[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]
[[Page 45563]]
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.
[[Page 45567]]
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.
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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.
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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.
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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).
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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.
---------------------------------------------------------------------------
\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).
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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.
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\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.
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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.
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\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).
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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.
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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.
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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.
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\113\ See 49 CFR 220.61.
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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.
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\114\ 49 CFR 220.38 (describing the requirements for train
operations in the event of a communication equipment failure).
\115\ Id.
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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.
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\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.
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\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.
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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.
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\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.
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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.
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\125\ 49 CFR parts 171-180.
\126\ 80 FR 26644, 26649 (May 8, 2015).
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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.
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\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).
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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.
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\130\ 73 FR 72182, 72193 (Nov. 26, 2008).
\131\ Id. at 72184.
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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.
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\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.
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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).
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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\
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\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.
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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.
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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.
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\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).
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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.
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\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).
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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.
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\151\ 49 CFR 240.308(c)(2) and 242.213(d)(2).
\152\ See proposed 49 CFR 218.123(d).
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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.
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\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).
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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.
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\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.
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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).
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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).
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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.
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\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).
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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.
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\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.
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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.
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\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.
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\171\ 49 CFR 236.1015.
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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\
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\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\
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\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.
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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).
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\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).
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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).
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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.
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\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.
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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.
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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.
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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).
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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.
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\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.
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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.
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\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.
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\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.
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\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.
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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.
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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.
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\224\ See, e.g., 49 CFR 232.17, 238.21, and 238.203.
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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.
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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