[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Proposed Rules]
[Pages 45564-45622]
[FR Doc No: 2022-15540]

Vol. 87

Thursday,

No. 144

July 28, 2022

Part IV

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 218

Train Crew Size Safety Requirements; Proposed Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

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

Train Crew Size Safety Requirements

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

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

FOR FURTHER INFORMATION CONTACT: Kevin Lewis, Operating Crew
Certification Specialist, U.S. Department of Transportation, Federal
Railroad Administration, telephone:<PHONE_NUMBER>, email:
[email protected]; or Alan H. Nagler, Senior Attorney, U.S.
Department of Transportation, Federal Railroad Administration,
telephone:<PHONE_NUMBER>, email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

 I. Executive Summary

Purpose of the Regulatory Action

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

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

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

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

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

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

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

    FRA is proposing regulations concerning train crew size safety
requirements based on the statutory general authority of the Secretary
of Transportation (Secretary). The general authority states, in
relevant part, that the Secretary ``as necessary, shall prescribe
regulations and issue orders for every area of railroad safety
supplementing laws and regulations in effect on October 16, 1970.'' \8\
The Secretary delegated this authority to the Federal Railroad
Administrator.\9\
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    \8\ 49 U.S.C. 20103.
    \9\ 49 CFR 1.89(a).
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III. Background

A. A Brief History of Train Crew Staffing

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

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

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

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

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

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

B. Summary of Prior Crew Staffing Rulemaking and Court Order

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

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

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

crew that failed to properly secure a train before leaving it
unattended on mainline track where it did not stay secured and rolled
down a grade to the center of town, where 63 of the 72 crude oil tank
cars in the train derailed, and about one-third of the derailed tank
car shells had large breaches.\30\ There were multiple explosions and
fires causing an estimated 47 fatalities to the general public,
extensive damage to the town, and approximately 2,000 people to be
evacuated from the surrounding area. In the aftermath of the derailment
at Lac-M[eacute]gantic, Transport Canada issued an order for all
Canadian railroad companies to provide for minimum operating crew
requirements considering technology, length of train, speeds,
classification of dangerous goods being transported, and other risk
factors; however, the railroad involved in the accident did not
automatically make corresponding changes to its operating procedures in
the U.S. even though the risk associated with this catastrophic
accident also exists in the U.S.\31\ The TSB of Canada report on the
Lac-M[eacute]gantic accident found that it could not be concluded that
a one-person crew contributed to the accident. However, TSB of Canada
found that the risk of implementing single-person train operations is a
risk that must be addressed because it is related to unsafe acts,
unsafe conditions, or safety issues with the potential to degrade rail
safety. TSB of Canada concluded that addressing the risk of one-person
operations is essential to preventing future similar accidents, even if
the risk itself cannot be determined to directly have led to this
accident. TSB of Canada's report also highlighted how ``risk
assessments are particularly crucial when a company makes a change to
its operations, since this is when new risks may emerge'' and that the
railroad's risk assessment in this instance ``did not thoroughly
identify and manage the risks to ensure safe operations.'' \32\
---------------------------------------------------------------------------

    \30\ On August 20, 2014, the Transportation Safety Board (TSB)
of Canada released its railway investigation report, which refines
the known factual findings and makes recommendations for preventing
similar accidents. TSB of Canada Railway Investigation R13D0054 is
available online at http://bit.ly/VLqVBk.
    \31\ Letter from Joseph C. Szabo, FRA Administrator, to Mr.
Edward Burkhardt, CEO of MMA (Aug. 21, 2013), placed in the docket.
    \32\ TSB of Canada Railway Investigation R13D0054 at 123.
---------------------------------------------------------------------------

    FRA's initial response to the Lac-M[eacute]gantic accident was to
issue Emergency Order 28 on August 2, 2013, which contained the
preliminarily known details of the events that led to the accident and
ordered each railroad to institute and carry out specific measures with
respect to securement of unattended vehicles and trains transporting
certain types of hazardous material on mainline track and mainline
sidings outside of a yard or terminal.\33\ On August 29, 2013, FRA
followed the issuance of the emergency order by hosting an emergency
meeting of its Federal Advisory Committee known as the Railroad Safety
Advisory Committee (RSAC).\34\ At the time of the meeting, RSAC was
composed of 54 voting representatives from 32 member organizations,
representing various rail industry perspectives.\35\ RSAC was
established to provide advice and recommendations to FRA on railroad
safety matters and, in the announcement for the meeting, FRA requested
``that both freight and passenger railroads be prepared to discuss
Transport Canada's directive requiring that two-person crews operate
trains carrying hazardous materials on main track.'' \36\ On August 29,
2013, RSAC accepted a task (No. 13-05) entitled ``Appropriate Train
Crew Size'' and formed a Working Group. The task statement noted that,
in light of the Lac-M[eacute]gantic accident, ``FRA believes it is
appropriate to review whether train crew staffing practices affect
railroad safety.'' \37\ In the 2016 NPRM, FRA summarized discussions of
RSAC's Working Group and explained that, although no consensus was
reached on any recommendations,\38\ the 2016 proposed rule largely
reflected concerns FRA identified during the Working Group
meetings.\39\
---------------------------------------------------------------------------

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

    Before the RSAC Working Group concluded its meetings on March 31,
2014,\40\ ana accident occurred at Casselton, North Dakota on December
30, 2013, that FRA considered illustrative of how having multiple train
crewmembers can improve safety for the general public and the
crewmembers themselves.\41\ In this incident, a ``grain train''
derailed on an adjacent track about two minutes before a ``key train,''
consisting of two head end locomotives, one rear distributive power
unit (DPU), and two buffer cars on each end of 104 loaded crude oil
cars, collided with it. The collision derailed the key train's two
leading locomotives, as well as the first 21 trailing cars behind the
locomotives, causing a release of an estimated 474,936 gallons of crude
oil from 18 loaded tank cars fueling a fire which caused subsequent
explosions as the loaded oil tank cars burned. The local fire
department had requested that nearby residents voluntarily evacuate
immediately following the collision, and approximately 1,500 residents
did evacuate. The voluntary evacuation was lifted approximately 25
hours after the collision. There were no injuries to crewmembers,
emergency responders, or the general public, but images and video of
the burning railcars made the accident national news. Meanwhile, the
train crewmembers on both trains performed admirably.
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Preemption

    Of particular concern to FRA is the patchwork of State laws
regulating crew size in some manner and the impact of those various
State requirements on safe rail operations.\56\ In the 2019 Withdrawal,
FRA explained that provisions of the Federal railroad safety statutes,
specifically the former Federal Railroad Safety Act of 1970 (FRSA),
repealed and recodified at 49 U.S.C. 20106, mandate that laws,
regulations, and orders ``related to railroad safety'' be nationally
uniform.\57\ The FRSA provides that a State law is preempted where FRA,
under authority delegated from the Secretary of Transportation,
``prescribes a regulation or issues an order covering the subject
matter of the State requirement.'' \58\ A Federal regulation or order
covers the subject matter of a State law where ``the federal
regulations substantially subsume the subject matter of the relevant
state law.'' \59\ A Federal regulation or order need not be identical
to the State law to cover the same subject matter. The Supreme Court
has held preemption can be found from ``related safety regulations''
and ``the context of the overall structure of the regulations.'' \60\
Federal and State actions cover the same

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

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

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

    \62\ Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d
794, 796 (8th Cir. 2008).
    \63\ 49 U.S.C. 20106(a)(2).
    \64\ Union Pacific R. Co. v. California Pub. Utils. Comm'n, 346
F.3d 851, 860 (9th Cir. 2003).
    \65\ 49 U.S.C. 20106(a)(2); H.R. Rep. No. 91-1194 (1970),
reprinted in 1970 U.S.C.C.A.N. 4104, 4117 (``these local hazards
would not be statewide in character''); see also Norfolk & Western
Ry. Co. v. Public Utilities Comm'n of Ohio, 926 F.2d 567, 571 (6th
Cir. 1991) and National Ass'n of Regulatory Util. Comm'rs v.
Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976) (both holding that the
local hazard exception cannot be applied to uphold the application
of a statewide rule).
    \66\ H.R. Rep. No. 91-1194 (1970), reprinted in 1970
U.S.C.C.A.N. 4104, 4117.
---------------------------------------------------------------------------

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

D. Reconsideration of the Safety Issues

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

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

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

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

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

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

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

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

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

    The sections below discuss safety issues and impacts that may arise
from train operations with fewer than two train crewmembers. FRA
requests comments and data on the identified issues and other safety
concerns that may stem from train operations with fewer than two
crewmembers.
1. Revisiting Research on the Cognitive and Collaborative Demands of
Crewmembers
    The 2016 NPRM described, and the docket for this rulemaking
contains, five FRA-sponsored research reports, and one Transportation
Research Board conference report, that contain presentations from
multiple research reports, identifying many safety considerations with
reducing train crew staffing to fewer than two persons.\72\ In the 2019
Withdrawal, FRA stated that ``[w]hile these reports identify safety
issues that railroads should consider when evaluating any reduction in
the number of train crewmembers or a shift in responsibilities among
those crewmembers, the reports do not indicate that one-person crew
operations are less safe and therefore do not form a sufficient basis
for a final rule on crew staffing.'' \73\ Also, as previously
discussed, the Ninth Circuit vacated the 2019 Withdrawal, in part
because it found that FRA's conclusions ``fail[ed] to address the
multiple safety concerns raised by commenters and the research.'' \74\
In consideration of FRA's current policy priorities, FRA finds that the
2019 Withdrawal overweighted a lack of safety data and de-emphasized
safety concerns raised by the research. Thus, FRA revisits the research
in this background to explain how the safety concerns the research
raises helped in the development of the proposed requirements for this
rulemaking.
---------------------------------------------------------------------------

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

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

    \75\ Rail Industry Job Analysis: Passenger Conductor, Final
Report, dated February 2013, DOT/FRA/ORD-13/07. This research report
was prepared by the John A. Volpe National Transportation Systems
Center. https://www.fra.dot.gov/eLib/details/L04321.
    \76\ Cognitive and Collaborative Demands of Freight Conductor
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations, Final Report, dated July 2012,
DOT/FRA/ORD-12/13. This research report was prepared by the John A.
Volpe National Transportation Systems Center. https://www.fra.dot.gov/eLib/details/L04331.
    \77\ Technology Implications of a Cognitive Task Analysis for
Locomotive Engineers--Human Factors in Railroad Operations, Final
Report, dated January 2009, DOT/FRA/ORD-09/03. This research report
was prepared by the John A. Volpe National Transportation Systems
Center. https://railroads.dot.gov/elibrary/technology-implications-cognitive-task-analysis-locomotive-engineers.
    \78\ Cognitive and Collaborative Demands of Freight Conductor
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations at 2.
    \79\ Id. at 42.
    \80\ Id. at 2.
    \81\ Fatigue Status in the U.S. Railroad Industry, Final Report,
dated February 2013, DOT/FRA/ORD-13/06. https://railroads.dot.gov/elibrary/fatigue-status-us-railroad-industry. This research report
was prepared by QinetiQ North America and an Engineering
Psychologist within FRA's Office of Research and Development.
---------------------------------------------------------------------------

    Research explains that there are critical components to building
effective teams.\82\ Individuals that form expert teams engage in a
regular cycle of pre-brief, performance, and debrief. This performance
cycle engages the individuals that form expert teams to identify high
and low priorities, revise goals and plans, identify lessons learned,
and evaluate whether the team is effective both in performing its tasks
and identifying the needs of team members. The research regarding
teamwork in U.S. railroad operations \83\ concludes that the main
advantage of developing individuals who engage in that regular briefing
cycle is that they can work with other properly trained individuals to
form an expert team that can be expected to have higher levels of
performance than non-expert teams. For example, properly trained
individuals that are assigned a duty tour together on any given day
will form an expert team that makes better decisions and fewer errors,
which in turn enables the expert team to have a higher probability of
mission success.\84\
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    \82\ Teamwork in U.S. Railroad Operations, A Conference, April
23-24, 2009, Irvine, California, Transportation Research Board,
Number E-C159, dated December 2011. The many authors of the research
and reports are listed in the publication. https://onlinepubs.trb.org/onlinepubs/circulars/ec159.pdf.
    \83\ Id. at 17.
    \84\ Id.
---------------------------------------------------------------------------

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

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

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

person until the issue can be studied.\89\ Traditionally, locomotive
engineers are highly engaged with the train operation, noticing visual
cues (i.e., landmarks and mileposts), monitoring radio communications
of other trains, and relaying information by radio to other trains
about potential hazards. Some locomotive engineers even indicated that
they get a variety of sensory-based cues that help them perceive their
location, such as vibrations associated with a portion of track or a
smell that reminds them they are near a farm.\90\ The research suggests
that PTC technology may require locomotive engineers to focus more on
in-cab displays and thereby reduce their ability to monitor activity
outside the cab.\91\ This raises the question of whether engineers will
lose some of the situational awareness that helps them perceive where
the train is based on their prior experiences. Typically, a locomotive
engineer will use that situational awareness to help anticipate future
events. Furthermore, the research concluded that train crews must avoid
too much reliance on new train control technologies because, if the
system ever fails, the engineer must be able to operate the train
safely or bring the train to a safe stop until the technology is
repaired.\92\
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    \89\ Technology Implications of a Cognitive Task Analysis for
Locomotive Engineers--Human Factors in Railroad Operations at 38-40.
Please note that FRA's PTC regulation prohibits requiring a
locomotive engineer to ``perform functions related to the PTC system
while the train is moving that have the potential to distract the
locomotive engineer from performance of other safety-critical
duties,'' which would include distracting, non-useful alerts. See 49
CFR 236.1006(d)(1), formerly Sec.  236.1029(f).
    \90\ Technology Implications of a Cognitive Task Analysis for
Locomotive Engineers--Human Factors in Railroad Operations at 17.
    \91\ Id. at 45.
    \92\ Using Cognitive Task Analysis to Inform Issues in Human
Systems Integration in Railroad Operations--Human Factors in
Railroad Operations at 25, Final Report, dated May 2013, DOT/FRA/
ORD-13/31 This research report was prepared by the John A. Volpe
National Transportation Systems Center. https://www.fra.dot.gov/eLib/details/L04589.
---------------------------------------------------------------------------

2. Current Regulatory Weaknesses
    In the 2016 NPRM's background section, FRA explained that many of
the Federal rail safety regulations were written with the expectation
that each train would have multiple crewmembers.\93\ FRA cited six
different railroad safety scenarios in the 2016 NPRM raising safety
concerns.\94\ While FRA noted in the 2019 Withdrawal that none of the
scenarios cited in the 2016 NPRM require a minimum number of
crewmembers to achieve compliance, the implementation of a one-person
operation, without any off-setting measures, may render existing rail
safety requirements either less effective or ineffective. This may be
especially true for prohibited conduct that is not always easy for
railroad officers who conduct operational tests and inspections to
detect.\95\ For example, a second crewmember's presence or reminder of
an electronic device prohibition could act as a deterrent to any
prohibited use. A second crewmember can vigilantly monitor the safe
movement of the train when prohibited conduct is detected or stop the
train to report the inappropriate electronic device usage. If
prohibited conduct is a contributing cause to an accident/incident, a
second crewmember may provide evidence during an investigation.
Although it is possible that inward-facing cameras in the locomotive
cab could equally act as a deterrent to prohibited electronic device
use and provide valuable information during a post-accident
investigation, such cameras are currently not required and have not
been installed voluntarily on all locomotives industry-wide. Consistent
with the statutory mandate on which it is based,\96\ FRA did not
propose an inward-facing camera requirement for freight locomotives in
its notice of proposed rulemaking regarding locomotive image and audio
recording devices (Recording Devices NPRM).\97\ FRA has not yet issued
the Recording Devices final rule. FRA considered proposing an inward-
facing camera requirement for freight locomotives in this train crew
size safety proposed rule but declined to do so. Although these
recording devices could act as a deterrent and provide valuable
information during a post-accident investigation, the devices would not
be as effective as a second crewmember who could more quickly take
action when prohibited conduct is detected and also provide critical
evidence during an investigation that a recording device did not
capture. Accordingly, without inward-facing cameras in the locomotive
cab, FRA would expect a railroad's risk assessment for a one-person
train crew operation would identify this hazard and appropriate
mitigation actions. Such mitigation might include requiring frequent
supervisory monitoring during a tour of duty. As an alternative to the
proposed risk assessment requirement, FRA requests comment on whether
other specific actions should be mandated (e.g., frequent supervisory
monitoring during a tour of duty or similar interactions that would
discourage a one-person crewmember from violating the prohibitions on
electronic device use).
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    \93\ 81 FR 13932-34.
    \94\ Id.
    \95\ For example, FRA requires each railroad to maintain a
program of operational tests and inspections, and the railroad
officers who conduct the tests or inspections to be trained and
qualified. 49 CFR 217.9.
    \96\ See 49 U.S.C. 20168.
    \97\ 84 FR 35712, 35713 (July 24, 2019).
---------------------------------------------------------------------------

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

    \98\ 81 FR 13919.
    \99\ 75 FR 59580, 59582 (Sep. 27, 2010) (describing how data on
the number of motorcoach crashes may potentially understate the true
size of the problem because ``self-reporting of negative behavior,
such as distracted driving, is likely lower than actual occurrence
of that behavior).
---------------------------------------------------------------------------

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

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

    \100\ See 49 CFR part 219.
    \101\ Working with a potentially impaired co-worker is a safety
hazard that puts other crewmembers in direct conflict with one
another. For that reason, FRA has developed minimum standards for
co-worker referral programs that allow the employee suspected of
abuse to get treatment and rehabilitation, with the potential to
return to railroad safety-sensitive work under certain conditions.
See 49 CFR 219.1001 through 219.1007 (permitting a railroad to
implement alternate referral programs with the written concurrence
of the recognized representatives of the regulated employees). The
referral programs make it more palatable for an employee to turn in
a potentially impaired co-worker, knowing that the co-worker will
have an opportunity to get professional help without the co-worker
necessarily losing his or her job, and not having to work side-by-
side with that impaired co-worker.
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E. Transportation of Certain Hazardous Materials

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

    \123\ See e.g., 67 FR 22028 (May 2, 2002) (proposing new
requirements to enhance the security of hazardous materials
transported in commerce in the wake of the terrorist attacks of
September 11, 2001).
    \124\ PHMSA's mission is to protect people and the environment
by advancing the safe transportation of energy and other hazardous
materials that are essential to our daily lives. In advancement of
its mission, PHMSA: establishes national policy; sets and enforces
standards; educates; and conducts research to prevent incidents.
PHMSA also prepares the public and first responders to reduce
consequences if an incident does occur. PHMSA's standards include
requirements for shipments and packaging during transportation of
hazardous materials whether by rail, aircraft, vessel, or public
highway.
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    Accordingly, to ensure the safety and security of the rail
transportation of hazardous materials, PHMSA and FRA, in coordination
with DHS, have historically promulgated rules subjecting certain
hazardous materials to additional operational restrictions or requiring
railroads to take certain actions to ensure the safe and secure rail
transportation of these high-risk hazardous materials.\125\ PHMSA's
hazardous materials regulations are designed to achieve three goals:
(1) ensure that hazardous materials are packaged and handled safely and
securely during transportation; (2) provide effective communication to
transportation workers and emergency responders of the hazards of the
materials being transported; and (3) minimize the consequences of an
incident should one occur.\126\ The regulations categorize hazardous
materials by analysis and experience into hazard classes and packing
groups based upon the risks they present during transportation.
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    \125\ 49 CFR parts 171-180.
    \126\ 80 FR 26644, 26649 (May 8, 2015).
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    Because of the dangers of hazardous materials generally, and the
additional dangers of a release in transit due to an accident,
derailment, theft, or attack, DOT considers train crewmembers as
``hazmat employees'' requiring specific types of training.\127\ These
training requirements are substantial. For example, the types of
training required for hazmat employees include general awareness/
familiarization training, function-specific training, safety training
that includes emergency

response and exposure mitigation/protection measures, security
awareness training, in-depth security training, and any other training
required by other Federal agencies.\128\ Further, these types of
training are required initially and recurrently at least once every
three years.\129\ Considering these extensive training requirements for
train crewmembers who are hazmat employees, the proposed train crew
size safety requirements for trains carrying hazardous materials are
complementary to existing DOT requirements that highlight the greater
risks posed by certain types of shipments. The following background
provides some historical explanation for why the train crew size safety
requirements proposed in this rulemaking rule would prohibit
transporting certain types of hazardous materials by train with a one-
person crew.
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    \127\ 49 CFR 171.8 (defining ``hazmat employees'' by the type of
work the person is employed to do). Locomotive engineers are hazmat
employees because they operate a vehicle used to transport hazardous
materials, as specified in paragraph (2)(v) of the definition of
hazmat employees. Similarly, other train crewmembers, such as
conductors, are responsible for the safety of transporting hazardous
materials, paragraph (2)(iv), and directly affect hazardous
materials transportation safety while employed by a hazmat employer,
paragraph (1)(i).
    \128\ 49 CFR 172.704(a) and (b).
    \129\ 49 CFR 172.704(c).
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    A 2008 PHMSA final rule, for example, requires railroads to
annually assess the safety and security risks of the routes over which
the railroads transport certain hazardous materials because certain
hazardous materials present greater risks than others.\130\ For
instance, a hazardous material may present a greater risk because of
the potential consequences of an unintentional release of that material
and the material's potential for use as a ``weapon[ ] of opportunity or
weapon[ ] of mass destruction.'' \131\ For that reason, PHMSA
specifically categorized materials poisonous by inhalation (PIH
materials), certain radioactive materials, and certain explosives, as
examples of materials presenting the greatest risk and required that
railroads annually analyze the routes over which these materials are
transported and available alternatives to determine the safest and most
secure route.
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    \130\ 73 FR 72182, 72193 (Nov. 26, 2008).
    \131\ Id. at 72184.
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    Also in 2008, in response to a statutory mandate that implemented
recommendations of the 9/11 Commission,\132\ TSA similarly categorized
certain rail shipments of hazardous materials as rail-security
sensitive materials (RSSMs).\133\ TSA added the RSSM term to denote
that the Secretary of Homeland Security determined that certain
``categories and quantities of hazardous materials . . . pose a
significant risk to national security while being transported in
commerce by rail due to the potential use of one or more of these
materials in an act of terrorism.'' \134\ Included within the
definition of RSSMs are tank cars containing PIH materials and
shipments of certain threshold quantities of explosive and radioactive
materials.
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    \132\ Implementing the Recommendations of the 9/11 Commission
Act of 2007, Public Law 110-53; 121 Stat. 266 (Aug. 3, 2007). The
statute defined ``security-sensitive material'' as ``a material, or
group of materials, in a particular quantity and form that the
Secretary of Homeland Security, in consultation with the Secretary
of Transportation, determines through rulemaking with opportunity
for public comment, poses a significant risk to national security
while being transported in commerce.''
    \133\ 73 FR 72130 (Nov. 26, 2008).
    \134\ Id. at 72134.
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    After the 2013 catastrophic accident in Lac-M[eacute]gantic,
Canada, Transport Canada issued a directive containing a specific
requirement that railroads in Canada operate trains carrying loaded
hazardous materials tank cars over main track and sidings with at least
two crew members.\135\ Canada replaced the temporary directive with a
more permanent, minimum two crewmember operating requirement ``for a
freight train or transfer carrying one or more loaded tank cars of
dangerous goods.'' \136\ On August 7, 2013, FRA issued a safety
advisory recommending that railroads review their crew staffing
practices for over-the-road train movements of trains transporting five
or more PIH tank car loads, or 20 or more rail car loads or intermodal
portable tank loads of any Division 2.1 flammable gas, Class 3
flammable liquid or combustible liquid, Class 1.1 or 1.2 explosive, or
other certain listed hazardous substances.\137\
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    \135\ The emergency directive pursuant to section 33 of the
Railway Safety Act was issued on July 23, 2013, approximately 17
days after the Lac-M[eacute]gantic accident and was set to remain in
effect until the end of 2013. It is described in a safety advisory
FRA issued after the accident, Safety Advisory 2013-06, cited below.
Although the signed and dated directive is no longer available on
Transport Canada's website, Transport Canada released this
``Backgrounder'' for research or reference: https://www.canada.ca/en/news/archive/2013/07/emergency-directive-pursuant-section-33-railway-safety-act.html. Transport Canada also lists the directive
as issued on July 23, 2013 in a list of ``Measures to enhance
railway safety and the safe transportation of dangerous goods'':
https://tc.canada.ca/en/rail-transportation/rail-safety/measures-enhance-railway-safety-safe-transportation-dangerous-goods#wb-auto-4.
    \136\ Canadian Rail Operating Rules (CROR), General Rule-M(iii).
https://tc.canada.ca/en/rail-transportation/rules/canadian-rail-operating-rules/general-rules.
    \137\ FRA Safety Advisory 2013-06, 78 FR 48224, 48228 (Aug. 7,
2013).
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    Subsequently, in 2015, PHMSA addressed the risks of the rail
transportation of large volumes of flammable liquids and imposed
operational restrictions (e.g., speed limits, certain braking
requirements, and route analysis requirements) on trains transporting
large volumes of these materials. In doing so, PHMSA defined trains
subject to these additional operational restrictions as ``high-hazard
flammable trains.'' \138\ PHMSA acknowledged in the 2015 final rule
that it did not directly address regulations governing human factors,
but that it does indirectly address some of the issues through
consideration of 27 safety and security factors as part of the routing
requirements.\139\ Several of those 27 safety and security factors that
must be considered in the risk analysis would likely place a larger
burden on a one-person train crew, such as the volume of hazardous
material transported, rail traffic density, trip length for route, the
emergency response capability along the route, and the training and
skill level of crews.\140\ PHMSA's decision to indirectly address the
human factors issues was driven by its understanding that ``FRA has
initiated a rulemaking to address the appropriate oversight to ensure
safety related train crew size'' as a separate, key regulatory safety
initiative.\141\
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    \138\ 80 FR 26644,<PHONE_NUMBER> (May 8, 2015). The rule defined a
``high-hazard flammable train'' as ``a single train transporting 20
or more loaded tank cars of a Class 3 flammable liquid in a
continuous block or a single train carrying 35 or more loaded tank
cars of a Class 3 flammable liquid throughout the train consist.''
    \139\ Id. at 26651.
    \140\ 49 CFR part 172, appendix D.
    \141\ 80 FR 26654-55.
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    Also in 2015, FRA issued a final rule amending existing securement
requirements for unattended equipment, primarily for trains
transporting PIH materials and large quantities of certain flammable
hazardous materials.\142\ Specifically, FRA found that the dangerous
properties of PIH materials and large quantities of certain flammable
and other hazardous materials (including certain explosives and
hazardous substances) often compound the consequences of a rail
accident should one occur.\143\ Thus, FRA amended its regulations to
require railroads to take additional measures to secure equipment
containing a tank car load of PIH material or 20 or more loaded tank
cars or loaded intermodal portable tanks of certain flammable,
combustible, or explosive hazardous materials or certain designated
hazardous substances.\144\ For instance, FRA's 2015 final rule added a
requirement to verify securement of certain unattended freight trains
or cars containing the hazardous materials described above ``with
another person qualified to make the determination that the equipment
is secured in accordance

with the railroad's processes and procedures.'' \145\ FRA's analysis
for that requirement explained that a multi-person crew could satisfy
the requirement or, where a one-person crew was involved, then the
crewmember ``would have to call the dispatcher or some other qualified
railroad employee to verify with the qualified employee that the train
had been properly secured.'' \146\
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    \142\ 80 FR 47350 (Aug. 6, 2015).
    \143\ Id. at 47353-55.
    \144\ 49 CFR 232.103(n)(6)(i)(A) and (B).
    \145\ 49 CFR 232.103(n)(8)(i).
    \146\ 80 FR 47372.
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    Based on the known safety and security risks associated with
operating trains transporting large amounts of hazardous materials and
with the hazardous materials known to present the greatest safety and
security risks, as discussed in more detail in the section-by-section
analysis of proposed Sec.  218.123 below, in this NPRM FRA is proposing
to prohibit the operation of trains transporting hazardous materials
subject to FRA's securement regulation or materials designated by TSA
as RSSMs on trains with fewer than two crewmembers.

F. Current Operations

    Since FRA already has regulations requiring certain minimum
standards for locomotive engineers and conductors,\147\ FRA has chosen
not to define the duties of the two required crewmembers in this
proposed rule. Nearly every movement of a locomotive, whether the
locomotive is coupled to other rolling equipment or not, requires that
the operation be performed by a certified locomotive engineer.\148\ For
most current railroad operations, this is accomplished with a two-
person train crew consisting of a locomotive engineer and a conductor.
Train crews consisting of two people, one a locomotive engineer and the
other a conductor, are universally the norm because that crewmember
configuration provides the railroad with the necessary flexibility to
assign the crew where operations have more complexity than a one-person
crew can be expected to perform alone. That is, a train crew with both
a locomotive engineer and conductor can be expected to work
independently, without the need for the railroad to have separate plans
regarding how the train will accomplish switching cars, protecting
highway-rail grade crossings, and other safety-related tasks typically
requiring more than just one-person. It is also more efficient with a
conductor who can fill out any required paperwork and receive mandatory
directives transmitted by radio while the locomotive engineer keeps the
train moving.
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    \147\ 49 U.S.C. 20135 and 20163 and 49 CFR parts 240 and 242.
    \148\ 49 CFR 240.7 (defining ``locomotive engineer'' and
allowing exceptions for movements of locomotives: (1) within a
locomotive repair or servicing area and (2) of less than 100 feet
for inspection or maintenance purposes).
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    Each current operation of a locomotive or train that requires a
locomotive engineer is also required to have a conductor, but FRA
recognizes that there are circumstances where a person is ``serving as
both the conductor and the engineer.'' \149\ With a one-person train
crew, the single crewmember must be dual-certified as a locomotive
engineer and a conductor.\150\ In this way, FRA currently requires that
each locomotive or train must have a crew that can perform all the
duties described by the qualifications requirements in FRA's locomotive
engineer and conductor certification regulations.
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    \149\ 76 FR 69802, 69809, Nov. 9, 2011 (explaining that a person
may hold both a locomotive engineer certification and a conductor
certification, and, establishing rules for when revocation of each
certification is appropriate under 49 CFR 242.213).
    \150\ In previous rulemakings, FRA decided that one train
crewmember could be both the train's certified locomotive engineer
and certified conductor. See 49 CFR 240.308(c)(1) and 242.213(d)(1).
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    FRA currently permits a train crew consisting of a certified
locomotive engineer, who is not dual-certified as a conductor, and a
second person who is a certified conductor attached to the train crew,
but not traveling on the train.\151\ As proposed, this rule would limit
this practice to the excepted small railroad operations under proposed
Sec.  218.129(c)(1), as the NPRM would generally require crewmembers to
be on their moving train and only would allow disembarking temporarily
from the train to perform duties assigned.\152\ Thus, a second person,
even if that person is a certified conductor, would not be a train
crewmember under this proposed rule if the person is intermittently
assisting the train's movements and traveling in a motor vehicle along
a highway near the train. If this proposed rule is finalized, FRA is
considering whether to amend the references in the locomotive engineer
and conductor certification rules that permit the current operation to
explain how these provisions are limited. FRA would appreciate comments
on this issue.
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    \151\ 49 CFR 240.308(c)(2) and 242.213(d)(2).
    \152\ See proposed 49 CFR 218.123(d).
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    Additionally, a railroad operation with a train crew that consists
of either: (1) a locomotive engineer and conductor; or (2) one
crewmember that is dual-certified may have other operating employees
identified as train crewmembers. FRA currently defines ``train crew''
in Sec.  218.5 as one or more railroad employees who are: assigned to a
controlling locomotive; called to perform service subject to the
Federal hours of service requirements; involved with the movement of
the equipment they are called to operate; reporting and working
together as a unit that remains in close contact, if more than one
employee; and subject to the railroad operating rules and program of
operational tests and inspections required in 49 CFR 217.9 and 217.11.
Thus, as FRA has an existing definition of the requirements for a train
crew, FRA did not propose any new or additional requirements for the
train crew in this proposed rule. FRA would appreciate comments on this
issue. An alternative option is that FRA require a second crewmember be
a conductor, even if the other crewmember is dual-certified, in an
effort to ensure a level of teamwork that may not be attainable with
any other crewmember. This issue is further explained below for freight
and passenger train operations.
1. Freight Train Operations
    Regarding the Class I freight railroads, FRA understands that the
status of train crew staffing levels has remained unchanged since the
Association of American Railroads (AAR) reported to FRA in 2013 after
the Lac-M[eacute]gantic accident that the Class I railroads were only
using two-person crews for over-the-road mainline operations.\153\
Because there are no Class I freight railroads currently with a legacy
operation and does not expect Class I freight railroads to establish
legacy one-person train crew operations before a final rule in this
rulemaking is issued. FRA expects that, if this proposed rule became a
final rule, Class I freight railroads will be required to petition FRA
for special approval under proposed Sec.  218.133 to initiate train
operations staffed with fewer than two crewmembers.
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    \153\ 81 FR 13937 (citing letter from Mr. Edward R. Hamberger,
President and CEO of AAR, to Mr. Joseph C. Szabo, FRA Administrator
(Oct. 16, 2013), which was placed in the docket to the 2016 NPRM).
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    Meanwhile, fewer freight short line and regional railroads (i.e.,
Class II and III railroads) are using one-person train crew staffing