[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Proposed Rules]
[Pages 24735-24741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11088]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 218
[Docket No. FRA-2014-0033, Notice No. 4]
RIN 2130-AC48
Train Crew Staffing
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM); withdrawal.
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SUMMARY: FRA withdraws the March 15, 2016 NPRM concerning train crew
staffing. In withdrawing the NPRM, FRA is providing notice of its
affirmative decision that no regulation of train crew staffing is
necessary or appropriate for railroad operations to be conducted safely
at this time.
DATES: As of May 29, 2019, the NPRM published on March 15, 2016 (81 FR
13918), is withdrawn.
FOR FURTHER INFORMATION CONTACT: Alan H. Nagler, Senior Attorney, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Chief Counsel, Room W31-309, 1200 New Jersey Avenue SE, Washington,
DC 20590, 202-493-6038.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Background
A. Comments Generally Supporting the Proposed Rule
B. Comments Generally Opposing the Proposed Rule
II. FRA's Decision
A. There Is No Direct Safety Connection Between Train Crew
Staffing and the Lac-M[eacute]gantic or Casselton Accidents
B. Rail Safety Data Does Not Support a Train Crew Staffing
Rulemaking
C. Comments to the NPRM Do Not Support a Train Crew Staffing
Rulemaking
D. A Train Crew Staffing Rule Would Unnecessarily Impede the
Future of Rail Innovation and Automation
E. FRA's Withdrawal Is an Affirmative Decision Not To Regulate
With the Intention To Preempt State Laws
I. Background
FRA has the authority to regulate train crew staffing pursuant to
its broad authority to, ``as necessary, . . . prescribe regulations and
issue orders for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.'' \1\ On March 15, 2016, FRA
issued an NPRM which proposed regulations establishing minimum
requirements for the size of train crew staffs depending on the type of
operation (referred to herein as train crew staffing). The proposed
rule was not statutorily mandated, but rather, arose out of two rail
accidents in 2013 (Lac-M[eacute]gantic, Quebec and Casselton, North
Dakota).\2\ Following the Lac-M[eacute]gantic and Casselton accidents,
the rail industry, Transportation Safety Board of Canada (TSB of
Canada), and DOT undertook a variety of investigations and actions \3\
to address rail safety and hazardous materials issues highlighted by
those accidents, including FRA's submission of a task to the Railroad
Safety Advisory Committee (RSAC).\4\
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\1\ 49 U.S.C. 20103; 49 CFR 1.89.
\2\ The accidents are described in the NPRM. See 81 FR 13918,
13921-13924 (Mar. 15, 2016).
\3\ Some of those actions are described in the NPRM. See, e.g.,
81 FR at 13922 (Mar. 15, 2016).
\4\ To adopt a participatory approach to rulemaking, in 1996,
FRA first established the RSAC, which is designed to bring together
all segments of the rail community to provide advice and
recommendations to FRA on railroad safety issues. The RSAC includes
representatives from railroads, labor, shippers, industry
associations, and other government agencies. The RSAC provides
recommendations to FRA on issuing and updating regulations and
identifies non-regulatory approaches to improve safety. The most
recent RSAC meeting occurred on April 24, 2019.
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On August 29, 2013, RSAC accepted a task (No. 13-05) entitled
``Appropriate Train Crew Size'' and formed a Working Group. The task
statement noted that in light of the Lac-M[eacute]gantic accident,
``FRA believes it is appropriate to review whether train crew staffing
practices affect railroad safety.'' Because FRA did not have reliable
or conclusive statistical data to suggest whether one-person crew
operations are safer or less safe than multiple-person crew operations,
FRA hoped that RSAC would provide useful analysis, including conclusive
data addressing whether there is a safety benefit or detriment from
crew redundancy (i.e., multiple-person train crews) and a report on the
costs and benefits associated with crew redundancy.
[[Page 24736]]
Despite meeting five times from October 2013 to March 2014, the
RSAC Working Group was unable to reach consensus on any recommendation
or identify conclusive, statistical data to suggest whether there is a
safety benefit or detriment from crew redundancy. As noted in the NPRM,
the accident data railroads provided did not capture accidents where
the cause or contributing factor was a lack of a second crewmember and
thus that data did not aid the Working Group.
Although RSAC was unable to identify data necessary to determine
whether a regulation was needed to address train crew staffing, FRA
believed it was important to give the broader public an opportunity to
provide input on this issue. Accordingly, on March 15, 2016, FRA issued
the NPRM with an initial 60-day comment period. FRA then extended the
comment period for an additional month \5\ and held a public hearing on
July 15, 2016. Subsequently, FRA extended the comment period through
August 15, 2016.\6\
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\5\ 81 FR 30229 (May 16, 2016).
\6\ 81 FR 39014 (June 15, 2016).
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FRA received nearly 1,600 comments on the NPRM from industry
stakeholders and individuals, including current, former, and retired
crewmembers. FRA also received comments from the National
Transportation Safety Board (NTSB), two members of Congress, and
numerous state and local government officials. A general summary of the
comments is provided below.\7\
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\7\ The order the comments are discussed in this document,
whether by issue or by commenter, is not intended to reflect the
significance of the comment raised or the standing of the commenter.
Additionally, this summary of the comments is intended to provide
both a general understanding of the overall extent and nature of the
comments, as well as give some specific descriptions to provide
context. Not every comment is described in this summary though all
were thoughtfully considered and, when specific numbers of comments
are identified by comment theme or issue, such numbers are
approximate as some comments could not be easily grouped with
others.
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A. Comments Generally Supporting the Proposed Rule
Approximately 1,545 of the written comments were in support of some
kind of train crew staffing requirements, although not necessarily the
exact proposed requirements found in the NPRM. Two railroad employee
unions, the Brotherhood of Locomotive Engineers and Trainmen (BLET) and
the International Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division (SMART TD), submitted
comments advocating for changes to the proposed rule. Commenters
supportive of the rule commonly sought more stringent requirements that
would mandate fewer, or no, exceptions to a two-person train crew, or
require the second person be a certified conductor under FRA's
requirements in 49 CFR part 242. The four central points of these
comments were that: (1) A train crew's duties are too demanding for one
person; (2) new technology will make the job more complex; (3)
unpredictable scheduling makes fatigue a greater factor when there is
only a one-person crew; and (4) the idea of a one-person train crew is
seemingly in conflict with the statutory and regulatory requirements
for certification of both locomotive engineers and conductors.
The vast majority of comments supporting crew staffing
requirements, approximately 1,418, were filed by members of the public
on behalf of themselves as individuals. Most of these individual
commenters identified themselves as current, former, or retired train
crewmembers. These commenters largely provided anecdotal information
supporting why they thought trains staffed with fewer than two persons
created unsafe conditions. For example, Mike Rankin, who also testified
at the public hearing, recalled that he was a conductor working with a
locomotive engineer and was able to ``cut'' (separate) a train in half
after a grade crossing accident. He stated that his actions likely
saved a teenager's life by allowing emergency first responders quick
access to the injured teenager though the grade crossing, and enabling
hospital treatment much faster than if only one train crewmember had
been present and the crossing remained blocked.
A variety of governmental officials and organizations also
indicated support for train crew staffing requirements, but with a
greater focus on safety for the communities in proximity to railroad
tracks, as opposed to the safety of the rail operation itself. For
example, FRA heard testimony at the public hearing from Mayor Karen
Darch of Barrington, Illinois. Mayor Darch explained that local
governments and railroads face the same task of determining appropriate
staffing levels, with the local governments focusing on police, fire,
and emergency medical services. She testified ``FRA should be concerned
that industry may be tempted to bet on its favorable accident odds and
make overly hasty staffing decisions to reduce operating costs.'' She
asked FRA to ``balance the interests of the public living or traveling
with proximity to'' railroad track, because the economies of
``villages, towns, and cities are negatively impacted on a daily basis
by train or grade crossing warning device malfunctions that block
crossings.'' FRA also heard testimony from Mr. Ronnie C. Harris,
Executive Director of the Louisiana Municipal Association, an
organization that represents 303 cities, towns, and villages, and two
consolidated parish governments in Louisiana. Mr. Harris expressed
concern about dangerous commodities being transported by rail on long
trains that have reached as long as 11,000 feet in length, and that,
without two crewmembers, any blocked crossings would remain blocked for
considerably longer than the time it would take a two-person crew to
unblock a crossing.\8\ In addition to these summarized comments, FRA
also received written comments generally supporting the NPRM's proposed
requirements from State and local governmental officials, agencies and
organizations from at least 16 States.
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\8\ FRA is currently researching the rail operation safety
issues associated with freight train length, as well as
participating in a U.S. Government Accountability Office (GAO)
engagement (code 102557) on the same subject.
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Two Members of Congress commented on the rule, and they echoed the
concerns of State and local governmental commenters, as well as the
labor unions. For instance, then-Senator Heidi Heitkamp (North Dakota)
testified at the public hearing that, as a representative of a State
that moves a lot of oil by rail, the people she represented are
concerned about safety and they want to know that their government is
doing everything possible from a regulatory standpoint to keep the
movement of oil and other hazardous materials safe. Senator Heitkamp
testified that she supports a crew staffing rule because she has heard
from rail workers in her State that believe having two crew members is
essential for their safety and the public's safety. Senator Heitkamp
further added that the NPRM provided the right balance as it proposed
to allow exceptions grounded in a safety rationale. Then-Rep. Richard
M. Nolan (8th District, Minnesota) also commented in support of the
rule. Like BLET and SMART TD, Rep. Nolan supported FRA adopting a more
stringent requirement that the second crewmember must be a certified
conductor.
The Western Organization of Resource Councils (WORC), a regional
network of grassroots community organizations that includes 12,200
members, many of whom are farmers, ranchers, and others directly
affected by coal, oil, and gas development and who live in communities
along rail lines, raised
[[Page 24737]]
concerns with trains being operated with fewer than two crewmembers.
WORC commented that the 20-car hazardous materials threshold for ``key
trains'' is not stringent enough to adequately protect communities and
advocated for a single car threshold for determining whether a second
crewmember must be present.
The Environmental Law & Policy Center, an organization dedicated to
the protection of the environment, commented that a second crewmember
can be critical in containing environmental damage or making
operational moves that could prevent accidents, and thus believes it is
common sense that two crewmembers are better than one.
The National League of Cities (NLC), an advocate for more than
19,000 cities, villages, and towns, supported the NPRM. NLC commented
that local officials are concerned with the significant increase in the
volume of hazardous materials shipments combined with rail operators
seeking to reduce crew sizes. NLC supported the rule as a response to
``preventable tragedies of the past.''
B. Comments Generally Opposing the Proposed Rule
Railroads, railroad associations, other associations and
organizations, and some individual commenters submitted approximately
39 comments that largely took the position that FRA should not regulate
train crew size for a variety of reasons. The Association of American
Railroads (AAR) commented that FRA's admission as to a lack of safety
data meant the rule was ``arbitrary,'' indicating that AAR believed the
rule could be determined unlawful through judicial review as a
challenge under the Administrative Procedure Act (APA). AAR supported
the NTSB's approach encouraging FRA to first modify its accident report
form to include the number of crewmembers in the controlling cab at the
time of an accident and then use the data it gathers to evaluate the
safety adequacy of current regulatory requirements.\9\ In addition, AAR
noted that the crew staffing issue has historically been left for labor
relations and that one-person train crews are currently being used
safely. Further, AAR also believed that: (1) The accidents FRA relied
on in the NPRM as the basis for the proposed rule did not provide such
a basis; (2) FRA massively underestimated the costs of the rule on the
industry; and (3) FRA's proposed rule was stifling innovation just as
autonomous technologies were emerging and DOT was removing roadblocks
to automation in other modes of transportation. AAR also provided
research documents to support its position. For instance, AAR funded
two studies conducted by Oliver Wyman, a consulting firm. One study,
``Analysis of North American Freight Rail Single-Person Crews: Safety
and Economics,'' concluded that safety data analyses show single-person
crew operations appear as safe as multiple-person crew operations, if
not safer. This study also concluded that the proposed rule would
greatly reduce U.S. railroads' ability to control operating costs,
without making the industry safer. A second study, ``Assessment of
European Railways: Characteristics and Crew-Related Safety,'' critiqued
several of the assertions FRA made in its Regulatory Impact Analysis
(RIA) on the NPRM, and generally found that European rail operations
are comparable to U.S. rail operations and therefore the success of the
European network in implementing single-person crew operations can
serve as a model for the U.S. rail system. AAR also submitted a
comparative risk assessment completed by ICF Incorporated, a consulting
firm, titled ``Evaluation of Single Crew Risks,'' which compared
traditional Class I railroad two-person crew mainline operations with
an FRA-compliant positive train control (PTC) system installed for both
one-person- and two-person-crew mainline operations to determine the
frequency of accidents that might be impacted by crew size. That
assessment found almost no difference in accident rates between one-
and two-person operations where PTC has been fully implemented. Union
Pacific Railroad and Norfolk Southern Railway were two of the Class I
freight railroads represented by AAR that submitted extensive comments
raising the same themes.
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\9\ The NTSB's comment on the NPRM stated that the NTSB had not
taken a prior position on crew size but that its accident report
investigation into the derailment of National Railroad Passenger
Corporation (Amtrak) train no. 188 in Philadelphia, Pennsylvania, on
May 12, 2015, would address the issue. In that report, issued on May
17, 2016, the NTSB made a finding that FRA's ``accident database is
inadequate for comparing relevant accident rates based on crew size
because the information about accident circumstances and number of
crewmembers in the controlling cab is insufficient.'' NTSB, RAR-16/
02, Derailment of Amtrak Passenger Train 188 at 19 (2016).
Therefore, the NTSB made new recommendations to FRA to capture
crewmember data and use the data to evaluate the adequacy of current
crew size regulations. Id. (citing recommendations R-16-33 and R-16-
34). On April 25, 2018, FRA asked RSAC to consider forming a working
group to meet and discuss possible changes and updates to FRA's data
collection requirements that would include the NTSB's
recommendations and RSAC accepted that task. That process is
ongoing.
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The American Short Line and Regional Railroad Association (ASLRRA)
objected to the NPRM for several reasons. ASLRRA was concerned about
the financial impact and paperwork burden the rule would have on short
line railroads, which generally are small entities, and questioned
whether FRA adequately followed existing legal requirements that
protect small businesses. ASLRRA challenged FRA's lack of data and
FRA's internal survey of its regional personnel to determine the extent
of one-person crew operations. Also, ASLRRA commented that its members
would have a competitive disadvantage compared to the trucking
industry, if the NPRM was finalized, and it submitted an economic paper
suggesting the proposed rule's requirements may induce railroads to
reallocate scarce resources away from upgrades to track and equipment.
II. FRA's Decision
While FRA continues to monitor the potential safety impact of train
crew staffing, for the reasons provided below, FRA finds that no
regulation of train crew staffing is necessary or appropriate at this
time. FRA believes that current safety programs and actions taken
following the Lac-M[eacute]gantic and Casselton accidents are the
appropriate avenues for addressing those accidents. Moreover, despite
studying this issue in-depth and performing extensive outreach to
industry stakeholders and the general public, FRA's statement in the
NPRM that it ``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'' still holds true
today. Accordingly, FRA withdraws the NPRM.
A. There Is No Direct Safety Connection Between Train Crew Staffing and
the Lac-M[eacute]gantic or Casselton Accidents
Although the Lac-M[eacute]gantic and Casselton accidents initially
led FRA to review the potential impact of train crew staffing on
safety, FRA subsequently determined that no direct conclusions could be
drawn about train crew staffing's safety impact on those accidents. As
FRA acknowledged in the NPRM, the TSB of Canada's investigation report
on the Lac-M[eacute]gantic accident concluded it would have been
possible for a single operator to apply a sufficient number of hand
brakes within a reasonable amount of time to have secured the train
involved in that
[[Page 24738]]
accident.\10\ The NPRM summarized TSB of Canada's finding that it could
not be concluded that a one-person crew contributed to the accident,
and that risk, if any, posed by a one-person crew was not determined to
have directly led to the accident. Simply put, TSB of Canada found no
direct causal connection between this catastrophic accident and the
number of train crewmembers.\11\ As FRA acknowledged in the NPRM, ``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.'' \12\ That fact remains
true today.
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\10\ 81 FR at 13921.
\11\ Railway Investigation Report R13D0054 at 117-18 (July 6,
2013), http://bit.ly/VLqVBk.
\12\ 81 FR at 13921.
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While the NPRM noted some indirect connections between crew
staffing and railroad safety with respect to the Lac-M[eacute]gantic
and Casselton accidents, those connections are tangential at best and
do not provide a sufficient basis for FRA regulation of train crew
staffing requirements. For example, TSB of Canada made indirect
connections in the Lac-M[eacute]gantic accident between the railroad's
poor safety culture and the one train crewmember's alleged failure to
properly secure the train. However, in making this connection, TSB of
Canada emphasized that a single crewmember could have prevented or
helped avoid the catastrophic accident by following the railroad's rule
requiring a proper hand brake effectiveness test (i.e., to determine
whether a sufficient number of hand brakes were applied to properly
secure the train), and that the incident may have been just as likely
with multiple train crewmembers and a poor safety culture.
Likewise, after reviewing the facts of the Casselton accident as
described in the NPRM,\13\ and FRA's final accident investigation
report,\14\ FRA believes that the same type of positive post-accident
mitigating actions were achievable with: (1) Fewer than two crewmembers
on the BNSF grain train involved in the accident, and (2) a well-
planned, post-accident protocol that quickly brings railroad employees
to the scene of an accident.\15\ In other words, the facts of the
accident suggest that BNSF could have duplicated the mitigating moves
of the grain train crew with responding emergency crewmembers. While
FRA acknowledges the BNSF key train crew performed well, potentially
saving each other's lives, it is possible that one properly trained
crewmember, technology, and/or additional railroad emergency planning
could have achieved similar mitigating actions. Thus, the indirect
safety connections cited in the NPRM do not provide a sufficient basis
for FRA regulation of train crew staffing.
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\13\ 81 FR at 13923-24.
\14\ https://www.fra.dot.gov/eLib/details/L18586#p1_z50_gD_lAC_y2013.
\15\ BNSF's post-accident actions included the development of an
inventory of emergency response resources along crude oil train
routes, identifying locations for staging emergency response
equipment, and identifying contacts for community notification.
NTSB/Railroad Accident Brief RAB-17/01 at 15-16, https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1701.pdf.
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FRA's current safety programs and actions taken by FRA and DOT
following the Lac-M[eacute]gantic and Casselton accidents appropriately
address safety concerns raised by those accidents. In direct response
to the Lac-M[eacute]gantic derailment, FRA has taken the following
actions to ensure the safe transportation of products by rail in the
United States, with a particular focus on certain hazardous materials
that present an immediate danger for communities and the environment in
the event of a train accident.
FRA issued Emergency Order (E.O.) 28 to address the
immediate dangers that arise from unattended equipment left unsecured
on mainline tracks.\16\ E.O. 28 was rescinded on the effective date of
a subsequent final rule,\17\ discussed further below.
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\16\ See 78 FR 48218, Aug. 7, 2013.
\17\ See Securement of Unattended Equipment, 80 FR 47349, 47358,
Aug. 6, 2015.
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FRA and the Pipeline and Hazardous Materials Safety
Administration (PHMSA) jointly issued a Safety Advisory to railroads
and commodity shippers detailing eight recommended actions the industry
should take to better ensure the safe transport of hazardous
materials.\18\ These recommendations include: Reviewing the details and
lessons learned from the Lac M[eacute]gantic accident; reviewing crew
staffing levels; removing and securing the train's ``reverser'' when
unattended; reviewing all railroad operating procedures and testing/
operating rules related to securing a train; reviewing Transport
Canada's directives to secure and safely operate a train; and
conducting a system-wide assessment of security risks when a train is
unattended and identifying mitigation efforts for those risks.
Additionally, the Safety Advisory recommends testing and sampling of
crude oil for proper classification for shipment, as well as a review
of all shippers' safety and security plans.
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\18\ See Federal Railroad Administration Safety Advisory 2013-
06, Lac-M[eacute]gantic Railroad Accident and DOT Safety
Recommendations, 78 FR 48224, Aug. 7, 2013, available at http://www.fra.dot.gov/eLib/details/L04720.
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FRA and PHMSA jointly issued a follow-up Safety
Advisory.\19\ In this Safety Advisory, PHMSA and FRA reinforced 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. In addition, the Safety Advisory reinforced that
FRA expects offerors by rail and rail carriers to revise their safety
and security plans required by the federal hazardous materials
regulations, including the required risk assessments, to address the
safety and security issues identified in FRA's E.O. 28 and the August
7, 2013, joint Safety Advisory.
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\19\ See Federal Railroad Administration Safety Advisory 2013-
07, Safety and Security Plans for Class 3 Hazardous Materials
Transported by Rail, 78 FR 69745, Nov. 20, 2013, available at
https://www.fra.dot.gov/eLib/details/L04861.
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FRA and PHMSA jointly issued a Safety Advisory
specifically regarding the transportation of petroleum crude oil.\20\
More specifically, the Safety Advisory recommends that offerors and
carriers of Bakken crude oil by rail tank car select and use the
railroad tank car designs with the highest level of integrity
reasonably available within their fleet for shipment of these hazardous
materials by rail in interstate commerce. Further, the Safety Advisory
recommends offerors and carriers of Bakken crude oil avoid the use of
older, legacy DOT Specification 111 or CTC 111 tank cars for the
shipment of such oil, to the extent reasonably practicable.
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\20\ See Federal Railroad Administration Safety Advisory 2014-
01, Notice of Safety Advisory, 79 FR 27370, May 13, 2014, available
at https://www.fra.dot.gov/eLib/details/L05222.
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FRA coordinated with PHMSA on a PHMSA final rule adopting
new operational requirements for certain trains transporting large
quantities of flammable liquids known as ``high-hazard flammable
trains''; enhancing safety improvements in tank car design standards;
providing a sampling and classification program for unrefined
petroleum-based products; and mandating notification requirements.\21\
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\21\ See Hazardous Materials: Enhanced Tank Car Standards and
Operational Controls for High Hazard Flammable Trains, 80 FR 26643,
May 8, 2015.
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FRA issued a final rule to strengthen existing securement
regulations, which mitigate risks associated with the unintended
[[Page 24739]]
movement of unattended equipment.\22\ Additional requirements addressed
hazards identified from the Lac-M[eacute]gantic accident. The final
rule codified much of FRA's E.O. 28, requiring railroads to implement
procedures to ensure the proper securement of equipment containing
certain types and amounts of hazardous materials when left unattended.
For example, the rule contains requirements to ensure that each
locomotive left unattended outside of a yard is equipped with an
operative exterior locking mechanism and that such locks be applied on
the controlling locomotive cab door when a train is transporting tank
cars loaded with certain hazardous materials. The rule also provides
that such hazardous materials trains may only be left unattended on a
main track or siding if justified in a plan adopted by the railroad,
accompanied by an appropriate job briefing, and proper securement is
made and verified. This rule also requires additional verification of
securement if a non-railroad emergency responder may have been in a
position to have affected the equipment.
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\22\ See Securement of Unattended Equipment, 80 FR 47349, Aug.
6, 2015.
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In addition to those actions, FRA previously addressed post-
accident protocols for passenger trains through the passenger train
emergency preparedness regulation.\23\ That rule, typically referred to
as the passenger train ``e-prep'' rule, requires each railroad involved
in passenger train operations to submit a plan, for FRA approval, that
ensures the railroad can effectively and efficiently manage passenger
train emergencies. The e-prep rule does not require a specific number
of on-board personnel, but rather ensures that railroads can
successfully implement the emergency preparedness plans and those
operations adopted under the rule; this notice of withdrawal does not
have any effect on the emergency preparedness plan requirements.
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\23\ 49 CFR part 239, Passenger Train Emergency Preparedness; 63
FR 24630 (May 4, 1998).
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As identified in the NPRM, FRA is also in the process of developing
regulations requiring Class I railroads, other freight railroads with
inadequate safety performance, and all passenger railroads to implement
safety risk reduction programs (RRPs).\24\ These RRPs represent 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. As part of its
RRP, a railroad would identify safety hazards and risks associated with
its operations, which could include changes in train crew staffing.\25\
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\24\ On August 12, 2016, FRA published a final rule, found at 49
CFR part 270, mandating that commuter and intercity passenger
railroads develop and implement a system safety program to improve
the safety of their operations. 81 FR 53850. A stay was issued on
this final rule until September 4, 2019, to consider petitions for
reconsideration. 83 FR 63106. (Dec. 7, 2018). Similarly, on February
27, 2015, FRA published an NPRM that proposes to require each Class
I railroad and any freight railroad with inadequate safety
performance develop and implement an RRP to improve the safety of
their operations. 80 FR 10950.
\25\ For example, FRA's proposed risk reduction rule would
require, if made final, that a railroad's safety performance
evaluation monitors the railroad's system to identify emerging or
new risks, which is expected to include a reduction in crew staffing
levels. See proposed 49 CFR 271.105, 80 FR at 10992-93. FRA's system
safety final rule requires that once FRA approves a railroad's plan,
the railroad must apply a risk-based hazard analysis to identify
hazards such as ``employee levels and schedules'' and must also
perform a new analysis whenever there are ``significant operational
changes.'' 49 CFR 270.103(q)(1) and (3).
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In particular, as new technologies are introduced that may be
connected to future reductions in crew size (e.g., PTC technology),
railroads will be required to analyze the safety impacts of
implementing those technologies as part of their RRPs. As provided in
49 CFR part 270 and proposed in 49 CFR part 271,\26\ railroads required
to have an RRP shall conduct a technology analysis evaluating current,
new, or novel technologies that may mitigate or eliminate hazards and
the resulting risks identified through the risk-based hazard management
program. The technology analysis must also analyze the safety impact of
implementing the identified technologies.
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\26\ See 49 CFR part 270.103 and proposed 49 CFR 271.109, 80 FR
at 10993.
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B. Rail Safety Data Does Not Support a Train Crew Staffing Rulemaking
FRA's accident/incident safety data \27\ does not establish that
one-person operations are less safe than multi-person train crews.
Indeed, as FRA noted in the NPRM, existing one-person operations ``have
not yet raised serious safety concerns'' and, in fact, ``it is possible
that one-person crews have contributed to the [railroads'] improving
safety record.'' \28\ The NTSB also concurs with that conclusion:
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\27\ 49 CFR part 225, Railroad Accidents/Incidents: Reports
Classification, and Investigations.
\28\ 81 FR at 13950 and 13932.
[T]here is insufficient data to demonstrate that accidents are
avoided by having a second qualified person in the cab. In fact, the
NTSB has investigated numerous accidents in which both qualified
individuals in a two-person crew made mistakes and failed to avoid
an accident.\29\
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\29\ NTSB, RAR-16/02, Derailment of Amtrak Passenger Train 188,
at 18 (2016).
FRA reviewed accident/incident data over a seventeen-year period
ending in 2018 and could not determine that any of the accidents/
incidents involving a one-person crew would have been prevented by
having multiple crewmembers.\30\ Moreover, because ``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.'' \31\
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\30\ FRA presented safety data to the RSAC covering nearly 12
years of railroad safety data between January 2002 and October 2013.
The data was developed by reviewing accident/incident reports
submitted to FRA. As stated in the NPRM, the ``accident/incident
reports involving one-person train crews . . . do not clearly help
determine that the accident/incident would have been prevented by
having multiple crewmembers.'' 81 FR at 13931. In a subsequent
review of the data through 2018, FRA again could not conclude that
any of the accidents/incidents involving a one-person crew would
have been prevented by having multiple crewmembers.
\31\ 81 FR at 13931.
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For these reasons, this accident/incident data does not support a
train crew staffing regulation. Rather, the accident/incident data FRA
presented in the NPRM suggests that a railroad with a higher rate of
train accidents involving the transportation of hazardous materials
could find itself more likely to continue that trend, regardless of the
size of the crew, assuming the railroad takes no further action to
prevent such accidents from occurring.\32\
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\32\ 81 FR 13930-32.
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Without ``data to prove a direct correlation between higher rates
of safety and multiple person crews,'' \33\ FRA provided the Working
Group with five FRA-sponsored research reports,\34\
[[Page 24740]]
as well as one Transportation Research Board (TRB) conference report
that contained presentations from multiple research reports, before the
first meeting of the RSAC in October 2013. While these reports identify
safety issues that railroads should consider when evaluating any
reduction in the number of train crewmembers or a shift in
responsibilities among those crewmembers, the reports do not indicate
that one-person crew operations are less safe and therefore do not form
a sufficient basis for a final rule on crew staffing.
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\33\ 81 FR at 13919.
\34\ The following is a list of the five research reports and
their location on FRA's website:
(1) Cognitive and Collaborative Demands of Freight Conductor
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations, Final Report, dated July 2012,
DOT/FRA/ORD-12/13. The report was prepared and researched by the
John A. Volpe National Transportation Systems Center (Volpe Center).
http://www.fra.dot.gov/eLib/details/L04331.
(2) Rail Industry Job Analysis: Passenger Conductor, Final
Report, dated Feb. 2013, DOT/FRA/ORD-13/07. The report was prepared
and researched by the Volpe Center. http://www.fra.dot.gov/eLib/details/L04321.
(3) Fatigue Status in the U.S. Railroad Industry, Final Report,
dated Feb. 2013, DOT/FRA/ORD-13/06. www.fra.dot.gov/Elib/Document/2929. The report was prepared and researched by QinetiQ North
America and FRA's Office of Research and Development.
(4) Technology Implications of a Cognitive Task Analysis for
Locomotive Engineers--Human Factors in Railroad Operations, Final
Report, dated Jan. 2009, DOT/FRA/ORD-09/03. The report was prepared
and researched by the Volpe Center. www.fra.dot.gov/Elib/Document/381.
(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 report was prepared and researched by the Volpe Center.
http://www.fra.dot.gov/eLib/details/L04589.
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C. Comments to the NPRM Do Not Support a Train Crew Staffing Rulemaking
Based on its review and careful consideration of all the comments
to the NPRM, FRA has determined that no regulation of train crew
staffing is necessary or appropriate at this time. The comments do not
provide conclusive data suggesting that there have been any previous
accidents involving one-person crew operations that could have been
avoided by adding a second crewmember or that one-person crew
operations are less safe.
While the comments note some indirect connections between crew
staffing and railroad safety, such as post-accident response or
handling of disabled trains, those indirect connections do not provide
a sufficient basis for FRA regulation of train crew staffing
requirements. Moreover, FRA believes the indirect safety connections
cited in the comments could be achieved with fewer than two crewmembers
with a well-planned, disabled-train/post-accident protocol that quickly
brings railroad employees to the scene of a disabled train or accident.
FRA expects railroads would consider these protocols as mitigation
options under their RRPs when evaluating any changes to train crew
staffing levels. Thus, FRA believes that its previously discussed
current safety programs, along with other actions taken by FRA and DOT,
more appropriately address the safety concerns raised by the
commenters.
FRA also does not concur with commenters who assert that the idea
of a one-person train crew is seemingly in conflict with the statutory
and regulatory requirements for certification of both locomotive
engineers and conductors. There are no specific statutes or regulations
prohibiting a one-person train crew, nor is there a specific
requirement that would prohibit autonomous technology from operating a
locomotive or train in lieu of a certified locomotive engineer.
However, the NPRM identified several regulations that a railroad would
need to be cognizant of when adjusting its crew staffing levels, while
acknowledging that none of those regulations requires a minimum number
of crewmembers to achieve compliance.
D. A Train Crew Staffing Rule Would Unnecessarily Impede the Future of
Rail Innovation and Automation
FRA's current regulatory regime is largely based on traditional or
``legacy'' equipment and systems \35\ that railroads are, in many
instances, moving away from. DOT has recognized that the integration of
technology and automation across our transportation system has the
potential to increase productivity, facilitate freight movement, create
new kinds of jobs, and, most importantly, improve safety significantly
by reducing accidents caused by human error.\36\ FRA's accident/
incident data for calendar year 2017 shows that railroads reported
1,710 train accidents not occurring at highway grade crossings, and the
most frequent of which, 38 percent of those accidents (650), were
attributable to human factor causes.\37\ The potential benefits of
automation will certainly bring new challenges, requiring active steps
to prepare for the future by engaging with new technologies to ensure
safety without hampering innovation.
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\35\ Notable exceptions are 49 CFR part 236, subparts H and I,
which contain FRA's standards for processor-based signal and train
control systems and positive train control regulations.
\36\ DOT's ``Preparing for the Future of Transportation,''
Automated Vehicles 3.0 (Oct. 4, 2018).
\37\ The other causes cited were track (27 percent),
miscellaneous (18 percent), motive power/equipment (14 percent), and
signal caused, all track types (3 percent). https://safetydata.fra.dot.gov/officeofsafety/default.aspx.
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DOT's approach to achieving safety improvements begins with a focus
on removing unnecessary barriers and issuing voluntary guidance, rather
than regulations that could stifle innovation. In furtherance of these
goals, on March 29, 2018, FRA published a request for information (RFI)
on the subject of automation in the railroad industry.\38\ The RFI's
purpose was to facilitate comments that would help FRA understand the
current stage and development of automated railroad operations and how
the agency can best position itself to support the integration and
implementation of new automation technologies to increase the safety,
reliability, and capacity of the nation's railroad system. Some
commenters to the RFI identified the train crew staffing rulemaking as
a potential barrier to automation or other technology improvements.
Similar comments were submitted to the train crew staffing NPRM itself.
FRA generally agrees with those comments and, without sufficient safety
data showing the need for such a rule, concurs that the NPRM should be
withdrawn.
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\38\ 83 FR 13583.
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By requiring a minimum number of crewmembers for certain trains,
finalizing the train crew staffing rule would have departed from FRA's
long-standing regulatory approach of not endorsing any particular crew
staffing arrangement.\39\ FRA completely disagrees with the comments
suggesting that there is a specific statutory or regulatory requirement
that a certified locomotive engineer and a certified conductor are
required on each locomotive or train. The lack of a legal prohibition
means that each railroad is free to make train crew staffing decisions
as part of their operational management decisions, which would include
consideration of technological advancements and any applicable
collective bargaining agreements. However, the NPRM identified several
regulations that a railroad would need to be cognizant of when
adjusting its crew staffing levels, while acknowledging that none of
those regulations requires a minimum number of crewmembers to achieve
compliance. For example, the NPRM noted that when complying with the
requirements in 49 CFR 218.99 for performing a shoving or pushing
movement, a second crewmember routinely provides point protection.
However, the NPRM also noted that the point protection rule permits use
of cameras for performing these movements.\40\
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\39\ For example, FRA's conductor certification final rule
provides that: ``It is FRA's intent that this conductor
certification regulation . . . be neutral on the crew consist issue.
Nothing in part 242 should be read as FRA's endorsement of any
particular crew consist arrangement.'' 76 FR 69802, 69825 (Nov. 9,
2011).
\40\ 81 FR at 13932 (citing 49 CFR 218.99).
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[[Page 24741]]
E. FRA's Withdrawal Is an Affirmative Decision Not To Regulate With the
Intention To Preempt State Laws
In issuing this withdrawal, FRA has determined that no regulation
of train crew staffing is necessary or appropriate at this time and
intends for the withdrawal to preempt all state laws attempting to
regulate train crew staffing in any manner. FRA believes that nine
states have laws in place regulating crew size in some manner:
California, West Virginia, and Wisconsin require a minimum of two crew
members for certain trains; \41\ Arizona, California, Ohio, and Oregon
have ``full crew'' requirements for certain trains; \42\ and
Massachusetts, New Jersey, and Washington impose other
restrictions.\43\ FRA also believes that laws regulating crew size have
been proposed in 30 states since 2015.\44\
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\41\ Cal. Lab. Code Sec. 6903(a); W. Va. Code Ann. Sec. 24-3-
1b(a); Wis. Stat. Ann. Sec. 192.25(2).
\42\ Ariz. Rev. Stat. Ann. Sec. 40-881; Cal. Lab. Code Sec.
6901(a); Ohio Rev. Code Ann. Sec. 4999.06; Or. Rev. Stat. Ann.
Sec. 824.300.
\43\ Mass. Gen. Laws Ann. ch. 160, Sec. 185; N.J. Stat. Ann.
Sec. 48:12-155; Wash. Rev. Code Ann. Sec. 81.40.010(1).
\44\ 2016 Ala. S.B. 239; 2019 Ariz. H.B. 2102; 2019 Colo. H.B.
1034; 2019 Geor. H.B. 190; 2019 Idaho H.B. 53; 2019 Ill. S.B. 24;
2016 Ind. H.B. 1029; 2019 Iowa S.F. 248; 2015 Kan. S.B. 164; 2019
Ky. H.B. 111; 2016 La. H.B. 778; 2019 Maine H.P. 521; 2019 Md. H.B.
66; 2017 Mass. S.B. 1953; 2019 Minn. S.F. 263; 2019 Mo. H.B. 179;
2019 Neb. L.B. 611; 2017 Nev. S.B. 427; 2019 N.M. H.B. 244; 2015
N.Y. S.B. 7435; 2015 N.D. H.B. 1357; 2017 Ohio S.B. 74; 2017 Okla.
H.B. 1195; 2017 Pa. H.B. 1585; 2018 S.D. H.B. 1150; 2019 Tex. H.B.
742; 2019 Utah S.B. 176; 2018 Va. H.B. 1789; 2019 Wash. S.B. 5877;
2019 Wyo. H.B. 104.
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Provisions of the federal railroad safety statutes, specifically
the former Federal Railroad Safety Act of 1970 (FRSA), repealed and
recodified at 49 U.S.C. 20106, mandate that laws, regulations, and
orders ``related to railroad safety'' be nationally uniform.\45\ The
FRSA provides that a state law is preempted where FRA, under authority
delegated from the Secretary of Transportation, ``prescribes a
regulation or issues an order covering the subject matter of the State
requirement.'' \46\ A federal regulation or order covers the subject
matter of a state law where ``the federal regulations substantially
subsume the subject matter of the relevant state law.'' \47\ A federal
regulation or order need not be identical to the state law to cover the
same subject matter. The Supreme Court has held preemption can be found
from ``related safety regulations'' and ``the context of the overall
structure of the regulations.'' \48\ Federal and state actions cover
the same subject matter when they address the same railroad safety
concerns.\49\ FRA intends this notice of withdrawal to cover the same
subject matter as the state laws regulating crew size and therefore
expects it will have preemptive effect.
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\45\ 49 U.S.C. 20106(a)(1).
\46\ 49 U.S.C. 20106(a)(2). While the FRSA also includes a
narrow savings clause for ``essentially local safety hazards'' which
might except an otherwise preempted state law, that clause would not
apply to the state laws at issue which would apply statewide and
therefore do not address an ``essentially local'' hazard. 49 U.S.C.
20106(a)(2); H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970)
(``these local hazards would not be statewide in character''); see
also Norfolk & Western Ry. Co. v. Public Utilities Com'n of Ohio,
926 F.2d 567, 571 (6th Cir. 1991) and National Ass'n of Regulatory
Util. Comm'rs v. Coleman, 542 F.2d 11, 13 (3d Cir. 1976) (both
holding that the local hazard exception cannot be applied to uphold
the application of a statewide rule).
\47\ CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664-
65 (1993).
\48\ Easterwood, 507 U.S. at 674.
\49\ Burlington Northern R.R. v. Montana, 880 F.2d 1104, 1105
(9th Cir. 1989).
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This notice of withdrawal provides what the Supreme Court referred
to as ``negative'' or ``implicit'' preemption. The Court recognized
that ``where failure of . . . federal officials affirmatively to
exercise their full authority takes on the character of a ruling that
no such regulation is appropriate or approved pursuant to the policy of
the statute,'' any state law enacting such a regulation is
preempted.\50\
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\50\ Ray v. Atlantic Richfield Co., 435 U.S. 151, 178 (1978)
(quoting Bethlehem Steel Co. v. New York State Labor Relations
Board, 330 U.S. 767, 774 (1947)). For example, FRA examined the
effectiveness of strobe and oscillating lights on locomotives and
concluded they were not effective in reducing grade-crossing
accidents and mandating them was therefore unjustified. 48 FR 20257
(May 5, 1983). When examined by the Ninth Circuit, the court held
that ``[u]nder [FRSA], where the FRA has rejected the requirement of
strobe or oscillating lights, a state may not require them.''
Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1154 (9th Cir.
1983).
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After closely examining the train crew staffing issue and
conducting significant outreach to industry and public stakeholders,
FRA determined that issuing any regulation requiring a minimum number
of train crewmembers would not be justified because such a regulation
is unnecessary for a railroad operation to be conducted safely at this
time. Thus, this notice of withdrawal provides FRA's determination that
no regulation of train crew staffing is appropriate and that FRA
intends to negatively preempt any state laws concerning that subject
matter.
Issued in Washington, DC, under the authority set forth in 49
CFR 1.89(b).
Ronald L. Batory,
Administrator.
[FR Doc. 2019-11088 Filed 5-28-19; 8:45 am]
BILLING CODE 4910-06-P