232.407(a)(4), in a regulation requiring end-of-train devices; and, as
in that rule, the 4,000 trailing tons or less threshold is intended to
provide operational flexibility for this proposed requirement on
railroads, especially smaller railroads.\217\ Work trains mainly haul
materials and equipment used to build or maintain the right-of-way and
signal systems. Work trains are unlikely to be hauling hazardous
materials (unless extra fuel is needed to power machinery) and are
generally not considered complex operations. They often travel at
restricted speed, which is a slow speed in which the locomotive
engineer must be prepared to stop before colliding with on-track
equipment or running through misaligned switches.
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    \217\ 62 FR 278, 282 (Jan. 2, 1997).
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    FRA expects that a work train with 4,000 trailing tons would allow
a railroad to operate a work train with potentially up to 50 cars
attached to locomotives. A work train that contains up to 50 cars
provides a railroad with a lot of flexibility in permitting such trains
to be operated without a minimum of two crewmembers. However, FRA
expects operational complexities to arise with a work train with more
than 4,000 trailing tons so that a second crewmember would be extremely
beneficial for safety purposes. The proposed exception for work trains
engaged in maintenance and repair activities on the railroad includes
the time the work train is traveling to or from a work site. FRA seeks
comments on the range of safety risks posed by work trains and the
4,000 trailing tons limitation, including the potential cost to
railroads.
    Proposed paragraph (c)(3) would permit an exception to the two-
person crewmember requirement whenever remote control operations are
conducted under certain circumstances. Because the general requirement
for a two-person crew minimum only applies to trains, and the
definition of train excludes switching service, this exception applies
to the use of a remotely controlled locomotive (RCL) that is traveling
between yards or customers' facilities, with or without cars.
Typically, RCL operations involved in switching have one or two
crewmembers. However, in switching, an RCL operation with two
crewmembers is not a traditional locomotive engineer and conductor
train crew arrangement. Instead, each crewmember has a remote control
transmitter, and the crewmembers alternate controlling the RCL when the
RCL is near that crewmember. This ``pitch and catch'' arrangement is
more

like having two independent, one-person crews who can do all the duties
of both a locomotive engineer and a conductor.
    Although RCL operations are best utilized for switching services, a
railroad may need to move an RCL from one location to another where the
RCL can be more efficiently used. FRA is aware that some railroads use
a one-person RCL job to service customers. FRA does not find the
practice inherently unsafe given the limitations of the technology.
However, FRA might be more concerned if railroads tried to operate the
one-person RCL jobs with increased complexity beyond the known
acceptable limitations previously acknowledged by the industry. For
example, the proposed exception in includes the limitations in
paragraph (c)(3)(v) that a ``train does not contain more than 20
multilevel cars, e.g., autorack cars, regardless of whether they are
loaded or empty [and] [a]ny continuous block of more than five
multilevel cars must be placed at the rear of the train.'' The reason
for these proposed limitations on RCL operations are that multilevel
cars employ cushioning devices that act as shock absorbers to protect
the automobiles that are the cargo, especially during switching
operations; however, these cushioning devices create challenging train
handling characteristics and are not suitable for RCL operations in
numbers greater than the proposed limitations. This NPRM reflects
limitations, previously discussed in the 2016 NPRM, that reflect
guidance accepted by industry stakeholders.\218\
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    \218\ 81 FR 13947 (docketing US DOT/FRA guidance letters at
https://www.regulations.gov/document/FRA-2014-0033-0002).
---------------------------------------------------------------------------

    The RCL operations limitations do not contain a distance
restriction, although FRA's guidance on the issue explained that the
agency expected that an added limitation would be for these operations
to be restricted to main track terminal operations. Considering that
RCL operations are already restricted to 15 mph,\219\ FRA did not
anticipate that RCL operations would expand beyond main track terminal
operations. While FRA currently does not believe that RCL operations
that are so limited need a distance restriction, FRA would appreciate
any comments on this issue.
---------------------------------------------------------------------------

    \219\ 49 CFR 229.15(a)(14).
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Section 218.131 Continuance of Legacy Train Operations Staffed With a
One-Person Train Crew

    The purpose of this proposed section is to provide a way for legacy
one-person train operations to continue after the effective date of a
final train crew size safety requirements rule until FRA can review the
safety of the operation. FRA is proposing to define a legacy, one-
person operation as one that a railroad established at least two years
before the effective date of a final rule on train crew size safety
requirements. Without at least two years of one-person train crew
operations, a railroad would not have established an accident/incident
safety record of a reasonable length on which FRA could base any
determination of the level of safety the operation provides. For a
railroad to have an operation ``established at least two years
before,'' FRA means that during that two-year period, an operation must
occur at regular intervals under a set of defined procedures or
conditions. FRA understands that a railroad may substitute a multi-
person train crew for the one-person operation occasionally but, if the
circumstances allow for the one-person operation, the railroad will
typically use the one-person train crew. If a railroad did not conduct
one-person train crew operations regularly, even when the procedures or
conditions were met, the existence of a legacy operation is
questionable. FRA expects that railroads with potential legacy
operations will submit comments on their particular factual
circumstances so that FRA can consider the impact the proposed rule
might have on the regulated community wishing to establish legacy
operations. Accordingly, FRA requests comments on this issue.
    FRA requests comment on the proposed two-year requirement for
establishing a legacy, one-person train operation. FRA recognizes there
may be other ways to demonstrate the existence of an established legacy
operation such as total number of operating hours or rail miles
operated. For example, a railroad that operates a one-person train once
per week for two years might have fewer operating hours or rail miles
than another railroad that operates a one-person train multiple times
per week over a single year. For this reason, railroads with any type
of legacy operation are encouraged to comment on the proposed rule and
describe whether FRA would need to revise proposed Sec.  218.131 so
that the railroad's current operation could be considered a legacy
operation. Still another option is that FRA could establish a specific
date (e.g., January 1, 2021) by which a fewer than two-person operation
must be established to be considered a legacy operation under this
rule. FRA also requests comment on other potential criteria that should
be required, if any, to establish a legacy operation.
    FRA is proposing to prohibit the continuance of legacy one-person
freight train operations that transport the hazardous materials of the
types and quantities described in Sec.  218.123(c) and, per proposed
paragraph (a) of Sec.  218.131, that prohibition would apply as of the
effective date of a final rule. Thus, to the extent a legacy one-person
freight train operation may continue, it is proposed that it must do so
without transporting the hazardous materials of the types and
quantities described in Sec.  218.123(c).
    Proposed paragraph (a) would prohibit a railroad from continuing a
legacy one-person train operation beyond 90 days after the effective
date of a final rule if the railroad failed to file a special approval
petition containing a description of the operation. Hence, each
railroad that establishes a one-person train operation, for at least
two years before the effective date of a final rule, would need to
decide whether it wants to continue the operation beyond 90 days after
the effective date of a final rule; if it does, the railroad will be
required to file a special approval petition, unless the operation is
covered under one of the proposed exceptions in Sec.  218.125, Sec.
218.127, or Sec.  218.129. It is proposed in paragraph (a) that legacy
train operations that are excepted under Sec. Sec.  218.125 through
218.129 will be permitted to continue without the need to file a
special approval petition. For those legacy, one-person train
operations that file a petition for special approval under the proposed
rule, the railroad may continue the operation unchanged beyond 90 days
after the effective date of a final train crew size safety requirements
rule, unless FRA issues a disapproval decision or attaches special
conditions to the approval of the petition per Sec.  218.137.
    Proposed paragraph (b) contains a list of the minimum information
requirements for a railroad's special approval petition requesting
continuance of a legacy, one-person train operation. Proposed paragraph
(b)(1) requires information about the primary person at the railroad
who can be contacted about the petition. The remaining 14 numbered
items listed under proposed paragraph (b) are intended to solicit an
accurate description of the operation, the hazards present, the
mitigating measures taken to improve safety, and the railroad's
description of how it determined the operation was safe to implement.
    Paragraph (b)(2) proposes a requirement for a railroad that wants
to continue a legacy one-person train operation to identify the
location of that

operation. FRA proposes to require each railroad to provide the
location of the legacy operation it wants to continue with as much
specificity as can be provided as to industries or communities served,
and track segments, territories, divisions, or subdivisions operated
over. Although not required, FRA would appreciate receiving
documentation describing any prior operations, including their
locations, with fewer than two crewmembers that the railroad may have
utilized in the past. For example, documentation could show that a
railroad used to run a one-person train operation for 3 days per week
for 5 years without incident. That kind of information would show the
extent of the operation and the safety record.
    In consideration of the proposed location description requirement
in paragraph (b)(2), a railroad's request for continuance of a legacy
train operation staffed with a one-person train crew must identify the
current parameters of the operation's location and should not expand
the parameters based on plans for future expansion. A railroad that
cannot provide records kept in the normal course of business to support
a continuing operation should consider submitting affidavits in support
of the existence and extent of the one-person train operation. Lacking
a submission containing that type of evidence, the railroad would be
relying on FRA to initiate an investigation to confirm the operation's
location. If a railroad fails to provide adequate documentation of an
operation to be continued, and FRA's investigation does not find
adequate support of its existence, the request for continuance will be
denied and the railroad will need to file a petition for special
approval to initiate a train operation with fewer than two crewmembers
per the petition requirements in Sec.  218.133.
    Proposed paragraphs (b)(3) through (7) and (10) are sufficiently
descriptive that further analysis is unnecessary for those paragraphs.
The required information is intended to assist FRA in reviewing the
hazards and risk of the operation, in lieu of requiring the railroad to
conduct a risk assessment.
    Proposed paragraph (b)(8) would require a railroad with a legacy
one-person operation to state in its petition for special approval
whether the one-person operation hauls hazardous materials of any
quantity and type, and the approximate percentage of carload traffic in
the one-person operation that is hazardous materials. A one-person
operation that does not haul hazardous materials would certainly
present less risk than one that does, all else being equal. Considering
other issues related to the operation's size and scope, understanding
the quantity and type of hazardous materials hauled will help FRA
evaluate the risks of the legacy one-person operation. In the
background section, FRA explained that it would expect to approve the
continuation of a freight operation if it met certain characteristics
INRD used to describe its one-person train crew operation, including
that 70 percent or more of the railroad's carload traffic is non-
hazardous materials. FRA proposes that a railroad approximate the
percentage of carload traffic in the one-person operation that is
hazardous materials in its petition as it should be included as a
factor in determining the risk posed. FRA does not view 30 percent as
the upper limit for hazardous materials carload traffic in a one-person
legacy operation, and FRA is not proposing any upper limit. FRA's
concern is how to consider the hazards and risk of hazardous materials
in the total safety of the operation, which is an issue that can be
evaluated with the other proposed requirements for a petition in this
section. Further, commenters to a petition for special approval can
help illuminate the hazards and risk.
    Proposed paragraph (b)(9) is intended to solicit information about
whether any limitations are placed on a person operating as a one-
person train crew. FRA expects that some railroads will limit a one-
person train crew by establishing a maximum number of miles or hours
the person may work during a single tour of duty. It is also possible
that a railroad operating a legacy operation may have established a
fatigue mitigation plan even though there is no current Federal
requirement to do so. FRA expects that it would be more likely to grant
a petition if a railroad implemented strategies for reducing railroad
worker fatigue, such as improving the predictability of schedules,
considering the time of day it permits one-person train crews to
operate, and educating workers about fatigue and sleep disorders. The
proposed petition could include an explanation for the rationale behind
the limitation to show that it is part of the railroad's effort to
ensure that the train operation would be consistent with railroad
safety.
    Proposed paragraph (b)(11) would require a detailed description of
any technology that is used to perform tasks typically performed by a
second crewmember or that prevents or mitigates the consequences of
accidents. The technologies described must be already installed and
operational, with all FRA approvals as necessary, so that the
functionality and impact of the technology on the operation are
understood and can be accurately accounted for by FRA in its decision.
FRA does not intend this regulation to provide a forum for a railroad
to gain approval for use of new technologies that are not already in
use. As explained in the background section, railroads that want to use
leading-edge rail automation technology should petition for a waiver of
FRA's safety rules.
    Proposed paragraph (b)(12) would require that each railroad with a
legacy one-person operation must already have or add certain rules or
practices that apply to the one-person train crew operation, but do not
apply to train crew operations with two or more crewmembers. These
specific proposed requirements are based on FRA's statement in the
background section explaining that FRA would expect to approve the
continuation of a freight operation if it met certain characteristics
that INRD used to describe its one-person train crew operation. As
these requirements are also proposed for the specific freight train
exceptions to the two-person crew requirement in Sec.  218.129(b), the
section-by-section analysis for that proposed requirement is applicable
here and will not be repeated.
    Proposed paragraph (b)(13) would require a railroad's petition to
include a disabled-train/post-accident protocol that quickly brings
railroad employees to the scene of a disabled train or accident unless
the railroad is conducting a passenger train operation that is required
to comply with the passenger train emergency preparedness requirements
in 49 CFR part 239. In multiple places in the background section, it
was explained that without a second crewmember to take mitigation
measures, a one-person train crew could be slower to respond to
emergencies than a two-person crew but that the railroad could be as
effective by implementing a disabled-train/post-accident protocol. FRA
does not currently require freight railroads to adopt and comply with a
disabled-train/post-accident protocol, although FRA anticipates that
some legacy freight operations already maintain the equivalent within
their own rules and practices. Thus, for purposes of continuing a
legacy one-person freight operation, FRA proposes to require each
railroad to submit such a protocol that it has implemented when filing
its petition. FRA expects that some railroads already have such a
protocol in place and others may need to develop one. Such a proposed
protocol must describe the role and responsibilities of

the one-person train crewmember and any other railroad employees,
including supervisors, with responsibility to address a disabled train
or an accident. For instance, some railroads may have operational
facilities along the route taken by the one-person freight train
operation that employ personnel that can be dispatched to help a
disabled train or respond to an accident. Other railroads may have
utility workers or other operating employees that travel by motor
vehicle to a disabled train to perform operational tasks or mechanical
repair work typically performed by a second crewmember. A train may
also be considered disabled because the one-person crewmember's hours
of service expires, and the railroad then needs to retrieve and replace
the crewmember. In this context, FRA expects that an adequate protocol
would broadly address any concern that disables a train, whether it be
caused by a track washout or other severe weather event, mechanical
breakdown, significant operational delay, accident, or other
circumstances that prevent the train from moving. Typical operational
delays, such as one train waiting in a siding for another to pass,
would not be considered a disabled train event. In addition, the
proposed protocol must also describe any logistics and the railroad's
expected response times. The reasonableness of the logistics and
expected response times of each operation will depend on the scope of
the operation and the potential impact on the public.
    Proposed paragraph (b)(14) would require a petition for special
approval to include five (5) years of accident and incident data for
the operation as identified in paragraph (b)(2) of this section, or at
least the accident and incident data for the operation from the date
the operation was established if the operation was established between
2 to 5 years before the effective date of a final rule. Although FRA
requires railroads to report these accidents/incidents under 49 CFR
part 225, FRA cannot accurately determine from that reported
information which, if any, reportable accidents/incidents are
attributable to a railroad's one-person train operation. FRA expects
that each railroad will have more information about its own accidents/
incidents and can flag the data that applies to the one-person train
operation it is petitioning for special approval. The reference in the
proposed requirement to paragraph (b)(2) of this section is intended to
have the railroad narrow the requested data to the location of the
continuing operation that the railroad has identified in its petition.
As proposed, FRA does not want to receive accident/incident data unless
it pertains to the one-person train operation(s) the railroad's
petition is addressing.
    Proposed paragraph (b)(15) is a catch-all provision which serves as
a reminder to railroads that they may submit any other information
describing protections implemented to support the safety of the one-
person train operation that the railroad wants to continue after FRA's
proposed deadline passes. FRA expects that some railroads would have
completed a risk assessment, a safety analysis, or compiled a safety
data report before implementing the legacy one-person train operation
that the railroad would now want to continue. To the extent that the
railroad is willing to share that information with FRA, FRA would like
to receive it. Such information would offer assurance that the railroad
carefully considered safety issues before implementation and the
availability of such information in the petition is expected to be
favorably received.
    Proposed paragraph (c) would specify that FRA may request any
additional information, beyond what is provided in the petition, that
it deems necessary. FRA does not expect to routinely request additional
information when a railroad provides the minimum required information
listed in paragraph (b). However, FRA may need information clarifying
what is provided or FRA may have follow-up questions when the
information provided in the petition raises additional safety concerns.

Section 218.133 Special Approval Petition Requirements for Initiation
of Train Operations Staffed With Fewer Than Two Crewmembers

    This proposed section addresses the requirements for initiation of
a train operation staffed with fewer than two crewmembers that is not
otherwise prohibited or permitted by the other requirements of subpart
G. For instance, except for operations permitted under Sec. Sec.
218.125 through 218.131, proposed paragraph (a)(1) prohibits a railroad
from conducting a train operation with fewer than two crewmembers
unless it receives special approval under subpart G.
    Proposed paragraph (a)(2) addresses the additional general
requirements for passenger railroads seeking to begin train operations
with fewer than two crewmembers. Because passenger railroads must
comply with the existing regulatory requirement to adopt and comply
with a written emergency preparedness plan approved by FRA under 49 CFR
part 239,\220\ proposed paragraph (a)(2) would require that a passenger
railroad seeking to begin train operations with fewer than two
crewmembers obtain special approval under subpart G and additionally
obtain FRA's approval of either: (1) a passenger train emergency
preparedness plan under part 239 for the operation; or (2) a waiver
from the part 239 emergency preparedness plan requirement.\221\ If a
passenger railroad chooses to request a waiver under 49 CFR part 211,
proposed paragraph (a)(2)(ii) allows the railroad to petition for both
a waiver under part 211 and special approval under Sec.  218.133 in the
same filing. Because the number of crewmembers assigned to a train will
affect a railroad's part 239 emergency preparedness plan for that
operation, it is appropriate for a passenger railroad to submit one
filing that addresses both regulatory requirements.
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    \220\ 49 CFR 239.101.
    \221\ 49 CFR part 211, subpart C, contains the required
processes and procedures for submitting a waiver request to FRA.
---------------------------------------------------------------------------

    Proposed paragraph (b) contains the minimum petition requirements
for a railroad to request FRA's approval to initiate a train operation
with fewer than two crewmembers. FRA expects that a petition meeting
these minimum requirements will contain sufficient information for FRA
to determine whether the operation is consistent with railroad safety.
    Proposed paragraphs (b)(1) through (14) would require essentially
the same minimum requirements for a new operation special approval
petition as FRA is proposing for a railroad's special approval petition
requesting continuance of a legacy one-person freight train operation
in Sec.  218.131(b)(1) through (14). The differences between these 14
paragraphs in the new operation and legacy operation proposed petition
requirements are contextual in that a new operation cannot be initiated
until the railroad has obtained FRA's approval to initiate the
operation as proposed, while a railroad petitioning for FRA approval of
a legacy operation may continue its operation while FRA is considering
its petition. Given these similarities, for more background on proposed
paragraphs (b)(1) through (14) of this section, please see the
discussion of paragraphs (b)(1) through (14) of proposed Sec.  218.131.
    The significant difference between the filing requirements for a
new operation versus a legacy operation is paragraph (b)(15) of each
relevant section. For a legacy operation, proposed paragraph (b)(15) of
Sec.  218.131 is a catch-all

provision which makes clear that in addition to the information and
analysis required by paragraphs (b)(1) through (14) of the section, a
railroad may submit any other relevant information to support its
petition. For new operations that have not yet been implemented with
fewer than two-person crews, FRA proposes a catch-all provision in
paragraph (b)(16) of Sec.  218.133, instead, and the additional
requirement of a risk assessment for the proposed new operation in
paragraph (b)(15). The proposed risk assessment requirement is
discussed in detail below in the section-by-section analysis of Sec.
218.135.

Section 218.135 Risk Assessment Content and Procedures

    Proposed Sec.  218.135 contains the minimum proposed requirements
for a railroad's risk assessment required under subpart G. Generally,
the goal of a risk assessment is to assess risk in an objective manner
by following a decision-making process designed to systematically
identify hazards, assess the degree of risk associated with those
hazards, and based on those assessed risks, identify and implement
measures to minimize or mitigate the risks to an acceptable level. In
the context of this rulemaking, a risk assessment is the process of
determining, either quantitatively or qualitatively, the level of risk
associated with a proposed train operation staffed with fewer than two
crewmembers, including mitigating the risks to an acceptable level. In
this NPRM, FRA is proposing a process specific to analyzing the risks
of train operations with fewer than two assigned crewmembers. While the
proposed process and methodology are taken from existing standards in
transportation and other industries, they are tailored to the specific
context of this rulemaking.\222\
---------------------------------------------------------------------------

    \222\ In the Background section under ``Risk Assessments,''
above, FRA explains that these proposed standards are largely based
on standards established by the Department of Defense and AREMA, or
FRA in the context of other current rail safety requirements.
---------------------------------------------------------------------------

    FRA is proposing that a railroad's risk assessment be required to
identify and account for the risks associated with: (1) the overall
operating environment and all operating conditions associated with the
proposed operation; and (2) all functions the proposed operation would
require to be performed by a crewmember and/or equipment involved in a
train's operation that may affect the safety of the operation. As
proposed, Sec.  218.135(a) sets the minimum standards for the content
and analysis requirements for the required risk assessment. As
proposed, however, paragraph (a) would allow a railroad to use
alternative risk assessment methodologies and/or procedures if approved
by the Associate Administrator.
    Specifically, proposed paragraph (a) would require a railroad's
risk assessment to contain six elements: (1) a complete description of
the proposed operating environment; (2) a list and description of all
functions, duties, and tasks associated with the operation of a train
as proposed, performed by the crewmember, other railroad employee(s),
or equipment, including at a minimum, any function performed; (3) a
description of the allocation of all functions, duties, and tasks to
the one crewmember, other railroad employee(s), or equipment; (4) a
hazard analysis of train operation functions, duties, and tasks; (5) a
risk matrix that classifies the severity and likelihood of each
partially mitigated or unmitigated hazard; and (6) a risk report of the
proposed train operation staffed with fewer than two crewmembers
documenting the basis for acceptability of all partially mitigated or
unmitigated hazards.
    Understanding the specific operating conditions under which a train
crew with fewer than two crewmembers would be required to operate is
critical to identifying potential hazards and the risks associated with
those hazards. Accordingly, paragraph (a)(1) requires a complete
description of the operating environment, including, at a minimum: all
authorized methods of operation; \223\ applicable operating rules and
practices; hours of operation; qualifications and certifications of the
crewmembers; the number and frequency of trains involved; the tonnage,
length, and make-up of trains involved; the route and terrain over
which the trains will be operated (e.g., maximum grade, sight
distances); number and types of grade crossings involved; the amount
and types of hazardous materials that would be transported; and the
characteristics of the geographic areas through which the trains will
operate (e.g., population density, proximity to environmentally
sensitive areas). FRA recognizes that every railroad operating
environment, and every railroad operation, is unique. Accordingly, in
proposed paragraph (a)(1)(xi), individual railroads may need to
identify and describe additional aspects of any proposed operation that
are relevant to providing a full and complete description of the
specific operating environment and conditions of its proposed fewer
than two-person train crew operation. As explained below, the risk
assessment's hazard analysis will use this information to identify
hazards for each operation, under all conditions and operating modes,
including when there is a failure of components, equipment, or systems.
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    \223\ The phrase ``all authorized methods of operation'' refers
to how a train has authority to move. The following are some of the
different methods of operation used by railroads: timetable;
mandatory directive; signal indication; or any form of absolute or
manual block system.
---------------------------------------------------------------------------

    Proposed paragraphs (a)(2) and (3) would require a risk assessment
to contain a list and description of all functions, duties, and tasks
associated with the operation of a train with fewer than two
crewmembers that are performed by the one crewmember, other railroad
employee(s), locomotive equipment or components, or operating and
control systems; and identification of the allocation of those
functions, duties, and tasks. Just as understanding the specific
operating environment in which a fewer than two-person crew would be
required to operate is critical to any risk assessment process,
identifying the specific functions, duties, and tasks associated with
operating in that environment is also critical, as is identifying the
``division of labor'' in performing those functions, duties, and tasks.
Paragraph (a)(2) requires a railroad to identify and describe all
functions, duties, and tasks performed by the crewmember, other
railroad employee(s), or equipment (e.g., (1) to prepare a train for
operation (any pre-departure function); (2) during a train's operation
(any en route function); or (3) once a train has stopped moving
(whether because the train has reached its destination or stops en
route, for any reason). Pre-departure functions would include, at a
minimum, inspecting and preparing a train for operation (e.g.,
obtaining all track bulletins, orders, and manifests; managing the
train consist, including train make-up; obtaining and ensuring the
accuracy of consist paperwork, including hazardous materials
documentation; arming and testing an end-of-train device, as required,
and performing necessary brake tests; releasing the handbrakes; and,
reviewing, interpreting, or responding to forms, bulletins, or
advisories). During a train's operation, the functions would include
operating and controlling the train (e.g., applying and releasing of
brakes; modulating the throttle; responding to and acknowledging
alarms; interacting with non-crewmembers e.g., dispatcher, roadway
workers; and, responding to emergencies or unexpected events (e.g., a
trespasser on the tracks). Once a train has stopped, the functions
would include securing the equipment and communicating with the
dispatcher.

    Once all functions, duties, and tasks are identified and described
under proposed paragraph (a)(2), proposed paragraph (a)(3) would
require a railroad to identify the allocation of those functions,
duties, and tasks to the crewmember, other railroad employee(s), or
equipment. In other words, ``who is responsible for doing what'' must
be identified. As the allocation of functions, duties, and tasks is
completed, and it is confirmed whom or what performs specific
functions, duties, or tasks, a railroad must also confirm whether there
are additional measures, checks or procedures to confirm that the
function, duty, or task is completed and performed correctly. This
confirmation, and an understanding of what verification and validations
steps are in place, are a critical input to the hazard analysis
required by proposed paragraph (a)(4). For example, before a train
departs, a single crewmember may be responsible for managing train
make-up and obtaining a copy of the train consist and other relevant
documentation (e.g., hazardous materials documentation). A railroad may
also have in place a process to verify the accuracy of the consist and
other documentation by use of automatic equipment identification
readers or other technology. While a train is in motion, the single
crewmember may be required to operate the train by modulating the
throttle and applying the brakes as necessary, but those human actions
may be supplemented by computerized control systems (e.g., PTC systems,
or systems designed to maximize fuel efficiency by controlling train
speed).
    Using the information gathered in response to paragraphs (a)(2) and
(3), proposed paragraph (a)(4) requires a railroad to complete a hazard
analysis of train operating functions, duties, and tasks for operations
with fewer than two crewmembers. A ``hazard,'' as defined in Sec.
218.5, is an existing or potential condition that can lead to an
unplanned event or series of events (i.e., mishap) that can cause an
accident or incident; injury, illness, or death; damage to or loss of a
system, equipment, or property; or environmental damage. Identifying
relevant hazards and preparing a hazard analysis are fundamental to the
process of assessing risk. A hazard analysis is performed to identify
potential hazards for purposes of eliminating, or at least mitigating,
those hazards. A hazard analysis will assign a qualitative or
quantitative severity and probability of occurrence to any identified
hazard causing (or with the potential to cause) an undesirable event.
In the context of a risk assessment under this paragraph, a hazard
analysis must be designed to reasonably ensure that any hazards
associated with any functions, duties, or tasks involved in the train
operation are identified, so that suitable mitigating actions can be
identified and implemented to ensure the safety of the operation. A
hazard analysis must also document what hazards were identified, and
the results of an analysis of those hazards (i.e. the extent to which
each hazard can be mitigated or eliminated, and any relevant mitigation
measures).
    As proposed, a hazard analysis must consider the entire state of
the proposed fewer than two crewmember operation (i.e., all data and
information identified under proposed paragraphs (a)(1) through (3)),
and potential failures or malfunctions (including human error and
equipment, component, or system failures). Each function, duty, or task
potentially represents a hazard, if done incompletely or improperly.
    As proposed, paragraph (a)(4) would require a hazard analysis to
include four elements: (1) a hazard log, consisting of a comprehensive
description of all hazards associated with the proposed train
operation; (2) an assessment of each hazard in terms of the severity
(i.e., a measure of the worst-credible mishap resulting from the
hazard); (3) an assessment of each hazard in terms of probability of
occurrence, based on the likelihood of the sequence of events that
could lead to the hazardous condition; and (4) a hazard mitigation
analysis outlining the sustainable actions and associated components,
equipment, systems or processes that are put in place to reduce or
eliminate the probability or severity, or both, of each hazard.
    A hazard log is a way to track all hazards associated with the
operation (e.g., a table). The purpose of a hazard log is to identify
associated risks, list mitigations, and document when all required
mitigations have been successfully implemented. As proposed in
paragraph (a)(4)(i), a hazard log is a mechanism for recording and
tracking all safety relevant hazards (i.e., a log of the potential
adverse consequences of what can go wrong when a safety-critical or
safety-related function is not completed or completed improperly) when
preparing a train for operation, during a train's operation, or once a
train has stopped moving. Hazard identification may include fault tree
analysis, brainstorming, failure mitigation checklists, or other
processes to identify hazards. Expert knowledge, training material,
equipment design requirements, and other information can be used to
support the preparation of a hazard log.
    A hazard log must include sufficient supporting documentation to
demonstrate that a robust process was used to identify hazards. A
hazard log may include hazard sheets documenting how the hazard was
identified, who identified the hazard, the probability and severity of
each identified hazard, and how each hazard will be mitigated. If any
identified hazard is not fully mitigated, the hazard log must contain
documentation demonstrating the partially mitigated or unmitigated
hazard remaining and the potential consequences of that remaining
hazard.
    A hazard log is a living document that must be maintained and
updated to reflect the current operating environment. If new hazards
are identified, the hazard log must be updated. Similarly, if
operational changes are made in a way that introduces additional risk,
the hazard log must be updated. Changes to a hazard log must be
effectively managed, e.g., through a configuration management process.
A configuration management process is the practice of analyzing changes
in the operating environment and systematically documenting those
changes, and the impact of those changes, on the risk assessment and
hazard log. An effective configuration management process must be used
to determine when and how often a risk assessment needs to be reviewed
and re-validated.
    FRA proposes that a railroad identify each hazard in its hazard
analysis in terms of both severity and probability. The severity of an
identified hazard is a measure of the hazard's consequences (i.e., an
estimation, or potentially a calculation, of a hazard's consequences).
As proposed, a hazard's severity is measured as the worst potential
credible mishap resulting from the hazard (i.e., the worse-case
possible end condition that could result from a hazard). Severity
analysis is usually performed qualitatively but may be performed
quantitatively with supporting historical data. Proposed paragraph
(a)(4)(ii) would require a railroad's hazard analysis to assess and
categorize the severity of each identified hazard as follows: (1)
catastrophic; (2) critical; (3) marginal; or (4) negligible. These
proposed severity categories are derived from the well-established
severity categories used in AREMA's Communications and Signaling
Manual, but FRA is proposing to define each category in terms of
railroad operations and in terms of other FRA regulations. Table 1 in
this section proposes to define each severity category as follows:

    Catastrophic: A hazard that results in a fatality, irreversible
significant environmental damage, or significant monetary loss, and
accidents and incidents required to be reported to FRA telephonically
under 49 CFR 225.9.
    Critical: A hazard that results in a significant injury (as defined
in 49 CFR 225.5), reversible significant environmental damage, or
reportable monetary loss, and accidents and incidents that are not
required to be telephonically reported under 49 CFR 225.9, but are
still FRA-reportable under 49 CFR 225.19.
    Marginal: A hazard that results in minor injuries (i.e., injuries
that are not significant as defined in 49 CFR 225.5), reversible non-
significant environmental damage, or monetary loss.
    Negligible: A hazard that results in no injuries, no environmental
damage, or equipment or railroad structure damages not requiring
repair.
    FRA requests comments on these proposed categories.
    Proposed paragraph (a)(4)(iii) would require the hazard analysis to
assess each identified hazard in terms of probability (i.e., the
likelihood of occurrence of an event or a sequence of events that could
lead to the hazard). A hazard's probability level may be calculated
quantitatively (e.g., using failure rates or accident and incident
data). Alternatively, a hazard's probability level may be calculated
qualitatively (e.g., based on a mix of historical data, equipment
reliability data, and expert knowledge). Regardless of how calculated,
for purposes of subpart G, a hazard's probability level must be
assessed in the context of the probability levels identified in Table 2
of this section. As proposed, the five categories of probability are:
(1) frequent; (2) probable; (3) occasional; (4) remote; and (5)
improbable. Like the proposed severity categories, these proposed
probability categories are derived from the AREMA standard and, in
paragraph (a)(4)(iii), FRA is proposing to define each category in
terms of railroad operations and in terms of other FRA regulations.
Consistent with the AREMA standard, FRA is proposing to allow the
categorization of a hazard's probability through either qualitative or
quantitative analysis. Qualitatively, in Table 2, FRA proposes to
define each probability category (estimated per 1,000 operating hours)
as follows:
    Frequent: Likely to occur frequently.
    Probable: Likely to occur several times.
    Occasional: Likely to occur once, but not several times.
    Remote: Unlikely, but possible, to occur.
    Improbable: So unlikely that it can be assumed occurrence may not
be experienced.
    Quantitatively, Table 2 proposes to define each probability
category in terms of the probability of a hazard occurring per 1,000
operating hours as follows:
    Frequent: A hazard having a probability of occurring more often
than once every 1,000 operating hours.
    Probable: A hazard having a probability of occurring once between
every 1,000 operating hours and every 100,000 operating hours.
    Occasional: A hazard having a probability of occurring once between
every 100,000 operating hours and every 10,000,000 operating hours.
    Remote: A hazard having a probability of occurring once between
every 10,000,000 operating hours and every 1,000,000,000 operating
hours.
    Improbable: A hazard having a probability of occurring less than
once every 1,000,000,000 operating hours.
    A hazard's probability should be based on all relevant information
gathered under proposed paragraphs (a)(1) through (3), and the
appropriate probability level for any identified hazard is the
likelihood of the occurrence of that hazard at any given time.
    The assessment of each hazard's severity and probability is
essential to any risk assessment, and as proposed, necessary to
complete the risk assessment matrix and risk report that paragraphs
(a)(5) and (6) would require.
    Paragraph (a)(4)(iv) contains the final proposed component of a
hazard analysis, a hazard mitigation analysis. As proposed, a
railroad's hazard mitigation analysis would be required to identify
sustainable mitigating actions and circumstances (e.g., associated
components, equipment, systems, or processes) that are put in place to
reduce or eliminate the probability or severity of each identified
hazard and associated risk. At a minimum, a hazard mitigation analysis
must consider the (1) design of the system, equipment and components,
including equipment reliability and the necessary functions to be
performed, in both a normal operation and in a failed state; and (2)
human factors associated with the processes and tasks to be performed,
including the required skills and capabilities of staff, the operating
environment, and existing or potential impairments. The goal of a
hazard mitigation analysis is always to eliminate an identified hazard
if possible. When it is not possible to eliminate a hazard, remaining
unmitigated risk must be documented and categorized in terms of
severity and probability.
    Once a hazard analysis is completed (including implementation and
analysis of the effects of all mitigating measures), proposed paragraph
(a)(5) requires a risk matrix ranking the severity and likelihood of
each hazard that was not eliminated (i.e., each partially mitigated and
unmitigated hazard). A risk matrix is a visual representation of the
risk analysis and provides a framework to categorize in terms of
severity and frequency, each identified hazard that is not fully
mitigated by the hazard mitigation analysis. A risk matrix effectively
ranks the severity and probability of each hazard; the highest levels
of risk are on one end of the matrix, the lowest levels of risk on the
other end of the matrix, and the medium risks in the middle of the
matrix. Figure 1 below is a graphic representation of the risk matrix
concept. Figure 2 below shows a risk matrix as proposed in paragraph
(a)(5).

[GRAPHIC] [TIFF OMITTED] TP28JY22.011

[GRAPHIC] [TIFF OMITTED] TP28JY22.012

    Using the severity and probability rankings of one number followed
by one letter assigned to each hazard remaining after completion of the
hazard mitigation analysis under proposed paragraph (a)(4)(iv) (shown
in Figure 2, for example, as 1A, 2B, 3C, 4D), proposed paragraph (a)(5)
requires a railroad's risk matrix to categorize the residual risk
associated with each hazard into one of 20 different risk categories,
ranging from category 1A (a hazard with potential catastrophic
consequences likely to occur frequently) to category 4E (an improbable
hazard with negligible consequences).
    Proposed paragraph (a)(6) requires a risk report documenting the
basis for acceptability of all hazards not eliminated through the risk
assessment process, i.e., the residual risk associated with the
remaining partially mitigated or unmitigated hazards identified in the
risk matrix required by paragraph (a)(5). Proposed paragraphs (a)(6)(i)
through (iii) specify the three risk categories (unacceptable,
acceptable under specific conditions, or acceptable), and place each
number/letter ranking of severity/probability into one of those
categories as shown in Figure 3 below.

[GRAPHIC] [TIFF OMITTED] TP28JY22.013

    As proposed, if a hazard cannot be fully mitigated and its matrix
categorization falls into the unacceptable category (i.e., categories
1A, 1B, 1C, 1D, 2A, 2B, 2C, 3A, 3B and 4A), proposed paragraph
(a)(6)(i) makes clear that FRA will not approve the operation and that
a railroad should not file a petition for special approval with a
hazard categorized as ``unacceptable'' because that level of risk
demonstrates that the hazard is too significant and too likely to occur
(i.e., too severe and too probable) for FRA to approve the operation.
FRA proposes to prohibit operations that identify unacceptable hazards.
    Proposed paragraph (a)(6)(ii) provides for the categorization of
certain risks as ``acceptable under specific conditions'' (i.e.,
categories 1E, 2D, 3C, 3D, 4B, 4C). A railroad may categorize a risk as
``acceptable under specific conditions'' if its finds that given the
scope and extent of the operation (i.e., the specific conditions
involved with the operation), accepting the risk is consistent with
railroad safety. The railroad's risk report must describe why the
railroad finds the conditions acceptable. As proposed, FRA will review
a railroad's risk report and the underlying hazard analysis to
determine if it agrees accepting the risk is consistent with railroad
safety. In doing so, FRA will review the description of each hazard in
this category, any mitigating measures implemented, any public comments
received, and any other relevant information or data (e.g., FRA's own
inspection data or technical staff findings) to determine whether
accepting the remaining risk, under the specific conditions proposed by
the railroad, is consistent with railroad safety.
    The title of the hazard category includes the phrase ``under
specific conditions'' to emphasize that FRA's review will focus on the
specific operating conditions identified in a railroad's special
approval petition. FRA expects that the risk report and underlying
hazardous analysis for any hazard in this category will demonstrate how
the specific mitigating measures placed on the operation reduce the
identified risk to a level that allowing the operation under the
specific conditions proposed is consistent with railroad safety.
    FRA recognizes that given every railroad's unique operating
environment and the varied size and scope of different railroads'
operations, what may be an acceptable risk for one operation, may not
be an acceptable risk for another. For this reason, FRA expects the
evaluation of hazards identified as ``acceptable under specific
conditions'' to be very fact-based and focused on the specific facts of
an operation, as demonstrated by the supporting evidence provided in a
railroad's risk report and underlying hazard analysis. For example, if
a Class III freight railroad, with limited operations over one track
over which no other railroad operates, identifies the grade of that
track as a specific hazard, reducing the speed of operations over that
track may be an acceptable mitigation measure given the overall size
and scope of the operation. However, if a Class I freight railroad with
extensive operations over a specific track segment similarly identifies
the grade of the track as a hazard and other railroads operate over the
same track, reducing the speed of the proposed fewer than two-person
operation over that track may not be an acceptable mitigation measure
because the additional operations by different railroads over the same
track may lead to increased risk given the speed of the other
operations, the capacity of the track to handle operations at varying
speeds, and potentially the resulting density of operations over the
track. FRA would expect that a petitioning railroad with any hazard
categorized as ``acceptable under specific conditions'' would
specifically address in its petition how its train operation with fewer
than two crewmembers would be consistent with railroad safety. For
example, a railroad might emphasize that the operation will have set
daily schedules to reduce crewmember fatigue or will arrange to keep
the operation's trains moving to reduce blocked crossings in
communities passed through.
    It is possible that a hazard could properly be determined to be
``acceptable under specific conditions'' if a railroad adopts one or
more safety measures that exceed the minimum Federal rail safety
requirements, and the operational or equipment safety measures adopted
are established, proven measures that will reduce the overall severity
or probability of risks in the operation generally, even if the
additional safety measures do not directly lessen the partially
mitigated or unmitigated hazard identified. For example, if a short
line freight railroad with a history of low-speed derailments were to
invest in track improvements that raised its track class but agreed in
its petition that the train operation with fewer than two crewmembers
would not operate at the now higher maximum authorized speed allowable,
the improvements in track could be considered a specific condition that
would offset an identified derailment hazard.
    Under the last risk assessment matrix category, proposed paragraph
(a)(6)(iii), a hazard that is partially mitigated or unmitigated may
simply be acceptable. If it is acceptable, FRA will not deny the
petition for special approval if the hazard is appropriately
categorized. Thus, the hazards in this category have known and
acceptable risks based on their severity and probability. As with

any hazard, FRA may determine that the railroad miscategorized the
hazard or there was a mistake with the risk assessment's underlying
evaluation of the hazard. If a railroad were to categorize a risk as
acceptable, but FRA found otherwise, FRA would likely deny the petition
or the railroad would need to update the risk assessment before FRA
could approve the petition.
    Paragraph (b) provides that the Associate Administrator may approve
alternative methodologies and/or procedures other than those required
by paragraph (a) to assess the risk associated with an operation
proposed under subpart G. If, after providing public notice of the
request for approval and an opportunity for public comment on the
request, the Associate Administrator finds that any such petition
demonstrates that the alternative proposed methodology or procedures
will provide an accurate assessment of the risk associated with the
operation, proposed paragraph (b) provides that the Associate
Administrator may approve the use of the proposed alternative(s). As
noted earlier, FRA recognizes that standardized risk assessment
processes, tools, and methodologies exist in the transportation
industry and other industries. Although in this NPRM, FRA is proposing
a process based on these widely accepted existing standards and has
tailored the proposed process to the specific context of this
rulemaking, FRA recognizes that other industry standards may exist that
may be similarly tailored and used to achieve the same goal of this
NPRM (i.e., to objectively analyze and effectively mitigate risks of
train operations with fewer than two-person crews to an acceptable
level). FRA does not intend to preclude the use of such alternative
risk assessment standards and paragraph (b) sets forth a process for
evaluating any such proposed alternative standards. Recognizing that
FRA's approval of an alternative methodology or process of conducting a
risk assessment may set the standard for future risk assessments by
other parties, it is important to allow for public comment and input on
any proposed alternative standard or methodology a party seeks to use.
FRA requests comment on this proposal.
    As with all aspects of this NPRM, FRA requests comment on the
proposal to require risk assessments as part of the petition process
for a railroad seeking FRA's approval to initiate a train operation
with fewer than two crewmembers. FRA also requests comment on the
specific risk assessment process proposed.

Section 218.137 Special Approval Procedure

    This section contains the proposed procedure to petition FRA for
special approval for both one-person legacy train operations and the
initiation of a new operation with fewer than two train crewmembers.
Proposed paragraph (a) would require that each railroad submitting a
petition to continue a legacy operation or initiate a new operation
under proposed Sec. Sec.  218.131 and 218.133 shall send the petition
by email to [email protected]. Once FRA receives the petition, FRA
will place the petition in a public docket at https://www.regulations.gov.
    Proposed paragraphs (b) through (d) would establish a special
approval procedure. FRA is proposing to use a process to gather public
comment on a petition and ensure transparency in FRA's evaluation of
any petition. FRA proposed a public comment period so that
stakeholders, such as the railroad's employees, or businesses and
communities adjacent to or served by the railroad, can provide relevant
safety information or data. The special approval procedure has been
used successfully in other FRA regulations.\224\ Proposed paragraph (b)
would require that FRA publish a notice in the Federal Register
concerning each petition it received under this section.
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    \224\ See, e.g., 49 CFR 232.17, 238.21, and 238.203.
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    Proposed paragraph (c) would provide a 60-day comment period for
each petition. Proposed paragraph (c)(1) contains the minimum
requirement that each comment must provide all relevant information and
data in support of the commenter's position. As proposed in paragraph
(c)(2), comments must be submitted electronically to the assigned
docket noted in the applicable Federal Register notice.
    Proposed paragraph (d) addresses the process for disposition of
petitions. For instance, in paragraph (d)(1), FRA proposes that the
Administrator may conduct a hearing on a petition using the same
procedures the agency uses to conduct other hearings under its rules of
practice.
    Proposed paragraphs (d)(2) and (3) set the expectation that FRA
will normally grant or deny a petition within 120 days of its receipt
and a petition must not be implemented until approved. However, should
FRA require additional information from the petitioning railroad, or
need to investigate issues raised by commenters, a decision on the
petition could be delayed. If there is a delay, as proposed, the
petition will remain pending until FRA decides it. Further, as proposed
in paragraph (d)(2), FRA may attach special conditions as deemed
necessary to any approval under this section.
    Once approved, a petition does not expire, although FRA provides in
proposed paragraph (d)(2) that it may reopen consideration of the
petition for cause stated. ``For cause'' is a legal term that, in this
proposed context, means that FRA will not reopen a petition for
consideration unless the agency provides a specific reason, along with
all supporting evidence it has as justification for doing so. If FRA
were to discover significant safety concerns regarding an approved
operation, the discovery could trigger a ``for cause'' reopening of the
petition. In that case, it is proposed in paragraph (d)(4) that FRA
would reopen the petition by sending a written notice to the
petitioner. In closing any petition reopened for consideration, or
granting or denying a petition, FRA proposes to notify petitioners in
writing and publish the decision in the docket.
    FRA may also reopen consideration of the petition for cause stated
by a railroad petitioner. For example, if FRA denies a petition, or
grants a petition with special conditions, and the railroad disagrees
with FRA's decision, the railroad may ask FRA to reopen consideration
of the petition. A request to reopen a denied petition should include
an explanation or evidence supporting why FRA's decision should be
amended. Meanwhile, a request to reopen a petition that was granted
with special conditions should include any challenge to the special
conditions, including any alternative conditions the railroad is
willing to accept if FRA were to modify the decision in a manner
acceptable to the railroad. If a request to reopen the petition is made
contemporaneously with FRA's initial decision, FRA is likely to provide
notice to the petitioner and interested parties in the same docket
rather than publish a new notice in the Federal Register.
    Proposed paragraph (e) would require a railroad that intends to
materially modify an operation that has previously received FRA's
special approval under this section to submit a description of how it
intends to modify the operation, along with either a new or updated
risk assessment accounting for the identified proposed modifications.
Proposed paragraphs (e)(1) through (3) describe how FRA defines a
material modification in this context. For instance, a modification is
material if it is a change to a railroad's operations, infrastructure,
or locomotive control or risk mitigation technology, that may affect
the safety of the operation. A

modification is also material if the change would affect the
assumptions underlying the risk assessment, or the assumptions
underlying the risk assessment's risk calculations or mitigations, on
which an FRA approval under this section is based. The proposal would
require a new or updated risk assessment to meet the requirements of
Sec.  218.135 and be submitted to FRA by email at least 60 days before
proposing to implement any such modification. Thus, a railroad that
wishes to deviate from an FRA-approved petition would need to come back
to FRA and request approval for any modification to the operation that
is not covered by the prior approval. For example, if FRA approved a
one-person operation at a maximum speed of 25 mph and the railroad
invested resources to improve the track to support higher operating
speeds, the railroad would need special approval to increase the speed
of that operation. The railroad would need to consider in its new
petition how the dangers of possibly increasing the speed of the one-
person operation are addressed in its risk assessment. FRA is proposing
this requirement in lieu of requiring that a new special approval
petition be filed for a material modification for an already approved
operation. FRA intends the proposed requirement to help streamline the
approval process for most routine material modifications. FRA notes,
however, that even though a railroad with a legacy operation approved
under Sec.  218.131 would not have been required to submit a risk
assessment when initially requesting special approval, proposed
paragraph (e) would require such a railroad seeking to materially
modify that operation to submit a risk assessment. Significant
expansions or modifications may be considered a new operation requiring
a new submission and opportunity for public comment rather than a
material modification. FRA may also consider reopening a petition for
consideration after receiving a material modification filing. Further,
a material modification must not be implemented until approved.
    FRA is mindful the special approval procedures take time and may be
a source of uncertainty for railroads wishing to operate with less than
two person crews; however, FRA believes the procedures are necessary to
ensure those operations are performed safely. FRA would appreciate
comment on how to improve the proposed special approval procedures to
help reduce uncertainty and ensure timely approval of operations with
fewer than two crew members that are determined to be safe.

Section 218.139 Annual Railroad Responsibilities After Receipt of
Special Approval

    This proposed section would require railroads that receive special
approval under either Sec.  218.131 or Sec.  218.133 to conduct a
formal, annual review and analysis of the FRA-approved train
operation(s) with fewer than two crewmembers and annually provide a
report of that reviews' findings and conclusions to FRA. FRA proposes
that a railroad receiving special approval under subpart G will be
required to complete its formal annual review and analysis no later
than March 31 of each year, with the first report being due March 31 of
the first year following FRA's approval of the petition. FRA expects
that tracking and creating an annual report with this type of
information as proposed will help identify trends or problems that are
not consistent with railroad safety, but that may be acceptable under
specific conditions. FRA would appreciate comments on this proposed
requirement, including comments on whether three months will provide
sufficient time to produce a report. FRA is also considering an
alternative option that would require an annual report deadline
depending on when each railroad receives FRA-approval to begin a one-
person train operation; e.g., an annual report could be required 15
months after the month in which FRA approved the petition for special
approval. FRA is also interested in receiving comments on when the
first annual report should be due if a petition is approved with less
than six months left in the calendar year; i.e., FRA would want to
collect all data for a legacy or newly initiated operation once it is
approved, but is willing to consider extending the deadline for
producing the first annual report if only a few months of data would
have been collected. There are many ways to address these concerns, and
FRA would appreciate comments expressing a preference and a rationale
for any option.
    Proposed paragraph (b) lists the formal review and analysis
requirements that a railroad must include in its annual report for any
FRA-approved train operation with fewer than two crewmembers. Each
listed safety data item is proposed for inclusion because it will
provide insight into the safety of the operation and track meaningful
changes. For example, proposed paragraph (b)(1)(i) would require a
railroad with an approved petition to provide the total number of FRA-
reportable accidents/incidents under part 225 of this chapter. FRA does
not want the total to double-count any single incident and therefore
included a proposed requirement in paragraph (b)(1)(i) to prevent
railroads from making that mistake. Under that same proposed paragraph,
FRA would require that the data be subtotaled by whether the accident/
incident occurred at a highway-rail grade crossing or not, as well as
track the subtotals of accidents/incidents by State and cause
separately.
    Proposed paragraphs (b)(1)(ii) through (vii), (x), (xiii), and
(xiv) concern data of the type that FRA routinely collects and makes
available on its safety data and reporting website.\225\ Collecting
such data as the total number of FRA-reportable employee fatalities as
proposed will allow FRA, railroads, and the public to better evaluate
the safety of each railroad's operation and compare each operation to
the industry at large or other operations.
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    \225\ FRA's Safety Data and Reporting website is found at
https://railroads.dot.gov/safety-data.
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    Proposed paragraphs (b)(1)(viii), (ix), (xi), and (xii) would
require a railroad to include in its annual report the total number of
certain types of occurrences involving a train with a fewer than two-
person crew that would provide additional insight into how effective
the railroad is in addressing certain types of safety hazards as well
as how frequently these problems occur. For instance, proposed
paragraph (b)(1)(viii) would require a railroad to report the total
number of instances where a railroad employee did not comply with a
railroad rule or practice applicable to the FRA-approved train
operation(s) with fewer than two crewmembers, but not applicable to
train crew operations with two or more crewmembers. FRA would expect
that tracking that data would provide insight into the effectiveness of
each railroad's rules or practices particular to the one-person train
crew operation. The same rationale applies to proposed paragraph
(b)(1)(ix) which would require a railroad to report the total number of
instances where a person certified as both a locomotive engineer and
conductor had a certification revoked for violation of an operating
rule or practice that occurred when the person was operating per an
FRA-approved train operation with fewer than two crewmembers. If FRA
did not specifically propose a requirement for that data, it would be
difficult for FRA to ascertain whether locomotive engineers operating
as one-person train crews were involved in significant operating rule
or practice

incidents that require a railroad to revoke the person's certification
under FRA's requirements for locomotive engineer certification.
Paragraph (b)(1)(xi) follows up on FRA's proposed requirement for
railroads with fewer than two crewmembers to have disabled-train/post-
accident protocols by requiring that railroads report the total number
of instances whereby the railroad was required to implement that
protocol. Paragraph (b)(1)(xii) proposes that if there are any
instances whereby a dispatcher unexpectedly loses communication with an
FRA-approved train operation with fewer than two crewmembers, the
railroad must report the total number of those instances. FRA seeks
comment on the extent and nature of one-person operations that would
have expected losses of communications over their route, and whether
FRA should require reporting on any loss of communication, expected or
not.
    In addition to the proposed requirements for structured data, FRA
proposed in paragraph (b)(2) that each instance described in paragraphs
(b)(1)(i) through (xii) be sufficiently identified by date and
location, and that a description of each event be provided. The
proposed requirement for additional details would enable FRA to have
greater insight into the types of instances that are occurring on each
railroad and whether additional FRA action is warranted. For example, a
description of an instance would help understand whether a second-
crewmember could have helped prevent the instance or other remedial
action would further reduce the risk of a hazard under a risk
assessment.
    Proposed paragraph (c) would require both legacy railroads and
railroads initiating a new operation with fewer than two train
crewmembers to include a written confirmation in its annual report to
FRA that the operation remains unchanged or, if the operation has
changed, a new or updated risk assessment. For new operations that
completed a risk assessment, the proposed written confirmation must
specify that no calculations or assumptions have changed requiring an
updated risk assessment meeting the same requirements as the initially
filed risk assessment. For legacy railroad operations that are not
required to file a risk assessment with FRA as proposed, FRA proposes
that these railroads provide FRA with annual, written confirmation that
the operation remains substantially the same as described in the
railroad's applicable special approval petition and that no technology
changes have been implemented, or new or additional hazards identified.
If a legacy railroad's operation has changed, it is proposed that the
railroad must prepare and submit a risk assessment--even though a risk
assessment would not be initially required for the legacy railroad
operation. FRA's rationale for this proposed requirement is that
substantial changes to the legacy operation would essentially change
the operation to a new operation. FRA's prior approval would have been
based on the safety and compliance record of the prior operation, not
the new, substantially changed operation. Thus, a risk assessment is
warranted to objectively determine the safety of any new operation.
    FRA is interested in any technology changes because analysis may
later reveal that the technology added tasks for a one-person train
crew and led to a loss of situational awareness, or that the technology
added a welcome redundancy. A new risk assessment of a technology would
help understand when a change took place and then enable safety
comparisons for before and after the technology change is implemented.
    Proposed paragraph (c)(1) would require a railroad, with an
approved petition, to revise or conduct a new risk assessment to help
ensure the railroad is identifying any new hazards, and adjusting the
risk calculations of existing hazards that have changed since the
railroad's special approval petition was approved. For example, the
operation may be serving more customers, and thus doing more switching.
Another example of a new hazard or risk adjustment would be that a new
customer is shipping hazardous materials of types and quantities not
previously transported by the railroad. Still another new hazard or
risk adjustment might be the addition of joint operations with another
railroad that were not initiated until after FRA granted the railroad's
special approval petition. In addition, in paragraph (c)(2), FRA
proposed that any new or updated risk assessment submitted in
accordance with this paragraph must include a written plan and schedule
for implementing any mitigations required to address any newly
identified hazards.
    In paragraph (d), FRA proposed that it will review and respond to a
railroad's annual report submission by September 30 of the year it is
submitted. If necessary, FRA's response may include advice or
recommendations. If a railroad's annual report submission suggests that
the petition does not comply with the requirements of subpart G or that
the operation is no longer consistent with railroad safety, FRA may
reopen consideration of the petition under Sec.  218.137.

V. Regulatory Impact and Notices

A. Executive Order 12866

    This proposed rule is a significant regulatory action within the
meaning of Executive Order 12866. Details on the estimated costs of
this NPRM can be found in the Regulatory Impact Analysis (RIA), which
FRA has prepared and placed in the docket (FRA-2021-0032).
    FRA is proposing regulations establishing minimum requirements for
the size of train crew staffs depending on the type of operation. A
minimum requirement of two crewmembers is proposed for all railroad
operations, with exceptions for those operations that FRA believes do
not pose significant safety risks to railroad employees, the general
public, or the environment by using fewer than two-person crews.
    The proposed rule prescribes minimum requirements for the location
of a crewmember that is not operating the train and promotes safe and
effective teamwork. In addition, FRA proposes processes to allow
railroads to continue operations with one-person train crews, and allow
railroads to establish new operations with fewer than two crewmembers
when the exceptions do not apply. FRA is not certain about the effect
that the proposed rule would have on the total number of operations
with crews of fewer than two persons relative to the number that would
occur in the baseline without the rule.
    The RIA presents estimates of the costs likely to occur over the
first 10 years of the proposed rule. The analysis includes estimates of
costs associated with special approvals, risk assessments, annual
railroad responsibilities after receipt of special approval, and
Government administrative costs.
    FRA estimated 10-year costs of $2.0 million discounted at 7
percent. The annualized cost would be $0.3 million discounted at 7
percent. The following table shows the estimated 10-year costs of the
proposed rule.
---------------------------------------------------------------------------

    \226\ As discussed further in section VI.I. of the RIA,
quantified costs do not include costs that could be incurred in
order to mitigate risks associated with a reduction in the number of
crewmembers.

                                         Total 10-Year Discounted Costs
                                              [2020 Dollars] \226\
----------------------------------------------------------------------------------------------------------------
                                                                                Annualized      Annualized
                    Category                      Total cost,  7  Total cost,  3      cost, 7         cost, 3
                                                   percent  ($)    percent  ($)    percent  ($)    percent  ($)
----------------------------------------------------------------------------------------------------------------
Special Approval (Legacy Operations)............          41,486          41,486           5,907           4,863
Special Approval (New Operations)...............         318,665         400,442          45,371          46,944
Risk Assessment (Initial and Revisions).........         555,124         696,616          79,037          81,665
Risk Assessment--Material Modifications.........         159,353         197,690          22,688          23,175
Railroad Annual Oversight Responsibilities......         127,374         161,450          18,135          18,927
Government Administrative Cost..................         806,837       1,006,977         114,875         118,048
                                                 ---------------------------------------------------------------
    Total Costs.................................       2,008,840       2,504,662         286,014         293,623
----------------------------------------------------------------------------------------------------------------

    While FRA has qualitatively discussed the benefits in the RIA, it
does not have sufficient data to monetize those benefits. The primary
benefit of this rule is that it would ensure that railroads evaluate
and address any potential safety concerns before moving to a train
operation with fewer than two crewmembers. The safety of these trains
could be eroded if a crew with fewer than two persons operates without
accounting for additional risks. The proposed rule would help ensure
that train crew staffing does not result in inappropriate or
unacceptable levels of safety risks to railroad employees, the public,
and the environment.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \227\ and Executive Order
13272 \228\ require agency review of proposed and final rules to assess
their impacts on small entities. An agency must prepare an Initial
Regulatory Flexibility Analysis (IRFA) unless it determines and
certifies that a rule, if promulgated, would not have a significant
economic impact on a substantial number of small entities. FRA has not
determined whether this proposed rule would have a significant economic
impact on a substantial number of small entities. Therefore, FRA
prepared this IRFA to facilitate public comment on the potential small
business impacts of the requirements in this NPRM.
---------------------------------------------------------------------------

    \227\ 5 U.S.C. 601 et seq.
    \228\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

    FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from adoption of the proposals in this NPRM. FRA particularly
encourages small entities that could potentially be impacted by the
proposed amendments to participate in the public comment process. FRA
will consider all information and comments received in the public
comment process when making a determination of the economic impact on
small entities.
1. Reasons for Considering Agency Action
    FRA is concerned with the ability of railroads to utilize
operations with fewer than two crewmembers without notifying FRA.
Railroads may not be considering the adverse safety impact that fewer
crewmembers will have. This NPRM would require two crewmembers unless
certain exceptions are met. This proposed rule would ensure that
railroads examine railroad safety with respect to crew size and work
with FRA for special approval for operating trains with fewer than two
crewmembers. If FRA did not issue the rule as proposed, railroads would
be generally free to operate trains with fewer than two crewmembers,
and States could also enforce varying crew size safety requirements.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
    This proposed rule would help FRA ensure that safety is not
adversely affected when initiating train operations with fewer than two
crewmembers. The annual railroad responsibilities would provide FRA
information regarding train operations with fewer than two crewmembers
on an annual basis that may be able to improve safety.
    FRA is proposing regulations concerning train crew size safety
requirements based on the statutory general authority of the Secretary.
The general authority states, in relevant part, that the Secretary ``as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970.'' \229\ The Secretary delegated this authority to the
Federal Railroad Administrator.\230\
---------------------------------------------------------------------------

    \229\ 49 U.S.C. 20103.
    \230\ 49 CFR 1.89(a).
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of
proposed and final rules to assess their impact on small entities,
unless the Secretary certifies that the rule would not have a
significant economic impact on a substantial number of small entities.
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern
that is independently owned and operated and is not dominant in its
field of operation. The U.S. Small Business Administration (SBA) has
authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a for profit ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 1,500
employees, a ``commuter rail system'' with annual receipts of less than
$16.5 million dollars, or a contractor that performs support activities
for railroads with annual receipts of less than $16.5 million.\231\
---------------------------------------------------------------------------

    \231\ U.S. Small Business Administration, ``Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.

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

    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Under that authority, FRA has published a proposed statement
of agency policy that formally establishes ``small entities'' or
``small businesses'' as railroads, contractors, and hazardous materials
shippers that meet the revenue requirements of a Class III railroad as
set forth in 49 CFR part 1201, General Instruction 1-1, which is $20
million or less in inflation-adjusted annual revenues,\232\ and
commuter railroads or

small Governmental jurisdictions that serve populations of 50,000 or
less.\233\ FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------

    \232\ The Class III railroad revenue threshold is $39,194,876 or
less, for 2018. (The Class II railroad threshold is between
$39,194,876 and $489,935,956; and the Class I railroad threshold is
$489,935,956 or more.) See Surface Transportation Board (STB),
available at https://www.stb.gov/econdata.nsf/d03c0c2161a050278525720a0044a825/1acf737531cf98ce8525841e0055e02e.
    \233\ See 68 FR 24891 (May 9, 2003) (codified at Appendix C to
49 CFR part 209).
---------------------------------------------------------------------------

    When shaping the proposed rule, FRA considered the impact that the
proposed rule would have on small entities. FRA has provided exceptions
to the two-person crew requirement which would limit the impact on
small entities. In addition, tourist train operations that are not part
of the general system may operate with one-person crews.
    The proposed rule would be applicable to all railroads, although
very few railroads would be affected. FRA estimates there are 744 Class
III railroads, of which 704 operate on the general system. These
railroads are of varying size, with some belonging to larger holding
companies. Currently, nine railroads operate one-person crews; six of
which are Class III railroads. Most small railroads would qualify for
an exception under section 218.129 which allows for one-person
operations if a railroad has under 400,000 employee hours annually and
operates less than 25 mph. FRA estimates that 25% of railroads
submitting special approval requests each year to initiate operations
with fewer than two crewmembers would be Class III railroads.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Would be Subject to the Requirements and the
Type of Professional Skill Necessary for Preparation of the Report or
Record
    Railroads would be required to submit information to FRA for
special approval to operate trains with fewer than two crewmembers. FRA
estimates that small railroads would require the same number of hours
to complete the special approval request as Class I and Class II
railroads. The risk assessment burden may be slightly less than larger
railroads, but the average of 120 hours seems to encompass all
operations, large and small.
    Small railroads would likely have fewer hazards to address as the
operation with fewer than two crewmembers may be smaller and less
complex than larger railroads' operations. This would ease some of the
burden on small railroads and may encourage more short line railroads
to initiate train operations with fewer than two crewmembers.
    The risk assessment and annual railroad responsibilities would be
prepared by a professional or administrative employee. The burdened
hourly compensation rate of a railroad employee who performs those
duties is $77.44. The special approvals would be prepared by
executives, officials, and staff assistants. The hourly compensation
rate of a railroad employee who performs those duties is $115.24. The
type of professional skills needed by these employees includes the
ability to plan and organize work. Such an employee would also need
good verbal and written communication skills and attention to detail.
Special Approval (Legacy Operations)
    Railroads with one-person train operations that were being
conducted at least two years before the effective date of the final
rule, and that are not otherwise prohibited from operating one-person
operations, may continue those operations by filing a special approval
petition containing a description of the operation. This process is
described in Sec.  218.131 of the proposed rule. FRA would review the
information provided, and grant or deny approval to operate with fewer
than two crewmembers.
    FRA is currently aware of nine one-person train crew operations.
Six of these railroads are Class III railroads. Each of these railroads
would be required to submit information for special approval to
continue those operations. Each special approval would require
approximately 40 hours of railroad time. The following table shows the
costs for special approval for these six existing one-person operations
by Class III railroads. The total cost for special approvals for Class
III railroads with existing one-person operations would be $27,657.
That cost would only be incurred in the first year of the analysis.

                   Railroad Cost per Special Approval (Legacy Operations), Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                   Total  labor
                                    Hours  per      Hourly wage      cost  per      Number  of     Total annual
        Type of employee              special        rate  ($)        special         special       cost across
                                     approval                      approval  ($)     approvals     industry  ($)
                                               a               b       c = a * b               d       e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Manager..................              14          115.24           1,613  ..............  ..............
Superintendent..................              10          115.24           1,152  ..............  ..............
Train Master....................               8          115.24             922  ..............  ..............
Road Foreman....................               8          115.24             922  ..............  ..............
                                 -------------------------------------------------------------------------------
    Total.......................              40  ..............           4,610               6          27,657
----------------------------------------------------------------------------------------------------------------

Special Approval Process (New Operations)
    In order to initiate an operation with fewer than two crewmembers,
a railroad must apply for special approval as required by Sec.
218.133. Railroads must submit the appropriate data or analysis so FRA
can determine whether the train operation proposed is consistent with
railroad safety. New technologies or alternative intervention from
railroad employees could be included in the proposed rule to ensure
that the operation with fewer than two crewmembers would not negatively
impact safety.
    Railroads must include a description of a disabled-train/post-
accident protocol that quickly brings railroad employees to the scene
of a disabled

train or accident. Additionally, railroads must submit a copy of any
railroad rule or practice that applies to the train operation with
fewer than two crewmembers but does not apply to train crew operations
with two or more crewmembers. Some railroads may need to modify some
rules or practices to tailor them to their fewer than two-person
operations. FRA then would grant or deny approval before the operation
is implemented. Each special approval for new operations with fewer
than two crewmembers would require approximately 48 hours of railroad
time.
    The estimated cost to railroads for each special approval would be
$5,531. The following table shows the costs for special approval for
new operations.

                    Railroad Cost per Special Approval (New Operations), Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                                Total  labor
                                                                    Hours  per      Hourly wage      cost  per
                        Type of employee                              special        rate  ($)        special
                                                                     approval                      approval  ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Manager..................................................              16          115.24           1,844
Superintendent..................................................              12          115.24           1,383
Train Master....................................................              10          115.24           1,152
Road Foreman....................................................              10          115.24           1,152
----------------------------------------------------------------------------------------------------------------
    Total.......................................................              48  ..............           5,531
----------------------------------------------------------------------------------------------------------------

    FRA estimates that two new operations would commence in year 1 with
fewer than two crewmembers. There would be an estimated 25% annual
increase in the number of new operations with fewer than two
crewmembers.
    FRA estimates that 25% of new operations with fewer than two
crewmembers would be on Class III railroads. The following table shows
the number of new one-person operations per year.

   Estimated Number of New Operations With Fewer Than Two Crewmembers
------------------------------------------------------------------------
                                                         Number of new
                                      Number of new      operations per
               Year                  operations  per    year, class III
                                           year            railroads
                                                    a       b = a * 0.25
------------------------------------------------------------------------
1.................................                  2                  1
2.................................                  3                  1
3.................................                  4                  1
4.................................                  5                  1
5.................................                  6                  2
6.................................                  8                  2
7.................................                 10                  3
8.................................                 13                  3
9.................................                 16                  4
10................................                 20                  5
------------------------------------------------------------------------

    The following table shows the 10-year estimated costs for special
approvals for new operations with fewer than two crewmembers, for Class
III railroads.

                     10-Year Costs for Special Approval, New Operations, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                   Estimated new    Total labor
                                    one-person       cost per       Total costs    Present value   Present value
              Year                operations per      special           ($)           7%  ($)         3%  ($)
                                       year        approval  ($)
                                               a               b       c = a * b  ..............  ..............
----------------------------------------------------------------------------------------------------------------
1...............................               1           5,531           5,531           5,531           5,531
2...............................               1           5,531           5,531           5,170           5,370
3...............................               1           5,531           5,531           4,831           5,214
4...............................               1           5,531           5,531           4,515           5,062
5...............................               2           5,531          11,063           8,440           9,829
6...............................               2           5,531          11,063           7,888           9,543
7...............................               3           5,531          16,594          11,057          13,897
8...............................               3           5,531          16,594          10,334          13,493
9...............................               4           5,531          22,126          12,877          17,466

10..............................               5           5,531          27,657          15,044          21,197
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............         127,222          85,687         106,603
----------------------------------------------------------------------------------------------------------------
Annualized......................  ..............  ..............  ..............          12,200          12,497
----------------------------------------------------------------------------------------------------------------

    The cost for special approval for new operations with fewer than
two crewmembers would be $127,222 over the 10-year analysis. The
discounted value would be $85,687 (PV, 7 percent).
Risk Assessment
    As part of the special approval process, railroads initiating new
train operations utilizing fewer than two crewmembers would be required
to conduct a risk assessment. The risk assessment must include a
description of the proposed operation, a hazard analysis, and
discussion of the tasks and functions of crewmembers.
    Each risk assessment would require an average of 120 hours to
complete. If a railroad applies for special approval for more than one
train operation, the subsequent requests may take considerably less
time than the initial request. This is especially true if the operating
characteristics are similar between those operations.
    The following table shows the cost for Class III railroads to
conduct risk assessments.

                              Annual Cost for Risk Assessments, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                                Total labor
                       Type of employee                           Hours per       Hourly  wage    cost per risk
                                                                  operation        rate  ($)     assessment  ($)
                                                                            a                b        c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative..............................             120            77.44            9,293
----------------------------------------------------------------------------------------------------------------

    Based on the estimated number of new operations with fewer than two
crewmembers, the following table shows the 10-year estimated costs for
risk assessments for Class III railroads.

                             10-Year Costs for Risk Assessments, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                   Estimated new    Total labor
                                    one-person     cost per risk    Total costs   Present  value  Present  value
              Year                  operations      assessment          ($)           7%  ($)         3%  ($)
                                     per year           ($)
                                               a               b       c = a * b  ..............  ..............
----------------------------------------------------------------------------------------------------------------
1...............................               1           9,293           9,293           9,293           9,293
2...............................               1           9,293           9,293           8,685           9,022
3...............................               1           9,293           9,293           8,116           8,759
4...............................               1           9,293           9,293           7,585           8,504
5...............................               2           9,293          18,585          14,178          16,513
6...............................               2           9,293          18,585          13,251          16,032
7...............................               3           9,293          27,878          18,576          23,347
8...............................               3           9,293          27,878          17,361          22,667
9...............................               4           9,293          37,170          21,633          29,342
10..............................               5           9,293          46,463          25,273          35,610
----------------------------------------------------------------------------------------------------------------
    Total.......................  ..............  ..............         213,728         143,951         179,087
----------------------------------------------------------------------------------------------------------------
Annualized......................  ..............  ..............  ..............          20,495          20,995
----------------------------------------------------------------------------------------------------------------

    The cost for risk assessments for new Class III railroad operations
with fewer than two crewmembers would be $213,728 over the 10-year
analysis. The discounted value would be $143,951 (PV, 7 percent).
Risk Assessment Revisions
    If the risk assessment is incomplete or does not address all
hazards presented by fewer than two-person operations, FRA may require
a railroad to revise

their risk assessment. This would happen after FRA has reviewed the
initial risk assessment as part of the special approval process.
    FRA estimates that one small railroad's risk assessment would
require a revision each year. Each revision would require approximately
24 additional hours of labor by the railroad. Once revisions are made,
the special approval would once again be reviewed by FRA for a decision
to be made.
    The estimated cost for each risk assessment revision is shown in
the table below.

                                       Cost for Risk Assessment Revisions
----------------------------------------------------------------------------------------------------------------
                                                                                Total labor
                                                                                cost per
                        Type of employee                             Hours per      Hourly wage    revised risk
                                                                     operation       rate  ($)      assessment
                                                                                ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative.................................              24           77.44           1,859
----------------------------------------------------------------------------------------------------------------

    The estimated total 10-year cost for risk assessment revisions for
Class III railroads is $1,859. The discounted value is $1,011 (PV, 7
percent). The following table shows the costs for Class III railroads
to revise risk assessments.

                                        Annual Railroad Costs for Risk Assessment Revisions, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Number  of    Percentage  of
                                               risk            risk          Number of
                  Year                      assessments     assessments    revised risk      Cost per       Total costs    Present value   Present value
                                           submitted per     requiring      assessments    revision  ($)        ($)           7%  ($)         3%  ($)
                                               year       revisions  (%)
                                                       a               b       c = a * b               d       e = c * d  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................               1              30               0           1,859               0               0               0
2.......................................               1              30               0           1,859               0               0               0
3.......................................               1              25               0           1,859               0               0               0
4.......................................               1              25               0           1,859               0               0               0
5.......................................               2              20               0           1,859               0               0               0
6.......................................               2              20               0           1,859               0               0               0
7.......................................               3              15               0           1,859               0               0               0
8.......................................               3              15               0           1,859               0               0               0
9.......................................               4              10               0           1,859               0               0               0
10......................................               5              10               1           1,859           1,859           1,011           1,424
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............  ..............  ..............  ..............           1,859           1,011           1,424
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................  ..............  ..............  ..............  ..............  ..............             144             167
--------------------------------------------------------------------------------------------------------------------------------------------------------

Risk Assessment When Material Modification is Made (Legacy Operations)
    Legacy one-person operations would need to submit a risk assessment
when a material modification is made. FRA estimates that this risk
assessment would require approximately 120 hours of labor. Since only
nine railroads currently operate trains with one-person crews, FRA
estimates that only a small number would be required to perform a risk
assessment over the 10-year analysis. Six of the nine railroads are
Class III railroads. FRA estimates that one Class III railroad every
other year would have a material modification to its operation and
require a risk assessment.
    The estimated total 10-year cost for risk assessments for Class III
railroads would be $46,463. The discounted value would be $33,737 (PV,
7 percent). The following table shows the annual costs for legacy
railroads that are performing a risk assessment.

                                         Annual Railroad Costs for Risk Assessments, Class III Legacy Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Number  of
                                                             railroads
                          Year                              submitting    Hours per risk    Hourly wage     Total costs    Present value   Present value
                                                               risk          assessment      rate  ($)          ($)           7%  ($)         3%  ($)
                                                            assessment
                                                                       a               b               c   d = a * b * c  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................               0             120           77.44               0               0               0
2.......................................................               1             120           77.44           9,293           8,685           9,022
3.......................................................               0             120           77.44               0               0               0
4.......................................................               1             120           77.44           9,293           7,585           8,504
5.......................................................               0             120           77.44               0               0               0

6.......................................................               1             120           77.44           9,293           6,625           8,016
7.......................................................               0             120           77.44               0               0               0
8.......................................................               1             120           77.44           9,293           5,787           7,556
9.......................................................               0             120           77.44               0               0               0
10......................................................               1             120           77.44           9,293           5,055           7,122
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............          46,463          33,737          40,219
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................................  ..............  ..............  ..............  ..............           4,803           4,715
--------------------------------------------------------------------------------------------------------------------------------------------------------

Updating Risk Assessment When Material Modification is Made (New
Operations)
    As part of the proposed rule, railroads must update and resubmit
their risk assessment 60 days before a ``material modification'' is
made. A railroad that intends to materially modify an operation with
fewer than two crewmembers would be required to submit a description of
how it intends to modify the operation and an updated risk assessment
accounting for the identified proposed modifications.
    FRA estimates that approximately 15 percent of railroads would need
to resubmit their risk assessment in any particular year. For these
railroads, the burden for updating the risk assessment would be
approximately 40 hours.
    FRA calculated that the cost for updated risk assessments for new
Class III operations with fewer than two crewmembers would be $40,268
over the 10-year analysis. The discounted value would be $25,549 (PV, 7
percent). The following table shows the annual costs for railroads that
are resubmitting the risk assessment.

                                             10-Year Costs for Updated Risk Assessments, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                  Year                       Number of     updated risk   Hours per risk    Hourly wage     Total costs    Present value   Present value
                                            operations      assessments      assessment      rate  ($)          ($)           7%  ($)         3%  ($)
                                                       a    b = a * 0.15               c               d   e = b * c * d  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................               1               0              40           77.44               0               0               0
2.......................................               2               0              40           77.44               0               0               0
3.......................................               3               0              40           77.44               0               0               0
4.......................................               4               1              40           77.44           3,098           2,528           2,835
5.......................................               6               1              40           77.44           3,098           2,363           2,752
6.......................................               8               1              40           77.44           3,098           2,208           2,672
7.......................................              11               2              40           77.44           6,195           4,128           5,188
8.......................................              14               2              40           77.44           6,195           3,858           5,037
9.......................................              18               3              40           77.44           9,293           5,408           7,336
10......................................              23               3              40           77.44           9,293           5,055           7,122
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............  ..............  ..............  ..............          40,268          25,549          32,942
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................  ..............  ..............  ..............  ..............  ..............           3,638           3,862
--------------------------------------------------------------------------------------------------------------------------------------------------------

Annual Railroad Responsibilities After Receipt of Special Approval
    Each railroad that receives special approval for an operation with
fewer than two crewmembers would be required to conduct an annual
review and analysis, and report to FRA its findings and conclusions no
later than March 31 of the following year.
    As part of the annual railroad responsibilities in Sec.  218.139,
railroads must confirm that the risk assessment, including all
calculations and assumptions, remains unchanged. This section also
requires railroads to submit information about their specially approved
operations collected over the course of the previous year.
    The annual burden would be eight hours per train operation. The
total estimated cost for annual railroad responsibilities for Class III
railroads would be $69,694 over the 10-year analysis. The discounted
value would be $46,979 (PV, 7 percent). The table below shows the
annual costs for annual railroad responsibilities on Class III
railroads.

                                         10-Year Costs for Annual Railroad Responsibilities, Class III Railroads
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                          Year                              reports per      Hours per      Hourly wage     Total costs    Present value   Present value
                                                               year          operation       rate  ($)          ($)           7%  ($)         3%  ($)
                                                                       a               b               c   d = a * b * c  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................               0               8           77.44               0               0               0
2.......................................................               7               8           77.44           4,027           3,763           3,909
3.......................................................               7               8           77.44           4,491           3,923           4,234
4.......................................................               8               8           77.44           5,111           4,172           4,677
5.......................................................              10               8           77.44           5,885           4,490           5,229
6.......................................................              11               8           77.44           6,815           4,859           5,878
7.......................................................              13               8           77.44           8,054           5,366           6,745
8.......................................................              16               8           77.44           9,602           5,980           7,808
9.......................................................              19               8           77.44          11,616           6,760           9,169
10......................................................              23               8           77.44          14,094           7,666          10,802
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............          69,694          46,979          58,451
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized..............................................  ..............  ..............  ..............  ..............           6,689           6,852
--------------------------------------------------------------------------------------------------------------------------------------------------------

Summary of Class III Railroad Costs
    The following table shows the annualized cost for Class III
railroads that are conducting train operations with fewer than two
crewmembers over the 10-year analysis period. The total annualized cost
for all class III railroads would be $51,907 (PV, 7 percent).

  Total 10-Year Costs, Class III Railroads (Legacy and New Operations)
------------------------------------------------------------------------
                                                            Annualized
                      Cost category                           cost, 7
                                                           percent  ($)
------------------------------------------------------------------------
Special Approval........................................          16,138
Risk Assessment.........................................          20,495
Risk Assessment Revisions...............................             144
Risk Assessment--Material Modifications.................           8,441
Railroad Oversight Responsibilities.....................           6,689
                                                         ---------------
    Total Cost for All Class III Railroads..............          51,907
------------------------------------------------------------------------

    The industry trade organization representing small railroads,
ASLRRA, reports the average freight revenue per Class III railroad is
$4.75 million.\234\ The following table summarized the average annual
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \234\ American Short Line and Regional Railroad Association,
Short Line and Regional Railroad Facts and Figures, p. 10 (2017
pamphlet) (hereinafter Facts and Figures).

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
                                                               Average  annual
   Total cost for all Class III railroads,       Number of      cost per Class   Average Class   Average  annual
          annualized 7 percent  ($)              Class III       III railroad     III revenue    cost as percent
                                                 railroads           ($)              ($)        of revenue  (%)
----------------------------------------------------------------------------------------------------------------
a                                                          b        c = a / b                d        e = c / d
----------------------------------------------------------------------------------------------------------------
51,907......................................              36            1,442        4,750,000             0.03
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad that is operating
with fewer than two-person crews would be $1,442. This represents a
small percentage (0.03%) of the average annual revenue for a Class III
railroad.
    The estimates above show that the burden on Class III railroads
would not be a significant economic burden. FRA requests comments on
this estimate and will consider all comments when making a
determination for the final rule.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates,
overlaps with, or conflicts with this NPRM. This proposed rule is
complementary to, rather than duplicative of, other recent regulatory
initiatives FRA has issued or is in the process of developing. These
initiatives include: the implementation of positive train control (PTC)
systems by required railroads; \235\ railroad safety risk reduction
programs; \236\ and the development of fatigue risk management
programs.\237\ Each of these initiatives will enhance safety, and may
either aid

a railroad in transitioning to an operation with fewer than two
crewmembers or assist a railroad in identifying hazards and mitigating
risks associated with those hazards once such an operation is
established. None of these initiatives, however, focus exclusively on
the specific hazards and risks associated with reducing the number of
train crewmembers to fewer than two crewmembers, nor do they
necessarily require railroads to identify, evaluate, or mitigate any
such hazards and risks.
---------------------------------------------------------------------------

    \235\ See generally 49 CFR part 236, subpart I; and press
release in which FRA announces full implementation of positive train
control (Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \236\ 49 CFR parts 270 and 271.