[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Proposed Rules]
[Pages 45564-45622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15540]



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Vol. 87

Thursday,

No. 144

July 28, 2022

Part IV





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 218





Train Crew Size Safety Requirements; Proposed Rule

  Federal Register / Vol. 87 , No. 144 / Thursday, July 28, 2022 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

[Docket No. FRA-2021-0032, Notice No. 1]
RIN 2130-AC88


Train Crew Size Safety Requirements

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations establishing safe minimum 
requirements for the size of train crews 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 
do not pose significant safety risks to railroad employees, the public, 
or the environment. This proposed rule would also establish minimum 
requirements for the location of crewmembers on a moving train and 
promote safe and effective teamwork. FRA also proposes a special 
approval procedure to allow railroads to petition FRA to continue 
legacy operations with one-person train crews and allow any railroad to 
petition FRA for approval to initiate a new train operation with fewer 
than two crewmembers.

DATES: Comments on the proposed rule must be received by September 26, 
2022. FRA will consider comments received after that date to the extent 
practicable.

ADDRESSES: 
    Comments: Comments related to Docket No. FRA-2021-0032 may be 
submitted by going to https://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket 
number (FRA-2021-0032), and Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC88). All comments received will be posted 
without change to https://www.regulations.gov; this includes any 
personal information. Please see the Privacy Act heading in the 
SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov and follow the 
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Kevin Lewis, Operating Crew 
Certification Specialist, U.S. Department of Transportation, Federal 
Railroad Administration, telephone: 918-557-0651, email: 
[email protected]; or Alan H. Nagler, Senior Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, 
telephone: 202-493-6038, email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
    A. A Brief History of Train Crew Staffing
    1. General History
    2. Indiana Rail Road's One-Person Train Crew Operation
    B. Summary of Prior Crew Staffing Rulemaking and Court Order
    C. Preemption
    D. Reconsideration of the Safety Issues
    1. Revisiting Research on the Cognitive and Collaborative 
Demands of Crewmembers
    2. Current Regulatory Weaknesses
    E. Transportation of Certain Hazardous Materials
    F. Current Operations
    1. Freight Train Operations
    2. Passenger Train Service
    3. Tourist Train Operations
    4. Train Operations in Other Countries
    G. Ensuring Safety in the Future
    H. The Proposal is Complementary to, not Duplicative of, Other 
Regulatory Initiatives
    1. Positive Train Control (PTC) Systems
    2. Railroad Safety Risk Reduction Programs
    3. Fatigue Risk Management Programs
    I. Risk Assessments
    J. Expected Impact on the Safety of Rail Operations and FRA's 
Proposed Review Standard
    1. Legacy Train Operations
    2. Proposed New Fewer Than Two Person Train Operations
    3. Automated Operations
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement

 I. Executive Summary

Purpose of the Regulatory Action

    For the past five years, a period in which railroad operations have 
produced consistent safety statistics, railroads (including freight, 
passenger, and tourist operations) have typically utilized crews of at 
least two persons. During this time, railroads have implemented 
positive train control (PTC) and other technologies and are expected to 
implement upgrades to these technologies and otherwise look to 
introduce operational efficiencies. FRA intends this rule to ensure 
that trains are adequately staffed for their intended operation and 
railroads have appropriate safeguards in place for safe train 
operations, whenever using a crew of fewer than two persons. In the 
event a railroad desires to transition a train operation to an 
operation with fewer than two crewmembers, as proposed, this rule would 
require the railroad to consider and address the safety risks of doing 
so by conducting a risk assessment of the proposed operation. Research 
identified the cognitive and collaborative demands placed on 
crewmembers and indicates that an increase in physical tasks and 
cognitive demands for a one-person crewmember could potentially lead to 
task overload or a loss of situational awareness that could cause an 
accident. The proposed risk assessment requirement would follow 
accepted hazard analysis processes and provide for the mitigation of 
identified hazards to acceptable levels.
    Without this proposed rule, FRA has a limited ability to address 
the totality of potential safety issues related to the reduction of 
crew staffing levels. Currently, FRA can exercise its authority in 
discrete instances through the agency's emergency order authority 
(potentially after a serious accident) or in review of a passenger 
operation's emergency preparedness plan under 49 CFR part 239. Also, 
none of the other recent regulatory initiatives FRA has issued or is in 
the process of developing focus on the specific hazards and risks 
associated with reducing the number of train crewmembers to fewer than 
two crewmembers, nor do they require railroads to mitigate any such 
hazards and risks.
    This proposed rule is necessary for FRA to proactively protect 
railroad employees, the public, and the environment. By requiring 
railroads to petition FRA for approval of existing (legacy) or new one-
person crewmember operations, this proposed rule would allow FRA to 
closely examine the safety of legacy operations in accordance with 
established, minimum safety requirements, and prohibit the initiation 
of one-person crewmember operations that would not be consistent with 
railroad safety. FRA proposes to require

[[Page 45565]]

this petition to include consideration of the impact that operating 
with fewer than two crewmembers may have on mitigating the consequences 
of rail accidents and minimizing blocked at-grade highway-rail 
crossings.
    Further, if a railroad petitions FRA to continue or initiate a 
train operation with fewer than two crewmembers, this rulemaking 
proposes a public comment period so that stakeholders, such as the 
railroad's employees, or businesses and communities adjacent to or 
served by the railroad, can provide relevant safety information or 
data.
    This proposed rule is also necessary to prevent the multitude of 
State laws regulating crew size from creating a patchwork of rules 
governing train operations across the country. Despite the fact that 
provisions of the Federal railroad safety statutes mandate that laws, 
regulations, and orders ``related to railroad safety'' be nationally 
uniform, FRA is aware that some States have laws in place regulating 
crew size in a variety of ways. For example, California requires a 
minimum of two crew members for certain trains,\1\ Washington requires 
a minimum of two crew members for certain trains and switching 
assignments,\2\ Nevada requires a minimum of two crew members for 
certain trains or locomotives of certain railroads,\3\ while Arizona 
has a ``full crew'' requirement for certain trains (requiring not only 
an engineer and conductor but crewmembers such as firemen, brakemen, 
and flagmen on certain trains),\4\ and Massachusetts imposes other 
restrictions (providing the Department of Public Utilities can order 
changes to the crew size of any train).\5\ Without this rule, railroads 
could be subjected to a different crew staffing law in every State in 
which they operate. Such a patchwork of State laws would likely result 
in significant cost and operational inefficiencies, and even potential 
safety concerns from a lack of a uniform standard. In this regard, 
there would be no assurance that State laws would be based on an 
analysis or determination concerning such impacts on safety.
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    \1\ Cal. Lab. Code sec. 6903, which requires at least a two-
person crew for operation of a train or light engine used in 
connection with the movement of freight, not including hostler 
service or utility employees.
    \2\ Wash. Rev. Code Ann. sec. 81.40.015, which requires at least 
two crewmembers for all freight and passenger trains and switching 
assignments, not including Class III railroad carriers operating on 
their roads while at a speed of twenty-five miles per hour or less.
    \3\ N.R.S. sec. 705.415, which requires a train or locomotive 
crew of not less than two persons on any Class I freight railroad, 
Class I railroad or Class II railroad for transporting freight with 
the exception of a train or locomotive engaged in helper or hostling 
services.
    \4\ Ariz. Rev. Stat. Ann. sec. 40-881, which requires a 
passenger, mail or express train composed of less than six cars 
train to carry a crew consisting of not less than one engineer, one 
fireman, one conductor and one flagman, with an exception for 
gasoline motor cars; and, for those same types of trains that are 
longer, the crew must add a brakeman, but may drop the flagman when 
such train is operated outside yard limits on branch lines including 
the use of main lines where necessary to reach initial or final 
terminals of branch lines.
    \5\ Mass. Gen. Laws Ann. Ch. 160, sec. 185, which provides 
discretion to its Department of Public Utilities to order changes as 
it deems necessary whenever the department is of opinion, after a 
hearing, that the number of men forming a train crew of any train is 
not sufficient to operate said train for the safety of the public 
and the employees of the railroad.
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Summary of Major Provisions

    FRA is proposing regulations to ensure that trains are 
appropriately staffed for their intended operation and railroads have 
sufficient safeguards in place for safe train operations, whenever 
using a crew of fewer than two persons. With certain exceptions, FRA 
proposes to require that railroads staff every train operation with a 
minimum of two crewmembers (including a locomotive engineer and an 
additional crewmember). The proposed rule prescribes minimum 
requirements for the location of crewmembers on a moving train, 
requirements to ensure any crewmember not operating the train and 
outside of the operating cab of the controlling locomotive can directly 
communicate with the locomotive engineer, and special approval 
procedures for railroads to petition FRA to continue certain legacy 
operations with one-person train crews and to initiate new train 
operations with fewer than two crewmembers.
    The NPRM is based on the premise that the locomotive engineer 
always located in the cab of the controlling locomotive when the train 
is moving unless the controlling locomotive is being operated remotely 
in accordance with 49 CFR 229.15. In most instances, there will only be 
one additional crewmember--usually a conductor. As proposed, however, 
the NPRM would not prohibit a railroad from having more than two 
crewmembers or from having additional or more stringent requirements 
governing the proper location of any crewmembers other than the 
locomotive engineer. Railroads also have the flexibility to adopt their 
own rules or practices based on Federal requirements and instruct their 
employees to comply with such rules or practices.
    Although the NPRM includes several proposed exceptions to the 
minimum two crewmember requirement, the rule would prohibit certain 
train operations from operating with fewer than two crewmembers. 
Specifically, proposed Sec.  218.123(c) prohibits the operation, 
without at least a two-person crew, of trains containing certain 
quantities and types of hazardous materials that have been determined 
to pose the highest risk in transportation from both a safety and 
security perspective (e.g., trains transporting 20 or more car loads or 
intermodal portable tank loads of certain hazardous materials or one or 
more car loads of hazardous materials designated as rail-security 
sensitive materials (RSSM) as defined by the Department of Homeland 
Security). FRA proposes a total of ten exceptions to the minimum two 
crewmember requirement. In Sec.  218.125, FRA proposes two general 
exceptions to the minimum two crewmember requirement. The first 
proposed exception includes trains operating in helper service (i.e., a 
train that is assisting another train that has incurred a mechanical 
failure or lacks the power to traverse difficult terrain) because, as 
explained in greater detail in the section-by-section analysis, 
railroads commonly use one-person crews safely in helper service and 
helper service operations are generally not complex. The second 
proposed exception includes trains consisting of a locomotive or a 
consist of locomotives (excluding diesel or electric multiple units 
(DMUs or EMUs)) not attached to any piece of equipment or attached only 
to a caboose because, as explained in greater detail in the section-by-
section analysis, these types of movements are typically made so that 
the locomotives can be better utilized and such movements pose less 
risk to railroad employees and the general public.
    As applied to passenger and tourist train operations, the NPRM 
(Sec.  218.127) proposes four exceptions to the minimum two crewmember 
requirement. First, FRA proposes to except from the minimum two 
crewmember requirement tourist, scenic, historic, or excursion 
operations that are not part of the general railroad system of 
transportation. Second, FRA proposes to except from the minimum two 
crewmember requirement passenger or tourist operations in which cars, 
empty of passengers, are being moved and passengers do not board the 
train's cars until the crew conducts a safety briefing on the safe 
operation and use of the cars' exterior side doors, consistent with the 
current door safety briefing

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requirement. Of course, there may be reasons to employ a two-person 
train crew if switches need to be thrown or other safety-related tasks 
suggest a second crewmember is warranted, notwithstanding this 
exception for movement of empty cars. The third exception applies to 
certain passenger or tourist operations where the locomotive engineer 
has direct access to the passenger seating compartment. Finally, FRA 
proposes to except certain rapid transit operations from the minimum 
two crewmember requirement.
    As applied to freight operations, FRA is also proposing in Sec.  
218.129 four exceptions to the minimum two crewmember requirement. FRA 
is proposing exceptions for certain unit freight train loading and 
unloading operations, certain small railroad operations, and work train 
and remote-control operations that meet certain requirements. More 
detail on each of these proposed exceptions is found in the relevant 
section-by-section analysis below.
    Proposed Sec.  218.131 would allow legacy, one-person train 
operations to continue after the effective date of a final train crew 
size safety requirements rule until FRA can review the safety of the 
operation. Moreover, this proposed rule provides a mechanism for the 
operation to continue after FRA conducts its review.
    FRA proposes to define a legacy operation as one that a railroad 
established at least two years before the effective date of a final 
rule establishing train crew size safety requirements. The proposed 
rule would prohibit a railroad from continuing a legacy, one-person 
train operation beyond 90 days after the effective date of a final rule 
if the railroad fails to file a special approval petition containing a 
description of the operation. As proposed, a railroad petition to 
continue a legacy, one-person operation must include evidence that the 
railroad has implemented certain rules and practices designed to ensure 
the safety of the one-person operation.
    Proposed Sec.  218.133 would allow a railroad to petition FRA to 
initiate a new train operation staffed with fewer than two crewmembers 
that is not otherwise prohibited or permitted by the other requirements 
of subpart G. In addition to much of the information FRA proposes to 
require to support a petition to continue a legacy operation, a special 
approval petition to initiate a new operation with fewer than two 
persons must contain a risk assessment of the proposed operation that 
follows accepted hazard analysis processes and provides for mitigation 
of identified hazards to acceptable levels. In the context of this 
rulemaking, a risk assessment is the process of determining, either 
quantitatively or qualitatively, the level of risk associated with a 
proposed train operation staffed with fewer than two crewmembers, 
including mitigating the risks to an acceptable level. As discussed in 
more detail in section III.I below, when the likelihood of an event 
whose probability of occurrence is so small, consequence(s) so slight, 
or benefit(s) so great, taking the risk or subjecting others to the 
risk is deemed acceptable. Generally, an acceptable level of risk is 
achieved when it is determined that further risk reduction measures 
will not result in an additional, significant reduction of risk in 
excess of the cost of such measures. For example, there is a risk that 
a locomotive engineer will operate a train past a red signal. A 
resulting hazard is that the train will collide with another train on 
the track past the signal. The probability that this unsafe event will 
occur is based on an analysis of the causal factors that could lead the 
engineer to operate the train past the red signal. The likelihood of an 
accident resulting is analyzed based on the probability that another 
train is occupying the track past the signal. Mitigation measures 
(e.g., a train control system or certain operating rules) may not be 
able to completely eliminate the risk of the hazard, but the risk of 
the hazard (i.e., a collision) occurring may be reduced to a level 
where additional mitigations would not be effective and the likelihood 
of the unsafe event occurring would be so small, further mitigations 
would not be warranted.
    The minimum process and content requirements for a railroad's risk 
assessment are proposed in Sec.  218.135. Section 218.135 would also 
allow a railroad to use alternative methodologies or procedures, or 
both, to conduct a risk assessment if the Associate Administrator finds 
they will provide an accurate assessment of the risk associated with 
the proposed operation.
    In proposed Sec.  218.137 a railroad would be able to petition FRA 
for special approval for both one-person, legacy train operations and 
the initiation of a new operation with fewer than two train 
crewmembers. FRA estimates the time burden for a railroad to prepare a 
petition will be 40 hours per petition for legacy train operations and 
48 hours per petition for new operations. The proposed special approval 
procedure is expected to take 120 days once a railroad submits a 
petition for special approval. For example, the proposed special 
approval procedure would require that FRA publish a notice in the 
Federal Register soliciting public comment on each petition. All 
documents would be filed in a public docket and internet accessible. 
The proposed special approval procedure envisions that FRA may reopen 
consideration of the petition for cause stated. FRA proposes that when 
it decides a petition, or reopens consideration of a petition, it will 
send written notice of the decision to the petitioner and the decision 
will be published in the docket. Further, FRA proposes that a railroad 
making a material modification to an operation previously approved by 
FRA must file a description of the modification, and either a new or 
updated risk assessment, at least 60 days before proposing to implement 
any such modification. The proposed requirement to seek special 
approval is not expected to delay action on any operation because each 
railroad would need an equivalent timeframe to plan for the process of 
reducing crew size in advance of implementation.
    Finally, FRA proposes an annual requirement for railroads that 
receive special approval to continue a legacy operation or initiate a 
new operation with fewer than two train crewmembers to conduct a formal 
review and analysis of those operations. FRA proposes an annual 
requirement to ensure that each railroad is regularly reviewing the 
safety of its operation and the accuracy of its risk assessment, and to 
provide FRA with enough data to identify any safety trends in the 
approved operations. Further, an annual requirement aligns with the 
general administration of FRA's safety program as well as FRA's 
statutory requirements.\6\
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    \6\ See e.g., 49 U.S.C. 103(j) and (k) (requiring the FRA 
Administrator to develop long-range national rail plans, and 
performance goals and reports for those plans that are typically 
updated annually).
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Costs and Benefits

    FRA analyzed the economic impact of this proposed rule. FRA 
estimated the costs associated with special approvals, risk 
assessments, annual railroad responsibilities after receipt of special 
approval, and Government administration.
    The primary benefit of this rule is to ensure any railroad, seeking 
to operate a train with fewer than two crewmembers identifies, 
evaluates, and addresses, in a comprehensive and standardized manner, 
safety concerns that may arise from such operation. A second crewmember 
performs important safety functions that could be lost when reducing 
crew size below two.

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    FRA proposes that railroads seeking to operate trains with fewer 
than two crewmembers will be required to submit a petition to FRA to 
approve such an operation. The proposed petition process would require 
the submission of information demonstrating that the operation will be 
operated consistent with railroad safety. Additionally, the proposed 
safety requirements in this NPRM would allow the rail industry to 
maintain its strong safety record without proposing any restrictions 
that would directly impact its competitiveness compared with other 
modes of transportation.
    This rule thus further ensures railroads operate in a safe manner 
by requiring them to properly assess and mitigate risks associated with 
fewer crewmembers, before initiation of such an operation, which they 
currently are not required to do. FRA seeks comment from all 
stakeholders, including any States with laws on train crew size.
    FRA estimates the 10-year costs of the proposed rule to be $2.0 
million, discounted at 7 percent. The annualized costs would be $0.3 
million discounted at 7 percent. The following table shows the total 
costs of this proposed rule, over the 10-year analysis period. FRA 
qualitatively discusses the benefits but does not have sufficient data 
to monetize those benefits.
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    \7\ Numbers in this table and subsequent tables may not sum due 
to rounding. As discussed further in section VI.I. of the Regulatory 
Impact Analysis (RIA), quantified costs do not include costs that 
could be incurred in order to mitigate risks associated with a 
reduction in the number of crewmembers.

                                         Total 10-Year Discounted Costs
                                               [2020 Dollars] \7\
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                                                                                    Annualized      Annualized
                    Category                      Total cost,  7  Total cost,  3     cost,  7        cost,  3
                                                    percent ($)     percent ($)     percent ($)     percent ($)
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Special Approval (Legacy Operations)............          41,486          41,486           5,907           4,863
Special Approval (New Operations)...............         318,665         400,442          45,371          46,944
Risk Assessment (Initial and Revisions).........         555,124         696,616          79,037          81,665
Risk Assessment--Material Modifications.........         159,353         197,690          22,688          23,175
Railroad Annual Oversight Responsibilities......         127,374         161,450          18,135          18,927
Government Administrative Cost..................         806,837       1,006,977         114,875         118,048
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    Total costs.................................       2,008,840       2,504,662         286,014         293,623
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II. Legal Authority

    FRA is proposing regulations concerning train crew size safety 
requirements 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.'' \8\ 
The Secretary delegated this authority to the Federal Railroad 
Administrator.\9\
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    \8\ 49 U.S.C. 20103.
    \9\ 49 CFR 1.89(a).
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III. Background

A. A Brief History of Train Crew Staffing

1. General History
    Historically, technology has enabled a gradual reduction in the 
number of train crewmembers from about five in the 1960s to about two 
by the end of the 1990s. Four major technological breakthroughs led to 
train crew staffing reductions. First, the phase-out of steam 
locomotives allowed locomotives to be operated without the crewmember 
known as the fireman, dedicated to keeping the engine fed with coal. 
Second, 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, allowing the conductor to move from the caboose to the 
lead locomotive and leading to the eventual removal of a crewmember 
known as a brakeman. Third, 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. Fourth, the development of improved 
train control devices, such as Cab Signal System, Automatic Train Stop, 
and Automatic Train Control, helped automate safer operations in case 
of human error. Further, over the last 25 years, remotely controlled 
locomotive operations utilizing only a one-person crew for switching 
service have become commonplace.
    By statute, the Secretary of DOT is required to ``prescribe 
regulations and issue orders to establish a program requiring the 
licensing or certification . . . of any operator of a locomotive.'' 
\10\ A person \11\ who operates a locomotive or train is a locomotive 
engineer. FRA fulfilled that statutory requirement in 1991 by issuing a 
regulation requiring each railroad to file a locomotive engineer 
certification program with FRA.\12\ Each railroad's program must 
specify how the railroad plans to make the determinations necessary to 
certify each of its locomotive engineers, as well as ensure that the 
certified locomotive engineers of other railroads are qualified to 
safely operate on the controlling railroad's track.\13\ A locomotive 
engineer's main task is to operate the train safely. Other important 
tasks central to operation include: ensuring that the locomotive 
mechanical requirements are met; coordinating with the conductor about 
operational details; and, under the conductor's supervision, 
interpreting train orders, signals, and operating rules.
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    \10\ 49 U.S.C. 20135.
    \11\ Although current FRA regulations do not explicitly require 
the presence of a human operator, FRA's regulations were developed 
and drafted based on a general assumption that a train would be 
operated by a person albeit with assistance from technology. 
Automated operations are discussed later in this NPRM.
    \12\ 56 FR 28254 (June 19, 1991), 49 CFR part 240.
    \13\ 49 CFR part 240, subpart B--Component Elements of the 
Certification Process, and Sec.  240.229 (requiring certain action 
on the part of a railroad controlling the conduct of joint 
operations with another railroad). Additional guidance was provided 
in an interpretation published August 29, 2008. 73 FR 50883.
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    FRA also has conductor certification requirements \14\ that were 
statutorily mandated.\15\ FRA defines a conductor as the crewmember in 
charge of a train or yard crew,\16\ and the conductor's job requires 
supervising train operations so they are safe and efficient. The

[[Page 45568]]

conductor's responsibilities include: managing the train consist; 
coordinating with the locomotive engineer for safe and efficient en 
route operation; interacting with dispatchers, roadway workers, and 
others outside the cab; and dealing with exceptional situations (e.g., 
mechanical problems).\17\ In addition, as locomotive and train 
technologies have become more complex in recent years, a conductor (or 
second crewmember) can assist a locomotive engineer by responding to 
technology prompts or conveying information displayed that will allow 
the engineer to focus on the train's controls and movement. The purpose 
of the conductor certification regulation is to ensure that only those 
persons meeting minimum Federal safety standards serve as conductors. 
When FRA published the conductor certification final rule, the agency 
made clear that the rule should not be read as FRA's endorsement of any 
particular crew consist arrangement.\18\ For a one-person train crew, 
FRA requires that the crewmember be certified as both a locomotive 
engineer and a conductor.\19\
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    \14\ 49 CFR part 242, ``Qualification and Certification of 
Conductors.''
    \15\ 49 U.S.C. 20163, ``Certification of train conductors.''
    \16\ 49 CFR 242.7 (defining ``conductor'').
    \17\ Rosenhand, Hadar, Emilie Roth, and Jordan Multer, Cognitive 
and Collaborative Demands of Freight Conductor Activities: Results 
and Implications of a Cognitive Task Analysis, FRA (July 2012).
    \18\ 76 FR 69802, 69825 (Nov. 9, 2011).
    \19\ 49 CFR 240.308(c) and 242.213(d).
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2. Indiana Rail Road's One-Person Train Crew Operation
    Indiana Rail Road (INRD), a Class II, 250-mile regional railroad 
that operates in southern Indiana and Illinois, was a trailblazer in 
initiating one-person crew operations in the United States. During a 
July 15, 2016, FRA public hearing on FRA's 2016 train crew staffing 
NPRM, an INRD manager testified about how INRD established its one-
person operation.\20\ For instance, INRD officials observed operations 
overseas before implementing one-person operations on INRD.\21\
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    \20\ A transcript of the public hearing is available in the 
docket to the 2016 NPRM at https://www.regulations.gov/document?D=FRA-2014-0033-1559 (``Hearing Transcript''). Bob Babcock, 
INRD Senior Vice President of Operations and Business Development, 
testified beginning on page 77 of the Hearing Transcript.
    \21\ Hearing Transcript at 80.
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    Without mentioning whether INRD conducted a risk assessment or 
similar safety analysis, INRD imposed on itself more stringent 
requirements than what are Federally required. INRD determined that all 
employees would be considered train operators, dual-certified as both 
locomotive engineers and conductors, and represented by the Brotherhood 
of Locomotive Engineers and Trainmen (BLET).\22\ INRD's manager 
testified that: these one-person train operators are not working 12 
hours on duty as permitted by the hours of service laws, but instead 
are on duty 9 to 10 hours; three-quarters of these train operators are 
also working assigned jobs, meaning they have set, five-day work 
schedules; and, the majority of these train operators are operating 
unit trains, which are entire trains hauling a single commodity, which 
for INRD generally means entire trains hauling ``grain, coal, rock, 
coke, things like that.'' \23\ Although FRA has found that the 
limitations INRD has imposed on its one-person operations have helped 
establish its positive safety record,\24\ there are no Federal 
requirements prohibiting INRD from changing its self-imposed standards 
for the safety of one-person operations.
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    \22\ Hearing Transcript at 80-81.
    \23\ Hearing Transcript at 81.
    \24\ In the 2016 NPRM, FRA explained that it would expect to 
approve the continuation of a freight operation if it met certain 
characteristics that were directly taken from a document INRD 
submitted to the Office of Information and Regulatory Affairs (OIRA) 
during the Executive Order 12866 review in which INRD explained the 
characteristics of its operation. See 81 FR 13951 and https://www.reginfo.gov/public/do/viewEO12866Meeting?viewRule=true&rin=2130-AC48&meetingId=834&acronym=2130-DOT/FRA (handout). Those 
characteristics are: 70 percent or more of the railroad's carload 
traffic is non-hazardous materials; the railroad has adopted crew 
staffing rules and practices to ensure compliance with all Federal 
rail safety laws, regulations, and orders; the maximum authorized 
track speed for the operation is 40 mph; the one-person train 
crewmembers have set daytime schedules with little fluctuation; the 
one-person train crewmembers average on-duty time is less than 9.5 
hours per shift; the operation is structured so that the one-person 
crewmember would not have to leave the locomotive cab except in case 
of emergency; 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; 
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; 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; 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 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.
---------------------------------------------------------------------------

    INRD's manager also explained how he invited FRA to visit and 
discuss INRD's one-person operations with INRD's operating rules 
personnel thereby soliciting FRA's feedback on what was ``missing or . 
. . should [be] change[d].'' \25\ INRD's manager stated the ``[m]ain 
reason [INRD] did that [was] there [are] obviously things that [INRD] 
probably missed or [INRD] hadn't thought of because there's a lot going 
on'' and FRA could be helpful because it ``deal[s] with a lot of 
railroads, a lot of other situations.'' \26\ FRA's feedback led INRD to 
adopt or enhance procedures that protect the one-person crew in an 
emergency, establish more frequent communications between the one-
person crew and the dispatcher, and implement standard procedures for 
protecting grade crossings, releasing automatic interlockings, and 
addressing other circumstances typically handled by a conductor.
---------------------------------------------------------------------------

    \25\ Hearing Transcript at 109.
    \26\ Hearing Transcript at 110.
---------------------------------------------------------------------------

    In the INRD manager's remarks at the 2016 public hearing, he stated 
that the number of one-person crew starts on INRD has lessened in the 
last couple of years because ``the nature of [INRD's] business has 
changed from percentage of unit trains, which lend themselves to the 
one-man crews . . . [to] more route switcher local work.'' \27\ FRA 
understands this statement to mean that INRD reduced the number of one-
person crew starts because route switcher local work involves frequent 
switching, which may pose increased safety hazards if the one 
crewmember has to repeatedly mount and dismount the locomotive, throw 
switches, and couple and uncouple cars. However, when the nature of 
INRD's business changed, the railroad was not required to reduce the 
number of one-person crew starts, nor conduct any risk assessment or 
safety analysis, to ensure it maintained its positive safety record.
---------------------------------------------------------------------------

    \27\ Hearing Transcript at 81; see also id. at 125.
---------------------------------------------------------------------------

B. Summary of Prior Crew Staffing Rulemaking and Court Order

    On March 15, 2016, FRA issued an NPRM proposing regulations 
concerning train crew staffing.\28\ The 2016 NPRM arose out of two rail 
accidents in 2013. One accident was illustrative of how a second train 
crewmember might have prevented grave harm (Lac-M[eacute]gantic, 
Quebec) and the other showed how multiple train crewmembers can help 
prevent harm post-accident, as well as how an expert crewmember team 
can support each other during life-threatening conditions (Casselton, 
North Dakota).\29\
---------------------------------------------------------------------------

    \28\ 81 FR 13918. The 2016 NPRM, and all comments submitted in 
response to that NPRM, is available for review in Docket Number FRA-
2014-0033 on www.regulations.gov.
    \29\ The accidents, which are described in this summary, are 
more extensively described in the 2016 NPRM. See 81 FR 13921-13924 
(Mar. 15, 2016).
---------------------------------------------------------------------------

    On July 5-6, 2013, a catastrophic accident occurred in Lac-
M[eacute]gantic, Quebec, Canada involving a one-person

[[Page 45569]]

crew that failed to properly secure a train before leaving it 
unattended on mainline track where it 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.\30\ 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. In the aftermath of the 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; however, the railroad involved in the accident 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.\31\ 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. TSB of Canada's report also highlighted how ``risk 
assessments are particularly crucial when a company makes a change to 
its operations, since this is when new risks may emerge'' and that the 
railroad's risk assessment in this instance ``did not thoroughly 
identify and manage the risks to ensure safe operations.'' \32\
---------------------------------------------------------------------------

    \30\ 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.
    \31\ Letter from Joseph C. Szabo, FRA Administrator, to Mr. 
Edward Burkhardt, CEO of MMA (Aug. 21, 2013), placed in the docket.
    \32\ TSB of Canada Railway Investigation R13D0054 at 123.
---------------------------------------------------------------------------

    FRA's initial response to the Lac-M[eacute]gantic accident was to 
issue Emergency Order 28 on August 2, 2013, which contained the 
preliminarily known details of the events that led to the accident and 
ordered each railroad to institute and carry out specific measures with 
respect to securement of unattended vehicles and trains transporting 
certain types of hazardous material on mainline track and mainline 
sidings outside of a yard or terminal.\33\ On August 29, 2013, FRA 
followed the issuance of the emergency order by hosting an emergency 
meeting of its Federal Advisory Committee known as the Railroad Safety 
Advisory Committee (RSAC).\34\ At the time of the meeting, RSAC was 
composed of 54 voting representatives from 32 member organizations, 
representing various rail industry perspectives.\35\ RSAC was 
established to provide advice and recommendations to FRA on railroad 
safety matters and, in the announcement for the meeting, FRA requested 
``that both freight and passenger railroads be prepared to discuss 
Transport Canada's directive requiring that two-person crews operate 
trains carrying hazardous materials on main track.'' \36\ 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.'' \37\ In the 2016 NPRM, FRA summarized discussions of 
RSAC's Working Group and explained that, although no consensus was 
reached on any recommendations,\38\ the 2016 proposed rule largely 
reflected concerns FRA identified during the Working Group 
meetings.\39\
---------------------------------------------------------------------------

    \33\ 78 FR 48218 (Aug. 7, 2013) (noting the emergency order was 
issued five days before it was published).
    \34\ 78 FR 48931 (Aug. 12, 2013) (announcing the RSAC emergency 
meeting).
    \35\ Id. and see also 81 FR 13935-36 (providing an overview of 
RSAC).
    \36\ 78 FR 48931.
    \37\ 81 FR 13936.
    \38\ 81 FR 13936-39.
    \39\ 81 FR 13941-42.
---------------------------------------------------------------------------

    Before the RSAC Working Group concluded its meetings on March 31, 
2014,\40\ ana accident occurred at Casselton, North Dakota on December 
30, 2013, that FRA considered illustrative of how having multiple train 
crewmembers can improve safety for the general public and the 
crewmembers themselves.\41\ In this incident, a ``grain train'' 
derailed on an adjacent track about two minutes before a ``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 it. The collision derailed the key train's two 
leading locomotives, as well as the first 21 trailing cars behind the 
locomotives, causing a release of an estimated 474,936 gallons of crude 
oil 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. Meanwhile, the 
train crewmembers on both trains performed admirably.
---------------------------------------------------------------------------

    \40\ 81 FR 13938.
    \41\ FRA's Accident Investigation Report HQ-2013-31, regarding 
the Casselton, ND accident on December 30, 2013 is available online 
at https://railroads.dot.gov/elibrary/hq-2013-31-finalized#p1_z50_gD_lAC_y2013.
---------------------------------------------------------------------------

    During the 2013 Casselton incident, the grain train's locomotive 
engineer and conductor crewmembers potentially prevented the 
environmental and property damages from being much worse, in addition 
to potentially shortening the evacuation period, by calling a 
trainmaster for permission and coordinating with emergency responders 
to twice cut undamaged tank cars away from the burning derailed 
cars.\42\ Although an exact timeline was not established in 
investigation reports, the National Transportation Safety Board (NTSB) 
describes the grain train crew's first mitigating actions as occurring 
contemporaneously with the crew's movement and arrival at a nearby 
highway-rail grade crossing at which they were met by the assistant 
fire chief of the Casselton Fire Department who made the request for 
them to assist emergency responders.\43\ The second set of mitigating 
actions is described as occurring 30 to 45 minutes after the

[[Page 45570]]

grain train crew completed moving the first set of cars away from the 
fire.\44\ The grain train's two certified crewmembers were thus 
responsible for moving approximately 70 loaded crude oil cars in the 
key train out of harm's way.
---------------------------------------------------------------------------

    \42\ The grain train was operated by a three-person crew when it 
derailed. The three-person crew included a locomotive engineer, a 
conductor, and a student locomotive engineer (i.e., a conductor 
training to be a locomotive engineer). In addition, a supervisor 
(Road Foreman of Engines) was on board the train to test the 
student. The supervisor was not on the train when the crew took 
mitigating actions requested by local emergency first responders, as 
the three-person crew and the supervisor got off the train and 
walked to meet a railroad employee in a motor vehicle who had been 
waiting to pick up the supervisor. It was while the crew was with 
the supervisor that local emergency responders requested the crew's 
assistance, but the crew had to call a trainmaster to receive 
permission to comply with the request. FRA attributes the mitigating 
actions to the two certified crewmembers, as any operation of the 
locomotive or train by the student was under the supervision of the 
certified locomotive engineer. Id.
    \43\ NTSB Railroad Accident Brief (RAB) 1701 at 5 (available in 
the docket as ``Casselton NTSB RAB1701.pdf'').
    \44\ Id.
---------------------------------------------------------------------------

    In the meantime, the alert key train crewmembers during the 
Casselton incident were able to survive the impact of the collision, 
escape their locomotive, which was on fire and had a jammed front door, 
and alert the dispatcher to the collision, largely based on a series of 
team related actions. Without teamwork, there were factors indicating a 
one-person crew might not have survived. For instance, the conductor 
admitted that he had never been in a situation where a collision was 
imminent, did not know what to do, and therefore might not have gotten 
down on the floor and braced himself, as the locomotive engineer 
instructed.\45\ Also, a one-person crew might not have been in a 
position to see out the window and notice the train was on fire, as the 
conductor did in this case and warn the engineer of the fire danger. 
Upon exiting the locomotive, the crew found themselves in knee-deep 
snow and it was only about a minute later that the locomotive was 
engulfed in flames.\46\ Thus, if a one-person crew were slower than the 
key train's two-person crew to evaluate the dangers, take action to 
protect him- or herself during the imminent collision, and subsequently 
evacuate the locomotive, that one-person might not have been able to 
survive the accident.
---------------------------------------------------------------------------

    \45\ 81 FR 13924.
    \46\ Id.
---------------------------------------------------------------------------

    Similar to the proposals in this NPRM, the 2016 NPRM generally 
proposed to require a minimum of two crewmembers for all railroad 
operations except operations determined to not pose significant safety 
risk to railroad employees, the general public, and the environment. 
Also similar to this proposed rule, the 2016 NPRM proposed special 
approval processes to allow an existing, less than two crewmember 
operation to continue and to allow the initiation of a new, less than 
two crewmember operation. The approval processes proposed in the 2016 
NPRM, however, contemplated that a requesting railroad would provide a 
description of the existing or proposed operation(s), along with 
``appropriate data or analysis, or both'' or a ``safety analysis . . . 
including any information regarding the safety history of the 
operation'' to enable FRA to determine whether the proposed operation 
would provide ``at least an appropriate level of safety.'' \47\
---------------------------------------------------------------------------

    \47\ 81 FR 13965-66.
---------------------------------------------------------------------------

    On May 29, 2019, FRA withdrew the 2016 NPRM.\48\ In the 2019 
notification of withdrawal (2019 Withdrawal), FRA provided a general 
summary of the nearly 1,600 comments on the 2016 NPRM from industry 
stakeholders and individuals, including current, former, and retired 
crewmembers, the NTSB, two members of Congress, and numerous State and 
local government officials.
---------------------------------------------------------------------------

    \48\ 84 FR 24735.
---------------------------------------------------------------------------

    Although 1,545 of the comments supported the regulation of crew 
staffing, FRA explained that it was withdrawing the 2016 NPRM for 
several reasons. For instance, FRA concluded in the 2019 Withdrawal 
that the connections between train crew staffing and railroad safety 
with respect to the Lac-M[eacute]gantic and Casselton accidents are 
tangential at best and do not provide a sufficient basis for FRA 
regulation of train crew staffing requirements.\49\ FRA also explained 
that FRA's accident/incident safety data \50\ did not establish that 
one-person operations are less safe than multi-person train crews.\51\ 
Similarly, FRA concluded that the comments did 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.\52\ 
In addition, FRA found that implementation of a train crew staffing 
rule would establish a potential barrier to automation or other 
technology improvements.\53\ In issuing the 2019 Withdrawal, FRA noted 
its view that consideration and rejection of a Federal crew staffing 
requirement preempted all State laws attempting to regulate train crew 
staffing in any manner.\54\
---------------------------------------------------------------------------

    \49\ 84 FR 24738.
    \50\ 49 CFR part 225, Railroad Accidents/Incidents: Reports 
Classification, and Investigations.
    \51\ 84 FR 24739.
    \52\ 84 FR 24740.
    \53\ Id.
    \54\ 84 FR 24741.
---------------------------------------------------------------------------

    Four separate lawsuits were filed challenging the 2019 Withdrawal, 
which were consolidated in the U.S. Court of Appeals for the Ninth 
Circuit (Ninth Circuit). Petitioners included the Transportation 
Division of the International Association of Sheet Metal, Air, Rail and 
Transportation Workers and the Brotherhood of Locomotive Engineers and 
Trainmen filing jointly, and three States (California, Washington, and 
Nevada) filing separately. On February 23, 2021, the Court vacated 
FRA's withdrawal and preemption determination, and remanded the 
rulemaking to FRA.\55\
---------------------------------------------------------------------------

    \55\ Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & 
Transp. Workers v. FRA, 988 F.3d 1170, 1184-85 (9th Cir. 2021).
---------------------------------------------------------------------------

    The proposals in this NPRM are similar to many aspects of the 2016 
NPRM, but this proposed rule's risk assessment and annual oversight 
requirements are intended to enable FRA to play a more active role in 
ensuring that railroads appropriately consider any relevant safety 
risks that may arise from train operations using less than two person 
crews. The risk assessment requirement of this proposed rule is also 
designed to ensure that, to the extent practicable, railroads follow a 
uniform standard in evaluating the risks of the proposed operations.
    In this NPRM, FRA occasionally cites to the 2016 NPRM and 2019 
Withdrawal; however, those citations are for reference purposes. This 
rulemaking is not a continuation of the prior rulemaking and instead 
stands on its own as a new proposed rule.

C. Preemption

    Of particular concern to FRA is the patchwork of State laws 
regulating crew size in some manner and the impact of those various 
State requirements on safe rail operations.\56\ In the 2019 Withdrawal, 
FRA explained that 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.\57\ 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.'' \58\ 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.'' \59\ 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.'' \60\ 
Federal and State actions cover the same

[[Page 45571]]

subject matter when they address the same railroad safety concerns.\61\
---------------------------------------------------------------------------

    \56\ 84 FR 24741(describing how FRA believes nine States have 
laws in place regulating crew size in some manner and laws 
regulating crew size have been proposed in 30 States since 2015).
    \57\ 49 U.S.C. 20106(a)(1).
    \58\ 49 U.S.C. 20106(a)(2). 49 U.S.C. 20106(a)(2).
    \59\ CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664-
65 (1993).
    \60\ Easterwood, 507 U.S. at 674.
    \61\ Burlington Northern R.R. v. Montana, 880 F.2d 1104, 1105 
(9th Cir. 1989).
---------------------------------------------------------------------------

    FRSA's preemption provision includes a ``narrow exception'' \62\ to 
FRA's broad authority to preempt State laws. This narrow exception 
allows non-Federal regulation of ``essentially local'' safety 
hazards.\63\ An ``essentially local safety hazard'' is ``one which is 
not adequately encompassed within national uniform standards.'' \64\ 
Meanwhile, the State laws at issue do not address an ``essentially 
local'' hazard because they would apply statewide.\65\ Thus, 
legislative history and subsequent judicial decisions indicate the 
narrow exception is intended to allow States to respond to local 
situations not capable of being adequately addressed in uniform 
national standards, but local safety hazards cannot be Statewide.\66\
---------------------------------------------------------------------------

    \62\ Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 
794, 796 (8th Cir. 2008).
    \63\ 49 U.S.C. 20106(a)(2).
    \64\ Union Pacific R. Co. v. California Pub. Utils. Comm'n, 346 
F.3d 851, 860 (9th Cir. 2003).
    \65\ 49 U.S.C. 20106(a)(2); H.R. Rep. No. 91-1194 (1970), 
reprinted in 1970 U.S.C.C.A.N. 4104, 4117 (``these local hazards 
would not be statewide in character''); see also Norfolk & Western 
Ry. Co. v. Public Utilities Comm'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, 14-15 (3d Cir. 1976) (both holding that the 
local hazard exception cannot be applied to uphold the application 
of a statewide rule).
    \66\ H.R. Rep. No. 91-1194 (1970), reprinted in 1970 
U.S.C.C.A.N. 4104, 4117.
---------------------------------------------------------------------------

    For these reasons, if FRA issues a final rule establishing minimum 
safety requirements for the size of train crews, it would cover the 
same subject matter as the State laws regulating crew size, and 
therefore FRA expects a final rule will have preemptive effect on those 
State laws that are Statewide in character and do not address narrow, 
local safety hazards. In the alternative, to address FRA's concern 
regarding the patchwork of State laws on crew size, FRA could 
articulate FRA's preemption of crew size requirements through a 
rulemaking without establishing minimum crew size requirements. FRA did 
not propose this alternative as it would not address the various safety 
concerns raised in this rulemaking. Further, FRA recognizes that if the 
issue of crew size safety is left to be governed by a patchwork of 
State laws, logistically it may become impossible for a railroad to 
even consider operations with fewer than two crewmembers. Thus, this 
rulemaking is intended to ensure railroads have the flexibility to 
consider changes in crew size for individual operations based on an 
objective analysis of the safety and risks of the operation. FRA would 
appreciate comments on this issue.

D. Reconsideration of the Safety Issues

    The Ninth Circuit's decision to vacate and remand the 2019 
Withdrawal left FRA with the decision of whether to leave the issue of 
crew size safety to the status quo, initiate a rulemaking solely to 
have preemptive effect on the patchwork of State laws regulating crew 
size, or initiate a new rulemaking to address both safety issues and 
the preemption issue. In addition to the concern that a patchwork of 
State laws regulating crew size in some manner may impact safe rail 
operations due to the potential for crew consist size changes as trains 
cross State lines and any associated risks, FRA found several other 
safety issues to reconsider. For instance, upon reflection, FRA over-
relied on the absence of single-person crew safety data to support its 
2019 Withdrawal, because there have been too few current one-person 
train crew operations to create any meaningful data. The lack of safety 
data reflects the paucity of data; it does not support any conclusions 
about the safety of single-person crews.\67\
---------------------------------------------------------------------------

    \67\ See Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, 
Rail & Transp. Workers v. FRA, 988 F.3d 1170, 1182 (9th Cir. 2021) 
(``Critically, this lack of data does not support the promulgation 
of a one-person train crew rule and the preemption of state safety 
laws.'').
---------------------------------------------------------------------------

    FRA's 2019 Withdrawal also downplayed other safety concerns, such 
as the views expressed in approximately 1,545 comments of the nearly 
1,600 received that supported the 2016 NPRM and the lessons learned 
from the Lac-M[eacute]gantic and Casselton accidents. As discussed 
above, the 2019 Withdrawal focused on the causes of the Lac-
M[eacute]gantic and Casselton accidents and found the connections 
between crew staffing and railroad safety ``tangential at best'' and 
that ``the same type of positive post-accident mitigating actions'' by 
the multi-person crews achievable with ``a well-planned, post-accident 
protocol that quickly brings railroad employees to the scene of an 
accident.'' \68\ However, there is no Federal requirement for such a 
well-planned, post-accident protocol in such instances and thus there 
are no assurances that a railroad with a one-person train operation 
will initiate a safety protocol that could substitute for how multiple 
crewmembers, working as a team, could help prevent harm (Lac-
M[eacute]gantic) and support each other during life-threatening 
conditions while helping to mitigate post-accident harm (Casselton).
---------------------------------------------------------------------------

    \68\ 84 FR 24738.
---------------------------------------------------------------------------

    Another issue FRA is reconsidering is the 2019 Withdrawal's 
reference to DOT's focus on removing unnecessary barriers to automation 
by ``issuing voluntary guidance, rather than regulations that could 
stifle innovation.'' \69\ In revisiting the conclusion in the 2019 
Withdrawal that an FRA ``train crew staffing rule would unnecessarily 
impede the future of rail innovation and automation,'' FRA finds that a 
train crew staffing rule would not necessarily halt rail innovation or 
automation. Notwithstanding the statements made in the 2019 Withdrawal, 
as detailed below, FRA has reexamined and reevaluated the safety issues 
associated with train operations involving fewer than two person crews, 
and based on this reevaluation, FRA has concluded that a rule 
addressing crew size could effectively serve as a tool to ensure new 
technologies involving automation and other rail innovations are 
thoroughly reviewed and shown to be consistent with railroad safety 
before they are implemented. DOT's current policy priorities include, 
but are not limited to, ensuring that ``[i]nnovations should reduce 
deaths and serious injuries on our Nation's transportation network, 
while committing to the highest standards of safety across 
technologies.'' \70\ Under these policy priorities, FRA finds that a 
train crew size safety rule, as proposed in this NPRM, could better 
ensure that railroads implementing innovative technologies and 
automation: (1) achieve increased rail safety, or (2) at a minimum, do 
not introduce additional risk into railroad operations. In other words, 
safety continues to be DOT's top priority, and, rather than issue 
voluntary guidance, this NPRM would require regulated entities to 
analyze and demonstrate how innovations are consistent with safety, and 
receive FRA's approval, before implementing the technologies.
---------------------------------------------------------------------------

    \69\ 84 FR 24740.
    \70\ U.S. DOT Innovation Principles. https://www.transportation.gov/priorities/innovation/us-dot-innovation-principles.
---------------------------------------------------------------------------

    Further, the 2019 Withdrawal did not consider how technological 
trends and operational changes, especially on Class I freight railroads 
since 2016, have impacted safety or may impact safety in the future. 
The growth in the number of trains with more than 150 rail cars is a 
business practice that FRA has observed over the past several 
years,\71\ and this

[[Page 45572]]

change, along with other operational changes, may have cascading safety 
impacts unless mitigated by technology, training, or other processes. 
Through this proposed rulemaking, FRA is seeking to formalize the 
agency's role in reviewing and ensuring railroads complete thorough 
risk assessments before using fewer than two persons to crew any train.
---------------------------------------------------------------------------

    \71\ U.S. Government Accountability Office (GAO), Report to 
Congressional Requesters ``Rail Safety: Freight Trains Are Getting 
Longer, and Additional Information is Needed to Assess Their Impact: 
at 11 (May 2019)(GAO-19-443). https://www.gao.gov/assets/gao-19-443.pdf. (corroborating FRA's finding that freight train-length has 
increased in recent years, even though there is limited data 
available).
---------------------------------------------------------------------------

    The sections below discuss safety issues and impacts that may arise 
from train operations with fewer than two train crewmembers. FRA 
requests comments and data on the identified issues and other safety 
concerns that may stem from train operations with fewer than two 
crewmembers.
1. Revisiting Research on the Cognitive and Collaborative Demands of 
Crewmembers
    The 2016 NPRM described, and the docket for this rulemaking 
contains, five FRA-sponsored research reports, and one Transportation 
Research Board conference report, that contain presentations from 
multiple research reports, identifying many safety considerations with 
reducing train crew staffing to fewer than two persons.\72\ In the 2019 
Withdrawal, FRA stated that ``[w]hile 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.'' \73\ Also, as previously 
discussed, the Ninth Circuit vacated the 2019 Withdrawal, in part 
because it found that FRA's conclusions ``fail[ed] to address the 
multiple safety concerns raised by commenters and the research.'' \74\ 
In consideration of FRA's current policy priorities, FRA finds that the 
2019 Withdrawal overweighted a lack of safety data and de-emphasized 
safety concerns raised by the research. Thus, FRA revisits the research 
in this background to explain how the safety concerns the research 
raises helped in the development of the proposed requirements for this 
rulemaking.
---------------------------------------------------------------------------

    \72\ 81 FR 13924-30.
    \73\ 84 FR 24740.
    \74\ Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & 
Transp. Workers v. FRA, 988 F.3d at 1183 (9th Cir. 2021).
---------------------------------------------------------------------------

    The research identified a multitude of cognitive and collaborative 
demands placed on passenger train conductors,\75\ freight train 
conductors,\76\ and locomotive engineers.\77\ For example, the research 
identified five categories of cognitive job duties for freight 
conductors that included managing the train consist and train makeup; 
coordinating with the engineer for safe and efficient en route 
operations; communicating with non-crewmembers, such as dispatchers, 
customers, and roadway workers; diagnosing and responding to train 
problems and other exceptional situations; and, managing the train 
crew's paperwork.\78\ This research on the cognitive job duties for 
freight conductors concluded that although the freight conductor has a 
distinct set of formal responsibilities, the conductor and locomotive 
engineer operate as an integrated team, contributing knowledge and 
backing each other up as necessary.\79\ If a conductor is handling all 
radio communication duties and taking care of paperwork when the train 
is in motion, the safety benefit is that the engineer can concentrate 
on operating the train.\80\ Other research identified why railroad 
workers are at risk of fatigue and raised the issue of whether a 
railroad implementing a one-person train crew operation adopted 
strategies for reducing railroad worker fatigue.\81\ Such strategies 
include improving the predictability of schedules, considering the time 
of day permitted for one-person train crews to operate, educating 
workers about fatigue and sleep disorders, and implementing redundancy 
backstops in case the crewmember falls asleep while performing safety-
sensitive tasks.
---------------------------------------------------------------------------

    \75\ Rail Industry Job Analysis: Passenger Conductor, Final 
Report, dated February 2013, DOT/FRA/ORD-13/07. This research report 
was prepared by the John A. Volpe National Transportation Systems 
Center. https://www.fra.dot.gov/eLib/details/L04321.
    \76\ 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. This research report was prepared by the John A. 
Volpe National Transportation Systems Center. https://www.fra.dot.gov/eLib/details/L04331.
    \77\ 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. This research report 
was prepared by the John A. Volpe National Transportation Systems 
Center. https://railroads.dot.gov/elibrary/technology-implications-cognitive-task-analysis-locomotive-engineers.
    \78\ Cognitive and Collaborative Demands of Freight Conductor 
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations at 2.
    \79\ Id. at 42.
    \80\ Id. at 2.
    \81\ Fatigue Status in the U.S. Railroad Industry, Final Report, 
dated February 2013, DOT/FRA/ORD-13/06. https://railroads.dot.gov/elibrary/fatigue-status-us-railroad-industry. This research report 
was prepared by QinetiQ North America and an Engineering 
Psychologist within FRA's Office of Research and Development.
---------------------------------------------------------------------------

    Research explains that there are critical components to building 
effective teams.\82\ Individuals that form expert teams engage in a 
regular cycle of pre-brief, performance, and debrief. This performance 
cycle engages the individuals that form expert teams to identify high 
and low priorities, revise goals and plans, identify lessons learned, 
and evaluate whether the team is effective both in performing its tasks 
and identifying the needs of team members. The research regarding 
teamwork in U.S. railroad operations \83\ concludes that the main 
advantage of developing individuals who engage in that regular briefing 
cycle is that they can work with other properly trained individuals to 
form an expert team that can be expected to have higher levels of 
performance than non-expert teams. For example, properly trained 
individuals that are assigned a duty tour together on any given day 
will form an expert team that makes better decisions and fewer errors, 
which in turn enables the expert team to have a higher probability of 
mission success.\84\
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    \82\ 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. https://onlinepubs.trb.org/onlinepubs/circulars/ec159.pdf.
    \83\ Id. at 17.
    \84\ Id.
---------------------------------------------------------------------------

    The research raised additional safety concerns regarding one-person 
train crews, such as the loss of low workload periods during which 
teams have time to plan ahead,\85\ the loss of a second crewmember to 
notice and correct errors,\86\ and the difficulty some crewmembers may 
have working alone.\87\ Similarly, the research highlighted that having 
a two-person crew broadens the number of experiences from which the 
crew can draw from to effectively problem-solve, plan ahead, or 
identify and avoid potential hazards.\88\
---------------------------------------------------------------------------

    \85\ Id. at 30.
    \86\ Id. at 19.
    \87\ Id. at 3-4, 13-14.
    \88\ Id. at 5, 34.
---------------------------------------------------------------------------

    The research describing the technology implications of a cognitive 
task analysis for locomotive engineers also suggests why implementing 
PTC could create new sources of workload and distraction and thus 
should not be presumed to lead to fewer tasks for the crew to do, nor 
make it easier to accomplish the tasks with a single

[[Page 45573]]

person until the issue can be studied.\89\ Traditionally, 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.\90\ The research suggests 
that PTC technology may require locomotive engineers to focus more on 
in-cab displays and thereby reduce their ability to monitor activity 
outside the cab.\91\ This raises the question of whether engineers will 
lose some of the situational awareness that helps them perceive where 
the train is based on their prior experiences. Typically, a locomotive 
engineer will use that situational awareness to help anticipate future 
events. Furthermore, the research concluded that train crews must avoid 
too much reliance on new train control technologies because, if the 
system ever fails, the engineer must be able to operate the train 
safely or bring the train to a safe stop until the technology is 
repaired.\92\
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    \89\ Technology Implications of a Cognitive Task Analysis for 
Locomotive Engineers--Human Factors in Railroad Operations at 38-40. 
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).
    \90\ Technology Implications of a Cognitive Task Analysis for 
Locomotive Engineers--Human Factors in Railroad Operations at 17.
    \91\ Id. at 45.
    \92\ Using Cognitive Task Analysis to Inform Issues in Human 
Systems Integration in Railroad Operations--Human Factors in 
Railroad Operations at 25, Final Report, dated May 2013, DOT/FRA/
ORD-13/31 This research report was prepared by the John A. Volpe 
National Transportation Systems Center. https://www.fra.dot.gov/eLib/details/L04589.
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2. Current Regulatory Weaknesses
    In the 2016 NPRM's background section, FRA explained that many of 
the Federal rail safety regulations were written with the expectation 
that each train would have multiple crewmembers.\93\ FRA cited six 
different railroad safety scenarios in the 2016 NPRM raising safety 
concerns.\94\ While FRA noted in the 2019 Withdrawal that none of the 
scenarios cited in the 2016 NPRM require a minimum number of 
crewmembers to achieve compliance, the implementation of a one-person 
operation, without any off-setting measures, may render existing rail 
safety requirements either less effective or ineffective. This may be 
especially true for prohibited conduct that is not always easy for 
railroad officers who conduct operational tests and inspections to 
detect.\95\ For example, a second crewmember's presence or reminder of 
an electronic device prohibition could act as a deterrent to any 
prohibited use. A second crewmember can vigilantly monitor the safe 
movement of the train when prohibited conduct is detected or stop the 
train to report the inappropriate electronic device usage. If 
prohibited conduct is a contributing cause to an accident/incident, a 
second crewmember may provide evidence during an investigation. 
Although it is possible that inward-facing cameras in the locomotive 
cab could equally act as a deterrent to prohibited electronic device 
use and provide valuable information during a post-accident 
investigation, such cameras are currently not required and have not 
been installed voluntarily on all locomotives industry-wide. Consistent 
with the statutory mandate on which it is based,\96\ FRA did not 
propose an inward-facing camera requirement for freight locomotives in 
its notice of proposed rulemaking regarding locomotive image and audio 
recording devices (Recording Devices NPRM).\97\ FRA has not yet issued 
the Recording Devices final rule. FRA considered proposing an inward-
facing camera requirement for freight locomotives in this train crew 
size safety proposed rule but declined to do so. Although these 
recording devices could act as a deterrent and provide valuable 
information during a post-accident investigation, the devices would not 
be as effective as a second crewmember who could more quickly take 
action when prohibited conduct is detected and also provide critical 
evidence during an investigation that a recording device did not 
capture. Accordingly, without inward-facing cameras in the locomotive 
cab, FRA would expect a railroad's risk assessment for a one-person 
train crew operation would identify this hazard and appropriate 
mitigation actions. Such mitigation might include requiring frequent 
supervisory monitoring during a tour of duty. As an alternative to the 
proposed risk assessment requirement, FRA requests comment on whether 
other specific actions should be mandated (e.g., frequent supervisory 
monitoring during a tour of duty or similar interactions that would 
discourage a one-person crewmember from violating the prohibitions on 
electronic device use).
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    \93\ 81 FR 13932-34.
    \94\ Id.
    \95\ For example, FRA requires each railroad to maintain a 
program of operational tests and inspections, and the railroad 
officers who conduct the tests or inspections to be trained and 
qualified. 49 CFR 217.9.
    \96\ See 49 U.S.C. 20168.
    \97\ 84 FR 35712, 35713 (July 24, 2019).
---------------------------------------------------------------------------

    In the 2016 NPRM, FRA also raised various other concerns related to 
crewmember distraction, whether by prohibited electronic devices, radio 
transmissions, interfacing with railroad-approved on-board electronic 
systems, or other crewmembers. For instance, although research suggests 
properly trained teams should not distract one another, FRA anticipates 
that some commenters will take the position that a second crewmember is 
a source of distraction and could add to the number of persons killed 
or seriously injured when an accident occurs. As in 2016, such 
instances of crewmember distraction are likely rare, but FRA does not 
have readily available information for estimating such countervailing 
impacts of this proposed rule.\98\ In the justification for the final 
rule restricting railroad operating employees from using cellular 
telephones and other electronic devices, FRA stated that ``it is 
difficult to identify distraction and its role in a crash'' if it goes 
unreported by the operator of the vehicle.\99\ In FRA's view, the 
potential for a second crewmember distracting another crewmember is 
balanced by the greater likelihood that a properly trained second 
crewmember acts as a deterrent to prohibited conduct and can monitor 
the other crewmember's attentiveness.
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    \98\ 81 FR 13919.
    \99\ 75 FR 59580, 59582 (Sep. 27, 2010) (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).
---------------------------------------------------------------------------

    FRA also explained in the 2016 NPRM how a one-person train crew has 
more opportunity to conceal a drug or alcohol violation than the person 
would if there were two or more crewmembers. For instance, FRA has 
requirements for most railroads to conduct random testing, reasonable 
cause testing, and to implement self/co-worker referral programs.\100\ 
However, even if a one-person train crew is subject to random and 
reasonable cause testing and referral programs under part 219, the 
person will not be tested before, during, or after every tour of duty. 
With multiple train crewmembers, another crewmember

[[Page 45574]]

might suspect that a person has used, or is using or possessing alcohol 
or drugs on railroad property.\101\ If a railroad were to use a one-
person train crew, there is no current requirement that supervisors 
initiate any procedures to substitute for that lack of contact with 
other railroad personnel. Under this proposed rule, FRA would expect a 
railroad's risk assessment for a one-person train crew operation to 
address this hazard and mitigate this risk. Such mitigation might 
include requiring a one-person train crew to have face-to-face meetings 
with supervisors at the beginning and end of each tour of duty, or more 
frequent supervisory monitoring during a tour of duty; other types of 
mitigation may also be appropriate. FRA finds that a railroad seeking 
to implement a less than two-person crew operation would be in the best 
position to identify its own mitigation strategies. As alternative 
options to the proposed risk assessment, FRA considered whether to 
require those face-to-face meetings with supervisors at the beginning 
and end of each tour of duty, or more frequent supervisory monitoring 
during a tour of duty, or similar interactions that would discourage a 
one-person crewmember from violating the prohibitions on alcohol and 
drug use. FRA requests comment on this issue, including comments on 
whether each railroad that continues a legacy operation under proposed 
Sec.  218.131(b)(12) and/or each railroad that implements certain 
specific freight train operations proposed for exception under Sec.  
218.129(b) should be required to adopt and comply with a railroad 
operating rule or practice whereby those one-person train crewmembers 
must have face-to-face meetings with supervisors at the beginning and 
end of each tour of duty, or more frequent supervisory monitoring 
during a tour of duty.
---------------------------------------------------------------------------

    \100\ See 49 CFR part 219.
    \101\ 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 referral programs 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 219.1001 through 219.1007 (permitting a railroad to 
implement alternate referral programs with the written concurrence 
of the recognized representatives of the regulated employees). The 
referral programs make 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.
---------------------------------------------------------------------------

    FRA also finds that safety is diminished when employees no longer 
need to discuss their work, and the processes or requirements they must 
follow, at regular intervals.\102\ For this reason, FRA's regulations 
contain job briefing requirements for train crewmembers and other 
operating employees. For example, FRA requires train crewmembers to 
hold job briefings when conducting shoving or pushing movements,\103\ 
when operating or verifying the position of a hand-operated 
switch,\104\ when a utility employee commences duties with a train 
crew,\105\ and when, under certain conditions, a railroad operating 
employee wants to use a railroad-supplied electronic device in the cab 
of the controlling locomotive.\106\ These job briefing requirements 
typically are required before work is begun, each time a work plan is 
changed, and upon completion of the work.
---------------------------------------------------------------------------

    \102\ For instance, in the context of roadway maintenance, FRA 
issued guidance reminding the regulated community of the importance 
of job safety briefings for activities that fall outside of FRA's 
safety regulations but that may be subject to the U.S. Occupational 
Safety and Health Administration's (OSHA) regulations requiring 
briefings. FRA explained that ``[j]ob safety briefings, specific to 
the task or tasks to be performed, provide a mechanism to not only 
communicate identified risks to every member of the roadway work 
group, but to also ensure that the roadway work group agrees as to 
how the identified risks will be mitigated.'' 81 FR 85674, 85675 
(Nov. 28, 2016) (citing Safety Advisory 2016-02, ``Identification 
and Mitigation of Hazards Through Job Safety Briefings and Hazard 
Recognition Strategies).
    \103\ 49 CFR 218.99(b)(1).
    \104\ 49 CFR 218.103(b)(1).
    \105\ 49 CFR 218.22(c)(4).
    \106\ 49 CFR 220.307(c)(1).
---------------------------------------------------------------------------

    Not only are job briefings relevant to rail safety because the 
employees must coordinate their work, but the briefings are also 
relevant to rail safety as a way to share information and experiences. 
The voluntary sharing of knowledge and experiences is a safety issue 
raised in research describing the value of intermediate or rolling job 
briefs that are informally initiated en route before performing 
particularly challenging tasks.\107\ These informal practices are 
described as going beyond the requirements of formal rules and 
procedures as including ``proactive communications intended to foster 
common ground, redundancy checks intended to reduce the possibility of 
error; and proactive actions intended to level workload and facilitate 
work across the distributed organization.'' \108\ The research 
concludes that the act of discussing potential hazards enables 
crewmembers to be better prepared, especially when less experienced 
crewmembers might fail to identify and avoid those hazards unbeknownst 
to them.\109\ This finding is a significant factor in the research's 
overall conclusion that ``train crews . . . were shown to exhibit 
characteristics of high performing teams that have been found across 
industries [specifically including] mutual performance monitoring and 
active support of each other's activities (e.g., backup behavior).'' 
\110\ For these reasons, a one-person train crew that lacks a job 
briefing requirement may be less prepared, and thus less safe, than a 
two-person train crew unless a job briefing requirement with a non-
crewmember is added for certain tasks or situations. A railroad that 
conducts a risk assessment, like the one proposed in this rulemaking, 
would likely be in the best position to decide when job briefings with 
non-crewmembers could be a reasonable alternative to job briefings with 
other crewmembers because such job briefings would capture the benefits 
of high-performing teams and mitigate risk.
---------------------------------------------------------------------------

    \107\ Teamwork in Railroad Operations and Implications for New 
Technology, Final Report, dated May 2020, DOT/FRA/ORD-20/01. This 
research report was prepared by the John A. Volpe National 
Transportation Systems Center. https://railroads.dot.gov/elibrary/teamwork-railroad-operations-and-implications-new-technology.
    \108\ Id.at 28.
    \109\ Id.at 13.
    \110\ Id.at 28.
---------------------------------------------------------------------------

    Without the proposed risk assessment requirements, FRA 
alternatively considered requiring more frequent communications between 
a one-person crew and non-crewmembers. However, in considering such an 
alternative, it is difficult to know how, if at all, such a 
communication requirement could reliably ensure the specific hazards of 
a train operation are identified and addressed. For example, the 
appropriate alternative non-crewmember(s) required to participate in 
the job briefing would need to be identified. FRA would likely need to 
address railroad operations more broadly than any individual railroad 
with knowledge of its own operations. FRA suspects that such a job 
briefing with non-crewmembers may only be needed in complex situations, 
not every time work conditions or situations change, and the addition 
of a job briefing requirement with a person other than a train 
crewmember could be addressed in a special approval petition or by FRA 
during the proposed approval process rather than an alternative FRA 
regulatory requirement. The addition of job briefings across the larger 
distributed team \111\ made up of dispatchers, train crews, operational 
managers, and roadway workers is part

[[Page 45575]]

of current, informal cooperative practices that contribute to safe and 
efficient performance across a railroad.\112\ Thus, FRA expects that a 
railroad's risk assessment would best address the job briefing issue. 
Alternatively, FRA requests comment on whether FRA should add job 
briefing requirements to address the safety implications of a train 
operation with a one-person crew.
---------------------------------------------------------------------------

    \111\ Id.at 5 (explaining that distributed teams are distributed 
geographically and the team participants may or may not be members 
of the same craft, although they may need to communicate and 
coordinate to accomplish work safely and efficiently).
    \112\ Id.at 28.
---------------------------------------------------------------------------

    Additionally, other operational tasks are more difficult with a 
one-person train crew. For instance, FRA requires that an employee 
copying a mandatory directive received by radio transmission not be 
operating the controls of moving equipment.\113\ Thus, a one-person 
train crew would have to stop the train to receive a mandatory 
directive that was transmitted by radio--even in circumstances, such as 
steep grade, that would make stopping the train logistically difficult. 
A railroad's risk assessment would be expected to identify the hazard 
of a steep grade and how mandatory directives will be conveyed safely 
to mitigate such risk. Although FRA believes a risk assessment provides 
the best option to identify hazards regarding mandatory directives 
received by radio transmission and allow each railroad to devise its 
own mitigation strategies, FRA requests comment on other options, such 
as the option FRA considered to prohibit the conveyance of a mandatory 
directive by radio when a one-person crew is operating a train on a 
steep grade.
---------------------------------------------------------------------------

    \113\ See 49 CFR 220.61.
---------------------------------------------------------------------------

    Another operational issue that could be addressed in the proposed 
risk assessment is how a railroad with a one-person train crew plans to 
handle situations in which the controlling locomotive's radio fails en 
route. With a two-person crew, one person can operate the train while a 
second person communicates with the dispatcher from a second locomotive 
that has a working radio. A one-person crew would not have this 
workaround.\114\ Without this workaround and without a risk assessment 
addressing this hazard, FRA alternatively considered that the current 
requirements, allowing the train to continue until the earlier of the 
next calendar day inspection or reaching the nearest forward repair 
point, are too lenient.\115\ For instance, FRA considered an 
alternative option of adding to the current regulatory requirements 
that, when a controlling locomotive has a radio or wireless 
communication device that fails en route, a one-person train crew is 
prohibited from continuing beyond a location where a second crewmember 
can be safely added to the train. Thus, the alternative prohibition FRA 
considered would be significantly more stringent than the current rule, 
as FRA would expect the train to be stopped and a second crewmember 
added at any location where the train can be safely stopped and a 
crewmember can be safely added, which would likely be at a location 
much closer than a repair point in most situations. FRA requests 
comments regarding why this alternative option might be preferable to 
the risk assessment as proposed, or whether there are alternative 
options.
---------------------------------------------------------------------------

    \114\ 49 CFR 220.38 (describing the requirements for train 
operations in the event of a communication equipment failure).
    \115\ Id.
---------------------------------------------------------------------------

    FRA also expects the proposed, railroad-developed risk assessments 
will address the hazards associated with how often and under what 
conditions a one-person train crew will be expected to leave the 
locomotive cab to throw a switch, operate through it, and then leave 
the locomotive cab again to return the switch to its previous, normal 
state.\116\ In this rulemaking, FRA proposed that, under certain 
operations specified by exceptions and legacy operations, ``a one-
person train crewmember must remain in the locomotive cab during normal 
operations and may leave the locomotive cab only in case of an 
emergency affecting railroad operations.'' \117\ FRA considered 
extending this type of proposed prohibition as an alternative to a risk 
assessment for other one-person train operations under proposed Sec.  
218.133, but chose a risk assessment as the best option because it 
would allow each railroad to consider the hazards and mitigate the 
risks knowing the extent of its operation. FRA would appreciate 
comments on this alternative prohibition option or other options that 
would address the hazards associated with how often and under what 
conditions a one-person train crew will be expected to leave the 
locomotive cab.
---------------------------------------------------------------------------

    \116\ See 49 CFR 218.103 through 218.107 (requiring each 
railroad to adopt and comply with operating rule requirements for 
operating hand-operated switches).
    \117\ See proposed 49 CFR 218.129(b) and 218.131(b)(12)(i).
---------------------------------------------------------------------------

    Further, the 2016 NPRM described how, in the event of a highway-
rail grade crossing activation failure, i.e., when the warning lights 
do not flash or the gates do not come down to stop motor vehicle 
traffic, motor vehicle traffic must be warned of an approaching train 
and a one-person crew could not stop and flag the crossing without a 
non-crewmember flagger or a uniformed law enforcement officer's 
assistance.\118\ While complying with the current activation failure 
requirements with fewer than two crewmembers is possible, there are no 
current Federal requirements that a railroad have an effective plan for 
quickly protecting the crossing and moving the train so it is not 
blocking other crossings that have passive warning devices only. 
Similar to other operational safety hazards mentioned in this 
background, describing how the current regulations were written for 
multi-person train crews, FRA expects that the risk assessment proposed 
in this rulemaking would be the best option because it would require a 
railroad to maintain procedures that will promptly allow one-person 
train crews to protect highway-rail grade crossings where there has 
been an activation failure. Without a risk assessment requirement, FRA 
considered the alternative of mandating that a railroad with a one-
person train operation establish operating rules or practices necessary 
to safely protect those crossings without undue delay. FRA would 
appreciate comments on the options considered and any alternative 
options.
---------------------------------------------------------------------------

    \118\ 81 FR 13934 (citing 49 CFR 234.105).
---------------------------------------------------------------------------

    Blocked highway-rail grade crossings, by trains traveling over or 
stopping on track crossed by a highway, are another operational safety 
hazard that FRA would expect a railroad to address in a proposed risk 
assessment for a one-person train crew operation. For instance, the 
proposed requirement of a risk assessment would be expected to address 
operational changes that increase hazards such as more frequently 
blocked crossings. A one-person train operation might increase blocked 
crossings when operating longer, slower, or more frequent trains, or by 
requiring trains to stop more frequently blocking highway-rail grade 
crossings for longer periods of time, but FRA cannot know whether this 
is likely to be the case without a risk assessment that describes the 
operation and its hazards.\119\ Blocked crossings can lead to social 
costs due to increased travel times and inconvenience. In addition, 
crossings that are blocked for significant periods of time could affect 
public safety. For example, recipients and providers of emergency 
medical services could be detrimentally impacted by extended delays 
caused by trains

[[Page 45576]]

blocking highway access to crossings, as could police and fire 
department personnel responding to other types of community 
emergencies, a situation that could be exacerbated with an increase in 
one-person train crew operations.\120\ For instance, each year there 
are news reports that blocked crossings have led to a delay in 
providing emergency services or getting someone to medical care, and 
that harm may have resulted as a consequence.\121\ Also, when highway 
users are not given any advance warning of a blocked crossing or any 
information regarding when the crossing will no longer be blocked, 
motor vehicle drivers may feel they need to take risks to avoid waiting 
for the crossing to clear. Similarly, communities are concerned that 
longer trains may ``prolong the duration of a blockage and can block 
more crossings concurrently, making it harder for vehicles to find an 
alternative route around the train.'' \122\ FRA believes the best 
option to address this operational safety concern is by requiring the 
proposed risk assessment, which would allow the railroad to identify 
hazards and mitigate risk. Without a risk assessment option, FRA 
alternatively considered how to regulate one-person train operations so 
that each railroad, at a minimum, has a plan to unblock crossings when 
trains are stopped. FRA would appreciate comments on these options or 
other alternative options to a risk assessment that would address how 
FRA could regulate one-person train operations so that the safety issue 
of trains blocking crossings is not made worse than when trains are 
operated by two or more crewmembers.
---------------------------------------------------------------------------

    \119\ GAO-19-443 at 17 (citing GAO-16-274 which reported that 
``the amount of time that highway-rail grade crossings are blocked 
depends on a number of factors and is typically a function of the 
number, speed, and length of trains).
    \120\ GAO-19-443 at 17-22 (describing the various safety impacts 
blocked crossings may have on communities).
    \121\ For example, a news report describes how, on September 30, 
2021, a mother gave CPR to her 3-month old boy for an hour while a 
train blocked a crossing preventing EMTs from providing help. The 
EMTs ended up walking between the train cars to get to the boy and, 
when returning to the ambulance, the train started moving so the 
EMTs had to wait until the train passed to cross the tracks back to 
the ambulance. It was reported that, according to the boy's mother, 
the delay allegedly contributed to the boy's death a couple of days 
later. Last visited at https://www.easttexasnews.com/index.php/polk-county-news-2/925-tragedy-on-the-tracks. In another example, a news 
report describes how a man in Tennessee died on May 17, 2021, after 
first responders were delayed reaching him allegedly due to a train 
that was blocking a crossing. Last visited at https://www.newschannel5.com/news/bedford-county-man-dies-after-train-blocks-ambulance-route. In addition, a news report describes how a 
man in September 2020 died after emergency vehicles coming to his 
aid were stuck behind a train at the only entrance to the man's 
street and that numerous calls were made to police for over two 
hours about the train blocking access. Last visited at https://www.8newsnow.com/news/oklahoma-family-sues-after-father-dies-while-emergency-vehicles-stuck-behind-train/. The three news articles will 
be available in the docket for the rulemaking (FRA-2021-0032).
    \122\ GAO-19-443 at 18.
---------------------------------------------------------------------------

    Without a train crew size safety requirements regulation, railroads 
could diminish the safety purposes of some existing regulatory 
requirements. Specifically, railroads could avoid fully considering the 
potential safety repercussions resulting from one-person crew 
operations or taking off-setting measures consistent with railroad 
safety. In addition, railroads lacking proper training, testing, or 
supervision programs for one-person crew operations could introduce new 
safety risks for neighboring communities. For these reasons, in 
reviewing and approving train operations with fewer than two 
crewmembers, FRA proposes to condition its approval of such operations 
on specific conditions necessary to ensure the approval is consistent 
with railroad safety. Further, as indicated in this background, FRA is 
proposing the risk assessment option because it is the best option, as 
it would allow each railroad to identify the hazards in its own 
operation and mitigate the risks to an acceptable level. FRA is 
interested to hear from commenters on both the risk assessment and 
alternative options considered and described in this background; 
however, considering that so many of the Federal rail safety 
regulations were written with the expectation that each train would 
have at least two crewmembers, FRA's position in this proposed rule is 
that new regulatory requirements are warranted to prevent one-person 
train operations from potentially degrading safety.

E. Transportation of Certain Hazardous Materials

    DOT has long recognized that hazardous materials are essential to 
the economy of the U.S. and the well-being of its people, but incidents 
can occur involving releases or security threats.\123\ FRA coordinates 
with DOT's Pipeline and Hazardous Materials Safety Administration 
(PHMSA) to regulate and enforce the safe and secure transportation of 
hazardous materials by rail.\124\ As a result of this shared role, 
PHMSA and FRA work closely when considering regulatory changes and the 
agencies take a system-wide, comprehensive approach consistent with the 
risks posed by the bulk transport of hazardous materials by rail. FRA 
and PHMSA also coordinate with the Department of Homeland Security and 
its Transportation Security Administration (TSA) on rail transportation 
security issues, as those agencies have the lead role in security 
matters.
---------------------------------------------------------------------------

    \123\ See e.g., 67 FR 22028 (May 2, 2002) (proposing new 
requirements to enhance the security of hazardous materials 
transported in commerce in the wake of the terrorist attacks of 
September 11, 2001).
    \124\ PHMSA's mission is to protect people and the environment 
by advancing the safe transportation of energy and other hazardous 
materials that are essential to our daily lives. In advancement of 
its mission, PHMSA: establishes national policy; sets and enforces 
standards; educates; and conducts research to prevent incidents. 
PHMSA also prepares the public and first responders to reduce 
consequences if an incident does occur. PHMSA's standards include 
requirements for shipments and packaging during transportation of 
hazardous materials whether by rail, aircraft, vessel, or public 
highway.
---------------------------------------------------------------------------

    Accordingly, to ensure the safety and security of the rail 
transportation of hazardous materials, PHMSA and FRA, in coordination 
with DHS, have historically promulgated rules subjecting certain 
hazardous materials to additional operational restrictions or requiring 
railroads to take certain actions to ensure the safe and secure rail 
transportation of these high-risk hazardous materials.\125\ PHMSA's 
hazardous materials regulations are designed to achieve three goals: 
(1) ensure that hazardous materials are packaged and handled safely and 
securely during transportation; (2) provide effective communication to 
transportation workers and emergency responders of the hazards of the 
materials being transported; and (3) minimize the consequences of an 
incident should one occur.\126\ The regulations categorize hazardous 
materials by analysis and experience into hazard classes and packing 
groups based upon the risks they present during transportation.
---------------------------------------------------------------------------

    \125\ 49 CFR parts 171-180.
    \126\ 80 FR 26644, 26649 (May 8, 2015).
---------------------------------------------------------------------------

    Because of the dangers of hazardous materials generally, and the 
additional dangers of a release in transit due to an accident, 
derailment, theft, or attack, DOT considers train crewmembers as 
``hazmat employees'' requiring specific types of training.\127\ These 
training requirements are substantial. For example, the types of 
training required for hazmat employees include general awareness/
familiarization training, function-specific training, safety training 
that includes emergency

[[Page 45577]]

response and exposure mitigation/protection measures, security 
awareness training, in-depth security training, and any other training 
required by other Federal agencies.\128\ Further, these types of 
training are required initially and recurrently at least once every 
three years.\129\ Considering these extensive training requirements for 
train crewmembers who are hazmat employees, the proposed train crew 
size safety requirements for trains carrying hazardous materials are 
complementary to existing DOT requirements that highlight the greater 
risks posed by certain types of shipments. The following background 
provides some historical explanation for why the train crew size safety 
requirements proposed in this rulemaking rule would prohibit 
transporting certain types of hazardous materials by train with a one-
person crew.
---------------------------------------------------------------------------

    \127\ 49 CFR 171.8 (defining ``hazmat employees'' by the type of 
work the person is employed to do). Locomotive engineers are hazmat 
employees because they operate a vehicle used to transport hazardous 
materials, as specified in paragraph (2)(v) of the definition of 
hazmat employees. Similarly, other train crewmembers, such as 
conductors, are responsible for the safety of transporting hazardous 
materials, paragraph (2)(iv), and directly affect hazardous 
materials transportation safety while employed by a hazmat employer, 
paragraph (1)(i).
    \128\ 49 CFR 172.704(a) and (b).
    \129\ 49 CFR 172.704(c).
---------------------------------------------------------------------------

    A 2008 PHMSA final rule, for example, requires railroads to 
annually assess the safety and security risks of the routes over which 
the railroads transport certain hazardous materials because certain 
hazardous materials present greater risks than others.\130\ For 
instance, a hazardous material may present a greater risk because of 
the potential consequences of an unintentional release of that material 
and the material's potential for use as a ``weapon[ ] of opportunity or 
weapon[ ] of mass destruction.'' \131\ For that reason, PHMSA 
specifically categorized materials poisonous by inhalation (PIH 
materials), certain radioactive materials, and certain explosives, as 
examples of materials presenting the greatest risk and required that 
railroads annually analyze the routes over which these materials are 
transported and available alternatives to determine the safest and most 
secure route.
---------------------------------------------------------------------------

    \130\ 73 FR 72182, 72193 (Nov. 26, 2008).
    \131\ Id. at 72184.
---------------------------------------------------------------------------

    Also in 2008, in response to a statutory mandate that implemented 
recommendations of the 9/11 Commission,\132\ TSA similarly categorized 
certain rail shipments of hazardous materials as rail-security 
sensitive materials (RSSMs).\133\ TSA added the RSSM term to denote 
that the Secretary of Homeland Security determined that certain 
``categories and quantities of hazardous materials . . . pose a 
significant risk to national security while being transported in 
commerce by rail due to the potential use of one or more of these 
materials in an act of terrorism.'' \134\ Included within the 
definition of RSSMs are tank cars containing PIH materials and 
shipments of certain threshold quantities of explosive and radioactive 
materials.
---------------------------------------------------------------------------

    \132\ Implementing the Recommendations of the 9/11 Commission 
Act of 2007, Public Law 110-53; 121 Stat. 266 (Aug. 3, 2007). The 
statute defined ``security-sensitive material'' as ``a material, or 
group of materials, in a particular quantity and form that the 
Secretary of Homeland Security, in consultation with the Secretary 
of Transportation, determines through rulemaking with opportunity 
for public comment, poses a significant risk to national security 
while being transported in commerce.''
    \133\ 73 FR 72130 (Nov. 26, 2008).
    \134\ Id. at 72134.
---------------------------------------------------------------------------

    After the 2013 catastrophic accident in Lac-M[eacute]gantic, 
Canada, Transport Canada issued a directive containing a specific 
requirement that railroads in Canada operate trains carrying loaded 
hazardous materials tank cars over main track and sidings with at least 
two crew members.\135\ Canada replaced the temporary directive with a 
more permanent, minimum two crewmember operating requirement ``for a 
freight train or transfer carrying one or more loaded tank cars of 
dangerous goods.'' \136\ On August 7, 2013, FRA issued a safety 
advisory recommending that railroads review their crew staffing 
practices for over-the-road train movements of trains transporting five 
or more PIH tank car loads, or 20 or more rail car loads or intermodal 
portable tank loads of any Division 2.1 flammable gas, Class 3 
flammable liquid or combustible liquid, Class 1.1 or 1.2 explosive, or 
other certain listed hazardous substances.\137\
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    \135\ The emergency directive pursuant to section 33 of the 
Railway Safety Act was issued on July 23, 2013, approximately 17 
days after the Lac-M[eacute]gantic accident and was set to remain in 
effect until the end of 2013. It is described in a safety advisory 
FRA issued after the accident, Safety Advisory 2013-06, cited below. 
Although the signed and dated directive is no longer available on 
Transport Canada's website, Transport Canada released this 
``Backgrounder'' for research or reference: https://www.canada.ca/en/news/archive/2013/07/emergency-directive-pursuant-section-33-railway-safety-act.html. Transport Canada also lists the directive 
as issued on July 23, 2013 in a list of ``Measures to enhance 
railway safety and the safe transportation of dangerous goods'': 
https://tc.canada.ca/en/rail-transportation/rail-safety/measures-enhance-railway-safety-safe-transportation-dangerous-goods#wb-auto-4.
    \136\ Canadian Rail Operating Rules (CROR), General Rule-M(iii). 
https://tc.canada.ca/en/rail-transportation/rules/canadian-rail-operating-rules/general-rules.
    \137\ FRA Safety Advisory 2013-06, 78 FR 48224, 48228 (Aug. 7, 
2013).
---------------------------------------------------------------------------

    Subsequently, in 2015, PHMSA addressed the risks of the rail 
transportation of large volumes of flammable liquids and imposed 
operational restrictions (e.g., speed limits, certain braking 
requirements, and route analysis requirements) on trains transporting 
large volumes of these materials. In doing so, PHMSA defined trains 
subject to these additional operational restrictions as ``high-hazard 
flammable trains.'' \138\ PHMSA acknowledged in the 2015 final rule 
that it did not directly address regulations governing human factors, 
but that it does indirectly address some of the issues through 
consideration of 27 safety and security factors as part of the routing 
requirements.\139\ Several of those 27 safety and security factors that 
must be considered in the risk analysis would likely place a larger 
burden on a one-person train crew, such as the volume of hazardous 
material transported, rail traffic density, trip length for route, the 
emergency response capability along the route, and the training and 
skill level of crews.\140\ PHMSA's decision to indirectly address the 
human factors issues was driven by its understanding that ``FRA has 
initiated a rulemaking to address the appropriate oversight to ensure 
safety related train crew size'' as a separate, key regulatory safety 
initiative.\141\
---------------------------------------------------------------------------

    \138\ 80 FR 26644, 2674626746 (May 8, 2015). The rule defined a 
``high-hazard flammable train'' as ``a single train transporting 20 
or more loaded tank cars of a Class 3 flammable liquid in a 
continuous block or a single train carrying 35 or more loaded tank 
cars of a Class 3 flammable liquid throughout the train consist.''
    \139\ Id. at 26651.
    \140\ 49 CFR part 172, appendix D.
    \141\ 80 FR 26654-55.
---------------------------------------------------------------------------

    Also in 2015, FRA issued a final rule amending existing securement 
requirements for unattended equipment, primarily for trains 
transporting PIH materials and large quantities of certain flammable 
hazardous materials.\142\ Specifically, FRA found that the dangerous 
properties of PIH materials and large quantities of certain flammable 
and other hazardous materials (including certain explosives and 
hazardous substances) often compound the consequences of a rail 
accident should one occur.\143\ Thus, FRA amended its regulations to 
require railroads to take additional measures to secure equipment 
containing a tank car load of PIH material or 20 or more loaded tank 
cars or loaded intermodal portable tanks of certain flammable, 
combustible, or explosive hazardous materials or certain designated 
hazardous substances.\144\ For instance, FRA's 2015 final rule added a 
requirement to verify securement of certain unattended freight trains 
or cars containing the hazardous materials described above ``with 
another person qualified to make the determination that the equipment 
is secured in accordance

[[Page 45578]]

with the railroad's processes and procedures.'' \145\ FRA's analysis 
for that requirement explained that a multi-person crew could satisfy 
the requirement or, where a one-person crew was involved, then the 
crewmember ``would have to call the dispatcher or some other qualified 
railroad employee to verify with the qualified employee that the train 
had been properly secured.'' \146\
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    \142\ 80 FR 47350 (Aug. 6, 2015).
    \143\ Id. at 47353-55.
    \144\ 49 CFR 232.103(n)(6)(i)(A) and (B).
    \145\ 49 CFR 232.103(n)(8)(i).
    \146\ 80 FR 47372.
---------------------------------------------------------------------------

    Based on the known safety and security risks associated with 
operating trains transporting large amounts of hazardous materials and 
with the hazardous materials known to present the greatest safety and 
security risks, as discussed in more detail in the section-by-section 
analysis of proposed Sec.  218.123 below, in this NPRM FRA is proposing 
to prohibit the operation of trains transporting hazardous materials 
subject to FRA's securement regulation or materials designated by TSA 
as RSSMs on trains with fewer than two crewmembers.

F. Current Operations

    Since FRA already has regulations requiring certain minimum 
standards for locomotive engineers and conductors,\147\ FRA has chosen 
not to define the duties of the two required crewmembers in this 
proposed rule. Nearly every movement of a locomotive, whether the 
locomotive is coupled to other rolling equipment or not, requires that 
the operation be performed by a certified locomotive engineer.\148\ For 
most current railroad operations, this is accomplished with a two-
person train crew consisting of a locomotive engineer and a conductor. 
Train crews consisting of two people, one a locomotive engineer and the 
other a conductor, are universally the norm because that crewmember 
configuration provides the railroad with the necessary flexibility to 
assign the crew where operations have more complexity than a one-person 
crew can be expected to perform alone. That is, a train crew with both 
a locomotive engineer and conductor can be expected to work 
independently, without the need for the railroad to have separate plans 
regarding how the train will accomplish switching cars, protecting 
highway-rail grade crossings, and other safety-related tasks typically 
requiring more than just one-person. It is also more efficient with a 
conductor who can fill out any required paperwork and receive mandatory 
directives transmitted by radio while the locomotive engineer keeps the 
train moving.
---------------------------------------------------------------------------

    \147\ 49 U.S.C. 20135 and 20163 and 49 CFR parts 240 and 242.
    \148\ 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).
---------------------------------------------------------------------------

    Each current operation of a locomotive or train that requires a 
locomotive engineer is also required to have a conductor, but FRA 
recognizes that there are circumstances where a person is ``serving as 
both the conductor and the engineer.'' \149\ With a one-person train 
crew, the single crewmember must be dual-certified as a locomotive 
engineer and a conductor.\150\ In this way, FRA currently requires that 
each locomotive or train must have a crew that can perform all the 
duties described by the qualifications requirements in FRA's locomotive 
engineer and conductor certification regulations.
---------------------------------------------------------------------------

    \149\ 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).
    \150\ In previous rulemakings, FRA decided that one train 
crewmember could be both the train's certified locomotive engineer 
and certified conductor. See 49 CFR 240.308(c)(1) and 242.213(d)(1).
---------------------------------------------------------------------------

    FRA currently permits a train crew consisting of a certified 
locomotive engineer, who is not dual-certified as a conductor, and a 
second person who is a certified conductor attached to the train crew, 
but not traveling on the train.\151\ As proposed, this rule would limit 
this practice to the excepted small railroad operations under proposed 
Sec.  218.129(c)(1), as the NPRM would generally require crewmembers to 
be on their moving train and only would allow disembarking temporarily 
from the train to perform duties assigned.\152\ Thus, a second person, 
even if that person is a certified conductor, would not be a train 
crewmember under this proposed rule if the person is intermittently 
assisting the train's movements and traveling in a motor vehicle along 
a highway near the train. If this proposed rule is finalized, FRA is 
considering whether to amend the references in the locomotive engineer 
and conductor certification rules that permit the current operation to 
explain how these provisions are limited. FRA would appreciate comments 
on this issue.
---------------------------------------------------------------------------

    \151\ 49 CFR 240.308(c)(2) and 242.213(d)(2).
    \152\ See proposed 49 CFR 218.123(d).
---------------------------------------------------------------------------

    Additionally, a railroad operation with a train crew that consists 
of either: (1) a locomotive engineer and conductor; or (2) one 
crewmember that is dual-certified may have other operating employees 
identified as train crewmembers. FRA currently defines ``train crew'' 
in Sec.  218.5 as one or more railroad employees who are: assigned to a 
controlling locomotive; called to perform service subject to the 
Federal hours of service requirements; involved with the movement of 
the equipment they are called to operate; reporting and working 
together as a unit that remains in close contact, if more than one 
employee; and subject to the railroad operating rules and program of 
operational tests and inspections required in 49 CFR 217.9 and 217.11. 
Thus, as FRA has an existing definition of the requirements for a train 
crew, FRA did not propose any new or additional requirements for the 
train crew in this proposed rule. FRA would appreciate comments on this 
issue. An alternative option is that FRA require a second crewmember be 
a conductor, even if the other crewmember is dual-certified, in an 
effort to ensure a level of teamwork that may not be attainable with 
any other crewmember. This issue is further explained below for freight 
and passenger train operations.
1. Freight Train Operations
    Regarding the Class I freight railroads, FRA understands that the 
status of train crew staffing levels has remained unchanged since the 
Association of American Railroads (AAR) reported to FRA in 2013 after 
the Lac-M[eacute]gantic accident that the Class I railroads were only 
using two-person crews for over-the-road mainline operations.\153\ 
Because there are no Class I freight railroads currently with a legacy 
operation and does not expect Class I freight railroads to establish 
legacy one-person train crew operations before a final rule in this 
rulemaking is issued. FRA expects that, if this proposed rule became a 
final rule, Class I freight railroads will be required to petition FRA 
for special approval under proposed Sec.  218.133 to initiate train 
operations staffed with fewer than two crewmembers.
---------------------------------------------------------------------------

    \153\ 81 FR 13937 (citing letter from Mr. Edward R. Hamberger, 
President and CEO of AAR, to Mr. Joseph C. Szabo, FRA Administrator 
(Oct. 16, 2013), which was placed in the docket to the 2016 NPRM).
---------------------------------------------------------------------------

    Meanwhile, fewer freight short line and regional railroads (i.e., 
Class II and III railroads) are using one-person train crew staffing 
arrangements than in 2016. In 2016, FRA identified fourteen Class II 
and III railroads operating single-person train operations,\154\ but 
FRA's analysis in 2021 identified only seven of those same freight 
railroads maintaining such operations.\155\ Also, in the 2016

[[Page 45579]]

NPRM, FRA received correspondence from the American Short Line and 
Regional Railroad Association assuring FRA that its members carefully 
considered safety concerns when assigning train crew staff. FRA 
understood this to mean that railroads conducting one-person train crew 
operations did not implement the operation until a safety analysis was 
performed.\156\ Considering the low number of known short line and 
regional railroad operations with fewer than two train crewmembers, few 
Class II and III freight railroads are expected to initiate use of 
fewer than two train crewmembers in the near future, and the proposed 
legacy option should permit the continuance of those operations with a 
good safety record. FRA requests comment on any additional short line 
and regional freight railroads conducting one-person train crew 
operations and the interest of railroads to conduct one-person train 
crew operations in the future.
---------------------------------------------------------------------------

    \154\ 81 FR at 13940.
    \155\ As of February 4, 2021, FRA identified the following seven 
railroads as operating with a one-person train crew: (1) Indiana 
Rail Road; (2) California Northern Railroad Company; (3) Ventura 
County Railroad Company; (4) Modesto and Empire Traction Company; 
(5) Pacific Harbor Line Inc.; (6) City of Prineville Railway; and 
(7) Portland and Western Railroad, Inc.
    \156\ 81 FR 13937.
---------------------------------------------------------------------------

    Freight train operations may currently utilize one crewmember who 
is dual-certified as both a locomotive engineer and a conductor, along 
with a second crewmember that may be lacking many of the relevant 
qualifications normally associated with a conductor. In FRA's 
observations, this is an uncommon occurrence. Rather, it is more common 
to observe a freight railroad using two dual-certified crewmembers, 
allowing the crewmembers to take turns operating the locomotive and 
performing the conductor's duties. However, a freight railroad is 
currently not prohibited from deploying a dual-certified crewmember 
with a brakeman, or other operating crewmember as a second crewmember, 
even though the employee lacks the versatility and training of a 
conductor, which could raise questions regarding the safety of such a 
two-person operation. Presumably, a second crewmember who is not a 
conductor, but is traveling with the train, would handle physical tasks 
that require a crewmember to dismount from the train, such as throwing 
a switch, protecting a highway-rail grade crossing, and conducting 
brake tests. Additionally, a second crewmember who is not a conductor 
could help identify signal indications and assist the locomotive 
engineer with radio communications, among other duties. However, a 
second crewmember who is not a conductor would have fewer 
responsibilities when compared to a conductor, and the contributing 
value to the team would likely be less. For example, a second 
crewmember who is not a conductor would be expected to have training on 
fewer safety issues compared to a conductor and therefore may not have 
the knowledge to discuss or resolve as many operational questions as a 
conductor.
    Similar operational concerns could arise with current practices 
that allow use of a second person who is more like a utility employee 
\157\ 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 performed by a freight conductor if the crew had a 
second crewmember who was a freight conductor. However, unlike a 
crewmember, the utility employee is neither in the locomotive cab with 
the locomotive engineer nor in near constant radio communication with 
the locomotive engineer while the train is moving, and therefore cannot 
replace all the conductor's duties and accompanying safety benefits.
---------------------------------------------------------------------------

    \157\ 49 CFR 218.5 (defining utility employee as a railroad 
employee assigned to and functioning as a temporary member of a 
train or yard crew whose primary function is to assist the train or 
yard crew in the assembly, disassembly or classification of rail 
cars, or operation of trains (subject to the conditions set forth in 
49 CFR 218.22)).
---------------------------------------------------------------------------

2. Passenger Train Service
    Passenger train service means the transportation of persons (other 
than employees, contractors, or persons riding equipment to observe or 
monitor railroad operations) by railroad in intercity passenger service 
or commuter or other short-haul passenger service in a metropolitan or 
suburban area.\158\ For passenger train service, a locomotive engineer 
is normally located in the locomotive cab, and a passenger conductor, 
and potentially one or more assistant conductors, normally rides in the 
passenger cars with the passengers. It is commonplace for train 
crewmembers to be qualified to perform multiple crewmember jobs so that 
they are interchangeable, although that is not always the case on each 
railroad or for each train operation.
---------------------------------------------------------------------------

    \158\ See 49 CFR 239.7 (defining passenger train service).
---------------------------------------------------------------------------

    Multiple train crewmembers are typically necessary on a passenger 
train to meet the requirements of FRA's passenger train emergency 
preparedness rule,\159\ which is intended ``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.'' \160\ There are 
numerous ways that passenger train 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 must be trained on safe methods to assist 
passengers.
---------------------------------------------------------------------------

    \159\ 49 CFR part 239.
    \160\ 49 CFR 239.1(a).
---------------------------------------------------------------------------

    A one-person passenger train crew would have significant difficulty 
coordinating any type of evacuation, especially in difficult terrain, 
or if there are large numbers of passengers or other logistical 
challenges. Furthermore, although posted emergency evacuation signs and 
instructions for train passengers can be useful, and are indeed 
required by FRA regulation, the crew's presence is likely to improve 
instruction to passengers and facilitate situational awareness.
    Although passenger train conductors normally do not ride in or next 
to the locomotive cab with the locomotive engineer for more than a few 
minutes at a time, passenger train conductors are integral to the 
train's safe operation. For instance, passenger train conductors assist 
with train inspection, train makeup, form and record management, 
troubleshooting, and repair. Passenger train conductors also maintain 
verbal communication with the locomotive engineer, even though they are 
often not in the locomotive cab. A well-trained passenger train 
conductor will recognize passing landmarks and communicate important 
information by radio to the locomotive engineer.
    One safety concern for passenger train crew staffing, similar to 
the concern expressed above for freight train crew staffing, is that a 
passenger railroad will use one crewmember who is dual-certified as 
both a locomotive engineer and a conductor, but the second crewmember 
is not a certified conductor and may be lacking many of the relevant 
qualifications normally associated with a passenger train conductor. If 
a second passenger train crewmember is not a passenger conductor, the 
second person would have fewer responsibilities when compared to a 
passenger conductor, and the contributing value to the team would 
likely be less. As in the freight

[[Page 45580]]

operations example, a second crewmember who is not a conductor would be 
expected to have training on fewer safety issues compared to a 
conductor and therefore may not have the knowledge to discuss or 
resolve as many operational questions as a conductor. Consistent with 
the existing requirements for a ``train crew'' in Sec.  218.5, a second 
crewmember on a passenger train, even if not conductor-qualified, must 
have functions connected with the movement of the train and be called 
to perform service subject to the Federal hours of service requirements 
during a tour of duty.\161\ FRA is aware of at least two passenger 
train operations in which the railroads do not use train crewmembers 
that meet the definition of ``train or yard crew'' in Sec.  218.5, 
notably because the second person does not have functions connected 
with the movement of the train and thus is not performing service 
subject to the Federal hours of service requirements during a tour of 
duty.\162\ Although such passenger train operations may satisfy the 
requirements of 49 CFR part 239,\163\ railroads would need to seek 
FRA's special approval under proposed Sec.  218.131 to continue such 
legacy train operation staffing arrangements.
---------------------------------------------------------------------------

    \161\ 49 CFR 218.5 (defining ``train or yard crew,'' in part, by 
requiring that the crew be called ``to perform service covered by 
Section 2 of the Hours of Service Act.'').
    \162\ As of October 25, 2021, FRA identified the following 
passenger train operations as operating with a one-person train 
crew: (1) Denver Regional Transportation District/Denver Transit 
Operators; and (2) Utah Transit Authority's FrontRunner.
    \163\ 49 CFR 239.7 (defining ``crewmember,'' in part, to include 
``a person, other than a passenger, who is assigned to perform . . . 
[o]n-board functions in a sleeping car or coach assigned to 
intercity service, other than food, beverage, or security service'', 
and 49 CFR 239.101(a)(2), addressing employee training and 
qualification of all ``on-board personnel,'' whether in intercity or 
commuter passenger train service).
---------------------------------------------------------------------------

3. Tourist Train Operations
    Currently, the typical train crew staffing arrangement for tourist 
train operations is like that for passenger train service, with a 
locomotive engineer located in the locomotive cab and a conductor, and 
potentially one or more assistant conductors, riding in the passenger 
cars. The assistant conductors may go by a different title as tourist 
train operations usually have paid or volunteer train crewmembers that 
can assist passengers in case of an emergency. Tourist train operations 
are not required to comply with FRA's passenger train emergency 
preparedness requirements, whether the operation is on or off the 
general railroad system.\164\ Although FRA is unaware of any tourist 
train operation on the general railroad system of transportation that 
operates with a one-person train crew, FRA proposes to include tourist 
train operations in this rulemaking to ensure tourist trains continue 
to be appropriately staffed for safety. All tourist operations can 
likely meet the requirements or exceptions proposed in the rule without 
altering their operations and, therefore, would not incur any costs.
---------------------------------------------------------------------------

    \164\ 49 CFR 239.3(b)(3); 49 U.S.C. 20133(b). The passenger 
train emergency preparedness requirements in part 239, like those 
for passenger equipment safety in part 238, arose from a statutory 
mandate that allowed for different treatment of tourist train 
operations and followed a series of accidents involving intercity 
passenger and commuter rail operations. The requirements were 
therefore structured to apply to intercity passenger and commuter 
rail operations, not tourist operations. However, FRA noted that the 
exclusion of tourist operations from those rules was based on 
incomplete information regarding the unique circumstances of tourist 
railroads, and that future application of some or all of the 
emergency preparedness requirements could become appropriate. In 
such case, FRA would initiate a rulemaking to extend the application 
of part 239 to tourist operations. See 63 FR 24630, 24644 (May 4, 
1998). Nor would any such exclusion preclude the application of 
other rules to tourist operations.
---------------------------------------------------------------------------

4. Train Operations in Other Countries
    Generally, the data available about one-person train operations in 
other countries is limited because the information available does not 
separate one-person crew rail operations from multi-person operations. 
For this reason, it is difficult to normalize the data and effectively 
evaluate the safety of foreign, one-person train operations. Canada's 
train operations are the most comparable foreign operation to those of 
the U.S. and, as explained in more detail in section III.E above, 
following the 2013 catastrophic accident in Lac-M[eacute]gantic, 
Canada, Transport Canada issued a temporary directive requiring at 
least two crewmembers for trains carrying loaded hazardous materials 
tank cars over main track and sidings. That temporary directive was 
then replaced with a mandatory operating rule requiring a minimum of 
two crewmembers for a freight or transfer train carrying one or more 
loaded tank cars of dangerous goods.
    Foreign train operations in developed countries, other than Canada, 
are not comparable for the most part due to differences in train 
lengths, territory, and infrastructure. For instance, a foreign, one-
person freight train operation in an industrial-type railroad servicing 
only one origin and one destination would not be comparable due to the 
complexity of most U.S.-based freight rail operations. Most foreign, 
one-person freight train operations also do not carry out extensive 
interlining or switching with other railroads. Further, many foreign, 
one-person passenger train operations do not have to share track with 
freight operations or operate over highway-rail grade crossings, and 
thus the safety hazards associated with those foreign operations are 
not comparable to those involving U.S. passenger train operations.
    To the extent that commenters believe foreign, one-person train 
operations are relevant, FRA requests that the comments include 
information and data describing the operations. FRA would also 
appreciate comments that explain how the foreign operation is 
comparable to U.S.-based operations and whether the operation would 
need to file a special approval petition under the rule as proposed if 
it was U.S.-based, or whether the operation if it was U.S.-based might 
meet the criteria in one of the exceptions of the proposed rule with or 
without a change to the proposed requirements.

G. Ensuring Safety in the Future

    Since the 2016 NPRM was published, the number of crewmembers on 
each type of train has largely stayed constant, during a period in 
which railroad operations have also returned consistent safety 
statistics. For example, over the five-year period from 2016 to 2020, 
the average rate of FRA-reportable, human-factor-caused accidents/
incidents across industry was 1.05 accidents per million train miles. 
The lowest rate of 0.95 was in 2016; the highest rate was in 2020 at 
1.18 accidents per million train miles. While these consistent safety 
statistics were attained with the overwhelming majority of train 
operations using two or more crewmembers, it is unknown how introducing 
the additional risk factor of a reduction to a one-person crew will 
impact safety without conducting or reviewing a risk assessment for the 
industry or each operation.
    The industry's safety record on one-person train crew operations is 
not well-developed, with few industry participants, and a negligible 
record of information, which precludes FRA from making meaningful data 
comparisons of the safety of one-person train crew operations to 
multiple-person operations. As previously explained above, only a small 
number of short line and regional railroads, and an even smaller number 
of passenger train operations, have established one-person train crew 
operations, and the short line and regional railroads have a dwindling 
number of such operations, from about

[[Page 45581]]

fourteen in 2016 to seven in 2021. Consequently, as the number of such 
operations has dwindled, there is even less data for FRA to consider in 
establishing the industry's one-person train crew safety record.
    Further, those few one-person Class II and III train crew 
operations are not necessarily indicative of what the safety record 
might be on the major Class I freight railroads, which tend to operate 
longer trains, with higher tonnage, for longer distances, and at higher 
speeds than a short line or regional railroad operation. Train crews on 
major Class I freight railroads must generally contend with more 
complexities than typically found on a short line or regional railroad 
operation, such as more than one type of signal system, more than one 
set of railroad operating rules and practices that must be followed 
during the same tour of duty, or higher train traffic density.
    For these reasons, FRA proposes to review each railroad's petition 
for a described operation and to require each railroad that receives 
FRA's approval to conduct a formal, annual review and analysis of the 
FRA-approved train operation(s) with fewer than two crewmembers. This 
will enable FRA to make better safety evaluations and comparisons of 
operations with fewer than two crewmembers in the future.

H. The Proposal Is Complementary to, not Duplicative of, Other 
Regulatory Initiatives

    This proposed rule is complementary 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 by required railroads; \165\ railroad safety risk reduction 
programs; \166\ and the development of fatigue risk management 
programs.\167\ Each of these initiatives will enhance safety, and may 
either aid a railroad in transitioning to an operation with fewer than 
two crewmembers or assist a railroad in identifying hazards and 
mitigating risks associated with those hazards once such an operation 
is established. None of these initiatives nor FRA's regulation on 
Passenger Train Emergency Preparedness, however, focus exclusively on 
the specific hazards and risks associated with reducing the number of 
train crewmembers to fewer than two crewmembers, nor do they 
necessarily require railroads to mitigate any such hazards and risks. 
Further, none of these initiatives establish a structure for FRA review 
of, or allow the public to review, a railroad's plans to reduce crew 
size or require FRA to approve crew size reductions before they can go 
into effect.
---------------------------------------------------------------------------

    \165\ See generally 49 CFR part 236, subpart I; and press 
release in which FRA announces full implementation of PTCPTC (Dec. 
29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \166\ 49 CFR parts 270 and 271.
    \167\ 85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR 
parts 270 and 271 to require certain railroads to develop and 
implement a Fatigue Risk Management Program as one component of the 
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------

1. Positive Train Control (PTC) Systems
    PTC systems must be designed to prevent the following accidents or 
incidents: train-to-train collisions, over-speed derailments, 
incursions into established work zones, and movements of trains through 
switches left in the wrong position,\168\ and therefore the 
implementation of a PTC system helps improve the safety of rail 
operations, including any one-person train operation. However, PTC 
systems do not completely perform all the job functions of a conductor. 
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 how to address a 
particularly difficult operating problem, or help in diagnosing and 
responding to train problems and other exceptional situations; (3) 
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; (4) assist in flagging highway-rail grade 
crossings when necessary after PTC slows or stops a train before 
traversing the crossing or breaking up the train at such crossings to 
avoid blocking them from highway users for extended periods; (5) update 
train consist information arising from the set-out and pickup of cars; 
(6) protect the point, i.e., the leading end of the train movement, 
during shoving or pushing movements that are not protected by PTC, 
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; (7) 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 colliding with on-track equipment and operating through 
misaligned switches; \169\ or (8) assist the train if the PTC system 
fails en route or enters non-PTC territory. Furthermore, the research 
suggests that, because 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. 
Moreover, if the PTC system fails to initialize or fails en route, in 
certain circumstances, the train may still be operated and in the event 
a one-person crew was involved, that sole crewmember would not have the 
benefit of either PTC or a second crewmember.\170\ Thus, while PTC is a 
safety overlay to help prevent certain accidents, FRA's PTC regulations 
do not include the requirements to perform crewmember job functions, 
which are essential to prevent or mitigate other accidents.
---------------------------------------------------------------------------

    \168\ See, e.g., 49 U.S.C. 20157(g)(1), (i)(5); 49 CFR 236.1005 
(setting forth the technical specifications).
    \169\ Restricted speed is a railroad term that provides a 
maximum authorized speed for the train, typically 15 or 20 miles per 
hour, but also requires a train crew to operate at a speed slower 
than that maximum authorized speed so that the train can be stopped 
without colliding with on-track equipment or operating through a 
misaligned switch. Collisions are more likely avoidable if all 
movements are made at a speed slow enough to stop the movement in 
half the engineer's range of vision. Restricted speed is often used 
in yards but may also apply to main track and other types of track 
where a train may be sharing the track with other locomotive or 
train movements. If the maximum authorized speed for a restricted 
speed movement is 15 miles per hour, and the locomotive engineer is 
operating the train at 10 miles per hour, PTC will not stop that 
train from colliding with cars left on-track nor will PTC prevent 
the train from operating through a misaligned switch.
    \170\ See 49 U.S.C. 20157(j); 49 CFR 236.567 and 236.1029.
---------------------------------------------------------------------------

    Likewise, the risk assessment required in FRA's PTC regulatory 
requirements is different than the risk assessment requirements in this 
proposed rule and thus would not be duplicative. For instance, FRA 
requires a railroad to submit a PTC safety plan (PTCSP) and receive PTC 
System Certification \171\ before placing a PTC system into service. 
Although a PTCSP requires a railroad to develop and submit a hazard 
log, risk assessment, and hazard mitigation analysis similar to one 
that would be required in this proposed rule for one-person train crew 
operations, the subject of the PTC risk assessment is different than 
for this proposed rule. The PTCSP is required to address all

[[Page 45582]]

safety-relevant hazards during the life cycle of a PTC system. 
Meanwhile, this proposed rule would require the development of a hazard 
log, risk assessment, and hazard mitigation analysis to evaluate and 
mitigate risks of a one-person train crew. Thus, the proposed rule 
would not duplicate PTC requirements, as the existing PTC regulations 
require a risk assessment of an ``as-built PTC system'' specifically, 
whereas the type of risk assessment proposed in this rule for a train 
operation with fewer than two crewmembers focuses on the entire 
operation, including the factors proposed under Sec.  218.135, such as 
the authorized methods of operation; applicable operating rules and 
practices; hours of operation; qualifications and certifications of 
crewmembers; number, frequency, and makeup of trains involved; route 
and terrain over which trains will be operated; number and types of 
grade crossings; amounts and types of hazardous materials to be 
transported; and characteristics of the geographic areas through which 
trains will operate.
---------------------------------------------------------------------------

    \171\ 49 CFR 236.1015.
---------------------------------------------------------------------------

2. Railroad Safety Risk Reduction Programs
    As codified in 49 CFR parts 270 and 271, FRA requires Class I 
railroads, railroads with inadequate safety performance, and passenger 
rail operations to implement railroad safety risk reduction programs. A 
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of 
risk by identifying and analyzing identified hazards and developing 
strategies to mitigate risks associated with those hazards. In this 
background, FRA is using the term ``railroad safety risk reduction 
programs'' to include both a ``system safety program'' (SSP) that is 
required for certain passenger rail operations \172\ and a ``risk 
reduction program'' (RRP) that is required for a limited number of 
other rail operations.\173\
---------------------------------------------------------------------------

    \172\ 49 CFR 270.3 (requiring the application of the system 
safety rule to certain passenger rail operations).
    \173\ 49 CFR 271.3 (requiring the application of the risk 
reduction program rule to certain rail operations).
---------------------------------------------------------------------------

    Although a railroad safety risk reduction program might address a 
railroad's safety hazards and risks associated with changes in train 
crew staffing, the framework established by these programs neither 
directly addresses the risks associated with reducing train crewmembers 
to fewer than two nor establishes an industry-wide approach.
    First, not every railroad is required to have a railroad safety 
risk reduction program. Indeed, FRA estimates that fewer than 100 
railroads (out of approximately 750 under FRA's jurisdiction) over the 
next 10 years will be required to develop a railroad safety risk 
reduction program.
    Second, even if a railroad is required to have a railroad safety 
risk reduction program through which it identifies the risks associated 
with reducing train crew size to fewer than two crewmembers,\174\ the 
railroad may decide not to implement mitigations to eliminate or reduce 
those specific risks. Parts 270 and 271 permit railroads to prioritize 
risks.\175\ Whether a railroad that is required to have a program 
mitigates risks associated with crew staffing will depend on how the 
railroad prioritizes risks for mitigation and how effectively that 
mitigation would promote continuous safety improvement compared to 
mitigation of other identified hazards and risks. Thus, even if train 
crew staffing is identified as a risk, a railroad may not implement 
mitigations to eliminate or reduce that risk.
---------------------------------------------------------------------------

    \174\ Both the SSP and RRP rules require a railroad to identify 
and analyze ``employee levels'' as part of their risk-based hazard 
management program. 49 CFR 270.103(q)(1) and 271.103(b) introductory 
text and (b)(1), and 49 U.S.C. 20156. Further, a railroad's 
obligation to identify and analyze risks associated with reducing 
train crewmembers to below two would not end after the railroad 
performs its initial risk-based hazard analysis, as both RRP and SSP 
are ongoing programs that support continuous safety improvement. 49 
CFR 270.103(p)(1)(vii) and 271.101(a). For example, a railroad must 
periodically assess its SSP or RRP to determine whether the 
program's goals are being met, and a railroad might identify new 
hazards and risks as part of this review, including those associated 
with crew size. 49 CFR 270.303 and 271.401. RRP and SSP also require 
a railroad to proactively identify hazards and risks associated with 
a reduction in crew size before making the operational change, in 
addition to monitoring operational safety following implementation 
of the new crew size. See 49 CFR 270.103(s) and 271.105, and 85 FR 
9296.
    \175\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard 
management'') and 271.103(b)(3).
---------------------------------------------------------------------------

    Accordingly, while the safety risk reduction program requirements 
may complement this proposed rule, they do not address the need for FRA 
and the railroads to consider and address the safety risks of 
operations utilizing fewer than two crewmembers across the entire 
industry.
3. Fatigue Risk Management Programs
    On June 13, 2022, FRA published a final rule adding a Fatigue Risk 
Management Program (FRMP) to the railroad safety risk reduction program 
requirements in parts 270 and 271.\176\ An FRMP is a comprehensive, 
system-oriented approach to safety in which a railroad determines its 
fatigue risk by identifying and analyzing applicable hazards, and 
developing plans to mitigate, if not eliminate, those risks. Like the 
railroad safety risk reduction program rules, the final rule is part of 
FRA's continual efforts to improve rail safety and will satisfy the 
statutory mandate of Section 103 of the Rail Safety Improvement Act of 
2008.\177\
---------------------------------------------------------------------------

    \176\ 85 FR 83484.
    \177\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------

    Like the railroad safety risk reduction requirements, there is no 
guarantee that any railroad covered by the regulation will use an FRMP 
to address the train crew staffing issue. As with the railroad safety 
risk reduction program rules, a covered railroad must identify fatigue 
hazards, assess the risks associated with those fatigue hazards, and 
prioritize those risks for mitigation purposes. It is possible that 
other fatigue risks, not associated with a decrease in crew size, might 
rank higher, in which case the risk associated with a decrease in train 
crew size might not be promptly mitigated. Further, because the FRMP 
requirements would apply only to those railroads required to comply 
with the railroad safety risk reduction program requirements, an FRMP 
would not be required of every railroad. Thus, like the railroad safety 
risk reduction program rules, the FRMP final rule is complementary to 
this proposed train crew size safety requirements rule and is not 
duplicative.

I. Risk Assessments

    Risk, in simple terms, can be thought of as the possibility of 
something bad happening, and in the context of this rule, the 
possibility of an unsafe event occurring that results in an accident or 
incident. Risk also has an element of uncertainty--meaning the 
probability that the unsafe event will occur and the likelihood of the 
unsafe event resulting in an accident or incident. A certain amount of 
risk is inherent in all transportation activities, including railroad 
operations. Generally, FRA's existing safety regulations address known 
risks in railroad operations (i.e., risks that have been realized and 
have resulted in accidents and injuries). Changes to any existing 
process, operating condition, or even equipment or infrastructure, 
however, may introduce new risks.
    Risks can be systematically reduced by following a risk management 
process. A risk management process is a formal process used to 
identify, evaluate, and eliminate or reduce hazards to within a range 
of acceptability. It is a way to proactively reduce and mitigate risk 
before an accident, injury, or other

[[Page 45583]]

catastrophe occurs. FRA's railroad safety risk reduction program rules, 
discussed above, are examples of the use of risk management tools in 
FRA's existing rail safety regulatory framework. As also discussed 
above, however, FRA's railroad safety risk reduction program rules do 
not specifically mandate that railroads take action to mitigate any 
resulting risk from those hazards associated with changes in crew 
staffing levels.
    Because, as noted previously, with the exception of certain freight 
and passenger operations, railroads have historically operated trains 
with at least two crewmembers, insufficient historical accident and 
incident data exists to demonstrate the potential impacts of crew size 
on rail safety generally, and insufficient historical data exists on 
the impacts of crew size under specific operating scenarios. 
Accordingly, rather than taking a ``wait and see'' reactive approach to 
potential new hazards introduced with changes in crew size, FRA is 
proposing to require railroads to conduct a risk assessment when 
seeking to initiate new train operations staffed with fewer than two 
crewmembers (and railroads seeking to materially modify legacy fewer-
than-two-crewmember operations).
    A risk assessment is a process of identifying new potential 
hazards, analyzing what could happen if a particular hazard occurs, 
estimating the probability of the hazard occurring as well as the 
likelihood of the hazard resulting in an accident or incident, and 
methods to reduce or eliminate the hazard through mitigations (e.g., 
new or modified processes or equipment). To be effective, risks 
assessments must be conducted in an objective manner and as a result, 
standardized risk assessment processes, tools, and other methodologies 
exist in various industries and contexts.\178\
---------------------------------------------------------------------------

    \178\ See e.g., American Railway Engineering and Maintenance of 
Way Association (AREMA), Communications and Signal Manual, Volume 4, 
Section 17--Quality Principles (AREMA Standard); Department of 
Defense Standard Practice: System Safety, MIL-STD-882 (May 11, 
2012); (DOD Standard) Federal Aviation Administration Order 8040.4B, 
Safety Risk Management Policy (May 2, 2017).
---------------------------------------------------------------------------

    As noted above, performing risk assessments, risk management, and 
risk reduction are not new to FRA or the railroad industry. As also 
noted earlier in this preamble, FRA's RRP and SSP rules, as well as 
FRA's PTC rule, require railroads to develop and implement processes 
and procedures that will identify hazards and then mitigate or 
eliminate the risks that result from those hazards. Similarly, in 2007, 
FRA published a ``Collision Hazard Analysis Guide'' (Guide) to assist 
passenger rail operations in conducting collision hazard 
assessments.\179\ FRA based the Guide on the Department of Defense's 
Standard Practice for System Safety (MIL-STD-882) and the hazard 
identification and resolution processes described by the American 
Public Transportation Association's ``Manual for the Development of 
System Safety Program Plans for Commuter Railroads.'' The Guide 
provides a ``step-by-step procedure on how to perform hazard analysis 
and how to develop effective mitigation strategies that will improve 
passenger rail safety.'' \180\ Although the Guide focuses on passenger 
rail collisions, the techniques described in the Guide are also valid 
for evaluating other hazards or safety issues related to any type of 
operating system.\181\
---------------------------------------------------------------------------

    \179\ FRA, U.S. Department of Transportation, Collision Hazard 
Analysis Guide: Commuter and Intercity Passenger Rail Service (Oct. 
2007) (available at https://railroads.dot.gov/elibrary/collision-hazard-analysis-guide-commuter-and-intercity-passenger-rail-service).
    \180\ Id. at 5.
    \181\ See id.
---------------------------------------------------------------------------

    Prior to development and publication of the Guide, FRA relied on 
MIL-STD-882 when promulgating certain aspects of FRA's Passenger 
Equipment Safety Standards (49 CFR part 238).\182\ Part 238 references 
MIL-STD-882 as a formal safety methodology to identify hazards and then 
eliminate or reduce the risks associated with each hazard to an 
acceptable level, when performing required fire safety analyses in 
procuring new passenger equipment and in planning for the safety of 
Tier II passenger equipment operations.\183\ In addition to MIL-STD-
882, FRA has also relied on standards of the American Railway 
Engineering and Maintenance Association (AREMA) when defining the 
requirements for abbreviated risk assessments in FRA's Standards for 
Processor-Based Signal and Train Control Systems and Positive Train 
Control Systems.\184\ Specifically, FRA incorporated AREMA's 
Communications and Signaling Manual (AREMA Manual), Volume 4, Section 
17--Quality Principles. Part 17.3.5 of the AREMA Manual provides a 
recommended procedure for hazard identification and management for 
vital electronic/software-based products and systems used in safety-
critical systems.\185\ Although the AREMA Manual addresses the 
assessment of risk associated with ``products'' developed for use in 
safety-critical systems, the general processes set out in the standard 
can, like the processes in FRA's Guide, be applied to any type of 
system (including the system surrounding operating any train with fewer 
than two person crews).
---------------------------------------------------------------------------

    \182\ 64 FR 25540 (May 12, 1999).
    \183\ 49 CFR 238.5, 238.103, 238.603, 64 FR 25540, 25663, 25670, 
25696 (May 12, 1999).
    \184\ See 49 CFR part 236, subpart H and I.
    \185\ 49 CFR 236.909(d).
---------------------------------------------------------------------------

    In the 2005 final rule codifying FRA's Standards for Processor-
Based Signal and Train Control Systems, FRA acknowledged that it did 
not expect the assessment of risks performed under the AREMA standard 
would prove a product to be ``absolutely safe.'' \186\ Instead, FRA 
indicated that it expected the assessment to provide evidence that the 
risks associated with the product have been carefully considered and 
that steps have been taken to minimize or mitigate the risks.\187\ The 
same rationale applies to FRA's current proposal. The goal of the risk 
assessment process is to ensure accepted hazard analysis processes are 
followed and appropriate mitigation measures are taken to reduce risk 
to an acceptable level. Generally, an acceptable level of risk is 
achieved when it is determined that further risk reduction measures 
will not result in an additional, significant reduction of risk (i.e., 
when the probability of an unsafe event occurring is small and the 
likely severity of an accident or incident resulting from that unsafe 
event is also small). For example, there is a risk that an engineer 
will allow a train to pass a red signal. The resulting hazard is that 
the train will collide with another train that is occupying the track 
past the signal. The probability that this unsafe event will occur is 
based on an analysis of relevant causal factors (e.g., the potential 
for an engineer to be distracted or to lose situational awareness). The 
likelihood of an accident or incident resulting is analyzed based on 
the probability that another train is occupying the track past the red 
signal. Potential mitigation may include processes (e.g., the role and 
tasks of the conductor in calling signals) and equipment and technology 
(e.g., PTC). In this example, these mitigation measures may not 
completely eliminate the hazard (i.e., the potential for a collision). 
However, depending on the operating environment, the risk of the hazard 
(i.e., a collision) occurring may be reduced to an acceptable level. 
For example, some signal systems with PTC as an overlay allow for an 
engineer to pass a red signal to perform certain operations (e.g., 
switching operations) if appropriate railroad operating procedures are 
followed. In such

[[Page 45584]]

situations, the probability of an unsafe event occurring during the 
switching operation may be small and it may be determined that further 
mitigation other than operational procedures and equipment alerts would 
not further reduce the risk.
---------------------------------------------------------------------------

    \186\ 70 FR 11052, 11071 (March 7, 2005).
    \187\ Id.
---------------------------------------------------------------------------

    As noted above, and in more detail in the section-by-section 
analysis of proposed Sec.  218.135, standardized risk assessment 
processes, tools, and methodologies exist not only in FRA's 
regulations, but in other industries and contexts. In this NPRM, FRA is 
proposing a process based on these widely accepted existing standards, 
but tailored to the specific context of this rulemaking.
    FRA has proposed specific content and methodology requirements for 
conducting risk assessments, including defining acceptable and 
unacceptable levels of risk and allowing for both quantitative and 
qualitative analyses. FRA intends the specific content and methodology 
requirements proposed to both ensure that all relevant risks are 
properly identified, evaluated, and addressed, and to provide railroads 
clarity and certainty regarding what level of risk FRA proposes as 
acceptable and what level of risk FRA proposes as not acceptable. Using 
a standardized risk assessment process as proposed should result in 
risk assessments being conducted and documented in a consistent manner, 
enabling railroads to conduct the assessments effectively and 
efficiently, and at the same time, limit the burden on FRA as it 
reviews and evaluates every risk assessment filed. Further, as the 
proposed risk assessment process is consistent with the requirements of 
other FRA regulations (e.g., FRA's Passenger Equipment Safety 
Standards, PTC, SSP, RRP), railroads are able to apply the knowledge 
and skills in preparing risk assessment and hazard analyses for those 
regulations to the risk assessment process this proposed rule would 
require.
    Although FRA is proposing specific content and methodology 
requirements for risk assessments, FRA recognizes that every railroad 
operation is unique and that the technical resources and capabilities 
of railroads vary. Accordingly, FRA is also providing the flexibility 
for railroads to use alternative risk assessment methodologies and 
procedures if those methodologies and procedures provide an accurate 
assessment of the risk associated with the operation. FRA expects that 
the flexibility to develop and use alternative risk assessment 
methodologies and procedures may be used by some Class I railroads with 
sophisticated, technical risk management programs. As proposed, any 
railroad seeking FRA's approval to use such an alternative standard 
will need to demonstrate to FRA that the methodology and procedures 
provide at least as accurate an assessment of risk as the specific 
methodology and processes proposed.

J. Expected Impact on the Safety of Rail Operations and FRA's Proposed 
Review Standard

    FRA expects this proposed rule would ensure that the current 
industry-wide level of rail safety is not eroded by railroads reducing 
crew size below two. This rule would require railroads to objectively 
evaluate and then address safety risks associated with continuing a 
legacy train operation staffed with one crewmember or initiating a new 
operation using fewer than two train crewmembers. FRA's proposed 
petition requirements in Sec. Sec.  218.131 and 218.133 are intended to 
solicit enough information for FRA to make an informed decision whether 
to allow the continuance of a legacy operation or the initiation of a 
new operation. Without this regulation, railroads would not be required 
to consult FRA, nor seek FRA approval, to continue or initiate a train 
operation with fewer than two crewmembers except, to a certain extent, 
those passenger train operations which require FRA's approval to 
implement a passenger train emergency preparedness plan under 49 CFR 
part 239. However, part 239 does not require a railroad to 
comprehensively consider the safety risks associated with a train 
operation. Part 239 only requires consideration of the risks and 
processes involved in responding to emergency situations.
    FRA proposes that its decision to grant or deny a petition would be 
based on whether a railroad submits all required data and information 
and, as applied to legacy operations, whether that data and information 
demonstrates that the operation has historically operated consistent 
with railroad safety, and for proposed new operations, whether the 
railroad submits all required data and information, and additionally 
provides evidence of a properly conducted risk assessment demonstrating 
that the operation will be operated consistent with railroad safety.
1. Legacy Train Operations
    As previously discussed in this background section (III.F.), in 
2021, FRA identified seven Class II and III freight railroads with one-
person train operations and two one-person passenger train operations. 
Although FRA expects that the nine operations it identified as current 
will file for special approval or may otherwise qualify for an 
exception, it is possible that FRA is unaware of some other railroads 
that may be using one-person train crews or that some additional 
railroads may initiate and establish a legacy operation before the 
final rule's effective date.
    FRA expects to approve the continuation of a legacy operation with 
a one-person train crew if a railroad provides a thorough description 
of that operation, has sufficiently assessed the risks associated with 
the operation, and has taken appropriate measures to mitigate or 
address any risks or safety hazards associated with the operation. In 
reviewing legacy operations, this rulemaking provides FRA with the 
opportunity to confirm that each railroad is following an operating 
model that makes rail safety a priority.
    FRA expects that some of these legacy operations do not address 
every FRA safety concern. For example, in the background section 
(III.D.2), FRA identified how the adoption of a one-person train crew 
could degrade safety without considering, for example, how the railroad 
would monitor the use of prohibited electronic devices, or how 
operational concerns may arise, such as the loss of a second 
crewmember's experience during a job briefing. If a railroad does not 
address those issues, FRA may permit the operation to continue with 
special conditions that require the railroad to devise strategies to 
address those safety concerns in a manner that appropriately fits the 
size and scope of the operation. FRA requests comment regarding the 
clarity of the proposed requirements and where FRA should include 
additional guidance or examples for any of the requirements.
2. Proposed New Fewer Than Two Person Operations
    FRA is uncertain about how many petitions for special approval it 
can expect to receive to initiate a new train operation with fewer than 
two crewmembers although, for purposes of the Regulatory Impact 
Analysis, FRA is estimating it will receive two petitions in the first 
year and that number would increase by 25% per year over the 10-year 
analysis. The table below shows the estimated number of new operations 
with fewer than two crewmembers.

[[Page 45585]]



   Estimated Number of New Operations With Fewer Than Two Crewmembers
------------------------------------------------------------------------
                                                          Number of new
                                                           one-person
                         Year                            operations per
                                                              year
------------------------------------------------------------------------
1.....................................................                 2
2.....................................................                 3
3.....................................................                 4
4.....................................................                 5
5.....................................................                 6
6.....................................................                 8
7.....................................................                10
8.....................................................                13
9.....................................................                16
10....................................................                20
------------------------------------------------------------------------

    There are several reasons for this uncertainty. First, based on 
FRA's experience, it appears that during the last five years, Class II 
and III short line and regional freight railroads have reduced the 
number of one-person legacy operations; however, FRA's information may 
be incomplete and there may be more operations that FRA does not know 
about or railroads that are considering initiating such an operation. 
Second, because collective bargaining agreements typically govern crew 
size on Class I railroads, those railroads will need their labor 
organizations to agree to any reductions in crew sizes through the 
collective bargaining process before implementation of a new operation 
with fewer than two crewmembers. Major labor organizations opposed such 
reductions when they challenged FRA's 2019 Withdrawal. Third, passenger 
train operations still need to comply with or seek a waiver from FRA's 
passenger train emergency preparedness requirements in 49 CFR part 239 
but may also find alternative methods that are acceptable to FRA. 
Finally, tourist train operations are the least likely type of 
operation to embrace fewer than two-person train crews given the nature 
of their operations.
    FRA is proposing in Sec.  218.133 that a railroad seeking to 
initiate a train operation with fewer than two crewmembers file for 
FRA's review and approval a petition thoroughly describing the proposed 
operation, including a risk assessment specific to the proposed 
operation. As proposed, the risk assessment requirement is designed to 
ensure railroads conduct a comprehensive, objective assessment of the 
risks of a planned train operation with fewer than two crewmembers. 
Although some level of risk is inherent in all transportation 
activities, risk can be reduced, in some cases to a negligible level, 
through effective operational practices, technology deployment, and 
implementation of mitigating measures.
    This proposed risk assessment would be considered separate from any 
railroad safety risk reduction program required under part 270 or 271, 
and therefore would not be covered by either rule's provision 
protecting certain information from use in litigation proceedings for 
damages. Both these provisions apply only to information compiled or 
collected ``solely'' for the purpose of either part 270 or 271, and 
specifically exclude ``information that is required to be compiled or 
collected pursuant to any other provision of law or regulation.'' \188\ 
Further, FRA's statutory authority for establishing these litigation 
information protections requires FRA to first conduct a study to 
determine whether such protections are in the public interest.\189\ 
While FRA issued the litigation information protection provisions in 
parts 270 and 271 based on such a study, that study did not address 
whether FRA should extend litigation protections to risk analyses that 
were not required to be part of a complete railroad safety risk 
reduction program, such as the risk assessment proposed in this 
rulemaking.
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    \188\ See 49 CFR 270.105(a)(2) and 271.11(a)(2).
    \189\ See 49 U.S.C. 20119.
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    FRA notes that it has statutory discretion to prohibit public 
disclosure under the Freedom of Information Act \190\ (FOIA) of risk 
analyses and risk mitigation analyses it obtains, if it determines that 
the prohibition of public disclosure is necessary to promote public 
safety.\191\ FRA currently does not believe, however, that exercising 
its discretion in this manner would be consistent with the provisions 
of this proposed rule that make petitions and the risk analyses they 
contain available for public comment. Because FRA finds that making the 
petitions and accompanying risks analyses available for public comment 
is critical to ensure transparency of the approval process, FRA 
concludes that protecting them from public disclosure under FOIA is not 
necessary to promote public safety. FRA nevertheless requests public 
comment on whether to exercise its discretion to prohibit the public 
disclosure of the proposed risk assessments under FOIA, as well as 
alternative options that would allow for some disclosure protection but 
still allow for meaningful public comment.
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    \190\ 5 U.S.C. 552 and see 49 CFR part 7 (stating DOT's FOIA 
regulation).
    \191\ See 49 U.S.C. 20118(c) (stating that ``[t]he Secretary may 
prohibit the public disclosure of risk analyses or risk mitigation 
analyses that the Secretary has obtained under other provisions of, 
or regulations or orders under, this chapter if the Secretary 
determines that the prohibition of public disclosure is necessary to 
promote railroad safety'').
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    As proposed, FRA will evaluate a railroad's risk assessment to 
determine whether the assessment:
    1. Accurately identifies all hazards associated with the proposed 
operation (or proposed material modification to an existing operation);
    2. Appropriately categorizes all identified hazards according to 
their risks (likelihood and severity); and
    3. Identifies and provides for the implementation of appropriate 
mitigations measures for identified hazards.
    As discussed in the Risk Assessment section above, FRA does not 
expect that a railroad will prove that a proposed operation is 
absolutely safe. Some level of risk is involved in every transportation 
operation, and every rail operation, even rail operations with two or 
more crewmembers that exist today. However, a railroad's risk 
assessment should provide evidence that risks associated with the 
proposed operation have been carefully considered and that steps have 
been taken to eliminate or mitigate those risks, particularly those 
risks found to have significant potential safety impacts.
    As proposed, FRA will approve a petition only if it finds doing so 
would be consistent with railroad safety. FRA expects to approve a 
petition if the Associate Administrator for Railroad Safety 
independently determines that a railroad's safety case establishes that 
the proposed operation will not result in an unacceptable level of 
risk. In terms of the proposed risk assessment methodology, FRA will 
approve a petition if the Associate Administrator independently 
determines that a railroad's safety case establishes an acceptable 
level of risk generally or an acceptable level of risk under specific 
conditions identified.\192\ An unacceptable level of risk would be a 
level of risk that would make the particular operation inconsistent 
with railroad safety (e.g., a risk that poses catastrophic consequences 
and is likely to happen on more than an improbable basis or a risk that 
poses a negligible consequence but is likely to occur frequently). In 
making such a determination, the Associate Administrator will consider 
all supporting data and information a railroad submits with a petition 
and the accuracy of a railroad's risk assessment and effectiveness of 
mitigating actions identified. If FRA identifies inaccuracies in the 
supporting data or information submitted with a railroad's petition, it

[[Page 45586]]

will not approve the petition. Similarly, if FRA identifies flaws in 
the analysis underlying a railroad's risk assessment, FRA will not 
approve the petition.
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    \192\ See proposed Sec.  218.135(a)(6).
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    FRA acknowledges that the appropriateness of specific mitigating 
measures will depend on the specific context of individual operations 
(i.e., what may be an appropriate risk mitigation measure for one 
railroad's operation, may not be an equally appropriate mitigating 
measure for another railroad's operation). Accordingly, FRA will 
evaluate each petition and supporting risk assessment in the context of 
the specific facts of the proposed operation.
    FRA also recognizes that the risk mitigation measures a railroad 
identifies may not mitigate every identified hazard, but FRA expects 
the mitigation measures to address the identified hazards with the most 
significant potential safety impacts to ensure that the overall level 
of risk of a proposed operation is reduced to an acceptable level. The 
proposed risk assessment requirement is discussed in more detail in the 
section-by-section analysis of Sec.  218.135.
    FRA anticipates that it would grant petitions that build their risk 
assessment on accurate information, provide a properly executed risk 
assessment, and show that hazards not mitigated completely are 
reasonably determined to be acceptable. FRA anticipates that it would 
deny a petition if information or data on which a railroad builds its 
risk assessment is not accurate, the risk assessment is not properly 
executed, or any partially mitigated or unmitigated hazards are 
determined (by either the submitting railroad or FRA) to be generally 
unacceptable or unacceptable under the specific circumstances proposed.
3. Automated Operations
    The rail industry is anticipating a future growth in automation and 
is concerned about how a train crew staffing rule might unnecessarily 
impede the future of rail innovation and automation. As noted in 
section III.D above and further explained below, FRA does not expect 
this rule to impede the future of rail innovation, nor does it expect 
this rule to allow the rail industry to bypass the existing waiver or 
other existing regulatory processes that may be necessary for automated 
operations to be implemented in compliance with FRA's safety 
regulations.\193\
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    \193\ See 49 CFR part 211, subparts C and E (providing FRA's 
rules of practice for waivers and miscellaneous safety-related 
proceedings and inquiries).
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    In March 2018, FRA published a Request for Information (RFI) on the 
future of automation in the railroad industry.\194\ In the RFI, FRA 
sought information from industry stakeholders, the public, local and 
State governments, and other interested parties on the extent to which 
they believe railroad operations can (and should) be automated, as well 
as the potential benefits, costs, risks, and challenges to achieving 
such automation. FRA also sought comment on how it could best support 
the development and implementation of new and emerging automation 
technologies in railroad operations.
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    \194\ 83 FR 13583 (Mar. 29, 2018), Request for Information: 
Automation in the Railroad Industry (Docket FRA-2018-0027).
---------------------------------------------------------------------------

    FRA received over 3,000 separate comments in response to the RFI 
from a wide variety of stakeholders, including: members of the public; 
railroads; railroad industry suppliers and equipment manufacturers; 
individual railroad employees; railroad labor organizations; and State 
and emergency response organizations. The vast majority of public 
commenters seemed to equate automation in the railroad industry with 
full automation (i.e., fully autonomous rail operations and the 
elimination of operating crews). Railroads and industry suppliers, on 
the other hand, acknowledged that automation is an incremental process 
already underway. These commenters noted that existing technologies 
(e.g., PTC technology, automated track inspections) are already 
resulting in increased automated efficiencies and rail safety benefits 
by reducing the potential for human error, the primary cause of 
railroad accidents. At the same time, other commenters, including rail 
labor organizations, urged caution noting infrastructure concerns, the 
unique operating environment in which U.S. railroads operate, and the 
importance of not underestimating the value of skilled railroad 
personnel.
    This NPRM proposes a process that would ensure that railroads 
consider safety and conduct a risk assessment when filing a petition 
for special approval to initiate a new operation staffed with fewer 
than two crewmembers or materially modifying an FRA-approved legacy 
operation, and that FRA will be reviewing and approving those petitions 
when the criteria are met. Additionally, the petition and requirements 
proposed concerning annual railroad responsibilities after receipt of 
special approval would serve to gather data on the relationship between 
crew size and safety. Thus, FRA expects this proposed rule would help 
ensure the safe and secure transportation of people and goods without 
unnecessarily impeding the future of rail innovation and automation.
    Regardless of the number of crewmembers a railroad plans to assign 
to any train operation, a railroad seeking to use rail automation 
technology that does not comply with FRA's existing rail safety 
regulations may file a petition for rulemaking under FRA's regulations, 
or a petition for a waiver of FRA's safety rules. If a railroad seeks 
to use technology that does not comply with FRA's existing regulations 
and the railroad seeks to use a fewer than two-person crew for the 
operation, the railroad could petition FRA for a rulemaking that would 
revise FRA's regulations to permit the use of the technology as 
proposed. A rulemaking petition would need to comply with FRA's Rules 
of Practice (specifically, 49 CFR part 211, subparts A and B) and would 
have to follow the Department's regulatory process in compliance with 
the Administrative Procedure Act.\195\ Alternatively, a railroad could 
petition FRA for a waiver from any applicable regulations as necessary 
and additionally request that FRA grant a special approval under 
proposed Sec.  218.133. Similar to a petition for rulemaking, a waiver 
petition would also need to comply with FRA's Rules of Practice 
(specifically, 49 CFR part 211, subparts A and C) and must include all 
required supporting information, including a safety justification. 
Although a railroad seeking relief from FRA regulations on both an 
issue with this proposed regulation and an issue with any other FRA 
regulation would need to file both a waiver petition and a petition for 
special approval under proposed Sec.  218.133, that request may be made 
in a single document with the appropriate supporting information 
provided. Notably, when granting a waiver, just as contemplated by this 
proposed rule for special approvals under Sec.  218.133, FRA may impose 
additional conditions to ensure safety. In conclusion, if rail 
automation technology does not comply with FRA's existing rail safety 
regulations, there is no prohibition on a railroad filing a waiver 
petition along with a petition for special approval under this rule as 
proposed.
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    \195\ 5 U.S.C. 551-559.

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[[Page 45587]]

IV. Section-by-Section Analysis

Section 218.5 Definitions

    The NPRM proposes to add 11 definitions that will be applicable to 
all of part 218--Railroad Operating Procedures. Part 218 prescribes 
minimum requirements for railroad operating rules and practices. As the 
proposed defined terms are not currently used in the existing 
requirements, the proposed definitions are not expected to change the 
meaning of those requirements.
    The proposed rule defines the term ``Associate Administrator'' so 
that a petition can be directed to the attention of the proper FRA 
official who will need to review it for special approval. A definition 
of ``FTA'' is proposed for 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.
    FRA proposes to define four terms that relate specifically to the 
risk assessment content and procedures requirements in proposed Sec.  
218.135. These terms are: hazard; mishap; risk; and risk assessment. 
The meaning of these terms is discussed in more detail in the analysis 
of Sec.  218.135.
    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 regulations.\196\ 
Switching service means the classification of rail cars according to 
commodity or destination; assembling cars for train movements; changing 
the position of cars for purposes of loading, unloading, or weighing; 
placing locomotives and cars for repair or storage; or moving 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.
---------------------------------------------------------------------------

    \196\ See, e.g., 49 CFR 229.5, 232.5 and 238.5.
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    FRA proposes a definition of ``tourist train operation'' as a short 
form of reference to a ``tourist, scenic, historic, or excursion train 
operation.'' The proposed rule also provides a definition for the 
phrase ``tourist train operation that is not part of the general 
railroad system of transportation'' 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 purpose 
(i.e., there is no freight, intercity passenger, or commuter passenger 
railroad operation on the track). Any freight, intercity passenger, or 
commuter passenger railroad operation on the track would make the track 
part of the general system.\197\ In the section-by-section analysis for 
Sec.  218.127, there is an explanation for why FRA is proposing an 
exception for a tourist train operation that is not part of the general 
railroad system of transportation.
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    \197\ See 49 CFR part 209, appendix A.
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    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 to help 
define what a work train is in Sec.  218.129(c)(2).
    The NPRM proposes a definition of ``train'' that is consistent with 
the way FRA has defined the term in other regulations.\198\ 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 proposed section. The 
proposed definition of train is not intended to contain all the 
exceptions to the crew size and the location of crewmember 
requirements; instead, those exceptions are found in other sections, 
clearly identified as exceptions, in the proposed rule text.
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    \198\ See, e.g., 49 CFR 234.5 (defining ``train'' for grade 
crossing safety standards), 49 CFR 236.1003 (defining ``train'' for 
PTC systems), 49 CFR 238.5 (defining ``train'' for passenger 
equipment safety standards), and 49 CFR 241.5 (defining ``movement 
of a train'' for extraterritorial dispatching requirements). In each 
example, a ``train'' may be made up of one or more locomotives, with 
or without cars. Wording differences in the definition of ``train'' 
between regulations are attributable to the specific structure or 
application of each regulation.
---------------------------------------------------------------------------

Section 218.121 Purpose and Scope

    Proposed paragraph (a) states that the purpose of proposed subpart 
G is to ensure that each train is adequately staffed and has 
appropriate safeguards in place for safe train operations under all 
operating conditions. To ensure adequate staffing, the NPRM prescribes 
minimum requirements for the size of different train crew staffs 
depending on the type of operation, as described in paragraph (b) of 
this section.
    Proposed paragraph (b) provides that subpart G prescribes minimum 
requirements for the size of different train crew staffs depending on 
the type of operation and operating conditions. 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 
operations with fewer than two train crewmembers 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. Proposed paragraph (b) also provides that subpart 
G prescribes minimum requirements for the location of a second train 
crewmember on a moving train, and promotes safe and effective teamwork. 
Moreover, proposed paragraph (b) would expressly allow each railroad to 
prescribe additional or more stringent requirements in its operating 
rules, timetables, timetable special instructions, and other 
instructions.

Section 218.123 General Train Crew Staffing Requirements

    Subject to the exceptions in Sec. Sec.  218.125 through 218.129, 
this section proposes general crew staffing requirements and explains 
the circumstances under which a second crewmember may be located 
outside of the operating cab of the controlling locomotive when the 
train is moving.
    Proposed paragraph (a) requires each railroad to comply with the 
requirements of subpart G and provides the railroad with the option to 
adopt its own rules or practices for implementing these requirements. 
In addition, as proposed in Sec. Sec.  218.129, 218.131, and 218.133, a 
railroad would need to adopt its own rules or practices to operate a 
train with fewer than a two-person crew (e.g., when a mitigating action 
is required to address an identified hazard or that action is not 
required by Federal regulation). As proposed in Sec.  218.121, each 
railroad is free to prescribe additional or more stringent requirements 
as it sees fit. If a railroad or any other person fails to comply with 
subpart G, or the railroad's rules or practices used to ensure 
compliance with the requirements of subpart G, that railroad or other 
person shall be considered to have violated the requirements of subpart 
G and may be subject to an FRA enforcement action. Although this would 
be true even without this paragraph, FRA intends this paragraph to 
remind the regulated community that FRA can take enforcement action for 
noncompliance with either the requirements of subpart G or a railroad's 
rules implementing subpart G.
    Proposed paragraph (b) would require that each train be assigned a 
minimum of two crewmembers unless an exception is otherwise provided 
for in subpart G.

[[Page 45588]]

    Paragraph (c) contains the proposed requirement that, without 
exception, two crewmembers are always required when a train contains 
certain quantities and types of hazardous materials that have been 
determined to pose the highest risk for transportation from both a 
safety and security perspective. The types and quantities of the 
hazardous materials identified in paragraph (c) are those that PHMSA, 
FRA, and TSA, as discussed in section III.E above, have previously 
determined present heightened safety and security risks in rail 
transportation. Accordingly, FRA finds that requiring, without 
exception, a minimum two-person crew to operate such trains is 
justified.
    Proposed paragraph (c)(1) would prohibit the operation of a train 
with fewer than a two-person crew if the train is transporting certain 
hazardous materials making it subject to FRA's securement regulation 
(49 CFR 232.103(n)) if left unattended or if the train is transporting 
one or more car loads of any hazardous material TSA has designated as 
RSSM.\199\ Paragraph (c)(1) would require a minimum of two crewmembers 
for any train that contains twenty (20) or more loaded tank cars or 
loaded intermodal portable tanks of any one or any combination of 
hazardous materials identified in 49 CFR 232.103(n)(6)(i)(B) (i.e., 20 
or more tank car loads or intermodal portable tank loads of any 
combination of Division 2.1 (flammable gas), Class 3 (flammable or 
combustible liquid), or Division 1.1 or 1.2 (explosive) hazardous 
material, or a hazardous substance listed at 49 CFR 173.31(f)(2)).
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    \199\ See section III.E above for a general discussion of the 
heightened safety concerns related to the transportation of the 
identified hazardous materials.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2) would require a minimum of two 
crewmembers for any train that contains one or more car loads of any 
material designated as RSSM as defined in 49 CFR 1580.3. Currently, a 
hazardous material shipment of RSSM can be any one of the following 
three types of shipments: (1) a rail car containing more than 2,268 kg 
(5,000 lbs.) of a Division 1.1, 1.2, or 1.3 (explosive) material, as 
defined in 49 CFR 173.50; (2) a tank car containing a material 
poisonous by inhalation as defined in 49 CFR 171.8, including anhydrous 
ammonia, Division 2.3 gases poisonous by inhalation as set forth in 49 
CFR 173.115(c), and Division 6.1 liquids meeting the defining criteria 
in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard 
zone B in accordance with 49 CFR 173.133(a), excluding residue 
quantities of these materials; and (3) a rail car containing a highway 
route-controlled quantity of a Class 7 (radioactive) material, as 
defined in 49 CFR 173.403.
    The general requirement in proposed paragraph (d) is that a 
crewmember, other than the crewmember operating the train, may be 
located anywhere outside of the operating cab of the controlling 
locomotive when the train is moving under certain conditions. The NPRM 
is written under the premise that the locomotive engineer is the first 
crewmember, i.e., the crewmember operating the train, and is always 
located in the cab of the controlling locomotive when the train is 
moving because that is the only location from which the train can be 
operated unless the controlling locomotive is being operated remotely--
and there is a proposed exception for remote control operations in 
Sec.  218.129.(c)(3).\200\ The second crewmember is typically a 
conductor, under 49 CFR part 242; however, as the locomotive engineer 
could be a certified conductor, it is possible that a second, or 
additional, crewmember could be designated as having a job title other 
than conductor and not require a locomotive engineer or conductor 
certification.\201\ Crewmembers that are not operating the train may 
also include persons who are training to become certified locomotive 
engineers or conductors, or other operations employees assigned as 
crewmembers.
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    \200\ This premise is based on the historical understanding 
that, aside from remote control operations, a train cannot be 
operated without a locomotive engineer in the cab of the controlling 
locomotive, because that is where the controls stand is located. See 
e.g., 49 CFR 229.115 through 229.140, for requirements for 
locomotive cabs and cab equipment.
    \201\ See 49 CFR 240.308 and 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 is calling signals correctly may 
reduce the stress level of the engineer. As FRA explained in the 
background section (III.D.1), it is when employees are under stress and 
overloaded with tasks, that a one-person crew is more likely to lose 
situational awareness and make a mistake, i.e., a human-factor failure.
    Although for safety purposes the optimal location for crewmembers 
is usually in the operating cab of the controlling locomotive when the 
train is moving, FRA recognizes that in certain instances, trains can 
be operated safely when crewmembers are located elsewhere on the train. 
For example, FRA is aware that some operations are designed so that a 
crewmember not operating the train is positioned at the back of the 
train, which can facilitate train movements that require manually 
operating switches at the rear of the train. In other operations, 
railroads may have a crewmember ride in a locomotive that is not the 
controlling locomotive. This proposed rule does not prohibit 
crewmembers that are not operating the train from safely performing 
their duties from somewhere else on or near the moving train.
    In paragraph (d)(1), it is proposed that the normal location of a 
crewmember be on the train except when necessary for that crewmember to 
temporarily disembark. The proposed general requirement is intended to 
prohibit two-person operations where the second crewmember is either 
never on the train or spends significant periods of time disassociated 
from physically being on or near the train. A second assigned 
crewmember that is regularly in a yard tower, for example, would be 
violating this proposed general requirement that only permits 
``temporarily disembarking from the train.'' The relaxation of the 
requirement that a crewmember that is not operating the train be on the 
train is intended to permit only 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 may be moved 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, there may be a train that cannot easily 
be moved to pick up a conductor that disembarked to throw a switch, and 
the conductor may be transported in a motor vehicle, or on a following 
train, several miles away where the conductor can then safely board the 
assigned train. Conversely, if a railroad's practice is to stop the 
train after passing more than one possible place 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. Regarding proposed paragraph 
(d)(1), intercity passenger and

[[Page 45589]]

commuter operations would not be expected to make changes to an 
operation with a locomotive engineer at the control stand and a second 
crewmember that normally travels in any locomotive or car on the moving 
train, other than when duties, such as switching, require otherwise.
    Proposed paragraph (d)(2) contains the requirement that, when a 
crewmember that is not operating the train is anywhere outside of the 
operating cab of the controlling locomotive when the train is moving, 
the crewmember and the locomotive engineer in the cab of the 
controlling locomotive can directly communicate with each other. 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. 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. Communication must also be two-
way, so that the locomotive engineer can initiate direct communication 
with the other train crewmember(s).
    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.
    Regarding proposed paragraph (d)(2), intercity passenger and 
commuter locomotives do not always have room for a crewmember that is 
not operating the train in the locomotive control compartment, but a 
second crewmember may be necessary to assist during 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. Railroads with passenger 
train operations should look closely at the operating duties that 
crewmembers, not located in the cab, can perform when any crewmembers 
can directly communicate with the locomotive engineer in the cab of the 
controlling locomotive. For example, before leaving each station stop, 
a passenger 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 are an effective 
practice by expert teams.
    Proposed paragraphs (d)(3) and (4) also contain general 
requirements that apply when a crewmember that is not operating the 
train is anywhere outside of the operating cab of the controlling 
locomotive when the train is moving. The proposed paragraphs require 
that these crewmembers must be able to continue to perform the duties 
assigned even when the crewmembers are outside of the operating cab of 
the controlling locomotive when the train is moving and, under these 
circumstances, the location of the crewmembers must not violate any 
Federal railroad safety law, regulation, or order. These proposed 
general requirements are catch-all provisions intended to ensure that 
neither a railroad nor a crewmember concludes 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 side of a rail car when 
protecting a move, or on the ground either throwing switches or 
inspecting the train.
    Finally, under 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 crewmember on a stopped train, as FRA suggests that this is an 
issue that should be left for each railroad to decide, except to the 
extent addressed by another regulation--namely, FRA's passenger train 
emergency preparedness regulation (49 CFR part 239).

Section 218.125 General Exceptions to Train Crew Staffing Requirements

    This proposed section is the first of three sections allowing for 
operational exceptions to the proposed requirement for assigning a 
minimum of two crewmembers on each train specified in Sec.  218.123(b) 
and the proposed location requirements for a crewmember that is not 
operating the train found in Sec.  218.123(d). In the discussion for 
each proposed paragraph, FRA explains why these proposed exceptions 
present an acceptable level of risk leading FRA to conclude that, 
generally, the operations would be consistent with railroad safety. 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.  218.123(c). This proposed section is intended to 
cover those general exceptions that apply to freight, passenger, or 
tourist train operations. FRA requests comments for other similarly 
situated operations that it should consider excepting and whether a 
mechanism should be included in the rulemaking to allow future 
exceptions to be added through a petition process.
    In this proposed section, two general exceptions are identified. 
The exceptions are identified by the shorthand descriptions: (1) helper 
service and (2) lite locomotive. These shorthand descriptions are used 
as headings at the beginning of each paragraph.
    Paragraph (a) proposes to except trains performing helper service 
from the proposed two-person crew minimum requirement. 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 so the helper locomotive(s) can provide additional power that 
will assist the train's locomotive(s) in pushing or pulling it. The 
proposed paragraph clarifies that helper service includes the time 
spent traveling to or from a location where assistance is provided. FRA 
does not believe this type of operation poses a great risk to railroad 
employees or the general public because cars are not attached and a 
railroad has

[[Page 45590]]

an incentive to not dispatch a helper service train from a great 
distance away from the train needing assistance. As with all these 
proposed exceptions, a railroad may decide that a certain helper 
service operation is complex and that more than one crewmember should 
be assigned to the helper service train.
    Proposed paragraph (b) would exempt a lite locomotive or a lite 
locomotive consist from the two-person crew requirement based on a 
similar safety rationale as provided for the proposed helper service 
exception. That is, when a locomotive or a consist of locomotives is 
not attached to any piece of equipment, or attached only to a caboose, 
FRA expects that there is less risk to railroad employees and the 
general public. Lite locomotives are mainly used to move 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 to take more 
than one locomotive to a repair shop for servicing. The proposed 
paragraph includes a definition of ``lite locomotive'' 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 FRA does not intend this exception 
to cover a passenger train operation containing either single or 
multiple DMUs or EMUs. FRA has further clarified DMU/EMU exceptions for 
passenger trains in proposed Sec.  218.127.

Section 218.127 Specific Passenger and Tourist Train Operation 
Exceptions to Crew Staffing Requirements

    This proposed section permits four specific passenger and tourist 
train operation exceptions to the proposed requirement for assigning a 
minimum of two crewmembers on each train. FRA expects these proposed 
exceptions would avoid any potential disruptions in passenger train 
service and tourist train operations from the proposed rule without a 
significant effect on safety.
    Proposed paragraph (a) excludes a tourist train operation that is 
not part of the general railroad system of transportation from the 
proposed two-person crew requirement. In Sec.  218.5, FRA defined 
``tourist train operation'' as a tourist, scenic, historic, or 
excursion train operation. FRA also defined a ``tourist train operation 
that is not part of the general railroad system of transportation'' as 
a tourist, scenic, historic, or excursion train 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.\202\ Because these tourist train 
operations are off the general system, there is no risk that a train 
could collide with a train carrying hazardous materials or an intercity 
or commuter passenger train. Proposed paragraph (a) would exclude non-
general system tourist train operations from the two-person crew 
requirement regardless of whether the operations are ``insular'' or 
``non-insular.'' FRA does not exercise jurisdiction over tourist train 
operations that are off the general system and ``insular.'' A tourist 
train operation is insular ``if its operations are limited to a 
separate enclave in such a way that there is no reasonable expectation 
that the safety of any member of the public except a business guest, a 
licensee of the tourist operation or an affiliated entity, or a 
trespasser would be affected by the operation.'' \203\ If the tourist 
train operation is ``non-insular,'' it is possible that the train could 
collide with a motorist at a highway-rail grade crossing. However, 
these ``non-insular'' operations would generally involve relatively 
short tourist trains operating at slow speeds, thereby reducing the 
probability of an accident with a motorist or even a serious 
derailment. FRA exercises jurisdiction over non-insular tourist train 
operations; however, FRA does not require that all of its safety 
requirements apply to such operations.\204\ Because FRA has a statutory 
obligation to consider financial, operational, or other factors that 
may be unique to tourist operations, FRA is careful to consider those 
factors in determining whether any particular rule will apply to 
tourist train operations.\205\ Over the five-year period from 2016 
through 2020, there were four FRA-reportable accidents that non-insular 
tourist railroads off the general system reported as caused by human 
factors compared to 16 such accidents by tourist railroad operations on 
the general system. Thus, FRA is balancing the relevant factors, 
particularly the financial burden to prevent an FRA-reportable accident 
that averages less than once per year on all non-insular tourist 
railroads, in proposing to exclude a tourist train operation that is 
not part of the general railroad system of transportation from the 
proposed two-person crew requirement. FRA requests comments regarding 
this proposed exception, and what information, if any, supports that 
FRA should place greater emphasis on any particular factors.
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    \202\ 49 CFR part 209, appendix A (describing the extent and 
exercise of FRA's safety jurisdiction).
    \203\ Id.
    \204\ Id. (describing that FRA's rules that specifically apply 
beyond the general system to such operations will apply, such as 
FRA's rules on accident reporting, steam locomotives, and grade 
crossing signals, as will all of FRA's procedural rules, and the 
Federal railroad safety statutes themselves).
    \205\ 49 U.S.C. 20103(f).
---------------------------------------------------------------------------

    In paragraph (b), the proposed rule would allow a passenger or 
tourist train operation with fewer than two crewmembers if the train's 
cars are empty of passengers and passengers will not board the train's 
cars until the crew conducts a safety briefing on the safe operation 
and use of the train's exterior side doors. The proposed exception 
would not apply just because a passenger or tourist train happens to be 
empty of passengers, as FRA is proposing a safety briefing requirement, 
consistent with FRA's passenger equipment safety standards,\206\ to 
help ensure passengers board, and later exit, the train safely. 
Passenger or tourist trains might need to be moved without passengers 
for repairs or for the convenience of the railroad, such as to position 
rolling equipment for future train movements. This exception is 
proposed because FRA views these movements without passengers as 
generally not needing a passenger conductor, who would normally ride in 
a passenger car and not in the locomotive cab. FRA requests comments on 
this exception, especially if it would require changes to passenger or 
tourist operations at the point of origin for a train or commenters 
have information suggesting the exception would be an unsafe practice.
---------------------------------------------------------------------------

    \206\ See e.g., 49 CFR 238.135(a) (requiring a crew safety 
briefing prior to a train's departure that identifies each 
crewmember's responsibilities relating to the safe operation of the 
train's exterior side doors).
---------------------------------------------------------------------------

    FRA expects that the safety concerns associated with these empty 
passenger or tourist train operations are lower than for trains loaded 
with passengers because accidents cannot directly result in injury or 
fatality of a passenger. Therefore, the proposed rule would allow 
railroads to determine adequate safeguards to ensure that an empty

[[Page 45591]]

passenger train operated by a one-person train crew is safe. FRA does 
not expect this proposed rule to encourage those railroads that operate 
with a minimum of a two-person crew on empty passenger or tourist 
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 does not 
perform safety functions. On passenger or tourist 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 until a safety briefing is conducted, a second 
crewmember is not needed to address any passenger's safety concerns. On 
the other hand, if passenger or tourist 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.
    Proposed paragraph (c) contains an exception to the two-person crew 
general requirement for a passenger or tourist 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 explained 
above, a DMU or EMU is a locomotive that is also a car that can 
transport passengers. These self-propelled cars may be coupled together 
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 deciding whether to approve an 
emergency preparedness plan, FRA would consider the physical 
characteristics of the territory and how the operation may 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. FRA expects a trained second crewmember would provide 
valuable assistance in emergency situations where an evacuation could 
be complicated for passengers. Thus, FRA would likely not approve the 
emergency preparedness plan, and the exception to the two crewmember 
rule proposed here would not apply, if the physical characteristics of 
the territory or the equipment, or both, suggest passengers may not be 
safely evacuated in an emergency situation under the plan without a 
second crewmember's assistance.
    In the proposed paragraph (c) 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 operations, are not subject 
to 49 CFR part 239, as the passenger train emergency preparedness 
regulation excludes ``[t]ourist, scenic, historic, or excursion 
operations, whether on or off the general railroad system.'' \207\ 
Therefore, general system and non-general system 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 train operations 
subject to 49 CFR part 239.
---------------------------------------------------------------------------

    \207\ 49 CFR 239.3(b)(3).
---------------------------------------------------------------------------

    Proposed paragraph (d) provides an exception from the two-person 
crew requirement for a rapid transit operation in an urban area 
connected with the general railroad system of transportation under 
certain conditions. The proposed exception clarifies that a rapid 
transit operation in an urban area means an urban rapid transit system. 
For the exception to apply, 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 operation 
must be temporally separated from any conventional railroad operations, 
meaning that the rapid transit operation in an urban area is strictly 
time-separated from conventional operations. The biggest safety concern 
with 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 would help ensure that the excepted rapid 
transit operations could not potentially collide with heavier, 
conventional trains. A temporally separated urban rapid transit 
operation on the general system is required to obtain an FRA-approved 
waiver from all applicable FRA regulatory requirements demonstrating an 
acceptable level of safety, so FRA would have assurances that 
sufficient measures are in place so the operation can be conducted 
safely on the general system.\208\ The second condition is that there 
is a Federal Transit Administration (FTA) approved and designated State 
Safety Oversight (SSO) Agency that is qualified to provide safety 
oversight, while the third condition is that the operator has an FTA/
SSO-approved Public Transportation Agency Safety Plan in accordance 
with 49 CFR parts 673 and 674. The second and third conditions that 
must be met relate to the fact that these rapid transit operations in 
an urban area on the general system may be subject to the FTA's 
jurisdiction. FRA does not want to assert jurisdiction over an 
operation where FTA is already asserting jurisdiction.
---------------------------------------------------------------------------

    \208\ See 49 CFR part 211, appendix A, section V ``Waivers That 
May Be Appropriate For Time-Separated Light Rail Operations''.
---------------------------------------------------------------------------

Section 218.129 Specific Freight Train Exceptions to Crew Staffing 
Requirements

    This proposed section provides four exceptions to the minimum two 
crewmember requirement for freight trains.
    Proposed paragraph (a) would exclude certain unit train loading and 
unloading operations commonly referred to as ``mine load-out'' or 
``plant dumping operations.'' As proposed, this exception would apply 
to certain low speed, ``assembly line'' unit train loading or unloading 
operations that take place on tracks which are temporarily made 
inaccessible from the general system of transportation during the 
operation. The loading or unloading for these operations takes place 
while

[[Page 45592]]

the train is moving, and FRA proposes to allow the train to operate at 
no more than 10 mph during the loading or unloading process to qualify 
for the exception. FRA proposes to require that the track be made 
inaccessible during these loading or unloading operations, which can be 
accomplished by placing a derail at a safe distance within the plant, 
rail yard, customer's facility, or other location where the operation 
takes place. By making the track temporarily inaccessible, the 
operation can prevent incursions into the operation area by other 
rolling equipment, as well as prevent the operated train from 
unintentionally entering onto the general system. During these types of 
operations, FRA proposes to prohibit any duties that would require a 
second crewmember which, for example, would include the operation of 
hand-operated switches, filling out paperwork, or calling out signal 
indications; thus, the one-person train crew would not be distracted by 
these types of additional duties. Further, these loading or unloading 
operations are normally overseen by a person, either in a tower or on 
the ground, who can provide oversight into whether the cars are being 
loaded or unloaded properly, and ensure that the operation is safely 
progressing. If the operation has such a person providing oversight, 
the exception proposes that the person must have the capability of 
communicating with the locomotive engineer operating the train. FRA 
could not identify any recent FRA-reportable accidents involving this 
type of operation where a railroad employee's act or omission was 
identified as contributing to the cause of the accident. Thus, because 
these operations occur in a controlled environment, at low speeds, 
without traditional work for a second crewmember to do, and appear to 
have a good safety record, FRA proposes that these types of operations 
be excepted from the proposed two train crewmember requirement.
    Proposed paragraph (b) would require that each railroad that 
implements an operation, described as an exception in paragraph (c) of 
this section, must have certain operating rules or practices that are 
consistent with railroad safety. These specific proposed requirements 
are based on FRA's statement in the background section, explaining that 
FRA would expect to approve the continuation of a freight operation if 
it met certain characteristics INRD used to describe its one-person 
train crew operation. The first of these specific requirements in 
proposed paragraph (b)(1) is that a one-person train crewmember remain 
in the locomotive cab during normal operations and may leave the 
locomotive cab only in case of an emergency affecting railroad 
operations. A one-person operation is a greater safety risk if the one-
person crew will be expected to routinely get off and then climb back 
on the locomotive. A railroad can arrange for switches to be lined for 
the one-person train operation and for other operational issues to be 
handled by other railroad personnel that would simplify the operation 
for a one-person crew.
    Proposed paragraph (b)(2) would require that the railroad have 
operating rules or practices requiring a one-person train crewmember to 
contact the dispatcher whenever it can be anticipated that radio 
communication could be lost, unless the railroad has technology or a 
protocol established to monitor the train's real-time progress. For 
example, based on the railroad's experience, it should be aware of the 
locations where a train is likely to lose radio communication, such as 
in a tunnel or in certain mountainous or remote territory. When a one-
person train crew conveys the information to the dispatcher, the 
dispatcher can anticipate the length of the likely communication loss 
and act accordingly. FRA does not propose that a one-person train 
crewmember contact the dispatcher for anticipated radio communication 
losses when technology or other protocols establish a method of 
monitoring the train's real-time progress. For example, a GPS tracking 
device on the lead locomotive could be used to monitor the train's 
real-time progress when communication is lost. FRA also proposes 
allowing a railroad to establish a protocol that accomplishes real-time 
monitoring of a one-crewmember train's progress. FRA has not proposed 
such a requirement for train crews with two or more crewmembers because 
additional crewmembers could follow emergency protocols in case of 
incapacitation of another crewmember but, without at least one 
additional crewmember that is not operating the train, the dispatcher 
would be the person who would need to recognize that emergency measures 
are necessary.
    Proposed paragraph (b)(3) would require that if the railroad cannot 
monitor the train's real-time progress, the railroad must have a method 
of determining the train's approximate location when communication is 
lost with a one-person crew. In case of an emergency, the railroad 
should have an established method for narrowing down the approximate 
location of the train so that it can send emergency responders or 
operational supervisor observers to monitor the train's progress. As in 
proposed paragraph (b)(2), the intent is to address incapacitation of a 
one-person train crew. Although it would be best to always know the 
exact location of the train, the size and scope of an operation may 
suggest that knowing the approximate location of the train is 
consistent with railroad safety.
    Knowing the real-time progress of a one-person crewmember 
operation, or at least its approximate location, is necessary when 
performing search-and-rescue operations. In proposed paragraph (b)(4), 
FRA would require that the railroad establish a protocol for 
determining when search-and-rescue operations must be initiated when 
all communication is lost with a one-person train crew. FRA is 
concerned that a one-person train crewmember could be incapacitated 
without a second train crewmember available to call for emergency first 
responders. For example, if a one-person crewmember fainted, the 
alerter would stop the train and there would not be an accident for the 
public to notice or report. Without a second crewmember or a search-
and-rescue initiation protocol, the incapacitated crewmember could be 
left on the train indefinitely without any emergency medical 
assistance.
    Proposed paragraph (b)(5) would require that a one-person train 
operation's lead locomotive be equipped with an alerter as defined in 
49 CFR 229.5 and that the one-person train crewmember must test that 
alerter to confirm it is working before departure. Although 49 CFR 
229.140 permits some exceptions to the requirement for a working 
alerter on each locomotive, this NPRM would not permit those exceptions 
when a railroad is using a one-person freight train crew under this 
section. Without an alerter on the lead locomotive, a one-person train 
crew could become incapacitated with the train moving, and the train 
would continue to operate down the track indefinitely without another 
crewmember who could apply the emergency brake. In contrast, with an 
alerter, the train would be stopped with an emergency brake application 
after a designated period of inactivity.
    Proposed paragraph (b)(6) would require that the dispatcher confirm 
with a one-person train crewmember that the train is stopped before 
conveying a mandatory directive by radio transmission as required in 49 
CFR 220.61. FRA defines a mandatory directive as ``any movement 
authority or speed restriction that affects a railroad

[[Page 45593]]

operation.'' \209\ Although 49 CFR 220.61 requires that mandatory 
directives conveyed by radio not be received and copied by an employee 
operating the controls of moving equipment, there is no separate 
requirement for the dispatcher to confirm with a locomotive engineer 
that a train is stopped. That is because most trains have two or more 
crewmembers and a conductor could write down the mandatory directive 
while the locomotive engineer is operating the train. This proposed 
requirement would further ensure the safety of the conveyance of 
mandatory directives by radio transmission. In circumstances where the 
one-person crewmember cannot safely stop the train to copy the 
mandatory directive, it would be expected that the one-person 
crewmember and the dispatcher would discuss where or when the train can 
be safely stopped so that the mandatory directive can be conveyed. A 
dispatcher could convey important or emergency information to the one-
person crewmember by radio outside of the mandatory directive process.
---------------------------------------------------------------------------

    \209\ 49 CFR 220.5.
---------------------------------------------------------------------------

    Proposed paragraph (b)(7) would require that a one-person train 
crewmember will have a working radio on the lead locomotive and a 
redundant, electronic device appropriate for railroad communications as 
permitted in 49 CFR part 220, subpart C. FRA does not currently require 
a working radio in the controlling locomotive of every train,\210\ and 
because a two-person crew has the capability to operate the train with 
the conductor on another locomotive in the consist, current 
requirements permit ``communications redundancy'' by means of a working 
radio on another locomotive in the consist and do not mandate another 
means of a working wireless communications device that can be used in 
the controlling locomotive.\211\ As explained in the background 
section, FRA's requirements for train operations in the event of a 
communication equipment failure on the controlling locomotive en route, 
in 49 CFR 220.38, were written with the expectation that one crewmember 
can operate the train while a second crewmember communicates with the 
dispatcher from a second locomotive that has a working radio, but this 
workaround would not be available to a one-person crew. For this 
reason, FRA proposes this requirement because it is essential to safety 
that the one-person crew have a way to communicate with the dispatcher 
or other railroad personnel without leaving the controlling locomotive. 
To comply with the proposed requirement, one option is that a railroad-
supplied electronic device could be used as a redundant form of 
communication if the lead locomotive's radio were to fail en route.
---------------------------------------------------------------------------

    \210\ 49 CFR 220.9.
    \211\ 49 CFR 220.9(a).
---------------------------------------------------------------------------

    Except for trains transporting hazardous materials of the types and 
quantities described in Sec.  218.123(c), proposed paragraph (c) 
provides the specific freight train exceptions that would apply to 
small railroads, work trains, and remote control operations.
    Proposed paragraph (c)(1) contains two specific freight train 
exceptions that would only apply to certain operations of small 
railroads (i.e., railroads with less than 400,000 annual employee work 
hours). The first exception would apply to a small railroad operation 
involving a train no longer than 6,000 feet, operating at a maximum 
authorized speed of 25 mph, and operating over limited grade. The 
second exception would apply to a small railroad operation with a 
maximum authorized speed of 25 mph, but for which a second crewmember, 
who can directly communicate with the engineer in the cab of the 
locomotive, is intermittently assisting the train's movements.
    FRA is proposing to limit these exceptions to small railroads 
because the operations of these railroads are generally less complex, 
and thus pose less risk, as compared to the operations of larger 
railroads, leading FRA to conclude that the proposed exceptions 
generally present an acceptable level of risk. For example, small 
railroads typically have much less dense traffic levels than larger 
railroads and small railroad crews generally operate over the same 
territory day after day on routine schedules. Even slow speed 
operations on larger railroads do not share these same general 
operating characteristics (i.e., larger railroads typically have more 
dense traffic levels, operate longer trains, and use crews that operate 
over different territories with varying characteristics on a routine 
basis). Accordingly, a low speed operation on a larger railroad would 
present a higher level of risk than a low speed operation on a small 
railroad. Additionally, in limiting these exceptions to small 
railroads, FRA is providing additional relief to small businesses in 
the railroad industry, consistent with FRA's Policy Statement 
Concerning Small Entities in 49 CFR part 209, appendix C.
    The first proposed small railroad exception applies to operations 
that take place at speeds not exceeding 25 mph, over track with less 
than 1 percent grade over 3 continuous miles or 2 percent grade over 2 
continuous miles, and with trains that do not exceed 6,000 feet in 
length. In FRA's experience, freight railroads with fewer than 400,000 
total employee work hours annually 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. Generally, the potential consequences of accidents increase 
as train speed increases. Most small freight railroads maintain their 
track to no greater than Class 2 track standards, which allow freight 
trains to be operated at speeds no greater than 25 mph.\212\ As 
proposed, a small freight railroad that maintains its track to better 
than Class 2 track standards could file a special approval petition to 
operate at higher speeds.
---------------------------------------------------------------------------

    \212\ 49 CFR 213.9.
---------------------------------------------------------------------------

    As proposed, the exception in Sec.  218.129(c)(1)(i) would apply 
only to small railroad operations over territory with limited grade. 
Specifically, FRA proposes to limit the exception to operations over 
track segments with an average grade of ``less than 1 percent over 3 
continuous miles or 2 percent over 2 continuous miles.'' This proposed 
grade threshold is consistent with grade limitations in other FRA 
regulations.\213\ Because many small railroad operations are excepted 
from operating with a two-way end-of-train device,\214\ but those 
devices are essential for the safety of a one-person train operation 
over territory with a heavy grade to perform brake tests or make an 
emergency brake application, FRA proposed to limit this exception. FRA 
requests comments on whether a final rule should include a two-way end-
of-train device option for those small railroad operations that operate 
over heavy grades or whether there is an alternative option to address 
this safety concern.
---------------------------------------------------------------------------

    \213\ See e.g., 49 CFR 232.407(a)(1) (defining ``heavy grade'' 
as related to the requirement for operations to use end-of-train 
devices) and 49 CFR 240.231(c) (allowing movements over track with 
limited grade without a pilot in other than joint operations).
    \214\ 49 CFR 232.407.
---------------------------------------------------------------------------

    A proposed maximum train length requirement is appropriate for this 
small railroad operation exception to address safety concerns with 
trains blocking crossings. Again, this would be a minimum requirement, 
and a small freight railroad could certainly require two or more train 
crewmembers if the operation's safety would be compromised by using 
only one person.

[[Page 45594]]

    Blocked crossings are a safety concern for various reasons, and 
have recently led Congress to require that FRA establish a blocked 
crossing portal to collect information, perform outreach to 
communities, support collaboration in the prevention of incidents at 
highway-rail grade crossings, and assess the impacts of blocked 
crossings.\215\ Local emergency responders and other highway users can 
be significantly delayed if a railroad operation with a one-person 
train crew cannot plan a safe place to stop the train without blocking 
grade crossings. Planning a safe place to stop the train is typically 
considered a conductor's job, but with only one crewmember, that one 
crewmember must decide. If a second train crewmember is available, it 
is much easier for two crewmembers to separate a train and unblock the 
crossing than leaving that task to a one-person crew. A one-person 
crew, with no additional railroad personnel to help, would first have 
to secure the train with hand brakes before attempting to unblock the 
crossing; \216\ and, a failure to properly secure the train could 
result in a runaway train. For this reason, FRA does not want the 
additional safety risk of a one-person crew leaving the locomotive cab 
except in case of an emergency affecting railroad operations, as 
required in proposed paragraph (b)(1) of this section, and does not 
consider a blocked crossing to be an emergency under that proposed 
requirement. The train length requirement is necessary to ensure a 
train operated under this proposed exception is less likely to block 
one or more grade crossings in a way that is unduly disruptive to the 
communities the train passes through. The proposed train length 
limitation also increases the likelihood the one-person crew could get 
dispatcher permission to move the train to unblock a crossing, as 
moving a longer train could be more difficult given the location of 
other crossings, signals, or other physical or railroad features. This 
additional requirement should still provide great flexibility to short 
line railroads because a train that is 6,000 feet would be over a mile 
long and have approximately 85 to 92 cars.
---------------------------------------------------------------------------

    \215\ The Infrastructure Investment and Jobs Act, Public Law 
117-58 (Nov. 15, 2021), sec. 22404.
    \216\ 49 CFR 232.103(n).
---------------------------------------------------------------------------

    The second proposed small railroad operation exception applies to 
small operations of railroads with fewer than 400,000 total annual 
employee work hours that do not exceed 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 that is 
working with a locomotive engineer as a unit that remains in close 
contact. The proposed exception in paragraph (c)(1)(ii) applies when a 
freight railroad with fewer than 400,000 total employee work hours 
annually assigns a second crewmember that has the flexibility to travel 
separately from the train and 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 conducting switching service when the train enters a yard 
or customer's facility. The second train crewmember and the locomotive 
engineer in the cab of the controlling locomotive must also have a 
direct way of communicating with each other. Such communication is 
essential to holding any required job briefings in which train 
crewmembers 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 at 49 CFR part 220). Direct communication 
means that the train crewmembers have the capability to communicate 
with one another without going through an intermediary, such as a 
dispatcher. With direct communication, either the locomotive engineer 
or the second crewmember can request assistance from the other 
crewmember and expect to receive a timely response. As these operations 
are conducted at relatively low speeds, under conditions where the one-
person crew on board the train is intermittently assisted, and when the 
crewmembers are in direct communication with each other, FRA expects 
that the second crewmember would play a critical role in improving the 
safety of the operation, even if the person is not always on board or 
observing the moving train.
    Proposed paragraph (c)(2) would exempt work train operations from 
the two-person crew requirement. ``Work train operations'' 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 in 49 CFR 
232.407(a)(4), in a regulation requiring end-of-train devices; and, as 
in that rule, the 4,000 trailing tons or less threshold is intended to 
provide operational flexibility for this proposed requirement on 
railroads, especially smaller railroads.\217\ 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.
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    \217\ 62 FR 278, 282 (Jan. 2, 1997).
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    FRA expects 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. However, FRA 
expects operational complexities to arise with a work train with more 
than 4,000 trailing tons so that a second crewmember would be extremely 
beneficial for safety purposes. The proposed exception for work trains 
engaged in maintenance and repair activities on the railroad includes 
the time the work train is traveling to or from a work site. FRA seeks 
comments on the range of safety risks posed by work trains and the 
4,000 trailing tons limitation, including the potential cost to 
railroads.
    Proposed paragraph (c)(3) 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 have 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 has a remote control 
transmitter, and the crewmembers alternate controlling the RCL when the 
RCL is near that crewmember. This ``pitch and catch'' arrangement is 
more

[[Page 45595]]

like having two independent, one-person crews who can do all the duties 
of both a locomotive engineer and a conductor.
    Although RCL operations are best utilized for switching services, a 
railroad may need to move an RCL from one location to another where the 
RCL can be more efficiently used. FRA is aware that some railroads 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 with increased complexity beyond the known 
acceptable limitations previously acknowledged by the industry. For 
example, the proposed exception in includes the limitations in 
paragraph (c)(3)(v) that a ``train does not contain more than 20 
multilevel cars, e.g., autorack cars, regardless of whether they are 
loaded or empty [and] [a]ny continuous block of more than five 
multilevel cars must be placed at the rear of the train.'' The reason 
for these proposed limitations on RCL operations are that multilevel 
cars employ cushioning devices that act as shock absorbers to protect 
the automobiles that are the cargo, especially during switching 
operations; however, these cushioning devices create challenging train 
handling characteristics and are not suitable for RCL operations in 
numbers greater than the proposed limitations. This NPRM reflects 
limitations, previously discussed in the 2016 NPRM, that reflect 
guidance accepted by industry stakeholders.\218\
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    \218\ 81 FR 13947 (docketing US DOT/FRA guidance letters at 
https://www.regulations.gov/document/FRA-2014-0033-0002).
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    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 that 
RCL operations are already restricted to 15 mph,\219\ FRA did not 
anticipate that RCL operations would expand beyond main track terminal 
operations. While FRA currently does not believe that RCL operations 
that are so limited need a distance restriction, FRA would appreciate 
any comments on this issue.
---------------------------------------------------------------------------

    \219\ 49 CFR 229.15(a)(14).
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Section 218.131 Continuance of Legacy Train Operations Staffed With a 
One-Person Train Crew

    The purpose of this proposed section is to provide a way for legacy 
one-person train operations to continue after the effective date of a 
final train crew size safety requirements rule until FRA can review the 
safety of the operation. FRA is proposing to define a legacy, one-
person operation as one that a railroad established at least two years 
before the effective date of a final rule on train crew size safety 
requirements. Without at least two years of one-person train crew 
operations, a railroad would not have established an accident/incident 
safety record of a reasonable length on which FRA could base any 
determination of the level of safety the operation provides. For a 
railroad to have an operation ``established at least two years 
before,'' FRA means that during that two-year period, an operation must 
occur at regular intervals under a set of defined procedures or 
conditions. FRA understands that a railroad may substitute a multi-
person train crew for the one-person operation occasionally but, if the 
circumstances allow for the one-person operation, the railroad will 
typically use the one-person train crew. If a railroad did not conduct 
one-person train crew operations regularly, even when the procedures or 
conditions were met, the existence of a legacy operation is 
questionable. FRA expects that railroads with potential legacy 
operations will submit comments on their particular factual 
circumstances so that FRA can consider the impact the proposed rule 
might have on the regulated community wishing to establish legacy 
operations. Accordingly, FRA requests comments on this issue.
    FRA requests comment on the proposed two-year requirement for 
establishing a legacy, one-person train operation. FRA recognizes there 
may be other ways to demonstrate the existence of an established legacy 
operation such as total number of operating hours or rail miles 
operated. For example, a railroad that operates a one-person train once 
per week for two years might have fewer operating hours or rail miles 
than another railroad that operates a one-person train multiple times 
per week over a single year. For this reason, railroads with any type 
of legacy operation are encouraged to comment on the proposed rule and 
describe whether FRA would need to revise proposed Sec.  218.131 so 
that the railroad's current operation could be considered a legacy 
operation. Still another option is that FRA could establish a specific 
date (e.g., January 1, 2021) by which a fewer than two-person operation 
must be established to be considered a legacy operation under this 
rule. FRA also requests comment on other potential criteria that should 
be required, if any, to establish a legacy operation.
    FRA is proposing to prohibit the continuance of legacy one-person 
freight train operations that transport the hazardous materials of the 
types and quantities described in Sec.  218.123(c) and, per proposed 
paragraph (a) of Sec.  218.131, that prohibition would apply as of the 
effective date of a final rule. Thus, to the extent a legacy one-person 
freight train operation may continue, it is proposed that it must do so 
without transporting the hazardous materials of the types and 
quantities described in Sec.  218.123(c).
    Proposed paragraph (a) would prohibit a railroad from continuing a 
legacy one-person train operation beyond 90 days after the effective 
date of a final rule if the railroad failed to file a special approval 
petition containing a description of the operation. Hence, each 
railroad that establishes a one-person train operation, for at least 
two years before the effective date of a final rule, would need to 
decide whether it wants to continue the operation beyond 90 days after 
the effective date of a final rule; if it does, the railroad will be 
required to file a special approval petition, unless the operation is 
covered under one of the proposed exceptions in Sec.  218.125, Sec.  
218.127, or Sec.  218.129. It is proposed in paragraph (a) that legacy 
train operations that are excepted under Sec. Sec.  218.125 through 
218.129 will be permitted to continue without the need to file a 
special approval petition. For those legacy, one-person train 
operations that file a petition for special approval under the proposed 
rule, the railroad may continue the operation unchanged beyond 90 days 
after the effective date of a final train crew size safety requirements 
rule, unless FRA issues a disapproval decision or attaches special 
conditions to the approval of the petition per Sec.  218.137.
    Proposed paragraph (b) contains a list of the minimum information 
requirements for a railroad's special approval petition requesting 
continuance of a legacy, one-person train operation. Proposed paragraph 
(b)(1) requires information about the primary person at the railroad 
who can be contacted about the petition. The remaining 14 numbered 
items listed under proposed paragraph (b) are intended to solicit an 
accurate description of the operation, the hazards present, the 
mitigating measures taken to improve safety, and the railroad's 
description of how it determined the operation was safe to implement.
    Paragraph (b)(2) proposes a requirement for a railroad that wants 
to continue a legacy one-person train operation to identify the 
location of that

[[Page 45596]]

operation. FRA proposes to require each railroad to provide the 
location of the legacy operation it wants to continue with as much 
specificity as can be provided as to industries or communities served, 
and track segments, territories, divisions, or subdivisions operated 
over. Although not required, FRA would appreciate receiving 
documentation describing any prior operations, including their 
locations, with fewer than two crewmembers that the railroad may have 
utilized in the past. For example, documentation could show that a 
railroad used to run a one-person train operation for 3 days per week 
for 5 years without incident. That kind of information would show the 
extent of the operation and the safety record.
    In consideration of the proposed location description requirement 
in paragraph (b)(2), a railroad's request for continuance of a legacy 
train operation staffed with a one-person train crew must identify the 
current parameters of the operation's location and should not expand 
the parameters based on plans for future expansion. A railroad that 
cannot provide records kept in the normal course of business to support 
a continuing operation should consider submitting affidavits in support 
of the existence and extent of the one-person train operation. Lacking 
a submission containing that type of evidence, the railroad would be 
relying on FRA to initiate an investigation to confirm the operation's 
location. If a railroad fails to provide adequate documentation of an 
operation to be continued, and FRA's investigation does not find 
adequate support of its existence, the request for continuance will be 
denied and the railroad will need to file a petition for special 
approval to initiate a train operation with fewer than two crewmembers 
per the petition requirements in Sec.  218.133.
    Proposed paragraphs (b)(3) through (7) and (10) are sufficiently 
descriptive that further analysis is unnecessary for those paragraphs. 
The required information is intended to assist FRA in reviewing the 
hazards and risk of the operation, in lieu of requiring the railroad to 
conduct a risk assessment.
    Proposed paragraph (b)(8) would require a railroad with a legacy 
one-person operation to state in its petition for special approval 
whether the one-person operation hauls hazardous materials of any 
quantity and type, and the approximate percentage of carload traffic in 
the one-person operation that is hazardous materials. A one-person 
operation that does not haul hazardous materials would certainly 
present less risk than one that does, all else being equal. Considering 
other issues related to the operation's size and scope, understanding 
the quantity and type of hazardous materials hauled will help FRA 
evaluate the risks of the legacy one-person operation. In the 
background section, FRA explained that it would expect to approve the 
continuation of a freight operation if it met certain characteristics 
INRD used to describe its one-person train crew operation, including 
that 70 percent or more of the railroad's carload traffic is non-
hazardous materials. FRA proposes that a railroad approximate the 
percentage of carload traffic in the one-person operation that is 
hazardous materials in its petition as it should be included as a 
factor in determining the risk posed. FRA does not view 30 percent as 
the upper limit for hazardous materials carload traffic in a one-person 
legacy operation, and FRA is not proposing any upper limit. FRA's 
concern is how to consider the hazards and risk of hazardous materials 
in the total safety of the operation, which is an issue that can be 
evaluated with the other proposed requirements for a petition in this 
section. Further, commenters to a petition for special approval can 
help illuminate the hazards and risk.
    Proposed paragraph (b)(9) is intended to solicit information about 
whether any limitations are placed on a person operating as a one-
person train crew. FRA expects that some railroads will limit a one-
person train crew by establishing a maximum number of miles or hours 
the person may work during a single tour of duty. It is also possible 
that a railroad operating a legacy operation may have established a 
fatigue mitigation plan even though there is no current Federal 
requirement to do so. FRA expects that it would be more likely to grant 
a petition if a 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 fatigue and sleep disorders. The 
proposed petition could include an explanation for the rationale behind 
the limitation to show that it is part of the railroad's effort to 
ensure that the train operation would be consistent with railroad 
safety.
    Proposed paragraph (b)(11) would require a detailed description of 
any technology that is used to perform tasks typically performed by a 
second crewmember or that prevents or mitigates the consequences of 
accidents. The technologies described must be already installed and 
operational, with all FRA approvals as necessary, so that the 
functionality and impact of the technology on the operation are 
understood and can be accurately accounted for by FRA in its decision. 
FRA does not intend this regulation to provide a forum for a railroad 
to gain approval for use of new technologies that are not already in 
use. As explained in the background section, railroads that want to use 
leading-edge rail automation technology should petition for a waiver of 
FRA's safety rules.
    Proposed paragraph (b)(12) would require that each railroad with a 
legacy one-person operation must already have or add certain rules or 
practices that apply to the one-person train crew operation, but do not 
apply to train crew operations with two or more crewmembers. These 
specific proposed requirements are based on FRA's statement in the 
background section explaining that FRA would expect to approve the 
continuation of a freight operation if it met certain characteristics 
that INRD used to describe its one-person train crew operation. As 
these requirements are also proposed for the specific freight train 
exceptions to the two-person crew requirement in Sec.  218.129(b), the 
section-by-section analysis for that proposed requirement is applicable 
here and will not be repeated.
    Proposed paragraph (b)(13) would require a railroad's petition to 
include a disabled-train/post-accident protocol that quickly brings 
railroad employees to the scene of a disabled train or accident unless 
the railroad is conducting a passenger train operation that is required 
to comply with the passenger train emergency preparedness requirements 
in 49 CFR part 239. In multiple places in the background section, it 
was explained that without a second crewmember to take mitigation 
measures, a one-person train crew could be slower to respond to 
emergencies than a two-person crew but that the railroad could be as 
effective by implementing a disabled-train/post-accident protocol. FRA 
does not currently require freight railroads to adopt and comply with a 
disabled-train/post-accident protocol, although FRA anticipates that 
some legacy freight operations already maintain the equivalent within 
their own rules and practices. Thus, for purposes of continuing a 
legacy one-person freight operation, FRA proposes to require each 
railroad to submit such a protocol that it has implemented when filing 
its petition. FRA expects that some railroads already have such a 
protocol in place and others may need to develop one. Such a proposed 
protocol must describe the role and responsibilities of

[[Page 45597]]

the one-person train crewmember and any other railroad employees, 
including supervisors, with responsibility to address a disabled train 
or an accident. For instance, some railroads may have operational 
facilities along the route taken by the one-person freight train 
operation that employ personnel that can be dispatched to help a 
disabled train or respond to an accident. Other railroads may have 
utility workers or other operating employees that travel by motor 
vehicle to a disabled train to perform operational tasks or mechanical 
repair work typically performed by a second crewmember. A train may 
also be considered disabled because the one-person crewmember's hours 
of service expires, and the railroad then needs to retrieve and replace 
the crewmember. In this context, FRA expects that an adequate protocol 
would broadly address any concern that disables a train, whether it be 
caused by a track washout or other severe weather event, mechanical 
breakdown, significant operational delay, accident, or other 
circumstances that prevent the train from moving. Typical operational 
delays, such as one train waiting in a siding for another to pass, 
would not be considered a disabled train event. In addition, the 
proposed protocol must also describe any logistics and the railroad's 
expected response times. The reasonableness of the logistics and 
expected response times of each operation will depend on the scope of 
the operation and the potential impact on the public.
    Proposed paragraph (b)(14) would require a petition for special 
approval to include five (5) years of accident and incident data for 
the operation as identified in paragraph (b)(2) of this section, or at 
least the accident and incident data for the operation from the date 
the operation was established if the operation was established between 
2 to 5 years before the effective date of a final rule. Although FRA 
requires railroads to report these accidents/incidents under 49 CFR 
part 225, FRA cannot accurately determine from that reported 
information which, if any, reportable accidents/incidents are 
attributable to a railroad's one-person train operation. FRA expects 
that each railroad will have more information about its own accidents/
incidents and can flag the data that applies to the one-person train 
operation it is petitioning for special approval. The reference in the 
proposed requirement to paragraph (b)(2) of this section is intended to 
have the railroad narrow the requested data to the location of the 
continuing operation that the railroad has identified in its petition. 
As proposed, FRA does not want to receive accident/incident data unless 
it pertains to the one-person train operation(s) the railroad's 
petition is addressing.
    Proposed paragraph (b)(15) is a catch-all provision which serves as 
a reminder to railroads that they may submit any other information 
describing protections implemented to support the safety of the one-
person train operation that the railroad wants to continue after FRA's 
proposed deadline passes. FRA expects that some railroads would have 
completed a risk assessment, a safety analysis, or compiled a safety 
data report before implementing the legacy one-person train operation 
that the railroad would now want to continue. To the extent that the 
railroad is willing to share that information with FRA, FRA would like 
to receive it. Such information would offer assurance that the railroad 
carefully considered safety issues before implementation and the 
availability of such information in the petition is expected to be 
favorably received.
    Proposed paragraph (c) would specify that FRA may request any 
additional information, beyond what is provided in the petition, that 
it deems necessary. FRA does not expect to routinely request additional 
information when a railroad provides the minimum required information 
listed in paragraph (b). However, FRA may need information clarifying 
what is provided or FRA may have follow-up questions when the 
information provided in the petition raises additional safety concerns.

Section 218.133 Special Approval Petition Requirements for Initiation 
of Train Operations Staffed With Fewer Than Two Crewmembers

    This proposed section addresses the requirements for initiation of 
a train operation staffed with fewer than two crewmembers that is not 
otherwise prohibited or permitted by the other requirements of subpart 
G. For instance, except for operations permitted under Sec. Sec.  
218.125 through 218.131, proposed paragraph (a)(1) prohibits a railroad 
from conducting a train operation with fewer than two crewmembers 
unless it receives special approval under subpart G.
    Proposed paragraph (a)(2) addresses the additional general 
requirements for passenger railroads seeking to begin train operations 
with fewer than two crewmembers. Because passenger railroads must 
comply with the existing regulatory requirement to adopt and comply 
with a written emergency preparedness plan approved by FRA under 49 CFR 
part 239,\220\ proposed paragraph (a)(2) would require that a passenger 
railroad seeking to begin train operations with fewer than two 
crewmembers obtain special approval under subpart G and additionally 
obtain FRA's approval of either: (1) a passenger train emergency 
preparedness plan under part 239 for the operation; or (2) a waiver 
from the part 239 emergency preparedness plan requirement.\221\ If a 
passenger railroad chooses to request a waiver under 49 CFR part 211, 
proposed paragraph (a)(2)(ii) allows the railroad to petition for both 
a waiver under part 211 and special approval under Sec.  218.133 in the 
same filing. Because the number of crewmembers assigned to a train will 
affect a railroad's part 239 emergency preparedness plan for that 
operation, it is appropriate for a passenger railroad to submit one 
filing that addresses both regulatory requirements.
---------------------------------------------------------------------------

    \220\ 49 CFR 239.101.
    \221\ 49 CFR part 211, subpart C, contains the required 
processes and procedures for submitting a waiver request to FRA.
---------------------------------------------------------------------------

    Proposed paragraph (b) contains the minimum petition requirements 
for a railroad to request FRA's approval to initiate a train operation 
with fewer than two crewmembers. FRA expects that a petition meeting 
these minimum requirements will contain sufficient information for FRA 
to determine whether the operation is consistent with railroad safety.
    Proposed paragraphs (b)(1) through (14) would require essentially 
the same minimum requirements for a new operation special approval 
petition as FRA is proposing for a railroad's special approval petition 
requesting continuance of a legacy one-person freight train operation 
in Sec.  218.131(b)(1) through (14). The differences between these 14 
paragraphs in the new operation and legacy operation proposed petition 
requirements are contextual in that a new operation cannot be initiated 
until the railroad has obtained FRA's approval to initiate the 
operation as proposed, while a railroad petitioning for FRA approval of 
a legacy operation may continue its operation while FRA is considering 
its petition. Given these similarities, for more background on proposed 
paragraphs (b)(1) through (14) of this section, please see the 
discussion of paragraphs (b)(1) through (14) of proposed Sec.  218.131.
    The significant difference between the filing requirements for a 
new operation versus a legacy operation is paragraph (b)(15) of each 
relevant section. For a legacy operation, proposed paragraph (b)(15) of 
Sec.  218.131 is a catch-all

[[Page 45598]]

provision which makes clear that in addition to the information and 
analysis required by paragraphs (b)(1) through (14) of the section, a 
railroad may submit any other relevant information to support its 
petition. For new operations that have not yet been implemented with 
fewer than two-person crews, FRA proposes a catch-all provision in 
paragraph (b)(16) of Sec.  218.133, instead, and the additional 
requirement of a risk assessment for the proposed new operation in 
paragraph (b)(15). The proposed risk assessment requirement is 
discussed in detail below in the section-by-section analysis of Sec.  
218.135.

Section 218.135 Risk Assessment Content and Procedures

    Proposed Sec.  218.135 contains the minimum proposed requirements 
for a railroad's risk assessment required under subpart G. Generally, 
the goal of a risk assessment is to assess risk in an objective manner 
by following a decision-making process designed to systematically 
identify hazards, assess the degree of risk associated with those 
hazards, and based on those assessed risks, identify and implement 
measures to minimize or mitigate the risks to an acceptable level. In 
the context of this rulemaking, a risk assessment is the process of 
determining, either quantitatively or qualitatively, the level of risk 
associated with a proposed train operation staffed with fewer than two 
crewmembers, including mitigating the risks to an acceptable level. In 
this NPRM, FRA is proposing a process specific to analyzing the risks 
of train operations with fewer than two assigned crewmembers. While the 
proposed process and methodology are taken from existing standards in 
transportation and other industries, they are tailored to the specific 
context of this rulemaking.\222\
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    \222\ In the Background section under ``Risk Assessments,'' 
above, FRA explains that these proposed standards are largely based 
on standards established by the Department of Defense and AREMA, or 
FRA in the context of other current rail safety requirements.
---------------------------------------------------------------------------

    FRA is proposing that a railroad's risk assessment be required to 
identify and account for the risks associated with: (1) the overall 
operating environment and all operating conditions associated with the 
proposed operation; and (2) all functions the proposed operation would 
require to be performed by a crewmember and/or equipment involved in a 
train's operation that may affect the safety of the operation. As 
proposed, Sec.  218.135(a) sets the minimum standards for the content 
and analysis requirements for the required risk assessment. As 
proposed, however, paragraph (a) would allow a railroad to use 
alternative risk assessment methodologies and/or procedures if approved 
by the Associate Administrator.
    Specifically, proposed paragraph (a) would require a railroad's 
risk assessment to contain six elements: (1) a complete description of 
the proposed operating environment; (2) a list and description of all 
functions, duties, and tasks associated with the operation of a train 
as proposed, performed by the crewmember, other railroad employee(s), 
or equipment, including at a minimum, any function performed; (3) a 
description of the allocation of all functions, duties, and tasks to 
the one crewmember, other railroad employee(s), or equipment; (4) a 
hazard analysis of train operation functions, duties, and tasks; (5) a 
risk matrix that classifies the severity and likelihood of each 
partially mitigated or unmitigated hazard; and (6) a risk report of the 
proposed train operation staffed with fewer than two crewmembers 
documenting the basis for acceptability of all partially mitigated or 
unmitigated hazards.
    Understanding the specific operating conditions under which a train 
crew with fewer than two crewmembers would be required to operate is 
critical to identifying potential hazards and the risks associated with 
those hazards. Accordingly, paragraph (a)(1) requires a complete 
description of the operating environment, including, at a minimum: all 
authorized methods of operation; \223\ applicable operating rules and 
practices; hours of operation; qualifications and certifications of the 
crewmembers; the number and frequency of trains involved; the tonnage, 
length, and make-up of trains involved; the route and terrain over 
which the trains will be operated (e.g., maximum grade, sight 
distances); number and types of grade crossings involved; the amount 
and types of hazardous materials that would be transported; and the 
characteristics of the geographic areas through which the trains will 
operate (e.g., population density, proximity to environmentally 
sensitive areas). FRA recognizes that every railroad operating 
environment, and every railroad operation, is unique. Accordingly, in 
proposed paragraph (a)(1)(xi), individual railroads may need to 
identify and describe additional aspects of any proposed operation that 
are relevant to providing a full and complete description of the 
specific operating environment and conditions of its proposed fewer 
than two-person train crew operation. As explained below, the risk 
assessment's hazard analysis will use this information to identify 
hazards for each operation, under all conditions and operating modes, 
including when there is a failure of components, equipment, or systems.
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    \223\ The phrase ``all authorized methods of operation'' refers 
to how a train has authority to move. The following are some of the 
different methods of operation used by railroads: timetable; 
mandatory directive; signal indication; or any form of absolute or 
manual block system.
---------------------------------------------------------------------------

    Proposed paragraphs (a)(2) and (3) would require a risk assessment 
to contain a list and description of all functions, duties, and tasks 
associated with the operation of a train with fewer than two 
crewmembers that are performed by the one crewmember, other railroad 
employee(s), locomotive equipment or components, or operating and 
control systems; and identification of the allocation of those 
functions, duties, and tasks. Just as understanding the specific 
operating environment in which a fewer than two-person crew would be 
required to operate is critical to any risk assessment process, 
identifying the specific functions, duties, and tasks associated with 
operating in that environment is also critical, as is identifying the 
``division of labor'' in performing those functions, duties, and tasks. 
Paragraph (a)(2) requires a railroad to identify and describe all 
functions, duties, and tasks performed by the crewmember, other 
railroad employee(s), or equipment (e.g., (1) to prepare a train for 
operation (any pre-departure function); (2) during a train's operation 
(any en route function); or (3) once a train has stopped moving 
(whether because the train has reached its destination or stops en 
route, for any reason). Pre-departure functions would include, at a 
minimum, inspecting and preparing a train for operation (e.g., 
obtaining all track bulletins, orders, and manifests; managing the 
train consist, including train make-up; obtaining and ensuring the 
accuracy of consist paperwork, including hazardous materials 
documentation; arming and testing an end-of-train device, as required, 
and performing necessary brake tests; releasing the handbrakes; and, 
reviewing, interpreting, or responding to forms, bulletins, or 
advisories). During a train's operation, the functions would include 
operating and controlling the train (e.g., applying and releasing of 
brakes; modulating the throttle; responding to and acknowledging 
alarms; interacting with non-crewmembers e.g., dispatcher, roadway 
workers; and, responding to emergencies or unexpected events (e.g., a 
trespasser on the tracks). Once a train has stopped, the functions 
would include securing the equipment and communicating with the 
dispatcher.

[[Page 45599]]

    Once all functions, duties, and tasks are identified and described 
under proposed paragraph (a)(2), proposed paragraph (a)(3) would 
require a railroad to identify the allocation of those functions, 
duties, and tasks to the crewmember, other railroad employee(s), or 
equipment. In other words, ``who is responsible for doing what'' must 
be identified. As the allocation of functions, duties, and tasks is 
completed, and it is confirmed whom or what performs specific 
functions, duties, or tasks, a railroad must also confirm whether there 
are additional measures, checks or procedures to confirm that the 
function, duty, or task is completed and performed correctly. This 
confirmation, and an understanding of what verification and validations 
steps are in place, are a critical input to the hazard analysis 
required by proposed paragraph (a)(4). For example, before a train 
departs, a single crewmember may be responsible for managing train 
make-up and obtaining a copy of the train consist and other relevant 
documentation (e.g., hazardous materials documentation). A railroad may 
also have in place a process to verify the accuracy of the consist and 
other documentation by use of automatic equipment identification 
readers or other technology. While a train is in motion, the single 
crewmember may be required to operate the train by modulating the 
throttle and applying the brakes as necessary, but those human actions 
may be supplemented by computerized control systems (e.g., PTC systems, 
or systems designed to maximize fuel efficiency by controlling train 
speed).
    Using the information gathered in response to paragraphs (a)(2) and 
(3), proposed paragraph (a)(4) requires a railroad to complete a hazard 
analysis of train operating functions, duties, and tasks for operations 
with fewer than two crewmembers. A ``hazard,'' as defined in Sec.  
218.5, is an existing or potential condition that can lead to an 
unplanned event or series of events (i.e., mishap) that can cause an 
accident or incident; injury, illness, or death; damage to or loss of a 
system, equipment, or property; or environmental damage. Identifying 
relevant hazards and preparing a hazard analysis are fundamental to the 
process of assessing risk. A hazard analysis is performed to identify 
potential hazards for purposes of eliminating, or at least mitigating, 
those hazards. A hazard analysis will assign a qualitative or 
quantitative severity and probability of occurrence to any identified 
hazard causing (or with the potential to cause) an undesirable event. 
In the context of a risk assessment under this paragraph, a hazard 
analysis must be designed to reasonably ensure that any hazards 
associated with any functions, duties, or tasks involved in the train 
operation are identified, so that suitable mitigating actions can be 
identified and implemented to ensure the safety of the operation. A 
hazard analysis must also document what hazards were identified, and 
the results of an analysis of those hazards (i.e. the extent to which 
each hazard can be mitigated or eliminated, and any relevant mitigation 
measures).
    As proposed, a hazard analysis must consider the entire state of 
the proposed fewer than two crewmember operation (i.e., all data and 
information identified under proposed paragraphs (a)(1) through (3)), 
and potential failures or malfunctions (including human error and 
equipment, component, or system failures). Each function, duty, or task 
potentially represents a hazard, if done incompletely or improperly.
    As proposed, paragraph (a)(4) would require a hazard analysis to 
include four elements: (1) a hazard log, consisting of a comprehensive 
description of all hazards associated with the proposed train 
operation; (2) an assessment of each hazard in terms of the severity 
(i.e., a measure of the worst-credible mishap resulting from the 
hazard); (3) an assessment of each hazard in terms of probability of 
occurrence, based on the likelihood of the sequence of events that 
could lead to the hazardous condition; and (4) a hazard mitigation 
analysis outlining the sustainable actions and associated components, 
equipment, systems or processes that are put in place to reduce or 
eliminate the probability or severity, or both, of each hazard.
    A hazard log is a way to track all hazards associated with the 
operation (e.g., a table). The purpose of a hazard log is to identify 
associated risks, list mitigations, and document when all required 
mitigations have been successfully implemented. As proposed in 
paragraph (a)(4)(i), a hazard log is a mechanism for recording and 
tracking all safety relevant hazards (i.e., a log of the potential 
adverse consequences of what can go wrong when a safety-critical or 
safety-related function is not completed or completed improperly) when 
preparing a train for operation, during a train's operation, or once a 
train has stopped moving. Hazard identification may include fault tree 
analysis, brainstorming, failure mitigation checklists, or other 
processes to identify hazards. Expert knowledge, training material, 
equipment design requirements, and other information can be used to 
support the preparation of a hazard log.
    A hazard log must include sufficient supporting documentation to 
demonstrate that a robust process was used to identify hazards. A 
hazard log may include hazard sheets documenting how the hazard was 
identified, who identified the hazard, the probability and severity of 
each identified hazard, and how each hazard will be mitigated. If any 
identified hazard is not fully mitigated, the hazard log must contain 
documentation demonstrating the partially mitigated or unmitigated 
hazard remaining and the potential consequences of that remaining 
hazard.
    A hazard log is a living document that must be maintained and 
updated to reflect the current operating environment. If new hazards 
are identified, the hazard log must be updated. Similarly, if 
operational changes are made in a way that introduces additional risk, 
the hazard log must be updated. Changes to a hazard log must be 
effectively managed, e.g., through a configuration management process. 
A configuration management process is the practice of analyzing changes 
in the operating environment and systematically documenting those 
changes, and the impact of those changes, on the risk assessment and 
hazard log. An effective configuration management process must be used 
to determine when and how often a risk assessment needs to be reviewed 
and re-validated.
    FRA proposes that a railroad identify each hazard in its hazard 
analysis in terms of both severity and probability. The severity of an 
identified hazard is a measure of the hazard's consequences (i.e., an 
estimation, or potentially a calculation, of a hazard's consequences). 
As proposed, a hazard's severity is measured as the worst potential 
credible mishap resulting from the hazard (i.e., the worse-case 
possible end condition that could result from a hazard). Severity 
analysis is usually performed qualitatively but may be performed 
quantitatively with supporting historical data. Proposed paragraph 
(a)(4)(ii) would require a railroad's hazard analysis to assess and 
categorize the severity of each identified hazard as follows: (1) 
catastrophic; (2) critical; (3) marginal; or (4) negligible. These 
proposed severity categories are derived from the well-established 
severity categories used in AREMA's Communications and Signaling 
Manual, but FRA is proposing to define each category in terms of 
railroad operations and in terms of other FRA regulations. Table 1 in 
this section proposes to define each severity category as follows:

[[Page 45600]]

    Catastrophic: A hazard that results in a fatality, irreversible 
significant environmental damage, or significant monetary loss, and 
accidents and incidents required to be reported to FRA telephonically 
under 49 CFR 225.9.
    Critical: A hazard that results in a significant injury (as defined 
in 49 CFR 225.5), reversible significant environmental damage, or 
reportable monetary loss, and accidents and incidents that are not 
required to be telephonically reported under 49 CFR 225.9, but are 
still FRA-reportable under 49 CFR 225.19.
    Marginal: A hazard that results in minor injuries (i.e., injuries 
that are not significant as defined in 49 CFR 225.5), reversible non-
significant environmental damage, or monetary loss.
    Negligible: A hazard that results in no injuries, no environmental 
damage, or equipment or railroad structure damages not requiring 
repair.
    FRA requests comments on these proposed categories.
    Proposed paragraph (a)(4)(iii) would require the hazard analysis to 
assess each identified hazard in terms of probability (i.e., the 
likelihood of occurrence of an event or a sequence of events that could 
lead to the hazard). A hazard's probability level may be calculated 
quantitatively (e.g., using failure rates or accident and incident 
data). Alternatively, a hazard's probability level may be calculated 
qualitatively (e.g., based on a mix of historical data, equipment 
reliability data, and expert knowledge). Regardless of how calculated, 
for purposes of subpart G, a hazard's probability level must be 
assessed in the context of the probability levels identified in Table 2 
of this section. As proposed, the five categories of probability are: 
(1) frequent; (2) probable; (3) occasional; (4) remote; and (5) 
improbable. Like the proposed severity categories, these proposed 
probability categories are derived from the AREMA standard and, in 
paragraph (a)(4)(iii), FRA is proposing to define each category in 
terms of railroad operations and in terms of other FRA regulations. 
Consistent with the AREMA standard, FRA is proposing to allow the 
categorization of a hazard's probability through either qualitative or 
quantitative analysis. Qualitatively, in Table 2, FRA proposes to 
define each probability category (estimated per 1,000 operating hours) 
as follows:
    Frequent: Likely to occur frequently.
    Probable: Likely to occur several times.
    Occasional: Likely to occur once, but not several times.
    Remote: Unlikely, but possible, to occur.
    Improbable: So unlikely that it can be assumed occurrence may not 
be experienced.
    Quantitatively, Table 2 proposes to define each probability 
category in terms of the probability of a hazard occurring per 1,000 
operating hours as follows:
    Frequent: A hazard having a probability of occurring more often 
than once every 1,000 operating hours.
    Probable: A hazard having a probability of occurring once between 
every 1,000 operating hours and every 100,000 operating hours.
    Occasional: A hazard having a probability of occurring once between 
every 100,000 operating hours and every 10,000,000 operating hours.
    Remote: A hazard having a probability of occurring once between 
every 10,000,000 operating hours and every 1,000,000,000 operating 
hours.
    Improbable: A hazard having a probability of occurring less than 
once every 1,000,000,000 operating hours.
    A hazard's probability should be based on all relevant information 
gathered under proposed paragraphs (a)(1) through (3), and the 
appropriate probability level for any identified hazard is the 
likelihood of the occurrence of that hazard at any given time.
    The assessment of each hazard's severity and probability is 
essential to any risk assessment, and as proposed, necessary to 
complete the risk assessment matrix and risk report that paragraphs 
(a)(5) and (6) would require.
    Paragraph (a)(4)(iv) contains the final proposed component of a 
hazard analysis, a hazard mitigation analysis. As proposed, a 
railroad's hazard mitigation analysis would be required to identify 
sustainable mitigating actions and circumstances (e.g., associated 
components, equipment, systems, or processes) that are put in place to 
reduce or eliminate the probability or severity of each identified 
hazard and associated risk. At a minimum, a hazard mitigation analysis 
must consider the (1) design of the system, equipment and components, 
including equipment reliability and the necessary functions to be 
performed, in both a normal operation and in a failed state; and (2) 
human factors associated with the processes and tasks to be performed, 
including the required skills and capabilities of staff, the operating 
environment, and existing or potential impairments. The goal of a 
hazard mitigation analysis is always to eliminate an identified hazard 
if possible. When it is not possible to eliminate a hazard, remaining 
unmitigated risk must be documented and categorized in terms of 
severity and probability.
    Once a hazard analysis is completed (including implementation and 
analysis of the effects of all mitigating measures), proposed paragraph 
(a)(5) requires a risk matrix ranking the severity and likelihood of 
each hazard that was not eliminated (i.e., each partially mitigated and 
unmitigated hazard). A risk matrix is a visual representation of the 
risk analysis and provides a framework to categorize in terms of 
severity and frequency, each identified hazard that is not fully 
mitigated by the hazard mitigation analysis. A risk matrix effectively 
ranks the severity and probability of each hazard; the highest levels 
of risk are on one end of the matrix, the lowest levels of risk on the 
other end of the matrix, and the medium risks in the middle of the 
matrix. Figure 1 below is a graphic representation of the risk matrix 
concept. Figure 2 below shows a risk matrix as proposed in paragraph 
(a)(5).

[[Page 45601]]

[GRAPHIC] [TIFF OMITTED] TP28JY22.011

[GRAPHIC] [TIFF OMITTED] TP28JY22.012

    Using the severity and probability rankings of one number followed 
by one letter assigned to each hazard remaining after completion of the 
hazard mitigation analysis under proposed paragraph (a)(4)(iv) (shown 
in Figure 2, for example, as 1A, 2B, 3C, 4D), proposed paragraph (a)(5) 
requires a railroad's risk matrix to categorize the residual risk 
associated with each hazard into one of 20 different risk categories, 
ranging from category 1A (a hazard with potential catastrophic 
consequences likely to occur frequently) to category 4E (an improbable 
hazard with negligible consequences).
    Proposed paragraph (a)(6) requires a risk report documenting the 
basis for acceptability of all hazards not eliminated through the risk 
assessment process, i.e., the residual risk associated with the 
remaining partially mitigated or unmitigated hazards identified in the 
risk matrix required by paragraph (a)(5). Proposed paragraphs (a)(6)(i) 
through (iii) specify the three risk categories (unacceptable, 
acceptable under specific conditions, or acceptable), and place each 
number/letter ranking of severity/probability into one of those 
categories as shown in Figure 3 below.

[[Page 45602]]

[GRAPHIC] [TIFF OMITTED] TP28JY22.013

    As proposed, if a hazard cannot be fully mitigated and its matrix 
categorization falls into the unacceptable category (i.e., categories 
1A, 1B, 1C, 1D, 2A, 2B, 2C, 3A, 3B and 4A), proposed paragraph 
(a)(6)(i) makes clear that FRA will not approve the operation and that 
a railroad should not file a petition for special approval with a 
hazard categorized as ``unacceptable'' because that level of risk 
demonstrates that the hazard is too significant and too likely to occur 
(i.e., too severe and too probable) for FRA to approve the operation. 
FRA proposes to prohibit operations that identify unacceptable hazards.
    Proposed paragraph (a)(6)(ii) provides for the categorization of 
certain risks as ``acceptable under specific conditions'' (i.e., 
categories 1E, 2D, 3C, 3D, 4B, 4C). A railroad may categorize a risk as 
``acceptable under specific conditions'' if its finds that given the 
scope and extent of the operation (i.e., the specific conditions 
involved with the operation), accepting the risk is consistent with 
railroad safety. The railroad's risk report must describe why the 
railroad finds the conditions acceptable. As proposed, FRA will review 
a railroad's risk report and the underlying hazard analysis to 
determine if it agrees accepting the risk is consistent with railroad 
safety. In doing so, FRA will review the description of each hazard in 
this category, any mitigating measures implemented, any public comments 
received, and any other relevant information or data (e.g., FRA's own 
inspection data or technical staff findings) to determine whether 
accepting the remaining risk, under the specific conditions proposed by 
the railroad, is consistent with railroad safety.
    The title of the hazard category includes the phrase ``under 
specific conditions'' to emphasize that FRA's review will focus on the 
specific operating conditions identified in a railroad's special 
approval petition. FRA expects that the risk report and underlying 
hazardous analysis for any hazard in this category will demonstrate how 
the specific mitigating measures placed on the operation reduce the 
identified risk to a level that allowing the operation under the 
specific conditions proposed is consistent with railroad safety.
    FRA recognizes that given every railroad's unique operating 
environment and the varied size and scope of different railroads' 
operations, what may be an acceptable risk for one operation, may not 
be an acceptable risk for another. For this reason, FRA expects the 
evaluation of hazards identified as ``acceptable under specific 
conditions'' to be very fact-based and focused on the specific facts of 
an operation, as demonstrated by the supporting evidence provided in a 
railroad's risk report and underlying hazard analysis. For example, if 
a Class III freight railroad, with limited operations over one track 
over which no other railroad operates, identifies the grade of that 
track as a specific hazard, reducing the speed of operations over that 
track may be an acceptable mitigation measure given the overall size 
and scope of the operation. However, if a Class I freight railroad with 
extensive operations over a specific track segment similarly identifies 
the grade of the track as a hazard and other railroads operate over the 
same track, reducing the speed of the proposed fewer than two-person 
operation over that track may not be an acceptable mitigation measure 
because the additional operations by different railroads over the same 
track may lead to increased risk given the speed of the other 
operations, the capacity of the track to handle operations at varying 
speeds, and potentially the resulting density of operations over the 
track. FRA would expect that a petitioning railroad with any hazard 
categorized as ``acceptable under specific conditions'' would 
specifically address in its petition how its train operation with fewer 
than two crewmembers would be consistent with railroad safety. For 
example, a railroad might emphasize that the operation will have set 
daily schedules to reduce crewmember fatigue or will arrange to keep 
the operation's trains moving to reduce blocked crossings in 
communities passed through.
    It is possible that a hazard could properly be determined to be 
``acceptable under specific conditions'' if a railroad adopts one or 
more safety measures that exceed the minimum Federal rail safety 
requirements, and the operational or equipment safety measures adopted 
are established, proven measures that will reduce the overall severity 
or probability of risks in the operation generally, even if the 
additional safety measures do not directly lessen the partially 
mitigated or unmitigated hazard identified. For example, if a short 
line freight railroad with a history of low-speed derailments were to 
invest in track improvements that raised its track class but agreed in 
its petition that the train operation with fewer than two crewmembers 
would not operate at the now higher maximum authorized speed allowable, 
the improvements in track could be considered a specific condition that 
would offset an identified derailment hazard.
    Under the last risk assessment matrix category, proposed paragraph 
(a)(6)(iii), a hazard that is partially mitigated or unmitigated may 
simply be acceptable. If it is acceptable, FRA will not deny the 
petition for special approval if the hazard is appropriately 
categorized. Thus, the hazards in this category have known and 
acceptable risks based on their severity and probability. As with

[[Page 45603]]

any hazard, FRA may determine that the railroad miscategorized the 
hazard or there was a mistake with the risk assessment's underlying 
evaluation of the hazard. If a railroad were to categorize a risk as 
acceptable, but FRA found otherwise, FRA would likely deny the petition 
or the railroad would need to update the risk assessment before FRA 
could approve the petition.
    Paragraph (b) provides that the Associate Administrator may approve 
alternative methodologies and/or procedures other than those required 
by paragraph (a) to assess the risk associated with an operation 
proposed under subpart G. If, after providing public notice of the 
request for approval and an opportunity for public comment on the 
request, the Associate Administrator finds that any such petition 
demonstrates that the alternative proposed methodology or procedures 
will provide an accurate assessment of the risk associated with the 
operation, proposed paragraph (b) provides that the Associate 
Administrator may approve the use of the proposed alternative(s). As 
noted earlier, FRA recognizes that standardized risk assessment 
processes, tools, and methodologies exist in the transportation 
industry and other industries. Although in this NPRM, FRA is proposing 
a process based on these widely accepted existing standards and has 
tailored the proposed process to the specific context of this 
rulemaking, FRA recognizes that other industry standards may exist that 
may be similarly tailored and used to achieve the same goal of this 
NPRM (i.e., to objectively analyze and effectively mitigate risks of 
train operations with fewer than two-person crews to an acceptable 
level). FRA does not intend to preclude the use of such alternative 
risk assessment standards and paragraph (b) sets forth a process for 
evaluating any such proposed alternative standards. Recognizing that 
FRA's approval of an alternative methodology or process of conducting a 
risk assessment may set the standard for future risk assessments by 
other parties, it is important to allow for public comment and input on 
any proposed alternative standard or methodology a party seeks to use. 
FRA requests comment on this proposal.
    As with all aspects of this NPRM, FRA requests comment on the 
proposal to require risk assessments as part of the petition process 
for a railroad seeking FRA's approval to initiate a train operation 
with fewer than two crewmembers. FRA also requests comment on the 
specific risk assessment process proposed.

Section 218.137 Special Approval Procedure

    This section contains the proposed procedure to petition FRA for 
special approval for both one-person legacy train operations and the 
initiation of a new operation with fewer than two train crewmembers. 
Proposed paragraph (a) would require that each railroad submitting a 
petition to continue a legacy operation or initiate a new operation 
under proposed Sec. Sec.  218.131 and 218.133 shall send the petition 
by email to [email protected]. Once FRA receives the petition, FRA 
will place the petition in a public docket at https://www.regulations.gov.
    Proposed paragraphs (b) through (d) would establish a special 
approval procedure. FRA is proposing to use a process to gather public 
comment on a petition and ensure transparency in FRA's evaluation of 
any petition. FRA proposed a public comment period so that 
stakeholders, such as the railroad's employees, or businesses and 
communities adjacent to or served by the railroad, can provide relevant 
safety information or data. The special approval procedure has been 
used successfully in other FRA regulations.\224\ Proposed paragraph (b) 
would require that FRA publish a notice in the Federal Register 
concerning each petition it received under this section.
---------------------------------------------------------------------------

    \224\ See, e.g., 49 CFR 232.17, 238.21, and 238.203.
---------------------------------------------------------------------------

    Proposed paragraph (c) would provide a 60-day comment period for 
each petition. Proposed paragraph (c)(1) contains the minimum 
requirement that each comment must provide all relevant information and 
data in support of the commenter's position. As proposed in paragraph 
(c)(2), comments must be submitted electronically to the assigned 
docket noted in the applicable Federal Register notice.
    Proposed paragraph (d) addresses the process for disposition of 
petitions. For instance, in paragraph (d)(1), FRA proposes that the 
Administrator may conduct a hearing on a petition using the same 
procedures the agency uses to conduct other hearings under its rules of 
practice.
    Proposed paragraphs (d)(2) and (3) set the expectation that FRA 
will normally grant or deny a petition within 120 days of its receipt 
and a petition must not be implemented until approved. However, should 
FRA require additional information from the petitioning railroad, or 
need to investigate issues raised by commenters, a decision on the 
petition could be delayed. If there is a delay, as proposed, the 
petition will remain pending until FRA decides it. Further, as proposed 
in paragraph (d)(2), FRA may attach special conditions as deemed 
necessary to any approval under this section.
    Once approved, a petition does not expire, although FRA provides in 
proposed paragraph (d)(2) that it may reopen consideration of the 
petition for cause stated. ``For cause'' is a legal term that, in this 
proposed context, means that FRA will not reopen a petition for 
consideration unless the agency provides a specific reason, along with 
all supporting evidence it has as justification for doing so. If FRA 
were to discover significant safety concerns regarding an approved 
operation, the discovery could trigger a ``for cause'' reopening of the 
petition. In that case, it is proposed in paragraph (d)(4) that FRA 
would reopen the petition by sending a written notice to the 
petitioner. In closing any petition reopened for consideration, or 
granting or denying a petition, FRA proposes to notify petitioners in 
writing and publish the decision in the docket.
    FRA may also reopen consideration of the petition for cause stated 
by a railroad petitioner. For example, if FRA denies a petition, or 
grants a petition with special conditions, and the railroad disagrees 
with FRA's decision, the railroad may ask FRA to reopen consideration 
of the petition. A request to reopen a denied petition should include 
an explanation or evidence supporting why FRA's decision should be 
amended. Meanwhile, a request to reopen a petition that was granted 
with special conditions should include any challenge to the special 
conditions, including any alternative conditions the railroad is 
willing to accept if FRA were to modify the decision in a manner 
acceptable to the railroad. If a request to reopen the petition is made 
contemporaneously with FRA's initial decision, FRA is likely to provide 
notice to the petitioner and interested parties in the same docket 
rather than publish a new notice in the Federal Register.
    Proposed paragraph (e) would require a railroad that intends to 
materially modify an operation that has previously received FRA's 
special approval under this section to submit a description of how it 
intends to modify the operation, along with either a new or updated 
risk assessment accounting for the identified proposed modifications. 
Proposed paragraphs (e)(1) through (3) describe how FRA defines a 
material modification in this context. For instance, a modification is 
material if it is a change to a railroad's operations, infrastructure, 
or locomotive control or risk mitigation technology, that may affect 
the safety of the operation. A

[[Page 45604]]

modification is also material if the change would affect the 
assumptions underlying the risk assessment, or the assumptions 
underlying the risk assessment's risk calculations or mitigations, on 
which an FRA approval under this section is based. The proposal would 
require a new or updated risk assessment to meet the requirements of 
Sec.  218.135 and be submitted to FRA by email at least 60 days before 
proposing to implement any such modification. Thus, a railroad that 
wishes to deviate from an FRA-approved petition would 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 approved a 
one-person operation at a maximum speed of 25 mph and the railroad 
invested resources to improve the track to support higher operating 
speeds, 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 are addressed in its risk assessment. FRA is proposing 
this requirement in lieu of requiring that a new special approval 
petition be filed for a material modification for an already approved 
operation. FRA intends the proposed requirement to help streamline the 
approval process for most routine material modifications. FRA notes, 
however, that even though a railroad with a legacy operation approved 
under Sec.  218.131 would not have been required to submit a risk 
assessment when initially requesting special approval, proposed 
paragraph (e) would require such a railroad seeking to materially 
modify that operation to submit a risk assessment. Significant 
expansions or modifications may be considered a new operation requiring 
a new submission and opportunity for public comment rather than a 
material modification. FRA may also consider reopening a petition for 
consideration after receiving a material modification filing. Further, 
a material modification must not be implemented until approved.
    FRA is mindful the special approval procedures take time and may be 
a source of uncertainty for railroads wishing to operate with less than 
two person crews; however, FRA believes the procedures are necessary to 
ensure those operations are performed safely. FRA would appreciate 
comment on how to improve the proposed special approval procedures to 
help reduce uncertainty and ensure timely approval of operations with 
fewer than two crew members that are determined to be safe.

Section 218.139 Annual Railroad Responsibilities After Receipt of 
Special Approval

    This proposed section would require railroads that receive special 
approval under either Sec.  218.131 or Sec.  218.133 to conduct a 
formal, annual review and analysis of the FRA-approved train 
operation(s) with fewer than two crewmembers and annually provide a 
report of that reviews' findings and conclusions to FRA. FRA proposes 
that a railroad receiving special approval under subpart G will be 
required to complete its formal annual review and analysis no later 
than March 31 of each year, with the first report being due March 31 of 
the first year following FRA's approval of the petition. FRA expects 
that tracking and creating an annual report with this type of 
information as proposed will help identify trends or problems that are 
not consistent with railroad safety, but that may be acceptable under 
specific conditions. FRA would appreciate comments on this proposed 
requirement, including comments on whether three months will provide 
sufficient time to produce a report. FRA is also considering an 
alternative option that would require an annual report deadline 
depending on when each railroad receives FRA-approval to begin a one-
person train operation; e.g., an annual report could be required 15 
months after the month in which FRA approved the petition for special 
approval. FRA is also interested in receiving comments on when the 
first annual report should be due if a petition is approved with less 
than six months left in the calendar year; i.e., FRA would want to 
collect all data for a legacy or newly initiated operation once it is 
approved, but is willing to consider extending the deadline for 
producing the first annual report if only a few months of data would 
have been collected. There are many ways to address these concerns, and 
FRA would appreciate comments expressing a preference and a rationale 
for any option.
    Proposed paragraph (b) lists the formal review and analysis 
requirements that a railroad must include in its annual report for any 
FRA-approved train operation with fewer than two crewmembers. Each 
listed safety data item is proposed for inclusion because it will 
provide insight into the safety of the operation and track meaningful 
changes. For example, proposed paragraph (b)(1)(i) would require a 
railroad with an approved petition to provide the total number of FRA-
reportable accidents/incidents under part 225 of this chapter. FRA does 
not want the total to double-count any single incident and therefore 
included a proposed requirement in paragraph (b)(1)(i) to prevent 
railroads from making that mistake. Under that same proposed paragraph, 
FRA would require that the data be subtotaled by whether the accident/
incident occurred at a highway-rail grade crossing or not, as well as 
track the subtotals of accidents/incidents by State and cause 
separately.
    Proposed paragraphs (b)(1)(ii) through (vii), (x), (xiii), and 
(xiv) concern data of the type that FRA routinely collects and makes 
available on its safety data and reporting website.\225\ Collecting 
such data as the total number of FRA-reportable employee fatalities as 
proposed will allow FRA, railroads, and the public to better evaluate 
the safety of each railroad's operation and compare each operation to 
the industry at large or other operations.
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    \225\ FRA's Safety Data and Reporting website is found at 
https://railroads.dot.gov/safety-data.
---------------------------------------------------------------------------

    Proposed paragraphs (b)(1)(viii), (ix), (xi), and (xii) would 
require a railroad to include in its annual report the total number of 
certain types of occurrences involving a train with a fewer than two-
person crew that would provide additional insight into how effective 
the railroad is in addressing certain types of safety hazards as well 
as how frequently these problems occur. For instance, proposed 
paragraph (b)(1)(viii) would require a railroad to report the total 
number of instances where a railroad employee did not comply with a 
railroad rule or practice applicable to the FRA-approved train 
operation(s) with fewer than two crewmembers, but not applicable to 
train crew operations with two or more crewmembers. FRA would expect 
that tracking that data would provide insight into the effectiveness of 
each railroad's rules or practices particular to the one-person train 
crew operation. The same rationale applies to proposed paragraph 
(b)(1)(ix) which would require a railroad to report the total number of 
instances where a person certified as both a locomotive engineer and 
conductor had a certification revoked for violation of an operating 
rule or practice that occurred when the person was operating per an 
FRA-approved train operation with fewer than two crewmembers. If FRA 
did not specifically propose a requirement for that data, it would be 
difficult for FRA to ascertain whether locomotive engineers operating 
as one-person train crews were involved in significant operating rule 
or practice

[[Page 45605]]

incidents that require a railroad to revoke the person's certification 
under FRA's requirements for locomotive engineer certification. 
Paragraph (b)(1)(xi) follows up on FRA's proposed requirement for 
railroads with fewer than two crewmembers to have disabled-train/post-
accident protocols by requiring that railroads report the total number 
of instances whereby the railroad was required to implement that 
protocol. Paragraph (b)(1)(xii) proposes that if there are any 
instances whereby a dispatcher unexpectedly loses communication with an 
FRA-approved train operation with fewer than two crewmembers, the 
railroad must report the total number of those instances. FRA seeks 
comment on the extent and nature of one-person operations that would 
have expected losses of communications over their route, and whether 
FRA should require reporting on any loss of communication, expected or 
not.
    In addition to the proposed requirements for structured data, FRA 
proposed in paragraph (b)(2) that each instance described in paragraphs 
(b)(1)(i) through (xii) be sufficiently identified by date and 
location, and that a description of each event be provided. The 
proposed requirement for additional details would enable FRA to have 
greater insight into the types of instances that are occurring on each 
railroad and whether additional FRA action is warranted. For example, a 
description of an instance would help understand whether a second-
crewmember could have helped prevent the instance or other remedial 
action would further reduce the risk of a hazard under a risk 
assessment.
    Proposed paragraph (c) would require both legacy railroads and 
railroads initiating a new operation with fewer than two train 
crewmembers to include a written confirmation in its annual report to 
FRA that the operation remains unchanged or, if the operation has 
changed, a new or updated risk assessment. For new operations that 
completed a risk assessment, the proposed written confirmation must 
specify that no calculations or assumptions have changed requiring an 
updated risk assessment meeting the same requirements as the initially 
filed risk assessment. For legacy railroad operations that are not 
required to file a risk assessment with FRA as proposed, FRA proposes 
that these railroads provide FRA with annual, written confirmation that 
the operation remains substantially the same as described in the 
railroad's applicable special approval petition and that no technology 
changes have been implemented, or new or additional hazards identified. 
If a legacy railroad's operation has changed, it is proposed that the 
railroad must prepare and submit a risk assessment--even though a risk 
assessment would not be initially required for the legacy railroad 
operation. FRA's rationale for this proposed requirement is that 
substantial changes to the legacy operation would essentially change 
the operation to a new operation. FRA's prior approval would have been 
based on the safety and compliance record of the prior operation, not 
the new, substantially changed operation. Thus, a risk assessment is 
warranted to objectively determine the safety of any new operation.
    FRA is interested in any technology changes because analysis may 
later reveal that the technology added tasks for a one-person train 
crew and led to a loss of situational awareness, or that the technology 
added a welcome redundancy. A new risk assessment of a technology would 
help understand when a change took place and then enable safety 
comparisons for before and after the technology change is implemented.
    Proposed paragraph (c)(1) would require a railroad, with an 
approved petition, to revise or conduct a new risk assessment to help 
ensure the railroad is identifying any new hazards, and adjusting the 
risk calculations of existing hazards that have changed since the 
railroad's special approval petition was approved. For example, the 
operation may be serving more customers, and thus doing more switching. 
Another example of a new hazard or risk adjustment would be that a new 
customer is shipping hazardous materials of types and quantities not 
previously transported by the railroad. Still another new hazard or 
risk adjustment might be the addition of joint operations with another 
railroad that were not initiated until after FRA granted the railroad's 
special approval petition. In addition, in paragraph (c)(2), FRA 
proposed that any new or updated risk assessment submitted in 
accordance with this paragraph must include a written plan and schedule 
for implementing any mitigations required to address any newly 
identified hazards.
    In paragraph (d), FRA proposed that it will review and respond to a 
railroad's annual report submission by September 30 of the year it is 
submitted. If necessary, FRA's response may include advice or 
recommendations. If a railroad's annual report submission suggests that 
the petition does not comply with the requirements of subpart G or that 
the operation is no longer consistent with railroad safety, FRA may 
reopen consideration of the petition under Sec.  218.137.

V. Regulatory Impact and Notices

A. Executive Order 12866

    This proposed rule is a significant regulatory action within the 
meaning of Executive Order 12866. Details on the estimated costs of 
this NPRM can be found in the Regulatory Impact Analysis (RIA), which 
FRA has prepared and placed in the docket (FRA-2021-0032).
    FRA is proposing 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 for those operations that FRA believes do 
not pose significant safety risks to railroad employees, the general 
public, or the environment by using fewer than two-person crews.
    The proposed rule prescribes minimum requirements for the location 
of a crewmember that is not operating the train and promotes safe and 
effective teamwork. In addition, FRA proposes processes to allow 
railroads to continue operations with one-person train crews, and allow 
railroads to establish new operations with fewer than two crewmembers 
when the exceptions do not apply. FRA is not certain about the effect 
that the proposed rule would have on the total number of operations 
with crews of fewer than two persons relative to the number that would 
occur in the baseline without the rule.
    The RIA presents estimates of the costs likely to occur over the 
first 10 years of the proposed rule. The analysis includes estimates of 
costs associated with special approvals, risk assessments, annual 
railroad responsibilities after receipt of special approval, and 
Government administrative costs.
    FRA estimated 10-year costs of $2.0 million discounted at 7 
percent. The annualized cost would be $0.3 million discounted at 7 
percent. The following table shows the estimated 10-year costs of the 
proposed rule.
---------------------------------------------------------------------------

    \226\ As discussed further in section VI.I. of the RIA, 
quantified costs do not include costs that could be incurred in 
order to mitigate risks associated with a reduction in the number of 
crewmembers.

[[Page 45606]]



                                         Total 10-Year Discounted Costs
                                              [2020 Dollars] \226\
----------------------------------------------------------------------------------------------------------------
                                                                                    Annualized      Annualized
                    Category                      Total cost,  7  Total cost,  3      cost, 7         cost, 3
                                                   percent  ($)    percent  ($)    percent  ($)    percent  ($)
----------------------------------------------------------------------------------------------------------------
Special Approval (Legacy Operations)............          41,486          41,486           5,907           4,863
Special Approval (New Operations)...............         318,665         400,442          45,371          46,944
Risk Assessment (Initial and Revisions).........         555,124         696,616          79,037          81,665
Risk Assessment--Material Modifications.........         159,353         197,690          22,688          23,175
Railroad Annual Oversight Responsibilities......         127,374         161,450          18,135          18,927
Government Administrative Cost..................         806,837       1,006,977         114,875         118,048
                                                 ---------------------------------------------------------------
    Total Costs.................................       2,008,840       2,504,662         286,014         293,623
----------------------------------------------------------------------------------------------------------------

    While FRA has qualitatively discussed the benefits in the RIA, it 
does not have sufficient data to monetize those benefits. The primary 
benefit of this rule is that it would ensure that railroads evaluate 
and address any potential safety concerns before moving to a train 
operation with fewer than two crewmembers. The safety of these trains 
could be eroded if a crew with fewer than two persons operates without 
accounting for additional risks. The proposed rule would help ensure 
that train crew staffing does not result in inappropriate or 
unacceptable levels of safety risks to railroad employees, the public, 
and the environment.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \227\ and Executive Order 
13272 \228\ require agency review of proposed and final rules to assess 
their impacts on small entities. An agency must prepare an Initial 
Regulatory Flexibility Analysis (IRFA) unless it determines and 
certifies that a rule, if promulgated, would not have a significant 
economic impact on a substantial number of small entities. FRA has not 
determined whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. Therefore, FRA 
prepared this IRFA to facilitate public comment on the potential small 
business impacts of the requirements in this NPRM.
---------------------------------------------------------------------------

    \227\ 5 U.S.C. 601 et seq.
    \228\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

    FRA invites all interested parties to submit data and information 
regarding the potential economic impact on small entities that would 
result from adoption of the proposals in this NPRM. FRA particularly 
encourages small entities that could potentially be impacted by the 
proposed amendments to participate in the public comment process. FRA 
will consider all information and comments received in the public 
comment process when making a determination of the economic impact on 
small entities.
1. Reasons for Considering Agency Action
    FRA is concerned with the ability of railroads to utilize 
operations with fewer than two crewmembers without notifying FRA. 
Railroads may not be considering the adverse safety impact that fewer 
crewmembers will have. This NPRM would require two crewmembers unless 
certain exceptions are met. This proposed rule would ensure that 
railroads examine railroad safety with respect to crew size and work 
with FRA for special approval for operating trains with fewer than two 
crewmembers. If FRA did not issue the rule as proposed, railroads would 
be generally free to operate trains with fewer than two crewmembers, 
and States could also enforce varying crew size safety requirements.
2. A Succinct Statement of the Objectives of, and the Legal Basis for, 
the Proposed Rule
    This proposed rule would help FRA ensure that safety is not 
adversely affected when initiating train operations with fewer than two 
crewmembers. The annual railroad responsibilities would provide FRA 
information regarding train operations with fewer than two crewmembers 
on an annual basis that may be able to improve safety.
    FRA is proposing regulations concerning train crew size safety 
requirements based on the statutory general authority of the 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.'' \229\ The Secretary delegated this authority to the 
Federal Railroad Administrator.\230\
---------------------------------------------------------------------------

    \229\ 49 U.S.C. 20103.
    \230\ 49 CFR 1.89(a).
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, a ``commuter rail system'' with annual receipts of less than 
$16.5 million dollars, or a contractor that performs support activities 
for railroads with annual receipts of less than $16.5 million.\231\
---------------------------------------------------------------------------

    \231\ U.S. Small Business Administration, ``Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.

---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a proposed statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR part 1201, General Instruction 1-1, which is $20 
million or less in inflation-adjusted annual revenues,\232\ and 
commuter railroads or

[[Page 45607]]

small Governmental jurisdictions that serve populations of 50,000 or 
less.\233\ FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------

    \232\ The Class III railroad revenue threshold is $39,194,876 or 
less, for 2018. (The Class II railroad threshold is between 
$39,194,876 and $489,935,956; and the Class I railroad threshold is 
$489,935,956 or more.) See Surface Transportation Board (STB), 
available at https://www.stb.gov/econdata.nsf/d03c0c2161a050278525720a0044a825/1acf737531cf98ce8525841e0055e02e.
    \233\ See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 
49 CFR part 209).
---------------------------------------------------------------------------

    When shaping the proposed rule, FRA considered the impact that the 
proposed rule would have on small entities. FRA has provided exceptions 
to the two-person crew requirement which would limit the impact on 
small entities. In addition, tourist train operations that are not part 
of the general system may operate with one-person crews.
    The proposed rule would be applicable to all railroads, although 
very few railroads would be affected. FRA estimates there are 744 Class 
III railroads, of which 704 operate on the general system. These 
railroads are of varying size, with some belonging to larger holding 
companies. Currently, nine railroads operate one-person crews; six of 
which are Class III railroads. Most small railroads would qualify for 
an exception under section 218.129 which allows for one-person 
operations if a railroad has under 400,000 employee hours annually and 
operates less than 25 mph. FRA estimates that 25% of railroads 
submitting special approval requests each year to initiate operations 
with fewer than two crewmembers would be Class III railroads.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Would be Subject to the Requirements and the 
Type of Professional Skill Necessary for Preparation of the Report or 
Record
    Railroads would be required to submit information to FRA for 
special approval to operate trains with fewer than two crewmembers. FRA 
estimates that small railroads would require the same number of hours 
to complete the special approval request as Class I and Class II 
railroads. The risk assessment burden may be slightly less than larger 
railroads, but the average of 120 hours seems to encompass all 
operations, large and small.
    Small railroads would likely have fewer hazards to address as the 
operation with fewer than two crewmembers may be smaller and less 
complex than larger railroads' operations. This would ease some of the 
burden on small railroads and may encourage more short line railroads 
to initiate train operations with fewer than two crewmembers.
    The risk assessment and annual railroad responsibilities would be 
prepared by a professional or administrative employee. The burdened 
hourly compensation rate of a railroad employee who performs those 
duties is $77.44. The special approvals would be prepared by 
executives, officials, and staff assistants. The hourly compensation 
rate of a railroad employee who performs those duties is $115.24. The 
type of professional skills needed by these employees includes the 
ability to plan and organize work. Such an employee would also need 
good verbal and written communication skills and attention to detail.
Special Approval (Legacy Operations)
    Railroads with one-person train operations that were being 
conducted at least two years before the effective date of the final 
rule, and that are not otherwise prohibited from operating one-person 
operations, may continue those operations by filing a special approval 
petition containing a description of the operation. This process is 
described in Sec.  218.131 of the proposed rule. FRA would review the 
information provided, and grant or deny approval to operate with fewer 
than two crewmembers.
    FRA is currently aware of nine one-person train crew operations. 
Six of these railroads are Class III railroads. Each of these railroads 
would be required to submit information for special approval to 
continue those operations. Each special approval would require 
approximately 40 hours of railroad time. The following table shows the 
costs for special approval for these six existing one-person operations 
by Class III railroads. The total cost for special approvals for Class 
III railroads with existing one-person operations would be $27,657. 
That cost would only be incurred in the first year of the analysis.

                   Railroad Cost per Special Approval (Legacy Operations), Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                   Total  labor
                                    Hours  per      Hourly wage      cost  per      Number  of     Total annual
        Type of employee              special        rate  ($)        special         special       cost across
                                     approval                      approval  ($)     approvals     industry  ($)
                                               a               b       c = a * b               d       e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Manager..................              14          115.24           1,613  ..............  ..............
Superintendent..................              10          115.24           1,152  ..............  ..............
Train Master....................               8          115.24             922  ..............  ..............
Road Foreman....................               8          115.24             922  ..............  ..............
                                 -------------------------------------------------------------------------------
    Total.......................              40  ..............           4,610               6          27,657
----------------------------------------------------------------------------------------------------------------

Special Approval Process (New Operations)
    In order to initiate an operation with fewer than two crewmembers, 
a railroad must apply for special approval as required by Sec.  
218.133. Railroads must submit the appropriate data or analysis so FRA 
can determine whether the train operation proposed is consistent with 
railroad safety. New technologies or alternative intervention from 
railroad employees could be included in the proposed rule to ensure 
that the operation with fewer than two crewmembers would not negatively 
impact safety.
    Railroads must include a description of a disabled-train/post-
accident protocol that quickly brings railroad employees to the scene 
of a disabled

[[Page 45608]]

train or accident. Additionally, railroads must submit a copy of any 
railroad rule or practice that applies to the train operation with 
fewer than two crewmembers but does not apply to train crew operations 
with two or more crewmembers. Some railroads may need to modify some 
rules or practices to tailor them to their fewer than two-person 
operations. FRA then would grant or deny approval before the operation 
is implemented. Each special approval for new operations with fewer 
than two crewmembers would require approximately 48 hours of railroad 
time.
    The estimated cost to railroads for each special approval would be 
$5,531. The following table shows the costs for special approval for 
new operations.

                    Railroad Cost per Special Approval (New Operations), Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total  labor
                                                                    Hours  per      Hourly wage      cost  per
                        Type of employee                              special        rate  ($)        special
                                                                     approval                      approval  ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Manager..................................................              16          115.24           1,844
Superintendent..................................................              12          115.24           1,383
Train Master....................................................              10          115.24           1,152
Road Foreman....................................................              10          115.24           1,152
----------------------------------------------------------------------------------------------------------------
    Total.......................................................              48  ..............           5,531
----------------------------------------------------------------------------------------------------------------

    FRA estimates that two new operations would commence in year 1 with 
fewer than two crewmembers. There would be an estimated 25% annual 
increase in the number of new operations with fewer than two 
crewmembers.
    FRA estimates that 25% of new operations with fewer than two 
crewmembers would be on Class III railroads. The following table shows 
the number of new one-person operations per year.

   Estimated Number of New Operations With Fewer Than Two Crewmembers
------------------------------------------------------------------------
                                                         Number of new
                                      Number of new      operations per
               Year                  operations  per    year, class III
                                           year            railroads
                                                    a       b = a * 0.25
------------------------------------------------------------------------
1.................................                  2                  1
2.................................                  3                  1
3.................................                  4                  1
4.................................                  5                  1
5.................................                  6                  2
6.................................                  8                  2
7.................................                 10                  3
8.................................                 13                  3
9.................................                 16                  4
10................................                 20                  5
------------------------------------------------------------------------

    The following table shows the 10-year estimated costs for special 
approvals for new operations with fewer than two crewmembers, for Class 
III railroads.

                     10-Year Costs for Special Approval, New Operations, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                   Estimated new    Total labor
                                    one-person       cost per       Total costs    Present value   Present value
              Year                operations per      special           ($)           7%  ($)         3%  ($)
                                       year        approval  ($)
                                               a               b       c = a * b  ..............  ..............
----------------------------------------------------------------------------------------------------------------
1...............................               1           5,531           5,531           5,531           5,531
2...............................               1           5,531           5,531           5,170           5,370
3...............................               1           5,531           5,531           4,831           5,214
4...............................               1           5,531           5,531           4,515           5,062
5...............................               2           5,531          11,063           8,440           9,829
6...............................               2           5,531          11,063           7,888           9,543
7...............................               3           5,531          16,594          11,057          13,897
8...............................               3           5,531          16,594          10,334          13,493
9...............................               4           5,531          22,126          12,877          17,466

[[Page 45609]]

 
10..............................               5           5,531          27,657          15,044          21,197
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............         127,222          85,687         106,603
----------------------------------------------------------------------------------------------------------------
Annualized......................  ..............  ..............  ..............          12,200          12,497
----------------------------------------------------------------------------------------------------------------

    The cost for special approval for new operations with fewer than 
two crewmembers would be $127,222 over the 10-year analysis. The 
discounted value would be $85,687 (PV, 7 percent).
Risk Assessment
    As part of the special approval process, railroads initiating new 
train operations utilizing fewer than two crewmembers would be required 
to conduct a risk assessment. The risk assessment must include a 
description of the proposed operation, a hazard analysis, and 
discussion of the tasks and functions of crewmembers.
    Each risk assessment would require an average of 120 hours to 
complete. If a railroad applies for special approval for more than one 
train operation, the subsequent requests may take considerably less 
time than the initial request. This is especially true if the operating 
characteristics are similar between those operations.
    The following table shows the cost for Class III railroads to 
conduct risk assessments.

                              Annual Cost for Risk Assessments, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total labor
                       Type of employee                           Hours per       Hourly  wage    cost per risk
                                                                  operation        rate  ($)     assessment  ($)
                                                                            a                b        c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative..............................             120            77.44            9,293
----------------------------------------------------------------------------------------------------------------

    Based on the estimated number of new operations with fewer than two 
crewmembers, the following table shows the 10-year estimated costs for 
risk assessments for Class III railroads.

                             10-Year Costs for Risk Assessments, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                   Estimated new    Total labor
                                    one-person     cost per risk    Total costs   Present  value  Present  value
              Year                  operations      assessment          ($)           7%  ($)         3%  ($)
                                     per year           ($)
                                               a               b       c = a * b  ..............  ..............
----------------------------------------------------------------------------------------------------------------
1...............................               1           9,293           9,293           9,293           9,293
2...............................               1           9,293           9,293           8,685           9,022
3...............................               1           9,293           9,293           8,116           8,759
4...............................               1           9,293           9,293           7,585           8,504
5...............................               2           9,293          18,585          14,178          16,513
6...............................               2           9,293          18,585          13,251          16,032
7...............................               3           9,293          27,878          18,576          23,347
8...............................               3           9,293          27,878          17,361          22,667
9...............................               4           9,293          37,170          21,633          29,342
10..............................               5           9,293          46,463          25,273          35,610
----------------------------------------------------------------------------------------------------------------
    Total.......................  ..............  ..............         213,728         143,951         179,087
----------------------------------------------------------------------------------------------------------------
Annualized......................  ..............  ..............  ..............          20,495          20,995
----------------------------------------------------------------------------------------------------------------

    The cost for risk assessments for new Class III railroad operations 
with fewer than two crewmembers would be $213,728 over the 10-year 
analysis. The discounted value would be $143,951 (PV, 7 percent).
Risk Assessment Revisions
    If the risk assessment is incomplete or does not address all 
hazards presented by fewer than two-person operations, FRA may require 
a railroad to revise

[[Page 45610]]

their risk assessment. This would happen after FRA has reviewed the 
initial risk assessment as part of the special approval process.
    FRA estimates that one small railroad's risk assessment would 
require a revision each year. Each revision would require approximately 
24 additional hours of labor by the railroad. Once revisions are made, 
the special approval would once again be reviewed by FRA for a decision 
to be made.
    The estimated cost for each risk assessment revision is shown in 
the table below.

                                       Cost for Risk Assessment Revisions
----------------------------------------------------------------------------------------------------------------
                                                                                                    Total labor
                                                                                                     cost per
                        Type of employee                             Hours per      Hourly wage    revised risk
                                                                     operation       rate  ($)      assessment
                                                                                                        ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative.................................              24           77.44           1,859
----------------------------------------------------------------------------------------------------------------

    The estimated total 10-year cost for risk assessment revisions for 
Class III railroads is $1,859. The discounted value is $1,011 (PV, 7 
percent). The following table shows the costs for Class III railroads 
to revise risk assessments.

                                        Annual Railroad Costs for Risk Assessment Revisions, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Number  of    Percentage  of
                                               risk            risk          Number of
                  Year                      assessments     assessments    revised risk      Cost per       Total costs    Present value   Present value
                                           submitted per     requiring      assessments    revision  ($)        ($)           7%  ($)         3%  ($)
                                               year       revisions  (%)
                                                       a               b       c = a * b               d       e = c * d  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................               1              30               0           1,859               0               0               0
2.......................................               1              30               0           1,859               0               0               0
3.......................................               1              25               0           1,859               0               0               0
4.......................................               1              25               0           1,859               0               0               0
5.......................................               2              20               0           1,859               0               0               0
6.......................................               2              20               0           1,859               0               0               0
7.......................................               3              15               0           1,859               0               0               0
8.......................................               3              15               0           1,859               0               0               0
9.......................................               4              10               0           1,859               0               0               0
10......................................               5              10               1           1,859           1,859           1,011           1,424
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............  ..............  ..............  ..............           1,859           1,011           1,424
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................  ..............  ..............  ..............  ..............  ..............             144             167
--------------------------------------------------------------------------------------------------------------------------------------------------------

Risk Assessment When Material Modification is Made (Legacy Operations)
    Legacy one-person operations would need to submit a risk assessment 
when a material modification is made. FRA estimates that this risk 
assessment would require approximately 120 hours of labor. Since only 
nine railroads currently operate trains with one-person crews, FRA 
estimates that only a small number would be required to perform a risk 
assessment over the 10-year analysis. Six of the nine railroads are 
Class III railroads. FRA estimates that one Class III railroad every 
other year would have a material modification to its operation and 
require a risk assessment.
    The estimated total 10-year cost for risk assessments for Class III 
railroads would be $46,463. The discounted value would be $33,737 (PV, 
7 percent). The following table shows the annual costs for legacy 
railroads that are performing a risk assessment.

                                         Annual Railroad Costs for Risk Assessments, Class III Legacy Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Number  of
                                                             railroads
                          Year                              submitting    Hours per risk    Hourly wage     Total costs    Present value   Present value
                                                               risk          assessment      rate  ($)          ($)           7%  ($)         3%  ($)
                                                            assessment
                                                                       a               b               c   d = a * b * c  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................               0             120           77.44               0               0               0
2.......................................................               1             120           77.44           9,293           8,685           9,022
3.......................................................               0             120           77.44               0               0               0
4.......................................................               1             120           77.44           9,293           7,585           8,504
5.......................................................               0             120           77.44               0               0               0

[[Page 45611]]

 
6.......................................................               1             120           77.44           9,293           6,625           8,016
7.......................................................               0             120           77.44               0               0               0
8.......................................................               1             120           77.44           9,293           5,787           7,556
9.......................................................               0             120           77.44               0               0               0
10......................................................               1             120           77.44           9,293           5,055           7,122
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............          46,463          33,737          40,219
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................................  ..............  ..............  ..............  ..............           4,803           4,715
--------------------------------------------------------------------------------------------------------------------------------------------------------

Updating Risk Assessment When Material Modification is Made (New 
Operations)
    As part of the proposed rule, railroads must update and resubmit 
their risk assessment 60 days before a ``material modification'' is 
made. A railroad that intends to materially modify an operation with 
fewer than two crewmembers would be required to submit a description of 
how it intends to modify the operation and an updated risk assessment 
accounting for the identified proposed modifications.
    FRA estimates that approximately 15 percent of railroads would need 
to resubmit their risk assessment in any particular year. For these 
railroads, the burden for updating the risk assessment would be 
approximately 40 hours.
    FRA calculated that the cost for updated risk assessments for new 
Class III operations with fewer than two crewmembers would be $40,268 
over the 10-year analysis. The discounted value would be $25,549 (PV, 7 
percent). The following table shows the annual costs for railroads that 
are resubmitting the risk assessment.

                                             10-Year Costs for Updated Risk Assessments, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                  Year                       Number of     updated risk   Hours per risk    Hourly wage     Total costs    Present value   Present value
                                            operations      assessments      assessment      rate  ($)          ($)           7%  ($)         3%  ($)
                                                       a    b = a * 0.15               c               d   e = b * c * d  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................               1               0              40           77.44               0               0               0
2.......................................               2               0              40           77.44               0               0               0
3.......................................               3               0              40           77.44               0               0               0
4.......................................               4               1              40           77.44           3,098           2,528           2,835
5.......................................               6               1              40           77.44           3,098           2,363           2,752
6.......................................               8               1              40           77.44           3,098           2,208           2,672
7.......................................              11               2              40           77.44           6,195           4,128           5,188
8.......................................              14               2              40           77.44           6,195           3,858           5,037
9.......................................              18               3              40           77.44           9,293           5,408           7,336
10......................................              23               3              40           77.44           9,293           5,055           7,122
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............  ..............  ..............  ..............          40,268          25,549          32,942
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................  ..............  ..............  ..............  ..............  ..............           3,638           3,862
--------------------------------------------------------------------------------------------------------------------------------------------------------

Annual Railroad Responsibilities After Receipt of Special Approval
    Each railroad that receives special approval for an operation with 
fewer than two crewmembers would be required to conduct an annual 
review and analysis, and report to FRA its findings and conclusions no 
later than March 31 of the following year.
    As part of the annual railroad responsibilities in Sec.  218.139, 
railroads must confirm that the risk assessment, including all 
calculations and assumptions, remains unchanged. This section also 
requires railroads to submit information about their specially approved 
operations collected over the course of the previous year.
    The annual burden would be eight hours per train operation. The 
total estimated cost for annual railroad responsibilities for Class III 
railroads would be $69,694 over the 10-year analysis. The discounted 
value would be $46,979 (PV, 7 percent). The table below shows the 
annual costs for annual railroad responsibilities on Class III 
railroads.

[[Page 45612]]



                                         10-Year Costs for Annual Railroad Responsibilities, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                          Year                              reports per      Hours per      Hourly wage     Total costs    Present value   Present value
                                                               year          operation       rate  ($)          ($)           7%  ($)         3%  ($)
                                                                       a               b               c   d = a * b * c  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................               0               8           77.44               0               0               0
2.......................................................               7               8           77.44           4,027           3,763           3,909
3.......................................................               7               8           77.44           4,491           3,923           4,234
4.......................................................               8               8           77.44           5,111           4,172           4,677
5.......................................................              10               8           77.44           5,885           4,490           5,229
6.......................................................              11               8           77.44           6,815           4,859           5,878
7.......................................................              13               8           77.44           8,054           5,366           6,745
8.......................................................              16               8           77.44           9,602           5,980           7,808
9.......................................................              19               8           77.44          11,616           6,760           9,169
10......................................................              23               8           77.44          14,094           7,666          10,802
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............          69,694          46,979          58,451
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................................  ..............  ..............  ..............  ..............           6,689           6,852
--------------------------------------------------------------------------------------------------------------------------------------------------------

Summary of Class III Railroad Costs
    The following table shows the annualized cost for Class III 
railroads that are conducting train operations with fewer than two 
crewmembers over the 10-year analysis period. The total annualized cost 
for all class III railroads would be $51,907 (PV, 7 percent).

  Total 10-Year Costs, Class III Railroads (Legacy and New Operations)
------------------------------------------------------------------------
                                                            Annualized
                      Cost category                           cost, 7
                                                           percent  ($)
------------------------------------------------------------------------
Special Approval........................................          16,138
Risk Assessment.........................................          20,495
Risk Assessment Revisions...............................             144
Risk Assessment--Material Modifications.................           8,441
Railroad Oversight Responsibilities.....................           6,689
                                                         ---------------
    Total Cost for All Class III Railroads..............          51,907
------------------------------------------------------------------------

    The industry trade organization representing small railroads, 
ASLRRA, reports the average freight revenue per Class III railroad is 
$4.75 million.\234\ The following table summarized the average annual 
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \234\ American Short Line and Regional Railroad Association, 
Short Line and Regional Railroad Facts and Figures, p. 10 (2017 
pamphlet) (hereinafter Facts and Figures).

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
                                                               Average  annual
   Total cost for all Class III railroads,       Number of      cost per Class   Average Class   Average  annual
          annualized 7 percent  ($)              Class III       III railroad     III revenue    cost as percent
                                                 railroads           ($)              ($)        of revenue  (%)
----------------------------------------------------------------------------------------------------------------
a                                                          b        c = a / b                d        e = c / d
----------------------------------------------------------------------------------------------------------------
51,907......................................              36            1,442        4,750,000             0.03
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad that is operating 
with fewer than two-person crews would be $1,442. This represents a 
small percentage (0.03%) of the average annual revenue for a Class III 
railroad.
    The estimates above show that the burden on Class III railroads 
would not be a significant economic burden. FRA requests comments on 
this estimate and will consider all comments when making a 
determination for the final rule.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates, 
overlaps with, or conflicts with this NPRM. This proposed rule is 
complementary 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 positive train control (PTC) 
systems by required railroads; \235\ railroad safety risk reduction 
programs; \236\ and the development of fatigue risk management 
programs.\237\ Each of these initiatives will enhance safety, and may 
either aid

[[Page 45613]]

a railroad in transitioning to an operation with fewer than two 
crewmembers or assist a railroad in identifying hazards and mitigating 
risks associated with those hazards once such an operation is 
established. None of these initiatives, however, focus exclusively on 
the specific hazards and risks associated with reducing the number of 
train crewmembers to fewer than two crewmembers, nor do they 
necessarily require railroads to identify, evaluate, or mitigate any 
such hazards and risks.
---------------------------------------------------------------------------

    \235\ See generally 49 CFR part 236, subpart I; and press 
release in which FRA announces full implementation of positive train 
control (Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \236\ 49 CFR parts 270 and 271.
    \237\ 85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR 
parts 270 and 271 to require certain railroads to develop and 
implement a Fatigue Risk Management Program as one component of the 
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------

6. A Description of Significant Alternatives to the Rule
    This analysis considered two alternatives to the rule: the baseline 
approach, and a waiver process for FRA-approval of trains operating 
with fewer than two crewmembers. The baseline alternative (no action) 
would not ensure that safety is being considered by railroads when 
reducing crew size. There are many benefits to having two crewmembers 
in the locomotive. Without this rule, railroad operations may be less 
safe if railroads do not provide alternate measures to ensure safety is 
not eroded when reducing the number of crewmembers to fewer than two 
people.
    A waiver process alternative requires a railroad seeking FRA-
approval to file a petition containing adequate safety data, but does 
not require that the safety data include a risk assessment. Risk 
management is a method used to identify, control, and eliminate or 
reduce hazards to within a range of acceptability. The goal of a risk 
assessment is to assess risk in an objective manner by following a 
decision-making process designed to systematically identify hazards, 
assess the degree of risk associated with those hazards, and, based on 
those assessed risks, identify and implement measures to eliminate or 
mitigate the risks to an acceptable level. A waiver process alternative 
would remove the standardization and objectivity offered by a risk 
assessment, leaving it more difficult for FRA to consistently evaluate 
railroad operations with fewer than two crewmembers.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) for approval 
under the Paperwork Reduction Act of 1995.\238\ The sections that 
contain the new information collection requirements and the estimated 
time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \238\ 44 U.S.C. 3501 et seq.
    \239\ For purposes of this table, there are 671 railroads, 
excluding tourist railroads not on the general system, in the 
respondent universe. Additionally, FRA is currently aware of nine 
one-person train crew operations.
    \240\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the 2020 Surface Transportation 
Board's Full Year Wage A&B data series using the appropriate 
employee group hourly wage rate that includes 75-percent overhead 
charges.
    \241\ Totals may not add due to rounding.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Average time    Total annual     Total cost
             CFR section                 Respondent  universe \239\          Total annual  responses       per response       burden       equivalent in
                                                                                                              (hours)         (hours)       U.S. dollar
                                                                        (A).............................             (B)     (C = A * B)   (D = C * wage
                                                                                                                                            rates) \240\
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.123--General crew staffing        671 railroads...................  3 adopted rules and practices...               8              24          $1,859
 requirements--Each railroad's
 adoption or revision of rules and
 practices with the requirement of
 subpart G (New proposed
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(d)(2) Location of              Direct communications between train crewmembers during train operations are a usual and customary practice.
     crewmember(s) that is not         Consequently, there is no burden connected with this provision.
     operating the train when the
     train is moving--Direct
     communication between train
     crew members (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    218.127(c)--Specific passenger    The burden for emergency preparedness plans is already included under OMB Control Number 2130-0545. Consequently,
     and tourist train operation       there is no additional burden associated with this requirement.
     exceptions to two-person crew
     requirement--Passenger
     railroads' emergency
     preparedness plan approved
     under 49 CFR 239.201 (New
     proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(d)(3) Federal Transit          The burden for approved FTA and SSO Public Transportation Agency Safety Plans is included under OMB Control Number
     Administration (FTA) and          2132-0558. Consequently, there is no additional burden associated with this requirement.
     designated State Safety
     Oversight (SSO) Agency approved
     Public Transportation Agency
     Safety Plan in accordance with
     49 CFR parts 673 and 674 (New
     proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.129(b)(1) and (2)--Specific       Direct communications between train crewmembers and dispatchers during train operations are a usual and customary
 freight train exceptions to two-      practice. Consequently, there is no burden connected with this provision.
 person crew requirement--Direct
 communication between train
 crewmembers and dispatchers (New
 proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b)(3) through (7) Railroad's   The burden for this requirement is included under Sec.   218.123.
     method and protocol for
     determining when communication
     is lost with a one-person train
     crew (New proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(c)(1)(ii)(B) Small railroad    Direct communications between crew members during train operations are a usual and customary practice.
     operations--Direct                Consequently, there is no burden connected with this provision.
     communication between crew
     members (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(c)(3) Remote control           The burden for air brake and train handling instructions is already included under OMB Control Number 2130-0008
     operations--Controlling           (49 CFR part 232). Consequently, there is no additional burden associated with this requirement.
     railroad has developed air
     brake and train handling
     instructions governing these
     operations (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.131(a) through (b)(11)--Special   9 railroads.....................  3 one-person train crew                       40             120           9,293
 approval petition requirements for                                      operation descriptions.
 continuance of legacy train
 operations staffed with a one-
 person train crew (New proposed
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 45614]]

 
    --(b)(12) Copy of any railroad    The burden of this requirement is included above.
     rule or practice that applies
     to the one-person train crew
     operation (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b)(13) A disabled-train/post-  The burden for this requirement is included under Sec.   218.131(a) through (b)(11).
     accident protocol (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b)(14) and (15) Accident and   The burden for this requirement is included under Sec.   218.131(b)(1) through (11).
     incident data or any other
     information describing
     protections in lieu of a second
     train crewmember (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.133(a)(2)--Special approval       There are many exceptions for passenger operations already in existence. Consequently, FRA anticipates no
 petition requirements for             passenger operations would apply for special approval for one-person crews.
 initiation of train operations
 staffed with fewer than two
 members--Passenger railroads
 seeking to begin train operations
 with fewer than two crewmembers
 (New proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b)(1) through (14) Petition    671 railroads...................  3 waiver petitions..............              40             120           9,293
     for initiation of a train
     operation staffed with fewer
     than two crewmembers that does
     not meet an exception
     identified in Sec.  Sec.
     218.125 through 218.131 (New
     proposed requirement).
    --(b)(15) Risk assessment for     671 railroads...................  3 risk assessments..............             120             360          27,878
     initiation of a train operation
     staffed with fewer than two
     crewmembers that does not meet
     an exception identified in Sec.
      Sec.   218.125 through 218.131
     (New proposed requirement).
    --(b)(15) Revised risk            671 railroads...................  1 revised risk assessment.......              24              24           1,859
     assessment after FRA's initial
     of the risk assessment for a
     train operation staffed with
     fewer than two crewmembers that
     does not meet an exception
     identified in Sec.  Sec.
     218.125 through 218.131--
     Railroads' response to FRA (New
     proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.135(a)--Risk assessment content   The burden for this requirement is included under Sec.  Sec.   218.133(b)(15) and 218.137(e).
 and procedures--General (New
 proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b) Alternative standard--      The burden for this requirement is included under Sec.  Sec.   218.133(b)(15), 218.137(e), and 218.139.
     Petition for approval to use
     alternative methodologies (New
     proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.137(c)--Special approval          Railroad industry and interested  2 petition comments.............               1               2             155
 procedure--Comments sent to FRA on    parties.
 petitions for special approval (New
 proposed requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(d)(1) Disposition of           The requirements of this provision are exempted from the Paperwork Reduction Act under 5 CFR 1320.4(a)(2) because
     petitions--Hearings on            this activity is conducted during an administrative action affecting specific individuals or entities.
     petitions (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(d)(2) Special approval         The burden for this requirement is included under Sec.   218.137(e).
     procedure--Disposition of
     petitions--Petitioners'
     response to FRA's special
     conditions to the approval of
     petition (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(e) Modified operation          9 railroads.....................  1 risk assessment...............             120             120           9,293
     submitted to FRA--Legacy
     railroads (New proposed
     requirement).
    --(e) Modified operation          671 railroads...................  2 updated risk assessments......              40              80           6,195
     submitted to FRA--New one-
     person operation (New proposed
     requirement).
218.139--Annual railroad              671 railroads...................  8 annual reviews................               8              64           4,956
 responsibilities after receipt of
 special approval--Annual review and
 analysis of FRA-approved train
 operation(s) (New proposed
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
    --(b)(7) Written confirmation     The burden for this requirement is included under Sec.   218.139.
     that the risk assessment for
     operations approved under Sec.
      218.133 (New proposed
     requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Total \241\.................  671 railroads...................  26 responses....................             N/A             914          70,780
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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. For information or a copy of 
the paperwork package submitted to OMB, contact Ms. Hodan Wells, 
Information Collection Clearance Officer, at 202-493-0440. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them via email to 
Ms. Wells at [email protected].
    OMB is required to decide concerning the collection of information 
requirements contained in this rule

[[Page 45615]]

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. FRA 
is not authorized to impose a penalty on persons for violating 
information collection requirements that 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,\242\ 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.
---------------------------------------------------------------------------

    \242\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. FRA has 
determined that this proposed rule has no federalism implications, 
other than the possible preemption of State laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \243\ 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 proposed rule 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.
---------------------------------------------------------------------------

    \243\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------

F. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National 
Environmental Policy Act \244\ (NEPA), the Council of Environmental 
Quality's NEPA implementing regulations,\245\ and FRA's NEPA 
implementing regulations \246\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\247\ Specifically, FRA has determined that this 
proposed rule is categorically excluded from detailed environmental 
review.\248\
---------------------------------------------------------------------------

    \244\ 42 U.S.C. 4321 et seq.
    \245\ 40 CFR parts 1500 through 1508.
    \246\ 23 CFR part 771.
    \247\ 40 CFR 1508.4.
    \248\ See 23 CFR 771.116(c)(15) (categorically excluding 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly 
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The main purpose of this rulemaking is to establish minimum 
requirements for the size of train crew staffs depending on the type of 
operation to maintain safety. This rule would not directly or 
indirectly impact any environmental resources and would not result in 
significantly increased emissions of air or water pollutants or noise. 
In analyzing the applicability of a CE, FRA must also consider whether 
unusual circumstances are present that would warrant a more detailed 
environmental review.\249\ FRA has concluded that no such unusual 
circumstances exist with respect to this proposed rule and it meets the 
requirements for categorical exclusion.\250\
---------------------------------------------------------------------------

    \249\ 23 CFR 771.116(b).
    \250\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\251\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\252\ Further, FRA 
reviewed this proposed rulemaking and found it consistent with 
Executive Order 14008, ``Tackling the Climate Crisis at Home and 
Abroad.''
---------------------------------------------------------------------------

    \251\ See 16 U.S.C. 470.
    \252\ See Department of Transportation Act of 1966, as amended 
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' and DOT 
Order 5610.2B \253\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations. FRA has evaluated this 
proposed rule under Executive Order 12898 and the DOT Order and has 
determined it would not cause disproportionately high and adverse human 
health and environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \253\ Available at: https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice.

---------------------------------------------------------------------------

[[Page 45616]]

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\254\ 
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 \255\ further requires that ``before 
promulgating any general notice of proposed rulemaking that is likely 
to result in promulgation of any rule that includes any Federal mandate 
that may result in the 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'' detailing the effect on State, local, and tribal 
governments and the private sector. This proposed rule would not result 
in the expenditure, in the aggregate, of $100,000,000 or more (as 
adjusted annually for inflation) in any one year, and thus preparation 
of such a statement is not required.
---------------------------------------------------------------------------

    \254\ Public Law 104-4, 2 U.S.C. 1531.
    \255\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action.'' \256\ FRA evaluated this proposed rule 
under Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.
---------------------------------------------------------------------------

    \256\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

J. Privacy Act Statement

    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, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, we 
encourage commenters to provide their name, or the name of their 
organization; however, submission of names is completely optional. 
Whether or not commenters identify themselves, all timely comments will 
be fully considered. If you wish to provide comments containing 
proprietary or confidential information, please contact the agency for 
alternate submission instructions.

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. Amend Sec.  218.5 by adding definitions in alphabetical order for 
``Associate Administrator'', ``FTA'', ``Hazard'', ``Mishap'', ``Risk'', 
``Risk assessment'', ``Switching service'', ``Tourist train 
operation'', ``Tourist train operation that is not part of the general 
railroad system of transportation'', ``Trailing tons'', and ``Train'' 
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.
* * * * *
    Hazard means an existing or potential condition that could lead to 
an unplanned event or series of events (i.e., mishap) that can cause an 
accident or incident; injury, illness, or death; damage to or loss of a 
system, equipment, or property; or damage to the environment.
* * * * *
    Mishap means an event or condition or series of events or 
conditions resulting in an accident or incident.
    Risk means the combination of the expected probability (or 
frequency of occurrence) and the consequence (or severity) of a hazard.
    Risk assessment means the process of determining, either 
quantitatively or qualitatively, the measure of risk associated with 
train operations with fewer than two crewmembers under all intended 
operating conditions.
* * * * *
    Switching service means classifying 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 locomotives and cars for repair or storage; or moving 
of rail equipment in connection with work service that does not 
constitute a train movement.
    Tourist train operation means a tourist, scenic, historic, or 
excursion train operation.
    Tourist train operation that is not part of the general railroad 
system of transportation means a tourist, scenic, historic, or 
excursion train 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.
* * * * *
0
3. Add subpart G to read as follows:
Subpart G--Train Crew Size Safety Requirements
Sec.
218.121 Purpose and scope.
218.123 General train crew staffing requirements.
218.125 General exceptions to train crew staffing requirements.
218.127 Specific passenger and tourist train operation exceptions to 
crew staffing requirements.
218.129 Specific freight train exceptions to crew staffing 
requirements.
218.131 Special approval petition requirements for continuance of 
legacy train operations staffed with a one-person train crew.
218.133 Special approval petition requirements for initiation of 
train operations staffed with fewer than two crewmembers.
218.135 Risk assessment content and procedures.
218.137 Special approval procedure.
218.139 Annual railroad responsibilities after receipt of special 
approval.

Subpart G--Train Crew Size Safety Requirements


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 for safe 
train operations under all operating conditions.

[[Page 45617]]

    (b) This subpart prescribes minimum requirements for the size of 
different train crew staffs depending on the type of operation and 
operating conditions. The minimum crew staffing requirements reflect 
the safety risks posed to railroad employees, passengers, the public, 
and the environment. This subpart also prescribes minimum requirements 
for the location of a second crewmember 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  General train crew staffing requirements.

    (a) General. Each railroad shall comply with the requirements of 
this subpart, and may adopt its own rules or practices consistent with 
the requirements of this subpart. If 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 implementing the requirements of this subpart, that person 
shall be considered to have violated the requirements of this subpart.
    (b) Two-person train crew staffing requirement. Except as provided 
for in this subpart, each train shall be assigned a minimum of two 
crewmembers.
    (c) Hazardous material two-person train crew mandate. For the 
purposes of this paragraph (c), a tank car containing residue of a 
hazardous material as defined in Sec.  171.8 of this title is not 
considered a loaded car. None of the exceptions in Sec. Sec.  218.125 
through 218.133 are applicable when any train is transporting:
    (1) Twenty (20) or more loaded tank cars or loaded intermodal 
portable tanks of any one or any combination of hazardous materials 
identified in Sec.  232.103(n)(6)(i)(B) of this chapter; or
    (2) One or more car loads of rail-security sensitive materials 
(RSSM) as defined in Sec.  1580.3 of this title.
    (d) Location of crewmember(s) 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 if:
    (1) 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 and the locomotive engineer in the cab of 
the controlling locomotive can directly communicate with each other;
    (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.  218.125  General exceptions to train crew staffing requirements.

    Except as provided in Sec.  218.123(c), the following general 
exceptions apply to the requirements in Sec.  218.123 for two-person 
crew staffing and the location of crewmember(s) when the train is 
moving. A train does not require a minimum of two crewmembers under the 
following conditions:
    (a) Helper service. The train is performing helper service, i.e., 
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; or
    (b) Lite locomotive. The train is 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.


Sec.  218.127  Specific passenger and tourist train operation 
exceptions to crew staffing requirements.

    The following passenger and tourist train operations do not require 
a minimum of two crewmembers:
    (a) The train is a tourist train operation that is not part of the 
general railroad system of transportation;
    (b) A passenger or tourist train operation in which:
    (1) The locomotive engineer is moving cars empty of passengers; and
    (2) Passengers will not board the train's cars until the crew 
conducts a safety briefing on the safe operation and use of the train's 
exterior side doors, in accordance with Sec.  238.135 of this chapter;
    (c) A passenger or tourist 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 part 239 of this chapter) the passenger railroad's 
emergency preparedness plan for this operation is approved under Sec.  
239.201 of this chapter; or
    (d) A rapid transit operation in an urban area, i.e., an urban 
rapid transit system 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 operator has an FTA/SSO-approved Public Transportation 
Agency Safety Plan in accordance with parts 673 and 674 of this title.


Sec.  218.129  Specific freight train exceptions to crew staffing 
requirements.

    (a) Requirements for mine load out, plant dumping, or similar 
operation exception. A unit freight train, i.e., a train composed of 
cars carrying a single type of commodity, is being loaded or unloaded 
in an assembly line manner while the train moves at 10 miles per hour 
or less on a track which is temporarily made inaccessible from the 
general railroad system of transportation. During the loading or 
unloading process, there must not be any duties requiring a second 
crewmember (e.g., no operation of a hand-operated switch, filling out 
paperwork, or calling of signal indications). If the operation is 
overseen by another person, typically in a tower or on the ground, that 
person must have the capability of communicating with the locomotive 
engineer operating the train.
    (b) Requirements for certain specific freight train exceptions. 
Each railroad that implements an operation, described as an exception 
in paragraph (c) of this section, shall adopt and comply with a 
railroad operating rule or practice for its train operation with fewer 
than two crewmembers that complies with the following requirements of 
this paragraph (b):
    (1) A one-person train crewmember must remain in the locomotive cab 
during normal operations and may leave the locomotive cab only in case 
of an emergency affecting railroad operations;
    (2) A one-person train crewmember must contact the dispatcher 
whenever it can be anticipated that radio communication could be lost, 
e.g., before the train enters a tunnel, unless technology or a protocol 
is established to monitor the train's real-time progress;
    (3) If the railroad cannot monitor the train's real-time progress, 
the railroad must have a method of determining the train's approximate 
location when communication is lost with the one-person crew;
    (4) The railroad must establish a protocol for determining when 
search-and-rescue operations shall be initiated when all communication 
is lost with a one-person train crew;

[[Page 45618]]

    (5) A one-person train operation's lead locomotive must be equipped 
with an alerter, as defined in Sec.  229.5 of this chapter, and a one-
person train crewmember must test that alerter to confirm it is working 
before departure;
    (6) The dispatcher must confirm with a one-person train crewmember 
that the train is stopped before conveying a mandatory directive by 
radio transmission as required in Sec.  220.61 of this chapter; and
    (7) A one-person train crewmember must have a working radio on the 
lead locomotive and a redundant, electronic device appropriate for 
railroad communications as permitted in part 220, subpart C, of this 
chapter.
    (c) Exceptions. Except as provided in Sec.  218.123(c), the 
following freight train operations are excepted from the requirements 
in Sec.  218.123 for two-person crew staffing and location of 
crewmember(s) when the train is moving.
    (1) Small railroad operations. A freight train operated on a 
railroad and by an employee of a railroad with fewer than 400,000 total 
employee work hours annually may operate with one crewmember at a 
maximum authorized speed not exceeding 25 miles per hour under either 
of the following sets of conditions:
    (i)(A) 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; and
    (B) The total length of the train is no greater than 6,000 feet; or
    (ii)(A) A second train crewmember, other than the locomotive 
engineer, is intermittently assisting the train's movements; and
    (B) The second train crewmember and the locomotive engineer in the 
cab of the controlling locomotive can directly communicate with each 
other;
    (2) Work train operations. During work train operations when a non-
revenue service train that does not exceed 4,000 trailing tons is used 
for the administration and upkeep service of the railroad. This 
includes when such a work train is traveling to or from a work site; or
    (3) 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:
    (i) The locomotive consist does not exceed 6,000 total working 
horsepower and is utilizing no more than 12 powering axles;
    (ii) The train length, excluding locomotives, does not exceed 3,000 
feet;
    (iii) The train tonnage, excluding locomotives, does not exceed 
4,000 tons;
    (iv) The train does not exceed a total of 50 conventional cars or 
platforms, in any combination;
    (v) 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;
    (vi) Movements are restricted from operating on any grade greater 
than 1 percent that extends for more than half a mile; and
    (vii) 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.  218.131  Special approval petition requirements for continuance 
of legacy train operations staffed with a one-person train crew.

    (a) Except as provided in Sec.  218.123(c), a one-person train 
operation that has been established for at least two years before 
[EFFECTIVE DATE OF FINAL RULE], may continue if the railroad files a 
special approval petition under Sec.  218.137, containing a description 
of the operation no later than [DATE 90 DAYS AFTER EFFECTIVE DATE OF 
FINAL RULE]. A railroad is not required to file a special approval 
petition if the one-person operation is limited to an exception covered 
by Sec.  218.125, Sec.  218.127, or Sec.  218.129.
    (b) The special approval petition shall, at a minimum, include the 
following:
    (1) The name, title, address, telephone number, and email address 
of the primary person to be contacted regarding review of the special 
approval petition;
    (2) The location of the continuing operation, with as much 
specificity as can be provided, as to industries or communities served, 
and track segments, territories, divisions, or subdivisions operated 
over;
    (3) The class(es) of track operated over, the method of operation, 
and a list of the signal and train control systems, devices, and 
appliances installed and in operation;
    (4) 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;
    (5) The maximum authorized speed of the operation;
    (6) The approximate average number of miles and hours a single 
person operates as a one-person train crew;
    (7) The maximum number of cars and tonnage set for the operation, 
if any;
    (8) Whether the one-person operation is permitted to haul hazardous 
materials of any quantity and type, and the approximate percentage of 
carload traffic in the one-person operation that is hazardous 
materials;
    (9) Whether any limitations are placed on a person operating as a 
one-person train crew. Such limitations may include, but are not 
limited to, a maximum number of miles or hours during a single tour of 
duty, or limitations placed on a person in coordination with a fatigue 
mitigation plan;
    (10) Information regarding other operations traveling 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 (e.g., passenger 
trains or freight trains hauling hazardous materials);
    (11) A detailed description of any technology that is used to 
perform tasks typically performed by a second crewmember, or that 
prevents or mitigates the consequences of accidents or incidents;
    (12) A copy of any railroad rule or practice that applies to the 
one-person train crew operation, but does not apply to train crew 
operations with two or more crewmembers. FRA will not approve a 
petition unless these railroad rules or practices include the following 
requirements:
    (i) The one-person train crewmember must remain in the locomotive 
cab during normal operations and may leave the locomotive cab only in 
case of an emergency;
    (ii) The one-person train crewmember must contact the dispatcher 
whenever it can be anticipated that radio communication could be lost, 
e.g., before the train enters a tunnel, unless technology or a protocol 
is established to monitor the train's real-time progress;
    (iii) If the railroad cannot monitor the train's real-time 
progress, the railroad must have a method of determining the train's 
approximate location when communication is lost with the one-person 
crew;
    (iv) The railroad must establish a protocol for determining when 
search-and-rescue operations shall be initiated when all communication 
is lost with the one-person train crew;
    (v) The one-person train operation's lead locomotive must be 
equipped with an alerter, as defined in Sec.  229.5 of this chapter, 
and the one-person train crewmember must test that alerter to confirm 
it is working before departure;

[[Page 45619]]

    (vi) The dispatcher must confirm with the one-person train 
crewmember that the train is stopped before conveying a mandatory 
directive by radio transmission as required in Sec.  220.61 of this 
chapter; and
    (vii) The one-person train crewmember must have a working radio on 
the lead locomotive and a redundant, electronic device appropriate for 
railroad communications as permitted in part 220, subpart C, of this 
chapter;
    (13) A disabled-train/post-accident protocol that quickly brings 
railroad employees to the scene of a disabled train or accident. The 
protocol must describe the role and responsibilities of the one-person 
train crewmember and any other railroad employees, including 
supervisors, with responsibility to address a disabled train or 
accident. The proposed protocol must also describe any logistics and 
the railroad's expected response time(s). A passenger train operation 
with an approved emergency preparedness plan under part 239 of this 
chapter satisfies the requirement in this paragraph (b)(13);
    (14) Five (5) years of accident and incident data, as required by 
part 225 of this chapter, for the operation identified in paragraph 
(b)(2) of this section or, for operations established less than five 
(5) years before [EFFECTIVE DATE OF FINAL RULE], accident and incident 
data for the operation from the date the operation was established; and
    (15) Any other information describing protections provided in lieu 
of a second train crewmember, or relevant data or analysis, or both, 
for FRA to consider in determining whether approving the special 
approval petition is consistent with railroad safety.
    (c) FRA may request any additional information, beyond what is 
provided in the petition, that it deems necessary.


Sec.  218.133  Special approval petition requirements for initiation of 
train operations staffed with fewer than two crewmembers.

    (a) General. (1) With the exception of operations permitted under 
Sec. Sec.  218.125 through 218.131, no railroad may operate a train 
with fewer than two crewmembers unless it receives special approval for 
the operation under this subpart.
    (2) Passenger railroads seeking to begin train operations with 
fewer than two crewmembers must obtain FRA's approval under Sec.  
218.137 and have either:
    (i) An approved passenger train emergency preparedness plan under 
part 239 of this chapter for the operation; or
    (ii) An approved waiver from the passenger train emergency 
preparedness plan requirements as permitted under part 211 of this 
chapter. A passenger railroad may petition FRA for both a waiver under 
part 211 and special approval for initiation of train operations 
staffed with fewer than two crewmembers in the same filing.
    (b) Petition for initiation of a train operation staffed with fewer 
than two crewmembers. Each petition for initiation of a train operation 
with fewer than two crewmembers that does not meet an exception 
identified in Sec. Sec.  218.125 through 218.131 must contain 
sufficient information for FRA to determine whether approving the 
petition operation is consistent with railroad safety. At a minimum, a 
petition must include:
    (1) The name, title, address, telephone number, and email address 
of the primary person to be contacted regarding review of the special 
approval petition;
    (2) The location of the operation, with as much specificity as can 
be provided, as to industries or communities served, and track 
segments, territories, divisions, or subdivisions operated over;
    (3) The class(es) of track to be operated over, the method of 
operation, and a list of the signal and train control systems, devices, 
and appliances installed and in operation;
    (4) 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;
    (5) The maximum authorized speed of the operation;
    (6) The approximate average number of miles and hours a person is 
projected to operate as a train crewmember in a fewer than two-person 
train operation;
    (7) The maximum number of cars and tonnage proposed for the 
operation, if any;
    (8) Whether the operation will be permitted to haul hazardous 
materials (as defined by Sec.  171.8 of this title) of any quantity and 
type;
    (9) Whether any limitations will be placed on a person operating as 
a one-person train crew. Such limitations may include, but are not 
limited to, a maximum number of miles or hours during a single tour of 
duty, or limitations placed on a person in coordination with a fatigue 
mitigation plan;
    (10) Information regarding other operations that may travel on the 
same track as, or an adjacent track to, the train operation staffed 
with fewer than two crewmembers. Such information shall include, but is 
not limited to, the volume of traffic and the types of opposing moves 
(e.g., passenger or freight trains hauling hazardous materials);
    (11) A detailed description of any technology that will be used to 
perform tasks typically performed by a second crewmember, or that will 
prevent or significantly mitigate the consequences of accidents or 
incidents;
    (12) A copy of any railroad rule or practice that will apply to the 
proposed train operation(s) with fewer than two crewmembers, but does 
not apply to train crew operations with two or more crewmembers;
    (13) A disabled-train/post-accident protocol that quickly brings 
railroad employees to the scene of a disabled train or accident. The 
protocol must describe the role and responsibilities of the one-person 
train crewmember and any other railroad employees, including 
supervisors, with responsibility to address a disabled train or 
accident. The protocol must also describe any logistics and the 
railroad's expected response time(s). A passenger train operation with 
an approved emergency preparedness plan under part 239 of this chapter 
satisfies the requirement in this paragraph (b)(13);
    (14) Five (5) years of accident and incident data, as required by 
part 225 of this chapter, for the operation identified in paragraph 
(b)(2) of this section, when operating with two or more crew members, 
or, for operations established less than five (5) years before 
[EFFECTIVE DATE OF FINAL RULE], accident and incident data for the 
operation from the date the operation was established;
    (15) A risk assessment of the proposed operation that meets the 
requirements of Sec.  218.135; and
    (16) Any other information describing protections provided in lieu 
of a second train crewmember, or other relevant data or analysis.
    (c) Additional information. FRA may request any additional 
information, beyond what is provided in the petition, that it deems 
necessary.


Sec.  218.135  Risk assessment content and procedures.

    (a) General. A risk assessment submitted under this subpart must 
meet the following requirements:
    (1) Contain a complete description of the railroad environment, 
including, at a minimum:
    (i) All authorized method(s) of operation;
    (ii) All applicable operating rules and practices;
    (iii) Hours of operation;
    (iv) Qualifications and certifications of crewmembers;
    (v) Number and frequency of trains involved;

[[Page 45620]]

    (vi) The tonnage, length, and makeup of the trains involved;
    (vii) The route and terrain over which the trains will be operated 
(e.g., maximum grade, sight distances);
    (viii) Number and types of grade crossings;
    (ix) Amount and types of hazardous materials to be transported, if 
any;
    (x) The characteristics of the geographic areas through which the 
trains will operate (e.g., population density and proximity to 
environmentally sensitive areas); and
    (xi) Any other relevant factor.
    (2) Contain a list and descriptions of all functions, duties, and 
tasks associated with the proposed operation to be performed by the one 
crewmember, other railroad employee(s), or equipment, including, at a 
minimum, any function performed:
    (i) To prepare a train for operation (including, but not limited 
to, pre-departure inspections, obtaining track bulletins, orders, or 
manifests, managing the train consist, including train makeup, 
obtaining and ensuring the accuracy of the train consist, arming and 
testing the end-of-train device, and performing brake tests);
    (ii) To operate a train (including, but not limited to, operating 
and controlling the train, interacting with non-crewmembers such as the 
dispatcher or roadway workers, and responding to emergencies or 
unexpected events); and
    (iii) To ensure safety once a train has stopped moving (e.g., 
including, but not limited to, securing the train).
    (3) Describe the allocation of all functions, duties, and tasks to 
the one crewmember, other railroad employee(s), or equipment.
    (4) Contain a hazard analysis for the proposed train operation's 
functions, duties, and tasks, including:
    (i) A hazard log consisting of a comprehensive description of all 
hazards associated with the proposed train operation.
    (ii) An assessment of each hazard in terms of the severity, 
measured as the worst-credible mishap resulting from the hazard and 
categorized in accordance with Table 1 to this paragraph (a)(4)(ii):

                   Table 1 to Sec.   218.135(a)(4)(ii)
------------------------------------------------------------------------
                                 Severity
                                ranking  (1
          Category            being the most          Definition
                                  severe)
------------------------------------------------------------------------
                           SEVERITY CATEGORIES
------------------------------------------------------------------------
Catastrophic................               1  Results in one or more of
                                               the following: fatality,
                                               irreversible significant
                                               environmental damage, or
                                               significant monetary
                                               loss. Accidents/incidents
                                               that must be reported to
                                               FRA telephonically under
                                               Sec.   225.9 of this
                                               chapter are considered
                                               catastrophic.
Critical....................               2  Results in one or more of
                                               the following:
                                               significant injury (as
                                               defined in Sec.   225.5
                                               of this chapter),
                                               reversible significant
                                               environmental damage, or
                                               reportable monetary loss.
                                               Accidents/incidents that
                                               are not telephonically
                                               reported under Sec.
                                               225.9 of this chapter,
                                               but are still FRA-
                                               reportable under Sec.
                                               225.19 of this chapter,
                                               are considered critical.
Marginal....................               3  Results in one or more of
                                               the following: minor
                                               injuries (i.e., injuries
                                               that are not significant
                                               as defined in Sec.
                                               225.5 of this chapter),
                                               reversible non-
                                               significant environmental
                                               damage, or monetary loss.
                                               Mishaps that are not FRA-
                                               reportable accidents/
                                               incidents, but are
                                               considered accountable
                                               rail equipment accidents/
                                               incidents as defined in
                                               Sec.   225.5 of this
                                               chapter, are considered
                                               marginal.
Negligible..................               4  Results in one or more of
                                               the following: no
                                               injuries, no
                                               environmental damage, or
                                               equipment or railroad
                                               structure damages that do
                                               not require repair.
------------------------------------------------------------------------

    (iii) An assessment of each hazard in terms of probability of 
occurrence as defined in Table 2 to this paragraph (a)(4)(iii):

                                      Table 2 to Sec.   218.135(a)(4)(iii)
----------------------------------------------------------------------------------------------------------------
                                                                     Qualitative              Quantitative
          Description                       Level                characterization of       characterization of
                                                                     probability             probability \1\
----------------------------------------------------------------------------------------------------------------
                                               PROBABILITY LEVELS
----------------------------------------------------------------------------------------------------------------
FREQUENT.......................  A                            Likely to occur           Greater than once every
                                                               frequently.               1,000 operating hours.
PROBABLE.......................  B                            Likely to occur several   Between once every 1,000
                                                               times.                    hours and once every
                                                                                         100,000 hours.
OCCASIONAL.....................  C                            Likely to occur once,     Between once every
                                                               but not several times.    100,000 hours and once
                                                                                         every 10,000,000 hours.
REMOTE.........................  D                            Unlikely but possible to  Between once every
                                                               occur.                    10,000,000 hours and
                                                                                         once every
                                                                                         1,000,000,000 hours.
IMPROBABLE.....................  E                            So unlikely that it can   Less than once every
                                                               be assumed the            1,000,000,000 hours.
                                                               occurrence may not be
                                                               experienced.
----------------------------------------------------------------------------------------------------------------
\1\ Probability of a hazard occurring per 1,000 operating hours.

    (iv) A hazard mitigation analysis outlining the sustainable actions 
and associated components, equipment, systems, or processes that are 
put in place to reduce or eliminate the probability or severity, or 
both, of each hazard. At a minimum, a hazard mitigation analysis must 
consider the following:
    (A) The design of the system, equipment, and components, including 
equipment reliability and the necessary functions to be performed, in 
both a normal operation and in a failed state; and
    (B) The human factors associated with the processes and tasks to be 
performed, including the required skills and

[[Page 45621]]

capabilities, the operating environment, and existing or potential 
impairments.
    (5) A risk matrix in the format of Table 3 to this paragraph (a)(5) 
that classifies the severity and likelihood of each partially mitigated 
or unmitigated hazard as follows:

                                         Table 3 to Sec.   218.135(a)(5)
----------------------------------------------------------------------------------------------------------------
                                                                    Severity
         Probability          ----------------------------------------------------------------------------------
                                (1)  Catastrophic      (2)  Critical        (3)  Marginal       (4)  Negligible
----------------------------------------------------------------------------------------------------------------
                                                   Risk Matrix
----------------------------------------------------------------------------------------------------------------
(A) FREQUENT.................  1A                   2A                   3A                   4A
(B) PROBABLE.................  1B                   2B                   3B                   4B
(C) OCCASIONAL...............  1C                   2C                   3C                   4C
(D) REMOTE...................  1D                   2D                   3D                   4D
(E) IMPROBABLE...............  1E                   2E                   3E                   4E
----------------------------------------------------------------------------------------------------------------

    (6) A risk report of the train operation staffed with fewer than 
two crewmembers, documenting the basis for acceptability of all 
partially mitigated and unmitigated hazards identified in the matrix 
required by paragraph (a)(5) of this section. The risk report must, at 
a minimum, categorize the risk of each partially mitigated and 
unmitigated hazard as follows:
    (i) Unacceptable. Categories 1A, 1B, 1C, 1D, 2A, 2B, 2C, 3A, 3B, 
and 4A are unacceptable. A railroad should not file a petition for 
special approval with a hazard in this category as FRA will not approve 
an operation with a partially mitigated or unmitigated hazard that is 
categorized as unacceptable;
    (ii) Acceptable under specific conditions. Categories 1E, 2D, 3C, 
3D, 4B, and 4C are acceptable under specific conditions. A railroad's 
risk report must describe why the railroad finds the conditions 
acceptable. A hazard will be acceptable under specific conditions if 
FRA finds that accepting such hazard is consistent with railroad 
safety; and
    (iii) Acceptable. Categories 2E, 3E, 4D, and 4E are acceptable. FRA 
will not deny a petition for special approval because of an 
appropriately categorized acceptable hazard that is partially mitigated 
or unmitigated.
    (b) Alternative standard. A railroad may petition the Associate 
Administrator for approval to use alternative methodologies or 
procedures, or both, other than those required by paragraph (a) of this 
section to assess the risk associated with an operation proposed under 
this section. If, after providing public notice of the request for 
approval and an opportunity for public comment on the request, the 
Associate Administrator finds that any such petition demonstrates that 
the alternative proposed methodology or procedures, or both, will 
provide an accurate assessment of the risk associated with the 
operation, the Associate Administrator may approve the use of the 
proposed alternative(s).


Sec.  218.137  Special approval procedure.

    (a) Petition. Each railroad submitting a petition under Sec. Sec.  
218.131 and 218.133 shall send the petition by email to 
[email protected]. FRA will make the petition publicly available at 
https://www.regulations.gov.
    (b) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under Sec. Sec.  218.131 and 
218.133.
    (c) Comment. Not later than 60 days from the date of publication of 
the notice in the Federal Register under paragraph (b) of this section, 
any person may comment on the petition.
    (1) Each comment shall provide all relevant information and data in 
support of the commenter's position.
    (2) Each comment shall be submitted to FRA through https://www.regulations.gov.
    (d) Disposition of petitions. (1) If the Administrator finds it 
necessary or desirable, FRA will conduct a hearing on a petition in 
accordance with its rules of practice in part 211 of this chapter.
    (2) A petition must not be implemented until approved. If FRA finds 
that the petition complies with the requirements of Sec.  218.131 or 
Sec.  218.133, as applicable, and that approving the petition is 
consistent with railroad safety, FRA will grant the petition, normally 
within 120 days of its receipt. If the petition is neither granted nor 
denied within 120 days, the petition remains pending for decision. FRA 
may attach special conditions to the approval of the petition. 
Following the approval of a petition, FRA may reopen consideration of 
the petition for cause stated.
    (3) If FRA finds that a petition does not comply with the 
requirements of this subpart or that approving the petition would not 
be consistent with railroad safety, FRA will deny the petition, 
normally within 120 days of its receipt.
    (4) When FRA decides a petition, reopens consideration of a 
petition, or closes a reopened petition, FRA will send written notice 
of the decision to the petitioner and publish that decision in the 
docket.
    (e) Modifications. A railroad that intends to materially modify an 
operation subject to an FRA approval under this section shall submit a 
description of how it intends to modify the operation, along with 
either a new or an updated risk assessment accounting for the 
identified proposed modifications. A material modification submission 
is required for material modifications to both legacy train operations 
staffed with a one-person train crew under Sec.  218.131 and newly 
initiated train operations staffed with fewer than two crewmembers 
under Sec.  218.133. The new or updated risk assessment must meet the 
requirements of Sec.  218.135 and be submitted by email to 
[email protected] at least 60 days before proposing to implement 
any such modification. When FRA decides on a material modification to a 
petition, FRA will send written notice of the decision to the 
petitioner and publish that decision in the same docket created for the 
petition in paragraph (a) of this section. FRA may reopen consideration 
of a petition based on a material modification, deny the material 
modification, or grant the material modification with or without 
special conditions to the approval. A material modification must not be 
implemented until approved. If the material modification submission is 
neither granted nor denied within 60 days, the petition remains pending 
for decision. For the purposes of this paragraph (e), a material 
modification is a change:

[[Page 45622]]

    (1) To a railroad's operations, infrastructure, locomotive control 
technology, or risk mitigation technology, that may affect the safety 
of the operation;
    (2) That would affect the assumptions underlying the risk 
assessment on which an FRA approval under this section is based; or
    (3) That would affect the assumptions underlying the risk 
assessment's risk calculations or mitigations on which an FRA approval 
under this section is based.


Sec.  218.139  Annual railroad responsibilities after receipt of 
special approval.

    (a) Each railroad that receives special approval under either Sec.  
218.131 or Sec.  218.133 shall conduct a formal review and analysis 
each calendar year, of the FRA-approved train operation(s) with fewer 
than two crewmembers, and report to FRA its findings and conclusions 
from its review no later than March 31 of the following year to 
[email protected].
    (b) A railroad's annual report must include the safety data and 
information listed in paragraphs (b)(1) and (2) of this section for any 
FRA-approved train operation with fewer than two crewmembers.
    (1) The total number of:
    (i) FRA-reportable accident/incident under part 225 of this 
chapter, including subtotals for accidents/incidents that occurred at a 
highway-rail grade crossing and those that did not occur at a highway-
rail grade crossing, and subtotals by State and cause. If an accident/
incident was FRA-reportable for more than one reason (e.g., the 
accident/incident occurred at a highway-rail grade crossing and 
resulted in rail equipment damages higher than the current reporting 
threshold), the accident/incident shall only be listed once in the 
total calculation;
    (ii) FRA-reportable employee fatalities;
    (iii) FRA-reportable employee injuries;
    (iv) Trespasser fatalities at a highway-rail grade crossing;
    (v) Trespasser injuries at a highway-rail grade crossing;
    (vi) Passenger fatalities at a highway-rail grade crossing;
    (vii) Passenger injuries at a highway-rail grade crossing;
    (viii) Instances where a railroad employee did not comply with a 
railroad rule or practice applicable to the FRA-approved train 
operation(s) with fewer than two crewmembers, but not applicable to 
train crew operations with two or more crewmembers;
    (ix) Instances where a person certified as both a locomotive 
engineer and conductor had a certification revoked for violation of an 
operating rule or practice that occurred when the person was operating 
per an FRA-approved train operation with fewer than two crewmembers;
    (x) Accountable rail equipment accident/incident under part 225 of 
this chapter;
    (xi) Instances when the railroad was required to implement its 
disabled-train/post-accident protocol for an FRA-approved train 
operation with fewer than two crewmembers;
    (xii) Instances when a dispatcher unexpectedly lost communication 
with an FRA-approved train operation with fewer than two crewmembers;
    (xiii) Employee hours worked; and
    (xiv) Train miles.
    (2) For each instance counted in the totals reported in paragraphs 
(b)(1)(i) through (xii) of this section, a railroad's annual report 
must clearly identify each instance by date and location and provide a 
complete factual description of the event.
    (c) The annual report must also include written confirmation that 
the risk assessment for operations approved under Sec.  218.133, 
including all calculations and assumptions, remain unchanged, or for an 
operation approved under Sec.  218.131, written confirmation that the 
operation remains substantially the same as that described in the 
railroad's applicable special approval petition and that no technology 
changes have been implemented or new or additional hazards identified.
    (1) If any risk assessment calculation or assumption changes for an 
operation approved under Sec.  218.133, or an operation approved under 
Sec.  218.131 is found to have substantially changed, a new or updated 
risk assessment meeting the requirements of Sec.  218.135 must be 
prepared and submitted with the railroad's annual report. This annual 
reporting requirement does not negate the requirement to submit a new 
or updated risk assessment when making a material modification to an 
operation as required in Sec.  218.137.
    (2) Any new or updated risk assessment submitted in accordance with 
this paragraph (c) must include a written plan and schedule for 
implementing any mitigations required to address any newly identified 
hazards.
    (d) FRA will review and respond to a railroad's annual report 
submission by September 30 of the year it is submitted. FRA's response 
may include advice or recommendations. FRA may reopen consideration of 
a petition under Sec.  218.137 based on a finding that a railroad's 
annual report submission suggests that the petition does not comply 
with the requirements of this subpart or that the operation is no 
longer consistent with railroad safety.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2022-15540 Filed 7-27-22; 8:45 am]
BILLING CODE 4910-06-P