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

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

III. RSAC Overview

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

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

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

* Indicates associate, non-voting membership.

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

IV. No Recommendation From the RSAC Working Group

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

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

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

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

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

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

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

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

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

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

V. FRA's Overall Post-RSAC Approach

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

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

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

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

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

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

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

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

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

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

D. Electronic Submission and Approval Process

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

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

VI. Section-by-Section Analysis

Section 218.5 Definitions

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

Section 218.121 Purpose and Scope

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

Section 218.123 Definitions

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

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

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

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

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

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

Section 218.127 General Exceptions to Two-Person Crew Requirement

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

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

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

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

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

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

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

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

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

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

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

show that the railroad has run a particular one-person train for 3 days
per week for 5 years without incident. That kind of information would
show the operation actually existed and was safe. A railroad that could
not provide any documentation of a supposedly existing operation would
be viewed with skepticism. Maybe, FRA would need to interview employees
and supervisors to determine whether the operation actually existed,
and to develop the parameters of the operation.
    If the railroad has not previously conducted a safety analysis of
the one-person train operation that it can use for its submission to
FRA, it will be required to do one to comply with this proposed rule
under either option. The difference between the co-proposals is that
Option 1 requires the safety analysis to be submitted to FRA with the
description of the one-person train operation while Option 2 requires
that the railroad conduct the safety analysis and make it available to
FRA upon request. Railroads that do not maintain separate records on
the safety of their one-person crew operations will have to describe
the one-person crew operation and should be able to approximate the
relevant data. For example, a railroad might describe that on the route
under consideration: Five one-person trains operate per week on
average, each train operates a distance of about 50 miles, only one
train per week carries any hazardous materials, and the one-person
operation has resulted in two reportable accidents in 10 years,
providing the dates of the accidents. A railroad might add that there
are no other train operations in the vicinity of these one-person
operations when they are active, and that includes on the same track or
adjacent track. FRA requests public comments on the extent to which
railroads have sufficient records to provide FRA reliable safety
analysis or data of their one-person crew operations.
    The requirement for a railroad to provide the eleven numbered items
listed under proposed paragraph (a) is intended to solicit significant
information that FRA will need to make an objective decision on whether
to allow the continuance of an operation established prior to January
1, 2015. Sometimes, FRA should be able to look at the collected
information and determine that the operation is in compliance on its
face with all applicable rail safety regulations and does not appear to
pose any unacceptable risks. Generally, these operations would be low-
speed operations, on well-maintained track where the one-crewmember
train would have a fairly predictable schedule or one that minimizes
fatigue, and would not contain any variables suggesting a catastrophic
accident is foreseeable. For example, FRA would expect to approve the
continuation of a freight operation under Option 1, or not issue a
disapproval under Option 2, under the following circumstances: (1) 70
Percent or more of the railroad's carload traffic is non-hazardous
materials; (2) the railroad has adopted crew staffing rules and
practices to ensure compliance with all Federal rail safety laws,
regulations, and orders; (3) the maximum authorized track speed for the
operation is 40 mph; (4) the one-person train crewmembers have set
daytime schedules with little fluctuation; (5) the one-person train
crewmembers average on-duty time is less than 9.5 hours per shift; (6)
the operation is structured so that the one-person crewmember would not
have to leave the locomotive cab except in case of emergency; (7) the
railroad has a rule or practice requiring the one-person crew to
contact the dispatcher whenever it can be anticipated that
communication could be lost, e.g., prior to entering a tunnel; (8) the
railroad has a rule or practice requiring the one-person crew to test
the alerter on the lead locomotive and confirm it is working before
departure; (9) the railroad has a rule or practice requiring dispatcher
confirmation with the one-person crew that the train is stopped before
issuing a mandatory directive; (10) the railroad has a rule or practice
requiring a one-person crew have an operable cell phone and radio, and
both must be tested prior to departure; and (11) the railroad has a
method of determining the train's approximate location when
communication is lost with the one-person crew unexpectedly and a
protocol for determining when search-and-rescue operations must be
initiated. FRA is providing this example for illustrative purposes, to
spur understanding of the agency's position and encourage public
feedback. Although FRA feels strongly that the example would meet FRA
approval, there may be other facts or circumstances about an operation
beyond the description provided that would change how FRA viewed a