Train Crew Size Safety Requirements
| Published date | 09 April 2024 |
| Record Number | 2024-06625 |
| Citation | 89 FR 25052 |
| Court | Federal Railroad Administration |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 25052-25115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06625]
[[Page 25051]]
Vol. 89
Tuesday,
No. 69
April 9, 2024
Part IVDepartment of Transportation-----------------------------------------------------------------------Federal Railroad Administration-----------------------------------------------------------------------49 CFR Part 218Train Crew Size Safety Requirements; Final Rule
Federal Register / Vol. 89 , No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 25052]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 218
[Docket No. FRA-2021-0032, Notice No. 5]
RIN 2130-AC88
Train Crew Size Safety Requirements
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FRA is establishing minimum safety requirements for the size
of train crews depending on the type of operation. This final rule
requires railroad operations to have a minimum of two crewmembers
except for certain identified one-person train crew operations that do
not pose significant safety risks to railroad employees, the public, or
the environment. This final rule includes requirements for railroads
seeking to continue certain existing one-person train crew operations
and a special approval process for railroads seeking to initiate
certain new one-person train crew operations. This final rule also
requires each railroad receiving special approval for a one-person
train crew operation to submit to FRA an annual report summarizing the
safety of the operation.
DATES: This regulation is effective June 10, 2024.
ADDRESSES: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time.
FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director,
Operating Practices Division, Office of Railroad Safety, Federal
Railroad Administration, at telephone (202) 366-0978 or by email at
[email protected]; or Alan Nagler, Senior Attorney, U.S.
Department of Transportation, Federal Railroad Administration, at
telephone (202) 493-6038 or by email at [email protected].
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
AAR--Association of American Railroads
ACI--American Consumer Institute
AII--Alliance for Innovation and Infrastructure
APTA--American Public Transportation Association
ASLRRA--American Short Line and Regional Railroad Association
ATDA--American Train Dispatchers Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
BMWED--Brotherhood of Maintenance of Way Employes Division
BNSF--BNSF Railway Company
CARS-TC--Citizens Acting for Rail Safety--Twin Cities
CFZ--Critical focus zones
CLF--California Labor Federation
CN--Canadian National Railway Company
Conrail--Consolidated Rail Corporation
CPUC--California Public Utilities Commission
CRC--Commuter Rail Coalition
CTC--Centralized traffic control system
CVR--Cimarron Valley Railroad
Denver RTD--Denver Regional Transportation District
DOT--Department of Transportation
FEC--Florida East Coast Railway
FRA--Federal Railroad Administration
FRFA--Final Regulatory Flexibility Analysis
FTA--Federal Transit Administration
GAO--U.S. Government Accountability Office
GCOR--General Code of Operating Rules
G&U--Grafton and Upton Railroad
INRD--Indiana Rail Road Company
mph--miles per hour
MU--Multiple-unit
NS--Norfolk Southern Railway Company
NPRM--Notice of proposed rulemaking
NPSC--Nebraska Public Service Commission
OMB--Office of Management and Budget
PTC--Positive train control
RCL--Remotely controlled locomotive
RGPC--Rio Grande Pacific Corporation
RIA--Regulatory Impact Analysis
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSSM--Rail-security sensitive materials
RWU--Railroad Workers United
SBA--Small Business Administration
SBA-Advocacy--Small Business Administration's Office of Advocacy
Secretary--Secretary of Transportation
SMART-TD--International Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division
SSO Agency--State Safety Oversight Agency
TFI--The Fertilizer Institute
TSA--Transportation Security Administration
TTD--Transportation Trades Department, AFL-CIO
TWU--Transport Workers Union of America
T&N--Texas and Northern Railway
UP--Union Pacific Railroad Company
UTA--Utah Transit Authority
Table of Contents for Supplementary Information
I. Executive Summary
II. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
B. Preemption
C. Comments Supporting the NPRM
1. Labor Organizations
2. Individual Commenters
3. Federal Congressional Commenters
4. State and Local Governmental Commenters
D. Tourist Railroad and Railroad Museum Industry Comment That
Asserted the NPRM Would Have No Impact
E. Comments Opposing the NPRM
1. Federal Congressional Commenters
2. Passenger Operations
3. Short Line and Regional Freight Railroads
4. Class I Freight Railroads
a. Alternative Crewmember Arrangements Including Expeditors,
Ground-Based Crewmembers, or Ground-Based Conductors
b. Train Operations in Other Countries
c. New Technology and Automated Operations
d. Transportation of Hazardous Materials
e. FRA Action on Regulating Crew Staffing
f. Risk Assessments and FRA's Review Standard
g. Remote Control Operations
F. Consideration of Requirements More Stringent Than Those
Proposed
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 114094
B. Regulatory Flexibility Act and Executive Order 113272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Assessment
G. Environmental Justice
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
I. Executive Summary
Purpose of the Regulatory Action
FRA is issuing this final 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 one-
person train crew. The final rule establishes minimum crew size safety
standards for all trains, including a risk assessment requirement to
evaluate hazards and ensure risk mitigation for those railroads looking
to initiate one-person train crew operations in the most complex
operating environments nationwide, that will reduce the likelihood of
future accidents proactively. As FRA explained in the notice of
proposed rulemaking (NPRM), FRA has qualitatively discussed the
benefits because it does not have sufficient data to monetize those
benefits. However, those benefits have the potential to reduce the
likelihood of at least one type of foreseeable accident that is more
likely to occur with a one-person train crew than a two-person train
crew if a locomotive is not equipped with a safety device that will
stop the train when the locomotive engineer is physically
unresponsive--even if the type of accident foreseen has not yet
occurred. Other qualitative benefits include ensuring that railroads
are adequately protecting the safety of a one-person train crewmember
or members of the public under various foreseeable circumstances so
that employees and communities are not left
[[Page 25053]]
in an inferior safety position compared to when a train is staffed with
two crewmembers. Without this final rule, FRA has a limited ability to
address the totality of potential safety issues related to a 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 as it reviews a passenger
operation's emergency preparedness plan under 49 CFR part 239. Also, no
other FRA regulatory effort focuses on the specific hazards and risks
associated with a one-person train crew operation, and there is no
industry-wide approach to mitigate any such hazards or risks.
Consistent with the purpose of existing requirements for the
transportation of hazardous materials by rail,\1\ FRA is mandating that
each train be assigned a minimum of two crewmembers when transporting
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, with some exceptions to ensure FRA's
awareness of the existing operation and/or require an FRA approval,
after an opportunity for public input. This final crew size rule is
necessary for FRA to proactively protect railroad employees, the
public, and the environment during train operations with a one-person
train crew, including trains transporting hazardous materials.
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\1\ The proposed rule contains extensive background explaining
that the Federal government recognizes how essential hazardous
materials are to the U.S. economy and the well-being of its people,
and the various Federal requirements for the training of rail
employees and other safeguards to help ensure that these materials
will be shipped and arrive safely at their destinations. 87 FR
45564, 45576 (July 28, 2022).
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This final rule allows FRA to identify and evaluate each railroad
that will be operating a freight train with a one-person train crew. By
collecting more information about one-person train crew operations, FRA
will be better informed to respond to questions about how to maintain
the safety of such an operation and be better positioned to take
actions that ensure future safety improvements.
This final rule also requires railroads with certain types of one-
person train crew operations to notify FRA that they are using such an
operation, provide a detailed description of the operation and, in some
circumstances, submit a risk assessment and request FRA's approval to
continue or initiate an operation. When FRA's approval is necessary,
this final rule allows FRA to prohibit the initiation of any proposed
one-person train crew operations that would not be as safe or safer
than a two-person minimum train crew operation. In addition to the
safety benefits from establishing minimum operational requirements, the
notification and approval procedures required by the final rule will
provide FRA with information and data that could be used in future
rulemakings, enforcement actions including emergency or compliance
orders/agreements, and safety analyses generally.
Further, the final rule is necessary to establish a process for the
public, including rail employees and their labor organization
representatives, to comment before FRA decides whether to grant special
approval on any railroad's petition to operate a train with a one-
person train crew. The public's participation is warranted because any
reduction of crew staffing from a two-person train crew could raise
numerous general and operational safety concerns.\2\ Further
exacerbating the safety concerns regarding any reduction in crew size
is that the average length of a Class I freight train has grown
substantially in recent years, to nearly 3 miles in some cases, as
train length and tonnage add to the complexity and safety challenges of
these operations.\3\
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\2\ FRA's rules of practice generally encourage participation by
interested persons. 49 CFR 211.3. For example, public participation
is encouraged when FRA considers a waiver petition, and the dockets
for those petitions are publicly available. 49 CFR part 211, subpart
C. Some of FRA's rail safety regulations also require a railroad to
notify a labor organization's president of the submission to FRA of
a railroad safety program, such as a training or certification
program to ensure that the relevant representatives for employees
have an opportunity to participate in the process. See e.g., 49 CFR
240.103(b), 242.103(c), and 243.109(d). Because FRA has similarly
determined in this instance that employees and communities have an
interest in a railroad's operation relative to the issue of train
crew size safety, the final rule ensures the participation of
interested members of the public, including rail employees and their
labor organization representatives.
\3\ ``Rail Safety: Freight Trains Are Getting Longer, and
Additional Information is Needed to Assess Their Impact,'' U.S.
Government Accountability Office (GAO) (May 2019). https://www.gao.gov/products/gao-19-443.
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In issuing this final rule, FRA will ensure that laws, regulations,
and orders ``related to railroad safety'' with respect to train crew
size are nationally uniform \4\ by preventing varying State laws
regulating crew size from creating a patchwork of potentially
inconsistent rules governing train operations across the country.
Without this rule, railroads could be subjected to a different crew
staffing law in every State in which they operate, as there would be no
assurance that State laws governing crew size would be based on an
analysis or determination concerning impacts on railroad safety. The
lack of a uniform standard would likely result in additional costs and
operational inefficiencies.
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\4\ 49 U.S.C. 20106(a)(1).
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Lastly, this final rule is necessary because the latest annual rail
safety data reflects some troubling trends that point toward a need for
heightened caution and awareness in railroad safety and operational
planning. For instance, a second crewmember provides the opportunity to
secure a train with hand brakes, as a one-person train crew could not
do so without violating railroad air brake and train handling
requirements necessary to comply with FRA's regulations requiring that
``railroads shall develop and implement a process or procedure to
verify that the applied hand brakes will sufficiently hold the
equipment with the air brakes released [and] that a train's air brake
shall not be depended upon to hold equipment standing unattended.'' \5\
The rate for all human factor caused accidents increased from 0.95
accidents per million train miles to 1.34 between 2013 and 2022, a 41.1
percent increase, and from 1.18 accidents per million train miles to
1.34 between 2021 and 2022, a 13.6 percent increase.\6\ The percentage
of train accidents attributed solely to human factors (as reflected in
FRA's accident reporting cause codes) increased from 38.5 percent to
45.6 percent between 2013 and 2022. The number of main track train
handling and make-up accidents attributed to human factor cause codes
has increased from 28 in 2013 to a range between 36 and 77 (reflecting
occurrences between 2018 and 2022), a 28.6 to 75 percent increase. When
normalizing this data by the number of train miles, it shows a rate
increase from 0.04 in 2013 to 0.07 in 2022, reaching as high as 0.10
and 0.13 during this period, a range that increased 25 to 225 percent
over the five-year period between 2018 and 2022.
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\5\ 49 CFR 232.103(n)(1) and (2). In the event that an
uncontrolled train movement causes an accident or derailment, the
presence of a second crewmember who failed to apply sufficient hand
brakes does not negate the need for a second crewmember.
Contributing causes to such derailments and other preventable
accidents could include improper railroad rules or training, or a
failure of the second crewmember to comply with such requirements.
In contrast, the absence of the second crewmember restricts the
options immediately available and potentially leaves the one-person
train crewmember vulnerable, without viable mitigation measures
available until assistance can arrive. This dilemma can largely be
avoided with a proper risk assessment.
\6\ The data described in this paragraph is available or derived
from data publicly available on FRA's website. https://data.transportation.gov/stories/s/FRA-Safety-Data/dakf-i7zd.
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[[Page 25054]]
Summary of Major Provisions
In Sec. 218.123, the final rule requires railroads to staff every
train operation with a minimum of two crewmembers (including a
locomotive engineer and an additional crewmember who will typically be
a conductor) that travel with the train and can directly communicate
with each other even if one crewmember is not in the locomotive cab,
with certain one-person train crew exceptions permitted under specified
circumstances.
Sections 218.125 through 218.131 of this final rule provide
criteria for instituting one-person train crew operations in certain
circumstances through exceptions to the two-crewmember mandate,
conditional exceptions based on the type of operation, or a special
approval process option. These avenues of relief address operations by
small businesses, which for purposes of this rulemaking are primarily
short lines and regional railroads. The final rule will give small
businesses greater flexibility without sacrificing safety, since the
operations of railroads that qualify as small businesses are generally
less complex than the operations of Class I railroads.
Sections 218.129 and 218.131 of this final rule require each
railroad with certain types of one-person train crew operations to
abide by minimum requirements notably to: (1) prevent uncontrolled
train movements if a one-person train crew were to become
incapacitated; (2) maintain communication between a railroad employee,
typically a dispatcher, a supervisor or manager, or an intermittently
assisting crewmember, and the one-person train crewmember to convey
operational instructions and ensure the one-person crewmember's
personal safety; (3) track the location of a train operated by a one-
person crew in case communication is lost and a rescue operation needs
to be initiated; and (4) establish protocols that ensure rail employees
can take mitigation measures that provide a level of safety that is as
safe or safer than a two-person train crew operation to address certain
situations, such as an accidental or non-accidental release of any
hazardous material, with the one-person train crew operation.
Section 218.129 of this final rule, which contains conditional
exceptions based on the type of operation, requires the lead locomotive
of certain operations with a one-person crew be equipped with an
alerter \7\ and that the crewmember must test the alerter to confirm it
is working before departure. Without a working alerter on the
controlling locomotive, if a one-person train crew becomes
incapacitated while the train is moving, the train would continue to
operate down the track out of control without another crewmember on-
board 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 by the crewmember.\8\
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\7\ 49 CFR 229.5 (defining alerter as a device or system
installed in the locomotive cab to promote continuous, active
locomotive engineer attentiveness by monitoring select locomotive
engineer-induced control activities. If fluctuation of a monitored
locomotive engineer-induced control activity is not detected within
a predetermined time, a sequence of audible and visual alarms is
activated to progressively prompt a response by the locomotive
engineer. Failure by the locomotive engineer to institute a change
of state in a monitored control, or acknowledge the alerter alarm
activity through a manual reset provision, results in a penalty
brake application that brings the locomotive or train to a stop).
\8\ See id. and see e.g., 49 CFR 229.140 (requiring that an
alerter warning timing cycle interval be based on a formula that
includes a calculation of train speed and that for locomotives
operating at speeds below 20 mph, the interval shall be between 110
seconds and 130 seconds).
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In addition to an alerter requirement for certain one-person train
crew operations in Sec. 218.129, the final rule establishes other
minimum safety requirements depending on the type of one-person train
crew operation, such as for Class II and III legacy freight train
operations (i.e., currently existing one-person crew operations
established for at least two years before the effective date of the
final rule), certain other Class II and III freight railroad train
operations, work train operations, helper service train operations, and
lite locomotive train operations. For instance, the final rule requires
that each railroad with these types of operations, excepted from the
final rule's two-crewmember mandate, must adopt and comply with
operating rules that provide for regular and effective communication
with a one-person train crew to ensure the safety of the train and that
one-person train crewmember's safety. Short lines do not always use
dispatchers, and short line trains may not have a working radio or
other working wireless communications in the cab of a controlling
locomotive, so the requirement to provide for regular and effective
communication is an important safeguard.\9\ Further, the final rule
requires that each railroad with these types of one-person train crew
operations adopt and comply with operating rules providing for
mitigation measures that are as safe or safer than a two-person minimum
train crew operation to ensure the railroad will address certain
situations where a second crewmember would typically assist with
mitigation, such as when responding to accidents, derailments, releases
of hazardous materials, and requests from an emergency responder to
unblock a highway-rail grade crossing in response to a potentially
life-threatening situation. The final rule requires that each Class II
and III freight railroad that (a) plans to initiate a one-person train
crew operation after the final rule's effective date and (b) will not
be transporting certain types or quantities of hazardous materials
determined to pose the highest risk in transportation, must provide FRA
with written notification of the operation before commencing the
operation, in addition to complying with the alerter, communication,
and mitigation measures requirements.
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\9\ 49 CFR 220.9; 63 FR 47182, 47188 (Sept. 4, 1998) (explaining
in the section-by-section analysis that ``[n]o communication
equipment is required if a train does not transport passengers or
hazardous material and does not engage in joint operations or
operate at greater than 25 miles per hour'').
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The final rule establishes an implementation schedule in Sec.
218.129 that phases in compliance for certain specified one-person
train crew operations, such as for each Class II and III railroad with
a legacy one-person train crew freight train operation, that provides
FRA with written notice of the operation, and for any railroad with a
one-person train crew work train operation, helper service train
operation, or lite locomotive train operation. The implementation
schedule requires these specified exceptions to the two-crewmember
mandate to be governed by operating rules addressing the communication
requirements and mitigation measures requirements no later than 90 days
from the effective date of this final rule, and the working alerter
requirement to be met no later than two years from the effective date
of this final rule. FRA encourages each railroad with one or more of
these types of one-person train crew operations to implement the
requirements sooner than the implementation schedule requires but finds
that the schedule will provide each railroad with sufficient time
either to comply with the alerter, communication, and mitigation
measures requirements or provide for a second crewmember.
To ensure that each railroad adequately identifies hazards and
mitigates risks when initiating or continuing certain new one-person
train crew operations, Sec. 218.131 of this final rule requires a
railroad's petition for special approval of a one-person train crew
operation to include a risk
[[Page 25055]]
assessment. The purpose of a risk assessment is to evaluate 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. Except for certain one-person legacy operations,\10\ FRA will
require a risk assessment and a special approval process for most one-
person train crew operations that will be 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. The requirements in the final rule focus on known
safety and security risks associated with operating trains transporting
large amounts of hazardous materials and with transporting the
hazardous materials known to present the greatest safety and security
risks. As explained in the NPRM, FRA considers: train crewmembers to be
``hazmat employees'' requiring specific types of training; that these
training requirements are substantial; that these various types of
training are required initially and recurrently at least once every
three years; and that, in addition to FRA, there are Federal agencies
that enforce requirements regarding the safety and security of
hazardous materials shipments.\11\ Thus, the transportation of
hazardous materials raises various specific safety hazards, such as the
potential for an accidental or non-accidental release of a hazardous
material, that would typically create additional tasks for a train crew
to communicate information about an immediate or developing safety
situation and/or take immediate or other appropriate action to mitigate
its consequences, when safe to do so. For these reasons, the presence
of certain types or quantities of hazardous materials creates the
potential for a greater negative consequence than when a train does not
contain such materials. Without a properly completed risk assessment,
FRA would be unable to accurately assess whether a railroad has taken
appropriate measures to compensate for the removal of a second train
crewmember. In the circumstance that a railroad wants to continue a
one-person train crew operation that does not meet the legacy operation
conditions, the final rule provides conditions under which a railroad
may continue those operations while it drafts and submits a special
approval petition and awaits FRA's decision on that petition.
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\10\ Among other operations, Sec. 218.129(a)(1) does not
require a risk assessment or a special approval process for a Class
II and III railroad's legacy one-person train crew freight
operation, i.e., an operation existing before the effective date of
the final rule, that has been established for at least two years
before the effective date of the final rule. However, such a freight
railroad with a legacy one-person train crew operation must provide
certain information about the operation in a written notification to
FRA, and the railroad will be required to establish operating rules
addressing the communication requirements and mitigation measures
requirements no later than 90 days from the effective date of this
final rule and to meet the working alerter requirement no later than
two years from the effective date of this final rule.
\11\ 87 FR 45576-78.
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As FRA explained in the NPRM, passenger and tourist train
operations normally have a locomotive engineer located in the
locomotive cab, and a passenger conductor, and potentially one or more
assistant conductors, riding in the passenger cars with the
passengers.\12\ FRA makes clear that this common crew configuration is
not considered a one-person train crew operation. In Sec. 218.125, the
final rule exempts from the two-crewmember mandate specific passenger
and tourist train operations that do not pose significant safety risks
to railroad employees, the public, or the environment, including
tourist train operations that are not part of the general system of
transportation. Passenger or tourist operations that do not fall within
the Sec. 218.125 exemptions must petition FRA for a special approval
under the procedures provided in Sec. 218.131.
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\12\ 87 FR 45579-80.
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In the context of this rulemaking, a risk assessment is the process
of determining, either quantitatively or qualitatively, or both, the
level of risk associated with a proposed train operation staffed with a
one-person train crew, including mitigating the risks to an acceptable
level. Section 218.133 of this final rule provides the minimum content
that must be included in a railroad's risk assessment and the
procedures for petitioning FRA to use an alternate methodology for
assessing the risk of an operation utilizing a one-person train crew.
This final rule adds appendix E to part 218 to provide guidance on how
a railroad may prepare a risk-based hazard analysis, as part of its
risk assessment, and compare the risks to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person
minimum train crew operation, when all mitigations are in place.
In Sec. 218.135, the final rule specifies how a railroad may
petition FRA for special approval of a one-person train crew operation
not covered by an exception. The special approval procedure requires
FRA to publish a notice in the Federal Register soliciting public
comment on each petition. All documents will be filed in a public
docket and will be accessible through the internet. The special
approval procedure permits FRA to reopen consideration of the petition
for cause stated. When FRA 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,
a railroad making a material modification to an operation, previously
approved by FRA, will be required to file both a description of the
modification and either a new or updated risk assessment, at least 60
days before proposing to implement any such modification. FRA is
requiring that a material modification not be implemented until
approved. The 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 of that operation even in the absence of this
rule.
Section 218.137 of this final rule includes an annual reporting
requirement for railroads that receive special approval to conduct an
operation with a one-person train crew under this subpart. The annual
railroad responsibilities after receipt of special approval include a
requirement to conduct a formal review and analysis of those
operations. The annual reporting requirement ensures that each railroad
will regularly review the safety of its operation and the accuracy of
its risk assessment and will provide FRA with sufficient data to
identify and analyze any safety trends in the approved operation.
Further, the annual reporting requirement aligns with the general
administration of FRA's safety program and fulfilment of its statutory
requirements.\13\
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\13\ 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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Finally, as explained in greater detail in the discussion of
comments and conclusions, the final rule clarifies and updates the NPRM
in some respects based upon the comments received. For instance, as the
NPRM did not define what FRA meant by the term ``one-person train
crew'' and commenters
[[Page 25056]]
expressed confusion, FRA has clarified that a ``one-person train crew''
means: (1) only one person is assigned to the train as the train crew
and that single, assigned person will be performing the duties of both
the locomotive engineer and the conductor; or (2) two or more persons
are assigned to a train as the train's crew, but only the locomotive
engineer travels on the train when the train is moving because the
remainder of the train crew, including the conductor if the locomotive
engineer is not the assigned conductor, is assigned to intermittently
assist the train's movements. The requirements in this final rule will
not apply to a train operation controlled by a remote control operator,
even if that remotely controlled train is operated by a one-person
train crew, because of the protections already provided for remote
control operations under existing requirements in FRA's railroad
locomotive safety standards, including a harness with a breakaway
safety feature, an operator alertness device, and an operator tilt
feature with an automatic notification to the railroad to enable prompt
attention in the event the tilt feature is activated.\14\ There are two
existing passenger train operations with one-person train crews for
which FRA has already approved the operation's required passenger train
emergency preparedness plans under existing regulatory requirements,
making it unnecessary for those railroads to submit a special approval
petition to FRA as proposed. The final rule does not include the
proposed requirement for railroads seeking to implement automated
operations to file a petition seeking FRA's special approval. Such a
requirement is unnecessary because railroads would still need to seek
waivers, regulatory changes, or other FRA approval if the technology
for the automated operations does not comply with other rail safety
requirements.
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\14\ See 49 CFR 229.15 (requiring design, operation, inspection,
testing, and repair standards for remote control locomotives).
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The final rule contains some clarifications and updates from the
NPRM in how it treats freight railroads, especially Class II and III
railroads that include the short line and regional railroads. For
instance, the final rule will not prohibit all one-person train crew
freight operations hauling certain types or quantities of hazardous
materials, as the final rule provides for some exceptions for existing
or initiating operations. Those Class II and III railroads with a
legacy one-person train crew freight operation that is established at
least two years before the effective date of this final rule will not
need FRA's special approval to continue the operation as proposed but
will need to provide FRA with a detailed written notice describing the
parameters of the operation within 90 days of the effective date of the
final rule. Similarly, the final rule does not include a requirement
for Class II and III railroads initiating a new, non-legacy, one-person
train crew freight operation not transporting hazardous materials of
the types or quantities specified to petition FRA for special approval
and, instead, permits such operations, under certain conditions--
including when the railroad provides FRA with a detailed written notice
describing the parameters of the operation before commencing the
operation. The exceptions in the final rule for Class II and III
railroads have made unnecessary the narrower, proposed small railroad
exception, which would have applied only to small railroads with fewer
than 400,000 annual employee work hours, and thus the final rule does
not include that proposed exception. Although various proposed
exceptions contained additional safety requirements, the final rule
streamlined those additional requirements and has established a
compliance schedule for implementing them rather than the proposal that
would have required implementation on the effective date of the final
rule.
The final rule requires additional safety conditions to be met for
the proposed one-person crew helper service and lite locomotive(s)
consist exceptions as those one-person crew train crew operations would
pose the same safety concerns as other exceptions in the final rule
that require additional safety conditions to be met. In addition, FRA
has modified the risk assessment requirements, allowing a railroad to
make its determination either quantitatively or qualitatively, or both,
rather than only quantitatively as expressly proposed. Finally, FRA has
changed the review standard for a special approval petition from
determining that an operation is ``consistent with railroad safety'' to
determining whether approving the operation described in the petition
is ``as safe or safer'' than a two-person train crew operation, as it
will more clearly allow each railroad to compare the operation to the
baseline of a two-crewmember operation.
[[Page 25057]]
Implementation Schedule for One-Person Train Crew Operations \15\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Petition for
special approval Add operating Add operating Add alerters to
Notify FRA of one- with risk rules to address rules for one- locomotives and Annual review
Type of one-person operation person operation assessment for one- safety of certain person crew add associated analysis report
\16\ person operation situations \18\ member's safety operating rules \21\
\17\ \19\ \20\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class II/III legacy freight September 6, 2024. Not Applicable (N/ September 6, 2024. September 6, 2024. June 9, 2026...... N/A.
(existing 2 years) \22\. A).
Class II/III freight non-legacy Yes, provide N/A............... Yes, comply when Yes, comply when Yes, comply when N/A.
or new, and no prohibited before commencing commencing commencing commencing
hazmat \23\. operation. operation. operation. operation.
Work trains not exceeding 4,000 N/A............... N/A............... September 6, 2024. September 6, 2024. June 9, 2026...... N/A.
trailing tons; \24\ Helper
service; \25\ and, Lite
locomotive(s) \26\.
Existing but non-legacy June 23, 2024 \28\ August 7, 2024.... Yes, provide as Yes, provide as Yes, provide as Yes, provide no
(existing, but less than 2 part of special part of special part of special later than March
years) option to continue approval petition. approval petition. approval petition. 31 of the
pending FRA-approval \27\. following year.
Other new (freight with or N/A............... Yes............... Yes, provide as Yes, provide as Yes, provide as Yes, provide no
without prohibited hazmat, part of special part of special part of special later than March
passenger, or tourist) approval petition. approval petition. approval petition. 31 of the
operations \29\. following year.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs and Benefits
---------------------------------------------------------------------------
\15\ This implementation schedule summarizes the requirements
and is not intended to substitute for an exact description of the
complete requirements.
\16\ Sec. 218.129(b).
\17\ Sec. 218.131 through Sec. 218.135.
\18\ Sec. 218.129(c)(1).
\19\ Sec. 218.129(c)(2).
\20\ Sec. 218.129(c)(3).
\21\ Sec. 218.137.
\22\ Sec. 218.129(a)(1).
\23\ Sec. 218.129(a)(2).
\24\ Sec. 218.129(a)(3).
\25\ Sec. 218.129(a)(4).
\26\ Sec. 218.129(a)(5).
\27\ Sec. 218.131(a)(2).
\28\ Sec. 218.131(a)(2)(i). Unlike the other notification
requirements, this notification can be limited to a summary of the
operation and the name, title, address, telephone number, and email
address of the primary person(s) to be contacted regarding the
written notice and the operation.
\29\ Sec. 218.131.
---------------------------------------------------------------------------
FRA has analyzed the economic impact of this final rule. FRA
estimated the costs associated with alerters, operating rules,
notification to FRA, risk assessments and special approvals, annual
reporting after receipt of special approval, and Government
administration. FRA qualitatively discusses the benefits but does not
have sufficient data to quantify those benefits.
The following types of railroads with one-person train crew
operations are required, based on a compliance date schedule, to: (1)
notify FRA; (2) adopt and comply with operating rules necessary to
ensure the one-person train crewmember's safety and that the railroad
is prepared to take appropriate mitigation measures in response to
certain safety-critical situations; and (3) equip a one-person train
crew's controlling locomotive with an alerter:
Class II and Class III freight railroads with a legacy
one-person train crew operation established for at least two years
before the effective date of the final rule.
Class II and Class III freight railroads with a non-legacy
one-person train crew operation that do not transport specific types
and quantities of hazardous materials as specified in Sec. 218.123(c).
The following types of railroads with a one-person train crew
operation require special approval from FRA and must conduct a risk
assessment:
All Class I railroads and all one-person passenger
railroad operations established after the effective date of the final
rule.
All Class II and III freight railroads with a non-legacy
one-person train crew operation that transports certain types and
quantities of hazardous materials as specified in Sec. 218.123(c).
Work train operations, helper service, and lite locomotive
operations are required, based on a compliance date schedule, to: (1)
adopt and comply with operating rules necessary to ensure the one-
person train crewmember's safety and that the railroad is prepared to
take appropriate mitigation measures in response to certain safety-
critical situations; and (2) equip a one-person train crew's
controlling locomotive with an alerter.
FRA estimates the 10-year costs of the final rule to be
approximately $6.6 million, discounted at 7 percent. The annualized
costs will be approximately $0.9 million discounted at 7 percent. The
following table shows the total costs of this final rule, over the 10-
year analysis period.
Total 10-Year Discounted Costs
[2022 Dollars] \30\
----------------------------------------------------------------------------------------------------------------
Annualized Annualized
Category Total cost, 7 Total cost, 3 cost, 7 cost, 3
percent ($) percent ($) percent ($) percent ($)
----------------------------------------------------------------------------------------------------------------
Alerters (Legacy Operations).................... 2,176,402 2,217,233 309,871 259,927
Alerters (New Operations)....................... 2,251,306 2,483,470 320,535 291,138
Operating Rules (Existing Operations)........... 119,954 119,954 17,079 14,062
Operating Rules (New Operations)................ 280,824 308,591 39,983 36,176
Notification (Existing Operations).............. 185,114 185,114 26,356 21,701
Notification (New Operations)................... 111,133 122,593 15,823 14,372
Risk Assessment and Special Approval (Class I).. 560,745 570,571 79,837 66,888
Risk Assessment and Special Approval (Class II 162,446 164,506 23,129 19,285
and III).......................................
[[Page 25058]]
Risk Assessment (Material Modifications)........ 93,031 111,178 13,246 13,033
Annual Reporting................................ 182,821 221,284 26,030 25,941
Government Administrative Cost.................. 513,100 579,523 73,054 67,938
---------------------------------------------------------------
Total Costs................................. 6,636,876 7,084,016 944,942 830,463
----------------------------------------------------------------------------------------------------------------
The primary benefit of this rule is to ensure that each train is
adequately staffed and has appropriate safeguards in place for safe
train operations under all operating conditions. This final rule will
also ensure that several significant operational safety issues with
one-person train crew are addressed and allow FRA to collect
information and data on one-person train crews. For instance, this
final rule addresses a safety issue by requiring alerters for Class II
and III railroads operating with a one-person train crew that do not
already have these safety devices installed on their locomotives for
that type of operation. Alerters will ensure that if a crewmember
becomes physically unresponsive, the train will apply emergency
brakes--a function typically left to a conductor or other second
crewmember.
---------------------------------------------------------------------------
\30\ Numbers in this table and subsequent tables may not sum due
to rounding. 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. The costs for operating rules (existing operations) and
notification (existing operations) will solely be incurred in year
1. Therefore, the discounted costs are the same for 7% and 3% (since
values are not discounted in year 1). However, when annualizing
costs over 10 years, the discounted costs at 7% and 3% are different
because they are annualized with different discount rates.
---------------------------------------------------------------------------
This final rule also ensures railroads address safety issues that
may arise with one-person train crew operations by requiring operating
rules that address the communication and safety of the one-person train
crew.
To operate with one-person train crews, freight railroads
transporting certain types and quantities of hazardous materials must
identify, evaluate, and address safety concerns that may arise from
such operations by submitting a risk assessment to FRA for approval
unless the railroad is a Class II or III short line or regional
railroad and has established a legacy operation under the
exception.\31\
---------------------------------------------------------------------------
\31\ Sec. Sec. 218.129(a)(1) and 218.131.
---------------------------------------------------------------------------
The loss of a second crewmember to perform safety functions creates
new hazards and/or increases the risk of certain existing hazards
unless mitigating actions are taken.\32\ The safety requirements in
this final rule will allow the rail industry to integrate technologies
to facilitate operations with a one-person train crew, but under the
condition that safety will not be degraded.
---------------------------------------------------------------------------
\32\ As explained in the NPRM, ``the implementation of a one-
person operation, without any off-setting measures, may render
existing rail safety requirements either less effective or
ineffective.'' 87 FR 45573.
---------------------------------------------------------------------------
Legal Authority
FRA is establishing 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.''
\33\ The Secretary delegated this authority to the Federal Railroad
Administrator.\34\ Additionally, as described below, the Secretary has
the specific statutory duty to prescribe regulations and issue orders
for the certification of any train crewmembers who operate a locomotive
or are assigned train conductors.
---------------------------------------------------------------------------
\33\ 49 U.S.C. 20103.
\34\ 49 CFR 1.89(a); 49 U.S.C. 103(g).
---------------------------------------------------------------------------
By statute, the Secretary is required to ``prescribe regulations
and issue orders to establish a program requiring the licensing or
certification . . . of any operator of a locomotive.'' \35\ FRA
fulfilled that statutory requirement in 1991 by issuing a regulation
requiring each railroad to file a locomotive engineer certification
program with FRA.\36\ 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 operate safely
on the controlling railroad's track.\37\ A locomotive engineer's main
task is to operate the train safely. Other important tasks central to
safe 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.
---------------------------------------------------------------------------
\35\ 49 U.S.C. 20135.
\36\ 56 FR 28254 (June 19, 1991), 49 CFR part 240.
\37\ 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.
---------------------------------------------------------------------------
FRA also administers and enforces statutorily mandated \38\
conductor certification requirements.\39\ FRA defines a conductor as
the crewmember in charge of a train or yard crew,\40\ and the
conductor's job requires supervising train operations so they are safe
and efficient. The 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 locomotive cab; and dealing with
unexpected situations (e.g., mechanical problems).\41\ 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 so that the engineer can maintain 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.
[[Page 25059]]
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.\42\ However, if only one railroad
employee is assigned as a train crew, the conductor certification rule
requires that the single assigned crewmember be certified as both a
locomotive engineer and a conductor.\43\ This final rule maintains that
one-person train crew option but adds restrictions to ensure safety,
based on the type of operation.
---------------------------------------------------------------------------
\38\ 49 U.S.C. 20163, ``Certification of train conductors.''
\39\ 49 CFR part 242, ``Qualification and Certification of
Conductors.''
\40\ 49 CFR 242.7 (defining ``conductor'').
\41\ 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).
\42\ 76 FR 69802, 69825 (Nov. 9, 2011).
\43\ 49 CFR 240.308(c) and 242.213(d).
---------------------------------------------------------------------------
In this regard, the final rule is an element of FRA's holistic
approach to address a range of hazards related to the operation of
trains. As noted above, FRA is authorized by statute to prescribe
regulations and issue orders for ``every area of railroad safety''
supplementing laws and regulations in effect on October 16, 1970, as
well as to continue to administer and enforce specific statutory
mandates, including locomotive engineer and conductor certification
requirements.\44\ Specifically, given FRA's mandate to ``consider the
assignment and maintenance of safety as the highest priority,
recognizing the clear intent, encouragement, and dedication of Congress
to the furtherance of the highest degree of safety in railroad
transportation,'' \45\ FRA finds issuance of this final rule on train
crew size safety both inherent in its statutory authority and in
fulfillment of its charge from Congress. However, FRA recognizes that
certain provisions focus on unique factors. Therefore, FRA finds that
the various provisions of this final rule are severable and able to
operate functionally if severed from each other. In the event a court
were to invalidate one or more of this final rule's unique provisions,
the remaining provisions should stand, thus allowing FRA to continue to
fulfill its congressionally authorized role.
---------------------------------------------------------------------------
\44\ See 49 U.S.C. 103, 20103(a).
\45\ Id. at 103(c).
---------------------------------------------------------------------------
II. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
On July 28, 2022, FRA published the NPRM proposing train crew size
safety requirements and provided commenters 60 days to file
comments.\46\ On September 22, 2022, FRA extended the comment period by
an additional 67 days.\47\ On October 27, 2022, FRA scheduled a public
hearing for December 14, 2022, and extended the comment period to
December 21, 2022, an additional 19 days, to provide the public with
additional time to comment on the proposed rule or submit a response to
views or information provided at the public hearing, or both.\48\ A
transcript of the public hearing is available in the docket.\49\
---------------------------------------------------------------------------
\46\ 87 FR 45564.
\47\ 87 FR 57863.
\48\ 87 FR 65021.
\49\ https://www.regulations.gov/document/FRA-2021-0032-13184.
---------------------------------------------------------------------------
During the 146-day comment period, the docket recorded
approximately 13,576 separate entries for written comments with about
13,441 of those comments filed by individuals in their own names. In
other words, about 99 percent of the written comments submitted to the
docket were from individual commenters who were not filing their
comment officially on behalf of an organization, group, or business. Of
those individual commenters, about 13,377 expressed support for the
NPRM and 64 opposed it, meaning less than approximately a half percent
of individual commenters expressed opposition to the proposed rule. FRA
estimates that more than half of the comments filed by individual
citizen commenters used a form letter created by a labor organization
or other organized interest group. In general, commenters who signed
form letters in support of a two-person train crew mandate expressed
the same types of safety concerns FRA raised in the NPRM. This final
rule addresses those safety concerns to ensure the safety of rail
operations, one-person train crewmembers, and the public. When
summarizing a form letter, a footnote will cite to a single example.
The docket's recorded number of comments does not include the
comments received through oral testimony at the public hearing on
December 14, 2022, and there are other reasons why the 13,576 count
should be considered only an approximation. As some entries included
multiple comments or were signed by multiple people, there were likely
more commenters than the number of comments recorded by the docket.
Further, FRA discovered that some commenters sent in multiple comments.
Because the comment period was extended twice, some commenters sent in
a shorter comment before any extensions were granted, and then may have
sent in more information as they developed further input. Every comment
received was considered by the agency in finalizing this rule.
The order of the topics or comments discussed in this document is
not intended to reflect the significance of the comment raised or the
standing of the commenter. Additionally, this summary of the comments
is intended to provide both a general understanding of the overall
scope and themes raised by the commenters, as well as give some
specific descriptions to provide context. Not every comment is
described in this summary and, whenever counts of comments are
provided, the counts are approximate as some comments could not be
easily grouped with others. Comments regarding the proposed Regulatory
Impact Analysis (RIA) are addressed in the RIA to the final rule.
In addition to the following summary of the general comments here,
FRA used computer-based data analysis to identify common elements among
comments.\50\ FRA's computer-based data analysis often provided
confirmation of FRA's manual estimates and insight, and additional
insight into the written comments that would have been particularly
difficult to discern based on human review alone. For example, the
computer-based analysis more accurately identified comments that were
identical than a human could track manually.\51\ The computer-based
data analysis could also readily find comments that used the same key
words to allow FRA to review those comments together.\52\ There were
also many short comments and the computer-based data analysis was able
to pick out those shorter comments and display them all in a few pages
that could be more easily accessed and read.\53\ The computer-based
approach used natural language processing, specifically topic modeling,
to extract major themes for the comments received based on the most
frequently used words and phrases, which then assisted FRA in
identifying the central themes raised by the commenters.\54\
---------------------------------------------------------------------------
\50\ The 23-page computer-based data analysis report of the
written comments was placed in the docket, FRA-2021-0032, with the
other agency documents under the ``Browse Documents'' tab.
\51\ The computer-based data analysis found one particular
comment duplicated 2,065 times and which cites FRA-2021-0032-1914 as
an example.
\52\ For example, on pages 9-10 of the computer-based data
analysis report, the term ``cut crossings'' was found used in
approximately 45 comments.
\53\ For instance, the computer-based data analysis report
displays comments with less than 75 characters on pages 11-14.
\54\ On pages 15-21, the computer-based data analysis report
includes examples of the 10 themes identified when top words, i.e.,
commonly used words, were extracted through topic modeling. For
instance, a select group of top words included: emergency, life
medical, community, supply chain, death, derailments, and
vulnerable.
---------------------------------------------------------------------------
Based on the comments received, FRA is revising aspects of the
approach reflected in the NPRM, which can be
[[Page 25060]]
summarized as follows: (1) the final rule removes the previously-
proposed strict prohibition on the transportation of some hazardous
materials with a one-person train crew; (2) comments on FRA's proposed
RIA led FRA to consider additional information and refine its analysis;
(3) comments requesting more time to comply with any new minimum
requirements to allow for planning, operational changes, or hiring and
training of additional crewmembers led FRA to extend those compliance
dates; (4) comments regarding the complexity of, and data requirements
for, the risk assessment, along with concerns regarding the analytical
methods required, led FRA to simplify the requirement, change the
review standard so that a railroad can compare the operation to the
baseline of a two-crewmember operation, provide guidance in an
appendix, and retain an option for railroads to request use of
alternative risk assessment methodologies as part of the special
approval procedure; (5) comments outlining anticipated difficulties in
complying with the risk assessment proposed in the NPRM led FRA to
remove the risk assessment requirement and substitute a notification
requirement for Class II or III freight railroads under certain types
of specified operations; (6) comments about the proposed requirements
for remote control operations, in addition to FRA's analysis that
existing regulations already provided for minimum safety protections,
led FRA to remove the subject from the final rule; and (7) comments on
the potential preemptive effect of a Federal rail safety regulation on
currently existing State-by-State regulation relating to the subject
matter of crew size safety requirements led FRA to clarify what the
agency understands will be the legal impact of this final rule.
B. Preemption
In the NPRM, FRA included in the background a summary of prior crew
staffing rulemaking efforts. The summary discussed the decision issued
by the U.S. Court of Appeals for the Ninth Circuit vacating FRA's
withdrawal of the 2016 NPRM, as well as FRA's preemption determination
contained in that withdrawal, and remanding the rulemaking to FRA.\55\
The NPRM also included discussion of FRA's legal authority to issue the
regulation \56\ and the statutory preemption provisions found at 49
U.S.C. 20106.\57\ As noted in the NPRM, a final rule issued by FRA
``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.'' \58\ The NPRM then requested
comments on the issue of preemption.
---------------------------------------------------------------------------
\55\ 87 FR at 45568-70 (citing Transp. Div. of the Int'l Ass'n
of Sheet Metal, Air, Rail & Transp. Workers v. FRA, 988 F.3d 1170
(9th Cir. 2021).
\56\ 87 FR at 45567 and 49 U.S.C. 20103 (citing, 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'').
\57\ 87 FR at 45570-71 (citing the statutory preemption
provisions in 49 U.S.C. 20106 that mandate that laws, regulations,
and orders ``related to railroad safety'' be nationally uniform, and
that a Federal regulation or order covers the subject matter of a
State law where ``the [F]ederal regulations substantially subsume
the subject matter of the relevant [S]tate law'').
\58\ 87 FR at 45571. As noted below, there is a narrow exception
to the preemption provisions that allows non-Federal regulation of
``essentially local'' safety hazards. 49 U.S.C. 20106(a)(2).
---------------------------------------------------------------------------
The California Public Utilities Commission (CPUC) commented that
the final rule should reflect or exceed ``the strongest state laws that
currently exist.'' \59\ For that reason, CPUC is opposed to the NPRM to
the extent it could undermine California's law which has a more
stringent two-person crew mandate than FRA's proposed rule with
exemptions. CPUC requested that FRA ``provide a stronger role for State
agencies, such as [CPUC, and suggested that] FRA could require a
railroad to seek a [S]tate agency's concurrence prior to applying for
an exemption.'' \60\ CPUC commented that because ``a [S]tate will have
unique information regarding specific hazards or environmental concerns
within [the State's] borders . . . [a] petitioning railroad should
solicit the [S]tate agency's input . . . and the petitioning railroad
should include [that information] in its petition to the FRA . . . .''
\61\ CPUC also requested that FRA ``establish a clearly defined role
for [S]tate agencies to provide input and the ability to revoke [an
exemption] if safety issues arise that make the exemption untenable.''
\62\
---------------------------------------------------------------------------
\59\ FRA-2021-0032-12258 at 2. CPUC's comment did not
distinguish between exemptions and one-person train crew operations
proposed for a special approval process, calling the portions of the
NPRM that would allow for fewer than two train crewmembers an
``exemption process.''
\60\ Id.
\61\ Id.
\62\ Id. at 3.
---------------------------------------------------------------------------
A one-page letter signed by 19 senators from the Washington State
Legislature commented that Washington has a law regulating train crew
size and urged FRA not to preempt train crew size laws already passed
by States when those laws meet or exceed Federal crew size
standards.\63\ Similarly, the Washington State Legislative Board of the
Transportation Division of the International Association of Sheet
Metal, Air, Rail and Transportation Workers (SMART-TD) commented that
``while [it] strongly support[s] FRA's adopting a national minimum
train crew size rule [it] oppose[s] any regulatory language that would
preempt [S]tate laws and regulations that are equal to or more
stringent than a [F]ederal'' requirement.\64\
---------------------------------------------------------------------------
\63\ FRA-2021-0032-12202.
\64\ FRA-2021-0032-12917 at 1. The State of Washington's
Utilities and Transportation Commission also commented in strong
support of the NPRM, citing the importance to protect the public and
the environment from potential disaster involving hazardous train
derailments during a period in which railroads are using longer
trains, without mentioning preemption of Washington State's laws.
FRA-2021-0032-12746.
---------------------------------------------------------------------------
Many individuals and labor organizations commented that they
supported the NPRM but wanted FRA to consider a way to avoid preempting
State laws that have more stringent requirements. For example, the
Transportation Trades Department, AFL-CIO (TTD) would like FRA's
regulation to establish minimum safety requirements but not preempt
States from setting more stringent requirements.\65\ SMART-TD's Kansas
State Legislative Board, however, supported eliminating the existing
patchwork of State laws regarding crew size and creating a nationwide
standard.\66\
---------------------------------------------------------------------------
\65\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
\66\ FRA-2021-0032-9397.
---------------------------------------------------------------------------
A comment in support of FRA's preemption position came from 54
Members of the U.S. House of Representatives, recognizing that the
State laws mandating minimum crew size requirements have been
overturned by courts finding that the Federal government has
jurisdiction over this subject matter.\67\ For this reason, these U.S.
House Members commented that it is FRA's responsibility to address this
safety issue, calling it urgent because of the drastic changes in the
freight rail industry over the last several years.'' \68\
---------------------------------------------------------------------------
\67\ FRA-2021-0032-12809 (a duplicate comment was filed at FRA-
2021-0032-12971).
\68\ Id. at 2.
---------------------------------------------------------------------------
Norfolk Southern Railway Company (NS) commented that while it
agrees that a national rule addressing crew size would be consistent
with Congress' express goal that Federal laws and regulations relating
to railroad safety create national uniformity, it opposes this rule for
a variety of reasons,
[[Page 25061]]
including that the NPRM would be ``burdensome'' and that FRA neglected
to mention in the NPRM that some States' laws have been
invalidated.\69\ NS stated that ``[p]reemption cannot justify FRA's
imposition of this particular rule'' because of the harm the NPRM could
cause the rail industry.\70\
---------------------------------------------------------------------------
\69\ FRA-2021-0032-13045.
\70\ Id. at 6.
---------------------------------------------------------------------------
SMART-TD's Illinois Legislative Board (SMART-TD ILB) commented in
support of the NPRM and provided a supporting letter from Illinois
Governor J.B. Pritzker.\71\ The comment stated that a court had vacated
an Illinois law requiring most freight trains operating in Illinois to
have an operating crew of at least two individuals \72\ and that SMART-
TD ILB and Governor Pritzker support the NPRM as an alternative to the
preempted Illinois law.
---------------------------------------------------------------------------
\71\ FRA-2021-0032-10530.
\72\ Id. at 2 (referring to, but not citing, Ind. Rail Rd. Co.
v. Ill. Commerce Comm'n, 576 F. Supp. 3d 571 (N.D. Ill. 2021).
---------------------------------------------------------------------------
FRA's Response
As explained in the NPRM, 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 set forth a nationwide rule for crew size safety,
especially operations with a one-person train crew, based on FRA's
expertise and experience in regulating safety and risks in rail
operations. While courts may find that some of those State laws are
preempted even without this rule, other State laws may not be
challenged and found preempted, leaving an untenable inconsistency
governing crew size. This final rule meets Congress' mandate that the
laws, regulations, and orders related to railroad safety be nationally
uniform.
While FRA intends this final rule to create a nationwide standard
and anticipates that it will preempt State laws covering the same
subject matter, FRA clarified in the NPRM that FRA's statutory
preemption provision includes a ``narrow exception'' \73\ to FRA's
broad authority to preempt State laws. This narrow exception allows
non-Federal regulation of ``essentially local'' safety hazards.\74\ An
``essentially local safety hazard'' is ``one which is not adequately
encompassed within national uniform standards.'' \75\ As noted in the
NPRM, some State laws governing crew size, such as those in California,
Nevada, and Washington, do not, in FRA's view, address an ``essentially
local'' hazard because they would apply statewide.\76\ In support of
this view, FRA explained in the NPRM that 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.\77\
---------------------------------------------------------------------------
\73\ 87 FR at 45570-71 (citing Duluth, Winnipeg & Pac. Ry. Co.
v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008) in which the court
found 49 U.S.C. 20106(a) ``creates a narrow exception to preemption
through its savings clause'').
\74\ 49 U.S.C. 20106(a)(2).
\75\ Union Pacific R. Co. v. California Pub. Utils. Comm'n, 346
F.3d 851, 860 (9th Cir. 2003).
\76\ 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).
\77\ 87 FR at 45571 (citing H.R. Rep. No. 91-1194 (1970),
reprinted in 1970 U.S.C.C.A.N. 4104, 4117).
---------------------------------------------------------------------------
In response to CPUC and other similar commenters who requested that
FRA provide States with a clear role in FRA's exemption provision, this
final rule provides that the public may comment on any special approval
petition as FRA proposed in the NPRM. FRA encourages States and their
regulatory agencies to comment on requests for one-crew operations and
provide any safety information or data they believe would be useful to
FRA in deciding whether to approve a special approval petition for a
one-person train crew operation.
As an alternative to issuing a narrowly tailored State law to
address any essentially local safety hazards, a State could bring any
safety concerns about a particular rail operation to FRA's attention
for discussion or possible investigation. For example, a State agency
that participates in investigative and surveillance activities with FRA
under 49 CFR part 212 can work with FRA to enforce this final rule.\78\
---------------------------------------------------------------------------
\78\ Part 212 establishes standards and procedures for State
participation in investigative and surveillance activities under the
Federal railroad safety laws and regulations.
---------------------------------------------------------------------------
FRA disagrees with NS's comment that FRA is relying on preemption
as a justification for the final rule. As explained above, FRA is
issuing this final rule to ensure that trains are adequately staffed
for their intended operation and railroads have appropriate safeguards
in place for safe train operations, especially when using one-person
train crews. Moreover, this final rule meets Congress' requirement that
the laws, regulations, and orders related to railroad safety be
nationally uniform.\79\ Thus, FRA is not basing its justification for
this final rule on preemption, but rather is noting that the national,
uniform standard provided in this rule is expected to preempt State
laws governing crew size.
---------------------------------------------------------------------------
\79\ 49 U.S.C. 20106.
---------------------------------------------------------------------------
C. Comments Supporting the NPRM
In the NPRM, FRA explained how the Ninth Circuit's decision to
vacate and remand the 2019 withdrawal left FRA with some choices on a
path forward, and FRA exercised its discretion to choose, through this
rulemaking, to reconsider numerous safety issues that may be associated
with or impacted by one-person train crew operations.\80\ For instance,
FRA revisited the lack of a Federal requirement for a systematic post-
accident protocol for trains hauling freight.\81\ The NPRM also raised
several other potential safety issues to consider, including the
context that many of the Federal rail safety regulations were written
with the expectation that each train would have multiple crewmembers,
the safety findings drawn from research on the cognitive and
collaborative demands placed on train crewmembers while operating a
train, and the ability of railroads to respond to a one-person train
crewmember who may become incapacitated.\82\
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\80\ 87 FR at 45571-76.
\81\ 87 FR 45571.
\82\ See e.g., 49 CFR 218.99 (requiring point protection for
shoving or pushing moves; 218.103-218.107 (operational requirements
for hand-operated switches) and generally, 49 CFR part 239
(Passenger Train Emergency Preparedness requirements).
---------------------------------------------------------------------------
Many commenters supported FRA's decision in the NPRM to reconsider
the safety issues and propose minimum requirements for the size of
train crews depending on the type of operation. These commenters are
concerned, among other things, about the operational safety of a train
operated by a one-person crew, the operational safeguards to protect
that crewmember in various situations, and the impact of one-person
train crew operations that travel through their communities as
evidenced by the numerous comments received raising those concerns.
1. Labor Organizations
The Brotherhood of Locomotive Engineers and Trainmen (BLET) and
SMART-TD filed a joint comment stating that their unions, which
represent the vast majority of operating train crew workers across the
nation, support the implementation of a two-person crew rule in the
interest of public safety and request that the final
[[Page 25062]]
rule ``mandate that two-person crews are the standard as they have
proven to be the safest and most efficient way to operate.'' \83\ In
addition, the International Brotherhood of Teamsters, which includes
BLET as part of the Teamsters Rail Conference, commented that it
supports FRA's efforts to promulgate the NPRM and endorsed BLET's
comment.\84\ The jointly filed written comment, and BLET and SMART-TD's
oral testimony at FRA's public hearing, detailed their members'
interest in this safety rulemaking. For example, BLET and SMART-TD are
concerned with the multiple steps a one-person train crew approaching a
roadway work zone would need to perform alone and the risks to rail
employees working on or near the track if that single crewmember made a
mistake. The unions' jointly filed comment also noted how many
railroads embraced greater electronic device use, such as cellphone
use, as a pivotal component of their plans to reduce crew size even
though electronic device use is currently strictly regulated because of
those devices' potential for distraction.\85\ BLET and SMART-TD also
described how trains are routinely slowed by unplanned events that
require someone other than the locomotive engineer to troubleshoot the
problem before the train can continue and how a conductor and a
locomotive engineer work as a team during any necessary
troubleshooting. Moreover, the labor organizations' jointly filed
comment noted that a two-person train crew provides a backstop to human
error, which is still useful with a positive train control (PTC)
system, and that, even when there is a low incidence of rail accidents,
the consequence of an accident can be high and thereby justify an
additional fail-safe measure.
---------------------------------------------------------------------------
\83\ FRA-2021-0032-13038 at 1.
\84\ FRA-2021-0032-13050.
\85\ See 49 CFR part 220, subpart C (specifying its purpose ``is
to reduce safety risks resulting from railroad operating employees
being distracted by the inappropriate use of electronic devices,
such as mobile telephones (cell phones or cellular phones) and
laptop computers'').
---------------------------------------------------------------------------
BLET and SMART-TD commented that their members who have experienced
PTC implementation first-hand, expressed that they want PTC as a tool
but recognize that PTC was not designed to do the job of a crewmember
supplementing the engineer. Further, the unions jointly commented that
PTC ``has introduced new complexities and levels of attention capture
not seen prior to the implementation of PTC and has emphasized the need
for a conductor on board due to the added level of distraction PTC has
imposed upon the engineer.'' \86\ BLET and SMART-TD commented that PTC
and other technologies often involve after-market products bolted on,
rather than integrated into, existing equipment which makes the
locomotive cab feel crowded with technology and, in turn, can
complicate the jobs of the train crewmembers. BLET and SMART-TD also
commented that automated fuel-saving software programs currently are
programmed without regard to bad weather or less-than-optimal
conditions, potentially requiring a locomotive engineer to intervene
manually. BLET and SMART-TD also commented that the industry's
increased reliance on distributed power operations (i.e., where an
engineer must control two or more locomotives independently with the
aid of computers) means that the locomotive engineer must direct
significant attention to computer screens; in their view, the NPRM did
not adequately consider the safety considerations of using a one-person
train crew with a distributed power operation, which ``takes much of
the engineer's attention away from the view forward.'' \87\
---------------------------------------------------------------------------
\86\ FRA-2021-0032-13038 at 2.
\87\ FRA-2021-0032-13038 at 6.
---------------------------------------------------------------------------
During the public hearing, BLET's National Legislative
Representative, who described himself as a former freight locomotive
engineer on a Class I railroad for 18 years, testified in overall
support of the NPRM and included comments regarding BLET's concerns
with some of the proposed exceptions to the two-person train crew
mandate. BLET testified that a locomotive engineer is not a mobile
member of the train crew because that person is responsible for the
physical manipulation of the controls of the locomotive and the
monitoring of on-board systems. BLET stated that for an engineer to
leave the locomotive cab unattended as a one-person train crew, the
engineer must complete a time-consuming series of steps that includes
disabling the locomotive's controls, setting the train's air brakes,
securing the locomotive and train with hand brakes, and following rules
or procedures that confirm the train is properly secured. In explaining
how PTC has made a train crew's job more difficult, BLET testified that
PTC has introduced new complexities and can reduce a crewmember's
situational awareness such as when a dispatcher references a mandatory
directive over the radio and a locomotive engineer must toggle between
display screens to understand the directive the dispatcher is
referencing. BLET raised concern that railroads are reducing crew size
to increase corporate profits while ignoring rules or cutting corners
on safety. BLET's testimony also reiterated concern in BLET and SMART-
TD's jointly filed written comment that FRA reconsider some of the
proposed exceptions to a two-crewmember mandate as those operations may
not as safe or simple as FRA suggested in the NPRM.
During FRA's public hearing, SMART-TD's President testified about
the general dangers of railroad work and that safety cannot be expected
to improve by reducing the number of train crewmembers when the
workforce is already depleted and overworked. SMART-TD's President
testified that ``the carriers regularly argue that there is no data to
support a two-person crew being safer than a one-person crew . . . [and
t]he irony . . . is that likewise there is no data to support that a
one-person or autonomous operation is any safer than that of a two-
person crew in freight operations.'' SMART-TD's President also
described an incident when he was a locomotive engineer on a coal train
and his conductor warned him of a young child on the track. SMART-TD's
President testified that he blew the horn and rang the bell, but the
boy did not move, and he credited the conductor for saving the child's
life because the conductor ran out on the nose of the engine and waved
in a manner that led the child to step out of the way. SMART-TD's
President concluded that his experience demonstrates the effectiveness
of two crewmembers working as a team as it is important to have the
conductor make track observations when a locomotive engineer may be
distracted by monitoring the controls or interacting with a computer
screen. SMART-TD testified that, in addition to a backup observation
role, a conductor can contribute knowledge and decision-making
judgment, especially when responding to non-routine situations. SMART-
TD testified about PTC's limitations and how a conductor can identify
washouts, rockslides, fires, vehicles, and pedestrians, but PTC cannot.
SMART-TD described how a one-person crew would be unlikely to assist
anyone injured in a highway-rail grade crossing collision nor would the
one-person crew be able to assist first responders as easily as a
conductor or quickly assess damage from a derailment.
During FRA's public hearing, a member of SMART-TD who described
himself as a conductor with 18 years of experience stated that the
proposed crew size safety requirements are
[[Page 25063]]
important because the workforce is already strained and the recent
doubling of one-and-a-half-mile-long trains would make a complex job
unsafe with a one-person train crew.\88\ This SMART-TD member described
the importance of multi-person crews being able to mentor one another
and provide backup. Specifically, he explained that a one-person crew
will be physically and psychologically challenged because of the jobs'
many demands, such as the need to look at three different computer
screens in the locomotive cab while continuing to monitor conditions
ahead, and due to working alone without human interaction or even the
freedom to listen to music. He also stated that a person working alone
will lose a layer of safety that is not fully replaced by PTC. Further,
this SMART-TD member testified about an incident in which he was a
train crewmember and the PTC system allowed his crew to operate the
train with PTC enabled even though nobody entered the number of axles
in the train, a potential safety concern in the way the PTC system
would govern the train. This SMART-TD member also stated that, as a
former U.S. Navy combat medic, he was trained to spot medical concerns
and, in his rail work experience, it has been necessary for him to have
fellow crewmembers removed for medical emergencies, illnesses, and
fatigue. Thus, he noted that one-person train crews, who do not remove
themselves from train operations when they are tired or sick, will pose
a greater safety risk than two-person train crews where the second
crewmember can mitigate the risk of a sick or tired crewmember.
---------------------------------------------------------------------------
\88\ This SMART-TD witness at the hearing is also the Secretary
of SMART-TD's Maryland State Legislative Board as identified in that
organization's comment. FRA-2021-0032-6937.
---------------------------------------------------------------------------
TTD commented that it consists of 37 affiliated unions representing
the totality of rail labor, including both passenger and freight rail
workers, and specifically the locomotive engineer and conductor
employees who will be most impacted by the NPRM.\89\ TTD's President
also presented oral testimony at FRA's public hearing. Overall, TTD
commented that it supported the NPRM and urged FRA to adopt more
stringent requirements than proposed by eliminating or changing the
option for a railroad to use ``an alterative risk assessment process in
lieu of the proposed risk assessment'' and by requiring that a second
crewmember be a certified conductor.\90\ TTD stated that FRA's NPRM
recognized the ``fundamental truths [that] . . . crew size is directly
correlated to the safe operation of trains [and that] . . . reducing
the number of [crewmembers] creates substantial safety risks that need
to be addressed . . . [because the] crewmembers have complementary[,]
but distinct[,] responsibilities.'' \91\ TTD commented that a Class I
railroad's video shown at the public hearing to demonstrate operations
using ground-based conductors described a scenario occurring ``under
ideal circumstances in terms of [a ground-based conductor] being able
to locate and access [a] site without any difficulty [as a person]
arriving from off-site is likely going to be severely delayed.'' \92\
---------------------------------------------------------------------------
\89\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
\90\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 2.
\91\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 5.
\92\ FRA-2021-0032-13049 at 13.
---------------------------------------------------------------------------
TTD also highlighted a comment from its affiliate, the
International Association of Fire Fighters, that first responders on-
scene rely on train crews to provide critical cargo information and
services such as separating train cars, and with only one crewmember
there is no redundancy and a much higher risk of first responders not
receiving crucial information.\93\
---------------------------------------------------------------------------
\93\ FRA-2021-0032-5247.
---------------------------------------------------------------------------
Labor organizations, such as BLET, SMART-TD, and TTD, requested
that FRA reconsider the remote control operations exception and asked
whether additional regulations of remote control operations are needed
to allow remote control operators to safely operate over any distance.
These commenters do not seek FRA to regulate remote control operations
through this rulemaking, as they viewed the proposed exception as
allowing such operations without establishing other necessary safety
requirements. These labor organization commenters took the position
that FRA should, outside of this rulemaking, take action to review all
remote control operation related accidents, regardless of whether the
accidents occurred during train or switching operations, and then
consider whether to seek input from FRA's Federal advisory committee,
the Railroad Safety Advisory Committee (RSAC), or otherwise initiate a
rulemaking covering comprehensive safety requirements for remote
control operations.
The Brotherhood of Maintenance of Way Employes Division (BMWED),
which represents employees who inspect, install, construct, repair, and
maintain railroad track, roadbed, and related right-of-way
infrastructure on all Class I railroads, advocated for a locomotive
engineer and a conductor two-person train crew for every freight train
operating over the general railroad system.\94\ BMWED's comment stated
that two-person crews provide necessary checks and balances for the
operation of the train and its securement at terminal points, yards,
and sidings.
---------------------------------------------------------------------------
\94\ FRA-2021-0032-12213.
---------------------------------------------------------------------------
The American Train Dispatchers Association (ATDA) commented in
support of the proposed rule, emphasizing the safety need for a
dispatcher to immediately communicate instructions or orders to a train
en route.\95\ ATDA is concerned that a one-person train crew might not
always be able to receive communications, thereby creating a
substantial hazard to rail employees and the public. Also, ATDA
commented that railroad safety is improved by the regular crew
communications to dispatchers and that it will be unrealistic for a
one-person crew to accomplish all the crew's regular duties and
continue to report other safety information, including the location of
young children near the tracks, visible track- and structure-related
defects or damage, and potential problems on trains passed such as
shifted loads and equipment dragging.\96\
---------------------------------------------------------------------------
\95\ FRA-2021-0032-13016.
\96\ Id. at 3.
---------------------------------------------------------------------------
The Transport Workers Union of America (TWU), which represents a
variety of rail employees, including those who inspect and repair
equipment and track at several Class I railroads and some of the
northeast's largest regional rail systems, commented in support of the
rule, emphasizing the safety need for a second crewmember to assist
carmen who are dispatched when a train develops mechanical problems en
route.\97\ TWU explained that a single carman is often dispatched to
make such a mechanical repair and, on these occasions for safety
reasons, it is necessary for a conductor to assist the carman in making
the inspection and necessary repairs.
---------------------------------------------------------------------------
\97\ FRA-2021-0032-12281.
---------------------------------------------------------------------------
In addition, BLET Division 446 from Belen, New Mexico,\98\
described how its members operate trains over remote landscapes that
are not readily accessible by motor vehicle, and thus indicated that a
two-person train crew is vital to survival in medical or other
emergency situations.
---------------------------------------------------------------------------
\98\ FRA-2021-0032-8741.
---------------------------------------------------------------------------
Further, the California Labor Federation (CLF), AFL-CIO \99\ noted
a two-person train crew is better able to monitor events both inside
and outside the locomotive cab than can a single crewmember, thereby
providing greater
[[Page 25064]]
situational awareness. CLF also explained how a second crewmember can
fill in knowledge gaps and keep the locomotive engineer alert when that
engineer is fatigued.\100\
---------------------------------------------------------------------------
\99\ FRA-2021-0032-10712.
\100\ A similar comment was received from the Oklahoma AFL-CIO.
FRA-2021-0032-10355.
---------------------------------------------------------------------------
2. Individual Commenters
A short form letter was used in approximately 3,658 comments to
express opposition to one-person crews, asserting that ``[h]aving
multiple crewmembers working at all times protects against medical
emergencies and derailments.'' \101\ The form letter also suggested an
economic argument that railroads were motivated to reduce train crew
size by ``Wall Street greed'' and that one-person train crews could be
connected to future supply chain disruptions.
---------------------------------------------------------------------------
\101\ FRA-2021-0032-2764.
---------------------------------------------------------------------------
Further, approximately 469 commenters submitted a short form letter
which stated that two pairs of eyes are better than one and compared a
train crew to an airline crew, but suggested rail posed greater risks
because freight trains transport hazardous or flammable materials and
spent nuclear rods.\102\
---------------------------------------------------------------------------
\102\ FRA-2021-0032-10974 is a representative example of this
group of comments.
---------------------------------------------------------------------------
Another form letter sent by approximately 29 individual commenters
stated their shared concern that a lone crewmember would not be able to
address train malfunctions or grade crossing incidents or assist
emergency response personnel as quickly as a two-person crew could,
leaving their community in harm's way.\103\ For this reason, these
commenters supported FRA's proposal to establish minimum requirements
for the size of crews operating trains.
---------------------------------------------------------------------------
\103\ FRA-2021-0032-11120.
---------------------------------------------------------------------------
In a similar example of a form letter supporting a two-person crew
mandate, FRA received nine identical comments mailed and docketed
together as a single comment from individuals expressing concern that a
lone crewmember would not be able to address train malfunctions or
grade crossing incidents or assist emergency response personnel as
quickly as a two-person crew could.\104\
---------------------------------------------------------------------------
\104\ FRA-2021-0032-10465.
---------------------------------------------------------------------------
During FRA's public hearing, a commenter identified herself as a
conductor with ten years of experience for the Union Pacific Railroad
Company (UP).\105\ The commenter stated that she is concerned with an
overreliance on technology that does not always work as intended. She
also disagreed with UP's testimony that having a conductor in a truck
would be a faster way of alleviating a mechanical repair to a train
versus a conductor who travels with the train.
---------------------------------------------------------------------------
\105\ FRA-2021-0032-13184.
---------------------------------------------------------------------------
Numerous individual commenters provided first-hand accounts of
close calls and lives saved by the action of two crewmembers working as
a team. These commenters largely provided anecdotal information
supporting why they thought trains staffed with fewer than two persons
created unsafe conditions. Individual commenters sometimes used a form
letter provided by an organizing association or union but added their
personalized statement to make it unique. Because there are so many of
these types of comments in the record, the following examples are
provided as a sampling and not an exhaustive summary.
A short form letter comment supporting a two-person train crew
mandate was used in approximately 2,574 comments and was written from
the perspective of rail employees who are currently train
crewmembers.\106\ The form letter captured the person's support for FRA
revisiting research described in the NPRM that scrutinizes the
cognitive and collaborative demands placed on each crewmember, and how
multiple crewmembers can work together as an effective, safe team. This
form letter also raised concerns with technology and other job-related
stressors and concluded that having a work partner helps get the job
done.
---------------------------------------------------------------------------
\106\ FRA-2021-0032-8789.
---------------------------------------------------------------------------
A commenter who identified himself as having 22 years of experience
as a conductor and several leadership roles in SMART-TD supported the
NPRM, as he viewed a two-person train crew requirement as vital to safe
freight operations largely because of the hazards related to trains
hauling hazardous materials.\107\ The commenter pointed to trends he
has observed, stating that the length and weight of freight trains are
increasing, thereby impacting the distance needed to stop the train in
case of emergency and increasing the probability of an accident/
incident. The commenter also stated that a derailment or accident
involving a long train hauling mainly hazardous materials could pose a
more widespread danger zone than a shorter train. His stated concerns
included protecting communities and schools located near railroad
tracks. The commenter also stated that communities impacted by stopped
trains blocking crossings would be worse off because it would take
significantly longer for a railroad to manually separate the train and
unblock the crossing if a conductor is not on the train to assist.
Further, the commenter raised the issue of how two crewmembers keep
each other alert and on task, and that having an accountability partner
is the number one tool used by crews to combat fatigue.
---------------------------------------------------------------------------
\107\ FRA-2021-0032-9893.
---------------------------------------------------------------------------
An individual commented that he was a conductor on a train that
struck a delivery truck at a highway-rail grade crossing.\108\ The
commenter explained that while the locomotive engineer began the
process of stopping the train, he immediately called the dispatcher to
arrange for emergency first responders. According to the commenter's
description, he was off the train before it stopped so that he could
run back to the crossing and help a passerby pull the unconscious truck
driver out and away from the truck before the truck was engulfed in
flames. He was then available to assist first responders, to split or
secure the train or answer any questions as needed. The commenter
contrasted his accident description with how he believes the incident
would have unfolded if the train had been operated by a one-person
crew. Under the commenter's theoretical scenario, the locomotive
engineer would make an emergency brake application, dial the emergency
number, and provide the milepost location. The engineer would not be
able to provide the dispatcher with the DOT grade crossing number until
the train was stopped and the number could be safely found in reference
materials. The commenter explained that with a one-person crew the
dispatcher would call for emergency first responders, but the engineer
could not leave the train to assist the driver because the engineer
would have a duty to secure an unattended train with hand brakes first.
According to the commenter, without a second crewmember, other factors
would determine whether the driver would have been rescued in time, and
the one-person crewmember would feel helpless as the crewmember would
be required to remain on the train unable to help anyone injured or
readily assist first responders. The commenter also stated that FRA's
proposed rule was not stringent enough in that two-person train crews
are necessary for all train movements to ensure safety.
---------------------------------------------------------------------------
\108\ FRA-2021-0032-112240.
---------------------------------------------------------------------------
A commenter described a situation when he was part of a freight
train crew that had an emergency brake application in a town.\109\
Because the train was blocking the town's highway-rail grade crossings
for at least 15 minutes and
[[Page 25065]]
preventing an ambulance from crossing the tracks, a dispatcher
requested that the crew cut a crossing to allow the ambulance by. The
commenter is concerned that without a second crewmember, situations
like this would occur, and it is unclear how long it would take a
railroad to open a crossing for local emergency responders.
---------------------------------------------------------------------------
\109\ FRA-2021-0032-0970.
---------------------------------------------------------------------------
A commenter expressed several safety concerns as a freight train
conductor for over 19 years.\110\ For instance, the commenter expressed
frustration that railroads do not keep track of incidents in which
trains with two crewmembers saved lives or prevented accidents. He
explained that he has crewed trains involved in accidents at rail-
highway grade crossings and derailments of cars transporting hazardous
materials, and how two crewmembers can more easily prevent harm to the
public by taking quick action or relaying information to emergency
responders. He also expressed concerns with a one-person train crew
suffering from fatigue.
---------------------------------------------------------------------------
\110\ FRA-2021-0032-0594.
---------------------------------------------------------------------------
A commenter described that he is both a locomotive engineer and
conductor who has experienced firsthand why it is imperative to public
safety that each train have a minimum of two crewmembers.\111\ The
commenter described an incident in which the train he was conducting
crashed into a car at a highway-rail grade crossing during winter. The
commenter explained that, with two crewmembers, he was free to help the
driver of the motor vehicle that was in a ditch, while the engineer
stayed with the locomotive to coordinate with local emergency
responders, monitor the air brake system, and perform other duties
necessary to maintain the safety of rail operations.
---------------------------------------------------------------------------
\111\ FRA-2021-0032-0226.
---------------------------------------------------------------------------
An individual commented that he has over twenty years experience as
a conductor and engineer for a Class I freight railroad and raised many
safety issues.\112\ For instance, the commenter expressed concern that
a one-person train crew that significantly relies on PTC and other
technologies to safeguard and operate the train will encounter
difficulties when one or more technologies fail or are unavailable as
the person's ability to operate in manual mode could have deteriorated
from disuse and that there are examples of this problem in the airline
industry. The commenter also made a case for redundancy, noting that in
the motor vehicle context, Federal law mandates cars be manufactured
with seat belts and States enforce laws governing the use of seat belts
even though air bags could have arguably replaced the seat belt. The
commenter pointed out that, in his experience, railroads have largely
held both crewmembers responsible for the safe operation of the train
and compliance with operating rules and practices because doing so
enhances safety.
---------------------------------------------------------------------------
\112\ FRA-2021-0032-12808.
---------------------------------------------------------------------------
Additionally, this same commenter stated that he disagreed with
railroad commenters who suggested a conductor in a truck could
substitute for a conductor on the train. He commented that he is
familiar with a territory that would not be accessible by truck and,
therefore, a conductor in a truck would be delayed getting to and
fixing a problem involving the train. In addition, the commenter stated
that a locomotive engineer can often determine the approximate location
of a broken knuckle and a conductor can replace it with a new knuckle
as a relatively routine repair. He stated that in his short experience,
he has fixed three broken knuckles and took 30 to 45 minutes to make a
replacement. He also described an incident where he changed a knuckle
even though the railroad sent a carman out to do it, and he was done
with the repair before the carman arrived about 90 minutes later.
This same commenter also described a situation with a one-person
train that operates into a mile-long tunnel on the territory he works.
According to the commenter, because the tunnel does not have any
ventilation, if the train has any issues where it might have to stop in
the tunnel, the crew is instructed to cut the crew's locomotives from
the train and get out of the tunnel before the tunnel fills with carbon
monoxide. During this tunnel operation, the commenter theorized that it
would be impossible for a one-person crew to create enough pin slack to
separate the locomotives from the rest of the train to escape the
tunnel by operating the locomotives.
During FRA's public hearing, a commenter identified herself as a
BLET National Auxiliary, Second Vice President, and Legislative
Representative from Lakeside, Nebraska.\113\ The commenter also
identified herself as the concerned wife of a BNSF Railway Company
(BNSF) locomotive engineer whom she does not want to operate trains
alone, noting in particular a past medical event. She also expressed
concern about a one-person train crewmember suffering from fatigue,
isolation, and depression. Further, the commenter was concerned that
training programs for one-person train crews will be inadequate, noting
that when railroads removed the brakeman position to reduce train crew
size to two crewmembers, the quality of the training was reduced to
accommodate the large number of brakemen who were trained for conductor
positions.
---------------------------------------------------------------------------
\113\ FRA-2021-0032-13184.
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During FRA's public hearing, another commenter stated he was a
locomotive engineer for UP for almost 20 years, and the idea of a one-
person train crew is unsafe because it would take away half of the
decision-making team.\114\ The commenter described how a two-person
crew goes through their paperwork together, discussing slow orders,
train makeup, and temporary restrictions. He said that organizing the
crew's paperwork and planning the shift's operation will not always be
easy because, with so many documents, rules, and temporary rules, one
person could overlook a safety concern and make a mistake the other
crewmember could have otherwise caught. The commenter also raised
concern that, although a one-person train crew may be able to perform
certain tests and inspections alone or with a utility employee, a
conductor assigned to the train provides a valuable oversight role, and
``it's just more cohesive to have that second person [remain with the
train] for the entire trip.'' \115\ Further, the commenter stated that
toward the end of a tour of duty, when a train approaches a crew
change, the crew has many responsibilities that are time-sensitive and
would be difficult for a one-person crewmember to complete as quickly
or efficiently.
---------------------------------------------------------------------------
\114\ FRA-2021-0032-13184.
\115\ FRA-2021-0032-113184.
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A commenter, who described herself as the spouse of a railroad
worker and a person with significant interest in the rulemaking largely
because of her many work experiences in first responder positions
including as a 911 dispatcher and working in an ambulance, fire truck,
and police car stated that she has spoken publicly on the topic of
blocked crossings and her opposition to one-person train crews.\116\
The commenter stated that she has collected anonymous statements from
railroaders regarding their experiences, describing accidents and
possible scenarios that could cause delays or additional safety
concerns if railroads use one-person train crews, including concerns
about the limitations of PTC when traveling at restricted speed and
having to visually verify switches, and the limitations of global
positioning system software to detect which track the train will be
operating over and how a second crewmember
[[Page 25066]]
could provide backup in detecting if the train was lined to switch to
the wrong track. The commenter also echoed many other concerns raised
by individual commenters.
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\116\ FRA-2021-0032-12819.
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An individual commented in strong support of a national, minimum
two-person train crew requirement as a proactive safety
precaution.\117\ This individual stated that she is concerned about
public and environmental exposure to hazardous materials from accidents
and non-accidental spills and is especially concerned about a one-
person crew freight train transporting waste flowback from the fracking
process that may have both known and unknown hazards.
---------------------------------------------------------------------------
\117\ FRA-2021-0032-113111.
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A commenter noted railroad rules that impose critical focus zones
(CFZ) in his comment in support of the NPRM.\118\ The commenter pointed
to the CFZ rule of the Canadian National Railway Company (CN), which he
stated was in effect even with PTC, thereby showing a need for a two-
person train crew even in PTC territory. The commenter stated that
removing CFZ operating requirements and a two-person crew would
certainly degrade safety given how a CFZ rule with a two-person crew
greatly improves visibility and safety during train movements.
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\118\ FRA-2021-0032-12333. FRA notes that there are no Federal
requirements that a railroad establish operating rules or practices
for a CFZ but that some railroads voluntarily establish them in
certain territories to reduce distractions, especially for the
locomotive engineer. For example, a crewmember other than the
locomotive engineer may be required to make all radio communications
in the CFZ, and any crew communications are required to be limited
to duties related to the train's immediate operation.
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3. Federal Congressional Commenters
One comment signed by 54 House members stated their strong support
for FRA's NPRM to enforce a minimum of two crewmembers in most
passenger and freight rail operations, as they viewed the rule as
necessary to ensure the safety of communities.\119\ This comment urged
FRA to act expeditiously in finalizing the strongest rule possible,
finding crew size a fundamental safety issue. These commenters noted
that commercial airlines and boats have at least two crewmembers, and
that technology such as PTC cannot replace the expertise and quick-
thinking nature of human beings acting together as a team to operate
trains and respond to unanticipated events. These 54 House members also
supported a two-person train crew mandate out of concern that ``some
freight railroads are operating trains that are extremely heavy and
miles-long, which impact safe handling, increase wear and tear, and
cause blocked crossings which in turn impede motorists' travel and
encourage dangerous pedestrian behavior.'' These commenters also stated
that ``railroads successfully sued in court to overturn . . . [S]tates'
laws'' mandating minimum crew size requirements, and courts found that
``the [F]ederal government has jurisdiction over crew size
requirements.'' This group of lawmakers also concluded that the public
needs ``the safety benefits and uniform protection that [a rule] on
minimum train crew size [safety] would provide.''
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\119\ FRA-2021-0032-12809 (duplicate comment filed at FRA-2021-
0032-12971).
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Two of these House members, Rep. Donald M. Payne, Jr. and Rep. Dina
Titus, also co-signed a second comment that expressed strong support
for the proposed rule, especially raising concerns with freight trains
that they note have grown in both length and weight, which adds to the
complexity of safe handling of those trains and contributes to greater
maintenance needs.\120\ This jointly filed comment also raised concerns
about anticipated delays in resolving train problems when there is only
one crewmember. These congressional members stated their concern that
local first responders are negatively impacted by a one-person train
crew because of delays in unblocking crossings. This comment echoed
FRA's description in the NPRM of the safety benefits that two
crewmembers can provide for both operating the train and responding to
any unanticipated events, including those that PTC was not designed to
prevent.
---------------------------------------------------------------------------
\120\ FRA-2021-0032-11185.
---------------------------------------------------------------------------
Another of these 54 House members, Sharice L. Davids, filed a
second comment to emphasize her support for the proposed rule and her
concern that having one person responsible for a massive train hauling
hazardous materials jeopardizes the safety of crews and the public at
large.\121\ Rep. Davids also commented that a national two-person crew
requirement is important to secure some of the nation's most critical
supply chain routes at a time when there is increased pressure on the
supply chain.
---------------------------------------------------------------------------
\121\ FRA-2021-0032-10917.
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FRA received at least two individually filed comments from House
members who represent New Jersey districts and expressed support for
the proposed requirements in the NPRM. Rep. Jefferson Van Drew wrote
that he supported FRA's proposed rule because of his understanding that
``[r]ail transportation is safer when workers have a co-worker
available to watch their back and assist them with difficult or
dangerous tasks.'' \122\ Rep. Van Drew emphasized that the final rule
should also include passenger rail operations, and he urged FRA to
strengthen the requirements to ensure the safest environment for rail
workers. Similarly, Rep. Christopher Smith commented that he is
strongly supportive of all trains in New Jersey having at least two
crewmembers to ensure public safety and proper operation of critical
infrastructure.\123\ Rep. Smith stated that research indicates a two-
person train crew team would have a greater ability to notice and
correct errors or problem-solve during an emergency than would a one-
person train crew. He raised safety concerns with a one-person train
crew operating a long train that is transporting hazardous material
through densely populated areas and concluded that a two-person
requirement would best protect the public, preserve confidence in rail
transportation, and safeguard communities.
---------------------------------------------------------------------------
\122\ FRA-2021-0032-10347.
\123\ FRA-2021-0032-13188.
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4. State and Local Governmental Commenters
Several State and local government officials and organizations
commented in support of the NPRM. For example, the National League of
Cities, a nonpartisan organization comprised of city, town, and village
leaders that are focused on improving the quality of life for their
constituents, commented that it believes the presence and training of
railroad crew is a matter of safety.\124\ This organization supported
the NPRM and stated the hazard of reduced crews undermines the safe and
efficient movement of trains and puts local first responders in unsafe
situations during rail incidents and accidents.
---------------------------------------------------------------------------
\124\ FRA-2021-0032-10696.
---------------------------------------------------------------------------
Michigan State Representative John Cherry commented that having a
second crewmember could be the difference between life and death for
the crew and the community.\125\ Representative Cherry's comment stated
a second crewmember is needed to help with situational awareness,
prevent fatigue, and relay critical information to emergency responders
if one crewmember is incapacitated. Similar comments were made by other
Michigan State Representatives including Alex Garza,\126\ David
LaGrand,\127\ and Padma
[[Page 25067]]
Kuppa,\128\ and Michigan State Senators Rosemary Bayer \129\ and Erika
Geiss.\130\
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\125\ FRA-2021-0032-9545.
\126\ FRA-2021-0032-11021.
\127\ FRA-2021-0032-10993.
\128\ FRA-2021-0032-9906.
\129\ FRA-2021-0032-11005.
\130\ FRA-2021-0032-10585.
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Dinah Sykes, Kansas Senate Minority Leader, commented in strong
support of the NPRM because it will establish a consistent, nationwide
standard that will reduce safety risks.\131\
---------------------------------------------------------------------------
\131\ FRA-2021-0032-9816.
---------------------------------------------------------------------------
Patrick Diegnan, Jr., New Jersey State Senator and Transportation
Chair, stated that he is concerned with the safety of both freight and
passenger trains that operate with great frequency through densely
populated areas.\132\ Senator Diegnan also attributed New Jersey's
positive safety record in recent years to trains operating with no
fewer than two crewmembers.
---------------------------------------------------------------------------
\132\ FRA-2021-0032-10588.
---------------------------------------------------------------------------
Aimee Winder Newton and Arlyn Bradshaw, two members of the Salt
Lake County Council in Salt Lake City, Utah, commented in support of
the NPRM because advancements in technology, such as PTC, improve
safety but are not a substitute for a train's on-board
crewmembers.\133\
---------------------------------------------------------------------------
\133\ FRA-2021-0032-10287.
---------------------------------------------------------------------------
Sonoma-Marin Area Rail Transit District (Sonoma-Marin), a State of
California publicly-owned, 95-mile railroad, commented that it
currently operates both passenger and freight rail service with two-
person train crews and hosts tourist railroads that operate with at
least a two-person train crew.\134\ Sonoma-Marin stated that it
supports FRA's efforts to create the safest operating environment for
communities, railroad personnel, and customers. Each of the railroad's
freight train crewmembers is qualified as both a locomotive engineer
and a conductor, and the same combination is used for passenger
operations, although periodically the second crewmember is only
qualified as a conductor. In passenger service, Sonoma-Marin uses a
PTC-equipped diesel multiple-unit fleet with two- and three-car
consists. Sonoma-Marin also stated that it currently uses a 24-hour
dispatch center and that crewmembers can directly communicate with one
another.
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\134\ FRA-2021-0032-11211. Sonoma Marin's trade name is SMART.
---------------------------------------------------------------------------
Transportation for America, an advocacy organization for local,
regional, and State leaders, supported FRA's action to require at least
two crewmembers on most trains but expressed concern that the NPRM did
not go far enough. Transportation for America advocated for requiring
passenger operations to have three or four crewmembers and requiring a
two-person crew minimum for any of the proposed exceptions for
passenger and freight operations that operate over highway-rail grade
crossings.\135\
---------------------------------------------------------------------------
\135\ FRA-2021-0032-11186.
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Citizens Acting for Rail Safety--Twin Cities (CARS-TC), a
community-based organization that is a regional chapter of Citizens
Acting for Rail Safety, commented that the size of train crews is a
public safety matter and opined that high hazard freight trains require
a four-person train crew.\136\
---------------------------------------------------------------------------
\136\ FRA-2021-0032-10731. Citizens Acting for Rail Safety
describes itself as a regional, non-partisan, grassroots advocacy
group that works with residents, legislators, and agency officials
to improve rail safety to benefit the health, safety, and security
of people, wildlife and the environment.
---------------------------------------------------------------------------
FRA's Response
The vast range of commenters supporting the NPRM, including
Federal, State, and local representatives, and organizations that
represent communities and employees, reflects the interest that the
public has in FRA regulating the safety issues regarding train crew
size. The comments supporting the NPRM largely corroborated FRA's
background in the NPRM describing the issues and why additional safety
requirements are necessary. In FRA's experience with regulating and
inspecting the rail industry, and as described by research and reports
of incidents in the NPRM, conductors and other crewmembers not assigned
to operate the locomotive or train play an active role in maintaining
the safe operation of the train and safeguarding their fellow employees
and the public. The comments supporting the NPRM help provide context
for the safety issues described in the NPRM concerning the significant
role of a conductor or second crewmember; the need to have technology
installed to stop a train when a one-person train crewmember becomes
incapacitated; and the need to establish minimum communication and
other requirements to mitigate hazards arising from both routine
operations and unplanned incidents such as derailments, accidents, and
mechanical breakdowns. The many anecdotal comments from individuals
supplement the research and reports as important source information for
the contributions of a two-person train crew team.\137\
---------------------------------------------------------------------------
\137\ Some labor organization commenters, such as TTD and SMART-
TD, highlighted FRA's Confidential Close Call Reporting System
(C3RS) as a program that might help to inform this rule but raised
concerns about the low participation rate among railroads. C3RS is a
voluntary program that provides employees of participating railroads
the opportunity to report unsafe events and conditions
confidentially. See https://railroads.dot.gov/railroad-safety/divisions/safety-partnerships/c3rs/confidential-close-call-reporting-system-c3rs (providing an overview, a list of
participating railroads, a description of stakeholders, and answers
to frequently asked questions including how railroads, labor
organizations, and FRA use data collected through the program).
While FRA agrees that C3RS could be informative, e.g., because the
program periodically issues confidential ``alert bulletins'' to
stakeholders and issues non-confidential information through
publicly available newsletters, FRA is unaware of any such alert or
newsletter that identified an issue that directly relates to the
safety of one-person train operations. Also, because FRA desires
greater rates of participation in the program than the approximately
25-30 current or committed railroad participants, none of which
include any Class I freight railroads, FRA is currently engaged in
efforts to promote voluntary participation in C3RS through the RSAC
process. See https://rsac.fra.dot.gov/tasks, RSAC Task 2022-03.
---------------------------------------------------------------------------
In addition, FRA agrees with these commenters that this rule is
needed because PTC is not a solution by itself. As of September 2023,
PTC technology is governing rail operations on approximately 58,787
route miles, representing approximately 42% of the rail network in the
United States. Although this is a significant achievement, it means
that most railroad route miles in the United States are currently not
governed by a PTC system. Even on PTC-governed main lines, railroads
experience unplanned outages and planned outages of their PTC systems.
For example, in March 2023, BNSF and the National Railroad Passenger
Corporation (Amtrak) experienced unplanned outages of their PTC
systems, and NS experienced an unplanned outage of its PTC system in
August 2023, impacting operations of both the host railroad and its
tenant railroads. Also, during 2023, several Class I railroads,
commuter railroads, and Amtrak temporarily disabled their PTC systems
to facilitate planned infrastructure upgrades or capital projects.
Finally, although railroads experiencing planned or unplanned outages
of their PTC systems comply with certain safety requirements,\138\ the
NPRM clarified that ``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.'' \139\
---------------------------------------------------------------------------
\138\ See, e.g., 49 CFR 236.1021(m), 236.1029(b).
\139\ 87 FR 45581.
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D. Tourist Railroad and Railroad Museum Industry Comment That Asserted
the NPRM Would Have No Impact
Heritage Rail Alliance, Inc., the primary trade organization for
the tourist railroad and railroad museum industry, commented that the
NPRM appears to impact minimally, if at all,
[[Page 25068]]
the operating practices of both non-general and general system tourist
railroads.\140\ The commenter's informal survey found that its member
railroads are using two-person train crews and that FRA was correct to
conclude that tourist railroads are unlikely to switch to one-person
train crew operations.
---------------------------------------------------------------------------
\140\ FRA-2021-0032-11017.
---------------------------------------------------------------------------
FRA's Response
In the NPRM, FRA stated that the agency is unaware of any tourist
train operation on the general railroad system of transportation that
operates with a one-person train crew.\141\ Heritage Rail Alliance,
Inc.'s comment verified that the final rule will have minimal to no
impact on non-general and general system tourist and museum train
operations. FRA notes, however, this final rule provides an exception
for tourist train operations that are not part of the general railroad
system of transportation, which is contained in Sec. 218.125.
---------------------------------------------------------------------------
\141\ A comment was received from the Strasburg Rail Road, which
has both tourist and short line freight operations, but that comment
is discussed under the heading ``Short Line and Regional Freight
Railroads'' as the comment described one-person train operations
concerning the railroad's freight operations or work trains, not its
tourist operations.
---------------------------------------------------------------------------
E. Comments Opposing the NPRM
The NPRM included a background discussion of the state of current
operations, including the existing Federal safety requirements and
projected impact of the proposed crew size safety requirements on
existing and future one-person train crew operations. The following
summary describes comments received from entities and individuals
including members of Congress, passenger train operators, short line
and regional freight railroad commenters, and Class I freight railroad
commenters. FRA did not identify any labor organizations, tourist
railroads, or State or local governmental commenters that opposed the
NPRM. In the summary of the comments from Class I freight railroads and
similar rail industry commenters, FRA responded to several additional
subjects that were addressed by these commenters. For instance,
comments were received regarding alternative crewmember arrangements
that the industry referred to as expeditors, ground-based crewmembers,
or ground-based conductors. The Class I freight railroads and similar
industry commenters also covered the subjects of train operations in
other countries, new technology and automated operations, the
transportation of hazardous materials, risk assessments and FRA's
review standard, and remote control operations. FRA's responses reflect
the agency's position on the comments and how FRA has responded in the
final rule as compared to the NPRM.
1. Congressional Commenters
The two Congressional comments opposing the rule detailed their
opposition and raised a variety of legal, policy, and safety concerns
that overlapped with other comments. For example, U.S. Senator Roger F.
Wicker, and Rep. Eric A. Crawford stated their concern that the
proposed requirements would have a significant economic impact on a
substantial number of small entities, a concern shared by short line
and regional freight railroad commenters.\142\ Senator Wicker commented
that ``[t]he NPRM fail[ed] to acknowledge that changes to operations
and infrastructure, may produce benefits, including safety benefits
[and that u]nder the logic in the NPRM, the specter of risk is
sufficient to prohibit preemptively any innovation.'' \143\ Further,
Senator Wicker commented that FRA has other ways to address safety
concerns raised in the NPRM such as raising the random testing drug or
alcohol testing rates, requiring inward facing cameras, or using other
technological advances.
---------------------------------------------------------------------------
\142\ FRA-2021-0032-13052 and FRA-2021-0032-13018.
\143\ FRA-2021-0032-13052 at 1.
---------------------------------------------------------------------------
Rep. Crawford expressed his view that FRA failed to comply with the
Administrative Procedure Act, because he sees the NPRM as lacking a
rational basis, and the Regulatory Flexibility Act, because he views
the NPRM as failing to determine whether the proposed rule would have a
significant economic impact on a substantial number of small entities.
Rep. Crawford commented that those legal concerns may be secondary to
his perception that FRA may be lacking the authority to promulgate a
rule based on case law limiting agency action under the ``major
questions doctrine.'' Rep. Crawford commented that the NPRM failed to
adequately identify a particular problem that needs to be addressed, in
addition to taking an overly prescriptive approach that does not
encourage innovation or growth or competition among regulated entities.
Rep. Crawford explained that he did not find FRA's support for the rule
persuasive and he suggested that FRA should have gotten more input from
the industry before publishing the NPRM.
FRA's Response
In comment responses below, FRA addresses in detail specific issues
raised by the Members of Congress, as many of these issues were also
raised by certain industry commenters. Other issues raised are
addressed in the RIA and below in Section IV.B, Regulatory Flexibility
Act and Executive Order 13272. The legal authority discussion in the
Executive Summary, above, describes FRA's authority to issue this rule.
Regarding additional industry input, FRA points to the extensive
history of engagement with industry on this matter, including the
following: (1) FRA pursued a collaborative approach on this subject
matter in 2013 and 2014, but was unable to obtain an industry
recommendation; \144\ (2) FRA extended the comment period to 146 days
upon request, which is significantly longer than the 60-day period
originally scheduled; and (3) FRA provided a public hearing, which was
widely attended and at which all commenters who wished to testify were
provided an opportunity to do so.
---------------------------------------------------------------------------
\144\ 81 FR 13918, 13935-39 (Mar. 15, 2016) (describing in an
NPRM for a previous rulemaking on this same subject FRA's efforts to
obtain a consensus recommendation from the Railroad Safety Advisory
Committee, a forum for collaborative rulemaking and program
development that included representatives from all the agency's
major stakeholder groups).
---------------------------------------------------------------------------
FRA disagrees with Senator Wicker's comment that the proposed rule
failed to recognize the benefits of innovation, as his comment was
directed to FRA's explanation for how the introduction of technology or
operational changes may introduce new risks. As clarification, the NPRM
explained that a risk assessment is useful as a formal process to
identify, evaluate, and eliminate or reduce any hazards identified to
within a range of acceptability.\145\ The risk assessment process
therefore provides the railroad with an objective way of qualitatively
or quantitatively showing how the technology or operational change is a
safety benefit.
---------------------------------------------------------------------------
\145\ 87 FR 45582.
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2. Passenger Operations
The Utah Transit Authority (UTA), which operates the commuter rail
service called ``FrontRunner,'' commented that FRA should consider a
different, less stringent approach in the final rule for passenger
legacy operations especially because UTA's FrontRunner service was
established in 2008 and FRA last approved that operation's emergency
preparedness plan on February 25, 2022.\146\ UTA's comment reflected
that it would prefer
[[Page 25069]]
an option that did not require it to file for special approval, and
that it was concerned about the added expense and complexity of
complying with training a second crewmember should its current one-
person train crew operation be disapproved. UTA suggested that FRA
should consider expanding the current definition of ``train or yard
crew'' in Sec. 218.5 to include a second person like UTA's train host.
UTA's comment also included alternatives that would expedite the review
process for existing passenger operations or otherwise reduce costs.
---------------------------------------------------------------------------
\146\ FRA-2021-0032-10984.
---------------------------------------------------------------------------
The Denver Regional Transportation District (Denver RTD) filed a
comment describing its passenger operation and requesting FRA consider
the information in drafting a possible final rule.\147\ For instance,
Denver RTD requested that FRA consider whether an additional review
process as proposed is necessary, stating FRA's prior approvals and
requirements imposed on Denver RTD's operation were sufficient to
address any safety concerns. Denver RTD also questioned whether FRA was
correct to characterize the Denver RTD operation as a one-person train
crew legacy passenger operation in the NPRM as Denver RTD believes its
second qualified person already meets FRA's requirements for a train or
yard crewmember.
---------------------------------------------------------------------------
\147\ FRA-2021-0032-12177.
---------------------------------------------------------------------------
The American Public Transportation Association (APTA) filed a
comment that raised two issues of concern for its passenger rail
operation members.\148\ First, APTA raised concerns regarding the
proposed risk assessment requirements, which are addressed below in
this discussion of comments and conclusions under the risk assessment
heading. Second, APTA included a comment similar to UTA's concern about
the qualifications of a second train crewmember who could perform
duties under an emergency preparedness plan.
---------------------------------------------------------------------------
\148\ FRA-2021-0032-12947.
---------------------------------------------------------------------------
The Commuter Rail Coalition (CRC) also commented with some concerns
but did not assert whether the association or its members supported or
opposed the proposed rule.\149\ CRC commented that all major commuter
railroads operating today provide at least two qualified individuals
who are trained to support the safe operation of passenger trains, but
that the ``proposed rule would likely have a direct impact on at least
two commuter railroads that operate with at least two employees on each
train but would likely still require a special approval.'' \150\ Like
the other passenger operation commenters, CRC requested that FRA
consider amending the definition of train crew or adding an exemption
so that the rule accommodates as two-crewmember operations those
passenger operations that use a second person who does not perform
functions connected with the movement of the train. CRC's comment was
also similar to APTA's in its approach to the risk assessment, and
which FRA addresses below in this discussion of comments and
conclusions under the risk assessment heading. Further, CRC requested
that FRA consider providing railroads with additional time to comply
with any new requirements, suggesting that operations may need up to a
year to implement changes.
---------------------------------------------------------------------------
\149\ FRA-2021-0032-12172.
\150\ Id. at 3.
---------------------------------------------------------------------------
FRA's Response
In the NPRM, the background section discussed FRA's awareness 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 perform
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.\151\ FRA stated that although such passenger
train operations may satisfy the requirements of 49 CFR part 239,\152\
railroads would need to seek FRA's special approval under proposed
Sec. 218.131 to continue such legacy train operation staffing
arrangements.\153\ As described above, FRA received comments from both
of the passenger train operations identified, Denver RTD and UTA's
FrontRunner. FRA agrees with those passenger train operators that such
legacy one-person train operations have been determined to meet the
safety requirements of FRA's passenger train emergency preparedness
rule and reopening those inquiries could be unduly disruptive to those
operations. Simply put, because the passenger train emergency
preparedness requirements overlap with many of the same issues that are
addressed by a special approval petition in this final rule, FRA does
not find it necessary to require a risk assessment and the opportunity
for public input in the approval process for these legacy passenger
train operations that already have approved emergency preparedness
plans. However, FRA is not willing to forgo the benefits of such
requirements for the initiation of passenger railroad train operations
staffed with a one-person train crew as required under Sec. 218.131.
Accordingly, the final rule, in Sec. 218.125(e), provides an exception
for each passenger one-person train operation established before the
effective date of this final rule with an approved passenger train
emergency preparedness plan under part 239. Further, his final rule
does not require these legacy operations to provide FRA with written
notification of the operation, as it has with legacy freight train
operations staffed with a one-person train crew in Sec. 218.129 of
this final rule, because the existing filing requirement for emergency
preparedness plan approval under part 239 of this chapter already
provides FRA with sufficient notice. As always, FRA also invites these
legacy operations to approach FRA with any specific questions
concerning their responsibilities under either part 239 or this final
rule.
---------------------------------------------------------------------------
\151\ 87 FR at 45580, n. 162 (identifying the following known
passenger train services operating with a one-person train crew: (1)
Denver RTD/Denver Transit Operators; and (2) UTA's FrontRunner).
\152\ 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).
\153\ 87 FR at 45580.
---------------------------------------------------------------------------
However, FRA disagrees with the comments suggesting that FRA expand
the current definition of ``train or yard crew'' in Sec. 218.5 to
include a second person like those used in the legacy one-person
passenger train operations. In those passenger legacy operations, the
second person is not typically doing work under the hours of service
laws and is not involved with the train's movements. Thus, for purposes
of safe rail operations, FRA does not consider that type of rail
employee to be a member of the train crew and will not carve out what
would result in a prospective exception to the two-crewmember
requirement for existing passenger train operations in this final rule.
3. Short Line and Regional Freight Railroads
The American Short Line and Regional Railroad Association (ASLRRA),
on behalf of its short line and regional railroad members, provided
testimony at the public hearing and submitted a 143-page comment.\154\
ASLRRA commented that it represents approximately 600 Class II and III
railroads, which operate 47,500
[[Page 25070]]
miles of track or approximately 29 percent of the national freight
network, and employ approximately 18,000 people. ASLRRA raised a wide
range of issues including legal, policy, economic, and factual concerns
in opposition to the NPRM.
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\154\ FRA-2021-0032-13033.
---------------------------------------------------------------------------
Like the comment filed by the U.S. Small Business Administration's
Office of Advocacy \155\ (SBA-Advocacy), described further in the Final
Regulatory Flexibility Analysis below, ASLRRA contends that the NPRM
underestimated the number of small railroads that would be impacted,
omitted costs for small railroads to comply, and miscalculated the
costs on small railroads to comply with the special approval process.
To support this position, ASLRRA surveyed its members and provided a
statistical extrapolation based on the results of the survey.\156\
ASLRRA commented that the number of its member railroads that currently
operate with some type of one-person train crew is approximately 420
railroads, a much greater number than the seven such short lines FRA
identified. ASLRRA was also concerned that the NPRM treated small
entities in the same way as Class I railroads when transporting certain
types of hazardous materials because the small railroad exception would
not apply under those circumstances.\157\ ASLRRA commented that the
NPRM ``also declines to provide regulatory relief or consider less
burdensome alternatives for small businesses'' \158\ that would benefit
from ``a performance standard.'' ASLRRA also requested that FRA
consider providing small railroads with more time to comply to allow
for proper planning, operational changes, and hiring and training of
additional crewmembers, if necessary. ASLRRA opposed the proposed
prohibition on transporting certain types or quantities of hazardous
materials with a one-person train crew. ASLRRA estimated that
approximately 114 short lines currently operate a train with a one-
person crew carrying quantities or types of hazardous materials that
would require a minimum two-person crew under the proposal, including
five railroads that had representatives testify at the public
hearing.\159\ ASLRRA commented that railroads, by statute, are under a
common carrier obligation to provide transportation of goods on
reasonable request and may not refuse to provide service merely because
it would be inconvenient or unprofitable.\160\ ASLRRA's comment
suggested that FRA previously determined that an alerter was
unnecessary for rail safety at speeds of 25 mph or less when the agency
promulgated a final rule on locomotive safety standards in 2012 without
distinguishing the risk between a two-person train crew and a one-
person crew.\161\ Further, ASLRRA commented that it costs approximately
$20,000 to equip a locomotive with an alerter, approximately 83
railroads currently operate with one person in the locomotive cab using
locomotives that are not equipped with an alerter, that it may not be
possible to retrofit some older models of locomotives, and to meet the
proposed requirements, these 83 railroads would need to equip at least
half of their locomotives.\162\
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\155\ FRA-2021-0032-13007.
\156\ FRA-2021-0032-13033, att. D (providing a summary and
statistical analysis of the survey).
\157\ FRA-2021-0032-13033 at 41.
\158\ FRA-2021-0032-13033 at 10 and 13.
\159\ FRA-2021-0032-13033.
\160\ Id. citing 49 U.S.C. 11101(a) and offering the explanation
that ``[w]hile the obligation applies only to regulated traffic
(e.g., coal, grain, chemicals, etc.), the Surface Transportation
Board has historically stepped in to ensure that shippers are
reasonably served even for exempt commodities.''
\161\ FRA-2021-0032-1193 at 29-30 (citing 77 FR 21312).
\162\ FRA-2021-0032-1193 at 30-31.
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Approximately 14 railroads or rail customers used a form letter in
which they identified their company as a member of the ASLRRA and asked
to incorporate the ASLRRA's comments as their comment. For example, the
form letter was used by the Virginia Railroad Association that
represents nine short line railroads, two Class I railroads, and 27
other rail-related business members.\163\ Also, these form letters
offer the same types of legal, economic, and policy comments that
ASLRRA made in greater detail in its comment.\164\ Each form letter was
personalized by adding one or two unique paragraphs describing the
submitter's existing one-person train crew operations, or plans to
introduce a one-person train crew operation, or to otherwise explain
why the commenter company opposed the NPRM. Ironhorse Resources, Inc.,
the parent company of at least eight railroads, commented that the NPRM
would significantly impact their existing operations because they use
an engineer on the locomotive and a conductor located in a
vehicle.\165\ Similarly, the Central Indiana & Western Railroad
commented that it is a small, family-owned railroad with two full-time
employees and two part-time employees and is concerned that the
requirements, as proposed in the NPRM, would remove the railroad's
option to utilize an engineer on the locomotive and a second crewmember
in a utility vehicle.\166\ The Sandersville Railroad also commented
that the requirements, as proposed in the NPRM, would remove the
railroad's option to utilize an engineer on the locomotive and a second
crewmember in a utility vehicle. Further, this railroad explained that
the small railroad operation exception, as proposed, would not be
manageable for its operation, although in coming to that conclusion it
misconstrued the proposed exception as only applying to railroads that
employ train dispatchers.\167\ The Ashtabula, Carson & Jefferson
Railroad did not comment why it could not meet the small railroad
operation exception as proposed but commented that it uses a one-person
crew on its six-mile-long track with transloading operations at each
end, operating at 10 miles per hour (mph), and a second crewmember to
flag two unprotected highway-rail grade crossings and help with
switching.\168\ MG Rail commented that it is a short line switching
railroad that uses remotely controlled locomotives (RCL) in its
operations with a one-person crew and is concerned about the rule's
potential impact on short lines generally but did not specifically
explain how the NPRM might potentially impact its operations (as the
NPRM did not propose requirements for trains during switching service
and included a proposed one-person train crew exception for remote
control operations).\169\
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\163\ FRA-2021-0032-12381.
\164\ FRA-2021-0032-13033.
\165\ FRA-2021-0032-11719 (Caney Fork & Western Railroad); FRA-
2021-0032-11720 and duplicated in FRA-2021-0032-11722 (Sequatchie
Valley Switching Company); FRA-2021-0032-11721 (Walking Horse
Railroad); FRA-2021-0032-11723 (Rio Valley Switching Company;
Gardendale Railroad; Santa Teresa Southern Railroad; San Pedro
Valley Railroad; Southern Switching Company).
\166\ FRA-2021-0032-12301.
\167\ FRA-2021-0032-12394.
\168\ FRA-2021-0032-12970.
\169\ FRA-2021-0032-12261. The Finger Lakes Railroad (FGLK)
filed a similar comment in that it is a Class III short line that
has uses one-person remote control operations.
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The Cimarron Valley Railroad (CVR) commented that it is a Class III
short line that operates with both two-person and one-person crews and
is concerned that the NPRM's small railroad exceptions would not apply
to its one-person operation because the total length of its unit trains
handled in interchange are greater than FRA's proposed limitation of
6,000 feet for the proposed small railroad operation exception.\170\
CVR did not state how long these trains were nor explain why it could
not file a special approval
[[Page 25071]]
petition for a legacy operation as proposed. Like other short line
commenters, CVR did not request that FRA amend the exceptions or
special approval process in the NPRM but instead requested that FRA
withdraw the NPRM in its entirety or, alternatively, categorically
exclude all Class II and III operations because, in its view, short
lines already successfully operate today in this environment.
---------------------------------------------------------------------------
\170\ FRA-2021-0032-12683.
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The Farmrail System, which owns two Class III short lines, Farmrail
Corporation and Grainbelt Corporation, commented that it has used one-
person crews by utilizing a truck-based employee to accompany freight
trains between switching assignments and with remote control
operations.\171\ This commenter found the NPRM's proposed requirements
complicated and did not believe the exemptions and special approval
process provided adequate relief for short lines.
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\171\ FRA-2021-0032-13042.
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Patriot Rail commented that it is a holding company that owns 31
short lines with operations that use one crewmember in the locomotive
and one crewmember in a motor vehicle providing safety, logistical, and
customer support.\172\ Overall, Patriot Rail opposes the rule for many
of the same reasons articulated in ASLRRA's comment. Patriot Rail
stated that it supports FRA's recognition that short line operations
can be accomplished safely with a minimum of two crewmembers, but with
only one person in the locomotive cab. Patriot Rail commented that some
of the NPRM's requirements allowing for exceptions seemed arbitrary,
such as limitations on train length and commodities, and for other
proposed requirements for alerters, dispatching, and electronic
communications devices. Additionally, Patriot Rail recognized the
proposed special approval process as an option if an exception to the
NPRM could not be met, but this short line holding company viewed the
process as burdensome without clearly enumerated safety benefits.
---------------------------------------------------------------------------
\172\ FRA-2021-0032-13019.
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The Strasburg Rail Road commented that it has tourist and short
line freight operations that frequently permit its two crewmembers to
leave the locomotive cab after securing the train, such as when a one-
person crewmember joins a roadway work group on the ground after
securing the train.\173\ This railroad commented that it was concerned
that the rule would prohibit that activity because FRA proposed that
the one-person train crewmember must remain in the locomotive cab
during normal operations. The Strasburg Rail Road also commented that
it does not have locomotives equipped with alerters for its one-person
work train operations.
---------------------------------------------------------------------------
\173\ FRA-2021-0032-12550 (and a duplicate was filed at FRA-
2021-0032-12670).
---------------------------------------------------------------------------
Other such railroad commenters provided testimony at FRA's public
hearing. For example, the Director of Safety, Training, and Regulatory
Compliance for the Rio Grande Pacific Corporation (RGPC) testified that
its four Class III short lines operate with an engineer in the
locomotive and a certified conductor in a utility vehicle who maintains
contact with the engineer by radio and is assigned as a train
crewmember.\174\ RGPC explained that this crew staffing arrangement is
efficient for interaction with customers, preparing for the train's
arrival at a customer's location, and protecting highway-rail grade
crossings. RGPC is concerned that certain of the NPRM's proposed
requirements would mean that RGPC's short lines would need to hire a
third crewmember because their operations would be unable to qualify
for the small railroad exception. For example, RGPC testified that its
short lines operate trains longer than 6,000 feet, haul 20 or more
loaded cars of hazardous materials, and do not have the means to
conduct real-time monitoring of the train's location. RGPC also
testified how it would be logistically difficult to move the certified
conductor in the utility vehicle to the locomotive, and that it
believed the proposed rule would lead RGPC's short lines to hire a
third crewmember.
---------------------------------------------------------------------------
\174\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The Vice President of Human Resources and Safety at Florida East
Coast Railway (FEC) testified that the railroad is currently using one-
person operations for short distance intermodal trains, but the NPRM
would prohibit some trains because of the proposed hazardous materials
prohibition.\175\ FEC stated that it has an extensive list of deployed
safety technology, and it has main track equipped for up to 60-mph
trains.
---------------------------------------------------------------------------
\175\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The General Manager of the Madison Railroad and incoming Vice Chair
for the Railroads of Indiana group testified that the Madison Railroad
is a short line with five full-time staff and has been operating a one-
person train crew since 1978 on its 41 miles of track at 10 mph in
southern Indiana. Five employees are responsible for train operations
and track and signal inspection and maintenance on the Madison
Railroad.\176\ The testimony added to the Madison Railroad's written
comment, which used the ASLRRA's form letter.\177\ The Madison Railroad
testified that it operates about a mile and a half on steep 5.89
percent grade near the Ohio River, which is mitigated by specific
operating rules, brake system and locomotive equipment requirements,
and additional training. According to the Madison Railroad, it has
provided additional risk mitigation steps above FRA's minimum
requirements. For instance, the Madison Railroad testified that it only
operates one train at a time and the maximum train speed is limited to
10 mph with restricted speed in effect. The Madison Railroad is
concerned that the NPRM would lead to an overall net decrease in safety
as any increased costs to hire a minimum of two additional employees
would mean that the railroad would need to divert resources from
investing in physical infrastructure and equipment.
---------------------------------------------------------------------------
\176\ FRA-2021-0032-13184 (hearing transcript). The Railroads of
Indiana filed a separate comment opposing the NPRM's lack of
regulatory certainty about the likelihood of a special approval
petition being approved and raising concerns about costs on small
railroads. FRA-2021-0032-10228.
\177\ FRA-2021-0032-12221.
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The Senior Vice President and General Manager of the Grafton and
Upton Railroad (G&U) testified as to his diverse experiences in
railroad operations as a conductor, a locomotive engineer, and a
designated supervisor of locomotive engineers, and how he has operating
experience on Amtrak's Northeast Corridor, CSX Transportation's
mainline, and many short lines.\178\ Based on this experience, G&U
testified that one-person crews have, both currently and historically,
operated safely, and how doing so is a more efficient use of a short
line's limited resources. G&U stated it has a 25-mile-long system and
transports many hazardous materials, including propane, typically with
a one-person crew that is certified as both a conductor and a
locomotive engineer and a second conductor crewmember in a motor
vehicle. G&U testified that, in addition to the proposed prohibition on
trains with hazardous materials, it would not meet the short line
exception in the NPRM because it operates over heavy grade. G&U also
noted its locomotives are not currently required to have alerters.
Overall, G&U expressed concern that the NPRM would create significant
capital and operational costs.
---------------------------------------------------------------------------
\178\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The Vice President of Operations at Transtar, LLC, testified that
Transtar is a holding company operating five Class
[[Page 25072]]
III short lines and one contract switching carrier.\179\ Transtar
highlighted one of its short lines, the Texas and Northern Railway
(T&N), which it described as seven miles of main track serving small
customers with a one-person train crew and a conductor in a motor
vehicle. Transtar testified that the T&N would not qualify for the
NPRM's exceptions because it does not maintain the train's real-time
progress or have a method of determining the proximate location if
communication is lost with a one-person crew. Also, the T&N does not
utilize a dispatcher, its locomotives are not equipped with alerters,
and its track has heavy grade. Transtar also expressed concern that the
proposed rule would force T&N, which it described as a ``low margin
railroad,'' to increase costs and the railroad's ``customers would in
turn either pass the increased costs onto their customers . . . or
choose to ship [their] commodities via truck which is considerably less
safe, and less environmentally friendly than shipping via rail.''
---------------------------------------------------------------------------
\179\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
FRA's Response
In this final rule, FRA has carefully considered the track record
of safety in these operations with the need to establish minimum
requirements to address fundamental issues of rail safety regarding the
operation of one-person train crews and the short line rail industry's
claim that the proposed requirements in the NPRM would have introduced
significant costs on approximately 63 percent of the industry through
proposed requirements for special approvals, risk assessments, the
installation of alerters, or the adoption of and compliance with new
operating rules.\180\ After reviewing these comments, including the
testimony at the public hearing that included approximately five Class
II and III freight railroad representatives and the ASLRRA's expert on
how their survey was conducted,\181\ FRA made the following general
determinations: (1) although ASLRRA made a good faith effort to collect
data from its short line and regional railroad members, the information
submitted is insufficient to allow an independent validation of the
survey results and differences between ASLRRA's and FRA's estimates may
have resulted from a misunderstanding of the proposed rule's
terminology; (2) in turn, while ASLRRA extrapolated data in good faith
from the data collected from the responding short line and regional
railroads, because of the potential terminology misunderstanding and
the potential for bias in the way ASLRRA surveyed its member railroads,
FRA cannot rely on ASLRRA's data extrapolations for purposes of the
RIA's primary analysis; (3) FRA can address the short line and regional
railroad industry's requests to treat Class II and III freight
railroads differently from the Class I freight railroads, a departure
from the NPRM, by eliminating the special approval process for some
one-person train crew operations when certain safety requirements and
notification requirements are met, and thereby provide greater
regulatory certainty; (4) FRA can address the short line and regional
railroad industry's concerns regarding the proposed prohibition on one-
person operations carrying certain quantities or types of hazardous
materials; (5) FRA can address the short line and regional railroad
industry's requests to provide railroads with more time to comply with
any new minimum requirements to allow for proper planning, operational
changes, or hiring and training of additional crewmembers, another
revision to the NPRM; and (6) despite FRA's concerns as to the accuracy
of ASLRRA's survey results and data extrapolations, the RIA does show
that, even when using ASLRRA's numbers, the cost of the final rule will
not be substantially higher because of changes made in the final rule
from the NPRM and, therefore, FRA would still proceed with this rule
whether or not ASLRRA's survey and extrapolation numbers were
validated. FRA agrees with ASLRRA's comment that it may not be possible
to retrofit some older models of locomotives, although ASLRRA did not
describe this concern as an issue preventing existing operations from
continuing but instead commented that approximately half the locomotive
fleet for those existing operations would need to be retrofitted with
an alerter. Consequently, the final rule addresses safety concerns with
various one-person train crew operations that were raised in the NPRM,
while providing flexibility for certain one-person crew operations by
short lines. The following paragraphs describe FRA's response in more
detail.
---------------------------------------------------------------------------
\180\ ASLRRA's comment estimated that 63% of the short line
railroad population `run some kind of 1-person operation.' FRA-2021-
0032-13033.
\181\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
ASLRRA's survey suggested that because 176 short lines responded
that they deployed a one-person train crew operation, ASLRRA could use
statistical analysis to extrapolate and find that approximately 420
short lines industry-wide were deploying such an operation. However, as
noted above, FRA did not use ASLRRA's extrapolated numbers in its
primary RIA estimate because of the potential misunderstanding of the
proposed rule's terminology and the survey's analysis did not
adequately address the potential for non-response bias.\182\
Specifically, although it cannot be determined from the survey data
submitted, it seems plausible that short lines that perceived
themselves as not having any type of one-person train crew operation or
need for an exception, or otherwise not impacted by the proposed
requirements in the NPRM, might have chosen not to respond to ASLRRA's
survey.\183\ Thus, while FRA's
[[Page 25073]]
primary analysis in the RIA uses FRA's estimates, FRA added a
sensitivity analysis in the RIA to demonstrate the cost of the final
rule using ASLRRA's survey numbers. The costs based on ASLRRA's numbers
would not dissuade FRA from finalizing this crew size safety
requirements rule.
---------------------------------------------------------------------------
\182\ The ASLRRA's survey was not based on a random sample of
short line railroads and did not examine why approximately 60
percent of ASLRRA's short line members did not respond. The survey
used three statistical concepts to address the missing data problem;
however, each analysis was problematic:
(1) ASLRRA's Missing Completely at Random (MCAR) analysis
asserted that a representative random sample (of the population) was
available from the survey response. However, the entire population
was surveyed and for unknown reasons some railroads did not respond.
This would preclude MCAR analysis for the purpose of extrapolation.
(2) A proper Missing (Conditionally) at Random (MAR) analysis
requires that the railroads selected for the survey be grouped by
known factors, such as commodity, and that it can be shown that a
specific commodity grouping would have no reason to respond to the
survey. ASLRRA's MAR analysis claimed that several variables could
be used to achieve this grouping such as revenue, geography, and
miles, but the means to identify the relationship of these groupings
and survey response were not provided or cited. For example, the
geographic regions selected were defined as four abstract areas
lacking specific boundaries. In the analysis, miles were described
as a factor and it was unclear if ``train miles'' (publicly
available data on FRA's Safety Data website) were used as ``route
miles,'' conflating how the factor could be applied. Proprietary
revenue data was used in the analysis which prevented FRA from being
able to independently validate the relationship between operations
and revenue. Under 49 CFR 209.11, ASLRRA could have established a
means to provide FRA the data for analysis, but it did not do so.
(3) A Missing Not at Random (MNAR) analysis is the most complex
analysis of the three and asserts that the reasoning for the missing
data is unknown and thus more data is required to analyze. In an
MNAR analysis, groupings may show a definitive relationship with
response versus non-response; however, in this survey, there is no
definitive evidence showing the reason for the non-response. To use
an MNAR analysis, ASLRRA should have required more data showing a
definitive relationship with non-response (e.g., by conducting a
follow-up survey specifically targeted to the non-responding
railroads).
\183\ This possible explanation is most relevant to the
discussion regarding MNAR analysis in the previous footnote, and
this explanation is also plausible based on FRA's understanding of
rail operations nationwide. Also, ASLRRA's survey expert testified
at the public hearing that the association conducted its survey
before the expert was brought onboard and how the problem is ``you
worry that the non-responders are in some way different
systematically from the responders [and that m]aybe it's just a case
that . . . those short lines that are affected are most likely to
respond.'' FRA-2021-0032-13184 at 36.
---------------------------------------------------------------------------
Because the estimate of the potentially impacted entities resulting
from ASLRRA's survey and comment so greatly differed from FRA's
estimate of potentially impacted railroads, FRA sought to understand
the reason for this discrepancy, rather than to minimize ASLRRA's
survey results, even though those results could not be independently
validated. For example, in response to ASLRRA's survey of its 696 short
line members, 176 of the 280 short lines that responded reported that
they deployed a one-person train crew operation--which stands in sharp
contrast to the seven freight railroads FRA identified by name in the
NPRM as known to operate a one-person train crew operation.\184\
Meanwhile, comments filed in response to the NPRM by holding companies
owning multiple short lines and individual short line commenters
revealed that, of approximately 62 short lines that self-identified as
having a one-person train crew operation: (1) 54 short lines stated
that they used a second train crewmember in a motor vehicle that
intermittently assists the train--which FRA identified as a small
railroad operation exception in proposed Sec. 218.129(c)(1)(ii); (2)
two short lines stated that their one-person train crew operation was a
remote control operation--which FRA identified as a small railroad
operation exception in proposed Sec. 218.129(c)(3); (3) one short line
identified that it used a work train with a one-person train crew--
which FRA identified as a specific freight train exception in proposed
Sec. 218.129(c)(2); and (4) five short lines did not identify the type
of one-person train crew operations they used or exactly how they would
be impacted by the NPRM's proposed requirements. In reviewing the short
line and regional railroads' comments, it appears that these commenters
were counting all one-person train crew operations, even if the special
approval process did not apply, because some of the one-person train
crew operations FRA proposed for exception could not be used without
also complying with additional requirements. Thus, FRA determined that
the NPRM's lack of a definition for a ``one-person train crew'' was
creating confusion.
---------------------------------------------------------------------------
\184\ 87 FR 45578-79, FN 155.
---------------------------------------------------------------------------
To ensure that FRA and the rail industry use the same terminology
for the purposes of addressing one-person train crew requirements, the
final rule includes definitions for the terms ``one-person train crew''
and ``one-person train crewmember.'' By defining these terms, the final
rule clarifies that a one-person train crew includes: (1) a train
operation with a single assigned railroad employee performing both the
locomotive engineer's and conductor's duties; or (2) when a single
assigned railroad employee is traveling on the train when the train is
moving, and the remainder of the train crew, including the conductor if
the locomotive engineer is not the assigned conductor, is assigned to
intermittently assist the train's movements. The latter operation will
therefore include what many short line commenters described as a one-
person operation when they used a second assigned train crewmember that
intermittently assists the train but primarily travels in a motor
vehicle instead of traveling on the train when the train is
moving.\185\
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\185\ As is later explained in greater detail in this discussion
of comments and conclusions, FRA's current rail safety requirements
distinguish between a train crewmember that is assigned a single
train and a person that performs work as a utility employee or other
worker that may perform work for multiple trains. FRA found ASLRRA's
survey questions drafted imprecisely with regard to this issue. For
instance, in ASLRRA's survey, see FRA-2021-0032-13033, attachment A,
question 4 asks a railroad to check a box if it uses on its main
line operations ``one person in the locomotive cab, supported by a
conductor who is supporting multiple trains simultaneously,'' when
FRA requires a conductor to be in charge of the crew and therefore a
conductor cannot be in charge of more than one train simultaneously.
See 49 CFR 242.7 (defining ``conductor'').
---------------------------------------------------------------------------
In the NPRM, FRA described the agency's understanding that fewer
freight short line and regional railroads are using one-person train
crew staffing arrangements than in 2016, as FRA identified fourteen
Class II and III railroads operating single-person train operations in
2016 and only seven of those same freight railroads maintaining such
operations in 2022.\186\ FRA requested comments on any additional such
railroads conducting one-person train crew operations and the interest
of such railroads to conduct one-person train crew operations in the
future.\187\
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\186\ 87 FR 45578.
\187\ 87 FR 45579.
---------------------------------------------------------------------------
Based on the comments and the added definitions concerning one-
person train crews, FRA has revised its estimate of the number of
existing railroad operations impacted by each requirement in the RIA to
this final rule. FRA estimates that there are 75 Class II and III
railroad legacy freight one-person train crew operations, excluding
those one-person train crew operations that would fall into one of the
other exceptions covered in the final rule by Sec. 218.125 through
Sec. 218.129. This estimate was based on the 62 commenters that
described an existing one-person operation, even counting the eight
commenters that did not describe an operation that definitively would
fit into the one-person train crew operation as FRA is defining such an
operation for this final rule. Further, this estimate includes the
seven one-person train crew operations identified in the NPRM and the
proposed rule's RIA. FRA's estimate includes at least 10-20 percent
more one-person train crew operations than known through FRA
identification and commenters' self-descriptions. Although some
commenters were ambiguous in describing their operations, FRA included
those operations in this conservative estimate that may overestimate
the actual number of established one-person train crew operations.\188\
---------------------------------------------------------------------------
\188\ In response to ASLRRA's survey of its 696 short line
members, 176 of the 280 short lines that responded claimed that they
deployed a one-person train crew operation.
---------------------------------------------------------------------------
This final rule also addresses the short line rail industry's
request that the final rule distinguish Class II and III freight
railroad operations from those of the Class I freight railroads by
utilizing the alternative regulatory approaches discussed in the NPRM's
RIA.\189\ Thus, rather than requiring a special approval petition for
each proposed one-person train crew operation, the final rule allows
certain one-person train crew operations to continue or be initiated
without a special approval process. Instead of the proposed FRA review
and approval requirements associated with a special approval petition
for all legacy train operations staffed with a one-person train crew in
proposed Sec. 218.131 and for the initiation of all other train
operations staffed with a one-person train crew in proposed Sec.
218.133, the final rule, in Sec. 218.129, requires written
notification (in addition to certain operational requirements) only
from railroads with established legacy one-person train crew freight
operations as well as Class II and III freight railroads seeking to
initiate a train operation staffed with a one-person train crew but not
transporting hazardous materials of the types or quantities specified
in Sec. 218.123(c). This written notice replaces the approval process
for these operations and provides greater
[[Page 25074]]
regulatory certainty while providing more flexibility to short lines as
compared to the NPRM's proposed requirement of a petition filing and
special approval process. The notification requirements in the final
rule will still provide FRA with significant information regarding the
locations and extent of, and hazards posed by, these one-person train
crew operations.
---------------------------------------------------------------------------
\189\ FRA-2021-0032-0368.
---------------------------------------------------------------------------
FRA's decision to permit Class II and III legacy one-person train
crew freight operations, including those transporting hazardous
materials, to continue without a risk assessment or special approval
was based on the final rule's imposition of minimum requirements on
these legacy operations. For instance, the implementation schedule
phasing in operating rules to protect the one-person train crewmember
and to safeguard the public after an incident should ensure that
railroads are prepared to take the appropriate mitigation measures to
protect employees and the public. Similarly, the final rule's
requirement for an alerter on any controlling locomotive operated by a
one-person train crew and an operating rule that requires testing the
alerter to confirm it is functioning before departure will provide an
alternative that makes that aspect of the operation as safe or safer
than a two-person minimum train crew operation where a second
crewmember would be expected to make an emergency brake application if
the locomotive engineer became incapacitated. Although not required in
this final rule, FRA encourages railroads with legacy operations to
examine any safety hazards that could be further mitigated to reduce
risks with one-person train crew operations or any of their operations
generally, such as track maintenance near waterways and densely
populated areas or the railroad's operating rule requirements for a
second crewmember who assists intermittently to ensure that this
crewmember is contributing to the safety of the train's movement to the
greatest extent possible. FRA will closely monitor this legacy
exception and will scrutinize data or observations showing that the
legacy operations may not be as safe as currently described.
FRA also removed the NPRM's proposed prohibition on one-person
train crew operations transporting certain types or quantities of
hazardous materials with respect to initiating new or existing, but
non-legacy, operations. All railroads, including Class II and III
railroads, seeking to initiate such an operation transporting hazardous
materials of the types or quantities specified in Sec. 218.123(c) will
be required to conduct a risk assessment and obtain special approval
for the operation under Sec. 218.131. The revisions from the proposed
rule's approach regarding the transportation of hazardous materials
reflects FRA's consideration of ASLRRA's comment that the common
carrier legal obligation prohibits a railroad from refusing service to
a customer that provides a properly packaged hazardous material. The
RIA acknowledges the potential costs of compliance with the final
rule's requirements for a one-person train crew. Considering the known
safety and security risks associated with operating trains transporting
large amounts of hazardous materials, previously determined by FRA, the
Transportation Security Administration (TSA), and the Pipeline and
Hazardous Materials Safety Administration (PHMSA) to present the
greatest safety and security risks, FRA finds that the final rule's
requirements are justified to ensure the safety of trains. FRA is
willing to work with the short line industry in developing a model risk
assessment that could potentially reduce the paperwork burden on short
lines and accelerate the petition process. FRA also supports ASLRRA and
its members creating a template or model risk assessment to reduce the
burden on individual Class II and III railroads. FRA has considered
this in estimates used in the final rule's RIA.
The final rule also addresses the short line industry's comments
that the proposed exceptions in the NPRM were too stringent in that
they included limitations on speed, grade, or train length, by largely
eliminating those proposed limitations within the exceptions and
providing other criteria to govern those operations. For instance, in
proposed Sec. 218.129(c)(1), the exceptions identified specifically
for ``small railroad operations'' were limited to a freight train
operated on a railroad that would not exceed 25 mph and by an employee
of a railroad with fewer than 400,000 total employee work hours
annually. In the final rule, FRA did not include the proposed speed
restriction for such a small railroad operation, thereby allowing the
train to be operated at the maximum allowable track speed and not
creating a disincentive to maintaining track to the highest standard a
railroad chooses to sustain. The small railroad operations exception
was also expanded in the final rule to include all Class II and III
freight railroads.\190\ In addition, the proposed track grade and train
length limitations for the small railroad operations exception have not
been adopted in the final rule. Moreover, in response to short line
comments and after reviewing existing safety regulations, FRA has
decided not to apply this final rule to a train operation controlled by
a remote control operator because it has existing safety requirements
for these operations and because there are other reasons mentioned
later in this discussion of comments and conclusions.
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\190\ There are nine holding companies that own approximately
250 Class II and Class III railroads. Those holding companies are:
Anacostia Rail Holdings, Genessee and Wyoming, Iowa Pacific
Holdings, OmniTRAX, Pioneer Railcorp, Progressive Rail Inc., R.J.
Corman Railroad Group, Patriot Rail, and Watco.
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Similarly, the final rule responds to certain short line
commenters' concerns over a proposed requirement that certain one-
person freight train operation exceptions in proposed Sec. 218.129(c)
must have an operating rule or practice requiring that the crewmember
remain in the locomotive cab during normal operations and leave the
locomotive cab only in case of an emergency affecting railroad
operations.\191\ The proposed requirement applied to the exceptions
identified as small railroad operations, work train operations, and
remote control operations. The Strasburg Rail Road explained that this
proposed requirement would have precluded its current work train
arrangement whereby the one-person crewmember is permitted to join a
work group on the ground after securing the movement. Upon further
consideration, the requirement FRA proposed in the NPRM has not been
included in the final rule, as FRA finds its current securement
requirements are sufficient to safeguard unattended trains.\192\
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\191\ 87 FR 45617 (citing proposed paragraph (b)(1) of Sec.
218.129).
\192\ 49 CFR 232.103(n).
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Additionally, in Sec. 218.129 of the final rule, FRA has addressed
the comments requesting that each railroad be provided more time to
comply with any new requirements or, as necessary, hire or train a
second crewmember for a one-person train crew operation by providing an
implementation schedule that phases in the final rule's requirements
for certain specified one-person train crew operations. That phased-in
implementation schedule will apply to: (1) each Class II or III
railroad with a legacy one-person freight train operation; (2) each
railroad seeking to continue or initiate use of a work train operation
staffed with a one-person train crew; (3) each railroad seeking to
continue or initiate use of a helper service train operation staffed
with a
[[Page 25075]]
one-person train crew; and (4) each railroad seeking to continue or
initiate use of a lite locomotive train operation staffed with a one-
person train crew, excluding a multiple unit (MU) locomotive passenger
operation where the car carrying the passengers is also functioning as
the locomotive.
The implementation schedule provides enough time for railroads to
comply with the final rule's new requirements, and FRA encourages each
railroad with a one-person train crew operation to act more quickly
than required by the schedule when possible. For instance, FRA expects
that each railroad should be able to adopt any necessary operating
rules within a short period of time, potentially within a few weeks at
most, even though the final rule's implementation schedule for excepted
operations will provide up to 90 days from the effective date of the
final rule. It is possible that ASLRRA or other groups will draft model
operating rules that address the operating rule requirements in the
final rule, and these model operating rules could be adopted
secondarily to replace any quickly adopted rules that are used in the
short term. Meanwhile, it can be expected that some railroads will
quickly install any required alerters while others delay installation
for various reasons; FRA urges each railroad not to delay alerter
installation.\193\
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\193\ Not only does FRA require most locomotives to have a
working alerter installed, FRA's current rail safety regulation in
the same part as this final rule contains a strict prohibition
against tampering with such devices that are installed to improve
the safety of the operation of train movements. 49 CFR part 218,
subpart D.
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For these reasons, the final rule largely provides the clarity and
streamlined approach that ASLRRA and Class II and III freight railroads
requested while establishing minimum requirements for the safety of
one-person train crew operations. At the same time, the final rule
increases safety for operations proposed as one-person train crews
because an alerter or a second crewmember to stop the train in an
emergency is a necessary precaution to prevent the potential for
catastrophic harm due to an uncontrolled train movement; in reaching
this conclusion, FRA reviewed its statements from 2012 in a locomotive
safety standards rulemaking cited by ASLRRA and determined that the
agency is not issuing conflicting statements.\194\ The final rule's
requirements regarding alerters in the controlling locomotive,
safeguards to protect the one-person train crewmember, and procedures
for minimizing the impact of situations that could endanger employees,
the public, or environment reduce the risk of foreseeable hazards
associated with one-person train crew operations.
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\194\ ASLRRA's comment, FRA-2021-0032-1193 at 29-30, citing 77
FR 21312, did not explain that: (1) FRA's statements regarding the
need to establish a minimum alerter requirement were based on
multiple NTSB recommendations to do so; (2) that NTSB's
recommendations were based on accidents that occurred at varying
speeds; or (3) that NTSB's accident analysis was focused on the
``crewmembers'' without considering the possibility that railroads
would be operating one-person trains. 77 FR 21320-21. Similarly,
FRA's rationale for permitting operational flexibility by tailoring
the alerter standard to a minimum operational speed did not address
the possibility that railroads would be operating one-person trains.
77 FR 21329-30. NTSB's rationale for an alerter standard included an
analysis of a head-on train collision on July 10, 2005, in which
``the NTSB determined that an alerter likely would have detected the
lack of activity by the engineer and sounded an alarm that could
have alerted one or both crewmembers [and h]ad the crew been
incapacitated or not responded to the alarm, the alerter would have
automatically applied the brakes and brought the train to a stop . .
. [potentially] prevent[ing] the collision.'' 77 FR 21320-21. In
FRA's view, because the agency understood the operational status quo
at that time was a minimum of two train crewmembers, its decision in
2012 to provide some operational flexibility to ``freight railroads
[that] only operate over small territories'' and move at lower
speeds included the unwritten expectation that a second crewmember
would be available to apply the emergency brake if the locomotive
engineer was fatigued or incapacitated. 77 FR 21329-30.
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4. Class I Freight Railroads
FRA received numerous comments opposing the NPRM from the Class I
freight railroads and groups associated with those railroads. The
following is a summary of, and response to, those comments.
a. Alternative Crewmember Arrangements Including Expeditors, Ground-
Based Crewmembers, or Ground-Based Conductors
Numerous commenters offered that the NPRM would be disruptive to
their current operations or plans to use one-person train crews in
combination with other rail employees that, as described, might not be
a part of a train crew as FRA defines that term in its current
regulation,\195\ or would not meet FRA's proposed requirements under
the NPRM. In general, these commenters described train operations using
a rail worker, traveling in a motor vehicle, that intermittently
assists the train at key intervals such as to flag a highway-rail grade
crossing, throw a hand-operated switch, or be available in case of
emergencies or to diagnose and repair a mechanical problem if the train
becomes disabled.
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\195\ 49 CFR 218.5 (defining train or yard crew).
---------------------------------------------------------------------------
During the public hearing, UP's Vice President of Crew Management
Services and Interline Operations testified regarding the railroad's
expeditor pilot program and future plans, which included showing a
video demonstrating the job of an expeditor.\196\ UP's written comment
also described its expeditor plan and stated that FRA's NPRM would
disrupt the implementation of that plan.\197\ UP described its
expeditor plan as using one-person train crews with PTC and ground-
based conductors replacing train-based conductors. In a written
statement, UP described how its PTC system includes a parking brake
feature that can set the train brakes for routine work on the ground
near the train and can set a full-service brake application if movement
is detected--a feature that is not mandated by FRA. UP envisioned
expeditors to run on a subdivision basis, not a train-by-train basis,
and for expeditors to be used for all commodities including all types
and quantities of hazardous materials. UP stated that it expects some
subdivisions or territories will require more than a single expeditor
to handle the train density. The rationale UP gave for initiating its
expeditor plan was that a conductor's job primarily consists of
preparing a train for departure and occasionally addressing minor
mechanical issues that occur en route, and that an expeditor's role can
be designed to accomplish traditional conductor tasks in less time.
Phase one of UP's expeditor plan is for implementation on territory
that has a double mainline track with a state highway running along
side it, albeit with a traditional conductor also on the train. UP
described three additional phases, each adding layers of new
complexities. UP commented that it believes a person working in an
expeditor role is safer than a train-based conductor because the
employee will not have to climb out of the locomotive cab and walk long
distances aside the train in potentially challenging environments to
repair a mechanical problem. UP stated that if FRA insisted on
excluding one-person crews from operating trains carrying hazardous
materials, UP would end its expeditor pilot program because the program
is dependent on treating all trains passing through a particular area
in the same way.
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\196\ FRA-2021-0032-13184 (hearing transcript); https://www.youtube.com/watch?v=6hr15dtWwGU (video).
\197\ FRA-2021-0032-13012.
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During the public hearing, the Vice President of Advanced Train
Control for NS testified regarding the railroad's plan
[[Page 25076]]
to deploy ground-based conductors.\198\ NS's written comment also
described its plan and stated that the NPRM failed to consider how the
rail industry can use operational innovations or deploy readily
available technology to address any safety concerns associated with the
operation of a train with fewer than two crewmembers.\199\ NS also
stated it met with DOT officials about its plan to deploy ground-based
conductors.\200\
---------------------------------------------------------------------------
\198\ FRA-2021-0032-13184 (hearing transcript).
\199\ FRA-2021-0032-13045.
\200\ FRA-2021-0032-13181.
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NS commented that PTC is installed on 58,000 miles of track in the
United States, and it believes PTC has supplanted the role of a
conductor. NS views PTC as handling all the tasks of a traditional
conductor including: (1) advising the locomotive engineer regarding
certain notifications and actions; (2) communicating with certain
individuals outside the locomotive cab; and (3) completing certain
forms and maintaining records. NS stated that new or revised mandatory
directives are conveyed through the PTC system. NS also stated that the
PTC system uses locational and mandatory directive data to prompt the
engineer to obtain permission from the designated roadway worker in
charge before reaching a work zone, and then the PTC system requires
the engineer to acknowledge that the train has acquired the permission,
presumably by radio communication, before allowing the train to proceed
into the work zone. NS commented how a ground-based conductor or other
technologies could perform the tasks that PTC systems do not completely
perform. In a written statement, NS also commented that the railroad
can plan to have a second crewmember on a train when it leaves PTC
territory where appropriate or when the PTC system fails en route.
Further, NS explained how the PTC system was designed utilizing human
factor engineering principles to convey critical information clearly
and consistently, thereby aggregating train and route information in a
way that reduces cognitive workload while operating the train.
CN commented against the rule for the reasons described by the
Association of American Railroads (AAR) but also requested that any
final rule include revisions that permit ground-based crewmembers.\201\
CN commented that the NPRM's proposed requirements would stifle
different approaches to crew staffing and would permanently remove any
possibility of ground-based assistance. CN commented that it would
prefer an option like one FRA proposed in the 2016 NPRM that allowed
for a railroad with PTC-enabled lines to notify FRA of the operation
and permit FRA subsequent review to evaluate whether the railroad was
providing appropriate safety.\202\
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\201\ FRA-2021-0032-13144.
\202\ 81 FR 13918, 13966 (Mar. 15, 2016) (citing option 2,
proposed Sec. 218.135).
---------------------------------------------------------------------------
BNSF also commented against the rule for the reasons described by
AAR and commented that the NPRM would unnecessarily impede BNSF's
ongoing efforts, through collective bargaining, to implement one-person
crew operations that also deploy ground-based conductors.\203\ BNSF
commented that it was focused on making work schedules more predictable
for conductors.
---------------------------------------------------------------------------
\203\ FRA-2021-0032-12996.
---------------------------------------------------------------------------
FRA's Response
FRA does not agree with CN's concern that the NPRM would stifle
different approaches to crew staffing or use of ground-based
assistance, as the NPRM proposed a special approval process designed to
consider the safety implications of alternative approaches. For
instance, if CN or any other railroad seeks to initiate a one-person
train crew operation that was not otherwise excepted, the use of one or
more ground-based employees to assist the train could be considered a
way to mitigate the risks in a risk assessment filed under the special
approval petition process. CN and other railroads could, for example,
look to one of AAR's exhibits evaluating some risks involved with one-
person train crew operations under four basic sets of accident
scenarios as a reference in creating a risk analysis.\204\ The
combination of ground-based employees, PTC, and other mitigating
actions taken in conjunction with the special approval petition and
risk assessment, where required under this final rule, could support a
showing that a one-person train crew operation, with the risk
mitigations in place, is as safe or safer than a two-person train crew
operation. As explained below, FRA notes there are various terms being
used by different railroads to describe their ground-based employees.
Although use of different terms may present some confusion or concern,
FRA recognizes that these types of employees may be important parts of
a one-person train crew operation under the special approval petition
requirements of this final rule.
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\204\ FRA-2021-0032-13056, AAR's Exhibit 6, a report prepared by
Oliver Wyman titled ``Evaluation of Single Crew Risks'' (Jan. 26,
2015) (conducting a comparative risk analysis for select accident
causes under present day mainline operations with traditional two-
person crews versus future mainline operations on Class I railroad
lines when an FRA-compliant PTC system is fully implemented). This
report contained the disclaimer that ``it does not consider all
causes of accidents and is not a full comparison of accident
frequencies with and without PTC.'' Certainly, a risk assessment
would go further than this report to consider incidents not
preventable by a PTC system--such as those accidents that a PTC
system is not designed to prevent when a train is operated at
restricted speed.
---------------------------------------------------------------------------
The comments regarding alternative crewmember arrangements
introduced various terms to describe rail employees such as expeditor,
ground-based crewmember, and ground-based conductor, which FRA does not
use in its regulations, but the concepts of which are incorporated
within current terminology and requirements regulating railroad
operating practices such as ``utility employee,'' \205\ ``train or yard
crew,'' \206\ and ``worker.'' \207\ FRA's current regulations specify
requirements for the safe protection of temporary crewmember and non-
crewmember railroad employees engaged in the inspection, testing,
repair, and servicing of rolling equipment as is expected of utility
employees and workers.\208\ For instance, a ground-based employee, who
is not part of the train crew, may need help from a conductor or second
crewmember to communicate with the locomotive engineer so that
mechanical repairs may be made safely, in accordance with current
Federal rail safety requirements. Meanwhile, neither a utility employee
nor worker, as defined in FRA's existing requirements,
[[Page 25077]]
would ride with the train, call out and verify signal indications,
communicate by radio on behalf of the train crew, identify safety
dangers along the right-of-way as the train progresses, remind the
locomotive engineer of speed or other operating restrictions, provide
guidance in an emergency or difficult operating environment based on
experience, or monitor the locomotive engineer's alertness. Although a
ground-based conductor that is part of the train crew or some
technologies (or a combination of the two) might be able to assist with
some of these functions, the descriptions of the Class I freight
railroads' ground-based employee pilot programs indicate that the
intent is to utilize rail personnel more efficiently by allowing the
ground-based employee to service more than one train in a defined
geographic area. Although the ground-based employee arrangement may be
an efficient use of operations personnel, that arrangement alone does
not offer an identical safety substitute for a traditional, second
crewmember that travels on the train to each destination.
---------------------------------------------------------------------------
\205\ 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).
\206\ 49 CFR 218.5 (defining ``train or yard crew'' as one or
more railroad employees assigned a controlling locomotive, under the
charge and control of one crew member; called to perform service
covered by Section 2 of the Hours of Service Act; involved with the
train or yard movement of railroad rolling equipment they are to
work with as an operating crew; 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 Sec. Sec. 217.9 and 217.11 of
this chapter.
\207\ 49 CFR 218.5 (defining ``worker'' as any railroad employee
assigned to inspect, test, repair, or service railroad rolling
equipment, or their components, including brake systems. Members of
train and yard crews are excluded except when assigned such work on
railroad rolling equipment that is not part of the train or yard
movement they have been called to operate (or been assigned to as
``utility employees''). Utility employees assigned to and
functioning as temporary members of a specific train or yard crew
(subject to the conditions set forth in Sec. 218.22 of this
chapter), are excluded only when so assigned and functioning).
\208\ 49 CFR part 218, subpart B--Blue Signal Protection of
Workers.
---------------------------------------------------------------------------
The use of terminology, not based in FRA' regulations, can obscure
or minimize current safety requirements, and suggests that a railroad
employee performing a non-crewmember role may be treated the same as a
crewmember. A railroad is obligated to comply with FRA's current
minimum safety requirements that protect these railroad employees from
personal injury posed by any movement of such equipment regardless of
the terminology used by the railroad. For instance, regardless of
whether a railroad refers to a ground-based person assigned to assist
more than one train as an expeditor, ground-based crewmember, or
ground-based conductor, that person is not part of the train crew under
FRA's definition of ``train or yard crew'' and must be provided with
the Federally mandated safeguards when assisting a train.
Although UP has not yet initiated its expeditor plan, this Class I
freight railroad made several comments justifying its plan to test the
viability of one-person operations that are problematic, confirming a
need for an FRA approval process. For instance, UP's rationale for
initiating its expeditor plan oversimplified the conductor's roles and
responsibilities. UP described a conductor's job as ``primarily
consist[ing] of preparing a train for departure and occasionally
addressing minor mechanical issues that occur en route.'' \209\ UP's
limited description of the conductor's job failed to address how a
railroad would offset the significant safety backup and assistance role
that conductors currently provide.
---------------------------------------------------------------------------
\209\ FRA-2021-0032-13012 (comment filed by UP).
---------------------------------------------------------------------------
For instance, UP's description of the conductor's job neglected to
address the railroad's operating rules and practices that hold a
conductor accountable, along with the locomotive engineer, for the safe
operation of the train and observance of the railroad's rules.\210\
There are also numerous railroad rules that impose crewmember
requirements such as the duty to communicate to each other the name of
signals affecting their train as soon as the signals become visible or
audible.\211\ Similarly, there are numerous railroad rules that impose
requirements on a conductor because the conductor is singled out for
supervising the train operation, advising the engineer and train
dispatcher of any restriction placed on equipment being handled, and
reminding the engineer when the train is approaching certain area
restrictions.\212\ Similarly, UP and many other railroads have
established ``cab red zone'' rules that require both crewmembers to
minimize distractions during critical operating circumstances in an
effort to enhance safety, but railroad commenters never raised
alternative safety measures they would voluntarily adopt that offer a
safety equivalent.\213\
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\210\ UP's General Code of Operating Rules (GCOR) describes the
duties of crew members in rule 1.47 as generally ``responsible for
the safety and protection of their train and observance of rules''
and includes a list and description of specific conductor
responsibilities.
\211\ UP's GCOR 1.47, C. All Crew Members' Responsibilities, 1.
Crew Members in Control Compartment.
\212\ UP's GCOR 1.47, A. Conductor Responsibilities.
\213\ UP's GCOR 1.47.1: Cab Red Zone. For example, UP requires a
cab red zone when operating at restricted speed and not switching, a
situation where PTC, as designed, would not always stop a train as
required by a restricted speed rule. In the cab red zone, UP
requires that a crewmember handling radio communications must not be
the locomotive engineer operating the controls.
Although a railroad may amend a railroad operating rule or
practice without FRA's permission if the railroad's requirement is
not a Federal requirement, each railroad adopts these self-imposed
requirements to ensure that it implements safe operating practices
and presumably would not intentionally introduce unsafe practices--
which FRA could address through enforcement of existing requirements
(such as those in 49 CFR part 217 regarding FRA review of a
railroad's operating rules); by establishing new requirements; or by
making recommendations in guidance.
---------------------------------------------------------------------------
Because conductors are accountable for safe train operations, a
person holding a conductor certification can have that certification
revoked.\214\ Of course, the reason that UP and other railroads hold
conductors accountable for safe train operations is that conductors are
often completing safety tasks independently of a locomotive engineer,
such as throwing hand-operated switches or directing shoving movements,
or acting as an important backstop to the locomotive engineer when
calling out signal indications, reviewing operating instructions, or
obtaining track authorities or permissions. FRA is concerned that,
without the type of Federal oversight required by this final rule, the
commenting Class I railroads that have overstated the role of PTC or
diminished the traditional role of a conductor will unreasonably rely
on those same incorrect assumptions in making safety determinations
when transitioning to a one-person train crew.\215\
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\214\ For instance, during the years 2021 and 2022, UP reported
to FRA that it revoked certification for approximately 252
conductors for violations of operating rules and practices.
\215\ Overall, FRA found AAR's Exhibit 1, a report prepared by
Oliver Wyman titled ``Assessment of Conductor and Engineer In-Cab
Work Activities'' (May 15, 2021), FRA-2021-0032-13056, informative,
but FRA did not find it persuasive because of its failures by
omission or making of assumptions that FRA did not agree with
similar to those described in FRA's response to UP's comment.
---------------------------------------------------------------------------
It is also concerning that UP and other rail industry commenters
largely asserted their safety case for ground-based employees by
limiting their focus to circumstances when conductors are needed to fix
mechanical problems and, in doing so, neglect the conductor's currently
broad safety role. Although FRA shares the rail industry's concern that
a train crewmember could get hurt in a slip, trip, or fall coming on or
off on-track equipment or walking along the right-of-way, the
industry's safety argument related to ground-based employees assisting
the train seems largely limited to that one concern. UP also commented
that expeditors ``will be less likely to suffer the effects of fatigue
[because i]nstead of riding long miles on a train, the expeditor will
be able to set out fresh from a home terminal every day'' \216\ but did
not address the issue of the locomotive engineer's fatigue by stating
that UP would limit the one-person train crewmember to regular shifts
as well. Many individual and labor organization comments stated how a
second crewmember can help offset a locomotive engineer's fatigue, but
UP and other Class I railroad commenters did not address this safety
concern.
---------------------------------------------------------------------------
\216\ FRA-2021-0032-13184 at 79-80.
---------------------------------------------------------------------------
NS and other Class I freight railroad industry commenters stated
that their plans to deploy ground-based employees and reduce crew size
to one person would substantially rely on PTC systems. However, PTC
systems were designed as overlay systems (i.e., ``all of
[[Page 25078]]
the safety features of the underlying operation to which PTC is added
will be kept'') \217\ to include the conductor. Indeed, FRA fully
addressed this issue when requiring the onboard PTC apparatus to be
arranged so each member of the crew assigned to perform duties in the
locomotive can receive the same PTC information displayed in the same
manner and execute any functions necessary to that crewmember's
duties.\218\ In the section-by-section analysis of a final rule on PTC
systems, FRA stated that ``[f]or the conductor and engineer to fulfill
the expectations of Congress, it is necessary for both crewmembers to
have sufficient information to perform their duties,'' and FRA
described how ``safety would be materially diminished if the conductor
in freight operations were denied access to the same information in the
same format as the engineer.'' \219\ Also during that PTC rulemaking,
FRA rejected AAR's comment that questioned the need for a conductor to
have a PTC display and explained that ``PTC is currently an imperfect
technology fed by databases that can be corrupted'' when the agency
determined that the conductor or second crewmember must have the same
PTC information displayed as the locomotive engineer.\220\ For
instance, during one of the PTC systems rulemakings, FRA responded to
an AAR comment for a study showing that safety is jeopardized by
assigning the engineer PTC-related duties by stating that ``FRA has
directly observed engineers exceeding authorities while attempting to
respond to PTC system requirements . . . and [how they were] plainly
distracted from safety-critical duties.'' \221\
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\217\ 75 FR 2598, 2005 (Jan. 15, 2010).
\218\ See e.g., 49 CFR 236.1006(d). This requirement was moved
from 49 CFR 236.1029(f), a section with requirements addressing PTC
system use and en route failures, to its current location because it
seemed a more intuitive location for a requirement related to
equipping locomotives. 79 FR 49693, 49705 (Aug. 22, 2014).
\219\ 75 FR 2668.
\220\ 75 FR 2669-70.
\221\ 75 FR 2670.
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Thus, in response to this train crew size safety requirements
rulemaking, AAR and other freight rail industry commenters are
rehashing arguments FRA rejected in prior rulemakings, such as the
argument that a locomotive engineer alone can acknowledge
electronically transmitted mandatory directives by simply pressing a
button when the train is in motion--an action that does not provide
evidence of comprehension.\222\ Removal of the conductor under these
circumstances would mean that the Class I freight railroad industry
commenters intend for the PTC systems to act as the sole backup for any
operating mistakes committed by the locomotive engineer. Even when a
PTC system works as intended, human error could occur if mandatory
directive information is input incorrectly. In effect, a second crew
member serves as a backup to validate the electronically transmitted
mandatory directives are accurate.
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\222\ 75 FR 2670-71. In rejecting AAR's argument under a PTC
system final rule, FRA explained that the current practice of
reading mandatory directives back to the dispatcher over the radio
gives the crew an opportunity to read it and consider its relevance
to the current situation.
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As FRA noted in response to other comments, railroads continue to
experience unplanned outages and planned outages of their PTC systems,
in addition to various initialization failures, cut outs, and
malfunctions. For example, in March 2023, BNSF and Amtrak experienced
unplanned outages of their PTC systems, and NS experienced an unplanned
outage of its PTC system in August 2023, impacting operations of both
the host railroad and its tenant railroads. Also, during 2023, several
Class I railroads, commuter railroads, and Amtrak temporarily disabled
their PTC systems to facilitate planned infrastructure upgrades or
capital projects. Even three years after the December 31, 2023,
statutory deadline for full implementation of PTC systems, the railroad
industry is continuing its efforts to improve the reliability and
performance of PTC technology due, for example, to failures (including
initialization failures, cut outs, and malfunctions, as defined in
FRA's PTC regulations at 49 CFR 236.1003) and temporary planned and
unplanned outages.
Moreover, the safety issues regarding the implementation of one-
person train crew operations go beyond what the PTC system can do and
include what additional duties will be shifted from a conductor to a
one-person crew that have the potential to reduce the locomotive
engineer's situational awareness. During the hearing, NS commented that
it envisions the one-person crew will absorb the added duty of
communications with other trains, such as communicating a defect
observed on another train, while neglecting to address how the
additional duty can be done safely, how realistic it is to expect a
one-person crew to look for such defects while safely monitoring the
progress of its own train, and whether any new hazards are created by
the additional task that may need to be offset by some other action.
Although Class I freight railroad commenters pointed to the success
of the Class II Indiana Rail Road Company (INRD) as their model for
rolling out a one-person train operation, those railroad commenters did
not explain or demonstrate to FRA that they took, or planned to take,
any of the steps INRD took when it first implemented its one-person
train crew operations nor did they explain how their operations are
comparable to a regional railroad that largely serves local industries
and provides connections between small railroads and major Class I
railroads and that is operating on approximately 500 miles of track in
two States.\223\ For example, the Class I freight railroads' comments
did not address whether: the communication requirements were reviewed
and adapted for the one-person operation; or mitigation measures would
be required to protect the one-person train crew, the public, or the
environment, especially when a ground-based assistant would be unable
to easily reach the train. Similarly, without a special approval
process, a Class I freight railroad, with a more complex operation than
a Class II or III freight railroad because it employs thousands of
people in train operations and prioritizes long-haul transportation,
would not be required to demonstrate that it considered all the hazards
and mitigated the risks for a one-person train crew operation before
initiating implementation, which FRA finds concerning given the ground-
based employee plans described in comments do not include some hazards
or show plans for mitigating risks that FRA identified in the NPRM.
Thus, the INRD's Class II one-person train crew operation is not
comparable to a potential Class I railroad operation unless a Class I
railroad takes substantial steps to make them comparable.
---------------------------------------------------------------------------
\223\ 87 FR 45568 (footnote 24 which listed the characteristics
of INRD's one-person train operation that INRD claimed it
voluntarily implemented to ensure the operation's safety). At FRA's
public hearing for this rule, INRD stated that its implementation of
a one-person train crew that started in 1997 ``required a lot of
research, innovation and modern day technology.'' In addition, INRD
clarified at the hearing that it used two types of one-person train
crew operations, i.e., terminal-to-terminal with a single-person
crew and split crews with one person in a motor vehicle. FRA-2021-
0032-13184 at 93.
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b. Train Operations in Other Countries
AAR and other major freight rail industry commenters contend that
FRA should not have a two-person train crew mandate because rail
operations in other countries that use one-person crews provide
sufficient data to support the
[[Page 25079]]
safety of one-person train crew operations, and that data, when
considered with the INRD's example, and the fact that ``passenger
trains in the United States typically operate with one person in the
cab,'' should be sufficient to support the safety of one-person train
crew operations.\224\ For instance, one of AAR's sponsored research
documents compared the safety and characteristics of European and U.S.
railways.\225\ In summary, that 2021 study found that the operating
complexity of the European rail network was based on high train
density.\226\ This AAR-sponsored study concluded that the defining
factor in safety was not crew size; instead, lower accident rates were
attributable to ``the kind of investments that mature economies make in
infrastructure and technology--the same kind of investments that U.S.
railroads have made and continue to make . . . each year.'' \227\
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\224\ FRA-2021-0032-13056, AAR's Comment at 3.
\225\ FRA-2021-0032-13056, AAR's Exhibit 2, a report prepared by
Oliver Wyman titled ``Crew-Related Safety and Characteristic
Comparison of European and US Railways'' (Apr. 5, 2021). This report
appears to be an update of AAR's Exhibit 4, another report prepared
by Oliver Wyman titled ``Assessment of European Railways:
Characteristics and Crew-Related Safety'' (June 15, 2016).
\226\ FRA-2021-0032-13056, AAR's Exhibit 2 at 16.
\227\ FRA-2021-0032-13056, AAR's Exhibit 2 at 66-67.
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AAR also submitted a study it sponsored in 2015, which promoted
train crew size reductions on trains operating on high-density lines
from an economic view that would justify the expense and use of round-
the-clock utility personnel.\228\ This study described one-person train
crew operations in North America, Europe, and in other countries in
2015 and the safety record of those international operations.
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\228\ FRA-2021-0032-13056, AAR's Exhibit 3, a report prepared by
Oliver Wyman titled ``Analysis of North American Freight Rail
Single-Person Crews: Safety and Economics.'' (Feb. 3, 2015).
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FRA's Response
FRA found the AAR-sponsored studies and major freight railroad
comments on rail operations in other countries generally informative,
but lacking persuasion that FRA should forgo regulating the subject
matter of train crew size safety. In summary, FRA found one-person
operations in other countries are either not comparable because of
different operational factors that contrast with U.S. operations or
because effective government regulation in other countries has
established minimum safety standards in the same way this final rule
will for U.S. operations.
For instance, in the NPRM, FRA addressed the subject of train
operations in other countries by explaining that, for the most part,
they are not comparable to U.S. train operations due to differences in
train lengths, territory, and infrastructure.\229\ AAR's comment
included information supporting, or at least not refuting the accuracy
of, FRA's position in the NPRM. For instance, AAR's comment included
research supporting that Western European rail operations are
significantly different in train length when compared to U.S. rail
operations, as European freight trains are shorter to accommodate
shorter block sizes and a greater number of interlockings.\230\ The
Class I comments also did not provide further information showing that
FRA's statements in the NPRM were inaccurate regarding how foreign,
one-person freight train operations do not carry out extensive
interlining or switching with other railroads and that many foreign,
one-person passenger train operations do not have to share track with
freight operations or operate over highway-rail grade crossings.\231\
It was for these reasons that FRA concluded in the NPRM that the safety
hazards associated with those Western European rail operations are not
comparable to those involving U.S. operations.
---------------------------------------------------------------------------
\229\ 87 FR 45580. As stated above, in response to the 2016
NPRM, AAR submitted studies it sponsored assessing European railway
safety data with respect to train crew size and describing one-
person train crew operations in other countries, including European
countries. The 2019 withdrawal discussed but did not analyze these
studies' conclusions. 84 FR 24737. For the reasons explained here,
FRA finds these studies generally informative but unpersuasive on
the matter of regulating train crew size safety, particularly when
considered along with the totality of the information discussed and
analyzed in the 2022 NPRM and here in the final rule.
\230\ FRA-2021-0032-13056, AAR's Exhibit 2 at 4, 13, 66-67
(stating that 40 cars is the average length of European freight
trains).
\231\ FRA-2021-0032-13056, AAR's Exhibit 2 at 13 (stating that
``the majority of U.S. rail freight does not run on mixed lines with
high-frequency passenger services, unlike in Europe'').
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One significant element reflected in AAR's 2015 sponsored study
undermining the Class I railroads' position is that railroads in other
countries must sometimes abide by operational restrictions that
regulating agencies have placed on one-person train crew operations.
For example, this study explained how the Transportation Safety Board
of Canada required the implementation of certain safety measures after
the catastrophic accident at Lac-M[eacute]gantic, Quebec, that FRA
described in the NPRM,\232\ and that the measures range from better
tracking of those trains to specific dispatcher training and fatigue
mitigation measures.\233\ Similarly, this same study found that the
European Union imposed two preconditions on one-person train crew
operations: (1) a working ``dead-man control system'' which is the
equivalent of what FRA refers to as an ``alerter''; and (2) the
equivalent of a U.S. centralized traffic control system (CTC).\234\ The
study described how in the United States there are three types of
signaling control systems (excluding PTC) and, of those systems, CTC
affords the highest level of control, automation, and integration of
safety logic.\235\ In the European signaling control system,
dispatchers can remotely operate signals and switches to ensure that
trains do not make conflicting movements,\236\ but presumably also to
limit when or how often a one-person crewmember would need to
temporarily climb down from the locomotive to throw a switch. In
contrast, not all U.S. railroads have dispatchers and not all
dispatchers at U.S. railroads have the capability to operate all
switches and fixed derails remotely or have a train crewmember operate
such devices by radio. These are the types of safety issues that
necessitate evaluation through a risk assessment, as required under the
final rule. In Germany, devices are installed on locomotives to
automatically adjust for high-speed braking on curves, and there are
requirements for a second crewmember when a dead-man device fails or
under other unusual circumstances.\237\ Therefore, this final rule's
requirements for a functioning alerter and related operating rules are
consistent with the restrictions other countries have imposed for one-
person train crew operations.
---------------------------------------------------------------------------
\232\ 87 FR 45568-69.
\233\ FRA-2021-0032-13056, AAR's Exhibit 3 at 8. BLET and SMART-
TD's jointly filed comment noted that some railroad commenters
pointed to European rail standards to support use of a one-person
train crew while ignoring the Canadian safety standards, which BLET
and SMART-TD stated are far more comparable to U.S. railroading but
clearly do not support reduction in the size of train crews.
\234\ FRA-2021-0032-13056, AAR's Exhibit 3 at 11.
\235\ FRA-2021-0032-13056, AAR's Exhibit 3 at 4.
\236\ FRA-2021-0032-13056, AAR's Exhibit 3 at 11.
\237\ FRA-2021-0032-13056, AAR's Exhibit 3 at 12.
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Another takeaway from the 2015 AAR study was that it focused on a
limited number of accidents that were considered preventable with a
multiple-person crew,\238\ but the data analyzed
[[Page 25080]]
did not include incidents involving close calls that likely go
unrecorded or the potential for quicker response times to take
mitigation measures that a multiple-person crew on the scene can take
in the moments immediately following a variety of situations as
compared with ground-based employees that would first need to be
deployed to a scene before engaging in mitigating measures. It seems
that the industry's argument focused on a narrower subset of situations
where a second crewmember may be beneficial than FRA did in the NPRM.
Similarly, the Alliance for Innovation and Infrastructure (AII)
commented on the NPRM that a second crewmember has the potential to
reduce damage only based on ``a host of assumptions that cannot be
proven'' and that, ``hypothetical[ly], it is equally likely that all
crewmembers die or are incapacitated, that the crew members are
impacted by the bystander effect and do little or no mitigating
activity, or that the main mitigation [is] by non-rail personnel.''
\239\ FRA disagrees with AII's comment because the comment fails to
acknowledge that FRA's central approach, i.e., for each railroad to
conduct a risk assessment, would produce an objective risk-based
analysis that addresses such questions. This final rule will impose
reasonable restrictions, collect data, and address the unique
complexities of U.S. railroad operations through a review process. If
data or analysis later suggests FRA should consider a different
approach, any person could petition FRA for a new rulemaking, or FRA
could initiate one.
---------------------------------------------------------------------------
\238\ FRA-2021-0032-13056, AAR's Exhibit 3 at 19 (explaining how
the study limited what data it perceived as relevant to datasets in
which the crew has some control and the size of the crew could
arguably make a difference in the outcome of an incident).
\239\ FRA-2021-0032-12313 at 35. Although AII clearly opposed
the NPRM, its analysis seemed conflicted when it concluded that
``[f]or [accident] mitigation, that [a] conductor being anywhere on
the train would theoretically help reduce damage.'' Id. at 32.
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FRA disagrees with AAR's comment that there is sufficient
comparable data on one-person train crew operations to support that
such operations are safe. For instance, AAR's comment that the data
from passenger operations should be used is typically inaccurate as FRA
explained in the NPRM that multiple train crewmembers are typically
necessary to meet the requirements of FRA's passenger train emergency
preparedness rule so that passenger operations' data is not comparable
to a one-person train crew operation.\240\ Class I railroad commenters
pointed to the 250-mile, Class II, regional railroad INRD's one-person
train crew operation as an example for them to follow even though their
operations are drastically different because INRD, for instance,
described its one-person train crew operations to FRA as hauling a
single commodity that did not include hazardous materials.\241\ In
order to ensure safety in the future, the NPRM explained that the
safety record of a few one-person Class II and III train crew
operations would not necessarily be 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.\242\
Further, the analogy is the same when comparing Class I freight
railroads to Western European rail operations; both may be complex
operations, but the factors making them complex are different. And, as
the NPRM proposed, the final rule will not prohibit all one-person
train crew operations but allow some under specific conditions and
others potentially after a petition is filed, a review process is
followed, and an agency special approval is granted.
---------------------------------------------------------------------------
\240\ 87 FR 45579.
\241\ 87 FR 45568. In the NPRM, FRA summarized INRD's public
statements describing its operation that were made during FRA's 2016
train crew staffing rulemaking.
\242\ 87 FR 45581. As the NPRM stated, 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.
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c. New Technology and Automated Operations
As noted in the NPRM, 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.\243\ For that reason, the NPRM proposed a special approval
petition process that would have required a risk assessment before
initiating an operation, and the NPRM's background stated that FRA
understands that the rail industry is anticipating future growth in
automation and is concerned how a train crew staffing rule might impact
the future of rail innovation and automation. Further the NPRM noted
that 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.\244\
---------------------------------------------------------------------------
\243\ 87 FR 45567.
\244\ 87 FR 45586.
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In response to FRA's proposal, some rail industry commenters
asserted that the NPRM is anti-technology, that DOT has promoted
automated operations for motor vehicles, including trucks, over
railroads, and that the NPRM blocks incentives to innovate. For
instance, AAR commented that the NPRM would cause a modal shift from
railroads to trucks, directly impacting the railroad industry's
competitiveness \245\--a position shared by ASLRRA.\246\ To support its
position, AAR provided a research paper it had commissioned that
concluded the NPRM would have profound implications regarding the level
and nature of freight competition between railroads and trucking
companies, particularly in an era of increased vehicle automation.\247\
Although AAR's sponsored research described truck platooning technology
\248\ as ``nascent,'' and thus just beginning to display signs of
future potential, the research suggested substantial future cost
savings in the mid-range figure of 29 percent for trucking companies,
thereby impacting the ability of railroads to compete and profit.\249\
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\245\ FRA-2021-0032-13056.
\246\ FRA-2021-0032-13033.
\247\ FRA-2021-0032-13056, AAR's Exhibit 9, a report prepared by
Mark Burton, Research Associate Professor (Retired from The
University of Tennessee), titled ``Rail-Truck Competition in an Era
of Automation Technology'' (DDec. 2022).
\248\ DOT's Federal Highway Administration describes truck
platooning projects whereby a convoy of trucks are partially
automated, meaning that the vehicles control the coordinated speeds
and braking with the lead vehicles in the platoons, but the drivers
maintain steering control and are expected to continuously monitor
the driving situation to be ready to assume full control of the
vehicles at any time. https://highways.dot.gov/research/laboratories/saxton-transportation-operations-laboratory/Truck-Platooning.
\249\ FRA-2021-0032-13056, AAR's Exhibit 9 at 6-8.
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AAR's sponsored research suggested that a shift from rail to truck
shipments may not be true ``where shipment characteristics favor rail
transportation to the exclusion of truck [which] is particularly true
of many liquid chemical and petroleum products, including plastics.''
\250\ The research and other commenters compared existing safety
statistics between the non-automated truck and rail industries, and
concluded that rail is safer and should therefore be promoted. The AAR-
sponsored research also suggested that ``[a]n unbalanced program of
technological advancement will divert tens of millions of tons of
freight from rail to truck and, in doing so, add measurably to the
degradation of air
[[Page 25081]]
quality.'' \251\ Thus, freight rail industry commenters projected that
the NPRM proposing a two-person train crew mandate with exceptions had
the potential to dramatically shift freight shipments from rail to
truck, cause railroad revenues to fall, diminish public safety,
increase fuel consumption, and lead to major increases in the demand
for highway capacity.\252\
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\250\ FRA-2021-0032-13056, AAR's Exhibit 9 at 13.
\251\ FRA-2021-0032-13056, AAR's Exhibit 9 at 17.
\252\ FRA-2021-0032-13056, AAR's Exhibit 9 at 18.
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The American Consumer Institute (ACI), which is described as a non-
partisan, educational, and public policy research organization that
protects consumers' interests, stated that ``FRA should be following
the lead of the trucking industry and to allow as much automation as
possible'' to lower costs for consumers and take advantage of the Class
I freight railroads' $760 billion investment in PTC since the
1980s.\253\ ACI commented that the NPRM would increase costs for
consumers and could also have a negative impact on the environment if
companies shift from rail to truck shipments for their goods. A similar
comment was filed jointly by 19 non-profit, policy think tanks.\254\
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\253\ FRA-2021-0032-10337. The comment cited an AAR website for
the amount of the investment, but incorrectly quoted $780 billion
when the website stated $760 billion. https://www.aar.org/campaigns/ptc/.
\254\ FRA-2021-0032-12300. Rio Grande Foundation; Washington
Policy Center; Nevada Policy Research Institute; Bluegrass Institute
for Public Policy Solutions; Roughrider Policy Center (North
Dakota); John Locke Foundation (North Carolina); Maine Policy
Institute; Thomas Jefferson Institute for Public Policy; Josiah
Bartlett Center for Public Policy; Cardinal Institute for West
Virginia Policy; Idaho Freedom Foundation; Alaska Policy Forum;
Maryland Public Policy Institute; Yankee Institute; Mississippi
Center for Public Policy; The John K. MacIver Institute for Public
Policy; The Buckeye Institute; and the Garden State Initiative.
---------------------------------------------------------------------------
FRA's Response
In the NPRM's background, FRA explained how historically the roles
of certain crewmembers were nullified by technology and contrasted
those situations with the current one in which the rail industry has
not made the same type of technological breakthrough case.\255\ The
comments and research provided by commenters are premised on the
assumptions that labor-saving technologies are already developed and
that these technologies advance both productivity and operational
safety. However, the commenters' conclusions incorrectly assume that
the labor-saving technologies are already developed, accepted, and
implemented.
---------------------------------------------------------------------------
\255\ 87 FR 45567-68.
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For instance, FRA disagrees with those commenters who pointed to
the PTC systems as the automated technology they would use to justify
removal of a second crewmember. FRA is certainly aware that the PTC
systems are sometimes enhanced, through integration of other software
that may act like an automobile's cruise control system; yet, to date,
even those enhanced PTC systems do not perform all the necessary
functions in all operating environments.\256\ In addition, PTC
technology is currently governing rail operations on approximately 42
percent of the rail network in the United States, and this rule
addresses rail operations nationwide.
---------------------------------------------------------------------------
\256\ 83 FR 13583, 13584-85 (Mar. 29, 2018) (citing FRA's
``Request for Information: Automation in the Railroad Industry''
which included a description of two different methods for defining
levels of automation).
---------------------------------------------------------------------------
While FRA is aware that other rail systems, with various levels of
autonomous features, are already available or are expected to be
built,\257\ freight rail industry commenters largely did not suggest
that they would be relying on a system other than PTC. For these
reasons, no U.S. railroad has yet to make a case that it is ready to
implement a reliable system, suitable for the complexity of its
operations, and with a high enough level of autonomy that would either:
(1) negate the need for any crewmembers; or (2) negate the need for a
single crewmember whose central operational duty would be to make an
emergency brake application in case of an automated system error or
otherwise perform duties normally associated with a conductor, but not
be expected to operate the train.
---------------------------------------------------------------------------
\257\ 83 FR 13584 (describing known rail technologies). It has
been over five years since FRA formally recognized the existence of
a fully autonomous freight railroad system in Australia operated by
a mining company on an approximately 62-mile stretch of track in
western Australia but no U.S. railroad has sought to implement that
system.
---------------------------------------------------------------------------
The freight rail industry expressed concern with competition from
the trucking industry, especially as automated or partially automated
driving technologies such as truck platooning improve, but their
concerns do not undermine the basis for this rulemaking which focuses
on the rail safety hazards introduced by reducing crew size. The
commenters also suggested that the cost of compliance with the rule as
proposed would be high enough to shift freight from rail to truck, a
potentially less safe form of transport. However, FRA's RIA shows that
the final rule's costs are lower than the commenters' projections,
which were based on the NPRM, and both FRA and DOT as a whole do not
expect such cross-modal impacts under this final rule. DOT's mission
statement is ``to deliver the world's leading transportation system,
serving the American people and economy through the safe, efficient,
sustainable, and equitable movement of people and goods.'' \258\ DOT
serves its mission consistent with the Federal government's national
standards strategy for critical and emerging technology.\259\ And while
DOT has certainly funded research concerning automated motor vehicles
and the trucking industry,\260\ it is doing the same by funding
research concerning automation in the rail industry, as described
below.
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\258\ DOT's mission statement, https://www.transportation.gov/about, is based on its statutory authority. 49 U.S.C. 101.
\259\ The U.S. government will focus standards development
activities and outreach regarding the application of ``automated,
connected, and electrified transportation, including automated and
connected surface vehicles of many types.'' U.S. Government National
Standards Strategy for Critical and Emerging Technology (May 2023)
at 6-7. https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/04/fact-sheet-biden-harris-administration-announces-national-standards-strategy-for-critical-and-emerging-technology/?utm_source=link.
\260\ https://highways.dot.gov/automation.
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FRA supports technological advancement through research and
funding.\261\ For instance, FRA's current list of approximately 128
projects includes research on: (1) how unmanned aerial vehicles known
as drones would allow railroads to inspect larger sections of track at
one time and speed up inspections; (2) developing and testing a
modular, field-deployable system combining edge computing with advanced
artificial intelligence processing to detect and classify track
features from a moving platform in near-real-time; (3) developing an
artificial-intelligence-aided machine vision for grade crossing safety
that would provide real-time alerts for damaged gate arms, flashers,
and other critical safety-related issues; (4) ensuring that an
interoperable automated train operation system is defined to meet
industry safety and automation objectives; and (5) improving rail
safety and efficiency objectives when an RCL is used to perform
switching operations on the line-of-road without crew presence in the
cab of the controlling locomotive, an operation known as ``road RCL.''
\262\ Further, FRA is sponsoring research on the human-automation
interaction and teaming to affect the design,
[[Page 25082]]
certification, and implementation of automation and to ensure that
safety is enhanced, not degraded, by new technology and
automation.\263\
---------------------------------------------------------------------------
\261\ https://railroads.dot.gov/research-development/research-development-and-technology.
\262\ https://railroads.dot.gov/elibrary/fra-office-research-development-and-technology-current-projects-2023 at 11, 16, 51, 117,
and 123.
\263\ Id. at 130.
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Similarly, FRA disagrees with commenters claiming that FRA failed
to consider how the rail industry can use operational innovations or
deploy readily available technology to address any safety concerns
associated with the operation of a train with fewer than two
crewmembers. FRA addressed this issue in the background section titled
``Automated Operations.'' \264\ As stated in the NPRM, this rule is not
intended to impede rail innovation nor does this rule regulate
autonomous operations.\265\ The rule simply requires a description of
``any technology that will be used to perform or support tasks
typically performed by a second crewmember, or that will prevent or
significantly mitigate the consequences of accidents or incidents'' in
a petition for special approval.\266\ Among other things, this
information will allow FRA to ensure that the technology being used to
support a one-person operation has gone through the proper waiver or
regulatory processes, as necessary.\267\
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\264\ 87 FR 45586.
\265\ The 2019 withdrawal stated that a train crew staffing rule
would unnecessarily impede rail innovation and automation, 84 FR
24740, without providing data to support that position. To the
contrary, this final rule does not prohibit any specific type of
one-person train crew operation or prohibit the use of technology to
perform duties typically performed by a second crewmember. Rather,
this final rule ensures that minimum safety measures are in place
for one-person train crew operations and that, for certain more
complex one-person train crew operations, the risk of foreseeable
hazards is mitigated. As explained in the 2022 NPRM, in re-
evaluating the information and safety issues concerning one-person
train crew operations, FRA concluded that ``a train crew staffing
rule would not necessarily halt rail innovation or automation
[n]otwithstanding the statements made in the 2019 withdrawal
[because] . . . 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.'' 87 FR 45571.
This final rule provides such a process.
\266\ Sec. 218.131(b)(11), proposed as Sec. 218.133(b)(11).
\267\ See 49 CFR part 211, subparts C and E (providing FRA's
rules of practice for waivers and miscellaneous safety-related
proceedings and inquiries); and see e.g. 49 CFR 236.909 (reflecting
the minimum performance standards for the introduction of new
railroad products or changes to existing railroad products).
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If a railroad seeks to use technology that does not meet FRA's
existing regulatory requirements, the railroad may petition FRA for a
rulemaking that would revise FRA's regulations to permit the use of the
technology to fulfill FRA's regulatory requirements. A rulemaking
petition would need to comply with FRA's Rules of Practice \268\ and
would have to follow the Department's regulatory process in compliance
with the Administrative Procedure Act.\269\ Alternatively, a railroad
could petition FRA for a waiver from any applicable regulations to use
technology that does not meet FRA's existing regulatory
requirements.\270\ Similar to a petition for rulemaking, a waiver
petition would also need to comply with FRA's Rules of Practice \271\
and must include all required supporting information, including a
safety justification. When petitioning for a rulemaking or a waiver to
use technology that does not meet FRA's existing regulatory
requirement, a railroad seeking to use an autonomous operation without
a minimum of a one-person train crew would also be required to petition
FRA for a waiver from this final rule, specifically the requirements in
Sec. 218.123.
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\268\ Specifically, 49 CFR part 211, subparts A and B.
\269\ 5 U.S.C. 551-559.
\270\ See 49 CFR part 211, subpart C.
\271\ Specifically, 49 CFR part 211, subparts A and C.
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d. Transportation of Hazardous Materials
AAR opposes the NPRM's proposed prohibition on one-person train
crew operations transporting certain types or quantities of hazardous
materials by commenting that there is no evidentiary basis for
concluding that one-person operations are less safe than two-person
operations and the NPRM did not explain why any increased risks posed
by the transportation of hazardous materials could not be adequately
addressed through the adoption of safety protocols tailored to those
risks.\272\
---------------------------------------------------------------------------
\272\ FRA-2021-0032-13056.
---------------------------------------------------------------------------
FRA's Response
In the discussion of comments and conclusions above, FRA responded
to comments from short line rail industry commenters about the proposed
two-person train crew mandate with respect to the transportation of
hazardous materials. Aside from individual citizen commenters who were
generally concerned about the safety of hazardous materials being
transported by a train with a one-person crew or potential delays to
mitigation measures with only a one-person crew, few comments were
received on this subject.
In summary, the NPRM proposed an overarching prohibition on fewer
that two-crewmember operations 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 (i.e., 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 RSSM as defined
by the Department of Homeland Security). FRA described in the NPRM how
DOT must balance how hazardous materials are essential to the U.S.
economy with the risks posed by accidental and non-accidental releases
of those materials during transportation.\273\ The NPRM explained how
FRA coordinates with PHMSA to regulate and enforce the safe and secure
transportation of hazardous materials by rail and how FRA also
coordinates with the Department of Homeland Security and its TSA on
rail transportation security issues.
---------------------------------------------------------------------------
\273\ 87 FR 45576-78.
---------------------------------------------------------------------------
Further, the NPRM explained that DOT considers train crewmembers as
``hazmat employees'' requiring specific types of training based on the
dangers posed by hazardous materials generally and the additional
dangers of a release in transit due to an accident, derailment, theft,
or attack.\274\ The background in the NPRM described the various types
of training required for hazmat employees and how the training is
required initially and recurrently at least once every three years.
Also, the NPRM summarized how PHMSA defined ``high-hazard flammable
trains,'' how certain safety and security factors must be considered in
the risk analysis that would be used to determine routing requirements,
and how PHMSA only indirectly addressed the human factors issues in its
rulemaking because PHMSA understood that FRA initiated a separate, key
regulatory safety initiative to address crew size safety.\275\ For
these reasons, FRA stated in the NPRM that 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.
---------------------------------------------------------------------------
\274\ 87 FR 45576, especially footnote 127.
\275\ 87 FR 45577 (citing PHMSA's rule titled ``Hazardous
Materials: Enhanced Tank Car Standards and Operational Controls for
High-Hazard Flammable Trains'') at 80 FR 26644, 26654-55 (May 8,
2015).
---------------------------------------------------------------------------
In response to various rail industry commenters, the final rule
does not contain the proposed overarching prohibition on one-person
train crew operations transporting certain quantities and types of
hazardous materials. Instead, in the final rule, railroads that cannot
meet any of the exceptions are permitted to petition for
[[Page 25083]]
special approval to initiate or continue one-person train crew freight
operations transporting hazardous materials.\276\ Moreover, as
previously addressed in this discussion of comments and conclusions,
the final rule provides Class II and III railroads with an exception to
the special approval process to continue legacy one-person train crew
freight operations that have been established for at least two years
before the effective date of the final rule, including when the
railroad has established a legacy operation in which it wants to
continue transporting certain hazardous materials.
---------------------------------------------------------------------------
\276\ As explained in the discussion above of the short lines'
comments, Class II and III railroads seeking to initiate a new one-
person operation transporting hazardous materials of the types or
quantities described in Sec. 218.123(c) are required under the
final rule to petition FRA for special approval and conduct a risk
assessment. A special approval petition is also required for
continuing an existing operation that has not been established for
at least two years before the effective date of the final rule. To
initiate other types of one-person crew operations, Class II and III
railroads are only required to provide notification and comply with
certain operational requirements. The final rule requires Class I
railroads to petition for special approval and conduct a risk
assessment to initiate any one-person train crew operation.
---------------------------------------------------------------------------
FRA expects that each railroad filing a petition for special
approval will build upon that foundation of specified safety
requirements and take further mitigation measures to address the
hazards and reduce the risks involved in transporting hazardous
materials by trains staffed with a one-person train crew. Further, the
special approval procedure in Sec. 218.135 will ensure that the public
and rail employees are provided an opportunity to comment and provide
FRA with an opportunity to review and approve the railroad's
operational plans.
e. FRA Action on Regulating Crew Staffing
Class I freight railroad commenters stated that FRA failed to
adequately explain its reconsideration of its previous positions on
regulating the safety issues regarding train crew size. AAR asserted
that FRA ``fail[ed] to adequately explain its total reversal in
position in light of the views and conclusions it expressed in the 2019
Withdrawal Order,'' and that FRA ``does not adequately explain its
changed position in light of the views it expressed in the 2016 NPRM.''
\277\ AAR provided examples of statements from the 2016 NPRM on train
crew staffing and the 2019 withdrawal that, according to AAR, the 2022
NPRM contradicts without sufficient explanation for the changed
position. For example, AAR highlighted the 2019 withdrawal's
determinations that ``issuing any regulation requiring a minimum number
of train crewmembers would not be justified because such a regulation
is unnecessary for a railroad operation to be conducted safely at this
time,'' and that ``no regulation of train crew staffing is
appropriate.'' \278\ In addition, AAR pointed to FRA's statement in the
2016 NPRM that ``FRA cannot provide reliable or conclusive statistical
data to suggest whether one-person crew operations are generally safer
or less safe than multiple-person crew operations.'' \279\ In its
comment, BNSF stated that the 2019 withdrawal extensively catalogued
data and other evidence and concluded that this available information
``did not establish that one-person crew operations are less safe than
multi-person crews.'' \280\ BNSF asserted that the 2022 NPRM dismisses
the 2019 withdrawal's analysis without sufficient explanation or
justification.
---------------------------------------------------------------------------
\277\ FRA-2021-0032-13056 at 9-11.
\278\ 84 FR 24741 (May 29, 2019), quoted by FRA-2021-0032-13056
at 10.
\279\ 91 FR 13919 (Mar. 15, 2016), quoted by FRA-2021-0032-13056
at 10.
\280\ FRA-2021-0032-12996 at 1-3.
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FRA's Response
After considering all the evidence before it, including comments
and data post-dating the 2019 withdrawal that is discussed in the 2022
NPRM, FRA has reassessed its prior positions for two independent
reasons.\281\ First, as the NPRM states, the decision of the U.S. Court
of Appeals for the Ninth Circuit to vacate and remand the 2019
withdrawal left FRA with various options on how, or whether, to address
the matter of crew size safety. In deciding how to proceed, FRA
reconsidered several of the safety issues discussed in the 2019
withdrawal. FRA determined that the 2019 withdrawal de-emphasized
safety concerns raised by FRA-sponsored research on the cognitive and
collaborate demands of crewmembers and by commenters on the 2016 NPRM.
For example, as the 2022 NPRM explains, the research raises safety
concerns regarding one-person train crews, such as the loss of a second
crewmember to notice and correct errors.\282\ FRA adheres to that
reassessment. This final rule is justified based on FRA's reevaluation
of those safety concerns and the threat they pose to public safety.
---------------------------------------------------------------------------
\281\ 87 FR 45564, 45571-76 (July 28, 2022) (section III.D of
the NPRM, titled ``Reconsideration of the Safety Issues'').
\282\ See, e.g., id. at 45572 (explaining in detail how FRA has
``revisit[ed] the research . . . to explain how the safety concerns
the research raises helped in the development of the proposed
requirements for this rulemaking'').
---------------------------------------------------------------------------
Second, in reassessing regulation of safety issues regarding train
crew size, FRA also considered information not analyzed in the 2019
withdrawal, such as technological trends and operational changes on
Class I freight railroads since 2019. Train accidents can impose
enormous and sometimes incalculable costs on individuals, communities,
and the environment, and recent industry changes, such as utilizing
longer trains than the historical norm, introduce variables that may
make it challenging for the industry to continue the past two decades
general trend of improved safety in rail operations. As stated in the
NPRM, freight train length has increased in recent years, and this
trend may have cascading safety impacts unless mitigated by technology,
training, or other processes.\283\ And, as explained above, the latest
rail safety data reflects some troubling industry trends that suggest
heightened caution and awareness are needed in rail safety and
operational planning. Although trains have a relatively strong safety
record, the rate for all human factor caused accidents has increased in
recent years, notably after the 2019 withdrawal.\284\ While
technological advances in the rail industry, such as PTC, may decrease
those accidents in the future, uncertainty related to new operating
technologies can affect train safety.\285\ Furthermore, the research
indicates that PTC implementation should not be presumed to lead to
fewer crew tasks.\286\ This point was further corroborated by extensive
comments and testimony in this rulemaking from train crewmembers who
work with PTC daily and by their representatives.\287\
---------------------------------------------------------------------------
\283\ 87 FR 45564, 45572.
\284\ See Section I., Executive Summary, for a discussion of
recent data.
\285\ See 87 FR 45564 at 45572-45573 (citing 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).
\286\ Id. at 45572-73.
\287\ See, e.g., FRA-2021-0032-13038 at 2, FRA-2021-0032-13049
at 9 and 23, FRA-2021-0032-13133 at 2, and FRA-2021-0032-0711 at 1-
2.
---------------------------------------------------------------------------
In sum, FRA reconsidered information previously analyzed by FRA on
crew size safety and considered additional relevant information,
including safety data indicating potentially worsening trends since the
2019 withdrawal was issued. Based on this assessment, FRA determined
that it needed to change its position from the 2019 withdrawal and
concluded that the regulatory requirements in this final rule are
necessary to ensure that trains are adequately staffed for their
intended
[[Page 25084]]
operation and railroads have appropriate safeguards in place for safe
train operations whenever using a one-person train crew.
FRA further notes that the 2022 NPRM and this final rule differ in
approach from the previous rulemakings addressing train crew size.
Instead of broadly mandating two crew members, the NPRM proposed to
require, and this final rule requires, two crew members for the most
complex operations until a railroad analyzes an operation and
persuasively demonstrates that risks associated with eliminating the
second crew member are reasonably mitigated. By allowing railroads to
petition for a one-person crew, this final rule accommodates the
development of new technology while also ensuring the safety of crews
and the public by requiring an analysis that shows that these
innovations will not make trains less safe. FRA's incremental
approach--that preserves the status quo while providing latitude for
railroads to explore benefits from advances in technology--promotes
FRA's statutory mandate to issue regulations ``as necessary'' for
``railroad safety.'' \288\
---------------------------------------------------------------------------
\288\ 49 U.S.C. 20103(a).
---------------------------------------------------------------------------
f. Risk Assessments and FRA's Review Standard
AAR asserted in its written comment and reiterated in oral
testimony at the public hearing that the proposed risk assessment
requirements are flawed.\289\ In support of its comment, AAR provided
several examples demonstrating how the proposed risk assessment might
play out using recent accident/incident data and how Class I railroads
could never expect a petition for special approval to be granted under
the NPRM. AAR also suggested that because Class I railroads are
required to have a risk-reduction program, FRA could have allowed these
railroads to follow the risk-reduction approach set forth in their
approved risk-reduction plans rather than the approach in this NPRM
regarding crew size safety requirements.
---------------------------------------------------------------------------
\289\ FRA-2021-0032-13056, AAR's comment at 39-45 and AAR's
Exhibit 5, a comment prepared by ICF International titled ``Comments
on Train Crew Size Safety Requirements.'' (Dec. 12, 2022).
---------------------------------------------------------------------------
APTA commented that its passenger rail operation members support
risk-based approaches that allow railroads to identify, mitigate, and
manage safety risks in a manner that reflects the scale and specifics
of individual operations. However, APTA asked FRA to reconsider the
proposed risk assessment requirements as unnecessary for railroads that
already follow an established methodology under FRA's existing system
safety program requirements.\290\ APTA also had specific concerns about
FRA's proposed risk assessment methodology and whether a minor event
might be classified as catastrophic. Further, APTA's comment raised
other policy concerns regarding the proposed risk assessment, including
whether the proposed requirements could make information compiled or
collected for that risk assessment public when, under the existing
system safety program requirements, similar information would receive
at least some legal protections.\291\ CRC's comment was also similar to
APTA's in its approach to the risk assessment, requesting that FRA
leverage its existing system safety requirements. CRC was concerned
with the risk assessment burden in the event an approved passenger
operation wants to make material modifications to the operation.
---------------------------------------------------------------------------
\290\ FRA-2021-0032-12947, referring to 49 CFR part 270.
\291\ See 49 CFR 270.105.
---------------------------------------------------------------------------
TTD commented that it perceived the proposed alternative risk
assessment as vague when compared to the detailed and specific proposed
risk assessment.
FRA's Response
The NPRM provided background on the risk assessment requirement,
how it is useful, and how a risk assessment must be conducted in an
objective manner to be effective.\292\ FRA explained why it proposed
specific content and methodology requirements for conducting risk
assessments and why it proposed an option to allow any railroad to seek
FRA's approval to use an alternative risk assessment methodology.\293\
The NPRM also included background regarding the expected impact of the
rule on the safety of rail operations.\294\ FRA considered all the
comments regarding the proposed risk assessment, and the final rule's
requirements are expected to address these comments in several
overarching ways.
---------------------------------------------------------------------------
\292\ 87 FR 45582-84.
\293\ 87 FR 45584.
\294\ Id.
---------------------------------------------------------------------------
For instance, because FRA did not intend to propose requirements
that might be viewed as nearly impossible to meet statistically, the
final rule removed what commenters perceived as the proposed potential
quantitative analysis obstacles. In addition to revisiting aspects of
that quantitative risk-based hazard analysis, the final rule includes
guidance, in Appendix E, on how a railroad may prepare a risk-based
hazard analysis and compare the risks to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person
minimum train crew operation when all mitigations are in place. FRA
expects that some railroads will favor this objective approach when
conducting a required risk assessment under this final rule.
In response to comments, the final rule also includes changes from
the NPRM that provide consistency with existing requirements,
specifically, consistency with both the System Safety Program
requirements in part 270 and the Risk Reduction Program requirements in
part 271. Parts 270 and 271 require covered railroads to have a
systemwide and ongoing risk-based hazard management program that
proactively identifies hazards and mitigates risks resulting from those
hazards, using a risk-based hazard analysis. Accordingly, this final
rule includes the minimum requirements for a risk-based hazard analysis
that follows similar requirements in Sec. 270.103(p) and (q), and
Sec. 271.103(b), allowing railroad to build upon existing analyses
when preparing the required risk-based hazard analysis as part of a
petition for a one-person crew.
To simplify the risk assessment process and address perceived
potential quantitative analysis obstacles, the final rule includes the
minimum performance standards used in Sec. 236.909 for the
introduction of new railroad signaling and train control components,
products or systems, and this standard is also required to promote the
safe design, operation, and maintenance of safety critical locomotive
electronic control systems, subsystems, and components.\295\
Specifically, the final rule makes clear that the introduction of a new
product or change cannot result in risk that exceeds the previous
condition.
---------------------------------------------------------------------------
\295\ 49 CFR part 229, subpart E (establishing minimum railroad
locomotive safety standards for locomotive electronics).
---------------------------------------------------------------------------
With respect to commenters' information security concerns, FRA
decided to retain the same approach as proposed. For reasons explained
in the NPRM, FRA determines that exercising FRA's statutory discretion
under 49 U.S.C. 20118 to protect certain risk analyses from public
disclosure pursuant to Exemption 3 of the Freedom of Information Act
(FOIA), 5 U.S.C. 552(b)(3), would not be consistent with the final
rule's provisions that make petitions and the risk analyses they
contain available for public comment.\296\ Nevertheless, other FOIA
exemptions may apply. For example, FRA reminds railroads that
information
[[Page 25085]]
required to be submitted as part of the risk-based hazard analysis that
a submitter deems to be trade secrets, or commercial or financial
information that is privileged or confidential under Exemption 4 of
FOIA 5 U.S.C. 552(b)(4), should be so labeled in accordance with the
provisions of 49 CFR 209.11. FRA handles information labeled as such in
accordance with the provisions of Sec. 209.11.
---------------------------------------------------------------------------
\296\ 87 FR 45585.
---------------------------------------------------------------------------
Regarding the potential use of risk-based hazard analysis
information in litigation, FRA decided not to include in the final rule
information protections like those adopted in the system safety program
and risk reduction program rules. Congress explicitly authorized
setting forth specific information protection requirements for
implementation of those rules, and FRA does not have a similar
statutory authorization to do so here.\297\ For further discussion on
this issue, FRA refers readers to the NPRM's explanation of FRA's
statutory authority to protect certain information from use in
litigation.\298\
---------------------------------------------------------------------------
\297\ 49 U.S.C. 20119, 49 CFR 270.105 and 81 FR 53850, 53859
(Aug. 12, 2016), and 49 CFR 271.11 and 85 FR 9262, 9263 (Feb. 18,
2020).
\298\ 87 FR 45585.
---------------------------------------------------------------------------
Lastly, in response to comments regarding the risk assessment, the
final rule retains the NPRM's proposed alternative standard provision
in Sec. 218.133(b). That provision allows a railroad the option to
submit a petition for FRA's approval of the use of alternative
methodologies or procedures, or both, to assess the risk associated
with a proposed operation. Again, this was an option that was proposed
but seemingly missed by commenters that acknowledged the value in a
risk assessment but requested flexibility in how to conduct it. FRA
understands that some commenters, such as TTD, suggested that the
alternative standard provision for a risk assessment is vague, but FRA
does not agree because approval of alternative methodologies or
procedures, or both, would be expected to be based on standards
established by leading governmental or non-governmental standardization
organizations.
g. Remote Control Operations
Several commenters raised concerns with the NPRM's specific freight
train exception to the crew staffing requirements that applied to
remote control operations in proposed Sec. 218.129(c)(3). The
following is a summary that is representative of the comments received.
ASLRRA and other short line rail industry commenters raised
objections to FRA's proposed exception for a one-person train operation
controlled by a remote control operator because they claimed it created
new burdens that they do not currently comply with or that are
unnecessary given equipment standards for these operations. ASLRRA's
comment included a statement from the Texas and Northern Railway
regarding how it would not qualify for the remote control operation
exception because this short line: (1) does not maintain technology or
protocols to monitor a train's real-time progress; (2) does not have a
method of determining the train's approximate location when
communication is lost with a one-person train crew; and (3) does not
utilize a dispatcher.\299\ Similarly aligned commenters pointed to the
proposed requirement that the remote control operator must stay in the
locomotive cab except in emergencies, a condition that the commenters
suggested would be unnecessary for that person's safety, even on main
track, given that the remote control operator can operate the train
safely from the ground or other locations on the train. Also,
commenters objected to a proposed requirement in the NPRM that a remote
control operation be required to have an alerter when the remote
control technology they use already has similar safety features.
---------------------------------------------------------------------------
\299\ FRA-2021-0032-13033, att. L (statement from Transtar LLC/
Texas and Northern Railway).
---------------------------------------------------------------------------
FRA's Response
In proposing the crew size safety requirements as conditions for
using a one-person train crew with a remote control operation, FRA
started with the premise that most remote control train operations are
peripheral to switching operations in a yard or at a customer's
facility because the remote control technology was designed with a
primary focus on making switching operations more efficient. Because an
RCL is controlled by an operator with a remote control transmitter
strapped to their chest, an operator does not need to stay in the
locomotive cab and has versatility to do other safety-related tasks
such as uncouple cars, throw hand-operated switches, and determine that
track is clear for their train movement. Thus, when in switching or
train service, a remote control operator may be on the ground, on the
lead locomotive (although not necessarily in the locomotive cab), or on
another car or locomotive.
Remote control operations are typically crewed by one operator, who
fulfills the roles and responsibilities of both the locomotive engineer
and conductor, or by two remote control operators, each with a remote
control transmitter, so that they can alternate controlling the RCL.
Although a remote control operation could have three or more train
crewmembers, that would be atypical and would likely involve a third
crewmember who is training to be a remote control operator. Although an
RCL may remain in a particular rail yard for switching solely within
that yard, it is common for a remote control operator to take an RCL
from a rail yard to a customer's facility as a local train that can
drop off or pick up rail cars at one or more customer's facilities.
In the NPRM, FRA explained how remote control operations that
travel between yards or customers' facilities, with or without cars,
were trains ``not in switching service'' and were thus potentially
subject to the NPRM's proposed requirements if operated with a one-
person train crew.\300\ For this reason, FRA proposed an exception for
RCL operations with the intention that the proposed general train crew
staffing requirements would not apply but that other conditions would
apply. In the NPRM, FRA proposed to address narrow safety concerns
involving the use of an RCL by codifying long-standing agency guidance
for the use of the remote control technology during non-switching
service. These proposed requirements were intended to allow remote
control operations with a one-person train crew as an exception if the
operation was limited in complexity by weight, tonnage, grade, or other
factors that reflected guidance previously accepted by industry
stakeholders.\301\
---------------------------------------------------------------------------
\300\ 87 FR 45594.
\301\ 87 FR 45594-95.
---------------------------------------------------------------------------
The NPRM therefore proposed to codify FRA's guidance on accepted
industry safe practices for remote control operations. However, upon
further consideration, FRA has determined that addressing this issue in
this rulemaking is unnecessary. In deciding not to adopt the proposed
remote control operations exception, FRA determined that the
requirements for remote control operations, proposed in the NPRM, would
be unnecessary as duplicative of existing requirements. For instance,
this final rule will not require an alerter on an RCL to address the
incapacitated locomotive engineer scenario because FRA's existing
locomotive safety standards establish minimum equipment standards for
an RCL that include an operator alertness device and a tilt feature
that together perform the same functions as an
[[Page 25086]]
alerter.\302\ Likewise, there is no need to require enhanced
communication or train tracking requirements for an RCL when FRA's
existing locomotive safety standards establish a prohibition on the use
of one-person operations with remote control locomotive systems that do
not automatically notify the railroad in the event a remote control
operator becomes incapacitated or the tilt feature is activated.\303\
---------------------------------------------------------------------------
\302\ 49 CFR 229.15, in particular paragraph (a)(13).
\303\ Id., in particular paragraphs (a)(15) and (16).
---------------------------------------------------------------------------
However, based on a suggestion from some labor organizations, FRA
may initiate a comprehensive review of every type and aspect of remote
control operations to determine whether the safety of those operations
could be improved through regulation or other actions.
F. Consideration of Requirements More Stringent Than Those Proposed
Some of the commenters supporting the NPRM stated that, in their
view, the NPRM did not go far enough. Specifically, these commenters
supported more stringent requirements that would permit fewer or no
exceptions to a two-person train crew, or include a requirement that
the second crewmember be a person who is a certified conductor under
FRA's requirements in 49 CFR part 242.
TTD supported the proposed annual reporting requirements and
recommended more stringent requirements that, instead of FRA granting
special approval in perpetuity, would require each railroad to file a
new petition for special approval after two years. Similarly, TTD
supported a more stringent requirement to establish a process whereby
FRA would periodically review the enumerated exceptions and seek public
input whether to retain them.
SMART-TD's Kansas State Legislative Board commented that railroads
should be required to maintain a two-person crew in the control
compartment of the lead locomotive unit of each train, a more stringent
requirement than what FRA proposed.\304\ This comment raised safety
concerns with trains being built too long for available sidings, risk
of sabotage, and how a two-person team can combat fatigue.
---------------------------------------------------------------------------
\304\ FRA-2021-0032-9397.
---------------------------------------------------------------------------
SMART-TD's New Jersey State Legislative Board raised the concern
that the NPRM's proposed process of granting exceptions to new and
existing single-person crew operations was disconcerting as it seemed
to place the efficiency of rail operations over safety.\305\ The
comment raised a variety of safety concerns as a basis for establishing
a more stringent two-crewmember train crew requirement. For instance,
this commenter stated that there is a great need for crewmembers to
assist rail passengers in a variety of emergency situations. This local
division of SMART-TD placed emphasis on two crewmembers assisting each
other as a team to battle fatigue, provide backup to reduce mistakes,
and improve situational awareness. The commenter raised a concern about
hazardous materials traveling by rail through New Jersey's dense urban
areas with only a one-person train crew and the potential for a
catastrophic accident. The commenter stated that, with a one-person
train crew, motor vehicle traffic could significantly slow a response
by the railroad's utility employees responding to a train breakdown as
well as local emergency personnel responding to other types of
emergencies--situations where a second crewmember can more quickly
assist because they are already present. The commenter also disagreed
with FRA's proposed criteria for continuing legacy operations and
initiating new operations and stated that railroads should not be
allowed to assess their own risks in a risk assessment. This local
division of SMART-TD recommended that risk assessments be conducted by
the National Transportation Safety Board (NTSB) and that FRA should use
a waiver alternative to the special approval process.
---------------------------------------------------------------------------
\305\ FRA-2021-0032-10602.
---------------------------------------------------------------------------
The Nebraska Public Service Commission (NPSC), which oversees
railroad safety in Nebraska, advocated for FRA to adopt an absolute
prohibition against train operations with fewer than two-person
crews.\306\ NPSC is concerned that the safety issues described in the
NPRM would be present in the scenarios proposed as exceptions. NPSC
stated that the railroad industry's opposition to the rule and need for
exceptions for financial or other reasons should not be given greater
weight than the need to maintain or improve the safety of the crew and
the public.\307\
---------------------------------------------------------------------------
\306\ FRA-2021-0032-10121.
\307\ The Chicago Federation of Labor, stating that it
represents tens of thousands of railroad workers who support the
need for at least two crewmembers on all trains. FRA-2021-0032-6837.
A similar comment was made by the International Brotherhood of
Electrical Workers Local Union 146, Decatur, IL. FRA-2021-0032-
10465.
---------------------------------------------------------------------------
Railroad Workers United (RWU), a group representing railroad
workers in North America that are not managers or supervisors,
commented that FRA should prohibit all one-person train crew
operations.\308\ RWU commented that there is no safe way in the United
States to run a train with a single crew member and that safety
dictates never to allow a single point of failure.
---------------------------------------------------------------------------
\308\ FRA-2021-0032-8001.
---------------------------------------------------------------------------
FRA's Response
Although FRA did not adopt all proposals identified by commenters,
the comments raised practical issues or problems with the proposed
exceptions that led FRA to revise its approach in this final rule. For
example, the commenters stated that certain one-person train crew
operations that were proposed for exceptions in the NPRM would pose
equivalent safety concerns to that of other one-person train crew
operations FRA proposed to prohibit or regulate through the special
approval process. FRA agrees with the comments pertaining to the
proposed helper service and lite locomotive(s) consist exceptions,
which were proposed without any conditions attached. Because FRA agrees
with the commenters that those two types of one-person train crew
operations pose the same safety concerns as the others that were
proposed with conditions attached, FRA revisited those exceptions in
Sec. 218.129(a)(4) and (5) and decided to attach similar conditions.
FRA's decision to revise these exceptions and impose requirements in
the final rule that are more stringent than those previously proposed
is based on several considerations. For instance, FRA considered that
railroads with a need for helper service or that regularly move
locomotives without cars are mostly Class I and II operations that have
newer locomotives, placed into service on or after June 10, 2013, or
that would permit the controlling locomotives to operate at speeds in
excess of 25 mph \309\ and, thus, likely have working alerters
installed in their locomotives. These operations would then need to add
operating rules addressing the communications and safety of the one-
person train crew and addressing how the railroad will take mitigation
measures to address certain situations that could pose hazards to rail
employees or the public--a burden, but not a significant one. Because a
Class III railroad would generally own fewer miles of track than a
Class I or II railroad and operate fewer trains, these short line
railroads typically would provide enough locomotive power to traverse
the track and would not be expected to use helper service as a regular
business practice. Similarly, a lite locomotive
[[Page 25087]]
consist is typically used by Class I and II railroads to move
locomotives from one yard to another to optimize their availability to
move cars; in comparison, Class III railroads might not have more than
one yard or such a complex business model that locomotives would
regularly be moved without cars from one location to another. With
regard to mine load out, plant dumping, and similar operations, FRA
does not agree with the comments that these types of operation would
always have duties requiring a second crewmember, and thus the final
rule retains the exception for those operations as proposed.
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\309\ 49 CFR 229.140(a).
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FRA also did not agree with commenters who suggested that railroads
should be required to maintain a two-person crew in the control
compartment of the lead locomotive unit of each train, as that would
apply a more stringent standard than a railroad meeting the current
status quo of using two-person train crews. FRA is concerned that if it
created such a stringent standard, railroads would be compelled to
employ a three-person train crew to do the job that currently only
takes two crewmembers. It could also create an impossible standard for
certain passenger train operations in which the locomotive cab is not
large enough to accommodate a second crewmember.
III. Section-by-Section Analysis
This section responds to public comments and identifies any changes
made from the provisions as proposed in the NPRM. Provisions that
received no comment, and are otherwise being finalized as proposed, are
not discussed again here.\310\
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\310\ 87 FR 45587-45605.
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Section 218.5 Definitions
This final rule adds 17 definitions to part 218--Railroad Operating
Procedures. Part 218 prescribes minimum requirements for railroad
operating rules and practices. The analysis in the NPRM is applicable
for this section for the following terms which will have the same
definitions as proposed: ``FTA,'' ``hazard,'' ``mishap,'' ``risk,''
``tourist train operation,'' ``tourist train operation that is not part
of the general railroad system of transportation,'' ``trailing tons,''
and ``train.'' \311\ The remaining terms are described below.
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\311\ 87 FR 45587.
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The NPRM proposed a definition for ``Associate Administrator'' that
was similar to the existing definition of ``Associate Administrator for
Safety'' in Sec. 218.93, a definition only applicable to part 218,
subpart F. To prevent having two similar definitions to describe the
same FRA official, this final rule removes the existing definition from
subpart F and replaces it with the definition as proposed in the NPRM
so that the term ``Associate Administrator for Safety'' has the same
meaning throughout part 218.
This final rule includes two definitions not specifically proposed
in the NPRM, but based on descriptions of two types of operations
contained in proposed requirements. First, the final rule defines
``helper service train operation'' to mean a train that is ``a
locomotive or group of locomotives being used to assist another train
that has incurred mechanical failure or lacks sufficient tractive force
necessary to traverse a particular section of track due to train
tonnage and the grade of the terrain.'' This definition is similar to
the NPRM's definition of ``helper service'' in proposed Sec.
218.125(a) but additionally clarifies that it does not matter whether
the train that the ``helper service operation'' is assisting is on
``difficult terrain.'' \312\ ``Lite locomotive train operation'' is
defined as meaning the train is a locomotive or a consist of
locomotives not attached to any piece of equipment or attached only to
a caboose. This definition is the same as FRA proposed in Sec.
218.125(b) of the NPRM within the requirements for the ``lite
locomotive'' exception.
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\312\ The statement in proposed Sec. 218.125(a) that ``helper
service includes traveling to or from a location where assistance is
provided'' is located in Sec. 218.129(a)(4) of this final rule.
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The final rule includes a definition for ``locomotive, MU'' to
refer to a type of locomotive that can transport passengers. An MU
locomotive is a general term that includes a diesel- or electric-
multiple-unit (DMU or EMU) operation, as proposed in the NPRM, and
would also include other self-propelled rail rolling equipment
regardless of the power source. The NPRM only used the terms DMU or
EMU, which would not be as inclusive, as it would only cover diesel or
electric power sources, while steam, liquified natural gas, hydrogen,
or other power sources may be available.
Based on FRA's review of the comments, there appears to be some
confusion about what FRA meant by a one-person train crew operation. To
remove any ambiguity, in this final rule, FRA is adding two new
definitions. First, FRA is adding a definition for the term ``one-
person train crew.'' This term is intended to clarify that, for
purposes of this final rule, there are two scenarios in which a
railroad will be considered as operating with a one-person train crew.
In the first scenario, there is only one person assigned to the train
as the train crew and that single, assigned person will be performing
the duties of both the locomotive engineer and the conductor.
Accordingly, in this scenario, the sole person assigned as the train
crew will need to be certified as both a locomotive engineer and a
conductor so that person can perform the duties of both of those roles;
this scenario would also include alternative arrangements in which
other rail employees that are not assigned train crewmembers
temporarily assist the train.
In the second scenario, two or more persons are assigned to a train
as the train's crew, but only the locomotive engineer travels on the
train when the train is moving because the remainder of the train crew,
that would include the conductor if the locomotive engineer is not the
assigned conductor, is assigned to intermittently assist the train's
movements. In this second scenario, the remainder of the train crew is
typically traveling in a motor vehicle and will be required to assist
the train when switching cars in a yard or at a customer's facility, as
well as assist the train when necessary to protect a crossing with flag
protection, throw a switch or derail, or perform other duties
associated with the train assigned. This second scenario clarifies that
when only one crewmember is traveling with the train, even if there are
additional crewmembers intermittently assisting and assigned to the
train, the train will be considered a one-person train crew operation.
The second definition FRA is adding in this final rule is a
definition for the term ``one-person train crewmember.'' This final
rule defines ``one-person train crewmember'' to mean, in the context of
a one-person train crew operation, the single assigned person who is
responsible for performing the duty of the locomotive engineer and will
be traveling in the operating cab of the controlling locomotive when
the train is moving. If there is a second crewmember traveling in a
motor vehicle, that second crewmember would not be the one-person train
crewmember.
This final rule's definition for ``risk assessment'' differs
slightly from the proposed definition in that the NPRM, which referred
to operations with ``fewer than two crewmembers.'' FRA has not adopted
that phrasing in the final rule. Instead, this final rule refers to
risk assessments related to ``one-person train crews,'' as this rule
applies to one-person train crew operations and
[[Page 25088]]
does not apply to autonomous operations.
This final rule defines ``switching service or operation'' in the
same way as the proposed definition did for ``switching service.'' The
change in the term's name will harmonize it with its use throughout
part 218. ``Switching service'' and ``switching operation'' are used
interchangeably throughout part 218 and in this final rule.
In this final rule, FRA has added a definition for ``unit freight
train.'' As used in this final rule, ``unit freight train'' means a
freight train composed of cars carrying a single type of commodity. In
the NPRM, FRA proposed an exception for a ``mine load out, plant
dumping, or similar operation'' that included a definition of a unit
freight train. FRA moved the proposed ``unit freight train'' definition
into the definitions section, and the ``mine load out, plant dumping,
or similar operation'' exception that was proposed in Sec. 218.129(a)
is in Sec. 218.127(a) of this final rule.
Section 218.99 Shoving or Pushing Movements
This final rule amends this section to remove ambiguity and
harmonize three current requirements with terms that that will apply to
the entirety of part 218.
Paragraph (a)(2) is amended to change ``switching activities'' to
``switching service activities,'' which will thereby invoke the
definition added in Sec. 218.5 for ``switching service or operation.''
The amendment will not change the meaning of the section but may help
clarify what is meant by switching service as that term will now be
defined.
Paragraph (b)(3) will be amended to change ``a lite locomotive
consist'' to ``a lite locomotive train with two or more locomotives
that is operated from a single control stand.'' This revision will
allow FRA to remove the definition of ``lite locomotive consist'' in
Sec. 218.93, as the term is not used elsewhere in part 218. This
revision will also allow FRA to use the term ``lite locomotive train,''
which is defined in Sec. 218.5. The amendment will not change the
meaning of the section.
Paragraph (e)(2) will be amended to remove the term ``manned helper
locomotives'' and replace it with ``helper service train operation''
which is defined in Sec. 218.5. A helper service train operation has
the same meaning as helper locomotives with a train crew. Thus, rather
than using different terminology that has the same meaning within part
218, this final rule will amend this paragraph.
Section 218.121 Purpose and Scope
Generally, the purpose and scope of this final rule remain the same
as proposed--to ensure trains are adequately staffed and have
appropriate safeguards in place for safe train operations under all
operating conditions. Accordingly, FRA is adopting paragraph (a) as
proposed, making minor editorial revisions to paragraph (b), and adding
a new paragraph (c) which essentially moves the proposed exception for
remote control operations, previously found in proposed Sec.
218.129(c)(3), to a new paragraph (c) of this section. FRA is modifying
paragraph (b) of this section to replace the references to ``train crew
staffs'' and ``crew staffing,'' with the terms ``train crews'' and
``crew size'' respectively. These revisions are for clarity and
readability only. No substantive change is intended. Consistent with
the NPRM, paragraph (b) further notes that: (1) the minimum crew size
requirements in the final rule reflect the potential safety risks posed
to railroad employees, the public, and the environment; (2) the final
rule prescribes minimum requirements for the location of a second train
crewmember on a moving train and promotes safe and effective teamwork;
and (3) railroads may prescribe additional or more stringent
requirements in operating rules, timetables, timetable special
instructions, and other instructions.
Paragraph (c) of the final rule has been added based on comments
received. In the discussion of comments and conclusions, FRA explained
commenters' concerns with the exception for remote control operations
as proposed in Sec. 218.129(c)(3). For the reasons explained in FRA's
response to those comments, FRA has not adopted the exception; instead,
FRA has added paragraph (c) to clarify that the requirements in this
subpart do not apply to a train operation controlled by a remote
control operator as defined in Sec. 229.5(a) of this chapter.
Section 218.123 General Train Crew Staffing Requirements
As proposed in the NPRM, this section sets forth the final rule's
general requirement that trains be operated with a minimum of two
crewmembers. This final rule substantially adopts paragraphs (a), (b),
and (d) as proposed, but revises paragraph (c) to allow certain
exceptions to the requirement for two crewmembers on trains
transporting certain types and quantities of hazardous materials.
Consistent with the edits made throughout this final rule, FRA is
revising the reference to ``train crew staffing'' in the section
heading and the heading for paragraph (b) to ``train crew size
safety.'' These changes do not change the meaning and thus the analysis
provided in the NPRM is applicable for paragraphs (a) and (b).
In the NPRM, paragraph (c) proposed to mandate, without exception
or special approval eligibility, two crewmembers be assigned to trains
transporting 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. As explained in the discussion
of comments and conclusions above, however, FRA determined that certain
exceptions, including special approval eligibility, could be permitted
while still allowing for safe operations. Those exceptions can be found
in Sec. 218.129(a)(1) and Sec. 218.131(a)(2). The final rule retains
the two-person requirements for trains transporting the same types and
quantities of hazardous materials as was proposed in the NPRM when
these exceptions do not apply. The final rule's requirements include a
specific reference to a two-person train crew requirement for each
high-hazard flammable train (HHFT) as defined in Sec. 171.8 of this
title when an exception does not apply. The requirement in paragraph
(c)(2) of the final rule would cover HHFT as currently defined by
PHMSA, and the requirement in (c)(1) will ensure HHFT will continue to
be covered if PHMSA amends its current HHFT definition.
Section 218.125 Specific Passenger and Tourist Train Operation
Exceptions to Crew Size Safety Requirements
This section, proposed as Sec. 218.127 in the NPRM, addresses
passenger and tourist train operations that are not subject to the
rule's crew size safety requirements. Although this final rule adopts,
in Sec. 218.125, the general provisions of proposed Sec. 218.127, FRA
is making editorial revisions to the section heading and paragraph (a)
along with adding a new paragraph (e) to this section addressing
certain existing one-person train crew operations.
Specifically, consistent with the edits made throughout this final
rule, FRA has revised the ``crew staffing'' reference in the section
heading to ``crew size safety.'' FRA is also rephrasing paragraph (a)
for ease of reading. As proposed, paragraph (a) identified passenger
and tourist operations that would ``not require'' a minimum of two
crewmembers. In this final rule, FRA is rephrasing paragraph (a) to
affirmatively state that certain tourist and passenger
[[Page 25089]]
train operations ``may be'' operated with a one-person train crew. This
change from the proposed rule is intended to remove any ambiguity
regarding the type of operations that will be excepted through this
section and does not change the section's meaning from that proposed.
Thus, the analysis provided in the NPRM is applicable for paragraphs
(a) through (d) of this section.\313\
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\313\ 87 FR 45590-91.
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A substantive change from the NPRM is the addition of paragraph
(e), which provides an exception for existing passenger train
operations with one-person train crews for which FRA has already
approved the operation's required passenger train emergency
preparedness plan under part 239.
Section 218.127 Specific Freight Train Exceptions to Crew Size Safety
Requirements
Proposed as Sec. 218.129 in the NPRM, this section addresses
freight train exceptions to crew size safety requirements. Consistent
with edits made elsewhere in this final rule, FRA has revised the
section heading to refer to ``crew size safety,'' as opposed to ``crew
staffing.'' FRA is also adding an introductory sentence to the section
and moving the substance of proposed paragraph (b) to Sec. 218.129.
As in the NPRM, paragraph (a) lists the requirements for an
exception for a unit freight train when it is loading or unloading as
part of a mine load-out, plant dumping, or similar operation. In this
final rule, FRA is adopting paragraph (a) essentially as proposed, with
the exception of removing the definition of ``unit freight train'' from
the paragraph. As discussed above, in this final rule, the definition
for that term is found in Sec. 218.5. Further, because the proposed
requirements for the ``mine load out'' exception in paragraph (a) were
originally in one long paragraph, this final rule places equivalent
requirements in a numbered list for ease of use (paragraphs (a)(1)-
(5)). This formatting change does not affect the paragraph's meaning
except for paragraph (a)(4), which does not contain the proposed
requirement that a one-person train crewmember during mine load out,
plant dumping, or similar operations must be prohibited from performing
any duties that would require a second crewmember, as it instead
specifies the duties that will be prohibited. Although the NPRM's
analysis provided some examples of prohibited duties, FRA decided that
greater clarity could be achieved by specifying the examples in the
regulatory text, instead of mandating the more broadly stated proposed
requirement. The prohibited duties are operation of a hand-operated
switch, filling out paperwork, or calling out signal indications during
the loading or unloading process. Otherwise, the analysis provided in
the NPRM is applicable for this paragraph.\314\
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\314\ 87 FR 45591-92.
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FRA is not adopting paragraph (b) as proposed. Instead, FRA is
reserving paragraph (b) of this section for future use and, as
discussed in the analysis of Sec. 218.129 below, has included some of
the requirements and exceptions from proposed paragraph (b) in Sec.
218.129.
Section 218.129 Conditional Exceptions Based on Compliance Dates for
Class II and III Legacy Freight Train Operations, Certain Other Class
II and III Freight Railroad Train Operations, Work Train Operations,
Helper Service Train Operations, and Lite Locomotive Train Operations
Staffed With a One-Person Train Crew
This section of the final rule consolidates various proposed
requirements and exceptions to the two-person train crew mandate and,
therefore, includes many of the same or similar requirements to those
proposed in Sec. Sec. 218.125, 218.129, and 218.131 of the NPRM.
Consolidating these exceptions and requirements in this section makes
the rule more concise, eliminating the need to repeat certain
requirements shared by each of the exceptions as it did in the NPRM.
However, because there were changes to the requirements for some of the
proposed exceptions, FRA is not relying on the analysis in the NPRM for
this section.
Paragraph (a) provides that a railroad is not required to comply
with the requirements in this section for each one-person train crew
operation that is governed by an exception in another section of this
subpart. Thus, this section does not apply to the specific passenger
and tourist train operation exceptions in Sec. 218.125 or the specific
freight train exceptions in Sec. 218.127. The train operation
exceptions described in this section that provide for a one-person
train crew are listed in paragraph (a) along with the requirements that
will apply depending on the exception, as discussed further below.
The purpose of paragraph (a)(1), which is based on the exception
proposed in Sec. 218.131 of the NPRM, is to provide a way for each
Class II and III railroad to continue a legacy one-person train crew
freight operation after the effective date of this final rule, while
ensuring each railroad with such a legacy operation will have
sufficient time to add any necessary, minimum safeguards to protect
rail employees, the public, or the environment. FRA is defining a
legacy one-person train crew freight operation as one that a railroad
established at least two years before the effective date of this final
rule. Pursuant to this exception, a legacy operation may continue
transporting hazardous materials of the types or quantities specified
in Sec. 218.123(c) if the railroad can show it had such an established
operation for at least two years before the effective date of the final
rule. Although this notification requirement is not an approval
process, compliance with the requirement is mandatory to use the legacy
one-person train crew freight operation exception. In meeting the
written notice requirements in paragraph (b) of this section, the
railroad is required to provide the evidence necessary to establish the
existence for at least two years of such a legacy one-person train crew
freight operation. For example, in paragraph (b)(2), the final rule
requires that the written notice include business records or other
written documents supporting the legacy operation was established for
at least two years before the rule's effective date. For a railroad to
have an operation ``established at least two years before,'' FRA means
that during that two-year period, an operation must have occurred at
regular intervals under a set of defined procedures or conditions. It
will be acceptable if a railroad's evidence for the one-person train
crew operation shows that the railroad occasionally substituted a
multi-person train crew; yet, FRA expects the evidence will show the
railroad typically used the one-person train crew where circumstances
allowed for the one-person operation. If a railroad did not conduct
one-person train crew operations regularly, even where circumstances
allowed, the existence of a legacy operation will likely not be
considered established, and the railroad will need to consider whether
another exception will be applicable or whether it will request special
approval. Similarly, if a railroad cannot establish that its legacy
one-person train crew freight operation was transporting hazardous
materials of the types or quantities specified in Sec. 218.123(c), it
will not be permitted to initiate such an operation under this
exception and must consider whether another exception will be
applicable or whether it will request special approval.
[[Page 25090]]
Paragraph (a)(1)(i) prohibits a Class II or III railroad from
continuing a legacy one-person train crew freight operation beyond 90
days after the effective date of this final rule if the railroad fails
to provide FRA with written notice meeting the requirements in
paragraph (b). Hence, each railroad that established a legacy one-
person train crew freight operation for at least two years before the
effective date of this final rule would need to decide whether it wants
to continue the operation beyond 90 days after the effective date of
this final rule; if it does, the railroad will be required to provide
FRA with written notice meeting the requirements in paragraph (b),
unless the operation is covered under one of the exceptions in
Sec. Sec. 218.125 or 218.127.
For those legacy one-person train crew freight operations that
provide FRA with written notice meeting the requirements in paragraph
(b), the railroad will be permitted to continue the operation beyond 90
days after the effective date of the final rule if the railroad also
complies with the additional requirements in paragraphs (c)(1) and (2)
of this section. For these legacy one-person train crew freight
operations, FRA will permit a railroad to phase in the additional
requirements in paragraph (c). A railroad with such a legacy operation
that does not implement all the additional requirements by each
deadline will not be permitted to continue the operation. Further, a
railroad that allows its legacy operation to lapse at one of the
deadlines will not be permitted to utilize this exception if it wants
to restore that legacy operation at a later date.
Paragraph (a)(2) will permit each Class II and III freight railroad
an opportunity to initiate a train operation with a one-person crew
under certain conditions. The operations under this exception will be
limited to a train that will not be transporting hazardous materials of
the types or quantities specified in Sec. 218.123(c). Under paragraph
(a)(2)(i), this exception will require that a railroad, before
commencing the operation, provide FRA with written notice that contains
the information required by paragraph (b) of this section. Under
paragraph (a)(2)(ii), this exception will require a railroad to comply
with the additional requirements in paragraph (c) of this section
without a phase-in of compliance dates for those additional
requirements. FRA determined that the initiation of a new one-person
train crew operation without an FRA review process should, at a
minimum, have already implemented the additional requirements in
paragraph (c) of this section, which will allow the railroad to begin
the operation with significant safeguards already in place. In
contrast, the other exceptions in paragraph (a) are largely directed
for existing operations that are already in wide use and, thus,
requiring immediate implementation upon the effective date of the final
rule for those other exceptions would have the potential to be
disruptive to normal railroad operations.
Thus, to meet the requirements of this exception in paragraph
(a)(2), a railroad's one-person train crew operation will be required
to use a locomotive equipped with alerters and comply with any required
operating rules in paragraph (c) from the first day these operations
are initiated. While this exception is based on the small railroad
operations exception in proposed Sec. 218.129(c)(1) for a freight
railroad with fewer than 400,000 total employee work hours annually,
the exception in this final rule has been expanded to include more
railroads, and it does not include the speed, grade, and train length
requirements proposed in the NPRM.
Paragraph (a)(3), which is based on proposed Sec. 218.129(c)(2),
specifies the requirements for a work train exception to the two-person
train crew mandate. The exception applies to work train operations
regardless of whether they are existing or new operations. Each
railroad may use a work train with a one-person train crew, including
when a work train is traveling to or from a work site, as long as the
railroad complies with the additional requirements in paragraph (c)
according to the implementation schedule specified. Paragraph (a)(3)(i)
limits the work train operation exception to non-revenue service trains
that do not exceed 4,000 trailing tons and are used for the
administration and upkeep service of the railroad. This work train
requirement, which is the same as the proposed requirement, is based on
the definition used in 49 CFR 232.407(a)(4) concerning requiring end-
of-train devices; and, as in that rule, the 4,000 trailing tons or less
threshold will provide railroads operational flexibility, especially
smaller railroads.\315\ 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, because they operate under
their own set of safety rules, typically at low speeds or restricted
speed, they pose fewer risks than long-haul trains. They often travel
at restricted speed, which is a slow speed at which the locomotive
engineer must be prepared to stop before colliding with on-track
equipment or running through misaligned switches. For one-person train
crew work train operations, FRA will permit a railroad to phase in the
additional requirements in paragraph (c) of this section based on the
implementation schedule provided.
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\315\ 62 FR 278, 282 (Jan. 2, 1997).
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Paragraph (a)(4), which is based on proposed Sec. 218.125(a),
specifies the requirements for a helper service train operation
exception to the two-person train crew mandate. The exception applies
to helper service train operations regardless of whether they are
existing or new operations. Each railroad will be able to consider
using a helper service train with a one-person train crew, including
when a helper service train is traveling to or from a work site, as
long as certain requirements are met. The definition for a ``helper
service train operation'' in the definitions section of this final
rule, Sec. 218.5, means the train is a locomotive or group of
locomotives being used to assist another train that has incurred
mechanical failure or lacks sufficient tractive force necessary to
traverse a particular section of track due to train tonnage and the
grade of the 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, and FRA does not expect this type of
operation will pose a significant risk to railroad employees, the
public, or the environment. As with each of these exceptions, a
railroad may decide that a certain helper service train operation is
complex and that more than one crewmember should be assigned to the
operation. Moreover, FRA notes that, while the helper locomotive itself
may be operated with a one-person train crew, the train it is helping
may be required to have a two-person crew, and the fact that a helper
locomotive is assisting would not impact the number of crewmembers
required for the train. For one-person train crew helper service
operations, FRA will permit a railroad to phase in the additional
requirements in paragraph (c) according to the implementation schedule
specified.
Paragraph (a)(5), which is based on proposed Sec. 218.125(b),
provides an exception from the two-person crew requirement for an
existing or new lite locomotive train operation. Similar to the safety
rationale for the helper service exception, when a locomotive or a
consist of locomotives is not attached to any piece of equipment, or
attached only to a caboose, there is not a
[[Page 25091]]
significant risk to railroad employees, the public, or the environment.
Lite locomotive train operations are mainly used to move locomotives to
a location where the locomotives can 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
definition of ``lite locomotive train operation'' is consistent with
the definition of ``lite locomotive'' in 49 CFR 229.5 of FRA's Railroad
Locomotive Safety Standards. However, the exception for a lite
locomotive train operation in this final rule includes a further
clarification that ``excludes an MU locomotive operation.'' The reason
for this additional clarification is that an MU locomotive is both a
locomotive and a car that can transport passengers, and this exception
will not cover a passenger train operation containing either single or
multiple MU locomotives. FRA has further clarified the MU locomotive
exceptions for passenger trains in Sec. 218.125(c). For one-person
train crew lite locomotive train operations, FRA permits a railroad to
phase in the additional requirements in paragraph (c) according to the
implementation schedule specified.
Paragraph (b) contains a list of the minimum written notice
requirements for those operational exceptions in paragraph (a) that
require it, i.e., the exceptions for a Class II or III railroad's
legacy one-person train crew freight operation and for the Class II or
III freight railroad that wants to initiate a train operation staffed
with a one-person train crew that is not transporting hazardous
materials of the types or quantities specified in Sec. 218.123(c).
This notice requirement is based on the proposed special approval
petition requirements in the NPRM for requesting either the continuance
of a legacy one-person train operation in proposed Sec. 218.131(b) or
for requesting the initiation of train operations with fewer than two
crewmembers in proposed Sec. 218.133(b). The written notice
requirements in this final rule will require each railroad that will be
using one of these exceptions to provide FRA, by email, with largely
the same information as the NPRM proposed for these operations, while
eliminating the proposed special approval process. While the written
notice requirements, in lieu of a special approval requirement that
includes a risk assessment, will substantially lessen a railroad's
burden when compared to the NPRM's proposed requirements for a special
approval, FRA notes that, for compliance, a railroad's written notice
must provide complete and accurate information.
Paragraph (b)(1) requires information about the primary person at
the railroad who can be contacted about the petition for a special
approval. The remaining 13 numbered items listed under paragraph (b)
require 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.
For a railroad required to meet the written notice requirements,
paragraph (b)(2) requires the railroad to identify the location of the
operation with as much specificity as can be provided as to the
characteristics of the geographic area through which the trains will
operate (e.g., population density and proximity to environmentally
sensitive areas), the terrain over which the trains will be operated,
industries or communities served, and track segments, territories,
divisions, or subdivisions operated over. In addition, each Class II or
III railroad with a legacy one-person train crew freight operation will
also need to include business records or other written documents as
part of the written notice submission to show that the legacy operation
was established for at least the two years before the effective date of
this final rule. For example, documentation could show that a railroad
established a legacy one-person train crew freight operation running 3
days per week for 5 years without incident. That kind of information
would show the extent of the operation and the safety record. Further,
such a legacy operation must identify the current parameters of the
operation's location and should not expand the parameters based on
plans for future expansion, as doing so would be initiating a new
operation. FRA expects that a Class III railroad is likely to describe
its legacy operation as covering the entire railroad but also expects
some short lines to describe an operation covering only a portion of
its railroad. In comparison, FRA would expect a larger Class II
regional railroad to describe an operation that covers only a portion
of the railroad as it might find only some aspects of their entire
operation were conducive to one-person train crews. A railroad that
cannot provide records kept in the normal course of business to support
a legacy operation can consider submitting affidavits from the
railroad's employees, supervisors or managers, or others, in support of
the existence and extent of the one-person train crew operation.
Paragraphs (b)(3) through (7) and (10) are sufficiently descriptive
that further analysis is generally unnecessary here. However, some
information that was not proposed in the NPRM has been added to develop
more fully the overall description of the one-person train crew
operation. Notably, paragraph (b)(3) specifies that the description of
track, signal and train control systems, and devices and appliances
must also include a list of all active and passive highway-rail grade
crossings, including crossing numbers. The addition of this list should
be easy to provide as it should be available to train crews in
timetables, track charts, or other easily reproduced documents. For
paragraph (b)(7), in addition to any maximum number of cars and tonnage
set for the operation, FRA included a requirement to provide the number
and frequency of the trains involved to help fill out the description
of the operation from both a historical perspective and a frequency of
risk view. The information required in the written notice will permit
FRA to identify these operations and evaluate how well each railroad
has addressed the hazards and risk of the operation.
Paragraph (b)(8) will require a railroad to state in its written
notice whether the one-person train crew operation hauls hazardous
materials of any quantity or type, and the approximate percentage of
carload traffic in the one-person train crew operation that involves
hazardous materials. A one-person train crew operation that does not
haul hazardous materials would present less risk than one that does,
all else being equal. FRA will require a railroad to approximate the
percentage of carload traffic in the one-person train crew operation
that is hazardous materials in its written notice, as each railroad
should be considering it as a factor in its business decision to deploy
such an operation under the exceptions to a minimum two-person train
crew mandate. Considering other issues related to the operation's size
and scope and understanding the quantity and type of hazardous
materials hauled will help FRA evaluate the risks posed by an excepted
operation that is required to file written notice.
Paragraph (b)(9) will require each railroad that must file written
notice to include information about whether the railroad places any
limitations 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
[[Page 25092]]
possible that a railroad will establish a fatigue mitigation plan
voluntarily and other railroads will establish such a plan because a
Federal requirement specifies that they do so.\316\ Although this final
rule does not require a fatigue mitigation plan, the written notice
requirement will allow FRA to consider this additional information when
evaluating how each railroad will implement strategies for reducing
railroad worker fatigue, such as improving the predictability of
schedules, considering the time of day the railroad permits one-person
train crews to operate, and educating workers about fatigue and sleep
disorders. This information may also permit FRA to revisit these types
of concerns and compare mitigating actions across the industry.
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\316\ 87 FR 35660 (June 13, 2022) (publishing a final rule on
``Fatigue Risk Management Programs for Certain Passenger and Freight
Railroads'' effective July 13, 2022, and codified in 49 CFR part
270, subpart E and 49 CFR part 271, subpart G).
---------------------------------------------------------------------------
Paragraph (b)(11) will 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 or incidents. 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 is
understood and can be effectively communicated to FRA.
Paragraph (b)(12) will require that the railroad's mandatory notice
include 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. Receiving this information
will assist FRA in evaluating the safeguards each railroad has
voluntarily implemented and to evaluate future effectiveness of these
types of rules or practices.
Paragraph (b)(13) will require each Class II or III railroad,
seeking to continue a legacy freight train operation staffed with a
one-person train crew, to include with its written notice five (5)
years of the accident and incident data required by part 225 of this
chapter, for the operation identified and that the railroad can
attribute to a one-person train crew operation. If the operation was
established between two to five years before the effective date of the
final rule, then the railroad will provide the accident and incident
data for the operation from the date the operation was established.
Although current regulations require the railroad to report certain
``accidents/incidents'' \317\ to FRA, FRA cannot accurately determine
from that reported information which, if any, reportable accidents/
incidents are attributable to a railroad's one-person train crew
operation. FRA expects that each railroad will have more information
about its own accidents/incidents and can identify the data that
applies to its legacy operation. The railroad must narrow the requested
data to the location of the legacy operation that the railroad has
identified in its written notice and only send additional accident/
incident data that pertains to the legacy operation subject to the
railroad's written notice.
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\317\ 49 CFR 225.5 (defining four different types of accidents
or incidents).
---------------------------------------------------------------------------
Paragraph (b)(14) is a catch-all provision that permits a railroad
filing a written notice to submit any other information describing
protections that are or will be implemented to support the safety of
the one-person train crew operation that the railroad wants to share
with FRA to justify the safety of the operation. FRA expects that some
railroads would have completed a risk assessment, a safety analysis, or
compiled a safety data report before implementing a one-person train
crew operation and that the railroad will share that information to
show FRA how the hazards were, and will continue to be, mitigated, so
that operation is as safe or safer than a two-person minimum train crew
operation.
Paragraph (c) contains a list of requirements that apply to all
five exceptions described in paragraph (a). FRA encourages each
railroad to implement these additional requirements as quickly as
possible, consistent with the implementation schedule in this final
rule that phases in requirements for some of the operational exceptions
to the two-person train crew mandate. Compliance with the adoption of
operating rules that ensure mitigation measures for certain safety-
critical situations specified, establish radio or wireless
communications with a one-person train crew that is as safe or safer
than a two-person train crew for train operations and crewmember
safety, and require that a one-person train crew's controlling
locomotive is equipped with a functioning and tested alerter will
improve the immediate safety of the operation. The establishment of an
implementation schedule for the four exceptions covering some existing
operations will allow these operations time to, as necessary, install
alerters, adopt operating rules, and/or hire and qualify additional
train crewmembers.
Paragraph (c) permits FRA to enforce a violation of an operating
rule required under this paragraph in the same way as if the person
violated the requirements of this section directly. The paragraph
clarifies that a ``person'' will not be limited to a railroad employee,
and may include each railroad, railroad officer, or supervisor.
Contractors that act in any of those capacities will also be considered
a person subject to FRA's jurisdiction.
Paragraphs (c)(1) and (2) require each railroad with an applicable
one-person train crew operation to adopt and comply with operating
rules that cover certain safety concerns. These additional requirements
for the adoption of minimum operating rules are mostly based on the
proposed requirements in the NPRM for requesting either the continuance
of a legacy one-person train operation in proposed Sec. 218.131(b)(12)
and (13) or the initiation of train operations with fewer than two
crewmembers in proposed Sec. 218.133(b)(12) and (13).\318\
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\318\ 87 FR at 45617-19 (citing proposed exceptions under
Sec. Sec. 218.127 through 218.131).
---------------------------------------------------------------------------
Similar to the proposal in the NPRM, paragraph (c)(1)(i) requires a
railroad with a one-person train crew operation to adopt and comply
with operating rules that address: (A) a release of any hazardous
material; (B) any accident/incident regardless of whether it is
reportable to FRA under part 225; (C) a request from an emergency
responder to unblock a highway-rail grade crossing in response to a
potentially life-threatening situation; (D) a train or on-track
equipment derailment; (E) a disabled train; and (F) an illness, injury,
or other incapacitation of the one-person train crewmember. This
requirement will ensure that each railroad with a one-person train crew
operation has operating rules specifying how the railroad will respond
to these types of events and therefore will be prepared to take
mitigating measures knowing that a second crewmember will not be
traveling on the train and available to assist in a response. Although
similar to the proposal in the NPRM, the various operating rule
requirements that applied only to the proposed continuance of legacy
train operations staffed with a one-person crew or for the initiation
of train operations staffed with fewer than two crewmembers raise
broadly applicable safety concerns for almost all one-person train crew
operations; therefore, FRA determined these requirements are necessary
for all the exceptions permitted by this section, not only the ones
similar to the requirements as proposed in the NPRM.
[[Page 25093]]
The requirement that the operating rule address a disabled train
does not depend on the cause, which could include a track washout or
other severe weather event, mechanical breakdown, accident, or other
circumstances that prevent the train from moving. In some
circumstances, a significant operational issue could disable a one-
person crew's train (e.g., if the one crewmember's hours of service
expired, and the railroad has not adequately prepared to retrieve and
replace the crewmember).\319\ A one-person train crew could also be
considered disabled from an operational view if the railroad assigns a
one-person crewmember that is unqualified to operate over the territory
assigned and the crewmember is not provided with a qualified pilot. In
that circumstance, the one-person train crewmember might not be able to
move the train or might be operationally limited in how the train can
be moved thereby equating to a disabled train situation caused by
physical breakdowns in equipment, track, or signal systems. A railroad
would not have to adopt or comply with an operating rule to address
operational delays typical of normal railroad operations, such as one
train waiting in a siding for another to pass, as that operational
activity would not be considered disabling the train; FRA expects that
each railroad is trying to optimize its performance and would avoid
unnecessary operational delays whenever possible.
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\319\ 87 FR at 45597.
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In addition to addressing disabled trains, this final rule requires
that the railroad's operating rule address, at a minimum, several other
types of situations. For instance, the operating rule must address an
accidental or non-accidental release of any hazardous material. This
means that any release of a hazardous material must be covered whether
caused by a train collision or a non-accidental release (e.g., a
release caused by an offeror not properly preparing a shipment for
transportation). All derailments, accidents, and incidents must also be
addressed by operating rule. In addition, a railroad's operating rule
must also address requests from an emergency responder to unblock a
highway-rail grade crossing in response to a potentially life-
threatening situation.
Further, as required by paragraph (c)(1)(i)(F), the operating rule
will need to include mitigation measures to ensure the safety of the
one-person train crewmember will be addressed in case of illness,
injury, or another incapacitation. The communication requirements
specified in paragraph (c)(2), and discussed below, will help each
railroad with a one-person train crew operation to keep in close
communication with a one-person train crewmember and, under this
requirement, the railroad will need to specify who will act and how,
and plan out how fast the reaction times will be to ensure the
crewmember's safety.
Paragraph (c)(1)(i) lists the types of situations that each
affected railroad must address. The situations listed could involve
responses requiring protocols for mitigation measures because each
situation may include potential harm to rail employees, the public, or
the environment. It is fundamental to rail safety that each railroad
have an unambiguous operating rule addressing such mitigation measures
and that by doing so the railroad will demonstrate that it will be
prepared to respond as quickly as it would if the train were crewed
with a two-person crew. All of the situations listed are foreseeable
events on a railroad (and a railroad should in any case seek to
prevent, and mitigate the impact of, such situations). All railroad
employees and supervisors must have clearly described roles and
responsibilities, and all logistics involved and expected response
times must be clearly described. 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.
Paragraph (c)(2) requires that each railroad have an operating rule
to ensure radio or wireless communications with a one-person train crew
can provide a level of safety for train operations and crewmember
safety that is as safe or safer than a two-person train crew. The
paragraph specifies that the required operating rule must cover four
safety concerns: (i) the one-person train crew must have a working
radio or working wireless communications on the controlling locomotive
appropriate for railroad communications to cover those operations, even
if the railroad is not otherwise required to supply them; \320\ (ii)
the train dispatcher or operator must confirm with the one-person train
crewmember that the train is stopped before conveying a mandatory
directive; (iii) whenever a one-person train crewmember can anticipate
that radio or wireless communication will be lost, e.g., when entering
a tunnel, unless a railroad will monitor the train's real-time
progress, the crewmember must contact another person who would be
expected to act if communication is lost longer than what is specified
by the operating rule; \321\ and (4) the railroad must establish
procedures for when to initiate search-and-rescue operations if all
radio or wireless communication is lost with a one-person train
crewmember because the safety of the one-person train crewmember is
always a fundamental safety concern that a railroad can plan for and
address in an operating rule.
---------------------------------------------------------------------------
\320\ Although not a requirement, FRA encourages each railroad
to provide a redundant electronic device when possible, as FRA's
requirement is only a safety minimum.
\321\ The person who would receive such a communication would
typically be a dispatcher. However, for railroads that do not use
dispatchers, the person might be a supervisor or manager, an
intermittently assisting crewmember, or another railroad employee.
---------------------------------------------------------------------------
Paragraph (c)(3) requires each railroad with an applicable one-
person train crew operation to equip the operation's controlling
locomotive with a functioning alerter that is operating as intended and
requires that a one-person train crewmember test the alerter to confirm
it is working before departure from each initial terminal, or prior to
being coupled as the lead locomotive in a locomotive consist. This
requirement is therefore consistent with requirements in Sec. 229.140
of this chapter for ensuring that an alerter is functioning and
operating as intended. Class I and II railroads that generally have
newer locomotives, placed into service on or after June 10, 2013, or
permit the controlling locomotives to operate at speeds in excess of 25
mph, will already have locomotives with installed alerters that comply
with FRA's requirements; thus, the issue of adding an alerter and
operating rules that address the safety of that alerter will largely be
an issue for Class III railroads whose locomotives may lack such an
alerter or have an older style of alerter installed.\322\ That is, FRA
is aware that some Class II and III freight railroads have alerters
that do not meet, and are excepted from, these requirements. FRA also
recognizes it may be less expensive to install a basic alerter that
lacks all the functions of an alerter meeting FRA's current
requirements. To address this issue, FRA will allow each railroad that
limits the one-person train crew's operation to a maximum authorized
speed of 25 mph to use a locomotive alerter that does not otherwise
meet the requirements for alerters in Sec. 229.140, if the alerter has
a manual reset and will result in a penalty brake application that
brings the locomotive or train to a stop if not properly acknowledged.
Of course, if
[[Page 25094]]
the railroad is required to have an alerter that complies with Sec.
229.140, this provision does not provide an alternative to that
existing requirement.
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\322\ 49 CFR 229.140(a).
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Section 218.131 Special Approval Petition Requirements for Train
Operations Staffed With a One-Person Train Crew
This section, which is based on proposed Sec. 218.133, has a
modified section heading to clarify that the section's requirements
regarding the special approval petition will cover all special approval
petition requirements, thus including requirements for both the
initiation of new operations and potentially the continuation of some
existing operations that are not otherwise exempted; on this issue, the
proposed section was limited to the special approval petition
requirements for only the initiation of train operations staffed with
fewer than two crewmembers. Also, as changed in other sections, the
``fewer than two crewmembers'' phrase has been replaced for clarity
with ``a one-person train crew,'' as this final rule only addresses
one-person train crew operations and does not apply to autonomous
operations.
Similar to the NPRM, paragraph (a)(1) prohibits a railroad from
operating a train with a one-person train crew unless it receives
special approval for the operation as required by this subpart or the
operation complies with one of the exceptions specified in Sec. Sec.
218.125 through 218.129. This paragraph has an option that will allow a
railroad with an existing operation that is not otherwise excepted to
continue that operation in the interim period before it receives FRA's
decision on a special approval petition. For example, this option would
apply to a Class II or III railroad's existing one-person train crew
freight operation transporting hazardous materials of the types or
quantities specified in Sec. 218.123(c) that was initiated less than
two years before the effective date of the final rule (and therefore
does not qualify for the legacy operation exception in Sec.
218.129(a)(1)). As provided in paragraph (a)(2), there are three
conditions for continuing that operation during this interim period
before FRA decides on the special approval. First, the railroad must
submit a written notice by email to FRA no later than 15 days after the
effective date of the final rule. The written notice must include a
summary of the railroad's operation, which is not expected to be as
thorough as the description provided with the special approval petition
that will be filed later. The written notice must also include the
contact information for the railroad's primary point of contact on the
operation. Second, FRA may identify existing safety hazards with any
aspect of the one-person train crew operation and will coordinate with
the railroad about such safety hazards that are required to be
corrected, could be readily mitigated, or otherwise should be
addressed. For example, if FRA finds that the operation is occurring
over track or with rolling equipment that does not meet existing
Federal standards, the railroad will need to coordinate with FRA on
remedial action to redress the problems and to provide assurances that
the railroad will prevent future occurrences. Similarly, although a
railroad will address safety hazards in the risk assessment submitted
as part of a special approval petition, FRA will examine the existing
operation for safety concerns to ensure such concerns are addressed to
protect the safety of the one-person train crewmember or the
communities that the trains pass through. Third, the railroad must
submit its special approval petition meeting all the requirements for
such a petition no later than 60 days after the effective date of the
final rule. This deadline is necessary so that the review and decision-
making process for these operations of less than two years can be
processed quickly. As a practical matter, during the interim 60-day
period from the effective date of the rule until the special approval
petition deadline, a railroad may consider changing its one-person
train crew operation to avoid having to submit a special approval
petition by adding a second crewmember or changing aspects of the
operation so that the operation otherwise complies with this final
rule; in such circumstances, the railroad would no longer need to avail
itself of this option. Because the final rule expressly permits a
railroad to continue the operation in accordance with the requirements
in this section ``pending FRA's decision on the railroad's special
approval petition,'' if FRA requires additional information or requests
modifications after receiving the petition, the railroad will have the
discretion to continue the operation until FRA issues a decision on the
petition.
As discussed in the response to comments above, paragraph (a)(3)
has been added to the final rule. Each freight railroad seeking to
either initiate or continue a train operation with a one-person train
crew that may transport hazardous materials of the types or quantities
specified in Sec. 218.123(c) is required to receive FRA's special
approval for the operation and to comply with the requirements in Sec.
218.129(c). The paragraph thus requires those operations to have
operating rules that address taking mitigation measures under specified
situations, operating rules addressing the communication and safety
concerns associated with a one-person train crew operation, and
operating rules requiring a one-person train crew's controlling
locomotive to be equipped with a functioning alerter and the testing of
that alerter to determine it is functioning, in addition to requiring a
special approval petition that includes a risk assessment.
Paragraph (a)(4) was originally proposed as Sec. 218.133(a)(2),
and the requirements are the same as proposed. Accordingly, the
analysis provided in the NPRM is applicable for this paragraph.\323\
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\323\ 87 FR 45597.
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Paragraph (b), which is based on proposed Sec. 218.133(b),
contains the minimum petition requirements for a railroad to request
FRA's special approval to initiate a train operation with a one-person
train crew that is not otherwise permitted by one of the exceptions.
FRA expects that a petition meeting these minimum requirements will
contain sufficient information for FRA to issue a decision. In the
NPRM, FRA stated that it would determine whether approving the petition
operation is ``consistent with railroad safety.'' In this final rule,
FRA will be determining whether approving the operation described in
the petition is ``as safe or safer'' than a two-person train crew
operation. The reason for changing the standard to ``as safe or safer''
is to coincide with the risk assessment that a railroad must include as
part of its petition. In the risk assessment, a railroad will compare
the risks associated with the one-person train crew operation to those
associated with the operation if it were performed by a two-person
train crew. Accordingly, FRA will approve a petition for a one-person
train crew operation only where the risk assessment shows that it will
be as safe or safer than a two-person train crew operation.
Where the requirements in paragraph (b) are substantively different
than proposed, this analysis will address those differences.\324\
Otherwise, because the changes from the proposed rule will not change
the paragraph's meaning, the
[[Page 25095]]
analysis provided in the NPRM is applicable for this final rule.\325\
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\324\ FRA notes that it did not adopt proposed paragraph Sec.
218.133(b)(14) in this final rule.
\325\ 87 FR 45597-98.
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Paragraph (b)(8) will require a railroad to state in its petition
for special approval whether the railroad is seeking approval to
transport hazardous materials of any quantity and type. The term
``hazardous materials'' is defined by PHMSA in 49 CFR 171.8. The final
rule differs from the NPRM in that it contains the additional
requirement that a railroad answer whether it is transporting hazardous
materials listed in Sec. 218.123(c), because those are the materials
identified as posing the greatest safety and security risks in
transportation.
Paragraph (b)(13) requires a railroad to submit with a special
approval petition a copy of a railroad operating rule that will apply
to the proposed train operation(s) with a one-person train crew, and
which complies with the requirements of Sec. 218.129(c)(1) to ensure
rail employees can take mitigation measures that provide a level of
safety that is as safe or safer than a two-person train crew operation
to address certain situations with the one-person train crew operation.
In the NPRM, FRA described a disabled-train/post-accident protocol,
which largely proposed the same requirement as in this final rule. The
final rule provides clarity to the types of situations that will be
required to be addressed in such an operating rule. The final rule also
will require the same operating rule for an exception to the two-person
train crew mandate under Sec. 218.129(c)(1) as it will for an
exception permitted by special approval under this section. As proposed
in the NPRM, the final rule will also permit a passenger train
operation, with an approved emergency preparedness plan under part 239,
to omit this requirement as duplicative.
Paragraph (c) did not change from the NPRM and provides railroads
notice that FRA may request any additional information, beyond what the
railroad provided in the petition.
Section 218.133 Risk Assessment Content and Procedures
This section, which was proposed as Sec. 218.135, contains the
minimum requirements for a railroad's risk assessment under this
subpart. As stated in the NPRM, 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. For this rule, a risk assessment is the
process of determining, either quantitatively or qualitatively, or
both, whether the level of risk associated with a proposed one-person
train operation, when mitigated, is as safe or safer than the same
operation operated with a two-person crew minimum.
In this final rule, FRA has modified the risk assessment process
and standard from the NPRM for several reasons described above in the
discussion of comments and conclusions and further summarized here. The
overall approach was to remove proposed requirements that might be
viewed as difficult to meet and to provide railroads with more
flexibility in adopting a risk assessment approach. One major
difference from the NPRM led FRA to revisit aspects of the proposed
quantitative risk-based hazard analysis and move it to appendix E,
where it has been identified as one risk assessment approach. Although
some commenters objected to the proposed version of this approach, FRA
is retaining the overall approach in the rule, so it is readily
available to those railroads who may want to apply an objective
approach that is already approved by FRA. Similarly, FRA is also
addressing the concerns raised relating to a quantitative assessment
that calculates a mean time to hazardous event, noting that not all
railroads may have the historical safety data to perform the
calculations required in the NPRM with the level of statistical
confidence. Addressing the issue of flexibility in adopting an
approach, the risk-based hazard analysis in the final rule provides for
a comparison, allowing for a qualitative approach as well as a
quantitative approach, including use of both approaches in the overall
analysis. These changes are consistent with the system safety program
and risk reduction program rules, which require a risk-based hazard
analysis as part of the risk-based hazard management program. Providing
for use of a similar form of analysis will help address concerns
regarding the complexity and burden of the risk assessment.
Paragraph (a) of this section sets the minimum standards for the
risk assessment's content and analysis requirements while paragraph (b)
allows a railroad to use alternative risk assessment methodologies and/
or procedures if approved by the Associate Administrator for Safety.
Paragraphs (a)(1) through (4) require a railroad's risk assessment
to contain: (1) a complete description of the proposed operating
environment, including a list and description of all functions, duties,
and tasks associated with the operation of a train as proposed,
performed by the one-person train crewmember, other railroad
employee(s), or equipment; (2) a description of the allocation of all
functions, duties, and tasks to the one-person train crewmember, other
railroad employee(s), or equipment; (3) a risk-based hazard analysis
for the proposed train operation's functions, duties and tasks that
will identify new hazards, changes to existing hazards and/or changes
to the risk of an existing hazard associated with the proposed train
operation, as compared to a two-person minimum train crew operation,
and then once mitigated, demonstrate that the proposed operation is as
safe or safer than a train operation with a two-person minimum train
crew; and (4) a mitigation plan that documents the design and
implementation timeline of the sustained mitigation strategies to
eliminate or reduce the overall risk to a level such that the one-
person train crew operation is as safe or safer than a two-person
minimum train crew operation considering mitigation design and human
factors, at a minimum.
Using the information gathered in response to paragraphs (a)(1) and
(2), paragraph (a)(3) requires a railroad to complete a risk-based
hazard analysis that involves multiple steps. The first step, under
paragraph (a)(3)(i), will be to identify any new hazards, changes to
existing hazards, and/or changes to the risk of an existing hazard
associated with the proposed one-person train operation, as compared a
two-person minimum train crew operation. 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. This hazard analysis must take account of
all aspects of the railroad's system, including at a minimum
infrastructure, equipment, technology, work schedules, mode of
operation, operating rules and practices, training and other areas
impacting railroad safety. As mentioned with regard to paragraph
(a)(1), the operating environment, as documented in the special
approval petition as required by Sec. 218.131(b), must also be
considered as part of the hazard analysis. Next, under paragraph
(a)(3)(ii), each risk associated with the new or changed hazard must be
evaluated, either qualitatively or
[[Page 25096]]
quantitatively, or both, in terms of the severity and likelihood of a
mishap. The third step, under paragraph (a)(3)(iii), will be to
identify mitigations that will be put in place to minimize or eliminate
any new or changed hazard or any change to the risk of a hazard, and
then recalculate in terms of severity and likelihood the risk of a
mishap. The fourth and final step, under paragraph (a)(3)(iv), will
require the railroad to provide a statement with supporting evidence
that the one-person train crew operation with a fully implemented
mitigation plan, is as safe or safer than a two-person minimum
operation.
The alternative standard in paragraph (b) has the same meaning as
the requirement proposed in Sec. 218.135(b), with the only change from
the proposal being that the term ``Associate Administrator'' is
clarified as the ``Associate Administrator for Safety.'' Thus, the
analysis for this paragraph in the NRPM applies the same.\326\
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\326\ 87 FR 45603.
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Section 218.135 Special Approval Procedure
Other than deleting some cross-references and updating the standard
for a petition approval (i.e., as safe or safer), this section is
unchanged from proposed Sec. 218.137. Paragraph (e) contains the same
requirements as in the proposed rule, except that the final rule
organized the requirements in a chronological order. Thus, the analysis
provided in the NPRM is applicable for this section.\327\ FRA
encourages railroads to approach FRA should they have any questions or
concerns about demonstrating compliance with the requirements for train
operations staffed with a one-person crew.
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\327\ 87 FR 45603-04.
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Section 218.137 Annual Railroad Responsibilities After Receipt of
Special Approval
In the NPRM, this section was proposed as Sec. 218.139. The
changes from the proposed rule are consistent with other changes made
in the final rule, and the section's meaning has not changed. Thus, the
analysis provided in the NPRM is applicable for this section.\328\ The
following explanation provides additional information for clarity.
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\328\ 87 FR 45604-05.
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Paragraph (a) requires each railroad that receives special approval
to use an operation with a one-person train crew under this subpart to
conduct a formal review and analysis each calendar year, of the one-
person train crew operation, and report to FRA its findings and
conclusions from its review no later than March 31 of the following
year by email. The final rule clarifies that the review and analysis
that will be required is the annual report and that the requirements in
paragraphs (b) and (c) of this section describe the components of a
railroad's annual report. Because, unlike the proposal in the NPRM, the
final rule will not require special approval for certain existing
passenger and freight train operations staffed with a one-person train
crew, this section does not contain citations or references that
include such operations as requiring an annual report.
Paragraph (b)(1)(ix) was changed from the proposed requirement to
provide clarity. In the NPRM, the proposed requirement would have
required 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 in an FRA-approved train operation
with fewer than two crewmembers. In this final rule, a railroad will be
required to report the total number of instances where a one-person
train crewmember had a certification revoked for violation of an
operating rule or practice that occurred when the person was operating
a one-person train crew operation that received special approval under
this subpart. The change from the proposed rule will clarify that the
annual report will require inclusion of revocations of a locomotive
engineer or conductor's certification of the one-person train
crewmember. The final rule defines the ``one-person train crewmember''
to mean the single assigned person who is performing the duty of the
locomotive engineer and is traveling in the operating cab of the
controlling locomotive when the train is moving as part of a one-person
train crew in Sec. 218.5. Thus, the final rule clarifies that a one-
person train crewmember can be a locomotive engineer alone and does not
also need to be the train's assigned conductor. The final rule also
clarifies that the annual report must capture the total number of
instances where a one-person train crewmember's locomotive engineer or
conductor certification is revoked for a violation of an operating rule
or practice that occurred when the person was operating a one-person
train crew operation receiving special approval under this subpart, and
subtotals for each type of certification revoked; i.e., whether it is a
locomotive engineer or conductor certification revocation.
Appendix E to Part 218--Recommended Procedures for Conducting Risk
Assessments
This appendix provides a quantitative risk-based hazard analysis
methodology that may be used to meeting the requirements of Sec.
218.133(a)(3) and is based upon the proposed requirements in Sec.
218.135 of the NPRM. It provides one acceptable approach that may be
used by a railroad to prepare a risk-based hazard analysis, which is
part of the risk assessment required by Sec. 218.133. A railroad that
is required to obtain FRA's special approval under Sec. 218.135 and
complete a risk assessment may adopt this approach. A railroad that
decides to modify this approach or to use a completely different
approach is required to petition FRA for approval under Sec.
218.133(b).
The recommended and acceptable approach is a quantitative risk-
based hazard analysis. A hazard analysis is performed to identify new
or changed hazards relating to the operation of a one-person train
crew, as compared to a two-person minimum train crew operation, for
purposes of eliminating, or at least mitigating, those hazards, thus
ensuring that the operation by a one-person train crew is as safe or
safer than that operating by a two-person crew. Paragraph (a) describes
the first step as identifying all new hazards, changes to existing
hazards, or changes to the risk of existing hazards, when comparing a
one-person train crew operation with a two-person minimum train crew
operation. Paragraph (b) describes the quantitative approach to
assessing the severity of each of the hazards identified under
paragraph (a) and the probability of occurrence. Paragraph (c)
describes the process for applying sustained mitigation strategies and
the requirement to recalculate the risk based on the implementation of
those mitigation strategies. Paragraph (d) describes how to prepare a
risk matrix that classifies the risks calculated in paragraph (c) in
terms of severity and likelihood of each new hazard, change to an
existing hazard, or change to the risk of an existing hazard.
Paragraph (e) describes how to prepare 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. Paragraph (f) describes that, for a railroad to exercise
this option, it must be able to conclude its risk assessment by issuing
a statement with supporting evidence, that the one-
[[Page 25097]]
person operation with a fully implemented mitigation plan, is as safe
or safer than a two-person minimum operation.
IV. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094
This final rule is a significant regulatory action within the
meaning of Executive Order 12866 as amended by Executive Order 14094,
Modernizing Regulatory Review,\329\ and DOT Order 2100.6A (``Rulemaking
and Guidance Procedures''). Details on the estimated costs of this
final rule can be found in the RIA, which FRA has prepared and placed
in the docket (FRA-2021-0032).
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\329\ 88 FR 21879 (April 6, 2023) located at https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
---------------------------------------------------------------------------
The final rule requires railroads seeking to operate trains with
one-person train crews to submit a notification to FRA and in some
cases, seek FRA approval for such an operation. The petition process
requires the submission of information to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person
minimum train crew operation. Class II and Class III railroads not
transporting certain types or quantities of hazardous materials are
required to submit a notification to FRA when commencing one-person
train crew operations, adopt and comply with operating rules necessary
to ensure the one-person train crewmember's safety and ensure the
railroad is prepared to take appropriate mitigation measures in
response to certain safety-critical situations, and equip a one-person
train crew's controlling locomotive with an alerter.
FRA analyzed the economic impact of this final rule. FRA estimated
the costs associated with alerters, operating rules, notification to
FRA, risk assessments and special approvals, annual reporting after
receipt of special approval, and Government administration. FRA
qualitatively discusses the benefits but does not have sufficient data
to monetize those benefits.
FRA estimates the 10-year costs of the final rule to be $6.6
million, discounted at 7 percent. The annualized costs are estimated to
be $0.9 million discounted at 7 percent. The following table shows the
total costs of this final rule, over the 10-year analysis period.
Total 10-Year Discounted Costs
[2022 Dollars] \330\
----------------------------------------------------------------------------------------------------------------
Annualized Annualized
Category Total cost, 7 Total cost, 3 cost, 7 cost, 3
percent ($) percent ($) percent ($) percent ($)
----------------------------------------------------------------------------------------------------------------
Alerters (Legacy Operations).................... 2,176,402 2,217,233 309,871 259,927
Alerters (New Operations)....................... 2,251,306 2,483,470 320,535 291,138
Operating Rules (Existing Operations)........... 119,954 119,954 17,079 14,062
Operating Rules (New Operations)................ 280,824 308,591 39,983 36,176
Notification (Existing Operations).............. 185,114 185,114 26,356 21,701
Notification (New Operations)................... 111,133 122,593 15,823 14,372
Risk Assessment and Special Approval (Class I).. 560,745 570,571 79,837 66,888
Risk Assessment and Special Approval (Class II 162,446 164,506 23,129 19,285
and III).......................................
Risk Assessment (Material Modifications)........ 93,031 111,178 13,246 13,033
Annual Reporting................................ 182,821 221,284 26,030 25,941
Government Administrative Cost.................. 513,100 579,523 73,054 67,938
---------------------------------------------------------------
Total Costs................................. 6,636,876 7,084,016 944,942 830,463
----------------------------------------------------------------------------------------------------------------
The primary benefit of this final rule is to ensure that each train
is adequately staffed and has appropriate safeguards in place for safe
train operations under all operating conditions. This final rule will
also ensure that several significant operational safety issues with
one-person train crews are addressed and allow FRA to collect
information and data on one-person train crews. For instance, FRA will
close a safety issue by requiring alerters for Class II and III
railroads operating with a one-person train crew that do not already
have these safety devices installed on their locomotives for that type
of operation. Alerters will ensure that if a crewmember becomes
unresponsive, the train will apply emergency brakes--a function
typically left to a conductor or other second crewmember. FRA will also
address issues that it cannot currently verify are addressed by each
railroad's one-person train crew operations. These include public and
rail employee concerns with the operational safety of a train operated
by a one-person crew, the operational safeguards to protect that
crewmember in various situations, and the impact of one-person train
crew operations that travel through communities and need to take action
to mitigate consequences in certain safety-critical situations. These
are important safety issues when operating trains with one-person
crews.
For Class I railroads operating with one-person train crews and
Class II and III railroads transporting certain types and quantities of
hazardous materials, this rule will ensure the railroads identify,
evaluate, and address safety concerns that may arise from such
operations by submitting a risk assessment to FRA for approval.
A second crewmember performs important safety functions that could
be lost when reducing crew size to one person. The safety requirements
in this final rule will allow the rail industry to continue, or
initiate, train operations with a one-person train crew by ensuring
that at least minimum safety requirements are met and that more complex
operations make a concerted effort to mitigate the risks of foreseeable
hazards.
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act of 1980 \331\ and Executive Order
13272 \332\ require agency review of proposed and final rules to assess
their impacts on small entities. An agency must prepare a Final
Regulatory Flexibility Analysis
[[Page 25098]]
(FRFA) unless it determines and certifies that a rule will not have a
significant economic impact on a substantial number of small entities.
FRA prepared this FRFA to evaluate the impact of the final rule on
small entities and describe the effort to minimize the adverse impact
because FRA did not make the determination necessary to avoid it.
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\331\ 5 U.S.C. 601 et seq.
\332\ 67 FR 53461 (Aug. 16, 2002).
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1. Statement of the Need for, and Objectives of, the Rule
Currently, the majority of trains operate with two crewmembers. The
final rule helps ensure safe rail operations when railroads are using
one-person train crews, or plan to reduce train crew sizes from two or
more crewmembers to a one-person train crew, by prohibiting railroads
from taking on unacceptable levels of safety risks with the potential
to detrimentally impact railroad employees, the public, or the
environment.
This final rule requires that railroads have appropriate safeguards
in place for safe train operations, whenever a railroad is operating
with only one crewmember that travels on the train. Although operations
with one-person train crews already exist in the United States, this
final rule will help ensure consistency from State to State regarding
the safety of such operations, and it provides several paths forward
for railroads that wish to transition to one-person train crew
operations. Additionally, the annual reporting requirement for
operations that receive special approval will provide FRA with
information regarding these one-person train crew operations on a
periodic basis that is expected to be informative, allow for agency
oversight, and lead to additional safety improvements.
2. Significant Issues Raised by Public Comments
FRA received several comments related to the costs of the proposed
rule. ASLRRA and short line railroads submitted comments related to the
proposed rule. Issues not concerning the economics of the rule have
been discussed above in the discussion of comments and conclusions.
Comments were received from ASLRRA relating to the cost estimates and
the number of small entities impacted by the rule. ASLRRA's concerns
included not accounting for the cost of alerters, too low of a cost
estimate for risk assessments, and a higher number of affected entities
than what FRA estimated in the proposed rule.
In response to the affected number of entities, FRA has increased
the estimate to 75 legacy operations based on comments received in
response to the NPRM. All but two of these legacy operations are on
small railroads. Therefore, FRA estimates there are approximately 73
small railroads currently operating that will be impacted by this final
rule. FRA has also accounted for the cost for alerters in the final
rule's RIA. Based on ASLRRA's comment, FRA has included the estimated
cost of $20,000 per alerter.
Further, FRA has revised the cost for preparing risk assessments
from the estimates presented in the NPRM. ASLRRA commented that current
one-person operations hauling hazardous materials would have to hire
additional employees because such operations would not be allowed under
the proposed requirements. However, in the final rule, Class III
railroads will be allowed to continue legacy one-person train crew
operations that transport hazardous materials of the types or
quantities specified in Sec. 218.123(c), provided that they notify
FRA. Therefore, small railroads with such train operations will be able
to continue operating with one-person crews and will not need to hire
additional employees if they adhere to the requirements in this final
rule. Class III railroads that would like to commence new one-person
train crew operations transporting certain types and quantities of
hazardous materials specified in the final rule will need to apply for
special approval and conduct a risk assessment but should not need to
hire additional crewmembers to transition from a two-person train crew
operation to a one-person train crew operation.
3. Response to Comments Filed by the Chief Counsel for Advocacy of the
Small Business Administration
FRA received a comment from SBA-Advocacy, asserting that FRA
appears to have significantly understated the cost and number of small
businesses that would be impacted by the proposed rule.
As stated above, FRA has revised the estimated number of small
entities impacted to 73 railroads with legacy operations, up from the
original 7 estimated in the RIA for the NPRM. Currently, approximately
75 railroads operate some trains with one-person crews. All but two of
those operations are small railroads. Therefore, FRA estimates there
are approximately 73 small railroads currently operating that will be
impacted by this final rule.
SBA-Advocacy also commented that FRA should revise and republish
its Initial Regulatory Flexibility Analysis (IRFA), or a Supplemental
IRFA, including further consideration of significant regulatory
alternatives, for additional public comment before proceeding.
As FRA has made several changes in the final rule from the proposal
in the NPRM, FRA is publishing this FRFA to aid the public in
determining the impact to small entities. FRA has adjusted the costs
and revised the final rule based on public comments, including comments
from small entities and SBA-Advocacy. FRA also provided extra time and
various opportunities (including a public hearing) for interested
parties, including small entities, to comment.
4. Description and Estimate of the Number of Small Entities to Which
the Rule Will 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
$47.0 million dollars, or a contractor that performs support activities
for railroads with annual receipts of less than $34.0 million.\333\
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\333\ U.S. Small Business Administration, ``Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, March 27, 2023. https://www.sba.gov/sites/sbagov/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf.
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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,\334\ and
commuter railroads or
[[Page 25099]]
small governmental jurisdictions that serve populations of 50,000 or
less.\335\ FRA is using this definition for the final rule.
---------------------------------------------------------------------------
\334\ The Class III railroad revenue threshold is $46.3 million
or less, for 2022. https://www.ecfr.gov/current/title-49/subtitle-B/chapter-X/subchapter-C/part-1201.
\335\ See 68 FR 24891 (May 9, 2003) (codified at appendix C to
49 CFR part 209).
---------------------------------------------------------------------------
When shaping the final rule, FRA considered the impact that the
final 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 final rule is applicable to all railroads, although only
railroads that operate trains with one crewmember would be affected.
FRA estimates there are 768 Class III railroads, of which 734 operate
on the general system. These railroads are of varying size, with
approximately 250 Class III railroads belonging to larger holding
companies.
Many small railroads will qualify for an exception under Sec.
218.129, which allows for one-person operations if a railroad is a
legacy one-person freight train operation, work train operation, helper
service train operation, or lite locomotive train operation staffed
with a one-person train crew. Those railroads will not need to petition
FRA for special approval for such an operation, nor will they be
required to submit a risk assessment. They will be required to notify
FRA of the operation and ensure that they adopt and comply with
operating rules for the one-person operation and equip the one-person
train crew's controlling locomotive with an alerter.
FRA estimates that there are 73 legacy operations on Class III
railroads. Legacy operations will be required to notify FRA of the
operation and ensure that they adopt and comply with operating rules
for the one-person operation and equip the one-person train crew's
controlling locomotive with an alerter. Over the 10-year analysis, FRA
estimates an additional 84 Class III railroads will be impacted by this
final rule; this includes 50 railroads that would be required to notify
FRA and 34 that would require special approval from FRA. The following
table shows the estimated number of new one person operations per year
on Class III railroads.
------------------------------------------------------------------------
Class III
Class III railroads,
Year railroads, special
notification approval
------------------------------------------------------------------------
1....................................... 11 7
2....................................... 11 7
3....................................... 5 4
4....................................... 5 4
5....................................... 3 2
6....................................... 3 2
7....................................... 3 2
8....................................... 3 2
9....................................... 3 2
10...................................... 3 2
-------------------------------
Total................................. 50 34
------------------------------------------------------------------------
Some of those railroads may be some of the same railroads already
operating a legacy one-person operation. If a railroad is beginning a
new operation that does not fall under the parameters of the legacy
operation, it will be required to notify FRA or apply for special
approval, depending on the commodities transported. All new operations
will need to adopt and comply with operating rules for one-person train
crew operations and equip a one-person train crew's controlling
locomotive with an alerter.
5. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule
The final rule requires Class III railroads to notify FRA of
current one-person train crew operations. Those operations must have
operating rules relevant to one-person train crews and equip one-person
locomotives with alerters. Class III railroads that commence one-person
train crew operations that transport hazardous materials of the types
or quantities specified in Sec. 218.123(c) must apply for special
approval and conduct a risk assessment. Class III railroads commencing
one-person train crew operations not hauling the types or quantities
specified in Sec. 218.123(c) will need to notify FRA of the operation
but will not need to apply for special approval. Those railroads will
also need to comply with the requirements for operating rules and
alerters in locomotives of one-person train crews.
FRA estimates 73 one-person train crew operations currently exist
across the Class III railroad industry. The following table shows the
estimated number of new one-person operations over the 10-year
analysis. These estimates are used throughout the analysis to estimate
the impact to Class III railroads.
Railroads currently operating trains with one-person crews that do
not have an alerter installed in the locomotive will need to install an
alerter in a one-person train crew's controlling locomotive within two
years of the effective date of the final rule.
Each alerter is estimated to cost $20,000 and each railroad would
require, on average, 1.5 alerters for one-person train crew operations.
The following table shows the cost to equip locomotives with alerters.
Class III railroads with legacy one-person train crew operations
required to install alerters will have up to two years after the
effective date of the final rule to install alerters. FRA estimates
that the cost will be split over the first two years. The following
table shows the 10-year estimated cost for legacy Class III one-person
train crew operations to equip locomotives with alerters. The total
estimated 10-year cost will be $2.2 million. The estimated annualized
cost will be $301,607 (PV, 7%).
Total 10-Year Cost for Alerters, Class III Railroads With Legacy Operations
----------------------------------------------------------------------------------------------------------------
Present value Present value
Year Total cost ($) 7% ($) 3% ($)
----------------------------------------------------------------------------------------------------------------
1............................................................... 1,095,000 1,095,000 1,095,000
2............................................................... 1,095,000 1,023,364 1,063,107
3............................................................... 0 0 0
4............................................................... 0 0 0
5............................................................... 0 0 0
6............................................................... 0 0 0
7............................................................... 0 0 0
8............................................................... 0 0 0
9............................................................... 0 0 0
[[Page 25100]]
10.............................................................. 0 0 0
-----------------------------------------------
Total....................................................... 2,190,000 2,118,364 2,158,107
Annualized.................................................. .............. 301,607 252,996
----------------------------------------------------------------------------------------------------------------
The following table shows the cost for new one-person operations on
Class III railroads to equip locomotives with alerters. The total
estimated 10-year cost will be $2.5 million. The estimated annualized
cost will be $296,791 (PV, 7%).
Total 10-Year Cost for Alerters, New Class III Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of new
one- person Number of Total cost per Present value Present value
Year operations per alerters per alerter ($) Total cost ($) 7% ($) 3% ($)
year operation
a b c d = a * b * c
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 18 1.5 20,000 540,000 540,000 540,000
2....................................................... 18 1.5 20,000 540,000 504,673 524,272
3....................................................... 9 1.5 20,000 270,000 235,828 254,501
4....................................................... 9 1.5 20,000 270,000 220,400 247,088
5....................................................... 5 1.5 20,000 150,000 114,434 133,273
6....................................................... 5 1.5 20,000 150,000 106,948 129,391
7....................................................... 5 1.5 20,000 150,000 99,951 125,623
8....................................................... 5 1.5 20,000 150,000 93,412 121,964
9....................................................... 5 1.5 20,000 150,000 87,301 118,411
10...................................................... 5 1.5 20,000 150,000 81,590 114,963
-----------------------------------------------------------------------------------------------
Total............................................... .............. .............. .............. 2,520,000 2,084,539 2,309,486
Annualized.......................................... .............. .............. .............. .............. 296,791 270,742
--------------------------------------------------------------------------------------------------------------------------------------------------------
The final rule requires each freight railroad with a legacy one-
person train crew operation to adopt and comply with operating rules
that establish regular and effective communication with a one-person
train crew to ensure the safety of the train and that one-person train
crewmember's safety. Each railroad will need approximately 12 hours to
formalize these operating rules.
The following table shows the cost of formalizing operating rules
for legacy Class III one-person train crew operations. This cost would
be incurred only in year 1. Therefore, the total estimated 10-year cost
will be $108,106. The estimated annualized cost will be $15,392 (PV,
7%).
Cost of Formalizing Operating Rules, Legacy Class III Operations
----------------------------------------------------------------------------------------------------------------
Total cost per Number of Total annual
Type of employee Hours Hourly wage notification legacy cost across
rate ($) ($) operations industry ($)
a b c = a * b d e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Managers................. 4 123.41 494 .............. ..............
Superintendents................. 4 123.41 494 .............. ..............
Train Masters................... 2 123.41 247 .............. ..............
Road Foreman.................... 2 123.41 247 .............. ..............
-------------------------------------------------------------------------------
Total....................... 12 .............. 1,481 73 108,106
----------------------------------------------------------------------------------------------------------------
Class III railroads implementing one-person train crew operations
will be required to adopt and comply with operating rules that
establish regular and effective communication with a one-person train
crew to ensure the safety of the train and that one-person train
crewmember's safety. The following table shows the cost of formalizing
operating rules for new Class III one-person train crew operations. It
is estimated to take 12 hours per railroad for a total cost of $1,481
per railroad.
[[Page 25101]]
Cost of Formalizing Operating Rules, New Class III Operations
----------------------------------------------------------------------------------------------------------------
Hourly wage Total cost per
Type of employee Hours rate ($) railroad ($)
a b c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Managers................................................. 4 123.41 494
Superintendents................................................. 4 123.41 494
Train Masters................................................... 2 123.41 247
Road Foreman.................................................... 2 123.41 247
-----------------------------------------------
Total....................................................... 12 .............. 1,481
----------------------------------------------------------------------------------------------------------------
The following table shows the total 10-year costs for Class III
railroads to adopt and comply with operating rules for communication
and emergency situations specific to one-person train crew operations.
The total estimated 10-year cost is $124,396. The annualized cost is
$14,651 (PV, 7%).
Total 10-Year Costs of Operating Rules, New Class III Operations
----------------------------------------------------------------------------------------------------------------
Number of new
one- person Total cost per Present value Present value
Year operations per operation ($) Total cost ($) 7% ($) 3% ($)
year
a b c = a * b
----------------------------------------------------------------------------------------------------------------
1............................... 18 1,481 26,656 26,656 26,656
2............................... 18 1,481 26,656 24,913 25,880
3............................... 9 1,481 13,328 11,641 12,563
4............................... 9 1,481 13,328 10,880 12,197
5............................... 5 1,481 7,405 5,649 6,579
6............................... 5 1,481 7,405 5,279 6,387
7............................... 5 1,481 7,405 4,934 6,201
8............................... 5 1,481 7,405 4,611 6,021
9............................... 5 1,481 7,405 4,310 5,845
10.............................. 5 1,481 7,405 4,028 5,675
-------------------------------------------------------------------------------
Total....................... .............. .............. 124,396 102,901 114,005
Annualized.................. .............. .............. .............. 14,651 13,365
----------------------------------------------------------------------------------------------------------------
The final rule requires each freight railroad with a legacy one-
person train crew operation to provide certain information about the
operation in a written notification to FRA. It will take approximately
20 hours for each Class III railroad to prepare and make the
notification to FRA of its one-person operations.
The following table shows the cost for legacy Class III railroad
operations to make the notification to FRA. This cost would be incurred
only in year 1. Therefore, the total estimated cost will be $180,177.
The estimated annualized cost will be $25,653 (PV, 7%).
Cost of Notification, Legacy Class III Operations
----------------------------------------------------------------------------------------------------------------
Total cost per Total annual
Type of employee Hours per Hourly wage notification Number of cost across
notification rate ($) ($) notifications industry ($)
a b c = a * b d e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Managers................. 7 123.41 864 .............. ..............
Superintendents................. 5 123.41 617 .............. ..............
Train Masters................... 4 123.41 494 .............. ..............
Road Foreman.................... 4 123.41 494 .............. ..............
-------------------------------------------------------------------------------
Total....................... 20 .............. 2,468 73 180,177
----------------------------------------------------------------------------------------------------------------
The final rule requires each Class III freight railroad that plans
to initiate a one-person train crew operation after the final rule's
effective date that will not be transporting certain types or
quantities of hazardous materials that have been determined to pose the
highest risk in transportation to provide FRA with written notification
of the operation before commencing the operation. The following table
shows the cost for Class III railroads to notify FRA of new one-person
operations. It is estimated to take 20 hours per railroad
[[Page 25102]]
to prepare and make the notification to FRA for a total cost of $2,468.
Cost of Notification, New Class III Railroad Operations
----------------------------------------------------------------------------------------------------------------
Total cost per
Type of employee Hours per Hourly wage notification
notification rate ($) ($)
a b c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Managers................................................. 7 123.41 864
Superintendents................................................. 5 123.41 617
Train Masters................................................... 4 123.41 494
Road Foreman.................................................... 4 123.41 494
-----------------------------------------------
Total....................................................... 20 .............. 2,468
----------------------------------------------------------------------------------------------------------------
The following table shows the total 10-year costs for Class III
railroads to notify FRA when commencing new one-person train crew
operations. This option could also be used by railroads that are
continuing an operation that was established less than two years before
the effective date of the final rule. Railroads hauling certain types
and quantities of hazardous materials require special approval; hence,
those operations are not included in this estimate. The estimates here
are solely for operations that only require notification to FRA. The
total estimated 10-year cost is $133,282. The annualized cost is
$15,823 (PV, 7%).
Total 10-Year Cost of Notification, New Class III Railroad Operations
----------------------------------------------------------------------------------------------------------------
Estimated Total cost per
Year notifications notification Total cost ($) Present value Present value
per year ($) 7% ($) 3% ($)
a b c = a * b .............. ..............
----------------------------------------------------------------------------------------------------------------
1............................... 12 2,468 29,618 29,618 29,618
2............................... 12 2,468 29,618 27,681 28,756
3............................... 6 2,468 14,809 12,935 13,959
4............................... 6 2,468 14,809 12,089 13,552
5............................... 3 2,468 7,405 5,649 6,579
6............................... 3 2,468 7,405 5,279 6,387
7............................... 3 2,468 7,405 4,934 6,201
8............................... 3 2,468 7,405 4,611 6,021
9............................... 3 2,468 7,405 4,310 5,845
10.............................. 3 2,468 7,405 4,028 5,675
-------------------------------------------------------------------------------
Total....................... .............. .............. 133,282 111,133 122,593
Annualized.................. .............. .............. .............. 15,823 14,372
----------------------------------------------------------------------------------------------------------------
The final rule requires Class III freight railroads that haul
certain types or quantities of hazardous materials that have been
determined to pose the highest risk in transportation that want to
initiate a new operation with a one-person train crew or continue an
operation that was established less than two years before the effective
date of the final rule to petition FRA under a special approval
procedure. As part of the special approval process, these railroads
will be required to conduct a risk assessment. The risk assessment must
include a description of the final operation, a hazard analysis, and
discussion of the tasks and functions of the one crewmember and
equipment.
ASLRRA and holding companies will likely create a model or template
program that can be used by Class III railroads; therefore, the burden
for each Class III railroad is estimated to be six hours per one-person
train crew operation. The estimated cost per railroad is $665 to apply
for special approval and submit a risk assessment.
Cost of Special Approval and Risk Assessment, Class III Railroads
----------------------------------------------------------------------------------------------------------------
Number of Total cost
Hourly wage hours per per railroad
rate ($) railroad ($)
(a) (b) (c) = (a) *
(b)
----------------------------------------------------------------------------------------------------------------
Chief Safety Officer............................................ 123.41 4 494
Administrative Assistant........................................ 85.93 2 172
-----------------------------------------------
Total per Railroad.......................................... .............. 6 665
----------------------------------------------------------------------------------------------------------------
[[Page 25103]]
The following table shows the total 10-year costs for Class III
railroads to apply for special approval and conduct a risk assessment.
Only railroads hauling certain types and quantities of hazardous
materials require special approval, including a risk assessment. The
total estimated 10-year cost is $22,627. The annualized cost is $2,661
(PV, 7%).
Total 10-Year Cost for Special Approval and Risk Assessment, Class III Railroads
----------------------------------------------------------------------------------------------------------------
Number of Total cost
risk per risk Total costs Present value Present value
Year assessments assessment ($) 7% ($) 3% ($)
per year ($)
a b c = a * b
----------------------------------------------------------------------------------------------------------------
1............................... 7 665 4,658 4,658 4,658
2............................... 7 665 4,658 4,354 4,523
3............................... 4 665 2,662 2,325 2,509
4............................... 4 665 2,662 2,173 2,436
5............................... 2 665 1,331 1,015 1,183
6............................... 2 665 1,331 949 1,148
7............................... 2 665 1,331 887 1,115
8............................... 2 665 1,331 829 1,082
9............................... 2 665 1,331 775 1,051
10.............................. 2 665 1,331 724 1,020
-------------------------------------------------------------------------------
Total....................... .............. .............. 22,627 18,689 20,725
Annualized.................. .............. .............. .............. 2,661 2,430
----------------------------------------------------------------------------------------------------------------
Each railroad that receives special approval to use an operation
with a one-person train crew must prepare an annual report, which will
be a formal review and analysis each calendar year, of the one-person
train crew operation. The annual report, which will include a
railroad's findings and conclusions from its review, shall be submitted
no later than March 31 of the following year. The following table shows
the annual labor cost per railroad to complete each report. It is
estimated to require approximately 8 hours of labor per railroad for a
total cost of $687 per year.
Cost of Annual Report, per Railroad
----------------------------------------------------------------------------------------------------------------
Total annual
Type of employee Hours per Hourly wage cost per
railroad rate ($) railroad ($)
a b c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative.............................. 8 85.93 687
----------------------------------------------------------------------------------------------------------------
The following table shows the total 10-year costs for Class III
railroads to complete the annual report. The total estimated 10-year
cost is $156,737. The annualized cost is $15,471 (PV, 7%).
Total 10-Year Costs of Annual Report, Class III Railroads
----------------------------------------------------------------------------------------------------------------
Number of
Year reports per Cost per Total cost Present value Present value
year report ($) ($) 7% ($) 3% ($)
a b c = a * b
----------------------------------------------------------------------------------------------------------------
1............................... 0 687 0 0 0
2............................... 14 687 9,624 8,995 9,344
3............................... 18 687 12,374 10,808 11,664
4............................... 22 687 15,124 12,346 13,840
5............................... 24 687 16,499 12,587 14,659
6............................... 26 687 17,874 12,744 15,418
7............................... 28 687 19,248 12,826 16,120
8............................... 30 687 20,623 12,843 16,769
9............................... 32 687 21,998 12,803 17,366
10.............................. 34 687 23,373 12,713 17,914
-------------------------------------------------------------------------------
Total....................... .............. .............. 156,737 108,664 133,093
Annualized.................. .............. .............. .............. 15,471 15,603
----------------------------------------------------------------------------------------------------------------
[[Page 25104]]
The following table shows the annualized costs for all provisions
of the final rule. The total annualized cost for all Class III
railroads is $687,852 (PV, 7%).
Annualized Costs for Class III Railroads' One-Person Operations
------------------------------------------------------------------------
Annualized cost,
Cost category 7 percent ($)
------------------------------------------------------------------------
Alerters, Legacy Operations.......................... 301,607
Alerters, New Operations............................. 296,791
Operating Rules, Legacy Operations................... 15,392
Operating Rules, New Operations...................... 14,651
Notification to FRA, Legacy Operations............... 25,653
Notification to FRA, New Operations.................. 15,823
Special Approval and Risk Assessment................. 2,661
Annual Report........................................ 15,471
------------------
Total Annualized Cost for All Class III Railroads 688,050
------------------------------------------------------------------------
The industry trade organization representing small railroads,
ASLRRA, reports the average freight revenue per Class III railroad is
$4.75 million.\336\ The following table summarizes the average annual
cost and revenue for Class III railroads.
---------------------------------------------------------------------------
\336\ American Short Line and Regional Railroad Association,
Short Line and Regional Railroad Facts and Figures, p. 10 (2017
pamphlet).
Annual Class III Railroads' Cost and Revenue
----------------------------------------------------------------------------------------------------------------
Total costs for all
Class III railroads, Number of Class III Average annual cost Average Class III Average annual
annualized 7 percent railroads per Class III revenue ($) cost as percent of
($) railroad ($) revenue
a b c = a / b d e = c / d
----------------------------------------------------------------------------------------------------------------
688,050 157 4,382 4,750,000 0.09%
----------------------------------------------------------------------------------------------------------------
The estimated average annual cost for a Class III railroad that is
operating one-person train crews will be $4,382. This represents a
small percentage (0.1%) of the average annual revenue for a Class III
railroad.
6. A Description of the Steps the Agency Has Taken To Minimize the
Economic Impact on Small Entities
This final rule allows Class III freight railroads to continue
operating with one-person train crews for operations established for at
least two years before the effective date of the final rule as long as
these railroads notify FRA, install alerters, and adopt and comply with
operating rules specific for one-person train crews according to the
implementation schedule.
In response to comments on the NPRM, FRA has simplified the risk
assessment and reduced the number of operations to which the special
approval requirement will apply. Railroads commencing one-person train
crew operations with certain types and quantities of hazardous
materials will be required to petition FRA for special approval and
conduct a risk assessment. Class III railroads commencing one-person
operations without certain types and quantities of hazardous materials
will not need to petition FRA for special approval or complete a risk
assessment. Those new one-person train crew operations will require
notification to FRA, installation of alerters, and adoption and
compliance with operating rules specific for one-person crews. The
notification requirement provides flexibility for Class III railroads
not hauling certain types and quantities of hazardous materials.
Based on comments requesting more time to comply with any new
minimum requirements to allow for proper planning, operational changes,
or hiring and training of additional crewmembers, FRA is extending
compliance dates for Class III railroads for certain exceptions that
cannot be used by a Class I railroad, and therefore Class III railroads
are provided greater flexibility in those circumstances such as when a
Class III railroad's legacy one-person train crew freight operation has
been established for at least two years before the effective date of
the final rule or the Class III railroad decides to initiate a new one-
person train crew operation that is not transporting hazardous
materials of the types or quantities specified in Sec. 218.123(c).
The final rule reflects relief from the proposed prohibition on the
transportation of some hazardous materials with a one-person train crew
set forth in the NPRM to provide for these legacy operations and new
operations subject to conditions to ensure safety.
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.\337\ The sections that
contain the new information collection requirements and the estimated
time to fulfill each requirement are as follows:
---------------------------------------------------------------------------
\337\ 44 U.S.C. 3501 et seq.
[[Page 25105]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total cost
CFR section Respondent universe Total annual responses Average time per Total annual burden equivalent in
\338\ response U.S. dollar
....................... (A).................... (B).................... (C = A * B)............ (D = C
* wage rates)
\339\
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.123--General crew size staffing 784 railroads.......... 47 adopted rules and 120 hours (96 + 12 + 816.00 hours (288 + 204 $70,118.88
requirements--Each railroad's practices (27 legacy 12) \340\. + 324).
adoption or revision of rules and operations + 3 Class I
practices with the requirement of new operations + 17
this subpart G (New requirement). Class II and III new
operations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(2) Location of crewmember(s) Direct communications between train crewmembers during train operations are a usual and customary practice.
that is not operating the train Consequently, there is no burden associated with this requirement.
when the train is moving--Direct
communication between train crew
members (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.125(c)--Specific passenger and The estimated paperwork burden for emergency preparedness plans is already included under OMB Control Number 2130-
tourist train operation exceptions 0545. Consequently, there is no additional burden associated with this requirement.
to crew size safety requirements--
Passenger railroads' emergency
preparedness plan approved under 49
CFR 239.201 (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(3) Federal Transit The estimated paperwork burden for approved FTA and SSO Public Transportation Agency Safety Plans is included
Administration (FTA) and designated under OMB Control Number 2132-0558. Consequently, there is no additional burden associated with this requirement.
State Safety Oversight (SSO) Agency
approved Public Transportation
Agency Safety Plan in accordance
with 49 CFR parts 673 and 674 (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Existing passenger train The estimated paperwork burden for emergency preparedness plans is already included under OMB Control Number 2130-
operations one-person train crew 0545. Consequently, there is no additional burden associated with this requirement.
with an approved emergency
preparedness plan (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.129(a)-(b)(11)--Conditional Class II and III 35 notices (25 legacy 40 hours (20 + 20)..... 700 hours.............. $86,387
exceptions based on compliance railroads. operations + 10 Class
dates for legacy freight train II and III new
operations, class II and III operations).
freight railroad train operations,
work train operations, helper
service train operations, and lite
locomotive train operations staffed
with a one-person train crew--
Written notice requirements shall
be submitted by email to FRA (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(12) Copy of any railroad rule The estimated paperwork burden for this requirement is included above under Sec. 218.129(a)-(b)(11).
or practice that applies to the one-
person train crew operation (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(13)-(14) Accident and incident The estimated paperwork burden for this requirement is included above under Sec. 218.129(b)(1)-(11).
data or any other information
describing protections in lieu of a
second train crewmember (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Additional requirements--Adopt The estimated paperwork burden of this requirement is included above under Sec. 218.123.
and comply with an operating rule
that complies with the requirements
of ensuring rail employees can take
mitigation measures that provide a
level of safety that is as safe or
safer than a two-person train crew
operation to address certain
situations with the one-person
train crew operation (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.131(a)(2)(i)--Special approval The estimated paperwork burden for the special approval petition is included with the risk assessment burden under
petition requirements for train Sec. 218.133.
operations staffed with a one-
person train crew RR with
established one-person train crew
written notice to continue
operations (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(2)(iii) RRs with established The estimated paperwork burden for the special approval petition is included with the risk assessment burden under
one-person train crew to submit Sec. 218.133.
special approval petition.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(3)--Each freight railroad The estimated paperwork burden for special approval petition is included with the risk assessment burden under
seeking to either initiate or Sec. 218.133.
continue a one-person train crew
must receive FRA's special approval
for the operation under this
subpart and comply with section
Sec. 218.129(c) (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(4)--Passenger railroads The estimated paperwork burden for special approval petition is included with the risk assessment burden under
seeking to initiate train Sec. 218.133.
operations with a one-person train
crew must receive FRA's special
approval for the operation (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(1)-(15) Petition for a train The estimated paperwork burden for special approval petition is included with the risk assessment burden under
operation staffed with a one-person Sec. 218.133.
train crew that is not permitted
under Sec. Sec. 218.125 through
218.129 must contain sufficient
information for FRA to determine
whether approving the operation
described in the petition is as
safe or safer than a two-person
minimum train crew operation (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 25106]]
218.133(a) Risk assessment content 784 railroads.......... 10.33 risk assessments 586; 580 hours + 6 1,973.40 Hours 171,148.42
and procedures--General (Note: The (3.33 Class I/ hours. (1,931.40 + 42).
paperwork burden for special Passenger operations +
approval petition is included here. 7 Class II and III
The paperwork burden for revised operations).
risk assessment is included under
Sec. 218.135(e)) (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b) Alternative standard--Petition The estimated paperwork burden for this requirement is included under Sec. 218.133 and Sec. 218.135.
for approval to use alternative
methodologies (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.135(c)--Special approval Railroad industry and 10 petition comments... 1 hour................. 10 hours............... 859.30
procedure--Comments sent to FRA on interested parties.
petitions for special approval (New
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(1) Disposition of petitions-- The requirements of this provision are exempted from the Paperwork Reduction Act under 5 CFR 1320.4(a)(2) because
Hearings on petitions (New this activity is conducted during an administrative action affecting specific individuals or entities.
requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(2) Special approval procedure-- The estimated paperwork burden for this requirement is included under Sec. 218.135.
Disposition of petitions--
Petitioners' response to FRA's
special conditions to the approval
of petition (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Modifications of operations 9 railroads............ 1.33 revised risk 70 hours............... 93.10 hours............ 8,000.08
already approved; revised risk assessments.
assessments submitted to FRA--All
operations (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.137--Annual railroad 784 railroads.......... 23 annual reports...... 8 hours................ 184 hours.............. 15,811.12
responsibilities after receipt of
special approval--Annual review and
analysis of FRA-approved train
operation(s) (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d) Railroads' review of FRA The paperwork burden for this requirement is included above under Sec. 218.137.
response to their annual report
(New requirement).
-------------------------------------------------------------------------------------------------------------------
Total \341\..................... 784 railroads.......... 127 responses.......... N/A.................... 3,777 hours............ 352,324.81
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Ms. Arlette Mussington,
Information Collection Clearance Officer, at email:
[email protected] or telephone: (571) 609-1285; or Ms. Joanne
Swafford, Information Collection Clearance Officer, at email:
[email protected] or telephone: (757) 897-9908.
---------------------------------------------------------------------------
\338\ For purposes of this table, there are 784 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.
\339\ Throughout the tables in this document, the dollar
equivalent cost is derived from the 2022 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.
\340\ This estimate also includes the burden associated with
adopting and complying with operating rules under Sec. 218.123(c).
\341\ Totals may not add due to rounding.
---------------------------------------------------------------------------
OMB is required to decide concerning the collection of information
requirements contained in this rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. 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 current OMB
control number for this rule is 2130-0636.
D. Federalism Implications
Executive Order 13132, ``Federalism,'' \342\ 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, to the extent practicable
and permitted by law, 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. National action limiting the policymaking discretion of the
States shall be taken only where there is constitutional and statutory
authority for the action and the national activity is appropriate in
light of the presence of a problem of national significance. Where
there are significant uncertainties as to whether national action is
authorized or appropriate, agencies shall consult with appropriate
State and local officials to determine whether Federal objectives can
be attained by other means.
---------------------------------------------------------------------------
\342\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132. FRA has determined
that this
[[Page 25107]]
final 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
rule is not required.
Further, federalism concerns have been considered in the
development of this rule both internally and through consultation
within FRA's Federal advisory committee, RSAC, which has as permanent
voting members two organizations representing State and local
interests: the American Association of State Highway and Transportation
Officials (AASHTO) and the Association of State Rail Safety Managers
(ASRSM).\343\ FRA has also received input from State and local
officials through the notice and comment public participation process
and left it to State or local officials to decide whether to
participate in the publicly held hearing, either in person or
virtually. In the discussion of comments and FRA's conclusions, FRA
responded to the comments on preemption and further expanded upon the
agency's explanation of the perceived preemption implications of the
final rule.
---------------------------------------------------------------------------
\343\ In 1996, FRA established RSAC to develop new regulatory
standards, through a collaborative process, with all segments of the
rail community working together to fashion mutually satisfactory
solutions on safety regulatory issues. Information about RSAC,
including background, tasks, and documents, is available at https://rsac.fra.dot.gov/about. Although this rulemaking was not tasked to
RSAC, FRA provided a regulatory activity update on the rulemaking at
two RSAC meetings before the NPRM was published and at one meeting
during the rulemaking's comment period and encouraged interested
members of RSAC to submit comments or participate at the public
hearing.
---------------------------------------------------------------------------
E. International Trade Impact Assessment
The Trade Agreements Act of 1979 \344\ 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 final 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.
---------------------------------------------------------------------------
\344\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------
F. Environmental Assessment
FRA has evaluated this final rule consistent with the National
Environmental Policy Act \345\ (NEPA), the Council of Environmental
Quality's NEPA implementing regulations,\346\ and FRA's NEPA
implementing regulations \347\ 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.\348\ Specifically, FRA has determined that this
rule is categorically excluded from detailed environmental review.\349\
---------------------------------------------------------------------------
\345\ 42 U.S.C. 4321 et seq.
\346\ 40 CFR parts 1500 through 1508.
\347\ 23 CFR part 771.
\348\ 40 CFR 1508.4.
\349\ 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 ensure that each train is
adequately staffed and has appropriate safeguards in place for safe
train operations under all operating conditions. This final 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.\350\ FRA has concluded
that no such unusual circumstances exist with respect to this
regulation and the final rule meets the requirements for categorical
exclusion.\351\
---------------------------------------------------------------------------
\350\ 23 CFR 771.116(b).
\351\ 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.\352\ FRA has also
determined that this rulemaking does not approve a project resulting in
a use of a resource protected by Section 4(f).\353\ Further, FRA
reviewed this rule and found it consistent with Executive Order 14008,
``Tackling the Climate Crisis at Home and Abroad.''
---------------------------------------------------------------------------
\352\ See 54 U.S.C. 306108.
\353\ See DOT Act of 1966, as amended (Pub. L. 89-670, 80 Stat.
931); 49 U.S.C. 303.
---------------------------------------------------------------------------
G. Environmental Justice
Executive Order 14096, ``Revitalizing Our Nation's Commitment to
Environmental Justice for All,'' which expands on Executive Order
12898, ``Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations,'' requires DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionate and adverse human
health or environmental effects, including those related to climate
change and cumulative impacts of environmental and other burdens on
communities with environmental justice concerns. DOT Order 5610.2C
(``U.S. Department of Transportation Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'') instructs
DOT agencies to address compliance with Executive Order 12898 and
requirements within the DOT Order 5610.2C 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.\354\ FRA has evaluated
this final rule under Executive Orders 14096 and 12898 and DOT Order
5610.2C and has determined it will not cause disproportionate and
adverse human health and environmental effects on communities with
environmental justice concerns.
---------------------------------------------------------------------------
\354\ Executive Order 14096 is not currently referenced in DOT
Order 5610.2C.
---------------------------------------------------------------------------
H. Unfunded Mandates Reform Act of 1995
Under section 201 of the Unfunded Mandates Reform Act of 1995,\355\
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 \356\ 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
[[Page 25108]]
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 final
rule will 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.
---------------------------------------------------------------------------
\355\ Public Law 104-4, 2 U.S.C. 1531.
\356\ 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.'' \357\ FRA evaluated this final rule
under Executive Order 13211 and determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
---------------------------------------------------------------------------
\357\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
List of Subjects in 49 CFR Part 218
Occupational safety and health, Penalties, Railroad employees,
Railroad safety, Reporting and recordkeeping requirements.
The Rule
For the reasons discussed in the preamble, FRA amends 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 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20131, 20138, 20144, 20168;
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 for Safety'', ``FTA'', ``Hazard'', ``Helper
service train operation'', ``Lite locomotive train operation'',
``Locomotive, MU'', ``Mishap'', ``One-person train crew'', ``One-person
train crewmember'', ``Risk'', ``Risk assessment'', ``Switching service
or switching operation'', ``Tourist train operation'', ``Tourist train
operation that is not part of the general railroad system of
transportation'', ``Trailing tons'', ``Train'' and ``Unit freight
train'' to read as follows:
Sec. 218.5 Definitions.
* * * * *
Associate Administrator for Safety 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 that can result in an accident
or incident (i.e., mishap); injury, illness, or death; damage to or
loss of a system, equipment, or property; or damage to the environment.
Helper service train operation means the train is a locomotive or
group of locomotives being used to assist another train that has
incurred mechanical failure or lacks sufficient tractive force
necessary to traverse a particular section of track due to train
tonnage and the grade of the terrain.
* * * * *
Lite locomotive train operation means the train is a locomotive or
a consist of locomotives not attached to any piece of equipment or
attached only to a caboose.
* * * * *
Locomotive, MU means rail rolling equipment self-propelled by any
power source and intended to provide transportation for members of the
general public.
* * * * *
Mishap means an event or condition or series of events or
conditions resulting in an accident or incident.
One-person train crew means either:
(1) One railroad employee is assigned a train as a train crew, and
that single assigned person is performing the duties of both the
locomotive engineer and the conductor; or
(2) More than one railroad employee is assigned a train as a train
crew, but only a single assigned person, who is performing the duty of
the locomotive engineer, is traveling on the train when the train is
moving, and the remainder of the train crew, that would include the
conductor if the locomotive engineer is not the assigned conductor, is
assigned to intermittently assist the train's movements.
One-person train crewmember means, in the context of a one-person
train crew operation, the single assigned person who is performing the
duty of the locomotive engineer and is traveling in the operating cab
of the controlling locomotive when the train is moving.
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, or both, the level of risk associated
with train operations with a one-person train crew, compared to
operations with a two-person (or larger) crew, under all operating
conditions.
* * * * *
Switching service or switching operation 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.
* * * * *
Unit freight train means a freight train composed of cars carrying
a single type of commodity.
* * * * *
Subpart F--Handling Equipment, Switches, and Fixed Derails
Sec. 218.93 [Amended]
0
3. Amend Sec. 218.93 by removing the definitions for ``Associate
Administrator for Safety'' and ``Lite locomotive consist''.
* * * * *
0
4. Amend Sec. 218.99 by revising paragraph (a)(2), the introductory
text of paragraph (b)(3), and paragraph (e)(2) to read as follows:
Sec. 218.99 Shoving or pushing movements.
(a) * * *
(2) The following requirements for shoving or pushing movements do
not apply to rolling equipment intentionally
[[Page 25109]]
shoved or pushed to permit the rolling equipment to roll without power
attached, i.e., free rolling equipment, during switching service
activities known as kicking, humping, or dropping cars.
(b) * * *
(3) Point protection. When rolling equipment or a lite locomotive
train with two or more locomotives that is operated from a single
control stand is shoved or pushed, point protection shall be provided
by a crewmember or other qualified employee by:
* * * * *
(e) * * *
(2) Shoving or pushing operations with a helper service train
operation or distributed power locomotives assisting a train when the
train is being operated from the leading end in the direction of
movement;
* * * * *
0
5. 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 size safety requirements.
218.125 Specific passenger and tourist train operation exceptions to
crew size safety requirements.
218.127 Specific freight train exceptions to crew size safety
requirements.
218.129 Conditional exceptions for Class II and III legacy freight
train operations, certain other Class II and III freight railroad
train operations, work train operations, helper service train
operations, and lite locomotive train operations staffed with a one-
person train crew.
218.131 Special approval petition requirements for train operations
staffed with a one-person train crew.
218.133 Risk assessment content and procedures.
218.135 Special approval procedure.
218.137 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.
(b) This subpart prescribes minimum requirements for the size of
different train crews depending on the type of operation and operating
conditions. The minimum crew size requirements reflect the safety risks
posed to railroad employees, 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.
(c) The requirements in this subpart are not applicable to a train
operation controlled by a remote control operator as defined in Sec.
229.5 of this chapter.
Sec. 218.123 General train crew size safety 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 size safety requirement. Except as
provided in this subpart, each train shall be assigned a minimum of two
crewmembers.
(c) Hazardous materials. 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. The exceptions in
Sec. Sec. 218.125 and 218.127 are not applicable, and the exceptions
in Sec. 218.129 apply as specified therein, when any train is:
(1) A high-hazard flammable train (HHFT) as defined in Sec. 171.8
of this title;
(2) Transporting twenty (20) or more loaded tank cars or loaded
intermodal portable tanks of any one or any combination of the
hazardous materials identified in Sec. 232.103(n)(6)(i)(B) of this
chapter; or
(3) Transporting 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 a 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 Specific passenger and tourist train operation
exceptions to crew size safety requirements.
The requirements in this subpart are not applicable to the
following passenger and tourist train operations that are operated with
a one-person train crew:
(a) The train is a tourist train operation that is not part of the
general railroad system of transportation;
(b) A tourist train operation that is part of the general system of
transportation or a passenger 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 tourist train operation that is part of the general system of
transportation or a passenger operation involving a single self-
propelled car or married-pair unit, e.g., an MU locomotive 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;
(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;
or
(e) Each passenger train operation with a one-person train crew
established before June 10, 2024 with an approved passenger train
emergency preparedness plan under part 239 of this chapter for the
operation.
Sec. 218.127 Specific freight train exceptions to crew size safety
requirements.
The requirements in this subpart are not applicable to the
following freight
[[Page 25110]]
train operations that are operated with a one-person train crew:
(a) Mine load out, plant dumping, or similar operation exception. A
unit freight train:
(1) Being loaded or unloaded in an assembly line manner;
(2) Located on a track that is temporarily made inaccessible from
the general railroad system of transportation;
(3) Moving at a maximum authorized speed of 10 miles per hour or
less;
(4) Not requiring the one-person train crewmember to operate a
hand-operated switch, fill out paperwork, or call signal indications
during the loading or unloading process; and
(5) If the operation is overseen by another person, typically in a
tower or on the ground, requiring that person to have the capability of
communicating with the one-person train crewmember operating the train.
(b) [Reserved]
Sec. 218.129 Conditional exceptions based on compliance dates for
Class II and III legacy freight train operations, certain other Class
II and III freight railroad train operations, work train operations,
helper service train operations, and lite locomotive train operations
staffed with a one-person train crew.
(a) Application of this section. A railroad is not required to
comply with the requirements in this section for each one-person train
crew operation subject to an exception covered by Sec. 218.125 or
Sec. 218.127. The following train operations may be operated with a
one-person train crew subject to the requirements in this subpart:
(1) Each Class II or III railroad's legacy one-person train crew
freight operation that has been established for at least two years
before June 10, 2024, may continue to operate with a one-person train
crew, including continuing to transport hazardous materials of the
types or quantities specified in Sec. 218.123(c), if:
(i) No later than September 6, 2024, the railroad:
(A) Provides FRA with written notice, as specified by the
requirements in paragraph (b) of this section; and
(B) Complies with the additional requirements in paragraphs (c)(1)
and (2) of this section; and
(ii) No later than June 9, 2026, the railroad complies with the
additional requirements in paragraph (c)(3) of this section.
(2) Each Class II or III freight railroad seeking to initiate a
train operation staffed with a one-person train crew not transporting
hazardous materials of the types or quantities specified in Sec.
218.123(c) shall:
(i) Provide FRA with written notice, as specified by the
requirements in paragraph (b) of this section before commencing the
operation; and
(ii) Comply with the additional requirements in paragraph (c) of
this section.
(3) Each railroad seeking to continue or initiate work train
operations with a one-person train crew, including operations involving
a work train traveling to or from a work site, shall:
(i) Limit this type of non-revenue service train that is used for
the administration and upkeep service of the railroad so that it does
not exceed 4,000 trailing tons;
(ii) No later than September 6, 2024, comply with the additional
requirements in paragraphs (c)(1) and (2) of this section; and
(iii) No later than June 9, 2026, comply with the additional
requirements in paragraph (c)(3) of this section.
(4) Each railroad seeking to continue or initiate helper service
train operations with a one-person train crew, including operations
involving a helper service train traveling to or from a work site,
shall:
(i) No later than September 6, 2024, comply with the additional
requirements in paragraphs (c)(1) and (2) of this section; and
(ii) No later than June 9, 2026, comply with the additional
requirements in paragraph (c)(3) of this section.
(5) Each railroad seeking to continue or initiate a lite locomotive
train operation staffed with a one-person train crew, excluding an MU
locomotive operation, shall:
(i) No later than September 6, 2024, comply with the additional
requirements in paragraphs (c)(1) and (2) of this section; and
(ii) No later than June 9, 2026, comply with the additional
requirements in paragraph (c)(3) of this section.
(b) Written notice requirements. The written notice shall be
submitted by email to [email protected] and, at a minimum, include
the following:
(1) The name, title, address, telephone number, and email address
of the primary person(s) to be contacted regarding the written notice
and the operation;
(2) The location of the operation, with as much specificity as can
be provided, as to the characteristics of the geographic area through
which the trains will operate (e.g., population density and proximity
to environmentally sensitive areas), the terrain over which the trains
will be operated, industries or communities served, and track segments,
territories, divisions, or subdivisions operated over. For each legacy
one-person train crew freight operation under paragraph (a)(1) of this
section, the written notice must include business records or other
written documents supporting that the legacy operation was established
for at least two years before June 10, 2024. To establish a legacy one-
person train crew freight operation, the railroad must provide evidence
that the operation occurred at regular intervals under a set of defined
procedures or conditions;
(3) The class(es) of track operated over, the method of operation,
a list of the signal and train control systems, devices, and appliances
installed and in operation, and a list of all active and passive
highway-rail grade crossings, including crossing numbers;
(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 one-person
train crew will operate in a single tour of duty;
(7) The number and frequency of the trains involved, and the
maximum number of cars and tonnage set for the operation, if any;
(8) Whether the one-person train crew operation is permitted to
haul hazardous materials of any quantity and type, and the approximate
percentage of carload traffic in the one-person train crew 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
[[Page 25111]]
train crew operation, but does not apply to train crew operations with
two or more crewmembers;
(13) For each railroad seeking to continue a legacy freight train
operation staffed with a one-person train crew as permitted by
paragraph (a)(1) of this section, five (5) years of accident and
incident data, as required by part 225 of this chapter, for the
operation identified or, for operations established less than five (5)
years before June 10, 2024, accident and incident data for the
operation from the date the operation was established; and
(14) Any other information describing protections provided in lieu
of a second train crewmember, or relevant data or analysis, or both,
that the railroad can provide about its one-person train crew operation
and how that operation is as safe or safer than a two-person minimum
train crew operation.
(c) Additional requirements. Each railroad with an applicable one-
person train crew operation shall:
(1) Adopt and comply with an operating rule that satisfies the
requirements of this paragraph to ensure rail employees can take
mitigation measures that provide a level of safety that is as safe or
safer than a two-person train crew operation to address certain
situations with the one-person train crew operation.
(i) At a minimum, the operating rule shall address the following
types of situations:
(A) An accidental or non-accidental release of any hazardous
material;
(B) An accident/incident regardless of whether it is required to be
reported to FRA under part 225 of this chapter;
(C) A request from an emergency responder to unblock a highway-rail
grade crossing in response to a potentially life-threatening situation;
(D) A train or on-track equipment derailment;
(E) A disabled train; and
(F) An illness, injury, or other incapacitation of the one-person
train crewmember.
(ii) At a minimum, the operating rule shall:
(A) Describe the role and responsibilities of the one-person train
crewmember and any other railroad employees, including supervisors,
with responsibility to address a situation described in paragraph
(c)(1)(i) of this section; and
(B) Describe any logistics and the railroad's expected response
time(s).
(2) Adopt and comply with an operating rule that satisfies the
requirements of this paragraph to ensure radio or wireless
communications with a one-person train crew is as safe or safer than a
two-person train crew for train operations and crewmember safety. At a
minimum, the operating rule shall require that:
(i) The one-person train crew have a working radio or working
wireless communications on the controlling locomotive appropriate for
railroad communications as defined in Sec. 220.5 of this chapter, even
if not otherwise required in Sec. 220.9 of this chapter;
(ii) The train dispatcher or operator 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;
(iii) A one-person train crewmember must contact a railroad
employee, typically a dispatcher, a supervisor or manager, or an
intermittently assisting crewmember, whenever it can be anticipated
that radio or wireless communication could be lost, e.g., before the
train enters a tunnel, unless technology or a different protocol is
established to monitor the train's real-time progress; and
(iv) Procedures that establish when search-and-rescue operations
shall be initiated if all radio or wireless communication is lost with
a one-person train crewmember.
(3) Adopt and comply with an operating rule that satisfies the
requirements of this paragraph to ensure:
(i) A one-person train crew's controlling locomotive is equipped
with a functioning alerter that is operating as intended as defined in
Sec. 229.5 of this chapter. For each railroad that limits the one-
person train crew's operation to a maximum authorized speed of 25 miles
per hour and is not required to have an alerter on the locomotive that
is equipped per the requirements in Sec. 229.140 of this chapter, any
functioning alerter that is operating as intended will be acceptable if
it has a manual reset and will result in a penalty brake application
that brings the locomotive or train to a stop if not properly
acknowledged; and
(ii) That a one-person train crewmember must test that alerter to
confirm it is functioning before departure from each initial terminal,
or prior to being coupled as the lead locomotive in a locomotive
consist.
Sec. 218.131 Special approval petition requirements for train
operations staffed with a one-person train crew.
(a) General. With the exception of operations permitted under
Sec. Sec. 218.125 through 218.129, and as provided in paragraph (a)(2)
of this section:
(1) No railroad may operate a train with a one-person train crew
unless it receives special approval for the operation under this
subpart.
(2) For a railroad that has established a one-person train crew
operation before June 10, 2024, the railroad may continue the operation
in accordance with this section pending FRA's decision on the
railroad's special approval petition if:
(i) The railroad submits a written notice by email to
[email protected] no later than June 24, 2024 that, at a minimum,
provides a summary of the operation and the name, title, address,
telephone number, and email address of the primary person(s) to be
contacted regarding the written notice and the operation;
(ii) The railroad, in coordination with FRA, eliminates, mitigates,
or otherwise addresses any safety hazards related to the one-person
train crew operation FRA finds in reviewing the railroad's special
approval petition; and
(iii) The railroad submits its special approval petition, as
specified by the requirements in paragraph (b) of this section, no
later than August 7, 2024.
(3) Each freight railroad seeking to either initiate or continue a
train operation with a one-person train crew must receive FRA's special
approval for the operation under this subpart and shall comply with the
requirements in Sec. 218.129(c).
(4) Each passenger railroad seeking to initiate a train operation
with a one-person train crew must receive FRA's special approval for
the operation under this subpart 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 a train operation staffed with a one-
person train crew in the same filing.
(b) Petition for a train operation staffed with a one-person train
crew. Each petition for a train operation with a one-person train crew
that is not permitted under Sec. Sec. 218.125 through 218.129 must
contain sufficient information for FRA to determine whether approving
the operation described in the petition is as safe or safer than a two-
person minimum train crew operation. At a minimum, a petition must
include:
(1) The name, title, address, telephone number, and email address
of the primary person to be contacted
[[Page 25112]]
regarding review of the special approval petition;
(2) The location of the operation, with as much specificity as can
be provided, as to the characteristics of the geographic area through
which the trains will operate (e.g. population density and proximity to
environmentally sensitive areas), the terrain over which the trains
will be operated, 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, a list of the signal and train control systems, devices, and
appliances installed and in operation, and a list of all active and
passive highway-rail grade crossings, including crossing numbers;
(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 one-person train crew
operation;
(7) The maximum number of cars and tonnage proposed for the
operation, if any;
(8) Whether the railroad is seeking approval to transport hazardous
materials of the types or quantities specified in Sec. 218.123(c) or
whether the railroad is seeking approval to transport other 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 a one-person train crew. 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 or support 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 a one-person train crew, but does not
apply to train crew operations with two or more crewmembers;
(13) A copy of a railroad operating rule that will apply to the
proposed train operation(s) with a one-person train crew, and which
complies with the requirements of Sec. 218.129(c)(1), to ensure rail
employees can take mitigation measures that provide a level of safety
that is as safe or safer than a two-person train crew operation to
address certain situations with the one-person train crew operation. 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 crewmembers,
or, for operations established less than five (5) years before June 10,
2024, 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. 218.133;
(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. 218.133 Risk assessment content and procedures.
(a) General. A risk assessment submitted under this subpart must
meet the following requirements:
(1) Contain a list and descriptions of all functions, duties, and
tasks associated with the proposed operation to be performed by the
one-person train 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).
(2) Describe the allocation of all functions, duties, and tasks to
the one-person train crewmember, other railroad employee(s), or
equipment.
(3) Contain a risk-based hazard analysis for the proposed train
operation's functions, duties, and tasks, that shall:
(i) Identify any new hazards, changes to existing hazards and/or
changes to the risk of an existing hazard associated with the proposed
train operation, as compared to a two-person minimum train crew
operation, taking account of all aspects of the railroad's system,
including, at a minimum, infrastructure, equipment, technology, work
schedules, mode of operation, operating rules and practices, training
and other areas impacting railroad safety;
(ii) Calculate and/or update each risk, quantitatively or
qualitatively, or both, by assessing each new hazard, change to an
existing hazard and/or change to the risk of a hazard, in terms of the
severity and likelihood of a mishap;
(iii) Recalculate each risk mitigated in accordance with Sec.
218.131(b)(15), quantitatively or qualitatively, or both, by assessing
each new hazard, change to an existing hazard and/or change to the risk
of a hazard and the level of mitigation (elimination or reduction), in
terms of the severity and likelihood of a mishap; and
(iv) Provide a statement with supporting evidence that the one-
person train crew operation with a fully implemented mitigation plan is
as safe or safer than a two-person minimum train crew operation.
(4) Contain a mitigation plan that documents the design and
implementation timeline of the sustained mitigation strategies to
eliminate or reduce the overall risk to a level such that the one-
person train crew operation is as safe or safer than a two-person
minimum train crew operation, considering, at a minimum, the following:
(i) 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 degraded or failed state; and
(ii) The human factors associated with the processes and tasks to
be performed, including the required skills and capabilities, the
operating environment, and existing or potential impairments.
(b) Alternative standard. A railroad may petition the Associate
[[Page 25113]]
Administrator for Safety 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 for Safety 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 for Safety may approve
the use of the proposed alternative(s).
Sec. 218.135 Special approval procedure.
(a) Petition. Each railroad submitting a petition under Sec.
218.131 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. 218.131.
(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 to the docket identified in the Federal Register
notice.
(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 and
that approving the petition is as safe or safer than a two-person
minimum train crew operation, 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 as safe or safer than a two-person minimum train crew operation, 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. (1) 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. The new or updated risk assessment
must meet the requirements of Sec. 218.133 and be submitted by email
to [email protected] at least 60 days before the date proposed to
implement any such modification. For the purposes of this paragraph
(e), a material modification is a change:
(i) To a railroad's operations, infrastructure, locomotive control
technology, or risk mitigation technology, that may affect the safety
of the operation;
(ii) That would affect the assumptions underlying the risk
assessment on which an FRA approval under this section is based; or
(iii) That would affect the assumptions underlying the risk
assessment's risk calculations or mitigations on which an FRA approval
under this section is based.
(2) 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.
Sec. 218.137 Annual railroad responsibilities after receipt of
special approval.
(a) Each railroad that receives special approval to use an
operation with a one-person train crew under this subpart shall prepare
an annual report, which will be a formal review and analysis each
calendar year, of the one-person train crew operation. The annual
report, which will include a railroad's findings and conclusions from
its review, shall be submitted no later than March 31 of the following
year to [email protected]. The requirements in paragraphs (b) and
(c) of this section describe the components of a railroad's annual
report.
(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
one-person train crew operation that receives special approval under
this subpart.
(1) The total number of:
(i) FRA-reportable accidents/incidents 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 one-person train crew
operation receiving special approval under this subpart but not
applicable to train crew operations with two or more crewmembers that
travel on the train;
(ix) Instances where a one-person train crewmember had a locomotive
engineer or conductor certification revoked for violation of an
operating rule or practice that occurred when the person was operating
a one-person train crew operation receiving special approval under this
subpart. In addition to the total number of these instances, the
railroad must report the subtotals for each type of certification
revoked;
(x) Accountable rail equipment accidents/incidents under part 225
of this chapter;
(xi) Instances when the railroad was required to comply with an
operating rule to ensure rail employees can take mitigation measures
that provide a level of safety that is as safe or safer than a two-
person train crew operation to address certain situations with the one-
[[Page 25114]]
person train crew operation under Sec. 218.131(b)(13);
(xii) Instances when a dispatcher, operator, or other required
employee unexpectedly lost communication with the one-person train crew
operation receiving special approval under this subpart;
(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 receiving special approval under
this subpart, including all calculations and assumptions, remains
unchanged 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 receiving special approval under this subpart, a new or
updated risk assessment meeting the requirements of Sec. 218.133 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. 218.135.
(2) Any new or updated risk assessment submitted in accordance with
paragraph (c) of this section 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 in accordance with paragraph (a) of this section by
September 30 of the year it is submitted.
(1) FRA's response may include advice or recommendations; and
(2) For a one-person train crew operation receiving special
approval under this subpart, FRA may reopen consideration of a petition
under Sec. 218.135 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 as safe
or safer than a two-person train crew operation.
0
6. Add appendix E to part 218 to read as follows:
Appendix E to Part 218--Recommended Procedures for Conducting Risk
Assessments
A railroad petitioning to operate with a one-person train crew
in accordance with Sec. 218.133 must prepare a risk-based hazard
analysis that quantitatively and/or qualitatively demonstrates that
the proposed operation using a one-person train crew will be as safe
or safer than an operation using a two-person train crew under
normal operation and in a degraded or failed state. This appendix
provides one approach that may be used by a railroad to prepare a
risk-based hazard analysis and compare the risks to determine if a
proposed one-person train crew operation will be as safe or safer
than a two-person minimum train crew operation, when all mitigations
are in place. A railroad is not restricted to this approach and may
use another formal safety methodology that fulfills the requirements
of Sec. 218.133.
Quantitative Risk-Based Hazard Analysis
(a) Identify new hazards, changes to existing hazards or changes
to the risk of existing hazards of the one-person train crew
operation, as compared to a two-person minimum train crew operation,
as provided in Sec. 218.133(a)(3)(i).
(b) Calculate and/or update each risk of the one-person train
crew operation, as compared to a two-person minimum train crew
operation, by assessing each new hazard, change to an existing
hazard and/or change to the risk of an existing hazard, in terms of
the severity and likelihood of potential events using the following
framework:
(1) The assessment of the severity is measured as the worst-
credible mishap resulting from the hazard and categorized in
accordance with Table 1 of this paragraph (b)(1):
Table 1 to Paragraph (b)(1)
------------------------------------------------------------------------
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 damage(s) that
do not require repair.
------------------------------------------------------------------------
[[Page 25115]]
(2) The assessment of probability of occurrence as defined in
Table 2 of this paragraph (b)(2):
Table 2 to Paragraph (b)(2)
----------------------------------------------------------------------------------------------------------------
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.
(c) Applying the sustained mitigation strategies designed and
implemented in accordance with Sec. 218.133(a)(4), recalculate the
risk using the framework documented in paragraph (b) of this
appendix.
(d) Prepare a risk matrix in the format of Table 3 of this
paragraph (d) that classifies the risks calculated in paragraph (c)
of this appendix in terms of severity and likelihood of each new
hazard, change to an existing hazard, or change to the risk of an
existing hazard as follows:
Table 3 to Paragraph (d)
----------------------------------------------------------------------------------------------------------------
Severity
Probability ----------------------------------------------------------------------------------
(1) Catastrophic (2) Critical (3) Marginal (4) Negligible
----------------------------------------------------------------------------------------------------------------
Risk Matrix
----------------------------------------------------------------------------------------------------------------
(A) FREQUENT................. 1A 2A 3A 4A
(B) PROBABLE................. 1B 2B 3B ..................
(C) OCCASIONAL............... 1C 2C 3C 4C
(D) REMOTE................... 1D 2D 4D ..................
(E) IMPROBABLE............... 1E 3E 4E ..................
----------------------------------------------------------------------------------------------------------------
(e) Prepare a risk report of the train operation staffed with a
one-person train crew, as compared to a two-person minimum train
crew operation, documenting the basis for acceptability of all new
hazards, changes to existing hazards and/or changes to the risk of
existing hazards identified in the matrix required by paragraph (d)
of this appendix. The risk report should categorize the risk of each
new hazard, change to existing hazard and/or change to the risk of
an existing hazard as follows:
(1) 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 new hazard, change to existing hazard and/or
change to the risk of an existing hazard in this category as FRA
will not approve an operation with a partially mitigated or
unmitigated hazard that is categorized as unacceptable;
(2) Acceptable under specific conditions. Categories 1E, 2D, 3C,
3D, 4B, and 4C are acceptable under specific conditions. A
railroad's risk report should describe why the railroad finds the
conditions acceptable. A new hazard, change to existing hazard and/
or change to the risk of an existing hazard will be acceptable under
specific conditions if FRA finds that the one-person operation is as
safe or safer than a two or more-person operation; and
(3) Acceptable. Categories 2E, 3E, 4D, and 4E are acceptable.
FRA will not deny a petition for special approval solely on the
basis an appropriately categorized acceptable new hazard, change to
existing hazard and/or change to the risk of an existing hazard if
the one-person operation is as safe or safer than a two-person
minimum operation.
(f) Provide a statement with supporting evidence, that the one-
person operation with a fully implemented mitigation plan, is as
safe or safer than a two-person minimum operation.
Amitabha Bose,
Administrator.
[FR Doc. 2024-06625 Filed 4-8-24; 8:45 am]
BILLING CODE 4910-06-P
