arrangements than in 2016. In 2016, FRA identified fourteen Class II
and III railroads operating single-person train operations,\154\ but
FRA's analysis in 2021 identified only seven of those same freight
railroads maintaining such operations.\155\ Also, in the 2016

NPRM, FRA received correspondence from the American Short Line and
Regional Railroad Association assuring FRA that its members carefully
considered safety concerns when assigning train crew staff. FRA
understood this to mean that railroads conducting one-person train crew
operations did not implement the operation until a safety analysis was
performed.\156\ Considering the low number of known short line and
regional railroad operations with fewer than two train crewmembers, few
Class II and III freight railroads are expected to initiate use of
fewer than two train crewmembers in the near future, and the proposed
legacy option should permit the continuance of those operations with a
good safety record. FRA requests comment on any additional short line
and regional freight railroads conducting one-person train crew
operations and the interest of railroads to conduct one-person train
crew operations in the future.
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    \154\ 81 FR at 13940.
    \155\ As of February 4, 2021, FRA identified the following seven
railroads as operating with a one-person train crew: (1) Indiana
Rail Road; (2) California Northern Railroad Company; (3) Ventura
County Railroad Company; (4) Modesto and Empire Traction Company;
(5) Pacific Harbor Line Inc.; (6) City of Prineville Railway; and
(7) Portland and Western Railroad, Inc.
    \156\ 81 FR 13937.
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    Freight train operations may currently utilize one crewmember who
is dual-certified as both a locomotive engineer and a conductor, along
with a second crewmember that may be lacking many of the relevant
qualifications normally associated with a conductor. In FRA's
observations, this is an uncommon occurrence. Rather, it is more common
to observe a freight railroad using two dual-certified crewmembers,
allowing the crewmembers to take turns operating the locomotive and
performing the conductor's duties. However, a freight railroad is
currently not prohibited from deploying a dual-certified crewmember
with a brakeman, or other operating crewmember as a second crewmember,
even though the employee lacks the versatility and training of a
conductor, which could raise questions regarding the safety of such a
two-person operation. Presumably, a second crewmember who is not a
conductor, but is traveling with the train, would handle physical tasks
that require a crewmember to dismount from the train, such as throwing
a switch, protecting a highway-rail grade crossing, and conducting
brake tests. Additionally, a second crewmember who is not a conductor
could help identify signal indications and assist the locomotive
engineer with radio communications, among other duties. However, a
second crewmember who is not a conductor would have fewer
responsibilities when compared to a conductor, and the contributing
value to the team would likely be less. For example, a second
crewmember who is not a conductor would be expected to have training on
fewer safety issues compared to a conductor and therefore may not have
the knowledge to discuss or resolve as many operational questions as a
conductor.
    Similar operational concerns could arise with current practices
that allow use of a second person who is more like a utility employee
\157\ than a crewmember who is assigned to a train. There are certainly
some duties that a utility employee can perform for a train crew that
would typically be performed by a freight conductor if the crew had a
second crewmember who was a freight conductor. However, unlike a
crewmember, the utility employee is neither in the locomotive cab with
the locomotive engineer nor in near constant radio communication with
the locomotive engineer while the train is moving, and therefore cannot
replace all the conductor's duties and accompanying safety benefits.
---------------------------------------------------------------------------

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

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

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

    Multiple train crewmembers are typically necessary on a passenger
train to meet the requirements of FRA's passenger train emergency
preparedness rule,\159\ which is intended ``to reduce the magnitude and
severity of casualties in railroad operations by ensuring that
railroads involved in passenger train operations can effectively and
efficiently manage passenger train emergencies.'' \160\ There are
numerous ways that passenger train crewmembers, other than the
locomotive engineer, can assist the passengers in an emergency.
Emergencies can require evacuations in various types of circumstances
where a trained person would be helpful to guide passengers away from
danger. For example, passengers that self-evacuate might not realize
that they could step on an electrified rail or be struck by a train
approaching on an adjacent track. Evacuations in remote areas, in
tunnels, or on bridges also pose significant dangers to passengers and
are places where crewmembers must be trained on safe methods to assist
passengers.
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    \159\ 49 CFR part 239.
    \160\ 49 CFR 239.1(a).
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    A one-person passenger train crew would have significant difficulty
coordinating any type of evacuation, especially in difficult terrain,
or if there are large numbers of passengers or other logistical
challenges. Furthermore, although posted emergency evacuation signs and
instructions for train passengers can be useful, and are indeed
required by FRA regulation, the crew's presence is likely to improve
instruction to passengers and facilitate situational awareness.
    Although passenger train conductors normally do not ride in or next
to the locomotive cab with the locomotive engineer for more than a few
minutes at a time, passenger train conductors are integral to the
train's safe operation. For instance, passenger train conductors assist
with train inspection, train makeup, form and record management,
troubleshooting, and repair. Passenger train conductors also maintain
verbal communication with the locomotive engineer, even though they are
often not in the locomotive cab. A well-trained passenger train
conductor will recognize passing landmarks and communicate important
information by radio to the locomotive engineer.
    One safety concern for passenger train crew staffing, similar to
the concern expressed above for freight train crew staffing, is that a
passenger railroad will use one crewmember who is dual-certified as
both a locomotive engineer and a conductor, but the second crewmember
is not a certified conductor and may be lacking many of the relevant
qualifications normally associated with a passenger train conductor. If
a second passenger train crewmember is not a passenger conductor, the
second person would have fewer responsibilities when compared to a
passenger conductor, and the contributing value to the team would
likely be less. As in the freight

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

    \161\ 49 CFR 218.5 (defining ``train or yard crew,'' in part, by
requiring that the crew be called ``to perform service covered by
Section 2 of the Hours of Service Act.'').
    \162\ As of October 25, 2021, FRA identified the following
passenger train operations as operating with a one-person train
crew: (1) Denver Regional Transportation District/Denver Transit
Operators; and (2) Utah Transit Authority's FrontRunner.
    \163\ 49 CFR 239.7 (defining ``crewmember,'' in part, to include
``a person, other than a passenger, who is assigned to perform . . .
[o]n-board functions in a sleeping car or coach assigned to
intercity service, other than food, beverage, or security service'',
and 49 CFR 239.101(a)(2), addressing employee training and
qualification of all ``on-board personnel,'' whether in intercity or
commuter passenger train service).
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3. Tourist Train Operations
    Currently, the typical train crew staffing arrangement for tourist
train operations is like that for passenger train service, with a
locomotive engineer located in the locomotive cab and a conductor, and
potentially one or more assistant conductors, riding in the passenger
cars. The assistant conductors may go by a different title as tourist
train operations usually have paid or volunteer train crewmembers that
can assist passengers in case of an emergency. Tourist train operations
are not required to comply with FRA's passenger train emergency
preparedness requirements, whether the operation is on or off the
general railroad system.\164\ Although FRA is unaware of any tourist
train operation on the general railroad system of transportation that
operates with a one-person train crew, FRA proposes to include tourist
train operations in this rulemaking to ensure tourist trains continue
to be appropriately staffed for safety. All tourist operations can
likely meet the requirements or exceptions proposed in the rule without
altering their operations and, therefore, would not incur any costs.
---------------------------------------------------------------------------

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

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

G. Ensuring Safety in the Future

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

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

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

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

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

1. Positive Train Control (PTC) Systems
    PTC systems must be designed to prevent the following accidents or
incidents: train-to-train collisions, over-speed derailments,
incursions into established work zones, and movements of trains through
switches left in the wrong position,\168\ and therefore the
implementation of a PTC system helps improve the safety of rail
operations, including any one-person train operation. However, PTC
systems do not completely perform all the job functions of a conductor.
Based on the research already described and FRA's understanding of PTC
systems, PTC does not: (1) check the engineer's alertness, which
includes ensuring that the engineer is not fatigued, under the
influence of any controlled substance or alcohol, or distracted by
using a prohibited electronic device; (2) fill in the knowledge or
experience gaps of the sole crewmember about how to address a
particularly difficult operating problem, or help in diagnosing and
responding to train problems and other exceptional situations; (3)
assist in the physically demanding task of securing a train with hand
brakes, typically at the end of a tour of duty when the crew is looking
forward to going off-duty; (4) assist in flagging highway-rail grade
crossings when necessary after PTC slows or stops a train before
traversing the crossing or breaking up the train at such crossings to
avoid blocking them from highway users for extended periods; (5) update
train consist information arising from the set-out and pickup of cars;
(6) protect the point, i.e., the leading end of the train movement,
during shoving or pushing movements that are not protected by PTC,
where the locomotive engineer is not operating from the leading end of
the leading locomotive in a position to visually determine conditions
in the direction of movement; (7) assist a locomotive engineer when
complying with ``restricted speed,'' which requires a locomotive
engineer to stop the train within one half the engineer's range of
vision to avoid colliding with on-track equipment and operating through
misaligned switches; \169\ or (8) assist the train if the PTC system
fails en route or enters non-PTC territory. Furthermore, the research
suggests that, because PTC technology may require locomotive engineers
to focus more of their attention on in-cab displays, it will reduce
their ability to monitor activity outside the cab and raises a question
about whether the engineers will lose any situational awareness in
relation to the coherent mental picture (i.e., the situation model) of
where the engineer perceives the train to be based on prior experience.
Moreover, if the PTC system fails to initialize or fails en route, in
certain circumstances, the train may still be operated and in the event
a one-person crew was involved, that sole crewmember would not have the
benefit of either PTC or a second crewmember.\170\ Thus, while PTC is a
safety overlay to help prevent certain accidents, FRA's PTC regulations
do not include the requirements to perform crewmember job functions,
which are essential to prevent or mitigate other accidents.
---------------------------------------------------------------------------

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

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

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

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

2. Railroad Safety Risk Reduction Programs
    As codified in 49 CFR parts 270 and 271, FRA requires Class I
railroads, railroads with inadequate safety performance, and passenger
rail operations to implement railroad safety risk reduction programs. A
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of
risk by identifying and analyzing identified hazards and developing
strategies to mitigate risks associated with those hazards. In this
background, FRA is using the term ``railroad safety risk reduction
programs'' to include both a ``system safety program'' (SSP) that is
required for certain passenger rail operations \172\ and a ``risk
reduction program'' (RRP) that is required for a limited number of
other rail operations.\173\
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    \172\ 49 CFR 270.3 (requiring the application of the system
safety rule to certain passenger rail operations).
    \173\ 49 CFR 271.3 (requiring the application of the risk
reduction program rule to certain rail operations).
---------------------------------------------------------------------------

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

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

    Accordingly, while the safety risk reduction program requirements
may complement this proposed rule, they do not address the need for FRA
and the railroads to consider and address the safety risks of
operations utilizing fewer than two crewmembers across the entire
industry.
3. Fatigue Risk Management Programs
    On June 13, 2022, FRA published a final rule adding a Fatigue Risk
Management Program (FRMP) to the railroad safety risk reduction program
requirements in parts 270 and 271.\176\ An FRMP is a comprehensive,
system-oriented approach to safety in which a railroad determines its
fatigue risk by identifying and analyzing applicable hazards, and
developing plans to mitigate, if not eliminate, those risks. Like the
railroad safety risk reduction program rules, the final rule is part of
FRA's continual efforts to improve rail safety and will satisfy the
statutory mandate of Section 103 of the Rail Safety Improvement Act of
2008.\177\
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    \176\ 85 FR 83484.
    \177\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------

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

I. Risk Assessments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    There are several reasons for this uncertainty. First, based on
FRA's experience, it appears that during the last five years, Class II
and III short line and regional freight railroads have reduced the
number of one-person legacy operations; however, FRA's information may
be incomplete and there may be more operations that FRA does not know
about or railroads that are considering initiating such an operation.
Second, because collective bargaining agreements typically govern crew
size on Class I railroads, those railroads will need their labor
organizations to agree to any reductions in crew sizes through the
collective bargaining process before implementation of a new operation
with fewer than two crewmembers. Major labor organizations opposed such
reductions when they challenged FRA's 2019 Withdrawal. Third, passenger
train operations still need to comply with or seek a waiver from FRA's
passenger train emergency preparedness requirements in 49 CFR part 239
but may also find alternative methods that are acceptable to FRA.
Finally, tourist train operations are the least likely type of
operation to embrace fewer than two-person train crews given the nature
of their operations.
    FRA is proposing in Sec.  218.133 that a railroad seeking to
initiate a train operation with fewer than two crewmembers file for
FRA's review and approval a petition thoroughly describing the proposed
operation, including a risk assessment specific to the proposed
operation. As proposed, the risk assessment requirement is designed to
ensure railroads conduct a comprehensive, objective assessment of the
risks of a planned train operation with fewer than two crewmembers.
Although some level of risk is inherent in all transportation
activities, risk can be reduced, in some cases to a negligible level,
through effective operational practices, technology deployment, and
implementation of mitigating measures.
    This proposed risk assessment would be considered separate from any
railroad safety risk reduction program required under part 270 or 271,
and therefore would not be covered by either rule's provision
protecting certain information from use in litigation proceedings for
damages. Both these provisions apply only to information compiled or
collected ``solely'' for the purpose of either part 270 or 271, and
specifically exclude ``information that is required to be compiled or
collected pursuant to any other provision of law or regulation.'' \188\
Further, FRA's statutory authority for establishing these litigation
information protections requires FRA to first conduct a study to
determine whether such protections are in the public interest.\189\
While FRA issued the litigation information protection provisions in
parts 270 and 271 based on such a study, that study did not address
whether FRA should extend litigation protections to risk analyses that
were not required to be part of a complete railroad safety risk
reduction program, such as the risk assessment proposed in this
rulemaking.
---------------------------------------------------------------------------

    \188\ See 49 CFR 270.105(a)(2) and 271.11(a)(2).
    \189\ See 49 U.S.C. 20119.
---------------------------------------------------------------------------

    FRA notes that it has statutory discretion to prohibit public
disclosure under the Freedom of Information Act \190\ (FOIA) of risk
analyses and risk mitigation analyses it obtains, if it determines that
the prohibition of public disclosure is necessary to promote public
safety.\191\ FRA currently does not believe, however, that exercising
its discretion in this manner would be consistent with the provisions
of this proposed rule that make petitions and the risk analyses they
contain available for public comment. Because FRA finds that making the
petitions and accompanying risks analyses available for public comment
is critical to ensure transparency of the approval process, FRA
concludes that protecting them from public disclosure under FOIA is not
necessary to promote public safety. FRA nevertheless requests public
comment on whether to exercise its discretion to prohibit the public
disclosure of the proposed risk assessments under FOIA, as well as
alternative options that would allow for some disclosure protection but
still allow for meaningful public comment.
---------------------------------------------------------------------------

    \190\ 5 U.S.C. 552 and see 49 CFR part 7 (stating DOT's FOIA
regulation).
    \191\ See 49 U.S.C. 20118(c) (stating that ``[t]he Secretary may
prohibit the public disclosure of risk analyses or risk mitigation
analyses that the Secretary has obtained under other provisions of,
or regulations or orders under, this chapter if the Secretary
determines that the prohibition of public disclosure is necessary to
promote railroad safety'').
---------------------------------------------------------------------------

    As proposed, FRA will evaluate a railroad's risk assessment to
determine whether the assessment:
    1. Accurately identifies all hazards associated with the proposed
operation (or proposed material modification to an existing operation);
    2. Appropriately categorizes all identified hazards according to
their risks (likelihood and severity); and
    3. Identifies and provides for the implementation of appropriate
mitigations measures for identified hazards.
    As discussed in the Risk Assessment section above, FRA does not
expect that a railroad will prove that a proposed operation is
absolutely safe. Some level of risk is involved in every transportation
operation, and every rail operation, even rail operations with two or
more crewmembers that exist today. However, a railroad's risk
assessment should provide evidence that risks associated with the
proposed operation have been carefully considered and that steps have
been taken to eliminate or mitigate those risks, particularly those
risks found to have significant potential safety impacts.
    As proposed, FRA will approve a petition only if it finds doing so
would be consistent with railroad safety. FRA expects to approve a
petition if the Associate Administrator for Railroad Safety
independently determines that a railroad's safety case establishes that
the proposed operation will not result in an unacceptable level of
risk. In terms of the proposed risk assessment methodology, FRA will
approve a petition if the Associate Administrator independently
determines that a railroad's safety case establishes an acceptable
level of risk generally or an acceptable level of risk under specific
conditions identified.\192\ An unacceptable level of risk would be a
level of risk that would make the particular operation inconsistent
with railroad safety (e.g., a risk that poses catastrophic consequences
and is likely to happen on more than an improbable basis or a risk that
poses a negligible consequence but is likely to occur frequently). In
making such a determination, the Associate Administrator will consider
all supporting data and information a railroad submits with a petition
and the accuracy of a railroad's risk assessment and effectiveness of
mitigating actions identified. If FRA identifies inaccuracies in the
supporting data or information submitted with a railroad's petition, it

will not approve the petition. Similarly, if FRA identifies flaws in
the analysis underlying a railroad's risk assessment, FRA will not
approve the petition.
---------------------------------------------------------------------------

    \192\ See proposed Sec.  218.135(a)(6).
---------------------------------------------------------------------------

    FRA acknowledges that the appropriateness of specific mitigating
measures will depend on the specific context of individual operations
(i.e., what may be an appropriate risk mitigation measure for one
railroad's operation, may not be an equally appropriate mitigating
measure for another railroad's operation). Accordingly, FRA will
evaluate each petition and supporting risk assessment in the context of
the specific facts of the proposed operation.
    FRA also recognizes that the risk mitigation measures a railroad
identifies may not mitigate every identified hazard, but FRA expects
the mitigation measures to address the identified hazards with the most
significant potential safety impacts to ensure that the overall level
of risk of a proposed operation is reduced to an acceptable level. The
proposed risk assessment requirement is discussed in more detail in the
section-by-section analysis of Sec.  218.135.
    FRA anticipates that it would grant petitions that build their risk
assessment on accurate information, provide a properly executed risk
assessment, and show that hazards not mitigated completely are
reasonably determined to be acceptable. FRA anticipates that it would
deny a petition if information or data on which a railroad builds its
risk assessment is not accurate, the risk assessment is not properly
executed, or any partially mitigated or unmitigated hazards are
determined (by either the submitting railroad or FRA) to be generally
unacceptable or unacceptable under the specific circumstances proposed.
3. Automated Operations
    The rail industry is anticipating a future growth in automation and
is concerned about how a train crew staffing rule might unnecessarily
impede the future of rail innovation and automation. As noted in
section III.D above and further explained below, FRA does not expect
this rule to impede the future of rail innovation, nor does it expect
this rule to allow the rail industry to bypass the existing waiver or
other existing regulatory processes that may be necessary for automated
operations to be implemented in compliance with FRA's safety
regulations.\193\
---------------------------------------------------------------------------

    \193\ See 49 CFR part 211, subparts C and E (providing FRA's
rules of practice for waivers and miscellaneous safety-related
proceedings and inquiries).
---------------------------------------------------------------------------

    In March 2018, FRA published a Request for Information (RFI) on the
future of automation in the railroad industry.\194\ In the RFI, FRA
sought information from industry stakeholders, the public, local and
State governments, and other interested parties on the extent to which
they believe railroad operations can (and should) be automated, as well
as the potential benefits, costs, risks, and challenges to achieving
such automation. FRA also sought comment on how it could best support
the development and implementation of new and emerging automation
technologies in railroad operations.
---------------------------------------------------------------------------

    \194\ 83 FR 13583 (Mar. 29, 2018), Request for Information:
Automation in the Railroad Industry (Docket FRA-2018-0027).
---------------------------------------------------------------------------

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

    \195\ 5 U.S.C. 551-559.

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

IV. Section-by-Section Analysis

Section 218.5 Definitions

    The NPRM proposes to add 11 definitions that will be applicable to
all of part 218--Railroad Operating Procedures. Part 218 prescribes
minimum requirements for railroad operating rules and practices. As the
proposed defined terms are not currently used in the existing
requirements, the proposed definitions are not expected to change the
meaning of those requirements.
    The proposed rule defines the term ``Associate Administrator'' so
that a petition can be directed to the attention of the proper FRA
official who will need to review it for special approval. A definition
of ``FTA'' is proposed for those railroads that come under the Federal
Transit Administration's jurisdiction and would be expecting FRA to
recognize FTA's authority to regulate certain types of operations.
    FRA proposes to define four terms that relate specifically to the
risk assessment content and procedures requirements in proposed Sec.
218.135. These terms are: hazard; mishap; risk; and risk assessment.
The meaning of these terms is discussed in more detail in the analysis
of Sec.  218.135.
    To clarify that a ``train'' does not include switching operations,
FRA proposes a definition for ``switching service'' that is consistent
with the way FRA has defined the term in other regulations.\196\
Switching service means the classification of rail cars according to
commodity or destination; assembling cars for train movements; changing
the position of cars for purposes of loading, unloading, or weighing;
placing locomotives and cars for repair or storage; or moving rail
equipment in connection with work service that does not constitute a
train movement. FRA has not limited switching service to yard limits,
although switching service often takes place within a rail yard.
---------------------------------------------------------------------------

    \196\ See, e.g., 49 CFR 229.5, 232.5 and 238.5.
---------------------------------------------------------------------------

    FRA proposes a definition of ``tourist train operation'' as a short
form of reference to a ``tourist, scenic, historic, or excursion train
operation.'' The proposed rule also provides a definition for the
phrase ``tourist train operation that is not part of the general
railroad system of transportation'' to explain the plain meaning of
that phrase. The phrase means a tourist, scenic, historic, or excursion
operation conducted only on track used exclusively for that purpose
(i.e., there is no freight, intercity passenger, or commuter passenger
railroad operation on the track). Any freight, intercity passenger, or
commuter passenger railroad operation on the track would make the track
part of the general system.\197\ In the section-by-section analysis for
Sec.  218.127, there is an explanation for why FRA is proposing an
exception for a tourist train operation that is not part of the general
railroad system of transportation.
---------------------------------------------------------------------------

    \197\ See 49 CFR part 209, appendix A.
---------------------------------------------------------------------------

    The proposed rule defines ``trailing tons'' to mean the sum of the
gross weights--expressed in tons--of the cars and the locomotives in a
train that are not providing propelling power to the train. This term
has the same meaning as in 49 CFR 232.407(a)(5), which is a regulation
concerning end-of-train devices. The NPRM needs this term to help
define what a work train is in Sec.  218.129(c)(2).
    The NPRM proposes a definition of ``train'' that is consistent with
the way FRA has defined the term in other regulations.\198\ For
purposes of this proposed rule, a train means one or more locomotives
coupled with or without cars, except during switching service. The term
``switching service'' is also defined in the proposed section. The
proposed definition of train is not intended to contain all the
exceptions to the crew size and the location of crewmember
requirements; instead, those exceptions are found in other sections,
clearly identified as exceptions, in the proposed rule text.
---------------------------------------------------------------------------

    \198\ See, e.g., 49 CFR 234.5 (defining ``train'' for grade
crossing safety standards), 49 CFR 236.1003 (defining ``train'' for
PTC systems), 49 CFR 238.5 (defining ``train'' for passenger
equipment safety standards), and 49 CFR 241.5 (defining ``movement
of a train'' for extraterritorial dispatching requirements). In each
example, a ``train'' may be made up of one or more locomotives, with
or without cars. Wording differences in the definition of ``train''
between regulations are attributable to the specific structure or
application of each regulation.
---------------------------------------------------------------------------

Section 218.121 Purpose and Scope

    Proposed paragraph (a) states that the purpose of proposed subpart
G is to ensure that each train is adequately staffed and has
appropriate safeguards in place for safe train operations under all
operating conditions. To ensure adequate staffing, the NPRM prescribes
minimum requirements for the size of different train crew staffs
depending on the type of operation, as described in paragraph (b) of
this section.
    Proposed paragraph (b) provides that subpart G prescribes minimum
requirements for the size of different train crew staffs depending on
the type of operation and operating conditions. The decision to propose
a requirement for a minimum number of crewmembers on certain types of
operations is intended to ensure that each railroad implementing
operations with fewer than two train crewmembers has adequately
identified potential safety risks and taken mitigation measures to
reduce the chances of accidents, as well as the impact of any accident
that may still occur. Proposed paragraph (b) also provides that subpart
G prescribes minimum requirements for the location of a second train
crewmember on a moving train, and promotes safe and effective teamwork.
Moreover, proposed paragraph (b) would expressly allow each railroad to
prescribe additional or more stringent requirements in its operating
rules, timetables, timetable special instructions, and other
instructions.

Section 218.123 General Train Crew Staffing Requirements

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

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

    Proposed paragraph (c)(2) would require a minimum of two
crewmembers for any train that contains one or more car loads of any
material designated as RSSM as defined in 49 CFR 1580.3. Currently, a
hazardous material shipment of RSSM can be any one of the following
three types of shipments: (1) a rail car containing more than 2,268 kg
(5,000 lbs.) of a Division 1.1, 1.2, or 1.3 (explosive) material, as
defined in 49 CFR 173.50; (2) a tank car containing a material
poisonous by inhalation as defined in 49 CFR 171.8, including anhydrous
ammonia, Division 2.3 gases poisonous by inhalation as set forth in 49
CFR 173.115(c), and Division 6.1 liquids meeting the defining criteria
in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard
zone B in accordance with 49 CFR 173.133(a), excluding residue
quantities of these materials; and (3) a rail car containing a highway
route-controlled quantity of a Class 7 (radioactive) material, as
defined in 49 CFR 173.403.
    The general requirement in proposed paragraph (d) is that a
crewmember, other than the crewmember operating the train, may be
located anywhere outside of the operating cab of the controlling
locomotive when the train is moving under certain conditions. The NPRM
is written under the premise that the locomotive engineer is the first
crewmember, i.e., the crewmember operating the train, and is always
located in the cab of the controlling locomotive when the train is
moving because that is the only location from which the train can be
operated unless the controlling locomotive is being operated remotely--
and there is a proposed exception for remote control operations in
Sec.  218.129.(c)(3).\200\ The second crewmember is typically a
conductor, under 49 CFR part 242; however, as the locomotive engineer
could be a certified conductor, it is possible that a second, or
additional, crewmember could be designated as having a job title other
than conductor and not require a locomotive engineer or conductor
certification.\201\ Crewmembers that are not operating the train may
also include persons who are training to become certified locomotive
engineers or conductors, or other operations employees assigned as
crewmembers.
---------------------------------------------------------------------------

    \200\ This premise is based on the historical understanding
that, aside from remote control operations, a train cannot be
operated without a locomotive engineer in the cab of the controlling
locomotive, because that is where the controls stand is located. See
e.g., 49 CFR 229.115 through 229.140, for requirements for
locomotive cabs and cab equipment.
    \201\ See 49 CFR 240.308 and 242.213.
---------------------------------------------------------------------------

    The proposed requirement in paragraph (d) is written with an
expectation that, in many operations, the best location for the
conductor is in the cab of the controlling locomotive when the train is
moving. When a conductor is in the cab, the crewmembers can easily
communicate about upcoming restrictions, signal indications, and
methods of operation. These job briefings and other timely
communications help ensure that the locomotive engineer is operating
safely and in compliance with all applicable rules and procedures.
Knowing that the conductor can provide reminders of restrictions or a
level of assurance that the engineer is calling signals correctly may
reduce the stress level of the engineer. As FRA explained in the
background section (III.D.1), it is when employees are under stress and
overloaded with tasks, that a one-person crew is more likely to lose
situational awareness and make a mistake, i.e., a human-factor failure.
    Although for safety purposes the optimal location for crewmembers
is usually in the operating cab of the controlling locomotive when the
train is moving, FRA recognizes that in certain instances, trains can
be operated safely when crewmembers are located elsewhere on the train.
For example, FRA is aware that some operations are designed so that a
crewmember not operating the train is positioned at the back of the
train, which can facilitate train movements that require manually
operating switches at the rear of the train. In other operations,
railroads may have a crewmember ride in a locomotive that is not the
controlling locomotive. This proposed rule does not prohibit
crewmembers that are not operating the train from safely performing
their duties from somewhere else on or near the moving train.
    In paragraph (d)(1), it is proposed that the normal location of a
crewmember be on the train except when necessary for that crewmember to
temporarily disembark. The proposed general requirement is intended to
prohibit two-person operations where the second crewmember is either
never on the train or spends significant periods of time disassociated
from physically being on or near the train. A second assigned
crewmember that is regularly in a yard tower, for example, would be
violating this proposed general requirement that only permits
``temporarily disembarking from the train.'' The relaxation of the
requirement that a crewmember that is not operating the train be on the
train is intended to permit only movements of short time or duration
that are necessary in the normal course of train operations. For
example, a conductor may get off a train to throw a switch and then the
train may be moved so that the conductor can get back in the
controlling locomotive cab without having to walk the entire length of
the train. In other instances, there may be a train that cannot easily
be moved to pick up a conductor that disembarked to throw a switch, and
the conductor may be transported in a motor vehicle, or on a following
train, several miles away where the conductor can then safely board the
assigned train. Conversely, if a railroad's practice is to stop the
train after passing more than one possible place where the train could
be stopped safely for the conductor to board, FRA would view the
practice as more than a temporary situation and it would appear to
violate the proposed general requirement. Regarding proposed paragraph
(d)(1), intercity passenger and

commuter operations would not be expected to make changes to an
operation with a locomotive engineer at the control stand and a second
crewmember that normally travels in any locomotive or car on the moving
train, other than when duties, such as switching, require otherwise.
    Proposed paragraph (d)(2) contains the requirement that, when a
crewmember that is not operating the train is anywhere outside of the
operating cab of the controlling locomotive when the train is moving,
the crewmember and the locomotive engineer in the cab of the
controlling locomotive can directly communicate with each other. FRA is
not proposing to prescribe the methods of communication in this
regulation. Deciding appropriate methods of direct communication
between crewmembers is left to each railroad. Typically, crewmembers
that are visible to one another will communicate by hand signals, as
the employees' voices cannot be heard over the locomotive engine from
any distance outside the cab. Other times, crewmembers will communicate
with one another by radio or other wireless electronic devices in
accordance with railroad rules and procedures and FRA's railroad
communications regulation found at 49 CFR part 220. The important
aspect of this proposed general requirement is that the assigned
crewmembers are in direct contact with one another and do not have to
communicate through an intermediary. Communication must also be two-
way, so that the locomotive engineer can initiate direct communication
with the other train crewmember(s).
    FRA anticipates that there may be circumstances where direct
communication is temporarily lost due to radio malfunctions or other
communication failures. Sometimes the loss of communication will be due
to circumstances within the control of the crewmembers or will be due
to known radio signal obstacles (e.g., geographical obstacles such as
mountains). FRA accepts that direct communication may be lost
temporarily due to a variety of factors, and will be looking to see
that a railroad has implemented procedures or practices to reduce any
potential loss of direct communication by crewmembers to a minimum
before considering a potential enforcement action. FRA would appreciate
comments on this issue.
    Regarding proposed paragraph (d)(2), intercity passenger and
commuter locomotives do not always have room for a crewmember that is
not operating the train in the locomotive control compartment, but a
second crewmember may be necessary to assist during shoving or pushing
movements, or to otherwise assist the routine operation of the train.
If the second crewmember is a conductor, that conductor may not always
have a view of upcoming signal indications. Railroads with passenger
train operations should look closely at the operating duties that
crewmembers, not located in the cab, can perform when any crewmembers
can directly communicate with the locomotive engineer in the cab of the
controlling locomotive. For example, before leaving each station stop,
a passenger conductor could remind the locomotive engineer of any
upcoming restrictions that will be reached before arriving at the next
station stop. Such job briefings between crewmembers are an effective
practice by expert teams.
    Proposed paragraphs (d)(3) and (4) also contain general
requirements that apply when a crewmember that is not operating the
train is anywhere outside of the operating cab of the controlling
locomotive when the train is moving. The proposed paragraphs require
that these crewmembers must be able to continue to perform the duties
assigned even when the crewmembers are outside of the operating cab of
the controlling locomotive when the train is moving and, under these
circumstances, the location of the crewmembers must not violate any
Federal railroad safety law, regulation, or order. These proposed
general requirements are catch-all provisions intended to ensure that
neither a railroad nor a crewmember concludes that the provisions in
this regulation can somehow be used to avoid complying with a person's
assigned duties or any Federal requirement. FRA understands that
passenger train conductors will normally be in the body of the train,
not in the locomotive cab with the engineer. In passenger train
operations, normal areas for a conductor to occupy on a train include
the locomotive, the passenger cars, the side of a rail car when
protecting a move, or on the ground either throwing switches or
inspecting the train.
    Finally, under proposed paragraph (d), FRA's main concern is with
adequately staffed moving trains, not stopped trains. The proposed
regulatory text is silent regarding any requirements for the location
of a crewmember on a stopped train, as FRA suggests that this is an
issue that should be left for each railroad to decide, except to the
extent addressed by another regulation--namely, FRA's passenger train
emergency preparedness regulation (49 CFR part 239).

Section 218.125 General Exceptions to Train Crew Staffing Requirements

    This proposed section is the first of three sections allowing for
operational exceptions to the proposed requirement for assigning a
minimum of two crewmembers on each train specified in Sec.  218.123(b)
and the proposed location requirements for a crewmember that is not
operating the train found in Sec.  218.123(d). In the discussion for
each proposed paragraph, FRA explains why these proposed exceptions
present an acceptable level of risk leading FRA to conclude that,
generally, the operations would be consistent with railroad safety. As
a reminder, the introductory paragraph of this section reiterates that
the exceptions in this section do not apply when a train is
transporting the hazardous materials of the types and quantities
described in Sec.  218.123(c). This proposed section is intended to
cover those general exceptions that apply to freight, passenger, or
tourist train operations. FRA requests comments for other similarly
situated operations that it should consider excepting and whether a
mechanism should be included in the rulemaking to allow future
exceptions to be added through a petition process.
    In this proposed section, two general exceptions are identified.
The exceptions are identified by the shorthand descriptions: (1) helper
service and (2) lite locomotive. These shorthand descriptions are used
as headings at the beginning of each paragraph.
    Paragraph (a) proposes to except trains performing helper service
from the proposed two-person crew minimum requirement. The proposed
paragraph states that a train is performing helper service when it is
using a locomotive or group of locomotives to assist another train that
has incurred mechanical failure or lacks the power to traverse
difficult terrain. Helper service is a common service performed in the
railroad industry as a one-person operation. It is typically not
considered a complex operation as the locomotive engineer would be
required to operate to the train needing assistance, and then couple to
the train so the helper locomotive(s) can provide additional power that
will assist the train's locomotive(s) in pushing or pulling it. The
proposed paragraph clarifies that helper service includes the time
spent traveling to or from a location where assistance is provided. FRA
does not believe this type of operation poses a great risk to railroad
employees or the general public because cars are not attached and a
railroad has

an incentive to not dispatch a helper service train from a great
distance away from the train needing assistance. As with all these
proposed exceptions, a railroad may decide that a certain helper
service operation is complex and that more than one crewmember should
be assigned to the helper service train.
    Proposed paragraph (b) would exempt a lite locomotive or a lite
locomotive consist from the two-person crew requirement based on a
similar safety rationale as provided for the proposed helper service
exception. That is, when a locomotive or a consist of locomotives is
not attached to any piece of equipment, or attached only to a caboose,
FRA expects that there is less risk to railroad employees and the
general public. Lite locomotives are mainly used to move to a location
where the locomotives could be better utilized for revenue trains that
are taking or delivering rail cars to customers, or to other railroad
yards where the locomotives can be used in switching operations.
Additionally, lite locomotives may be operating as a train to take more
than one locomotive to a repair shop for servicing. The proposed
paragraph includes a definition of ``lite locomotive'' consistent with
the definition in FRA's Railroad Locomotive Safety Standards regulation
found in 49 CFR 229.5. However, this NPRM includes a further
clarification that lite locomotive ``excludes a diesel or electric-
multiple unit (DMU or EMU) operation.'' The reason for this additional
clarification is that a DMU or EMU is a locomotive that is also a car
that can transport passengers, and FRA does not intend this exception
to cover a passenger train operation containing either single or
multiple DMUs or EMUs. FRA has further clarified DMU/EMU exceptions for
passenger trains in proposed Sec.  218.127.

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

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

    \202\ 49 CFR part 209, appendix A (describing the extent and
exercise of FRA's safety jurisdiction).
    \203\ Id.
    \204\ Id. (describing that FRA's rules that specifically apply
beyond the general system to such operations will apply, such as
FRA's rules on accident reporting, steam locomotives, and grade
crossing signals, as will all of FRA's procedural rules, and the
Federal railroad safety statutes themselves).
    \205\ 49 U.S.C. 20103(f).
---------------------------------------------------------------------------

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

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

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

passenger train operated by a one-person train crew is safe. FRA does
not expect this proposed rule to encourage those railroads that operate
with a minimum of a two-person crew on empty passenger or tourist
trains to take undue risk by taking the second crewmember off this
assignment. Instead, FRA is trying to avoid a situation where the
proposed rule would require adding a second crewmember who does not
perform safety functions. On passenger or tourist trains, one of the
central safety concerns is how the crew will protect the passengers
when getting on or off the train, or in case of an emergency. If the
train does not have any passengers on board and will not be picking up
any passengers until a safety briefing is conducted, a second
crewmember is not needed to address any passenger's safety concerns. On
the other hand, if passenger or tourist trains may encounter freight
trains on the same track or an adjacent track, if switches need to be
thrown, or if the train will be engaging in shoving or pushing
movements, it may be beneficial to add a second crewmember to address
these operating conditions or any potential emergency situations.
    Proposed paragraph (c) contains an exception to the two-person crew
general requirement for a passenger or tourist train operation
involving a single self-propelled car or married-pair unit, e.g., a DMU
or EMU operation, where the locomotive engineer has direct access to
the passenger seating compartment and (for passenger railroads subject
to 49 CFR part 239) the passenger railroad's emergency preparedness
plan for this operation is approved under 49 CFR 239.201. As explained
above, a DMU or EMU is a locomotive that is also a car that can
transport passengers. These self-propelled cars may be coupled together
but are often designed so that a person cannot walk to another car
without getting off the train. A married-pair unit is about the length
of two cars but allows a person to walk between the two cars/units
without getting off the train. In deciding whether to approve an
emergency preparedness plan, FRA would consider the physical
characteristics of the territory and how the operation may put
passengers in danger in case of a train breakdown, accident, or
evacuation. For example, FRA will consider whether passengers could
easily evacuate from the train with minimal assistance. Some passenger
cars have door thresholds that are 48 to 51 inches above the top of the
rail. With the door that high off the ground, a ladder would need to be
deployed and some passengers would likely need assistance evacuating
down the ladder to an area of safety. Even with good signage,
passengers who are not trained to know what to do in an emergency might
not realize the ladder is available, might not know how to deploy it,
or might assume additional risk by rushing to evacuate without
deploying it. FRA expects a trained second crewmember would provide
valuable assistance in emergency situations where an evacuation could
be complicated for passengers. Thus, FRA would likely not approve the
emergency preparedness plan, and the exception to the two crewmember
rule proposed here would not apply, if the physical characteristics of
the territory or the equipment, or both, suggest passengers may not be
safely evacuated in an emergency situation under the plan without a
second crewmember's assistance.
    In the proposed paragraph (c) exception, FRA has considered the
concerns of tourist railroads that would not be subject to the Sec.
239.201 emergency preparedness plan FRA-approval requirement. Tourist
railroads, including general system tourist operations, are not subject
to 49 CFR part 239, as the passenger train emergency preparedness
regulation excludes ``[t]ourist, scenic, historic, or excursion
operations, whether on or off the general railroad system.'' \207\
Therefore, general system and non-general system tourist operations are
not subject to Sec.  239.201. In proposing this exception, FRA
certainly did not mean to create a new requirement for a tourist
railroad to comply with the passenger train emergency preparedness
regulation in part 239. Thus, this exemption expressly requires FRA
approval under Sec.  239.201 only for passenger train operations
subject to 49 CFR part 239.
---------------------------------------------------------------------------

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

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

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

Section 218.129 Specific Freight Train Exceptions to Crew Staffing
Requirements

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

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

operation.'' \209\ Although 49 CFR 220.61 requires that mandatory
directives conveyed by radio not be received and copied by an employee
operating the controls of moving equipment, there is no separate
requirement for the dispatcher to confirm with a locomotive engineer
that a train is stopped. That is because most trains have two or more
crewmembers and a conductor could write down the mandatory directive
while the locomotive engineer is operating the train. This proposed
requirement would further ensure the safety of the conveyance of
mandatory directives by radio transmission. In circumstances where the
one-person crewmember cannot safely stop the train to copy the
mandatory directive, it would be expected that the one-person
crewmember and the dispatcher would discuss where or when the train can
be safely stopped so that the mandatory directive can be conveyed. A
dispatcher could convey important or emergency information to the one-
person crewmember by radio outside of the mandatory directive process.
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    \209\ 49 CFR 220.5.
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    Proposed paragraph (b)(7) would require that a one-person train
crewmember will have a working radio on the lead locomotive and a
redundant, electronic device appropriate for railroad communications as
permitted in 49 CFR part 220, subpart C. FRA does not currently require
a working radio in the controlling locomotive of every train,\210\ and
because a two-person crew has the capability to operate the train with
the conductor on another locomotive in the consist, current
requirements permit ``communications redundancy'' by means of a working
radio on another locomotive in the consist and do not mandate another
means of a working wireless communications device that can be used in
the controlling locomotive.\211\ As explained in the background
section, FRA's requirements for train operations in the event of a
communication equipment failure on the controlling locomotive en route,
in 49 CFR 220.38, were written with the expectation that one crewmember
can operate the train while a second crewmember communicates with the
dispatcher from a second locomotive that has a working radio, but this
workaround would not be available to a one-person crew. For this
reason, FRA proposes this requirement because it is essential to safety
that the one-person crew have a way to communicate with the dispatcher
or other railroad personnel without leaving the controlling locomotive.
To comply with the proposed requirement, one option is that a railroad-
supplied electronic device could be used as a redundant form of
communication if the lead locomotive's radio were to fail en route.
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    \210\ 49 CFR 220.9.
    \211\ 49 CFR 220.9(a).
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    Except for trains transporting hazardous materials of the types and
quantities described in Sec.  218.123(c), proposed paragraph (c)
provides the specific freight train exceptions that would apply to
small railroads, work trains, and remote control operations.
    Proposed paragraph (c)(1) contains two specific freight train
exceptions that would only apply to certain operations of small
railroads (i.e., railroads with less than 400,000 annual employee work
hours). The first exception would apply to a small railroad operation
involving a train no longer than 6,000 feet, operating at a maximum
authorized speed of 25 mph, and operating over limited grade. The
second exception would apply to a small railroad operation with a
maximum authorized speed of 25 mph, but for which a second crewmember,
who can directly communicate with the engineer in the cab of the
locomotive, is intermittently assisting the train's movements.
    FRA is proposing to limit these exceptions to small railroads
because the operations of these railroads are generally less complex,
and thus pose less risk, as compared to the operations of larger
railroads, leading FRA to conclude that the proposed exceptions
generally present an acceptable level of risk. For example, small
railroads typically have much less dense traffic levels than larger
railroads and small railroad crews generally operate over the same
territory day after day on routine schedules. Even slow speed
operations on larger railroads do not share these same general
operating characteristics (i.e., larger railroads typically have more
dense traffic levels, operate longer trains, and use crews that operate
over different territories with varying characteristics on a routine
basis). Accordingly, a low speed operation on a larger railroad would
present a higher level of risk than a low speed operation on a small
railroad. Additionally, in limiting these exceptions to small
railroads, FRA is providing additional relief to small businesses in
the railroad industry, consistent with FRA's Policy Statement
Concerning Small Entities in 49 CFR part 209, appendix C.
    The first proposed small railroad exception applies to operations
that take place at speeds not exceeding 25 mph, over track with less
than 1 percent grade over 3 continuous miles or 2 percent grade over 2
continuous miles, and with trains that do not exceed 6,000 feet in
length. In FRA's experience, freight railroads with fewer than 400,000
total employee work hours annually that operate trains over their own
track, at relatively slow speeds, and over territory without steep
hills or mountains, do not pose an unacceptable safety risk to the
general public or railroad employees if conducted with only one
crewmember. Generally, the potential consequences of accidents increase
as train speed increases. Most small freight railroads maintain their
track to no greater than Class 2 track standards, which allow freight
trains to be operated at speeds no greater than 25 mph.\212\ As
proposed, a small freight railroad that maintains its track to better
than Class 2 track standards could file a special approval petition to
operate at higher speeds.
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    \212\ 49 CFR 213.9.
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    As proposed, the exception in Sec.  218.129(c)(1)(i) would apply
only to small railroad operations over territory with limited grade.
Specifically, FRA proposes to limit the exception to operations over
track segments with an average grade of ``less than 1 percent over 3
continuous miles or 2 percent over 2 continuous miles.'' This proposed
grade threshold is consistent with grade limitations in other FRA
regulations.\213\ Because many small railroad operations are excepted
from operating with a two-way end-of-train device,\214\ but those
devices are essential for the safety of a one-person train operation
over territory with a heavy grade to perform brake tests or make an
emergency brake application, FRA proposed to limit this exception. FRA
requests comments on whether a final rule should include a two-way end-
of-train device option for those small railroad operations that operate
over heavy grades or whether there is an alternative option to address
this safety concern.
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    \213\ See e.g., 49 CFR 232.407(a)(1) (defining ``heavy grade''
as related to the requirement for operations to use end-of-train
devices) and 49 CFR 240.231(c) (allowing movements over track with
limited grade without a pilot in other than joint operations).
    \214\ 49 CFR 232.407.
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    A proposed maximum train length requirement is appropriate for this
small railroad operation exception to address safety concerns with
trains blocking crossings. Again, this would be a minimum requirement,
and a small freight railroad could certainly require two or more train
crewmembers if the operation's safety would be compromised by using
only one person.

    Blocked crossings are a safety concern for various reasons, and
have recently led Congress to require that FRA establish a blocked
crossing portal to collect information, perform outreach to
communities, support collaboration in the prevention of incidents at
highway-rail grade crossings, and assess the impacts of blocked
crossings.\215\ Local emergency responders and other highway users can
be significantly delayed if a railroad operation with a one-person
train crew cannot plan a safe place to stop the train without blocking
grade crossings. Planning a safe place to stop the train is typically
considered a conductor's job, but with only one crewmember, that one
crewmember must decide. If a second train crewmember is available, it
is much easier for two crewmembers to separate a train and unblock the
crossing than leaving that task to a one-person crew. A one-person
crew, with no additional railroad personnel to help, would first have
to secure the train with hand brakes before attempting to unblock the
crossing; \216\ and, a failure to properly secure the train could
result in a runaway train. For this reason, FRA does not want the
additional safety risk of a one-person crew leaving the locomotive cab
except in case of an emergency affecting railroad operations, as
required in proposed paragraph (b)(1) of this section, and does not
consider a blocked crossing to be an emergency under that proposed
requirement. The train length requirement is necessary to ensure a
train operated under this proposed exception is less likely to block
one or more grade crossings in a way that is unduly disruptive to the
communities the train passes through. The proposed train length
limitation also increases the likelihood the one-person crew could get
dispatcher permission to move the train to unblock a crossing, as
moving a longer train could be more difficult given the location of
other crossings, signals, or other physical or railroad features. This
additional requirement should still provide great flexibility to short
line railroads because a train that is 6,000 feet would be over a mile
long and have approximately 85 to 92 cars.
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    \215\ The Infrastructure Investment and Jobs Act, Public Law
117-58 (Nov. 15, 2021), sec. 22404.
    \216\ 49 CFR 232.103(n).
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    The second proposed small railroad operation exception applies to
small operations of railroads with fewer than 400,000 total annual
employee work hours that do not exceed 25 mph, and where a second train
crewmember is assigned, but is not continuously on or observing the
moving train as would be expected of a second crewmember that is
working with a locomotive engineer as a unit that remains in close
contact. The proposed exception in paragraph (c)(1)(ii) applies when a
freight railroad with fewer than 400,000 total employee work hours
annually assigns a second crewmember that has the flexibility to travel
separately from the train and is assigned to intermittently assist the
train's movements at critical times. For example, the second train
crewmember may be ``shadowing'' the train by traveling alongside the
train in a motor vehicle. The second crewmember could assist with
flagging a highway-rail grade crossing, throwing hand-operated
switches, or conducting switching service when the train enters a yard
or customer's facility. The second train crewmember and the locomotive
engineer in the cab of the controlling locomotive must also have a
direct way of communicating with each other. Such communication is
essential to holding any required job briefings in which train
crewmembers exchange critical information about upcoming restrictions
or difficult operational concerns. Most commonly, communication in this
context will be by radio (or other wireless electronic devices in
accordance with railroad rules and procedures and FRA's railroad
communications regulation at 49 CFR part 220). Direct communication
means that the train crewmembers have the capability to communicate
with one another without going through an intermediary, such as a
dispatcher. With direct communication, either the locomotive engineer
or the second crewmember can request assistance from the other
crewmember and expect to receive a timely response. As these operations
are conducted at relatively low speeds, under conditions where the one-
person crew on board the train is intermittently assisted, and when the
crewmembers are in direct communication with each other, FRA expects
that the second crewmember would play a critical role in improving the
safety of the operation, even if the person is not always on board or
observing the moving train.
    Proposed paragraph (c)(2) would exempt work train operations from
the two-person crew requirement. ``Work train operations'' is defined
in this paragraph as operations where a non-revenue service train of
4,000 trailing tons or less is used for the administration and upkeep
service of the railroad. This portion of the proposed definition of
work train is the same as the definition FRA provided in 49 CFR