 
that case, a second crewmember riding the leading end or being on the 
ground in radio communication with the train's locomotive engineer may 
be the safest practice. A one-person train crew, operating any train of 
a significant length, may have difficulty determining that the track is 
clear for the shoving or pushing movement without the assistance of 
another person. Shoving blind, i.e., not protecting the movement, would 
violate the Federal rule.
    Passenger and commuter locomotives do not always have room for a 
second crewmember in the locomotive control compartment, but a second 
person may still be necessary to provide assistance for shoving or 
pushing movements. Pushing or shoving movements are routine operations 
and thus FRA's expectation is that few trains could perform these 
movements safely with only a one-person crew. We note, however, that 
the point protection rule permits use of cameras for performing these 
movements. See 49 CFR 218.99(b)(3)(i).
2. Complications Returning Switches to the Normal Position and Loss of 
Job Briefings
    In a typical multiple crewmember operation, the locomotive engineer 
would rarely be expected to leave the cab of the controlling locomotive 
to perform operational work. However, in a one-person operation, unless 
all switches can be operated from the locomotive or by a non-crewmember 
in accordance with a railroad's operating procedures, the locomotive 
engineer would encounter logistical difficulties in throwing some 
switches and then returning those switches and locking them in the 
normal position after use. See 49 CFR 218.103 through 218.107. If the 
one-person crew were to throw the switches and return them to the 
normal position, the person would need to walk back and forth the 
length of the train each time a switch was returned to the normal 
position.
    The Federal regulations concerning throwing switches anticipate 
that the crewmembers will conduct job briefings ``before work is begun, 
each time a work plan is changed, and at completion of

[[Page 13933]]

the work.'' See, 49 CFR 218.103(b)(1). The regulation does not 
anticipate that a train crew consisting of one-person would be exempt 
from the job briefing requirements, although it seems absurd to think 
that any one-person train crews would need to hold job briefings with 
themselves. However, one of the most important benefits of a job 
briefing, with each crewmember's input, is potentially lost when there 
is a one-person operation. That is, a lone crewmember cannot benefit 
from another crewmember's experience about the best way to safely 
perform the operation. Under routine operations, one-person crewmembers 
will decide for themselves how best to proceed. The one-person 
crewmember will also assess the factual circumstances of a situation by 
themselves, without the benefit of any additional crewmembers' 
observations. Although a railroad could implement procedures to address 
certain types of operations that can aid a one-person crew, such a 
briefing may not be able to duplicate all of the information that a 
fellow crewmember could.
3. Concerns Protecting Train Passengers in an Emergency
    During the first Working Group meeting, FRA made a presentation 
regarding FRA's passenger train emergency preparedness rule (49 CFR 
part 239) and explained how multiple train crewmembers are typically 
necessary in order to fulfill the purpose of the rule. The purpose of 
the passenger train emergency preparedness rule ``is to reduce the 
magnitude and severity of casualties in railroad operations by ensuring 
that railroads involved in passenger train operations can effectively 
and efficiently manage passenger train emergencies.'' 49 CFR 239.1(a). 
There are numerous ways that crewmembers, other than the locomotive 
engineer, can assist the passengers in an emergency. Emergencies can 
require evacuations in various types of circumstances where a trained 
person would be helpful to guide passengers away from danger. For 
example, passengers that self-evacuate might not realize that they 
could step on an electrified rail or be struck by a train approaching 
on an adjacent track. Evacuations in remote areas, in tunnels, or on 
bridges also pose significant dangers to passengers and are places 
where crewmembers are required to be trained on safe methods to assist 
passengers. A one-person crew would have significant difficulty 
coordinating any type of evacuation, especially in difficult terrain, 
if the crewmember cannot walk from car to car, or if there are large 
numbers of passengers. Furthermore, although signs for train passengers 
can be useful, signs have limited value for reliably instructing 
passengers on when it is safe or unsafe to evacuate under all 
conditions.
4. Deterrence of Electronic Device Distraction and Observing Alcohol or 
Drug Impairment; Reduced Possibility of Co-Worker Referrals
    Another issue that could be a concern with a one-person train crew 
is whether there is adequate supervision to determine that the person 
is not reporting for duty under the influence of or impaired by alcohol 
or drugs. With multiple train crewmembers, a second crewmember might 
suspect that a person has used, or is using or possessing alcohol or 
drugs on railroad property. Working with a potentially impaired co-
worker is a safety hazard that puts other crewmembers in direct 
conflict with one another. For that reason, FRA has developed minimum 
standards for co-worker report policies that allow the employee 
suspected of abuse to get treatment and rehabilitation, with the 
potential to return to railroad safety-sensitive work under certain 
conditions. See 49 CFR 219.405 and 219.407 (permitting a railroad to 
implement an alternate co-worker policy with the written concurrence of 
the recognized representatives of a particular class or craft of 
covered employees). The co-worker referral policy makes it more 
palatable for an employee to turn in a potentially impaired co-worker, 
knowing that the co-worker will have an opportunity to get professional 
help without the co-worker necessarily losing his or her job, and not 
having to work side-by-side with that impaired co-worker.
    Although a one-person crew may be subject to pre-employment 
testing, random testing, and testing for cause, each of these types of 
tests do not apply to shortline railroads which have a total of 15 or 
fewer employees who are covered under the hours of service laws and do 
not operate on the tracks of any other U.S. railroad. Additionally, 
even if a one-person crew is potentially subject to each of those 
tests, the person will not be tested before, during, or after every 
tour of duty. Thus, a one-person crew has more opportunity, especially 
on the smallest shortline operations, to conceal a drug or alcohol 
violation, than the person would if there were two or more crewmembers.
    Similarly, without a second crewmember to monitor the sole 
crewmember's attentiveness, there is a risk that more locomotive 
engineers will be tempted to use cell phones and other prohibited 
electronic devices when nobody is around to observe them. When FRA 
issued a final rule restricting railroad operating employees from using 
cellular telephones and other electronic devices, FRA noted that 
distracted driving impacts all transportation modes because these 
devices have become ubiquitous in American society. See 75 FR 59580, 
59582, Sep. 27, 2010, promulgated at 49 CFR part 220, subpart C. In the 
justification for the rulemaking, FRA stated that it discovered 
numerous examples of the dangers posed by distracting electronic 
devices and described five rail accidents indicating the necessity for 
the restrictions. FRA's electronic device distraction rulemaking also 
stated that ``it is difficult to identify distraction and its role in a 
crash'' if it goes unreported by the operator of the vehicle. 75 FR at 
59582 (describing how data on the number of motorcoach crashes may 
potentially understate the true size of the problem because ``self-
reporting of negative behavior, such as distracted driving, is likely 
lower than actual occurrence of that behavior). Thus, a second 
crewmember could act as both a deterrent to any crewmembers using 
electronic devices in a prohibited manner and as a witness reporting 
such inappropriate electronic device usage during an accident/incident 
investigation.
5. Complicating Radio Communication Procedures
    Some radio and wireless communication requirements were written 
with the expectation that there would be at least two crewmembers on a 
train. For example, FRA requires that an employee copying a mandatory 
directive received by radio transmission shall not be an employee 
operating the controls of moving equipment. See 49 CFR 220.61. Copying 
a mandatory directive would clearly be distracting to a person who was 
attempting to operate a train simultaneously, which explains why it is 
strictly prohibited. Certainly, a one-person train crew could stop a 
train to receive a mandatory directive by radio, but there is a 
question whether railroads have thought through all the safety 
implications of stopping the train. The train may be going at a high 
enough speed that it would take over a mile to stop the train, or the 
train might be in a territory where a steep grade or other physical 
conditions make stopping the train logistically difficult. One would 
hope that the mandatory directive would not impact the train operation 
immediately before the one-person crew

[[Page 13934]]

could safely stop the train to receive the transmission.
    The different ways a multiple person crew can handle a radio 
communication failure also is indicative of how an FRA regulation was 
written with the expectation that there would be more than one train 
crewmember. Under most circumstances, FRA's railroad communication 
regulation requires a train to have a working radio in each occupied 
controlling locomotive, and in a second locomotive for purposes of 
``communication redundancy.'' 49 CFR 220.9. If the controlling 
locomotive's radio fails en route, the crewmembers have the back-up 
radio in the second locomotive to use to avoid a radio blackout.
    Trains with multiple crewmembers have an option not available to 
one-person crews. In cases of radio malfunction, it may be necessary to 
have a crewmember located in the second locomotive to monitor the 
dispatcher's communications as long as the crewmembers can otherwise 
communicate while the train is moving. However, if the train was a one-
person operation, the lone crewmember would certainly not be able to 
operate from a locomotive not on the leading end, so the one-person 
crew would have to either try and swap out the locomotives so that the 
one on the leading end had a working radio to communicate with the 
dispatcher, or the one-person crew would need to find a way to notify 
the dispatcher as soon as practicable that radio communication has been 
lost. 49 CFR 220.38. With a multiple person operation, swapping the 
locomotives would likely involve a crewmember getting off the train and 
lining switches. Swapping the locomotives could be logistically 
difficult for a one-person crew depending on the track configurations 
encountered and the method of operation. Although a one-person crew 
could operate the train without a working radio to the nearest forward 
point where the radio can be repaired or replaced, doing so is not as 
safe an option as utilizing the redundant communication in the second 
locomotive with a working radio--an option more likely to be utilized 
with a multiple-person train crew.
6. Adding a Potential Safety Hazard to Highway-Rail Grade Crossing 
Activation Failures
    The general public is directly impacted when a highway-rail grade 
crossing fails to activate because that means motor vehicle traffic 
would not receive any warning of an approaching train. Protecting the 
public is paramount to train operation, and FRA requires that a train 
can only proceed through the crossing when other steps are taken to 
protect highway users from approaching trains. 49 CFR 234.105. If a 
railroad has enough time to arrange for an equipped flagger or a 
uniformed law enforcement officer to be at the crossing, then the train 
may proceed through the crossing without stopping, albeit at 
potentially a slower than normal speed depending on the number of 
flaggers/officers. However, if a railroad does not have enough time to 
make other arrangements, the only other method that will allow the 
train to proceed through the crossing is if the train stops prior to 
entering the crossing in order to permit a crewmember to dismount to 
flag highway traffic to a stop. The flagging crewmember is not allowed 
to reboard the train until the locomotive has completed its procession 
through the crossing. Hence, under FRA's regulations, a one-person crew 
could not stop and flag the crossing without a non-crewmember flagger 
or a uniformed law enforcement officer's assistance.
    Certainly, a railroad's on-time efficiency would be negatively 
impacted by the activation failure because a train with a one-person 
crew would have no choice but to wait until a flagger or officer 
arrived before proceeding through the crossing. Depending on the 
circumstances, the general public might also be negatively impacted. 
For example, if the train was forced to stop in a highly populated 
area, nearby citizens and businesses might be inconvenienced by the 
locomotive engine noise or exhaust fumes. Another concern is whether 
the train stopped clear of all other crossings. Highway users and local 
emergency responders may be significantly inconvenienced if the 
railroad and one-person train crew were unable to plan a safe place to 
stop the train without blocking other grade crossings. Planning a safe 
place to stop the train is typically considered a conductor's job, but 
with only one crewmember the one-person crew has no one else to help. 
Motor vehicle drivers or local emergency responders would not be given 
any advance warning of the blocked crossing or any information 
regarding when the crossing would no longer be blocked. Such poor 
planning can infuriate motor vehicle drivers and lead these drivers to 
take risks not to get caught waiting for a train the next time they see 
a grade crossing warning system begin to activate. In some cases, such 
poor planning could compromise the ability of local emergency services 
to respond. Thus, there is the potential for immediate and future 
repercussions when there is only a one-person train crew and no ability 
to quickly flag the crossing.

E. Defining the Crewmembers' Qualifications

    In this proposed rule, FRA chose not to define the duties of the 
two mandatory crewmembers. FRA previously fulfilled its statutory 
obligations to promulgate regulations requiring certain minimum 
standards for locomotive engineers and conductors. 49 U.S.C. 20135 and 
20163 and 49 CFR parts 240 and 242. FRA believes that each locomotive 
or train must have a crew that can perform all of the duties described 
by the qualifications requirements in the certification regulations for 
these two operating crewmembers. This can be accomplished with the 
assistance of technology and sometimes with the assistance of one or 
more other safety-related railroad employees who are not recognized by 
the railroad as the train's conductor. In this background, FRA will 
reiterate the regulatory requirements, focusing on the existing 
limitations and acknowledging FRA's policy. This issue is raised 
because FRA may consider adding requirements in the final rule 
specifying minimum requirements for a second crewmember's 
qualifications, in the event that person is not a qualified conductor. 
There is a question of whether the rule might need to define the duties 
of a freight train second crewmember who is not a conductor differently 
from the duties of a passenger train second crewmember.
    Nearly every movement of a locomotive, whether or not the 
locomotive is coupled to other rolling equipment, requires that the 
operation be performed by a certified locomotive engineer. 49 CFR 240.7 
(defining ``locomotive engineer'' and allowing exceptions for movements 
of locomotives: (1) Within a locomotive repair or servicing area and 
(2) of less than 100 feet for inspection or maintenance purposes). 
Until technology is developed that might allow for the safe operation 
of locomotives or trains completely by computer automation, a person is 
needed to operate the locomotive or train, and that person is required 
to be certified pursuant to FRA's locomotive engineer regulation. The 
issue of whether a one-person crew can operate safely is mainly an 
expansion of the role of a locomotive engineer to include some or all 
of the duties of a conductor, sometimes with the assistance of 
technology and sometimes with the assistance of one or more other 
safety-related railroad employees who are not

[[Page 13935]]

recognized by the railroad as the train's conductor.
    In the conductor certification final rulemaking, FRA recognized 
that there may be circumstances where a person is ``serving as both the 
conductor and the engineer.'' 76 FR 69802, 69809, Nov. 9, 2011 
(explaining that a person may hold both a locomotive engineer 
certification and a conductor certification, and establishing rules for 
when revocation of each certification is appropriate under 49 CFR 
242.213). In doing so, FRA recognized the realities of remotely 
controlled locomotive and train operations which often involve yard or 
yard-type operations, travel to and from yards, or travel to service 
customers, without a second crewmember being present. See 49 CFR 
242.213(d). Similarly, FRA permits a certified conductor attached to a 
train crew in a manner similar to that of an independent assignment 
when a certified conductor is not accompanying a locomotive engineer or 
the engineer is not dual conductor/engineer certified. However, FRA 
expressly noted in the NPRM that the ``conductor certification 
regulation, including section 242.213, be neutral on the crew consist 
issue [and that] [n]othing in . . . part 242 should be read as FRA's 
endorsement of any particular crew consist arrangement.'' 76 FR 69166, 
69179, Nov. 10, 2010. This disclaimer was made to facilitate industry-
wide discussion on the conductor certification rulemaking and foster a 
potential consensus recommendation from FRA's Federal advisory 
committee, without the conductor rule becoming a referendum on the 
issue of crew size. Thus, although portions of the conductor rule could 
be read to suggest FRA acceptance of a variety of one-person crew 
operations, FRA's explicit disclaimer shows that the agency did not 
intend for the conductor rule to be that sort of proclamation.
    FRA's foremost concern is that a passenger railroad will have one 
person in the crew who is dual certified as both a locomotive engineer 
and a conductor, but a second person may be lacking many of the 
relevant qualifications normally associated with a passenger conductor. 
If a second passenger train crewmember lacks too many of the 
qualifications of a conductor, the second person may not be truly 
helpful in emergency situations or even routine rail operations. The 
potential for creating foreseen and unforeseen problems with using a 
second passenger crewmember who is not conductor qualified is 
disconcerting. For these reasons, FRA encourages interested parties to 
comment on whether FRA should address this issue in the final rule. For 
example, FRA suggests that a second passenger crewmember who is not a 
conductor should be qualified on: (1) The signals to be encountered, 
including the name and possible indications; (2) the physical 
characteristics of the territory to be operated over; (3) flagging; (4) 
railroad operating rules (49 CFR part 218); (5) railroad radio and 
communications rules (49 CFR part 220); (6) passenger equipment safety 
standards (49 CFR part 238); and, (7) passenger train emergency 
preparedness (49 CFR part 239). Currently, FRA has enforced a safe 
course through the approval process requirement in the passenger train 
emergency preparedness rule. 49 CFR 239.201. Although FRA may continue 
to use the emergency preparedness approval process in this manner, the 
passenger railroad industry or public might benefit from a clear set of 
requirements for the qualification of a second train crewmember.
    FRA has similar concerns about a second freight train crewmember 
who is not a certified conductor. A railroad might employ a brakeman or 
other operating crewmember who lacks the versatility of a conductor, 
which could raise questions regarding the safety of such a two-person 
operation. Similar operational questions could arise with the use of a 
person who is more like a utility employee (see 49 CFR 218.22) than a 
crewmember who is assigned to a train. There are certainly some duties 
that a utility employee can perform for a train crew that would 
typically be classified as the responsibility of a freight conductor. 
However, because the utility employee is neither in the locomotive cab 
with the locomotive engineer or in near constant radio communication 
with the locomotive engineer while the train is moving, the utility 
employee cannot be deemed a replacement for all of the conductor's 
duties and benefits. In order to address safety concerns with the use 
of a second crewmember who is not a certified conductor, FRA seeks 
comments on whether the final rule should identify specific minimum 
qualifications for freight train crewmembers that lack all of the 
qualifications of a conductor. Minimum requirements for a second 
freight train crewmember who is not a certified conductor might 
include: (1) Knowledge of railroad rules and safety instructions; (2) 
railroad operating rules particular to handling equipment, switches, 
and fixed derails (49 CFR part 218, subpart F); (3) railroad radio and 
communications rules (49 CFR part 220); and, (4) brake system safety 
for freight trains and equipment, including end-of-train devices (49 
CFR part 232).
    FRA requests public comment on how railroad operations can and do 
safely and efficiently comply with these regulations with one-person 
crews or autonomous trains. Are there particular operational contexts 
in which compliance using one-person crews is particularly difficult or 
poses greater safety risks? What risk mitigating measures will 
railroads use to safely and efficiently comply with these regulations 
using one-person crews? Should any of these regulations be revised to 
allow one-person crews to operate safely and efficiently?

III. RSAC Overview

    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of State Rail Safety Managers (ASRSM);
Association of Tourist Railroads and Railway Museums (ATRRM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA); *
Fertilizer Institute;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA); *
League of Railway Industry Women; *
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women; *
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association (NRC);
National Railroad Passenger Corporation (Amtrak);

[[Page 13936]]

National Transportation Safety Board (NTSB); *
Railway Passenger Car Alliance (RPCA)
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte; *
SMART Transportation Division (SMART TD)
Transport Canada; *
Transport Workers Union of America (TWU);
Transportation Communications International Union/Brotherhood of
Railway Carmen (TCIU/BRC);
Transportation Security Administration (TSA).

* Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force, or other subgroup, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to RSAC for a 
vote. If the proposal is accepted by a simple majority of RSAC, the 
proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff play an active 
role at the working group level in discussing the issues and options 
and in drafting the language of the consensus proposal, and because the 
RSAC recommendation constitutes the consensus of some of the industry's 
leading experts on a given subject, FRA is often favorably inclined 
toward the RSAC recommendation. However, FRA is in no way bound to 
follow the recommendation and the agency exercises its independent 
judgment on whether the recommended rule achieves the agency's 
regulatory goals, is soundly supported, and is in accordance with 
applicable policy and legal requirements. Often, FRA varies in some 
respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA resolves the issue(s) through traditional rulemaking 
proceedings or other action.

IV. No Recommendation From the RSAC Working Group

    On August 29, 2013, the RSAC accepted a task (No. 13-05) entitled 
``Appropriate Train Crew Size.'' The statement clarified that ``[i]n 
light of the recent Canadian train incident and the subsequent 
emergency directive issued by Transport Canada, FRA believes it is 
appropriate to review whether train crew staffing practices affect 
railroad safety.'' FRA identified four purposes of this task, which 
were all variations on requests for RSAC to evaluate whether and how 
crew redundancy affects railroad safety and when crew redundancy should 
be deemed necessary. Crew redundancy is the idea that a second 
crewmember can confirm for the locomotive engineer important 
information thereby providing a second layer of assurance that the 
train is being operated in accordance with all applicable rules, 
procedures, practices, restrictions, and signal indications. However, 
the second crewmember's responsibilities are not just passive in a 
confirming way. The second crewmember can provide redundancy by taking 
the lead on tasks that free the locomotive engineer to focus on the 
engineer's core role of train handling.
    The task statement specified that RSAC was expected to look at a 
list of FRA rail safety regulations to evaluate whether and how crew 
size impacts rail safety. The statement also asked RSAC to review 
published studies and reports, as appropriate. FRA provided the five 
FRA-sponsored studies, as well as the one TRB conference report, each 
of which were described previously in this preamble. In reviewing these 
materials, FRA was hoping that RSAC would be able to address the 
following issues in its recommendations report:
     Report on whether there is a safety benefit or detriment 
from crew redundancy, including an analysis of observed safety data and 
outcomes from current crew deployment practices.
     Review existing regulations and consider the impact of 
crew size on the performance of any task or activity.
     Report on the costs and benefits associated with crew 
redundancy.
     If appropriate, develop recommended regulatory language or 
guidance documents regarding crew size requirements that enhance the 
safety of railroad operations by providing enhanced regulatory 
redundancy. In considering the development of regulatory language, 
specifically consider the value of regulatory redundancy in terms of 
crew size as it relates to trains or vehicles identified by the group 
responsible for Task Number 13-02 (i.e., an RSAC task to identify types 
and quantities of hazardous materials for special handling as a result 
of reviewing the Lac-M[eacute]gantic accident) as requiring special 
handling and/or operational controls, and if appropriate develop 
recommended regulatory language specific to these railroad operations.
    Furthermore, in order to accommodate some RSAC members, RSAC agreed 
to consider other issues that have some arguable connection to the crew 
size issue. These other issues were to consider (1) the appropriate 
role and impact of technological advances on crew size and crew 
deployment and incorporate these into any recommendation developed, (2) 
PTC and Remote Control Operations or other operations where crew 
deployment practices or the use of technology may enhance the safety of 
operations, and (3) the application of a System Safety Program to these 
issues.
    In addition to FRA, the following organizations contributed 
members:

    APTA, including members Capital Metropolitan Transportation 
Authority (CMTA), Keolis North America, Long Island Rail Road 
(LIRR), Massachusetts Bay Commuter Railroad Company (MBCR), Metro-
North Railroad (MNCW), North County Transit District (NCTD), 
Regional Transportation District (RTD), and San Joaquin Regional 
Rail Commission;
     ASLRRA, including members from Central California 
Traction Company (CCT), Farmrail System (FMRC), Genesee & Wyoming 
Inc. (GNWR), Indiana Rail Road Company (INRD), OmniTRAX, Pinsly 
Railroad Company, and WATCO Companies, Inc. (WATCO);
     ASRSM, including members from the California Public 
Utilities Commission (CPUC);
     ATDA;
     ATRRM
     BLET;
     BMWED;
     BRS;
     NRC, including members from Herzog Transit Services 
(Herzog);
     SMART TD;
     TCIU/BRC; and
     TWU.

    The Working Group convened five times on the following dates in 
Washington, DC. Minutes of each of these meetings are part of the 
docket in this proceeding and are available for public inspection.

 October 29, 2013
 December 18, 2013
 January 29, 2014
 March 5, 2014
 March 31, 2014

    As the Working Group meeting notes in the docket reflect, FRA 
started the first meeting by providing an overview

[[Page 13937]]

of FRA's position on the crew size issue. Although FRA always enters 
any RSAC discussion with an agency position on the issue being 
discussed, FRA was quicker than in previous RSAC discussions to reveal 
its broad-based positions. Typically, FRA will start the first meeting 
with a free-form discussion of the topic, allowing the RSAC Working 
Group's members to brainstorm problems and a range of acceptable 
solutions. The typical approach works well when FRA is unsure of 
whether a regulation is necessary, there already is an informal 
consensus that action needs to be taken, or the Working Group knows FRA 
will regulate the issue because there is a statute mandating 
promulgation of a regulation. None of these scenarios were present with 
the crew size issue. For these reasons, FRA believed it needed to 
approach this RSAC differently by defining its broad position on 
appropriate train crew size at the beginning of the first meeting.
    During that first RSAC Working Group meeting, FRA presented some 
background on the crew size issue. FRA acknowledged that it had not 
previously felt the need to talk about crew size until recently for 
several reasons. Historically, crew size has been an issue for labor 
relations, and technology has enabled a gradual reduction in the number 
of train crewmembers from about five in the 1960s to two in 2014. Four 
major technological breakthroughs were mentioned in FRA's presentation 
that led to the historic train crew size reductions: (1) The phase out 
of steam locomotives allowed locomotives to be operated without crew 
known as fireman dedicated to keeping the engine fed with coal, (2) the 
introduction of portable radios made it easier to transmit information 
from a crewmember at the far end of the train to the leading end, (3) 
the end-of-train device replaced the need for one or more crewmembers 
to be at the rear of a train on a caboose to monitor brake pipe 
pressure, and (4) the development of improved train control devices 
helped automate safer operations in case of human error. Furthermore, 
FRA raised another significant technological innovation that has become 
widespread over the last 20 years; that is, remotely controlled 
locomotive operations utilizing only a one-person crew for switching 
service have become commonplace.
    FRA told the Working Group that the agency's position on 
appropriate crew size is that: (1) Railroad safety is enhanced through 
the use of multiple crewmembers, (2) it is difficult to comply with 
current safety regulations and operating rules when operating with a 
one-person crew, (3) FRA's safety regulations were written with at 
least a two-person crew in mind and that operating with a one-person 
crew may, in some cases, compromise railroad and public safety, and (4) 
a second crewmember provides safety redundancy and provides a method of 
checks and balances on train operations. For all these reasons, FRA 
took the position that it needs to have some oversight of train crew 
size so that it can protect railroad employees and the general public.
    FRA then explained its broad position on establishing train crew 
size requirements, explaining that the agency wanted the Working Group 
to make recommendations that would establish safe practices for both 
two-person train operations and those with less than two-persons. For 
instance, FRA took the negotiating position that the Working Group 
should develop a recommendation with a baseline of a minimum two-person 
crew for freight and passenger trains. The Working Group was told that 
FRA wanted to hear about current one-person crew operations that have 
been safely conducted so that those exceptions to a two-person standard 
could be carved out in the RSAC's recommendations. FRA also expressed 
an interest in offering to provide for a special approval process in a 
crew size regulation that would allow FRA to quickly and efficiently 
provide review and approval of any train crew arrangement that could 
not meet any easy to define specific exclusions. In order to ensure 
reasonable oversight, FRA suggested that a special approval would be 
granted based on whether the railroad's petition demonstrated an 
appropriate level of safety based on a combination of safeguards 
offered by shoring up operating procedures and implementing proven 
technologies. FRA noted that this was a generous compromise position, 
as FRA was not taking an absolute position that all trains must be 
operated with a two-person crew because it has the expertise to 
recognize accepted safe practices.
    FRA's broadly stated negotiating position at the Working Group 
meetings was also constructed based on feedback recently received from 
two railroad associations participating as RSAC members. In response to 
Emergency Order 28, which was issued after the Lac-M[eacute]gantic 
accident, AAR reported to FRA that ``Class I railroads currently use 
two-person crews for over-the-road mainline operations.'' \3\ AAR was 
certainly looking to assure FRA that the major railroads were not 
conducting one-person trains transporting the types and quantities of 
hazardous materials specified in appendix A of Emergency Order 28. 
ASLRRA could not be specific about each of its members' policies on 
transporting hazardous materials with one-person crews. However, ASLRRA 
tried to assure FRA that its members had ``carefully consider[ed] the 
appropriate train and engine crew assignments to assure the highest 
degree of safety for the movements they operate.'' \4\ Taking the AAR 
and ASLRRA's comments at face value, FRA did not believe the agency's 
initial negotiating position differed greatly from the status quo. That 
is, the major railroads were already using two-person train crews for 
over-the-road mainline operations and the shortlines were carefully 
considering safety, presumably through a safety analysis of each 
operation prior to implementation--or so that was intimated.
---------------------------------------------------------------------------

    \3\ Letter from Mr. Edward R. Hamberger, President and CEO of 
AAR, to Mr. Joseph C. Szabo, FRA Administrator (Oct. 16, 2013), 
which has been placed in the docket to this rulemaking.
    \4\ Letter from Mr. Richard F. Timmons, President of ASLRRA, to 
Mr. Joseph C. Szabo, FRA Administrator (Oct. 17, 2013), which has 
been placed in the docket to this rulemaking.
---------------------------------------------------------------------------

    Despite the AAR and ASLRRA's publicly stated positions on crew 
size, it was clear from the first meeting that the members of these 
associations were opposed to RSAC making any recommendation that 
provided FRA with oversight on crew size issues. AAR stated at that 
first meeting that there is no safety justification for FRA to address 
train crew size. ASLRRA took the position that because there have been 
very few, if any, accidents involving a one-person crew, and management 
has been very responsible regarding crew size, that FRA should not 
dictate safety regulations on the subject. FRA interpreted that 
unwillingness as an indication that the industry does not intend to 
maintain the status quo. Thus, FRA believes it cannot rely on the 
assurances made in the associations' written pronouncements.
    As more Working Group meetings were held, FRA became increasingly 
concerned about the extent of one-person train operations in the U.S. 
and the extent that these operations may have proliferated without FRA 
oversight of them. Based on discussions with the railroad members of 
the Working Group, there appears to be a trend that more railroads of 
every class are willing to experiment with one-person train crew 
operations. Members representing Labor

[[Page 13938]]

organizations seemed as surprised as FRA with some of the generalized 
statements made by a variety of railroads regarding the extent of the 
existing one-person operations. For example, railroads of all classes 
seemingly have permitted remote control operations with only one-person 
to routinely operate on main track in limited train service, as opposed 
to being used for switching service--the original expected use for 
which the technology was designed. AAR and ASLRRA were unwilling to 
recommend FRA oversight of their members to assure railroad employees 
and the general public that their members' existing operations are 
safe, proclaiming that the lack of safety data showing there was an 
existing problem should prevail as an argument.
    Without a requirement for railroads to consult FRA on questionable 
crew size practices, FRA did not field inquiries from railroads asking 
for the agency's opinion on the safety of the practices. Even if an FRA 
inspector were to observe a train being operated with only one-person, 
FRA personnel would not have any reason to write up an inspection 
report detailing the finding--unless the one-person operation was 
alleged to have violated an FRA safety law, regulation, or order and 
the issue was tangentially raised in the report. Certainly, high level 
safety personnel at FRA were unaware of how many railroads, especially 
freight railroads, were regularly fielding trains with only a one-
person crew. For these reasons, the Working Group's discussions of 
existing one-person train crew operations were illuminating.
    Just as railroads have explained for over a century that certain 
operating rules were ``written in blood'' because it took one or more 
accidents causing serious injuries or fatalities before the operating 
rule was written, railroad employees and the general public should not 
have to wait for horrific accidents before the Federal government takes 
action. FRA provided the Working Group with a number of significant 
reasons for recommending regulatory action. In summary, FRA provided: 
(1) The scientific research studies showing the benefits of a second 
crewmember, (2) the anecdotal information regarding recent train 
accidents and how a second crewmember either could have played a safety 
role or did play such a role, (3) the explanation that FRA's railroad 
safety regulations were written with the expectation that nearly every 
train would be operated by no fewer than two crewmembers, and (4) the 
general public's negative reaction to the idea that FRA did not already 
mandate two-person train crews to add another layer of safety.
    During the Working Group's first meeting, SMART-TD stated its 
belief that FRA appears to be responding to the public's demand for 
action. SMART-TD backed up its statement during the Working Group's 
January 29, 2014, meeting when it shared a research report it sponsored 
that combined data from five surveys that indicated a strong level of 
bipartisan support among voters for a Federal law requiring freight 
trains to operate with a crew of two. The surveys were conducted in the 
States of Kentucky and North Dakota, and in select Congressional 
districts in the States of Colorado, Kansas, Iowa, and Pennsylvania. 
The data supported a finding that 77 percent of all respondents support 
Federal legislation requiring freight trains to be operated by a crew 
of two. Even when respondents were not reminded in a prior question 
about recent deadly train accidents in Quebec, Spain, and New York 
City, 74 percent supported Federal legislation. Another finding was 
that an overwhelming majority of those polled (between 83 to 87 percent 
in each of the five surveys) had the opinion that, generally speaking, 
when it comes to railroad safety and operations, one operator cannot be 
as safe as a train with a crew of two individuals. A copy of this 
report has been placed in the docket.
    Despite the early warning signs that the Working Group would not be 
able to reach a consensus, FRA held 5 day-long meetings spread out over 
6 months in which the agency continued to make substantive 
presentations and negotiate in good faith. Every time APTA or ASLRRA 
presented a new set of facts for a potential exception, FRA listened 
and came back with a written recommendation that tried to capture the 
request for leniency. Twice, AAR provided the Working Group with a list 
of a variety of railroad operations that it claimed should be allowed 
to continue with one-person with no restrictions. Each time, FRA 
responded with a written recommendation that tried to capture the 
request for leniency or, in a few instances, explained why it could not 
support such a request. Although no consensus was reached during the 
Working Group meetings, there seemed to be a tacit understanding that 
FRA had adequately described each operation for which it included an 
exception in its working document.
    First, at the January 29, 2014 meeting, AAR listed the following 
examples as non-revenue movements that it suggested should not require 
a minimum of two crewmembers: ``(1) Helpers; (2) Pushers; (3) Light 
engines; (4) Passenger moves; (5) Hostlers; (6) Locomotive exchange 
crews; (7) Work trains; (8) Wreck crews; and (9) Roadway maintenance 
machines.'' Final Minutes 2014 0129 TCWG-14-03-0503 pdf at 15. During 
the same meeting, AAR also asked whether FRA would agree to an 
exception for (10) interchange and transfer moves, (11) mine load out 
or plant dumping, and (12) toxic by inhalation or poisonous by 
inhalation (TIH/PIH) hand-offs, where one crewmember remains behind to 
facilitate secure hand-off, a Transportation Security Administration 
(TSA) requirement. FRA agreed, and altered its Working Group proposal 
to include an exception for each of the twelve items with the following 
caveats: (1) FRA did not believe a special exception was necessary for 
pushers, as the exception for helpers also covers pushers; (2) FRA 
provided an exception for light/lite engines, but made clear that the 
exception did not apply to passenger diesel or electric multiple unit 
(DMU or EMU) operations; (3) FRA provided an exception for hostlers 
conducting switching operations, but not hostlers working in other than 
switching operations; (4) FRA considers a wreck crew to be a work 
train, and FRA provided an exception for work trains; (5) FRA's work 
train exception applies to roadway maintenance machines in a work 
train, but such machines are not otherwise excepted; (6) FRA did not 
except interchange/transfer train movements as these operations, which 
may travel up to 20 miles while picking up or delivering freight 
equipment under the definition of ``transfer train'' in 49 CFR 232.5, 
pose the same safety issues as other trains that are not limited to 
traveling 20 miles; and (7) during a TIH/PIH hand-off, FRA did not 
create an exception that would allow the second crewmember to be left 
behind with the PIH/TIH car while the train departed with only a one-
person crew as the train continuing would pose the same safety issues 
as other trains.
    Second, in anticipation of the final Working Group meeting held on 
March 31, 2014, AAR submitted a document on March 28, 2014, titled 
``Discussion of Current Class I Operations Using Vehicles When 
Assisting Trains.'' AAR Discussion Document TCWG-14-03-31-04.pdf. The 
document describes six situations where a second train crewmember would 
need to be located outside of the operating cab of the controlling 
locomotive when the train is moving in order to continue to perform the 
duties assigned, and then lists seven

[[Page 13939]]

additional examples. The second train crewmember would then need 
another way to catch up to the train to get back on it. FRA believes 
all of the operations described in that AAR document are acceptable, as 
long as the second train crewmember that is separated from the train 
can directly communicate with the crewmember in the cab of the 
controlling locomotive pursuant to proposed 49 CFR 218.125(d). FRA has 
greatly benefited from the open, informed exchange of information 
during the meetings. Although the Working Group did not reach consensus 
on any recommendations, FRA decided not to extend the April 1, 2014, 
deadline that FRA initially presented the RSAC. FRA did not think it 
would be beneficial to continue to discuss with the RSAC's railroad 
members the issue of what data FRA had to support this rulemaking 
recommendation when they knew full well that the data, supplied by the 
railroads themselves to FRA, does not capture accidents where the cause 
or contributing factor was lack of a second crewmember.
    It was also made clear to FRA that organizations representing 
railroad employees supported FRA's overall concept of mandating two-
person crews on each train with some exceptions, but were 
overwhelmingly opposed to FRA's draft rulemaking recommendation that 
attempted to greatly accommodate all classes of passenger and freight 
railroads. Several labor organizations wanted FRA to scale back some of 
the exceptions FRA accepted as part of the agency's attempt to reach a 
consensus. For example, these organizations wanted to limit the 
shortline railroad exceptions in 49 CFR 218.131(a) to a freight train 
operated on a railroad and by an employee of a railroad with 15 or 
fewer employees, rather than the FRA position of ``a freight train 
operated on a railroad and by an employee of a railroad with less than 
400,000 total employee work hours annually'' (which is the equivalent 
of about 200 or fewer employees). Labor organizations also expressed a 
preference for requiring each railroad to petition for a waiver to 
utilize less than two train crewmembers rather than recommend a special 
approval procedure that would propose a much shorter FRA review period. 
Thus, after five meetings, with labor and management representatives 
taking polar opposite positions on large and small issues, FRA decided 
not to accept some Working Group members' recommendation to extend the 
deadline for negotiating a recommendation.

V. FRA's Overall Post-RSAC Approach

    This proposed rule offers a pragmatic approach to providing 
oversight of the crew size of non-switching train services to ensure 
the continued safety of railroad employees and the general public. In 
that respect, FRA's approach to the crew size issue has remained the 
same as when the agency first brought its position to the Working 
Group's attention. FRA views its crew size concerns as a relatively 
small current problem that has the potential to balloon into a much 
greater problem in the not-too-distant future if appropriate oversight 
is not exercised. Because there is significant potential for this 
safety issue to become a much greater problem in the second half of 
this decade, FRA believes the time to act is now.

A. The Proposal Is Largely Focused on Influencing How Railroads 
Approach Future One-Person Operations

    Based on information orally provided by AAR regarding the major 
railroads current train crew size practices, it appears that the 
proposed rule would not have a substantial impact on the current 
operation of the major railroads. Each major railroad appears more 
concerned about how a crew size regulation would impact the railroad's 
possible future plans to reduce train crew size to less than the 
general current industry standard of at least two crewmembers. It 
appears that the major railroads and some passenger railroads are eager 
to use PTC alone, or with other technologies, to reduce train crew size 
to one person. There is also an undercurrent of views that supports the 
idea that one day the major railroads could have ``drone'' locomotives, 
operated by one person or even by computer that could allow operation 
of a locomotive or train from a location that is miles away from the 
actual train movement. The railroads appear to prefer that FRA does not 
regulate the safety of train operations by mandating a minimum train 
crew size and establishing an FRA approval process so they can 
potentially consider piloting use of less than one-person crews in 
additional operations. Without this proposed rule, FRA has only narrow 
authority to take action--mainly exercised through the agency's 
emergency order authority after a serious accident or in FRA's review 
of a passenger operation's emergency preparedness plan. FRA's current 
approach, without a crew size requirement, permits railroads to have 
the ability to reduce the number of crewmembers on any train operation 
without necessarily performing any safety analysis or allowing FRA the 
opportunity to review whether the railroad has considered the safety 
implications of the operation or implementing any off-setting actions 
that FRA believes are necessary.
    FRA expects that the two-person aspect of the crew size rule would 
also not have much of an impact on current passenger train operations. 
It is rare for passenger train operations to have less than a two-
person crew, largely because emergency preparedness plans would be 
ineffectual without at least two persons to execute it. Like the major 
railroads, some passenger railroads will oppose this proposed rule 
largely because it restricts a railroad's unilateral ability to reduce 
train crew size in the event it can automate ticket sales and eliminate 
the need for assisting passengers. As with the major freight railroads, 
FRA is concerned that passenger railroads will focus on the economic 
benefit of not having to pay for a second crewmember without 
considering all of the safety benefits of having a second crewmember. 
FRA certainly believes its oversight of passenger train safety is 
warranted to protect the general public and any railroad employees that 
potentially could be impacted by the decision to reduce current train 
crew staffs.
    During the Working Group meetings, ASLRRA indicated that the 
current operations of shortline railroads would be greatly impacted by 
this rule because of the number of shortlines that utilize a one-person 
operation. However, survey information provided by ASLRRA does not 
suggest that a great many shortline railroads would be impacted by the 
proposed rule. At the January 29, 2014, RSAC Working Group meeting, 
ASLRRA presented findings from a survey the association conducted via 
its Regional Vice Presidents in December 2013. ASLRRA Single Person 
Operations Survey Findings TCWG-14-01-29-05.pdf. ASLRRA estimated that 
there are approximately 558 Class II and Class III railroads, 29 of 223 
respondents (13.0 percent) run one-person crews at least part of the 
time, there are 13,468 annual one-person crew starts, one-person crews 
accumulated 481,936 miles of train operations, the longest distance 
operated by a one-person crew is 119 miles, the shortest distance 
operated by a one-person crew is 0.33 miles, and the average mileage 
per crew start is 35.8 miles. Thus, according to ASLRRA's data, only 
about 13 of every 100 shortlines run any type of one-person operation. 
Certainly, some of those operations would not be impacted based on the 
exceptions provided to a two-person crew mandate in the

[[Page 13940]]

proposed rule. FRA's analysis for this proposed rule estimates that 
16.35 percent of these one-person shortline operations would not meet 
the proposed exceptions.
    Considering that the shortline community's current operations are 
the most likely to be impacted by this proposed rule, FRA conducted its 
own internal survey after the RSAC failed to reach a consensus 
recommendation in an attempt to more closely determine the potential 
impact on current operations. FRA Crew Size Shortline Survey-Final.pdf. 
FRA's internal survey was conducted by requesting that the operating 
practices personnel in each of FRA's eight regional field offices 
estimate the operational picture regarding shortlines (Class II and III 
railroads) within their respective regions in order to give FRA a 
nation-wide view. FRA's internal survey approximated that there are a 
total of 752 shortlines in the U.S. 206 of the shortlines handle ``key 
trains'' (i.e., trains with one or more loaded toxic-by-inhalation 
(TIH) or poisonous-by-inhalation (PIH) cars, or 20 or more loaded rail 
or tank cars or loaded intermodal portable tanks of certain hazardous 
materials including crude oil), an estimated minimum of 31,490 key 
trains are handled by shortlines each year, 115 shortlines operate one 
or more trains at over 25 mph, 14 shortlines operate with one-person 
train crews, and an estimated minimum of 127,792 trains operate at over 
25 mph on shortlines.
    Comparing FRA's survey to ASLRRA's survey, it appears that a big 
discrepancy is that ASLRRA is aware of more than twice as many 
shortlines utilizing one-person train operations than FRA, even though 
ASLRRA received responses from what FRA found to be is less than 30 
percent of the population of existing shortlines. Although many of 
these shortline operations are slow moving and will likely be excepted 
from the proposed two-person crew requirements in this proposed rule, 
the full extent of each of these shortline operations is unknown. It is 
because so much is unknown about the extent of one-person train crew 
shortline operations, including where they exist, that FRA believes the 
proposed approval process is necessary in order that the shortlines 
reveal themselves for some level of Federal safety oversight. 
Information revealing where and the extent of these one-person train 
crew operations would also permit FRA to potentially improve data 
collection and analysis of one-person operations. Otherwise, a 
shortline railroad's good safety record may be illusory and FRA would 
not have any reason to exercise oversight until after an attention-
getting accident.

B. The Proposal Is Complimentary to Other Regulatory Initiatives, Not 
Duplicative

    This proposed rule is complimentary to, rather than duplicative of, 
other recent regulatory initiatives FRA has issued or is in the process 
of developing. These initiatives include: the implementation of PTC 
systems, the development of risk reduction and system safety programs, 
the development and implementation of comprehensive training programs 
for safety critical employees, and the development of fatigue 
management plans. Each of these initiatives will enhance safety in some 
manner, and may either aid a railroad in transitioning to an operation 
with fewer than two crewmembers or assist a railroad in identifying 
risks and mitigating those risks once such an operation is established. 
However, none of these initiatives, either individually or 
collectively, are designed to ensure that a railroad engages in a 
proactive assessment of a change to an operation such as reducing the 
size of a train crew from two crewmembers to just one crewmember. The 
purpose of this regulatory action is to ensure that each railroad 
properly consider and evaluate the risks that will be introduced to an 
operation by reducing the existing crew size and that the railroad 
takes appropriate steps to mitigate those risks prior to implementing 
the operation. Thus, this proposal is proactive and is aimed at 
reducing or eliminating risk before it is introduced into actual 
operations, whereas many of the other regulatory initiatives being put 
in place are aimed at identifying and mitigating risks that already 
exist. This approach will ensure that the nation's safety regulator is 
part of this decision-making process and will ensure that safety and 
economic costs are not transferred to the communities and public where 
these operations might take place.
    A subset of this issue was raised during the RSAC process that did 
not lead to a consensus recommendation. Some RSAC members requested 
that FRA address the application of a railroad safety risk reduction 
rule to train crew staffing issues during the Working Group 
deliberations. Section 103(a)(1) of the Rail Safety Improvement Act of 
2008 (RSIA) directed FRA to require certain railroads to develop, 
submit to FRA for review and approval, and implement a railroad safety 
risk reduction program. See 49 U.S.C. 20156. Railroads required to 
comply with such a rule would include: (1) Class I railroads, (2) 
railroads with inadequate safety performance, and (3) railroad carriers 
that provide intercity rail passenger or commuter railroad passenger 
transportation (passenger railroads). Risk reduction is a 
comprehensive, system-oriented approach to safety that determines an 
operation's level of risk by identifying and analyzing applicable 
hazards and developing strategies to mitigate that risk.
    On December 8, 2010, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) that solicited public comment on a potential 
rulemaking that would require each Class I railroad, each railroad with 
an inadequate safety record, and each passenger railroad to develop and 
implement a railroad safety risk reduction program. 75 FR 76346. On 
September 7, 2012, FRA then proposed requirements for a System Safety 
Program (SSP) rule that would partially satisfy the RSIA mandate by 
requiring each passenger railroad to develop and implement an SSP. 77 
FR 55372. FRA developed the SSP NPRM with the assistance of the RSAC. 
As proposed, an SSP would be implemented by a written SSP plan that had 
been submitted to FRA for review and approval. If the NPRM becomes 
effective, a passenger railroad's compliance with its SSP would be 
audited by FRA, and the passenger railroad would also be required to 
conduct internal assessments of its SSP. FRA is currently developing, 
also with the assistance of the RSAC, a separate risk reduction rule, 
referred to as the risk reduction program (RRP), that would implement 
the RSIA mandate for Class I freight railroads and railroads with 
inadequate safety performance. Also under development with the RSAC is 
a related Fatigue Management Plan (FMP) rulemaking that would meet the 
RSIA mandate as it relates to fatigue management plans.
    Railroads do not have unlimited resources available to mitigate all 
hazards and risks identified by an SSP. The SSP NPRM therefore explains 
that railroads will be permitted to prioritize mitigating the most 
severe hazards associated with the greatest amount of risk. If a 
railroad's SSP does identify crew size as a hazard, mitigating crew 
size hazards and risks may depend on how the railroad prioritizes them 
in relation to other identified hazards and risks. Overall, an SSP is 
not required to mitigate specific hazards and risks, but must promote 
continuous safety improvement over time. As such, a railroad's decision 
regarding whether or not to mitigate crew size hazards and

[[Page 13941]]

risks might also depend on how effectively that mitigation would 
promote continuous safety improvement, compared to mitigation of other 
identified hazards and risks. As proposed in the SSP NPRM, a railroad 
would be required to periodically review its program to determine 
whether the SSP goals are being met. As part of this review, a railroad 
might identify new hazards and risks or re-prioritize hazards and risks 
that have already been identified. In any case, although a reduction in 
crew staffing would certainly not be expected as a mitigation measure, 
a change in crew staffing from two crewmembers to only one crewmember 
would be a significant change. FRA would expect such a change to 
generate a full review of the Risk Reduction Program and an update to 
the related hazard analysis.
    Although FRA anticipates that it will succeed in implementing SSP, 
RRP, and FMP requirements in the foreseeable future, there is no 
guarantee that any particular railroad will use an SSP, RRP, or FMP to 
address the crew staffing issue once the FRA's requirements are 
effective. Railroads may try and address issues that FRA believes could 
be solved by adding a second crewmember, but instead attempt to address 
the problems by finding other tangentially related solutions. For 
example, some railroads may choose to spend resources on technology 
that the railroad believes offers adequate redundancy rather than 
keeping a second crewmember. The technology may improve safety but, as 
FRA-sponsored research summarized earlier in this preamble explains, 
may create new tasks, methods of operation, and other complications 
that are not fully accounted for. In other instances, a railroad may 
tackle fatigue issues with one-person crews by reducing the number of 
hours that a single person operation can work on any given day or 
providing for longer rest periods between tours of duty, but without 
regard to the fact that the lone crewmember is mentally fatigued and 
could benefit from another person's assistance. Another concern is that 
SSP, RRP, or FMP will not require railroads to address each and every 
risk. A railroad could identify two-person train crew staffing as an 
effective mitigation for certain risks, but nevertheless choose not to 
immediately address two-person crews because the railroad decides to 
prioritize other hazards and risks. Thus, as it will be up to each 
railroad to identify hazards, prioritize risks, and develop mitigation 
strategies as part of an SSP, RRP, or FMP, problems caused by 
inadequate staffing or engagement of a second crewmember may linger 
after an SSP, RRP, or FMP final rule is implemented. Additionally, as 
discussed previously, the SSP, RRP, and FMP rules will not apply to all 
railroads, which means that railroads other than Class I railroads, 
passengers railroads, and railroads with inadequate safety performance 
will not have to perform risk analyses pursuant to these rules that 
might identify crew size as a hazard presenting certain risks.
    In conclusion, the future hazards posed by inadequate train crew 
staffing are common across the general railroad system of 
transportation and should not be left to be mitigated piecemeal, 
dependent on a railroad choosing to implement such a mitigation 
measure. FRA has prioritized the risks posed by some one-person train 
operations over other potential hazards that a railroad may choose to 
address through a risk reduction-type program. This proposed rule is 
necessary for FRA to protect railroad employees and the general public 
by considering the safety risks of each type of one-person train crew 
operation and prohibiting operations that pose an unacceptable level of 
risk as compared to operations utilizing a two-person crew. Only 
specific crew staffing requirements would resolve this dilemma.
    Furthermore, this proposal would not impede the implementation of 
these other regulatory initiatives. As noted above, the objectives of 
this regulatory proposal are quite different than other recent 
regulatory initiatives being advanced by FRA. This proposal is aimed at 
identifying and mitigating risks before they occur and to ensure that 
FRA has an active role in ensuring that a railroad has taken 
appropriate action before modifying an existing operation that has the 
potential of introducing risk into that operation. This proposed rule 
will in no way impede or prevent a railroad from implementing the other 
regulatory initiatives being advanced by FRA and will actually 
encourage the implementation and application of those initiatives in 
order to ensure and monitor the continued safety of train operations 
where less than two person crews are utilized. The other initiatives 
will ensure that base-level technology is in place when it is 
installed, that appropriate training is provided to any locomotive 
engineer operating as a one-person train crew, and that the risks 
associated with such one-person train crew operations are monitored and 
evaluated on an on-going basis. Thus, FRA views all of its recent 
significant regulatory safety initiatives as being complimentary and 
necessary to this current proposal.

C. Identifying How the NPRM Differs From FRA's RSAC Suggested 
Recommendations

    Some of the proposed rule text differs from the last version FRA 
proposed as recommendations to the Working Group that failed to reach 
consensus on any recommendations. Some of these differences will be 
familiar to the Working Group members because the differences reflect 
rule text versions FRA proposed during earlier Working Group meetings. 
Other proposed rule text changes reflect FRA concerns identified since 
the Working Group meetings were concluded.
    In proposed section 218.121, the purpose and scope section, FRA 
added to the third sentence in paragraph (b) the words ``and promotes 
safe and effective teamwork.'' Upon drafting the NPRM, FRA realized 
that the issue of the roles and responsibilities of the second 
crewmember, as well as the ability of the second crewmember to 
communicate with the locomotive engineer, was a key factor in how this 
proposed rule would make train operations safe. The issue deserves 
mention in the purpose and scope and will hopefully aid each railroad 
in considering whether its train crewmembers are adequately trained in 
working as an effective team.
    In proposed section 218.123, FRA made a few minor changes to the 
definitions from its RSAC suggestions. The definitions of ``Associate 
Administrator'' and ``FTA'' were not changed, but moved to the 
definitions section that applies to all of part 218. A definition of 
``trailing tons'' was added because that term was used to help define 
the work train exception in 218.127(d). Also, FRA changed the term 
``switching operation'' to ``switching service'' for consistency so 
that the same term is used in this proposed rule as is used in three 
other Federal rail safety regulations. 49 CFR 229.5, 232.5, and 238.5.
    In proposed section 218.125(c), FRA made slight modifications to 
the language describing the types of hazardous materials a train may 
transport that would require the train to be staffed with at least two 
crewmembers without an exception being applicable. The changes to this 
paragraph closely follow FRA's proposed rule regarding the securement 
of unattended equipment. 79 FR 53356, 53383, Sep. 9, 2014, proposed 49 
CFR 232.103(n)(6). The changes are intended to clarify the types and 
quantities of materials requiring at least a two-person train crew, 
unless the railroad receives

[[Page 13942]]

special approval to operate such trains under proposed section 218.135.
    In proposed section 218.125(d)(2), FRA added the word ``directly'' 
so that it is clear that a second crewmember not in the operating cab 
of the controlling locomotive when the train is moving must be able to 
communicate with the crewmember in the cab without having to go through 
an intermediary. A corresponding change has been made to proposed 
section 218.131(a)(2)(ii) for the same reason.
    In proposed section 218.127(e), FRA had at one time suggested to 
the Working Group that remote control operations with a one-person 
train crew should be specifically limited operationally by restrictions 
that the railroad industry had previously agreed with FRA to abide by 
as guidelines. Those guidelines were specified in an earlier draft of 
FRA's suggested recommendations to the Working Group, but then later 
removed in a late push to try and negotiate a consensus recommendation. 
Now that RSAC has failed to reach a consensus, FRA has added these 
remote control operational restrictions back in because the agency is 
concerned with railroads trying to use remotely controlled locomotives 
beyond the equipment's designed limitations. FRA would appreciate 
comments regarding whether this language limiting remote control 
operations is necessary.
    In proposed section 218.133, FRA has deviated from its RSAC 
suggested draft by putting forth two co-proposal options with some 
different requirements. The co-proposals do more than just extend the 
date by 1 year for continuing operations, from 2014 to 2015. For 
example, Option 1 co-proposes requiring FRA's explicit approval to 
continue any operations staffed without a two-person train crew and 
existing prior to January 1, 2015. In order to encourage railroads to 
reach a consensus Working Group recommendation, FRA had suggested that 
it would only issue notification if it disapproved of a railroad's one-
person operation or thought that the operation could continue but with 
some additional restrictions. The change under proposed Option 1 puts a 
greater burden on FRA to do a thorough review of each one-person 
operation that railroads will want to continue and to normally provide 
notification within 90 days of receipt of the submission. However, it 
also provides clarity to each railroad wishing to continue an operation 
and not having to wonder whether FRA will announce that the operation 
is unsafe, without provocation, in the future. Co-proposal Option 2 is 
closer to the RSAC-suggested draft in this regard.
    In both co-proposal options for section 218.133, FRA added a new 
paragraph, (a)(9), compared to the RSAC suggested draft. The proposed 
paragraph in the co-proposal options requires that a railroad that 
wishes to continue any operations staffed without a two-person train 
crew and existing prior to January 1, 2015, must include certain 
additional information. Proposed paragraph (a)(9) requires that the 
railroad provide ``[i]nformation regarding other operations that travel 
on the same track as the one-person train operation or that travel on 
an adjacent track. Such information shall include, but is not limited 
to, the volume of traffic and the types of opposing moves (i.e., either 
passenger or freight trains hauling hazardous materials).'' FRA 
believes this information is readily available to host railroads, and 
estimates the time burden per railroad for providing this information 
will be 960 hours. FRA requests comments on this estimate. The 
previously numbered paragraphs (a)(9) and (a)(10) were renumbered as 
(a)(10) and (a)(11).
    In proposed section 218.135, FRA has deviated from its RSAC 
suggested draft by putting forth two co-proposal options with some 
different requirements. FRA deleted some information in the version FRA 
suggested to the Working Group that would have been contained in 
paragraph (b)(2). Some Working Group members insisted that FRA contain 
an explicit exception from the two-person requirement whenever a 
railroad had implemented a PTC system. Although FRA and other Working 
Group members disagreed with such an explicit exception, FRA attempted 
to provide as much guidance as it believed was possible in FRA's 
suggested recommendation if it helped achieve a consensus RSAC 
recommendation. The language FRA suggested to the Working Group 
included a statement that ``FRA would likely grant a petition for 
special approval of a freight train operation with a one-person crew 
that has a positive train control system'' with certain capabilities. 
FRA believes, as a starting point for potential FRA-approval, the PTC 
system must meet all the requirements of part 236 of this chapter, have 
rear-end train monitoring and enforcement capabilities, and have some 
other combination of technologies and other operating safeguards. Other 
safeguards that would likely be considered include: Electronically 
controlled pneumatic brakes; appropriate installation of wayside 
detectors, especially hot box, overheated wheel, dragging equipment, 
and wheel impact load detectors; enhanced scheduled track inspections 
with track inspection vehicles capable of detecting track geometry and 
rail flaws; implementation of a fatigue management system with set work 
schedules; or procedures for providing a one-person train operation 
with additional persons when necessary for en route switching, crossing 
protection, or any required train-related inspection. As the Working 
Group members who wanted the PTC exception provision found FRA's 
suggestion insufficient, and FRA finds the PTC exception provision 
unnecessary, there appears to be no reason to carry it forward in this 
proposed rule. The other changes from the RSAC suggested draft in the 
co-proposal options raise the question of whether a railroad should be 
required to wait for explicit FRA approval before initiating a new 
operation with less than two train crewmembers. The co-proposal options 
differ on the need for explicit FRA approval. Option 2 also contains an 
additional proposed requirement that the RSAC never discussed. That 
proposed requirement is that the railroad officer in charge of 
operations attest that a hazard analysis of the operation has been 
conducted and that the operation provides an appropriate level of 
safety.

D. Electronic Submission and Approval Process

    If this proposed rule becomes final, non-exempt railroads that want 
to operate with less than a minimum of two crewmembers will need to 
submit information to FRA. The proposed rule provides an address for 
mailing such submissions to the Associate Administrator, and an 
electronic submission option. FRA plans to consider adding an 
electronic submission requirement in the final rule and would like to 
invite comments on this subject.
    FRA has recently created electronic submission requirements to 
facilitate review of filings in other rulemakings. For example, under 
49 CFR 272.105, FRA is requiring each railroad to file critical 
incident stress plans electronically through a Web site that FRA 
created. For the Training, Qualification, and Oversight for Safety-
Related Railroad Employees final rule, FRA created a mandatory 
electronic submission process to allow the agency to more efficiently 
track and review programs with the caveat that an employer with less 
than 400,000 total employee work hours annually could opt to mail 
written materials rather than an electronic submission. See 49 CFR

[[Page 13943]]

243.113. 79 FR 66460, 66506, Nov. 7, 2014.
    Another electronic submission option would be for FRA to utilize 
the already existing docketing system available at www.regulations.gov. 
For example, FRA could create one docket for all requests to continue 
existing operations under proposed Sec.  218.133 and a second docket 
for all special approval petitions and comments under proposed Sec.  
218.135. Again, as the regulated community and the public have 
experienced using this docketing system, FRA appreciates any feedback 
on the use of the existing electronic docketing system and whether it 
could work well for these purposes.
    Certainly, FRA is not restricted from sending written approval 
electronically. FRA may choose to reply to submissions that include an 
email address with an electronically served notice. In all instances of 
electronic submission or notices of approval/disapproval, the party 
serving notice has the burden of ensuring that proper service is 
completed.

VI. Section-by-Section Analysis

Section 218.5 Definitions

    The NPRM proposes to add two definitions that will be applicable to 
all of part 218, not just the proposed subpart G. The two terms are 
only used in the proposed subpart G, and thus they do not pose any 
potential conflict in the other current subparts. FRA has decided to 
include these proposed definitions in this section because these terms 
are unlikely to ever have any other definition that would potentially 
conflict with another, future, proposed subpart to this part.
    The proposed rule needs to define the term ``Associate 
Administrator'' so that it will be understood which FRA official would 
need to be served with a copy of certain documents required to be filed 
under other sections of the NPRM. A proposed definition of ``FTA'' 
should come as no surprise to those railroads that come under the 
Federal Transit Administration's jurisdiction and would be expecting 
FRA to recognize FTA's authority to regulate certain types of 
operations.

Section 218.121 Purpose and Scope

    This section states that the purpose of this proposed subpart is to 
ensure that each train is adequately staffed and has appropriate 
safeguards in place when using fewer than two-person crews for safe 
train operations. In order to ensure adequate staffing, the NPRM 
prescribes minimum requirements for the size of different train crew 
staffs depending on the type of operation. Currently, railroads are 
determining that many train operations can be safely staffed with less 
crewmembers than the industry standard of two: A locomotive engineer 
and a conductor. Although FRA employs approximately 400 inspectors who 
regularly monitor compliance with every class of railroad in the 
Nation, only about 1 out of every 5 of FRA's inspectors monitor 
operational compliance while the rest focus on equipment, track, 
signal, and grade crossing warning device maintenance and the 
transportation of hazardous materials. There is currently no specific 
prohibition that would prevent a railroad from choosing to operate a 
train with only one crewmember and, while FRA has emergency order 
authority to shut down unsafe operations, FRA would likely have 
difficulty implementing its emergency order statutory authority in 
situations where the railroad alleges it has been operating safely for 
years--unbeknownst to FRA, unless it had evidence that the railroad's 
operation created an unsafe condition or practice causing ``an 
emergency situation involving a hazard of death, personal injury, or 
significant harm to the environment.'' 49 U.S.C. 20104. Although it has 
done so indirectly, FRA has rejected some one-person passenger 
operations based on the passenger train emergency preparedness approval 
process required under 49 CFR 239.201. This proposed rule would provide 
passenger railroads that are considering one-person operations with 
additional insight into the safety considerations FRA deems essential 
before the agency would approve such an operation.
    Although railroading continues to trend as safer each year, FRA is 
concerned that some railroads are removing a second crewmember without 
reflecting on the safety risks posed to railroad employees and the 
general public by having one less crewmember staffing each train. The 
second crewmember may prevent a lone crewmember from suffering from 
task overload by monitoring and warning of temporary restrictions, 
acknowledging signal indications, communicating on the radio, 
protecting the public at highway-rail grade crossings, and updating the 
train consist list or other required paperwork. Operations could also 
pose a higher risk to employees and the general public due to the types 
of commodities hauled, the speed or tonnage of the train, or other 
complexities of the operation. The decision to propose a requirement 
for a minimum number of crewmembers on certain types of operations is 
intended to ensure that each railroad implementing one-person 
operations has adequately identified potential safety risks and taken 
mitigation measures to reduce the chances of accidents, as well as the 
impact of any accident that may still occur.
    This subpart also prescribes minimum requirements for the roles and 
responsibilities of train crewmembers on a moving train, and promotes 
safe and effective teamwork. The public perception may be that there 
are always at least two crewmembers, and that the crewmembers are 
always in the locomotive when the train is moving. The proposed rule 
recognizes the realities of safe railroading practices while 
prohibiting railroads from allowing the second crewmember to disengage, 
mentally or physically, from the train movement. As the FRA-sponsored 
research in the preamble found, just because multiple crewmembers are 
present on the train does not mean that they have formed an expert 
team. The proposed requirements in this subpart would ensure that a 
second crewmember who is located anywhere outside the cab of the 
controlling locomotive while the train is moving must have the ability 
to directly communicate with the crewmember operating the train. Having 
direct communication lines means that the crewmembers do not have to 
work through an intermediary, such as the dispatcher, to communicate 
with one another. Typically, direct communication will mean that the 
crewmembers are communicating by radio or hand signals.
    Finally, proposed paragraph (b) of this section would expressly 
allow each railroad to prescribe additional or more stringent 
requirements in its operating rules, timetables, timetable special 
instructions, and other instructions. Thus, the NPRM does not prohibit 
a railroad from requiring more than two crewmembers or from having 
additional or more stringent requirements governing the proper roles 
and responsibilities of a second, or additional, crewmembers as long as 
the train operation is in compliance with this proposed subpart.

Section 218.123 Definitions

    The proposed rule offers a definition for the phrase ``tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation'' in order to explain the 
plain meaning of that phrase. The phrase means a tourist, scenic, 
historic, or excursion operation conducted only on track used 
exclusively for that

[[Page 13944]]

purpose (i.e., there is no freight, intercity passenger, or commuter 
passenger railroad operation on the track). If there was any freight, 
intercity passenger, or commuter passenger railroad operation on the 
track, the track would be considered part of the general system. See 49 
CFR part 209, app. A. In the section-by-section analysis for proposed 
Sec.  218.127, there is an explanation for why FRA is proposing not to 
exercise its jurisdiction over these types of railroad operations.
    The proposed rule defines ``trailing tons'' to mean the sum of the 
gross weights--expressed in tons--of the cars and the locomotives in a 
train that are not providing propelling power to the train. This term 
has the same meaning as in 49 CFR 232.407(a)(5), which is a regulation 
concerning end-of-train devices. The NPRM needs this term in order to 
help define what a work train is in Sec.  218.127(d).
    The NPRM proposes a definition of ``train'' that is consistent with 
the way FRA has defined the term in other Federal rail regulations. 
See, e.g., 49 CFR 229.5, 232.5 and 238.5. For purposes of this proposed 
rule, a train means one or more locomotives coupled with or without 
cars, except during switching service. The term ``switching service'' 
is also defined in the section. The definition of train is not intended 
to contain all of the exceptions to the crew size and second crewmember 
role and responsibility requirements; instead, those exceptions are 
found in other sections, clearly identified as exceptions, in the 
proposed rule text.
    In order to clarify that a ``train'' does not include switching 
operations, FRA proposes a definition for ``switching service'' that is 
consistent with the way FRA has defined the term in other Federal rail 
regulations. See, e.g., 49 CFR 229.5, 232.5 and 238.5. Switching 
service means the classification of rail cars according to commodity or 
destination; assembling of cars for train movements; changing the 
position of cars for purposes of loading, unloading, or weighing; 
placing of locomotives and cars for repair or storage; or moving of 
rail equipment in connection with work service that does not constitute 
a train movement. FRA has not limited switching service to yard limits, 
although switching service often takes place within a rail yard.

Section 218.125 General Crew Staffing and Roles and Responsibilities of 
the Second Crewmember for Freight and Passenger Trains

    This proposed section includes the general crew staffing 
requirements, as well as the roles and responsibilities of the second 
crewmember for both freight and passenger trains. The exceptions to the 
general requirements are found in other sections of the proposed rule.
    Proposed paragraph (a) requires each railroad to comply with the 
requirements of this subpart, and provides the railroad with the option 
to adopt its own rules or practices to do so. A railroad may want to 
adopt its own rules or practices that it instructs its employees to 
comply with rather than asking employees to directly comply with a 
Federal regulation. As proposed in the purpose and scope section, each 
railroad is free to prescribe additional or more stringent requirements 
as it sees fit. Regardless of whether a railroad or any person fails to 
comply with this subpart, or the railroad's rules or practices used to 
ensure compliance with the requirements of this subpart, that railroad 
or person shall be considered to have violated the requirements of this 
subpart and may be subject to an FRA enforcement action. Although this 
would be true even without this paragraph, FRA has proposed this 
paragraph because it gives the regulated community an explicit warning 
that FRA can take enforcement action under appropriate circumstances.
    Paragraph (b) proposes the essential requirement of the entire 
subpart. That is, each train shall be assigned a minimum of two 
crewmembers unless an exception is otherwise provided for in this 
subpart. As explained in the preamble, a second crewmember can help 
prevent a single crewmember from experiencing task overload and losing 
situational awareness. A lone crewmember that loses situational 
awareness would not be able to benefit from a second crewmember who 
provides adequate warnings of operational restrictions and can complete 
some of the tasks that may be causing the lone crewmember to be 
overloaded. Even if an exception applies, a railroad may choose to 
assign a minimum of two crewmembers to each of its trains and would 
certainly be in compliance with this proposed subpart if it did so.
    Paragraph (c) contains the proposed requirement that two 
crewmembers are always necessary when the train contains certain 
quantities and types of hazardous materials. It is proposed that this 
requirement be applicable regardless of whether an exception somewhere 
else in the subpart appears to apply. In paragraph (c)(1), FRA proposes 
to mandate a minimum of two crewmembers assigned to a train that 
contains even just one loaded freight car of poisonous by inhalation 
material (PIH), as defined in 49 CFR 171.8, including anhydrous ammonia 
(UN 1005) and ammonia solutions (UN 3318). Loaded PIH tank cars pose a 
tremendous safety risk to the general public and a second crewmember's 
actions can certainly provide an additional safeguard to compliance 
with all railroad rules and operating practices. In paragraph (c)(2), 
FRA similarly addresses the safety issues that are applicable to ``key 
trains,'' which commonly refers to 20 or more loaded freight cars, 
freight cars loaded with bulk packages, or intermodal portable tank 
loads containing certain types of hazardous materials, such as crude 
oil. The 20-car threshold follows FRA's Emergency Order 28 and proposed 
securement regulation and is based on AAR's definition of a ``key 
train'' in OT-55N. FRA is proposing a threshold of 20 cars instead of 
5, 10, or 15 cars because FRA is willing to allow one-person operations 
when they pose less risk to the public, and by virtue of fewer hazmat 
cars, the risk should be less. Local trains, moving less than 20 cars, 
will likely be operated at slower speeds and pose less risk. The 
greatest risk is with these key trains. Although a single car of crude 
oil can be dangerous, a single car does not pose nearly as great a risk 
as a single loaded PIH tank car--which explains why the proposed rule 
requires that at least 20 of these types of cars must be in the train 
before the ``no exception'' to the minimum of two crewmembers 
requirement is triggered. Thus, based on an RSAC consensus recommending 
special securement procedures of unattended trains containing the types 
and quantities of materials described in this proposed paragraph, FRA 
believes special care should also be provided by a minimum of two 
crewmembers during rail transport. FRA would appreciate comments 
regarding whether this proposed requirement is too stringent or not 
stringent enough.
    Proposed paragraph (d) contains the general requirements pertaining 
to the roles and responsibilities of a second crewmember when the train 
is moving. The NPRM is written under the premise that the locomotive 
engineer is the first crewmember and is always located in the cab of 
the controlling locomotive when the train is moving, unless the 
controlling locomotive is being operated remotely. FRA uses the term 
``second crewmember'' largely to mean a conductor, under 49 CFR part 
242, but with the understanding that since a single crewmember could 
hold multiple operating crew certificates, it is possible that a second 
crewmember could be designated as having a job title other

[[Page 13945]]

than conductor and not require a locomotive engineer or conductor 
certificate. See 49 CFR 242.213.
    The proposed requirement in paragraph (d) is written with an 
expectation that, in many operations, the best location for the 
conductor is in the cab of the controlling locomotive when the train is 
moving. When a conductor is in the cab, the crewmembers can easily 
communicate about upcoming restrictions, signal indications, and 
methods of operation. These job briefings and other timely 
communications help ensure that the locomotive engineer is operating 
safely and in compliance with all applicable rules and procedures. 
Knowing that the conductor can provide reminders of restrictions or a 
level of assurance that the engineer has called the signal correctly 
may reduce the stress level of the engineer. As FRA explained in the 
preamble, it is when employees are under stress and overloaded with 
tasks, that a one-person operation is more likely to lose situational 
awareness and make a mistake, i.e., a human factor failure.
    Although FRA believes the optimal location for a second crewmember 
safety-wise is usually in the operating cab of the controlling 
locomotive when the train is moving, FRA certainly recognizes that safe 
operations can be conducted when the second crewmember is located 
somewhere else on the train. For example, FRA is aware that some 
operations are designed so that the second crewmember is on a caboose 
at the back of the train, which can facilitate train movements that 
require manually operating switches at the rear of the train. Other 
operations may be designed or require that a second crewmember ride in 
a locomotive that is not the controlling locomotive. FRA does not 
intend to propose a rule that would prohibit a second crewmember from 
safely performing his or her duties from somewhere else on or near the 
moving train.
    In proposed paragraphs (d)(1) through (d)(4), the general 
requirement in proposed paragraph (d) is refined to allow for the 
second crewmember to be located anywhere outside of the operating cab 
of the controlling locomotive when the train is moving under certain 
conditions.
    In paragraph (d)(1), it is proposed that the normal location of the 
second crewmember be on the train ``except when the train crewmember 
cannot perform the duties assigned without temporarily disembarking 
from the train.'' That is, the proposed general requirement for a 
second crewmember, not considering all the exceptions in the other 
sections, is for that crewmember to be on the train when it is moving 
except when it is necessary for that crewmember to temporarily 
disembark. The proposed general requirement is intended to exclude a 
situation where the conductor is either never on the train, or spends 
significant periods of time disassociated from physically being on or 
near the train. Thus, if a second assigned crewmember is ordered to 
stay in a yard tower, or other fixed location not on the train, for the 
majority of the time that the train is moving, the second crewmember 
would not be in compliance with this proposed general requirement that 
only permits ``temporarily disembarking from the train.'' The 
relaxation of the requirement that the second crewmember be on the 
train is intended to permit only temporary situations, i.e., movements 
of short time or duration that are necessary in the normal course of 
train operations. For example, a conductor may get off a train to throw 
a switch and then the train is moved with the conductor on the ground 
so that the conductor can get back in the controlling locomotive cab 
without having to walk the entire length of the train. In other 
instances, a conductor might have to throw a switch but the train 
cannot easily be moved to pick up the conductor so a workaround 
practice or procedure has been developed to drive the conductor in a 
motor vehicle, or on a following train, several miles away where the 
conductor can then safely reboard the assigned train. FRA considers 
these both examples of temporarily disembarking from the train even 
though the latter example results in the train moving for several miles 
without the second crewmember on the train. To the contrary, if a 
railroad's practice is to stop the train many miles away from the 
switch, after passing multiple places where the train could be stopped 
safely for the conductor to board, FRA would view the practice as more 
than a temporary situation and it would appear to violate the proposed 
general requirement.
    Previously in the background section (see IV. No Recommendation 
From the RSAC Working Group), FRA advised that a document prepared by 
AAR has been submitted to the docket which describes six situations 
where a second train crewmember would need to be located outside of the 
operating cab of the controlling locomotive when the train is moving in 
order to continue to perform the duties assigned, and then lists seven 
additional examples. AAR Discussion Document TCWG-14-03-31-04.pdf. The 
second train crewmember would then need another way to catch up to the 
train to get back on it. As stated previously, FRA believes all of the 
operations described in that AAR document are acceptable under this 
proposed rule, as long as the second train crewmember that is separated 
from the train can directly communicate with the crewmember in the cab 
of the controlling locomotive pursuant to proposed Sec.  218.125(d). 
Meanwhile, FRA anticipates that there may be circumstances where direct 
communication is temporarily lost due to radio malfunctions or other 
communication failures. Sometimes the loss of communication will be due 
to circumstances within the control of the crewmembers or will be due 
to known radio signal obstacles (e.g., geographical obstacles such as 
mountains). FRA accepts that direct communication may be lost 
temporarily due to a variety of factors, and will be looking to see 
that a railroad has implemented procedures or practices to reduce any 
potential loss of direct communication by crewmembers to a minimum 
before considering a potential enforcement action. FRA would appreciate 
comments on this issue.
    Proposed paragraph (d)(2) contains the requirement that, when the 
second crewmember is anywhere outside of the operating cab of the 
controlling locomotive when the train is moving, the second crewmember 
has the ability to directly communicate with the crewmember in the cab 
of the controlling locomotive. FRA is not proposing to prescribe the 
methods of communication in this regulation. Deciding appropriate 
methods of direct communication between crewmembers is left to each 
railroad. Typically, crewmembers that are visible to one another will 
communicate by hand signals as the employees' voices cannot be heard 
over the locomotive engine from any distance outside the cab. Most 
other times, crewmembers will communicate with one another by radio or 
other wireless electronic devices in accordance with railroad rules and 
procedures and FRA's railroad communications regulation found at 49 CFR 
part 220. The important aspect of this proposed general requirement is 
that the assigned crewmembers are in direct contact with one another 
and do not have to communicate through an intermediary; otherwise, it 
would be hard to justify any perceived safety benefit to having a 
detached second crewmember that lacks the ability to communicate with 
the crewmember in the cab of the controlling locomotive

[[Page 13946]]

while the train is moving. The proposed requirement focuses on the 
second train crewmember's ability to communicate with the locomotive 
engineer, but the expectation is that the engineer would also have the 
ability to directly communicate with the second crewmember and request 
assistance, and that the second crewmember would be able to quickly 
respond.
    Passenger and commuter locomotives do not always have room for a 
second crewmember in the locomotive control compartment, but a second 
crewmember may be necessary to provide assistance for shoving or 
pushing movements, or to otherwise assist the routine operation of the 
train. If the second crewmember is a conductor, that conductor may not 
always have a view of upcoming signal indications. For that reason, 
even though the passenger or commuter railroad conductor has some 
operating duties, the conductor may feel some disassociation with the 
operation of the train. FRA believes railroads should look closely at 
the operating duties that a second person not located in the cab can 
perform, as long as the second crewmember has the ability to directly 
communicate with the locomotive engineer. For example, before leaving 
each station stop, the conductor could remind the locomotive engineer 
of any upcoming restrictions that will be reached before arriving at 
the next station stop. Such job briefings between crewmembers have long 
been considered an effective practice by expert teams.
    Proposed paragraphs (d)(3) and (d)(4) contain the last general 
requirements that apply when the second crewmember is anywhere outside 
of the operating cab of the controlling locomotive when the train is 
moving. The proposed paragraphs require that the second crewmember must 
be able to continue to perform the duties assigned even though the 
crewmember is outside of the operating cab of the controlling 
locomotive when the train is moving and, under these circumstances, the 
location of the second crewmember must not violate any Federal railroad 
safety law, regulation, or order. These proposed general requirements 
are catch-all provisions intended to ensure that each railroad and 
second crewmember does not conclude that the provisions in this 
regulation can somehow be used to avoid complying with a person's 
assigned duties or any Federal requirement. FRA understands that 
passenger train conductors will normally be in the body of the train, 
not in the locomotive cab with the engineer. In passenger train 
operations, normal areas for a conductor to occupy on a train include 
the locomotive, the passenger cars, the caboose, the side of a freight 
car when protecting a move, and on the ground either throwing switches 
or inspecting the train.
    Finally, with regard to proposed paragraph (d), FRA's main concern 
is with adequately staffed moving trains, not stopped trains. The 
proposed regulatory text is silent regarding any requirements for the 
location of a second crewmember on a stopped train as FRA suggests that 
this is an issue that should be left for each railroad to decide. Of 
course, any person may address this issue in a comment if it is 
believed that FRA has missed a safety issue and should regulate the 
roles and responsibilities of crewmembers on a stopped train. FRA 
believes that the proposed definition of ``roles and responsibilities'' 
reflects the operational status quo and will not result in any costs or 
benefits. FRA requests public comment on this assumption.

Section 218.127 General Exceptions to Two-Person Crew Requirement

    This proposed section is the first of several sections explaining 
operational exceptions to the general requirements for assigning a 
minimum of two crewmembers on each train specified in proposed Sec.  
218.125(b) and the location requirements for the second crewmember 
found in proposed Sec.  218.125(d). In the analysis for each paragraph, 
FRA explains why each of these operations are not considered complex, 
traveling short distances, at low speeds, or under special operating 
rules, and therefore that they pose a low risk of causing a 
catastrophic accident with a one-person crew. As a reminder, the 
introductory paragraph of this section reiterates that the exceptions 
in this section do not apply when a train is transporting the hazardous 
materials of the types and quantities described in Sec.  218.125(c). 
This proposed section is intended to cover those general exceptions 
that apply to both passenger and freight trains.
    In this proposed section, five general exceptions are identified. 
The exceptions are written in such a way that all of the operations can 
easily be described in three words or less. As FRA has been able to 
describe the operation in such shorthand, the regulatory text uses 
those descriptions at the beginning of each paragraph to help convey to 
the reader where the exception can be found.
    In paragraph (a), the proposed rule would except trains performing 
helper service from the two-person crew minimum requirement. Rather 
than define what helper service means in the definitions section, the 
regulatory text contains sufficient information to explain what the 
term means. The proposed paragraph states that a train is performing 
helper service when it is using a locomotive or group of locomotives to 
assist another train that has incurred mechanical failure or lacks the 
power to traverse difficult terrain. Helper service is a common service 
performed in the railroad industry as a one-person operation. It is 
typically not considered a complex operation as the locomotive engineer 
would be required to operate to the train needing assistance, and then 
couple to the train in order to provide assistance pushing or pulling 
it. The proposed paragraph clarifies that helper service is not limited 
to the time that the helper locomotive or locomotives are attached to 
the train needing assistance. That is, helper service also includes the 
time spent traveling to or from a location where assistance is 
provided. As with all these exceptions, a railroad may decide that a 
certain helper service operation is more complex and that more than one 
crewmember should be assigned to the helper service train; however, 
considering that cars are not attached and a railroad has an incentive 
to not dispatch a helper service train from a great distance away from 
the train needing assistance, FRA does not believe this type of 
operation poses a great risk to railroad employees or the general 
public.
    Proposed paragraph (b) excludes a train that is a tourist, scenic, 
historic, or excursion operation that is not part of the general 
railroad system of transportation from the two-person crew requirement. 
In Sec.  218.123, FRA defined these operations as ``a tourist, scenic, 
historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).'' 
Excluding these types of operations from this proposed rule is 
consistent with FRA's jurisdictional policy that already excludes these 
operations from all but a limited number of Federal safety laws, 
regulations, and orders. Because these operations are off the general 
system, the general public does not have to worry that the train could 
collide with a train carrying hazardous materials or a commuter 
passenger train. Proposed paragraph (b) would exclude tourist 
operations from the two-person crew requirement regardless of whether 
the operations are ``insular'' or ``non-insular.'' If the tourist 
operation is ``non-insular,'' it is possible that the train

[[Page 13947]]

could collide with a motorist at a highway-rail grade crossing. 
However, these ``non-insular'' operations would generally involve 
relatively short tourist-type trains operating at slow speeds thereby 
reducing the probability of an accident with a motorist or even a 
serious derailment. Additionally, tourist operations usually have 
plenty of paid or volunteer train crewmembers that can assist any 
passengers in case of an emergency.
    Similar to the safety rationale for the proposed helper service 
exception, proposed paragraph (c) would exempt lite locomotives or a 
lite locomotive consist from the two-person crew requirement. That is, 
when a locomotive or a consist of locomotives is not attached to any 
piece of equipment, or attached only to a caboose, the railroad is 
conducting a type of limited operation that generally poses less of a 
safety-risk to railroad employees or the general public. Lite 
locomotives would mainly be operating as a train in order to move the 
locomotives to a location where the locomotives could be better 
utilized for revenue trains that are taking or delivering rail cars to 
customers, or to other railroad yards where the locomotives can be used 
in switching operations. Additionally, lite locomotives may be 
operating as a train in order to take more than one locomotive to a 
repair shop for servicing. The proposed paragraph includes a definition 
of ``lite locomotive'' rather than including the definition in the 
subpart's definition's section. The definition proposed is consistent 
with the definition in FRA's Railroad Locomotive Safety Standards 
regulation found in 49 CFR 229.5. However, this NPRM includes a further 
clarification that lite locomotive ``excludes a diesel or electric 
multiple unit (DMU or EMU) operation.'' The reason for this additional 
clarification is that a DMU or EMU is a locomotive that is also a car 
that can transport passengers, and if the proposed rule did not contain 
this clarification then it could be interpreted that a passenger train 
containing either a single or multiple DMUs or EMUs would not need a 
minimum of two crewmembers. FRA has further clarified DMU/EMU 
exceptions for passenger trains in proposed Sec.  218.129.
    Proposed paragraph (d) would exempt work train operations from the 
two-person crew requirement. ``Work train'' is defined in this 
paragraph as operations where a non-revenue service train of 4,000 
trailing tons or less is used for the administration and upkeep service 
of the railroad. This portion of the proposed definition of work train 
is the same as the definition FRA provided for in 49 CFR 232.407(a)(4), 
in a regulation requiring end-of-train (EOT) devices. FRA considered 
whether it is necessary for the work train exception to have a trailing 
tons limitation. FRA considered that a work train with 4,000 trailing 
tons would allow a railroad to operate a work train with potentially up 
to 50 cars attached to locomotives. A work train that contains up to 50 
cars provides a railroad with a lot of flexibility in permitting such 
trains to be operated without a minimum of two crewmembers. Again, some 
railroads may voluntarily choose to assign two crewmembers even where 
the proposed rule does not require it. Meanwhile, a work train with 
more than 4,000 trailing tons appears to be getting so long that 
additional operational complexities are likely to arise where a second 
crewmember would be extremely beneficial for safety purposes. For 
example, if a train had to stop so a crewmember could throw a hand-
operated switch, and the switch had to be returned after use, it is 
possible that the train could be blocking a highway-rail grade crossing 
for twice as long if a one-person operation required walking the length 
of the train round-trip versus a second crewmember being dropped off 
and only walking one way. Finally, the proposed exception for work 
trains engaged in maintenance and repair activities on the railroad 
includes when the work train is traveling to or from a work site. Work 
trains mainly haul materials and equipment used to build or maintain 
the right-of-way and signal systems. Work trains are unlikely to be 
hauling hazardous materials (unless extra fuel is needed to power 
machinery) and are generally not considered complex operations. They 
often travel at restricted speed, which is a slow speed in which the 
locomotive engineer must be prepared to stop before colliding with on-
track equipment or running through misaligned switches. FRA would 
appreciate comments on the range of safety risks posed by work trains 
and the 4,000 trailing tons limitation to see if it is too expansive.
    Proposed paragraph (e) would permit an exception to the two-person 
crewmember requirement whenever remote control operations are conducted 
under certain circumstances. Because the general requirement for a two-
person crew minimum only applies to trains, and the definition of train 
excludes switching service, this exception applies to the use of a 
remotely controlled locomotive (RCL) that is traveling between yards or 
customers' facilities, with or without cars. Typically, RCL operations 
involved in switching will have a crew consisting of either one or two 
crewmembers. However, in switching, an RCL operation with two 
crewmembers is not a traditional locomotive engineer and conductor 
train crew arrangement. Instead, each crewmember would have a remote 
control transmitter and would alternate taking turns controlling the 
RCL when the RCL was in close proximity to that crewmember. This 
``pitch and catch'' arrangement is more like having two independent 
one-person crews who can do all the duties of both a locomotive 
engineer and a conductor.
    Although FRA has long perceived RCL operations as being best 
utilized for switching services, it is understandable that a railroad 
might need to move an RCL from one location to another where the RCL 
can be more efficiently used. FRA has recently become aware that more 
railroads appear to find it an acceptable practice to use a one-person 
RCL job to service customers. FRA does not find the practice inherently 
unsafe given the limitations of the technology. However, FRA might be 
more concerned if railroads tried to operate the one-person RCL jobs at 
speeds greater than 15 mph, and with increased complexity beyond the 
known acceptable limitations previously acknowledged by the industry. 
The NPRM reflects these acceptable limitations and a copy of the 
correspondence reflecting those agreed upon limitations has been added 
to the docket.
    The RCL operations limitations do not contain a distance 
restriction, although FRA's guidance on the issue explained that the 
agency expected that an added limitation would be for these operations 
to be restricted to main track terminal operations. Considering the 15 
mph speed restriction, FRA did not anticipate that RCL operations would 
expand beyond main track terminal operations. Although FRA does not 
believe that RCL operations that are so limited need a distance 
restriction, FRA would appreciate any comments on this issue.

Section 218.129 Specific Passenger Train Exceptions to Two-Person Crew 
Requirement

    This proposed section permits specific passenger train exceptions 
to the general requirements for assigning a minimum of two crewmembers 
on each train. Three exceptions that apply only to passenger trains 
have been identified in this proposed section. Although no consensus 
was reached during the RSAC deliberations, FRA believes the

[[Page 13948]]

passenger railroad community was satisfied that these exceptions would 
be adequate to prevent serious disruptions in passenger train service 
without taking on great safety risks.
    In paragraph (a), the proposed rule would allow a passenger train 
operation with less than two crewmembers in which the passenger train's 
cars are empty of passengers and are being moved for purposes other 
than to pick up or drop off passengers. The exception clearly does not 
apply just because a passenger train happens to be empty of passengers. 
Passenger trains might need to be moved without passengers for repairs 
or for the convenience of the railroad.
    Although empty passenger trains pose some of the same safety 
concerns as trains loaded with passengers (e.g., excessive speed, 
compliance with signal indications, and safety at highway-rail grade 
crossings), many commuter operations are designed for only one person 
in the cab of the controlling locomotive. In proposing this exception, 
FRA is showing a willingness to recognize the reduced safety concerns 
of these empty passenger train operations and leave it to each railroad 
to determine whether there are other adequate safeguards in place to 
ensure that the one-person operation is safe. Certainly, FRA does not 
expect this proposed rule will encourage those railroads that operate 
with a minimum of a two-person crew on empty passenger trains to take 
undue risk by taking the second crewmember off this assignment. 
Instead, FRA is trying to avoid a situation where the proposed rule 
would require adding a second crewmember who is essentially not 
performing any safety functions. The exception is geared more to 
address the lack of a need for more than one crewmember on a train with 
no passengers. On passenger trains, one of the central safety concerns 
is how the crew will protect the passengers when getting on or off the 
train, or in case of an emergency. If the train does not have any 
passengers on board and will not be picking up any passengers, a second 
crewmember is not needed to address any passenger's safety concerns. On 
the other hand, if passenger trains may encounter freight trains on the 
same track or an adjacent track, if switches need to be thrown, or if 
the train will be engaging in shoving or pushing movements, it may be 
beneficial to add a second crewmember to address these operating 
conditions or any potential emergency situations.
    In proposed paragraph (b), an exemption from the two-person crew 
minimum is permitted to recognize operations that FRA has previously 
determined could potentially be operated safely with a one-person crew. 
The exception to the two-person crew general requirement is for a 
passenger train operation involving a single self-propelled car or 
married-pair unit, e.g., a DMU or EMU operation, where the locomotive 
engineer has direct access to the passenger seating compartment and 
(for passenger railroads subject to 49 CFR part 239) the passenger 
railroad's emergency preparedness plan for this operation is approved 
under 49 CFR 239.201. As previously addressed in the analysis for the 
lite locomotive exception in Sec.  218.127(c), a DMU or EMU is a 
locomotive that is also a car that can transport passengers. These 
self-propelled cars may be coupled together to form a train but are 
often designed so that a person cannot walk to another car without 
getting off the train. A married-pair unit is about the length of two 
cars, but allows a person to walk between the two cars/units without 
getting off the train. In only one instance has FRA approved the 
emergency preparedness plan for a one-person crew passenger train 
operation with the consideration that the sole crewmember could stop 
the train and assist the passengers without stepping off the train in 
an emergency. In deciding whether to approve an emergency preparedness 
plan, FRA will also consider the physical characteristics of the 
territory and how the operation would have the potential to put 
passengers in danger in case of a train breakdown, accident, or 
evacuation. For example, FRA will consider whether passengers could 
easily evacuate from the train with minimal assistance. Some passenger 
cars have door thresholds that are 48 to 51 inches above the top of the 
rail. With the door that high off the ground, a ladder would need to be 
deployed and some passengers would likely need assistance evacuating 
down the ladder to an area of safety. Even with good signage, 
passengers who are not trained to know what to do in an emergency might 
not realize the ladder is available, might not know how to deploy it, 
or might assume additional risk by rushing to evacuate without 
deploying it. This is exactly the type of situation where a trained 
second person could provide valuable assistance. Thus, if an emergency 
preparedness plan is required, FRA approval of that plan utilizing a 
one-person operation is an essential element of being able to utilize 
this proposed exception.
    In the proposed paragraph (b) exception, FRA has considered the 
concerns of tourist railroads that would not be subject to the Sec.  
239.201 emergency preparedness plan FRA approval requirement. Tourist 
railroads, including general system tourist roads, are not subject to 
49 CFR part 239, as that passenger train emergency preparedness 
regulation is expressly inapplicable to ``[t]ourist, scenic, historic, 
or excursion operations, whether on or off the general railroad 
system.'' See 49 CFR 239.3(b)(3). Therefore, general system and non-
general tourist operations are not subject to Sec.  239.201. In 
proposing this exception, FRA certainly did not mean to create a new 
requirement for a tourist railroad to comply with the passenger train 
emergency preparedness regulation in part 239. Thus, this exemption 
expressly requires FRA approval under Sec.  239.201 only for passenger 
railroads subject to 49 CFR part 239.
    In proposed paragraph (c), an exception from the two-person crew 
requirement is offered for a rapid transit operation in an urban area 
that is connected with the general railroad system of transportation 
under certain conditions. The exception itself clarifies that a rapid 
transit operation in an urban area means an urban rapid transit system 
or a light rail transit operator. For the exception from the two-person 
crew requirement to be used, a railroad operating a rapid transit 
operation in an urban area connected with the general system must 
ensure that all three listed conditions are met. First, the biggest 
safety concern with these rapid transit operations on the general 
system is that they have the potential to collide with much heavier 
freight or passenger trains. In such a collision, the rapid transit 
train is likely to suffer significant equipment damage and the 
potential for catastrophic injuries to passengers would be great. By 
requiring that these operations be ``temporally separated from any 
conventional railroad operations,'' the NPRM clarifies that the rapid 
transit operations could not potentially collide with heavier, 
conventional train operations unless the operations were not properly 
temporally separated. A temporally separated light rail operation on 
the general system is required to obtain an FRA-approved waiver 
demonstrating an acceptable level of safety, so FRA would have 
assurances that the operation can be conducted safely. See 49 CFR part 
211, app. A, V. Waivers That May Be Appropriate For Time-Separated 
Light Rail Operations. The second and third conditions that must be met 
relate to the fact that these rapid transit operations in

[[Page 13949]]

an urban area on the general system may be subject to the U.S. 
Department of Transportation, Federal Transit Administration's (FTA) 
jurisdiction. FRA does not want to assert jurisdiction over an 
operation where FTA is already asserting adequate jurisdiction to 
assure safety for railroad employees and the general public.

Section 218.131 Specific Freight Train Exceptions to Two-Person Crew 
Requirement

    This proposed section permits specific freight train exceptions to 
the general requirements for assigning a minimum of two crewmembers on 
each train. As a reminder, the introductory paragraph of this section 
reiterates that the exceptions in this section do not apply when a 
train is transporting the hazardous materials of the types and 
quantities described in Sec.  218.125(c). Three exceptions that apply 
only to freight trains have been identified in this proposed section.
    Proposed paragraph (a) identifies two specific freight train 
exceptions that are only applicable for small railroads known as Class 
III railroads. These exceptions are FRA's attempt to provide additional 
relief to small businesses in the railroad industry, in addition to the 
relief granted by the exceptions in the other sections of this proposed 
rule. As a prerequisite to using either of the small railroad 
exceptions, the railroad must determine whether the train will be 
operated on a railroad and by an employee of a railroad with less than 
400,000 total employee work hours annually. If that is the case, there 
are two types of operations identified where a train can be operated 
with less than the required two-person crew.
    The first excepted small railroad operation would take place at 
speeds not exceeding 25 mph and at locations where there are no heavy 
grades. For this exception to be used, FRA has described heavy grade as 
being equal to or more than 1 percent over 3 continuous miles or 2 
percent over 2 continuous miles. In FRA's experience, Class III 
railroads that operate trains over their own track, at relatively slow 
speeds, and over territory without steep hills or mountains, do not 
pose an unacceptable safety risk to the general public or railroad 
employees if conducted with only one crewmember. Most Class III 
railroads maintain their own track to no greater than Class 2 track 
standards, which allow freight trains to be operated at speeds no 
greater than 25 mph anyway. See 49 CFR 213.9. Again, this is a minimum 
standard and a Class III railroad could certainly require two or more 
train crewmembers if the operation's safety would be compromised by 
using only one person.
    The second excepted small railroad operation would take place at 
speeds not exceeding 25 mph and where a second train crewmember is 
assigned, but is not continuously on or observing the moving train as 
would be expected of a second crewmember. Instead, the second 
crewmember is assigned to intermittently assist the train's movements 
at critical times. For example, the second train crewmember may be 
``shadowing'' the train by traveling alongside the train in a motor 
vehicle. The second crewmember could assist with flagging a highway-
rail grade crossing, throwing hand-operated switches, or switching 
service when the train enters a yard or customer's facility. The second 
crewmember must also have the ability to directly communicate with the 
crewmember in the cab of the controlling locomotive. Such communication 
is essential to holding any required job briefings to exchange critical 
information about upcoming restrictions or difficult operational 
concerns. Most commonly, communication in this context will be by radio 
(or other wireless electronic devices in accordance with railroad rules 
and procedures and FRA's railroad communications regulation found at 49 
CFR part 220), and direct communication means that the crewmembers have 
the ability to communicate with one another without going through an 
intermediary, such as a dispatcher. The proposed requirement focuses on 
the second train crewmember's ability to communicate with the 
locomotive engineer, but the expectation is that the engineer would 
also have the ability to directly communicate with the second 
crewmember and request assistance, and that the second crewmember would 
be able to quickly respond. In this exception, a small railroad 
operation is assigning a second crewmember but has the flexibility to 
have the second crewmember travel separately from the train. During the 
RSAC deliberations, shortline railroad representatives expressed a 
request for this type of flexibility. As these operation are to be 
conducted at relatively low speeds and under conditions where the one-
person crew on board the train is intermittently assisted, it appears 
that the second crewmember can play a critical role in improving the 
safety of the operation even if the person is not on board or observing 
the moving train at all times.
    The third specific freight train exception to the two-person crew 
general requirement in this proposed section can be found in paragraph 
(b). The title of this proposed paragraph indicates that it is intended 
to apply to what are commonly referred to as mine load-out or plant 
dumping operations. Even if the railroad does not use one of those 
terms, any similar operation which involves a freight train being 
loaded or unloaded in an assembly line manner at an industry while the 
train moves at 10 mph or less would be excepted from the two-person 
crew requirement. The exception is generous in that it allows these 
operations to be conducted at up to 10 mph. FRA expects that most of 
these loading or unloading operations will take place at under 6 mph, 
but has expanded the maximum speed to 10 mph in order to give each 
railroad plenty of leeway without impacting the efficiency of the 
loading or unloading operation. Some of these operations are overseen 
by a person in a tower or on the ground that can provide oversight into 
whether the cars are being loaded or unloaded properly. That person 
would be expected to be able to communicate with the locomotive 
engineer operating the train. As these operations are most likely being 
conducted at a railroad yard or a customer's facility, and at low 
speeds, the railroad and its customer are assuming the risk of not 
having a second crewmember engaged or not operating at a safe speed. 
Considering the low speeds and low safety risk to railroad employees 
and the general public, FRA believes an exception to the two-person 
crew requirement is warranted.

Section 218.133 Continuance of Freight Operations Staffed Without a 
Two-Person Train Crew Prior to January 1, 2015

    This is the first of two proposed sections in which FRA is co-
proposing two options. In this proposed section, each railroad may 
continue any one-person train operations that were conducted prior to 
January 1, 2015, as long as (1) the train is not transporting the 
hazardous materials of the types and quantities described in Sec.  
218.125(c) and, (2) after submitting a description of the operations, 
FRA does not find that the operation poses unacceptable safety risks 
and the railroad has implemented or agreed to implement off-setting 
actions required by FRA. FRA is not proposing to include in the 
regulatory text the ``unacceptable safety risks'' standard described 
here, or make approval decisions using a set of conditions or 
performance standard(s). FRA does not believe a one-size-fits-all 
approach will work. Each railroad will need to present its particular 
one-person operations and make the case that the

[[Page 13950]]

safety concerns added by reducing crew staff have been addressed in 
some reasonable manner. FRA is not willing to say that PTC by itself is 
enough because even PTC has its limitations. FRA wants to see that a 
railroad has built in contingencies for expected, routine problems 
(e.g., flagging or blocking grade crossings) and rare, but possibly 
catastrophic, accidents/incidents.
    In determining whether a request poses unacceptable risks, FRA will 
look at acceptable industry standards and available mitigating 
practices. FRA railroad safety data will be reviewed and FRA may use a 
focused inspection. FRA requests public comments on ways to 
differentiate acceptable safety risk versus unacceptable safety risk.
    FRA intends to begin its assessment of a request to continue using 
a one-person crew operation believing that there are few one-person 
operations existing currently, and that those operations have not yet 
raised serious safety concerns. Thus, FRA expects to approve existing 
operations as long as the railroads with existing operations make a 
reasonable showing that the safety concerns of reducing crew size were 
addressed by taking other off-setting actions that likely formed the 
basis supporting the operation's safe compliance history. A railroad 
can satisfy FRA's concerns by showing that the railroad has taken a 
sensible business approach to analyzing the operation and reducing the 
risks and hazards associated with reducing train crews to less than two 
crewmembers. However, FRA considers this an approach that puts safety 
interests ahead of business cost considerations. The expectation is 
that the approval process will largely pin down the status quo for 
current one-person train operations that are methodically implemented. 
FRA will be critical of operations that fail to show careful planning 
to reduce the likelihood of mishaps and reduce collateral damages in 
the event of an accident. FRA has promulgated other rules that seek to 
freeze the status quo, including the following, and expect the approval 
process contemplated in this rule to work similarly:
    1. 49 CFR Part 232--Brake System Safety Standards for Freight and 
Other Non-Passenger Trains and Equipment; End-of-Train Devices, 
(Sec. Sec.  232.103, 232.305, and 232.603): Adopting AAR's standard for 
single car air brake tests and ECP braking systems, as well as AAR's 
general requirements for all train brake systems except where noted. 66 
FR 4193, Jan. 17, 2001; 74 FR 25174, May 27, 2009, RIN 2130-AB16.
    2. 49 CFR Part 214--Railroad Workplace Safety (Sec. Sec.  214.113, 
214.115, and 214.117): Adopting American National Standards Institute's 
(ANSI) standards for protective headwear and footwear for industrial 
workers in the context of railroad bridge workers. ANSI standards also 
adopted for occupational and educational eye and face protection when 
workers face physical, chemical, or radiant agents. 57 FR 28127, Jun. 
24, 1992, RIN 2130-AA48.
    3. 49 CFR Part 218--Railroad Operating Practices, Subpart F: This 
subpart was based on a Secretarial initiative to reduce human factor-
caused accidents. The rule adopted certain universally accepted 
railroad operating rules related to the handling of equipment, 
switches, and fixed derails with the goal that making the operating 
rules Federal requirements would bring greater accountability. FRA 
emphasized that an enforcement mechanism is necessary ``because prior 
reliance on the railroad to ensure employee compliance with railroad 
operating rules without a Federal enforcement mechanism has repeatedly 
proven to be inadequate to protect the public and employee safety.'' 73 
FR 8442, 8446, 8449, Feb. 13, 2008, RIN 2130-AB76.
    4. 49 CFR Part 224--Reflectorization of Rail Freight Rolling Stock 
(Sec.  224.15): Adopting standards for the characteristics of 
retroreflective sheeting developed by ASTM International, formerly 
known as the American Society for Testing and Materials (ASTM), which 
is a globally recognized leader in the development and delivery of 
international voluntary consensus standards. 70 FR 62166, Oc. 28, 2005, 
RIN 2130-AB68.
    5. 49 CFR Part 229--Railroad Locomotive Safety Standards 
(Sec. Sec.  229.205 and 229.217): Adopting AAR's locomotive 
crashworthiness standard. 71 FR 36912, Jun. 28, 2006, RIN 2130-AB23.
    6. 49 CFR Part 238--Passenger Equipment Safety Standards 
(Sec. Sec.  238.115, 238.121, 238.125, 238.127, 238.229, 238.230, and 
238.311): Adopting the American Public Transportation Association's 
(APTA) standards for emergency lighting, emergency intercom 
communication, emergency signage for egress/access of passenger rail 
equipment, low-location emergency exit path marking, any repair to a 
safety appliance bracket or support considered to be part of the car 
body or other structural repair, and single car air brake tests. 64 FR 
25660, May 12, 1999, RIN 2130-AA95.
    FRA seeks comments on the successes and challenges of these rules 
and the extent they should be used as a model for this rule.
    A railroad may review its one-person operations and find that most 
or all of these operations are already acceptable to FRA as indicated 
by other sections in this proposed rule. Obviously, if FRA has proposed 
a blanket exception to the two-person train crewmember requirement for 
a particular type of operation industry-wide, it would be unnecessary 
for the railroad to comply with this proposed section. FRA has 
encountered difficulty understanding the scope of all the one-person 
train operations currently being used even though FRA made repeated 
requests to the RSAC Working Group members for information, AAR and 
ASLRRA have provided some generalized information, and FRA has surveyed 
its own regional staff. Each time FRA met with the RSAC Working Group, 
it seemed that FRA learned about a new type of one-person operation, 
but without much detail that would allow FRA to determine that any 
particular operation was actually safe. Thus, the purpose of this 
proposed section is to provide FRA with some needed oversight to ensure 
that railroads are not conducting operations that pose significant 
safety risks to railroad employees or the general public.
    If a railroad wants to continue a one-person operation begun prior 
to January 1, 2015, proposed paragraph (a) in both options requires 
that the railroad submit a description of the operation to the 
Associate Administrator within 90 days of the effective date of this 
rule. Eleven numbered items are listed under proposed paragraph (a) 
that a railroad would be required to address in its description of the 
operation it would like to continue. A railroad should provide a 
thorough description of the operation, and the 11 numbered items are 
intended to solicit a complete picture of the risks associated with the 
operation as well as how much thought the railroad's operations 
managers have given to whether the operation can provide an appropriate 
level of safety.
    FRA proposes to require railroads to provide the location of the 
continuing operation with as much specificity as can be provided as to 
industries served and territories, divisions, or subdivisions operated 
over. Documentation supporting the locations of prior operations will 
be favorably reviewed, although not required. This provision goes to 
proving that an operation is going to be continued, and that a railroad 
is not falsifying that an operation is in existence when it is actually 
a completely new operation. For example, documentation could

[[Page 13951]]

show that the railroad has run a particular one-person train for 3 days 
per week for 5 years without incident. That kind of information would 
show the operation actually existed and was safe. A railroad that could 
not provide any documentation of a supposedly existing operation would 
be viewed with skepticism. Maybe, FRA would need to interview employees 
and supervisors to determine whether the operation actually existed, 
and to develop the parameters of the operation.
    If the railroad has not previously conducted a safety analysis of 
the one-person train operation that it can use for its submission to 
FRA, it will be required to do one to comply with this proposed rule 
under either option. The difference between the co-proposals is that 
Option 1 requires the safety analysis to be submitted to FRA with the 
description of the one-person train operation while Option 2 requires 
that the railroad conduct the safety analysis and make it available to 
FRA upon request. Railroads that do not maintain separate records on 
the safety of their one-person crew operations will have to describe 
the one-person crew operation and should be able to approximate the 
relevant data. For example, a railroad might describe that on the route 
under consideration: Five one-person trains operate per week on 
average, each train operates a distance of about 50 miles, only one 
train per week carries any hazardous materials, and the one-person 
operation has resulted in two reportable accidents in 10 years, 
providing the dates of the accidents. A railroad might add that there 
are no other train operations in the vicinity of these one-person 
operations when they are active, and that includes on the same track or 
adjacent track. FRA requests public comments on the extent to which 
railroads have sufficient records to provide FRA reliable safety 
analysis or data of their one-person crew operations.
    The requirement for a railroad to provide the eleven numbered items 
listed under proposed paragraph (a) is intended to solicit significant 
information that FRA will need to make an objective decision on whether 
to allow the continuance of an operation established prior to January 
1, 2015. Sometimes, FRA should be able to look at the collected 
information and determine that the operation is in compliance on its 
face with all applicable rail safety regulations and does not appear to 
pose any unacceptable risks. Generally, these operations would be low-
speed operations, on well-maintained track where the one-crewmember 
train would have a fairly predictable schedule or one that minimizes 
fatigue, and would not contain any variables suggesting a catastrophic 
accident is foreseeable. For example, FRA would expect to approve the 
continuation of a freight operation under Option 1, or not issue a 
disapproval under Option 2, under the following circumstances: (1) 70 
Percent or more of the railroad's carload traffic is non-hazardous 
materials; (2) the railroad has adopted crew staffing rules and 
practices to ensure compliance with all Federal rail safety laws, 
regulations, and orders; (3) the maximum authorized track speed for the 
operation is 40 mph; (4) the one-person train crewmembers have set 
daytime schedules with little fluctuation; (5) the one-person train 
crewmembers average on-duty time is less than 9.5 hours per shift; (6) 
the operation is structured so that the one-person crewmember would not 
have to leave the locomotive cab except in case of emergency; (7) the 
railroad has a rule or practice requiring the one-person crew to 
contact the dispatcher whenever it can be anticipated that 
communication could be lost, e.g., prior to entering a tunnel; (8) the 
railroad has a rule or practice requiring the one-person crew to test 
the alerter on the lead locomotive and confirm it is working before 
departure; (9) the railroad has a rule or practice requiring dispatcher 
confirmation with the one-person crew that the train is stopped before 
issuing a mandatory directive; (10) the railroad has a rule or practice 
requiring a one-person crew have an operable cell phone and radio, and 
both must be tested prior to departure; and (11) the railroad has a 
method of determining the train's approximate location when 
communication is lost with the one-person crew unexpectedly and a 
protocol for determining when search-and-rescue operations must be 
initiated. FRA is providing this example for illustrative purposes, to 
spur understanding of the agency's position and encourage public 
feedback. Although FRA feels strongly that the example would meet FRA 
approval, there may be other facts or circumstances about an operation 
beyond the description provided that would change how FRA viewed a 
particular operation. FRA encourages the submission of comments 
describing one-person operations so that FRA can provide additional 
examples in a final rule.
    FRA would be unlikely to approve the continuation of an operation 
under Option 1, or would likely disapprove an operation under Option 2, 
when a railroad's one-person operation has a poor safety record 
compared with the industry average or compared with similar operations 
with one or multiple crewmembers. Other evidence of a poor safety 
culture on the railroad might trigger the need for FRA to conduct an 
investigation to support a determination. If FRA is unsure about any of 
the other risk factors, FRA will want to initiate its own investigation 
to assess the likelihood that the operation can be implemented safely. 
Although FRA is not proposing a requirement that FRA investigate the 
safety concerns of each one-person operation a railroad wishes to 
continue, FRA expects to use its discretion and conduct some 
investigations when FRA is unfamiliar with the operation or wants to 
ensure that the railroad has identified all of the hazards. In addition 
to reviewing records, such an investigation would likely involve FRA 
personnel interviewing railroad employees, supervisors, managers, and 
customers. FRA might want to ride along the route to observe the 
operation in progress, or consider what members of the general public 
along the right-of-way might be impacted in the case of an accident/
incident, especially at public highway-rail grade crossings. 
Furthermore, FRA personnel might also have information through current 
or prior observations and audits that could shed light on the safety of 
a railroad's operations, equipment maintenance procedures, or condition 
of the railroad's track and signal infrastructure. Evaluating a 
railroad's safety record and safety culture follow from the TSB of 
Canada's report following the Lac-M[eacute]gantic accident described in 
the Background section of this NPRM, and from international norms 
described in the Regulatory Impact Analysis that accompanies this 
rulemaking and can be found in the docket.
    FRA does not expect to request or require existing one-person crew 
operations to implement additional risk mitigating actions in order to 
obtain FRA approval unless the process reveals unexpectedly that the 
operations achieved good safety records based on sheer luck and 
inadequate planning. If an existing operation was actually severely 
lacking in existing mitigation measures and the railroad was unwilling 
to address serious safety concerns, FRA would be justified to deem the 
operation unsuitable for continuance as provided for in paragraph (b) 
of both co-proposal options.
    In proposed paragraph (b) Option 1, FRA has taken the approach that 
an explicit approval process for each and every submission is 
necessary. The

[[Page 13952]]

proposed paragraph indicates that FRA expects to issue feedback within 
90 days of receipt of the submission. Under some circumstances, FRA may 
allow the operation to continue but with additional conditions 
attached. For example, a Class III railroad may want to continue an 
operation that permits a one-person train to travel 100 miles each day 
over flat territory where the railroad is maintaining the track to 
Class 3 standards. As the track class permits speeds for freight trains 
up to 40 mph, the railroad would like the train to operate at over 25 
mph up to the maximum authorized speed for the track even though the 
specific freight train exception under proposed Sec.  218.131(a) only 
permits a blanket exception up to 25 mph. During the RSAC Working Group 
meetings, some railroad members suggested that the 25-mph limitation in 
the blanket exception in Sec.  218.131(a) could be a disincentive for a 
railroad to maintain its track to a higher standard than Class 2. As 
proposed, Sec.  218.133 would provide FRA an opportunity to consider 
all the circumstances, to exercise some flexibility in permitting safe 
operations with less than two assigned crewmembers, and assure railroad 
employees and the general public that railroads are not placing them at 
unnecessary risk. This approach strikes a balance between rubber-
stamping the status quo and prohibiting any operation that does not 
meet one of the blanket exceptions to the two-person crew requirement.
    Although proposed paragraph (b) Option 1 does not contain detailed 
procedures for how FRA will conduct reviews, a detailed procedural 
process seems unnecessary. In most instances, FRA expects to review all 
of the details in the submission and issue written notification that 
the railroad may continue the operation ``as is.'' However, FRA 
recognizes that some operations may pose safety risks for which a 
railroad has not accounted by implementing mitigation measures. Under 
those circumstances, FRA intends for the Associate Administrator to 
initiate a discussion with the railroad about the operation before 
making a determination. There may be details of the operation that the 
railroad can expand upon from its submission that would alleviate FRA's 
concerns. In other instances, a railroad might offer to modify its 
operations and submission request voluntarily after a thorough 
discussion of FRA's concerns. In still other instances, FRA and the 
railroad may not be able to resolve their differences and FRA will 
issue written notification explaining what modifications are necessary 
for continuing the operation or an explanation for why FRA has decided 
the operation is patently unsafe and cannot be continued even with 
modifications.
    Although FRA is uncertain about whether any existing operations 
would be inadequate, the background section of this proposal suggests 
concerns that an operation should address, if it does not already. 
FRA's overall concerns are (1) whether a railroad's operations with 
less than two crewmembers are in compliance with all Federal rail 
safety laws, regulations, and orders and (2) whether the railroad 
implemented appropriate measures to reduce safety hazards likely to be 
created by the reduction in crewmembers. With regard to the first 
concern, FRA must enforce compliance with rail safety requirements. For 
example, has the railroad ensured that each person who serves as a one-
person crew is certified as both a locomotive engineer and conductor? 
49 CFR 242.213(d). FRA would be surprised to find such blatant 
noncompliance in existing operations, but it is certainly possible that 
FRA has not detected the noncompliance through its regular inspection 
and investigation program. Currently a railroad does not have a duty to 
report to FRA on the aspects of its one-person train crew operations. 
With regard to the second concern involving a railroad's plans to 
reduce foreseeable safety hazards likely to be created by the reduction 
in crewmembers, FRA suggests that each railroad look to the regulatory 
safety hazards FRA described in the background section of this proposal 
to see if it addressed those same hazards. For example, a railroad 
should anticipate that trains will need assistance protecting certain 
highway-rail grade crossings because of the inconvenience to highway 
users, emergency responders, or the general public if those crossings 
are blocked. A railroad that can show FRA that it has an established 
procedure to quickly unblock or protect crossings that would normally 
be protected by a second crewmember would satisfy FRA's concern. FRA 
also raised the concern in the background section of this proposal that 
a one-person crew would have greater opportunities to operate impaired 
by alcohol, drugs, or electronic device distraction. A railroad that 
requires a one-person train crew to report to a supervisor at the 
beginning or end of a tour of duty, or that periodically stops trains 
during efficiency testing to check for potential distractions, would 
allay those concerns. In closing, FRA believes a railroad that is in 
compliance with all rail safety laws, regulations, and orders, and has 
addressed foreseeable safety hazards created when a train has less than 
two crewmembers by making changes to the railroad's operating rules, 
procedures, or practices, can expect to receive FRA approval to 
continue its one-person operation.
    Proposed paragraph (b) Option 2 differs from Option 1 in that it 
does not require explicit FRA approval prior to continuing one-person 
train operations that were conducted prior to January 1, 2015. However, 
Option 2 proposes a requirement that the railroad file a description of 
the operation with FRA prior to continuing the operation. FRA 
understands that some one-person operations may be seasonal, and others 
year-round. It is proposed that those railroads that will be operating 
at the time of the effective date of the rule will be required to file 
its description either no later than the effective date of the final 
rule or prior to the first day that the operation is continued after 
the effective date of the final rule. Option 2 differs from Option 1 in 
that one-person operations that were operating prior to January 1, 
2015, will be presumed to have been operating with an adequate level of 
safety, unless FRA determines otherwise. An FRA determination 
disapproving the continuation of any operation would need to contain 
the facts and rationale relied upon in making that determination. FRA 
certainly realizes that any final agency decision is an action that is 
potentially reviewable in Federal court and would need to contain 
sufficient information to survive legal scrutiny.
    FRA is considering how to provide an electronic way to file a 
description of an operation that a railroad would like to continue 
without a two-person crew. One option is for FRA to require the 
submission of all the descriptions to one docket created for the 
purpose, or to create a docket for each description, at DOT's Docket 
Operations and at http://www.regulations.gov. Another option is to add 
to the proposed rule an option to electronically file by email or by 
uploading a document to a secure Web site. Under this second option, 
FRA would need to create an internal electronic database to track all 
of the descriptions and FRA notifications, if any. FRA may consider 
other options to electronically file or maintain databases of these 
descriptions. A third option is to publish information available via 
FRA's public Web site. FRA has chosen this third option as its proposal 
in paragraph (b) of Option 2. In Option 2, FRA also has proposed a 
requirement

[[Page 13953]]

that specifies that a railroad has a duty to adhere to any conditions 
FRA imposes on the railroad's one-person operation. FRA would 
appreciate any comments suggesting preferences for any particular 
methods of filing and the need to specify that a railroad must adhere 
to any conditions imposed by FRA.
    FRA is proposing a cut-off period of January 1, 2015, to 
differentiate existing operations from new operations because it wants 
to freeze the timeframe based on when the RSAC meetings were held. FRA 
seeks comments on whether a different date should be used and why.

Section 218.135 Special Approval Procedure

    This is the second of two proposed sections in which FRA is co-
proposing two options. This proposed section would offer each railroad 
a procedure to obtain FRA-approval for a start-up method of train 
operation that does not meet the requirements of the general two-person 
crew requirements, any of the blanket exceptions, or the continuance of 
operations prior to January 1, 2015, exception. The special approval 
procedure has been used in other FRA regulations with success (see, 
e.g., 49 CFR 232.17), and is, therefore, a proven method for receiving 
FRA-approval in much less time than the waiver process provided for in 
49 CFR part 211 and Sec.  218.7. For a waiver, FRA may need up to 9 
months to issue a decision. 49 CFR 211.41(a). In contrast, proposed 
paragraph (f) in Option 1 states that FRA intends to normally issue a 
decision under this section's special approval procedure within 90 
days. If a railroad submits a petition for special approval of an 
operation with less than two crewmembers based on a sensible business 
plan that adequately addresses the safety hazards, FRA anticipates the 
agency's analysis would be routine in nature and a decision can quickly 
be issued. However, if a passenger railroad intends to reduce crew 
staffing, it must have an approved passenger train emergency 
preparedness plan or file a waiver request with FRA regarding part 239, 
passenger train emergency preparedness, in this chapter; however, 
rather than wait until FRA approves the part 239 plan or waiver 
request, a passenger railroad is encouraged in proposed paragraph (a) 
to file a request for special approval of an operation with less than 
two crewmembers at the same time that it files the part 239 waiver 
request. FRA can certainly consider both requests at the same time.
    Under paragraphs (b) and (e) in Option 2, FRA proposes to allow a 
railroad to initiate a train operation with less than two crewmembers 
as long as: (1) The railroad provides FRA a complete description of the 
operation and (2) the railroad officer in charge of operations signs a 
statement attesting a safety analysis of the operation has been 
completed and that the operation provides an appropriate level of 
safety. In Option 2 under paragraph (e), FRA would not have a need to 
issue approval decisions as approval would be presumed after the 
descriptive information and attestation is submitted to FRA. FRA would 
be able to investigate such operations to evaluate whether they are 
providing appropriate safety. FRA may halt or attach conditions to the 
continuance of such operations if it determines that an operation is 
not providing an appropriate level of safety. FRA will consider the 
benefits and costs of conditions, as well as safety impacts, and 
provide the basis for halting or adding conditions to operations to the 
railroad and the public. This information can be used by other 
railroads considering initiating train operations with less than two 
crewmembers. An FRA determination disapproving a petition for special 
approval would need to contain the facts and rationale relied upon in 
making that determination. FRA certainly realizes that any final agency 
decision is an action that is potentially reviewable in Federal court 
and would need to contain sufficient information to survive legal 
scrutiny.
    Even with the shorter turnaround time compared to the waiver 
process, FRA envisions the special approval process contemplated in 
Option 1 will work similarly to other special approval processes used 
in existing regulations, although the standard in both co-proposal 
options of this rule are an appropriate level of safety and FRA's rules 
generally require an equivalent level of safety for a special approval 
to be granted. The following are examples of existing special approval 
processes:
    1. Rules of Practice, 49 CFR 211.55: FRA has an overarching special 
approval procedure for any requests pertaining to safety not otherwise 
provided for in any FRA rule. These requests will be considered by 
FRA's Railroad Safety Board. 41 FR 54181, Dec. 13, 1976, No RIN found.
    2. Reflectorization of Rail Freight Rolling Stock, 49 CFR 224.15: 
This special approval procedure provides a mechanism for FRA review of 
requests to apply, inspect, or maintain retroreflective sheeting ``in 
accordance with an alternative standard providing at least an 
equivalent level of safety.'' 70 FR 62166, Oct. 28, 2005, RIN 2130-
AB68.
    3. Railroad Safety Appliance Standards, 49 CFR 231.33: Procedure 
for special approval of existing industry safety appliance standards 
that ``provide at least an equivalent level of safety.'' 76 FR 23726, 
Apr. 28, 2011, RIN 2130-AB97.
    4. Brake System Safety Standards for Freight and Other Non-
passenger Trains and Equipment; End-of-Train Devices, 49 CFR 232.17: 
Special approval procedure (found in 49 CFR part 232, subpart A), 
provides for requests for special approval of a variety of requirements 
including a plan for the movement of defective equipment and any 
alternative standard or test procedure for conducting single car air 
brake tests. The alternative must be ``consistent with the guidance . . 
. and will provide at least an equivalent level of safety or otherwise 
meet the requirements contained in this part.'' 66 FR 4193, Jan. 17, 
2001, RIN 2130-AB16.
    5. Passenger Equipment Safety Standards, 49 CFR 238.21: Special 
approval procedure (found in subpart A--General), provides for requests 
for special approval of a variety of requirements including fire 
safety, locomotive fuel tanks, safety appliances, and periodic brake 
equipment maintenance. The alternative must ``provide at least an 
equivalent level of safety.'' 64 FR 25660, May 12, 1999, RIN 2130-AA95.
    In Option 1, the proposed special approval procedure contains three 
safeguards to ensure that interested parties are involved in the review 
process. First, proposed paragraph (b)(4) requires a statement 
affirming that the railroad has served a copy of the petition on the 
president of each labor organization that represents the railroad's 
employees subject to this part, if any, together with a list of the 
names and addresses of the persons served. Second, proposed paragraph 
(d) requires FRA to publish a notice in the Federal Register concerning 
each petition. Third, proposed paragraph (e) provides a 30-day comment 
period for any person who wishes to file a comment on the petition.
    Under paragraph (b) of both co-proposal options, the petition for 
special approval of a train operation with less than two crewmembers 
must contain certain basic information regarding the petitioner's 
contact information. Both co-proposal options contain the requirements 
for what the substantive portion of the petition must contain. All of 
the information requested in proposed paragraphs (b)(2) and (b)(3) of 
Option 1 are intended to give FRA a

[[Page 13954]]

detailed understanding of the operation and why the railroad believes 
the operation is safe.
    The proposed requirements for a railroad's submission under Option 
2 differs from Option 1 in that a safety analysis must be completed, 
but does not have to be submitted with the description of the one-
person operation. Under Option 2, FRA proposes to more greatly rely on 
each railroad's judgment and incentives to provide safe operations. A 
safety officer would be required to provide a statement that the 
railroad had conducted a safety analysis of the start-up operation 
which would address potential safety hazards and regulatory compliance 
concerns associated with the one-person operation and that the officer 
believes the operation would have an appropriate level of safety. 
Because of the proposed attestation, FRA is proposing to allow start-up 
one-person operations prior to FRA's review and approval as proposed in 
Option 1. However, FRA may request that safety analysis and a railroad 
will be obligated to provide it.
    Option 2 is proposed to permit railroads to begin operations with 
less than two crewmembers without FRA approval and places the burden on 
FRA when reviewing railroads' applications to justify that the 
operation does not provide an appropriate level of safety. Under Option 
2, in response to a railroad's application to use less than two 
crewmembers on an operation, which would include a certification from 
the railroad that it has conducted a safety analysis and has determined 
that the operation provides an appropriate level of safety, FRA would 
need to identify specific safety hazards created by or exacerbated by 
use of less than two crewmembers--supported by specific empirical, 
statistical, or other similar types of evidence--in order to overcome 
the railroad's certification. Option 2 may place a slightly higher 
burden on FRA than Option 1 depending on the involved safety hazard and 
because FRA may need to review and observe the actual operation and 
will need to consider information gathered on the already existing 
operation.
    In addition, because under Option 2 FRA would be overriding a 
railroad's safety certification if FRA were to attach conditions to or 
halt an operation, FRA considered including language in the Option 2 
proposal which would require FRA to ``demonstrate'' instead of make a 
``determination'' that the operation does not provide an appropriate 
level of safety to capture a higher evidentiary burden on FRA. However, 
FRA chose not to include this term in the Option 2 proposal because FRA 
believes it would place too high of an evidentiary burden on FRA and 
would create significant uncertainty as to what FRA must establish in 
order to attach conditions to or halt an operation. While FRA provides 
a presumption that the specifically identified one-person operations 
contained in Sec. Sec.  218.127 through 218.131 of the proposal provide 
an appropriate level of safety, FRA does not believe such a presumption 
is appropriate under either Option 1 or 2 of the proposal as operations 
utilizing either option have never existed and have never been operated 
with less than at least two crewmembers. With that said, FRA agrees 
that under either Option 1 or 2, FRA would need to provide statistical, 
empirical, or other similar types of specific evidence to justify a 
determination that a particular operation does not provide an 
appropriate level of safety. Such evidence must be able to withstand 
judicial review under an ``arbitrary and capricious'' standard 
established by the Administrative Procedure Act. 5 U.S.C. 706. 
Nevertheless, Option 2 may elevate FRA's evidentiary burden. Interested 
parties should provide their views on what FRA's evidentiary burden 
should be under the two proposed options and whether the suggested 
language is adequate or whether FRA should instead include the language 
that FRA ``demonstrate'' that an operation would not provide an 
appropriate level of safety, or whether there is alternative language 
which should be included instead.
    Under both options 1 and 2, if FRA determines that an existing or 
start-up operation with less than two crewmembers requires additional 
conditions for it to attain an appropriate level of safety, or that an 
operation cannot attain an appropriate level of safety regardless of 
additional conditions and therefore cannot operate or must be halted, 
FRA will provide the specific empirical, statistical, or other similar 
evidence justifying FRA's determination in a decision statement. The 
statement will also document the benefits and costs of conditions and 
alternatives that FRA considered, as well as the safety risk factors 
associated with the operation.
    Under both options, the proposed rule requires that FRA provide 
``the specific reason(s) and rationale for the decision.'' The proposal 
thus requires that any FRA decision to attach conditions to or halt or 
prevent an operation must include a detailed description--supported by 
empirical, statistical or other similar types of specific evidence--of 
how the operation falls short of the appropriate level of safety 
standard. In the decision statement, FRA will identify the specific 
hazard(s) that are presented by the introduction of the operation that 
would not exist if the operation used a second crewmember meeting the 
proposed ``roles and responsibilities'' definition, or the specific 
hazard(s) that already existed for that operation which would be 
exacerbated if the operation did not use a second crewmember meeting 
the proposed ``roles and responsibilities'' definition. Sometimes the 
specific hazard(s) will be self-evident and it will be unnecessary for 
FRA to provide in the decision statement empirical, statistical, or 
other types of similar evidence to justify the safety problem. One such 
example is stopping and flagging highway-rail grade crossings where 
there has been an activation failure and no second crewmember is 
available to dismount from the locomotive and flag the crossing for the 
protection of highway users. FRA would want to see that the railroad 
had a plan for addressing that situation, especially if the train will 
traverse crossings in populated areas where the train could potentially 
block highway user traffic for extended periods of time. An existing 
FRA regulation found at 49 CFR part 234 contains the restrictions and 
requirement for a railroad to handle signal activation failures and the 
circumstances when a flagger must be present. That FRA grade crossing 
safety regulation also requires a timely response by the railroad to 
such malfunctions. 49 CFR 234.103. Thus, FRA would expect that a 
railroad's plan would identify operating rules and procedures that it 
has in place and would describe its staging or location of personnel to 
ensure that proper personnel are present in a timely fashion to flag 
the crossing before permitting a train to traverse the crossing. 
Currently, if an existing one-person operation is involved in an 
activation failure circumstance the train could not proceed across the 
crossing until someone appropriately trained in flagging arrives to 
flag the crossing (in current two-person operations the second 
crewmember is trained and would flag the crossing).
    Other hazards may not be self-evident. In such cases, FRA's 
decision statement would include the specific empirical, statistical, 
or other type of similar evidence justifying FRA's determination. For 
example, if FRA were to decide to halt or attach conditions to an 
operation due to a concern about the train's speed (and the

[[Page 13955]]

train's speed does not exceed maximum limits established for the class 
of track), FRA's decision statement would include the empirical or 
other similar evidence to justify why the less than two person train 
traveling at its desired speed would not provide an appropriate level 
of safety. Moreover, and as described further below, if FRA were to 
condition approval based on the operation lowering speed (or any other 
condition), the decision statement would address the costs and benefits 
of the lower speed condition, as well as alternatives considered by 
FRA. Similarly, if FRA were to decide to halt or attach conditions to 
an operation due to a concern about the crew's work schedule, FRA's 
description would identify the specific statistical, empirical, or 
other similar types of evidence to justify why the operation's schedule 
would not provide an appropriate level of safety. If FRA were to 
condition approval based on the operation using a different work 
schedule (or any other condition), the decision statement would address 
the costs and benefits of the condition, as well as alternatives 
considered by FRA. These examples are not exhaustive. In all cases 
where safety hazards are not self-evident, FRA would provide in the 
decision statement the empirical, statistical, or other type of 
evidence justifying its determinations, and the benefits and costs of 
the condition(s) imposed on a railroad and alternatives considered.
    In addition, if FRA were to decide to require an operation to use a 
particular technology or adopt a practice (or any combination of 
technology or practice) as a condition for operating with less than two 
crewmembers, the decision statement would identify the specific hazard 
that the technology or practice is intended to address and cite the 
evidence that justifies the technology or practice as an effective 
means for addressing the risks of the hazard. If FRA were to decide to 
halt or prevent an operation because FRA believes it cannot provide an 
appropriate level of safety even with additional conditions, the 
decision statement would describe the specific hazard(s) that present 
the risk, the specific interventions that FRA considered to address the 
hazard(s) (including the benefits and costs of the interventions), and 
an explanation for why FRA decided that no intervention could 
effectively address the hazard(s) and provide for an appropriate level 
of safety. FRA will engage the railroad in making any such 
determination and consider alternatives and analysis provided by the 
railroad, which will also be documented in the decision statement.
    Whether an existing hazard or newly created potential hazard, FRA's 
decision statement will identify whether the operation would likely be 
approved if specific conditions are met. FRA may need to add a 
disclaimer to a decision that additional conditions may be added if not 
met within a certain timeframe, in the rare situation that additional 
hazards are identified between the time of the original special 
approval application and a revised application. At this time, FRA does 
not foresee that any particular existing or start-up operation could 
not meet the appropriate level of safety standard with some conditions 
added, although some railroads may choose not to accept FRA's 
conditions and could certainly suggest to FRA a counter-proposal. In 
each case, FRA's decision statement will include the justification for 
halting or adding conditions to operations, explain how particular 
safety and operational factors are weighed in making the decision, and 
provide evidence that is relied upon.
    FRA's decision statement will also document the benefits and costs 
that FRA considered in making its determination. The level of detail 
and analysis of benefits and costs will depend upon the magnitude of 
cost of any condition(s) that FRA attaches to a particular operation. 
For example, if FRA requires an operation with significant resources to 
use a particular technology that has a one-time cost of $500 and 
minimal maintenance costs, the decision statement would include an 
estimate of that cost, at least a qualitative discussion of the 
technology's benefits supported by evidence, and an explanation for why 
FRA believes those benefits justify the cost of the technology. On the 
other hand, if FRA requires an operation to adopt a practice that would 
impose a significant cost, the statement would provide a detailed 
analysis of the benefits and costs of the technology or practice, and 
an explanation for why FRA believes the condition(s) result in net 
societal benefits. FRA will allow railroads an opportunity to respond 
to the benefit and cost information that FRA considers in making its 
determinations. If FRA does not use or agree with the information 
provided by railroads, FRA will explain why in its decision statement. 
Economic information would ideally be used by the railroad to provide 
more cost-effective alternatives to address FRA's safety concerns. FRA 
seeks public comments on better ways to ensure that the information 
presented in the decision statement effectively justifies FRA's 
determinations and provides railroads meaningful guidance on how train 
operations using less than two crewmembers can provide an appropriate 
level of safety.
    Under Option 1, FRA wants to collect sufficient information to be 
assured that the railroad has considered how a one-person crew could 
potentially perform tasks typically performed by a second crewmember, 
either with or without technological safeguards. Certainly, FRA is 
concerned with preventing or significantly mitigating the consequences 
of accidents, and each railroad petitioner should focus on addressing 
accident prevention issues in a petition. When a railroad files a 
petition for special approval, attention should be given to not just 
what the technology can do, but that the railroad has considered the 
additional burden placed on the one-person crew. Railroads are also 
advised to consider task overload, situational awareness concerns, as 
well as fatigue factors. A railroad that can show it has taken a 
sensible business approach to analyzing the operation and reducing the 
risks and hazards associated with reducing train crews to less than two 
crewmembers will likely satisfy FRA's concerns and can expect to have a 
special approval petition approved. FRA will certainly look more 
favorably on petitions that take a holistic approach to the safety of 
the operation when deciding whether to approve a petition for special 
approval.
    In the preamble discussion of how this proposed rule differs from 
FRA's suggested recommendations to the RSAC, FRA explained that it 
considered whether to adopt an explicit exception from the two-person 
crew staffing requirement whenever a railroad had implemented a PTC 
system with certain capabilities, or some other combination of 
technologies and other operating safeguards. FRA indicated during the 
RSAC discussions that it was willing to consider safeguards such as: 
Electronically controlled pneumatic brakes; appropriate installation of 
wayside detectors, especially hot box, overheated wheel, dragging 
equipment, and wheel impact load detectors; enhanced scheduled track 
inspections with track inspection vehicles capable of detecting track 
geometry and rail flaws; implementation of a fatigue management system 
with set work schedules; and procedures for providing a one-person 
train operation with additional persons when necessary for en route 
switching, crossing protection, or any required train-related 
inspection. FRA estimates the cost to railroads from adding these 
safeguards as a condition

[[Page 13956]]

of FRA approval of starting up a one-person crew operation would be 
$580,000, and benefits are unquantified. Of course, the problem with 
any list like this one is that it would likely not be inclusive of all 
the various types of mitigation measures a railroad could implement 
that have the potential to compensate for the loss of a second 
crewmember. Additionally, without FRA evaluations, it would be 
difficult to assess whether a railroad has established effective 
training and a strong safety culture, which are essential for improving 
safety reliability when technology cannot ensure a high degree of 
safety.
    FRA is reluctant to rely solely on the presence of PTC to ensure 
new one-person crews are safe in all types of operations and 
environments because there are a number of situations where PTC 
technology will demand more tasks from the train crew, not substitute 
for the tasks that would be carried out by a second crewmember, or fail 
to make full use of crew resource management principles. In the 
background section, research is described that explains how PTC cannot 
account for all the physical and cognitive functions that a conductor 
currently provides. Based on the research already described and FRA's 
understanding of PTC systems, PTC does not: (1) Check the engineer's 
alertness, which includes ensuring that the engineer is not fatigued, 
under the influence of any controlled substance or alcohol, or 
distracted by using a prohibited electronic device; (2) fill in the 
knowledge or experience gaps of the sole crewmember about the physical 
characteristics of the territory the train is operating over, how to 
address a particularly difficult operating problem, or help in 
diagnosing and responding to train problems and other exceptional 
situations; (3) review, comprehend, and accept consist and authority 
data while the train is in motion; (4) assist in the physically 
demanding task of securing a train with hand brakes, typically at the 
end of a tour of duty when the crew is looking forward to going off-
duty; (5) assist in protecting highway-rail grade crossings or breaking 
up the train at such crossings to avoid blocking them from highway 
users for extended periods; (6) update train consist information 
arising from the set out and pickup of cars; (7) protect the point, 
i.e., the leading end of the train movement, during shoving or pushing 
movements where the locomotive engineer is not operating from the 
leading end of the leading locomotive in a position to visually 
determine conditions in the direction of movement; (8) assist a 
locomotive engineer when complying with ``restricted speed,'' which 
requires a locomotive engineer to stop the train within one half the 
engineer's range of vision to avoid on-track equipment and misaligned 
switches; or (9) assist the train if the PTC system fails en route or 
enters non-PTC territory. Furthermore, the research described 
previously suggests that because the PTC technology may require 
locomotive engineers to focus more of their attention on in-cab 
displays, it will reduce their ability to monitor activity outside the 
cab and raises a question about whether the engineers will lose any 
situational awareness in relation to the coherent mental picture (i.e., 
the situation model) of where the engineer perceives the train to be 
based on prior experience. However, FRA believes that PTC offers a 
considerable increase in the level of safety of railroad operations and 
there may be some types of operations for which the use of PTC provides 
an adequate level of safety with a single person crew. FRA's approval 
of a one-person operation with PTC would most likely hinge on whether 
the railroad addressed foreseeable safety hazards created when a train 
has less than two crewmembers or when PTC fails to work properly. FRA 
suggests that each railroad look to the regulatory safety hazards FRA 
described in the background section of this proposal to see if it 
addressed those same hazards. For example, a railroad should anticipate 
that trains will need assistance protecting certain highway-rail grade 
crossings because of the inconvenience to highway users, emergency 
responders, or the general public if those crossings are blocked. A 
railroad that can show FRA that it has an established procedure to 
quickly unblock or protect crossings that would normally be protected 
by a second crewmember would satisfy FRA's concern. FRA also raised the 
concern in the background section of this proposal that a one-person 
crew would have greater opportunities to operate impaired by alcohol, 
drugs, or electronic device distraction. A railroad that requires a 
one-person train crew to report to a supervisor at the beginning or end 
of a tour of duty, or that periodically stops trains during efficiency 
testing to check for potential distractions, would allay those 
concerns. It will certainly help a railroad if it can present evidence 
of a strong safety culture and a compliance/accident history that 
compares well to other railroads in its class.
    In closing, under Option 1, FRA believes a railroad can expect to 
receive FRA's special approval for a one-person train crew operation 
when the railroad has established that it: (1) Is in compliance with 
all rail safety laws, regulations, and orders related to the proposed 
one-person operation; (2) has set forth plans to address foreseeable 
safety hazards created when a train has less than two crewmembers by 
making changes to the railroad's operating rules, procedures, or 
practices as necessary; and (3) has an established strong safety 
culture and favorable compliance/accident history.
    Moreover, the proposed special approval procedure is sufficiently 
flexible that it would allow a railroad to tailor its petition to 
address the specific operation for which it seeks approval. The NPRM 
does not suggest that PTC is a pre-condition for seeking special 
approval of a train operation with less than two crewmembers, and FRA 
is wary of creating a list where certain items may not be applicable to 
assuring that a particular operation reached an appropriate level of 
safety. Each railroad should have the ability to make its case that it 
has considered the unique circumstances of its operation and has 
tailored safeguards accordingly. The above listing of technologies and 
safeguards merely provides examples of items a railroad might consider 
implementing or utilizing based on the complexity and nature of the 
operation for which an exception is sought. A railroad's safety 
analysis of its own operation will help identify operational weaknesses 
and allow the railroad to choose the remedies that will allow it to 
assure FRA that an appropriate level of safety can be maintained with 
less than two train crewmembers.
    Last year, BNSF and the United Transportation Union (UTU) developed 
the concept for a one-person operation, but the operation was voted 
down by UTU's members. The concept contained several positive 
attributes such as (1) limiting the operations to defined territories, 
(2) providing one-person crewmembers with regular and predictable work 
schedules, and (3) designing the schedules so that one-person crews 
would not have to spend any time away from a home terminal, thus 
allowing the person to sleep at home when off duty. Although FRA was 
consulted on this potential operation, FRA did not have an enforcement 
mechanism to require the parties to discuss it with FRA prior to 
implementation. FRA had some concerns with the logistics of the 
operation and whether all aspects of the operation would be in 
compliance with all Federal rail safety laws, regulations, and orders. 
Potentially, one or more

[[Page 13957]]

obstacles could be overcome by issuance of waivers or changes to the 
concept. The parties had not completely thought through some aspects of 
this potential operation and how potentially foreseeable emergency 
events would be addressed with only one crewmember. FRA viewed these 
obstacles as temporary roadblocks that the parties could overcome with 
planning and implementation of new processes. FRA's approach to the 
BNSF/UTU concept exemplifies how FRA views its role in this proposed 
rule. That is, FRA will ensure that each railroad has adequately 
addressed the safety concerns associated with using less than two 
crewmembers on a train before issuing special approval for such an 
operation. As BNSF and UTU showed some flexibility on considering 
certain aspects of the proposed operation, FRA does not believe that 
its concerns would have prevented the project from going forward had 
the UTU's members approved the operation.
    Although an absolute assurance of FRA approval would certainly have 
benefits, the proposed requirements for petitioning FRA are not overly 
burdensome. FRA plans to approve operations with less than two 
crewmembers where a railroad provides a thorough description of that 
operation, has sensibly assessed the risks associated with implementing 
it, and has taken appropriate measures to mitigate or address any risks 
or safety hazards that might arise from it. A prudent railroad would 
consider such a safety analysis prior to implementation, with or 
without this proposed rule. This rulemaking merely provides FRA with 
the opportunity to confirm that each railroad is following a sensible 
business model. FRA seeks comments on its special approval procedure 
options and would appreciate suggestions for improving this proposed 
process or suggesting alternatives.
    Once approved, a petition would likely be valid indefinitely. FRA 
does not plan to require a railroad to come in at regular intervals for 
extensions of the approval, as FRA does in the waiver context. A 
railroad that wishes to deviate from an FRA-approved petition, however, 
will need to come back to FRA and request approval for any modification 
to the operation that is not covered by the prior approval. For 
example, if FRA has approved a one-person operation at 25 mph and the 
railroad has invested resources to improve the track, the railroad 
would need special approval to increase the speed of that operation. 
The railroad would need to consider in its new petition how the dangers 
of possibly increasing the speed of the one-person operation have been 
addressed in its safety analysis.
    FRA is considering whether it would be helpful to specify an 
electronic way to file special approval petitions and comments with 
FRA. One option is for FRA to require the submission of all the 
petitions to one docket created for the purpose, or to create a docket 
for each petition, at DOT's Docket Operations and at http://www.regulations.gov. Another option is to add to the proposed rule an 
option to electronically file by email or by uploading a document to a 
secure Web site. Under this second option, FRA would need to create an 
internal electronic database to track all of the petitions, comments, 
and FRA notifications. A third option is to publish information 
available via FRA's public Web site. FRA has chosen this third option 
as its proposal in paragraph (d) of Option 2. In paragraph (f) of 
Option 2, FRA has also proposed a requirement that specifies that a 
railroad has a duty to adhere to any conditions FRA imposes on the 
railroad's one-person operation. FRA may consider other options to 
electronically file or maintain databases of petitions for special 
approval. FRA would appreciate any comments suggesting preferences for 
any particular methods of filing and the need to specify that a 
railroad must adhere to any conditions imposed by FRA. However, in all 
instances under both co-proposal options, FRA will contact the 
petitioner and other interested parties whenever it denies a petition 
or reopens consideration of the petition. In addition, under co-
proposal Option 1, FRA will also contact the petitioner and other 
interested parties whenever it grants a petition.
    FRA is considering whether option 2 should prohibit railroads from 
starting operations that use fewer than two crewmembers until a public 
notice and comment process has occurred. For instance, for new 
operations, option 2 could include a 30 day delay between public notice 
of an operation with fewer than two crewmembers and the initiation of 
that operation. Such a requirement would ensure the public has had an 
opportunity to raise safety concerns before a new operation starts. 
However, it could also delay the start of more efficient train 
operations that do provide appropriate safety. FRA requests public 
comment on whether including such a prohibition in option 2 is 
justified. Specifically, what are the advantages and disadvantages of 
including such a requirement? If a delay is imposed to allow for public 
comment, how long should the public comment process be? Should such a 
requirement apply only to certain types of operations? If so, which 
ones? Should public notice be provided by a Federal Register notice, a 
posting on FRA's public Web site, or in some other way? What impacts 
would such a requirement have on railroad operations? If FRA uses the 
Federal Register to provide public notice, it could take FRA up to 60 
days from receiving the description from railroads as proposed in Sec.  
218.133(a) and Sec.  218.135(b) of option 2 to post the notice. If FRA 
uses its Web site to provide public notice, FRA expects that it would 
ordinarily provide public notices within two weeks of receiving the 
description from railroads as proposed in Sec.  218.133(a) and Sec.  
218.135(b) of option 2. Should there be a requirement that FRA publicly 
post the railroad's submission within a certain amount of time of 
receiving it? If so, what is the appropriate amount of time?

Appendix A to Part 218--Schedule of Civil Penalties

    If this proposed rule becomes a final rule, FRA intends to amend 
appendix A, the schedule of civil penalties, accordingly. This rule 
proposes to add a subpart to existing part 218. The existing part 
explains when FRA may assess a civil penalty. 49 CFR 218.9. FRA has 
also published the agency's policy concerning the enforcement of the 
Federal railroad safety laws. 49 CFR part 209, app. A.

VII. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under 
Executive Order 12866, Executive Order 13563, and DOT policies and 
procedures. 44 FR 11034, Feb. 26, 1979. FRA has prepared and placed in 
the docket a Regulatory Impact Analysis addressing the economic impacts 
of this proposed rule. The RIA presents estimates of a cost range 
likely to occur over the first ten years of the proposed rule as well 
as estimates of the benefits that would be will be necessary for the 
proposed rule to breakeven over the same timeframe. Non-quantifiable 
benefits are also presented. Informed by its analysis of the economic 
effects of this proposed rule, FRA believes that this proposed rule 
will result in positive net benefits. FRA believes that the proposed 
rule will help ensure that train crew staffing does not result in

[[Page 13958]]

inappropriate levels of safety risks to railroad employees, the general 
public, and the environment, while allowing technology innovations to 
advance industry efficiency and effectiveness without compromising 
safety. The proposal contains minimum requirements for roles and 
responsibilities of the second train crewmember on certain operations 
and promotes safe and effective teamwork. FRA does not expect the 
requirements for roles and responsibilities will have any impact on 
existing operations because all operations that use two-person crews 
are compliant, however FRA requests comments on this expectation.
    Compliance costs associated with this proposed rule include the 
addition of the labor hour equivalent of about one to two additional 
crewmembers nationwide to certain train movements for existing (an 
estimated cost of roughly $120,000 to $200,000 annually over 10 years), 
off-setting actions implemented by railroads because of this rule in 
order to use fewer than two-person crew operations, and information 
submission and data analysis. FRA estimated a 10-year cost range which 
would be between $7.65 million and $40.86 million, undiscounted. 
Discounted values of this range are $5.19 million and $27.72 million at 
the 7-percent level.
    FRA expects benefits to result from improved post-accident/incident 
emergency response and management due to the actions of crewmembers 
nationwide, sustained safety resulting from the additional crew 
reporting troubled employees due to drug and alcohol use, and 
compliance with restrictions on electronic device use in place to 
prevent distraction, and potential avoidance of a high-consequence 
train accident. FRA estimates the benefit associated with sustained 
drug and alcohol safety levels and the level of improved emergency 
response necessary to break even. In addition there may be business 
benefits from allowing the use of innovative practices and technology 
to reduce crew size when safety is not compromised. As railroads 
methodically go through the rigor of analyzing the risk posed by crew 
size reductions they may also identify a larger pool of train 
operations for crew size reduction.
    In analyzing the proposed rule, FRA has applied ``Guidance on the 
Economic Value of a Statistical Life in US Department of Transportation 
Analyses,'' July 2014. This policy updates the Value of a Statistical 
Life (VSL) to $9.2 million and provides guidance used to compute 
casualty mitigation benefits in each year of the analysis based on 
forecasts from the Congressional Budget Office of a 1.18 percent annual 
growth rate in median real wages over the next 10 years. FRA also 
adjusted wage based labor costs in each year of the analysis 
accordingly. Real wages represent the purchasing power of nominal 
wages. Non-wage inputs are not impacted. Labor costs and avoided 
injuries and fatalities, both of which in turn depend on wage rates, 
are key components of the costs and benefits of this proposed rule. FRA 
is confident that the benefits outlined in this document would exceed 
the costs. This rule is expected to at least break even. Preventing a 
single fatal injury would exceed the break-even point in the low range 
and 5 fatalities at the high range. Eighteen moderate injuries or four 
severe injuries or two critical injuries would also result in at least 
break even at the low range. Seventeen severe or eight critical would 
be the break-even minimum at the high range. The proposed rule will 
help ensure that train crew staffing does not result in inappropriate 
levels of safety risks to railroad employees, the general public, and 
the environment, while allowing technology innovations to advance 
industry efficiency and effectiveness without compromising safety. The 
proposal contains minimum requirements for roles and responsibilities 
of the second train crewmember on certain operations and promotes safe 
and effective teamwork. This rule would break even through prevention 
of a fatal injury or high-consequence accident, any one of which alone 
occurring over a 10-year period would justify the costs. Other accident 
damages may also be contained. There are several post-accident 
situations in which the actions of a second crewmember resulted in more 
timely and appropriate emergency response, which in turn likely 
contained the damages resulting from the accident.
    FRA also conducted a sensitivity analysis using VSL of $5.2 million 
and $13 million. Applying a VSL of $5.2 million, avoidance of 2 
fatalities, 4 severe injuries, or 7 serious injuries would justify the 
10-year implementation costs. In contrast, applying a VSL of $13 
million, avoidance of 1 critical injury, 1 fatality, 2 severe injuries, 
or 4 serious injuries would justify the 10-year implementation costs.
    Given the risk associated with single train crews operating trains 
carrying high risk commodities, FRA believes it is reasonable to expect 
that consideration of crew staffing level impacts on safety and 
implementation of any necessary mitigation to help ensure risk is 
appropriately mitigated will yield safety benefits that will exceed the 
costs.
    FRA conducted sensitivity analysis of its first co-proposal using a 
20-year time horizon. FRA estimates that the cost range of its co-
proposal would be $7.44 million to $36.25 million over this timeframe 
using a 7-percent discount rate, and $11.94 million to $50.71 million 
using a 3-percent discount rate.
Alternatives
    FRA invites public comments on alternatives to the co-proposals and 
information collection proposals. One alternative is for FRA to not 
require railroads using or aspiring to use less than two person crews 
to attest but establish a data-collection process in which FRA would 
collect the data necessary to identify problematic one-person 
operations, conduct further review of an operation if warranted by the 
data, and use existing emergency authority to take action against an 
unsafe one-person crew operation. The advantages of this alternative is 
that it would provide FRA comprehensive information about one-person 
crew operations and allow railroads the flexibility to continue or 
start up less than two-person crews without incurring the cost of FRA 
approval.
    Another alternative is to adopt the above alternative and also 
require FRA approval only for one-person operations carrying certain 
amounts of hazardous materials. Transport Canada adopted a similar 
approach except that it banned use of less than two-person crews on all 
trains carrying dangerous goods. The advantage of this alternative is 
that it would provide FRA comprehensive information about one-person 
crew operations and require FRA approval of the most high risk trains: 
Those carrying hazardous materials.
    A third alternative is to adopt the first alternative and also 
require a special approval process for all aspiring less than two 
person crew operations operating in high-threat urban areas and 
carrying certain amounts of hazardous materials. The advantages of this 
alternative is that it would provide FRA comprehensive information 
about one-person crew operations, allow FRA to intervene against 
problematic crews, and allow one-person crew operations to continue or 
start up without FRA approval as long as they do not operate in places 
where large numbers of people congregate.

[[Page 13959]]

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure that the impact of this rulemaking on small entities is 
properly considered, FRA developed this proposed rule in accordance 
with Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's policies and procedures to promote 
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant economic 
impact on a substantial number of small entities.
    As discussed in the preamble above, FRA is proposing to establish a 
regulation with minimum requirements for the size of train crew staffs 
depending on the type of operation. A minimum requirement of two 
crewmembers is proposed for those operations that pose significant 
safety risks to railroad employees, the general public, and the 
environment. This proposed rule would also establish minimum 
requirements for the roles and responsibilities of the second train 
crewmember on a moving train, and promote safe and effective teamwork. 
FRA is certifying that this proposed rule will result in ``no 
significant economic impact on a substantial number of small 
entities.'' The following section explains the reasons for this 
certification.
Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only 
those small entities that can reasonably be expected to be directly 
affected by the provisions of this rule. In this case, the ``universe'' 
will be Class III freight railroads that carry out train operations 
with one-person crews.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line Haul Operating Railroads'' and 500 
employees for ``Switching and Terminal Establishments.'' ``Small 
entity'' as defined by the SBA is a small business that is 
independently owned and operated, and is not dominant in its field of 
operation. Additionally, section 601(5) defines ``small entities'' as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts with populations less than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final policy 
that formally establishes ``small entities'' as railroads which meet 
the line haulage revenue requirements of a Class III railroad.\5\ The 
revenue requirements are currently $20 million or less in annual 
operating revenue. The $20 million-limit (which is adjusted by applying 
the railroad revenue deflator adjustment) \6\ is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA is using the STB's threshold in its definition of ``small 
entities'' for this rule.
---------------------------------------------------------------------------

    \5\ See 68 FR 24891, May 9, 2003; 49 CFR part 209, app. C.
    \6\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    There are about 671 Class III railroads on the general system of 
rail transportation that this proposed rule would apply to resulting in 
costs associated with adding a second crewmember to train operations 
under proposed Sec.  218.125 if they do not qualify for an exception 
under proposed Sec. Sec.  218.127 or 218.131. Based on information 
available from the internal regional survey regarding railroad 
eligibility for exception, and crew size for Class III railroads, 
coupled with information in the 2011 waybill sample regarding railroads 
with one-person operations carrying high hazard commodities, FRA 
estimates that at least 88.9 percent of the affected Class III 
railroads would be able to qualify for one of the proposed exceptions. 
Class III railroads moving the high-risk commodities in quantities 
described in proposed Sec.  218.125(c)(1)-(2) would not qualify for the 
exception and would be required to add a second crewmember and be 
impacted by the proposed regulation.
    Seventy-five Class III railroads (11.1 percent) would not qualify 
for an exception based on operating speed and key train operations. 
Fourteen Class III railroads operate with single-person crews and could 
be impacted to the extent they carry high risk commodities. FRA 
estimates that Class III railroads with single-person crews that do not 
qualify for an exception and will incur regulatory costs associated 
with an estimated average of an additional 241 labor-hours per year to 
add a second crewmember. The actual level of increase would vary 
proportionally with the level of riskier products carried and may 
represent a different portion of total operations depending on the 
level of overall operations. Information from FRA's internal survey 
indicates that the 14 Class III railroads with single-crew operations 
have annual operations totaling an average of 73,491 labor-hours. Based 
on the 241 labor-hours per year average cost this means that impacted 
railroads would have to increase train crew costs by 0.33 percent (0.33 
percent increase in labor hours) on average. Based on information 
available regarding eligibility for exception, and crew size coupled 
with information in the 2011 waybill sample regarding railroads with 
one-person operations carrying crude oil or ethanol, FRA believes that 
three to five Class III railroads would thus be impacted by the 
proposed rulemaking. These results indicate that the proposed 
rulemaking will not result in a significant economic impact on a 
substantial number of small entities.
    In addition, FRA notes that several of the 14 Class III railroads 
with single-person operations are subsidiaries of much larger Class I 
railroads or well-established holding companies that have revenues in 
excess of the adjusted $20 million threshold for this analysis.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
FRA Administrator certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
FRA requests comment on both this analysis and this certification, and 
its estimates of the impacts on small railroads.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the current and new information collection 
requirements are detailed below, and the estimated time to fulfill each 
requirement is as follows:

[[Page 13960]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR section/subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
217.7--Copy--FRA--Operating        2 new railroads....  2 submission.......  1 hour.............               2
 rules, timetables, Class I & II
 RRs.
    --Amendments/Revisions.......  55 railroads.......  165 revisions......  20 minutes.........              55
    --Copy of operating rules/     5 new railroads....  5 submission.......  55 minutes.........               5
     timetables, etc. by Class
     III.
    --Amendments/Revisions by      673 railroads......  2,019 rev./          15 minutes.........             505
     Class III Railroads.                                amendments.
217.9--RR Testing Officer
 Qualification.
    --Records of Qualification...  722 railroads......  4,732 records......  2 minutes..........             158
    --Written Prog. of             5 new railroads....  5 programs.........  9.92 hours.........              50
     Operational Tests.
    --Records of Operational       722 railroads......  9,188,700 rcd......  5 minutes..........         765,725
     Tests/Inspections.
    --Amendments/Revisions.......  55 railroads.......  165 revisions......  70 minutes.........             193
    --Quarterly Review of          722 railroads......  140 reviews........  2 hours............             280
     Accident/Incident Data/Prior
     Op. Tests/Inspections.
    --Designated Officers &        722 railroads......  70 IDs + 140         5 seconds + 2 hours             280
     Conduct of 6 Month Review.                          reviews.
    --Designated Officers &        Amtrak + 23          27 IDs + 54 Reviews  5 second + 2 hours.             108
     Conduct of Six Month Review    Railroads.
     by Passenger/Commuter
     Railroads.
    --Records of Periodic Reviews  722 railroads......  334 records........  1 minute...........               6
    --Annual Summary on            61 railroads.......  97 summary records.  61 minutes.........              99
     Operational Tests/Insp.
    --FRA Disapproval of RR        722 railroads......  5 supporting         1 hour.............               5
     Program of Operational Tests/                       documents.
     Insp. & Response by RR.
    --Amended Program Documents..  722 railroads......  5 amended documents  30 minutes.........               3
217.11--Periodic Instruction of    722 railroads......  130,000 instr.       8 hours............       1,040,000
 Program Employees on Oper. Rules.                       employees.
    --New RR--Development of       5 new railroads....  5 Programs.........  8 hours............              40
     Program of Operating Rules
     Instruction.
    --Amendments/Revisions to      722 railroads......  110 revisions......  30 minutes.........              55
     Operating Rules Instruction
     Program.
218.95--Instruction, Training,     722 railroads......  98,000 record......  5 minutes..........           8,167
 Examination--Records.
    --Response to FRA Disapproval  722 railroads......  5 responses........  1 hour.............               5
     of Program (Written or Oral
     Submission).
    --Programs Needing Amendment.  722 railroads......  5 amended programs.  30 minutes.........               3
218.97--Written Procedures on      722 railroads......  Already completed..  N/A................             N/A
 Good Faith Challenges by
 Employees Re: Actions.
    --Employee Copy of Written     722 railroads......  4,732 copies.......  6 minutes..........             473
     Procedures.
    --Good Faith Challenges by RR  98,000 Employees...  15 challenges......  10 minutes.........               3
     Employees.
    --RR Responses to Employee     722 railroads......  15 responses.......  5 minutes..........               1
     Challenge.
    --Immediate Review of          722 railroads......  5 immediate reviews  30 minutes.........               3
     Employee Challenge.
    --RR Officer Explanation of    722 railroads......  5 explanation......  1 minute...........             .08
     Federal Law Protection
     Against Retaliation.
    --Documented Protest by RR     722 railroads......  10 written protests  15 minutes.........               3
     Employee.
    --Copies of Protests.........  722 railroads......  10 copies..........  1 minute...........             .17
    --Further Reviews............  722 railroads......  3 reviews..........  15 minutes.........               1
    --Written Verification         722 railroads......  10 decisions.......  10 minutes.........               2
     Decision to Employee.
    --Copy of Written Procedures   722 railroads......  722 copies of        5 minutes..........              60
     at RR Headquarters.                                 procedures.
    --Copy of Verification         722 railroads......  20 copies..........  5 minutes..........               2
     Decision at RR Headquarters
     & Division Headquarters.
218.99--Shoving or Pushing
 Movements.
    --Operating Rule               722 railroads......  36 revisions.......  1 hour.............              36
     Modifications.
    --Locomotive Engineer Job      100,000 Employees..  180,000 job          1 minute...........           3,000
     Briefing Before Movement.                           briefings.
    --Point Protection             100,000 Employees..  87,600,000           1 minute + 1 minute       2,920,000
     Determinations & Signals/                           decisions +
     Instructions to Control                             87,600,000 signals.
     Movements.
    --Remote Control Movements-    100,000 Employees..  876,000 oral         1 minute...........          14,600
     Verbal Confirmation.                                confirmations.
    --Remote Control               100,000 Employees..  876,000 RC           1 minute...........          14,600
     Determinations That Zone Is                         determination.
     Not Jointly Occupied/Track
     Clear.
    --Dispatcher Authorized Train  6,000 Railroad       30,000 auth.         1 minute...........             500
     Movements.                     Dispatchers.         movements.
218.101--Operating Rule Re:        722 railroads......  36 amended op.       30 minutes.........              18
 Leaving Rolling & On-Track MOW                          rules.
 Equipment in the Clear.
218.103--Hand-Operated Switches--  722 railroads......  36 modified          1 hour.............              36
 RR Operating Rule That Complies                         operating rules.
 w/49 CFR 218.103.
    --Specification of Minimum     722 railroads......  5 modified op.       30 minutes.........               3
     Job Briefing Requirements.                          rules.
    --Employee Operating or        722 railroads......  1,125,000 job        1 minute...........          18,750
     Verifying Position of Hand-                         briefings.
     operated Switches: Job
     Briefings.

[[Page 13961]]

 
218.105--Additional Requirements   722 railroads......  60,000 job           1 minute...........           1,000
 for Hand Operated Main Track                            briefings.
 Switches--Job Briefing.
    --Roadway Worker Report on     722 railroads......  100,000 reports +    1 minute + 1 minute           3,334
     Position of Switches to                             100,000
     Roadway Worker in Charge                            conveyances.
     (RWIC) or Designated
     Employee Conveying
     Information to RWIC.
    --Dispatcher Acknowledgment    722 railroads......  60,000               30 seconds + 5                  583
     of Switch Position and                              acknowledgments +    seconds.
     Employee Confirmation to                            60,000
     Train Dispatcher.                                   confirmations.
218.109--Hand Operated Fixed       722 railroads......  562,500 job          30 seconds.........           4,688
 Derails: Job Briefings.                                 briefings.
Subpart G--New Requirements:
    --218.125--Adoption/Revision   722 railroads......  10 adopted/revised   3 hours............              30
     of RR Rules/Practices to                            rules.
     comply with this Subpart.
    --218.133--Continuance of      629 railroads (FRA   7 description......  960 hours..........           6,720
     Operations Staffed without a   obtained this
     Two-Person Crew Prior to       number by
     Jan. 1, 2015--Description by   consulting with
     RR of One-Person Crew          the ASLRRA, AAR,
     Operation.                     and APTA.).
    --218.135--Request for         629 railroads......  10 petitions.......  384 hours..........           3,840
     Special Approval of a Start-
     Up Method of Operation that
     Does not Meet Subpart G
     Requirements.
    --Request for Special          629 railroads......  5 petitions........  192 hours..........             960
     Approval of a Start-Up
     Method of Operation that
     Does not Meet Subpart.
    --Comments Sent to FRA on      General Public/RR    30 comments........  22 hours...........             660
     Petitions for Special          Community/
     Approval.                      Interested Parties.
    --Commenter Certification      General Public/RR    30 statement + 450   30 minutes + 2                   30
     that Copy of Comment has       Community/           copies of comment.   minutes.
     been Served on Each            Interested Parties.
     Petitioner.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements or associated estimates detailed 
above should direct them to Mr. Robert Brogan, Information Collection 
Officer, Office of Railroad Safety, or Ms. Kimberly Toone, Records 
Management Officer, Office of Administration, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., 3rd Floor, Washington, DC 
20590. Comments may also be submitted via email to Mr. Brogan or Ms. 
Toone at the following addresses: [email protected] or 
[email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This NPRM would not have a 
substantial effect on the States or their political subdivisions; it 
would not impose any compliance costs; and it

[[Page 13962]]

would not affect the relationships between the Federal government and 
the States or their political subdivisions, or the distribution of 
power and responsibilities among the various levels of government. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply.
    However, this NPRM could have preemptive effect by operation of law 
under certain provisions of the Federal railroad safety statutes, 
specifically the former Federal Railroad Safety Act of 1970, repealed 
and recodified at 49 U.S.C. 20106. Section 20106 provides that States 
may not adopt or continue in effect any law, regulation, or order 
related to railroad safety or security that covers the subject matter 
of a regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the ``essentially local safety or security hazard'' exception to 
section 20106.
    In summary, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this NPRM has no federalism 
implications, other than the possible preemption of State laws under 
Federal railroad safety statutes, specifically 49 U.S.C. 20106. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this NPRM is not required.

E. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards.
    This NPRM is purely domestic in nature and is not expected to 
affect trade opportunities for U.S. firms doing business overseas or 
for foreign firms doing business in the United States.

F. Environmental Impact

    FRA has evaluated this NPRM in accordance with the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental 
statutes, related regulatory requirements, and its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999). FRA has determined that this NPRM is categorically 
excluded from detailed environmental review pursuant to section 
4(c)(20) of FRA's Procedures, ``Promulgation of railroad safety rules 
and policy statements that do not result in significantly increased 
emissions of air or water pollutants or noise or increased traffic 
congestion in any mode of transportation.'' See 64 FR 28547, May 26, 
1999. Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4.
    In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. In 
accordance with section 4(c) and (e) of FRA's Procedures, the agency 
has further concluded that no extraordinary circumstances exist with 
respect to this regulation that might trigger the need for a more 
detailed environmental review (EA or EIS). The purpose of this 
rulemaking is to establish minimum requirements for the size of train 
crew staffs depending on the type of operation. FRA does not anticipate 
any environmental impacts from this requirement and finds that there 
are no extraordinary circumstances present in connection with this 
NPRM.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement.'' This details 
the effect on State, local, and tribal governments and the private 
sector. For the year 2010, this monetary amount of $100,000,000 has 
been adjusted to $143,100,000 to account for inflation. This NPRM would 
not result in the expenditure of more than $143,100,000 by the public 
sector in any one year, and thus preparation of such a statement is not 
required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this NPRM is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

I. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the comment (or signing the document, 
if submitted on behalf of an association, business, labor union, etc.). 
See http://www.regulations.gov/#!privacyNotice for the privacy notice 
of regulations.gov or interested parties may review DOT's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477). In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

[[Page 13963]]

List of Subjects in 49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees, 
Railroad safety, Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

PART 218--[AMENDED]

0
1. The authority citation for part 218 is revised to read as follows:

    Authority:  49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.89.

Subpart A--General

0
2. Section 218.5 is amended by adding definitions in alphabetical order 
for ``Associate Administrator'' and ``FTA'', to read as follows:


Sec.  218.5  Definitions.

* * * * *
    Associate Administrator means the Associate Administrator for 
Railroad Safety and Chief Safety Officer of the Federal Railroad 
Administration or that person's delegate as designated in writing.
* * * * *
    FTA means the Federal Transit Administration.
* * * * *
0
3. Add subpart G to part 218 to read as follows:
Subpart G--Train Crew Staffing
Sec.
218.121 Purpose and scope.
218.123 Definitions.
218.125 General crew staffing and roles and responsibilities of the 
second crewmember for freight and passenger trains.
218.127 General exceptions to two-person crew requirement.
218.129 Specific passenger train exceptions to two-person crew 
requirement.
218.131 Specific freight train exceptions to two-person crew 
requirement.
218.133 Continuance of freight operations staffed without a two-
person train crew prior to January 1, 2015.
218.135 Special approval procedure.

Subpart G--Train Crew Staffing


Sec.  218.121  Purpose and scope.

    (a) The purpose of this subpart is to ensure that each train is 
adequately staffed and has appropriate safeguards in place when using 
fewer than two person crews for safe train operations.
    (b) This subpart prescribes minimum requirements for the size of 
different train crew staffs depending on the type of operation. The 
minimum crew staffing requirements reflect the safety risks posed to 
railroad employees and the general public. This subpart also prescribes 
minimum requirements for the appropriate roles and responsibilities of 
train crewmembers on a moving train, and promotes safe and effective 
teamwork. Each railroad may prescribe additional or more stringent 
requirements in its operating rules, timetables, timetable special 
instructions, and other instructions.


Sec.  218.123  Definitions.

    Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation means a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).
    Trailing tons means the sum of the gross weights--expressed in 
tons--of the cars and the locomotives in a train that are not providing 
propelling power to the train.
    Train means one or more locomotives coupled with or without cars, 
except during switching service.
    Switching service means the classification of rail cars according 
to commodity or destination; assembling of cars for train movements; 
changing the position of cars for purposes of loading, unloading, or 
weighing; placing of locomotives and cars for repair or storage; or 
moving of rail equipment in connection with work service that does not 
constitute a train movement.


Sec.  218.125  General crew staffing and roles and responsibilities of 
the second crewmember for freight and passenger trains.

    (a) General. Each railroad shall comply with the requirements of 
this subpart, and in doing so may adopt its own rules or practices. 
When any person as defined in Sec.  218.9 (including, but not limited 
to, each railroad, railroad officer, supervisor, and employee) violates 
any requirement of a railroad rule or practice that ensures compliance 
with the requirements of this subpart, that person shall be considered 
to have violated the requirements of this subpart.
    (b) Two-person crew staffing requirement. Except as provided for in 
this subpart, each train shall be assigned a minimum of two 
crewmembers.
    (c) Hazardous material two crewmember minimum requirement. For the 
purposes of this paragraph, a tank car containing a ``residue'' of a 
hazardous material as defined in 49 CFR 171.8 is not considered a 
loaded car. None of the exceptions provided in Sec. Sec.  218.127 
through 218.135, which permit a train to be staffed with less than two 
crewmembers, is applicable when any train is transporting:
    (1) One or more loaded freight cars containing materials poisonous 
by inhalation as defined in 49 CFR 171.8, including anhydrous ammonia 
(UN 1005) and ammonia solutions (UN 3318); or
    (2) Twenty or more loaded freight cars or freight cars loaded with 
bulk packages as defined in 49 CFR 171.8 or intermodal portable tanks 
containing any combination of materials listed in paragraph (c)(1) of 
this section, or any Division 2.1 flammable gases, Class 3 flammable 
liquids, Class 1.1 or 1.2 explosives, or hazardous substances listed in 
49 CFR 173.31(f)(2).
    (d) Roles and responsibilities of the second crewmember when the 
train is moving. A train crewmember that is not operating the train may 
be located anywhere outside of the operating cab of the controlling 
locomotive when the train is moving as long as:
    (1) For each train, the train crewmember is on the train, except 
when the train crewmember cannot perform the duties assigned without 
temporarily disembarking from the train;
    (2) The train crewmember has the ability to directly communicate 
with the crewmember in the cab of the controlling locomotive;
    (3) The train crewmember can continue to perform the duties 
assigned; and
    (4) The location does not violate any Federal railroad safety law, 
regulation or order.


Sec.  218.127  General exceptions to two-person crew requirement.

    Except as provided for in Sec.  218.125(c), the following general 
exceptions apply to the two-person crew staffing and roles and 
responsibilities requirements in Sec.  218.125. A passenger or freight 
train does not require a minimum of two crewmembers under the following 
conditions:
    (a) Helper service. The train is performing helper service, thereby 
using a locomotive or group of locomotives to assist another train that 
has incurred mechanical failure or lacks the power to traverse 
difficult terrain. Helper service includes traveling to or from a 
location where assistance is provided;
    (b) Tourist. The train is a tourist, scenic, historic, or excursion 
operation that is not part of the general railroad system of 
transportation;

[[Page 13964]]

    (c) Lite locomotive. A locomotive or a consist of locomotives not 
attached to any piece of equipment or attached only to a caboose. This 
exception excludes a diesel or electric multiple unit (DMU or EMU) 
operation;
    (d) Work train. During work train operations where a non-revenue 
service train of 4,000 trailing tons or less is used for the 
administration and upkeep service of the railroad. The exception for 
work trains engaged in maintenance and repair activities on the 
railroad includes when the work train is traveling to or from a work 
site; or
    (e) Remote control operations. The train is remotely controlled 
using the operator control unit assigned to the receiver on the 
controlling locomotive and the following conditions apply:
    (1) The locomotive consist does not exceed 6,000 total working 
horsepower and is utilizing no more than 12 powering axles;
    (2) The train length, excluding locomotives, does not exceed 3,000 
feet;
    (3) The train tonnage, excluding locomotives, does not exceed 4,000 
tons;
    (4) The train does not exceed a total of 50 conventional cars or 
platforms, in any combination;
    (5) The train does not contain more than 20 multilevel cars, e.g., 
autorack cars, regardless of whether they are loaded or empty. Any 
continuous block of more than five multilevel cars must be placed at 
the rear of the train;
    (6) The maximum authorized train speed is 15 miles per hour;
    (7) Movements are restricted from operating on any grade greater 
than 1.0 percent that extends for more than half a mile; and
    (8) The controlling railroad has developed air brake and train 
handling instructions governing these operations, and the remote 
control operator is required to comply with those instructions.


Sec.  218.129  Specific passenger train exceptions to two-person crew 
requirement.

    The following passenger train operations do not require a minimum 
of two crewmembers:
    (a) A passenger train operation in which cars are empty of 
passengers and are being moved for purposes other than to pick up or 
drop off passengers;
    (b) A passenger train operation involving a single self-propelled 
car or married-pair unit, e.g., a diesel or electric multiple unit (DMU 
or EMU) operation, where the locomotive engineer has direct access to 
the passenger seating compartment and (for passenger railroads subject 
to 49 CFR part 239) the passenger railroad's emergency preparedness 
plan for this operation is approved under 49 CFR 239.201; or
    (c) A rapid transit operation in an urban area, i.e., an urban 
rapid transit system or a light rail transit operator that is connected 
with the general railroad system of transportation under the following 
conditions:
    (1) The operation is temporally separated from any conventional 
railroad operations;
    (2) There is an FTA-approved and designated State Safety Oversight 
(SSO) Agency that is qualified to provide safety oversight; and
    (3) The light rail operator has an FTA/SSO approved System Safety 
Plan in accordance with 49 CFR part 659.


Sec.  218.131  Specific freight train exceptions to two-person crew 
requirement.

    Except as provided for in Sec.  218.125(c), the following specific 
freight train operations are exceptions from the two-person crew 
staffing and roles and responsibilities requirements in Sec.  218.125.
    (a) Small railroad exceptions. A freight train is operated on a 
railroad and by an employee of a railroad with less than 400,000 total 
employee work hours annually and the train is being operated under the 
following conditions:
    (1) The maximum authorized speed of the train is limited to 25 
miles per hour or less; and
    (2)(i) The average grade of any segment of the track operated over 
is less than 1 percent over 3 continuous miles or 2 percent over 2 
continuous miles; or
    (ii) A second train crewmember, other than the locomotive engineer, 
is intermittently assisting the train's movements and has the ability 
to directly communicate with the crewmember in the cab of the 
controlling locomotive. The second train crewmember cannot meet the 
requirements in Sec.  218.125 regarding the roles and responsibilities 
of the second crewmember because this person is frequently in transit 
and cannot continuously remain with the train.
    (b) Mine load out, plant dumping, or similar operation. A freight 
train is being loaded or unloaded in an assembly line manner at an 
industry while the train moves at 10 miles per hour or less.

Option 1


Sec.  218.133  Continuance of freight operations staffed without a two-
person train crew prior to January 1, 2015.

    (a) Except as provided for in Sec.  218.125(c), one-person freight 
train operations that were conducted prior to January 1, 2015, and that 
are not otherwise covered by the general or specific exceptions 
detailed in Sec. Sec.  218.127 through 218.131 may continue to be 
conducted as long as the railroad conducting the one-person operation 
submits a description of the operation to the Associate Administrator 
for Railroad Safety and Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 no 
later than [DATE 90 DAYS AFTER EFFECTIVE DATE OF THE FINAL RULE]. The 
description of the operation shall, at a minimum, include the 
following:
    (1) The location of the continuing operation with as much 
specificity as can be provided as to industries served, and 
territories, divisions, or subdivisions operated over. Documentation 
supporting the locations of prior operations will be favorably 
reviewed, although not required;
    (2) The class of tracks operated over;
    (3) The locations of any track where the average grade of any 
segment of the track operated over is 1 percent or more over 3 
continuous miles or 2 percent or more over 2 continuous miles;
    (4) The maximum authorized speed of the operation;
    (5) The approximate average number of miles and hours a single 
person operates as a one-person train crew;
    (6) Whether any limitations are placed on a person in a one-person 
train crew operation. Such limitations may include, but are not limited 
to, a maximum number of miles or hours during a single tour of duty;
    (7) The maximum number of cars and tonnage, if any;
    (8) Whether the one-person operation is permitted to haul hazardous 
materials of any quantity and type, other than those types expressly 
prohibited for one-person train crew operations in accordance with 
Sec.  218.125(c);
    (9) Information regarding other operations that travel on the same 
track as the one-person train operation or that travel on an adjacent 
track. Such information shall include, but is not limited to, the 
volume of traffic and the types of opposing moves (i.e., either 
passenger or freight trains hauling hazardous materials);
    (10) Any information the railroad chooses to provide describing 
protections provided in lieu of a second train crewmember; and
    (11) A safety analysis of the one-person train operation, including 
any information regarding the safety history of the operation.

[[Page 13965]]

    (b) FRA intends to issue written notification of approval or 
disapproval within 90 days of receipt of the submission. FRA reserves 
the right to notify a railroad if a described operation that was in 
existence prior to January 1, 2015, is deemed unsuitable for 
continuance, or may continue with any additional conditions attached. 
FRA will consider the benefits and costs of actions it requests 
railroads to make as a condition for FRA approval. Unless FRA notifies 
a railroad that an operation is deemed unsuitable for continuance or 
may only continue with any additional conditions attached, the railroad 
may continue the operation as described. If FRA notifies a railroad 
that an operation may not continue, FRA will provide the railroads the 
specific reason(s) and rationale for any such decision.


Sec.  218.135  Special approval procedure.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of a start-up method of train 
operation that does not meet the requirements and conditions of 
Sec. Sec.  218.125 through 218.133. Passenger railroads seeking to 
start-up a one-person train operation must have an approved passenger 
train emergency preparedness plan or apply for a waiver under part 239 
of this chapter but may apply to FRA for special approval under this 
section in the same filing.
    (b) Petitions for special approval of a train operation with less 
than two crewmembers. Each petition for special approval of a train 
operation with less than two crewmembers that does not meet the 
requirements and conditions of Sec. Sec.  218.125 through 218.133 shall 
contain:
    (1) The name, title, address, telephone number, and email address 
(if available) of the primary person to be contacted with regard to 
review of the petition;
    (2) A detailed description of the train operation proposed, 
including a description of any technology that could potentially 
perform tasks typically performed by a second crewmember or that could 
prevent or significantly mitigate the consequences of catastrophic 
accidents;
    (3) Appropriate data or analysis, or both, for FRA to consider in 
determining whether the train operation proposed will provide at least 
an appropriate level of safety to a train operation with two 
crewmembers; and
    (4) A statement affirming that the railroad has served a copy of 
the petition on the president of each labor organization that 
represents the railroad's employees subject to this part, if any, 
together with a list of the names and addresses of the persons served.
    (c) Service. Each petition for special approval under paragraph (b) 
of this section shall be submitted to the Associate Administrator for 
Railroad Safety and Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
    (d) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under paragraph (b) of this 
section.
    (e) Comment. Not later than 30 days from the date of publication of 
the notice in the Federal Register concerning a petition under 
paragraph (b) of this section, any person may comment on the petition.
    (1) A comment shall set forth specifically the basis upon which it 
is made, and contain a concise statement of the interest of the 
commenter in the proceeding.
    (2) The comment shall be submitted to the Associate Administrator 
for Railroad Safety and Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
    (3) The commenter shall certify that a copy of the comment was 
served on each petitioner.
    (f) Disposition of petitions. (1) If FRA finds that the petition is 
acceptable and justified, the petition will be granted, normally within 
90 days of its receipt. FRA's decision may attach additional conditions 
that a railroad must meet or exceed before implementing the operation 
as described. FRA will consider the benefits and costs of any actions 
it requests a petitioner to make as a condition for FRA approval, as 
well as the expected safety impacts. If FRA attaches conditions, it 
will provide the petitioner and the public, via its public Web site, 
with the specific reasons and rationale for those conditions.
    (2) If the petition is neither granted nor denied within 90 days, 
the petitioner may file a request for FRA to decide the petition by no 
later than 30 days from the date FRA receives such a request. If this 
additional 30 days lapses without FRA issuing a decision, the railroad 
may implement the operation as described.
    (3) If FRA finds that the petition does not comply with the 
requirements of this section and that the proposed train operation is 
not acceptable or justified, the petition will be denied. FRA will 
provide the petitioner and the public, via its public Web site, with 
the specific reasons and rationale for denying the petition.
    (4) Following the approval of a petition, FRA may reopen 
consideration of the petition for cause.
    (5) When FRA grants or denies a petition, or reopens consideration 
of the petition, written notice is sent to the petitioner and other 
interested parties.

Option 2


Sec.  218.133  Continuance of freight operations staffed without a two-
person train crew prior to January 1, 2015.

    (a) Except as provided for in Sec.  218.125(c), one-person freight 
train operations that were conducted prior to January 1, 2015 and that 
are not otherwise covered by the general or specific exceptions 
detailed in Sec. Sec.  218.127 through 218.131 may continue to be 
conducted as long as the railroad conducting the one-person operation 
submits a description of the operation to the Associate Administrator 
for Railroad Safety and Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 no 
later than [DATE 90 DAYS AFTER EFFECTIVE DATE OF THE FINAL RULE]. The 
description of the operation shall, at a minimum, include the 
following:
    (1) The location of the continuing operation with as much 
specificity as can be provided as to industries served, and 
territories, divisions, or subdivisions operated over.
    (2) The class of tracks operated over;
    (3) The locations of any track where the average grade of any 
segment of the track operated over is 1 percent or more over 3 
continuous miles or 2 percent or more over 2 continuous miles;
    (4) The maximum authorized speed of the operation;
    (5) The approximate average number of miles and hours a single 
person operates as a one-person train crew;
    (6) Whether any limitations are placed on a person in a one-person 
train crew operation. Such limitations may include, but are not limited 
to, a maximum number of miles or hours during a single tour of duty;
    (7) The maximum number of cars and tonnage, if any;
    (8) Whether the one-person operation is permitted to haul hazardous 
materials of any quantity and type, other than those types expressly 
prohibited for one-person train crew operations in accordance with 
Sec.  218.125(c);
    (9) Information regarding other operations that utilize the same 
track as the one-person train operation or that travel on an adjacent 
track. Such information shall include, but is not limited to, the 
volume of traffic and the types of opposing moves (i.e., either

[[Page 13966]]

passenger or freight trains hauling hazardous materials);
    (10) Any information the railroad chooses to provide describing 
protections provided in lieu of a second train crewmember; and
    (11) A safety analysis of the one-person train operation shall be 
conducted and made available to FRA upon request during an 
investigation described in paragraph (b) of this section, including any 
information regarding the safety history of the operation.
    (b) A railroad may continue any one-person train operations that 
were conducted prior to January 1, 2015, upon filing the description of 
each operation with FRA. FRA will use the description as part of an 
evaluation to determine whether the railroad is providing an 
appropriate level of safety. Depending on a variety of factors, 
including FRA's familiarity with the railroad's one-person operation 
and the risk factors associated with the operation, FRA may initiate an 
investigation to aid in the determination. If FRA determines that an 
operation is not providing an appropriate level of safety, FRA will 
notify the railroad that the operation shall not continue or shall only 
continue under certain conditions. FRA will consider the benefits and 
costs of actions it requests railroads to make as a condition for the 
operation to continue. If FRA notifies a railroad that an operation 
shall not continue, or shall continue only if conditions are met, FRA 
will provide the railroad and the public, via its public Web site, the 
specific reason(s) and rationale for the decision.
    (c) A railroad shall adhere to the restrictions, limitations, and 
procedures it identifies in its submission to FRA as well as any 
condition imposed by FRA.


Sec.  218.135  Special approval procedure.

    (a) General. The following procedures govern a start-up method of 
train operation that does not meet the requirements and conditions of 
Sec. Sec.  218.125 through 218.133. Passenger railroads seeking to 
start-up a one-person train operation must have an approved passenger 
train emergency preparedness plan or apply for a waiver under part 239 
of this chapter but may apply to FRA for special approval under this 
section in the same filing.
    (b) Description of a train operation with less than two 
crewmembers. A railroad initiating a train operation with less than two 
crewmembers that does not meet the requirements and conditions of 
Sec. Sec.  218.125 through 218.133 shall provide FRA with the name, 
title, address, telephone number, and email address (if available) of 
the primary person to be contacted with regard to the operation. The 
railroad shall submit a detailed description of each train operation 
with less than two crewmembers prior to beginning such service, which 
covers:
    (1) Any technology that could potentially perform tasks typically 
performed by a second crewmember or that could prevent or significantly 
mitigate the consequences of catastrophic accidents;
    (2) The class of tracks operated over;
    (3) The locations of any track where the average grade of any 
segment of the track operated over is 1 percent or more over 3 
continuous miles or 2 percent or more over 2 continuous miles;
    (4) The maximum authorized speed of the operation;
    (5) The approximate average number of miles and hours a single 
person operates as a one-person train crew;
    (6) Whether any limitations are placed on a person in a one-person 
train crew operation. Such limitations may include, but are not limited 
to, a maximum number of miles or hours during a single tour of duty;
    (7) The maximum number of cars and tonnage, if any;
    (8) Whether the one-person operation is permitted to haul hazardous 
materials of any quantity and type, other than those types expressly 
prohibited for one-person train crew operations in accordance with 
Sec.  218.125(c);
    (9) Information regarding other operations that utilize the same 
track as the one-person train operation or that travel on an adjacent 
track. Such information shall include, but is not limited to, the 
volume of traffic and the types of opposing moves (i.e., either 
passenger or freight trains hauling hazardous materials);
    (10) Any information the railroad chooses to provide describing 
protections provided in lieu of a second train crewmember; and
    (11) A statement signed by the railroad officer in charge of 
operations attesting that a safety analysis of the start-up operation 
with less than two crewmembers has been conducted and that the 
operation provides an appropriate level of safety. The safety analysis 
shall be made available to FRA upon request.
    (c) Service. This information shall be submitted to the Associate 
Administrator for Railroad Safety and Chief Safety Officer, Federal 
Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 
20590.
    (d) Public notice. FRA will post the information identified in 
paragraph (b) of this section on its public Web site to permit 
interested parties an opportunity to provide additional information or 
comment on the operation identified by the railroad.
    (e) Review Process. A railroad may initiate a start-up train 
operation with less than two crewmembers after the railroad submits the 
information identified in this section to FRA unless FRA informs the 
railroad that the information is incomplete. Depending on a variety of 
factors, including FRA's familiarity with the railroad's operation and 
the risk factors associated with the operation, FRA may initiate an 
investigation to aid in the determination. If FRA determines that an 
operation is not providing an appropriate level of safety, FRA will 
notify the railroad that the operation shall not continue or shall only 
continue under certain conditions. FRA will consider the benefits and 
costs of conditions it requires railroads to meet to continue a start-
up train operation with less than two crewmembers. If FRA notifies a 
railroad that an operation shall not continue, or shall continue only 
if conditions are met, FRA will provide the railroad and the public, 
via its public Web site, the specific reason(s) and rationale for the 
decision.
    (f) Compliance. A railroad shall adhere to the restrictions, 
limitations, and procedures it identifies in its submission to FRA as 
well as any condition imposed by FRA.

    Issued in Washington, DC, on March 8, 2016, under the authority 
set forth in 49 CFR 1.89(b).
Sarah Feinberg,
Administrator.
[FR Doc. 2016-05553 Filed 3-14-16; 8:45 am]
 BILLING CODE 4910-06-P