Train Crew Size Safety Requirements

Federal RegisterJul 28, 2022

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

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

RIN 2130-AC88

Train Crew Size Safety Requirements

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

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

DATES:

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

ADDRESSES:

Comments:

Comments related to Docket No. FRA-2021-0032 may be submitted by going to

https://www.regulations.gov

and following the online instructions for submitting comments.

Instructions:

All submissions must include the agency name, docket number (FRA-2021-0032), and Regulatory Identification Number (RIN) for this rulemaking (2130-AC88). All comments received will be posted without change to

https://www.regulations.gov;

this includes any personal information. Please see the Privacy Act heading in the

SUPPLEMENTARY INFORMATION

section of this document for Privacy Act information related to any submitted comments or materials.

Docket:

For access to the docket to read background documents or comments received, go to

https://www.regulations.gov

and follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT:

Kevin Lewis, Operating Crew Certification Specialist, U.S. Department of Transportation, Federal Railroad Administration, telephone: 918-557-0651, email:

kevin.lewis@dot.gov;

or Alan H. Nagler, Senior Attorney, U.S. Department of Transportation, Federal Railroad Administration, telephone: 202-493-6038, email:

alan.nagler@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

II. Legal Authority

III. Background

A. A Brief History of Train Crew Staffing

1. General History

2. Indiana Rail Road's One-Person Train Crew Operation

B. Summary of Prior Crew Staffing Rulemaking and Court Order

C. Preemption

D. Reconsideration of the Safety Issues

1. Revisiting Research on the Cognitive and Collaborative Demands of Crewmembers

2. Current Regulatory Weaknesses

E. Transportation of Certain Hazardous Materials

F. Current Operations

1. Freight Train Operations

2. Passenger Train Service

3. Tourist Train Operations

4. Train Operations in Other Countries

G. Ensuring Safety in the Future

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

1. Positive Train Control (PTC) Systems

2. Railroad Safety Risk Reduction Programs

3. Fatigue Risk Management Programs

I. Risk Assessments

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

1. Legacy Train Operations

2. Proposed New Fewer Than Two Person Train Operations

3. Automated Operations

IV. Section-by-Section Analysis

V. Regulatory Impact and Notices

A. Executive Order 12866

B. Regulatory Flexibility Act and Executive Order 13272

C. Paperwork Reduction Act

D. Federalism Implications

E. International Trade Impact Assessment

F. Environmental Impact

G. Executive Order 12898 (Environmental Justice)

H. Unfunded Mandates Reform Act of 1995

I. Energy Impact

J. Privacy Act Statement

I. Executive Summary

Purpose of the Regulatory Action

For the past five years, a period in which railroad operations have produced consistent safety statistics, railroads (including freight, passenger, and tourist operations) have typically utilized crews of at least two persons. During this time, railroads have implemented positive train control (PTC) and other technologies and are expected to implement upgrades to these technologies and otherwise look to introduce operational efficiencies. FRA intends this rule to ensure that trains are adequately staffed for their intended operation and railroads have appropriate safeguards in place for safe train operations, whenever using a crew of fewer than two persons. In the event a railroad desires to transition a train operation to an operation with fewer than two crewmembers, as proposed, this rule would require the railroad to consider and address the safety risks of doing so by conducting a risk assessment of the proposed operation. Research identified the cognitive and collaborative demands placed on crewmembers and indicates that an increase in physical tasks and cognitive demands for a one-person crewmember could potentially lead to task overload or a loss of situational awareness that could cause an accident. The proposed risk assessment requirement would follow accepted hazard analysis processes and provide for the mitigation of identified hazards to acceptable levels.

Without this proposed rule, FRA has a limited ability to address the totality of potential safety issues related to the reduction of crew staffing levels. Currently, FRA can exercise its authority in discrete instances through the agency's emergency order authority (potentially after a serious accident) or in review of a passenger operation's emergency preparedness plan under 49 CFR part 239. Also, none of the other recent regulatory initiatives FRA has issued or is in the process of developing focus on the specific hazards and risks associated with reducing the number of train crewmembers to fewer than two crewmembers, nor do they require railroads to mitigate any such hazards and risks.

This proposed rule is necessary for FRA to proactively protect railroad employees, the public, and the environment. By requiring railroads to petition FRA for approval of existing (legacy) or new one-person crewmember operations, this proposed rule would allow FRA to closely examine the safety of legacy operations in accordance with established, minimum safety requirements, and prohibit the initiation of one-person crewmember operations that would not be consistent with railroad safety. FRA proposes to require

this petition to include consideration of the impact that operating with fewer than two crewmembers may have on mitigating the consequences of rail accidents and minimizing blocked at-grade highway-rail crossings.

Further, if a railroad petitions FRA to continue or initiate a train operation with fewer than two crewmembers, this rulemaking proposes a public comment period so that stakeholders, such as the railroad's employees, or businesses and communities adjacent to or served by the railroad, can provide relevant safety information or data.

This proposed rule is also necessary to prevent the multitude of State laws regulating crew size from creating a patchwork of rules governing train operations across the country. Despite the fact that provisions of the Federal railroad safety statutes mandate that laws, regulations, and orders “related to railroad safety” be nationally uniform, FRA is aware that some States have laws in place regulating crew size in a variety of ways. For example, California requires a minimum of two crew members for certain trains,

Washington requires a minimum of two crew members for certain trains and switching assignments,

Nevada requires a minimum of two crew members for certain trains or locomotives of certain railroads,

while Arizona has a “full crew” requirement for certain trains (requiring not only an engineer and conductor but crewmembers such as firemen, brakemen, and flagmen on certain trains),

and Massachusetts imposes other restrictions (providing the Department of Public Utilities can order changes to the crew size of any train).

Without this rule, railroads could be subjected to a different crew staffing law in every State in which they operate. Such a patchwork of State laws would likely result in significant cost and operational inefficiencies, and even potential safety concerns from a lack of a uniform standard. In this regard, there would be no assurance that State laws would be based on an analysis or determination concerning such impacts on safety.

Cal. Lab. Code sec. 6903, which requires at least a two-person crew for operation of a train or light engine used in connection with the movement of freight, not including hostler service or utility employees.

Wash. Rev. Code Ann. sec. 81.40.015, which requires at least two crewmembers for all freight and passenger trains and switching assignments, not including Class III railroad carriers operating on their roads while at a speed of twenty-five miles per hour or less.

N.R.S. sec. 705.415, which requires a train or locomotive crew of not less than two persons on any Class I freight railroad, Class I railroad or Class II railroad for transporting freight with the exception of a train or locomotive engaged in helper or hostling services.

Ariz. Rev. Stat. Ann. sec. 40-881, which requires a passenger, mail or express train composed of less than six cars train to carry a crew consisting of not less than one engineer, one fireman, one conductor and one flagman, with an exception for gasoline motor cars; and, for those same types of trains that are longer, the crew must add a brakeman, but may drop the flagman when such train is operated outside yard limits on branch lines including the use of main lines where necessary to reach initial or final terminals of branch lines.

Mass. Gen. Laws Ann. Ch. 160, sec. 185, which provides discretion to its Department of Public Utilities to order changes as it deems necessary whenever the department is of opinion, after a hearing, that the number of men forming a train crew of any train is not sufficient to operate said train for the safety of the public and the employees of the railroad.

Summary of Major Provisions

FRA is proposing regulations to ensure that trains are appropriately staffed for their intended operation and railroads have sufficient safeguards in place for safe train operations, whenever using a crew of fewer than two persons. With certain exceptions, FRA proposes to require that railroads staff every train operation with a minimum of two crewmembers (including a locomotive engineer and an additional crewmember). The proposed rule prescribes minimum requirements for the location of crewmembers on a moving train, requirements to ensure any crewmember not operating the train and outside of the operating cab of the controlling locomotive can directly communicate with the locomotive engineer, and special approval procedures for railroads to petition FRA to continue certain legacy operations with one-person train crews and to initiate new train operations with fewer than two crewmembers.

The NPRM is based on the premise that the locomotive engineer always located in the cab of the controlling locomotive when the train is moving unless the controlling locomotive is being operated remotely in accordance with 49 CFR 229.15. In most instances, there will only be one additional crewmember—usually a conductor. As proposed, however, the NPRM would not prohibit a railroad from having more than two crewmembers or from having additional or more stringent requirements governing the proper location of any crewmembers other than the locomotive engineer. Railroads also have the flexibility to adopt their own rules or practices based on Federal requirements and instruct their employees to comply with such rules or practices.

Although the NPRM includes several proposed exceptions to the minimum two crewmember requirement, the rule would prohibit certain train operations from operating with fewer than two crewmembers. Specifically, proposed § 218.123(c) prohibits the operation, without at least a two-person crew, of trains containing certain quantities and types of hazardous materials that have been determined to pose the highest risk in transportation from both a safety and security perspective (

e.g.,

trains transporting 20 or more car loads or intermodal portable tank loads of certain hazardous materials or one or more car loads of hazardous materials designated as rail-security sensitive materials (RSSM) as defined by the Department of Homeland Security). FRA proposes a total of ten exceptions to the minimum two crewmember requirement. In § 218.125, FRA proposes two general exceptions to the minimum two crewmember requirement. The first proposed exception includes trains operating in helper service (

i.e.,

a train that is assisting another train that has incurred a mechanical failure or lacks the power to traverse difficult terrain) because, as explained in greater detail in the section-by-section analysis, railroads commonly use one-person crews safely in helper service and helper service operations are generally not complex. The second proposed exception includes trains consisting of a locomotive or a consist of locomotives (excluding diesel or electric multiple units (DMUs or EMUs)) not attached to any piece of equipment or attached only to a caboose because, as explained in greater detail in the section-by-section analysis, these types of movements are typically made so that the locomotives can be better utilized and such movements pose less risk to railroad employees and the general public.

As applied to passenger and tourist train operations, the NPRM (§ 218.127) proposes four exceptions to the minimum two crewmember requirement. First, FRA proposes to except from the minimum two crewmember requirement tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation. Second, FRA proposes to except from the minimum two crewmember requirement passenger or tourist operations in which cars, empty of passengers, are being moved and passengers do not board the train's cars until the crew conducts a safety briefing on the safe operation and use of the cars' exterior side doors, consistent with the current door safety briefing

requirement. Of course, there may be reasons to employ a two-person train crew if switches need to be thrown or other safety-related tasks suggest a second crewmember is warranted, notwithstanding this exception for movement of empty cars. The third exception applies to certain passenger or tourist operations where the locomotive engineer has direct access to the passenger seating compartment. Finally, FRA proposes to except certain rapid transit operations from the minimum two crewmember requirement.

As applied to freight operations, FRA is also proposing in § 218.129 four exceptions to the minimum two crewmember requirement. FRA is proposing exceptions for certain unit freight train loading and unloading operations, certain small railroad operations, and work train and remote-control operations that meet certain requirements. More detail on each of these proposed exceptions is found in the relevant section-by-section analysis below.

Proposed § 218.131 would allow legacy, one-person train operations to continue after the effective date of a final train crew size safety requirements rule until FRA can review the safety of the operation. Moreover, this proposed rule provides a mechanism for the operation to continue after FRA conducts its review.

FRA proposes to define a legacy operation as one that a railroad established at least two years before the effective date of a final rule establishing train crew size safety requirements. The proposed rule would prohibit a railroad from continuing a legacy, one-person train operation beyond 90 days after the effective date of a final rule if the railroad fails to file a special approval petition containing a description of the operation. As proposed, a railroad petition to continue a legacy, one-person operation must include evidence that the railroad has implemented certain rules and practices designed to ensure the safety of the one-person operation.

Proposed § 218.133 would allow a railroad to petition FRA to initiate a new train operation staffed with fewer than two crewmembers that is not otherwise prohibited or permitted by the other requirements of subpart G. In addition to much of the information FRA proposes to require to support a petition to continue a legacy operation, a special approval petition to initiate a new operation with fewer than two persons must contain a risk assessment of the proposed operation that follows accepted hazard analysis processes and provides for mitigation of identified hazards to acceptable levels. In the context of this rulemaking, a risk assessment is the process of determining, either quantitatively or qualitatively, the level of risk associated with a proposed train operation staffed with fewer than two crewmembers, including mitigating the risks to an acceptable level. As discussed in more detail in section III.I below, when the likelihood of an event whose probability of occurrence is so small, consequence(s) so slight, or benefit(s) so great, taking the risk or subjecting others to the risk is deemed acceptable. Generally, an acceptable level of risk is achieved when it is determined that further risk reduction measures will not result in an additional, significant reduction of risk in excess of the cost of such measures. For example, there is a risk that a locomotive engineer will operate a train past a red signal. A resulting hazard is that the train will collide with another train on the track past the signal. The probability that this unsafe event will occur is based on an analysis of the causal factors that could lead the engineer to operate the train past the red signal. The likelihood of an accident resulting is analyzed based on the probability that another train is occupying the track past the signal. Mitigation measures (

e.g.,

a train control system or certain operating rules) may not be able to completely eliminate the risk of the hazard, but the risk of the hazard (

i.e.,

a collision) occurring may be reduced to a level where additional mitigations would not be effective and the likelihood of the unsafe event occurring would be so small, further mitigations would not be warranted.

The minimum process and content requirements for a railroad's risk assessment are proposed in § 218.135. Section 218.135 would also allow a railroad to use alternative methodologies or procedures, or both, to conduct a risk assessment if the Associate Administrator finds they will provide an accurate assessment of the risk associated with the proposed operation.

In proposed § 218.137 a railroad would be able to petition FRA for special approval for both one-person, legacy train operations and the initiation of a new operation with fewer than two train crewmembers. FRA estimates the time burden for a railroad to prepare a petition will be 40 hours per petition for legacy train operations and 48 hours per petition for new operations. The proposed special approval procedure is expected to take 120 days once a railroad submits a petition for special approval. For example, the proposed special approval procedure would require that FRA publish a notice in the

Federal Register

soliciting public comment on each petition. All documents would be filed in a public docket and internet accessible. The proposed special approval procedure envisions that FRA may reopen consideration of the petition for cause stated. FRA proposes that when it decides a petition, or reopens consideration of a petition, it will send written notice of the decision to the petitioner and the decision will be published in the docket. Further, FRA proposes that a railroad making a material modification to an operation previously approved by FRA must file a description of the modification, and either a new or updated risk assessment, at least 60 days before proposing to implement any such modification. The proposed requirement to seek special approval is not expected to delay action on any operation because each railroad would need an equivalent timeframe to plan for the process of reducing crew size in advance of implementation.

Finally, FRA proposes an annual requirement for railroads that receive special approval to continue a legacy operation or initiate a new operation with fewer than two train crewmembers to conduct a formal review and analysis of those operations. FRA proposes an annual requirement to ensure that each railroad is regularly reviewing the safety of its operation and the accuracy of its risk assessment, and to provide FRA with enough data to identify any safety trends in the approved operations. Further, an annual requirement aligns with the general administration of FRA's safety program as well as FRA's statutory requirements.

See e.g.,

49 U.S.C. 103(j) and (k) (requiring the FRA Administrator to develop long-range national rail plans, and performance goals and reports for those plans that are typically updated annually).

Costs and Benefits

FRA analyzed the economic impact of this proposed rule. FRA estimated the costs associated with special approvals, risk assessments, annual railroad responsibilities after receipt of special approval, and Government administration.

The primary benefit of this rule is to ensure any railroad, seeking to operate a train with fewer than two crewmembers identifies, evaluates, and addresses, in a comprehensive and standardized manner, safety concerns that may arise from such operation. A second crewmember performs important safety functions that could be lost when reducing crew size below two.

FRA proposes that railroads seeking to operate trains with fewer than two crewmembers will be required to submit a petition to FRA to approve such an operation. The proposed petition process would require the submission of information demonstrating that the operation will be operated consistent with railroad safety. Additionally, the proposed safety requirements in this NPRM would allow the rail industry to maintain its strong safety record without proposing any restrictions that would directly impact its competitiveness compared with other modes of transportation.

This rule thus further ensures railroads operate in a safe manner by requiring them to properly assess and mitigate risks associated with fewer crewmembers, before initiation of such an operation, which they currently are not required to do. FRA seeks comment from all stakeholders, including any States with laws on train crew size.

FRA estimates the 10-year costs of the proposed rule to be $2.0 million, discounted at 7 percent. The annualized costs would be $0.3 million discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period. FRA qualitatively discusses the benefits but does not have sufficient data to monetize those benefits.

Numbers in this table and subsequent tables may not sum due to rounding. As discussed further in section VI.I. of the Regulatory Impact Analysis (RIA), quantified costs do not include costs that could be incurred in order to mitigate risks associated with a reduction in the number of crewmembers.

Total 10-Year Discounted Costs

[2020 Dollars]

see also Norfolk & Western Ry. Co.

Public Utilities Comm'n of Ohio,

926 F.2d 567, 571 (6th Cir. 1991) and

National Ass'n of Regulatory Util. Comm'rs

Coleman,

542 F.2d 11, 14-15 (3d Cir. 1976) (both holding that the local hazard exception cannot be applied to uphold the application of a statewide rule).

H.R. Rep. No. 91-1194 (1970),

reprinted in

1970 U.S.C.C.A.N. 4104, 4117.

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

D. Reconsideration of the Safety Issues

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

See Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers

FRA,

988 F.3d 1170, 1182 (9th Cir. 2021) (“Critically, this lack of data does not support the promulgation of a one-person train crew rule and the preemption of state safety laws.”).

FRA's 2019 Withdrawal also downplayed other safety concerns, such as the views expressed in approximately 1,545 comments of the nearly 1,600 received that supported the 2016 NPRM and the lessons learned from the Lac-Mégantic and Casselton accidents. As discussed above, the 2019 Withdrawal focused on the causes of the Lac-Mégantic and Casselton accidents and found the connections between crew staffing and railroad safety “tangential at best” and that “the same type of positive post-accident mitigating actions” by the multi-person crews achievable with “a well-planned, post-accident protocol that quickly brings railroad employees to the scene of an accident.”

However, there is no Federal requirement for such a well-planned, post-accident protocol in such instances and thus there are no assurances that a railroad with a one-person train operation will initiate a safety protocol that could substitute for how multiple crewmembers, working as a team, could help prevent harm (Lac-Mégantic) and support each other during life-threatening conditions while helping to mitigate post-accident harm (Casselton).

84 FR 24738.

Another issue FRA is reconsidering is the 2019 Withdrawal's reference to DOT's focus on removing unnecessary barriers to automation by “issuing voluntary guidance, rather than regulations that could stifle innovation.”

In revisiting the conclusion in the 2019 Withdrawal that an FRA “train crew staffing rule would unnecessarily impede the future of rail innovation and automation,” FRA finds that a train crew staffing rule would not necessarily halt rail innovation or automation. Notwithstanding the statements made in the 2019 Withdrawal, as detailed below, FRA has reexamined and reevaluated the safety issues associated with train operations involving fewer than two person crews, and based on this reevaluation, FRA has concluded that a rule addressing crew size could effectively serve as a tool to ensure new technologies involving automation and other rail innovations are thoroughly reviewed and shown to be consistent with railroad safety before they are implemented. DOT's current policy priorities include, but are not limited to, ensuring that “[i]nnovations should reduce deaths and serious injuries on our Nation's transportation network, while committing to the highest standards of safety across technologies.”

Under these policy priorities, FRA finds that a train crew size safety rule, as proposed in this NPRM, could better ensure that railroads implementing innovative technologies and automation: (1) achieve increased rail safety, or (2) at a minimum, do not introduce additional risk into railroad operations. In other words, safety continues to be DOT's top priority, and, rather than issue voluntary guidance, this NPRM would require regulated entities to analyze and demonstrate how innovations are consistent with safety, and receive FRA's approval, before implementing the technologies.

84 FR 24740.

U.S. DOT Innovation Principles.

https://www.transportation.gov/priorities/innovation/us-dot-innovation-principles.

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

and this

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

U.S. Government Accountability Office (GAO), Report to Congressional Requesters “Rail Safety: Freight Trains Are Getting Longer, and Additional

Information is Needed to Assess Their Impact: at 11 (May 2019)(GAO-19-443).

https://www.gao.gov/assets/gao-19-443.pdf.

(corroborating FRA's finding that freight train-length has increased in recent years, even though there is limited data available).

The sections below discuss safety issues and impacts that may arise from train operations with fewer than two train crewmembers. FRA requests comments and data on the identified issues and other safety concerns that may stem from train operations with fewer than two crewmembers.

1. Revisiting Research on the Cognitive and Collaborative Demands of Crewmembers

The 2016 NPRM described, and the docket for this rulemaking contains, five FRA-sponsored research reports, and one Transportation Research Board conference report, that contain presentations from multiple research reports, identifying many safety considerations with reducing train crew staffing to fewer than two persons.

In the 2019 Withdrawal, FRA stated that “[w]hile these reports identify safety issues that railroads should consider when evaluating any reduction in the number of train crewmembers or a shift in responsibilities among those crewmembers, the reports do not indicate that one-person crew operations are less safe and therefore do not form a sufficient basis for a final rule on crew staffing.”

Also, as previously discussed, the Ninth Circuit vacated the 2019 Withdrawal, in part because it found that FRA's conclusions “fail[ed] to address the multiple safety concerns raised by commenters and the research.”

In consideration of FRA's current policy priorities, FRA finds that the 2019 Withdrawal overweighted a lack of safety data and de-emphasized safety concerns raised by the research. Thus, FRA revisits the research in this background to explain how the safety concerns the research raises helped in the development of the proposed requirements for this rulemaking.

81 FR 13924-30.

84 FR 24740.

Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & Transp. Workers

FRA,

988 F.3d at 1183 (9th Cir. 2021).

The research identified a multitude of cognitive and collaborative demands placed on passenger train conductors,

freight train conductors,

and locomotive engineers.

For example, the research identified five categories of cognitive job duties for freight conductors that included managing the train consist and train makeup; coordinating with the engineer for safe and efficient en route operations; communicating with non-crewmembers, such as dispatchers, customers, and roadway workers; diagnosing and responding to train problems and other exceptional situations; and, managing the train crew's paperwork.

This research on the cognitive job duties for freight conductors concluded that although the freight conductor has a distinct set of formal responsibilities, the conductor and locomotive engineer operate as an integrated team, contributing knowledge and backing each other up as necessary.

If a conductor is handling all radio communication duties and taking care of paperwork when the train is in motion, the safety benefit is that the engineer can concentrate on operating the train.

Other research identified why railroad workers are at risk of fatigue and raised the issue of whether a railroad implementing a one-person train crew operation adopted strategies for reducing railroad worker fatigue.

Such strategies include improving the predictability of schedules, considering the time of day permitted for one-person train crews to operate, educating workers about fatigue and sleep disorders, and implementing redundancy backstops in case the crewmember falls asleep while performing safety-sensitive tasks.

Rail Industry Job Analysis: Passenger Conductor,

Final Report, dated February 2013, DOT/FRA/ORD-13/07. This research report was prepared by the John A. Volpe National Transportation Systems Center.

https://www.fra.dot.gov/eLib/details/L04321.

Cognitive and Collaborative Demands of Freight Conductor Activities: Results and Implications of a Cognitive Task Analysis—Human Factors in Railroad Operations,

Final Report, dated July 2012, DOT/FRA/ORD-12/13. This research report was prepared by the John A. Volpe National Transportation Systems Center.

https://www.fra.dot.gov/eLib/details/L04331.

Technology Implications of a Cognitive Task Analysis for Locomotive Engineers—Human Factors in Railroad Operations,

Final Report, dated January 2009, DOT/FRA/ORD-09/03. This research report was prepared by the John A. Volpe National Transportation Systems Center.

https://railroads.dot.gov/elibrary/technology-implications-cognitive-task-analysis-locomotive-engineers.

Cognitive and Collaborative Demands of Freight Conductor Activities: Results and Implications of a Cognitive Task Analysis—Human Factors in Railroad Operations

at 2.

Id.

at 42.

Id.

at 2.

Fatigue Status in the U.S. Railroad Industry,

Final Report, dated February 2013, DOT/FRA/ORD-13/06.

https://railroads.dot.gov/elibrary/fatigue-status-us-railroad-industry.

This research report was prepared by QinetiQ North America and an Engineering Psychologist within FRA's Office of Research and Development.

Research explains that there are critical components to building effective teams.

Individuals that form expert teams engage in a regular cycle of pre-brief, performance, and debrief. This performance cycle engages the individuals that form expert teams to identify high and low priorities, revise goals and plans, identify lessons learned, and evaluate whether the team is effective both in performing its tasks and identifying the needs of team members. The research regarding teamwork in U.S. railroad operations

concludes that the main advantage of developing individuals who engage in that regular briefing cycle is that they can work with other properly trained individuals to form an expert team that can be expected to have higher levels of performance than non-expert teams. For example, properly trained individuals that are assigned a duty tour together on any given day will form an expert team that makes better decisions and fewer errors, which in turn enables the expert team to have a higher probability of mission success.

Teamwork in U.S. Railroad Operations,

A Conference, April 23-24, 2009, Irvine, California, Transportation Research Board, Number E-C159, dated December 2011. The many authors of the research and reports are listed in the publication.

https://onlinepubs.trb.org/onlinepubs/circulars/ec159.pdf.

Id.

at 17.

Id.

The research raised additional safety concerns regarding one-person train crews, such as the loss of low workload periods during which teams have time to plan ahead,

the loss of a second crewmember to notice and correct errors,

and the difficulty some crewmembers may have working alone.

Similarly, the research highlighted that having a two-person crew broadens the number of experiences from which the crew can draw from to effectively problem-solve, plan ahead, or identify and avoid potential hazards.

Id.

at 30.

Id.

at 19.

Id.

at 3-4, 13-14.

Id.

at 5, 34.

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

person until the issue can be studied.

Traditionally, locomotive engineers are highly engaged with the train operation, noticing visual cues (

i.e.,

landmarks and mileposts), monitoring radio communications of other trains, and relaying information by radio to other trains about potential hazards. Some locomotive engineers even indicated that they get a variety of sensory-based cues that help them perceive their location, such as vibrations associated with a portion of track or a smell that reminds them they are near a farm.

The research suggests that PTC technology may require locomotive engineers to focus more on in-cab displays and thereby reduce their ability to monitor activity outside the cab.

This raises the question of whether engineers will lose some of the situational awareness that helps them perceive where the train is based on their prior experiences. Typically, a locomotive engineer will use that situational awareness to help anticipate future events. Furthermore, the research concluded that train crews must avoid too much reliance on new train control technologies because, if the system ever fails, the engineer must be able to operate the train safely or bring the train to a safe stop until the technology is repaired.

Technology Implications of a Cognitive Task Analysis for Locomotive Engineers—Human Factors in Railroad Operations

at 38-40. Please note that FRA's PTC regulation prohibits requiring a locomotive engineer to “perform functions related to the PTC system while the train is moving that have the potential to distract the locomotive engineer from performance of other safety-critical duties,” which would include distracting, non-useful alerts.

See

49 CFR 236.1006(d)(1), formerly § 236.1029(f).

Technology Implications of a Cognitive Task Analysis for Locomotive Engineers—Human Factors in Railroad Operations

at 17.

Id.

at 45.

Using Cognitive Task Analysis to Inform Issues in Human Systems Integration in Railroad Operations—Human Factors in Railroad Operations

at 25, Final Report, dated May 2013, DOT/FRA/ORD-13/31 This research report was prepared by the John A. Volpe National Transportation Systems Center.

https://www.fra.dot.gov/eLib/details/L04589.

2. Current Regulatory Weaknesses

In the 2016 NPRM's background section, FRA explained that many of the Federal rail safety regulations were written with the expectation that each train would have multiple crewmembers.

FRA cited six different railroad safety scenarios in the 2016 NPRM raising safety concerns.

While FRA noted in the 2019 Withdrawal that none of the scenarios cited in the 2016 NPRM require a minimum number of crewmembers to achieve compliance, the implementation of a one-person operation, without any off-setting measures, may render existing rail safety requirements either less effective or ineffective. This may be especially true for prohibited conduct that is not always easy for railroad officers who conduct operational tests and inspections to detect.

For example, a second crewmember's presence or reminder of an electronic device prohibition could act as a deterrent to any prohibited use. A second crewmember can vigilantly monitor the safe movement of the train when prohibited conduct is detected or stop the train to report the inappropriate electronic device usage. If prohibited conduct is a contributing cause to an accident/incident, a second crewmember may provide evidence during an investigation. Although it is possible that inward-facing cameras in the locomotive cab could equally act as a deterrent to prohibited electronic device use and provide valuable information during a post-accident investigation, such cameras are currently not required and have not been installed voluntarily on all locomotives industry-wide. Consistent with the statutory mandate on which it is based,

FRA did not propose an inward-facing camera requirement for freight locomotives in its notice of proposed rulemaking regarding locomotive image and audio recording devices (Recording Devices NPRM).

FRA has not yet issued the Recording Devices final rule. FRA considered proposing an inward-facing camera requirement for freight locomotives in this train crew size safety proposed rule but declined to do so. Although these recording devices could act as a deterrent and provide valuable information during a post-accident investigation, the devices would not be as effective as a second crewmember who could more quickly take action when prohibited conduct is detected and also provide critical evidence during an investigation that a recording device did not capture. Accordingly, without inward-facing cameras in the locomotive cab, FRA would expect a railroad's risk assessment for a one-person train crew operation would identify this hazard and appropriate mitigation actions. Such mitigation might include requiring frequent supervisory monitoring during a tour of duty. As an alternative to the proposed risk assessment requirement, FRA requests comment on whether other specific actions should be mandated (

e.g.,

frequent supervisory monitoring during a tour of duty or similar interactions that would discourage a one-person crewmember from violating the prohibitions on electronic device use).

81 FR 13932-34.

Id.

For example, FRA requires each railroad to maintain a program of operational tests and inspections, and the railroad officers who conduct the tests or inspections to be trained and qualified. 49 CFR 217.9.

See

49 U.S.C. 20168.

84 FR 35712, 35713 (July 24, 2019).

In the 2016 NPRM, FRA also raised various other concerns related to crewmember distraction, whether by prohibited electronic devices, radio transmissions, interfacing with railroad-approved on-board electronic systems, or other crewmembers. For instance, although research suggests properly trained teams should not distract one another, FRA anticipates that some commenters will take the position that a second crewmember is a source of distraction and could add to the number of persons killed or seriously injured when an accident occurs. As in 2016, such instances of crewmember distraction are likely rare, but FRA does not have readily available information for estimating such countervailing impacts of this proposed rule.

In the justification for the final rule restricting railroad operating employees from using cellular telephones and other electronic devices, FRA stated that “it is difficult to identify distraction and its role in a crash” if it goes unreported by the operator of the vehicle.

In FRA's view, the potential for a second crewmember distracting another crewmember is balanced by the greater likelihood that a properly trained second crewmember acts as a deterrent to prohibited conduct and can monitor the other crewmember's attentiveness.

81 FR 13919.

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

FRA also explained in the 2016 NPRM how a one-person train crew has more opportunity to conceal a drug or alcohol violation than the person would if there were two or more crewmembers. For instance, FRA has requirements for most railroads to conduct random testing, reasonable cause testing, and to implement self/co-worker referral programs.

100

However, even if a one-person train crew is subject to random and reasonable cause testing and referral programs under part 219, the person will not be tested before, during, or after every tour of duty. With multiple train crewmembers, another crewmember

might suspect that a person has used, or is using or possessing alcohol or drugs on railroad property.

101

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

100

See

49 CFR part 219.

101

Working with a potentially impaired co-worker is a safety hazard that puts other crewmembers in direct conflict with one another. For that reason, FRA has developed minimum standards for co-worker referral programs that allow the employee suspected of abuse to get treatment and rehabilitation, with the potential to return to railroad safety-sensitive work under certain conditions.

See

49 CFR 219.1001 through 219.1007 (permitting a railroad to implement alternate referral programs with the written concurrence of the recognized representatives of the regulated employees). The referral programs make it more palatable for an employee to turn in a potentially impaired co-worker, knowing that the co-worker will have an opportunity to get professional help without the co-worker necessarily losing his or her job, and not having to work side-by-side with that impaired co-worker.

FRA also finds that safety is diminished when employees no longer need to discuss their work, and the processes or requirements they must follow, at regular intervals.

102

For this reason, FRA's regulations contain job briefing requirements for train crewmembers and other operating employees. For example, FRA requires train crewmembers to hold job briefings when conducting shoving or pushing movements,

103

when operating or verifying the position of a hand-operated switch,

104

when a utility employee commences duties with a train crew,

105

and when, under certain conditions, a railroad operating employee wants to use a railroad-supplied electronic device in the cab of the controlling locomotive.

106

These job briefing requirements typically are required before work is begun, each time a work plan is changed, and upon completion of the work.

102

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

103

49 CFR 218.99(b)(1).

104

49 CFR 218.103(b)(1).

105

49 CFR 218.22(c)(4).

106

49 CFR 220.307(c)(1).

Not only are job briefings relevant to rail safety because the employees must coordinate their work, but the briefings are also relevant to rail safety as a way to share information and experiences. The voluntary sharing of knowledge and experiences is a safety issue raised in research describing the value of intermediate or rolling job briefs that are informally initiated en route before performing particularly challenging tasks.

107

These informal practices are described as going beyond the requirements of formal rules and procedures as including “proactive communications intended to foster common ground, redundancy checks intended to reduce the possibility of error; and proactive actions intended to level workload and facilitate work across the distributed organization.”

108

The research concludes that the act of discussing potential hazards enables crewmembers to be better prepared, especially when less experienced crewmembers might fail to identify and avoid those hazards unbeknownst to them.

109

This finding is a significant factor in the research's overall conclusion that “train crews . . . were shown to exhibit characteristics of high performing teams that have been found across industries [specifically including] mutual performance monitoring and active support of each other's activities (

e.g.,

backup behavior).”

110

For these reasons, a one-person train crew that lacks a job briefing requirement may be less prepared, and thus less safe, than a two-person train crew unless a job briefing requirement with a non-crewmember is added for certain tasks or situations. A railroad that conducts a risk assessment, like the one proposed in this rulemaking, would likely be in the best position to decide when job briefings with non-crewmembers could be a reasonable alternative to job briefings with other crewmembers because such job briefings would capture the benefits of high-performing teams and mitigate risk.

107

Teamwork in Railroad Operations and Implications for New Technology,

Final Report, dated May 2020, DOT/FRA/ORD-20/01. This research report was prepared by the John A. Volpe National Transportation Systems Center.

https://railroads.dot.gov/elibrary/teamwork-railroad-operations-and-implications-new-technology.

108

Id.

at 28.

109

Id.

at 13.

110

Id.

at 28.

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

111

made up of dispatchers, train crews, operational managers, and roadway workers is part

of current, informal cooperative practices that contribute to safe and efficient performance across a railroad.

112

Thus, FRA expects that a railroad's risk assessment would best address the job briefing issue. Alternatively, FRA requests comment on whether FRA should add job briefing requirements to address the safety implications of a train operation with a one-person crew.

111

Id.

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

112

Id.

at 28.

Additionally, other operational tasks are more difficult with a one-person train crew. For instance, FRA requires that an employee copying a mandatory directive received by radio transmission not be operating the controls of moving equipment.

113

Thus, a one-person train crew would have to stop the train to receive a mandatory directive that was transmitted by radio—even in circumstances, such as steep grade, that would make stopping the train logistically difficult. A railroad's risk assessment would be expected to identify the hazard of a steep grade and how mandatory directives will be conveyed safely to mitigate such risk. Although FRA believes a risk assessment provides the best option to identify hazards regarding mandatory directives received by radio transmission and allow each railroad to devise its own mitigation strategies, FRA requests comment on other options, such as the option FRA considered to prohibit the conveyance of a mandatory directive by radio when a one-person crew is operating a train on a steep grade.

113

See

49 CFR 220.61.

Another operational issue that could be addressed in the proposed risk assessment is how a railroad with a one-person train crew plans to handle situations in which the controlling locomotive's radio fails en route. With a two-person crew, one person can operate the train while a second person communicates with the dispatcher from a second locomotive that has a working radio. A one-person crew would not have this workaround.

114

Without this workaround and without a risk assessment addressing this hazard, FRA alternatively considered that the current requirements, allowing the train to continue until the earlier of the next calendar day inspection or reaching the nearest forward repair point, are too lenient.

115

For instance, FRA considered an alternative option of adding to the current regulatory requirements that, when a controlling locomotive has a radio or wireless communication device that fails en route, a one-person train crew is prohibited from continuing beyond a location where a second crewmember can be safely added to the train. Thus, the alternative prohibition FRA considered would be significantly more stringent than the current rule, as FRA would expect the train to be stopped and a second crewmember added at any location where the train can be safely stopped and a crewmember can be safely added, which would likely be at a location much closer than a repair point in most situations. FRA requests comments regarding why this alternative option might be preferable to the risk assessment as proposed, or whether there are alternative options.

114

49 CFR 220.38 (describing the requirements for train operations in the event of a communication equipment failure).

115

Id.

FRA also expects the proposed, railroad-developed risk assessments will address the hazards associated with how often and under what conditions a one-person train crew will be expected to leave the locomotive cab to throw a switch, operate through it, and then leave the locomotive cab again to return the switch to its previous, normal state.

116

In this rulemaking, FRA proposed that, under certain operations specified by exceptions and legacy operations, “a one-person train crewmember must remain in the locomotive cab during normal operations and may leave the locomotive cab only in case of an emergency affecting railroad operations.”

117

FRA considered extending this type of proposed prohibition as an alternative to a risk assessment for other one-person train operations under proposed § 218.133, but chose a risk assessment as the best option because it would allow each railroad to consider the hazards and mitigate the risks knowing the extent of its operation. FRA would appreciate comments on this alternative prohibition option or other options that would address the hazards associated with how often and under what conditions a one-person train crew will be expected to leave the locomotive cab.

116

See

49 CFR 218.103 through 218.107 (requiring each railroad to adopt and comply with operating rule requirements for operating hand-operated switches).

117

See

proposed 49 CFR 218.129(b) and 218.131(b)(12)(i).

Further, the 2016 NPRM described how, in the event of a highway-rail grade crossing activation failure,

i.e.,

when the warning lights do not flash or the gates do not come down to stop motor vehicle traffic, motor vehicle traffic must be warned of an approaching train and a one-person crew could not stop and flag the crossing without a non-crewmember flagger or a uniformed law enforcement officer's assistance.

118

While complying with the current activation failure requirements with fewer than two crewmembers is possible, there are no current Federal requirements that a railroad have an effective plan for quickly protecting the crossing and moving the train so it is not blocking other crossings that have passive warning devices only. Similar to other operational safety hazards mentioned in this background, describing how the current regulations were written for multi-person train crews, FRA expects that the risk assessment proposed in this rulemaking would be the best option because it would require a railroad to maintain procedures that will promptly allow one-person train crews to protect highway-rail grade crossings where there has been an activation failure. Without a risk assessment requirement, FRA considered the alternative of mandating that a railroad with a one-person train operation establish operating rules or practices necessary to safely protect those crossings without undue delay. FRA would appreciate comments on the options considered and any alternative options.

118

81 FR 13934 (citing 49 CFR 234.105).

Blocked highway-rail grade crossings, by trains traveling over or stopping on track crossed by a highway, are another operational safety hazard that FRA would expect a railroad to address in a proposed risk assessment for a one-person train crew operation. For instance, the proposed requirement of a risk assessment would be expected to address operational changes that increase hazards such as more frequently blocked crossings. A one-person train operation might increase blocked crossings when operating longer, slower, or more frequent trains, or by requiring trains to stop more frequently blocking highway-rail grade crossings for longer periods of time, but FRA cannot know whether this is likely to be the case without a risk assessment that describes the operation and its hazards.

119

Blocked crossings can lead to social costs due to increased travel times and inconvenience. In addition, crossings that are blocked for significant periods of time could affect public safety. For example, recipients and providers of emergency medical services could be detrimentally impacted by extended delays caused by trains

blocking highway access to crossings, as could police and fire department personnel responding to other types of community emergencies, a situation that could be exacerbated with an increase in one-person train crew operations.

120

For instance, each year there are news reports that blocked crossings have led to a delay in providing emergency services or getting someone to medical care, and that harm may have resulted as a consequence.

121

Also, when highway users are not given any advance warning of a blocked crossing or any information regarding when the crossing will no longer be blocked, motor vehicle drivers may feel they need to take risks to avoid waiting for the crossing to clear. Similarly, communities are concerned that longer trains may “prolong the duration of a blockage and can block more crossings concurrently, making it harder for vehicles to find an alternative route around the train.”

122

FRA believes the best option to address this operational safety concern is by requiring the proposed risk assessment, which would allow the railroad to identify hazards and mitigate risk. Without a risk assessment option, FRA alternatively considered how to regulate one-person train operations so that each railroad, at a minimum, has a plan to unblock crossings when trains are stopped. FRA would appreciate comments on these options or other alternative options to a risk assessment that would address how FRA could regulate one-person train operations so that the safety issue of trains blocking crossings is not made worse than when trains are operated by two or more crewmembers.

119

GAO-19-443 at 17 (citing GAO-16-274 which reported that “the amount of time that highway-rail grade crossings are blocked depends on a number of factors and is typically a function of the number, speed, and length of trains).

120

GAO-19-443 at 17-22 (describing the various safety impacts blocked crossings may have on communities).

121

For example, a news report describes how, on September 30, 2021, a mother gave CPR to her 3-month old boy for an hour while a train blocked a crossing preventing EMTs from providing help. The EMTs ended up walking between the train cars to get to the boy and, when returning to the ambulance, the train started moving so the EMTs had to wait until the train passed to cross the tracks back to the ambulance. It was reported that, according to the boy's mother, the delay allegedly contributed to the boy's death a couple of days later. Last visited at

https://www.easttexasnews.com/index.php/polk-county-news-2/925-tragedy-on-the-tracks.

In another example, a news report describes how a man in Tennessee died on May 17, 2021, after first responders were delayed reaching him allegedly due to a train that was blocking a crossing. Last visited at

https://www.newschannel5.com/news/bedford-county-man-dies-after-train-blocks-ambulance-route.

In addition, a news report describes how a man in September 2020 died after emergency vehicles coming to his aid were stuck behind a train at the only entrance to the man's street and that numerous calls were made to police for over two hours about the train blocking access. Last visited at

https://www.8newsnow.com/news/oklahoma-family-sues-after-father-dies-while-emergency-vehicles-stuck-behind-train/.

The three news articles will be available in the docket for the rulemaking (FRA-2021-0032).

122

GAO-19-443 at 18.

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

E. Transportation of Certain Hazardous Materials

DOT has long recognized that hazardous materials are essential to the economy of the U.S. and the well-being of its people, but incidents can occur involving releases or security threats.

123

FRA coordinates with DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) to regulate and enforce the safe and secure transportation of hazardous materials by rail.

124

As a result of this shared role, PHMSA and FRA work closely when considering regulatory changes and the agencies take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail. FRA and PHMSA also coordinate with the Department of Homeland Security and its Transportation Security Administration (TSA) on rail transportation security issues, as those agencies have the lead role in security matters.

123

See e.g.,

67 FR 22028 (May 2, 2002) (proposing new requirements to enhance the security of hazardous materials transported in commerce in the wake of the terrorist attacks of September 11, 2001).

124

PHMSA's mission is to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives. In advancement of its mission, PHMSA: establishes national policy; sets and enforces standards; educates; and conducts research to prevent incidents. PHMSA also prepares the public and first responders to reduce consequences if an incident does occur. PHMSA's standards include requirements for shipments and packaging during transportation of hazardous materials whether by rail, aircraft, vessel, or public highway.

Accordingly, to ensure the safety and security of the rail transportation of hazardous materials, PHMSA and FRA, in coordination with DHS, have historically promulgated rules subjecting certain hazardous materials to additional operational restrictions or requiring railroads to take certain actions to ensure the safe and secure rail transportation of these high-risk hazardous materials.

125

PHMSA's hazardous materials regulations are designed to achieve three goals: (1) ensure that hazardous materials are packaged and handled safely and securely during transportation; (2) provide effective communication to transportation workers and emergency responders of the hazards of the materials being transported; and (3) minimize the consequences of an incident should one occur.

126

The regulations categorize hazardous materials by analysis and experience into hazard classes and packing groups based upon the risks they present during transportation.

125

49 CFR parts 171-180.

126

80 FR 26644, 26649 (May 8, 2015).

Because of the dangers of hazardous materials generally, and the additional dangers of a release in transit due to an accident, derailment, theft, or attack, DOT considers train crewmembers as “hazmat employees” requiring specific types of training.

127

These training requirements are substantial. For example, the types of training required for hazmat employees include general awareness/familiarization training, function-specific training, safety training that includes emergency

response and exposure mitigation/protection measures, security awareness training, in-depth security training, and any other training required by other Federal agencies.

128

Further, these types of training are required initially and recurrently at least once every three years.

129

Considering these extensive training requirements for train crewmembers who are hazmat employees, the proposed train crew size safety requirements for trains carrying hazardous materials are complementary to existing DOT requirements that highlight the greater risks posed by certain types of shipments. The following background provides some historical explanation for why the train crew size safety requirements proposed in this rulemaking rule would prohibit transporting certain types of hazardous materials by train with a one-person crew.

127

49 CFR 171.8 (defining “hazmat employees” by the type of work the person is employed to do). Locomotive engineers are hazmat employees because they operate a vehicle used to transport hazardous materials, as specified in paragraph (2)(v) of the definition of hazmat employees. Similarly, other train crewmembers, such as conductors, are responsible for the safety of transporting hazardous materials, paragraph (2)(iv), and directly affect hazardous materials transportation safety while employed by a hazmat employer, paragraph (1)(i).

128

49 CFR 172.704(a) and (b).

129

49 CFR 172.704(c).

A 2008 PHMSA final rule, for example, requires railroads to annually assess the safety and security risks of the routes over which the railroads transport certain hazardous materials because certain hazardous materials present greater risks than others.

130

For instance, a hazardous material may present a greater risk because of the potential consequences of an unintentional release of that material and the material's potential for use as a “weapon[ ] of opportunity or weapon[ ] of mass destruction.”

131

For that reason, PHMSA specifically categorized materials poisonous by inhalation (PIH materials), certain radioactive materials, and certain explosives, as examples of materials presenting the greatest risk and required that railroads annually analyze the routes over which these materials are transported and available alternatives to determine the safest and most secure route.

130

73 FR 72182, 72193 (Nov. 26, 2008).

131

Id.

at 72184.

Also in 2008, in response to a statutory mandate that implemented recommendations of the 9/11 Commission,

132

TSA similarly categorized certain rail shipments of hazardous materials as rail-security sensitive materials (RSSMs).

133

TSA added the RSSM term to denote that the Secretary of Homeland Security determined that certain “categories and quantities of hazardous materials . . . pose a significant risk to national security while being transported in commerce by rail due to the potential use of one or more of these materials in an act of terrorism.”

134

Included within the definition of RSSMs are tank cars containing PIH materials and shipments of certain threshold quantities of explosive and radioactive materials.

132

Implementing the Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53; 121 Stat. 266 (Aug. 3, 2007). The statute defined “security-sensitive material” as “a material, or group of materials, in a particular quantity and form that the Secretary of Homeland Security, in consultation with the Secretary of Transportation, determines through rulemaking with opportunity for public comment, poses a significant risk to national security while being transported in commerce.”

133

73 FR 72130 (Nov. 26, 2008).

134

Id.

at 72134.

After the 2013 catastrophic accident in Lac-Mégantic, Canada, Transport Canada issued a directive containing a specific requirement that railroads in Canada operate trains carrying loaded hazardous materials tank cars over main track and sidings with at least two crew members.

135

Canada replaced the temporary directive with a more permanent, minimum two crewmember operating requirement “for a freight train or transfer carrying one or more loaded tank cars of dangerous goods.”

136

On August 7, 2013, FRA issued a safety advisory recommending that railroads review their crew staffing practices for over-the-road train movements of trains transporting five or more PIH tank car loads, or 20 or more rail car loads or intermodal portable tank loads of any Division 2.1 flammable gas, Class 3 flammable liquid or combustible liquid, Class 1.1 or 1.2 explosive, or other certain listed hazardous substances.

137

135

The emergency directive pursuant to section 33 of the Railway Safety Act was issued on July 23, 2013, approximately 17 days after the Lac-Mégantic accident and was set to remain in effect until the end of 2013. It is described in a safety advisory FRA issued after the accident, Safety Advisory 2013-06, cited below. Although the signed and dated directive is no longer available on Transport Canada's website, Transport Canada released this “Backgrounder” for research or reference:

https://www.canada.ca/en/news/archive/2013/07/emergency-directive-pursuant-section-33-railway-safety-act.html.

Transport Canada also lists the directive as issued on July 23, 2013 in a list of “Measures to enhance railway safety and the safe transportation of dangerous goods”:

https://tc.canada.ca/en/rail-transportation/rail-safety/measures-enhance-railway-safety-safe-transportation-dangerous-goods#wb-auto-4.

136

Canadian Rail Operating Rules (CROR), General Rule-M(iii).

https://tc.canada.ca/en/rail-transportation/rules/canadian-rail-operating-rules/general-rules.

137

FRA Safety Advisory 2013-06, 78 FR 48224, 48228 (Aug. 7, 2013).

Subsequently, in 2015, PHMSA addressed the risks of the rail transportation of large volumes of flammable liquids and imposed operational restrictions (

e.g.,

speed limits, certain braking requirements, and route analysis requirements) on trains transporting large volumes of these materials. In doing so, PHMSA defined trains subject to these additional operational restrictions as “high-hazard flammable trains.”

138

PHMSA acknowledged in the 2015 final rule that it did not directly address regulations governing human factors, but that it does indirectly address some of the issues through consideration of 27 safety and security factors as part of the routing requirements.

139

Several of those 27 safety and security factors that must be considered in the risk analysis would likely place a larger burden on a one-person train crew, such as the volume of hazardous material transported, rail traffic density, trip length for route, the emergency response capability along the route, and the training and skill level of crews.

140

PHMSA's decision to indirectly address the human factors issues was driven by its understanding that “FRA has initiated a rulemaking to address the appropriate oversight to ensure safety related train crew size” as a separate, key regulatory safety initiative.

141

138

80 FR 26644, 2674626746 (May 8, 2015). The rule defined a “high-hazard flammable train” as “a single train transporting 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or a single train carrying 35 or more loaded tank cars of a Class 3 flammable liquid throughout the train consist.”

139

Id.

at 26651.

140

49 CFR part 172, appendix D.

141

80 FR 26654-55.

Also in 2015, FRA issued a final rule amending existing securement requirements for unattended equipment, primarily for trains transporting PIH materials and large quantities of certain flammable hazardous materials.

142

Specifically, FRA found that the dangerous properties of PIH materials and large quantities of certain flammable and other hazardous materials (including certain explosives and hazardous substances) often compound the consequences of a rail accident should one occur.

143

Thus, FRA amended its regulations to require railroads to take additional measures to secure equipment containing a tank car load of PIH material or 20 or more loaded tank cars or loaded intermodal portable tanks of certain flammable, combustible, or explosive hazardous materials or certain designated hazardous substances.

144

For instance, FRA's 2015 final rule added a requirement to verify securement of certain unattended freight trains or cars containing the hazardous materials described above “with another person qualified to make the determination that the equipment is secured in accordance

with the railroad's processes and procedures.”

145

FRA's analysis for that requirement explained that a multi-person crew could satisfy the requirement or, where a one-person crew was involved, then the crewmember “would have to call the dispatcher or some other qualified railroad employee to verify with the qualified employee that the train had been properly secured.”

146

142

80 FR 47350 (Aug. 6, 2015).

143

Id.

at 47353-55.

144

49 CFR 232.103(n)(6)(i)(A) and (B).

145

49 CFR 232.103(n)(8)(i).

146

80 FR 47372.

Based on the known safety and security risks associated with operating trains transporting large amounts of hazardous materials and with the hazardous materials known to present the greatest safety and security risks, as discussed in more detail in the section-by-section analysis of proposed § 218.123 below, in this NPRM FRA is proposing to prohibit the operation of trains transporting hazardous materials subject to FRA's securement regulation or materials designated by TSA as RSSMs on trains with fewer than two crewmembers.

F. Current Operations

Since FRA already has regulations requiring certain minimum standards for locomotive engineers and conductors,

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FRA has chosen not to define the duties of the two required crewmembers in this proposed rule. Nearly every movement of a locomotive, whether the locomotive is coupled to other rolling equipment or not, requires that the operation be performed by a certified locomotive engineer.

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For most current railroad operations, this is accomplished with a two-person train crew consisting of a locomotive engineer and a conductor. Train crews consisting of two people, one a locomotive engineer and the other a conductor, are universally the norm because that crewmember configuration provides the railroad with the necessary flexibility to assign the crew where operations have more complexity than a one-person crew can be expected to perform alone. That is, a train crew with both a locomotive engineer and conductor can be expected to work independently, without the need for the railroad to have separate plans regarding how the train will accomplish switching cars, protecting highway-rail grade crossings, and other safety-related tasks typically requiring more than just one-person. It is also more efficient with a conductor who can fill out any required paperwork and receive mandatory directives transmitted by radio while the locomotive engineer keeps the train moving.

147

49 U.S.C. 20135 and 20163 and 49 CFR parts 240 and 242.

148

49 CFR 240.7 (defining “locomotive engineer” and allowing exceptions for movements of locomotives: (1) within a locomotive repair or servicing area and (2) of less than 100 feet for inspection or maintenance purposes).

Each current operation of a locomotive or train that requires a locomotive engineer is also required to have a conductor, but FRA recognizes that there are circumstances where a person is “serving as both the conductor and the engineer.”

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With a one-person train crew, the single crewmember must be dual-certified as a locomotive engineer and a conductor.

150

In this way, FRA currently requires that each locomotive or train must have a crew that can perform all the duties described by the qualifications requirements in FRA's locomotive engineer and conductor certification regulations.

149

76 FR 69802, 69809, Nov. 9, 2011 (explaining that a person may hold both a locomotive engineer certification and a conductor certification, and, establishing rules for when revocation of each certification is appropriate under 49 CFR 242.213).

150

In previous rulemakings, FRA decided that one train crewmember could be both the train's certified locomotive engineer and certified conductor.

See

49 CFR 240.308(c)(1) and 242.213(d)(1).

FRA currently permits a train crew consisting of a certified locomotive engineer, who is not dual-certified as a conductor, and a second person who is a certified conductor attached to the train crew, but not traveling on the train.

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As proposed, this rule would limit this practice to the excepted small railroad operations under proposed § 218.129(c)(1), as the NPRM would generally require crewmembers to be on their moving train and only would allow disembarking temporarily from the train to perform duties assigned.

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Thus, a second person, even if that person is a certified conductor, would not be a train crewmember under this proposed rule if the person is intermittently assisting the train's movements and traveling in a motor vehicle along a highway near the train. If this proposed rule is finalized, FRA is considering whether to amend the references in the locomotive engineer and conductor certification rules that permit the current operation to explain how these provisions are limited. FRA would appreciate comments on this issue.

151

49 CFR 240.308(c)(2) and 242.213(d)(2).

152

See

proposed 49 CFR 218.123(d).

Additionally, a railroad operation with a train crew that consists of either: (1) a locomotive engineer and conductor; or (2) one crewmember that is dual-certified may have other operating employees identified as train crewmembers. FRA currently defines “train crew” in § 218.5 as one or more railroad employees who are: assigned to a controlling locomotive; called to perform service subject to the Federal hours of service requirements; involved with the movement of the equipment they are called to operate; reporting and working together as a unit that remains in close contact, if more than one employee; and subject to the railroad operating rules and program of operational tests and inspections required in 49 CFR 217.9 and 217.11. Thus, as FRA has an existing definition of the requirements for a train crew, FRA did not propose any new or additional requirements for the train crew in this proposed rule. FRA would appreciate comments on this issue. An alternative option is that FRA require a second crewmember be a conductor, even if the other crewmember is dual-certified, in an effort to ensure a level of teamwork that may not be attainable with any other crewmember. This issue is further explained below for freight and passenger train operations.

1. Freight Train Operations

Regarding the Class I freight railroads, FRA understands that the status of train crew staffing levels has remained unchanged since the Association of American Railroads (AAR) reported to FRA in 2013 after the Lac-Mégantic accident that the Class I railroads were only using two-person crews for over-the-road mainline operations.

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Because there are no Class I freight railroads currently with a legacy operation and does not expect Class I freight railroads to establish legacy one-person train crew operations before a final rule in this rulemaking is issued. FRA expects that, if this proposed rule became a final rule, Class I freight railroads will be required to petition FRA for special approval under proposed § 218.133 to initiate train operations staffed with fewer than two crewmembers.

153

81 FR 13937 (citing letter from Mr. Edward R. Hamberger, President and CEO of AAR, to Mr. Joseph C. Szabo, FRA Administrator (Oct. 16, 2013), which was placed in the docket to the 2016 NPRM).

Meanwhile, fewer freight short line and regional railroads (

i.e.,

Class II and III railroads) are using one-person train crew staffing arrangements than in 2016. In 2016, FRA identified fourteen Class II and III railroads operating single-person train operations,

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but FRA's analysis in 2021 identified only seven of those same freight railroads maintaining such operations.

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Also, in the 2016

NPRM, FRA received correspondence from the American Short Line and Regional Railroad Association assuring FRA that its members carefully considered safety concerns when assigning train crew staff. FRA understood this to mean that railroads conducting one-person train crew operations did not implement the operation until a safety analysis was performed.

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Considering the low number of known short line and regional railroad operations with fewer than two train crewmembers, few Class II and III freight railroads are expected to initiate use of fewer than two train crewmembers in the near future, and the proposed legacy option should permit the continuance of those operations with a good safety record. FRA requests comment on any additional short line and regional freight railroads conducting one-person train crew operations and the interest of railroads to conduct one-person train crew operations in the future.

154

81 FR at 13940.

155

As of February 4, 2021, FRA identified the following seven railroads as operating with a one-person train crew: (1) Indiana Rail Road; (2)

California Northern Railroad Company; (3) Ventura County Railroad Company; (4) Modesto and Empire Traction Company; (5) Pacific Harbor Line Inc.; (6) City of Prineville Railway; and (7) Portland and Western Railroad, Inc.

156

81 FR 13937.

Freight train operations may currently utilize one crewmember who is dual-certified as both a locomotive engineer and a conductor, along with a second crewmember that may be lacking many of the relevant qualifications normally associated with a conductor. In FRA's observations, this is an uncommon occurrence. Rather, it is more common to observe a freight railroad using two dual-certified crewmembers, allowing the crewmembers to take turns operating the locomotive and performing the conductor's duties. However, a freight railroad is currently not prohibited from deploying a dual-certified crewmember with a brakeman, or other operating crewmember as a second crewmember, even though the employee lacks the versatility and training of a conductor, which could raise questions regarding the safety of such a two-person operation. Presumably, a second crewmember who is not a conductor, but is traveling with the train, would handle physical tasks that require a crewmember to dismount from the train, such as throwing a switch, protecting a highway-rail grade crossing, and conducting brake tests. Additionally, a second crewmember who is not a conductor could help identify signal indications and assist the locomotive engineer with radio communications, among other duties. However, a second crewmember who is not a conductor would have fewer responsibilities when compared to a conductor, and the contributing value to the team would likely be less. For example, a second crewmember who is not a conductor would be expected to have training on fewer safety issues compared to a conductor and therefore may not have the knowledge to discuss or resolve as many operational questions as a conductor.

Similar operational concerns could arise with current practices that allow use of a second person who is more like a utility employee

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than a crewmember who is assigned to a train. There are certainly some duties that a utility employee can perform for a train crew that would typically be performed by a freight conductor if the crew had a second crewmember who was a freight conductor. However, unlike a crewmember, the utility employee is neither in the locomotive cab with the locomotive engineer nor in near constant radio communication with the locomotive engineer while the train is moving, and therefore cannot replace all the conductor's duties and accompanying safety benefits.

157

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

2. Passenger Train Service

Passenger train service means the transportation of persons (other than employees, contractors, or persons riding equipment to observe or monitor railroad operations) by railroad in intercity passenger service or commuter or other short-haul passenger service in a metropolitan or suburban area.

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For passenger train service, a locomotive engineer is normally located in the locomotive cab, and a passenger conductor, and potentially one or more assistant conductors, normally rides in the passenger cars with the passengers. It is commonplace for train crewmembers to be qualified to perform multiple crewmember jobs so that they are interchangeable, although that is not always the case on each railroad or for each train operation.

158

See

49 CFR 239.7 (defining passenger train service).

Multiple train crewmembers are typically necessary on a passenger train to meet the requirements of FRA's passenger train emergency preparedness rule,

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which is intended “to reduce the magnitude and severity of casualties in railroad operations by ensuring that railroads involved in passenger train operations can effectively and efficiently manage passenger train emergencies.”

160

There are numerous ways that passenger train crewmembers, other than the locomotive engineer, can assist the passengers in an emergency. Emergencies can require evacuations in various types of circumstances where a trained person would be helpful to guide passengers away from danger. For example, passengers that self-evacuate might not realize that they could step on an electrified rail or be struck by a train approaching on an adjacent track. Evacuations in remote areas, in tunnels, or on bridges also pose significant dangers to passengers and are places where crewmembers must be trained on safe methods to assist passengers.

159

49 CFR part 239.

160

49 CFR 239.1(a).

A one-person passenger train crew would have significant difficulty coordinating any type of evacuation, especially in difficult terrain, or if there are large numbers of passengers or other logistical challenges. Furthermore, although posted emergency evacuation signs and instructions for train passengers can be useful, and are indeed required by FRA regulation, the crew's presence is likely to improve instruction to passengers and facilitate situational awareness.

Although passenger train conductors normally do not ride in or next to the locomotive cab with the locomotive engineer for more than a few minutes at a time, passenger train conductors are integral to the train's safe operation. For instance, passenger train conductors assist with train inspection, train makeup, form and record management, troubleshooting, and repair. Passenger train conductors also maintain verbal communication with the locomotive engineer, even though they are often not in the locomotive cab. A well-trained passenger train conductor will recognize passing landmarks and communicate important information by radio to the locomotive engineer.

One safety concern for passenger train crew staffing, similar to the concern expressed above for freight train crew staffing, is that a passenger railroad will use one crewmember who is dual-certified as both a locomotive engineer and a conductor, but the second crewmember is not a certified conductor and may be lacking many of the relevant qualifications normally associated with a passenger train conductor. If a second passenger train crewmember is not a passenger conductor, the second person would have fewer responsibilities when compared to a passenger conductor, and the contributing value to the team would likely be less. As in the freight

operations example, a second crewmember who is not a conductor would be expected to have training on fewer safety issues compared to a conductor and therefore may not have the knowledge to discuss or resolve as many operational questions as a conductor. Consistent with the existing requirements for a “train crew” in § 218.5, a second crewmember on a passenger train, even if not conductor-qualified, must have functions connected with the movement of the train and be called to perform service subject to the Federal hours of service requirements during a tour of duty.

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FRA is aware of at least two passenger train operations in which the railroads do not use train crewmembers that meet the definition of “train or yard crew” in § 218.5, notably because the second person does not have functions connected with the movement of the train and thus is not performing service subject to the Federal hours of service requirements during a tour of duty.

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Although such passenger train operations may satisfy the requirements of 49 CFR part 239,

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railroads would need to seek FRA's special approval under proposed § 218.131 to continue such legacy train operation staffing arrangements.

161

49 CFR 218.5 (defining “train or yard crew,” in part, by requiring that the crew be called “to perform service covered by Section 2 of the Hours of Service Act.”).

162

As of October 25, 2021, FRA identified the following passenger train operations as operating with a one-person train crew: (1) Denver Regional Transportation District/Denver Transit Operators; and (2) Utah Transit Authority's FrontRunner.

163

49 CFR 239.7 (defining “crewmember,” in part, to include “a person, other than a passenger, who is assigned to perform . . . [o]n-board functions in a sleeping car or coach assigned to intercity service, other than food, beverage, or security service”, and 49 CFR 239.101(a)(2), addressing employee training and qualification of all “on-board personnel,” whether in intercity or commuter passenger train service).

3. Tourist Train Operations

Currently, the typical train crew staffing arrangement for tourist train operations is like that for passenger train service, with a locomotive engineer located in the locomotive cab and a conductor, and potentially one or more assistant conductors, riding in the passenger cars. The assistant conductors may go by a different title as tourist train operations usually have paid or volunteer train crewmembers that can assist passengers in case of an emergency. Tourist train operations are not required to comply with FRA's passenger train emergency preparedness requirements, whether the operation is on or off the general railroad system.

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Although FRA is unaware of any tourist train operation on the general railroad system of transportation that operates with a one-person train crew, FRA proposes to include tourist train operations in this rulemaking to ensure tourist trains continue to be appropriately staffed for safety. All tourist operations can likely meet the requirements or exceptions proposed in the rule without altering their operations and, therefore, would not incur any costs.

164

49 CFR 239.3(b)(3); 49 U.S.C. 20133(b). The passenger train emergency preparedness requirements in part 239, like those for passenger equipment safety in part 238, arose from a statutory mandate that allowed for different treatment of tourist train operations and followed a series of accidents involving intercity passenger and commuter rail operations. The requirements were therefore structured to apply to intercity passenger and commuter rail operations, not tourist operations. However, FRA noted that the exclusion of tourist operations from those rules was based on incomplete information regarding the unique circumstances of tourist railroads, and that future application of some or all of the emergency preparedness requirements could become appropriate. In such case, FRA would initiate a rulemaking to extend the application of part 239 to tourist operations.

See

63 FR 24630, 24644 (May 4, 1998). Nor would any such exclusion preclude the application of other rules to tourist operations.

4. Train Operations in Other Countries

Generally, the data available about one-person train operations in other countries is limited because the information available does not separate one-person crew rail operations from multi-person operations. For this reason, it is difficult to normalize the data and effectively evaluate the safety of foreign, one-person train operations. Canada's train operations are the most comparable foreign operation to those of the U.S. and, as explained in more detail in section III.E above, following the 2013 catastrophic accident in Lac-Mégantic, Canada, Transport Canada issued a temporary directive requiring at least two crewmembers for trains carrying loaded hazardous materials tank cars over main track and sidings. That temporary directive was then replaced with a mandatory operating rule requiring a minimum of two crewmembers for a freight or transfer train carrying one or more loaded tank cars of dangerous goods.

Foreign train operations in developed countries, other than Canada, are not comparable for the most part due to differences in train lengths, territory, and infrastructure. For instance, a foreign, one-person freight train operation in an industrial-type railroad servicing only one origin and one destination would not be comparable due to the complexity of most U.S.-based freight rail operations. Most foreign, one-person freight train operations also do not carry out extensive interlining or switching with other railroads. Further, many foreign, one-person passenger train operations do not have to share track with freight operations or operate over highway-rail grade crossings, and thus the safety hazards associated with those foreign operations are not comparable to those involving U.S. passenger train operations.

To the extent that commenters believe foreign, one-person train operations are relevant, FRA requests that the comments include information and data describing the operations. FRA would also appreciate comments that explain how the foreign operation is comparable to U.S.-based operations and whether the operation would need to file a special approval petition under the rule as proposed if it was U.S.-based, or whether the operation if it was U.S.-based might meet the criteria in one of the exceptions of the proposed rule with or without a change to the proposed requirements.

G. Ensuring Safety in the Future

Since the 2016 NPRM was published, the number of crewmembers on each type of train has largely stayed constant, during a period in which railroad operations have also returned consistent safety statistics. For example, over the five-year period from 2016 to 2020, the average rate of FRA-reportable, human-factor-caused accidents/incidents across industry was 1.05 accidents per million train miles. The lowest rate of 0.95 was in 2016; the highest rate was in 2020 at 1.18 accidents per million train miles. While these consistent safety statistics were attained with the overwhelming majority of train operations using two or more crewmembers, it is unknown how introducing the additional risk factor of a reduction to a one-person crew will impact safety without conducting or reviewing a risk assessment for the industry or each operation.

The industry's safety record on one-person train crew operations is not well-developed, with few industry participants, and a negligible record of information, which precludes FRA from making meaningful data comparisons of the safety of one-person train crew operations to multiple-person operations. As previously explained above, only a small number of short line and regional railroads, and an even smaller number of passenger train operations, have established one-person train crew operations, and the short line and regional railroads have a dwindling number of such operations, from about

fourteen in 2016 to seven in 2021. Consequently, as the number of such operations has dwindled, there is even less data for FRA to consider in establishing the industry's one-person train crew safety record.

Further, those few one-person Class II and III train crew operations are not necessarily indicative of what the safety record might be on the major Class I freight railroads, which tend to operate longer trains, with higher tonnage, for longer distances, and at higher speeds than a short line or regional railroad operation. Train crews on major Class I freight railroads must generally contend with more complexities than typically found on a short line or regional railroad operation, such as more than one type of signal system, more than one set of railroad operating rules and practices that must be followed during the same tour of duty, or higher train traffic density.

For these reasons, FRA proposes to review each railroad's petition for a described operation and to require each railroad that receives FRA's approval to conduct a formal, annual review and analysis of the FRA-approved train operation(s) with fewer than two crewmembers. This will enable FRA to make better safety evaluations and comparisons of operations with fewer than two crewmembers in the future.

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

This proposed rule is complementary to, rather than duplicative of, other recent regulatory initiatives FRA has issued or is in the process of developing. These initiatives include: the implementation of PTC systems by required railroads;

165

railroad safety risk reduction programs;

166

and the development of fatigue risk management programs.

167

Each of these initiatives will enhance safety, and may either aid a railroad in transitioning to an operation with fewer than two crewmembers or assist a railroad in identifying hazards and mitigating risks associated with those hazards once such an operation is established. None of these initiatives nor FRA's regulation on Passenger Train Emergency Preparedness, however, focus exclusively on the specific hazards and risks associated with reducing the number of train crewmembers to fewer than two crewmembers, nor do they necessarily require railroads to mitigate any such hazards and risks. Further, none of these initiatives establish a structure for FRA review of, or allow the public to review, a railroad's plans to reduce crew size or require FRA to approve crew size reductions before they can go into effect.

165

See generally

49 CFR part 236, subpart I; and press release in which FRA announces full implementation of PTCPTC (Dec. 29, 2020),

available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.

166

49 CFR parts 270 and 271.

167

85 FR 83484 (Dec. 22, 2020) (proposing to amend 49 CFR parts 270 and 271 to require certain railroads to develop and implement a Fatigue Risk Management Program as one component of the railroads' larger railroad safety risk reduction programs).

1. Positive Train Control (PTC) Systems

PTC systems must be designed to prevent the following accidents or incidents: train-to-train collisions, over-speed derailments, incursions into established work zones, and movements of trains through switches left in the wrong position,

168

and therefore the implementation of a PTC system helps improve the safety of rail operations, including any one-person train operation. However, PTC systems do not completely perform all the job functions of a conductor. Based on the research already described and FRA's understanding of PTC systems, PTC does not: (1) check the engineer's alertness, which includes ensuring that the engineer is not fatigued, under the influence of any controlled substance or alcohol, or distracted by using a prohibited electronic device; (2) fill in the knowledge or experience gaps of the sole crewmember about how to address a particularly difficult operating problem, or help in diagnosing and responding to train problems and other exceptional situations; (3) assist in the physically demanding task of securing a train with hand brakes, typically at the end of a tour of duty when the crew is looking forward to going off-duty; (4) assist in flagging highway-rail grade crossings when necessary after PTC slows or stops a train before traversing the crossing or breaking up the train at such crossings to avoid blocking them from highway users for extended periods; (5) update train consist information arising from the set-out and pickup of cars; (6) protect the point,

i.e.,

the leading end of the train movement, during shoving or pushing movements that are not protected by PTC, where the locomotive engineer is not operating from the leading end of the leading locomotive in a position to visually determine conditions in the direction of movement; (7) assist a locomotive engineer when complying with “restricted speed,” which requires a locomotive engineer to stop the train within one half the engineer's range of vision to avoid colliding with on-track equipment and operating through misaligned switches;

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or (8) assist the train if the PTC system fails en route or enters non-PTC territory. Furthermore, the research suggests that, because PTC technology may require locomotive engineers to focus more of their attention on in-cab displays, it will reduce their ability to monitor activity outside the cab and raises a question about whether the engineers will lose any situational awareness in relation to the coherent mental picture (

i.e.,

the situation model) of where the engineer perceives the train to be based on prior experience. Moreover, if the PTC system fails to initialize or fails en route, in certain circumstances, the train may still be operated and in the event a one-person crew was involved, that sole crewmember would not have the benefit of either PTC or a second crewmember.

170

Thus, while PTC is a safety overlay to help prevent certain accidents, FRA's PTC regulations do not include the requirements to perform crewmember job functions, which are essential to prevent or mitigate other accidents.

168

See, e.g.,

49 U.S.C. 20157(g)(1), (i)(5); 49 CFR 236.1005 (setting forth the technical specifications).

169

Restricted speed is a railroad term that provides a maximum authorized speed for the train, typically 15 or 20 miles per hour, but also requires a train crew to operate at a speed slower than that maximum authorized speed so that the train can be stopped without colliding with on-track equipment or operating through a misaligned switch. Collisions are more likely avoidable if all movements are made at a speed slow enough to stop the movement in half the engineer's range of vision. Restricted speed is often used in yards but may also apply to main track and other types of track where a train may be sharing the track with other locomotive or train movements. If the maximum authorized speed for a restricted speed movement is 15 miles per hour, and the locomotive engineer is operating the train at 10 miles per hour, PTC will not stop that train from colliding with cars left on-track nor will PTC prevent the train from operating through a misaligned switch.

170

See

49 U.S.C. 20157(j); 49 CFR 236.567 and 236.1029.

Likewise, the risk assessment required in FRA's PTC regulatory requirements is different than the risk assessment requirements in this proposed rule and thus would not be duplicative. For instance, FRA requires a railroad to submit a PTC safety plan (PTCSP) and receive PTC System Certification

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before placing a PTC system into service. Although a PTCSP requires a railroad to develop and submit a hazard log, risk assessment, and hazard mitigation analysis similar to one that would be required in this proposed rule for one-person train crew operations, the subject of the PTC risk assessment is different than for this proposed rule. The PTCSP is required to address all

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

171

49 CFR 236.1015.

2. Railroad Safety Risk Reduction Programs

As codified in 49 CFR parts 270 and 271, FRA requires Class I railroads, railroads with inadequate safety performance, and passenger rail operations to implement railroad safety risk reduction programs. A railroad safety risk reduction program is a comprehensive, system-oriented approach to safety that determines an operation's level of risk by identifying and analyzing identified hazards and developing strategies to mitigate risks associated with those hazards. In this background, FRA is using the term “railroad safety risk reduction programs” to include both a “system safety program” (SSP) that is required for certain passenger rail operations

172

and a “risk reduction program” (RRP) that is required for a limited number of other rail operations.

173

172

49 CFR 270.3 (requiring the application of the system safety rule to certain passenger rail operations).

173

49 CFR 271.3 (requiring the application of the risk reduction program rule to certain rail operations).

Although a railroad safety risk reduction program might address a railroad's safety hazards and risks associated with changes in train crew staffing, the framework established by these programs neither directly addresses the risks associated with reducing train crewmembers to fewer than two nor establishes an industry-wide approach.

First, not every railroad is required to have a railroad safety risk reduction program. Indeed, FRA estimates that fewer than 100 railroads (out of approximately 750 under FRA's jurisdiction) over the next 10 years will be required to develop a railroad safety risk reduction program.

Second, even if a railroad is required to have a railroad safety risk reduction program through which it identifies the risks associated with reducing train crew size to fewer than two crewmembers,

174

the railroad may decide not to implement mitigations to eliminate or reduce those specific risks. Parts 270 and 271 permit railroads to prioritize risks.

175

Whether a railroad that is required to have a program mitigates risks associated with crew staffing will depend on how the railroad prioritizes risks for mitigation and how effectively that mitigation would promote continuous safety improvement compared to mitigation of other identified hazards and risks. Thus, even if train crew staffing is identified as a risk, a railroad may not implement mitigations to eliminate or reduce that risk.

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

See

49 CFR 270.103(s) and 271.105, and 85 FR 9296.

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See e.g.,

49 CFR 270.5 (definition of “risk-based hazard management”) and 271.103(b)(3).

Accordingly, while the safety risk reduction program requirements may complement this proposed rule, they do not address the need for FRA and the railroads to consider and address the safety risks of operations utilizing fewer than two crewmembers across the entire industry.

3. Fatigue Risk Management Programs

On June 13, 2022, FRA published a final rule adding a Fatigue Risk Management Program (FRMP) to the railroad safety risk reduction program requirements in parts 270 and 271.

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An FRMP is a comprehensive, system-oriented approach to safety in which a railroad determines its fatigue risk by identifying and analyzing applicable hazards, and developing plans to mitigate, if not eliminate, those risks. Like the railroad safety risk reduction program rules, the final rule is part of FRA's continual efforts to improve rail safety and will satisfy the statutory mandate of Section 103 of the Rail Safety Improvement Act of 2008.

177

176

85 FR 83484.

177

Codified at 49 U.S.C. 20156.

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

I. Risk Assessments

Risk, in simple terms, can be thought of as the possibility of something bad happening, and in the context of this rule, the possibility of an unsafe event occurring that results in an accident or incident. Risk also has an element of uncertainty—meaning the probability that the unsafe event will occur and the likelihood of the unsafe event resulting in an accident or incident. A certain amount of risk is inherent in all transportation activities, including railroad operations. Generally, FRA's existing safety regulations address known risks in railroad operations (

i.e.,

risks that have been realized and have resulted in accidents and injuries). Changes to any existing process, operating condition, or even equipment or infrastructure, however, may introduce new risks.

Risks can be systematically reduced by following a risk management process. A risk management process is a formal process used to identify, evaluate, and eliminate or reduce hazards to within a range of acceptability. It is a way to proactively reduce and mitigate risk before an accident, injury, or other

catastrophe occurs. FRA's railroad safety risk reduction program rules, discussed above, are examples of the use of risk management tools in FRA's existing rail safety regulatory framework. As also discussed above, however, FRA's railroad safety risk reduction program rules do not specifically mandate that railroads take action to mitigate any resulting risk from those hazards associated with changes in crew staffing levels.

Because, as noted previously, with the exception of certain freight and passenger operations, railroads have historically operated trains with at least two crewmembers, insufficient historical accident and incident data exists to demonstrate the potential impacts of crew size on rail safety generally, and insufficient historical data exists on the impacts of crew size under specific operating scenarios. Accordingly, rather than taking a “wait and see” reactive approach to potential new hazards introduced with changes in crew size, FRA is proposing to require railroads to conduct a risk assessment when seeking to initiate new train operations staffed with fewer than two crewmembers (and railroads seeking to materially modify legacy fewer-than-two-crewmember operations).

A risk assessment is a process of identifying new potential hazards, analyzing what could happen if a particular hazard occurs, estimating the probability of the hazard occurring as well as the likelihood of the hazard resulting in an accident or incident, and methods to reduce or eliminate the hazard through mitigations (

e.g.,

new or modified processes or equipment). To be effective, risks assessments must be conducted in an objective manner and as a result, standardized risk assessment processes, tools, and other methodologies exist in various industries and contexts.

178

See e.g.,

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

As noted above, performing risk assessments, risk management, and risk reduction are not new to FRA or the railroad industry. As also noted earlier in this preamble, FRA's RRP and SSP rules, as well as FRA's PTC rule, require railroads to develop and implement processes and procedures that will identify hazards and then mitigate or eliminate the risks that result from those hazards. Similarly, in 2007, FRA published a “Collision Hazard Analysis Guide” (Guide) to assist passenger rail operations in conducting collision hazard assessments.

179

FRA based the Guide on the Department of Defense's Standard Practice for System Safety (MIL-STD-882) and the hazard identification and resolution processes described by the American Public Transportation Association's “Manual for the Development of System Safety Program Plans for Commuter Railroads.” The Guide provides a “step-by-step procedure on how to perform hazard analysis and how to develop effective mitigation strategies that will improve passenger rail safety.”

180

Although the Guide focuses on passenger rail collisions, the techniques described in the Guide are also valid for evaluating other hazards or safety issues related to any type of operating system.

181

179

FRA, U.S. Department of Transportation, Collision Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service (Oct. 2007) (

available at https://railroads.dot.gov/elibrary/collision-hazard-analysis-guide-commuter-and-intercity-passenger-rail-service

180

Id.

at 5.

181

See id.

Prior to development and publication of the Guide, FRA relied on MIL-STD-882 when promulgating certain aspects of FRA's Passenger Equipment Safety Standards (49 CFR part 238).

182

Part 238 references MIL-STD-882 as a formal safety methodology to identify hazards and then eliminate or reduce the risks associated with each hazard to an acceptable level, when performing required fire safety analyses in procuring new passenger equipment and in planning for the safety of Tier II passenger equipment operations.

183

In addition to MIL-STD-882, FRA has also relied on standards of the American Railway Engineering and Maintenance Association (AREMA) when defining the requirements for abbreviated risk assessments in FRA's Standards for Processor-Based Signal and Train Control Systems and Positive Train Control Systems.

184

Specifically, FRA incorporated AREMA's Communications and Signaling Manual (AREMA Manual), Volume 4, Section 17—Quality Principles. Part 17.3.5 of the AREMA Manual provides a recommended procedure for hazard identification and management for vital electronic/software-based products and systems used in safety-critical systems.

185

Although the AREMA Manual addresses the assessment of risk associated with “products” developed for use in safety-critical systems, the general processes set out in the standard can, like the processes in FRA's Guide, be applied to any type of system (including the system surrounding operating any train with fewer than two person crews).

182

64 FR 25540 (May 12, 1999).

183

49 CFR 238.5, 238.103, 238.603, 64 FR 25540, 25663, 25670, 25696 (May 12, 1999).

184

See

49 CFR part 236, subpart H and I.

185

49 CFR 236.909(d).

In the 2005 final rule codifying FRA's Standards for Processor-Based Signal and Train Control Systems, FRA acknowledged that it did not expect the assessment of risks performed under the AREMA standard would prove a product to be “absolutely safe.”

186

Instead, FRA indicated that it expected the assessment to provide evidence that the risks associated with the product have been carefully considered and that steps have been taken to minimize or mitigate the risks.

187

The same rationale applies to FRA's current proposal. The goal of the risk assessment process is to ensure accepted hazard analysis processes are followed and appropriate mitigation measures are taken to reduce risk to an acceptable level. Generally, an acceptable level of risk is achieved when it is determined that further risk reduction measures will not result in an additional, significant reduction of risk (

i.e.,

when the probability of an unsafe event occurring is small and the likely severity of an accident or incident resulting from that unsafe event is also small). For example, there is a risk that an engineer will allow a train to pass a red signal. The resulting hazard is that the train will collide with another train that is occupying the track past the signal. The probability that this unsafe event will occur is based on an analysis of relevant causal factors (

e.g.,

the potential for an engineer to be distracted or to lose situational awareness). The likelihood of an accident or incident resulting is analyzed based on the probability that another train is occupying the track past the red signal. Potential mitigation may include processes (

e.g.,

the role and tasks of the conductor in calling signals) and equipment and technology (

e.g.,

PTC). In this example, these mitigation measures may not completely eliminate the hazard (

i.e.,

the potential for a collision). However, depending on the operating environment, the risk of the hazard (

i.e.,

a collision) occurring may be reduced to an acceptable level. For example, some signal systems with PTC as an overlay allow for an engineer to pass a red signal to perform certain operations (

e.g.,

switching operations) if appropriate railroad operating procedures are followed. In such

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

186

70 FR 11052, 11071 (March 7, 2005).

187

Id.

As noted above, and in more detail in the section-by-section analysis of proposed § 218.135, standardized risk assessment processes, tools, and methodologies exist not only in FRA's regulations, but in other industries and contexts. In this NPRM, FRA is proposing a process based on these widely accepted existing standards, but tailored to the specific context of this rulemaking.

FRA has proposed specific content and methodology requirements for conducting risk assessments, including defining acceptable and unacceptable levels of risk and allowing for both quantitative and qualitative analyses. FRA intends the specific content and methodology requirements proposed to both ensure that all relevant risks are properly identified, evaluated, and addressed, and to provide railroads clarity and certainty regarding what level of risk FRA proposes as acceptable and what level of risk FRA proposes as not acceptable. Using a standardized risk assessment process as proposed should result in risk assessments being conducted and documented in a consistent manner, enabling railroads to conduct the assessments effectively and efficiently, and at the same time, limit the burden on FRA as it reviews and evaluates every risk assessment filed. Further, as the proposed risk assessment process is consistent with the requirements of other FRA regulations (

e.g.,

FRA's Passenger Equipment Safety Standards, PTC, SSP, RRP), railroads are able to apply the knowledge and skills in preparing risk assessment and hazard analyses for those regulations to the risk assessment process this proposed rule would require.

Although F

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