Train Crew Size Safety Requirements, 25052-25115 [2024-06625]

Download as PDF 25052 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 218 [Docket No. FRA–2021–0032, Notice No. 5] RIN 2130–AC88 Train Crew Size Safety Requirements Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: FRA is establishing minimum safety requirements for the size of train crews depending on the type of operation. This final rule requires railroad operations to have a minimum of two crewmembers except for certain identified one-person train crew operations that do not pose significant safety risks to railroad employees, the public, or the environment. This final rule includes requirements for railroads seeking to continue certain existing oneperson train crew operations and a special approval process for railroads seeking to initiate certain new oneperson train crew operations. This final rule also requires each railroad receiving special approval for a oneperson train crew operation to submit to FRA an annual report summarizing the safety of the operation. DATES: This regulation is effective June 10, 2024. ADDRESSES: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov at any time. FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director, Operating Practices Division, Office of Railroad Safety, Federal Railroad Administration, at telephone (202) 366–0978 or by email at Christian.Holt@dot.gov; or Alan Nagler, Senior Attorney, U.S. Department of Transportation, Federal Railroad Administration, at telephone (202) 493–6038 or by email at alan.nagler@dot.gov. SUPPLEMENTARY INFORMATION: SUMMARY: ddrumheller on DSK120RN23PROD with RULES4 Abbreviations and Terms Used in This Document AAR—Association of American Railroads ACI—American Consumer Institute AII—Alliance for Innovation and Infrastructure APTA—American Public Transportation Association ASLRRA—American Short Line and Regional Railroad Association ATDA—American Train Dispatchers Association BLET—Brotherhood of Locomotive Engineers and Trainmen VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 BMWED—Brotherhood of Maintenance of Way Employes Division BNSF—BNSF Railway Company CARS–TC—Citizens Acting for Rail Safety— Twin Cities CFZ—Critical focus zones CLF—California Labor Federation CN—Canadian National Railway Company Conrail—Consolidated Rail Corporation CPUC—California Public Utilities Commission CRC—Commuter Rail Coalition CTC—Centralized traffic control system CVR—Cimarron Valley Railroad Denver RTD—Denver Regional Transportation District DOT—Department of Transportation FEC—Florida East Coast Railway FRA—Federal Railroad Administration FRFA—Final Regulatory Flexibility Analysis FTA—Federal Transit Administration GAO—U.S. Government Accountability Office GCOR—General Code of Operating Rules G&U—Grafton and Upton Railroad INRD—Indiana Rail Road Company mph—miles per hour MU—Multiple-unit NS—Norfolk Southern Railway Company NPRM—Notice of proposed rulemaking NPSC—Nebraska Public Service Commission OMB—Office of Management and Budget PTC—Positive train control RCL—Remotely controlled locomotive RGPC—Rio Grande Pacific Corporation RIA—Regulatory Impact Analysis RIN—Regulatory Identification Number RSAC—Railroad Safety Advisory Committee RSSM—Rail-security sensitive materials RWU—Railroad Workers United SBA—Small Business Administration SBA-Advocacy—Small Business Administration’s Office of Advocacy Secretary—Secretary of Transportation SMART–TD—International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division SSO Agency—State Safety Oversight Agency TFI—The Fertilizer Institute TSA—Transportation Security Administration TTD—Transportation Trades Department, AFL–CIO TWU—Transport Workers Union of America T&N—Texas and Northern Railway UP—Union Pacific Railroad Company UTA—Utah Transit Authority Table of Contents for Supplementary Information I. Executive Summary II. Discussion of Comments and FRA’s Conclusions A. Overview of Comments B. Preemption C. Comments Supporting the NPRM 1. Labor Organizations 2. Individual Commenters 3. Federal Congressional Commenters 4. State and Local Governmental Commenters D. Tourist Railroad and Railroad Museum Industry Comment That Asserted the NPRM Would Have No Impact E. Comments Opposing the NPRM 1. Federal Congressional Commenters PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 2. Passenger Operations 3. Short Line and Regional Freight Railroads 4. Class I Freight Railroads a. Alternative Crewmember Arrangements Including Expeditors, Ground-Based Crewmembers, or Ground-Based Conductors b. Train Operations in Other Countries c. New Technology and Automated Operations d. Transportation of Hazardous Materials e. FRA Action on Regulating Crew Staffing f. Risk Assessments and FRA’s Review Standard g. Remote Control Operations F. Consideration of Requirements More Stringent Than Those Proposed III. Section-by-Section Analysis IV. Regulatory Impact and Notices A. Executive Order 12866 as Amended by Executive Order 14094 B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. Environmental Assessment G. Environmental Justice H. Unfunded Mandates Reform Act of 1995 I. Energy Impact I. Executive Summary Purpose of the Regulatory Action FRA is issuing this final 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 one-person train crew. The final rule establishes minimum crew size safety standards for all trains, including a risk assessment requirement to evaluate hazards and ensure risk mitigation for those railroads looking to initiate oneperson train crew operations in the most complex operating environments nationwide, that will reduce the likelihood of future accidents proactively. As FRA explained in the notice of proposed rulemaking (NPRM), FRA has qualitatively discussed the benefits because it does not have sufficient data to monetize those benefits. However, those benefits have the potential to reduce the likelihood of at least one type of foreseeable accident that is more likely to occur with a oneperson train crew than a two-person train crew if a locomotive is not equipped with a safety device that will stop the train when the locomotive engineer is physically unresponsive— even if the type of accident foreseen has not yet occurred. Other qualitative benefits include ensuring that railroads are adequately protecting the safety of a one-person train crewmember or members of the public under various foreseeable circumstances so that employees and communities are not left E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 in an inferior safety position compared to when a train is staffed with two crewmembers. Without this final rule, FRA has a limited ability to address the totality of potential safety issues related to a 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 as it reviews a passenger operation’s emergency preparedness plan under 49 CFR part 239. Also, no other FRA regulatory effort focuses on the specific hazards and risks associated with a oneperson train crew operation, and there is no industry-wide approach to mitigate any such hazards or risks. Consistent with the purpose of existing requirements for the transportation of hazardous materials by rail,1 FRA is mandating that each train be assigned a minimum of two crewmembers when transporting 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, with some exceptions to ensure FRA’s awareness of the existing operation and/or require an FRA approval, after an opportunity for public input. This final crew size rule is necessary for FRA to proactively protect railroad employees, the public, and the environment during train operations with a one-person train crew, including trains transporting hazardous materials. This final rule allows FRA to identify and evaluate each railroad that will be operating a freight train with a oneperson train crew. By collecting more information about one-person train crew operations, FRA will be better informed to respond to questions about how to maintain the safety of such an operation and be better positioned to take actions that ensure future safety improvements. This final rule also requires railroads with certain types of one-person train crew operations to notify FRA that they are using such an operation, provide a detailed description of the operation and, in some circumstances, submit a risk assessment and request FRA’s approval to continue or initiate an operation. When FRA’s approval is necessary, this final rule allows FRA to prohibit the initiation of any proposed one-person train crew operations that 1 The proposed rule contains extensive background explaining that the Federal government recognizes how essential hazardous materials are to the U.S. economy and the well-being of its people, and the various Federal requirements for the training of rail employees and other safeguards to help ensure that these materials will be shipped and arrive safely at their destinations. 87 FR 45564, 45576 (July 28, 2022). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 would not be as safe or safer than a twoperson minimum train crew operation. In addition to the safety benefits from establishing minimum operational requirements, the notification and approval procedures required by the final rule will provide FRA with information and data that could be used in future rulemakings, enforcement actions including emergency or compliance orders/agreements, and safety analyses generally. Further, the final rule is necessary to establish a process for the public, including rail employees and their labor organization representatives, to comment before FRA decides whether to grant special approval on any railroad’s petition to operate a train with a one-person train crew. The public’s participation is warranted because any reduction of crew staffing from a twoperson train crew could raise numerous general and operational safety concerns.2 Further exacerbating the safety concerns regarding any reduction in crew size is that the average length of a Class I freight train has grown substantially in recent years, to nearly 3 miles in some cases, as train length and tonnage add to the complexity and safety challenges of these operations.3 In issuing this final rule, FRA will ensure that laws, regulations, and orders ‘‘related to railroad safety’’ with respect to train crew size are nationally uniform 4 by preventing varying State laws regulating crew size from creating a patchwork of potentially inconsistent rules governing train operations across the country. Without this rule, railroads could be subjected to a different crew staffing law in every State in which they operate, as there would be no assurance that State laws governing crew size would be based on an analysis or determination concerning impacts on 2 FRA’s rules of practice generally encourage participation by interested persons. 49 CFR 211.3. For example, public participation is encouraged when FRA considers a waiver petition, and the dockets for those petitions are publicly available. 49 CFR part 211, subpart C. Some of FRA’s rail safety regulations also require a railroad to notify a labor organization’s president of the submission to FRA of a railroad safety program, such as a training or certification program to ensure that the relevant representatives for employees have an opportunity to participate in the process. See e.g., 49 CFR 240.103(b), 242.103(c), and 243.109(d). Because FRA has similarly determined in this instance that employees and communities have an interest in a railroad’s operation relative to the issue of train crew size safety, the final rule ensures the participation of interested members of the public, including rail employees and their labor organization representatives. 3 ‘‘Rail Safety: Freight Trains Are Getting Longer, and Additional Information is Needed to Assess Their Impact,’’ U.S. Government Accountability Office (GAO) (May 2019). https://www.gao.gov/ products/gao-19-443. 4 49 U.S.C. 20106(a)(1). PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 25053 railroad safety. The lack of a uniform standard would likely result in additional costs and operational inefficiencies. Lastly, this final rule is necessary because the latest annual rail safety data reflects some troubling trends that point toward a need for heightened caution and awareness in railroad safety and operational planning. For instance, a second crewmember provides the opportunity to secure a train with hand brakes, as a one-person train crew could not do so without violating railroad air brake and train handling requirements necessary to comply with FRA’s regulations requiring that ‘‘railroads shall develop and implement a process or procedure to verify that the applied hand brakes will sufficiently hold the equipment with the air brakes released [and] that a train’s air brake shall not be depended upon to hold equipment standing unattended.’’ 5 The rate for all human factor caused accidents increased from 0.95 accidents per million train miles to 1.34 between 2013 and 2022, a 41.1 percent increase, and from 1.18 accidents per million train miles to 1.34 between 2021 and 2022, a 13.6 percent increase.6 The percentage of train accidents attributed solely to human factors (as reflected in FRA’s accident reporting cause codes) increased from 38.5 percent to 45.6 percent between 2013 and 2022. The number of main track train handling and make-up accidents attributed to human factor cause codes has increased from 28 in 2013 to a range between 36 and 77 (reflecting occurrences between 2018 and 2022), a 28.6 to 75 percent increase. When normalizing this data by the number of train miles, it shows a rate increase from 0.04 in 2013 to 0.07 in 2022, reaching as high as 0.10 and 0.13 during this period, a range that increased 25 to 225 percent over the five-year period between 2018 and 2022. 5 49 CFR 232.103(n)(1) and (2). In the event that an uncontrolled train movement causes an accident or derailment, the presence of a second crewmember who failed to apply sufficient hand brakes does not negate the need for a second crewmember. Contributing causes to such derailments and other preventable accidents could include improper railroad rules or training, or a failure of the second crewmember to comply with such requirements. In contrast, the absence of the second crewmember restricts the options immediately available and potentially leaves the one-person train crewmember vulnerable, without viable mitigation measures available until assistance can arrive. This dilemma can largely be avoided with a proper risk assessment. 6 The data described in this paragraph is available or derived from data publicly available on FRA’s website. https://data.transportation.gov/stories/s/ FRA-Safety-Data/dakf-i7zd. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25054 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations Summary of Major Provisions In § 218.123, the final rule requires railroads to staff every train operation with a minimum of two crewmembers (including a locomotive engineer and an additional crewmember who will typically be a conductor) that travel with the train and can directly communicate with each other even if one crewmember is not in the locomotive cab, with certain one-person train crew exceptions permitted under specified circumstances. Sections 218.125 through 218.131 of this final rule provide criteria for instituting one-person train crew operations in certain circumstances through exceptions to the twocrewmember mandate, conditional exceptions based on the type of operation, or a special approval process option. These avenues of relief address operations by small businesses, which for purposes of this rulemaking are primarily short lines and regional railroads. The final rule will give small businesses greater flexibility without sacrificing safety, since the operations of railroads that qualify as small businesses are generally less complex than the operations of Class I railroads. Sections 218.129 and 218.131 of this final rule require each railroad with certain types of one-person train crew operations to abide by minimum requirements notably to: (1) prevent uncontrolled train movements if a oneperson train crew were to become incapacitated; (2) maintain communication between a railroad employee, typically a dispatcher, a supervisor or manager, or an intermittently assisting crewmember, and the one-person train crewmember to convey operational instructions and ensure the one-person crewmember’s personal safety; (3) track the location of a train operated by a one-person crew in case communication is lost and a rescue operation needs to be initiated; and (4) establish protocols that ensure rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations, such as an accidental or nonaccidental release of any hazardous material, with the one-person train crew operation. Section 218.129 of this final rule, which contains conditional exceptions based on the type of operation, requires the lead locomotive of certain operations with a one-person crew be equipped with an alerter 7 and that the 7 49 CFR 229.5 (defining alerter as a device or system installed in the locomotive cab to promote continuous, active locomotive engineer VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 crewmember must test the alerter to confirm it is working before departure. Without a working alerter on the controlling locomotive, if a one-person train crew becomes incapacitated while the train is moving, the train would continue to operate down the track out of control without another crewmember on-board who could apply the emergency brake. In contrast, with an alerter, the train would be stopped with an emergency brake application after a designated period of inactivity by the crewmember.8 In addition to an alerter requirement for certain one-person train crew operations in § 218.129, the final rule establishes other minimum safety requirements depending on the type of one-person train crew operation, such as for Class II and III legacy freight train operations (i.e., currently existing oneperson crew operations established for at least two years before the effective date of the final rule), certain other Class II and III freight railroad train operations, work train operations, helper service train operations, and lite locomotive train operations. For instance, the final rule requires that each railroad with these types of operations, excepted from the final rule’s two-crewmember mandate, must adopt and comply with operating rules that provide for regular and effective communication with a one-person train crew to ensure the safety of the train and that one-person train crewmember’s safety. Short lines do not always use dispatchers, and short line trains may not have a working radio or other working wireless communications in the cab of a controlling locomotive, so the requirement to provide for regular and effective communication is an important safeguard.9 Further, the final rule requires that each railroad with these types of one-person train crew attentiveness by monitoring select locomotive engineer-induced control activities. If fluctuation of a monitored locomotive engineer-induced control activity is not detected within a predetermined time, a sequence of audible and visual alarms is activated to progressively prompt a response by the locomotive engineer. Failure by the locomotive engineer to institute a change of state in a monitored control, or acknowledge the alerter alarm activity through a manual reset provision, results in a penalty brake application that brings the locomotive or train to a stop). 8 See id. and see e.g., 49 CFR 229.140 (requiring that an alerter warning timing cycle interval be based on a formula that includes a calculation of train speed and that for locomotives operating at speeds below 20 mph, the interval shall be between 110 seconds and 130 seconds). 9 49 CFR 220.9; 63 FR 47182, 47188 (Sept. 4, 1998) (explaining in the section-by-section analysis that ‘‘[n]o communication equipment is required if a train does not transport passengers or hazardous material and does not engage in joint operations or operate at greater than 25 miles per hour’’). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 operations adopt and comply with operating rules providing for mitigation measures that are as safe or safer than a two-person minimum train crew operation to ensure the railroad will address certain situations where a second crewmember would typically assist with mitigation, such as when responding to accidents, derailments, releases of hazardous materials, and requests from an emergency responder to unblock a highway-rail grade crossing in response to a potentially lifethreatening situation. The final rule requires that each Class II and III freight railroad that (a) plans to initiate a oneperson train crew operation after the final rule’s effective date and (b) will not be transporting certain types or quantities of hazardous materials determined to pose the highest risk in transportation, must provide FRA with written notification of the operation before commencing the operation, in addition to complying with the alerter, communication, and mitigation measures requirements. The final rule establishes an implementation schedule in § 218.129 that phases in compliance for certain specified one-person train crew operations, such as for each Class II and III railroad with a legacy one-person train crew freight train operation, that provides FRA with written notice of the operation, and for any railroad with a one-person train crew work train operation, helper service train operation, or lite locomotive train operation. The implementation schedule requires these specified exceptions to the two-crewmember mandate to be governed by operating rules addressing the communication requirements and mitigation measures requirements no later than 90 days from the effective date of this final rule, and the working alerter requirement to be met no later than two years from the effective date of this final rule. FRA encourages each railroad with one or more of these types of one-person train crew operations to implement the requirements sooner than the implementation schedule requires but finds that the schedule will provide each railroad with sufficient time either to comply with the alerter, communication, and mitigation measures requirements or provide for a second crewmember. To ensure that each railroad adequately identifies hazards and mitigates risks when initiating or continuing certain new one-person train crew operations, § 218.131 of this final rule requires a railroad’s petition for special approval of a one-person train crew operation to include a risk E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 assessment. The purpose of a risk assessment is to evaluate risk in an objective manner by following a decision-making process designed to systematically identify hazards, assess the degree of risk associated with those hazards, and based on those assessed risks, identify and implement measures to minimize or mitigate the risks to an acceptable level. Except for certain oneperson legacy operations,10 FRA will require a risk assessment and a special approval process for most one-person train crew operations that will be 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. The requirements in the final rule focus on known safety and security risks associated with operating trains transporting large amounts of hazardous materials and with transporting the hazardous materials known to present the greatest safety and security risks. As explained in the NPRM, FRA considers: train crewmembers to be ‘‘hazmat employees’’ requiring specific types of training; that these training requirements are substantial; that these various types of training are required initially and recurrently at least once every three years; and that, in addition to FRA, there are Federal agencies that enforce requirements regarding the safety and security of hazardous materials shipments.11 Thus, the transportation of hazardous materials raises various specific safety hazards, such as the potential for an accidental or non-accidental release of a hazardous material, that would typically create additional tasks for a train crew to communicate information about an immediate or developing safety situation and/or take immediate or other appropriate action to mitigate its consequences, when safe to do so. For these reasons, the presence of certain types or quantities of hazardous 10 Among other operations, § 218.129(a)(1) does not require a risk assessment or a special approval process for a Class II and III railroad’s legacy oneperson train crew freight operation, i.e., an operation existing before the effective date of the final rule, that has been established for at least two years before the effective date of the final rule. However, such a freight railroad with a legacy oneperson train crew operation must provide certain information about the operation in a written notification to FRA, and the railroad will be required to establish operating rules addressing the communication requirements and mitigation measures requirements no later than 90 days from the effective date of this final rule and to meet the working alerter requirement no later than two years from the effective date of this final rule. 11 87 FR 45576–78. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 materials creates the potential for a greater negative consequence than when a train does not contain such materials. Without a properly completed risk assessment, FRA would be unable to accurately assess whether a railroad has taken appropriate measures to compensate for the removal of a second train crewmember. In the circumstance that a railroad wants to continue a oneperson train crew operation that does not meet the legacy operation conditions, the final rule provides conditions under which a railroad may continue those operations while it drafts and submits a special approval petition and awaits FRA’s decision on that petition. As FRA explained in the NPRM, passenger and tourist train operations normally have a locomotive engineer located in the locomotive cab, and a passenger conductor, and potentially one or more assistant conductors, riding in the passenger cars with the passengers.12 FRA makes clear that this common crew configuration is not considered a one-person train crew operation. In § 218.125, the final rule exempts from the two-crewmember mandate specific passenger and tourist train operations that do not pose significant safety risks to railroad employees, the public, or the environment, including tourist train operations that are not part of the general system of transportation. Passenger or tourist operations that do not fall within the § 218.125 exemptions must petition FRA for a special approval under the procedures provided in § 218.131. In the context of this rulemaking, a risk assessment is the process of determining, either quantitatively or qualitatively, or both, the level of risk associated with a proposed train operation staffed with a one-person train crew, including mitigating the risks to an acceptable level. Section 218.133 of this final rule provides the minimum content that must be included in a railroad’s risk assessment and the procedures for petitioning FRA to use an alternate methodology for assessing the risk of an operation utilizing a oneperson train crew. This final rule adds appendix E to part 218 to provide guidance on how a railroad may prepare a risk-based hazard analysis, as part of its risk assessment, and compare the risks to determine if a proposed oneperson train crew operation will be as safe or safer than a two-person minimum train crew operation, when all mitigations are in place. 12 87 PO 00000 FR 45579–80. Frm 00005 Fmt 4701 Sfmt 4700 25055 In § 218.135, the final rule specifies how a railroad may petition FRA for special approval of a one-person train crew operation not covered by an exception. The special approval procedure requires FRA to publish a notice in the Federal Register soliciting public comment on each petition. All documents will be filed in a public docket and will be accessible through the internet. The special approval procedure permits FRA to reopen consideration of the petition for cause stated. When FRA 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, a railroad making a material modification to an operation, previously approved by FRA, will be required to file both a description of the modification and either a new or updated risk assessment, at least 60 days before proposing to implement any such modification. FRA is requiring that a material modification not be implemented until approved. The 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 of that operation even in the absence of this rule. Section 218.137 of this final rule includes an annual reporting requirement for railroads that receive special approval to conduct an operation with a one-person train crew under this subpart. The annual railroad responsibilities after receipt of special approval include a requirement to conduct a formal review and analysis of those operations. The annual reporting requirement ensures that each railroad will regularly review the safety of its operation and the accuracy of its risk assessment and will provide FRA with sufficient data to identify and analyze any safety trends in the approved operation. Further, the annual reporting requirement aligns with the general administration of FRA’s safety program and fulfilment of its statutory requirements.13 Finally, as explained in greater detail in the discussion of comments and conclusions, the final rule clarifies and updates the NPRM in some respects based upon the comments received. For instance, as the NPRM did not define what FRA meant by the term ‘‘oneperson train crew’’ and commenters 13 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). E:\FR\FM\09APR4.SGM 09APR4 25056 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations expressed confusion, FRA has clarified that a ‘‘one-person train crew’’ means: (1) only one person is assigned to the train as the train crew and that single, assigned person will be performing the duties of both the locomotive engineer and the conductor; or (2) two or more persons are assigned to a train as the train’s crew, but only the locomotive engineer travels on the train when the train is moving because the remainder of the train crew, including the conductor if the locomotive engineer is not the assigned conductor, is assigned to intermittently assist the train’s movements. The requirements in this final rule will not apply to a train operation controlled by a remote control operator, even if that remotely controlled train is operated by a oneperson train crew, because of the protections already provided for remote control operations under existing requirements in FRA’s railroad locomotive safety standards, including a harness with a breakaway safety feature, an operator alertness device, and an operator tilt feature with an automatic notification to the railroad to enable prompt attention in the event the tilt feature is activated.14 There are two existing passenger train operations with one-person train crews for which FRA has already approved the operation’s required passenger train emergency preparedness plans under existing regulatory requirements, making it unnecessary for those railroads to submit a special approval petition to FRA as proposed. The final rule does ddrumheller on DSK120RN23PROD with RULES4 14 See 49 CFR 229.15 (requiring design, operation, inspection, testing, and repair standards for remote control locomotives). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 not include the proposed requirement for railroads seeking to implement automated operations to file a petition seeking FRA’s special approval. Such a requirement is unnecessary because railroads would still need to seek waivers, regulatory changes, or other FRA approval if the technology for the automated operations does not comply with other rail safety requirements. The final rule contains some clarifications and updates from the NPRM in how it treats freight railroads, especially Class II and III railroads that include the short line and regional railroads. For instance, the final rule will not prohibit all one-person train crew freight operations hauling certain types or quantities of hazardous materials, as the final rule provides for some exceptions for existing or initiating operations. Those Class II and III railroads with a legacy one-person train crew freight operation that is established at least two years before the effective date of this final rule will not need FRA’s special approval to continue the operation as proposed but will need to provide FRA with a detailed written notice describing the parameters of the operation within 90 days of the effective date of the final rule. Similarly, the final rule does not include a requirement for Class II and III railroads initiating a new, non-legacy, one-person train crew freight operation not transporting hazardous materials of the types or quantities specified to petition FRA for special approval and, instead, permits such operations, under certain conditions—including when the railroad provides FRA with a detailed written notice describing the parameters of the operation before commencing the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 operation. The exceptions in the final rule for Class II and III railroads have made unnecessary the narrower, proposed small railroad exception, which would have applied only to small railroads with fewer than 400,000 annual employee work hours, and thus the final rule does not include that proposed exception. Although various proposed exceptions contained additional safety requirements, the final rule streamlined those additional requirements and has established a compliance schedule for implementing them rather than the proposal that would have required implementation on the effective date of the final rule. The final rule requires additional safety conditions to be met for the proposed one-person crew helper service and lite locomotive(s) consist exceptions as those one-person crew train crew operations would pose the same safety concerns as other exceptions in the final rule that require additional safety conditions to be met. In addition, FRA has modified the risk assessment requirements, allowing a railroad to make its determination either quantitatively or qualitatively, or both, rather than only quantitatively as expressly proposed. Finally, FRA has changed the review standard for a special approval petition from determining that an operation is ‘‘consistent with railroad safety’’ to determining whether approving the operation described in the petition is ‘‘as safe or safer’’ than a two-person train crew operation, as it will more clearly allow each railroad to compare the operation to the baseline of a twocrewmember operation. E:\FR\FM\09APR4.SGM 09APR4 25057 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations IMPLEMENTATION SCHEDULE FOR ONE-PERSON TRAIN CREW OPERATIONS 15 Type of one-person operation Class II/III legacy freight (existing 2 years) 22. Class II/III freight non-legacy or new, and no prohibited hazmat 23. Work trains not exceeding 4,000 trailing tons; 24 Helper service; 25 and, Lite locomotive(s) 26. Existing but non-legacy (existing, but less than 2 years) option to continue pending FRA-approval 27. Other new (freight with or without prohibited hazmat, passenger, or tourist) operations 29. Petition for special approval with risk assessment for oneperson operation 17 Add operating rules to address safety of certain situations 18 Add operating rules for one-person crew member’s safety 19 Add alerters to locomotives and add associated operating rules 20 September 6, 2024 Not Applicable (N/A) September 6, 2024 September 6, 2024 June 9, 2026 ........... N/A. Yes, provide before commencing operation. N/A .......................... N/A .......................... Yes, comply when commencing operation. September 6, 2024 Yes, comply when commencing operation. June 9, 2026 ........... N/A. N/A .......................... Yes, comply when commencing operation. September 6, 2024 N/A. June 23, 2024 28 ..... August 7, 2024 ....... Yes, provide as part of special approval petition. Yes, provide as part of special approval petition. Yes, provide as part of special approval petition. Yes, provide no later than March 31 of the following year. N/A .......................... Yes .......................... Yes, provide as part of special approval petition. Yes, provide as part of special approval petition. Yes, provide as part of special approval petition. Yes, provide no later than March 31 of the following year. Notify FRA of oneperson operation 16 Costs and Benefits FRA has analyzed the economic impact of this final rule. FRA estimated the costs associated with alerters, operating rules, notification to FRA, risk assessments and special approvals, annual reporting after receipt of special approval, and Government administration. FRA qualitatively discusses the benefits but does not have sufficient data to quantify those benefits. The following types of railroads with one-person train crew operations are required, based on a compliance date schedule, to: (1) notify FRA; (2) adopt and comply with operating rules necessary to ensure the one-person train crewmember’s safety and that the railroad is prepared to take appropriate mitigation measures in response to certain safety-critical situations; and (3) equip a one-person train crew’s controlling locomotive with an alerter: • Class II and Class III freight railroads with a legacy one-person train crew operation established for at least two years before the effective date of the final rule. • Class II and Class III freight railroads with a non-legacy one-person train crew operation that do not transport specific types and quantities of hazardous materials as specified in § 218.123(c). The following types of railroads with a one-person train crew operation require special approval from FRA and must conduct a risk assessment: • All Class I railroads and all oneperson passenger railroad operations established after the effective date of the final rule. • All Class II and III freight railroads with a non-legacy one-person train crew Annual review analysis report 21 operation that transports certain types and quantities of hazardous materials as specified in § 218.123(c). Work train operations, helper service, and lite locomotive operations are required, based on a compliance date schedule, to: (1) adopt and comply with operating rules necessary to ensure the one-person train crewmember’s safety and that the railroad is prepared to take appropriate mitigation measures in response to certain safety-critical situations; and (2) equip a one-person train crew’s controlling locomotive with an alerter. FRA estimates the 10-year costs of the final rule to be approximately $6.6 million, discounted at 7 percent. The annualized costs will be approximately $0.9 million discounted at 7 percent. The following table shows the total costs of this final rule, over the 10-year analysis period. TOTAL 10-YEAR DISCOUNTED COSTS [2022 Dollars] 30 Total cost, 7 percent ($) ddrumheller on DSK120RN23PROD with RULES4 Category Alerters (Legacy Operations) ........................................................................... Alerters (New Operations) ............................................................................... Operating Rules (Existing Operations) ............................................................ Operating Rules (New Operations) ................................................................. Notification (Existing Operations) .................................................................... Notification (New Operations) .......................................................................... Risk Assessment and Special Approval (Class I) ........................................... Risk Assessment and Special Approval (Class II and III) ............................... 15 This implementation schedule summarizes the requirements and is not intended to substitute for an exact description of the complete requirements. 16 § 218.129(b). 17 § 218.131 through § 218.135. 18 § 218.129(c)(1). 19 § 218.129(c)(2). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 20 § 218.129(c)(3). 23 § 218.129(a)(2). 24 § 218.129(a)(3). 25 § 218.129(a)(4). 26 § 218.129(a)(5). Fmt 4701 2,217,233 2,483,470 119,954 308,591 185,114 122,593 570,571 164,506 309,871 320,535 17,079 39,983 26,356 15,823 79,837 23,129 Annualized cost, 3 percent ($) 259,927 291,138 14,062 36,176 21,701 14,372 66,888 19,285 28 § 218.131(a)(2)(i). Unlike the other notification requirements, this notification can be limited to a summary of the operation and the name, title, address, telephone number, and email address of the primary person(s) to be contacted regarding the written notice and the operation. 29 § 218.131. 22 § 218.129(a)(1). Frm 00007 Annualized cost, 7 percent ($) 27 § 218.131(a)(2). 21 § 218.137. PO 00000 2,176,402 2,251,306 119,954 280,824 185,114 111,133 560,745 162,446 Total cost, 3 percent ($) Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 25058 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations TOTAL 10-YEAR DISCOUNTED COSTS—Continued [2022 Dollars] 30 Total cost, 7 percent ($) Category Annualized cost, 7 percent ($) Annualized cost, 3 percent ($) Risk Assessment (Material Modifications) ....................................................... Annual Reporting ............................................................................................. Government Administrative Cost ..................................................................... 93,031 182,821 513,100 111,178 221,284 579,523 13,246 26,030 73,054 13,033 25,941 67,938 Total Costs ............................................................................................... 6,636,876 7,084,016 944,942 830,463 The primary benefit of this rule is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions. This final rule will also ensure that several significant operational safety issues with oneperson train crew are addressed and allow FRA to collect information and data on one-person train crews. For instance, this final rule addresses a safety issue by requiring alerters for Class II and III railroads operating with a one-person train crew that do not already have these safety devices installed on their locomotives for that type of operation. Alerters will ensure that if a crewmember becomes physically unresponsive, the train will apply emergency brakes—a function typically left to a conductor or other second crewmember. This final rule also ensures railroads address safety issues that may arise with one-person train crew operations by requiring operating rules that address the communication and safety of the one-person train crew. To operate with one-person train crews, freight railroads transporting certain types and quantities of hazardous materials must identify, evaluate, and address safety concerns that may arise from such operations by submitting a risk assessment to FRA for approval unless the railroad is a Class II or III short line or regional railroad and has established a legacy operation under the exception.31 The loss of a second crewmember to perform safety functions creates new ddrumheller on DSK120RN23PROD with RULES4 Total cost, 3 percent ($) 30 Numbers in this table and subsequent tables may not sum due to rounding. As discussed further in section VI.I of the RIA, quantified costs do not include costs that could be incurred in order to mitigate risks associated with a reduction in the number of crewmembers. The costs for operating rules (existing operations) and notification (existing operations) will solely be incurred in year 1. Therefore, the discounted costs are the same for 7% and 3% (since values are not discounted in year 1). However, when annualizing costs over 10 years, the discounted costs at 7% and 3% are different because they are annualized with different discount rates. 31 §§ 218.129(a)(1) and 218.131. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 hazards and/or increases the risk of certain existing hazards unless mitigating actions are taken.32 The safety requirements in this final rule will allow the rail industry to integrate technologies to facilitate operations with a one-person train crew, but under the condition that safety will not be degraded. Legal Authority FRA is establishing regulations concerning train crew size safety requirements based on the statutory general authority of the Secretary of Transportation (Secretary). The general authority states, in relevant part, that the Secretary ‘‘as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.’’ 33 The Secretary delegated this authority to the Federal Railroad Administrator.34 Additionally, as described below, the Secretary has the specific statutory duty to prescribe regulations and issue orders for the certification of any train crewmembers who operate a locomotive or are assigned train conductors. By statute, the Secretary is required to ‘‘prescribe regulations and issue orders to establish a program requiring the licensing or certification . . . of any operator of a locomotive.’’ 35 FRA fulfilled that statutory requirement in 1991 by issuing a regulation requiring each railroad to file a locomotive engineer certification program with FRA.36 Each railroad’s program must specify how the railroad plans to make the determinations necessary to certify each of its locomotive engineers, as well as ensure that the certified locomotive engineers of other railroads are qualified to operate safely on the controlling 32 As explained in the NPRM, ‘‘the implementation of a one-person operation, without any off-setting measures, may render existing rail safety requirements either less effective or ineffective.’’ 87 FR 45573. 33 49 U.S.C. 20103. 34 49 CFR 1.89(a); 49 U.S.C. 103(g). 35 49 U.S.C. 20135. 36 56 FR 28254 (June 19, 1991), 49 CFR part 240. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 railroad’s track.37 A locomotive engineer’s main task is to operate the train safely. Other important tasks central to safe operation include: ensuring that the locomotive mechanical requirements are met; coordinating with the conductor about operational details; and, under the conductor’s supervision, interpreting train orders, signals, and operating rules. FRA also administers and enforces statutorily mandated 38 conductor certification requirements.39 FRA defines a conductor as the crewmember in charge of a train or yard crew,40 and the conductor’s job requires supervising train operations so they are safe and efficient. The conductor’s responsibilities include: managing the train consist; coordinating with the locomotive engineer for safe and efficient en route operation; interacting with dispatchers, roadway workers, and others outside the locomotive cab; and dealing with unexpected situations (e.g., mechanical problems).41 In addition, as locomotive and train technologies have become more complex in recent years, a conductor (or second crewmember) can assist a locomotive engineer by responding to technology prompts or conveying information displayed so that the engineer can maintain focus on the train’s controls and movement. The purpose of the conductor certification regulation is to ensure that only those persons meeting minimum Federal safety standards serve as conductors. 37 49 CFR part 240, subpart B—Component Elements of the Certification Process, and § 240.229 (requiring certain action on the part of a railroad controlling the conduct of joint operations with another railroad). Additional guidance was provided in an interpretation published August 29, 2008. 73 FR 50883. 38 49 U.S.C. 20163, ‘‘Certification of train conductors.’’ 39 49 CFR part 242, ‘‘Qualification and Certification of Conductors.’’ 40 49 CFR 242.7 (defining ‘‘conductor’’). 41 Rosenhand, Hadar, Emilie Roth, and Jordan Multer, Cognitive and Collaborative Demands of Freight Conductor Activities: Results and Implications of a Cognitive Task Analysis, FRA (July 2012). E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations When FRA published the conductor certification final rule, the agency made clear that the rule should not be read as FRA’s endorsement of any particular crew consist arrangement.42 However, if only one railroad employee is assigned as a train crew, the conductor certification rule requires that the single assigned crewmember be certified as both a locomotive engineer and a conductor.43 This final rule maintains that one-person train crew option but adds restrictions to ensure safety, based on the type of operation. In this regard, the final rule is an element of FRA’s holistic approach to address a range of hazards related to the operation of trains. As noted above, FRA is authorized by statute to prescribe regulations and issue orders for ‘‘every area of railroad safety’’ supplementing laws and regulations in effect on October 16, 1970, as well as to continue to administer and enforce specific statutory mandates, including locomotive engineer and conductor certification requirements.44 Specifically, given FRA’s mandate to ‘‘consider the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in railroad transportation,’’ 45 FRA finds issuance of this final rule on train crew size safety both inherent in its statutory authority and in fulfillment of its charge from Congress. However, FRA recognizes that certain provisions focus on unique factors. Therefore, FRA finds that the various provisions of this final rule are severable and able to operate functionally if severed from each other. In the event a court were to invalidate one or more of this final rule’s unique provisions, the remaining provisions should stand, thus allowing FRA to continue to fulfill its congressionally authorized role. ddrumheller on DSK120RN23PROD with RULES4 II. Discussion of Comments and FRA’s Conclusions A. Overview of Comments On July 28, 2022, FRA published the NPRM proposing train crew size safety requirements and provided commenters 60 days to file comments.46 On September 22, 2022, FRA extended the comment period by an additional 67 days.47 On October 27, 2022, FRA scheduled a public hearing for 42 76 FR 69802, 69825 (Nov. 9, 2011). CFR 240.308(c) and 242.213(d). 44 See 49 U.S.C. 103, 20103(a). 45 Id. at 103(c). 46 87 FR 45564. 47 87 FR 57863. 43 49 VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 December 14, 2022, and extended the comment period to December 21, 2022, an additional 19 days, to provide the public with additional time to comment on the proposed rule or submit a response to views or information provided at the public hearing, or both.48 A transcript of the public hearing is available in the docket.49 During the 146-day comment period, the docket recorded approximately 13,576 separate entries for written comments with about 13,441 of those comments filed by individuals in their own names. In other words, about 99 percent of the written comments submitted to the docket were from individual commenters who were not filing their comment officially on behalf of an organization, group, or business. Of those individual commenters, about 13,377 expressed support for the NPRM and 64 opposed it, meaning less than approximately a half percent of individual commenters expressed opposition to the proposed rule. FRA estimates that more than half of the comments filed by individual citizen commenters used a form letter created by a labor organization or other organized interest group. In general, commenters who signed form letters in support of a two-person train crew mandate expressed the same types of safety concerns FRA raised in the NPRM. This final rule addresses those safety concerns to ensure the safety of rail operations, one-person train crewmembers, and the public. When summarizing a form letter, a footnote will cite to a single example. The docket’s recorded number of comments does not include the comments received through oral testimony at the public hearing on December 14, 2022, and there are other reasons why the 13,576 count should be considered only an approximation. As some entries included multiple comments or were signed by multiple people, there were likely more commenters than the number of comments recorded by the docket. Further, FRA discovered that some commenters sent in multiple comments. Because the comment period was extended twice, some commenters sent in a shorter comment before any extensions were granted, and then may have sent in more information as they developed further input. Every comment received was considered by the agency in finalizing this rule. The order of the topics or comments discussed in this document is not 48 87 FR 65021. 49 https://www.regulations.gov/document/FRA- 2021-0032-13184. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 25059 intended to reflect the significance of the comment raised or the standing of the commenter. Additionally, this summary of the comments is intended to provide both a general understanding of the overall scope and themes raised by the commenters, as well as give some specific descriptions to provide context. Not every comment is described in this summary and, whenever counts of comments are provided, the counts are approximate as some comments could not be easily grouped with others. Comments regarding the proposed Regulatory Impact Analysis (RIA) are addressed in the RIA to the final rule. In addition to the following summary of the general comments here, FRA used computer-based data analysis to identify common elements among comments.50 FRA’s computer-based data analysis often provided confirmation of FRA’s manual estimates and insight, and additional insight into the written comments that would have been particularly difficult to discern based on human review alone. For example, the computer-based analysis more accurately identified comments that were identical than a human could track manually.51 The computer-based data analysis could also readily find comments that used the same key words to allow FRA to review those comments together.52 There were also many short comments and the computer-based data analysis was able to pick out those shorter comments and display them all in a few pages that could be more easily accessed and read.53 The computerbased approach used natural language processing, specifically topic modeling, to extract major themes for the comments received based on the most frequently used words and phrases, which then assisted FRA in identifying the central themes raised by the commenters.54 Based on the comments received, FRA is revising aspects of the approach reflected in the NPRM, which can be 50 The 23-page computer-based data analysis report of the written comments was placed in the docket, FRA–2021–0032, with the other agency documents under the ‘‘Browse Documents’’ tab. 51 The computer-based data analysis found one particular comment duplicated 2,065 times and which cites FRA–2021–0032–1914 as an example. 52 For example, on pages 9–10 of the computerbased data analysis report, the term ‘‘cut crossings’’ was found used in approximately 45 comments. 53 For instance, the computer-based data analysis report displays comments with less than 75 characters on pages 11–14. 54 On pages 15–21, the computer-based data analysis report includes examples of the 10 themes identified when top words, i.e., commonly used words, were extracted through topic modeling. For instance, a select group of top words included: emergency, life medical, community, supply chain, death, derailments, and vulnerable. E:\FR\FM\09APR4.SGM 09APR4 25060 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations summarized as follows: (1) the final rule removes the previously-proposed strict prohibition on the transportation of some hazardous materials with a oneperson train crew; (2) comments on FRA’s proposed RIA led FRA to consider additional information and refine its analysis; (3) comments requesting more time to comply with any new minimum requirements to allow for planning, operational changes, or hiring and training of additional crewmembers led FRA to extend those compliance dates; (4) comments regarding the complexity of, and data requirements for, the risk assessment, along with concerns regarding the analytical methods required, led FRA to simplify the requirement, change the review standard so that a railroad can compare the operation to the baseline of a two-crewmember operation, provide guidance in an appendix, and retain an option for railroads to request use of alternative risk assessment methodologies as part of the special approval procedure; (5) comments outlining anticipated difficulties in complying with the risk assessment proposed in the NPRM led FRA to remove the risk assessment requirement and substitute a notification requirement for Class II or III freight railroads under certain types of specified operations; (6) comments about the proposed requirements for remote control operations, in addition to FRA’s analysis that existing regulations already provided for minimum safety protections, led FRA to remove the subject from the final rule; and (7) comments on the potential preemptive effect of a Federal rail safety regulation on currently existing State-by-State regulation relating to the subject matter of crew size safety requirements led FRA to clarify what the agency understands will be the legal impact of this final rule. ddrumheller on DSK120RN23PROD with RULES4 B. Preemption In the NPRM, FRA included in the background a summary of prior crew staffing rulemaking efforts. The summary discussed the decision issued by the U.S. Court of Appeals for the Ninth Circuit vacating FRA’s withdrawal of the 2016 NPRM, as well as FRA’s preemption determination contained in that withdrawal, and remanding the rulemaking to FRA.55 The NPRM also included discussion of FRA’s legal authority to issue the 55 87 FR at 45568–70 (citing Transp. Div. of the Int’l Ass’n of Sheet Metal, Air, Rail & Transp. Workers v. FRA, 988 F.3d 1170 (9th Cir. 2021). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 regulation 56 and the statutory preemption provisions found at 49 U.S.C. 20106.57 As noted in the NPRM, a final rule issued by FRA ‘‘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.’’ 58 The NPRM then requested comments on the issue of preemption. The California Public Utilities Commission (CPUC) commented that the final rule should reflect or exceed ‘‘the strongest state laws that currently exist.’’ 59 For that reason, CPUC is opposed to the NPRM to the extent it could undermine California’s law which has a more stringent two-person crew mandate than FRA’s proposed rule with exemptions. CPUC requested that FRA ‘‘provide a stronger role for State agencies, such as [CPUC, and suggested that] FRA could require a railroad to seek a [S]tate agency’s concurrence prior to applying for an exemption.’’ 60 CPUC commented that because ‘‘a [S]tate will have unique information regarding specific hazards or environmental concerns within [the State’s] borders . . . [a] petitioning railroad should solicit the [S]tate agency’s input . . . and the petitioning railroad should include [that information] in its petition to the FRA . . . .’’ 61 CPUC also requested that FRA ‘‘establish a clearly defined role for [S]tate agencies to provide input and the ability to revoke [an exemption] if safety issues arise that make the exemption untenable.’’ 62 A one-page letter signed by 19 senators from the Washington State Legislature commented that Washington has a law regulating train crew size and urged FRA not to preempt train crew 56 87 FR at 45567 and 49 U.S.C. 20103 (citing, in relevant part, that the Secretary ‘‘as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970’’). 57 87 FR at 45570–71 (citing the statutory preemption provisions in 49 U.S.C. 20106 that mandate that laws, regulations, and orders ‘‘related to railroad safety’’ be nationally uniform, and that a Federal regulation or order covers the subject matter of a State law where ‘‘the [F]ederal regulations substantially subsume the subject matter of the relevant [S]tate law’’). 58 87 FR at 45571. As noted below, there is a narrow exception to the preemption provisions that allows non-Federal regulation of ‘‘essentially local’’ safety hazards. 49 U.S.C. 20106(a)(2). 59 FRA–2021–0032–12258 at 2. CPUC’s comment did not distinguish between exemptions and oneperson train crew operations proposed for a special approval process, calling the portions of the NPRM that would allow for fewer than two train crewmembers an ‘‘exemption process.’’ 60 Id. 61 Id. 62 Id. at 3. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 size laws already passed by States when those laws meet or exceed Federal crew size standards.63 Similarly, the Washington State Legislative Board of the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART–TD) commented that ‘‘while [it] strongly support[s] FRA’s adopting a national minimum train crew size rule [it] oppose[s] any regulatory language that would preempt [S]tate laws and regulations that are equal to or more stringent than a [F]ederal’’ requirement.64 Many individuals and labor organizations commented that they supported the NPRM but wanted FRA to consider a way to avoid preempting State laws that have more stringent requirements. For example, the Transportation Trades Department, AFL–CIO (TTD) would like FRA’s regulation to establish minimum safety requirements but not preempt States from setting more stringent requirements.65 SMART–TD’s Kansas State Legislative Board, however, supported eliminating the existing patchwork of State laws regarding crew size and creating a nationwide standard.66 A comment in support of FRA’s preemption position came from 54 Members of the U.S. House of Representatives, recognizing that the State laws mandating minimum crew size requirements have been overturned by courts finding that the Federal government has jurisdiction over this subject matter.67 For this reason, these U.S. House Members commented that it is FRA’s responsibility to address this safety issue, calling it urgent because of the drastic changes in the freight rail industry over the last several years.’’ 68 Norfolk Southern Railway Company (NS) commented that while it agrees that a national rule addressing crew size would be consistent with Congress’ express goal that Federal laws and regulations relating to railroad safety create national uniformity, it opposes this rule for a variety of reasons, 63 FRA–2021–0032–12202. 64 FRA–2021–0032–12917 at 1. The State of Washington’s Utilities and Transportation Commission also commented in strong support of the NPRM, citing the importance to protect the public and the environment from potential disaster involving hazardous train derailments during a period in which railroads are using longer trains, without mentioning preemption of Washington State’s laws. FRA–2021–0032–12746. 65 FRA–2021–0032–12306 and FRA–2021–0032– 13049. 66 FRA–2021–0032–9397. 67 FRA–2021–0032–12809 (a duplicate comment was filed at FRA–2021–0032–12971). 68 Id. at 2. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations including that the NPRM would be ‘‘burdensome’’ and that FRA neglected to mention in the NPRM that some States’ laws have been invalidated.69 NS stated that ‘‘[p]reemption cannot justify FRA’s imposition of this particular rule’’ because of the harm the NPRM could cause the rail industry.70 SMART–TD’s Illinois Legislative Board (SMART–TD ILB) commented in support of the NPRM and provided a supporting letter from Illinois Governor J.B. Pritzker.71 The comment stated that a court had vacated an Illinois law requiring most freight trains operating in Illinois to have an operating crew of at least two individuals 72 and that SMART–TD ILB and Governor Pritzker support the NPRM as an alternative to the preempted Illinois law. FRA’s Response As explained in the NPRM, 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 set forth a nationwide rule for crew size safety, especially operations with a one-person train crew, based on FRA’s expertise and experience in regulating safety and risks in rail operations. While courts may find that some of those State laws are preempted even without this rule, other State laws may not be challenged and found preempted, leaving an untenable inconsistency governing crew size. This final rule meets Congress’ mandate that the laws, regulations, and orders related to railroad safety be nationally uniform. While FRA intends this final rule to create a nationwide standard and anticipates that it will preempt State laws covering the same subject matter, FRA clarified in the NPRM that FRA’s statutory preemption provision includes a ‘‘narrow exception’’ 73 to FRA’s broad authority to preempt State laws. This narrow exception allows non-Federal regulation of ‘‘essentially local’’ safety hazards.74 An ‘‘essentially local safety hazard’’ is ‘‘one which is not adequately encompassed within national uniform 69 FRA–2021–0032–13045. ddrumheller on DSK120RN23PROD with RULES4 70 Id. at 6. 71 FRA–2021–0032–10530. 72 Id. at 2 (referring to, but not citing, Ind. Rail Rd. Co. v. Ill. Commerce Comm’n, 576 F. Supp. 3d 571 (N.D. Ill. 2021). 73 87 FR at 45570–71 (citing Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008) in which the court found 49 U.S.C. 20106(a) ‘‘creates a narrow exception to preemption through its savings clause’’). 74 49 U.S.C. 20106(a)(2). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 standards.’’ 75 As noted in the NPRM, some State laws governing crew size, such as those in California, Nevada, and Washington, do not, in FRA’s view, address an ‘‘essentially local’’ hazard because they would apply statewide.76 In support of this view, FRA explained in the NPRM that legislative history and subsequent judicial decisions indicate the narrow exception is intended to allow States to respond to local situations not capable of being adequately addressed in uniform national standards, but local safety hazards cannot be Statewide.77 In response to CPUC and other similar commenters who requested that FRA provide States with a clear role in FRA’s exemption provision, this final rule provides that the public may comment on any special approval petition as FRA proposed in the NPRM. FRA encourages States and their regulatory agencies to comment on requests for one-crew operations and provide any safety information or data they believe would be useful to FRA in deciding whether to approve a special approval petition for a one-person train crew operation. As an alternative to issuing a narrowly tailored State law to address any essentially local safety hazards, a State could bring any safety concerns about a particular rail operation to FRA’s attention for discussion or possible investigation. For example, a State agency that participates in investigative and surveillance activities with FRA under 49 CFR part 212 can work with FRA to enforce this final rule.78 FRA disagrees with NS’s comment that FRA is relying on preemption as a justification for the final rule. As explained above, FRA is issuing this final rule to ensure that trains are adequately staffed for their intended operation and railroads have appropriate safeguards in place for safe train operations, especially when using one-person train crews. Moreover, this final rule meets Congress’ requirement that the laws, regulations, and orders 75 Union Pacific R. Co. v. California Pub. Utils. Comm’n, 346 F.3d 851, 860 (9th Cir. 2003). 76 49 U.S.C. 20106(a)(2); H.R. Rep. No. 91–1194 (1970), reprinted in 1970 U.S.C.C.A.N. 4104, 4117 (‘‘these local hazards would not be statewide in character’’); see also Norfolk & Western Ry. Co. v. Public Utilities Comm’n of Ohio, 926 F.2d 567, 571 (6th Cir. 1991) and National Ass’n of Regulatory Util. Comm’rs v. Coleman, 542 F.2d 11, 14–15 (3d Cir. 1976) (both holding that the local hazard exception cannot be applied to uphold the application of a statewide rule). 77 87 FR at 45571 (citing H.R. Rep. No. 91–1194 (1970), reprinted in 1970 U.S.C.C.A.N. 4104, 4117). 78 Part 212 establishes standards and procedures for State participation in investigative and surveillance activities under the Federal railroad safety laws and regulations. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 25061 related to railroad safety be nationally uniform.79 Thus, FRA is not basing its justification for this final rule on preemption, but rather is noting that the national, uniform standard provided in this rule is expected to preempt State laws governing crew size. C. Comments Supporting the NPRM In the NPRM, FRA explained how the Ninth Circuit’s decision to vacate and remand the 2019 withdrawal left FRA with some choices on a path forward, and FRA exercised its discretion to choose, through this rulemaking, to reconsider numerous safety issues that may be associated with or impacted by one-person train crew operations.80 For instance, FRA revisited the lack of a Federal requirement for a systematic post-accident protocol for trains hauling freight.81 The NPRM also raised several other potential safety issues to consider, including the context that many of the Federal rail safety regulations were written with the expectation that each train would have multiple crewmembers, the safety findings drawn from research on the cognitive and collaborative demands placed on train crewmembers while operating a train, and the ability of railroads to respond to a one-person train crewmember who may become incapacitated.82 Many commenters supported FRA’s decision in the NPRM to reconsider the safety issues and propose minimum requirements for the size of train crews depending on the type of operation. These commenters are concerned, among other things, about the operational safety of a train operated by a one-person crew, the operational safeguards to protect that crewmember in various situations, and the impact of one-person train crew operations that travel through their communities as evidenced by the numerous comments received raising those concerns. 1. Labor Organizations The Brotherhood of Locomotive Engineers and Trainmen (BLET) and SMART–TD filed a joint comment stating that their unions, which represent the vast majority of operating train crew workers across the nation, support the implementation of a twoperson crew rule in the interest of public safety and request that the final 79 49 U.S.C. 20106. FR at 45571–76. 81 87 FR 45571. 82 See e.g., 49 CFR 218.99 (requiring point protection for shoving or pushing moves; 218.103– 218.107 (operational requirements for handoperated switches) and generally, 49 CFR part 239 (Passenger Train Emergency Preparedness requirements). 80 87 E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25062 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations rule ‘‘mandate that two-person crews are the standard as they have proven to be the safest and most efficient way to operate.’’ 83 In addition, the International Brotherhood of Teamsters, which includes BLET as part of the Teamsters Rail Conference, commented that it supports FRA’s efforts to promulgate the NPRM and endorsed BLET’s comment.84 The jointly filed written comment, and BLET and SMART–TD’s oral testimony at FRA’s public hearing, detailed their members’ interest in this safety rulemaking. For example, BLET and SMART–TD are concerned with the multiple steps a one-person train crew approaching a roadway work zone would need to perform alone and the risks to rail employees working on or near the track if that single crewmember made a mistake. The unions’ jointly filed comment also noted how many railroads embraced greater electronic device use, such as cellphone use, as a pivotal component of their plans to reduce crew size even though electronic device use is currently strictly regulated because of those devices’ potential for distraction.85 BLET and SMART–TD also described how trains are routinely slowed by unplanned events that require someone other than the locomotive engineer to troubleshoot the problem before the train can continue and how a conductor and a locomotive engineer work as a team during any necessary troubleshooting. Moreover, the labor organizations’ jointly filed comment noted that a two-person train crew provides a backstop to human error, which is still useful with a positive train control (PTC) system, and that, even when there is a low incidence of rail accidents, the consequence of an accident can be high and thereby justify an additional fail-safe measure. BLET and SMART–TD commented that their members who have experienced PTC implementation firsthand, expressed that they want PTC as a tool but recognize that PTC was not designed to do the job of a crewmember supplementing the engineer. Further, the unions jointly commented that PTC ‘‘has introduced new complexities and levels of attention capture not seen prior to the implementation of PTC and has emphasized the need for a conductor on board due to the added level of distraction PTC has imposed upon the 83 FRA–2021–0032–13038 at 1. 84 FRA–2021–0032–13050. 85 See 49 CFR part 220, subpart C (specifying its purpose ‘‘is to reduce safety risks resulting from railroad operating employees being distracted by the inappropriate use of electronic devices, such as mobile telephones (cell phones or cellular phones) and laptop computers’’). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 engineer.’’ 86 BLET and SMART–TD commented that PTC and other technologies often involve after-market products bolted on, rather than integrated into, existing equipment which makes the locomotive cab feel crowded with technology and, in turn, can complicate the jobs of the train crewmembers. BLET and SMART–TD also commented that automated fuelsaving software programs currently are programmed without regard to bad weather or less-than-optimal conditions, potentially requiring a locomotive engineer to intervene manually. BLET and SMART–TD also commented that the industry’s increased reliance on distributed power operations (i.e., where an engineer must control two or more locomotives independently with the aid of computers) means that the locomotive engineer must direct significant attention to computer screens; in their view, the NPRM did not adequately consider the safety considerations of using a one-person train crew with a distributed power operation, which ‘‘takes much of the engineer’s attention away from the view forward.’’ 87 During the public hearing, BLET’s National Legislative Representative, who described himself as a former freight locomotive engineer on a Class I railroad for 18 years, testified in overall support of the NPRM and included comments regarding BLET’s concerns with some of the proposed exceptions to the two-person train crew mandate. BLET testified that a locomotive engineer is not a mobile member of the train crew because that person is responsible for the physical manipulation of the controls of the locomotive and the monitoring of onboard systems. BLET stated that for an engineer to leave the locomotive cab unattended as a one-person train crew, the engineer must complete a timeconsuming series of steps that includes disabling the locomotive’s controls, setting the train’s air brakes, securing the locomotive and train with hand brakes, and following rules or procedures that confirm the train is properly secured. In explaining how PTC has made a train crew’s job more difficult, BLET testified that PTC has introduced new complexities and can reduce a crewmember’s situational awareness such as when a dispatcher references a mandatory directive over the radio and a locomotive engineer must toggle between display screens to understand the directive the dispatcher is referencing. BLET raised concern that 86 FRA–2021–0032–13038 87 FRA–2021–0032–13038 PO 00000 Frm 00012 Fmt 4701 at 2. at 6. Sfmt 4700 railroads are reducing crew size to increase corporate profits while ignoring rules or cutting corners on safety. BLET’s testimony also reiterated concern in BLET and SMART–TD’s jointly filed written comment that FRA reconsider some of the proposed exceptions to a two-crewmember mandate as those operations may not as safe or simple as FRA suggested in the NPRM. During FRA’s public hearing, SMART–TD’s President testified about the general dangers of railroad work and that safety cannot be expected to improve by reducing the number of train crewmembers when the workforce is already depleted and overworked. SMART–TD’s President testified that ‘‘the carriers regularly argue that there is no data to support a two-person crew being safer than a one-person crew . . . [and t]he irony . . . is that likewise there is no data to support that a oneperson or autonomous operation is any safer than that of a two-person crew in freight operations.’’ SMART–TD’s President also described an incident when he was a locomotive engineer on a coal train and his conductor warned him of a young child on the track. SMART–TD’s President testified that he blew the horn and rang the bell, but the boy did not move, and he credited the conductor for saving the child’s life because the conductor ran out on the nose of the engine and waved in a manner that led the child to step out of the way. SMART–TD’s President concluded that his experience demonstrates the effectiveness of two crewmembers working as a team as it is important to have the conductor make track observations when a locomotive engineer may be distracted by monitoring the controls or interacting with a computer screen. SMART–TD testified that, in addition to a backup observation role, a conductor can contribute knowledge and decisionmaking judgment, especially when responding to non-routine situations. SMART–TD testified about PTC’s limitations and how a conductor can identify washouts, rockslides, fires, vehicles, and pedestrians, but PTC cannot. SMART–TD described how a one-person crew would be unlikely to assist anyone injured in a highway-rail grade crossing collision nor would the one-person crew be able to assist first responders as easily as a conductor or quickly assess damage from a derailment. During FRA’s public hearing, a member of SMART–TD who described himself as a conductor with 18 years of experience stated that the proposed crew size safety requirements are E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations important because the workforce is already strained and the recent doubling of one-and-a-half-mile-long trains would make a complex job unsafe with a oneperson train crew.88 This SMART–TD member described the importance of multi-person crews being able to mentor one another and provide backup. Specifically, he explained that a oneperson crew will be physically and psychologically challenged because of the jobs’ many demands, such as the need to look at three different computer screens in the locomotive cab while continuing to monitor conditions ahead, and due to working alone without human interaction or even the freedom to listen to music. He also stated that a person working alone will lose a layer of safety that is not fully replaced by PTC. Further, this SMART–TD member testified about an incident in which he was a train crewmember and the PTC system allowed his crew to operate the train with PTC enabled even though nobody entered the number of axles in the train, a potential safety concern in the way the PTC system would govern the train. This SMART–TD member also stated that, as a former U.S. Navy combat medic, he was trained to spot medical concerns and, in his rail work experience, it has been necessary for him to have fellow crewmembers removed for medical emergencies, illnesses, and fatigue. Thus, he noted that one-person train crews, who do not remove themselves from train operations when they are tired or sick, will pose a greater safety risk than twoperson train crews where the second crewmember can mitigate the risk of a sick or tired crewmember. TTD commented that it consists of 37 affiliated unions representing the totality of rail labor, including both passenger and freight rail workers, and specifically the locomotive engineer and conductor employees who will be most impacted by the NPRM.89 TTD’s President also presented oral testimony at FRA’s public hearing. Overall, TTD commented that it supported the NPRM and urged FRA to adopt more stringent requirements than proposed by eliminating or changing the option for a railroad to use ‘‘an alterative risk assessment process in lieu of the proposed risk assessment’’ and by requiring that a second crewmember be a certified conductor.90 TTD stated that 88 This SMART–TD witness at the hearing is also the Secretary of SMART–TD’s Maryland State Legislative Board as identified in that organization’s comment. FRA–2021–0032–6937. 89 FRA–2021–0032–12306 and FRA–2021–0032– 13049. 90 FRA–2021–0032–12306 and FRA–2021–0032– 13049 at 2. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 FRA’s NPRM recognized the ‘‘fundamental truths [that] . . . crew size is directly correlated to the safe operation of trains [and that] . . . reducing the number of [crewmembers] creates substantial safety risks that need to be addressed . . . [because the] crewmembers have complementary[,] but distinct[,] responsibilities.’’ 91 TTD commented that a Class I railroad’s video shown at the public hearing to demonstrate operations using groundbased conductors described a scenario occurring ‘‘under ideal circumstances in terms of [a ground-based conductor] being able to locate and access [a] site without any difficulty [as a person] arriving from off-site is likely going to be severely delayed.’’ 92 TTD also highlighted a comment from its affiliate, the International Association of Fire Fighters, that first responders on-scene rely on train crews to provide critical cargo information and services such as separating train cars, and with only one crewmember there is no redundancy and a much higher risk of first responders not receiving crucial information.93 Labor organizations, such as BLET, SMART–TD, and TTD, requested that FRA reconsider the remote control operations exception and asked whether additional regulations of remote control operations are needed to allow remote control operators to safely operate over any distance. These commenters do not seek FRA to regulate remote control operations through this rulemaking, as they viewed the proposed exception as allowing such operations without establishing other necessary safety requirements. These labor organization commenters took the position that FRA should, outside of this rulemaking, take action to review all remote control operation related accidents, regardless of whether the accidents occurred during train or switching operations, and then consider whether to seek input from FRA’s Federal advisory committee, the Railroad Safety Advisory Committee (RSAC), or otherwise initiate a rulemaking covering comprehensive safety requirements for remote control operations. The Brotherhood of Maintenance of Way Employes Division (BMWED), which represents employees who inspect, install, construct, repair, and maintain railroad track, roadbed, and related right-of-way infrastructure on all Class I railroads, advocated for a locomotive engineer and a conductor two-person train crew for every freight train operating over the general railroad system.94 BMWED’s comment stated that two-person crews provide necessary checks and balances for the operation of the train and its securement at terminal points, yards, and sidings. The American Train Dispatchers Association (ATDA) commented in support of the proposed rule, emphasizing the safety need for a dispatcher to immediately communicate instructions or orders to a train en route.95 ATDA is concerned that a oneperson train crew might not always be able to receive communications, thereby creating a substantial hazard to rail employees and the public. Also, ATDA commented that railroad safety is improved by the regular crew communications to dispatchers and that it will be unrealistic for a one-person crew to accomplish all the crew’s regular duties and continue to report other safety information, including the location of young children near the tracks, visible track- and structurerelated defects or damage, and potential problems on trains passed such as shifted loads and equipment dragging.96 The Transport Workers Union of America (TWU), which represents a variety of rail employees, including those who inspect and repair equipment and track at several Class I railroads and some of the northeast’s largest regional rail systems, commented in support of the rule, emphasizing the safety need for a second crewmember to assist carmen who are dispatched when a train develops mechanical problems en route.97 TWU explained that a single carman is often dispatched to make such a mechanical repair and, on these occasions for safety reasons, it is necessary for a conductor to assist the carman in making the inspection and necessary repairs. In addition, BLET Division 446 from Belen, New Mexico,98 described how its members operate trains over remote landscapes that are not readily accessible by motor vehicle, and thus indicated that a two-person train crew is vital to survival in medical or other emergency situations. Further, the California Labor Federation (CLF), AFL–CIO 99 noted a two-person train crew is better able to monitor events both inside and outside the locomotive cab than can a single crewmember, thereby providing greater 94 FRA–2021–0032–12213. 95 FRA–2021–0032–13016. 91 FRA–2021–0032–12306 and FRA–2021–0032– 13049 at 5. 92 FRA–2021–0032–13049 at 13. 93 FRA–2021–0032–5247. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 25063 96 Id. at 3. 97 FRA–2021–0032–12281. 98 FRA–2021–0032–8741. 99 FRA–2021–0032–10712. E:\FR\FM\09APR4.SGM 09APR4 25064 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations situational awareness. CLF also explained how a second crewmember can fill in knowledge gaps and keep the locomotive engineer alert when that engineer is fatigued.100 ddrumheller on DSK120RN23PROD with RULES4 2. Individual Commenters A short form letter was used in approximately 3,658 comments to express opposition to one-person crews, asserting that ‘‘[h]aving multiple crewmembers working at all times protects against medical emergencies and derailments.’’ 101 The form letter also suggested an economic argument that railroads were motivated to reduce train crew size by ‘‘Wall Street greed’’ and that one-person train crews could be connected to future supply chain disruptions. Further, approximately 469 commenters submitted a short form letter which stated that two pairs of eyes are better than one and compared a train crew to an airline crew, but suggested rail posed greater risks because freight trains transport hazardous or flammable materials and spent nuclear rods.102 Another form letter sent by approximately 29 individual commenters stated their shared concern that a lone crewmember would not be able to address train malfunctions or grade crossing incidents or assist emergency response personnel as quickly as a two-person crew could, leaving their community in harm’s way.103 For this reason, these commenters supported FRA’s proposal to establish minimum requirements for the size of crews operating trains. In a similar example of a form letter supporting a two-person crew mandate, FRA received nine identical comments mailed and docketed together as a single comment from individuals expressing concern that a lone crewmember would not be able to address train malfunctions or grade crossing incidents or assist emergency response personnel as quickly as a two-person crew could.104 During FRA’s public hearing, a commenter identified herself as a conductor with ten years of experience for the Union Pacific Railroad Company (UP).105 The commenter stated that she is concerned with an overreliance on technology that does not always work as intended. She also disagreed with UP’s testimony that having a conductor in a 100 A similar comment was received from the Oklahoma AFL–CIO. FRA–2021–0032–10355. 101 FRA–2021–0032–2764. 102 FRA–2021–0032–10974 is a representative example of this group of comments. 103 FRA–2021–0032–11120. 104 FRA–2021–0032–10465. 105 FRA–2021–0032–13184. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 truck would be a faster way of alleviating a mechanical repair to a train versus a conductor who travels with the train. Numerous individual commenters provided first-hand accounts of close calls and lives saved by the action of two crewmembers working as a team. These commenters largely provided anecdotal information supporting why they thought trains staffed with fewer than two persons created unsafe conditions. Individual commenters sometimes used a form letter provided by an organizing association or union but added their personalized statement to make it unique. Because there are so many of these types of comments in the record, the following examples are provided as a sampling and not an exhaustive summary. A short form letter comment supporting a two-person train crew mandate was used in approximately 2,574 comments and was written from the perspective of rail employees who are currently train crewmembers.106 The form letter captured the person’s support for FRA revisiting research described in the NPRM that scrutinizes the cognitive and collaborative demands placed on each crewmember, and how multiple crewmembers can work together as an effective, safe team. This form letter also raised concerns with technology and other job-related stressors and concluded that having a work partner helps get the job done. A commenter who identified himself as having 22 years of experience as a conductor and several leadership roles in SMART–TD supported the NPRM, as he viewed a two-person train crew requirement as vital to safe freight operations largely because of the hazards related to trains hauling hazardous materials.107 The commenter pointed to trends he has observed, stating that the length and weight of freight trains are increasing, thereby impacting the distance needed to stop the train in case of emergency and increasing the probability of an accident/incident. The commenter also stated that a derailment or accident involving a long train hauling mainly hazardous materials could pose a more widespread danger zone than a shorter train. His stated concerns included protecting communities and schools located near railroad tracks. The commenter also stated that communities impacted by stopped trains blocking crossings would be worse off because it would take significantly longer for a railroad to manually separate the train and unblock the crossing if a conductor is not on the train to assist. Further, the commenter raised the issue of how two crewmembers keep each other alert and on task, and that having an accountability partner is the number one tool used by crews to combat fatigue. An individual commented that he was a conductor on a train that struck a delivery truck at a highway-rail grade crossing.108 The commenter explained that while the locomotive engineer began the process of stopping the train, he immediately called the dispatcher to arrange for emergency first responders. According to the commenter’s description, he was off the train before it stopped so that he could run back to the crossing and help a passerby pull the unconscious truck driver out and away from the truck before the truck was engulfed in flames. He was then available to assist first responders, to split or secure the train or answer any questions as needed. The commenter contrasted his accident description with how he believes the incident would have unfolded if the train had been operated by a one-person crew. Under the commenter’s theoretical scenario, the locomotive engineer would make an emergency brake application, dial the emergency number, and provide the milepost location. The engineer would not be able to provide the dispatcher with the DOT grade crossing number until the train was stopped and the number could be safely found in reference materials. The commenter explained that with a one-person crew the dispatcher would call for emergency first responders, but the engineer could not leave the train to assist the driver because the engineer would have a duty to secure an unattended train with hand brakes first. According to the commenter, without a second crewmember, other factors would determine whether the driver would have been rescued in time, and the oneperson crewmember would feel helpless as the crewmember would be required to remain on the train unable to help anyone injured or readily assist first responders. The commenter also stated that FRA’s proposed rule was not stringent enough in that two-person train crews are necessary for all train movements to ensure safety. A commenter described a situation when he was part of a freight train crew that had an emergency brake application in a town.109 Because the train was blocking the town’s highway-rail grade crossings for at least 15 minutes and 106 FRA–2021–0032–8789. 108 FRA–2021–0032–12240. 107 FRA–2021–0032–9893. 109 FRA–2021–0032–0970. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations preventing an ambulance from crossing the tracks, a dispatcher requested that the crew cut a crossing to allow the ambulance by. The commenter is concerned that without a second crewmember, situations like this would occur, and it is unclear how long it would take a railroad to open a crossing for local emergency responders. A commenter expressed several safety concerns as a freight train conductor for over 19 years.110 For instance, the commenter expressed frustration that railroads do not keep track of incidents in which trains with two crewmembers saved lives or prevented accidents. He explained that he has crewed trains involved in accidents at rail-highway grade crossings and derailments of cars transporting hazardous materials, and how two crewmembers can more easily prevent harm to the public by taking quick action or relaying information to emergency responders. He also expressed concerns with a one-person train crew suffering from fatigue. A commenter described that he is both a locomotive engineer and conductor who has experienced firsthand why it is imperative to public safety that each train have a minimum of two crewmembers.111 The commenter described an incident in which the train he was conducting crashed into a car at a highway-rail grade crossing during winter. The commenter explained that, with two crewmembers, he was free to help the driver of the motor vehicle that was in a ditch, while the engineer stayed with the locomotive to coordinate with local emergency responders, monitor the air brake system, and perform other duties necessary to maintain the safety of rail operations. An individual commented that he has over twenty years experience as a conductor and engineer for a Class I freight railroad and raised many safety issues.112 For instance, the commenter expressed concern that a one-person train crew that significantly relies on PTC and other technologies to safeguard and operate the train will encounter difficulties when one or more technologies fail or are unavailable as the person’s ability to operate in manual mode could have deteriorated from disuse and that there are examples of this problem in the airline industry. The commenter also made a case for redundancy, noting that in the motor vehicle context, Federal law mandates cars be manufactured with seat belts and States enforce laws governing the 110 FRA–2021–0032–0594. use of seat belts even though air bags could have arguably replaced the seat belt. The commenter pointed out that, in his experience, railroads have largely held both crewmembers responsible for the safe operation of the train and compliance with operating rules and practices because doing so enhances safety. Additionally, this same commenter stated that he disagreed with railroad commenters who suggested a conductor in a truck could substitute for a conductor on the train. He commented that he is familiar with a territory that would not be accessible by truck and, therefore, a conductor in a truck would be delayed getting to and fixing a problem involving the train. In addition, the commenter stated that a locomotive engineer can often determine the approximate location of a broken knuckle and a conductor can replace it with a new knuckle as a relatively routine repair. He stated that in his short experience, he has fixed three broken knuckles and took 30 to 45 minutes to make a replacement. He also described an incident where he changed a knuckle even though the railroad sent a carman out to do it, and he was done with the repair before the carman arrived about 90 minutes later. This same commenter also described a situation with a one-person train that operates into a mile-long tunnel on the territory he works. According to the commenter, because the tunnel does not have any ventilation, if the train has any issues where it might have to stop in the tunnel, the crew is instructed to cut the crew’s locomotives from the train and get out of the tunnel before the tunnel fills with carbon monoxide. During this tunnel operation, the commenter theorized that it would be impossible for a one-person crew to create enough pin slack to separate the locomotives from the rest of the train to escape the tunnel by operating the locomotives. During FRA’s public hearing, a commenter identified herself as a BLET National Auxiliary, Second Vice President, and Legislative Representative from Lakeside, Nebraska.113 The commenter also identified herself as the concerned wife of a BNSF Railway Company (BNSF) locomotive engineer whom she does not want to operate trains alone, noting in particular a past medical event. She also expressed concern about a one-person train crewmember suffering from fatigue, isolation, and depression. Further, the commenter was concerned that training programs for one-person train crews will be inadequate, noting 111 FRA–2021–0032–0226. VerDate Sep<11>2014 20:26 Apr 08, 2024 that when railroads removed the brakeman position to reduce train crew size to two crewmembers, the quality of the training was reduced to accommodate the large number of brakemen who were trained for conductor positions. During FRA’s public hearing, another commenter stated he was a locomotive engineer for UP for almost 20 years, and the idea of a one-person train crew is unsafe because it would take away half of the decision-making team.114 The commenter described how a two-person crew goes through their paperwork together, discussing slow orders, train makeup, and temporary restrictions. He said that organizing the crew’s paperwork and planning the shift’s operation will not always be easy because, with so many documents, rules, and temporary rules, one person could overlook a safety concern and make a mistake the other crewmember could have otherwise caught. The commenter also raised concern that, although a one-person train crew may be able to perform certain tests and inspections alone or with a utility employee, a conductor assigned to the train provides a valuable oversight role, and ‘‘it’s just more cohesive to have that second person [remain with the train] for the entire trip.’’ 115 Further, the commenter stated that toward the end of a tour of duty, when a train approaches a crew change, the crew has many responsibilities that are time-sensitive and would be difficult for a one-person crewmember to complete as quickly or efficiently. A commenter, who described herself as the spouse of a railroad worker and a person with significant interest in the rulemaking largely because of her many work experiences in first responder positions including as a 911 dispatcher and working in an ambulance, fire truck, and police car stated that she has spoken publicly on the topic of blocked crossings and her opposition to oneperson train crews.116 The commenter stated that she has collected anonymous statements from railroaders regarding their experiences, describing accidents and possible scenarios that could cause delays or additional safety concerns if railroads use one-person train crews, including concerns about the limitations of PTC when traveling at restricted speed and having to visually verify switches, and the limitations of global positioning system software to detect which track the train will be operating over and how a second crewmember 114 FRA–2021–0032–13184. 115 FRA–2021–0032–13184. 112 FRA–2021–0032–12808. 113 FRA–2021–0032–13184. Jkt 262001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 25065 116 FRA–2021–0032–12819. E:\FR\FM\09APR4.SGM 09APR4 25066 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations could provide backup in detecting if the train was lined to switch to the wrong track. The commenter also echoed many other concerns raised by individual commenters. An individual commented in strong support of a national, minimum twoperson train crew requirement as a proactive safety precaution.117 This individual stated that she is concerned about public and environmental exposure to hazardous materials from accidents and non-accidental spills and is especially concerned about a oneperson crew freight train transporting waste flowback from the fracking process that may have both known and unknown hazards. A commenter noted railroad rules that impose critical focus zones (CFZ) in his comment in support of the NPRM.118 The commenter pointed to the CFZ rule of the Canadian National Railway Company (CN), which he stated was in effect even with PTC, thereby showing a need for a two-person train crew even in PTC territory. The commenter stated that removing CFZ operating requirements and a two-person crew would certainly degrade safety given how a CFZ rule with a two-person crew greatly improves visibility and safety during train movements. 3. Federal Congressional Commenters One comment signed by 54 House members stated their strong support for FRA’s NPRM to enforce a minimum of two crewmembers in most passenger and freight rail operations, as they viewed the rule as necessary to ensure the safety of communities.119 This comment urged FRA to act expeditiously in finalizing the strongest rule possible, finding crew size a fundamental safety issue. These commenters noted that commercial airlines and boats have at least two crewmembers, and that technology such as PTC cannot replace the expertise and quick-thinking nature of human beings acting together as a team to operate trains and respond to unanticipated events. These 54 House members also supported a two-person train crew mandate out of concern that ‘‘some ddrumheller on DSK120RN23PROD with RULES4 117 FRA–2021–0032–13111. 118 FRA–2021–0032–12333. FRA notes that there are no Federal requirements that a railroad establish operating rules or practices for a CFZ but that some railroads voluntarily establish them in certain territories to reduce distractions, especially for the locomotive engineer. For example, a crewmember other than the locomotive engineer may be required to make all radio communications in the CFZ, and any crew communications are required to be limited to duties related to the train’s immediate operation. 119 FRA–2021–0032–12809 (duplicate comment filed at FRA–2021–0032–12971). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 freight railroads are operating trains that are extremely heavy and miles-long, which impact safe handling, increase wear and tear, and cause blocked crossings which in turn impede motorists’ travel and encourage dangerous pedestrian behavior.’’ These commenters also stated that ‘‘railroads successfully sued in court to overturn . . . [S]tates’ laws’’ mandating minimum crew size requirements, and courts found that ‘‘the [F]ederal government has jurisdiction over crew size requirements.’’ This group of lawmakers also concluded that the public needs ‘‘the safety benefits and uniform protection that [a rule] on minimum train crew size [safety] would provide.’’ Two of these House members, Rep. Donald M. Payne, Jr. and Rep. Dina Titus, also co-signed a second comment that expressed strong support for the proposed rule, especially raising concerns with freight trains that they note have grown in both length and weight, which adds to the complexity of safe handling of those trains and contributes to greater maintenance needs.120 This jointly filed comment also raised concerns about anticipated delays in resolving train problems when there is only one crewmember. These congressional members stated their concern that local first responders are negatively impacted by a one-person train crew because of delays in unblocking crossings. This comment echoed FRA’s description in the NPRM of the safety benefits that two crewmembers can provide for both operating the train and responding to any unanticipated events, including those that PTC was not designed to prevent. Another of these 54 House members, Sharice L. Davids, filed a second comment to emphasize her support for the proposed rule and her concern that having one person responsible for a massive train hauling hazardous materials jeopardizes the safety of crews and the public at large.121 Rep. Davids also commented that a national twoperson crew requirement is important to secure some of the nation’s most critical supply chain routes at a time when there is increased pressure on the supply chain. FRA received at least two individually filed comments from House members who represent New Jersey districts and expressed support for the proposed requirements in the NPRM. Rep. Jefferson Van Drew wrote that he supported FRA’s proposed rule because of his understanding that ‘‘[r]ail transportation is safer when workers have a co-worker available to watch their back and assist them with difficult or dangerous tasks.’’ 122 Rep. Van Drew emphasized that the final rule should also include passenger rail operations, and he urged FRA to strengthen the requirements to ensure the safest environment for rail workers. Similarly, Rep. Christopher Smith commented that he is strongly supportive of all trains in New Jersey having at least two crewmembers to ensure public safety and proper operation of critical infrastructure.123 Rep. Smith stated that research indicates a two-person train crew team would have a greater ability to notice and correct errors or problemsolve during an emergency than would a one-person train crew. He raised safety concerns with a one-person train crew operating a long train that is transporting hazardous material through densely populated areas and concluded that a two-person requirement would best protect the public, preserve confidence in rail transportation, and safeguard communities. 4. State and Local Governmental Commenters Several State and local government officials and organizations commented in support of the NPRM. For example, the National League of Cities, a nonpartisan organization comprised of city, town, and village leaders that are focused on improving the quality of life for their constituents, commented that it believes the presence and training of railroad crew is a matter of safety.124 This organization supported the NPRM and stated the hazard of reduced crews undermines the safe and efficient movement of trains and puts local first responders in unsafe situations during rail incidents and accidents. Michigan State Representative John Cherry commented that having a second crewmember could be the difference between life and death for the crew and the community.125 Representative Cherry’s comment stated a second crewmember is needed to help with situational awareness, prevent fatigue, and relay critical information to emergency responders if one crewmember is incapacitated. Similar comments were made by other Michigan State Representatives including Alex Garza,126 David LaGrand,127 and Padma 122 FRA–2021–0032–10347. 123 FRA–2021–0032–13188. 124 FRA–2021–0032–10696. 125 FRA–2021–0032–9545. 120 FRA–2021–0032–11185. 126 FRA–2021–0032–11021. 121 FRA–2021–0032–10917. 127 FRA–2021–0032–10993. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 Kuppa,128 and Michigan State Senators Rosemary Bayer 129 and Erika Geiss.130 Dinah Sykes, Kansas Senate Minority Leader, commented in strong support of the NPRM because it will establish a consistent, nationwide standard that will reduce safety risks.131 Patrick Diegnan, Jr., New Jersey State Senator and Transportation Chair, stated that he is concerned with the safety of both freight and passenger trains that operate with great frequency through densely populated areas.132 Senator Diegnan also attributed New Jersey’s positive safety record in recent years to trains operating with no fewer than two crewmembers. Aimee Winder Newton and Arlyn Bradshaw, two members of the Salt Lake County Council in Salt Lake City, Utah, commented in support of the NPRM because advancements in technology, such as PTC, improve safety but are not a substitute for a train’s on-board crewmembers.133 Sonoma-Marin Area Rail Transit District (Sonoma-Marin), a State of California publicly-owned, 95-mile railroad, commented that it currently operates both passenger and freight rail service with two-person train crews and hosts tourist railroads that operate with at least a two-person train crew.134 Sonoma-Marin stated that it supports FRA’s efforts to create the safest operating environment for communities, railroad personnel, and customers. Each of the railroad’s freight train crewmembers is qualified as both a locomotive engineer and a conductor, and the same combination is used for passenger operations, although periodically the second crewmember is only qualified as a conductor. In passenger service, Sonoma-Marin uses a PTC-equipped diesel multiple-unit fleet with two- and three-car consists. Sonoma-Marin also stated that it currently uses a 24-hour dispatch center and that crewmembers can directly communicate with one another. Transportation for America, an advocacy organization for local, regional, and State leaders, supported FRA’s action to require at least two crewmembers on most trains but expressed concern that the NPRM did not go far enough. Transportation for America advocated for requiring passenger operations to have three or four crewmembers and requiring a two128 FRA–2021–0032–9906. 129 FRA–2021–0032–11005. 130 FRA–2021–0032–10585. 131 FRA–2021–0032–9816. 132 FRA–2021–0032–10588. 133 FRA–2021–0032–10287. 134 FRA–2021–0032–11211. Sonoma Marin’s trade name is SMART. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 person crew minimum for any of the proposed exceptions for passenger and freight operations that operate over highway-rail grade crossings.135 Citizens Acting for Rail Safety—Twin Cities (CARS–TC), a community-based organization that is a regional chapter of Citizens Acting for Rail Safety, commented that the size of train crews is a public safety matter and opined that high hazard freight trains require a fourperson train crew.136 FRA’s Response The vast range of commenters supporting the NPRM, including Federal, State, and local representatives, and organizations that represent communities and employees, reflects the interest that the public has in FRA regulating the safety issues regarding train crew size. The comments supporting the NPRM largely corroborated FRA’s background in the NPRM describing the issues and why additional safety requirements are necessary. In FRA’s experience with regulating and inspecting the rail industry, and as described by research and reports of incidents in the NPRM, conductors and other crewmembers not assigned to operate the locomotive or train play an active role in maintaining the safe operation of the train and safeguarding their fellow employees and the public. The comments supporting the NPRM help provide context for the safety issues described in the NPRM concerning the significant role of a conductor or second crewmember; the need to have technology installed to stop a train when a one-person train crewmember becomes incapacitated; and the need to establish minimum communication and other requirements to mitigate hazards arising from both routine operations and unplanned incidents such as derailments, accidents, and mechanical breakdowns. The many anecdotal comments from individuals supplement the research and reports as important source information for the contributions of a two-person train crew team.137 135 FRA–2021–0032–11186. 136 FRA–2021–0032–10731. Citizens Acting for Rail Safety describes itself as a regional, nonpartisan, grassroots advocacy group that works with residents, legislators, and agency officials to improve rail safety to benefit the health, safety, and security of people, wildlife and the environment. 137 Some labor organization commenters, such as TTD and SMART–TD, highlighted FRA’s Confidential Close Call Reporting System (C3RS) as a program that might help to inform this rule but raised concerns about the low participation rate among railroads. C3RS is a voluntary program that provides employees of participating railroads the opportunity to report unsafe events and conditions confidentially. See https://railroads.dot.gov/ railroad-safety/divisions/safety-partnerships/c3rs/ PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 25067 In addition, FRA agrees with these commenters that this rule is needed because PTC is not a solution by itself. As of September 2023, PTC technology is governing rail operations on approximately 58,787 route miles, representing approximately 42% of the rail network in the United States. Although this is a significant achievement, it means that most railroad route miles in the United States are currently not governed by a PTC system. Even on PTC-governed main lines, railroads experience unplanned outages and planned outages of their PTC systems. For example, in March 2023, BNSF and the National Railroad Passenger Corporation (Amtrak) experienced unplanned outages of their PTC systems, and NS experienced an unplanned outage of its PTC system in August 2023, impacting operations of both the host railroad and its tenant railroads. Also, during 2023, several Class I railroads, commuter railroads, and Amtrak temporarily disabled their PTC systems to facilitate planned infrastructure upgrades or capital projects. Finally, although railroads experiencing planned or unplanned outages of their PTC systems comply with certain safety requirements,138 the NPRM clarified that ‘‘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.’’ 139 D. Tourist Railroad and Railroad Museum Industry Comment That Asserted the NPRM Would Have No Impact Heritage Rail Alliance, Inc., the primary trade organization for the tourist railroad and railroad museum industry, commented that the NPRM appears to impact minimally, if at all, confidential-close-call-reporting-system-c3rs (providing an overview, a list of participating railroads, a description of stakeholders, and answers to frequently asked questions including how railroads, labor organizations, and FRA use data collected through the program). While FRA agrees that C3RS could be informative, e.g., because the program periodically issues confidential ‘‘alert bulletins’’ to stakeholders and issues nonconfidential information through publicly available newsletters, FRA is unaware of any such alert or newsletter that identified an issue that directly relates to the safety of one-person train operations. Also, because FRA desires greater rates of participation in the program than the approximately 25–30 current or committed railroad participants, none of which include any Class I freight railroads, FRA is currently engaged in efforts to promote voluntary participation in C3RS through the RSAC process. See https://rsac.fra.dot.gov/tasks, RSAC Task 2022–03. 138 See, e.g., 49 CFR 236.1021(m), 236.1029(b). 139 87 FR 45581. E:\FR\FM\09APR4.SGM 09APR4 25068 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations the operating practices of both nongeneral and general system tourist railroads.140 The commenter’s informal survey found that its member railroads are using two-person train crews and that FRA was correct to conclude that tourist railroads are unlikely to switch to one-person train crew operations. ddrumheller on DSK120RN23PROD with RULES4 FRA’s Response In the NPRM, FRA stated that the agency is unaware of any tourist train operation on the general railroad system of transportation that operates with a one-person train crew.141 Heritage Rail Alliance, Inc.’s comment verified that the final rule will have minimal to no impact on non-general and general system tourist and museum train operations. FRA notes, however, this final rule provides an exception for tourist train operations that are not part of the general railroad system of transportation, which is contained in § 218.125. E. Comments Opposing the NPRM The NPRM included a background discussion of the state of current operations, including the existing Federal safety requirements and projected impact of the proposed crew size safety requirements on existing and future one-person train crew operations. The following summary describes comments received from entities and individuals including members of Congress, passenger train operators, short line and regional freight railroad commenters, and Class I freight railroad commenters. FRA did not identify any labor organizations, tourist railroads, or State or local governmental commenters that opposed the NPRM. In the summary of the comments from Class I freight railroads and similar rail industry commenters, FRA responded to several additional subjects that were addressed by these commenters. For instance, comments were received regarding alternative crewmember arrangements that the industry referred to as expeditors, ground-based crewmembers, or ground-based conductors. The Class I freight railroads and similar industry commenters also covered the subjects of train operations in other countries, new technology and automated operations, the transportation of hazardous materials, risk assessments and FRA’s review 140 FRA–2021–0032–11017. 141 A comment was received from the Strasburg Rail Road, which has both tourist and short line freight operations, but that comment is discussed under the heading ‘‘Short Line and Regional Freight Railroads’’ as the comment described one-person train operations concerning the railroad’s freight operations or work trains, not its tourist operations. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 standard, and remote control operations. FRA’s responses reflect the agency’s position on the comments and how FRA has responded in the final rule as compared to the NPRM. 1. Congressional Commenters The two Congressional comments opposing the rule detailed their opposition and raised a variety of legal, policy, and safety concerns that overlapped with other comments. For example, U.S. Senator Roger F. Wicker, and Rep. Eric A. Crawford stated their concern that the proposed requirements would have a significant economic impact on a substantial number of small entities, a concern shared by short line and regional freight railroad commenters.142 Senator Wicker commented that ‘‘[t]he NPRM fail[ed] to acknowledge that changes to operations and infrastructure, may produce benefits, including safety benefits [and that u]nder the logic in the NPRM, the specter of risk is sufficient to prohibit preemptively any innovation.’’ 143 Further, Senator Wicker commented that FRA has other ways to address safety concerns raised in the NPRM such as raising the random testing drug or alcohol testing rates, requiring inward facing cameras, or using other technological advances. Rep. Crawford expressed his view that FRA failed to comply with the Administrative Procedure Act, because he sees the NPRM as lacking a rational basis, and the Regulatory Flexibility Act, because he views the NPRM as failing to determine whether the proposed rule would have a significant economic impact on a substantial number of small entities. Rep. Crawford commented that those legal concerns may be secondary to his perception that FRA may be lacking the authority to promulgate a rule based on case law limiting agency action under the ‘‘major questions doctrine.’’ Rep. Crawford commented that the NPRM failed to adequately identify a particular problem that needs to be addressed, in addition to taking an overly prescriptive approach that does not encourage innovation or growth or competition among regulated entities. Rep. Crawford explained that he did not find FRA’s support for the rule persuasive and he suggested that FRA should have gotten more input from the industry before publishing the NPRM. 142 FRA–2021–0032–13052 and FRA–2021–0032– 13018. 143 FRA–2021–0032–13052 at 1. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 FRA’s Response In comment responses below, FRA addresses in detail specific issues raised by the Members of Congress, as many of these issues were also raised by certain industry commenters. Other issues raised are addressed in the RIA and below in Section IV.B, Regulatory Flexibility Act and Executive Order 13272. The legal authority discussion in the Executive Summary, above, describes FRA’s authority to issue this rule. Regarding additional industry input, FRA points to the extensive history of engagement with industry on this matter, including the following: (1) FRA pursued a collaborative approach on this subject matter in 2013 and 2014, but was unable to obtain an industry recommendation; 144 (2) FRA extended the comment period to 146 days upon request, which is significantly longer than the 60-day period originally scheduled; and (3) FRA provided a public hearing, which was widely attended and at which all commenters who wished to testify were provided an opportunity to do so. FRA disagrees with Senator Wicker’s comment that the proposed rule failed to recognize the benefits of innovation, as his comment was directed to FRA’s explanation for how the introduction of technology or operational changes may introduce new risks. As clarification, the NPRM explained that a risk assessment is useful as a formal process to identify, evaluate, and eliminate or reduce any hazards identified to within a range of acceptability.145 The risk assessment process therefore provides the railroad with an objective way of qualitatively or quantitatively showing how the technology or operational change is a safety benefit. 2. Passenger Operations The Utah Transit Authority (UTA), which operates the commuter rail service called ‘‘FrontRunner,’’ commented that FRA should consider a different, less stringent approach in the final rule for passenger legacy operations especially because UTA’s FrontRunner service was established in 2008 and FRA last approved that operation’s emergency preparedness plan on February 25, 2022.146 UTA’s comment reflected that it would prefer 144 81 FR 13918, 13935–39 (Mar. 15, 2016) (describing in an NPRM for a previous rulemaking on this same subject FRA’s efforts to obtain a consensus recommendation from the Railroad Safety Advisory Committee, a forum for collaborative rulemaking and program development that included representatives from all the agency’s major stakeholder groups). 145 87 FR 45582. 146 FRA–2021–0032–10984. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations an option that did not require it to file for special approval, and that it was concerned about the added expense and complexity of complying with training a second crewmember should its current one-person train crew operation be disapproved. UTA suggested that FRA should consider expanding the current definition of ‘‘train or yard crew’’ in § 218.5 to include a second person like UTA’s train host. UTA’s comment also included alternatives that would expedite the review process for existing passenger operations or otherwise reduce costs. The Denver Regional Transportation District (Denver RTD) filed a comment describing its passenger operation and requesting FRA consider the information in drafting a possible final rule.147 For instance, Denver RTD requested that FRA consider whether an additional review process as proposed is necessary, stating FRA’s prior approvals and requirements imposed on Denver RTD’s operation were sufficient to address any safety concerns. Denver RTD also questioned whether FRA was correct to characterize the Denver RTD operation as a one-person train crew legacy passenger operation in the NPRM as Denver RTD believes its second qualified person already meets FRA’s requirements for a train or yard crewmember. The American Public Transportation Association (APTA) filed a comment that raised two issues of concern for its passenger rail operation members.148 First, APTA raised concerns regarding the proposed risk assessment requirements, which are addressed below in this discussion of comments and conclusions under the risk assessment heading. Second, APTA included a comment similar to UTA’s concern about the qualifications of a second train crewmember who could perform duties under an emergency preparedness plan. The Commuter Rail Coalition (CRC) also commented with some concerns but did not assert whether the association or its members supported or opposed the proposed rule.149 CRC commented that all major commuter railroads operating today provide at least two qualified individuals who are trained to support the safe operation of passenger trains, but that the ‘‘proposed rule would likely have a direct impact on at least two commuter railroads that operate with at least two employees on each train but would likely still require 147 FRA–2021–0032–12177. 148 FRA–2021–0032–12947. 149 FRA–2021–0032–12172. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 a special approval.’’ 150 Like the other passenger operation commenters, CRC requested that FRA consider amending the definition of train crew or adding an exemption so that the rule accommodates as two-crewmember operations those passenger operations that use a second person who does not perform functions connected with the movement of the train. CRC’s comment was also similar to APTA’s in its approach to the risk assessment, and which FRA addresses below in this discussion of comments and conclusions under the risk assessment heading. Further, CRC requested that FRA consider providing railroads with additional time to comply with any new requirements, suggesting that operations may need up to a year to implement changes. FRA’s Response In the NPRM, the background section discussed FRA’s awareness 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 perform 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.151 FRA stated that although such passenger train operations may satisfy the requirements of 49 CFR part 239,152 railroads would need to seek FRA’s special approval under proposed § 218.131 to continue such legacy train operation staffing arrangements.153 As described above, FRA received comments from both of the passenger train operations identified, Denver RTD and UTA’s FrontRunner. FRA agrees with those passenger train operators that such legacy one-person train operations have been determined to meet the safety requirements of FRA’s passenger train emergency preparedness rule and reopening those inquiries could be unduly disruptive to those operations. Simply put, because the passenger train emergency preparedness requirements 150 Id. at 3. FR at 45580, n. 162 (identifying the following known passenger train services operating with a one-person train crew: (1) Denver RTD/ Denver Transit Operators; and (2) UTA’s FrontRunner). 152 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). 153 87 FR at 45580. 151 87 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 25069 overlap with many of the same issues that are addressed by a special approval petition in this final rule, FRA does not find it necessary to require a risk assessment and the opportunity for public input in the approval process for these legacy passenger train operations that already have approved emergency preparedness plans. However, FRA is not willing to forgo the benefits of such requirements for the initiation of passenger railroad train operations staffed with a one-person train crew as required under § 218.131. Accordingly, the final rule, in § 218.125(e), provides an exception for each passenger oneperson train operation established before the effective date of this final rule with an approved passenger train emergency preparedness plan under part 239. Further, his final rule does not require these legacy operations to provide FRA with written notification of the operation, as it has with legacy freight train operations staffed with a one-person train crew in § 218.129 of this final rule, because the existing filing requirement for emergency preparedness plan approval under part 239 of this chapter already provides FRA with sufficient notice. As always, FRA also invites these legacy operations to approach FRA with any specific questions concerning their responsibilities under either part 239 or this final rule. However, FRA disagrees with the comments suggesting that FRA expand the current definition of ‘‘train or yard crew’’ in § 218.5 to include a second person like those used in the legacy oneperson passenger train operations. In those passenger legacy operations, the second person is not typically doing work under the hours of service laws and is not involved with the train’s movements. Thus, for purposes of safe rail operations, FRA does not consider that type of rail employee to be a member of the train crew and will not carve out what would result in a prospective exception to the twocrewmember requirement for existing passenger train operations in this final rule. 3. Short Line and Regional Freight Railroads The American Short Line and Regional Railroad Association (ASLRRA), on behalf of its short line and regional railroad members, provided testimony at the public hearing and submitted a 143-page comment.154 ASLRRA commented that it represents approximately 600 Class II and III railroads, which operate 47,500 154 FRA–2021–0032–13033. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25070 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations miles of track or approximately 29 percent of the national freight network, and employ approximately 18,000 people. ASLRRA raised a wide range of issues including legal, policy, economic, and factual concerns in opposition to the NPRM. Like the comment filed by the U.S. Small Business Administration’s Office of Advocacy 155 (SBA-Advocacy), described further in the Final Regulatory Flexibility Analysis below, ASLRRA contends that the NPRM underestimated the number of small railroads that would be impacted, omitted costs for small railroads to comply, and miscalculated the costs on small railroads to comply with the special approval process. To support this position, ASLRRA surveyed its members and provided a statistical extrapolation based on the results of the survey.156 ASLRRA commented that the number of its member railroads that currently operate with some type of oneperson train crew is approximately 420 railroads, a much greater number than the seven such short lines FRA identified. ASLRRA was also concerned that the NPRM treated small entities in the same way as Class I railroads when transporting certain types of hazardous materials because the small railroad exception would not apply under those circumstances.157 ASLRRA commented that the NPRM ‘‘also declines to provide regulatory relief or consider less burdensome alternatives for small businesses’’ 158 that would benefit from ‘‘a performance standard.’’ ASLRRA also requested that FRA consider providing small railroads with more time to comply to allow for proper planning, operational changes, and hiring and training of additional crewmembers, if necessary. ASLRRA opposed the proposed prohibition on transporting certain types or quantities of hazardous materials with a oneperson train crew. ASLRRA estimated that approximately 114 short lines currently operate a train with a oneperson crew carrying quantities or types of hazardous materials that would require a minimum two-person crew under the proposal, including five railroads that had representatives testify at the public hearing.159 ASLRRA commented that railroads, by statute, are under a common carrier obligation to provide transportation of goods on reasonable request and may not refuse 155 FRA–2021–0032–13007. 156 FRA–2021–0032–13033, att. D (providing a summary and statistical analysis of the survey). 157 FRA–2021–0032–13033 at 41. 158 FRA–2021–0032–13033 at 10 and 13. 159 FRA–2021–0032–13033. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 to provide service merely because it would be inconvenient or unprofitable.160 ASLRRA’s comment suggested that FRA previously determined that an alerter was unnecessary for rail safety at speeds of 25 mph or less when the agency promulgated a final rule on locomotive safety standards in 2012 without distinguishing the risk between a twoperson train crew and a one-person crew.161 Further, ASLRRA commented that it costs approximately $20,000 to equip a locomotive with an alerter, approximately 83 railroads currently operate with one person in the locomotive cab using locomotives that are not equipped with an alerter, that it may not be possible to retrofit some older models of locomotives, and to meet the proposed requirements, these 83 railroads would need to equip at least half of their locomotives.162 Approximately 14 railroads or rail customers used a form letter in which they identified their company as a member of the ASLRRA and asked to incorporate the ASLRRA’s comments as their comment. For example, the form letter was used by the Virginia Railroad Association that represents nine short line railroads, two Class I railroads, and 27 other rail-related business members.163 Also, these form letters offer the same types of legal, economic, and policy comments that ASLRRA made in greater detail in its comment.164 Each form letter was personalized by adding one or two unique paragraphs describing the submitter’s existing one-person train crew operations, or plans to introduce a one-person train crew operation, or to otherwise explain why the commenter company opposed the NPRM. Ironhorse Resources, Inc., the parent company of at least eight railroads, commented that the NPRM would significantly impact their existing operations because they use an engineer on the locomotive and a conductor located in a vehicle.165 160 Id. citing 49 U.S.C. 11101(a) and offering the explanation that ‘‘[w]hile the obligation applies only to regulated traffic (e.g., coal, grain, chemicals, etc.), the Surface Transportation Board has historically stepped in to ensure that shippers are reasonably served even for exempt commodities.’’ 161 FRA–2021–0032–1193 at 29–30 (citing 77 FR 21312). 162 FRA–2021–0032–1193 at 30–31. 163 FRA–2021–0032–12381. 164 FRA–2021–0032–13033. 165 FRA–2021–0032–11719 (Caney Fork & Western Railroad); FRA–2021–0032–11720 and duplicated in FRA–2021–0032–11722 (Sequatchie Valley Switching Company); FRA–2021–0032– 11721 (Walking Horse Railroad); FRA–2021–0032– 11723 (Rio Valley Switching Company; Gardendale Railroad; Santa Teresa Southern Railroad; San Pedro Valley Railroad; Southern Switching Company). PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 Similarly, the Central Indiana & Western Railroad commented that it is a small, family-owned railroad with two fulltime employees and two part-time employees and is concerned that the requirements, as proposed in the NPRM, would remove the railroad’s option to utilize an engineer on the locomotive and a second crewmember in a utility vehicle.166 The Sandersville Railroad also commented that the requirements, as proposed in the NPRM, would remove the railroad’s option to utilize an engineer on the locomotive and a second crewmember in a utility vehicle. Further, this railroad explained that the small railroad operation exception, as proposed, would not be manageable for its operation, although in coming to that conclusion it misconstrued the proposed exception as only applying to railroads that employ train dispatchers.167 The Ashtabula, Carson & Jefferson Railroad did not comment why it could not meet the small railroad operation exception as proposed but commented that it uses a one-person crew on its six-mile-long track with transloading operations at each end, operating at 10 miles per hour (mph), and a second crewmember to flag two unprotected highway-rail grade crossings and help with switching.168 MG Rail commented that it is a short line switching railroad that uses remotely controlled locomotives (RCL) in its operations with a one-person crew and is concerned about the rule’s potential impact on short lines generally but did not specifically explain how the NPRM might potentially impact its operations (as the NPRM did not propose requirements for trains during switching service and included a proposed one-person train crew exception for remote control operations).169 The Cimarron Valley Railroad (CVR) commented that it is a Class III short line that operates with both two-person and one-person crews and is concerned that the NPRM’s small railroad exceptions would not apply to its oneperson operation because the total length of its unit trains handled in interchange are greater than FRA’s proposed limitation of 6,000 feet for the proposed small railroad operation exception.170 CVR did not state how long these trains were nor explain why it could not file a special approval 166 FRA–2021–0032–12301. 167 FRA–2021–0032–12394. 168 FRA–2021–0032–12970. 169 FRA–2021–0032–12261. The Finger Lakes Railroad (FGLK) filed a similar comment in that it is a Class III short line that has uses one-person remote control operations. 170 FRA–2021–0032–12683. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations petition for a legacy operation as proposed. Like other short line commenters, CVR did not request that FRA amend the exceptions or special approval process in the NPRM but instead requested that FRA withdraw the NPRM in its entirety or, alternatively, categorically exclude all Class II and III operations because, in its view, short lines already successfully operate today in this environment. The Farmrail System, which owns two Class III short lines, Farmrail Corporation and Grainbelt Corporation, commented that it has used one-person crews by utilizing a truck-based employee to accompany freight trains between switching assignments and with remote control operations.171 This commenter found the NPRM’s proposed requirements complicated and did not believe the exemptions and special approval process provided adequate relief for short lines. Patriot Rail commented that it is a holding company that owns 31 short lines with operations that use one crewmember in the locomotive and one crewmember in a motor vehicle providing safety, logistical, and customer support.172 Overall, Patriot Rail opposes the rule for many of the same reasons articulated in ASLRRA’s comment. Patriot Rail stated that it supports FRA’s recognition that short line operations can be accomplished safely with a minimum of two crewmembers, but with only one person in the locomotive cab. Patriot Rail commented that some of the NPRM’s requirements allowing for exceptions seemed arbitrary, such as limitations on train length and commodities, and for other proposed requirements for alerters, dispatching, and electronic communications devices. Additionally, Patriot Rail recognized the proposed special approval process as an option if an exception to the NPRM could not be met, but this short line holding company viewed the process as burdensome without clearly enumerated safety benefits. The Strasburg Rail Road commented that it has tourist and short line freight operations that frequently permit its two crewmembers to leave the locomotive cab after securing the train, such as when a one-person crewmember joins a roadway work group on the ground after securing the train.173 This railroad commented that it was concerned that the rule would prohibit that activity because FRA proposed that the one171 FRA–2021–0032–13042. person train crewmember must remain in the locomotive cab during normal operations. The Strasburg Rail Road also commented that it does not have locomotives equipped with alerters for its one-person work train operations. Other such railroad commenters provided testimony at FRA’s public hearing. For example, the Director of Safety, Training, and Regulatory Compliance for the Rio Grande Pacific Corporation (RGPC) testified that its four Class III short lines operate with an engineer in the locomotive and a certified conductor in a utility vehicle who maintains contact with the engineer by radio and is assigned as a train crewmember.174 RGPC explained that this crew staffing arrangement is efficient for interaction with customers, preparing for the train’s arrival at a customer’s location, and protecting highway-rail grade crossings. RGPC is concerned that certain of the NPRM’s proposed requirements would mean that RGPC’s short lines would need to hire a third crewmember because their operations would be unable to qualify for the small railroad exception. For example, RGPC testified that its short lines operate trains longer than 6,000 feet, haul 20 or more loaded cars of hazardous materials, and do not have the means to conduct real-time monitoring of the train’s location. RGPC also testified how it would be logistically difficult to move the certified conductor in the utility vehicle to the locomotive, and that it believed the proposed rule would lead RGPC’s short lines to hire a third crewmember. The Vice President of Human Resources and Safety at Florida East Coast Railway (FEC) testified that the railroad is currently using one-person operations for short distance intermodal trains, but the NPRM would prohibit some trains because of the proposed hazardous materials prohibition.175 FEC stated that it has an extensive list of deployed safety technology, and it has main track equipped for up to 60-mph trains. The General Manager of the Madison Railroad and incoming Vice Chair for the Railroads of Indiana group testified that the Madison Railroad is a short line with five full-time staff and has been operating a one-person train crew since 1978 on its 41 miles of track at 10 mph in southern Indiana. Five employees are responsible for train operations and track and signal inspection and maintenance on the Madison 172 FRA–2021–0032–13019. 173 FRA–2021–0032–12550 (and a duplicate was filed at FRA–2021–0032–12670). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 174 FRA–2021–0032–13184 175 FRA–2021–0032–13184 PO 00000 Frm 00021 Fmt 4701 (hearing transcript). (hearing transcript). Sfmt 4700 25071 Railroad.176 The testimony added to the Madison Railroad’s written comment, which used the ASLRRA’s form letter.177 The Madison Railroad testified that it operates about a mile and a half on steep 5.89 percent grade near the Ohio River, which is mitigated by specific operating rules, brake system and locomotive equipment requirements, and additional training. According to the Madison Railroad, it has provided additional risk mitigation steps above FRA’s minimum requirements. For instance, the Madison Railroad testified that it only operates one train at a time and the maximum train speed is limited to 10 mph with restricted speed in effect. The Madison Railroad is concerned that the NPRM would lead to an overall net decrease in safety as any increased costs to hire a minimum of two additional employees would mean that the railroad would need to divert resources from investing in physical infrastructure and equipment. The Senior Vice President and General Manager of the Grafton and Upton Railroad (G&U) testified as to his diverse experiences in railroad operations as a conductor, a locomotive engineer, and a designated supervisor of locomotive engineers, and how he has operating experience on Amtrak’s Northeast Corridor, CSX Transportation’s mainline, and many short lines.178 Based on this experience, G&U testified that one-person crews have, both currently and historically, operated safely, and how doing so is a more efficient use of a short line’s limited resources. G&U stated it has a 25-mile-long system and transports many hazardous materials, including propane, typically with a one-person crew that is certified as both a conductor and a locomotive engineer and a second conductor crewmember in a motor vehicle. G&U testified that, in addition to the proposed prohibition on trains with hazardous materials, it would not meet the short line exception in the NPRM because it operates over heavy grade. G&U also noted its locomotives are not currently required to have alerters. Overall, G&U expressed concern that the NPRM would create significant capital and operational costs. The Vice President of Operations at Transtar, LLC, testified that Transtar is a holding company operating five Class 176 FRA–2021–0032–13184 (hearing transcript). The Railroads of Indiana filed a separate comment opposing the NPRM’s lack of regulatory certainty about the likelihood of a special approval petition being approved and raising concerns about costs on small railroads. FRA–2021–0032–10228. 177 FRA–2021–0032–12221. 178 FRA–2021–0032–13184 (hearing transcript). E:\FR\FM\09APR4.SGM 09APR4 25072 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations III short lines and one contract switching carrier.179 Transtar highlighted one of its short lines, the Texas and Northern Railway (T&N), which it described as seven miles of main track serving small customers with a one-person train crew and a conductor in a motor vehicle. Transtar testified that the T&N would not qualify for the NPRM’s exceptions because it does not maintain the train’s real-time progress or have a method of determining the proximate location if communication is lost with a one-person crew. Also, the T&N does not utilize a dispatcher, its locomotives are not equipped with alerters, and its track has heavy grade. Transtar also expressed concern that the proposed rule would force T&N, which it described as a ‘‘low margin railroad,’’ to increase costs and the railroad’s ‘‘customers would in turn either pass the increased costs onto their customers . . . or choose to ship [their] commodities via truck which is considerably less safe, and less environmentally friendly than shipping via rail.’’ ddrumheller on DSK120RN23PROD with RULES4 FRA’s Response In this final rule, FRA has carefully considered the track record of safety in these operations with the need to establish minimum requirements to address fundamental issues of rail safety regarding the operation of one-person train crews and the short line rail industry’s claim that the proposed requirements in the NPRM would have introduced significant costs on approximately 63 percent of the industry through proposed requirements for special approvals, risk assessments, the installation of alerters, or the adoption of and compliance with new operating rules.180 After reviewing these comments, including the testimony at the public hearing that included approximately five Class II and III freight railroad representatives and the ASLRRA’s expert on how their survey was conducted,181 FRA made the following general determinations: (1) although ASLRRA made a good faith effort to collect data from its short line and regional railroad members, the information submitted is insufficient to allow an independent validation of the survey results and differences between ASLRRA’s and FRA’s estimates may have resulted from a misunderstanding of the proposed rule’s terminology; (2) in turn, while ASLRRA extrapolated 179 FRA–2021–0032–13184 (hearing transcript). comment estimated that 63% of the short line railroad population ‘run some kind of 1person operation.’ FRA–2021–0032–13033. 181 FRA–2021–0032–13184 (hearing transcript). 180 ASLRRA’s VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 data in good faith from the data collected from the responding short line and regional railroads, because of the potential terminology misunderstanding and the potential for bias in the way ASLRRA surveyed its member railroads, FRA cannot rely on ASLRRA’s data extrapolations for purposes of the RIA’s primary analysis; (3) FRA can address the short line and regional railroad industry’s requests to treat Class II and III freight railroads differently from the Class I freight railroads, a departure from the NPRM, by eliminating the special approval process for some oneperson train crew operations when certain safety requirements and notification requirements are met, and thereby provide greater regulatory certainty; (4) FRA can address the short line and regional railroad industry’s concerns regarding the proposed prohibition on one-person operations carrying certain quantities or types of hazardous materials; (5) FRA can address the short line and regional railroad industry’s requests to provide railroads with more time to comply with any new minimum requirements to allow for proper planning, operational changes, or hiring and training of additional crewmembers, another revision to the NPRM; and (6) despite FRA’s concerns as to the accuracy of ASLRRA’s survey results and data extrapolations, the RIA does show that, even when using ASLRRA’s numbers, the cost of the final rule will not be substantially higher because of changes made in the final rule from the NPRM and, therefore, FRA would still proceed with this rule whether or not ASLRRA’s survey and extrapolation numbers were validated. FRA agrees with ASLRRA’s comment that it may not be possible to retrofit some older models of locomotives, although ASLRRA did not describe this concern as an issue preventing existing operations from continuing but instead commented that approximately half the locomotive fleet for those existing operations would need to be retrofitted with an alerter. Consequently, the final rule addresses safety concerns with various one-person train crew operations that were raised in the NPRM, while providing flexibility for certain one-person crew operations by short lines. The following paragraphs describe FRA’s response in more detail. ASLRRA’s survey suggested that because 176 short lines responded that they deployed a one-person train crew operation, ASLRRA could use statistical analysis to extrapolate and find that approximately 420 short lines industrywide were deploying such an operation. However, as noted above, FRA did not PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 use ASLRRA’s extrapolated numbers in its primary RIA estimate because of the potential misunderstanding of the proposed rule’s terminology and the survey’s analysis did not adequately address the potential for non-response bias.182 Specifically, although it cannot be determined from the survey data submitted, it seems plausible that short lines that perceived themselves as not having any type of one-person train crew operation or need for an exception, or otherwise not impacted by the proposed requirements in the NPRM, might have chosen not to respond to ASLRRA’s survey.183 Thus, while FRA’s 182 The ASLRRA’s survey was not based on a random sample of short line railroads and did not examine why approximately 60 percent of ASLRRA’s short line members did not respond. The survey used three statistical concepts to address the missing data problem; however, each analysis was problematic: (1) ASLRRA’s Missing Completely at Random (MCAR) analysis asserted that a representative random sample (of the population) was available from the survey response. However, the entire population was surveyed and for unknown reasons some railroads did not respond. This would preclude MCAR analysis for the purpose of extrapolation. (2) A proper Missing (Conditionally) at Random (MAR) analysis requires that the railroads selected for the survey be grouped by known factors, such as commodity, and that it can be shown that a specific commodity grouping would have no reason to respond to the survey. ASLRRA’s MAR analysis claimed that several variables could be used to achieve this grouping such as revenue, geography, and miles, but the means to identify the relationship of these groupings and survey response were not provided or cited. For example, the geographic regions selected were defined as four abstract areas lacking specific boundaries. In the analysis, miles were described as a factor and it was unclear if ‘‘train miles’’ (publicly available data on FRA’s Safety Data website) were used as ‘‘route miles,’’ conflating how the factor could be applied. Proprietary revenue data was used in the analysis which prevented FRA from being able to independently validate the relationship between operations and revenue. Under 49 CFR 209.11, ASLRRA could have established a means to provide FRA the data for analysis, but it did not do so. (3) A Missing Not at Random (MNAR) analysis is the most complex analysis of the three and asserts that the reasoning for the missing data is unknown and thus more data is required to analyze. In an MNAR analysis, groupings may show a definitive relationship with response versus non-response; however, in this survey, there is no definitive evidence showing the reason for the non-response. To use an MNAR analysis, ASLRRA should have required more data showing a definitive relationship with non-response (e.g., by conducting a follow-up survey specifically targeted to the nonresponding railroads). 183 This possible explanation is most relevant to the discussion regarding MNAR analysis in the previous footnote, and this explanation is also plausible based on FRA’s understanding of rail operations nationwide. Also, ASLRRA’s survey expert testified at the public hearing that the association conducted its survey before the expert was brought onboard and how the problem is ‘‘you worry that the non-responders are in some way different systematically from the responders [and that m]aybe it’s just a case that . . . those short lines that are affected are most likely to respond.’’ FRA–2021–0032–13184 at 36. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations primary analysis in the RIA uses FRA’s estimates, FRA added a sensitivity analysis in the RIA to demonstrate the cost of the final rule using ASLRRA’s survey numbers. The costs based on ASLRRA’s numbers would not dissuade FRA from finalizing this crew size safety requirements rule. Because the estimate of the potentially impacted entities resulting from ASLRRA’s survey and comment so greatly differed from FRA’s estimate of potentially impacted railroads, FRA sought to understand the reason for this discrepancy, rather than to minimize ASLRRA’s survey results, even though those results could not be independently validated. For example, in response to ASLRRA’s survey of its 696 short line members, 176 of the 280 short lines that responded reported that they deployed a one-person train crew operation—which stands in sharp contrast to the seven freight railroads FRA identified by name in the NPRM as known to operate a one-person train crew operation.184 Meanwhile, comments filed in response to the NPRM by holding companies owning multiple short lines and individual short line commenters revealed that, of approximately 62 short lines that selfidentified as having a one-person train crew operation: (1) 54 short lines stated that they used a second train crewmember in a motor vehicle that intermittently assists the train—which FRA identified as a small railroad operation exception in proposed § 218.129(c)(1)(ii); (2) two short lines stated that their one-person train crew operation was a remote control operation—which FRA identified as a small railroad operation exception in proposed § 218.129(c)(3); (3) one short line identified that it used a work train with a one-person train crew—which FRA identified as a specific freight train exception in proposed § 218.129(c)(2); and (4) five short lines did not identify the type of one-person train crew operations they used or exactly how they would be impacted by the NPRM’s proposed requirements. In reviewing the short line and regional railroads’ comments, it appears that these commenters were counting all oneperson train crew operations, even if the special approval process did not apply, because some of the one-person train crew operations FRA proposed for exception could not be used without also complying with additional requirements. Thus, FRA determined that the NPRM’s lack of a definition for 184 87 FR 45578–79, FN 155. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 a ‘‘one-person train crew’’ was creating confusion. To ensure that FRA and the rail industry use the same terminology for the purposes of addressing one-person train crew requirements, the final rule includes definitions for the terms ‘‘oneperson train crew’’ and ‘‘one-person train crewmember.’’ By defining these terms, the final rule clarifies that a oneperson train crew includes: (1) a train operation with a single assigned railroad employee performing both the locomotive engineer’s and conductor’s duties; or (2) when a single assigned railroad employee is traveling on the train when the train is moving, and the remainder of the train crew, including the conductor if the locomotive engineer is not the assigned conductor, is assigned to intermittently assist the train’s movements. The latter operation will therefore include what many short line commenters described as a oneperson operation when they used a second assigned train crewmember that intermittently assists the train but primarily travels in a motor vehicle instead of traveling on the train when the train is moving.185 In the NPRM, FRA described the agency’s understanding that fewer freight short line and regional railroads are using one-person train crew staffing arrangements than in 2016, as FRA identified fourteen Class II and III railroads operating single-person train operations in 2016 and only seven of those same freight railroads maintaining such operations in 2022.186 FRA requested comments on any additional such railroads conducting one-person train crew operations and the interest of such railroads to conduct one-person train crew operations in the future.187 Based on the comments and the added definitions concerning oneperson train crews, FRA has revised its estimate of the number of existing railroad operations impacted by each requirement in the RIA to this final rule. 185 As is later explained in greater detail in this discussion of comments and conclusions, FRA’s current rail safety requirements distinguish between a train crewmember that is assigned a single train and a person that performs work as a utility employee or other worker that may perform work for multiple trains. FRA found ASLRRA’s survey questions drafted imprecisely with regard to this issue. For instance, in ASLRRA’s survey, see FRA– 2021–0032–13033, attachment A, question 4 asks a railroad to check a box if it uses on its main line operations ‘‘one person in the locomotive cab, supported by a conductor who is supporting multiple trains simultaneously,’’ when FRA requires a conductor to be in charge of the crew and therefore a conductor cannot be in charge of more than one train simultaneously. See 49 CFR 242.7 (defining ‘‘conductor’’). 186 87 FR 45578. 187 87 FR 45579. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 25073 FRA estimates that there are 75 Class II and III railroad legacy freight oneperson train crew operations, excluding those one-person train crew operations that would fall into one of the other exceptions covered in the final rule by § 218.125 through § 218.129. This estimate was based on the 62 commenters that described an existing one-person operation, even counting the eight commenters that did not describe an operation that definitively would fit into the one-person train crew operation as FRA is defining such an operation for this final rule. Further, this estimate includes the seven one-person train crew operations identified in the NPRM and the proposed rule’s RIA. FRA’s estimate includes at least 10–20 percent more one-person train crew operations than known through FRA identification and commenters’ self-descriptions. Although some commenters were ambiguous in describing their operations, FRA included those operations in this conservative estimate that may overestimate the actual number of established one-person train crew operations.188 This final rule also addresses the short line rail industry’s request that the final rule distinguish Class II and III freight railroad operations from those of the Class I freight railroads by utilizing the alternative regulatory approaches discussed in the NPRM’s RIA.189 Thus, rather than requiring a special approval petition for each proposed one-person train crew operation, the final rule allows certain one-person train crew operations to continue or be initiated without a special approval process. Instead of the proposed FRA review and approval requirements associated with a special approval petition for all legacy train operations staffed with a oneperson train crew in proposed § 218.131 and for the initiation of all other train operations staffed with a one-person train crew in proposed § 218.133, the final rule, in § 218.129, requires written notification (in addition to certain operational requirements) only from railroads with established legacy oneperson train crew freight operations as well as Class II and III freight railroads seeking to initiate a train operation staffed with a one-person train crew but not transporting hazardous materials of the types or quantities specified in § 218.123(c). This written notice replaces the approval process for these operations and provides greater 188 In response to ASLRRA’s survey of its 696 short line members, 176 of the 280 short lines that responded claimed that they deployed a one-person train crew operation. 189 FRA–2021–0032–0368. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25074 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations regulatory certainty while providing more flexibility to short lines as compared to the NPRM’s proposed requirement of a petition filing and special approval process. The notification requirements in the final rule will still provide FRA with significant information regarding the locations and extent of, and hazards posed by, these one-person train crew operations. FRA’s decision to permit Class II and III legacy one-person train crew freight operations, including those transporting hazardous materials, to continue without a risk assessment or special approval was based on the final rule’s imposition of minimum requirements on these legacy operations. For instance, the implementation schedule phasing in operating rules to protect the one-person train crewmember and to safeguard the public after an incident should ensure that railroads are prepared to take the appropriate mitigation measures to protect employees and the public. Similarly, the final rule’s requirement for an alerter on any controlling locomotive operated by a one-person train crew and an operating rule that requires testing the alerter to confirm it is functioning before departure will provide an alternative that makes that aspect of the operation as safe or safer than a two-person minimum train crew operation where a second crewmember would be expected to make an emergency brake application if the locomotive engineer became incapacitated. Although not required in this final rule, FRA encourages railroads with legacy operations to examine any safety hazards that could be further mitigated to reduce risks with oneperson train crew operations or any of their operations generally, such as track maintenance near waterways and densely populated areas or the railroad’s operating rule requirements for a second crewmember who assists intermittently to ensure that this crewmember is contributing to the safety of the train’s movement to the greatest extent possible. FRA will closely monitor this legacy exception and will scrutinize data or observations showing that the legacy operations may not be as safe as currently described. FRA also removed the NPRM’s proposed prohibition on one-person train crew operations transporting certain types or quantities of hazardous materials with respect to initiating new or existing, but non-legacy, operations. All railroads, including Class II and III railroads, seeking to initiate such an operation transporting hazardous materials of the types or quantities specified in § 218.123(c) will be VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 required to conduct a risk assessment and obtain special approval for the operation under § 218.131. The revisions from the proposed rule’s approach regarding the transportation of hazardous materials reflects FRA’s consideration of ASLRRA’s comment that the common carrier legal obligation prohibits a railroad from refusing service to a customer that provides a properly packaged hazardous material. The RIA acknowledges the potential costs of compliance with the final rule’s requirements for a one-person train crew. Considering the known safety and security risks associated with operating trains transporting large amounts of hazardous materials, previously determined by FRA, the Transportation Security Administration (TSA), and the Pipeline and Hazardous Materials Safety Administration (PHMSA) to present the greatest safety and security risks, FRA finds that the final rule’s requirements are justified to ensure the safety of trains. FRA is willing to work with the short line industry in developing a model risk assessment that could potentially reduce the paperwork burden on short lines and accelerate the petition process. FRA also supports ASLRRA and its members creating a template or model risk assessment to reduce the burden on individual Class II and III railroads. FRA has considered this in estimates used in the final rule’s RIA. The final rule also addresses the short line industry’s comments that the proposed exceptions in the NPRM were too stringent in that they included limitations on speed, grade, or train length, by largely eliminating those proposed limitations within the exceptions and providing other criteria to govern those operations. For instance, in proposed § 218.129(c)(1), the exceptions identified specifically for ‘‘small railroad operations’’ were limited to a freight train operated on a railroad that would not exceed 25 mph and by an employee of a railroad with fewer than 400,000 total employee work hours annually. In the final rule, FRA did not include the proposed speed restriction for such a small railroad operation, thereby allowing the train to be operated at the maximum allowable track speed and not creating a disincentive to maintaining track to the highest standard a railroad chooses to sustain. The small railroad operations exception was also expanded in the final rule to include all Class II and III freight railroads.190 In addition, the 190 There are nine holding companies that own approximately 250 Class II and Class III railroads. Those holding companies are: Anacostia Rail PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 proposed track grade and train length limitations for the small railroad operations exception have not been adopted in the final rule. Moreover, in response to short line comments and after reviewing existing safety regulations, FRA has decided not to apply this final rule to a train operation controlled by a remote control operator because it has existing safety requirements for these operations and because there are other reasons mentioned later in this discussion of comments and conclusions. Similarly, the final rule responds to certain short line commenters’ concerns over a proposed requirement that certain one-person freight train operation exceptions in proposed § 218.129(c) must have an operating rule or practice requiring that the crewmember remain in the locomotive cab during normal operations and leave the locomotive cab only in case of an emergency affecting railroad operations.191 The proposed requirement applied to the exceptions identified as small railroad operations, work train operations, and remote control operations. The Strasburg Rail Road explained that this proposed requirement would have precluded its current work train arrangement whereby the one-person crewmember is permitted to join a work group on the ground after securing the movement. Upon further consideration, the requirement FRA proposed in the NPRM has not been included in the final rule, as FRA finds its current securement requirements are sufficient to safeguard unattended trains.192 Additionally, in § 218.129 of the final rule, FRA has addressed the comments requesting that each railroad be provided more time to comply with any new requirements or, as necessary, hire or train a second crewmember for a oneperson train crew operation by providing an implementation schedule that phases in the final rule’s requirements for certain specified oneperson train crew operations. That phased-in implementation schedule will apply to: (1) each Class II or III railroad with a legacy one-person freight train operation; (2) each railroad seeking to continue or initiate use of a work train operation staffed with a one-person train crew; (3) each railroad seeking to continue or initiate use of a helper service train operation staffed with a Holdings, Genessee and Wyoming, Iowa Pacific Holdings, OmniTRAX, Pioneer Railcorp, Progressive Rail Inc., R.J. Corman Railroad Group, Patriot Rail, and Watco. 191 87 FR 45617 (citing proposed paragraph (b)(1) of § 218.129). 192 49 CFR 232.103(n). E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 one-person train crew; and (4) each railroad seeking to continue or initiate use of a lite locomotive train operation staffed with a one-person train crew, excluding a multiple unit (MU) locomotive passenger operation where the car carrying the passengers is also functioning as the locomotive. The implementation schedule provides enough time for railroads to comply with the final rule’s new requirements, and FRA encourages each railroad with a one-person train crew operation to act more quickly than required by the schedule when possible. For instance, FRA expects that each railroad should be able to adopt any necessary operating rules within a short period of time, potentially within a few weeks at most, even though the final rule’s implementation schedule for excepted operations will provide up to 90 days from the effective date of the final rule. It is possible that ASLRRA or other groups will draft model operating rules that address the operating rule requirements in the final rule, and these model operating rules could be adopted secondarily to replace any quickly adopted rules that are used in the short term. Meanwhile, it can be expected that some railroads will quickly install any required alerters while others delay installation for various reasons; FRA urges each railroad not to delay alerter installation.193 For these reasons, the final rule largely provides the clarity and streamlined approach that ASLRRA and Class II and III freight railroads requested while establishing minimum requirements for the safety of oneperson train crew operations. At the same time, the final rule increases safety for operations proposed as one-person train crews because an alerter or a second crewmember to stop the train in an emergency is a necessary precaution to prevent the potential for catastrophic harm due to an uncontrolled train movement; in reaching this conclusion, FRA reviewed its statements from 2012 in a locomotive safety standards rulemaking cited by ASLRRA and determined that the agency is not issuing conflicting statements.194 The 193 Not only does FRA require most locomotives to have a working alerter installed, FRA’s current rail safety regulation in the same part as this final rule contains a strict prohibition against tampering with such devices that are installed to improve the safety of the operation of train movements. 49 CFR part 218, subpart D. 194 ASLRRA’s comment, FRA–2021–0032–1193 at 29–30, citing 77 FR 21312, did not explain that: (1) FRA’s statements regarding the need to establish a minimum alerter requirement were based on multiple NTSB recommendations to do so; (2) that NTSB’s recommendations were based on accidents that occurred at varying speeds; or (3) that NTSB’s VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 final rule’s requirements regarding alerters in the controlling locomotive, safeguards to protect the one-person train crewmember, and procedures for minimizing the impact of situations that could endanger employees, the public, or environment reduce the risk of foreseeable hazards associated with oneperson train crew operations. 4. Class I Freight Railroads FRA received numerous comments opposing the NPRM from the Class I freight railroads and groups associated with those railroads. The following is a summary of, and response to, those comments. a. Alternative Crewmember Arrangements Including Expeditors, Ground-Based Crewmembers, or Ground-Based Conductors Numerous commenters offered that the NPRM would be disruptive to their current operations or plans to use oneperson train crews in combination with other rail employees that, as described, might not be a part of a train crew as FRA defines that term in its current regulation,195 or would not meet FRA’s proposed requirements under the NPRM. In general, these commenters described train operations using a rail worker, traveling in a motor vehicle, that intermittently assists the train at key intervals such as to flag a highwayrail grade crossing, throw a handoperated switch, or be available in case of emergencies or to diagnose and repair a mechanical problem if the train becomes disabled. During the public hearing, UP’s Vice President of Crew Management Services and Interline Operations testified accident analysis was focused on the ‘‘crewmembers’’ without considering the possibility that railroads would be operating one-person trains. 77 FR 21320–21. Similarly, FRA’s rationale for permitting operational flexibility by tailoring the alerter standard to a minimum operational speed did not address the possibility that railroads would be operating one-person trains. 77 FR 21329–30. NTSB’s rationale for an alerter standard included an analysis of a head-on train collision on July 10, 2005, in which ‘‘the NTSB determined that an alerter likely would have detected the lack of activity by the engineer and sounded an alarm that could have alerted one or both crewmembers [and h]ad the crew been incapacitated or not responded to the alarm, the alerter would have automatically applied the brakes and brought the train to a stop . . . [potentially] prevent[ing] the collision.’’ 77 FR 21320–21. In FRA’s view, because the agency understood the operational status quo at that time was a minimum of two train crewmembers, its decision in 2012 to provide some operational flexibility to ‘‘freight railroads [that] only operate over small territories’’ and move at lower speeds included the unwritten expectation that a second crewmember would be available to apply the emergency brake if the locomotive engineer was fatigued or incapacitated. 77 FR 21329–30. 195 49 CFR 218.5 (defining train or yard crew). PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 25075 regarding the railroad’s expeditor pilot program and future plans, which included showing a video demonstrating the job of an expeditor.196 UP’s written comment also described its expeditor plan and stated that FRA’s NPRM would disrupt the implementation of that plan.197 UP described its expeditor plan as using one-person train crews with PTC and ground-based conductors replacing train-based conductors. In a written statement, UP described how its PTC system includes a parking brake feature that can set the train brakes for routine work on the ground near the train and can set a full-service brake application if movement is detected—a feature that is not mandated by FRA. UP envisioned expeditors to run on a subdivision basis, not a train-by-train basis, and for expeditors to be used for all commodities including all types and quantities of hazardous materials. UP stated that it expects some subdivisions or territories will require more than a single expeditor to handle the train density. The rationale UP gave for initiating its expeditor plan was that a conductor’s job primarily consists of preparing a train for departure and occasionally addressing minor mechanical issues that occur en route, and that an expeditor’s role can be designed to accomplish traditional conductor tasks in less time. Phase one of UP’s expeditor plan is for implementation on territory that has a double mainline track with a state highway running along side it, albeit with a traditional conductor also on the train. UP described three additional phases, each adding layers of new complexities. UP commented that it believes a person working in an expeditor role is safer than a train-based conductor because the employee will not have to climb out of the locomotive cab and walk long distances aside the train in potentially challenging environments to repair a mechanical problem. UP stated that if FRA insisted on excluding one-person crews from operating trains carrying hazardous materials, UP would end its expeditor pilot program because the program is dependent on treating all trains passing through a particular area in the same way. During the public hearing, the Vice President of Advanced Train Control for NS testified regarding the railroad’s plan 196 FRA–2021–0032–13184 (hearing transcript); https://www.youtube.com/watch?v=6hr15dtWwGU (video). 197 FRA–2021–0032–13012. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25076 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations to deploy ground-based conductors.198 NS’s written comment also described its plan and stated that the NPRM failed to consider how the rail industry can use operational innovations or deploy readily available technology to address any safety concerns associated with the operation of a train with fewer than two crewmembers.199 NS also stated it met with DOT officials about its plan to deploy ground-based conductors.200 NS commented that PTC is installed on 58,000 miles of track in the United States, and it believes PTC has supplanted the role of a conductor. NS views PTC as handling all the tasks of a traditional conductor including: (1) advising the locomotive engineer regarding certain notifications and actions; (2) communicating with certain individuals outside the locomotive cab; and (3) completing certain forms and maintaining records. NS stated that new or revised mandatory directives are conveyed through the PTC system. NS also stated that the PTC system uses locational and mandatory directive data to prompt the engineer to obtain permission from the designated roadway worker in charge before reaching a work zone, and then the PTC system requires the engineer to acknowledge that the train has acquired the permission, presumably by radio communication, before allowing the train to proceed into the work zone. NS commented how a ground-based conductor or other technologies could perform the tasks that PTC systems do not completely perform. In a written statement, NS also commented that the railroad can plan to have a second crewmember on a train when it leaves PTC territory where appropriate or when the PTC system fails en route. Further, NS explained how the PTC system was designed utilizing human factor engineering principles to convey critical information clearly and consistently, thereby aggregating train and route information in a way that reduces cognitive workload while operating the train. CN commented against the rule for the reasons described by the Association of American Railroads (AAR) but also requested that any final rule include revisions that permit ground-based crewmembers.201 CN commented that the NPRM’s proposed requirements would stifle different approaches to crew staffing and would permanently remove any possibility of ground-based assistance. CN commented that it would 198 FRA–2021–0032–13184 (hearing transcript). 199 FRA–2021–0032–13045. 200 FRA–2021–0032–13181. 201 FRA–2021–0032–13144. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 prefer an option like one FRA proposed in the 2016 NPRM that allowed for a railroad with PTC-enabled lines to notify FRA of the operation and permit FRA subsequent review to evaluate whether the railroad was providing appropriate safety.202 BNSF also commented against the rule for the reasons described by AAR and commented that the NPRM would unnecessarily impede BNSF’s ongoing efforts, through collective bargaining, to implement one-person crew operations that also deploy ground-based conductors.203 BNSF commented that it was focused on making work schedules more predictable for conductors. FRA’s Response FRA does not agree with CN’s concern that the NPRM would stifle different approaches to crew staffing or use of ground-based assistance, as the NPRM proposed a special approval process designed to consider the safety implications of alternative approaches. For instance, if CN or any other railroad seeks to initiate a one-person train crew operation that was not otherwise excepted, the use of one or more ground-based employees to assist the train could be considered a way to mitigate the risks in a risk assessment filed under the special approval petition process. CN and other railroads could, for example, look to one of AAR’s exhibits evaluating some risks involved with one-person train crew operations under four basic sets of accident scenarios as a reference in creating a risk analysis.204 The combination of ground-based employees, PTC, and other mitigating actions taken in conjunction with the special approval petition and risk assessment, where required under this final rule, could support a showing that a one-person train crew operation, with the risk mitigations in place, is as safe or safer than a two-person train crew operation. As explained below, FRA notes there 202 81 FR 13918, 13966 (Mar. 15, 2016) (citing option 2, proposed § 218.135). 203 FRA–2021–0032–12996. 204 FRA–2021–0032–13056, AAR’s Exhibit 6, a report prepared by Oliver Wyman titled ‘‘Evaluation of Single Crew Risks’’ (Jan. 26, 2015) (conducting a comparative risk analysis for select accident causes under present day mainline operations with traditional two-person crews versus future mainline operations on Class I railroad lines when an FRA-compliant PTC system is fully implemented). This report contained the disclaimer that ‘‘it does not consider all causes of accidents and is not a full comparison of accident frequencies with and without PTC.’’ Certainly, a risk assessment would go further than this report to consider incidents not preventable by a PTC system—such as those accidents that a PTC system is not designed to prevent when a train is operated at restricted speed. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 are various terms being used by different railroads to describe their ground-based employees. Although use of different terms may present some confusion or concern, FRA recognizes that these types of employees may be important parts of a one-person train crew operation under the special approval petition requirements of this final rule. The comments regarding alternative crewmember arrangements introduced various terms to describe rail employees such as expeditor, ground-based crewmember, and ground-based conductor, which FRA does not use in its regulations, but the concepts of which are incorporated within current terminology and requirements regulating railroad operating practices such as ‘‘utility employee,’’ 205 ‘‘train or yard crew,’’ 206 and ‘‘worker.’’ 207 FRA’s current regulations specify requirements for the safe protection of temporary crewmember and non-crewmember railroad employees engaged in the inspection, testing, repair, and servicing of rolling equipment as is expected of utility employees and workers.208 For instance, a ground-based employee, who is not part of the train crew, may need help from a conductor or second crewmember to communicate with the locomotive engineer so that mechanical repairs may be made safely, in accordance with current Federal rail safety requirements. Meanwhile, neither a utility employee nor worker, as defined in FRA’s existing requirements, 205 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). 206 49 CFR 218.5 (defining ‘‘train or yard crew’’ as one or more railroad employees assigned a controlling locomotive, under the charge and control of one crew member; called to perform service covered by Section 2 of the Hours of Service Act; involved with the train or yard movement of railroad rolling equipment they are to work with as an operating crew; 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 §§ 217.9 and 217.11 of this chapter. 207 49 CFR 218.5 (defining ‘‘worker’’ as any railroad employee assigned to inspect, test, repair, or service railroad rolling equipment, or their components, including brake systems. Members of train and yard crews are excluded except when assigned such work on railroad rolling equipment that is not part of the train or yard movement they have been called to operate (or been assigned to as ‘‘utility employees’’). Utility employees assigned to and functioning as temporary members of a specific train or yard crew (subject to the conditions set forth in § 218.22 of this chapter), are excluded only when so assigned and functioning). 208 49 CFR part 218, subpart B—Blue Signal Protection of Workers. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations would ride with the train, call out and verify signal indications, communicate by radio on behalf of the train crew, identify safety dangers along the rightof-way as the train progresses, remind the locomotive engineer of speed or other operating restrictions, provide guidance in an emergency or difficult operating environment based on experience, or monitor the locomotive engineer’s alertness. Although a groundbased conductor that is part of the train crew or some technologies (or a combination of the two) might be able to assist with some of these functions, the descriptions of the Class I freight railroads’ ground-based employee pilot programs indicate that the intent is to utilize rail personnel more efficiently by allowing the ground-based employee to service more than one train in a defined geographic area. Although the groundbased employee arrangement may be an efficient use of operations personnel, that arrangement alone does not offer an identical safety substitute for a traditional, second crewmember that travels on the train to each destination. The use of terminology, not based in FRA’ regulations, can obscure or minimize current safety requirements, and suggests that a railroad employee performing a non-crewmember role may be treated the same as a crewmember. A railroad is obligated to comply with FRA’s current minimum safety requirements that protect these railroad employees from personal injury posed by any movement of such equipment regardless of the terminology used by the railroad. For instance, regardless of whether a railroad refers to a groundbased person assigned to assist more than one train as an expeditor, groundbased crewmember, or ground-based conductor, that person is not part of the train crew under FRA’s definition of ‘‘train or yard crew’’ and must be provided with the Federally mandated safeguards when assisting a train. Although UP has not yet initiated its expeditor plan, this Class I freight railroad made several comments justifying its plan to test the viability of one-person operations that are problematic, confirming a need for an FRA approval process. For instance, UP’s rationale for initiating its expeditor plan oversimplified the conductor’s roles and responsibilities. UP described a conductor’s job as ‘‘primarily consist[ing] of preparing a train for departure and occasionally addressing minor mechanical issues that occur en route.’’ 209 UP’s limited description of the conductor’s job failed to address 209 FRA–2021–0032–13012 (comment filed by UP). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 how a railroad would offset the significant safety backup and assistance role that conductors currently provide. For instance, UP’s description of the conductor’s job neglected to address the railroad’s operating rules and practices that hold a conductor accountable, along with the locomotive engineer, for the safe operation of the train and observance of the railroad’s rules.210 There are also numerous railroad rules that impose crewmember requirements such as the duty to communicate to each other the name of signals affecting their train as soon as the signals become visible or audible.211 Similarly, there are numerous railroad rules that impose requirements on a conductor because the conductor is singled out for supervising the train operation, advising the engineer and train dispatcher of any restriction placed on equipment being handled, and reminding the engineer when the train is approaching certain area restrictions.212 Similarly, UP and many other railroads have established ‘‘cab red zone’’ rules that require both crewmembers to minimize distractions during critical operating circumstances in an effort to enhance safety, but railroad commenters never raised alternative safety measures they would voluntarily adopt that offer a safety equivalent.213 Because conductors are accountable for safe train operations, a person holding a conductor certification can have that certification revoked.214 Of course, the reason that UP and other 210 UP’s General Code of Operating Rules (GCOR) describes the duties of crew members in rule 1.47 as generally ‘‘responsible for the safety and protection of their train and observance of rules’’ and includes a list and description of specific conductor responsibilities. 211 UP’s GCOR 1.47, C. All Crew Members’ Responsibilities, 1. Crew Members in Control Compartment. 212 UP’s GCOR 1.47, A. Conductor Responsibilities. 213 UP’s GCOR 1.47.1: Cab Red Zone. For example, UP requires a cab red zone when operating at restricted speed and not switching, a situation where PTC, as designed, would not always stop a train as required by a restricted speed rule. In the cab red zone, UP requires that a crewmember handling radio communications must not be the locomotive engineer operating the controls. Although a railroad may amend a railroad operating rule or practice without FRA’s permission if the railroad’s requirement is not a Federal requirement, each railroad adopts these selfimposed requirements to ensure that it implements safe operating practices and presumably would not intentionally introduce unsafe practices—which FRA could address through enforcement of existing requirements (such as those in 49 CFR part 217 regarding FRA review of a railroad’s operating rules); by establishing new requirements; or by making recommendations in guidance. 214 For instance, during the years 2021 and 2022, UP reported to FRA that it revoked certification for approximately 252 conductors for violations of operating rules and practices. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 25077 railroads hold conductors accountable for safe train operations is that conductors are often completing safety tasks independently of a locomotive engineer, such as throwing handoperated switches or directing shoving movements, or acting as an important backstop to the locomotive engineer when calling out signal indications, reviewing operating instructions, or obtaining track authorities or permissions. FRA is concerned that, without the type of Federal oversight required by this final rule, the commenting Class I railroads that have overstated the role of PTC or diminished the traditional role of a conductor will unreasonably rely on those same incorrect assumptions in making safety determinations when transitioning to a one-person train crew.215 It is also concerning that UP and other rail industry commenters largely asserted their safety case for groundbased employees by limiting their focus to circumstances when conductors are needed to fix mechanical problems and, in doing so, neglect the conductor’s currently broad safety role. Although FRA shares the rail industry’s concern that a train crewmember could get hurt in a slip, trip, or fall coming on or off on-track equipment or walking along the right-of-way, the industry’s safety argument related to ground-based employees assisting the train seems largely limited to that one concern. UP also commented that expeditors ‘‘will be less likely to suffer the effects of fatigue [because i]nstead of riding long miles on a train, the expeditor will be able to set out fresh from a home terminal every day’’ 216 but did not address the issue of the locomotive engineer’s fatigue by stating that UP would limit the oneperson train crewmember to regular shifts as well. Many individual and labor organization comments stated how a second crewmember can help offset a locomotive engineer’s fatigue, but UP and other Class I railroad commenters did not address this safety concern. NS and other Class I freight railroad industry commenters stated that their plans to deploy ground-based employees and reduce crew size to one person would substantially rely on PTC systems. However, PTC systems were designed as overlay systems (i.e., ‘‘all of 215 Overall, FRA found AAR’s Exhibit 1, a report prepared by Oliver Wyman titled ‘‘Assessment of Conductor and Engineer In-Cab Work Activities’’ (May 15, 2021), FRA–2021–0032–13056, informative, but FRA did not find it persuasive because of its failures by omission or making of assumptions that FRA did not agree with similar to those described in FRA’s response to UP’s comment. 216 FRA–2021–0032–13184 at 79–80. E:\FR\FM\09APR4.SGM 09APR4 25078 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations the safety features of the underlying operation to which PTC is added will be kept’’) 217 to include the conductor. Indeed, FRA fully addressed this issue when requiring the onboard PTC apparatus to be arranged so each member of the crew assigned to perform duties in the locomotive can receive the same PTC information displayed in the same manner and execute any functions necessary to that crewmember’s duties.218 In the section-by-section analysis of a final rule on PTC systems, FRA stated that ‘‘[f]or the conductor and engineer to fulfill the expectations of Congress, it is necessary for both crewmembers to have sufficient information to perform their duties,’’ and FRA described how ‘‘safety would be materially diminished if the conductor in freight operations were denied access to the same information in the same format as the engineer.’’ 219 Also during that PTC rulemaking, FRA rejected AAR’s comment that questioned the need for a conductor to have a PTC display and explained that ‘‘PTC is currently an imperfect technology fed by databases that can be corrupted’’ when the agency determined that the conductor or second crewmember must have the same PTC information displayed as the locomotive engineer.220 For instance, during one of the PTC systems rulemakings, FRA responded to an AAR comment for a study showing that safety is jeopardized by assigning the engineer PTC-related duties by stating that ‘‘FRA has directly observed engineers exceeding authorities while attempting to respond to PTC system requirements . . . and [how they were] plainly distracted from safety-critical duties.’’ 221 Thus, in response to this train crew size safety requirements rulemaking, AAR and other freight rail industry commenters are rehashing arguments FRA rejected in prior rulemakings, such as the argument that a locomotive engineer alone can acknowledge electronically transmitted mandatory directives by simply pressing a button when the train is in motion—an action that does not provide evidence of comprehension.222 Removal of the 217 75 FR 2598, 2005 (Jan. 15, 2010). e.g., 49 CFR 236.1006(d). This requirement was moved from 49 CFR 236.1029(f), a section with requirements addressing PTC system use and en route failures, to its current location because it seemed a more intuitive location for a requirement related to equipping locomotives. 79 FR 49693, 49705 (Aug. 22, 2014). 219 75 FR 2668. 220 75 FR 2669–70. 221 75 FR 2670. 222 75 FR 2670–71. In rejecting AAR’s argument under a PTC system final rule, FRA explained that the current practice of reading mandatory directives ddrumheller on DSK120RN23PROD with RULES4 218 See VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 conductor under these circumstances would mean that the Class I freight railroad industry commenters intend for the PTC systems to act as the sole backup for any operating mistakes committed by the locomotive engineer. Even when a PTC system works as intended, human error could occur if mandatory directive information is input incorrectly. In effect, a second crew member serves as a backup to validate the electronically transmitted mandatory directives are accurate. As FRA noted in response to other comments, railroads continue to experience unplanned outages and planned outages of their PTC systems, in addition to various initialization failures, cut outs, and malfunctions. For example, in March 2023, BNSF and Amtrak experienced unplanned outages of their PTC systems, and NS experienced an unplanned outage of its PTC system in August 2023, impacting operations of both the host railroad and its tenant railroads. Also, during 2023, several Class I railroads, commuter railroads, and Amtrak temporarily disabled their PTC systems to facilitate planned infrastructure upgrades or capital projects. Even three years after the December 31, 2023, statutory deadline for full implementation of PTC systems, the railroad industry is continuing its efforts to improve the reliability and performance of PTC technology due, for example, to failures (including initialization failures, cut outs, and malfunctions, as defined in FRA’s PTC regulations at 49 CFR 236.1003) and temporary planned and unplanned outages. Moreover, the safety issues regarding the implementation of one-person train crew operations go beyond what the PTC system can do and include what additional duties will be shifted from a conductor to a one-person crew that have the potential to reduce the locomotive engineer’s situational awareness. During the hearing, NS commented that it envisions the oneperson crew will absorb the added duty of communications with other trains, such as communicating a defect observed on another train, while neglecting to address how the additional duty can be done safely, how realistic it is to expect a one-person crew to look for such defects while safely monitoring the progress of its own train, and whether any new hazards are created by the additional task that may need to be offset by some other action. back to the dispatcher over the radio gives the crew an opportunity to read it and consider its relevance to the current situation. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Although Class I freight railroad commenters pointed to the success of the Class II Indiana Rail Road Company (INRD) as their model for rolling out a one-person train operation, those railroad commenters did not explain or demonstrate to FRA that they took, or planned to take, any of the steps INRD took when it first implemented its oneperson train crew operations nor did they explain how their operations are comparable to a regional railroad that largely serves local industries and provides connections between small railroads and major Class I railroads and that is operating on approximately 500 miles of track in two States.223 For example, the Class I freight railroads’ comments did not address whether: the communication requirements were reviewed and adapted for the oneperson operation; or mitigation measures would be required to protect the one-person train crew, the public, or the environment, especially when a ground-based assistant would be unable to easily reach the train. Similarly, without a special approval process, a Class I freight railroad, with a more complex operation than a Class II or III freight railroad because it employs thousands of people in train operations and prioritizes long-haul transportation, would not be required to demonstrate that it considered all the hazards and mitigated the risks for a one-person train crew operation before initiating implementation, which FRA finds concerning given the ground-based employee plans described in comments do not include some hazards or show plans for mitigating risks that FRA identified in the NPRM. Thus, the INRD’s Class II one-person train crew operation is not comparable to a potential Class I railroad operation unless a Class I railroad takes substantial steps to make them comparable. b. Train Operations in Other Countries AAR and other major freight rail industry commenters contend that FRA should not have a two-person train crew mandate because rail operations in other countries that use one-person crews provide sufficient data to support the 223 87 FR 45568 (footnote 24 which listed the characteristics of INRD’s one-person train operation that INRD claimed it voluntarily implemented to ensure the operation’s safety). At FRA’s public hearing for this rule, INRD stated that its implementation of a one-person train crew that started in 1997 ‘‘required a lot of research, innovation and modern day technology.’’ In addition, INRD clarified at the hearing that it used two types of one-person train crew operations, i.e., terminal-to-terminal with a single-person crew and split crews with one person in a motor vehicle. FRA–2021–0032–13184 at 93. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations safety of one-person train crew operations, and that data, when considered with the INRD’s example, and the fact that ‘‘passenger trains in the United States typically operate with one person in the cab,’’ should be sufficient to support the safety of one-person train crew operations.224 For instance, one of AAR’s sponsored research documents compared the safety and characteristics of European and U.S. railways.225 In summary, that 2021 study found that the operating complexity of the European rail network was based on high train density.226 This AARsponsored study concluded that the defining factor in safety was not crew size; instead, lower accident rates were attributable to ‘‘the kind of investments that mature economies make in infrastructure and technology—the same kind of investments that U.S. railroads have made and continue to make . . . each year.’’ 227 AAR also submitted a study it sponsored in 2015, which promoted train crew size reductions on trains operating on high-density lines from an economic view that would justify the expense and use of round-the-clock utility personnel.228 This study described one-person train crew operations in North America, Europe, and in other countries in 2015 and the safety record of those international operations. FRA’s Response FRA found the AAR-sponsored studies and major freight railroad comments on rail operations in other countries generally informative, but lacking persuasion that FRA should forgo regulating the subject matter of train crew size safety. In summary, FRA found one-person operations in other countries are either not comparable because of different operational factors that contrast with U.S. operations or because effective government regulation in other countries has established minimum safety standards in the same way this final rule will for U.S. operations. 224 FRA–2021–0032–13056, AAR’s Comment at 3. AAR’s Exhibit 2, a report prepared by Oliver Wyman titled ‘‘CrewRelated Safety and Characteristic Comparison of European and US Railways’’ (Apr. 5, 2021). This report appears to be an update of AAR’s Exhibit 4, another report prepared by Oliver Wyman titled ‘‘Assessment of European Railways: Characteristics and Crew-Related Safety’’ (June 15, 2016). 226 FRA–2021–0032–13056, AAR’s Exhibit 2 at 16. 227 FRA–2021–0032–13056, AAR’s Exhibit 2 at 66–67. 228 FRA–2021–0032–13056, AAR’s Exhibit 3, a report prepared by Oliver Wyman titled ‘‘Analysis of North American Freight Rail Single-Person Crews: Safety and Economics.’’ (Feb. 3, 2015). ddrumheller on DSK120RN23PROD with RULES4 225 FRA–2021–0032–13056, VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 For instance, in the NPRM, FRA addressed the subject of train operations in other countries by explaining that, for the most part, they are not comparable to U.S. train operations due to differences in train lengths, territory, and infrastructure.229 AAR’s comment included information supporting, or at least not refuting the accuracy of, FRA’s position in the NPRM. For instance, AAR’s comment included research supporting that Western European rail operations are significantly different in train length when compared to U.S. rail operations, as European freight trains are shorter to accommodate shorter block sizes and a greater number of interlockings.230 The Class I comments also did not provide further information showing that FRA’s statements in the NPRM were inaccurate regarding how foreign, one-person freight train operations do not carry out extensive interlining or switching with other railroads and that many foreign, oneperson passenger train operations do not have to share track with freight operations or operate over highway-rail grade crossings.231 It was for these reasons that FRA concluded in the NPRM that the safety hazards associated with those Western European rail operations are not comparable to those involving U.S. operations. One significant element reflected in AAR’s 2015 sponsored study undermining the Class I railroads’ position is that railroads in other countries must sometimes abide by operational restrictions that regulating agencies have placed on one-person train crew operations. For example, this study explained how the Transportation Safety Board of Canada required the implementation of certain safety measures after the catastrophic accident at Lac-Me´gantic, Quebec, that FRA described in the NPRM,232 and that the measures range from better tracking of those trains to specific dispatcher 229 87 FR 45580. As stated above, in response to the 2016 NPRM, AAR submitted studies it sponsored assessing European railway safety data with respect to train crew size and describing oneperson train crew operations in other countries, including European countries. The 2019 withdrawal discussed but did not analyze these studies’ conclusions. 84 FR 24737. For the reasons explained here, FRA finds these studies generally informative but unpersuasive on the matter of regulating train crew size safety, particularly when considered along with the totality of the information discussed and analyzed in the 2022 NPRM and here in the final rule. 230 FRA–2021–0032–13056, AAR’s Exhibit 2 at 4, 13, 66–67 (stating that 40 cars is the average length of European freight trains). 231 FRA–2021–0032–13056, AAR’s Exhibit 2 at 13 (stating that ‘‘the majority of U.S. rail freight does not run on mixed lines with high-frequency passenger services, unlike in Europe’’). 232 87 FR 45568–69. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 25079 training and fatigue mitigation measures.233 Similarly, this same study found that the European Union imposed two preconditions on one-person train crew operations: (1) a working ‘‘deadman control system’’ which is the equivalent of what FRA refers to as an ‘‘alerter’’; and (2) the equivalent of a U.S. centralized traffic control system (CTC).234 The study described how in the United States there are three types of signaling control systems (excluding PTC) and, of those systems, CTC affords the highest level of control, automation, and integration of safety logic.235 In the European signaling control system, dispatchers can remotely operate signals and switches to ensure that trains do not make conflicting movements,236 but presumably also to limit when or how often a one-person crewmember would need to temporarily climb down from the locomotive to throw a switch. In contrast, not all U.S. railroads have dispatchers and not all dispatchers at U.S. railroads have the capability to operate all switches and fixed derails remotely or have a train crewmember operate such devices by radio. These are the types of safety issues that necessitate evaluation through a risk assessment, as required under the final rule. In Germany, devices are installed on locomotives to automatically adjust for high-speed braking on curves, and there are requirements for a second crewmember when a dead-man device fails or under other unusual circumstances.237 Therefore, this final rule’s requirements for a functioning alerter and related operating rules are consistent with the restrictions other countries have imposed for one-person train crew operations. Another takeaway from the 2015 AAR study was that it focused on a limited number of accidents that were considered preventable with a multipleperson crew,238 but the data analyzed 233 FRA–2021–0032–13056, AAR’s Exhibit 3 at 8. BLET and SMART–TD’s jointly filed comment noted that some railroad commenters pointed to European rail standards to support use of a oneperson train crew while ignoring the Canadian safety standards, which BLET and SMART–TD stated are far more comparable to U.S. railroading but clearly do not support reduction in the size of train crews. 234 FRA–2021–0032–13056, AAR’s Exhibit 3 at 11. 235 FRA–2021–0032–13056, AAR’s Exhibit 3 at 4. 236 FRA–2021–0032–13056, AAR’s Exhibit 3 at 11. 237 FRA–2021–0032–13056, AAR’s Exhibit 3 at 12. 238 FRA–2021–0032–13056, AAR’s Exhibit 3 at 19 (explaining how the study limited what data it perceived as relevant to datasets in which the crew has some control and the size of the crew could arguably make a difference in the outcome of an incident). E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25080 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations did not include incidents involving close calls that likely go unrecorded or the potential for quicker response times to take mitigation measures that a multiple-person crew on the scene can take in the moments immediately following a variety of situations as compared with ground-based employees that would first need to be deployed to a scene before engaging in mitigating measures. It seems that the industry’s argument focused on a narrower subset of situations where a second crewmember may be beneficial than FRA did in the NPRM. Similarly, the Alliance for Innovation and Infrastructure (AII) commented on the NPRM that a second crewmember has the potential to reduce damage only based on ‘‘a host of assumptions that cannot be proven’’ and that, ‘‘hypothetical[ly], it is equally likely that all crewmembers die or are incapacitated, that the crew members are impacted by the bystander effect and do little or no mitigating activity, or that the main mitigation [is] by non-rail personnel.’’ 239 FRA disagrees with AII’s comment because the comment fails to acknowledge that FRA’s central approach, i.e., for each railroad to conduct a risk assessment, would produce an objective risk-based analysis that addresses such questions. This final rule will impose reasonable restrictions, collect data, and address the unique complexities of U.S. railroad operations through a review process. If data or analysis later suggests FRA should consider a different approach, any person could petition FRA for a new rulemaking, or FRA could initiate one. FRA disagrees with AAR’s comment that there is sufficient comparable data on one-person train crew operations to support that such operations are safe. For instance, AAR’s comment that the data from passenger operations should be used is typically inaccurate as FRA explained in the NPRM that multiple train crewmembers are typically necessary to meet the requirements of FRA’s passenger train emergency preparedness rule so that passenger operations’ data is not comparable to a one-person train crew operation.240 Class I railroad commenters pointed to the 250-mile, Class II, regional railroad INRD’s one-person train crew operation as an example for them to follow even though their operations are drastically different because INRD, for instance, 239 FRA–2021–0032–12313 at 35. Although AII clearly opposed the NPRM, its analysis seemed conflicted when it concluded that ‘‘[f]or [accident] mitigation, that [a] conductor being anywhere on the train would theoretically help reduce damage.’’ Id. at 32. 240 87 FR 45579. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 described its one-person train crew operations to FRA as hauling a single commodity that did not include hazardous materials.241 In order to ensure safety in the future, the NPRM explained that the safety record of a few one-person Class II and III train crew operations would not necessarily be 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.242 Further, the analogy is the same when comparing Class I freight railroads to Western European rail operations; both may be complex operations, but the factors making them complex are different. And, as the NPRM proposed, the final rule will not prohibit all one-person train crew operations but allow some under specific conditions and others potentially after a petition is filed, a review process is followed, and an agency special approval is granted. c. New Technology and Automated Operations As noted in the NPRM, although current FRA regulations do not explicitly require the presence of a human operator, FRA’s regulations were developed and drafted based on a general assumption that a train would be operated by a person, albeit with assistance from technology.243 For that reason, the NPRM proposed a special approval petition process that would have required a risk assessment before initiating an operation, and the NPRM’s background stated that FRA understands that the rail industry is anticipating future growth in automation and is concerned how a train crew staffing rule might impact the future of rail innovation and automation. Further the NPRM noted that a railroad, seeking to use rail automation technology that does not comply with FRA’s existing rail safety regulations, may file a petition for rulemaking under FRA’s regulations, or a petition for a waiver of FRA’s safety rules.244 241 87 FR 45568. In the NPRM, FRA summarized INRD’s public statements describing its operation that were made during FRA’s 2016 train crew staffing rulemaking. 242 87 FR 45581. As the NPRM stated, 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. 243 87 FR 45567. 244 87 FR 45586. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 In response to FRA’s proposal, some rail industry commenters asserted that the NPRM is anti-technology, that DOT has promoted automated operations for motor vehicles, including trucks, over railroads, and that the NPRM blocks incentives to innovate. For instance, AAR commented that the NPRM would cause a modal shift from railroads to trucks, directly impacting the railroad industry’s competitiveness 245—a position shared by ASLRRA.246 To support its position, AAR provided a research paper it had commissioned that concluded the NPRM would have profound implications regarding the level and nature of freight competition between railroads and trucking companies, particularly in an era of increased vehicle automation.247 Although AAR’s sponsored research described truck platooning technology 248 as ‘‘nascent,’’ and thus just beginning to display signs of future potential, the research suggested substantial future cost savings in the mid-range figure of 29 percent for trucking companies, thereby impacting the ability of railroads to compete and profit.249 AAR’s sponsored research suggested that a shift from rail to truck shipments may not be true ‘‘where shipment characteristics favor rail transportation to the exclusion of truck [which] is particularly true of many liquid chemical and petroleum products, including plastics.’’ 250 The research and other commenters compared existing safety statistics between the nonautomated truck and rail industries, and concluded that rail is safer and should therefore be promoted. The AARsponsored research also suggested that ‘‘[a]n unbalanced program of technological advancement will divert tens of millions of tons of freight from rail to truck and, in doing so, add measurably to the degradation of air 245 FRA–2021–0032–13056. 246 FRA–2021–0032–13033. 247 FRA–2021–0032–13056, AAR’s Exhibit 9, a report prepared by Mark Burton, Research Associate Professor (Retired from The University of Tennessee), titled ‘‘Rail-Truck Competition in an Era of Automation Technology’’ (Dec. 2022). 248 DOT’s Federal Highway Administration describes truck platooning projects whereby a convoy of trucks are partially automated, meaning that the vehicles control the coordinated speeds and braking with the lead vehicles in the platoons, but the drivers maintain steering control and are expected to continuously monitor the driving situation to be ready to assume full control of the vehicles at any time. https://highways.dot.gov/ research/laboratories/saxton-transportationoperations-laboratory/Truck-Platooning. 249 FRA–2021–0032–13056, AAR’s Exhibit 9 at 6– 8. 250 FRA–2021–0032–13056, AAR’s Exhibit 9 at 13. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations quality.’’ 251 Thus, freight rail industry commenters projected that the NPRM proposing a two-person train crew mandate with exceptions had the potential to dramatically shift freight shipments from rail to truck, cause railroad revenues to fall, diminish public safety, increase fuel consumption, and lead to major increases in the demand for highway capacity.252 The American Consumer Institute (ACI), which is described as a nonpartisan, educational, and public policy research organization that protects consumers’ interests, stated that ‘‘FRA should be following the lead of the trucking industry and to allow as much automation as possible’’ to lower costs for consumers and take advantage of the Class I freight railroads’ $760 billion investment in PTC since the 1980s.253 ACI commented that the NPRM would increase costs for consumers and could also have a negative impact on the environment if companies shift from rail to truck shipments for their goods. A similar comment was filed jointly by 19 non-profit, policy think tanks.254 FRA’s Response In the NPRM’s background, FRA explained how historically the roles of certain crewmembers were nullified by technology and contrasted those situations with the current one in which the rail industry has not made the same type of technological breakthrough case.255 The comments and research provided by commenters are premised on the assumptions that labor-saving technologies are already developed and that these technologies advance both productivity and operational safety. However, the commenters’ conclusions incorrectly assume that the labor-saving technologies are already developed, accepted, and implemented. 251 FRA–2021–0032–13056, AAR’s Exhibit 9 at 17. 252 FRA–2021–0032–13056, AAR’s Exhibit 9 at ddrumheller on DSK120RN23PROD with RULES4 18. 253 FRA–2021–0032–10337. The comment cited an AAR website for the amount of the investment, but incorrectly quoted $780 billion when the website stated $760 billion. https://www.aar.org/ campaigns/ptc/. 254 FRA–2021–0032–12300. Rio Grande Foundation; Washington Policy Center; Nevada Policy Research Institute; Bluegrass Institute for Public Policy Solutions; Roughrider Policy Center (North Dakota); John Locke Foundation (North Carolina); Maine Policy Institute; Thomas Jefferson Institute for Public Policy; Josiah Bartlett Center for Public Policy; Cardinal Institute for West Virginia Policy; Idaho Freedom Foundation; Alaska Policy Forum; Maryland Public Policy Institute; Yankee Institute; Mississippi Center for Public Policy; The John K. MacIver Institute for Public Policy; The Buckeye Institute; and the Garden State Initiative. 255 87 FR 45567–68. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 For instance, FRA disagrees with those commenters who pointed to the PTC systems as the automated technology they would use to justify removal of a second crewmember. FRA is certainly aware that the PTC systems are sometimes enhanced, through integration of other software that may act like an automobile’s cruise control system; yet, to date, even those enhanced PTC systems do not perform all the necessary functions in all operating environments.256 In addition, PTC technology is currently governing rail operations on approximately 42 percent of the rail network in the United States, and this rule addresses rail operations nationwide. While FRA is aware that other rail systems, with various levels of autonomous features, are already available or are expected to be built,257 freight rail industry commenters largely did not suggest that they would be relying on a system other than PTC. For these reasons, no U.S. railroad has yet to make a case that it is ready to implement a reliable system, suitable for the complexity of its operations, and with a high enough level of autonomy that would either: (1) negate the need for any crewmembers; or (2) negate the need for a single crewmember whose central operational duty would be to make an emergency brake application in case of an automated system error or otherwise perform duties normally associated with a conductor, but not be expected to operate the train. The freight rail industry expressed concern with competition from the trucking industry, especially as automated or partially automated driving technologies such as truck platooning improve, but their concerns do not undermine the basis for this rulemaking which focuses on the rail safety hazards introduced by reducing crew size. The commenters also suggested that the cost of compliance with the rule as proposed would be high enough to shift freight from rail to truck, a potentially less safe form of transport. However, FRA’s RIA shows that the final rule’s costs are lower than the commenters’ projections, which were based on the NPRM, and both FRA and DOT as a whole do not expect such 256 83 FR 13583, 13584–85 (Mar. 29, 2018) (citing FRA’s ‘‘Request for Information: Automation in the Railroad Industry’’ which included a description of two different methods for defining levels of automation). 257 83 FR 13584 (describing known rail technologies). It has been over five years since FRA formally recognized the existence of a fully autonomous freight railroad system in Australia operated by a mining company on an approximately 62-mile stretch of track in western Australia but no U.S. railroad has sought to implement that system. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 25081 cross-modal impacts under this final rule. DOT’s mission statement is ‘‘to deliver the world’s leading transportation system, serving the American people and economy through the safe, efficient, sustainable, and equitable movement of people and goods.’’ 258 DOT serves its mission consistent with the Federal government’s national standards strategy for critical and emerging technology.259 And while DOT has certainly funded research concerning automated motor vehicles and the trucking industry,260 it is doing the same by funding research concerning automation in the rail industry, as described below. FRA supports technological advancement through research and funding.261 For instance, FRA’s current list of approximately 128 projects includes research on: (1) how unmanned aerial vehicles known as drones would allow railroads to inspect larger sections of track at one time and speed up inspections; (2) developing and testing a modular, field-deployable system combining edge computing with advanced artificial intelligence processing to detect and classify track features from a moving platform in nearreal-time; (3) developing an artificialintelligence-aided machine vision for grade crossing safety that would provide real-time alerts for damaged gate arms, flashers, and other critical safety-related issues; (4) ensuring that an interoperable automated train operation system is defined to meet industry safety and automation objectives; and (5) improving rail safety and efficiency objectives when an RCL is used to perform switching operations on the line-of-road without crew presence in the cab of the controlling locomotive, an operation known as ‘‘road RCL.’’ 262 Further, FRA is sponsoring research on the human-automation interaction and teaming to affect the design, 258 DOT’s mission statement, https:// www.transportation.gov/about, is based on its statutory authority. 49 U.S.C. 101. 259 The U.S. government will focus standards development activities and outreach regarding the application of ‘‘automated, connected, and electrified transportation, including automated and connected surface vehicles of many types.’’ U.S. Government National Standards Strategy for Critical and Emerging Technology (May 2023) at 6–7. https://www.whitehouse.gov/briefing-room/ statements-releases/2023/05/04/fact-sheet-bidenharris-administration-announces-nationalstandards-strategy-for-critical-and-emergingtechnology/?utm_source=link. 260 https://highways.dot.gov/automation. 261 https://railroads.dot.gov/researchdevelopment/research-development-andtechnology. 262 https://railroads.dot.gov/elibrary/fra-officeresearch-development-and-technology-currentprojects-2023 at 11, 16, 51, 117, and 123. E:\FR\FM\09APR4.SGM 09APR4 25082 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations certification, and implementation of automation and to ensure that safety is enhanced, not degraded, by new technology and automation.263 Similarly, FRA disagrees with commenters claiming that FRA failed to consider how the rail industry can use operational innovations or deploy readily available technology to address any safety concerns associated with the operation of a train with fewer than two crewmembers. FRA addressed this issue in the background section titled ‘‘Automated Operations.’’ 264 As stated in the NPRM, this rule is not intended to impede rail innovation nor does this rule regulate autonomous operations.265 The rule simply requires a description of ‘‘any technology that will be used to perform or support tasks typically performed by a second crewmember, or that will prevent or significantly mitigate the consequences of accidents or incidents’’ in a petition for special approval.266 Among other things, this information will allow FRA to ensure that the technology being used to support a one-person operation has gone through the proper waiver or regulatory processes, as necessary.267 If a railroad seeks to use technology that does not meet FRA’s existing regulatory requirements, the railroad may petition FRA for a rulemaking that would revise FRA’s regulations to permit the use of the technology to fulfill FRA’s regulatory requirements. A rulemaking petition would need to 263 Id. at 130. FR 45586. 265 The 2019 withdrawal stated that a train crew staffing rule would unnecessarily impede rail innovation and automation, 84 FR 24740, without providing data to support that position. To the contrary, this final rule does not prohibit any specific type of one-person train crew operation or prohibit the use of technology to perform duties typically performed by a second crewmember. Rather, this final rule ensures that minimum safety measures are in place for one-person train crew operations and that, for certain more complex oneperson train crew operations, the risk of foreseeable hazards is mitigated. As explained in the 2022 NPRM, in re-evaluating the information and safety issues concerning one-person train crew operations, FRA concluded that ‘‘a train crew staffing rule would not necessarily halt rail innovation or automation [n]otwithstanding the statements made in the 2019 withdrawal [because] . . . 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.’’ 87 FR 45571. This final rule provides such a process. 266 § 218.131(b)(11), proposed as § 218.133(b)(11). 267 See 49 CFR part 211, subparts C and E (providing FRA’s rules of practice for waivers and miscellaneous safety-related proceedings and inquiries); and see e.g. 49 CFR 236.909 (reflecting the minimum performance standards for the introduction of new railroad products or changes to existing railroad products). ddrumheller on DSK120RN23PROD with RULES4 264 87 VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 comply with FRA’s Rules of Practice 268 and would have to follow the Department’s regulatory process in compliance with the Administrative Procedure Act.269 Alternatively, a railroad could petition FRA for a waiver from any applicable regulations to use technology that does not meet FRA’s existing regulatory requirements.270 Similar to a petition for rulemaking, a waiver petition would also need to comply with FRA’s Rules of Practice 271 and must include all required supporting information, including a safety justification. When petitioning for a rulemaking or a waiver to use technology that does not meet FRA’s existing regulatory requirement, a railroad seeking to use an autonomous operation without a minimum of a oneperson train crew would also be required to petition FRA for a waiver from this final rule, specifically the requirements in § 218.123. d. Transportation of Hazardous Materials AAR opposes the NPRM’s proposed prohibition on one-person train crew operations transporting certain types or quantities of hazardous materials by commenting that there is no evidentiary basis for concluding that one-person operations are less safe than two-person operations and the NPRM did not explain why any increased risks posed by the transportation of hazardous materials could not be adequately addressed through the adoption of safety protocols tailored to those risks.272 FRA’s Response In the discussion of comments and conclusions above, FRA responded to comments from short line rail industry commenters about the proposed twoperson train crew mandate with respect to the transportation of hazardous materials. Aside from individual citizen commenters who were generally concerned about the safety of hazardous materials being transported by a train with a one-person crew or potential delays to mitigation measures with only a one-person crew, few comments were received on this subject. In summary, the NPRM proposed an overarching prohibition on fewer that two-crewmember operations of trains containing certain quantities and types of hazardous materials that have been 268 Specifically, 49 CFR part 211, subparts A and B. 269 5 U.S.C. 551–559. 270 See 49 CFR part 211, subpart C. 271 Specifically, 49 CFR part 211, subparts A and C. 272 FRA–2021–0032–13056. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 determined to pose the highest risk in transportation from both a safety and security perspective (i.e., 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 RSSM as defined by the Department of Homeland Security). FRA described in the NPRM how DOT must balance how hazardous materials are essential to the U.S. economy with the risks posed by accidental and nonaccidental releases of those materials during transportation.273 The NPRM explained how FRA coordinates with PHMSA to regulate and enforce the safe and secure transportation of hazardous materials by rail and how FRA also coordinates with the Department of Homeland Security and its TSA on rail transportation security issues. Further, the NPRM explained that DOT considers train crewmembers as ‘‘hazmat employees’’ requiring specific types of training based on the dangers posed by hazardous materials generally and the additional dangers of a release in transit due to an accident, derailment, theft, or attack.274 The background in the NPRM described the various types of training required for hazmat employees and how the training is required initially and recurrently at least once every three years. Also, the NPRM summarized how PHMSA defined ‘‘high-hazard flammable trains,’’ how certain safety and security factors must be considered in the risk analysis that would be used to determine routing requirements, and how PHMSA only indirectly addressed the human factors issues in its rulemaking because PHMSA understood that FRA initiated a separate, key regulatory safety initiative to address crew size safety.275 For these reasons, FRA stated in the NPRM that 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. In response to various rail industry commenters, the final rule does not contain the proposed overarching prohibition on one-person train crew operations transporting certain quantities and types of hazardous materials. Instead, in the final rule, railroads that cannot meet any of the exceptions are permitted to petition for 273 87 FR 45576–78. FR 45576, especially footnote 127. 275 87 FR 45577 (citing PHMSA’s rule titled ‘‘Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for HighHazard Flammable Trains’’) at 80 FR 26644, 26654– 55 (May 8, 2015). 274 87 E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations special approval to initiate or continue one-person train crew freight operations transporting hazardous materials.276 Moreover, as previously addressed in this discussion of comments and conclusions, the final rule provides Class II and III railroads with an exception to the special approval process to continue legacy one-person train crew freight operations that have been established for at least two years before the effective date of the final rule, including when the railroad has established a legacy operation in which it wants to continue transporting certain hazardous materials. FRA expects that each railroad filing a petition for special approval will build upon that foundation of specified safety requirements and take further mitigation measures to address the hazards and reduce the risks involved in transporting hazardous materials by trains staffed with a one-person train crew. Further, the special approval procedure in § 218.135 will ensure that the public and rail employees are provided an opportunity to comment and provide FRA with an opportunity to review and approve the railroad’s operational plans. ddrumheller on DSK120RN23PROD with RULES4 e. FRA Action on Regulating Crew Staffing Class I freight railroad commenters stated that FRA failed to adequately explain its reconsideration of its previous positions on regulating the safety issues regarding train crew size. AAR asserted that FRA ‘‘fail[ed] to adequately explain its total reversal in position in light of the views and conclusions it expressed in the 2019 Withdrawal Order,’’ and that FRA ‘‘does not adequately explain its changed position in light of the views it expressed in the 2016 NPRM.’’ 277 AAR provided examples of statements from the 2016 NPRM on train crew staffing and the 2019 withdrawal that, according to AAR, the 2022 NPRM contradicts without sufficient explanation for the changed position. For example, AAR 276 As explained in the discussion above of the short lines’ comments, Class II and III railroads seeking to initiate a new one-person operation transporting hazardous materials of the types or quantities described in § 218.123(c) are required under the final rule to petition FRA for special approval and conduct a risk assessment. A special approval petition is also required for continuing an existing operation that has not been established for at least two years before the effective date of the final rule. To initiate other types of one-person crew operations, Class II and III railroads are only required to provide notification and comply with certain operational requirements. The final rule requires Class I railroads to petition for special approval and conduct a risk assessment to initiate any one-person train crew operation. 277 FRA–2021–0032–13056 at 9–11. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 highlighted the 2019 withdrawal’s determinations that ‘‘issuing any regulation requiring a minimum number of train crewmembers would not be justified because such a regulation is unnecessary for a railroad operation to be conducted safely at this time,’’ and that ‘‘no regulation of train crew staffing is appropriate.’’ 278 In addition, AAR pointed to FRA’s statement in the 2016 NPRM that ‘‘FRA cannot provide reliable or conclusive statistical data to suggest whether one-person crew operations are generally safer or less safe than multiple-person crew operations.’’ 279 In its comment, BNSF stated that the 2019 withdrawal extensively catalogued data and other evidence and concluded that this available information ‘‘did not establish that one-person crew operations are less safe than multi-person crews.’’ 280 BNSF asserted that the 2022 NPRM dismisses the 2019 withdrawal’s analysis without sufficient explanation or justification. FRA’s Response After considering all the evidence before it, including comments and data post-dating the 2019 withdrawal that is discussed in the 2022 NPRM, FRA has reassessed its prior positions for two independent reasons.281 First, as the NPRM states, the decision of the U.S. Court of Appeals for the Ninth Circuit to vacate and remand the 2019 withdrawal left FRA with various options on how, or whether, to address the matter of crew size safety. In deciding how to proceed, FRA reconsidered several of the safety issues discussed in the 2019 withdrawal. FRA determined that the 2019 withdrawal de-emphasized safety concerns raised by FRA-sponsored research on the cognitive and collaborate demands of crewmembers and by commenters on the 2016 NPRM. For example, as the 2022 NPRM explains, the research raises safety concerns regarding one-person train crews, such as the loss of a second crewmember to notice and correct errors.282 FRA adheres to that reassessment. This final rule is justified based on FRA’s reevaluation of those 278 84 FR 24741 (May 29, 2019), quoted by FRA– 2021–0032–13056 at 10. 279 91 FR 13919 (Mar. 15, 2016), quoted by FRA– 2021–0032–13056 at 10. 280 FRA–2021–0032–12996 at 1–3. 281 87 FR 45564, 45571–76 (July 28, 2022) (section III.D of the NPRM, titled ‘‘Reconsideration of the Safety Issues’’). 282 See, e.g., id. at 45572 (explaining in detail how FRA has ‘‘revisit[ed] the research . . . to explain how the safety concerns the research raises helped in the development of the proposed requirements for this rulemaking’’). PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 25083 safety concerns and the threat they pose to public safety. Second, in reassessing regulation of safety issues regarding train crew size, FRA also considered information not analyzed in the 2019 withdrawal, such as technological trends and operational changes on Class I freight railroads since 2019. Train accidents can impose enormous and sometimes incalculable costs on individuals, communities, and the environment, and recent industry changes, such as utilizing longer trains than the historical norm, introduce variables that may make it challenging for the industry to continue the past two decades general trend of improved safety in rail operations. As stated in the NPRM, freight train length has increased in recent years, and this trend may have cascading safety impacts unless mitigated by technology, training, or other processes.283 And, as explained above, the latest rail safety data reflects some troubling industry trends that suggest heightened caution and awareness are needed in rail safety and operational planning. Although trains have a relatively strong safety record, the rate for all human factor caused accidents has increased in recent years, notably after the 2019 withdrawal.284 While technological advances in the rail industry, such as PTC, may decrease those accidents in the future, uncertainty related to new operating technologies can affect train safety.285 Furthermore, the research indicates that PTC implementation should not be presumed to lead to fewer crew tasks.286 This point was further corroborated by extensive comments and testimony in this rulemaking from train crewmembers who work with PTC daily and by their representatives.287 In sum, FRA reconsidered information previously analyzed by FRA on crew size safety and considered additional relevant information, including safety data indicating potentially worsening trends since the 2019 withdrawal was issued. Based on this assessment, FRA determined that it needed to change its position from the 2019 withdrawal and concluded that the regulatory requirements in this final rule are necessary to ensure that trains are adequately staffed for their intended 283 87 FR 45564, 45572. Section I., Executive Summary, for a discussion of recent data. 285 See 87 FR 45564 at 45572–45573 (citing 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). 286 Id. at 45572–73. 287 See, e.g., FRA–2021–0032–13038 at 2, FRA– 2021–0032–13049 at 9 and 23, FRA–2021–0032– 13133 at 2, and FRA–2021–0032–0711 at 1–2. 284 See E:\FR\FM\09APR4.SGM 09APR4 25084 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 operation and railroads have appropriate safeguards in place for safe train operations whenever using a oneperson train crew. FRA further notes that the 2022 NPRM and this final rule differ in approach from the previous rulemakings addressing train crew size. Instead of broadly mandating two crew members, the NPRM proposed to require, and this final rule requires, two crew members for the most complex operations until a railroad analyzes an operation and persuasively demonstrates that risks associated with eliminating the second crew member are reasonably mitigated. By allowing railroads to petition for a one-person crew, this final rule accommodates the development of new technology while also ensuring the safety of crews and the public by requiring an analysis that shows that these innovations will not make trains less safe. FRA’s incremental approach— that preserves the status quo while providing latitude for railroads to explore benefits from advances in technology—promotes FRA’s statutory mandate to issue regulations ‘‘as necessary’’ for ‘‘railroad safety.’’ 288 f. Risk Assessments and FRA’s Review Standard AAR asserted in its written comment and reiterated in oral testimony at the public hearing that the proposed risk assessment requirements are flawed.289 In support of its comment, AAR provided several examples demonstrating how the proposed risk assessment might play out using recent accident/incident data and how Class I railroads could never expect a petition for special approval to be granted under the NPRM. AAR also suggested that because Class I railroads are required to have a risk-reduction program, FRA could have allowed these railroads to follow the risk-reduction approach set forth in their approved risk-reduction plans rather than the approach in this NPRM regarding crew size safety requirements. APTA commented that its passenger rail operation members support riskbased approaches that allow railroads to identify, mitigate, and manage safety risks in a manner that reflects the scale and specifics of individual operations. However, APTA asked FRA to reconsider the proposed risk assessment requirements as unnecessary for railroads that already follow an established methodology under FRA’s 288 49 U.S.C. 20103(a). 289 FRA–2021–0032–13056, AAR’s comment at 39–45 and AAR’s Exhibit 5, a comment prepared by ICF International titled ‘‘Comments on Train Crew Size Safety Requirements.’’ (Dec. 12, 2022). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 existing system safety program requirements.290 APTA also had specific concerns about FRA’s proposed risk assessment methodology and whether a minor event might be classified as catastrophic. Further, APTA’s comment raised other policy concerns regarding the proposed risk assessment, including whether the proposed requirements could make information compiled or collected for that risk assessment public when, under the existing system safety program requirements, similar information would receive at least some legal protections.291 CRC’s comment was also similar to APTA’s in its approach to the risk assessment, requesting that FRA leverage its existing system safety requirements. CRC was concerned with the risk assessment burden in the event an approved passenger operation wants to make material modifications to the operation. TTD commented that it perceived the proposed alternative risk assessment as vague when compared to the detailed and specific proposed risk assessment. FRA’s Response The NPRM provided background on the risk assessment requirement, how it is useful, and how a risk assessment must be conducted in an objective manner to be effective.292 FRA explained why it proposed specific content and methodology requirements for conducting risk assessments and why it proposed an option to allow any railroad to seek FRA’s approval to use an alternative risk assessment methodology.293 The NPRM also included background regarding the expected impact of the rule on the safety of rail operations.294 FRA considered all the comments regarding the proposed risk assessment, and the final rule’s requirements are expected to address these comments in several overarching ways. For instance, because FRA did not intend to propose requirements that might be viewed as nearly impossible to meet statistically, the final rule removed what commenters perceived as the proposed potential quantitative analysis obstacles. In addition to revisiting aspects of that quantitative risk-based hazard analysis, the final rule includes guidance, in Appendix E, on how a railroad may prepare a risk-based hazard analysis and compare the risks to determine if a proposed one-person 290 FRA–2021–0032–12947, referring to 49 CFR part 270. 291 See 49 CFR 270.105. 292 87 FR 45582–84. 293 87 FR 45584. 294 Id. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 train crew operation will be as safe or safer than a two-person minimum train crew operation when all mitigations are in place. FRA expects that some railroads will favor this objective approach when conducting a required risk assessment under this final rule. In response to comments, the final rule also includes changes from the NPRM that provide consistency with existing requirements, specifically, consistency with both the System Safety Program requirements in part 270 and the Risk Reduction Program requirements in part 271. Parts 270 and 271 require covered railroads to have a systemwide and ongoing risk-based hazard management program that proactively identifies hazards and mitigates risks resulting from those hazards, using a risk-based hazard analysis. Accordingly, this final rule includes the minimum requirements for a risk-based hazard analysis that follows similar requirements in § 270.103(p) and (q), and § 271.103(b), allowing railroad to build upon existing analyses when preparing the required risk-based hazard analysis as part of a petition for a oneperson crew. To simplify the risk assessment process and address perceived potential quantitative analysis obstacles, the final rule includes the minimum performance standards used in § 236.909 for the introduction of new railroad signaling and train control components, products or systems, and this standard is also required to promote the safe design, operation, and maintenance of safety critical locomotive electronic control systems, subsystems, and components.295 Specifically, the final rule makes clear that the introduction of a new product or change cannot result in risk that exceeds the previous condition. With respect to commenters’ information security concerns, FRA decided to retain the same approach as proposed. For reasons explained in the NPRM, FRA determines that exercising FRA’s statutory discretion under 49 U.S.C. 20118 to protect certain risk analyses from public disclosure pursuant to Exemption 3 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(3), would not be consistent with the final rule’s provisions that make petitions and the risk analyses they contain available for public comment.296 Nevertheless, other FOIA exemptions may apply. For example, FRA reminds railroads that information 295 49 CFR part 229, subpart E (establishing minimum railroad locomotive safety standards for locomotive electronics). 296 87 FR 45585. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations required to be submitted as part of the risk-based hazard analysis that a submitter deems to be trade secrets, or commercial or financial information that is privileged or confidential under Exemption 4 of FOIA 5 U.S.C. 552(b)(4), should be so labeled in accordance with the provisions of 49 CFR 209.11. FRA handles information labeled as such in accordance with the provisions of § 209.11. Regarding the potential use of riskbased hazard analysis information in litigation, FRA decided not to include in the final rule information protections like those adopted in the system safety program and risk reduction program rules. Congress explicitly authorized setting forth specific information protection requirements for implementation of those rules, and FRA does not have a similar statutory authorization to do so here.297 For further discussion on this issue, FRA refers readers to the NPRM’s explanation of FRA’s statutory authority to protect certain information from use in litigation.298 Lastly, in response to comments regarding the risk assessment, the final rule retains the NPRM’s proposed alternative standard provision in § 218.133(b). That provision allows a railroad the option to submit a petition for FRA’s approval of the use of alternative methodologies or procedures, or both, to assess the risk associated with a proposed operation. Again, this was an option that was proposed but seemingly missed by commenters that acknowledged the value in a risk assessment but requested flexibility in how to conduct it. FRA understands that some commenters, such as TTD, suggested that the alternative standard provision for a risk assessment is vague, but FRA does not agree because approval of alternative methodologies or procedures, or both, would be expected to be based on standards established by leading governmental or non-governmental standardization organizations. ddrumheller on DSK120RN23PROD with RULES4 g. Remote Control Operations Several commenters raised concerns with the NPRM’s specific freight train exception to the crew staffing requirements that applied to remote control operations in proposed § 218.129(c)(3). The following is a summary that is representative of the comments received. 297 49 U.S.C. 20119, 49 CFR 270.105 and 81 FR 53850, 53859 (Aug. 12, 2016), and 49 CFR 271.11 and 85 FR 9262, 9263 (Feb. 18, 2020). 298 87 FR 45585. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 ASLRRA and other short line rail industry commenters raised objections to FRA’s proposed exception for a oneperson train operation controlled by a remote control operator because they claimed it created new burdens that they do not currently comply with or that are unnecessary given equipment standards for these operations. ASLRRA’s comment included a statement from the Texas and Northern Railway regarding how it would not qualify for the remote control operation exception because this short line: (1) does not maintain technology or protocols to monitor a train’s real-time progress; (2) does not have a method of determining the train’s approximate location when communication is lost with a one-person train crew; and (3) does not utilize a dispatcher.299 Similarly aligned commenters pointed to the proposed requirement that the remote control operator must stay in the locomotive cab except in emergencies, a condition that the commenters suggested would be unnecessary for that person’s safety, even on main track, given that the remote control operator can operate the train safely from the ground or other locations on the train. Also, commenters objected to a proposed requirement in the NPRM that a remote control operation be required to have an alerter when the remote control technology they use already has similar safety features. FRA’s Response In proposing the crew size safety requirements as conditions for using a one-person train crew with a remote control operation, FRA started with the premise that most remote control train operations are peripheral to switching operations in a yard or at a customer’s facility because the remote control technology was designed with a primary focus on making switching operations more efficient. Because an RCL is controlled by an operator with a remote control transmitter strapped to their chest, an operator does not need to stay in the locomotive cab and has versatility to do other safety-related tasks such as uncouple cars, throw hand-operated switches, and determine that track is clear for their train movement. Thus, when in switching or train service, a remote control operator may be on the ground, on the lead locomotive (although not necessarily in the locomotive cab), or on another car or locomotive. Remote control operations are typically crewed by one operator, who 299 FRA–2021–0032–13033, att. L (statement from Transtar LLC/Texas and Northern Railway). PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 25085 fulfills the roles and responsibilities of both the locomotive engineer and conductor, or by two remote control operators, each with a remote control transmitter, so that they can alternate controlling the RCL. Although a remote control operation could have three or more train crewmembers, that would be atypical and would likely involve a third crewmember who is training to be a remote control operator. Although an RCL may remain in a particular rail yard for switching solely within that yard, it is common for a remote control operator to take an RCL from a rail yard to a customer’s facility as a local train that can drop off or pick up rail cars at one or more customer’s facilities. In the NPRM, FRA explained how remote control operations that travel between yards or customers’ facilities, with or without cars, were trains ‘‘not in switching service’’ and were thus potentially subject to the NPRM’s proposed requirements if operated with a one-person train crew.300 For this reason, FRA proposed an exception for RCL operations with the intention that the proposed general train crew staffing requirements would not apply but that other conditions would apply. In the NPRM, FRA proposed to address narrow safety concerns involving the use of an RCL by codifying long-standing agency guidance for the use of the remote control technology during nonswitching service. These proposed requirements were intended to allow remote control operations with a oneperson train crew as an exception if the operation was limited in complexity by weight, tonnage, grade, or other factors that reflected guidance previously accepted by industry stakeholders.301 The NPRM therefore proposed to codify FRA’s guidance on accepted industry safe practices for remote control operations. However, upon further consideration, FRA has determined that addressing this issue in this rulemaking is unnecessary. In deciding not to adopt the proposed remote control operations exception, FRA determined that the requirements for remote control operations, proposed in the NPRM, would be unnecessary as duplicative of existing requirements. For instance, this final rule will not require an alerter on an RCL to address the incapacitated locomotive engineer scenario because FRA’s existing locomotive safety standards establish minimum equipment standards for an RCL that include an operator alertness device and a tilt feature that together perform the same functions as an 300 87 301 87 E:\FR\FM\09APR4.SGM FR 45594. FR 45594–95. 09APR4 25086 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations alerter.302 Likewise, there is no need to require enhanced communication or train tracking requirements for an RCL when FRA’s existing locomotive safety standards establish a prohibition on the use of one-person operations with remote control locomotive systems that do not automatically notify the railroad in the event a remote control operator becomes incapacitated or the tilt feature is activated.303 However, based on a suggestion from some labor organizations, FRA may initiate a comprehensive review of every type and aspect of remote control operations to determine whether the safety of those operations could be improved through regulation or other actions. ddrumheller on DSK120RN23PROD with RULES4 F. Consideration of Requirements More Stringent Than Those Proposed Some of the commenters supporting the NPRM stated that, in their view, the NPRM did not go far enough. Specifically, these commenters supported more stringent requirements that would permit fewer or no exceptions to a two-person train crew, or include a requirement that the second crewmember be a person who is a certified conductor under FRA’s requirements in 49 CFR part 242. TTD supported the proposed annual reporting requirements and recommended more stringent requirements that, instead of FRA granting special approval in perpetuity, would require each railroad to file a new petition for special approval after two years. Similarly, TTD supported a more stringent requirement to establish a process whereby FRA would periodically review the enumerated exceptions and seek public input whether to retain them. SMART–TD’s Kansas State Legislative Board commented that railroads should be required to maintain a two-person crew in the control compartment of the lead locomotive unit of each train, a more stringent requirement than what FRA proposed.304 This comment raised safety concerns with trains being built too long for available sidings, risk of sabotage, and how a two-person team can combat fatigue. SMART–TD’s New Jersey State Legislative Board raised the concern that the NPRM’s proposed process of granting exceptions to new and existing single-person crew operations was disconcerting as it seemed to place the efficiency of rail operations over 302 49 CFR 229.15, in particular paragraph (a)(13). in particular paragraphs (a)(15) and (16). 304 FRA–2021–0032–9397. 303 Id., VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 safety.305 The comment raised a variety of safety concerns as a basis for establishing a more stringent twocrewmember train crew requirement. For instance, this commenter stated that there is a great need for crewmembers to assist rail passengers in a variety of emergency situations. This local division of SMART–TD placed emphasis on two crewmembers assisting each other as a team to battle fatigue, provide backup to reduce mistakes, and improve situational awareness. The commenter raised a concern about hazardous materials traveling by rail through New Jersey’s dense urban areas with only a one-person train crew and the potential for a catastrophic accident. The commenter stated that, with a oneperson train crew, motor vehicle traffic could significantly slow a response by the railroad’s utility employees responding to a train breakdown as well as local emergency personnel responding to other types of emergencies—situations where a second crewmember can more quickly assist because they are already present. The commenter also disagreed with FRA’s proposed criteria for continuing legacy operations and initiating new operations and stated that railroads should not be allowed to assess their own risks in a risk assessment. This local division of SMART–TD recommended that risk assessments be conducted by the National Transportation Safety Board (NTSB) and that FRA should use a waiver alternative to the special approval process. The Nebraska Public Service Commission (NPSC), which oversees railroad safety in Nebraska, advocated for FRA to adopt an absolute prohibition against train operations with fewer than two-person crews.306 NPSC is concerned that the safety issues described in the NPRM would be present in the scenarios proposed as exceptions. NPSC stated that the railroad industry’s opposition to the rule and need for exceptions for financial or other reasons should not be given greater weight than the need to maintain or improve the safety of the crew and the public.307 Railroad Workers United (RWU), a group representing railroad workers in North America that are not managers or supervisors, commented that FRA 305 FRA–2021–0032–10602. 306 FRA–2021–0032–10121. 307 The Chicago Federation of Labor, stating that it represents tens of thousands of railroad workers who support the need for at least two crewmembers on all trains. FRA–2021–0032–6837. A similar comment was made by the International Brotherhood of Electrical Workers Local Union 146, Decatur, IL. FRA–2021–0032–10465. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 should prohibit all one-person train crew operations.308 RWU commented that there is no safe way in the United States to run a train with a single crew member and that safety dictates never to allow a single point of failure. FRA’s Response Although FRA did not adopt all proposals identified by commenters, the comments raised practical issues or problems with the proposed exceptions that led FRA to revise its approach in this final rule. For example, the commenters stated that certain oneperson train crew operations that were proposed for exceptions in the NPRM would pose equivalent safety concerns to that of other one-person train crew operations FRA proposed to prohibit or regulate through the special approval process. FRA agrees with the comments pertaining to the proposed helper service and lite locomotive(s) consist exceptions, which were proposed without any conditions attached. Because FRA agrees with the commenters that those two types of oneperson train crew operations pose the same safety concerns as the others that were proposed with conditions attached, FRA revisited those exceptions in § 218.129(a)(4) and (5) and decided to attach similar conditions. FRA’s decision to revise these exceptions and impose requirements in the final rule that are more stringent than those previously proposed is based on several considerations. For instance, FRA considered that railroads with a need for helper service or that regularly move locomotives without cars are mostly Class I and II operations that have newer locomotives, placed into service on or after June 10, 2013, or that would permit the controlling locomotives to operate at speeds in excess of 25 mph 309 and, thus, likely have working alerters installed in their locomotives. These operations would then need to add operating rules addressing the communications and safety of the one-person train crew and addressing how the railroad will take mitigation measures to address certain situations that could pose hazards to rail employees or the public—a burden, but not a significant one. Because a Class III railroad would generally own fewer miles of track than a Class I or II railroad and operate fewer trains, these short line railroads typically would provide enough locomotive power to traverse the track and would not be expected to use helper service as a regular business practice. Similarly, a lite locomotive 308 FRA–2021–0032–8001. 309 49 E:\FR\FM\09APR4.SGM CFR 229.140(a). 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations consist is typically used by Class I and II railroads to move locomotives from one yard to another to optimize their availability to move cars; in comparison, Class III railroads might not have more than one yard or such a complex business model that locomotives would regularly be moved without cars from one location to another. With regard to mine load out, plant dumping, and similar operations, FRA does not agree with the comments that these types of operation would always have duties requiring a second crewmember, and thus the final rule retains the exception for those operations as proposed. FRA also did not agree with commenters who suggested that railroads should be required to maintain a two-person crew in the control compartment of the lead locomotive unit of each train, as that would apply a more stringent standard than a railroad meeting the current status quo of using two-person train crews. FRA is concerned that if it created such a stringent standard, railroads would be compelled to employ a three-person train crew to do the job that currently only takes two crewmembers. It could also create an impossible standard for certain passenger train operations in which the locomotive cab is not large enough to accommodate a second crewmember. ddrumheller on DSK120RN23PROD with RULES4 III. Section-by-Section Analysis This section responds to public comments and identifies any changes made from the provisions as proposed in the NPRM. Provisions that received no comment, and are otherwise being finalized as proposed, are not discussed again here.310 Section 218.5 Definitions This final rule adds 17 definitions to part 218—Railroad Operating Procedures. Part 218 prescribes minimum requirements for railroad operating rules and practices. The analysis in the NPRM is applicable for this section for the following terms which will have the same definitions as proposed: ‘‘FTA,’’ ‘‘hazard,’’ ‘‘mishap,’’ ‘‘risk,’’ ‘‘tourist train operation,’’ ‘‘tourist train operation that is not part of the general railroad system of transportation,’’ ‘‘trailing tons,’’ and ‘‘train.’’ 311 The remaining terms are described below. The NPRM proposed a definition for ‘‘Associate Administrator’’ that was similar to the existing definition of ‘‘Associate Administrator for Safety’’ in § 218.93, a definition only applicable to 310 87 311 87 FR 45587–45605. FR 45587. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 part 218, subpart F. To prevent having two similar definitions to describe the same FRA official, this final rule removes the existing definition from subpart F and replaces it with the definition as proposed in the NPRM so that the term ‘‘Associate Administrator for Safety’’ has the same meaning throughout part 218. This final rule includes two definitions not specifically proposed in the NPRM, but based on descriptions of two types of operations contained in proposed requirements. First, the final rule defines ‘‘helper service train operation’’ to mean a train that is ‘‘a locomotive or group of locomotives being used to assist another train that has incurred mechanical failure or lacks sufficient tractive force necessary to traverse a particular section of track due to train tonnage and the grade of the terrain.’’ This definition is similar to the NPRM’s definition of ‘‘helper service’’ in proposed § 218.125(a) but additionally clarifies that it does not matter whether the train that the ‘‘helper service operation’’ is assisting is on ‘‘difficult terrain.’’ 312 ‘‘Lite locomotive train operation’’ is defined as meaning the train is a locomotive or a consist of locomotives not attached to any piece of equipment or attached only to a caboose. This definition is the same as FRA proposed in § 218.125(b) of the NPRM within the requirements for the ‘‘lite locomotive’’ exception. The final rule includes a definition for ‘‘locomotive, MU’’ to refer to a type of locomotive that can transport passengers. An MU locomotive is a general term that includes a diesel- or electric-multiple-unit (DMU or EMU) operation, as proposed in the NPRM, and would also include other selfpropelled rail rolling equipment regardless of the power source. The NPRM only used the terms DMU or EMU, which would not be as inclusive, as it would only cover diesel or electric power sources, while steam, liquified natural gas, hydrogen, or other power sources may be available. Based on FRA’s review of the comments, there appears to be some confusion about what FRA meant by a one-person train crew operation. To remove any ambiguity, in this final rule, FRA is adding two new definitions. First, FRA is adding a definition for the term ‘‘one-person train crew.’’ This term is intended to clarify that, for purposes of this final rule, there are two scenarios in which a railroad will be considered 312 The statement in proposed § 218.125(a) that ‘‘helper service includes traveling to or from a location where assistance is provided’’ is located in § 218.129(a)(4) of this final rule. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 25087 as operating with a one-person train crew. In the first scenario, there is only one person assigned to the train as the train crew and that single, assigned person will be performing the duties of both the locomotive engineer and the conductor. Accordingly, in this scenario, the sole person assigned as the train crew will need to be certified as both a locomotive engineer and a conductor so that person can perform the duties of both of those roles; this scenario would also include alternative arrangements in which other rail employees that are not assigned train crewmembers temporarily assist the train. In the second scenario, two or more persons are assigned to a train as the train’s crew, but only the locomotive engineer travels on the train when the train is moving because the remainder of the train crew, that would include the conductor if the locomotive engineer is not the assigned conductor, is assigned to intermittently assist the train’s movements. In this second scenario, the remainder of the train crew is typically traveling in a motor vehicle and will be required to assist the train when switching cars in a yard or at a customer’s facility, as well as assist the train when necessary to protect a crossing with flag protection, throw a switch or derail, or perform other duties associated with the train assigned. This second scenario clarifies that when only one crewmember is traveling with the train, even if there are additional crewmembers intermittently assisting and assigned to the train, the train will be considered a one-person train crew operation. The second definition FRA is adding in this final rule is a definition for the term ‘‘one-person train crewmember.’’ This final rule defines ‘‘one-person train crewmember’’ to mean, in the context of a one-person train crew operation, the single assigned person who is responsible for performing the duty of the locomotive engineer and will be traveling in the operating cab of the controlling locomotive when the train is moving. If there is a second crewmember traveling in a motor vehicle, that second crewmember would not be the one-person train crewmember. This final rule’s definition for ‘‘risk assessment’’ differs slightly from the proposed definition in that the NPRM, which referred to operations with ‘‘fewer than two crewmembers.’’ FRA has not adopted that phrasing in the final rule. Instead, this final rule refers to risk assessments related to ‘‘oneperson train crews,’’ as this rule applies to one-person train crew operations and E:\FR\FM\09APR4.SGM 09APR4 25088 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations does not apply to autonomous operations. This final rule defines ‘‘switching service or operation’’ in the same way as the proposed definition did for ‘‘switching service.’’ The change in the term’s name will harmonize it with its use throughout part 218. ‘‘Switching service’’ and ‘‘switching operation’’ are used interchangeably throughout part 218 and in this final rule. In this final rule, FRA has added a definition for ‘‘unit freight train.’’ As used in this final rule, ‘‘unit freight train’’ means a freight train composed of cars carrying a single type of commodity. In the NPRM, FRA proposed an exception for a ‘‘mine load out, plant dumping, or similar operation’’ that included a definition of a unit freight train. FRA moved the proposed ‘‘unit freight train’’ definition into the definitions section, and the ‘‘mine load out, plant dumping, or similar operation’’ exception that was proposed in § 218.129(a) is in § 218.127(a) of this final rule. ddrumheller on DSK120RN23PROD with RULES4 Section 218.99 Movements Shoving or Pushing This final rule amends this section to remove ambiguity and harmonize three current requirements with terms that that will apply to the entirety of part 218. Paragraph (a)(2) is amended to change ‘‘switching activities’’ to ‘‘switching service activities,’’ which will thereby invoke the definition added in § 218.5 for ‘‘switching service or operation.’’ The amendment will not change the meaning of the section but may help clarify what is meant by switching service as that term will now be defined. Paragraph (b)(3) will be amended to change ‘‘a lite locomotive consist’’ to ‘‘a lite locomotive train with two or more locomotives that is operated from a single control stand.’’ This revision will allow FRA to remove the definition of ‘‘lite locomotive consist’’ in § 218.93, as the term is not used elsewhere in part 218. This revision will also allow FRA to use the term ‘‘lite locomotive train,’’ which is defined in § 218.5. The amendment will not change the meaning of the section. Paragraph (e)(2) will be amended to remove the term ‘‘manned helper locomotives’’ and replace it with ‘‘helper service train operation’’ which is defined in § 218.5. A helper service train operation has the same meaning as helper locomotives with a train crew. Thus, rather than using different terminology that has the same meaning within part 218, this final rule will amend this paragraph. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 Section 218.121 Purpose and Scope Generally, the purpose and scope of this final rule remain the same as proposed—to ensure trains are adequately staffed and have appropriate safeguards in place for safe train operations under all operating conditions. Accordingly, FRA is adopting paragraph (a) as proposed, making minor editorial revisions to paragraph (b), and adding a new paragraph (c) which essentially moves the proposed exception for remote control operations, previously found in proposed § 218.129(c)(3), to a new paragraph (c) of this section. FRA is modifying paragraph (b) of this section to replace the references to ‘‘train crew staffs’’ and ‘‘crew staffing,’’ with the terms ‘‘train crews’’ and ‘‘crew size’’ respectively. These revisions are for clarity and readability only. No substantive change is intended. Consistent with the NPRM, paragraph (b) further notes that: (1) the minimum crew size requirements in the final rule reflect the potential safety risks posed to railroad employees, the public, and the environment; (2) the final rule prescribes minimum requirements for the location of a second train crewmember on a moving train and promotes safe and effective teamwork; and (3) railroads may prescribe additional or more stringent requirements in operating rules, timetables, timetable special instructions, and other instructions. Paragraph (c) of the final rule has been added based on comments received. In the discussion of comments and conclusions, FRA explained commenters’ concerns with the exception for remote control operations as proposed in § 218.129(c)(3). For the reasons explained in FRA’s response to those comments, FRA has not adopted the exception; instead, FRA has added paragraph (c) to clarify that the requirements in this subpart do not apply to a train operation controlled by a remote control operator as defined in § 229.5(a) of this chapter. Section 218.123 General Train Crew Staffing Requirements As proposed in the NPRM, this section sets forth the final rule’s general requirement that trains be operated with a minimum of two crewmembers. This final rule substantially adopts paragraphs (a), (b), and (d) as proposed, but revises paragraph (c) to allow certain exceptions to the requirement for two crewmembers on trains transporting certain types and quantities of hazardous materials. Consistent with the edits made throughout this final PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 rule, FRA is revising the reference to ‘‘train crew staffing’’ in the section heading and the heading for paragraph (b) to ‘‘train crew size safety.’’ These changes do not change the meaning and thus the analysis provided in the NPRM is applicable for paragraphs (a) and (b). In the NPRM, paragraph (c) proposed to mandate, without exception or special approval eligibility, two crewmembers be assigned to trains transporting certain quantities and types of hazardous materials that have been determined to pose the highest risk for transportation from both a safety and security perspective. As explained in the discussion of comments and conclusions above, however, FRA determined that certain exceptions, including special approval eligibility, could be permitted while still allowing for safe operations. Those exceptions can be found in § 218.129(a)(1) and § 218.131(a)(2). The final rule retains the two-person requirements for trains transporting the same types and quantities of hazardous materials as was proposed in the NPRM when these exceptions do not apply. The final rule’s requirements include a specific reference to a two-person train crew requirement for each high-hazard flammable train (HHFT) as defined in § 171.8 of this title when an exception does not apply. The requirement in paragraph (c)(2) of the final rule would cover HHFT as currently defined by PHMSA, and the requirement in (c)(1) will ensure HHFT will continue to be covered if PHMSA amends its current HHFT definition. Section 218.125 Specific Passenger and Tourist Train Operation Exceptions to Crew Size Safety Requirements This section, proposed as § 218.127 in the NPRM, addresses passenger and tourist train operations that are not subject to the rule’s crew size safety requirements. Although this final rule adopts, in § 218.125, the general provisions of proposed § 218.127, FRA is making editorial revisions to the section heading and paragraph (a) along with adding a new paragraph (e) to this section addressing certain existing oneperson train crew operations. Specifically, consistent with the edits made throughout this final rule, FRA has revised the ‘‘crew staffing’’ reference in the section heading to ‘‘crew size safety.’’ FRA is also rephrasing paragraph (a) for ease of reading. As proposed, paragraph (a) identified passenger and tourist operations that would ‘‘not require’’ a minimum of two crewmembers. In this final rule, FRA is rephrasing paragraph (a) to affirmatively state that certain tourist and passenger E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 train operations ‘‘may be’’ operated with a one-person train crew. This change from the proposed rule is intended to remove any ambiguity regarding the type of operations that will be excepted through this section and does not change the section’s meaning from that proposed. Thus, the analysis provided in the NPRM is applicable for paragraphs (a) through (d) of this section.313 A substantive change from the NPRM is the addition of paragraph (e), which provides an exception for existing passenger train operations with oneperson train crews for which FRA has already approved the operation’s required passenger train emergency preparedness plan under part 239. Section 218.127 Specific Freight Train Exceptions to Crew Size Safety Requirements Proposed as § 218.129 in the NPRM, this section addresses freight train exceptions to crew size safety requirements. Consistent with edits made elsewhere in this final rule, FRA has revised the section heading to refer to ‘‘crew size safety,’’ as opposed to ‘‘crew staffing.’’ FRA is also adding an introductory sentence to the section and moving the substance of proposed paragraph (b) to § 218.129. As in the NPRM, paragraph (a) lists the requirements for an exception for a unit freight train when it is loading or unloading as part of a mine load-out, plant dumping, or similar operation. In this final rule, FRA is adopting paragraph (a) essentially as proposed, with the exception of removing the definition of ‘‘unit freight train’’ from the paragraph. As discussed above, in this final rule, the definition for that term is found in § 218.5. Further, because the proposed requirements for the ‘‘mine load out’’ exception in paragraph (a) were originally in one long paragraph, this final rule places equivalent requirements in a numbered list for ease of use (paragraphs (a)(1)– (5)). This formatting change does not affect the paragraph’s meaning except for paragraph (a)(4), which does not contain the proposed requirement that a one-person train crewmember during mine load out, plant dumping, or similar operations must be prohibited from performing any duties that would require a second crewmember, as it instead specifies the duties that will be prohibited. Although the NPRM’s analysis provided some examples of prohibited duties, FRA decided that greater clarity could be achieved by specifying the examples in the 313 87 FR 45590–91. VerDate Sep<11>2014 20:26 Apr 08, 2024 regulatory text, instead of mandating the more broadly stated proposed requirement. The prohibited duties are operation of a hand-operated switch, filling out paperwork, or calling out signal indications during the loading or unloading process. Otherwise, the analysis provided in the NPRM is applicable for this paragraph.314 FRA is not adopting paragraph (b) as proposed. Instead, FRA is reserving paragraph (b) of this section for future use and, as discussed in the analysis of § 218.129 below, has included some of the requirements and exceptions from proposed paragraph (b) in § 218.129. Section 218.129 Conditional Exceptions Based on Compliance Dates for Class II and III Legacy Freight Train Operations, Certain Other Class II and III Freight Railroad Train Operations, Work Train Operations, Helper Service Train Operations, and Lite Locomotive Train Operations Staffed With a OnePerson Train Crew This section of the final rule consolidates various proposed requirements and exceptions to the twoperson train crew mandate and, therefore, includes many of the same or similar requirements to those proposed in §§ 218.125, 218.129, and 218.131 of the NPRM. Consolidating these exceptions and requirements in this section makes the rule more concise, eliminating the need to repeat certain requirements shared by each of the exceptions as it did in the NPRM. However, because there were changes to the requirements for some of the proposed exceptions, FRA is not relying on the analysis in the NPRM for this section. Paragraph (a) provides that a railroad is not required to comply with the requirements in this section for each one-person train crew operation that is governed by an exception in another section of this subpart. Thus, this section does not apply to the specific passenger and tourist train operation exceptions in § 218.125 or the specific freight train exceptions in § 218.127. The train operation exceptions described in this section that provide for a one-person train crew are listed in paragraph (a) along with the requirements that will apply depending on the exception, as discussed further below. The purpose of paragraph (a)(1), which is based on the exception proposed in § 218.131 of the NPRM, is to provide a way for each Class II and III railroad to continue a legacy oneperson train crew freight operation after 314 87 Jkt 262001 PO 00000 FR 45591–92. Frm 00039 Fmt 4701 Sfmt 4700 25089 the effective date of this final rule, while ensuring each railroad with such a legacy operation will have sufficient time to add any necessary, minimum safeguards to protect rail employees, the public, or the environment. FRA is defining a legacy one-person train crew freight operation as one that a railroad established at least two years before the effective date of this final rule. Pursuant to this exception, a legacy operation may continue transporting hazardous materials of the types or quantities specified in § 218.123(c) if the railroad can show it had such an established operation for at least two years before the effective date of the final rule. Although this notification requirement is not an approval process, compliance with the requirement is mandatory to use the legacy one-person train crew freight operation exception. In meeting the written notice requirements in paragraph (b) of this section, the railroad is required to provide the evidence necessary to establish the existence for at least two years of such a legacy one-person train crew freight operation. For example, in paragraph (b)(2), the final rule requires that the written notice include business records or other written documents supporting the legacy operation was established for at least two years before the rule’s effective date. For a railroad to have an operation ‘‘established at least two years before,’’ FRA means that during that two-year period, an operation must have occurred at regular intervals under a set of defined procedures or conditions. It will be acceptable if a railroad’s evidence for the one-person train crew operation shows that the railroad occasionally substituted a multi-person train crew; yet, FRA expects the evidence will show the railroad typically used the one-person train crew where circumstances allowed for the one-person operation. If a railroad did not conduct one-person train crew operations regularly, even where circumstances allowed, the existence of a legacy operation will likely not be considered established, and the railroad will need to consider whether another exception will be applicable or whether it will request special approval. Similarly, if a railroad cannot establish that its legacy one-person train crew freight operation was transporting hazardous materials of the types or quantities specified in § 218.123(c), it will not be permitted to initiate such an operation under this exception and must consider whether another exception will be applicable or whether it will request special approval. E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25090 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations Paragraph (a)(1)(i) prohibits a Class II or III railroad from continuing a legacy one-person train crew freight operation beyond 90 days after the effective date of this final rule if the railroad fails to provide FRA with written notice meeting the requirements in paragraph (b). Hence, each railroad that established a legacy one-person train crew freight operation for at least two years before the effective date of this final rule would need to decide whether it wants to continue the operation beyond 90 days after the effective date of this final rule; if it does, the railroad will be required to provide FRA with written notice meeting the requirements in paragraph (b), unless the operation is covered under one of the exceptions in §§ 218.125 or 218.127. For those legacy one-person train crew freight operations that provide FRA with written notice meeting the requirements in paragraph (b), the railroad will be permitted to continue the operation beyond 90 days after the effective date of the final rule if the railroad also complies with the additional requirements in paragraphs (c)(1) and (2) of this section. For these legacy one-person train crew freight operations, FRA will permit a railroad to phase in the additional requirements in paragraph (c). A railroad with such a legacy operation that does not implement all the additional requirements by each deadline will not be permitted to continue the operation. Further, a railroad that allows its legacy operation to lapse at one of the deadlines will not be permitted to utilize this exception if it wants to restore that legacy operation at a later date. Paragraph (a)(2) will permit each Class II and III freight railroad an opportunity to initiate a train operation with a one-person crew under certain conditions. The operations under this exception will be limited to a train that will not be transporting hazardous materials of the types or quantities specified in § 218.123(c). Under paragraph (a)(2)(i), this exception will require that a railroad, before commencing the operation, provide FRA with written notice that contains the information required by paragraph (b) of this section. Under paragraph (a)(2)(ii), this exception will require a railroad to comply with the additional requirements in paragraph (c) of this section without a phase-in of compliance dates for those additional requirements. FRA determined that the initiation of a new one-person train crew operation without an FRA review process should, at a minimum, have already implemented the additional VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 requirements in paragraph (c) of this section, which will allow the railroad to begin the operation with significant safeguards already in place. In contrast, the other exceptions in paragraph (a) are largely directed for existing operations that are already in wide use and, thus, requiring immediate implementation upon the effective date of the final rule for those other exceptions would have the potential to be disruptive to normal railroad operations. Thus, to meet the requirements of this exception in paragraph (a)(2), a railroad’s one-person train crew operation will be required to use a locomotive equipped with alerters and comply with any required operating rules in paragraph (c) from the first day these operations are initiated. While this exception is based on the small railroad operations exception in proposed § 218.129(c)(1) for a freight railroad with fewer than 400,000 total employee work hours annually, the exception in this final rule has been expanded to include more railroads, and it does not include the speed, grade, and train length requirements proposed in the NPRM. Paragraph (a)(3), which is based on proposed § 218.129(c)(2), specifies the requirements for a work train exception to the two-person train crew mandate. The exception applies to work train operations regardless of whether they are existing or new operations. Each railroad may use a work train with a one-person train crew, including when a work train is traveling to or from a work site, as long as the railroad complies with the additional requirements in paragraph (c) according to the implementation schedule specified. Paragraph (a)(3)(i) limits the work train operation exception to nonrevenue service trains that do not exceed 4,000 trailing tons and are used for the administration and upkeep service of the railroad. This work train requirement, which is the same as the proposed requirement, is based on the definition used in 49 CFR 232.407(a)(4) concerning requiring end-of-train devices; and, as in that rule, the 4,000 trailing tons or less threshold will provide railroads operational flexibility, especially smaller railroads.315 Work trains mainly haul materials and equipment used to build or maintain the right-of-way and signal systems. Work trains are unlikely to be hauling hazardous materials (unless extra fuel is needed to power machinery) and, because they operate under their own set of safety rules, typically at low speeds or restricted speed, they pose fewer risks than long-haul trains. They 315 62 PO 00000 FR 278, 282 (Jan. 2, 1997). Frm 00040 Fmt 4701 Sfmt 4700 often travel at restricted speed, which is a slow speed at which the locomotive engineer must be prepared to stop before colliding with on-track equipment or running through misaligned switches. For one-person train crew work train operations, FRA will permit a railroad to phase in the additional requirements in paragraph (c) of this section based on the implementation schedule provided. Paragraph (a)(4), which is based on proposed § 218.125(a), specifies the requirements for a helper service train operation exception to the two-person train crew mandate. The exception applies to helper service train operations regardless of whether they are existing or new operations. Each railroad will be able to consider using a helper service train with a one-person train crew, including when a helper service train is traveling to or from a work site, as long as certain requirements are met. The definition for a ‘‘helper service train operation’’ in the definitions section of this final rule, § 218.5, means the train is a locomotive or group of locomotives being used to assist another train that has incurred mechanical failure or lacks sufficient tractive force necessary to traverse a particular section of track due to train tonnage and the grade of the terrain. Helper service is a common service performed in the railroad industry as a one-person operation. It is typically not considered a complex operation, and FRA does not expect this type of operation will pose a significant risk to railroad employees, the public, or the environment. As with each of these exceptions, a railroad may decide that a certain helper service train operation is complex and that more than one crewmember should be assigned to the operation. Moreover, FRA notes that, while the helper locomotive itself may be operated with a one-person train crew, the train it is helping may be required to have a two-person crew, and the fact that a helper locomotive is assisting would not impact the number of crewmembers required for the train. For one-person train crew helper service operations, FRA will permit a railroad to phase in the additional requirements in paragraph (c) according to the implementation schedule specified. Paragraph (a)(5), which is based on proposed § 218.125(b), provides an exception from the two-person crew requirement for an existing or new lite locomotive train operation. Similar to the safety rationale for the helper service exception, when a locomotive or a consist of locomotives is not attached to any piece of equipment, or attached only to a caboose, there is not a E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations significant risk to railroad employees, the public, or the environment. Lite locomotive train operations are mainly used to move locomotives to a location where the locomotives can be better utilized for revenue trains that are taking or delivering rail cars to customers, or to other railroad yards where the locomotives can be used in switching operations. Additionally, lite locomotives may be operating as a train to take more than one locomotive to a repair shop for servicing. The definition of ‘‘lite locomotive train operation’’ is consistent with the definition of ‘‘lite locomotive’’ in 49 CFR 229.5 of FRA’s Railroad Locomotive Safety Standards. However, the exception for a lite locomotive train operation in this final rule includes a further clarification that ‘‘excludes an MU locomotive operation.’’ The reason for this additional clarification is that an MU locomotive is both a locomotive and a car that can transport passengers, and this exception will not cover a passenger train operation containing either single or multiple MU locomotives. FRA has further clarified the MU locomotive exceptions for passenger trains in § 218.125(c). For one-person train crew lite locomotive train operations, FRA permits a railroad to phase in the additional requirements in paragraph (c) according to the implementation schedule specified. Paragraph (b) contains a list of the minimum written notice requirements for those operational exceptions in paragraph (a) that require it, i.e., the exceptions for a Class II or III railroad’s legacy one-person train crew freight operation and for the Class II or III freight railroad that wants to initiate a train operation staffed with a oneperson train crew that is not transporting hazardous materials of the types or quantities specified in § 218.123(c). This notice requirement is based on the proposed special approval petition requirements in the NPRM for requesting either the continuance of a legacy one-person train operation in proposed § 218.131(b) or for requesting the initiation of train operations with fewer than two crewmembers in proposed § 218.133(b). The written notice requirements in this final rule will require each railroad that will be using one of these exceptions to provide FRA, by email, with largely the same information as the NPRM proposed for these operations, while eliminating the proposed special approval process. While the written notice requirements, in lieu of a special approval requirement that includes a risk assessment, will substantially lessen a railroad’s burden VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 when compared to the NPRM’s proposed requirements for a special approval, FRA notes that, for compliance, a railroad’s written notice must provide complete and accurate information. Paragraph (b)(1) requires information about the primary person at the railroad who can be contacted about the petition for a special approval. The remaining 13 numbered items listed under paragraph (b) require an accurate description of the operation, the hazards present, the mitigating measures taken to improve safety, and the railroad’s description of how it determined the operation was safe to implement. For a railroad required to meet the written notice requirements, paragraph (b)(2) requires the railroad to identify the location of the operation with as much specificity as can be provided as to the characteristics of the geographic area through which the trains will operate (e.g., population density and proximity to environmentally sensitive areas), the terrain over which the trains will be operated, industries or communities served, and track segments, territories, divisions, or subdivisions operated over. In addition, each Class II or III railroad with a legacy one-person train crew freight operation will also need to include business records or other written documents as part of the written notice submission to show that the legacy operation was established for at least the two years before the effective date of this final rule. For example, documentation could show that a railroad established a legacy one-person train crew freight operation running 3 days per week for 5 years without incident. That kind of information would show the extent of the operation and the safety record. Further, such a legacy operation must identify the current parameters of the operation’s location and should not expand the parameters based on plans for future expansion, as doing so would be initiating a new operation. FRA expects that a Class III railroad is likely to describe its legacy operation as covering the entire railroad but also expects some short lines to describe an operation covering only a portion of its railroad. In comparison, FRA would expect a larger Class II regional railroad to describe an operation that covers only a portion of the railroad as it might find only some aspects of their entire operation were conducive to one-person train crews. A railroad that cannot provide records kept in the normal course of business to support a legacy operation can consider submitting affidavits from the railroad’s employees, supervisors or managers, or others, in PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 25091 support of the existence and extent of the one-person train crew operation. Paragraphs (b)(3) through (7) and (10) are sufficiently descriptive that further analysis is generally unnecessary here. However, some information that was not proposed in the NPRM has been added to develop more fully the overall description of the one-person train crew operation. Notably, paragraph (b)(3) specifies that the description of track, signal and train control systems, and devices and appliances must also include a list of all active and passive highway-rail grade crossings, including crossing numbers. The addition of this list should be easy to provide as it should be available to train crews in timetables, track charts, or other easily reproduced documents. For paragraph (b)(7), in addition to any maximum number of cars and tonnage set for the operation, FRA included a requirement to provide the number and frequency of the trains involved to help fill out the description of the operation from both a historical perspective and a frequency of risk view. The information required in the written notice will permit FRA to identify these operations and evaluate how well each railroad has addressed the hazards and risk of the operation. Paragraph (b)(8) will require a railroad to state in its written notice whether the one-person train crew operation hauls hazardous materials of any quantity or type, and the approximate percentage of carload traffic in the one-person train crew operation that involves hazardous materials. A one-person train crew operation that does not haul hazardous materials would present less risk than one that does, all else being equal. FRA will require a railroad to approximate the percentage of carload traffic in the one-person train crew operation that is hazardous materials in its written notice, as each railroad should be considering it as a factor in its business decision to deploy such an operation under the exceptions to a minimum two-person train crew mandate. Considering other issues related to the operation’s size and scope and understanding the quantity and type of hazardous materials hauled will help FRA evaluate the risks posed by an excepted operation that is required to file written notice. Paragraph (b)(9) will require each railroad that must file written notice to include information about whether the railroad places any limitations on a person operating as a one-person train crew. FRA expects that some railroads will limit a one-person train crew by establishing a maximum number of miles or hours the person may work during a single tour of duty. It is also E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25092 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations possible that a railroad will establish a fatigue mitigation plan voluntarily and other railroads will establish such a plan because a Federal requirement specifies that they do so.316 Although this final rule does not require a fatigue mitigation plan, the written notice requirement will allow FRA to consider this additional information when evaluating how each railroad will implement strategies for reducing railroad worker fatigue, such as improving the predictability of schedules, considering the time of day the railroad permits one-person train crews to operate, and educating workers about fatigue and sleep disorders. This information may also permit FRA to revisit these types of concerns and compare mitigating actions across the industry. Paragraph (b)(11) will require a detailed description of any technology that is used to perform tasks typically performed by a second crewmember or that prevents or mitigates the consequences of accidents or incidents. The technologies described must be already installed and operational, with all FRA approvals as necessary, so that the functionality and impact of the technology on the operation is understood and can be effectively communicated to FRA. Paragraph (b)(12) will require that the railroad’s mandatory notice include a copy of any railroad rule or practice that applies to the one-person train crew operation but does not apply to train crew operations with two or more crewmembers. Receiving this information will assist FRA in evaluating the safeguards each railroad has voluntarily implemented and to evaluate future effectiveness of these types of rules or practices. Paragraph (b)(13) will require each Class II or III railroad, seeking to continue a legacy freight train operation staffed with a one-person train crew, to include with its written notice five (5) years of the accident and incident data required by part 225 of this chapter, for the operation identified and that the railroad can attribute to a one-person train crew operation. If the operation was established between two to five years before the effective date of the final rule, then the railroad will provide the accident and incident data for the operation from the date the operation was established. Although current regulations require the railroad to report 316 87 FR 35660 (June 13, 2022) (publishing a final rule on ‘‘Fatigue Risk Management Programs for Certain Passenger and Freight Railroads’’ effective July 13, 2022, and codified in 49 CFR part 270, subpart E and 49 CFR part 271, subpart G). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 certain ‘‘accidents/incidents’’ 317 to FRA, FRA cannot accurately determine from that reported information which, if any, reportable accidents/incidents are attributable to a railroad’s one-person train crew operation. FRA expects that each railroad will have more information about its own accidents/ incidents and can identify the data that applies to its legacy operation. The railroad must narrow the requested data to the location of the legacy operation that the railroad has identified in its written notice and only send additional accident/incident data that pertains to the legacy operation subject to the railroad’s written notice. Paragraph (b)(14) is a catch-all provision that permits a railroad filing a written notice to submit any other information describing protections that are or will be implemented to support the safety of the one-person train crew operation that the railroad wants to share with FRA to justify the safety of the operation. FRA expects that some railroads would have completed a risk assessment, a safety analysis, or compiled a safety data report before implementing a one-person train crew operation and that the railroad will share that information to show FRA how the hazards were, and will continue to be, mitigated, so that operation is as safe or safer than a twoperson minimum train crew operation. Paragraph (c) contains a list of requirements that apply to all five exceptions described in paragraph (a). FRA encourages each railroad to implement these additional requirements as quickly as possible, consistent with the implementation schedule in this final rule that phases in requirements for some of the operational exceptions to the two-person train crew mandate. Compliance with the adoption of operating rules that ensure mitigation measures for certain safety-critical situations specified, establish radio or wireless communications with a oneperson train crew that is as safe or safer than a two-person train crew for train operations and crewmember safety, and require that a one-person train crew’s controlling locomotive is equipped with a functioning and tested alerter will improve the immediate safety of the operation. The establishment of an implementation schedule for the four exceptions covering some existing operations will allow these operations time to, as necessary, install alerters, adopt operating rules, and/or hire and qualify additional train crewmembers. Paragraph (c) permits FRA to enforce a violation of an operating rule required under this paragraph in the same way as if the person violated the requirements of this section directly. The paragraph clarifies that a ‘‘person’’ will not be limited to a railroad employee, and may include each railroad, railroad officer, or supervisor. Contractors that act in any of those capacities will also be considered a person subject to FRA’s jurisdiction. Paragraphs (c)(1) and (2) require each railroad with an applicable one-person train crew operation to adopt and comply with operating rules that cover certain safety concerns. These additional requirements for the adoption of minimum operating rules are mostly based on the proposed requirements in the NPRM for requesting either the continuance of a legacy one-person train operation in proposed § 218.131(b)(12) and (13) or the initiation of train operations with fewer than two crewmembers in proposed § 218.133(b)(12) and (13).318 Similar to the proposal in the NPRM, paragraph (c)(1)(i) requires a railroad with a one-person train crew operation to adopt and comply with operating rules that address: (A) a release of any hazardous material; (B) any accident/ incident regardless of whether it is reportable to FRA under part 225; (C) a request from an emergency responder to unblock a highway-rail grade crossing in response to a potentially life-threatening situation; (D) a train or on-track equipment derailment; (E) a disabled train; and (F) an illness, injury, or other incapacitation of the one-person train crewmember. This requirement will ensure that each railroad with a oneperson train crew operation has operating rules specifying how the railroad will respond to these types of events and therefore will be prepared to take mitigating measures knowing that a second crewmember will not be traveling on the train and available to assist in a response. Although similar to the proposal in the NPRM, the various operating rule requirements that applied only to the proposed continuance of legacy train operations staffed with a one-person crew or for the initiation of train operations staffed with fewer than two crewmembers raise broadly applicable safety concerns for almost all one-person train crew operations; therefore, FRA determined these requirements are necessary for all the exceptions permitted by this section, not only the ones similar to the requirements as proposed in the NPRM. 317 49 CFR 225.5 (defining four different types of accidents or incidents). 318 87 FR at 45617–19 (citing proposed exceptions under §§ 218.127 through 218.131). PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations The requirement that the operating rule address a disabled train does not depend on the cause, which could include a track washout or other severe weather event, mechanical breakdown, accident, or other circumstances that prevent the train from moving. In some circumstances, a significant operational issue could disable a one-person crew’s train (e.g., if the one crewmember’s hours of service expired, and the railroad has not adequately prepared to retrieve and replace the crewmember).319 A one-person train crew could also be considered disabled from an operational view if the railroad assigns a one-person crewmember that is unqualified to operate over the territory assigned and the crewmember is not provided with a qualified pilot. In that circumstance, the one-person train crewmember might not be able to move the train or might be operationally limited in how the train can be moved thereby equating to a disabled train situation caused by physical breakdowns in equipment, track, or signal systems. A railroad would not have to adopt or comply with an operating rule to address operational delays typical of normal railroad operations, such as one train waiting in a siding for another to pass, as that operational activity would not be considered disabling the train; FRA expects that each railroad is trying to optimize its performance and would avoid unnecessary operational delays whenever possible. In addition to addressing disabled trains, this final rule requires that the railroad’s operating rule address, at a minimum, several other types of situations. For instance, the operating rule must address an accidental or nonaccidental release of any hazardous material. This means that any release of a hazardous material must be covered whether caused by a train collision or a non-accidental release (e.g., a release caused by an offeror not properly preparing a shipment for transportation). All derailments, accidents, and incidents must also be addressed by operating rule. In addition, a railroad’s operating rule must also address requests from an emergency responder to unblock a highway-rail grade crossing in response to a potentially life-threatening situation. Further, as required by paragraph (c)(1)(i)(F), the operating rule will need to include mitigation measures to ensure the safety of the one-person train crewmember will be addressed in case of illness, injury, or another incapacitation. The communication 319 87 FR at 45597. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 requirements specified in paragraph (c)(2), and discussed below, will help each railroad with a one-person train crew operation to keep in close communication with a one-person train crewmember and, under this requirement, the railroad will need to specify who will act and how, and plan out how fast the reaction times will be to ensure the crewmember’s safety. Paragraph (c)(1)(i) lists the types of situations that each affected railroad must address. The situations listed could involve responses requiring protocols for mitigation measures because each situation may include potential harm to rail employees, the public, or the environment. It is fundamental to rail safety that each railroad have an unambiguous operating rule addressing such mitigation measures and that by doing so the railroad will demonstrate that it will be prepared to respond as quickly as it would if the train were crewed with a two-person crew. All of the situations listed are foreseeable events on a railroad (and a railroad should in any case seek to prevent, and mitigate the impact of, such situations). All railroad employees and supervisors must have clearly described roles and responsibilities, and all logistics involved and expected response times must be clearly described. The reasonableness of the logistics and expected response times of each operation will depend on the scope of the operation and the potential impact on the public. Paragraph (c)(2) requires that each railroad have an operating rule to ensure radio or wireless communications with a one-person train crew can provide a level of safety for train operations and crewmember safety that is as safe or safer than a two-person train crew. The paragraph specifies that the required operating rule must cover four safety concerns: (i) the one-person train crew must have a working radio or working wireless communications on the controlling locomotive appropriate for railroad communications to cover those operations, even if the railroad is not otherwise required to supply them; 320 (ii) the train dispatcher or operator must confirm with the one-person train crewmember that the train is stopped before conveying a mandatory directive; (iii) whenever a one-person train crewmember can anticipate that radio or wireless communication will be lost, e.g., when entering a tunnel, unless a 320 Although not a requirement, FRA encourages each railroad to provide a redundant electronic device when possible, as FRA’s requirement is only a safety minimum. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 25093 railroad will monitor the train’s realtime progress, the crewmember must contact another person who would be expected to act if communication is lost longer than what is specified by the operating rule; 321 and (4) the railroad must establish procedures for when to initiate search-and-rescue operations if all radio or wireless communication is lost with a one-person train crewmember because the safety of the one-person train crewmember is always a fundamental safety concern that a railroad can plan for and address in an operating rule. Paragraph (c)(3) requires each railroad with an applicable one-person train crew operation to equip the operation’s controlling locomotive with a functioning alerter that is operating as intended and requires that a one-person train crewmember test the alerter to confirm it is working before departure from each initial terminal, or prior to being coupled as the lead locomotive in a locomotive consist. This requirement is therefore consistent with requirements in § 229.140 of this chapter for ensuring that an alerter is functioning and operating as intended. Class I and II railroads that generally have newer locomotives, placed into service on or after June 10, 2013, or permit the controlling locomotives to operate at speeds in excess of 25 mph, will already have locomotives with installed alerters that comply with FRA’s requirements; thus, the issue of adding an alerter and operating rules that address the safety of that alerter will largely be an issue for Class III railroads whose locomotives may lack such an alerter or have an older style of alerter installed.322 That is, FRA is aware that some Class II and III freight railroads have alerters that do not meet, and are excepted from, these requirements. FRA also recognizes it may be less expensive to install a basic alerter that lacks all the functions of an alerter meeting FRA’s current requirements. To address this issue, FRA will allow each railroad that limits the one-person train crew’s operation to a maximum authorized speed of 25 mph to use a locomotive alerter that does not otherwise meet the requirements for alerters in § 229.140, if the alerter has a manual reset and will result in a penalty brake application that brings the locomotive or train to a stop if not properly acknowledged. Of course, if 321 The person who would receive such a communication would typically be a dispatcher. However, for railroads that do not use dispatchers, the person might be a supervisor or manager, an intermittently assisting crewmember, or another railroad employee. 322 49 CFR 229.140(a). E:\FR\FM\09APR4.SGM 09APR4 25094 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 the railroad is required to have an alerter that complies with § 229.140, this provision does not provide an alternative to that existing requirement. Section 218.131 Special Approval Petition Requirements for Train Operations Staffed With a One-Person Train Crew This section, which is based on proposed § 218.133, has a modified section heading to clarify that the section’s requirements regarding the special approval petition will cover all special approval petition requirements, thus including requirements for both the initiation of new operations and potentially the continuation of some existing operations that are not otherwise exempted; on this issue, the proposed section was limited to the special approval petition requirements for only the initiation of train operations staffed with fewer than two crewmembers. Also, as changed in other sections, the ‘‘fewer than two crewmembers’’ phrase has been replaced for clarity with ‘‘a one-person train crew,’’ as this final rule only addresses one-person train crew operations and does not apply to autonomous operations. Similar to the NPRM, paragraph (a)(1) prohibits a railroad from operating a train with a one-person train crew unless it receives special approval for the operation as required by this subpart or the operation complies with one of the exceptions specified in §§ 218.125 through 218.129. This paragraph has an option that will allow a railroad with an existing operation that is not otherwise excepted to continue that operation in the interim period before it receives FRA’s decision on a special approval petition. For example, this option would apply to a Class II or III railroad’s existing one-person train crew freight operation transporting hazardous materials of the types or quantities specified in § 218.123(c) that was initiated less than two years before the effective date of the final rule (and therefore does not qualify for the legacy operation exception in § 218.129(a)(1)). As provided in paragraph (a)(2), there are three conditions for continuing that operation during this interim period before FRA decides on the special approval. First, the railroad must submit a written notice by email to FRA no later than 15 days after the effective date of the final rule. The written notice must include a summary of the railroad’s operation, which is not expected to be as thorough as the description provided with the special approval petition that will be filed later. The written notice must also include the VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 contact information for the railroad’s primary point of contact on the operation. Second, FRA may identify existing safety hazards with any aspect of the one-person train crew operation and will coordinate with the railroad about such safety hazards that are required to be corrected, could be readily mitigated, or otherwise should be addressed. For example, if FRA finds that the operation is occurring over track or with rolling equipment that does not meet existing Federal standards, the railroad will need to coordinate with FRA on remedial action to redress the problems and to provide assurances that the railroad will prevent future occurrences. Similarly, although a railroad will address safety hazards in the risk assessment submitted as part of a special approval petition, FRA will examine the existing operation for safety concerns to ensure such concerns are addressed to protect the safety of the one-person train crewmember or the communities that the trains pass through. Third, the railroad must submit its special approval petition meeting all the requirements for such a petition no later than 60 days after the effective date of the final rule. This deadline is necessary so that the review and decision-making process for these operations of less than two years can be processed quickly. As a practical matter, during the interim 60-day period from the effective date of the rule until the special approval petition deadline, a railroad may consider changing its oneperson train crew operation to avoid having to submit a special approval petition by adding a second crewmember or changing aspects of the operation so that the operation otherwise complies with this final rule; in such circumstances, the railroad would no longer need to avail itself of this option. Because the final rule expressly permits a railroad to continue the operation in accordance with the requirements in this section ‘‘pending FRA’s decision on the railroad’s special approval petition,’’ if FRA requires additional information or requests modifications after receiving the petition, the railroad will have the discretion to continue the operation until FRA issues a decision on the petition. As discussed in the response to comments above, paragraph (a)(3) has been added to the final rule. Each freight railroad seeking to either initiate or continue a train operation with a oneperson train crew that may transport hazardous materials of the types or quantities specified in § 218.123(c) is required to receive FRA’s special PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 approval for the operation and to comply with the requirements in § 218.129(c). The paragraph thus requires those operations to have operating rules that address taking mitigation measures under specified situations, operating rules addressing the communication and safety concerns associated with a one-person train crew operation, and operating rules requiring a one-person train crew’s controlling locomotive to be equipped with a functioning alerter and the testing of that alerter to determine it is functioning, in addition to requiring a special approval petition that includes a risk assessment. Paragraph (a)(4) was originally proposed as § 218.133(a)(2), and the requirements are the same as proposed. Accordingly, the analysis provided in the NPRM is applicable for this paragraph.323 Paragraph (b), which is based on proposed § 218.133(b), contains the minimum petition requirements for a railroad to request FRA’s special approval to initiate a train operation with a one-person train crew that is not otherwise permitted by one of the exceptions. FRA expects that a petition meeting these minimum requirements will contain sufficient information for FRA to issue a decision. In the NPRM, FRA stated that it would determine whether approving the petition operation is ‘‘consistent with railroad safety.’’ In this final rule, FRA will be determining whether approving the operation described in the petition is ‘‘as safe or safer’’ than a two-person train crew operation. The reason for changing the standard to ‘‘as safe or safer’’ is to coincide with the risk assessment that a railroad must include as part of its petition. In the risk assessment, a railroad will compare the risks associated with the one-person train crew operation to those associated with the operation if it were performed by a two-person train crew. Accordingly, FRA will approve a petition for a one-person train crew operation only where the risk assessment shows that it will be as safe or safer than a two-person train crew operation. Where the requirements in paragraph (b) are substantively different than proposed, this analysis will address those differences.324 Otherwise, because the changes from the proposed rule will not change the paragraph’s meaning, the 323 87 FR 45597. notes that it did not adopt proposed paragraph § 218.133(b)(14) in this final rule. 324 FRA E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 analysis provided in the NPRM is applicable for this final rule.325 Paragraph (b)(8) will require a railroad to state in its petition for special approval whether the railroad is seeking approval to transport hazardous materials of any quantity and type. The term ‘‘hazardous materials’’ is defined by PHMSA in 49 CFR 171.8. The final rule differs from the NPRM in that it contains the additional requirement that a railroad answer whether it is transporting hazardous materials listed in § 218.123(c), because those are the materials identified as posing the greatest safety and security risks in transportation. Paragraph (b)(13) requires a railroad to submit with a special approval petition a copy of a railroad operating rule that will apply to the proposed train operation(s) with a one-person train crew, and which complies with the requirements of § 218.129(c)(1) to ensure rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations with the oneperson train crew operation. In the NPRM, FRA described a disabled-train/ post-accident protocol, which largely proposed the same requirement as in this final rule. The final rule provides clarity to the types of situations that will be required to be addressed in such an operating rule. The final rule also will require the same operating rule for an exception to the two-person train crew mandate under § 218.129(c)(1) as it will for an exception permitted by special approval under this section. As proposed in the NPRM, the final rule will also permit a passenger train operation, with an approved emergency preparedness plan under part 239, to omit this requirement as duplicative. Paragraph (c) did not change from the NPRM and provides railroads notice that FRA may request any additional information, beyond what the railroad provided in the petition. Section 218.133 Risk Assessment Content and Procedures This section, which was proposed as § 218.135, contains the minimum requirements for a railroad’s risk assessment under this subpart. As stated in the NPRM, the goal of a risk assessment is to assess risk in an objective manner by following a decision-making process designed to systematically identify hazards, assess the degree of risk associated with those hazards, and based on those assessed risks, identify and implement measures 325 87 FR 45597–98. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 to minimize or mitigate the risks to an acceptable level. For this rule, a risk assessment is the process of determining, either quantitatively or qualitatively, or both, whether the level of risk associated with a proposed oneperson train operation, when mitigated, is as safe or safer than the same operation operated with a two-person crew minimum. In this final rule, FRA has modified the risk assessment process and standard from the NPRM for several reasons described above in the discussion of comments and conclusions and further summarized here. The overall approach was to remove proposed requirements that might be viewed as difficult to meet and to provide railroads with more flexibility in adopting a risk assessment approach. One major difference from the NPRM led FRA to revisit aspects of the proposed quantitative risk-based hazard analysis and move it to appendix E, where it has been identified as one risk assessment approach. Although some commenters objected to the proposed version of this approach, FRA is retaining the overall approach in the rule, so it is readily available to those railroads who may want to apply an objective approach that is already approved by FRA. Similarly, FRA is also addressing the concerns raised relating to a quantitative assessment that calculates a mean time to hazardous event, noting that not all railroads may have the historical safety data to perform the calculations required in the NPRM with the level of statistical confidence. Addressing the issue of flexibility in adopting an approach, the risk-based hazard analysis in the final rule provides for a comparison, allowing for a qualitative approach as well as a quantitative approach, including use of both approaches in the overall analysis. These changes are consistent with the system safety program and risk reduction program rules, which require a risk-based hazard analysis as part of the risk-based hazard management program. Providing for use of a similar form of analysis will help address concerns regarding the complexity and burden of the risk assessment. Paragraph (a) of this section sets the minimum standards for the risk assessment’s content and analysis requirements while paragraph (b) allows a railroad to use alternative risk assessment methodologies and/or procedures if approved by the Associate Administrator for Safety. Paragraphs (a)(1) through (4) require a railroad’s risk assessment to contain: (1) a complete description of the proposed operating environment, including a list PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 25095 and description of all functions, duties, and tasks associated with the operation of a train as proposed, performed by the one-person train crewmember, other railroad employee(s), or equipment; (2) a description of the allocation of all functions, duties, and tasks to the oneperson train crewmember, other railroad employee(s), or equipment; (3) a riskbased hazard analysis for the proposed train operation’s functions, duties and tasks that will identify new hazards, changes to existing hazards and/or changes to the risk of an existing hazard associated with the proposed train operation, as compared to a two-person minimum train crew operation, and then once mitigated, demonstrate that the proposed operation is as safe or safer than a train operation with a two-person minimum train crew; and (4) a mitigation plan that documents the design and implementation timeline of the sustained mitigation strategies to eliminate or reduce the overall risk to a level such that the one-person train crew operation is as safe or safer than a two-person minimum train crew operation considering mitigation design and human factors, at a minimum. Using the information gathered in response to paragraphs (a)(1) and (2), paragraph (a)(3) requires a railroad to complete a risk-based hazard analysis that involves multiple steps. The first step, under paragraph (a)(3)(i), will be to identify any new hazards, changes to existing hazards, and/or changes to the risk of an existing hazard associated with the proposed one-person train operation, as compared a two-person minimum train crew operation. A ‘‘hazard,’’ as defined in § 218.5, is an existing or potential condition that can lead to an unplanned event or series of events (i.e., mishap) that can cause an accident or incident; injury, illness, or death; damage to or loss of a system, equipment, or property; or environmental damage. Identifying relevant hazards and preparing a hazard analysis are fundamental to the process of assessing risk. This hazard analysis must take account of all aspects of the railroad’s system, including at a minimum infrastructure, equipment, technology, work schedules, mode of operation, operating rules and practices, training and other areas impacting railroad safety. As mentioned with regard to paragraph (a)(1), the operating environment, as documented in the special approval petition as required by § 218.131(b), must also be considered as part of the hazard analysis. Next, under paragraph (a)(3)(ii), each risk associated with the new or changed hazard must be evaluated, either qualitatively or E:\FR\FM\09APR4.SGM 09APR4 25096 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations quantitatively, or both, in terms of the severity and likelihood of a mishap. The third step, under paragraph (a)(3)(iii), will be to identify mitigations that will be put in place to minimize or eliminate any new or changed hazard or any change to the risk of a hazard, and then recalculate in terms of severity and likelihood the risk of a mishap. The fourth and final step, under paragraph (a)(3)(iv), will require the railroad to provide a statement with supporting evidence that the one-person train crew operation with a fully implemented mitigation plan, is as safe or safer than a two-person minimum operation. The alternative standard in paragraph (b) has the same meaning as the requirement proposed in § 218.135(b), with the only change from the proposal being that the term ‘‘Associate Administrator’’ is clarified as the ‘‘Associate Administrator for Safety.’’ Thus, the analysis for this paragraph in the NRPM applies the same.326 ddrumheller on DSK120RN23PROD with RULES4 Section 218.135 Special Approval Procedure Other than deleting some crossreferences and updating the standard for a petition approval (i.e., as safe or safer), this section is unchanged from proposed § 218.137. Paragraph (e) contains the same requirements as in the proposed rule, except that the final rule organized the requirements in a chronological order. Thus, the analysis provided in the NPRM is applicable for this section.327 FRA encourages railroads to approach FRA should they have any questions or concerns about demonstrating compliance with the requirements for train operations staffed with a one-person crew. Section 218.137 Annual Railroad Responsibilities After Receipt of Special Approval In the NPRM, this section was proposed as § 218.139. The changes from the proposed rule are consistent with other changes made in the final rule, and the section’s meaning has not changed. Thus, the analysis provided in the NPRM is applicable for this section.328 The following explanation provides additional information for clarity. Paragraph (a) requires each railroad that receives special approval to use an operation with a one-person train crew under this subpart to conduct a formal review and analysis each calendar year, of the one-person train crew operation, and report to FRA its findings and 326 87 FR 45603. FR 45603–04. 328 87 FR 45604–05. 327 87 VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 conclusions from its review no later than March 31 of the following year by email. The final rule clarifies that the review and analysis that will be required is the annual report and that the requirements in paragraphs (b) and (c) of this section describe the components of a railroad’s annual report. Because, unlike the proposal in the NPRM, the final rule will not require special approval for certain existing passenger and freight train operations staffed with a one-person train crew, this section does not contain citations or references that include such operations as requiring an annual report. Paragraph (b)(1)(ix) was changed from the proposed requirement to provide clarity. In the NPRM, the proposed requirement would have required a railroad to report the total number of instances where a person certified as both a locomotive engineer and conductor had a certification revoked for violation of an operating rule or practice that occurred when the person was in an FRA-approved train operation with fewer than two crewmembers. In this final rule, a railroad will be required to report the total number of instances where a one-person train crewmember had a certification revoked for violation of an operating rule or practice that occurred when the person was operating a one-person train crew operation that received special approval under this subpart. The change from the proposed rule will clarify that the annual report will require inclusion of revocations of a locomotive engineer or conductor’s certification of the oneperson train crewmember. The final rule defines the ‘‘one-person train crewmember’’ to mean the single assigned person who is performing the duty of the locomotive engineer and is traveling in the operating cab of the controlling locomotive when the train is moving as part of a one-person train crew in § 218.5. Thus, the final rule clarifies that a one-person train crewmember can be a locomotive engineer alone and does not also need to be the train’s assigned conductor. The final rule also clarifies that the annual report must capture the total number of instances where a one-person train crewmember’s locomotive engineer or conductor certification is revoked for a violation of an operating rule or practice that occurred when the person was operating a one-person train crew operation receiving special approval under this subpart, and subtotals for each type of certification revoked; i.e., whether it is a locomotive engineer or conductor certification revocation. PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 Appendix E to Part 218—Recommended Procedures for Conducting Risk Assessments This appendix provides a quantitative risk-based hazard analysis methodology that may be used to meeting the requirements of § 218.133(a)(3) and is based upon the proposed requirements in § 218.135 of the NPRM. It provides one acceptable approach that may be used by a railroad to prepare a riskbased hazard analysis, which is part of the risk assessment required by § 218.133. A railroad that is required to obtain FRA’s special approval under § 218.135 and complete a risk assessment may adopt this approach. A railroad that decides to modify this approach or to use a completely different approach is required to petition FRA for approval under § 218.133(b). The recommended and acceptable approach is a quantitative risk-based hazard analysis. A hazard analysis is performed to identify new or changed hazards relating to the operation of a one-person train crew, as compared to a two-person minimum train crew operation, for purposes of eliminating, or at least mitigating, those hazards, thus ensuring that the operation by a one-person train crew is as safe or safer than that operating by a two-person crew. Paragraph (a) describes the first step as identifying all new hazards, changes to existing hazards, or changes to the risk of existing hazards, when comparing a one-person train crew operation with a two-person minimum train crew operation. Paragraph (b) describes the quantitative approach to assessing the severity of each of the hazards identified under paragraph (a) and the probability of occurrence. Paragraph (c) describes the process for applying sustained mitigation strategies and the requirement to recalculate the risk based on the implementation of those mitigation strategies. Paragraph (d) describes how to prepare a risk matrix that classifies the risks calculated in paragraph (c) in terms of severity and likelihood of each new hazard, change to an existing hazard, or change to the risk of an existing hazard. Paragraph (e) describes how to prepare a risk report documenting the basis for acceptability of all hazards not eliminated through the risk assessment process, i.e., the residual risk associated with the remaining partially mitigated or unmitigated hazards identified in the risk matrix. Paragraph (f) describes that, for a railroad to exercise this option, it must be able to conclude its risk assessment by issuing a statement with supporting evidence, that the one- E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations person operation with a fully implemented mitigation plan, is as safe or safer than a two-person minimum operation. IV. Regulatory Impact and Notices A. Executive Order 12866 as Amended by Executive Order 14094 This final rule is a significant regulatory action within the meaning of Executive Order 12866 as amended by Executive Order 14094, Modernizing Regulatory Review,329 and DOT Order 2100.6A (‘‘Rulemaking and Guidance Procedures’’). Details on the estimated costs of this final rule can be found in the RIA, which FRA has prepared and placed in the docket (FRA–2021–0032). The final rule requires railroads seeking to operate trains with one- person train crews to submit a notification to FRA and in some cases, seek FRA approval for such an operation. The petition process requires the submission of information to determine if a proposed one-person train crew operation will be as safe or safer than a two-person minimum train crew operation. Class II and Class III railroads not transporting certain types or quantities of hazardous materials are required to submit a notification to FRA when commencing one-person train crew operations, adopt and comply with operating rules necessary to ensure the one-person train crewmember’s safety and ensure the railroad is prepared to take appropriate mitigation measures in response to certain safety-critical situations, and equip a one-person train 25097 crew’s controlling locomotive with an alerter. FRA analyzed the economic impact of this final rule. FRA estimated the costs associated with alerters, operating rules, notification to FRA, risk assessments and special approvals, annual reporting after receipt of special approval, and Government administration. FRA qualitatively discusses the benefits but does not have sufficient data to monetize those benefits. FRA estimates the 10-year costs of the final rule to be $6.6 million, discounted at 7 percent. The annualized costs are estimated to be $0.9 million discounted at 7 percent. The following table shows the total costs of this final rule, over the 10-year analysis period. TOTAL 10-YEAR DISCOUNTED COSTS [2022 Dollars] 330 Total cost, 7 percent ($) ddrumheller on DSK120RN23PROD with RULES4 Category Total cost, 3 percent ($) Annualized cost, 7 percent ($) Annualized cost, 3 percent ($) Alerters (Legacy Operations) ........................................................................... Alerters (New Operations) ............................................................................... Operating Rules (Existing Operations) ............................................................ Operating Rules (New Operations) ................................................................. Notification (Existing Operations) .................................................................... Notification (New Operations) .......................................................................... Risk Assessment and Special Approval (Class I) ........................................... Risk Assessment and Special Approval (Class II and III) ............................... Risk Assessment (Material Modifications) ....................................................... Annual Reporting ............................................................................................. Government Administrative Cost ..................................................................... 2,176,402 2,251,306 119,954 280,824 185,114 111,133 560,745 162,446 93,031 182,821 513,100 2,217,233 2,483,470 119,954 308,591 185,114 122,593 570,571 164,506 111,178 221,284 579,523 309,871 320,535 17,079 39,983 26,356 15,823 79,837 23,129 13,246 26,030 73,054 259,927 291,138 14,062 36,176 21,701 14,372 66,888 19,285 13,033 25,941 67,938 Total Costs ............................................................................................... 6,636,876 7,084,016 944,942 830,463 The primary benefit of this final rule is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions. This final rule will also ensure that several significant operational safety issues with oneperson train crews are addressed and allow FRA to collect information and data on one-person train crews. For instance, FRA will close a safety issue by requiring alerters for Class II and III railroads operating with a one-person train crew that do not already have these safety devices installed on their locomotives for that type of operation. Alerters will ensure that if a crewmember becomes unresponsive, the train will apply emergency brakes—a function typically left to a conductor or other second crewmember. FRA will also address issues that it cannot 329 88 FR 21879 (April 6, 2023) located at https:// www.federalregister.gov/documents/2023/04/11/ 2023-07760/modernizing-regulatory-review. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 currently verify are addressed by each railroad’s one-person train crew operations. These include public and rail employee concerns with the operational safety of a train operated by a one-person crew, the operational safeguards to protect that crewmember in various situations, and the impact of one-person train crew operations that travel through communities and need to take action to mitigate consequences in certain safety-critical situations. These are important safety issues when operating trains with one-person crews. For Class I railroads operating with one-person train crews and Class II and III railroads transporting certain types and quantities of hazardous materials, this rule will ensure the railroads identify, evaluate, and address safety concerns that may arise from such 331 5 operations by submitting a risk assessment to FRA for approval. A second crewmember performs important safety functions that could be lost when reducing crew size to one person. The safety requirements in this final rule will allow the rail industry to continue, or initiate, train operations with a one-person train crew by ensuring that at least minimum safety requirements are met and that more complex operations make a concerted effort to mitigate the risks of foreseeable hazards. B. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act of 1980 331 and Executive Order 13272 332 require agency review of proposed and final rules to assess their impacts on small entities. An agency must prepare a Final Regulatory Flexibility Analysis U.S.C. 601 et seq. FR 53461 (Aug. 16, 2002). 332 67 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 25098 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations (FRFA) unless it determines and certifies that a rule will not have a significant economic impact on a substantial number of small entities. FRA prepared this FRFA to evaluate the impact of the final rule on small entities and describe the effort to minimize the adverse impact because FRA did not make the determination necessary to avoid it. ddrumheller on DSK120RN23PROD with RULES4 1. Statement of the Need for, and Objectives of, the Rule Currently, the majority of trains operate with two crewmembers. The final rule helps ensure safe rail operations when railroads are using one-person train crews, or plan to reduce train crew sizes from two or more crewmembers to a one-person train crew, by prohibiting railroads from taking on unacceptable levels of safety risks with the potential to detrimentally impact railroad employees, the public, or the environment. This final rule requires that railroads have appropriate safeguards in place for safe train operations, whenever a railroad is operating with only one crewmember that travels on the train. Although operations with one-person train crews already exist in the United States, this final rule will help ensure consistency from State to State regarding the safety of such operations, and it provides several paths forward for railroads that wish to transition to oneperson train crew operations. Additionally, the annual reporting requirement for operations that receive special approval will provide FRA with information regarding these one-person train crew operations on a periodic basis that is expected to be informative, allow for agency oversight, and lead to additional safety improvements. 2. Significant Issues Raised by Public Comments FRA received several comments related to the costs of the proposed rule. ASLRRA and short line railroads submitted comments related to the proposed rule. Issues not concerning the economics of the rule have been discussed above in the discussion of comments and conclusions. Comments were received from ASLRRA relating to the cost estimates and the number of small entities impacted by the rule. ASLRRA’s concerns included not accounting for the cost of alerters, too low of a cost estimate for risk assessments, and a higher number of affected entities than what FRA estimated in the proposed rule. In response to the affected number of entities, FRA has increased the estimate to 75 legacy operations based on VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 comments received in response to the NPRM. All but two of these legacy operations are on small railroads. Therefore, FRA estimates there are approximately 73 small railroads currently operating that will be impacted by this final rule. FRA has also accounted for the cost for alerters in the final rule’s RIA. Based on ASLRRA’s comment, FRA has included the estimated cost of $20,000 per alerter. Further, FRA has revised the cost for preparing risk assessments from the estimates presented in the NPRM. ASLRRA commented that current oneperson operations hauling hazardous materials would have to hire additional employees because such operations would not be allowed under the proposed requirements. However, in the final rule, Class III railroads will be allowed to continue legacy one-person train crew operations that transport hazardous materials of the types or quantities specified in § 218.123(c), provided that they notify FRA. Therefore, small railroads with such train operations will be able to continue operating with one-person crews and will not need to hire additional employees if they adhere to the requirements in this final rule. Class III railroads that would like to commence new one-person train crew operations transporting certain types and quantities of hazardous materials specified in the final rule will need to apply for special approval and conduct a risk assessment but should not need to hire additional crewmembers to transition from a twoperson train crew operation to a oneperson train crew operation. 3. Response to Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration FRA received a comment from SBAAdvocacy, asserting that FRA appears to have significantly understated the cost and number of small businesses that would be impacted by the proposed rule. As stated above, FRA has revised the estimated number of small entities impacted to 73 railroads with legacy operations, up from the original 7 estimated in the RIA for the NPRM. Currently, approximately 75 railroads operate some trains with one-person crews. All but two of those operations are small railroads. Therefore, FRA estimates there are approximately 73 small railroads currently operating that will be impacted by this final rule. SBA-Advocacy also commented that FRA should revise and republish its Initial Regulatory Flexibility Analysis (IRFA), or a Supplemental IRFA, including further consideration of PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 significant regulatory alternatives, for additional public comment before proceeding. As FRA has made several changes in the final rule from the proposal in the NPRM, FRA is publishing this FRFA to aid the public in determining the impact to small entities. FRA has adjusted the costs and revised the final rule based on public comments, including comments from small entities and SBA-Advocacy. FRA also provided extra time and various opportunities (including a public hearing) for interested parties, including small entities, to comment. 4. Description and Estimate of the Number of Small Entities to Which the Rule Will Apply The Regulatory Flexibility Act of 1980 requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule would not have a significant economic impact on a substantial number of small entities. ‘‘Small entity’’ is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a ‘‘small entity’’ in the railroad industry is a for profit ‘‘line-haul railroad’’ that has fewer than 1,500 employees, a ‘‘short line railroad’’ with fewer than 1,500 employees, a ‘‘commuter rail system’’ with annual receipts of less than $47.0 million dollars, or a contractor that performs support activities for railroads with annual receipts of less than $34.0 million.333 Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Under that authority, FRA has published a proposed statement of agency policy that formally establishes ‘‘small entities’’ or ‘‘small businesses’’ as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR part 1201, General Instruction 1–1, which is $20 million or less in inflation-adjusted annual revenues,334 and commuter railroads or 333 U.S. Small Business Administration, ‘‘Table of Small Business Size Standards Matched to North American Industry Classification System Codes, March 27, 2023. https://www.sba.gov/sites/sbagov/ files/2023-06/Table%20of%20Size%20Standards_ Effective%20March%2017%2C %202023%20%282%29.pdf. 334 The Class III railroad revenue threshold is $46.3 million or less, for 2022. https:// www.ecfr.gov/current/title-49/subtitle-B/chapter-X/ subchapter-C/part-1201. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations small governmental jurisdictions that serve populations of 50,000 or less.335 FRA is using this definition for the final rule. When shaping the final rule, FRA considered the impact that the final rule would have on small entities. FRA has provided exceptions to the two-person crew requirement which would limit the impact on small entities. In addition, tourist train operations that are not part of the general system may operate with one-person crews. The final rule is applicable to all railroads, although only railroads that operate trains with one crewmember would be affected. FRA estimates there are 768 Class III railroads, of which 734 operate on the general system. These railroads are of varying size, with approximately 250 Class III railroads belonging to larger holding companies. Many small railroads will qualify for an exception under § 218.129, which allows for one-person operations if a railroad is a legacy one-person freight train operation, work train operation, helper service train operation, or lite locomotive train operation staffed with a one-person train crew. Those railroads will not need to petition FRA for special approval for such an operation, nor will they be required to submit a risk assessment. They will be required to notify FRA of the operation and ensure that they adopt and comply with operating rules for the one-person operation and equip the one-person train crew’s controlling locomotive with an alerter. FRA estimates that there are 73 legacy operations on Class III railroads. Legacy operations will be required to notify FRA of the operation and ensure that they adopt and comply with operating rules for the one-person operation and equip the one-person train crew’s controlling locomotive with an alerter. Over the 10-year analysis, FRA estimates an additional 84 Class III railroads will be impacted by this final rule; this includes 50 railroads that would be required to notify FRA and 34 that would require special approval from FRA. The following table shows the estimated number of new one person operations per year on Class III railroads. Year Class III railroads, notification Class III railroads, special approval 1 ................ 2 ................ 3 ................ 4 ................ 5 ................ 6 ................ 7 ................ 8 ................ 9 ................ 10 .............. 11 11 5 5 3 3 3 3 3 3 7 7 4 4 2 2 2 2 2 2 Total ...... 50 34 Some of those railroads may be some of the same railroads already operating a legacy one-person operation. If a railroad is beginning a new operation that does not fall under the parameters of the legacy operation, it will be required to notify FRA or apply for special approval, depending on the commodities transported. All new operations will need to adopt and comply with operating rules for oneperson train crew operations and equip a one-person train crew’s controlling locomotive with an alerter. 5. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule The final rule requires Class III railroads to notify FRA of current oneperson train crew operations. Those operations must have operating rules relevant to one-person train crews and equip one-person locomotives with alerters. Class III railroads that commence one-person train crew operations that transport hazardous materials of the types or quantities specified in § 218.123(c) must apply for 25099 special approval and conduct a risk assessment. Class III railroads commencing one-person train crew operations not hauling the types or quantities specified in § 218.123(c) will need to notify FRA of the operation but will not need to apply for special approval. Those railroads will also need to comply with the requirements for operating rules and alerters in locomotives of one-person train crews. FRA estimates 73 one-person train crew operations currently exist across the Class III railroad industry. The following table shows the estimated number of new one-person operations over the 10-year analysis. These estimates are used throughout the analysis to estimate the impact to Class III railroads. Railroads currently operating trains with one-person crews that do not have an alerter installed in the locomotive will need to install an alerter in a oneperson train crew’s controlling locomotive within two years of the effective date of the final rule. Each alerter is estimated to cost $20,000 and each railroad would require, on average, 1.5 alerters for oneperson train crew operations. The following table shows the cost to equip locomotives with alerters. Class III railroads with legacy oneperson train crew operations required to install alerters will have up to two years after the effective date of the final rule to install alerters. FRA estimates that the cost will be split over the first two years. The following table shows the 10-year estimated cost for legacy Class III oneperson train crew operations to equip locomotives with alerters. The total estimated 10-year cost will be $2.2 million. The estimated annualized cost will be $301,607 (PV, 7%). TOTAL 10-YEAR COST FOR ALERTERS, CLASS III RAILROADS WITH LEGACY OPERATIONS Total cost ($) ddrumheller on DSK120RN23PROD with RULES4 Year 1 2 3 4 5 6 7 8 9 ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... ................................................................................................................................................... 1,095,000 1,095,000 0 0 0 0 0 0 0 335 See 68 FR 24891 (May 9, 2003) (codified at appendix C to 49 CFR part 209). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 Present value 7% ($) 1,095,000 1,023,364 0 0 0 0 0 0 0 Present value 3% ($) 1,095,000 1,063,107 0 0 0 0 0 0 0 25100 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations TOTAL 10-YEAR COST FOR ALERTERS, CLASS III RAILROADS WITH LEGACY OPERATIONS—Continued Present value 7% ($) Total cost ($) Year Present value 3% ($) 10 ................................................................................................................................................. 0 0 0 Total ...................................................................................................................................... Annualized ............................................................................................................................ 2,190,000 ........................ 2,118,364 301,607 2,158,107 252,996 The following table shows the cost for new one-person operations on Class III railroads to equip locomotives with alerters. The total estimated 10-year cost will be $2.5 million. The estimated annualized cost will be $296,791 (PV, 7%). TOTAL 10-YEAR COST FOR ALERTERS, NEW CLASS III OPERATIONS Year Number of new oneperson operations per year Number of alerters per operation Total cost per alerter ($) Total cost ($) a b c d=a*b*c Present value 7% ($) Present value 3% ($) 1 ............................................................... 2 ............................................................... 3 ............................................................... 4 ............................................................... 5 ............................................................... 6 ............................................................... 7 ............................................................... 8 ............................................................... 9 ............................................................... 10 ............................................................. 18 18 9 9 5 5 5 5 5 5 1.5 1.5 1.5 1.5 1.5 1.5 1.5 1.5 1.5 1.5 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 20,000 540,000 540,000 270,000 270,000 150,000 150,000 150,000 150,000 150,000 150,000 540,000 504,673 235,828 220,400 114,434 106,948 99,951 93,412 87,301 81,590 540,000 524,272 254,501 247,088 133,273 129,391 125,623 121,964 118,411 114,963 Total .................................................. Annualized ........................................ ........................ ........................ ........................ ........................ ........................ ........................ 2,520,000 ........................ 2,084,539 296,791 2,309,486 270,742 The final rule requires each freight railroad with a legacy one-person train crew operation to adopt and comply with operating rules that establish regular and effective communication with a one-person train crew to ensure the safety of the train and that oneperson train crewmember’s safety. Each railroad will need approximately 12 hours to formalize these operating rules. The following table shows the cost of formalizing operating rules for legacy Class III one-person train crew operations. This cost would be incurred only in year 1. Therefore, the total estimated 10-year cost will be $108,106. The estimated annualized cost will be $15,392 (PV, 7%). COST OF FORMALIZING OPERATING RULES, LEGACY CLASS III OPERATIONS ddrumheller on DSK120RN23PROD with RULES4 Type of employee Hours Hourly wage rate ($) Total cost per notification ($) Number of legacy operations Total annual cost across industry ($) a b c=a*b d e=c*d Senior Managers .................................................................. Superintendents ................................................................... Train Masters ....................................................................... Road Foreman ..................................................................... 4 4 2 2 123.41 123.41 123.41 123.41 494 494 247 247 ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ Total .............................................................................. 12 ........................ 1,481 73 108,106 Class III railroads implementing oneperson train crew operations will be required to adopt and comply with operating rules that establish regular and effective communication with a VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 one-person train crew to ensure the safety of the train and that one-person train crewmember’s safety. The following table shows the cost of formalizing operating rules for new PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 Class III one-person train crew operations. It is estimated to take 12 hours per railroad for a total cost of $1,481 per railroad. E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations 25101 COST OF FORMALIZING OPERATING RULES, NEW CLASS III OPERATIONS Type of employee Hours Hourly wage rate ($) Total cost per railroad ($) a b c=a*b Senior Managers ......................................................................................................................... Superintendents ........................................................................................................................... Train Masters ............................................................................................................................... Road Foreman ............................................................................................................................. 4 4 2 2 123.41 123.41 123.41 123.41 494 494 247 247 Total ...................................................................................................................................... 12 ........................ 1,481 The following table shows the total 10-year costs for Class III railroads to adopt and comply with operating rules for communication and emergency situations specific to one-person train crew operations. The total estimated 10- year cost is $124,396. The annualized cost is $14,651 (PV, 7%). TOTAL 10-YEAR COSTS OF OPERATING RULES, NEW CLASS III OPERATIONS Year Number of new oneperson operations per year Total cost per operation ($) Total cost ($) a b c=a*b Present value 7% ($) Present value 3% ($) 1 ........................................................................................... 2 ........................................................................................... 3 ........................................................................................... 4 ........................................................................................... 5 ........................................................................................... 6 ........................................................................................... 7 ........................................................................................... 8 ........................................................................................... 9 ........................................................................................... 10 ......................................................................................... 18 18 9 9 5 5 5 5 5 5 1,481 1,481 1,481 1,481 1,481 1,481 1,481 1,481 1,481 1,481 26,656 26,656 13,328 13,328 7,405 7,405 7,405 7,405 7,405 7,405 26,656 24,913 11,641 10,880 5,649 5,279 4,934 4,611 4,310 4,028 26,656 25,880 12,563 12,197 6,579 6,387 6,201 6,021 5,845 5,675 Total .............................................................................. Annualized .................................................................... ........................ ........................ ........................ ........................ 124,396 ........................ 102,901 14,651 114,005 13,365 The final rule requires each freight railroad with a legacy one-person train crew operation to provide certain information about the operation in a written notification to FRA. It will take approximately 20 hours for each Class III railroad to prepare and make the notification to FRA of its one-person operations. The following table shows the cost for legacy Class III railroad operations to make the notification to FRA. This cost would be incurred only in year 1. Therefore, the total estimated cost will be $180,177. The estimated annualized cost will be $25,653 (PV, 7%). COST OF NOTIFICATION, LEGACY CLASS III OPERATIONS ddrumheller on DSK120RN23PROD with RULES4 Type of employee Hours per notification Hourly wage rate ($) Total cost per notification ($) Number of notifications Total annual cost across industry ($) a b c=a*b d e=c*d Senior Managers .................................................................. Superintendents ................................................................... Train Masters ....................................................................... Road Foreman ..................................................................... 7 5 4 4 123.41 123.41 123.41 123.41 864 617 494 494 ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ Total .............................................................................. 20 ........................ 2,468 73 180,177 The final rule requires each Class III freight railroad that plans to initiate a one-person train crew operation after the final rule’s effective date that will not be transporting certain types or VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 quantities of hazardous materials that have been determined to pose the highest risk in transportation to provide FRA with written notification of the operation before commencing the PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 operation. The following table shows the cost for Class III railroads to notify FRA of new one-person operations. It is estimated to take 20 hours per railroad E:\FR\FM\09APR4.SGM 09APR4 25102 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations to prepare and make the notification to FRA for a total cost of $2,468. COST OF NOTIFICATION, NEW CLASS III RAILROAD OPERATIONS Type of employee Hours per notification Hourly wage rate ($) Total cost per notification ($) a b c=a*b Senior Managers ......................................................................................................................... Superintendents ........................................................................................................................... Train Masters ............................................................................................................................... Road Foreman ............................................................................................................................. 7 5 4 4 123.41 123.41 123.41 123.41 864 617 494 494 Total ...................................................................................................................................... 20 ........................ 2,468 The following table shows the total 10-year costs for Class III railroads to notify FRA when commencing new oneperson train crew operations. This option could also be used by railroads that are continuing an operation that was established less than two years before the effective date of the final rule. Railroads hauling certain types and quantities of hazardous materials require special approval; hence, those operations are not included in this estimate. The estimates here are solely for operations that only require notification to FRA. The total estimated 10-year cost is $133,282. The annualized cost is $15,823 (PV, 7%). TOTAL 10-YEAR COST OF NOTIFICATION, NEW CLASS III RAILROAD OPERATIONS Year Estimated notifications per year Total cost per notification ($) Total cost ($) a b c=a*b Present value 7% ($) Present value 3% ($) 1 ........................................................................................... 2 ........................................................................................... 3 ........................................................................................... 4 ........................................................................................... 5 ........................................................................................... 6 ........................................................................................... 7 ........................................................................................... 8 ........................................................................................... 9 ........................................................................................... 10 ......................................................................................... 12 12 6 6 3 3 3 3 3 3 2,468 2,468 2,468 2,468 2,468 2,468 2,468 2,468 2,468 2,468 29,618 29,618 14,809 14,809 7,405 7,405 7,405 7,405 7,405 7,405 29,618 27,681 12,935 12,089 5,649 5,279 4,934 4,611 4,310 4,028 29,618 28,756 13,959 13,552 6,579 6,387 6,201 6,021 5,845 5,675 Total .............................................................................. Annualized .................................................................... ........................ ........................ ........................ ........................ 133,282 ........................ 111,133 15,823 122,593 14,372 The final rule requires Class III freight railroads that haul certain types or quantities of hazardous materials that have been determined to pose the highest risk in transportation that want to initiate a new operation with a oneperson train crew or continue an operation that was established less than two years before the effective date of the final rule to petition FRA under a special approval procedure. As part of the special approval process, these railroads will be required to conduct a risk assessment. The risk assessment must include a description of the final operation, a hazard analysis, and discussion of the tasks and functions of the one crewmember and equipment. ASLRRA and holding companies will likely create a model or template program that can be used by Class III railroads; therefore, the burden for each Class III railroad is estimated to be six hours per one-person train crew operation. The estimated cost per railroad is $665 to apply for special approval and submit a risk assessment. ddrumheller on DSK120RN23PROD with RULES4 COST OF SPECIAL APPROVAL AND RISK ASSESSMENT, CLASS III RAILROADS Hourly wage rate ($) Number of hours per railroad Total cost per railroad ($) (a) (b) (c) = (a) * (b) Chief Safety Officer ..................................................................................................................... Administrative Assistant ............................................................................................................... 123.41 85.93 4 2 494 172 Total per Railroad ................................................................................................................. ........................ 6 665 VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations The following table shows the total 10-year costs for Class III railroads to apply for special approval and conduct a risk assessment. Only railroads hauling certain types and quantities of hazardous materials require special approval, including a risk assessment. The total estimated 10-year cost is 25103 $22,627. The annualized cost is $2,661 (PV, 7%). TOTAL 10-YEAR COST FOR SPECIAL APPROVAL AND RISK ASSESSMENT, CLASS III RAILROADS Year Number of risk assessments per year Total cost per risk assessment ($) Total costs ($) a b c=a*b Present value 7% ($) Present value 3% ($) 1 ........................................................................................... 2 ........................................................................................... 3 ........................................................................................... 4 ........................................................................................... 5 ........................................................................................... 6 ........................................................................................... 7 ........................................................................................... 8 ........................................................................................... 9 ........................................................................................... 10 ......................................................................................... 7 7 4 4 2 2 2 2 2 2 665 665 665 665 665 665 665 665 665 665 4,658 4,658 2,662 2,662 1,331 1,331 1,331 1,331 1,331 1,331 4,658 4,354 2,325 2,173 1,015 949 887 829 775 724 4,658 4,523 2,509 2,436 1,183 1,148 1,115 1,082 1,051 1,020 Total .............................................................................. Annualized .................................................................... ........................ ........................ ........................ ........................ 22,627 ........................ 18,689 2,661 20,725 2,430 Each railroad that receives special approval to use an operation with a oneperson train crew must prepare an annual report, which will be a formal review and analysis each calendar year, of the one-person train crew operation. complete each report. It is estimated to require approximately 8 hours of labor per railroad for a total cost of $687 per year. The annual report, which will include a railroad’s findings and conclusions from its review, shall be submitted no later than March 31 of the following year. The following table shows the annual labor cost per railroad to COST OF ANNUAL REPORT, PER RAILROAD Type of employee Professional and Administrative .................................................................................................. The following table shows the total 10-year costs for Class III railroads to complete the annual report. The total Hours per railroad Hourly wage rate ($) Total annual cost per railroad ($) a b c=a*b 8 85.93 687 Present value 7% ($) Present value 3% ($) estimated 10-year cost is $156,737. The annualized cost is $15,471 (PV, 7%). TOTAL 10-YEAR COSTS OF ANNUAL REPORT, CLASS III RAILROADS ddrumheller on DSK120RN23PROD with RULES4 Year Number of reports per year Cost per report ($) Total cost ($) a b c=a*b 1 ........................................................................................... 2 ........................................................................................... 3 ........................................................................................... 4 ........................................................................................... 5 ........................................................................................... 6 ........................................................................................... 7 ........................................................................................... 8 ........................................................................................... 9 ........................................................................................... 10 ......................................................................................... 0 14 18 22 24 26 28 30 32 34 687 687 687 687 687 687 687 687 687 687 0 9,624 12,374 15,124 16,499 17,874 19,248 20,623 21,998 23,373 0 8,995 10,808 12,346 12,587 12,744 12,826 12,843 12,803 12,713 0 9,344 11,664 13,840 14,659 15,418 16,120 16,769 17,366 17,914 Total .............................................................................. Annualized .................................................................... ........................ ........................ ........................ ........................ 156,737 ........................ 108,664 15,471 133,093 15,603 VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 25104 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations The following table shows the annualized costs for all provisions of the final rule. The total annualized cost for all Class III railroads is $687,852 (PV, 7%). ANNUALIZED COSTS FOR CLASS III RAILROADS’ ONE-PERSON OPERATIONS Annualized cost, 7 percent ($) Cost category Alerters, Legacy Operations .......................................................................................................................................................... Alerters, New Operations .............................................................................................................................................................. Operating Rules, Legacy Operations ............................................................................................................................................ Operating Rules, New Operations ................................................................................................................................................. Notification to FRA, Legacy Operations ........................................................................................................................................ Notification to FRA, New Operations ............................................................................................................................................ Special Approval and Risk Assessment ........................................................................................................................................ Annual Report ................................................................................................................................................................................ 301,607 296,791 15,392 14,651 25,653 15,823 2,661 15,471 Total Annualized Cost for All Class III Railroads ................................................................................................................... 688,050 The industry trade organization representing small railroads, ASLRRA, reports the average freight revenue per Class III railroad is $4.75 million.336 The following table summarizes the average annual cost and revenue for Class III railroads. ANNUAL CLASS III RAILROADS’ COST AND REVENUE Total costs for all Class III railroads, annualized 7 percent ($) Number of Class III railroads Average annual cost per Class III railroad ($) Average Class III revenue ($) Average annual cost as percent of revenue a b c=a÷b d e=c÷d 688,050 157 4,382 4,750,000 0.09% The estimated average annual cost for a Class III railroad that is operating oneperson train crews will be $4,382. This represents a small percentage (0.1%) of the average annual revenue for a Class III railroad. ddrumheller on DSK120RN23PROD with RULES4 6. A Description of the Steps the Agency Has Taken To Minimize the Economic Impact on Small Entities This final rule allows Class III freight railroads to continue operating with one-person train crews for operations established for at least two years before the effective date of the final rule as long as these railroads notify FRA, install alerters, and adopt and comply with operating rules specific for oneperson train crews according to the implementation schedule. In response to comments on the NPRM, FRA has simplified the risk assessment and reduced the number of operations to which the special approval requirement will apply. Railroads commencing one-person train crew operations with certain types and quantities of hazardous materials will be required to petition FRA for special 336 American Short Line and Regional Railroad Association, Short Line and Regional Railroad Facts and Figures, p. 10 (2017 pamphlet). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 approval and conduct a risk assessment. Class III railroads commencing oneperson operations without certain types and quantities of hazardous materials will not need to petition FRA for special approval or complete a risk assessment. Those new one-person train crew operations will require notification to FRA, installation of alerters, and adoption and compliance with operating rules specific for one-person crews. The notification requirement provides flexibility for Class III railroads not hauling certain types and quantities of hazardous materials. Based on comments requesting more time to comply with any new minimum requirements to allow for proper planning, operational changes, or hiring and training of additional crewmembers, FRA is extending compliance dates for Class III railroads for certain exceptions that cannot be used by a Class I railroad, and therefore Class III railroads are provided greater flexibility in those circumstances such as when a Class III railroad’s legacy oneperson train crew freight operation has been established for at least two years 337 44 PO 00000 before the effective date of the final rule or the Class III railroad decides to initiate a new one-person train crew operation that is not transporting hazardous materials of the types or quantities specified in § 218.123(c). The final rule reflects relief from the proposed prohibition on the transportation of some hazardous materials with a one-person train crew set forth in the NPRM to provide for these legacy operations and new operations subject to conditions to ensure safety. C. Paperwork Reduction Act FRA is submitting the information collection requirements in this proposed rule to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act of 1995.337 The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows: U.S.C. 3501 et seq. Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations Respondent universe 338 CFR section 25105 Total annual responses Average time per response Total annual burden Total cost equivalent in U.S. dollar (A) (B) (C = A * B) (D = C * wage rates) 339 47 adopted rules and practices (27 legacy operations + 3 Class I new operations + 17 Class II and III new operations). 816.00 hours (288 + 204 + 324). $70,118.88 218.123—General crew size staffing requirements— Each railroad’s adoption or revision of rules and practices with the requirement of this subpart G (New requirement). 784 railroads ..................... —(d)(2) Location of crewmember(s) that is not operating the train when the train is moving—Direct communication between train crew members (New requirement). Direct communications between train crewmembers during train operations are a usual and customary practice. Consequently, there is no burden associated with this requirement. 120 hours (96 + 12 + 12) 340. ddrumheller on DSK120RN23PROD with RULES4 218.125(c)—Specific passenger and tourist train oper- The estimated paperwork burden for emergency preparedness plans is already included under OMB Control ation exceptions to crew size safety requirements— Number 2130–0545. Consequently, there is no additional burden associated with this requirement. Passenger railroads’ emergency preparedness plan approved under 49 CFR 239.201 (New requirement). —(d)(3) Federal Transit Administration (FTA) and designated State Safety Oversight (SSO) Agency approved Public Transportation Agency Safety Plan in accordance with 49 CFR parts 673 and 674 (New requirement). The estimated paperwork burden for approved FTA and SSO Public Transportation Agency Safety Plans is included under OMB Control Number 2132–0558. Consequently, there is no additional burden associated with this requirement. —(e) Existing passenger train operations one-person train crew with an approved emergency preparedness plan (New requirement). The estimated paperwork burden for emergency preparedness plans is already included under OMB Control Number 2130–0545. Consequently, there is no additional burden associated with this requirement. 218.129(a)–(b)(11)—Conditional exceptions based on compliance dates for legacy freight train operations, class II and III freight railroad train operations, work train operations, helper service train operations, and lite locomotive train operations staffed with a oneperson train crew—Written notice requirements shall be submitted by email to FRA (New requirement). Class II and III railroads ... —(b)(12) Copy of any railroad rule or practice that applies to the one-person train crew operation (New requirement). The estimated paperwork burden for this requirement is included above under § 218.129(a)–(b)(11). —(b)(13)–(14) Accident and incident data or any other information describing protections in lieu of a second train crewmember (New requirement). The estimated paperwork burden for this requirement is included above under § 218.129(b)(1)–(11). —(c) Additional requirements—Adopt and comply with an operating rule that complies with the requirements of ensuring rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations with the one-person train crew operation (New requirement). The estimated paperwork burden of this requirement is included above under § 218.123. 218.131(a)(2)(i)—Special approval petition requirements for train operations staffed with a one-person train crew RR with established one-person train crew written notice to continue operations (New requirement). The estimated paperwork burden for the special approval petition is included with the risk assessment burden under § 218.133. —(a)(2)(iii) RRs with established one-person train crew to submit special approval petition. The estimated paperwork burden for the special approval petition is included with the risk assessment burden under § 218.133. —(a)(3)—Each freight railroad seeking to either initiate or continue a one-person train crew must receive FRA’s special approval for the operation under this subpart and comply with section § 218.129(c) (New requirement). The estimated paperwork burden for special approval petition is included with the risk assessment burden under § 218.133. —(a)(4)—Passenger railroads seeking to initiate train operations with a one-person train crew must receive FRA’s special approval for the operation (New requirement). The estimated paperwork burden for special approval petition is included with the risk assessment burden under § 218.133. —(b)(1)–(15) Petition for a train operation staffed with a one-person train crew that is not permitted under §§ 218.125 through 218.129 must contain sufficient information for FRA to determine whether approving the operation described in the petition is as safe or safer than a two-person minimum train crew operation (New requirement). The estimated paperwork burden for special approval petition is included with the risk assessment burden under § 218.133. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 PO 00000 Frm 00055 Fmt 4701 35 notices (25 legacy operations + 10 Class II and III new operations). Sfmt 4700 40 hours (20 + 20). E:\FR\FM\09APR4.SGM 09APR4 700 hours ....... $86,387 25106 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations Respondent universe 338 CFR section Average time per response Total annual burden Total cost equivalent in U.S. dollar (A) (B) (C = A * B) (D = C * wage rates) 339 10.33 risk assessments (3.33 Class I/Passenger operations + 7 Class II and III operations). 586; 580 hours + 6 hours. 1,973.40 Hours (1,931.40 + 42). 218.133(a) Risk assessment content and procedures—General (Note: The paperwork burden for special approval petition is included here. The paperwork burden for revised risk assessment is included under § 218.135(e)) (New requirement). 784 railroads ..................... —(b) Alternative standard—Petition for approval to use alternative methodologies (New requirement). The estimated paperwork burden for this requirement is included under § 218.133 and § 218.135. 218.135(c)—Special approval procedure—Comments sent to FRA on petitions for special approval (New requirement). Railroad industry and interested parties. —(d)(1) Disposition of petitions—Hearings on petitions (New requirement). The requirements of this provision are exempted from the Paperwork Reduction Act under 5 CFR 1320.4(a)(2) because this activity is conducted during an administrative action affecting specific individuals or entities. —(d)(2) Special approval procedure—Disposition of petitions—Petitioners’ response to FRA’s special conditions to the approval of petition (New requirement). The estimated paperwork burden for this requirement is included under § 218.135. —(e) Modifications of operations already approved; revised risk assessments submitted to FRA—All operations (New requirement). 9 railroads ......................... 1.33 revised risk assessments. 70 hours ......... 93.10 hours .... 8,000.08 218.137—Annual railroad responsibilities after receipt of special approval—Annual review and analysis of FRA-approved train operation(s) (New requirement). 784 railroads ..................... 23 annual reports ............. 8 hours ........... 184 hours ....... 15,811.12 —(d) Railroads’ review of FRA response to their annual report (New requirement). The paperwork burden for this requirement is included above under § 218.137. Total 341 .................................................................. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Ms. Arlette Mussington, Information Collection Clearance Officer, at email: arlette.mussington@dot.gov or telephone: (571) 609–1285; or Ms. Joanne Swafford, Information Collection Clearance Officer, at email: joanne.swafford@dot.gov or telephone: (757) 897–9908. OMB is required to decide concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in the ddrumheller on DSK120RN23PROD with RULES4 Total annual responses 338 For purposes of this table, there are 784 railroads, excluding tourist railroads not on the general system, in the respondent universe. Additionally, FRA is currently aware of nine oneperson train crew operations. 339 Throughout the tables in this document, the dollar equivalent cost is derived from the 2022 Surface Transportation Board’s Full Year Wage A&B data series using the appropriate employee group hourly wage rate that includes 75-percent overhead charges. 340 This estimate also includes the burden associated with adopting and complying with operating rules under § 218.123(c). 341 Totals may not add due to rounding. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 784 railroads ..................... 10 petition comments ....... 127 responses .................. Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA is not authorized to impose a penalty on persons for violating information collection requirements that do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The current OMB control number for this rule is 2130–0636. D. Federalism Implications Executive Order 13132, ‘‘Federalism,’’ 342 requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and 342 64 PO 00000 FR 43255 (Aug. 10, 1999). Frm 00056 Fmt 4701 Sfmt 4700 1 hour ............. N/A ................. 10 hours ......... 3,777 hours .... 171,148.42 859.30 352,324.81 responsibilities among the various levels of government.’’ Under Executive Order 13132, to the extent practicable and permitted by law, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. National action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance. Where there are significant uncertainties as to whether national action is authorized or appropriate, agencies shall consult with appropriate State and local officials to determine whether Federal objectives can be attained by other means. FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that this E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations final rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism summary impact statement for the rule is not required. Further, federalism concerns have been considered in the development of this rule both internally and through consultation within FRA’s Federal advisory committee, RSAC, which has as permanent voting members two organizations representing State and local interests: the American Association of State Highway and Transportation Officials (AASHTO) and the Association of State Rail Safety Managers (ASRSM).343 FRA has also received input from State and local officials through the notice and comment public participation process and left it to State or local officials to decide whether to participate in the publicly held hearing, either in person or virtually. In the discussion of comments and FRA’s conclusions, FRA responded to the comments on preemption and further expanded upon the agency’s explanation of the perceived preemption implications of the final rule. E. International Trade Impact Assessment ddrumheller on DSK120RN23PROD with RULES4 The Trade Agreements Act of 1979 344 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. This final rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States. 343 In 1996, FRA established RSAC to develop new regulatory standards, through a collaborative process, with all segments of the rail community working together to fashion mutually satisfactory solutions on safety regulatory issues. Information about RSAC, including background, tasks, and documents, is available at https://rsac.fra.dot.gov/ about. Although this rulemaking was not tasked to RSAC, FRA provided a regulatory activity update on the rulemaking at two RSAC meetings before the NPRM was published and at one meeting during the rulemaking’s comment period and encouraged interested members of RSAC to submit comments or participate at the public hearing. 344 19 U.S.C. Ch. 13. VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 F. Environmental Assessment FRA has evaluated this final rule consistent with the National Environmental Policy Act 345 (NEPA), the Council of Environmental Quality’s NEPA implementing regulations,346 and FRA’s NEPA implementing regulations 347 and determined that it is categorically excluded from environmental review and therefore does not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS). Categorical exclusions (CEs) are actions identified in an agency’s NEPA implementing regulations that do not normally have a significant impact on the environment and therefore do not require either an EA or EIS.348 Specifically, FRA has determined that this rule is categorically excluded from detailed environmental review.349 The main purpose of this rulemaking is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions. This final rule would not directly or indirectly impact any environmental resources and would not result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review.350 FRA has concluded that no such unusual circumstances exist with respect to this regulation and the final rule meets the requirements for categorical exclusion.351 Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties.352 FRA has also determined that this rulemaking does not approve a project resulting in a use of a resource protected by Section 4(f).353 Further, FRA reviewed this rule and found it consistent with Executive Order 14008, 345 42 U.S.C. 4321 et seq. CFR parts 1500 through 1508. 347 23 CFR part 771. 348 40 CFR 1508.4. 349 See 23 CFR 771.116(c)(15) (categorically excluding ‘‘[p]romulgation of rules, the issuance of policy statements, the waiver or modification of existing regulatory requirements, or discretionary approvals that do not result in significantly increased emissions of air or water pollutants or noise’’). 350 23 CFR 771.116(b). 351 23 CFR 771.116(c)(15). 352 See 54 U.S.C. 306108. 353 See DOT Act of 1966, as amended (Pub. L. 89– 670, 80 Stat. 931); 49 U.S.C. 303. 346 40 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 25107 ‘‘Tackling the Climate Crisis at Home and Abroad.’’ G. Environmental Justice Executive Order 14096, ‘‘Revitalizing Our Nation’s Commitment to Environmental Justice for All,’’ which expands on Executive Order 12898, ‘‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,’’ requires DOT agencies to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionate and adverse human health or environmental effects, including those related to climate change and cumulative impacts of environmental and other burdens on communities with environmental justice concerns. DOT Order 5610.2C (‘‘U.S. Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations’’) instructs DOT agencies to address compliance with Executive Order 12898 and requirements within the DOT Order 5610.2C in rulemaking activities, as appropriate, and also requires consideration of the benefits of transportation programs, policies, and other activities where minority populations and low-income populations benefit, at a minimum, to the same level as the general population as a whole when determining impacts on minority and low-income populations.354 FRA has evaluated this final rule under Executive Orders 14096 and 12898 and DOT Order 5610.2C and has determined it will not cause disproportionate and adverse human health and environmental effects on communities with environmental justice concerns. H. Unfunded Mandates Reform Act of 1995 Under section 201 of the Unfunded Mandates Reform Act of 1995,355 each Federal agency ‘‘shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).’’ Section 202 of the Act 356 further requires that ‘‘before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the 354 Executive Order 14096 is not currently referenced in DOT Order 5610.2C. 355 Public Law 104–4, 2 U.S.C. 1531. 356 2 U.S.C. 1532. E:\FR\FM\09APR4.SGM 09APR4 25108 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement’’ detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) in any one year, and thus preparation of such a statement is not required. I. Energy Impact Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,’’ requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 357 FRA evaluated this final rule under Executive Order 13211 and determined that this regulatory action is not a ‘‘significant energy action’’ within the meaning of Executive Order 13211. List of Subjects in 49 CFR Part 218 Occupational safety and health, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements. The Rule For the reasons discussed in the preamble, FRA amends chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows: PART 218—[AMENDED] 1. The authority citation for part 218 continues to read as follows: ■ Authority: 49 U.S.C. 20103, 20107, 20131, 20138, 20144, 20168; 28 U.S.C. 2461 note; and 49 CFR 1.89. Subpart A—General 2. Amend § 218.5 by adding definitions in alphabetical order for ‘‘Associate Administrator for Safety’’, ‘‘FTA’’, ‘‘Hazard’’, ‘‘Helper service train operation’’, ‘‘Lite locomotive train operation’’, ‘‘Locomotive, MU’’, ‘‘Mishap’’, ‘‘One-person train crew’’, ‘‘One-person train crewmember’’, ‘‘Risk’’, ‘‘Risk assessment’’, ‘‘Switching service or switching operation’’, ‘‘Tourist train operation’’, ‘‘Tourist train operation that is not part of the general railroad system of transportation’’, ‘‘Trailing tons’’, ‘‘Train’’ and ‘‘Unit freight train’’ to read as follows: ddrumheller on DSK120RN23PROD with RULES4 ■ 357 66 FR 28355 (May 22, 2001). VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 § 218.5 Definitions. * * * * * Associate Administrator for Safety means the Associate Administrator for Railroad Safety and Chief Safety Officer of the Federal Railroad Administration or that person’s delegate as designated in writing. * * * * * FTA means the Federal Transit Administration. * * * * * Hazard means an existing or potential condition that could lead to an unplanned event or series of events that can result in an accident or incident (i.e., mishap); injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. Helper service train operation means the train is a locomotive or group of locomotives being used to assist another train that has incurred mechanical failure or lacks sufficient tractive force necessary to traverse a particular section of track due to train tonnage and the grade of the terrain. * * * * * Lite locomotive train operation means the train is a locomotive or a consist of locomotives not attached to any piece of equipment or attached only to a caboose. * * * * * Locomotive, MU means rail rolling equipment self-propelled by any power source and intended to provide transportation for members of the general public. * * * * * Mishap means an event or condition or series of events or conditions resulting in an accident or incident. One-person train crew means either: (1) One railroad employee is assigned a train as a train crew, and that single assigned person is performing the duties of both the locomotive engineer and the conductor; or (2) More than one railroad employee is assigned a train as a train crew, but only a single assigned person, who is performing the duty of the locomotive engineer, is traveling on the train when the train is moving, and the remainder of the train crew, that would include the conductor if the locomotive engineer is not the assigned conductor, is assigned to intermittently assist the train’s movements. One-person train crewmember means, in the context of a one-person train crew operation, the single assigned person who is performing the duty of the locomotive engineer and is traveling in the operating cab of the controlling locomotive when the train is moving. PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 Risk means the combination of the expected probability (or frequency of occurrence) and the consequence (or severity) of a hazard. Risk assessment means the process of determining, either quantitatively or qualitatively, or both, the level of risk associated with train operations with a one-person train crew, compared to operations with a two-person (or larger) crew, under all operating conditions. * * * * * Switching service or switching operation means classifying rail cars according to commodity or destination; assembling of cars for train movements; changing the position of cars for purposes of loading, unloading, or weighing; placing locomotives and cars for repair or storage; or moving of rail equipment in connection with work service that does not constitute a train movement. Tourist train operation means a tourist, scenic, historic, or excursion train operation. Tourist train operation that is not part of the general railroad system of transportation means a tourist, scenic, historic, or excursion train operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track). Trailing tons means the sum of the gross weights—expressed in tons–of the cars and the locomotives in a train that are not providing propelling power to the train. Train means one or more locomotives coupled with or without cars, except during switching service. * * * * * Unit freight train means a freight train composed of cars carrying a single type of commodity. * * * * * Subpart F—Handling Equipment, Switches, and Fixed Derails § 218.93 [Amended] 3. Amend § 218.93 by removing the definitions for ‘‘Associate Administrator for Safety’’ and ‘‘Lite locomotive consist’’. * * * * * ■ 4. Amend § 218.99 by revising paragraph (a)(2), the introductory text of paragraph (b)(3), and paragraph (e)(2) to read as follows: ■ § 218.99 Shoving or pushing movements. (a) * * * (2) The following requirements for shoving or pushing movements do not apply to rolling equipment intentionally E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations shoved or pushed to permit the rolling equipment to roll without power attached, i.e., free rolling equipment, during switching service activities known as kicking, humping, or dropping cars. (b) * * * (3) Point protection. When rolling equipment or a lite locomotive train with two or more locomotives that is operated from a single control stand is shoved or pushed, point protection shall be provided by a crewmember or other qualified employee by: * * * * * (e) * * * (2) Shoving or pushing operations with a helper service train operation or distributed power locomotives assisting a train when the train is being operated from the leading end in the direction of movement; * * * * * ■ 5. Add subpart G to read as follows: Subpart G—Train Crew Size Safety Requirements Sec. 218.121 Purpose and scope. 218.123 General train crew size safety requirements. 218.125 Specific passenger and tourist train operation exceptions to crew size safety requirements. 218.127 Specific freight train exceptions to crew size safety requirements. 218.129 Conditional exceptions for Class II and III legacy freight train operations, certain other Class II and III freight railroad train operations, work train operations, helper service train operations, and lite locomotive train operations staffed with a one-person train crew. 218.131 Special approval petition requirements for train operations staffed with a one-person train crew. 218.133 Risk assessment content and procedures. 218.135 Special approval procedure. 218.137 Annual railroad responsibilities after receipt of special approval. Subpart G—Train Crew Size Safety Requirements ddrumheller on DSK120RN23PROD with RULES4 § 218.121 Purpose and scope. (a) The purpose of this subpart is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions. (b) This subpart prescribes minimum requirements for the size of different train crews depending on the type of operation and operating conditions. The minimum crew size requirements reflect the safety risks posed to railroad employees, the public, and the environment. This subpart also prescribes minimum requirements for VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 the location of a second crewmember on a moving train and promotes safe and effective teamwork. Each railroad may prescribe additional or more stringent requirements in its operating rules, timetables, timetable special instructions, and other instructions. (c) The requirements in this subpart are not applicable to a train operation controlled by a remote control operator as defined in § 229.5 of this chapter. § 218.123 General train crew size safety requirements. (a) General. Each railroad shall comply with the requirements of this subpart and may adopt its own rules or practices consistent with the requirements of this subpart. If any person, as defined in § 218.9 (including, but not limited to, each railroad, railroad officer, supervisor, and employee), violates any requirement of a railroad rule or practice implementing the requirements of this subpart, that person shall be considered to have violated the requirements of this subpart. (b) Two-person train crew size safety requirement. Except as provided in this subpart, each train shall be assigned a minimum of two crewmembers. (c) Hazardous materials. For the purposes of this paragraph (c), a tank car containing residue of a hazardous material as defined in § 171.8 of this title is not considered a loaded car. The exceptions in §§ 218.125 and 218.127 are not applicable, and the exceptions in § 218.129 apply as specified therein, when any train is: (1) A high-hazard flammable train (HHFT) as defined in § 171.8 of this title; (2) Transporting twenty (20) or more loaded tank cars or loaded intermodal portable tanks of any one or any combination of the hazardous materials identified in § 232.103(n)(6)(i)(B) of this chapter; or (3) Transporting one or more car loads of rail-security sensitive materials (RSSM) as defined in § 1580.3 of this title. (d) Location of crewmember(s) when the train is moving. A train crewmember that is not operating the train may be located anywhere outside of the operating cab of the controlling locomotive when the train is moving if: (1) The train crewmember is on the train, except when the train crewmember cannot perform the duties assigned without temporarily disembarking from the train; (2) The train crewmember and a locomotive engineer in the cab of the controlling locomotive can directly communicate with each other; PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 25109 (3) The train crewmember can continue to perform the duties assigned; and (4) The location does not violate any Federal railroad safety law, regulation, or order. § 218.125 Specific passenger and tourist train operation exceptions to crew size safety requirements. The requirements in this subpart are not applicable to the following passenger and tourist train operations that are operated with a one-person train crew: (a) The train is a tourist train operation that is not part of the general railroad system of transportation; (b) A tourist train operation that is part of the general system of transportation or a passenger operation in which: (1) The locomotive engineer is moving cars empty of passengers; and (2) Passengers will not board the train’s cars until the crew conducts a safety briefing on the safe operation and use of the train’s exterior side doors, in accordance with § 238.135 of this chapter; (c) A tourist train operation that is part of the general system of transportation or a passenger operation involving a single self-propelled car or married-pair unit, e.g., an MU locomotive operation, where the locomotive engineer has direct access to the passenger seating compartment and (for passenger railroads subject to part 239 of this chapter) the passenger railroad’s emergency preparedness plan for this operation is approved under § 239.201 of this chapter; (d) A rapid transit operation in an urban area, i.e., an urban rapid transit system that is connected with the general railroad system of transportation under the following conditions: (1) The operation is temporally separated from any conventional railroad operations; (2) There is an FTA-approved and designated State Safety Oversight (SSO) Agency that is qualified to provide safety oversight; and (3) The operator has an FTA/SSOapproved Public Transportation Agency Safety Plan in accordance with parts 673 and 674 of this title; or (e) Each passenger train operation with a one-person train crew established before June 10, 2024 with an approved passenger train emergency preparedness plan under part 239 of this chapter for the operation. § 218.127 Specific freight train exceptions to crew size safety requirements. The requirements in this subpart are not applicable to the following freight E:\FR\FM\09APR4.SGM 09APR4 25110 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations train operations that are operated with a one-person train crew: (a) Mine load out, plant dumping, or similar operation exception. A unit freight train: (1) Being loaded or unloaded in an assembly line manner; (2) Located on a track that is temporarily made inaccessible from the general railroad system of transportation; (3) Moving at a maximum authorized speed of 10 miles per hour or less; (4) Not requiring the one-person train crewmember to operate a hand-operated switch, fill out paperwork, or call signal indications during the loading or unloading process; and (5) If the operation is overseen by another person, typically in a tower or on the ground, requiring that person to have the capability of communicating with the one-person train crewmember operating the train. (b) [Reserved] ddrumheller on DSK120RN23PROD with RULES4 § 218.129 Conditional exceptions based on compliance dates for Class II and III legacy freight train operations, certain other Class II and III freight railroad train operations, work train operations, helper service train operations, and lite locomotive train operations staffed with a one-person train crew. (a) Application of this section. A railroad is not required to comply with the requirements in this section for each one-person train crew operation subject to an exception covered by § 218.125 or § 218.127. The following train operations may be operated with a oneperson train crew subject to the requirements in this subpart: (1) Each Class II or III railroad’s legacy one-person train crew freight operation that has been established for at least two years before June 10, 2024, may continue to operate with a one-person train crew, including continuing to transport hazardous materials of the types or quantities specified in § 218.123(c), if: (i) No later than September 6, 2024, the railroad: (A) Provides FRA with written notice, as specified by the requirements in paragraph (b) of this section; and (B) Complies with the additional requirements in paragraphs (c)(1) and (2) of this section; and (ii) No later than June 9, 2026, the railroad complies with the additional requirements in paragraph (c)(3) of this section. (2) Each Class II or III freight railroad seeking to initiate a train operation staffed with a one-person train crew not transporting hazardous materials of the types or quantities specified in § 218.123(c) shall: VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 (i) Provide FRA with written notice, as specified by the requirements in paragraph (b) of this section before commencing the operation; and (ii) Comply with the additional requirements in paragraph (c) of this section. (3) Each railroad seeking to continue or initiate work train operations with a one-person train crew, including operations involving a work train traveling to or from a work site, shall: (i) Limit this type of non-revenue service train that is used for the administration and upkeep service of the railroad so that it does not exceed 4,000 trailing tons; (ii) No later than September 6, 2024, comply with the additional requirements in paragraphs (c)(1) and (2) of this section; and (iii) No later than June 9, 2026, comply with the additional requirements in paragraph (c)(3) of this section. (4) Each railroad seeking to continue or initiate helper service train operations with a one-person train crew, including operations involving a helper service train traveling to or from a work site, shall: (i) No later than September 6, 2024, comply with the additional requirements in paragraphs (c)(1) and (2) of this section; and (ii) No later than June 9, 2026, comply with the additional requirements in paragraph (c)(3) of this section. (5) Each railroad seeking to continue or initiate a lite locomotive train operation staffed with a one-person train crew, excluding an MU locomotive operation, shall: (i) No later than September 6, 2024, comply with the additional requirements in paragraphs (c)(1) and (2) of this section; and (ii) No later than June 9, 2026, comply with the additional requirements in paragraph (c)(3) of this section. (b) Written notice requirements. The written notice shall be submitted by email to FRAOPCERTPROG@dot.gov and, at a minimum, include the following: (1) The name, title, address, telephone number, and email address of the primary person(s) to be contacted regarding the written notice and the operation; (2) The location of the operation, with as much specificity as can be provided, as to the characteristics of the geographic area through which the trains will operate (e.g., population density and proximity to environmentally sensitive areas), the terrain over which the trains will be operated, industries or communities PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 served, and track segments, territories, divisions, or subdivisions operated over. For each legacy one-person train crew freight operation under paragraph (a)(1) of this section, the written notice must include business records or other written documents supporting that the legacy operation was established for at least two years before June 10, 2024. To establish a legacy one-person train crew freight operation, the railroad must provide evidence that the operation occurred at regular intervals under a set of defined procedures or conditions; (3) The class(es) of track operated over, the method of operation, a list of the signal and train control systems, devices, and appliances installed and in operation, and a list of all active and passive highway-rail grade crossings, including crossing numbers; (4) The locations of any track where the average grade of any segment of the track operated over is 1 percent or more over 3 continuous miles or 2 percent or more over 2 continuous miles; (5) The maximum authorized speed of the operation; (6) The approximate average number of miles and hours a one-person train crew will operate in a single tour of duty; (7) The number and frequency of the trains involved, and the maximum number of cars and tonnage set for the operation, if any; (8) Whether the one-person train crew operation is permitted to haul hazardous materials of any quantity and type, and the approximate percentage of carload traffic in the one-person train crew operation that is hazardous materials; (9) Whether any limitations are placed on a person operating as a one-person train crew. Such limitations may include, but are not limited to, a maximum number of miles or hours during a single tour of duty, or limitations placed on a person in coordination with a fatigue mitigation plan; (10) Information regarding other operations traveling on the same track as the one-person train operation or that travel on an adjacent track. Such information shall include, but is not limited to, the volume of traffic and the types of opposing moves (e.g., passenger trains or freight trains hauling hazardous materials); (11) A detailed description of any technology that is used to perform tasks typically performed by a second crewmember, or that prevents or mitigates the consequences of accidents or incidents; (12) A copy of any railroad rule or practice that applies to the one-person E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations train crew operation, but does not apply to train crew operations with two or more crewmembers; (13) For each railroad seeking to continue a legacy freight train operation staffed with a one-person train crew as permitted by paragraph (a)(1) of this section, five (5) years of accident and incident data, as required by part 225 of this chapter, for the operation identified or, for operations established less than five (5) years before June 10, 2024, accident and incident data for the operation from the date the operation was established; and (14) Any other information describing protections provided in lieu of a second train crewmember, or relevant data or analysis, or both, that the railroad can provide about its one-person train crew operation and how that operation is as safe or safer than a two-person minimum train crew operation. (c) Additional requirements. Each railroad with an applicable one-person train crew operation shall: (1) Adopt and comply with an operating rule that satisfies the requirements of this paragraph to ensure rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations with the one-person train crew operation. (i) At a minimum, the operating rule shall address the following types of situations: (A) An accidental or non-accidental release of any hazardous material; (B) An accident/incident regardless of whether it is required to be reported to FRA under part 225 of this chapter; (C) A request from an emergency responder to unblock a highway-rail grade crossing in response to a potentially life-threatening situation; (D) A train or on-track equipment derailment; (E) A disabled train; and (F) An illness, injury, or other incapacitation of the one-person train crewmember. (ii) At a minimum, the operating rule shall: (A) Describe the role and responsibilities of the one-person train crewmember and any other railroad employees, including supervisors, with responsibility to address a situation described in paragraph (c)(1)(i) of this section; and (B) Describe any logistics and the railroad’s expected response time(s). (2) Adopt and comply with an operating rule that satisfies the requirements of this paragraph to ensure radio or wireless communications with a one-person train crew is as safe or VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 safer than a two-person train crew for train operations and crewmember safety. At a minimum, the operating rule shall require that: (i) The one-person train crew have a working radio or working wireless communications on the controlling locomotive appropriate for railroad communications as defined in § 220.5 of this chapter, even if not otherwise required in § 220.9 of this chapter; (ii) The train dispatcher or operator must confirm with a one-person train crewmember that the train is stopped before conveying a mandatory directive by radio transmission as required in § 220.61 of this chapter; (iii) A one-person train crewmember must contact a railroad employee, typically a dispatcher, a supervisor or manager, or an intermittently assisting crewmember, whenever it can be anticipated that radio or wireless communication could be lost, e.g., before the train enters a tunnel, unless technology or a different protocol is established to monitor the train’s realtime progress; and (iv) Procedures that establish when search-and-rescue operations shall be initiated if all radio or wireless communication is lost with a oneperson train crewmember. (3) Adopt and comply with an operating rule that satisfies the requirements of this paragraph to ensure: (i) A one-person train crew’s controlling locomotive is equipped with a functioning alerter that is operating as intended as defined in § 229.5 of this chapter. For each railroad that limits the one-person train crew’s operation to a maximum authorized speed of 25 miles per hour and is not required to have an alerter on the locomotive that is equipped per the requirements in § 229.140 of this chapter, any functioning alerter that is operating as intended will be acceptable if it has a manual reset and will result in a penalty brake application that brings the locomotive or train to a stop if not properly acknowledged; and (ii) That a one-person train crewmember must test that alerter to confirm it is functioning before departure from each initial terminal, or prior to being coupled as the lead locomotive in a locomotive consist. § 218.131 Special approval petition requirements for train operations staffed with a one-person train crew. (a) General. With the exception of operations permitted under §§ 218.125 through 218.129, and as provided in paragraph (a)(2) of this section: PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 25111 (1) No railroad may operate a train with a one-person train crew unless it receives special approval for the operation under this subpart. (2) For a railroad that has established a one-person train crew operation before June 10, 2024, the railroad may continue the operation in accordance with this section pending FRA’s decision on the railroad’s special approval petition if: (i) The railroad submits a written notice by email to FRAOPCERTPROG@ dot.gov no later than June 24, 2024 that, at a minimum, provides a summary of the operation and the name, title, address, telephone number, and email address of the primary person(s) to be contacted regarding the written notice and the operation; (ii) The railroad, in coordination with FRA, eliminates, mitigates, or otherwise addresses any safety hazards related to the one-person train crew operation FRA finds in reviewing the railroad’s special approval petition; and (iii) The railroad submits its special approval petition, as specified by the requirements in paragraph (b) of this section, no later than August 7, 2024. (3) Each freight railroad seeking to either initiate or continue a train operation with a one-person train crew must receive FRA’s special approval for the operation under this subpart and shall comply with the requirements in § 218.129(c). (4) Each passenger railroad seeking to initiate a train operation with a oneperson train crew must receive FRA’s special approval for the operation under this subpart and have either: (i) An approved passenger train emergency preparedness plan under part 239 of this chapter for the operation; or (ii) An approved waiver from the passenger train emergency preparedness plan requirements as permitted under part 211 of this chapter. A passenger railroad may petition FRA for both a waiver under part 211 and special approval for a train operation staffed with a one-person train crew in the same filing. (b) Petition for a train operation staffed with a one-person train crew. Each petition for a train operation with a one-person train crew that is not permitted under §§ 218.125 through 218.129 must contain sufficient information for FRA to determine whether approving the operation described in the petition is as safe or safer than a two-person minimum train crew operation. At a minimum, a petition must include: (1) The name, title, address, telephone number, and email address of the primary person to be contacted E:\FR\FM\09APR4.SGM 09APR4 ddrumheller on DSK120RN23PROD with RULES4 25112 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations regarding review of the special approval petition; (2) The location of the operation, with as much specificity as can be provided, as to the characteristics of the geographic area through which the trains will operate (e.g. population density and proximity to environmentally sensitive areas), the terrain over which the trains will be operated, industries or communities served, and track segments, territories, divisions, or subdivisions operated over; (3) The class(es) of track to be operated over, the method of operation, a list of the signal and train control systems, devices, and appliances installed and in operation, and a list of all active and passive highway-rail grade crossings, including crossing numbers; (4) The locations of any track where the average grade of any segment of the track operated over is 1 percent or more over 3 continuous miles or 2 percent or more over 2 continuous miles; (5) The maximum authorized speed of the operation; (6) The approximate average number of miles and hours a person is projected to operate as a train crewmember in a one-person train crew operation; (7) The maximum number of cars and tonnage proposed for the operation, if any; (8) Whether the railroad is seeking approval to transport hazardous materials of the types or quantities specified in § 218.123(c) or whether the railroad is seeking approval to transport other hazardous materials (as defined by § 171.8 of this title) of any quantity and type; (9) Whether any limitations will be placed on a person operating as a oneperson train crew. Such limitations may include, but are not limited to, a maximum number of miles or hours during a single tour of duty, or limitations placed on a person in coordination with a fatigue mitigation plan; (10) Information regarding other operations that may travel on the same track as, or an adjacent track to, the train operation staffed with a one-person train crew. Such information shall include, but is not limited to, the volume of traffic and the types of opposing moves (e.g., passenger or freight trains hauling hazardous materials); (11) A detailed description of any technology that will be used to perform or support tasks typically performed by a second crewmember, or that will prevent or significantly mitigate the consequences of accidents or incidents; VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 (12) A copy of any railroad rule or practice that will apply to the proposed train operation(s) with a one-person train crew, but does not apply to train crew operations with two or more crewmembers; (13) A copy of a railroad operating rule that will apply to the proposed train operation(s) with a one-person train crew, and which complies with the requirements of § 218.129(c)(1), to ensure rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations with the oneperson train crew operation. A passenger train operation with an approved emergency preparedness plan under part 239 of this chapter satisfies the requirement in this paragraph (b)(13); (14) Five (5) years of accident and incident data, as required by part 225 of this chapter, for the operation identified in paragraph (b)(2) of this section, when operating with two or more crewmembers, or, for operations established less than five (5) years before June 10, 2024, accident and incident data for the operation from the date the operation was established; (15) A risk assessment of the proposed operation that meets the requirements of § 218.133; (16) Any other information describing protections provided in lieu of a second train crewmember, or other relevant data or analysis. (c) Additional information. FRA may request any additional information, beyond what is provided in the petition, that it deems necessary. § 218.133 Risk assessment content and procedures. (a) General. A risk assessment submitted under this subpart must meet the following requirements: (1) Contain a list and descriptions of all functions, duties, and tasks associated with the proposed operation to be performed by the one-person train crewmember, other railroad employee(s), or equipment, including, at a minimum, any function performed: (i) To prepare a train for operation (including, but not limited to, predeparture inspections, obtaining track bulletins, orders, or manifests, managing the train consist, including train makeup, obtaining and ensuring the accuracy of the train consist, arming and testing the end-of-train device, and performing brake tests); (ii) To operate a train (including, but not limited to, operating and controlling the train, interacting with noncrewmembers such as the dispatcher or PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 roadway workers, and responding to emergencies or unexpected events); and (iii) To ensure safety once a train has stopped moving (e.g., including, but not limited to, securing the train). (2) Describe the allocation of all functions, duties, and tasks to the oneperson train crewmember, other railroad employee(s), or equipment. (3) Contain a risk-based hazard analysis for the proposed train operation’s functions, duties, and tasks, that shall: (i) Identify any new hazards, changes to existing hazards and/or changes to the risk of an existing hazard associated with the proposed train operation, as compared to a two-person minimum train crew operation, taking account of all aspects of the railroad’s system, including, at a minimum, infrastructure, equipment, technology, work schedules, mode of operation, operating rules and practices, training and other areas impacting railroad safety; (ii) Calculate and/or update each risk, quantitatively or qualitatively, or both, by assessing each new hazard, change to an existing hazard and/or change to the risk of a hazard, in terms of the severity and likelihood of a mishap; (iii) Recalculate each risk mitigated in accordance with § 218.131(b)(15), quantitatively or qualitatively, or both, by assessing each new hazard, change to an existing hazard and/or change to the risk of a hazard and the level of mitigation (elimination or reduction), in terms of the severity and likelihood of a mishap; and (iv) Provide a statement with supporting evidence that the one-person train crew operation with a fully implemented mitigation plan is as safe or safer than a two-person minimum train crew operation. (4) Contain a mitigation plan that documents the design and implementation timeline of the sustained mitigation strategies to eliminate or reduce the overall risk to a level such that the one-person train crew operation is as safe or safer than a two-person minimum train crew operation, considering, at a minimum, the following: (i) The design of the system, equipment, and components, including equipment reliability and the necessary functions to be performed, in both a normal operation and in a degraded or failed state; and (ii) The human factors associated with the processes and tasks to be performed, including the required skills and capabilities, the operating environment, and existing or potential impairments. (b) Alternative standard. A railroad may petition the Associate E:\FR\FM\09APR4.SGM 09APR4 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations Administrator for Safety for approval to use alternative methodologies or procedures, or both, other than those required by paragraph (a) of this section to assess the risk associated with an operation proposed under this section. If, after providing public notice of the request for approval and an opportunity for public comment on the request, the Associate Administrator for Safety finds that any such petition demonstrates that the alternative proposed methodology or procedures, or both, will provide an accurate assessment of the risk associated with the operation, the Associate Administrator for Safety may approve the use of the proposed alternative(s). ddrumheller on DSK120RN23PROD with RULES4 § 218.135 Special approval procedure. (a) Petition. Each railroad submitting a petition under § 218.131 shall send the petition by email to FRAOPCERTPROG@dot.gov. FRA will make the petition publicly available at https://www.regulations.gov. (b) Federal Register notice. FRA will publish a notice in the Federal Register concerning each petition under § 218.131. (c) Comment. Not later than 60 days from the date of publication of the notice in the Federal Register under paragraph (b) of this section, any person may comment on the petition. (1) Each comment shall provide all relevant information and data in support of the commenter’s position. (2) Each comment shall be submitted to FRA through https:// www.regulations.gov to the docket identified in the Federal Register notice. (d) Disposition of petitions. (1) If the Administrator finds it necessary or desirable, FRA will conduct a hearing on a petition in accordance with its rules of practice in part 211 of this chapter. (2) A petition must not be implemented until approved. If FRA finds that the petition complies with the requirements of § 218.131 and that approving the petition is as safe or safer than a two-person minimum train crew operation, FRA will grant the petition, normally within 120 days of its receipt. If the petition is neither granted nor denied within 120 days, the petition remains pending for decision. FRA may attach special conditions to the approval of the petition. Following the approval of a petition, FRA may reopen consideration of the petition for cause stated. (3) If FRA finds that a petition does not comply with the requirements of this subpart or that approving the petition would not be as safe or safer VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 than a two-person minimum train crew operation, FRA will deny the petition, normally within 120 days of its receipt. (4) When FRA decides a petition, reopens consideration of a petition, or closes a reopened petition, FRA will send written notice of the decision to the petitioner and publish that decision in the docket. (e) Modifications. (1) A railroad that intends to materially modify an operation subject to an FRA approval under this section shall submit a description of how it intends to modify the operation, along with either a new or an updated risk assessment accounting for the identified proposed modifications. The new or updated risk assessment must meet the requirements of § 218.133 and be submitted by email to FRAOPCERTPROG@dot.gov at least 60 days before the date proposed to implement any such modification. For the purposes of this paragraph (e), a material modification is a change: (i) To a railroad’s operations, infrastructure, locomotive control technology, or risk mitigation technology, that may affect the safety of the operation; (ii) That would affect the assumptions underlying the risk assessment on which an FRA approval under this section is based; or (iii) That would affect the assumptions underlying the risk assessment’s risk calculations or mitigations on which an FRA approval under this section is based. (2) When FRA decides on a material modification to a petition, FRA will send written notice of the decision to the petitioner and publish that decision in the same docket created for the petition in paragraph (a) of this section. FRA may reopen consideration of a petition based on a material modification, deny the material modification, or grant the material modification with or without special conditions to the approval. A material modification must not be implemented until approved. If the material modification submission is neither granted nor denied within 60 days, the petition remains pending for decision. § 218.137 Annual railroad responsibilities after receipt of special approval. (a) Each railroad that receives special approval to use an operation with a oneperson train crew under this subpart shall prepare an annual report, which will be a formal review and analysis each calendar year, of the one-person train crew operation. The annual report, which will include a railroad’s findings and conclusions from its review, shall be submitted no later than March 31 of PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 25113 the following year to FRAOPCERTPROG@dot.gov. The requirements in paragraphs (b) and (c) of this section describe the components of a railroad’s annual report. (b) A railroad’s annual report must include the safety data and information listed in paragraphs (b)(1) and (2) of this section for any one-person train crew operation that receives special approval under this subpart. (1) The total number of: (i) FRA-reportable accidents/incidents under part 225 of this chapter, including subtotals for accidents/incidents that occurred at a highway-rail grade crossing and those that did not occur at a highway-rail grade crossing, and subtotals by State and cause. If an accident/incident was FRA-reportable for more than one reason (e.g., the accident/incident occurred at a highway-rail grade crossing and resulted in rail equipment damages higher than the current reporting threshold), the accident/incident shall only be listed once in the total calculation; (ii) FRA-reportable employee fatalities; (iii) FRA-reportable employee injuries; (iv) Trespasser fatalities at a highwayrail grade crossing; (v) Trespasser injuries at a highwayrail grade crossing; (vi) Passenger fatalities at a highwayrail grade crossing; (vii) Passenger injuries at a highwayrail grade crossing; (viii) Instances where a railroad employee did not comply with a railroad rule or practice applicable to the one-person train crew operation receiving special approval under this subpart but not applicable to train crew operations with two or more crewmembers that travel on the train; (ix) Instances where a one-person train crewmember had a locomotive engineer or conductor certification revoked for violation of an operating rule or practice that occurred when the person was operating a one-person train crew operation receiving special approval under this subpart. In addition to the total number of these instances, the railroad must report the subtotals for each type of certification revoked; (x) Accountable rail equipment accidents/incidents under part 225 of this chapter; (xi) Instances when the railroad was required to comply with an operating rule to ensure rail employees can take mitigation measures that provide a level of safety that is as safe or safer than a two-person train crew operation to address certain situations with the one- E:\FR\FM\09APR4.SGM 09APR4 25114 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations person train crew operation under § 218.131(b)(13); (xii) Instances when a dispatcher, operator, or other required employee unexpectedly lost communication with the one-person train crew operation receiving special approval under this subpart; (xiii) Employee hours worked; and (xiv) Train miles. (2) For each instance counted in the totals reported in paragraphs (b)(1)(i) through (xii) of this section, a railroad’s annual report must clearly identify each instance by date and location and provide a complete factual description of the event. (c) The annual report must also include written confirmation that the risk assessment for operations receiving special approval under this subpart, including all calculations and assumptions, remains unchanged and that no technology changes have been implemented or new or additional hazards identified. (1) If any risk assessment calculation or assumption changes for an operation receiving special approval under this subpart, a new or updated risk assessment meeting the requirements of § 218.133 must be prepared and submitted with the railroad’s annual report. This annual reporting requirement does not negate the requirement to submit a new or updated risk assessment when making a material modification to an operation as required in § 218.135. (2) Any new or updated risk assessment submitted in accordance with paragraph (c) of this section must include a written plan and schedule for implementing any mitigations required to address any newly identified hazards. (d) FRA will review and respond to a railroad’s annual report submission in accordance with paragraph (a) of this section by September 30 of the year it is submitted. (1) FRA’s response may include advice or recommendations; and (2) For a one-person train crew operation receiving special approval under this subpart, FRA may reopen consideration of a petition under § 218.135 based on a finding that a railroad’s annual report submission suggests that the petition does not comply with the requirements of this subpart or that the operation is no longer as safe or safer than a two-person train crew operation. ■ 6. Add appendix E to part 218 to read as follows: Appendix E to Part 218— Recommended Procedures for Conducting Risk Assessments A railroad petitioning to operate with a one-person train crew in accordance with § 218.133 must prepare a risk-based hazard analysis that quantitatively and/or qualitatively demonstrates that the proposed operation using a one-person train crew will be as safe or safer than an operation using a two-person train crew under normal operation and in a degraded or failed state. This appendix provides one approach that may be used by a railroad to prepare a riskbased hazard analysis and compare the risks to determine if a proposed one-person train crew operation will be as safe or safer than a two-person minimum train crew operation, when all mitigations are in place. A railroad is not restricted to this approach and may use another formal safety methodology that fulfills the requirements of § 218.133. Quantitative Risk-Based Hazard Analysis (a) Identify new hazards, changes to existing hazards or changes to the risk of existing hazards of the one-person train crew operation, as compared to a two-person minimum train crew operation, as provided in § 218.133(a)(3)(i). (b) Calculate and/or update each risk of the one-person train crew operation, as compared to a two-person minimum train crew operation, by assessing each new hazard, change to an existing hazard and/or change to the risk of an existing hazard, in terms of the severity and likelihood of potential events using the following framework: (1) The assessment of the severity is measured as the worst-credible mishap resulting from the hazard and categorized in accordance with Table 1 of this paragraph (b)(1): TABLE 1 TO PARAGRAPH (b)(1) Severity ranking (1 being the most severe) Category Definition ddrumheller on DSK120RN23PROD with RULES4 SEVERITY CATEGORIES Catastrophic ......... 1 Critical .................. 2 Marginal ............... 3 Negligible ............. 4 VerDate Sep<11>2014 20:26 Apr 08, 2024 Results in one or more of the following: fatality, irreversible significant environmental damage, or significant monetary loss. Accidents/incidents that must be reported to FRA telephonically under § 225.9 of this chapter are considered catastrophic. Results in one or more of the following: significant injury (as defined in § 225.5 of this chapter), reversible significant environmental damage, or reportable monetary loss. Accidents/incidents that are not telephonically reported under § 225.9 of this chapter but are still FRA-reportable under § 225.19 of this chapter, are considered critical. Results in one or more of the following: minor injuries (i.e., injuries that are not significant as defined in § 225.5 of this chapter), reversible non-significant environmental damage, or monetary loss. Mishaps that are not FRA-reportable accidents/incidents but are considered accountable rail equipment accidents/incidents as defined in § 225.5 of this chapter, are considered marginal. Results in one or more of the following: no injuries, no environmental damage, or equipment or railroad structure damage(s) that do not require repair. Jkt 262001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\09APR4.SGM 09APR4 25115 Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules and Regulations (2) The assessment of probability of occurrence as defined in Table 2 of this paragraph (b)(2): TABLE 2 TO PARAGRAPH (b)(2) Description Level Quantitative characterization of probability 1 Qualitative characterization of probability PROBABILITY LEVELS FREQUENT .......... PROBABLE .......... A B Likely to occur frequently .......................................... Likely to occur several times .................................... OCCASIONAL ...... C Likely to occur once, but not several times .............. REMOTE .............. D Unlikely but possible to occur ................................... IMPROBABLE ...... E So unlikely that it can be assumed the occurrence may not be experienced. 1 Probability Greater than once every 1,000 operating hours. Between once every 1,000 hours and once every 100,000 hours. Between once every 100,000 hours and once every 10,000,000 hours. Between once every 10,000,000 hours and once every 1,000,000,000 hours. Less than once every 1,000,000,000 hours. of a hazard occurring per 1,000 operating hours. (c) Applying the sustained mitigation strategies designed and implemented in accordance with § 218.133(a)(4), recalculate the risk using the framework documented in paragraph (b) of this appendix. hazard, or change to the risk of an existing hazard as follows: (d) Prepare a risk matrix in the format of Table 3 of this paragraph (d) that classifies the risks calculated in paragraph (c) of this appendix in terms of severity and likelihood of each new hazard, change to an existing TABLE 3 TO PARAGRAPH (d) Severity Probability (1) Catastrophic (2) Critical (3) Marginal (4) Negligible Risk Matrix (A) FREQUENT .............................................................................................. (B) PROBABLE ............................................................................................... (C) OCCASIONAL .......................................................................................... (D) REMOTE .................................................................................................. (E) IMPROBABLE ........................................................................................... ddrumheller on DSK120RN23PROD with RULES4 (e) Prepare a risk report of the train operation staffed with a one-person train crew, as compared to a two-person minimum train crew operation, documenting the basis for acceptability of all new hazards, changes to existing hazards and/or changes to the risk of existing hazards identified in the matrix required by paragraph (d) of this appendix. The risk report should categorize the risk of each new hazard, change to existing hazard and/or change to the risk of an existing hazard as follows: (1) Unacceptable. Categories 1A, 1B, 1C, 1D, 2A, 2B, 2C, 3A, 3B, and 4A are unacceptable. A railroad should not file a petition for special approval with a new hazard, change to existing hazard and/or change to the risk of an existing hazard in VerDate Sep<11>2014 20:26 Apr 08, 2024 Jkt 262001 1A 1B 1C 1D 1E 2A 2B 2C 2D 3E this category as FRA will not approve an operation with a partially mitigated or unmitigated hazard that is categorized as unacceptable; (2) Acceptable under specific conditions. Categories 1E, 2D, 3C, 3D, 4B, and 4C are acceptable under specific conditions. A railroad’s risk report should describe why the railroad finds the conditions acceptable. A new hazard, change to existing hazard and/ or change to the risk of an existing hazard will be acceptable under specific conditions if FRA finds that the one-person operation is as safe or safer than a two or more-person operation; and (3) Acceptable. Categories 2E, 3E, 4D, and 4E are acceptable. FRA will not deny a petition for special approval solely on the PO 00000 Frm 00065 Fmt 4701 Sfmt 9990 3A 3B 3C 4D 4E 4A 4C basis an appropriately categorized acceptable new hazard, change to existing hazard and/ or change to the risk of an existing hazard if the one-person operation is as safe or safer than a two-person minimum operation. (f) Provide a statement with supporting evidence, that the one-person operation with a fully implemented mitigation plan, is as safe or safer than a two-person minimum operation. Amitabha Bose, Administrator. [FR Doc. 2024–06625 Filed 4–8–24; 8:45 am] BILLING CODE 4910–06–P E:\FR\FM\09APR4.SGM 09APR4

Agencies

[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 25052-25115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06625]



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Vol. 89

Tuesday,

No. 69

April 9, 2024

Part IV





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 218





Train Crew Size Safety Requirements; Final Rule

Federal Register / Vol. 89 , No. 69 / Tuesday, April 9, 2024 / Rules 
and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

[Docket No. FRA-2021-0032, Notice No. 5]
RIN 2130-AC88


Train Crew Size Safety Requirements

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

ACTION: Final rule.

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SUMMARY: FRA is establishing minimum safety requirements for the size 
of train crews depending on the type of operation. This final rule 
requires railroad operations to have a minimum of two crewmembers 
except for certain identified one-person train crew operations that do 
not pose significant safety risks to railroad employees, the public, or 
the environment. This final rule includes requirements for railroads 
seeking to continue certain existing one-person train crew operations 
and a special approval process for railroads seeking to initiate 
certain new one-person train crew operations. This final rule also 
requires each railroad receiving special approval for a one-person 
train crew operation to submit to FRA an annual report summarizing the 
safety of the operation.

DATES: This regulation is effective June 10, 2024.

ADDRESSES: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov at any time.

FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director, 
Operating Practices Division, Office of Railroad Safety, Federal 
Railroad Administration, at telephone (202) 366-0978 or by email at 
[email protected]; or Alan Nagler, Senior Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, at 
telephone (202) 493-6038 or by email at [email protected].

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
ACI--American Consumer Institute
AII--Alliance for Innovation and Infrastructure
APTA--American Public Transportation Association
ASLRRA--American Short Line and Regional Railroad Association
ATDA--American Train Dispatchers Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
BMWED--Brotherhood of Maintenance of Way Employes Division
BNSF--BNSF Railway Company
CARS-TC--Citizens Acting for Rail Safety--Twin Cities
CFZ--Critical focus zones
CLF--California Labor Federation
CN--Canadian National Railway Company
Conrail--Consolidated Rail Corporation
CPUC--California Public Utilities Commission
CRC--Commuter Rail Coalition
CTC--Centralized traffic control system
CVR--Cimarron Valley Railroad
Denver RTD--Denver Regional Transportation District
DOT--Department of Transportation
FEC--Florida East Coast Railway
FRA--Federal Railroad Administration
FRFA--Final Regulatory Flexibility Analysis
FTA--Federal Transit Administration
GAO--U.S. Government Accountability Office
GCOR--General Code of Operating Rules
G&U--Grafton and Upton Railroad
INRD--Indiana Rail Road Company
mph--miles per hour
MU--Multiple-unit
NS--Norfolk Southern Railway Company
NPRM--Notice of proposed rulemaking
NPSC--Nebraska Public Service Commission
OMB--Office of Management and Budget
PTC--Positive train control
RCL--Remotely controlled locomotive
RGPC--Rio Grande Pacific Corporation
RIA--Regulatory Impact Analysis
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSSM--Rail-security sensitive materials
RWU--Railroad Workers United
SBA--Small Business Administration
SBA-Advocacy--Small Business Administration's Office of Advocacy
Secretary--Secretary of Transportation
SMART-TD--International Association of Sheet Metal, Air, Rail and 
Transportation Workers Transportation Division
SSO Agency--State Safety Oversight Agency
TFI--The Fertilizer Institute
TSA--Transportation Security Administration
TTD--Transportation Trades Department, AFL-CIO
TWU--Transport Workers Union of America
T&N--Texas and Northern Railway
UP--Union Pacific Railroad Company
UTA--Utah Transit Authority

Table of Contents for Supplementary Information

I. Executive Summary
II. Discussion of Comments and FRA's Conclusions
    A. Overview of Comments
    B. Preemption
    C. Comments Supporting the NPRM
    1. Labor Organizations
    2. Individual Commenters
    3. Federal Congressional Commenters
    4. State and Local Governmental Commenters
    D. Tourist Railroad and Railroad Museum Industry Comment That 
Asserted the NPRM Would Have No Impact
    E. Comments Opposing the NPRM
    1. Federal Congressional Commenters
    2. Passenger Operations
    3. Short Line and Regional Freight Railroads
    4. Class I Freight Railroads
    a. Alternative Crewmember Arrangements Including Expeditors, 
Ground-Based Crewmembers, or Ground-Based Conductors
    b. Train Operations in Other Countries
    c. New Technology and Automated Operations
    d. Transportation of Hazardous Materials
    e. FRA Action on Regulating Crew Staffing
    f. Risk Assessments and FRA's Review Standard
    g. Remote Control Operations
    F. Consideration of Requirements More Stringent Than Those 
Proposed
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Order 12866 as Amended by Executive Order 14094
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Assessment
    G. Environmental Justice
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact

I. Executive Summary

Purpose of the Regulatory Action

    FRA is issuing this final 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 one-
person train crew. The final rule establishes minimum crew size safety 
standards for all trains, including a risk assessment requirement to 
evaluate hazards and ensure risk mitigation for those railroads looking 
to initiate one-person train crew operations in the most complex 
operating environments nationwide, that will reduce the likelihood of 
future accidents proactively. As FRA explained in the notice of 
proposed rulemaking (NPRM), FRA has qualitatively discussed the 
benefits because it does not have sufficient data to monetize those 
benefits. However, those benefits have the potential to reduce the 
likelihood of at least one type of foreseeable accident that is more 
likely to occur with a one-person train crew than a two-person train 
crew if a locomotive is not equipped with a safety device that will 
stop the train when the locomotive engineer is physically 
unresponsive--even if the type of accident foreseen has not yet 
occurred. Other qualitative benefits include ensuring that railroads 
are adequately protecting the safety of a one-person train crewmember 
or members of the public under various foreseeable circumstances so 
that employees and communities are not left

[[Page 25053]]

in an inferior safety position compared to when a train is staffed with 
two crewmembers. Without this final rule, FRA has a limited ability to 
address the totality of potential safety issues related to a 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 as it reviews a passenger 
operation's emergency preparedness plan under 49 CFR part 239. Also, no 
other FRA regulatory effort focuses on the specific hazards and risks 
associated with a one-person train crew operation, and there is no 
industry-wide approach to mitigate any such hazards or risks.
    Consistent with the purpose of existing requirements for the 
transportation of hazardous materials by rail,\1\ FRA is mandating that 
each train be assigned a minimum of two crewmembers when transporting 
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, with some exceptions to ensure FRA's 
awareness of the existing operation and/or require an FRA approval, 
after an opportunity for public input. This final crew size rule is 
necessary for FRA to proactively protect railroad employees, the 
public, and the environment during train operations with a one-person 
train crew, including trains transporting hazardous materials.
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    \1\ The proposed rule contains extensive background explaining 
that the Federal government recognizes how essential hazardous 
materials are to the U.S. economy and the well-being of its people, 
and the various Federal requirements for the training of rail 
employees and other safeguards to help ensure that these materials 
will be shipped and arrive safely at their destinations. 87 FR 
45564, 45576 (July 28, 2022).
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    This final rule allows FRA to identify and evaluate each railroad 
that will be operating a freight train with a one-person train crew. By 
collecting more information about one-person train crew operations, FRA 
will be better informed to respond to questions about how to maintain 
the safety of such an operation and be better positioned to take 
actions that ensure future safety improvements.
    This final rule also requires railroads with certain types of one-
person train crew operations to notify FRA that they are using such an 
operation, provide a detailed description of the operation and, in some 
circumstances, submit a risk assessment and request FRA's approval to 
continue or initiate an operation. When FRA's approval is necessary, 
this final rule allows FRA to prohibit the initiation of any proposed 
one-person train crew operations that would not be as safe or safer 
than a two-person minimum train crew operation. In addition to the 
safety benefits from establishing minimum operational requirements, the 
notification and approval procedures required by the final rule will 
provide FRA with information and data that could be used in future 
rulemakings, enforcement actions including emergency or compliance 
orders/agreements, and safety analyses generally.
    Further, the final rule is necessary to establish a process for the 
public, including rail employees and their labor organization 
representatives, to comment before FRA decides whether to grant special 
approval on any railroad's petition to operate a train with a one-
person train crew. The public's participation is warranted because any 
reduction of crew staffing from a two-person train crew could raise 
numerous general and operational safety concerns.\2\ Further 
exacerbating the safety concerns regarding any reduction in crew size 
is that the average length of a Class I freight train has grown 
substantially in recent years, to nearly 3 miles in some cases, as 
train length and tonnage add to the complexity and safety challenges of 
these operations.\3\
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    \2\ FRA's rules of practice generally encourage participation by 
interested persons. 49 CFR 211.3. For example, public participation 
is encouraged when FRA considers a waiver petition, and the dockets 
for those petitions are publicly available. 49 CFR part 211, subpart 
C. Some of FRA's rail safety regulations also require a railroad to 
notify a labor organization's president of the submission to FRA of 
a railroad safety program, such as a training or certification 
program to ensure that the relevant representatives for employees 
have an opportunity to participate in the process. See e.g., 49 CFR 
240.103(b), 242.103(c), and 243.109(d). Because FRA has similarly 
determined in this instance that employees and communities have an 
interest in a railroad's operation relative to the issue of train 
crew size safety, the final rule ensures the participation of 
interested members of the public, including rail employees and their 
labor organization representatives.
    \3\ ``Rail Safety: Freight Trains Are Getting Longer, and 
Additional Information is Needed to Assess Their Impact,'' U.S. 
Government Accountability Office (GAO) (May 2019). https://www.gao.gov/products/gao-19-443.
---------------------------------------------------------------------------

    In issuing this final rule, FRA will ensure that laws, regulations, 
and orders ``related to railroad safety'' with respect to train crew 
size are nationally uniform \4\ by preventing varying State laws 
regulating crew size from creating a patchwork of potentially 
inconsistent rules governing train operations across the country. 
Without this rule, railroads could be subjected to a different crew 
staffing law in every State in which they operate, as there would be no 
assurance that State laws governing crew size would be based on an 
analysis or determination concerning impacts on railroad safety. The 
lack of a uniform standard would likely result in additional costs and 
operational inefficiencies.
---------------------------------------------------------------------------

    \4\ 49 U.S.C. 20106(a)(1).
---------------------------------------------------------------------------

    Lastly, this final rule is necessary because the latest annual rail 
safety data reflects some troubling trends that point toward a need for 
heightened caution and awareness in railroad safety and operational 
planning. For instance, a second crewmember provides the opportunity to 
secure a train with hand brakes, as a one-person train crew could not 
do so without violating railroad air brake and train handling 
requirements necessary to comply with FRA's regulations requiring that 
``railroads shall develop and implement a process or procedure to 
verify that the applied hand brakes will sufficiently hold the 
equipment with the air brakes released [and] that a train's air brake 
shall not be depended upon to hold equipment standing unattended.'' \5\ 
The rate for all human factor caused accidents increased from 0.95 
accidents per million train miles to 1.34 between 2013 and 2022, a 41.1 
percent increase, and from 1.18 accidents per million train miles to 
1.34 between 2021 and 2022, a 13.6 percent increase.\6\ The percentage 
of train accidents attributed solely to human factors (as reflected in 
FRA's accident reporting cause codes) increased from 38.5 percent to 
45.6 percent between 2013 and 2022. The number of main track train 
handling and make-up accidents attributed to human factor cause codes 
has increased from 28 in 2013 to a range between 36 and 77 (reflecting 
occurrences between 2018 and 2022), a 28.6 to 75 percent increase. When 
normalizing this data by the number of train miles, it shows a rate 
increase from 0.04 in 2013 to 0.07 in 2022, reaching as high as 0.10 
and 0.13 during this period, a range that increased 25 to 225 percent 
over the five-year period between 2018 and 2022.
---------------------------------------------------------------------------

    \5\ 49 CFR 232.103(n)(1) and (2). In the event that an 
uncontrolled train movement causes an accident or derailment, the 
presence of a second crewmember who failed to apply sufficient hand 
brakes does not negate the need for a second crewmember. 
Contributing causes to such derailments and other preventable 
accidents could include improper railroad rules or training, or a 
failure of the second crewmember to comply with such requirements. 
In contrast, the absence of the second crewmember restricts the 
options immediately available and potentially leaves the one-person 
train crewmember vulnerable, without viable mitigation measures 
available until assistance can arrive. This dilemma can largely be 
avoided with a proper risk assessment.
    \6\ The data described in this paragraph is available or derived 
from data publicly available on FRA's website. https://data.transportation.gov/stories/s/FRA-Safety-Data/dakf-i7zd.

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[[Page 25054]]

Summary of Major Provisions

    In Sec.  218.123, the final rule requires railroads to staff every 
train operation with a minimum of two crewmembers (including a 
locomotive engineer and an additional crewmember who will typically be 
a conductor) that travel with the train and can directly communicate 
with each other even if one crewmember is not in the locomotive cab, 
with certain one-person train crew exceptions permitted under specified 
circumstances.
    Sections 218.125 through 218.131 of this final rule provide 
criteria for instituting one-person train crew operations in certain 
circumstances through exceptions to the two-crewmember mandate, 
conditional exceptions based on the type of operation, or a special 
approval process option. These avenues of relief address operations by 
small businesses, which for purposes of this rulemaking are primarily 
short lines and regional railroads. The final rule will give small 
businesses greater flexibility without sacrificing safety, since the 
operations of railroads that qualify as small businesses are generally 
less complex than the operations of Class I railroads.
    Sections 218.129 and 218.131 of this final rule require each 
railroad with certain types of one-person train crew operations to 
abide by minimum requirements notably to: (1) prevent uncontrolled 
train movements if a one-person train crew were to become 
incapacitated; (2) maintain communication between a railroad employee, 
typically a dispatcher, a supervisor or manager, or an intermittently 
assisting crewmember, and the one-person train crewmember to convey 
operational instructions and ensure the one-person crewmember's 
personal safety; (3) track the location of a train operated by a one-
person crew in case communication is lost and a rescue operation needs 
to be initiated; and (4) establish protocols that ensure rail employees 
can take mitigation measures that provide a level of safety that is as 
safe or safer than a two-person train crew operation to address certain 
situations, such as an accidental or non-accidental release of any 
hazardous material, with the one-person train crew operation.
    Section 218.129 of this final rule, which contains conditional 
exceptions based on the type of operation, requires the lead locomotive 
of certain operations with a one-person crew be equipped with an 
alerter \7\ and that the crewmember must test the alerter to confirm it 
is working before departure. Without a working alerter on the 
controlling locomotive, if a one-person train crew becomes 
incapacitated while the train is moving, the train would continue to 
operate down the track out of control without another crewmember on-
board who could apply the emergency brake. In contrast, with an 
alerter, the train would be stopped with an emergency brake application 
after a designated period of inactivity by the crewmember.\8\
---------------------------------------------------------------------------

    \7\ 49 CFR 229.5 (defining alerter as a device or system 
installed in the locomotive cab to promote continuous, active 
locomotive engineer attentiveness by monitoring select locomotive 
engineer-induced control activities. If fluctuation of a monitored 
locomotive engineer-induced control activity is not detected within 
a predetermined time, a sequence of audible and visual alarms is 
activated to progressively prompt a response by the locomotive 
engineer. Failure by the locomotive engineer to institute a change 
of state in a monitored control, or acknowledge the alerter alarm 
activity through a manual reset provision, results in a penalty 
brake application that brings the locomotive or train to a stop).
    \8\ See id. and see e.g., 49 CFR 229.140 (requiring that an 
alerter warning timing cycle interval be based on a formula that 
includes a calculation of train speed and that for locomotives 
operating at speeds below 20 mph, the interval shall be between 110 
seconds and 130 seconds).
---------------------------------------------------------------------------

    In addition to an alerter requirement for certain one-person train 
crew operations in Sec.  218.129, the final rule establishes other 
minimum safety requirements depending on the type of one-person train 
crew operation, such as for Class II and III legacy freight train 
operations (i.e., currently existing one-person crew operations 
established for at least two years before the effective date of the 
final rule), certain other Class II and III freight railroad train 
operations, work train operations, helper service train operations, and 
lite locomotive train operations. For instance, the final rule requires 
that each railroad with these types of operations, excepted from the 
final rule's two-crewmember mandate, must adopt and comply with 
operating rules that provide for regular and effective communication 
with a one-person train crew to ensure the safety of the train and that 
one-person train crewmember's safety. Short lines do not always use 
dispatchers, and short line trains may not have a working radio or 
other working wireless communications in the cab of a controlling 
locomotive, so the requirement to provide for regular and effective 
communication is an important safeguard.\9\ Further, the final rule 
requires that each railroad with these types of one-person train crew 
operations adopt and comply with operating rules providing for 
mitigation measures that are as safe or safer than a two-person minimum 
train crew operation to ensure the railroad will address certain 
situations where a second crewmember would typically assist with 
mitigation, such as when responding to accidents, derailments, releases 
of hazardous materials, and requests from an emergency responder to 
unblock a highway-rail grade crossing in response to a potentially 
life-threatening situation. The final rule requires that each Class II 
and III freight railroad that (a) plans to initiate a one-person train 
crew operation after the final rule's effective date and (b) will not 
be transporting certain types or quantities of hazardous materials 
determined to pose the highest risk in transportation, must provide FRA 
with written notification of the operation before commencing the 
operation, in addition to complying with the alerter, communication, 
and mitigation measures requirements.
---------------------------------------------------------------------------

    \9\ 49 CFR 220.9; 63 FR 47182, 47188 (Sept. 4, 1998) (explaining 
in the section-by-section analysis that ``[n]o communication 
equipment is required if a train does not transport passengers or 
hazardous material and does not engage in joint operations or 
operate at greater than 25 miles per hour'').
---------------------------------------------------------------------------

    The final rule establishes an implementation schedule in Sec.  
218.129 that phases in compliance for certain specified one-person 
train crew operations, such as for each Class II and III railroad with 
a legacy one-person train crew freight train operation, that provides 
FRA with written notice of the operation, and for any railroad with a 
one-person train crew work train operation, helper service train 
operation, or lite locomotive train operation. The implementation 
schedule requires these specified exceptions to the two-crewmember 
mandate to be governed by operating rules addressing the communication 
requirements and mitigation measures requirements no later than 90 days 
from the effective date of this final rule, and the working alerter 
requirement to be met no later than two years from the effective date 
of this final rule. FRA encourages each railroad with one or more of 
these types of one-person train crew operations to implement the 
requirements sooner than the implementation schedule requires but finds 
that the schedule will provide each railroad with sufficient time 
either to comply with the alerter, communication, and mitigation 
measures requirements or provide for a second crewmember.
    To ensure that each railroad adequately identifies hazards and 
mitigates risks when initiating or continuing certain new one-person 
train crew operations, Sec.  218.131 of this final rule requires a 
railroad's petition for special approval of a one-person train crew 
operation to include a risk

[[Page 25055]]

assessment. The purpose of a risk assessment is to evaluate risk in an 
objective manner by following a decision-making process designed to 
systematically identify hazards, assess the degree of risk associated 
with those hazards, and based on those assessed risks, identify and 
implement measures to minimize or mitigate the risks to an acceptable 
level. Except for certain one-person legacy operations,\10\ FRA will 
require a risk assessment and a special approval process for most one-
person train crew operations that will be 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. The requirements in the final rule focus on known 
safety and security risks associated with operating trains transporting 
large amounts of hazardous materials and with transporting the 
hazardous materials known to present the greatest safety and security 
risks. As explained in the NPRM, FRA considers: train crewmembers to be 
``hazmat employees'' requiring specific types of training; that these 
training requirements are substantial; that these various types of 
training are required initially and recurrently at least once every 
three years; and that, in addition to FRA, there are Federal agencies 
that enforce requirements regarding the safety and security of 
hazardous materials shipments.\11\ Thus, the transportation of 
hazardous materials raises various specific safety hazards, such as the 
potential for an accidental or non-accidental release of a hazardous 
material, that would typically create additional tasks for a train crew 
to communicate information about an immediate or developing safety 
situation and/or take immediate or other appropriate action to mitigate 
its consequences, when safe to do so. For these reasons, the presence 
of certain types or quantities of hazardous materials creates the 
potential for a greater negative consequence than when a train does not 
contain such materials. Without a properly completed risk assessment, 
FRA would be unable to accurately assess whether a railroad has taken 
appropriate measures to compensate for the removal of a second train 
crewmember. In the circumstance that a railroad wants to continue a 
one-person train crew operation that does not meet the legacy operation 
conditions, the final rule provides conditions under which a railroad 
may continue those operations while it drafts and submits a special 
approval petition and awaits FRA's decision on that petition.
---------------------------------------------------------------------------

    \10\ Among other operations, Sec.  218.129(a)(1) does not 
require a risk assessment or a special approval process for a Class 
II and III railroad's legacy one-person train crew freight 
operation, i.e., an operation existing before the effective date of 
the final rule, that has been established for at least two years 
before the effective date of the final rule. However, such a freight 
railroad with a legacy one-person train crew operation must provide 
certain information about the operation in a written notification to 
FRA, and the railroad will be required to establish operating rules 
addressing the communication requirements and mitigation measures 
requirements no later than 90 days from the effective date of this 
final rule and to meet the working alerter requirement no later than 
two years from the effective date of this final rule.
    \11\ 87 FR 45576-78.
---------------------------------------------------------------------------

    As FRA explained in the NPRM, passenger and tourist train 
operations normally have a locomotive engineer located in the 
locomotive cab, and a passenger conductor, and potentially one or more 
assistant conductors, riding in the passenger cars with the 
passengers.\12\ FRA makes clear that this common crew configuration is 
not considered a one-person train crew operation. In Sec.  218.125, the 
final rule exempts from the two-crewmember mandate specific passenger 
and tourist train operations that do not pose significant safety risks 
to railroad employees, the public, or the environment, including 
tourist train operations that are not part of the general system of 
transportation. Passenger or tourist operations that do not fall within 
the Sec.  218.125 exemptions must petition FRA for a special approval 
under the procedures provided in Sec.  218.131.
---------------------------------------------------------------------------

    \12\ 87 FR 45579-80.
---------------------------------------------------------------------------

    In the context of this rulemaking, a risk assessment is the process 
of determining, either quantitatively or qualitatively, or both, the 
level of risk associated with a proposed train operation staffed with a 
one-person train crew, including mitigating the risks to an acceptable 
level. Section 218.133 of this final rule provides the minimum content 
that must be included in a railroad's risk assessment and the 
procedures for petitioning FRA to use an alternate methodology for 
assessing the risk of an operation utilizing a one-person train crew. 
This final rule adds appendix E to part 218 to provide guidance on how 
a railroad may prepare a risk-based hazard analysis, as part of its 
risk assessment, and compare the risks to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person 
minimum train crew operation, when all mitigations are in place.
    In Sec.  218.135, the final rule specifies how a railroad may 
petition FRA for special approval of a one-person train crew operation 
not covered by an exception. The special approval procedure requires 
FRA to publish a notice in the Federal Register soliciting public 
comment on each petition. All documents will be filed in a public 
docket and will be accessible through the internet. The special 
approval procedure permits FRA to reopen consideration of the petition 
for cause stated. When FRA 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, 
a railroad making a material modification to an operation, previously 
approved by FRA, will be required to file both a description of the 
modification and either a new or updated risk assessment, at least 60 
days before proposing to implement any such modification. FRA is 
requiring that a material modification not be implemented until 
approved. The 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 of that operation even in the absence of this 
rule.
    Section 218.137 of this final rule includes an annual reporting 
requirement for railroads that receive special approval to conduct an 
operation with a one-person train crew under this subpart. The annual 
railroad responsibilities after receipt of special approval include a 
requirement to conduct a formal review and analysis of those 
operations. The annual reporting requirement ensures that each railroad 
will regularly review the safety of its operation and the accuracy of 
its risk assessment and will provide FRA with sufficient data to 
identify and analyze any safety trends in the approved operation. 
Further, the annual reporting requirement aligns with the general 
administration of FRA's safety program and fulfilment of its statutory 
requirements.\13\
---------------------------------------------------------------------------

    \13\ 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).
---------------------------------------------------------------------------

    Finally, as explained in greater detail in the discussion of 
comments and conclusions, the final rule clarifies and updates the NPRM 
in some respects based upon the comments received. For instance, as the 
NPRM did not define what FRA meant by the term ``one-person train 
crew'' and commenters

[[Page 25056]]

expressed confusion, FRA has clarified that a ``one-person train crew'' 
means: (1) only one person is assigned to the train as the train crew 
and that single, assigned person will be performing the duties of both 
the locomotive engineer and the conductor; or (2) two or more persons 
are assigned to a train as the train's crew, but only the locomotive 
engineer travels on the train when the train is moving because the 
remainder of the train crew, including the conductor if the locomotive 
engineer is not the assigned conductor, is assigned to intermittently 
assist the train's movements. The requirements in this final rule will 
not apply to a train operation controlled by a remote control operator, 
even if that remotely controlled train is operated by a one-person 
train crew, because of the protections already provided for remote 
control operations under existing requirements in FRA's railroad 
locomotive safety standards, including a harness with a breakaway 
safety feature, an operator alertness device, and an operator tilt 
feature with an automatic notification to the railroad to enable prompt 
attention in the event the tilt feature is activated.\14\ There are two 
existing passenger train operations with one-person train crews for 
which FRA has already approved the operation's required passenger train 
emergency preparedness plans under existing regulatory requirements, 
making it unnecessary for those railroads to submit a special approval 
petition to FRA as proposed. The final rule does not include the 
proposed requirement for railroads seeking to implement automated 
operations to file a petition seeking FRA's special approval. Such a 
requirement is unnecessary because railroads would still need to seek 
waivers, regulatory changes, or other FRA approval if the technology 
for the automated operations does not comply with other rail safety 
requirements.
---------------------------------------------------------------------------

    \14\ See 49 CFR 229.15 (requiring design, operation, inspection, 
testing, and repair standards for remote control locomotives).
---------------------------------------------------------------------------

    The final rule contains some clarifications and updates from the 
NPRM in how it treats freight railroads, especially Class II and III 
railroads that include the short line and regional railroads. For 
instance, the final rule will not prohibit all one-person train crew 
freight operations hauling certain types or quantities of hazardous 
materials, as the final rule provides for some exceptions for existing 
or initiating operations. Those Class II and III railroads with a 
legacy one-person train crew freight operation that is established at 
least two years before the effective date of this final rule will not 
need FRA's special approval to continue the operation as proposed but 
will need to provide FRA with a detailed written notice describing the 
parameters of the operation within 90 days of the effective date of the 
final rule. Similarly, the final rule does not include a requirement 
for Class II and III railroads initiating a new, non-legacy, one-person 
train crew freight operation not transporting hazardous materials of 
the types or quantities specified to petition FRA for special approval 
and, instead, permits such operations, under certain conditions--
including when the railroad provides FRA with a detailed written notice 
describing the parameters of the operation before commencing the 
operation. The exceptions in the final rule for Class II and III 
railroads have made unnecessary the narrower, proposed small railroad 
exception, which would have applied only to small railroads with fewer 
than 400,000 annual employee work hours, and thus the final rule does 
not include that proposed exception. Although various proposed 
exceptions contained additional safety requirements, the final rule 
streamlined those additional requirements and has established a 
compliance schedule for implementing them rather than the proposal that 
would have required implementation on the effective date of the final 
rule.
    The final rule requires additional safety conditions to be met for 
the proposed one-person crew helper service and lite locomotive(s) 
consist exceptions as those one-person crew train crew operations would 
pose the same safety concerns as other exceptions in the final rule 
that require additional safety conditions to be met. In addition, FRA 
has modified the risk assessment requirements, allowing a railroad to 
make its determination either quantitatively or qualitatively, or both, 
rather than only quantitatively as expressly proposed. Finally, FRA has 
changed the review standard for a special approval petition from 
determining that an operation is ``consistent with railroad safety'' to 
determining whether approving the operation described in the petition 
is ``as safe or safer'' than a two-person train crew operation, as it 
will more clearly allow each railroad to compare the operation to the 
baseline of a two-crewmember operation.

[[Page 25057]]



                                            Implementation Schedule for One-Person Train Crew Operations \15\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Petition for
                                                       special approval      Add operating       Add operating      Add alerters to
                                  Notify FRA of one-       with risk       rules to address     rules for one-      locomotives and      Annual review
  Type of one-person  operation    person operation   assessment for one-  safety of certain      person crew       add associated      analysis report
                                         \16\          person operation     situations \18\     member's safety     operating rules          \21\
                                                             \17\                                    \19\                \20\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class II/III legacy freight       September 6, 2024.  Not Applicable (N/  September 6, 2024.  September 6, 2024.  June 9, 2026......  N/A.
 (existing 2 years) \22\.                              A).
Class II/III freight non-legacy   Yes, provide        N/A...............  Yes, comply when    Yes, comply when    Yes, comply when    N/A.
 or new, and no prohibited         before commencing                       commencing          commencing          commencing
 hazmat \23\.                      operation.                              operation.          operation.          operation.
Work trains not exceeding 4,000   N/A...............  N/A...............  September 6, 2024.  September 6, 2024.  June 9, 2026......  N/A.
 trailing tons; \24\ Helper
 service; \25\ and, Lite
 locomotive(s) \26\.
Existing but non-legacy           June 23, 2024 \28\  August 7, 2024....  Yes, provide as     Yes, provide as     Yes, provide as     Yes, provide no
 (existing, but less than 2                                                part of special     part of special     part of special     later than March
 years) option to continue                                                 approval petition.  approval petition.  approval petition.  31 of the
 pending FRA-approval \27\.                                                                                                            following year.
Other new (freight with or        N/A...............  Yes...............  Yes, provide as     Yes, provide as     Yes, provide as     Yes, provide no
 without prohibited hazmat,                                                part of special     part of special     part of special     later than March
 passenger, or tourist)                                                    approval petition.  approval petition.  approval petition.  31 of the
 operations \29\.                                                                                                                      following year.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Costs and Benefits
---------------------------------------------------------------------------

    \15\ This implementation schedule summarizes the requirements 
and is not intended to substitute for an exact description of the 
complete requirements.
    \16\ Sec.  218.129(b).
    \17\ Sec.  218.131 through Sec.  218.135.
    \18\ Sec.  218.129(c)(1).
    \19\ Sec.  218.129(c)(2).
    \20\ Sec.  218.129(c)(3).
    \21\ Sec.  218.137.
    \22\ Sec.  218.129(a)(1).
    \23\ Sec.  218.129(a)(2).
    \24\ Sec.  218.129(a)(3).
    \25\ Sec.  218.129(a)(4).
    \26\ Sec.  218.129(a)(5).
    \27\ Sec.  218.131(a)(2).
    \28\ Sec.  218.131(a)(2)(i). Unlike the other notification 
requirements, this notification can be limited to a summary of the 
operation and the name, title, address, telephone number, and email 
address of the primary person(s) to be contacted regarding the 
written notice and the operation.
    \29\ Sec.  218.131.
---------------------------------------------------------------------------

    FRA has analyzed the economic impact of this final rule. FRA 
estimated the costs associated with alerters, operating rules, 
notification to FRA, risk assessments and special approvals, annual 
reporting after receipt of special approval, and Government 
administration. FRA qualitatively discusses the benefits but does not 
have sufficient data to quantify those benefits.
    The following types of railroads with one-person train crew 
operations are required, based on a compliance date schedule, to: (1) 
notify FRA; (2) adopt and comply with operating rules necessary to 
ensure the one-person train crewmember's safety and that the railroad 
is prepared to take appropriate mitigation measures in response to 
certain safety-critical situations; and (3) equip a one-person train 
crew's controlling locomotive with an alerter:
     Class II and Class III freight railroads with a legacy 
one-person train crew operation established for at least two years 
before the effective date of the final rule.
     Class II and Class III freight railroads with a non-legacy 
one-person train crew operation that do not transport specific types 
and quantities of hazardous materials as specified in Sec.  218.123(c).
    The following types of railroads with a one-person train crew 
operation require special approval from FRA and must conduct a risk 
assessment:
     All Class I railroads and all one-person passenger 
railroad operations established after the effective date of the final 
rule.
     All Class II and III freight railroads with a non-legacy 
one-person train crew operation that transports certain types and 
quantities of hazardous materials as specified in Sec.  218.123(c).
    Work train operations, helper service, and lite locomotive 
operations are required, based on a compliance date schedule, to: (1) 
adopt and comply with operating rules necessary to ensure the one-
person train crewmember's safety and that the railroad is prepared to 
take appropriate mitigation measures in response to certain safety-
critical situations; and (2) equip a one-person train crew's 
controlling locomotive with an alerter.
    FRA estimates the 10-year costs of the final rule to be 
approximately $6.6 million, discounted at 7 percent. The annualized 
costs will be approximately $0.9 million discounted at 7 percent. The 
following table shows the total costs of this final rule, over the 10-
year analysis period.

                                         Total 10-Year Discounted Costs
                                               [2022 Dollars] \30\
----------------------------------------------------------------------------------------------------------------
                                                                                    Annualized      Annualized
                    Category                       Total cost, 7   Total cost, 3      cost, 7         cost, 3
                                                    percent ($)     percent ($)     percent ($)     percent ($)
----------------------------------------------------------------------------------------------------------------
Alerters (Legacy Operations)....................       2,176,402       2,217,233         309,871         259,927
Alerters (New Operations).......................       2,251,306       2,483,470         320,535         291,138
Operating Rules (Existing Operations)...........         119,954         119,954          17,079          14,062
Operating Rules (New Operations)................         280,824         308,591          39,983          36,176
Notification (Existing Operations)..............         185,114         185,114          26,356          21,701
Notification (New Operations)...................         111,133         122,593          15,823          14,372
Risk Assessment and Special Approval (Class I)..         560,745         570,571          79,837          66,888
Risk Assessment and Special Approval (Class II           162,446         164,506          23,129          19,285
 and III).......................................

[[Page 25058]]

 
Risk Assessment (Material Modifications)........          93,031         111,178          13,246          13,033
Annual Reporting................................         182,821         221,284          26,030          25,941
Government Administrative Cost..................         513,100         579,523          73,054          67,938
                                                 ---------------------------------------------------------------
    Total Costs.................................       6,636,876       7,084,016         944,942         830,463
----------------------------------------------------------------------------------------------------------------

    The primary benefit of this rule is to ensure that each train is 
adequately staffed and has appropriate safeguards in place for safe 
train operations under all operating conditions. This final rule will 
also ensure that several significant operational safety issues with 
one-person train crew are addressed and allow FRA to collect 
information and data on one-person train crews. For instance, this 
final rule addresses a safety issue by requiring alerters for Class II 
and III railroads operating with a one-person train crew that do not 
already have these safety devices installed on their locomotives for 
that type of operation. Alerters will ensure that if a crewmember 
becomes physically unresponsive, the train will apply emergency 
brakes--a function typically left to a conductor or other second 
crewmember.
---------------------------------------------------------------------------

    \30\ Numbers in this table and subsequent tables may not sum due 
to rounding. As discussed further in section VI.I of the RIA, 
quantified costs do not include costs that could be incurred in 
order to mitigate risks associated with a reduction in the number of 
crewmembers. The costs for operating rules (existing operations) and 
notification (existing operations) will solely be incurred in year 
1. Therefore, the discounted costs are the same for 7% and 3% (since 
values are not discounted in year 1). However, when annualizing 
costs over 10 years, the discounted costs at 7% and 3% are different 
because they are annualized with different discount rates.
---------------------------------------------------------------------------

    This final rule also ensures railroads address safety issues that 
may arise with one-person train crew operations by requiring operating 
rules that address the communication and safety of the one-person train 
crew.
    To operate with one-person train crews, freight railroads 
transporting certain types and quantities of hazardous materials must 
identify, evaluate, and address safety concerns that may arise from 
such operations by submitting a risk assessment to FRA for approval 
unless the railroad is a Class II or III short line or regional 
railroad and has established a legacy operation under the 
exception.\31\
---------------------------------------------------------------------------

    \31\ Sec. Sec.  218.129(a)(1) and 218.131.
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    The loss of a second crewmember to perform safety functions creates 
new hazards and/or increases the risk of certain existing hazards 
unless mitigating actions are taken.\32\ The safety requirements in 
this final rule will allow the rail industry to integrate technologies 
to facilitate operations with a one-person train crew, but under the 
condition that safety will not be degraded.
---------------------------------------------------------------------------

    \32\ As explained in the NPRM, ``the implementation of a one-
person operation, without any off-setting measures, may render 
existing rail safety requirements either less effective or 
ineffective.'' 87 FR 45573.
---------------------------------------------------------------------------

Legal Authority

    FRA is establishing regulations concerning train crew size safety 
requirements based on the statutory general authority of the Secretary 
of Transportation (Secretary). The general authority states, in 
relevant part, that the Secretary ``as necessary, shall prescribe 
regulations and issue orders for every area of railroad safety 
supplementing laws and regulations in effect on October 16, 1970.'' 
\33\ The Secretary delegated this authority to the Federal Railroad 
Administrator.\34\ Additionally, as described below, the Secretary has 
the specific statutory duty to prescribe regulations and issue orders 
for the certification of any train crewmembers who operate a locomotive 
or are assigned train conductors.
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    \33\ 49 U.S.C. 20103.
    \34\ 49 CFR 1.89(a); 49 U.S.C. 103(g).
---------------------------------------------------------------------------

    By statute, the Secretary is required to ``prescribe regulations 
and issue orders to establish a program requiring the licensing or 
certification . . . of any operator of a locomotive.'' \35\ FRA 
fulfilled that statutory requirement in 1991 by issuing a regulation 
requiring each railroad to file a locomotive engineer certification 
program with FRA.\36\ Each railroad's program must specify how the 
railroad plans to make the determinations necessary to certify each of 
its locomotive engineers, as well as ensure that the certified 
locomotive engineers of other railroads are qualified to operate safely 
on the controlling railroad's track.\37\ A locomotive engineer's main 
task is to operate the train safely. Other important tasks central to 
safe operation include: ensuring that the locomotive mechanical 
requirements are met; coordinating with the conductor about operational 
details; and, under the conductor's supervision, interpreting train 
orders, signals, and operating rules.
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    \35\ 49 U.S.C. 20135.
    \36\ 56 FR 28254 (June 19, 1991), 49 CFR part 240.
    \37\ 49 CFR part 240, subpart B--Component Elements of the 
Certification Process, and Sec.  240.229 (requiring certain action 
on the part of a railroad controlling the conduct of joint 
operations with another railroad). Additional guidance was provided 
in an interpretation published August 29, 2008. 73 FR 50883.
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    FRA also administers and enforces statutorily mandated \38\ 
conductor certification requirements.\39\ FRA defines a conductor as 
the crewmember in charge of a train or yard crew,\40\ and the 
conductor's job requires supervising train operations so they are safe 
and efficient. The conductor's responsibilities include: managing the 
train consist; coordinating with the locomotive engineer for safe and 
efficient en route operation; interacting with dispatchers, roadway 
workers, and others outside the locomotive cab; and dealing with 
unexpected situations (e.g., mechanical problems).\41\ In addition, as 
locomotive and train technologies have become more complex in recent 
years, a conductor (or second crewmember) can assist a locomotive 
engineer by responding to technology prompts or conveying information 
displayed so that the engineer can maintain focus on the train's 
controls and movement. The purpose of the conductor certification 
regulation is to ensure that only those persons meeting minimum Federal 
safety standards serve as conductors.

[[Page 25059]]

When FRA published the conductor certification final rule, the agency 
made clear that the rule should not be read as FRA's endorsement of any 
particular crew consist arrangement.\42\ However, if only one railroad 
employee is assigned as a train crew, the conductor certification rule 
requires that the single assigned crewmember be certified as both a 
locomotive engineer and a conductor.\43\ This final rule maintains that 
one-person train crew option but adds restrictions to ensure safety, 
based on the type of operation.
---------------------------------------------------------------------------

    \38\ 49 U.S.C. 20163, ``Certification of train conductors.''
    \39\ 49 CFR part 242, ``Qualification and Certification of 
Conductors.''
    \40\ 49 CFR 242.7 (defining ``conductor'').
    \41\ Rosenhand, Hadar, Emilie Roth, and Jordan Multer, Cognitive 
and Collaborative Demands of Freight Conductor Activities: Results 
and Implications of a Cognitive Task Analysis, FRA (July 2012).
    \42\ 76 FR 69802, 69825 (Nov. 9, 2011).
    \43\ 49 CFR 240.308(c) and 242.213(d).
---------------------------------------------------------------------------

    In this regard, the final rule is an element of FRA's holistic 
approach to address a range of hazards related to the operation of 
trains. As noted above, FRA is authorized by statute to prescribe 
regulations and issue orders for ``every area of railroad safety'' 
supplementing laws and regulations in effect on October 16, 1970, as 
well as to continue to administer and enforce specific statutory 
mandates, including locomotive engineer and conductor certification 
requirements.\44\ Specifically, given FRA's mandate to ``consider the 
assignment and maintenance of safety as the highest priority, 
recognizing the clear intent, encouragement, and dedication of Congress 
to the furtherance of the highest degree of safety in railroad 
transportation,'' \45\ FRA finds issuance of this final rule on train 
crew size safety both inherent in its statutory authority and in 
fulfillment of its charge from Congress. However, FRA recognizes that 
certain provisions focus on unique factors. Therefore, FRA finds that 
the various provisions of this final rule are severable and able to 
operate functionally if severed from each other. In the event a court 
were to invalidate one or more of this final rule's unique provisions, 
the remaining provisions should stand, thus allowing FRA to continue to 
fulfill its congressionally authorized role.
---------------------------------------------------------------------------

    \44\ See 49 U.S.C. 103, 20103(a).
    \45\ Id. at 103(c).
---------------------------------------------------------------------------

II. Discussion of Comments and FRA's Conclusions

A. Overview of Comments

    On July 28, 2022, FRA published the NPRM proposing train crew size 
safety requirements and provided commenters 60 days to file 
comments.\46\ On September 22, 2022, FRA extended the comment period by 
an additional 67 days.\47\ On October 27, 2022, FRA scheduled a public 
hearing for December 14, 2022, and extended the comment period to 
December 21, 2022, an additional 19 days, to provide the public with 
additional time to comment on the proposed rule or submit a response to 
views or information provided at the public hearing, or both.\48\ A 
transcript of the public hearing is available in the docket.\49\
---------------------------------------------------------------------------

    \46\ 87 FR 45564.
    \47\ 87 FR 57863.
    \48\ 87 FR 65021.
    \49\ https://www.regulations.gov/document/FRA-2021-0032-13184.
---------------------------------------------------------------------------

    During the 146-day comment period, the docket recorded 
approximately 13,576 separate entries for written comments with about 
13,441 of those comments filed by individuals in their own names. In 
other words, about 99 percent of the written comments submitted to the 
docket were from individual commenters who were not filing their 
comment officially on behalf of an organization, group, or business. Of 
those individual commenters, about 13,377 expressed support for the 
NPRM and 64 opposed it, meaning less than approximately a half percent 
of individual commenters expressed opposition to the proposed rule. FRA 
estimates that more than half of the comments filed by individual 
citizen commenters used a form letter created by a labor organization 
or other organized interest group. In general, commenters who signed 
form letters in support of a two-person train crew mandate expressed 
the same types of safety concerns FRA raised in the NPRM. This final 
rule addresses those safety concerns to ensure the safety of rail 
operations, one-person train crewmembers, and the public. When 
summarizing a form letter, a footnote will cite to a single example.
    The docket's recorded number of comments does not include the 
comments received through oral testimony at the public hearing on 
December 14, 2022, and there are other reasons why the 13,576 count 
should be considered only an approximation. As some entries included 
multiple comments or were signed by multiple people, there were likely 
more commenters than the number of comments recorded by the docket. 
Further, FRA discovered that some commenters sent in multiple comments. 
Because the comment period was extended twice, some commenters sent in 
a shorter comment before any extensions were granted, and then may have 
sent in more information as they developed further input. Every comment 
received was considered by the agency in finalizing this rule.
    The order of the topics or comments discussed in this document is 
not intended to reflect the significance of the comment raised or the 
standing of the commenter. Additionally, this summary of the comments 
is intended to provide both a general understanding of the overall 
scope and themes raised by the commenters, as well as give some 
specific descriptions to provide context. Not every comment is 
described in this summary and, whenever counts of comments are 
provided, the counts are approximate as some comments could not be 
easily grouped with others. Comments regarding the proposed Regulatory 
Impact Analysis (RIA) are addressed in the RIA to the final rule.
    In addition to the following summary of the general comments here, 
FRA used computer-based data analysis to identify common elements among 
comments.\50\ FRA's computer-based data analysis often provided 
confirmation of FRA's manual estimates and insight, and additional 
insight into the written comments that would have been particularly 
difficult to discern based on human review alone. For example, the 
computer-based analysis more accurately identified comments that were 
identical than a human could track manually.\51\ The computer-based 
data analysis could also readily find comments that used the same key 
words to allow FRA to review those comments together.\52\ There were 
also many short comments and the computer-based data analysis was able 
to pick out those shorter comments and display them all in a few pages 
that could be more easily accessed and read.\53\ The computer-based 
approach used natural language processing, specifically topic modeling, 
to extract major themes for the comments received based on the most 
frequently used words and phrases, which then assisted FRA in 
identifying the central themes raised by the commenters.\54\
---------------------------------------------------------------------------

    \50\ The 23-page computer-based data analysis report of the 
written comments was placed in the docket, FRA-2021-0032, with the 
other agency documents under the ``Browse Documents'' tab.
    \51\ The computer-based data analysis found one particular 
comment duplicated 2,065 times and which cites FRA-2021-0032-1914 as 
an example.
    \52\ For example, on pages 9-10 of the computer-based data 
analysis report, the term ``cut crossings'' was found used in 
approximately 45 comments.
    \53\ For instance, the computer-based data analysis report 
displays comments with less than 75 characters on pages 11-14.
    \54\ On pages 15-21, the computer-based data analysis report 
includes examples of the 10 themes identified when top words, i.e., 
commonly used words, were extracted through topic modeling. For 
instance, a select group of top words included: emergency, life 
medical, community, supply chain, death, derailments, and 
vulnerable.
---------------------------------------------------------------------------

    Based on the comments received, FRA is revising aspects of the 
approach reflected in the NPRM, which can be

[[Page 25060]]

summarized as follows: (1) the final rule removes the previously-
proposed strict prohibition on the transportation of some hazardous 
materials with a one-person train crew; (2) comments on FRA's proposed 
RIA led FRA to consider additional information and refine its analysis; 
(3) comments requesting more time to comply with any new minimum 
requirements to allow for planning, operational changes, or hiring and 
training of additional crewmembers led FRA to extend those compliance 
dates; (4) comments regarding the complexity of, and data requirements 
for, the risk assessment, along with concerns regarding the analytical 
methods required, led FRA to simplify the requirement, change the 
review standard so that a railroad can compare the operation to the 
baseline of a two-crewmember operation, provide guidance in an 
appendix, and retain an option for railroads to request use of 
alternative risk assessment methodologies as part of the special 
approval procedure; (5) comments outlining anticipated difficulties in 
complying with the risk assessment proposed in the NPRM led FRA to 
remove the risk assessment requirement and substitute a notification 
requirement for Class II or III freight railroads under certain types 
of specified operations; (6) comments about the proposed requirements 
for remote control operations, in addition to FRA's analysis that 
existing regulations already provided for minimum safety protections, 
led FRA to remove the subject from the final rule; and (7) comments on 
the potential preemptive effect of a Federal rail safety regulation on 
currently existing State-by-State regulation relating to the subject 
matter of crew size safety requirements led FRA to clarify what the 
agency understands will be the legal impact of this final rule.

B. Preemption

    In the NPRM, FRA included in the background a summary of prior crew 
staffing rulemaking efforts. The summary discussed the decision issued 
by the U.S. Court of Appeals for the Ninth Circuit vacating FRA's 
withdrawal of the 2016 NPRM, as well as FRA's preemption determination 
contained in that withdrawal, and remanding the rulemaking to FRA.\55\ 
The NPRM also included discussion of FRA's legal authority to issue the 
regulation \56\ and the statutory preemption provisions found at 49 
U.S.C. 20106.\57\ As noted in the NPRM, a final rule issued by FRA 
``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.'' \58\ The NPRM then requested 
comments on the issue of preemption.
---------------------------------------------------------------------------

    \55\ 87 FR at 45568-70 (citing Transp. Div. of the Int'l Ass'n 
of Sheet Metal, Air, Rail & Transp. Workers v. FRA, 988 F.3d 1170 
(9th Cir. 2021).
    \56\ 87 FR at 45567 and 49 U.S.C. 20103 (citing, in relevant 
part, that the Secretary ``as necessary, shall prescribe regulations 
and issue orders for every area of railroad safety supplementing 
laws and regulations in effect on October 16, 1970'').
    \57\ 87 FR at 45570-71 (citing the statutory preemption 
provisions in 49 U.S.C. 20106 that mandate that laws, regulations, 
and orders ``related to railroad safety'' be nationally uniform, and 
that a Federal regulation or order covers the subject matter of a 
State law where ``the [F]ederal regulations substantially subsume 
the subject matter of the relevant [S]tate law'').
    \58\ 87 FR at 45571. As noted below, there is a narrow exception 
to the preemption provisions that allows non-Federal regulation of 
``essentially local'' safety hazards. 49 U.S.C. 20106(a)(2).
---------------------------------------------------------------------------

    The California Public Utilities Commission (CPUC) commented that 
the final rule should reflect or exceed ``the strongest state laws that 
currently exist.'' \59\ For that reason, CPUC is opposed to the NPRM to 
the extent it could undermine California's law which has a more 
stringent two-person crew mandate than FRA's proposed rule with 
exemptions. CPUC requested that FRA ``provide a stronger role for State 
agencies, such as [CPUC, and suggested that] FRA could require a 
railroad to seek a [S]tate agency's concurrence prior to applying for 
an exemption.'' \60\ CPUC commented that because ``a [S]tate will have 
unique information regarding specific hazards or environmental concerns 
within [the State's] borders . . . [a] petitioning railroad should 
solicit the [S]tate agency's input . . . and the petitioning railroad 
should include [that information] in its petition to the FRA . . . .'' 
\61\ CPUC also requested that FRA ``establish a clearly defined role 
for [S]tate agencies to provide input and the ability to revoke [an 
exemption] if safety issues arise that make the exemption untenable.'' 
\62\
---------------------------------------------------------------------------

    \59\ FRA-2021-0032-12258 at 2. CPUC's comment did not 
distinguish between exemptions and one-person train crew operations 
proposed for a special approval process, calling the portions of the 
NPRM that would allow for fewer than two train crewmembers an 
``exemption process.''
    \60\ Id.
    \61\ Id.
    \62\ Id. at 3.
---------------------------------------------------------------------------

    A one-page letter signed by 19 senators from the Washington State 
Legislature commented that Washington has a law regulating train crew 
size and urged FRA not to preempt train crew size laws already passed 
by States when those laws meet or exceed Federal crew size 
standards.\63\ Similarly, the Washington State Legislative Board of the 
Transportation Division of the International Association of Sheet 
Metal, Air, Rail and Transportation Workers (SMART-TD) commented that 
``while [it] strongly support[s] FRA's adopting a national minimum 
train crew size rule [it] oppose[s] any regulatory language that would 
preempt [S]tate laws and regulations that are equal to or more 
stringent than a [F]ederal'' requirement.\64\
---------------------------------------------------------------------------

    \63\ FRA-2021-0032-12202.
    \64\ FRA-2021-0032-12917 at 1. The State of Washington's 
Utilities and Transportation Commission also commented in strong 
support of the NPRM, citing the importance to protect the public and 
the environment from potential disaster involving hazardous train 
derailments during a period in which railroads are using longer 
trains, without mentioning preemption of Washington State's laws. 
FRA-2021-0032-12746.
---------------------------------------------------------------------------

    Many individuals and labor organizations commented that they 
supported the NPRM but wanted FRA to consider a way to avoid preempting 
State laws that have more stringent requirements. For example, the 
Transportation Trades Department, AFL-CIO (TTD) would like FRA's 
regulation to establish minimum safety requirements but not preempt 
States from setting more stringent requirements.\65\ SMART-TD's Kansas 
State Legislative Board, however, supported eliminating the existing 
patchwork of State laws regarding crew size and creating a nationwide 
standard.\66\
---------------------------------------------------------------------------

    \65\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
    \66\ FRA-2021-0032-9397.
---------------------------------------------------------------------------

    A comment in support of FRA's preemption position came from 54 
Members of the U.S. House of Representatives, recognizing that the 
State laws mandating minimum crew size requirements have been 
overturned by courts finding that the Federal government has 
jurisdiction over this subject matter.\67\ For this reason, these U.S. 
House Members commented that it is FRA's responsibility to address this 
safety issue, calling it urgent because of the drastic changes in the 
freight rail industry over the last several years.'' \68\
---------------------------------------------------------------------------

    \67\ FRA-2021-0032-12809 (a duplicate comment was filed at FRA-
2021-0032-12971).
    \68\ Id. at 2.
---------------------------------------------------------------------------

    Norfolk Southern Railway Company (NS) commented that while it 
agrees that a national rule addressing crew size would be consistent 
with Congress' express goal that Federal laws and regulations relating 
to railroad safety create national uniformity, it opposes this rule for 
a variety of reasons,

[[Page 25061]]

including that the NPRM would be ``burdensome'' and that FRA neglected 
to mention in the NPRM that some States' laws have been 
invalidated.\69\ NS stated that ``[p]reemption cannot justify FRA's 
imposition of this particular rule'' because of the harm the NPRM could 
cause the rail industry.\70\
---------------------------------------------------------------------------

    \69\ FRA-2021-0032-13045.
    \70\ Id. at 6.
---------------------------------------------------------------------------

    SMART-TD's Illinois Legislative Board (SMART-TD ILB) commented in 
support of the NPRM and provided a supporting letter from Illinois 
Governor J.B. Pritzker.\71\ The comment stated that a court had vacated 
an Illinois law requiring most freight trains operating in Illinois to 
have an operating crew of at least two individuals \72\ and that SMART-
TD ILB and Governor Pritzker support the NPRM as an alternative to the 
preempted Illinois law.
---------------------------------------------------------------------------

    \71\ FRA-2021-0032-10530.
    \72\ Id. at 2 (referring to, but not citing, Ind. Rail Rd. Co. 
v. Ill. Commerce Comm'n, 576 F. Supp. 3d 571 (N.D. Ill. 2021).
---------------------------------------------------------------------------

FRA's Response
    As explained in the NPRM, 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 set forth a nationwide rule for crew size safety, 
especially operations with a one-person train crew, based on FRA's 
expertise and experience in regulating safety and risks in rail 
operations. While courts may find that some of those State laws are 
preempted even without this rule, other State laws may not be 
challenged and found preempted, leaving an untenable inconsistency 
governing crew size. This final rule meets Congress' mandate that the 
laws, regulations, and orders related to railroad safety be nationally 
uniform.
    While FRA intends this final rule to create a nationwide standard 
and anticipates that it will preempt State laws covering the same 
subject matter, FRA clarified in the NPRM that FRA's statutory 
preemption provision includes a ``narrow exception'' \73\ to FRA's 
broad authority to preempt State laws. This narrow exception allows 
non-Federal regulation of ``essentially local'' safety hazards.\74\ An 
``essentially local safety hazard'' is ``one which is not adequately 
encompassed within national uniform standards.'' \75\ As noted in the 
NPRM, some State laws governing crew size, such as those in California, 
Nevada, and Washington, do not, in FRA's view, address an ``essentially 
local'' hazard because they would apply statewide.\76\ In support of 
this view, FRA explained in the NPRM that legislative history and 
subsequent judicial decisions indicate the narrow exception is intended 
to allow States to respond to local situations not capable of being 
adequately addressed in uniform national standards, but local safety 
hazards cannot be Statewide.\77\
---------------------------------------------------------------------------

    \73\ 87 FR at 45570-71 (citing Duluth, Winnipeg & Pac. Ry. Co. 
v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008) in which the court 
found 49 U.S.C. 20106(a) ``creates a narrow exception to preemption 
through its savings clause'').
    \74\ 49 U.S.C. 20106(a)(2).
    \75\ Union Pacific R. Co. v. California Pub. Utils. Comm'n, 346 
F.3d 851, 860 (9th Cir. 2003).
    \76\ 49 U.S.C. 20106(a)(2); H.R. Rep. No. 91-1194 (1970), 
reprinted in 1970 U.S.C.C.A.N. 4104, 4117 (``these local hazards 
would not be statewide in character''); see also Norfolk & Western 
Ry. Co. v. Public Utilities Comm'n of Ohio, 926 F.2d 567, 571 (6th 
Cir. 1991) and National Ass'n of Regulatory Util. Comm'rs v. 
Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976) (both holding that the 
local hazard exception cannot be applied to uphold the application 
of a statewide rule).
    \77\ 87 FR at 45571 (citing H.R. Rep. No. 91-1194 (1970), 
reprinted in 1970 U.S.C.C.A.N. 4104, 4117).
---------------------------------------------------------------------------

    In response to CPUC and other similar commenters who requested that 
FRA provide States with a clear role in FRA's exemption provision, this 
final rule provides that the public may comment on any special approval 
petition as FRA proposed in the NPRM. FRA encourages States and their 
regulatory agencies to comment on requests for one-crew operations and 
provide any safety information or data they believe would be useful to 
FRA in deciding whether to approve a special approval petition for a 
one-person train crew operation.
    As an alternative to issuing a narrowly tailored State law to 
address any essentially local safety hazards, a State could bring any 
safety concerns about a particular rail operation to FRA's attention 
for discussion or possible investigation. For example, a State agency 
that participates in investigative and surveillance activities with FRA 
under 49 CFR part 212 can work with FRA to enforce this final rule.\78\
---------------------------------------------------------------------------

    \78\ Part 212 establishes standards and procedures for State 
participation in investigative and surveillance activities under the 
Federal railroad safety laws and regulations.
---------------------------------------------------------------------------

    FRA disagrees with NS's comment that FRA is relying on preemption 
as a justification for the final rule. As explained above, FRA is 
issuing this final rule to ensure that trains are adequately staffed 
for their intended operation and railroads have appropriate safeguards 
in place for safe train operations, especially when using one-person 
train crews. Moreover, this final rule meets Congress' requirement that 
the laws, regulations, and orders related to railroad safety be 
nationally uniform.\79\ Thus, FRA is not basing its justification for 
this final rule on preemption, but rather is noting that the national, 
uniform standard provided in this rule is expected to preempt State 
laws governing crew size.
---------------------------------------------------------------------------

    \79\ 49 U.S.C. 20106.
---------------------------------------------------------------------------

C. Comments Supporting the NPRM

    In the NPRM, FRA explained how the Ninth Circuit's decision to 
vacate and remand the 2019 withdrawal left FRA with some choices on a 
path forward, and FRA exercised its discretion to choose, through this 
rulemaking, to reconsider numerous safety issues that may be associated 
with or impacted by one-person train crew operations.\80\ For instance, 
FRA revisited the lack of a Federal requirement for a systematic post-
accident protocol for trains hauling freight.\81\ The NPRM also raised 
several other potential safety issues to consider, including the 
context that many of the Federal rail safety regulations were written 
with the expectation that each train would have multiple crewmembers, 
the safety findings drawn from research on the cognitive and 
collaborative demands placed on train crewmembers while operating a 
train, and the ability of railroads to respond to a one-person train 
crewmember who may become incapacitated.\82\
---------------------------------------------------------------------------

    \80\ 87 FR at 45571-76.
    \81\ 87 FR 45571.
    \82\ See e.g., 49 CFR 218.99 (requiring point protection for 
shoving or pushing moves; 218.103-218.107 (operational requirements 
for hand-operated switches) and generally, 49 CFR part 239 
(Passenger Train Emergency Preparedness requirements).
---------------------------------------------------------------------------

    Many commenters supported FRA's decision in the NPRM to reconsider 
the safety issues and propose minimum requirements for the size of 
train crews depending on the type of operation. These commenters are 
concerned, among other things, about the operational safety of a train 
operated by a one-person crew, the operational safeguards to protect 
that crewmember in various situations, and the impact of one-person 
train crew operations that travel through their communities as 
evidenced by the numerous comments received raising those concerns.
1. Labor Organizations
    The Brotherhood of Locomotive Engineers and Trainmen (BLET) and 
SMART-TD filed a joint comment stating that their unions, which 
represent the vast majority of operating train crew workers across the 
nation, support the implementation of a two-person crew rule in the 
interest of public safety and request that the final

[[Page 25062]]

rule ``mandate that two-person crews are the standard as they have 
proven to be the safest and most efficient way to operate.'' \83\ In 
addition, the International Brotherhood of Teamsters, which includes 
BLET as part of the Teamsters Rail Conference, commented that it 
supports FRA's efforts to promulgate the NPRM and endorsed BLET's 
comment.\84\ The jointly filed written comment, and BLET and SMART-TD's 
oral testimony at FRA's public hearing, detailed their members' 
interest in this safety rulemaking. For example, BLET and SMART-TD are 
concerned with the multiple steps a one-person train crew approaching a 
roadway work zone would need to perform alone and the risks to rail 
employees working on or near the track if that single crewmember made a 
mistake. The unions' jointly filed comment also noted how many 
railroads embraced greater electronic device use, such as cellphone 
use, as a pivotal component of their plans to reduce crew size even 
though electronic device use is currently strictly regulated because of 
those devices' potential for distraction.\85\ BLET and SMART-TD also 
described how trains are routinely slowed by unplanned events that 
require someone other than the locomotive engineer to troubleshoot the 
problem before the train can continue and how a conductor and a 
locomotive engineer work as a team during any necessary 
troubleshooting. Moreover, the labor organizations' jointly filed 
comment noted that a two-person train crew provides a backstop to human 
error, which is still useful with a positive train control (PTC) 
system, and that, even when there is a low incidence of rail accidents, 
the consequence of an accident can be high and thereby justify an 
additional fail-safe measure.
---------------------------------------------------------------------------

    \83\ FRA-2021-0032-13038 at 1.
    \84\ FRA-2021-0032-13050.
    \85\ See 49 CFR part 220, subpart C (specifying its purpose ``is 
to reduce safety risks resulting from railroad operating employees 
being distracted by the inappropriate use of electronic devices, 
such as mobile telephones (cell phones or cellular phones) and 
laptop computers'').
---------------------------------------------------------------------------

    BLET and SMART-TD commented that their members who have experienced 
PTC implementation first-hand, expressed that they want PTC as a tool 
but recognize that PTC was not designed to do the job of a crewmember 
supplementing the engineer. Further, the unions jointly commented that 
PTC ``has introduced new complexities and levels of attention capture 
not seen prior to the implementation of PTC and has emphasized the need 
for a conductor on board due to the added level of distraction PTC has 
imposed upon the engineer.'' \86\ BLET and SMART-TD commented that PTC 
and other technologies often involve after-market products bolted on, 
rather than integrated into, existing equipment which makes the 
locomotive cab feel crowded with technology and, in turn, can 
complicate the jobs of the train crewmembers. BLET and SMART-TD also 
commented that automated fuel-saving software programs currently are 
programmed without regard to bad weather or less-than-optimal 
conditions, potentially requiring a locomotive engineer to intervene 
manually. BLET and SMART-TD also commented that the industry's 
increased reliance on distributed power operations (i.e., where an 
engineer must control two or more locomotives independently with the 
aid of computers) means that the locomotive engineer must direct 
significant attention to computer screens; in their view, the NPRM did 
not adequately consider the safety considerations of using a one-person 
train crew with a distributed power operation, which ``takes much of 
the engineer's attention away from the view forward.'' \87\
---------------------------------------------------------------------------

    \86\ FRA-2021-0032-13038 at 2.
    \87\ FRA-2021-0032-13038 at 6.
---------------------------------------------------------------------------

    During the public hearing, BLET's National Legislative 
Representative, who described himself as a former freight locomotive 
engineer on a Class I railroad for 18 years, testified in overall 
support of the NPRM and included comments regarding BLET's concerns 
with some of the proposed exceptions to the two-person train crew 
mandate. BLET testified that a locomotive engineer is not a mobile 
member of the train crew because that person is responsible for the 
physical manipulation of the controls of the locomotive and the 
monitoring of on-board systems. BLET stated that for an engineer to 
leave the locomotive cab unattended as a one-person train crew, the 
engineer must complete a time-consuming series of steps that includes 
disabling the locomotive's controls, setting the train's air brakes, 
securing the locomotive and train with hand brakes, and following rules 
or procedures that confirm the train is properly secured. In explaining 
how PTC has made a train crew's job more difficult, BLET testified that 
PTC has introduced new complexities and can reduce a crewmember's 
situational awareness such as when a dispatcher references a mandatory 
directive over the radio and a locomotive engineer must toggle between 
display screens to understand the directive the dispatcher is 
referencing. BLET raised concern that railroads are reducing crew size 
to increase corporate profits while ignoring rules or cutting corners 
on safety. BLET's testimony also reiterated concern in BLET and SMART-
TD's jointly filed written comment that FRA reconsider some of the 
proposed exceptions to a two-crewmember mandate as those operations may 
not as safe or simple as FRA suggested in the NPRM.
    During FRA's public hearing, SMART-TD's President testified about 
the general dangers of railroad work and that safety cannot be expected 
to improve by reducing the number of train crewmembers when the 
workforce is already depleted and overworked. SMART-TD's President 
testified that ``the carriers regularly argue that there is no data to 
support a two-person crew being safer than a one-person crew . . . [and 
t]he irony . . . is that likewise there is no data to support that a 
one-person or autonomous operation is any safer than that of a two-
person crew in freight operations.'' SMART-TD's President also 
described an incident when he was a locomotive engineer on a coal train 
and his conductor warned him of a young child on the track. SMART-TD's 
President testified that he blew the horn and rang the bell, but the 
boy did not move, and he credited the conductor for saving the child's 
life because the conductor ran out on the nose of the engine and waved 
in a manner that led the child to step out of the way. SMART-TD's 
President concluded that his experience demonstrates the effectiveness 
of two crewmembers working as a team as it is important to have the 
conductor make track observations when a locomotive engineer may be 
distracted by monitoring the controls or interacting with a computer 
screen. SMART-TD testified that, in addition to a backup observation 
role, a conductor can contribute knowledge and decision-making 
judgment, especially when responding to non-routine situations. SMART-
TD testified about PTC's limitations and how a conductor can identify 
washouts, rockslides, fires, vehicles, and pedestrians, but PTC cannot. 
SMART-TD described how a one-person crew would be unlikely to assist 
anyone injured in a highway-rail grade crossing collision nor would the 
one-person crew be able to assist first responders as easily as a 
conductor or quickly assess damage from a derailment.
    During FRA's public hearing, a member of SMART-TD who described 
himself as a conductor with 18 years of experience stated that the 
proposed crew size safety requirements are

[[Page 25063]]

important because the workforce is already strained and the recent 
doubling of one-and-a-half-mile-long trains would make a complex job 
unsafe with a one-person train crew.\88\ This SMART-TD member described 
the importance of multi-person crews being able to mentor one another 
and provide backup. Specifically, he explained that a one-person crew 
will be physically and psychologically challenged because of the jobs' 
many demands, such as the need to look at three different computer 
screens in the locomotive cab while continuing to monitor conditions 
ahead, and due to working alone without human interaction or even the 
freedom to listen to music. He also stated that a person working alone 
will lose a layer of safety that is not fully replaced by PTC. Further, 
this SMART-TD member testified about an incident in which he was a 
train crewmember and the PTC system allowed his crew to operate the 
train with PTC enabled even though nobody entered the number of axles 
in the train, a potential safety concern in the way the PTC system 
would govern the train. This SMART-TD member also stated that, as a 
former U.S. Navy combat medic, he was trained to spot medical concerns 
and, in his rail work experience, it has been necessary for him to have 
fellow crewmembers removed for medical emergencies, illnesses, and 
fatigue. Thus, he noted that one-person train crews, who do not remove 
themselves from train operations when they are tired or sick, will pose 
a greater safety risk than two-person train crews where the second 
crewmember can mitigate the risk of a sick or tired crewmember.
---------------------------------------------------------------------------

    \88\ This SMART-TD witness at the hearing is also the Secretary 
of SMART-TD's Maryland State Legislative Board as identified in that 
organization's comment. FRA-2021-0032-6937.
---------------------------------------------------------------------------

    TTD commented that it consists of 37 affiliated unions representing 
the totality of rail labor, including both passenger and freight rail 
workers, and specifically the locomotive engineer and conductor 
employees who will be most impacted by the NPRM.\89\ TTD's President 
also presented oral testimony at FRA's public hearing. Overall, TTD 
commented that it supported the NPRM and urged FRA to adopt more 
stringent requirements than proposed by eliminating or changing the 
option for a railroad to use ``an alterative risk assessment process in 
lieu of the proposed risk assessment'' and by requiring that a second 
crewmember be a certified conductor.\90\ TTD stated that FRA's NPRM 
recognized the ``fundamental truths [that] . . . crew size is directly 
correlated to the safe operation of trains [and that] . . . reducing 
the number of [crewmembers] creates substantial safety risks that need 
to be addressed . . . [because the] crewmembers have complementary[,] 
but distinct[,] responsibilities.'' \91\ TTD commented that a Class I 
railroad's video shown at the public hearing to demonstrate operations 
using ground-based conductors described a scenario occurring ``under 
ideal circumstances in terms of [a ground-based conductor] being able 
to locate and access [a] site without any difficulty [as a person] 
arriving from off-site is likely going to be severely delayed.'' \92\
---------------------------------------------------------------------------

    \89\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
    \90\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 2.
    \91\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 5.
    \92\ FRA-2021-0032-13049 at 13.
---------------------------------------------------------------------------

    TTD also highlighted a comment from its affiliate, the 
International Association of Fire Fighters, that first responders on-
scene rely on train crews to provide critical cargo information and 
services such as separating train cars, and with only one crewmember 
there is no redundancy and a much higher risk of first responders not 
receiving crucial information.\93\
---------------------------------------------------------------------------

    \93\ FRA-2021-0032-5247.
---------------------------------------------------------------------------

    Labor organizations, such as BLET, SMART-TD, and TTD, requested 
that FRA reconsider the remote control operations exception and asked 
whether additional regulations of remote control operations are needed 
to allow remote control operators to safely operate over any distance. 
These commenters do not seek FRA to regulate remote control operations 
through this rulemaking, as they viewed the proposed exception as 
allowing such operations without establishing other necessary safety 
requirements. These labor organization commenters took the position 
that FRA should, outside of this rulemaking, take action to review all 
remote control operation related accidents, regardless of whether the 
accidents occurred during train or switching operations, and then 
consider whether to seek input from FRA's Federal advisory committee, 
the Railroad Safety Advisory Committee (RSAC), or otherwise initiate a 
rulemaking covering comprehensive safety requirements for remote 
control operations.
    The Brotherhood of Maintenance of Way Employes Division (BMWED), 
which represents employees who inspect, install, construct, repair, and 
maintain railroad track, roadbed, and related right-of-way 
infrastructure on all Class I railroads, advocated for a locomotive 
engineer and a conductor two-person train crew for every freight train 
operating over the general railroad system.\94\ BMWED's comment stated 
that two-person crews provide necessary checks and balances for the 
operation of the train and its securement at terminal points, yards, 
and sidings.
---------------------------------------------------------------------------

    \94\ FRA-2021-0032-12213.
---------------------------------------------------------------------------

    The American Train Dispatchers Association (ATDA) commented in 
support of the proposed rule, emphasizing the safety need for a 
dispatcher to immediately communicate instructions or orders to a train 
en route.\95\ ATDA is concerned that a one-person train crew might not 
always be able to receive communications, thereby creating a 
substantial hazard to rail employees and the public. Also, ATDA 
commented that railroad safety is improved by the regular crew 
communications to dispatchers and that it will be unrealistic for a 
one-person crew to accomplish all the crew's regular duties and 
continue to report other safety information, including the location of 
young children near the tracks, visible track- and structure-related 
defects or damage, and potential problems on trains passed such as 
shifted loads and equipment dragging.\96\
---------------------------------------------------------------------------

    \95\ FRA-2021-0032-13016.
    \96\ Id. at 3.
---------------------------------------------------------------------------

    The Transport Workers Union of America (TWU), which represents a 
variety of rail employees, including those who inspect and repair 
equipment and track at several Class I railroads and some of the 
northeast's largest regional rail systems, commented in support of the 
rule, emphasizing the safety need for a second crewmember to assist 
carmen who are dispatched when a train develops mechanical problems en 
route.\97\ TWU explained that a single carman is often dispatched to 
make such a mechanical repair and, on these occasions for safety 
reasons, it is necessary for a conductor to assist the carman in making 
the inspection and necessary repairs.
---------------------------------------------------------------------------

    \97\ FRA-2021-0032-12281.
---------------------------------------------------------------------------

    In addition, BLET Division 446 from Belen, New Mexico,\98\ 
described how its members operate trains over remote landscapes that 
are not readily accessible by motor vehicle, and thus indicated that a 
two-person train crew is vital to survival in medical or other 
emergency situations.
---------------------------------------------------------------------------

    \98\ FRA-2021-0032-8741.
---------------------------------------------------------------------------

    Further, the California Labor Federation (CLF), AFL-CIO \99\ noted 
a two-person train crew is better able to monitor events both inside 
and outside the locomotive cab than can a single crewmember, thereby 
providing greater

[[Page 25064]]

situational awareness. CLF also explained how a second crewmember can 
fill in knowledge gaps and keep the locomotive engineer alert when that 
engineer is fatigued.\100\
---------------------------------------------------------------------------

    \99\ FRA-2021-0032-10712.
    \100\ A similar comment was received from the Oklahoma AFL-CIO. 
FRA-2021-0032-10355.
---------------------------------------------------------------------------

2. Individual Commenters
    A short form letter was used in approximately 3,658 comments to 
express opposition to one-person crews, asserting that ``[h]aving 
multiple crewmembers working at all times protects against medical 
emergencies and derailments.'' \101\ The form letter also suggested an 
economic argument that railroads were motivated to reduce train crew 
size by ``Wall Street greed'' and that one-person train crews could be 
connected to future supply chain disruptions.
---------------------------------------------------------------------------

    \101\ FRA-2021-0032-2764.
---------------------------------------------------------------------------

    Further, approximately 469 commenters submitted a short form letter 
which stated that two pairs of eyes are better than one and compared a 
train crew to an airline crew, but suggested rail posed greater risks 
because freight trains transport hazardous or flammable materials and 
spent nuclear rods.\102\
---------------------------------------------------------------------------

    \102\ FRA-2021-0032-10974 is a representative example of this 
group of comments.
---------------------------------------------------------------------------

    Another form letter sent by approximately 29 individual commenters 
stated their shared concern that a lone crewmember would not be able to 
address train malfunctions or grade crossing incidents or assist 
emergency response personnel as quickly as a two-person crew could, 
leaving their community in harm's way.\103\ For this reason, these 
commenters supported FRA's proposal to establish minimum requirements 
for the size of crews operating trains.
---------------------------------------------------------------------------

    \103\ FRA-2021-0032-11120.
---------------------------------------------------------------------------

    In a similar example of a form letter supporting a two-person crew 
mandate, FRA received nine identical comments mailed and docketed 
together as a single comment from individuals expressing concern that a 
lone crewmember would not be able to address train malfunctions or 
grade crossing incidents or assist emergency response personnel as 
quickly as a two-person crew could.\104\
---------------------------------------------------------------------------

    \104\ FRA-2021-0032-10465.
---------------------------------------------------------------------------

    During FRA's public hearing, a commenter identified herself as a 
conductor with ten years of experience for the Union Pacific Railroad 
Company (UP).\105\ The commenter stated that she is concerned with an 
overreliance on technology that does not always work as intended. She 
also disagreed with UP's testimony that having a conductor in a truck 
would be a faster way of alleviating a mechanical repair to a train 
versus a conductor who travels with the train.
---------------------------------------------------------------------------

    \105\ FRA-2021-0032-13184.
---------------------------------------------------------------------------

    Numerous individual commenters provided first-hand accounts of 
close calls and lives saved by the action of two crewmembers working as 
a team. These commenters largely provided anecdotal information 
supporting why they thought trains staffed with fewer than two persons 
created unsafe conditions. Individual commenters sometimes used a form 
letter provided by an organizing association or union but added their 
personalized statement to make it unique. Because there are so many of 
these types of comments in the record, the following examples are 
provided as a sampling and not an exhaustive summary.
    A short form letter comment supporting a two-person train crew 
mandate was used in approximately 2,574 comments and was written from 
the perspective of rail employees who are currently train 
crewmembers.\106\ The form letter captured the person's support for FRA 
revisiting research described in the NPRM that scrutinizes the 
cognitive and collaborative demands placed on each crewmember, and how 
multiple crewmembers can work together as an effective, safe team. This 
form letter also raised concerns with technology and other job-related 
stressors and concluded that having a work partner helps get the job 
done.
---------------------------------------------------------------------------

    \106\ FRA-2021-0032-8789.
---------------------------------------------------------------------------

    A commenter who identified himself as having 22 years of experience 
as a conductor and several leadership roles in SMART-TD supported the 
NPRM, as he viewed a two-person train crew requirement as vital to safe 
freight operations largely because of the hazards related to trains 
hauling hazardous materials.\107\ The commenter pointed to trends he 
has observed, stating that the length and weight of freight trains are 
increasing, thereby impacting the distance needed to stop the train in 
case of emergency and increasing the probability of an accident/
incident. The commenter also stated that a derailment or accident 
involving a long train hauling mainly hazardous materials could pose a 
more widespread danger zone than a shorter train. His stated concerns 
included protecting communities and schools located near railroad 
tracks. The commenter also stated that communities impacted by stopped 
trains blocking crossings would be worse off because it would take 
significantly longer for a railroad to manually separate the train and 
unblock the crossing if a conductor is not on the train to assist. 
Further, the commenter raised the issue of how two crewmembers keep 
each other alert and on task, and that having an accountability partner 
is the number one tool used by crews to combat fatigue.
---------------------------------------------------------------------------

    \107\ FRA-2021-0032-9893.
---------------------------------------------------------------------------

    An individual commented that he was a conductor on a train that 
struck a delivery truck at a highway-rail grade crossing.\108\ The 
commenter explained that while the locomotive engineer began the 
process of stopping the train, he immediately called the dispatcher to 
arrange for emergency first responders. According to the commenter's 
description, he was off the train before it stopped so that he could 
run back to the crossing and help a passerby pull the unconscious truck 
driver out and away from the truck before the truck was engulfed in 
flames. He was then available to assist first responders, to split or 
secure the train or answer any questions as needed. The commenter 
contrasted his accident description with how he believes the incident 
would have unfolded if the train had been operated by a one-person 
crew. Under the commenter's theoretical scenario, the locomotive 
engineer would make an emergency brake application, dial the emergency 
number, and provide the milepost location. The engineer would not be 
able to provide the dispatcher with the DOT grade crossing number until 
the train was stopped and the number could be safely found in reference 
materials. The commenter explained that with a one-person crew the 
dispatcher would call for emergency first responders, but the engineer 
could not leave the train to assist the driver because the engineer 
would have a duty to secure an unattended train with hand brakes first. 
According to the commenter, without a second crewmember, other factors 
would determine whether the driver would have been rescued in time, and 
the one-person crewmember would feel helpless as the crewmember would 
be required to remain on the train unable to help anyone injured or 
readily assist first responders. The commenter also stated that FRA's 
proposed rule was not stringent enough in that two-person train crews 
are necessary for all train movements to ensure safety.
---------------------------------------------------------------------------

    \108\ FRA-2021-0032-12240.
---------------------------------------------------------------------------

    A commenter described a situation when he was part of a freight 
train crew that had an emergency brake application in a town.\109\ 
Because the train was blocking the town's highway-rail grade crossings 
for at least 15 minutes and

[[Page 25065]]

preventing an ambulance from crossing the tracks, a dispatcher 
requested that the crew cut a crossing to allow the ambulance by. The 
commenter is concerned that without a second crewmember, situations 
like this would occur, and it is unclear how long it would take a 
railroad to open a crossing for local emergency responders.
---------------------------------------------------------------------------

    \109\ FRA-2021-0032-0970.
---------------------------------------------------------------------------

    A commenter expressed several safety concerns as a freight train 
conductor for over 19 years.\110\ For instance, the commenter expressed 
frustration that railroads do not keep track of incidents in which 
trains with two crewmembers saved lives or prevented accidents. He 
explained that he has crewed trains involved in accidents at rail-
highway grade crossings and derailments of cars transporting hazardous 
materials, and how two crewmembers can more easily prevent harm to the 
public by taking quick action or relaying information to emergency 
responders. He also expressed concerns with a one-person train crew 
suffering from fatigue.
---------------------------------------------------------------------------

    \110\ FRA-2021-0032-0594.
---------------------------------------------------------------------------

    A commenter described that he is both a locomotive engineer and 
conductor who has experienced firsthand why it is imperative to public 
safety that each train have a minimum of two crewmembers.\111\ The 
commenter described an incident in which the train he was conducting 
crashed into a car at a highway-rail grade crossing during winter. The 
commenter explained that, with two crewmembers, he was free to help the 
driver of the motor vehicle that was in a ditch, while the engineer 
stayed with the locomotive to coordinate with local emergency 
responders, monitor the air brake system, and perform other duties 
necessary to maintain the safety of rail operations.
---------------------------------------------------------------------------

    \111\ FRA-2021-0032-0226.
---------------------------------------------------------------------------

    An individual commented that he has over twenty years experience as 
a conductor and engineer for a Class I freight railroad and raised many 
safety issues.\112\ For instance, the commenter expressed concern that 
a one-person train crew that significantly relies on PTC and other 
technologies to safeguard and operate the train will encounter 
difficulties when one or more technologies fail or are unavailable as 
the person's ability to operate in manual mode could have deteriorated 
from disuse and that there are examples of this problem in the airline 
industry. The commenter also made a case for redundancy, noting that in 
the motor vehicle context, Federal law mandates cars be manufactured 
with seat belts and States enforce laws governing the use of seat belts 
even though air bags could have arguably replaced the seat belt. The 
commenter pointed out that, in his experience, railroads have largely 
held both crewmembers responsible for the safe operation of the train 
and compliance with operating rules and practices because doing so 
enhances safety.
---------------------------------------------------------------------------

    \112\ FRA-2021-0032-12808.
---------------------------------------------------------------------------

    Additionally, this same commenter stated that he disagreed with 
railroad commenters who suggested a conductor in a truck could 
substitute for a conductor on the train. He commented that he is 
familiar with a territory that would not be accessible by truck and, 
therefore, a conductor in a truck would be delayed getting to and 
fixing a problem involving the train. In addition, the commenter stated 
that a locomotive engineer can often determine the approximate location 
of a broken knuckle and a conductor can replace it with a new knuckle 
as a relatively routine repair. He stated that in his short experience, 
he has fixed three broken knuckles and took 30 to 45 minutes to make a 
replacement. He also described an incident where he changed a knuckle 
even though the railroad sent a carman out to do it, and he was done 
with the repair before the carman arrived about 90 minutes later.
    This same commenter also described a situation with a one-person 
train that operates into a mile-long tunnel on the territory he works. 
According to the commenter, because the tunnel does not have any 
ventilation, if the train has any issues where it might have to stop in 
the tunnel, the crew is instructed to cut the crew's locomotives from 
the train and get out of the tunnel before the tunnel fills with carbon 
monoxide. During this tunnel operation, the commenter theorized that it 
would be impossible for a one-person crew to create enough pin slack to 
separate the locomotives from the rest of the train to escape the 
tunnel by operating the locomotives.
    During FRA's public hearing, a commenter identified herself as a 
BLET National Auxiliary, Second Vice President, and Legislative 
Representative from Lakeside, Nebraska.\113\ The commenter also 
identified herself as the concerned wife of a BNSF Railway Company 
(BNSF) locomotive engineer whom she does not want to operate trains 
alone, noting in particular a past medical event. She also expressed 
concern about a one-person train crewmember suffering from fatigue, 
isolation, and depression. Further, the commenter was concerned that 
training programs for one-person train crews will be inadequate, noting 
that when railroads removed the brakeman position to reduce train crew 
size to two crewmembers, the quality of the training was reduced to 
accommodate the large number of brakemen who were trained for conductor 
positions.
---------------------------------------------------------------------------

    \113\ FRA-2021-0032-13184.
---------------------------------------------------------------------------

    During FRA's public hearing, another commenter stated he was a 
locomotive engineer for UP for almost 20 years, and the idea of a one-
person train crew is unsafe because it would take away half of the 
decision-making team.\114\ The commenter described how a two-person 
crew goes through their paperwork together, discussing slow orders, 
train makeup, and temporary restrictions. He said that organizing the 
crew's paperwork and planning the shift's operation will not always be 
easy because, with so many documents, rules, and temporary rules, one 
person could overlook a safety concern and make a mistake the other 
crewmember could have otherwise caught. The commenter also raised 
concern that, although a one-person train crew may be able to perform 
certain tests and inspections alone or with a utility employee, a 
conductor assigned to the train provides a valuable oversight role, and 
``it's just more cohesive to have that second person [remain with the 
train] for the entire trip.'' \115\ Further, the commenter stated that 
toward the end of a tour of duty, when a train approaches a crew 
change, the crew has many responsibilities that are time-sensitive and 
would be difficult for a one-person crewmember to complete as quickly 
or efficiently.
---------------------------------------------------------------------------

    \114\ FRA-2021-0032-13184.
    \115\ FRA-2021-0032-13184.
---------------------------------------------------------------------------

    A commenter, who described herself as the spouse of a railroad 
worker and a person with significant interest in the rulemaking largely 
because of her many work experiences in first responder positions 
including as a 911 dispatcher and working in an ambulance, fire truck, 
and police car stated that she has spoken publicly on the topic of 
blocked crossings and her opposition to one-person train crews.\116\ 
The commenter stated that she has collected anonymous statements from 
railroaders regarding their experiences, describing accidents and 
possible scenarios that could cause delays or additional safety 
concerns if railroads use one-person train crews, including concerns 
about the limitations of PTC when traveling at restricted speed and 
having to visually verify switches, and the limitations of global 
positioning system software to detect which track the train will be 
operating over and how a second crewmember

[[Page 25066]]

could provide backup in detecting if the train was lined to switch to 
the wrong track. The commenter also echoed many other concerns raised 
by individual commenters.
---------------------------------------------------------------------------

    \116\ FRA-2021-0032-12819.
---------------------------------------------------------------------------

    An individual commented in strong support of a national, minimum 
two-person train crew requirement as a proactive safety 
precaution.\117\ This individual stated that she is concerned about 
public and environmental exposure to hazardous materials from accidents 
and non-accidental spills and is especially concerned about a one-
person crew freight train transporting waste flowback from the fracking 
process that may have both known and unknown hazards.
---------------------------------------------------------------------------

    \117\ FRA-2021-0032-13111.
---------------------------------------------------------------------------

    A commenter noted railroad rules that impose critical focus zones 
(CFZ) in his comment in support of the NPRM.\118\ The commenter pointed 
to the CFZ rule of the Canadian National Railway Company (CN), which he 
stated was in effect even with PTC, thereby showing a need for a two-
person train crew even in PTC territory. The commenter stated that 
removing CFZ operating requirements and a two-person crew would 
certainly degrade safety given how a CFZ rule with a two-person crew 
greatly improves visibility and safety during train movements.
---------------------------------------------------------------------------

    \118\ FRA-2021-0032-12333. FRA notes that there are no Federal 
requirements that a railroad establish operating rules or practices 
for a CFZ but that some railroads voluntarily establish them in 
certain territories to reduce distractions, especially for the 
locomotive engineer. For example, a crewmember other than the 
locomotive engineer may be required to make all radio communications 
in the CFZ, and any crew communications are required to be limited 
to duties related to the train's immediate operation.
---------------------------------------------------------------------------

3. Federal Congressional Commenters
    One comment signed by 54 House members stated their strong support 
for FRA's NPRM to enforce a minimum of two crewmembers in most 
passenger and freight rail operations, as they viewed the rule as 
necessary to ensure the safety of communities.\119\ This comment urged 
FRA to act expeditiously in finalizing the strongest rule possible, 
finding crew size a fundamental safety issue. These commenters noted 
that commercial airlines and boats have at least two crewmembers, and 
that technology such as PTC cannot replace the expertise and quick-
thinking nature of human beings acting together as a team to operate 
trains and respond to unanticipated events. These 54 House members also 
supported a two-person train crew mandate out of concern that ``some 
freight railroads are operating trains that are extremely heavy and 
miles-long, which impact safe handling, increase wear and tear, and 
cause blocked crossings which in turn impede motorists' travel and 
encourage dangerous pedestrian behavior.'' These commenters also stated 
that ``railroads successfully sued in court to overturn . . . [S]tates' 
laws'' mandating minimum crew size requirements, and courts found that 
``the [F]ederal government has jurisdiction over crew size 
requirements.'' This group of lawmakers also concluded that the public 
needs ``the safety benefits and uniform protection that [a rule] on 
minimum train crew size [safety] would provide.''
---------------------------------------------------------------------------

    \119\ FRA-2021-0032-12809 (duplicate comment filed at FRA-2021-
0032-12971).
---------------------------------------------------------------------------

    Two of these House members, Rep. Donald M. Payne, Jr. and Rep. Dina 
Titus, also co-signed a second comment that expressed strong support 
for the proposed rule, especially raising concerns with freight trains 
that they note have grown in both length and weight, which adds to the 
complexity of safe handling of those trains and contributes to greater 
maintenance needs.\120\ This jointly filed comment also raised concerns 
about anticipated delays in resolving train problems when there is only 
one crewmember. These congressional members stated their concern that 
local first responders are negatively impacted by a one-person train 
crew because of delays in unblocking crossings. This comment echoed 
FRA's description in the NPRM of the safety benefits that two 
crewmembers can provide for both operating the train and responding to 
any unanticipated events, including those that PTC was not designed to 
prevent.
---------------------------------------------------------------------------

    \120\ FRA-2021-0032-11185.
---------------------------------------------------------------------------

    Another of these 54 House members, Sharice L. Davids, filed a 
second comment to emphasize her support for the proposed rule and her 
concern that having one person responsible for a massive train hauling 
hazardous materials jeopardizes the safety of crews and the public at 
large.\121\ Rep. Davids also commented that a national two-person crew 
requirement is important to secure some of the nation's most critical 
supply chain routes at a time when there is increased pressure on the 
supply chain.
---------------------------------------------------------------------------

    \121\ FRA-2021-0032-10917.
---------------------------------------------------------------------------

    FRA received at least two individually filed comments from House 
members who represent New Jersey districts and expressed support for 
the proposed requirements in the NPRM. Rep. Jefferson Van Drew wrote 
that he supported FRA's proposed rule because of his understanding that 
``[r]ail transportation is safer when workers have a co-worker 
available to watch their back and assist them with difficult or 
dangerous tasks.'' \122\ Rep. Van Drew emphasized that the final rule 
should also include passenger rail operations, and he urged FRA to 
strengthen the requirements to ensure the safest environment for rail 
workers. Similarly, Rep. Christopher Smith commented that he is 
strongly supportive of all trains in New Jersey having at least two 
crewmembers to ensure public safety and proper operation of critical 
infrastructure.\123\ Rep. Smith stated that research indicates a two-
person train crew team would have a greater ability to notice and 
correct errors or problem-solve during an emergency than would a one-
person train crew. He raised safety concerns with a one-person train 
crew operating a long train that is transporting hazardous material 
through densely populated areas and concluded that a two-person 
requirement would best protect the public, preserve confidence in rail 
transportation, and safeguard communities.
---------------------------------------------------------------------------

    \122\ FRA-2021-0032-10347.
    \123\ FRA-2021-0032-13188.
---------------------------------------------------------------------------

4. State and Local Governmental Commenters
    Several State and local government officials and organizations 
commented in support of the NPRM. For example, the National League of 
Cities, a nonpartisan organization comprised of city, town, and village 
leaders that are focused on improving the quality of life for their 
constituents, commented that it believes the presence and training of 
railroad crew is a matter of safety.\124\ This organization supported 
the NPRM and stated the hazard of reduced crews undermines the safe and 
efficient movement of trains and puts local first responders in unsafe 
situations during rail incidents and accidents.
---------------------------------------------------------------------------

    \124\ FRA-2021-0032-10696.
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    Michigan State Representative John Cherry commented that having a 
second crewmember could be the difference between life and death for 
the crew and the community.\125\ Representative Cherry's comment stated 
a second crewmember is needed to help with situational awareness, 
prevent fatigue, and relay critical information to emergency responders 
if one crewmember is incapacitated. Similar comments were made by other 
Michigan State Representatives including Alex Garza,\126\ David 
LaGrand,\127\ and Padma

[[Page 25067]]

Kuppa,\128\ and Michigan State Senators Rosemary Bayer \129\ and Erika 
Geiss.\130\
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    \125\ FRA-2021-0032-9545.
    \126\ FRA-2021-0032-11021.
    \127\ FRA-2021-0032-10993.
    \128\ FRA-2021-0032-9906.
    \129\ FRA-2021-0032-11005.
    \130\ FRA-2021-0032-10585.
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    Dinah Sykes, Kansas Senate Minority Leader, commented in strong 
support of the NPRM because it will establish a consistent, nationwide 
standard that will reduce safety risks.\131\
---------------------------------------------------------------------------

    \131\ FRA-2021-0032-9816.
---------------------------------------------------------------------------

    Patrick Diegnan, Jr., New Jersey State Senator and Transportation 
Chair, stated that he is concerned with the safety of both freight and 
passenger trains that operate with great frequency through densely 
populated areas.\132\ Senator Diegnan also attributed New Jersey's 
positive safety record in recent years to trains operating with no 
fewer than two crewmembers.
---------------------------------------------------------------------------

    \132\ FRA-2021-0032-10588.
---------------------------------------------------------------------------

    Aimee Winder Newton and Arlyn Bradshaw, two members of the Salt 
Lake County Council in Salt Lake City, Utah, commented in support of 
the NPRM because advancements in technology, such as PTC, improve 
safety but are not a substitute for a train's on-board 
crewmembers.\133\
---------------------------------------------------------------------------

    \133\ FRA-2021-0032-10287.
---------------------------------------------------------------------------

    Sonoma-Marin Area Rail Transit District (Sonoma-Marin), a State of 
California publicly-owned, 95-mile railroad, commented that it 
currently operates both passenger and freight rail service with two-
person train crews and hosts tourist railroads that operate with at 
least a two-person train crew.\134\ Sonoma-Marin stated that it 
supports FRA's efforts to create the safest operating environment for 
communities, railroad personnel, and customers. Each of the railroad's 
freight train crewmembers is qualified as both a locomotive engineer 
and a conductor, and the same combination is used for passenger 
operations, although periodically the second crewmember is only 
qualified as a conductor. In passenger service, Sonoma-Marin uses a 
PTC-equipped diesel multiple-unit fleet with two- and three-car 
consists. Sonoma-Marin also stated that it currently uses a 24-hour 
dispatch center and that crewmembers can directly communicate with one 
another.
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    \134\ FRA-2021-0032-11211. Sonoma Marin's trade name is SMART.
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    Transportation for America, an advocacy organization for local, 
regional, and State leaders, supported FRA's action to require at least 
two crewmembers on most trains but expressed concern that the NPRM did 
not go far enough. Transportation for America advocated for requiring 
passenger operations to have three or four crewmembers and requiring a 
two-person crew minimum for any of the proposed exceptions for 
passenger and freight operations that operate over highway-rail grade 
crossings.\135\
---------------------------------------------------------------------------

    \135\ FRA-2021-0032-11186.
---------------------------------------------------------------------------

    Citizens Acting for Rail Safety--Twin Cities (CARS-TC), a 
community-based organization that is a regional chapter of Citizens 
Acting for Rail Safety, commented that the size of train crews is a 
public safety matter and opined that high hazard freight trains require 
a four-person train crew.\136\
---------------------------------------------------------------------------

    \136\ FRA-2021-0032-10731. Citizens Acting for Rail Safety 
describes itself as a regional, non-partisan, grassroots advocacy 
group that works with residents, legislators, and agency officials 
to improve rail safety to benefit the health, safety, and security 
of people, wildlife and the environment.
---------------------------------------------------------------------------

FRA's Response
    The vast range of commenters supporting the NPRM, including 
Federal, State, and local representatives, and organizations that 
represent communities and employees, reflects the interest that the 
public has in FRA regulating the safety issues regarding train crew 
size. The comments supporting the NPRM largely corroborated FRA's 
background in the NPRM describing the issues and why additional safety 
requirements are necessary. In FRA's experience with regulating and 
inspecting the rail industry, and as described by research and reports 
of incidents in the NPRM, conductors and other crewmembers not assigned 
to operate the locomotive or train play an active role in maintaining 
the safe operation of the train and safeguarding their fellow employees 
and the public. The comments supporting the NPRM help provide context 
for the safety issues described in the NPRM concerning the significant 
role of a conductor or second crewmember; the need to have technology 
installed to stop a train when a one-person train crewmember becomes 
incapacitated; and the need to establish minimum communication and 
other requirements to mitigate hazards arising from both routine 
operations and unplanned incidents such as derailments, accidents, and 
mechanical breakdowns. The many anecdotal comments from individuals 
supplement the research and reports as important source information for 
the contributions of a two-person train crew team.\137\
---------------------------------------------------------------------------

    \137\ Some labor organization commenters, such as TTD and SMART-
TD, highlighted FRA's Confidential Close Call Reporting System 
(C3RS) as a program that might help to inform this rule but raised 
concerns about the low participation rate among railroads. C3RS is a 
voluntary program that provides employees of participating railroads 
the opportunity to report unsafe events and conditions 
confidentially. See https://railroads.dot.gov/railroad-safety/divisions/safety-partnerships/c3rs/confidential-close-call-reporting-system-c3rs (providing an overview, a list of 
participating railroads, a description of stakeholders, and answers 
to frequently asked questions including how railroads, labor 
organizations, and FRA use data collected through the program). 
While FRA agrees that C3RS could be informative, e.g., because the 
program periodically issues confidential ``alert bulletins'' to 
stakeholders and issues non-confidential information through 
publicly available newsletters, FRA is unaware of any such alert or 
newsletter that identified an issue that directly relates to the 
safety of one-person train operations. Also, because FRA desires 
greater rates of participation in the program than the approximately 
25-30 current or committed railroad participants, none of which 
include any Class I freight railroads, FRA is currently engaged in 
efforts to promote voluntary participation in C3RS through the RSAC 
process. See https://rsac.fra.dot.gov/tasks, RSAC Task 2022-03.
---------------------------------------------------------------------------

    In addition, FRA agrees with these commenters that this rule is 
needed because PTC is not a solution by itself. As of September 2023, 
PTC technology is governing rail operations on approximately 58,787 
route miles, representing approximately 42% of the rail network in the 
United States. Although this is a significant achievement, it means 
that most railroad route miles in the United States are currently not 
governed by a PTC system. Even on PTC-governed main lines, railroads 
experience unplanned outages and planned outages of their PTC systems. 
For example, in March 2023, BNSF and the National Railroad Passenger 
Corporation (Amtrak) experienced unplanned outages of their PTC 
systems, and NS experienced an unplanned outage of its PTC system in 
August 2023, impacting operations of both the host railroad and its 
tenant railroads. Also, during 2023, several Class I railroads, 
commuter railroads, and Amtrak temporarily disabled their PTC systems 
to facilitate planned infrastructure upgrades or capital projects. 
Finally, although railroads experiencing planned or unplanned outages 
of their PTC systems comply with certain safety requirements,\138\ the 
NPRM clarified that ``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.'' \139\
---------------------------------------------------------------------------

    \138\ See, e.g., 49 CFR 236.1021(m), 236.1029(b).
    \139\ 87 FR 45581.
---------------------------------------------------------------------------

D. Tourist Railroad and Railroad Museum Industry Comment That Asserted 
the NPRM Would Have No Impact

    Heritage Rail Alliance, Inc., the primary trade organization for 
the tourist railroad and railroad museum industry, commented that the 
NPRM appears to impact minimally, if at all,

[[Page 25068]]

the operating practices of both non-general and general system tourist 
railroads.\140\ The commenter's informal survey found that its member 
railroads are using two-person train crews and that FRA was correct to 
conclude that tourist railroads are unlikely to switch to one-person 
train crew operations.
---------------------------------------------------------------------------

    \140\ FRA-2021-0032-11017.
---------------------------------------------------------------------------

FRA's Response
    In the NPRM, FRA stated that the agency is unaware of any tourist 
train operation on the general railroad system of transportation that 
operates with a one-person train crew.\141\ Heritage Rail Alliance, 
Inc.'s comment verified that the final rule will have minimal to no 
impact on non-general and general system tourist and museum train 
operations. FRA notes, however, this final rule provides an exception 
for tourist train operations that are not part of the general railroad 
system of transportation, which is contained in Sec.  218.125.
---------------------------------------------------------------------------

    \141\ A comment was received from the Strasburg Rail Road, which 
has both tourist and short line freight operations, but that comment 
is discussed under the heading ``Short Line and Regional Freight 
Railroads'' as the comment described one-person train operations 
concerning the railroad's freight operations or work trains, not its 
tourist operations.
---------------------------------------------------------------------------

E. Comments Opposing the NPRM

    The NPRM included a background discussion of the state of current 
operations, including the existing Federal safety requirements and 
projected impact of the proposed crew size safety requirements on 
existing and future one-person train crew operations. The following 
summary describes comments received from entities and individuals 
including members of Congress, passenger train operators, short line 
and regional freight railroad commenters, and Class I freight railroad 
commenters. FRA did not identify any labor organizations, tourist 
railroads, or State or local governmental commenters that opposed the 
NPRM. In the summary of the comments from Class I freight railroads and 
similar rail industry commenters, FRA responded to several additional 
subjects that were addressed by these commenters. For instance, 
comments were received regarding alternative crewmember arrangements 
that the industry referred to as expeditors, ground-based crewmembers, 
or ground-based conductors. The Class I freight railroads and similar 
industry commenters also covered the subjects of train operations in 
other countries, new technology and automated operations, the 
transportation of hazardous materials, risk assessments and FRA's 
review standard, and remote control operations. FRA's responses reflect 
the agency's position on the comments and how FRA has responded in the 
final rule as compared to the NPRM.
1. Congressional Commenters
    The two Congressional comments opposing the rule detailed their 
opposition and raised a variety of legal, policy, and safety concerns 
that overlapped with other comments. For example, U.S. Senator Roger F. 
Wicker, and Rep. Eric A. Crawford stated their concern that the 
proposed requirements would have a significant economic impact on a 
substantial number of small entities, a concern shared by short line 
and regional freight railroad commenters.\142\ Senator Wicker commented 
that ``[t]he NPRM fail[ed] to acknowledge that changes to operations 
and infrastructure, may produce benefits, including safety benefits 
[and that u]nder the logic in the NPRM, the specter of risk is 
sufficient to prohibit preemptively any innovation.'' \143\ Further, 
Senator Wicker commented that FRA has other ways to address safety 
concerns raised in the NPRM such as raising the random testing drug or 
alcohol testing rates, requiring inward facing cameras, or using other 
technological advances.
---------------------------------------------------------------------------

    \142\ FRA-2021-0032-13052 and FRA-2021-0032-13018.
    \143\ FRA-2021-0032-13052 at 1.
---------------------------------------------------------------------------

    Rep. Crawford expressed his view that FRA failed to comply with the 
Administrative Procedure Act, because he sees the NPRM as lacking a 
rational basis, and the Regulatory Flexibility Act, because he views 
the NPRM as failing to determine whether the proposed rule would have a 
significant economic impact on a substantial number of small entities. 
Rep. Crawford commented that those legal concerns may be secondary to 
his perception that FRA may be lacking the authority to promulgate a 
rule based on case law limiting agency action under the ``major 
questions doctrine.'' Rep. Crawford commented that the NPRM failed to 
adequately identify a particular problem that needs to be addressed, in 
addition to taking an overly prescriptive approach that does not 
encourage innovation or growth or competition among regulated entities. 
Rep. Crawford explained that he did not find FRA's support for the rule 
persuasive and he suggested that FRA should have gotten more input from 
the industry before publishing the NPRM.
FRA's Response
    In comment responses below, FRA addresses in detail specific issues 
raised by the Members of Congress, as many of these issues were also 
raised by certain industry commenters. Other issues raised are 
addressed in the RIA and below in Section IV.B, Regulatory Flexibility 
Act and Executive Order 13272. The legal authority discussion in the 
Executive Summary, above, describes FRA's authority to issue this rule. 
Regarding additional industry input, FRA points to the extensive 
history of engagement with industry on this matter, including the 
following: (1) FRA pursued a collaborative approach on this subject 
matter in 2013 and 2014, but was unable to obtain an industry 
recommendation; \144\ (2) FRA extended the comment period to 146 days 
upon request, which is significantly longer than the 60-day period 
originally scheduled; and (3) FRA provided a public hearing, which was 
widely attended and at which all commenters who wished to testify were 
provided an opportunity to do so.
---------------------------------------------------------------------------

    \144\ 81 FR 13918, 13935-39 (Mar. 15, 2016) (describing in an 
NPRM for a previous rulemaking on this same subject FRA's efforts to 
obtain a consensus recommendation from the Railroad Safety Advisory 
Committee, a forum for collaborative rulemaking and program 
development that included representatives from all the agency's 
major stakeholder groups).
---------------------------------------------------------------------------

    FRA disagrees with Senator Wicker's comment that the proposed rule 
failed to recognize the benefits of innovation, as his comment was 
directed to FRA's explanation for how the introduction of technology or 
operational changes may introduce new risks. As clarification, the NPRM 
explained that a risk assessment is useful as a formal process to 
identify, evaluate, and eliminate or reduce any hazards identified to 
within a range of acceptability.\145\ The risk assessment process 
therefore provides the railroad with an objective way of qualitatively 
or quantitatively showing how the technology or operational change is a 
safety benefit.
---------------------------------------------------------------------------

    \145\ 87 FR 45582.
---------------------------------------------------------------------------

2. Passenger Operations
    The Utah Transit Authority (UTA), which operates the commuter rail 
service called ``FrontRunner,'' commented that FRA should consider a 
different, less stringent approach in the final rule for passenger 
legacy operations especially because UTA's FrontRunner service was 
established in 2008 and FRA last approved that operation's emergency 
preparedness plan on February 25, 2022.\146\ UTA's comment reflected 
that it would prefer

[[Page 25069]]

an option that did not require it to file for special approval, and 
that it was concerned about the added expense and complexity of 
complying with training a second crewmember should its current one-
person train crew operation be disapproved. UTA suggested that FRA 
should consider expanding the current definition of ``train or yard 
crew'' in Sec.  218.5 to include a second person like UTA's train host. 
UTA's comment also included alternatives that would expedite the review 
process for existing passenger operations or otherwise reduce costs.
---------------------------------------------------------------------------

    \146\ FRA-2021-0032-10984.
---------------------------------------------------------------------------

    The Denver Regional Transportation District (Denver RTD) filed a 
comment describing its passenger operation and requesting FRA consider 
the information in drafting a possible final rule.\147\ For instance, 
Denver RTD requested that FRA consider whether an additional review 
process as proposed is necessary, stating FRA's prior approvals and 
requirements imposed on Denver RTD's operation were sufficient to 
address any safety concerns. Denver RTD also questioned whether FRA was 
correct to characterize the Denver RTD operation as a one-person train 
crew legacy passenger operation in the NPRM as Denver RTD believes its 
second qualified person already meets FRA's requirements for a train or 
yard crewmember.
---------------------------------------------------------------------------

    \147\ FRA-2021-0032-12177.
---------------------------------------------------------------------------

    The American Public Transportation Association (APTA) filed a 
comment that raised two issues of concern for its passenger rail 
operation members.\148\ First, APTA raised concerns regarding the 
proposed risk assessment requirements, which are addressed below in 
this discussion of comments and conclusions under the risk assessment 
heading. Second, APTA included a comment similar to UTA's concern about 
the qualifications of a second train crewmember who could perform 
duties under an emergency preparedness plan.
---------------------------------------------------------------------------

    \148\ FRA-2021-0032-12947.
---------------------------------------------------------------------------

    The Commuter Rail Coalition (CRC) also commented with some concerns 
but did not assert whether the association or its members supported or 
opposed the proposed rule.\149\ CRC commented that all major commuter 
railroads operating today provide at least two qualified individuals 
who are trained to support the safe operation of passenger trains, but 
that the ``proposed rule would likely have a direct impact on at least 
two commuter railroads that operate with at least two employees on each 
train but would likely still require a special approval.'' \150\ Like 
the other passenger operation commenters, CRC requested that FRA 
consider amending the definition of train crew or adding an exemption 
so that the rule accommodates as two-crewmember operations those 
passenger operations that use a second person who does not perform 
functions connected with the movement of the train. CRC's comment was 
also similar to APTA's in its approach to the risk assessment, and 
which FRA addresses below in this discussion of comments and 
conclusions under the risk assessment heading. Further, CRC requested 
that FRA consider providing railroads with additional time to comply 
with any new requirements, suggesting that operations may need up to a 
year to implement changes.
---------------------------------------------------------------------------

    \149\ FRA-2021-0032-12172.
    \150\ Id. at 3.
---------------------------------------------------------------------------

FRA's Response
    In the NPRM, the background section discussed FRA's awareness of at 
least two passenger train operations in which the railroads do not use 
train crewmembers that meet the definition of ``train or yard crew'' in 
Sec.  218.5, notably because the second person does not perform 
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.\151\ FRA stated that although such passenger 
train operations may satisfy the requirements of 49 CFR part 239,\152\ 
railroads would need to seek FRA's special approval under proposed 
Sec.  218.131 to continue such legacy train operation staffing 
arrangements.\153\ As described above, FRA received comments from both 
of the passenger train operations identified, Denver RTD and UTA's 
FrontRunner. FRA agrees with those passenger train operators that such 
legacy one-person train operations have been determined to meet the 
safety requirements of FRA's passenger train emergency preparedness 
rule and reopening those inquiries could be unduly disruptive to those 
operations. Simply put, because the passenger train emergency 
preparedness requirements overlap with many of the same issues that are 
addressed by a special approval petition in this final rule, FRA does 
not find it necessary to require a risk assessment and the opportunity 
for public input in the approval process for these legacy passenger 
train operations that already have approved emergency preparedness 
plans. However, FRA is not willing to forgo the benefits of such 
requirements for the initiation of passenger railroad train operations 
staffed with a one-person train crew as required under Sec.  218.131. 
Accordingly, the final rule, in Sec.  218.125(e), provides an exception 
for each passenger one-person train operation established before the 
effective date of this final rule with an approved passenger train 
emergency preparedness plan under part 239. Further, his final rule 
does not require these legacy operations to provide FRA with written 
notification of the operation, as it has with legacy freight train 
operations staffed with a one-person train crew in Sec.  218.129 of 
this final rule, because the existing filing requirement for emergency 
preparedness plan approval under part 239 of this chapter already 
provides FRA with sufficient notice. As always, FRA also invites these 
legacy operations to approach FRA with any specific questions 
concerning their responsibilities under either part 239 or this final 
rule.
---------------------------------------------------------------------------

    \151\ 87 FR at 45580, n. 162 (identifying the following known 
passenger train services operating with a one-person train crew: (1) 
Denver RTD/Denver Transit Operators; and (2) UTA's FrontRunner).
    \152\ 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).
    \153\ 87 FR at 45580.
---------------------------------------------------------------------------

    However, FRA disagrees with the comments suggesting that FRA expand 
the current definition of ``train or yard crew'' in Sec.  218.5 to 
include a second person like those used in the legacy one-person 
passenger train operations. In those passenger legacy operations, the 
second person is not typically doing work under the hours of service 
laws and is not involved with the train's movements. Thus, for purposes 
of safe rail operations, FRA does not consider that type of rail 
employee to be a member of the train crew and will not carve out what 
would result in a prospective exception to the two-crewmember 
requirement for existing passenger train operations in this final rule.
3. Short Line and Regional Freight Railroads
    The American Short Line and Regional Railroad Association (ASLRRA), 
on behalf of its short line and regional railroad members, provided 
testimony at the public hearing and submitted a 143-page comment.\154\ 
ASLRRA commented that it represents approximately 600 Class II and III 
railroads, which operate 47,500

[[Page 25070]]

miles of track or approximately 29 percent of the national freight 
network, and employ approximately 18,000 people. ASLRRA raised a wide 
range of issues including legal, policy, economic, and factual concerns 
in opposition to the NPRM.
---------------------------------------------------------------------------

    \154\ FRA-2021-0032-13033.
---------------------------------------------------------------------------

    Like the comment filed by the U.S. Small Business Administration's 
Office of Advocacy \155\ (SBA-Advocacy), described further in the Final 
Regulatory Flexibility Analysis below, ASLRRA contends that the NPRM 
underestimated the number of small railroads that would be impacted, 
omitted costs for small railroads to comply, and miscalculated the 
costs on small railroads to comply with the special approval process. 
To support this position, ASLRRA surveyed its members and provided a 
statistical extrapolation based on the results of the survey.\156\ 
ASLRRA commented that the number of its member railroads that currently 
operate with some type of one-person train crew is approximately 420 
railroads, a much greater number than the seven such short lines FRA 
identified. ASLRRA was also concerned that the NPRM treated small 
entities in the same way as Class I railroads when transporting certain 
types of hazardous materials because the small railroad exception would 
not apply under those circumstances.\157\ ASLRRA commented that the 
NPRM ``also declines to provide regulatory relief or consider less 
burdensome alternatives for small businesses'' \158\ that would benefit 
from ``a performance standard.'' ASLRRA also requested that FRA 
consider providing small railroads with more time to comply to allow 
for proper planning, operational changes, and hiring and training of 
additional crewmembers, if necessary. ASLRRA opposed the proposed 
prohibition on transporting certain types or quantities of hazardous 
materials with a one-person train crew. ASLRRA estimated that 
approximately 114 short lines currently operate a train with a one-
person crew carrying quantities or types of hazardous materials that 
would require a minimum two-person crew under the proposal, including 
five railroads that had representatives testify at the public 
hearing.\159\ ASLRRA commented that railroads, by statute, are under a 
common carrier obligation to provide transportation of goods on 
reasonable request and may not refuse to provide service merely because 
it would be inconvenient or unprofitable.\160\ ASLRRA's comment 
suggested that FRA previously determined that an alerter was 
unnecessary for rail safety at speeds of 25 mph or less when the agency 
promulgated a final rule on locomotive safety standards in 2012 without 
distinguishing the risk between a two-person train crew and a one-
person crew.\161\ Further, ASLRRA commented that it costs approximately 
$20,000 to equip a locomotive with an alerter, approximately 83 
railroads currently operate with one person in the locomotive cab using 
locomotives that are not equipped with an alerter, that it may not be 
possible to retrofit some older models of locomotives, and to meet the 
proposed requirements, these 83 railroads would need to equip at least 
half of their locomotives.\162\
---------------------------------------------------------------------------

    \155\ FRA-2021-0032-13007.
    \156\ FRA-2021-0032-13033, att. D (providing a summary and 
statistical analysis of the survey).
    \157\ FRA-2021-0032-13033 at 41.
    \158\ FRA-2021-0032-13033 at 10 and 13.
    \159\ FRA-2021-0032-13033.
    \160\ Id. citing 49 U.S.C. 11101(a) and offering the explanation 
that ``[w]hile the obligation applies only to regulated traffic 
(e.g., coal, grain, chemicals, etc.), the Surface Transportation 
Board has historically stepped in to ensure that shippers are 
reasonably served even for exempt commodities.''
    \161\ FRA-2021-0032-1193 at 29-30 (citing 77 FR 21312).
    \162\ FRA-2021-0032-1193 at 30-31.
---------------------------------------------------------------------------

    Approximately 14 railroads or rail customers used a form letter in 
which they identified their company as a member of the ASLRRA and asked 
to incorporate the ASLRRA's comments as their comment. For example, the 
form letter was used by the Virginia Railroad Association that 
represents nine short line railroads, two Class I railroads, and 27 
other rail-related business members.\163\ Also, these form letters 
offer the same types of legal, economic, and policy comments that 
ASLRRA made in greater detail in its comment.\164\ Each form letter was 
personalized by adding one or two unique paragraphs describing the 
submitter's existing one-person train crew operations, or plans to 
introduce a one-person train crew operation, or to otherwise explain 
why the commenter company opposed the NPRM. Ironhorse Resources, Inc., 
the parent company of at least eight railroads, commented that the NPRM 
would significantly impact their existing operations because they use 
an engineer on the locomotive and a conductor located in a 
vehicle.\165\ Similarly, the Central Indiana & Western Railroad 
commented that it is a small, family-owned railroad with two full-time 
employees and two part-time employees and is concerned that the 
requirements, as proposed in the NPRM, would remove the railroad's 
option to utilize an engineer on the locomotive and a second crewmember 
in a utility vehicle.\166\ The Sandersville Railroad also commented 
that the requirements, as proposed in the NPRM, would remove the 
railroad's option to utilize an engineer on the locomotive and a second 
crewmember in a utility vehicle. Further, this railroad explained that 
the small railroad operation exception, as proposed, would not be 
manageable for its operation, although in coming to that conclusion it 
misconstrued the proposed exception as only applying to railroads that 
employ train dispatchers.\167\ The Ashtabula, Carson & Jefferson 
Railroad did not comment why it could not meet the small railroad 
operation exception as proposed but commented that it uses a one-person 
crew on its six-mile-long track with transloading operations at each 
end, operating at 10 miles per hour (mph), and a second crewmember to 
flag two unprotected highway-rail grade crossings and help with 
switching.\168\ MG Rail commented that it is a short line switching 
railroad that uses remotely controlled locomotives (RCL) in its 
operations with a one-person crew and is concerned about the rule's 
potential impact on short lines generally but did not specifically 
explain how the NPRM might potentially impact its operations (as the 
NPRM did not propose requirements for trains during switching service 
and included a proposed one-person train crew exception for remote 
control operations).\169\
---------------------------------------------------------------------------

    \163\ FRA-2021-0032-12381.
    \164\ FRA-2021-0032-13033.
    \165\ FRA-2021-0032-11719 (Caney Fork & Western Railroad); FRA-
2021-0032-11720 and duplicated in FRA-2021-0032-11722 (Sequatchie 
Valley Switching Company); FRA-2021-0032-11721 (Walking Horse 
Railroad); FRA-2021-0032-11723 (Rio Valley Switching Company; 
Gardendale Railroad; Santa Teresa Southern Railroad; San Pedro 
Valley Railroad; Southern Switching Company).
    \166\ FRA-2021-0032-12301.
    \167\ FRA-2021-0032-12394.
    \168\ FRA-2021-0032-12970.
    \169\ FRA-2021-0032-12261. The Finger Lakes Railroad (FGLK) 
filed a similar comment in that it is a Class III short line that 
has uses one-person remote control operations.
---------------------------------------------------------------------------

    The Cimarron Valley Railroad (CVR) commented that it is a Class III 
short line that operates with both two-person and one-person crews and 
is concerned that the NPRM's small railroad exceptions would not apply 
to its one-person operation because the total length of its unit trains 
handled in interchange are greater than FRA's proposed limitation of 
6,000 feet for the proposed small railroad operation exception.\170\ 
CVR did not state how long these trains were nor explain why it could 
not file a special approval

[[Page 25071]]

petition for a legacy operation as proposed. Like other short line 
commenters, CVR did not request that FRA amend the exceptions or 
special approval process in the NPRM but instead requested that FRA 
withdraw the NPRM in its entirety or, alternatively, categorically 
exclude all Class II and III operations because, in its view, short 
lines already successfully operate today in this environment.
---------------------------------------------------------------------------

    \170\ FRA-2021-0032-12683.
---------------------------------------------------------------------------

    The Farmrail System, which owns two Class III short lines, Farmrail 
Corporation and Grainbelt Corporation, commented that it has used one-
person crews by utilizing a truck-based employee to accompany freight 
trains between switching assignments and with remote control 
operations.\171\ This commenter found the NPRM's proposed requirements 
complicated and did not believe the exemptions and special approval 
process provided adequate relief for short lines.
---------------------------------------------------------------------------

    \171\ FRA-2021-0032-13042.
---------------------------------------------------------------------------

    Patriot Rail commented that it is a holding company that owns 31 
short lines with operations that use one crewmember in the locomotive 
and one crewmember in a motor vehicle providing safety, logistical, and 
customer support.\172\ Overall, Patriot Rail opposes the rule for many 
of the same reasons articulated in ASLRRA's comment. Patriot Rail 
stated that it supports FRA's recognition that short line operations 
can be accomplished safely with a minimum of two crewmembers, but with 
only one person in the locomotive cab. Patriot Rail commented that some 
of the NPRM's requirements allowing for exceptions seemed arbitrary, 
such as limitations on train length and commodities, and for other 
proposed requirements for alerters, dispatching, and electronic 
communications devices. Additionally, Patriot Rail recognized the 
proposed special approval process as an option if an exception to the 
NPRM could not be met, but this short line holding company viewed the 
process as burdensome without clearly enumerated safety benefits.
---------------------------------------------------------------------------

    \172\ FRA-2021-0032-13019.
---------------------------------------------------------------------------

    The Strasburg Rail Road commented that it has tourist and short 
line freight operations that frequently permit its two crewmembers to 
leave the locomotive cab after securing the train, such as when a one-
person crewmember joins a roadway work group on the ground after 
securing the train.\173\ This railroad commented that it was concerned 
that the rule would prohibit that activity because FRA proposed that 
the one-person train crewmember must remain in the locomotive cab 
during normal operations. The Strasburg Rail Road also commented that 
it does not have locomotives equipped with alerters for its one-person 
work train operations.
---------------------------------------------------------------------------

    \173\ FRA-2021-0032-12550 (and a duplicate was filed at FRA-
2021-0032-12670).
---------------------------------------------------------------------------

    Other such railroad commenters provided testimony at FRA's public 
hearing. For example, the Director of Safety, Training, and Regulatory 
Compliance for the Rio Grande Pacific Corporation (RGPC) testified that 
its four Class III short lines operate with an engineer in the 
locomotive and a certified conductor in a utility vehicle who maintains 
contact with the engineer by radio and is assigned as a train 
crewmember.\174\ RGPC explained that this crew staffing arrangement is 
efficient for interaction with customers, preparing for the train's 
arrival at a customer's location, and protecting highway-rail grade 
crossings. RGPC is concerned that certain of the NPRM's proposed 
requirements would mean that RGPC's short lines would need to hire a 
third crewmember because their operations would be unable to qualify 
for the small railroad exception. For example, RGPC testified that its 
short lines operate trains longer than 6,000 feet, haul 20 or more 
loaded cars of hazardous materials, and do not have the means to 
conduct real-time monitoring of the train's location. RGPC also 
testified how it would be logistically difficult to move the certified 
conductor in the utility vehicle to the locomotive, and that it 
believed the proposed rule would lead RGPC's short lines to hire a 
third crewmember.
---------------------------------------------------------------------------

    \174\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------

    The Vice President of Human Resources and Safety at Florida East 
Coast Railway (FEC) testified that the railroad is currently using one-
person operations for short distance intermodal trains, but the NPRM 
would prohibit some trains because of the proposed hazardous materials 
prohibition.\175\ FEC stated that it has an extensive list of deployed 
safety technology, and it has main track equipped for up to 60-mph 
trains.
---------------------------------------------------------------------------

    \175\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------

    The General Manager of the Madison Railroad and incoming Vice Chair 
for the Railroads of Indiana group testified that the Madison Railroad 
is a short line with five full-time staff and has been operating a one-
person train crew since 1978 on its 41 miles of track at 10 mph in 
southern Indiana. Five employees are responsible for train operations 
and track and signal inspection and maintenance on the Madison 
Railroad.\176\ The testimony added to the Madison Railroad's written 
comment, which used the ASLRRA's form letter.\177\ The Madison Railroad 
testified that it operates about a mile and a half on steep 5.89 
percent grade near the Ohio River, which is mitigated by specific 
operating rules, brake system and locomotive equipment requirements, 
and additional training. According to the Madison Railroad, it has 
provided additional risk mitigation steps above FRA's minimum 
requirements. For instance, the Madison Railroad testified that it only 
operates one train at a time and the maximum train speed is limited to 
10 mph with restricted speed in effect. The Madison Railroad is 
concerned that the NPRM would lead to an overall net decrease in safety 
as any increased costs to hire a minimum of two additional employees 
would mean that the railroad would need to divert resources from 
investing in physical infrastructure and equipment.
---------------------------------------------------------------------------

    \176\ FRA-2021-0032-13184 (hearing transcript). The Railroads of 
Indiana filed a separate comment opposing the NPRM's lack of 
regulatory certainty about the likelihood of a special approval 
petition being approved and raising concerns about costs on small 
railroads. FRA-2021-0032-10228.
    \177\ FRA-2021-0032-12221.
---------------------------------------------------------------------------

    The Senior Vice President and General Manager of the Grafton and 
Upton Railroad (G&U) testified as to his diverse experiences in 
railroad operations as a conductor, a locomotive engineer, and a 
designated supervisor of locomotive engineers, and how he has operating 
experience on Amtrak's Northeast Corridor, CSX Transportation's 
mainline, and many short lines.\178\ Based on this experience, G&U 
testified that one-person crews have, both currently and historically, 
operated safely, and how doing so is a more efficient use of a short 
line's limited resources. G&U stated it has a 25-mile-long system and 
transports many hazardous materials, including propane, typically with 
a one-person crew that is certified as both a conductor and a 
locomotive engineer and a second conductor crewmember in a motor 
vehicle. G&U testified that, in addition to the proposed prohibition on 
trains with hazardous materials, it would not meet the short line 
exception in the NPRM because it operates over heavy grade. G&U also 
noted its locomotives are not currently required to have alerters. 
Overall, G&U expressed concern that the NPRM would create significant 
capital and operational costs.
---------------------------------------------------------------------------

    \178\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------

    The Vice President of Operations at Transtar, LLC, testified that 
Transtar is a holding company operating five Class

[[Page 25072]]

III short lines and one contract switching carrier.\179\ Transtar 
highlighted one of its short lines, the Texas and Northern Railway 
(T&N), which it described as seven miles of main track serving small 
customers with a one-person train crew and a conductor in a motor 
vehicle. Transtar testified that the T&N would not qualify for the 
NPRM's exceptions because it does not maintain the train's real-time 
progress or have a method of determining the proximate location if 
communication is lost with a one-person crew. Also, the T&N does not 
utilize a dispatcher, its locomotives are not equipped with alerters, 
and its track has heavy grade. Transtar also expressed concern that the 
proposed rule would force T&N, which it described as a ``low margin 
railroad,'' to increase costs and the railroad's ``customers would in 
turn either pass the increased costs onto their customers . . . or 
choose to ship [their] commodities via truck which is considerably less 
safe, and less environmentally friendly than shipping via rail.''
---------------------------------------------------------------------------

    \179\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------

FRA's Response
    In this final rule, FRA has carefully considered the track record 
of safety in these operations with the need to establish minimum 
requirements to address fundamental issues of rail safety regarding the 
operation of one-person train crews and the short line rail industry's 
claim that the proposed requirements in the NPRM would have introduced 
significant costs on approximately 63 percent of the industry through 
proposed requirements for special approvals, risk assessments, the 
installation of alerters, or the adoption of and compliance with new 
operating rules.\180\ After reviewing these comments, including the 
testimony at the public hearing that included approximately five Class 
II and III freight railroad representatives and the ASLRRA's expert on 
how their survey was conducted,\181\ FRA made the following general 
determinations: (1) although ASLRRA made a good faith effort to collect 
data from its short line and regional railroad members, the information 
submitted is insufficient to allow an independent validation of the 
survey results and differences between ASLRRA's and FRA's estimates may 
have resulted from a misunderstanding of the proposed rule's 
terminology; (2) in turn, while ASLRRA extrapolated data in good faith 
from the data collected from the responding short line and regional 
railroads, because of the potential terminology misunderstanding and 
the potential for bias in the way ASLRRA surveyed its member railroads, 
FRA cannot rely on ASLRRA's data extrapolations for purposes of the 
RIA's primary analysis; (3) FRA can address the short line and regional 
railroad industry's requests to treat Class II and III freight 
railroads differently from the Class I freight railroads, a departure 
from the NPRM, by eliminating the special approval process for some 
one-person train crew operations when certain safety requirements and 
notification requirements are met, and thereby provide greater 
regulatory certainty; (4) FRA can address the short line and regional 
railroad industry's concerns regarding the proposed prohibition on one-
person operations carrying certain quantities or types of hazardous 
materials; (5) FRA can address the short line and regional railroad 
industry's requests to provide railroads with more time to comply with 
any new minimum requirements to allow for proper planning, operational 
changes, or hiring and training of additional crewmembers, another 
revision to the NPRM; and (6) despite FRA's concerns as to the accuracy 
of ASLRRA's survey results and data extrapolations, the RIA does show 
that, even when using ASLRRA's numbers, the cost of the final rule will 
not be substantially higher because of changes made in the final rule 
from the NPRM and, therefore, FRA would still proceed with this rule 
whether or not ASLRRA's survey and extrapolation numbers were 
validated. FRA agrees with ASLRRA's comment that it may not be possible 
to retrofit some older models of locomotives, although ASLRRA did not 
describe this concern as an issue preventing existing operations from 
continuing but instead commented that approximately half the locomotive 
fleet for those existing operations would need to be retrofitted with 
an alerter. Consequently, the final rule addresses safety concerns with 
various one-person train crew operations that were raised in the NPRM, 
while providing flexibility for certain one-person crew operations by 
short lines. The following paragraphs describe FRA's response in more 
detail.
---------------------------------------------------------------------------

    \180\ ASLRRA's comment estimated that 63% of the short line 
railroad population `run some kind of 1-person operation.' FRA-2021-
0032-13033.
    \181\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------

    ASLRRA's survey suggested that because 176 short lines responded 
that they deployed a one-person train crew operation, ASLRRA could use 
statistical analysis to extrapolate and find that approximately 420 
short lines industry-wide were deploying such an operation. However, as 
noted above, FRA did not use ASLRRA's extrapolated numbers in its 
primary RIA estimate because of the potential misunderstanding of the 
proposed rule's terminology and the survey's analysis did not 
adequately address the potential for non-response bias.\182\ 
Specifically, although it cannot be determined from the survey data 
submitted, it seems plausible that short lines that perceived 
themselves as not having any type of one-person train crew operation or 
need for an exception, or otherwise not impacted by the proposed 
requirements in the NPRM, might have chosen not to respond to ASLRRA's 
survey.\183\ Thus, while FRA's

[[Page 25073]]

primary analysis in the RIA uses FRA's estimates, FRA added a 
sensitivity analysis in the RIA to demonstrate the cost of the final 
rule using ASLRRA's survey numbers. The costs based on ASLRRA's numbers 
would not dissuade FRA from finalizing this crew size safety 
requirements rule.
---------------------------------------------------------------------------

    \182\ The ASLRRA's survey was not based on a random sample of 
short line railroads and did not examine why approximately 60 
percent of ASLRRA's short line members did not respond. The survey 
used three statistical concepts to address the missing data problem; 
however, each analysis was problematic:
    (1) ASLRRA's Missing Completely at Random (MCAR) analysis 
asserted that a representative random sample (of the population) was 
available from the survey response. However, the entire population 
was surveyed and for unknown reasons some railroads did not respond. 
This would preclude MCAR analysis for the purpose of extrapolation.
    (2) A proper Missing (Conditionally) at Random (MAR) analysis 
requires that the railroads selected for the survey be grouped by 
known factors, such as commodity, and that it can be shown that a 
specific commodity grouping would have no reason to respond to the 
survey. ASLRRA's MAR analysis claimed that several variables could 
be used to achieve this grouping such as revenue, geography, and 
miles, but the means to identify the relationship of these groupings 
and survey response were not provided or cited. For example, the 
geographic regions selected were defined as four abstract areas 
lacking specific boundaries. In the analysis, miles were described 
as a factor and it was unclear if ``train miles'' (publicly 
available data on FRA's Safety Data website) were used as ``route 
miles,'' conflating how the factor could be applied. Proprietary 
revenue data was used in the analysis which prevented FRA from being 
able to independently validate the relationship between operations 
and revenue. Under 49 CFR 209.11, ASLRRA could have established a 
means to provide FRA the data for analysis, but it did not do so.
    (3) A Missing Not at Random (MNAR) analysis is the most complex 
analysis of the three and asserts that the reasoning for the missing 
data is unknown and thus more data is required to analyze. In an 
MNAR analysis, groupings may show a definitive relationship with 
response versus non-response; however, in this survey, there is no 
definitive evidence showing the reason for the non-response. To use 
an MNAR analysis, ASLRRA should have required more data showing a 
definitive relationship with non-response (e.g., by conducting a 
follow-up survey specifically targeted to the non-responding 
railroads).
    \183\ This possible explanation is most relevant to the 
discussion regarding MNAR analysis in the previous footnote, and 
this explanation is also plausible based on FRA's understanding of 
rail operations nationwide. Also, ASLRRA's survey expert testified 
at the public hearing that the association conducted its survey 
before the expert was brought onboard and how the problem is ``you 
worry that the non-responders are in some way different 
systematically from the responders [and that m]aybe it's just a case 
that . . . those short lines that are affected are most likely to 
respond.'' FRA-2021-0032-13184 at 36.
---------------------------------------------------------------------------

    Because the estimate of the potentially impacted entities resulting 
from ASLRRA's survey and comment so greatly differed from FRA's 
estimate of potentially impacted railroads, FRA sought to understand 
the reason for this discrepancy, rather than to minimize ASLRRA's 
survey results, even though those results could not be independently 
validated. For example, in response to ASLRRA's survey of its 696 short 
line members, 176 of the 280 short lines that responded reported that 
they deployed a one-person train crew operation--which stands in sharp 
contrast to the seven freight railroads FRA identified by name in the 
NPRM as known to operate a one-person train crew operation.\184\ 
Meanwhile, comments filed in response to the NPRM by holding companies 
owning multiple short lines and individual short line commenters 
revealed that, of approximately 62 short lines that self-identified as 
having a one-person train crew operation: (1) 54 short lines stated 
that they used a second train crewmember in a motor vehicle that 
intermittently assists the train--which FRA identified as a small 
railroad operation exception in proposed Sec.  218.129(c)(1)(ii); (2) 
two short lines stated that their one-person train crew operation was a 
remote control operation--which FRA identified as a small railroad 
operation exception in proposed Sec.  218.129(c)(3); (3) one short line 
identified that it used a work train with a one-person train crew--
which FRA identified as a specific freight train exception in proposed 
Sec.  218.129(c)(2); and (4) five short lines did not identify the type 
of one-person train crew operations they used or exactly how they would 
be impacted by the NPRM's proposed requirements. In reviewing the short 
line and regional railroads' comments, it appears that these commenters 
were counting all one-person train crew operations, even if the special 
approval process did not apply, because some of the one-person train 
crew operations FRA proposed for exception could not be used without 
also complying with additional requirements. Thus, FRA determined that 
the NPRM's lack of a definition for a ``one-person train crew'' was 
creating confusion.
---------------------------------------------------------------------------

    \184\ 87 FR 45578-79, FN 155.
---------------------------------------------------------------------------

    To ensure that FRA and the rail industry use the same terminology 
for the purposes of addressing one-person train crew requirements, the 
final rule includes definitions for the terms ``one-person train crew'' 
and ``one-person train crewmember.'' By defining these terms, the final 
rule clarifies that a one-person train crew includes: (1) a train 
operation with a single assigned railroad employee performing both the 
locomotive engineer's and conductor's duties; or (2) when a single 
assigned railroad employee is traveling on the train when the train is 
moving, and the remainder of the train crew, including the conductor if 
the locomotive engineer is not the assigned conductor, is assigned to 
intermittently assist the train's movements. The latter operation will 
therefore include what many short line commenters described as a one-
person operation when they used a second assigned train crewmember that 
intermittently assists the train but primarily travels in a motor 
vehicle instead of traveling on the train when the train is 
moving.\185\
---------------------------------------------------------------------------

    \185\ As is later explained in greater detail in this discussion 
of comments and conclusions, FRA's current rail safety requirements 
distinguish between a train crewmember that is assigned a single 
train and a person that performs work as a utility employee or other 
worker that may perform work for multiple trains. FRA found ASLRRA's 
survey questions drafted imprecisely with regard to this issue. For 
instance, in ASLRRA's survey, see FRA-2021-0032-13033, attachment A, 
question 4 asks a railroad to check a box if it uses on its main 
line operations ``one person in the locomotive cab, supported by a 
conductor who is supporting multiple trains simultaneously,'' when 
FRA requires a conductor to be in charge of the crew and therefore a 
conductor cannot be in charge of more than one train simultaneously. 
See 49 CFR 242.7 (defining ``conductor'').
---------------------------------------------------------------------------

    In the NPRM, FRA described the agency's understanding that fewer 
freight short line and regional railroads are using one-person train 
crew staffing arrangements than in 2016, as FRA identified fourteen 
Class II and III railroads operating single-person train operations in 
2016 and only seven of those same freight railroads maintaining such 
operations in 2022.\186\ FRA requested comments on any additional such 
railroads conducting one-person train crew operations and the interest 
of such railroads to conduct one-person train crew operations in the 
future.\187\
---------------------------------------------------------------------------

    \186\ 87 FR 45578.
    \187\ 87 FR 45579.
---------------------------------------------------------------------------

    Based on the comments and the added definitions concerning one-
person train crews, FRA has revised its estimate of the number of 
existing railroad operations impacted by each requirement in the RIA to 
this final rule. FRA estimates that there are 75 Class II and III 
railroad legacy freight one-person train crew operations, excluding 
those one-person train crew operations that would fall into one of the 
other exceptions covered in the final rule by Sec.  218.125 through 
Sec.  218.129. This estimate was based on the 62 commenters that 
described an existing one-person operation, even counting the eight 
commenters that did not describe an operation that definitively would 
fit into the one-person train crew operation as FRA is defining such an 
operation for this final rule. Further, this estimate includes the 
seven one-person train crew operations identified in the NPRM and the 
proposed rule's RIA. FRA's estimate includes at least 10-20 percent 
more one-person train crew operations than known through FRA 
identification and commenters' self-descriptions. Although some 
commenters were ambiguous in describing their operations, FRA included 
those operations in this conservative estimate that may overestimate 
the actual number of established one-person train crew operations.\188\
---------------------------------------------------------------------------

    \188\ In response to ASLRRA's survey of its 696 short line 
members, 176 of the 280 short lines that responded claimed that they 
deployed a one-person train crew operation.
---------------------------------------------------------------------------

    This final rule also addresses the short line rail industry's 
request that the final rule distinguish Class II and III freight 
railroad operations from those of the Class I freight railroads by 
utilizing the alternative regulatory approaches discussed in the NPRM's 
RIA.\189\ Thus, rather than requiring a special approval petition for 
each proposed one-person train crew operation, the final rule allows 
certain one-person train crew operations to continue or be initiated 
without a special approval process. Instead of the proposed FRA review 
and approval requirements associated with a special approval petition 
for all legacy train operations staffed with a one-person train crew in 
proposed Sec.  218.131 and for the initiation of all other train 
operations staffed with a one-person train crew in proposed Sec.  
218.133, the final rule, in Sec.  218.129, requires written 
notification (in addition to certain operational requirements) only 
from railroads with established legacy one-person train crew freight 
operations as well as Class II and III freight railroads seeking to 
initiate a train operation staffed with a one-person train crew but not 
transporting hazardous materials of the types or quantities specified 
in Sec.  218.123(c). This written notice replaces the approval process 
for these operations and provides greater

[[Page 25074]]

regulatory certainty while providing more flexibility to short lines as 
compared to the NPRM's proposed requirement of a petition filing and 
special approval process. The notification requirements in the final 
rule will still provide FRA with significant information regarding the 
locations and extent of, and hazards posed by, these one-person train 
crew operations.
---------------------------------------------------------------------------

    \189\ FRA-2021-0032-0368.
---------------------------------------------------------------------------

    FRA's decision to permit Class II and III legacy one-person train 
crew freight operations, including those transporting hazardous 
materials, to continue without a risk assessment or special approval 
was based on the final rule's imposition of minimum requirements on 
these legacy operations. For instance, the implementation schedule 
phasing in operating rules to protect the one-person train crewmember 
and to safeguard the public after an incident should ensure that 
railroads are prepared to take the appropriate mitigation measures to 
protect employees and the public. Similarly, the final rule's 
requirement for an alerter on any controlling locomotive operated by a 
one-person train crew and an operating rule that requires testing the 
alerter to confirm it is functioning before departure will provide an 
alternative that makes that aspect of the operation as safe or safer 
than a two-person minimum train crew operation where a second 
crewmember would be expected to make an emergency brake application if 
the locomotive engineer became incapacitated. Although not required in 
this final rule, FRA encourages railroads with legacy operations to 
examine any safety hazards that could be further mitigated to reduce 
risks with one-person train crew operations or any of their operations 
generally, such as track maintenance near waterways and densely 
populated areas or the railroad's operating rule requirements for a 
second crewmember who assists intermittently to ensure that this 
crewmember is contributing to the safety of the train's movement to the 
greatest extent possible. FRA will closely monitor this legacy 
exception and will scrutinize data or observations showing that the 
legacy operations may not be as safe as currently described.
    FRA also removed the NPRM's proposed prohibition on one-person 
train crew operations transporting certain types or quantities of 
hazardous materials with respect to initiating new or existing, but 
non-legacy, operations. All railroads, including Class II and III 
railroads, seeking to initiate such an operation transporting hazardous 
materials of the types or quantities specified in Sec.  218.123(c) will 
be required to conduct a risk assessment and obtain special approval 
for the operation under Sec.  218.131. The revisions from the proposed 
rule's approach regarding the transportation of hazardous materials 
reflects FRA's consideration of ASLRRA's comment that the common 
carrier legal obligation prohibits a railroad from refusing service to 
a customer that provides a properly packaged hazardous material. The 
RIA acknowledges the potential costs of compliance with the final 
rule's requirements for a one-person train crew. Considering the known 
safety and security risks associated with operating trains transporting 
large amounts of hazardous materials, previously determined by FRA, the 
Transportation Security Administration (TSA), and the Pipeline and 
Hazardous Materials Safety Administration (PHMSA) to present the 
greatest safety and security risks, FRA finds that the final rule's 
requirements are justified to ensure the safety of trains. FRA is 
willing to work with the short line industry in developing a model risk 
assessment that could potentially reduce the paperwork burden on short 
lines and accelerate the petition process. FRA also supports ASLRRA and 
its members creating a template or model risk assessment to reduce the 
burden on individual Class II and III railroads. FRA has considered 
this in estimates used in the final rule's RIA.
    The final rule also addresses the short line industry's comments 
that the proposed exceptions in the NPRM were too stringent in that 
they included limitations on speed, grade, or train length, by largely 
eliminating those proposed limitations within the exceptions and 
providing other criteria to govern those operations. For instance, in 
proposed Sec.  218.129(c)(1), the exceptions identified specifically 
for ``small railroad operations'' were limited to a freight train 
operated on a railroad that would not exceed 25 mph and by an employee 
of a railroad with fewer than 400,000 total employee work hours 
annually. In the final rule, FRA did not include the proposed speed 
restriction for such a small railroad operation, thereby allowing the 
train to be operated at the maximum allowable track speed and not 
creating a disincentive to maintaining track to the highest standard a 
railroad chooses to sustain. The small railroad operations exception 
was also expanded in the final rule to include all Class II and III 
freight railroads.\190\ In addition, the proposed track grade and train 
length limitations for the small railroad operations exception have not 
been adopted in the final rule. Moreover, in response to short line 
comments and after reviewing existing safety regulations, FRA has 
decided not to apply this final rule to a train operation controlled by 
a remote control operator because it has existing safety requirements 
for these operations and because there are other reasons mentioned 
later in this discussion of comments and conclusions.
---------------------------------------------------------------------------

    \190\ There are nine holding companies that own approximately 
250 Class II and Class III railroads. Those holding companies are: 
Anacostia Rail Holdings, Genessee and Wyoming, Iowa Pacific 
Holdings, OmniTRAX, Pioneer Railcorp, Progressive Rail Inc., R.J. 
Corman Railroad Group, Patriot Rail, and Watco.
---------------------------------------------------------------------------

    Similarly, the final rule responds to certain short line 
commenters' concerns over a proposed requirement that certain one-
person freight train operation exceptions in proposed Sec.  218.129(c) 
must have an operating rule or practice requiring that the crewmember 
remain in the locomotive cab during normal operations and leave the 
locomotive cab only in case of an emergency affecting railroad 
operations.\191\ The proposed requirement applied to the exceptions 
identified as small railroad operations, work train operations, and 
remote control operations. The Strasburg Rail Road explained that this 
proposed requirement would have precluded its current work train 
arrangement whereby the one-person crewmember is permitted to join a 
work group on the ground after securing the movement. Upon further 
consideration, the requirement FRA proposed in the NPRM has not been 
included in the final rule, as FRA finds its current securement 
requirements are sufficient to safeguard unattended trains.\192\
---------------------------------------------------------------------------

    \191\ 87 FR 45617 (citing proposed paragraph (b)(1) of Sec.  
218.129).
    \192\ 49 CFR 232.103(n).
---------------------------------------------------------------------------

    Additionally, in Sec.  218.129 of the final rule, FRA has addressed 
the comments requesting that each railroad be provided more time to 
comply with any new requirements or, as necessary, hire or train a 
second crewmember for a one-person train crew operation by providing an 
implementation schedule that phases in the final rule's requirements 
for certain specified one-person train crew operations. That phased-in 
implementation schedule will apply to: (1) each Class II or III 
railroad with a legacy one-person freight train operation; (2) each 
railroad seeking to continue or initiate use of a work train operation 
staffed with a one-person train crew; (3) each railroad seeking to 
continue or initiate use of a helper service train operation staffed 
with a

[[Page 25075]]

one-person train crew; and (4) each railroad seeking to continue or 
initiate use of a lite locomotive train operation staffed with a one-
person train crew, excluding a multiple unit (MU) locomotive passenger 
operation where the car carrying the passengers is also functioning as 
the locomotive.
    The implementation schedule provides enough time for railroads to 
comply with the final rule's new requirements, and FRA encourages each 
railroad with a one-person train crew operation to act more quickly 
than required by the schedule when possible. For instance, FRA expects 
that each railroad should be able to adopt any necessary operating 
rules within a short period of time, potentially within a few weeks at 
most, even though the final rule's implementation schedule for excepted 
operations will provide up to 90 days from the effective date of the 
final rule. It is possible that ASLRRA or other groups will draft model 
operating rules that address the operating rule requirements in the 
final rule, and these model operating rules could be adopted 
secondarily to replace any quickly adopted rules that are used in the 
short term. Meanwhile, it can be expected that some railroads will 
quickly install any required alerters while others delay installation 
for various reasons; FRA urges each railroad not to delay alerter 
installation.\193\
---------------------------------------------------------------------------

    \193\ Not only does FRA require most locomotives to have a 
working alerter installed, FRA's current rail safety regulation in 
the same part as this final rule contains a strict prohibition 
against tampering with such devices that are installed to improve 
the safety of the operation of train movements. 49 CFR part 218, 
subpart D.
---------------------------------------------------------------------------

    For these reasons, the final rule largely provides the clarity and 
streamlined approach that ASLRRA and Class II and III freight railroads 
requested while establishing minimum requirements for the safety of 
one-person train crew operations. At the same time, the final rule 
increases safety for operations proposed as one-person train crews 
because an alerter or a second crewmember to stop the train in an 
emergency is a necessary precaution to prevent the potential for 
catastrophic harm due to an uncontrolled train movement; in reaching 
this conclusion, FRA reviewed its statements from 2012 in a locomotive 
safety standards rulemaking cited by ASLRRA and determined that the 
agency is not issuing conflicting statements.\194\ The final rule's 
requirements regarding alerters in the controlling locomotive, 
safeguards to protect the one-person train crewmember, and procedures 
for minimizing the impact of situations that could endanger employees, 
the public, or environment reduce the risk of foreseeable hazards 
associated with one-person train crew operations.
---------------------------------------------------------------------------

    \194\ ASLRRA's comment, FRA-2021-0032-1193 at 29-30, citing 77 
FR 21312, did not explain that: (1) FRA's statements regarding the 
need to establish a minimum alerter requirement were based on 
multiple NTSB recommendations to do so; (2) that NTSB's 
recommendations were based on accidents that occurred at varying 
speeds; or (3) that NTSB's accident analysis was focused on the 
``crewmembers'' without considering the possibility that railroads 
would be operating one-person trains. 77 FR 21320-21. Similarly, 
FRA's rationale for permitting operational flexibility by tailoring 
the alerter standard to a minimum operational speed did not address 
the possibility that railroads would be operating one-person trains. 
77 FR 21329-30. NTSB's rationale for an alerter standard included an 
analysis of a head-on train collision on July 10, 2005, in which 
``the NTSB determined that an alerter likely would have detected the 
lack of activity by the engineer and sounded an alarm that could 
have alerted one or both crewmembers [and h]ad the crew been 
incapacitated or not responded to the alarm, the alerter would have 
automatically applied the brakes and brought the train to a stop . . 
. [potentially] prevent[ing] the collision.'' 77 FR 21320-21. In 
FRA's view, because the agency understood the operational status quo 
at that time was a minimum of two train crewmembers, its decision in 
2012 to provide some operational flexibility to ``freight railroads 
[that] only operate over small territories'' and move at lower 
speeds included the unwritten expectation that a second crewmember 
would be available to apply the emergency brake if the locomotive 
engineer was fatigued or incapacitated. 77 FR 21329-30.
---------------------------------------------------------------------------

4. Class I Freight Railroads
    FRA received numerous comments opposing the NPRM from the Class I 
freight railroads and groups associated with those railroads. The 
following is a summary of, and response to, those comments.
a. Alternative Crewmember Arrangements Including Expeditors, Ground-
Based Crewmembers, or Ground-Based Conductors
    Numerous commenters offered that the NPRM would be disruptive to 
their current operations or plans to use one-person train crews in 
combination with other rail employees that, as described, might not be 
a part of a train crew as FRA defines that term in its current 
regulation,\195\ or would not meet FRA's proposed requirements under 
the NPRM. In general, these commenters described train operations using 
a rail worker, traveling in a motor vehicle, that intermittently 
assists the train at key intervals such as to flag a highway-rail grade 
crossing, throw a hand-operated switch, or be available in case of 
emergencies or to diagnose and repair a mechanical problem if the train 
becomes disabled.
---------------------------------------------------------------------------

    \195\ 49 CFR 218.5 (defining train or yard crew).
---------------------------------------------------------------------------

    During the public hearing, UP's Vice President of Crew Management 
Services and Interline Operations testified regarding the railroad's 
expeditor pilot program and future plans, which included showing a 
video demonstrating the job of an expeditor.\196\ UP's written comment 
also described its expeditor plan and stated that FRA's NPRM would 
disrupt the implementation of that plan.\197\ UP described its 
expeditor plan as using one-person train crews with PTC and ground-
based conductors replacing train-based conductors. In a written 
statement, UP described how its PTC system includes a parking brake 
feature that can set the train brakes for routine work on the ground 
near the train and can set a full-service brake application if movement 
is detected--a feature that is not mandated by FRA. UP envisioned 
expeditors to run on a subdivision basis, not a train-by-train basis, 
and for expeditors to be used for all commodities including all types 
and quantities of hazardous materials. UP stated that it expects some 
subdivisions or territories will require more than a single expeditor 
to handle the train density. The rationale UP gave for initiating its 
expeditor plan was that a conductor's job primarily consists of 
preparing a train for departure and occasionally addressing minor 
mechanical issues that occur en route, and that an expeditor's role can 
be designed to accomplish traditional conductor tasks in less time. 
Phase one of UP's expeditor plan is for implementation on territory 
that has a double mainline track with a state highway running along 
side it, albeit with a traditional conductor also on the train. UP 
described three additional phases, each adding layers of new 
complexities. UP commented that it believes a person working in an 
expeditor role is safer than a train-based conductor because the 
employee will not have to climb out of the locomotive cab and walk long 
distances aside the train in potentially challenging environments to 
repair a mechanical problem. UP stated that if FRA insisted on 
excluding one-person crews from operating trains carrying hazardous 
materials, UP would end its expeditor pilot program because the program 
is dependent on treating all trains passing through a particular area 
in the same way.
---------------------------------------------------------------------------

    \196\ FRA-2021-0032-13184 (hearing transcript); https://www.youtube.com/watch?v=6hr15dtWwGU (video).
    \197\ FRA-2021-0032-13012.
---------------------------------------------------------------------------

    During the public hearing, the Vice President of Advanced Train 
Control for NS testified regarding the railroad's plan

[[Page 25076]]

to deploy ground-based conductors.\198\ NS's written comment also 
described its plan and stated that the NPRM failed to consider how the 
rail industry can use operational innovations or deploy readily 
available technology to address any safety concerns associated with the 
operation of a train with fewer than two crewmembers.\199\ NS also 
stated it met with DOT officials about its plan to deploy ground-based 
conductors.\200\
---------------------------------------------------------------------------

    \198\ FRA-2021-0032-13184 (hearing transcript).
    \199\ FRA-2021-0032-13045.
    \200\ FRA-2021-0032-13181.
---------------------------------------------------------------------------

    NS commented that PTC is installed on 58,000 miles of track in the 
United States, and it believes PTC has supplanted the role of a 
conductor. NS views PTC as handling all the tasks of a traditional 
conductor including: (1) advising the locomotive engineer regarding 
certain notifications and actions; (2) communicating with certain 
individuals outside the locomotive cab; and (3) completing certain 
forms and maintaining records. NS stated that new or revised mandatory 
directives are conveyed through the PTC system. NS also stated that the 
PTC system uses locational and mandatory directive data to prompt the 
engineer to obtain permission from the designated roadway worker in 
charge before reaching a work zone, and then the PTC system requires 
the engineer to acknowledge that the train has acquired the permission, 
presumably by radio communication, before allowing the train to proceed 
into the work zone. NS commented how a ground-based conductor or other 
technologies could perform the tasks that PTC systems do not completely 
perform. In a written statement, NS also commented that the railroad 
can plan to have a second crewmember on a train when it leaves PTC 
territory where appropriate or when the PTC system fails en route. 
Further, NS explained how the PTC system was designed utilizing human 
factor engineering principles to convey critical information clearly 
and consistently, thereby aggregating train and route information in a 
way that reduces cognitive workload while operating the train.
    CN commented against the rule for the reasons described by the 
Association of American Railroads (AAR) but also requested that any 
final rule include revisions that permit ground-based crewmembers.\201\ 
CN commented that the NPRM's proposed requirements would stifle 
different approaches to crew staffing and would permanently remove any 
possibility of ground-based assistance. CN commented that it would 
prefer an option like one FRA proposed in the 2016 NPRM that allowed 
for a railroad with PTC-enabled lines to notify FRA of the operation 
and permit FRA subsequent review to evaluate whether the railroad was 
providing appropriate safety.\202\
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    \201\ FRA-2021-0032-13144.
    \202\ 81 FR 13918, 13966 (Mar. 15, 2016) (citing option 2, 
proposed Sec.  218.135).
---------------------------------------------------------------------------

    BNSF also commented against the rule for the reasons described by 
AAR and commented that the NPRM would unnecessarily impede BNSF's 
ongoing efforts, through collective bargaining, to implement one-person 
crew operations that also deploy ground-based conductors.\203\ BNSF 
commented that it was focused on making work schedules more predictable 
for conductors.
---------------------------------------------------------------------------

    \203\ FRA-2021-0032-12996.
---------------------------------------------------------------------------

FRA's Response
    FRA does not agree with CN's concern that the NPRM would stifle 
different approaches to crew staffing or use of ground-based 
assistance, as the NPRM proposed a special approval process designed to 
consider the safety implications of alternative approaches. For 
instance, if CN or any other railroad seeks to initiate a one-person 
train crew operation that was not otherwise excepted, the use of one or 
more ground-based employees to assist the train could be considered a 
way to mitigate the risks in a risk assessment filed under the special 
approval petition process. CN and other railroads could, for example, 
look to one of AAR's exhibits evaluating some risks involved with one-
person train crew operations under four basic sets of accident 
scenarios as a reference in creating a risk analysis.\204\ The 
combination of ground-based employees, PTC, and other mitigating 
actions taken in conjunction with the special approval petition and 
risk assessment, where required under this final rule, could support a 
showing that a one-person train crew operation, with the risk 
mitigations in place, is as safe or safer than a two-person train crew 
operation. As explained below, FRA notes there are various terms being 
used by different railroads to describe their ground-based employees. 
Although use of different terms may present some confusion or concern, 
FRA recognizes that these types of employees may be important parts of 
a one-person train crew operation under the special approval petition 
requirements of this final rule.
---------------------------------------------------------------------------

    \204\ FRA-2021-0032-13056, AAR's Exhibit 6, a report prepared by 
Oliver Wyman titled ``Evaluation of Single Crew Risks'' (Jan. 26, 
2015) (conducting a comparative risk analysis for select accident 
causes under present day mainline operations with traditional two-
person crews versus future mainline operations on Class I railroad 
lines when an FRA-compliant PTC system is fully implemented). This 
report contained the disclaimer that ``it does not consider all 
causes of accidents and is not a full comparison of accident 
frequencies with and without PTC.'' Certainly, a risk assessment 
would go further than this report to consider incidents not 
preventable by a PTC system--such as those accidents that a PTC 
system is not designed to prevent when a train is operated at 
restricted speed.
---------------------------------------------------------------------------

    The comments regarding alternative crewmember arrangements 
introduced various terms to describe rail employees such as expeditor, 
ground-based crewmember, and ground-based conductor, which FRA does not 
use in its regulations, but the concepts of which are incorporated 
within current terminology and requirements regulating railroad 
operating practices such as ``utility employee,'' \205\ ``train or yard 
crew,'' \206\ and ``worker.'' \207\ FRA's current regulations specify 
requirements for the safe protection of temporary crewmember and non-
crewmember railroad employees engaged in the inspection, testing, 
repair, and servicing of rolling equipment as is expected of utility 
employees and workers.\208\ For instance, a ground-based employee, who 
is not part of the train crew, may need help from a conductor or second 
crewmember to communicate with the locomotive engineer so that 
mechanical repairs may be made safely, in accordance with current 
Federal rail safety requirements. Meanwhile, neither a utility employee 
nor worker, as defined in FRA's existing requirements,

[[Page 25077]]

would ride with the train, call out and verify signal indications, 
communicate by radio on behalf of the train crew, identify safety 
dangers along the right-of-way as the train progresses, remind the 
locomotive engineer of speed or other operating restrictions, provide 
guidance in an emergency or difficult operating environment based on 
experience, or monitor the locomotive engineer's alertness. Although a 
ground-based conductor that is part of the train crew or some 
technologies (or a combination of the two) might be able to assist with 
some of these functions, the descriptions of the Class I freight 
railroads' ground-based employee pilot programs indicate that the 
intent is to utilize rail personnel more efficiently by allowing the 
ground-based employee to service more than one train in a defined 
geographic area. Although the ground-based employee arrangement may be 
an efficient use of operations personnel, that arrangement alone does 
not offer an identical safety substitute for a traditional, second 
crewmember that travels on the train to each destination.
---------------------------------------------------------------------------

    \205\ 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).
    \206\ 49 CFR 218.5 (defining ``train or yard crew'' as one or 
more railroad employees assigned a controlling locomotive, under the 
charge and control of one crew member; called to perform service 
covered by Section 2 of the Hours of Service Act; involved with the 
train or yard movement of railroad rolling equipment they are to 
work with as an operating crew; 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 Sec. Sec.  217.9 and 217.11 of 
this chapter.
    \207\ 49 CFR 218.5 (defining ``worker'' as any railroad employee 
assigned to inspect, test, repair, or service railroad rolling 
equipment, or their components, including brake systems. Members of 
train and yard crews are excluded except when assigned such work on 
railroad rolling equipment that is not part of the train or yard 
movement they have been called to operate (or been assigned to as 
``utility employees''). Utility employees assigned to and 
functioning as temporary members of a specific train or yard crew 
(subject to the conditions set forth in Sec.  218.22 of this 
chapter), are excluded only when so assigned and functioning).
    \208\ 49 CFR part 218, subpart B--Blue Signal Protection of 
Workers.
---------------------------------------------------------------------------

    The use of terminology, not based in FRA' regulations, can obscure 
or minimize current safety requirements, and suggests that a railroad 
employee performing a non-crewmember role may be treated the same as a 
crewmember. A railroad is obligated to comply with FRA's current 
minimum safety requirements that protect these railroad employees from 
personal injury posed by any movement of such equipment regardless of 
the terminology used by the railroad. For instance, regardless of 
whether a railroad refers to a ground-based person assigned to assist 
more than one train as an expeditor, ground-based crewmember, or 
ground-based conductor, that person is not part of the train crew under 
FRA's definition of ``train or yard crew'' and must be provided with 
the Federally mandated safeguards when assisting a train.
    Although UP has not yet initiated its expeditor plan, this Class I 
freight railroad made several comments justifying its plan to test the 
viability of one-person operations that are problematic, confirming a 
need for an FRA approval process. For instance, UP's rationale for 
initiating its expeditor plan oversimplified the conductor's roles and 
responsibilities. UP described a conductor's job as ``primarily 
consist[ing] of preparing a train for departure and occasionally 
addressing minor mechanical issues that occur en route.'' \209\ UP's 
limited description of the conductor's job failed to address how a 
railroad would offset the significant safety backup and assistance role 
that conductors currently provide.
---------------------------------------------------------------------------

    \209\ FRA-2021-0032-13012 (comment filed by UP).
---------------------------------------------------------------------------

    For instance, UP's description of the conductor's job neglected to 
address the railroad's operating rules and practices that hold a 
conductor accountable, along with the locomotive engineer, for the safe 
operation of the train and observance of the railroad's rules.\210\ 
There are also numerous railroad rules that impose crewmember 
requirements such as the duty to communicate to each other the name of 
signals affecting their train as soon as the signals become visible or 
audible.\211\ Similarly, there are numerous railroad rules that impose 
requirements on a conductor because the conductor is singled out for 
supervising the train operation, advising the engineer and train 
dispatcher of any restriction placed on equipment being handled, and 
reminding the engineer when the train is approaching certain area 
restrictions.\212\ Similarly, UP and many other railroads have 
established ``cab red zone'' rules that require both crewmembers to 
minimize distractions during critical operating circumstances in an 
effort to enhance safety, but railroad commenters never raised 
alternative safety measures they would voluntarily adopt that offer a 
safety equivalent.\213\
---------------------------------------------------------------------------

    \210\ UP's General Code of Operating Rules (GCOR) describes the 
duties of crew members in rule 1.47 as generally ``responsible for 
the safety and protection of their train and observance of rules'' 
and includes a list and description of specific conductor 
responsibilities.
    \211\ UP's GCOR 1.47, C. All Crew Members' Responsibilities, 1. 
Crew Members in Control Compartment.
    \212\ UP's GCOR 1.47, A. Conductor Responsibilities.
    \213\ UP's GCOR 1.47.1: Cab Red Zone. For example, UP requires a 
cab red zone when operating at restricted speed and not switching, a 
situation where PTC, as designed, would not always stop a train as 
required by a restricted speed rule. In the cab red zone, UP 
requires that a crewmember handling radio communications must not be 
the locomotive engineer operating the controls.
     Although a railroad may amend a railroad operating rule or 
practice without FRA's permission if the railroad's requirement is 
not a Federal requirement, each railroad adopts these self-imposed 
requirements to ensure that it implements safe operating practices 
and presumably would not intentionally introduce unsafe practices--
which FRA could address through enforcement of existing requirements 
(such as those in 49 CFR part 217 regarding FRA review of a 
railroad's operating rules); by establishing new requirements; or by 
making recommendations in guidance.
---------------------------------------------------------------------------

    Because conductors are accountable for safe train operations, a 
person holding a conductor certification can have that certification 
revoked.\214\ Of course, the reason that UP and other railroads hold 
conductors accountable for safe train operations is that conductors are 
often completing safety tasks independently of a locomotive engineer, 
such as throwing hand-operated switches or directing shoving movements, 
or acting as an important backstop to the locomotive engineer when 
calling out signal indications, reviewing operating instructions, or 
obtaining track authorities or permissions. FRA is concerned that, 
without the type of Federal oversight required by this final rule, the 
commenting Class I railroads that have overstated the role of PTC or 
diminished the traditional role of a conductor will unreasonably rely 
on those same incorrect assumptions in making safety determinations 
when transitioning to a one-person train crew.\215\
---------------------------------------------------------------------------

    \214\ For instance, during the years 2021 and 2022, UP reported 
to FRA that it revoked certification for approximately 252 
conductors for violations of operating rules and practices.
    \215\ Overall, FRA found AAR's Exhibit 1, a report prepared by 
Oliver Wyman titled ``Assessment of Conductor and Engineer In-Cab 
Work Activities'' (May 15, 2021), FRA-2021-0032-13056, informative, 
but FRA did not find it persuasive because of its failures by 
omission or making of assumptions that FRA did not agree with 
similar to those described in FRA's response to UP's comment.
---------------------------------------------------------------------------

    It is also concerning that UP and other rail industry commenters 
largely asserted their safety case for ground-based employees by 
limiting their focus to circumstances when conductors are needed to fix 
mechanical problems and, in doing so, neglect the conductor's currently 
broad safety role. Although FRA shares the rail industry's concern that 
a train crewmember could get hurt in a slip, trip, or fall coming on or 
off on-track equipment or walking along the right-of-way, the 
industry's safety argument related to ground-based employees assisting 
the train seems largely limited to that one concern. UP also commented 
that expeditors ``will be less likely to suffer the effects of fatigue 
[because i]nstead of riding long miles on a train, the expeditor will 
be able to set out fresh from a home terminal every day'' \216\ but did 
not address the issue of the locomotive engineer's fatigue by stating 
that UP would limit the one-person train crewmember to regular shifts 
as well. Many individual and labor organization comments stated how a 
second crewmember can help offset a locomotive engineer's fatigue, but 
UP and other Class I railroad commenters did not address this safety 
concern.
---------------------------------------------------------------------------

    \216\ FRA-2021-0032-13184 at 79-80.
---------------------------------------------------------------------------

    NS and other Class I freight railroad industry commenters stated 
that their plans to deploy ground-based employees and reduce crew size 
to one person would substantially rely on PTC systems. However, PTC 
systems were designed as overlay systems (i.e., ``all of

[[Page 25078]]

the safety features of the underlying operation to which PTC is added 
will be kept'') \217\ to include the conductor. Indeed, FRA fully 
addressed this issue when requiring the onboard PTC apparatus to be 
arranged so each member of the crew assigned to perform duties in the 
locomotive can receive the same PTC information displayed in the same 
manner and execute any functions necessary to that crewmember's 
duties.\218\ In the section-by-section analysis of a final rule on PTC 
systems, FRA stated that ``[f]or the conductor and engineer to fulfill 
the expectations of Congress, it is necessary for both crewmembers to 
have sufficient information to perform their duties,'' and FRA 
described how ``safety would be materially diminished if the conductor 
in freight operations were denied access to the same information in the 
same format as the engineer.'' \219\ Also during that PTC rulemaking, 
FRA rejected AAR's comment that questioned the need for a conductor to 
have a PTC display and explained that ``PTC is currently an imperfect 
technology fed by databases that can be corrupted'' when the agency 
determined that the conductor or second crewmember must have the same 
PTC information displayed as the locomotive engineer.\220\ For 
instance, during one of the PTC systems rulemakings, FRA responded to 
an AAR comment for a study showing that safety is jeopardized by 
assigning the engineer PTC-related duties by stating that ``FRA has 
directly observed engineers exceeding authorities while attempting to 
respond to PTC system requirements . . . and [how they were] plainly 
distracted from safety-critical duties.'' \221\
---------------------------------------------------------------------------

    \217\ 75 FR 2598, 2005 (Jan. 15, 2010).
    \218\ See e.g., 49 CFR 236.1006(d). This requirement was moved 
from 49 CFR 236.1029(f), a section with requirements addressing PTC 
system use and en route failures, to its current location because it 
seemed a more intuitive location for a requirement related to 
equipping locomotives. 79 FR 49693, 49705 (Aug. 22, 2014).
    \219\ 75 FR 2668.
    \220\ 75 FR 2669-70.
    \221\ 75 FR 2670.
---------------------------------------------------------------------------

    Thus, in response to this train crew size safety requirements 
rulemaking, AAR and other freight rail industry commenters are 
rehashing arguments FRA rejected in prior rulemakings, such as the 
argument that a locomotive engineer alone can acknowledge 
electronically transmitted mandatory directives by simply pressing a 
button when the train is in motion--an action that does not provide 
evidence of comprehension.\222\ Removal of the conductor under these 
circumstances would mean that the Class I freight railroad industry 
commenters intend for the PTC systems to act as the sole backup for any 
operating mistakes committed by the locomotive engineer. Even when a 
PTC system works as intended, human error could occur if mandatory 
directive information is input incorrectly. In effect, a second crew 
member serves as a backup to validate the electronically transmitted 
mandatory directives are accurate.
---------------------------------------------------------------------------

    \222\ 75 FR 2670-71. In rejecting AAR's argument under a PTC 
system final rule, FRA explained that the current practice of 
reading mandatory directives back to the dispatcher over the radio 
gives the crew an opportunity to read it and consider its relevance 
to the current situation.
---------------------------------------------------------------------------

    As FRA noted in response to other comments, railroads continue to 
experience unplanned outages and planned outages of their PTC systems, 
in addition to various initialization failures, cut outs, and 
malfunctions. For example, in March 2023, BNSF and Amtrak experienced 
unplanned outages of their PTC systems, and NS experienced an unplanned 
outage of its PTC system in August 2023, impacting operations of both 
the host railroad and its tenant railroads. Also, during 2023, several 
Class I railroads, commuter railroads, and Amtrak temporarily disabled 
their PTC systems to facilitate planned infrastructure upgrades or 
capital projects. Even three years after the December 31, 2023, 
statutory deadline for full implementation of PTC systems, the railroad 
industry is continuing its efforts to improve the reliability and 
performance of PTC technology due, for example, to failures (including 
initialization failures, cut outs, and malfunctions, as defined in 
FRA's PTC regulations at 49 CFR 236.1003) and temporary planned and 
unplanned outages.
    Moreover, the safety issues regarding the implementation of one-
person train crew operations go beyond what the PTC system can do and 
include what additional duties will be shifted from a conductor to a 
one-person crew that have the potential to reduce the locomotive 
engineer's situational awareness. During the hearing, NS commented that 
it envisions the one-person crew will absorb the added duty of 
communications with other trains, such as communicating a defect 
observed on another train, while neglecting to address how the 
additional duty can be done safely, how realistic it is to expect a 
one-person crew to look for such defects while safely monitoring the 
progress of its own train, and whether any new hazards are created by 
the additional task that may need to be offset by some other action.
    Although Class I freight railroad commenters pointed to the success 
of the Class II Indiana Rail Road Company (INRD) as their model for 
rolling out a one-person train operation, those railroad commenters did 
not explain or demonstrate to FRA that they took, or planned to take, 
any of the steps INRD took when it first implemented its one-person 
train crew operations nor did they explain how their operations are 
comparable to a regional railroad that largely serves local industries 
and provides connections between small railroads and major Class I 
railroads and that is operating on approximately 500 miles of track in 
two States.\223\ For example, the Class I freight railroads' comments 
did not address whether: the communication requirements were reviewed 
and adapted for the one-person operation; or mitigation measures would 
be required to protect the one-person train crew, the public, or the 
environment, especially when a ground-based assistant would be unable 
to easily reach the train. Similarly, without a special approval 
process, a Class I freight railroad, with a more complex operation than 
a Class II or III freight railroad because it employs thousands of 
people in train operations and prioritizes long-haul transportation, 
would not be required to demonstrate that it considered all the hazards 
and mitigated the risks for a one-person train crew operation before 
initiating implementation, which FRA finds concerning given the ground-
based employee plans described in comments do not include some hazards 
or show plans for mitigating risks that FRA identified in the NPRM. 
Thus, the INRD's Class II one-person train crew operation is not 
comparable to a potential Class I railroad operation unless a Class I 
railroad takes substantial steps to make them comparable.
---------------------------------------------------------------------------

    \223\ 87 FR 45568 (footnote 24 which listed the characteristics 
of INRD's one-person train operation that INRD claimed it 
voluntarily implemented to ensure the operation's safety). At FRA's 
public hearing for this rule, INRD stated that its implementation of 
a one-person train crew that started in 1997 ``required a lot of 
research, innovation and modern day technology.'' In addition, INRD 
clarified at the hearing that it used two types of one-person train 
crew operations, i.e., terminal-to-terminal with a single-person 
crew and split crews with one person in a motor vehicle. FRA-2021-
0032-13184 at 93.
---------------------------------------------------------------------------

b. Train Operations in Other Countries
    AAR and other major freight rail industry commenters contend that 
FRA should not have a two-person train crew mandate because rail 
operations in other countries that use one-person crews provide 
sufficient data to support the

[[Page 25079]]

safety of one-person train crew operations, and that data, when 
considered with the INRD's example, and the fact that ``passenger 
trains in the United States typically operate with one person in the 
cab,'' should be sufficient to support the safety of one-person train 
crew operations.\224\ For instance, one of AAR's sponsored research 
documents compared the safety and characteristics of European and U.S. 
railways.\225\ In summary, that 2021 study found that the operating 
complexity of the European rail network was based on high train 
density.\226\ This AAR-sponsored study concluded that the defining 
factor in safety was not crew size; instead, lower accident rates were 
attributable to ``the kind of investments that mature economies make in 
infrastructure and technology--the same kind of investments that U.S. 
railroads have made and continue to make . . . each year.'' \227\
---------------------------------------------------------------------------

    \224\ FRA-2021-0032-13056, AAR's Comment at 3.
    \225\ FRA-2021-0032-13056, AAR's Exhibit 2, a report prepared by 
Oliver Wyman titled ``Crew-Related Safety and Characteristic 
Comparison of European and US Railways'' (Apr. 5, 2021). This report 
appears to be an update of AAR's Exhibit 4, another report prepared 
by Oliver Wyman titled ``Assessment of European Railways: 
Characteristics and Crew-Related Safety'' (June 15, 2016).
    \226\ FRA-2021-0032-13056, AAR's Exhibit 2 at 16.
    \227\ FRA-2021-0032-13056, AAR's Exhibit 2 at 66-67.
---------------------------------------------------------------------------

    AAR also submitted a study it sponsored in 2015, which promoted 
train crew size reductions on trains operating on high-density lines 
from an economic view that would justify the expense and use of round-
the-clock utility personnel.\228\ This study described one-person train 
crew operations in North America, Europe, and in other countries in 
2015 and the safety record of those international operations.
---------------------------------------------------------------------------

    \228\ FRA-2021-0032-13056, AAR's Exhibit 3, a report prepared by 
Oliver Wyman titled ``Analysis of North American Freight Rail 
Single-Person Crews: Safety and Economics.'' (Feb. 3, 2015).
---------------------------------------------------------------------------

FRA's Response
    FRA found the AAR-sponsored studies and major freight railroad 
comments on rail operations in other countries generally informative, 
but lacking persuasion that FRA should forgo regulating the subject 
matter of train crew size safety. In summary, FRA found one-person 
operations in other countries are either not comparable because of 
different operational factors that contrast with U.S. operations or 
because effective government regulation in other countries has 
established minimum safety standards in the same way this final rule 
will for U.S. operations.
    For instance, in the NPRM, FRA addressed the subject of train 
operations in other countries by explaining that, for the most part, 
they are not comparable to U.S. train operations due to differences in 
train lengths, territory, and infrastructure.\229\ AAR's comment 
included information supporting, or at least not refuting the accuracy 
of, FRA's position in the NPRM. For instance, AAR's comment included 
research supporting that Western European rail operations are 
significantly different in train length when compared to U.S. rail 
operations, as European freight trains are shorter to accommodate 
shorter block sizes and a greater number of interlockings.\230\ The 
Class I comments also did not provide further information showing that 
FRA's statements in the NPRM were inaccurate regarding how foreign, 
one-person freight train operations do not carry out extensive 
interlining or switching with other railroads and that many foreign, 
one-person passenger train operations do not have to share track with 
freight operations or operate over highway-rail grade crossings.\231\ 
It was for these reasons that FRA concluded in the NPRM that the safety 
hazards associated with those Western European rail operations are not 
comparable to those involving U.S. operations.
---------------------------------------------------------------------------

    \229\ 87 FR 45580. As stated above, in response to the 2016 
NPRM, AAR submitted studies it sponsored assessing European railway 
safety data with respect to train crew size and describing one-
person train crew operations in other countries, including European 
countries. The 2019 withdrawal discussed but did not analyze these 
studies' conclusions. 84 FR 24737. For the reasons explained here, 
FRA finds these studies generally informative but unpersuasive on 
the matter of regulating train crew size safety, particularly when 
considered along with the totality of the information discussed and 
analyzed in the 2022 NPRM and here in the final rule.
    \230\ FRA-2021-0032-13056, AAR's Exhibit 2 at 4, 13, 66-67 
(stating that 40 cars is the average length of European freight 
trains).
    \231\ FRA-2021-0032-13056, AAR's Exhibit 2 at 13 (stating that 
``the majority of U.S. rail freight does not run on mixed lines with 
high-frequency passenger services, unlike in Europe'').
---------------------------------------------------------------------------

    One significant element reflected in AAR's 2015 sponsored study 
undermining the Class I railroads' position is that railroads in other 
countries must sometimes abide by operational restrictions that 
regulating agencies have placed on one-person train crew operations. 
For example, this study explained how the Transportation Safety Board 
of Canada required the implementation of certain safety measures after 
the catastrophic accident at Lac-M[eacute]gantic, Quebec, that FRA 
described in the NPRM,\232\ and that the measures range from better 
tracking of those trains to specific dispatcher training and fatigue 
mitigation measures.\233\ Similarly, this same study found that the 
European Union imposed two preconditions on one-person train crew 
operations: (1) a working ``dead-man control system'' which is the 
equivalent of what FRA refers to as an ``alerter''; and (2) the 
equivalent of a U.S. centralized traffic control system (CTC).\234\ The 
study described how in the United States there are three types of 
signaling control systems (excluding PTC) and, of those systems, CTC 
affords the highest level of control, automation, and integration of 
safety logic.\235\ In the European signaling control system, 
dispatchers can remotely operate signals and switches to ensure that 
trains do not make conflicting movements,\236\ but presumably also to 
limit when or how often a one-person crewmember would need to 
temporarily climb down from the locomotive to throw a switch. In 
contrast, not all U.S. railroads have dispatchers and not all 
dispatchers at U.S. railroads have the capability to operate all 
switches and fixed derails remotely or have a train crewmember operate 
such devices by radio. These are the types of safety issues that 
necessitate evaluation through a risk assessment, as required under the 
final rule. In Germany, devices are installed on locomotives to 
automatically adjust for high-speed braking on curves, and there are 
requirements for a second crewmember when a dead-man device fails or 
under other unusual circumstances.\237\ Therefore, this final rule's 
requirements for a functioning alerter and related operating rules are 
consistent with the restrictions other countries have imposed for one-
person train crew operations.
---------------------------------------------------------------------------

    \232\ 87 FR 45568-69.
    \233\ FRA-2021-0032-13056, AAR's Exhibit 3 at 8. BLET and SMART-
TD's jointly filed comment noted that some railroad commenters 
pointed to European rail standards to support use of a one-person 
train crew while ignoring the Canadian safety standards, which BLET 
and SMART-TD stated are far more comparable to U.S. railroading but 
clearly do not support reduction in the size of train crews.
    \234\ FRA-2021-0032-13056, AAR's Exhibit 3 at 11.
    \235\ FRA-2021-0032-13056, AAR's Exhibit 3 at 4.
    \236\ FRA-2021-0032-13056, AAR's Exhibit 3 at 11.
    \237\ FRA-2021-0032-13056, AAR's Exhibit 3 at 12.
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    Another takeaway from the 2015 AAR study was that it focused on a 
limited number of accidents that were considered preventable with a 
multiple-person crew,\238\ but the data analyzed

[[Page 25080]]

did not include incidents involving close calls that likely go 
unrecorded or the potential for quicker response times to take 
mitigation measures that a multiple-person crew on the scene can take 
in the moments immediately following a variety of situations as 
compared with ground-based employees that would first need to be 
deployed to a scene before engaging in mitigating measures. It seems 
that the industry's argument focused on a narrower subset of situations 
where a second crewmember may be beneficial than FRA did in the NPRM. 
Similarly, the Alliance for Innovation and Infrastructure (AII) 
commented on the NPRM that a second crewmember has the potential to 
reduce damage only based on ``a host of assumptions that cannot be 
proven'' and that, ``hypothetical[ly], it is equally likely that all 
crewmembers die or are incapacitated, that the crew members are 
impacted by the bystander effect and do little or no mitigating 
activity, or that the main mitigation [is] by non-rail personnel.'' 
\239\ FRA disagrees with AII's comment because the comment fails to 
acknowledge that FRA's central approach, i.e., for each railroad to 
conduct a risk assessment, would produce an objective risk-based 
analysis that addresses such questions. This final rule will impose 
reasonable restrictions, collect data, and address the unique 
complexities of U.S. railroad operations through a review process. If 
data or analysis later suggests FRA should consider a different 
approach, any person could petition FRA for a new rulemaking, or FRA 
could initiate one.
---------------------------------------------------------------------------

    \238\ FRA-2021-0032-13056, AAR's Exhibit 3 at 19 (explaining how 
the study limited what data it perceived as relevant to datasets in 
which the crew has some control and the size of the crew could 
arguably make a difference in the outcome of an incident).
    \239\ FRA-2021-0032-12313 at 35. Although AII clearly opposed 
the NPRM, its analysis seemed conflicted when it concluded that 
``[f]or [accident] mitigation, that [a] conductor being anywhere on 
the train would theoretically help reduce damage.'' Id. at 32.
---------------------------------------------------------------------------

    FRA disagrees with AAR's comment that there is sufficient 
comparable data on one-person train crew operations to support that 
such operations are safe. For instance, AAR's comment that the data 
from passenger operations should be used is typically inaccurate as FRA 
explained in the NPRM that multiple train crewmembers are typically 
necessary to meet the requirements of FRA's passenger train emergency 
preparedness rule so that passenger operations' data is not comparable 
to a one-person train crew operation.\240\ Class I railroad commenters 
pointed to the 250-mile, Class II, regional railroad INRD's one-person 
train crew operation as an example for them to follow even though their 
operations are drastically different because INRD, for instance, 
described its one-person train crew operations to FRA as hauling a 
single commodity that did not include hazardous materials.\241\ In 
order to ensure safety in the future, the NPRM explained that the 
safety record of a few one-person Class II and III train crew 
operations would not necessarily be 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.\242\ 
Further, the analogy is the same when comparing Class I freight 
railroads to Western European rail operations; both may be complex 
operations, but the factors making them complex are different. And, as 
the NPRM proposed, the final rule will not prohibit all one-person 
train crew operations but allow some under specific conditions and 
others potentially after a petition is filed, a review process is 
followed, and an agency special approval is granted.
---------------------------------------------------------------------------

    \240\ 87 FR 45579.
    \241\ 87 FR 45568. In the NPRM, FRA summarized INRD's public 
statements describing its operation that were made during FRA's 2016 
train crew staffing rulemaking.
    \242\ 87 FR 45581. As the NPRM stated, 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.
---------------------------------------------------------------------------

c. New Technology and Automated Operations
    As noted in the NPRM, although current FRA regulations do not 
explicitly require the presence of a human operator, FRA's regulations 
were developed and drafted based on a general assumption that a train 
would be operated by a person, albeit with assistance from 
technology.\243\ For that reason, the NPRM proposed a special approval 
petition process that would have required a risk assessment before 
initiating an operation, and the NPRM's background stated that FRA 
understands that the rail industry is anticipating future growth in 
automation and is concerned how a train crew staffing rule might impact 
the future of rail innovation and automation. Further the NPRM noted 
that a railroad, seeking to use rail automation technology that does 
not comply with FRA's existing rail safety regulations, may file a 
petition for rulemaking under FRA's regulations, or a petition for a 
waiver of FRA's safety rules.\244\
---------------------------------------------------------------------------

    \243\ 87 FR 45567.
    \244\ 87 FR 45586.
---------------------------------------------------------------------------

    In response to FRA's proposal, some rail industry commenters 
asserted that the NPRM is anti-technology, that DOT has promoted 
automated operations for motor vehicles, including trucks, over 
railroads, and that the NPRM blocks incentives to innovate. For 
instance, AAR commented that the NPRM would cause a modal shift from 
railroads to trucks, directly impacting the railroad industry's 
competitiveness \245\--a position shared by ASLRRA.\246\ To support its 
position, AAR provided a research paper it had commissioned that 
concluded the NPRM would have profound implications regarding the level 
and nature of freight competition between railroads and trucking 
companies, particularly in an era of increased vehicle automation.\247\ 
Although AAR's sponsored research described truck platooning technology 
\248\ as ``nascent,'' and thus just beginning to display signs of 
future potential, the research suggested substantial future cost 
savings in the mid-range figure of 29 percent for trucking companies, 
thereby impacting the ability of railroads to compete and profit.\249\
---------------------------------------------------------------------------

    \245\ FRA-2021-0032-13056.
    \246\ FRA-2021-0032-13033.
    \247\ FRA-2021-0032-13056, AAR's Exhibit 9, a report prepared by 
Mark Burton, Research Associate Professor (Retired from The 
University of Tennessee), titled ``Rail-Truck Competition in an Era 
of Automation Technology'' (Dec. 2022).
    \248\ DOT's Federal Highway Administration describes truck 
platooning projects whereby a convoy of trucks are partially 
automated, meaning that the vehicles control the coordinated speeds 
and braking with the lead vehicles in the platoons, but the drivers 
maintain steering control and are expected to continuously monitor 
the driving situation to be ready to assume full control of the 
vehicles at any time. https://highways.dot.gov/research/laboratories/saxton-transportation-operations-laboratory/Truck-Platooning.
    \249\ FRA-2021-0032-13056, AAR's Exhibit 9 at 6-8.
---------------------------------------------------------------------------

    AAR's sponsored research suggested that a shift from rail to truck 
shipments may not be true ``where shipment characteristics favor rail 
transportation to the exclusion of truck [which] is particularly true 
of many liquid chemical and petroleum products, including plastics.'' 
\250\ The research and other commenters compared existing safety 
statistics between the non-automated truck and rail industries, and 
concluded that rail is safer and should therefore be promoted. The AAR-
sponsored research also suggested that ``[a]n unbalanced program of 
technological advancement will divert tens of millions of tons of 
freight from rail to truck and, in doing so, add measurably to the 
degradation of air

[[Page 25081]]

quality.'' \251\ Thus, freight rail industry commenters projected that 
the NPRM proposing a two-person train crew mandate with exceptions had 
the potential to dramatically shift freight shipments from rail to 
truck, cause railroad revenues to fall, diminish public safety, 
increase fuel consumption, and lead to major increases in the demand 
for highway capacity.\252\
---------------------------------------------------------------------------

    \250\ FRA-2021-0032-13056, AAR's Exhibit 9 at 13.
    \251\ FRA-2021-0032-13056, AAR's Exhibit 9 at 17.
    \252\ FRA-2021-0032-13056, AAR's Exhibit 9 at 18.
---------------------------------------------------------------------------

    The American Consumer Institute (ACI), which is described as a non-
partisan, educational, and public policy research organization that 
protects consumers' interests, stated that ``FRA should be following 
the lead of the trucking industry and to allow as much automation as 
possible'' to lower costs for consumers and take advantage of the Class 
I freight railroads' $760 billion investment in PTC since the 
1980s.\253\ ACI commented that the NPRM would increase costs for 
consumers and could also have a negative impact on the environment if 
companies shift from rail to truck shipments for their goods. A similar 
comment was filed jointly by 19 non-profit, policy think tanks.\254\
---------------------------------------------------------------------------

    \253\ FRA-2021-0032-10337. The comment cited an AAR website for 
the amount of the investment, but incorrectly quoted $780 billion 
when the website stated $760 billion. https://www.aar.org/campaigns/ptc/.
    \254\ FRA-2021-0032-12300. Rio Grande Foundation; Washington 
Policy Center; Nevada Policy Research Institute; Bluegrass Institute 
for Public Policy Solutions; Roughrider Policy Center (North 
Dakota); John Locke Foundation (North Carolina); Maine Policy 
Institute; Thomas Jefferson Institute for Public Policy; Josiah 
Bartlett Center for Public Policy; Cardinal Institute for West 
Virginia Policy; Idaho Freedom Foundation; Alaska Policy Forum; 
Maryland Public Policy Institute; Yankee Institute; Mississippi 
Center for Public Policy; The John K. MacIver Institute for Public 
Policy; The Buckeye Institute; and the Garden State Initiative.
---------------------------------------------------------------------------

FRA's Response
    In the NPRM's background, FRA explained how historically the roles 
of certain crewmembers were nullified by technology and contrasted 
those situations with the current one in which the rail industry has 
not made the same type of technological breakthrough case.\255\ The 
comments and research provided by commenters are premised on the 
assumptions that labor-saving technologies are already developed and 
that these technologies advance both productivity and operational 
safety. However, the commenters' conclusions incorrectly assume that 
the labor-saving technologies are already developed, accepted, and 
implemented.
---------------------------------------------------------------------------

    \255\ 87 FR 45567-68.
---------------------------------------------------------------------------

    For instance, FRA disagrees with those commenters who pointed to 
the PTC systems as the automated technology they would use to justify 
removal of a second crewmember. FRA is certainly aware that the PTC 
systems are sometimes enhanced, through integration of other software 
that may act like an automobile's cruise control system; yet, to date, 
even those enhanced PTC systems do not perform all the necessary 
functions in all operating environments.\256\ In addition, PTC 
technology is currently governing rail operations on approximately 42 
percent of the rail network in the United States, and this rule 
addresses rail operations nationwide.
---------------------------------------------------------------------------

    \256\ 83 FR 13583, 13584-85 (Mar. 29, 2018) (citing FRA's 
``Request for Information: Automation in the Railroad Industry'' 
which included a description of two different methods for defining 
levels of automation).
---------------------------------------------------------------------------

    While FRA is aware that other rail systems, with various levels of 
autonomous features, are already available or are expected to be 
built,\257\ freight rail industry commenters largely did not suggest 
that they would be relying on a system other than PTC. For these 
reasons, no U.S. railroad has yet to make a case that it is ready to 
implement a reliable system, suitable for the complexity of its 
operations, and with a high enough level of autonomy that would either: 
(1) negate the need for any crewmembers; or (2) negate the need for a 
single crewmember whose central operational duty would be to make an 
emergency brake application in case of an automated system error or 
otherwise perform duties normally associated with a conductor, but not 
be expected to operate the train.
---------------------------------------------------------------------------

    \257\ 83 FR 13584 (describing known rail technologies). It has 
been over five years since FRA formally recognized the existence of 
a fully autonomous freight railroad system in Australia operated by 
a mining company on an approximately 62-mile stretch of track in 
western Australia but no U.S. railroad has sought to implement that 
system.
---------------------------------------------------------------------------

    The freight rail industry expressed concern with competition from 
the trucking industry, especially as automated or partially automated 
driving technologies such as truck platooning improve, but their 
concerns do not undermine the basis for this rulemaking which focuses 
on the rail safety hazards introduced by reducing crew size. The 
commenters also suggested that the cost of compliance with the rule as 
proposed would be high enough to shift freight from rail to truck, a 
potentially less safe form of transport. However, FRA's RIA shows that 
the final rule's costs are lower than the commenters' projections, 
which were based on the NPRM, and both FRA and DOT as a whole do not 
expect such cross-modal impacts under this final rule. DOT's mission 
statement is ``to deliver the world's leading transportation system, 
serving the American people and economy through the safe, efficient, 
sustainable, and equitable movement of people and goods.'' \258\ DOT 
serves its mission consistent with the Federal government's national 
standards strategy for critical and emerging technology.\259\ And while 
DOT has certainly funded research concerning automated motor vehicles 
and the trucking industry,\260\ it is doing the same by funding 
research concerning automation in the rail industry, as described 
below.
---------------------------------------------------------------------------

    \258\ DOT's mission statement, https://www.transportation.gov/about, is based on its statutory authority. 49 U.S.C. 101.
    \259\ The U.S. government will focus standards development 
activities and outreach regarding the application of ``automated, 
connected, and electrified transportation, including automated and 
connected surface vehicles of many types.'' U.S. Government National 
Standards Strategy for Critical and Emerging Technology (May 2023) 
at 6-7. https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/04/fact-sheet-biden-harris-administration-announces-national-standards-strategy-for-critical-and-emerging-technology/?utm_source=link.
    \260\ https://highways.dot.gov/automation.
---------------------------------------------------------------------------

    FRA supports technological advancement through research and 
funding.\261\ For instance, FRA's current list of approximately 128 
projects includes research on: (1) how unmanned aerial vehicles known 
as drones would allow railroads to inspect larger sections of track at 
one time and speed up inspections; (2) developing and testing a 
modular, field-deployable system combining edge computing with advanced 
artificial intelligence processing to detect and classify track 
features from a moving platform in near-real-time; (3) developing an 
artificial-intelligence-aided machine vision for grade crossing safety 
that would provide real-time alerts for damaged gate arms, flashers, 
and other critical safety-related issues; (4) ensuring that an 
interoperable automated train operation system is defined to meet 
industry safety and automation objectives; and (5) improving rail 
safety and efficiency objectives when an RCL is used to perform 
switching operations on the line-of-road without crew presence in the 
cab of the controlling locomotive, an operation known as ``road RCL.'' 
\262\ Further, FRA is sponsoring research on the human-automation 
interaction and teaming to affect the design,

[[Page 25082]]

certification, and implementation of automation and to ensure that 
safety is enhanced, not degraded, by new technology and 
automation.\263\
---------------------------------------------------------------------------

    \261\ https://railroads.dot.gov/research-development/research-development-and-technology.
    \262\ https://railroads.dot.gov/elibrary/fra-office-research-development-and-technology-current-projects-2023 at 11, 16, 51, 117, 
and 123.
    \263\ Id. at 130.
---------------------------------------------------------------------------

    Similarly, FRA disagrees with commenters claiming that FRA failed 
to consider how the rail industry can use operational innovations or 
deploy readily available technology to address any safety concerns 
associated with the operation of a train with fewer than two 
crewmembers. FRA addressed this issue in the background section titled 
``Automated Operations.'' \264\ As stated in the NPRM, this rule is not 
intended to impede rail innovation nor does this rule regulate 
autonomous operations.\265\ The rule simply requires a description of 
``any technology that will be used to perform or support tasks 
typically performed by a second crewmember, or that will prevent or 
significantly mitigate the consequences of accidents or incidents'' in 
a petition for special approval.\266\ Among other things, this 
information will allow FRA to ensure that the technology being used to 
support a one-person operation has gone through the proper waiver or 
regulatory processes, as necessary.\267\
---------------------------------------------------------------------------

    \264\ 87 FR 45586.
    \265\ The 2019 withdrawal stated that a train crew staffing rule 
would unnecessarily impede rail innovation and automation, 84 FR 
24740, without providing data to support that position. To the 
contrary, this final rule does not prohibit any specific type of 
one-person train crew operation or prohibit the use of technology to 
perform duties typically performed by a second crewmember. Rather, 
this final rule ensures that minimum safety measures are in place 
for one-person train crew operations and that, for certain more 
complex one-person train crew operations, the risk of foreseeable 
hazards is mitigated. As explained in the 2022 NPRM, in re-
evaluating the information and safety issues concerning one-person 
train crew operations, FRA concluded that ``a train crew staffing 
rule would not necessarily halt rail innovation or automation 
[n]otwithstanding the statements made in the 2019 withdrawal 
[because] . . . 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.'' 87 FR 45571. 
This final rule provides such a process.
    \266\ Sec.  218.131(b)(11), proposed as Sec.  218.133(b)(11).
    \267\ See 49 CFR part 211, subparts C and E (providing FRA's 
rules of practice for waivers and miscellaneous safety-related 
proceedings and inquiries); and see e.g. 49 CFR 236.909 (reflecting 
the minimum performance standards for the introduction of new 
railroad products or changes to existing railroad products).
---------------------------------------------------------------------------

    If a railroad seeks to use technology that does not meet FRA's 
existing regulatory requirements, the railroad may petition FRA for a 
rulemaking that would revise FRA's regulations to permit the use of the 
technology to fulfill FRA's regulatory requirements. A rulemaking 
petition would need to comply with FRA's Rules of Practice \268\ and 
would have to follow the Department's regulatory process in compliance 
with the Administrative Procedure Act.\269\ Alternatively, a railroad 
could petition FRA for a waiver from any applicable regulations to use 
technology that does not meet FRA's existing regulatory 
requirements.\270\ Similar to a petition for rulemaking, a waiver 
petition would also need to comply with FRA's Rules of Practice \271\ 
and must include all required supporting information, including a 
safety justification. When petitioning for a rulemaking or a waiver to 
use technology that does not meet FRA's existing regulatory 
requirement, a railroad seeking to use an autonomous operation without 
a minimum of a one-person train crew would also be required to petition 
FRA for a waiver from this final rule, specifically the requirements in 
Sec.  218.123.
---------------------------------------------------------------------------

    \268\ Specifically, 49 CFR part 211, subparts A and B.
    \269\ 5 U.S.C. 551-559.
    \270\ See 49 CFR part 211, subpart C.
    \271\ Specifically, 49 CFR part 211, subparts A and C.
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d. Transportation of Hazardous Materials
    AAR opposes the NPRM's proposed prohibition on one-person train 
crew operations transporting certain types or quantities of hazardous 
materials by commenting that there is no evidentiary basis for 
concluding that one-person operations are less safe than two-person 
operations and the NPRM did not explain why any increased risks posed 
by the transportation of hazardous materials could not be adequately 
addressed through the adoption of safety protocols tailored to those 
risks.\272\
---------------------------------------------------------------------------

    \272\ FRA-2021-0032-13056.
---------------------------------------------------------------------------

FRA's Response
    In the discussion of comments and conclusions above, FRA responded 
to comments from short line rail industry commenters about the proposed 
two-person train crew mandate with respect to the transportation of 
hazardous materials. Aside from individual citizen commenters who were 
generally concerned about the safety of hazardous materials being 
transported by a train with a one-person crew or potential delays to 
mitigation measures with only a one-person crew, few comments were 
received on this subject.
    In summary, the NPRM proposed an overarching prohibition on fewer 
that two-crewmember operations 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 (i.e., 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 RSSM as defined 
by the Department of Homeland Security). FRA described in the NPRM how 
DOT must balance how hazardous materials are essential to the U.S. 
economy with the risks posed by accidental and non-accidental releases 
of those materials during transportation.\273\ The NPRM explained how 
FRA coordinates with PHMSA to regulate and enforce the safe and secure 
transportation of hazardous materials by rail and how FRA also 
coordinates with the Department of Homeland Security and its TSA on 
rail transportation security issues.
---------------------------------------------------------------------------

    \273\ 87 FR 45576-78.
---------------------------------------------------------------------------

    Further, the NPRM explained that DOT considers train crewmembers as 
``hazmat employees'' requiring specific types of training based on the 
dangers posed by hazardous materials generally and the additional 
dangers of a release in transit due to an accident, derailment, theft, 
or attack.\274\ The background in the NPRM described the various types 
of training required for hazmat employees and how the training is 
required initially and recurrently at least once every three years. 
Also, the NPRM summarized how PHMSA defined ``high-hazard flammable 
trains,'' how certain safety and security factors must be considered in 
the risk analysis that would be used to determine routing requirements, 
and how PHMSA only indirectly addressed the human factors issues in its 
rulemaking because PHMSA understood that FRA initiated a separate, key 
regulatory safety initiative to address crew size safety.\275\ For 
these reasons, FRA stated in the NPRM that 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.
---------------------------------------------------------------------------

    \274\ 87 FR 45576, especially footnote 127.
    \275\ 87 FR 45577 (citing PHMSA's rule titled ``Hazardous 
Materials: Enhanced Tank Car Standards and Operational Controls for 
High-Hazard Flammable Trains'') at 80 FR 26644, 26654-55 (May 8, 
2015).
---------------------------------------------------------------------------

    In response to various rail industry commenters, the final rule 
does not contain the proposed overarching prohibition on one-person 
train crew operations transporting certain quantities and types of 
hazardous materials. Instead, in the final rule, railroads that cannot 
meet any of the exceptions are permitted to petition for

[[Page 25083]]

special approval to initiate or continue one-person train crew freight 
operations transporting hazardous materials.\276\ Moreover, as 
previously addressed in this discussion of comments and conclusions, 
the final rule provides Class II and III railroads with an exception to 
the special approval process to continue legacy one-person train crew 
freight operations that have been established for at least two years 
before the effective date of the final rule, including when the 
railroad has established a legacy operation in which it wants to 
continue transporting certain hazardous materials.
---------------------------------------------------------------------------

    \276\ As explained in the discussion above of the short lines' 
comments, Class II and III railroads seeking to initiate a new one-
person operation transporting hazardous materials of the types or 
quantities described in Sec.  218.123(c) are required under the 
final rule to petition FRA for special approval and conduct a risk 
assessment. A special approval petition is also required for 
continuing an existing operation that has not been established for 
at least two years before the effective date of the final rule. To 
initiate other types of one-person crew operations, Class II and III 
railroads are only required to provide notification and comply with 
certain operational requirements. The final rule requires Class I 
railroads to petition for special approval and conduct a risk 
assessment to initiate any one-person train crew operation.
---------------------------------------------------------------------------

    FRA expects that each railroad filing a petition for special 
approval will build upon that foundation of specified safety 
requirements and take further mitigation measures to address the 
hazards and reduce the risks involved in transporting hazardous 
materials by trains staffed with a one-person train crew. Further, the 
special approval procedure in Sec.  218.135 will ensure that the public 
and rail employees are provided an opportunity to comment and provide 
FRA with an opportunity to review and approve the railroad's 
operational plans.
e. FRA Action on Regulating Crew Staffing
    Class I freight railroad commenters stated that FRA failed to 
adequately explain its reconsideration of its previous positions on 
regulating the safety issues regarding train crew size. AAR asserted 
that FRA ``fail[ed] to adequately explain its total reversal in 
position in light of the views and conclusions it expressed in the 2019 
Withdrawal Order,'' and that FRA ``does not adequately explain its 
changed position in light of the views it expressed in the 2016 NPRM.'' 
\277\ AAR provided examples of statements from the 2016 NPRM on train 
crew staffing and the 2019 withdrawal that, according to AAR, the 2022 
NPRM contradicts without sufficient explanation for the changed 
position. For example, AAR highlighted the 2019 withdrawal's 
determinations that ``issuing any regulation requiring a minimum number 
of train crewmembers would not be justified because such a regulation 
is unnecessary for a railroad operation to be conducted safely at this 
time,'' and that ``no regulation of train crew staffing is 
appropriate.'' \278\ In addition, AAR pointed to FRA's statement in the 
2016 NPRM that ``FRA cannot provide reliable or conclusive statistical 
data to suggest whether one-person crew operations are generally safer 
or less safe than multiple-person crew operations.'' \279\ In its 
comment, BNSF stated that the 2019 withdrawal extensively catalogued 
data and other evidence and concluded that this available information 
``did not establish that one-person crew operations are less safe than 
multi-person crews.'' \280\ BNSF asserted that the 2022 NPRM dismisses 
the 2019 withdrawal's analysis without sufficient explanation or 
justification.
---------------------------------------------------------------------------

    \277\ FRA-2021-0032-13056 at 9-11.
    \278\ 84 FR 24741 (May 29, 2019), quoted by FRA-2021-0032-13056 
at 10.
    \279\ 91 FR 13919 (Mar. 15, 2016), quoted by FRA-2021-0032-13056 
at 10.
    \280\ FRA-2021-0032-12996 at 1-3.
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FRA's Response
    After considering all the evidence before it, including comments 
and data post-dating the 2019 withdrawal that is discussed in the 2022 
NPRM, FRA has reassessed its prior positions for two independent 
reasons.\281\ First, as the NPRM states, the decision of the U.S. Court 
of Appeals for the Ninth Circuit to vacate and remand the 2019 
withdrawal left FRA with various options on how, or whether, to address 
the matter of crew size safety. In deciding how to proceed, FRA 
reconsidered several of the safety issues discussed in the 2019 
withdrawal. FRA determined that the 2019 withdrawal de-emphasized 
safety concerns raised by FRA-sponsored research on the cognitive and 
collaborate demands of crewmembers and by commenters on the 2016 NPRM. 
For example, as the 2022 NPRM explains, the research raises safety 
concerns regarding one-person train crews, such as the loss of a second 
crewmember to notice and correct errors.\282\ FRA adheres to that 
reassessment. This final rule is justified based on FRA's reevaluation 
of those safety concerns and the threat they pose to public safety.
---------------------------------------------------------------------------

    \281\ 87 FR 45564, 45571-76 (July 28, 2022) (section III.D of 
the NPRM, titled ``Reconsideration of the Safety Issues'').
    \282\ See, e.g., id. at 45572 (explaining in detail how FRA has 
``revisit[ed] the research . . . to explain how the safety concerns 
the research raises helped in the development of the proposed 
requirements for this rulemaking'').
---------------------------------------------------------------------------

    Second, in reassessing regulation of safety issues regarding train 
crew size, FRA also considered information not analyzed in the 2019 
withdrawal, such as technological trends and operational changes on 
Class I freight railroads since 2019. Train accidents can impose 
enormous and sometimes incalculable costs on individuals, communities, 
and the environment, and recent industry changes, such as utilizing 
longer trains than the historical norm, introduce variables that may 
make it challenging for the industry to continue the past two decades 
general trend of improved safety in rail operations. As stated in the 
NPRM, freight train length has increased in recent years, and this 
trend may have cascading safety impacts unless mitigated by technology, 
training, or other processes.\283\ And, as explained above, the latest 
rail safety data reflects some troubling industry trends that suggest 
heightened caution and awareness are needed in rail safety and 
operational planning. Although trains have a relatively strong safety 
record, the rate for all human factor caused accidents has increased in 
recent years, notably after the 2019 withdrawal.\284\ While 
technological advances in the rail industry, such as PTC, may decrease 
those accidents in the future, uncertainty related to new operating 
technologies can affect train safety.\285\ Furthermore, the research 
indicates that PTC implementation should not be presumed to lead to 
fewer crew tasks.\286\ This point was further corroborated by extensive 
comments and testimony in this rulemaking from train crewmembers who 
work with PTC daily and by their representatives.\287\
---------------------------------------------------------------------------

    \283\ 87 FR 45564, 45572.
    \284\ See Section I., Executive Summary, for a discussion of 
recent data.
    \285\ See 87 FR 45564 at 45572-45573 (citing 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).
    \286\ Id. at 45572-73.
    \287\ See, e.g., FRA-2021-0032-13038 at 2, FRA-2021-0032-13049 
at 9 and 23, FRA-2021-0032-13133 at 2, and FRA-2021-0032-0711 at 1-
2.
---------------------------------------------------------------------------

    In sum, FRA reconsidered information previously analyzed by FRA on 
crew size safety and considered additional relevant information, 
including safety data indicating potentially worsening trends since the 
2019 withdrawal was issued. Based on this assessment, FRA determined 
that it needed to change its position from the 2019 withdrawal and 
concluded that the regulatory requirements in this final rule are 
necessary to ensure that trains are adequately staffed for their 
intended

[[Page 25084]]

operation and railroads have appropriate safeguards in place for safe 
train operations whenever using a one-person train crew.
    FRA further notes that the 2022 NPRM and this final rule differ in 
approach from the previous rulemakings addressing train crew size. 
Instead of broadly mandating two crew members, the NPRM proposed to 
require, and this final rule requires, two crew members for the most 
complex operations until a railroad analyzes an operation and 
persuasively demonstrates that risks associated with eliminating the 
second crew member are reasonably mitigated. By allowing railroads to 
petition for a one-person crew, this final rule accommodates the 
development of new technology while also ensuring the safety of crews 
and the public by requiring an analysis that shows that these 
innovations will not make trains less safe. FRA's incremental 
approach--that preserves the status quo while providing latitude for 
railroads to explore benefits from advances in technology--promotes 
FRA's statutory mandate to issue regulations ``as necessary'' for 
``railroad safety.'' \288\
---------------------------------------------------------------------------

    \288\ 49 U.S.C. 20103(a).
---------------------------------------------------------------------------

f. Risk Assessments and FRA's Review Standard
    AAR asserted in its written comment and reiterated in oral 
testimony at the public hearing that the proposed risk assessment 
requirements are flawed.\289\ In support of its comment, AAR provided 
several examples demonstrating how the proposed risk assessment might 
play out using recent accident/incident data and how Class I railroads 
could never expect a petition for special approval to be granted under 
the NPRM. AAR also suggested that because Class I railroads are 
required to have a risk-reduction program, FRA could have allowed these 
railroads to follow the risk-reduction approach set forth in their 
approved risk-reduction plans rather than the approach in this NPRM 
regarding crew size safety requirements.
---------------------------------------------------------------------------

    \289\ FRA-2021-0032-13056, AAR's comment at 39-45 and AAR's 
Exhibit 5, a comment prepared by ICF International titled ``Comments 
on Train Crew Size Safety Requirements.'' (Dec. 12, 2022).
---------------------------------------------------------------------------

    APTA commented that its passenger rail operation members support 
risk-based approaches that allow railroads to identify, mitigate, and 
manage safety risks in a manner that reflects the scale and specifics 
of individual operations. However, APTA asked FRA to reconsider the 
proposed risk assessment requirements as unnecessary for railroads that 
already follow an established methodology under FRA's existing system 
safety program requirements.\290\ APTA also had specific concerns about 
FRA's proposed risk assessment methodology and whether a minor event 
might be classified as catastrophic. Further, APTA's comment raised 
other policy concerns regarding the proposed risk assessment, including 
whether the proposed requirements could make information compiled or 
collected for that risk assessment public when, under the existing 
system safety program requirements, similar information would receive 
at least some legal protections.\291\ CRC's comment was also similar to 
APTA's in its approach to the risk assessment, requesting that FRA 
leverage its existing system safety requirements. CRC was concerned 
with the risk assessment burden in the event an approved passenger 
operation wants to make material modifications to the operation.
---------------------------------------------------------------------------

    \290\ FRA-2021-0032-12947, referring to 49 CFR part 270.
    \291\ See 49 CFR 270.105.
---------------------------------------------------------------------------

    TTD commented that it perceived the proposed alternative risk 
assessment as vague when compared to the detailed and specific proposed 
risk assessment.
FRA's Response
    The NPRM provided background on the risk assessment requirement, 
how it is useful, and how a risk assessment must be conducted in an 
objective manner to be effective.\292\ FRA explained why it proposed 
specific content and methodology requirements for conducting risk 
assessments and why it proposed an option to allow any railroad to seek 
FRA's approval to use an alternative risk assessment methodology.\293\ 
The NPRM also included background regarding the expected impact of the 
rule on the safety of rail operations.\294\ FRA considered all the 
comments regarding the proposed risk assessment, and the final rule's 
requirements are expected to address these comments in several 
overarching ways.
---------------------------------------------------------------------------

    \292\ 87 FR 45582-84.
    \293\ 87 FR 45584.
    \294\ Id.
---------------------------------------------------------------------------

    For instance, because FRA did not intend to propose requirements 
that might be viewed as nearly impossible to meet statistically, the 
final rule removed what commenters perceived as the proposed potential 
quantitative analysis obstacles. In addition to revisiting aspects of 
that quantitative risk-based hazard analysis, the final rule includes 
guidance, in Appendix E, on how a railroad may prepare a risk-based 
hazard analysis and compare the risks to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person 
minimum train crew operation when all mitigations are in place. FRA 
expects that some railroads will favor this objective approach when 
conducting a required risk assessment under this final rule.
    In response to comments, the final rule also includes changes from 
the NPRM that provide consistency with existing requirements, 
specifically, consistency with both the System Safety Program 
requirements in part 270 and the Risk Reduction Program requirements in 
part 271. Parts 270 and 271 require covered railroads to have a 
systemwide and ongoing risk-based hazard management program that 
proactively identifies hazards and mitigates risks resulting from those 
hazards, using a risk-based hazard analysis. Accordingly, this final 
rule includes the minimum requirements for a risk-based hazard analysis 
that follows similar requirements in Sec.  270.103(p) and (q), and 
Sec.  271.103(b), allowing railroad to build upon existing analyses 
when preparing the required risk-based hazard analysis as part of a 
petition for a one-person crew.
    To simplify the risk assessment process and address perceived 
potential quantitative analysis obstacles, the final rule includes the 
minimum performance standards used in Sec.  236.909 for the 
introduction of new railroad signaling and train control components, 
products or systems, and this standard is also required to promote the 
safe design, operation, and maintenance of safety critical locomotive 
electronic control systems, subsystems, and components.\295\ 
Specifically, the final rule makes clear that the introduction of a new 
product or change cannot result in risk that exceeds the previous 
condition.
---------------------------------------------------------------------------

    \295\ 49 CFR part 229, subpart E (establishing minimum railroad 
locomotive safety standards for locomotive electronics).
---------------------------------------------------------------------------

    With respect to commenters' information security concerns, FRA 
decided to retain the same approach as proposed. For reasons explained 
in the NPRM, FRA determines that exercising FRA's statutory discretion 
under 49 U.S.C. 20118 to protect certain risk analyses from public 
disclosure pursuant to Exemption 3 of the Freedom of Information Act 
(FOIA), 5 U.S.C. 552(b)(3), would not be consistent with the final 
rule's provisions that make petitions and the risk analyses they 
contain available for public comment.\296\ Nevertheless, other FOIA 
exemptions may apply. For example, FRA reminds railroads that 
information

[[Page 25085]]

required to be submitted as part of the risk-based hazard analysis that 
a submitter deems to be trade secrets, or commercial or financial 
information that is privileged or confidential under Exemption 4 of 
FOIA 5 U.S.C. 552(b)(4), should be so labeled in accordance with the 
provisions of 49 CFR 209.11. FRA handles information labeled as such in 
accordance with the provisions of Sec.  209.11.
---------------------------------------------------------------------------

    \296\ 87 FR 45585.
---------------------------------------------------------------------------

    Regarding the potential use of risk-based hazard analysis 
information in litigation, FRA decided not to include in the final rule 
information protections like those adopted in the system safety program 
and risk reduction program rules. Congress explicitly authorized 
setting forth specific information protection requirements for 
implementation of those rules, and FRA does not have a similar 
statutory authorization to do so here.\297\ For further discussion on 
this issue, FRA refers readers to the NPRM's explanation of FRA's 
statutory authority to protect certain information from use in 
litigation.\298\
---------------------------------------------------------------------------

    \297\ 49 U.S.C. 20119, 49 CFR 270.105 and 81 FR 53850, 53859 
(Aug. 12, 2016), and 49 CFR 271.11 and 85 FR 9262, 9263 (Feb. 18, 
2020).
    \298\ 87 FR 45585.
---------------------------------------------------------------------------

    Lastly, in response to comments regarding the risk assessment, the 
final rule retains the NPRM's proposed alternative standard provision 
in Sec.  218.133(b). That provision allows a railroad the option to 
submit a petition for FRA's approval of the use of alternative 
methodologies or procedures, or both, to assess the risk associated 
with a proposed operation. Again, this was an option that was proposed 
but seemingly missed by commenters that acknowledged the value in a 
risk assessment but requested flexibility in how to conduct it. FRA 
understands that some commenters, such as TTD, suggested that the 
alternative standard provision for a risk assessment is vague, but FRA 
does not agree because approval of alternative methodologies or 
procedures, or both, would be expected to be based on standards 
established by leading governmental or non-governmental standardization 
organizations.
g. Remote Control Operations
    Several commenters raised concerns with the NPRM's specific freight 
train exception to the crew staffing requirements that applied to 
remote control operations in proposed Sec.  218.129(c)(3). The 
following is a summary that is representative of the comments received.
    ASLRRA and other short line rail industry commenters raised 
objections to FRA's proposed exception for a one-person train operation 
controlled by a remote control operator because they claimed it created 
new burdens that they do not currently comply with or that are 
unnecessary given equipment standards for these operations. ASLRRA's 
comment included a statement from the Texas and Northern Railway 
regarding how it would not qualify for the remote control operation 
exception because this short line: (1) does not maintain technology or 
protocols to monitor a train's real-time progress; (2) does not have a 
method of determining the train's approximate location when 
communication is lost with a one-person train crew; and (3) does not 
utilize a dispatcher.\299\ Similarly aligned commenters pointed to the 
proposed requirement that the remote control operator must stay in the 
locomotive cab except in emergencies, a condition that the commenters 
suggested would be unnecessary for that person's safety, even on main 
track, given that the remote control operator can operate the train 
safely from the ground or other locations on the train. Also, 
commenters objected to a proposed requirement in the NPRM that a remote 
control operation be required to have an alerter when the remote 
control technology they use already has similar safety features.
---------------------------------------------------------------------------

    \299\ FRA-2021-0032-13033, att. L (statement from Transtar LLC/
Texas and Northern Railway).
---------------------------------------------------------------------------

FRA's Response
    In proposing the crew size safety requirements as conditions for 
using a one-person train crew with a remote control operation, FRA 
started with the premise that most remote control train operations are 
peripheral to switching operations in a yard or at a customer's 
facility because the remote control technology was designed with a 
primary focus on making switching operations more efficient. Because an 
RCL is controlled by an operator with a remote control transmitter 
strapped to their chest, an operator does not need to stay in the 
locomotive cab and has versatility to do other safety-related tasks 
such as uncouple cars, throw hand-operated switches, and determine that 
track is clear for their train movement. Thus, when in switching or 
train service, a remote control operator may be on the ground, on the 
lead locomotive (although not necessarily in the locomotive cab), or on 
another car or locomotive.
    Remote control operations are typically crewed by one operator, who 
fulfills the roles and responsibilities of both the locomotive engineer 
and conductor, or by two remote control operators, each with a remote 
control transmitter, so that they can alternate controlling the RCL. 
Although a remote control operation could have three or more train 
crewmembers, that would be atypical and would likely involve a third 
crewmember who is training to be a remote control operator. Although an 
RCL may remain in a particular rail yard for switching solely within 
that yard, it is common for a remote control operator to take an RCL 
from a rail yard to a customer's facility as a local train that can 
drop off or pick up rail cars at one or more customer's facilities.
    In the NPRM, FRA explained how remote control operations that 
travel between yards or customers' facilities, with or without cars, 
were trains ``not in switching service'' and were thus potentially 
subject to the NPRM's proposed requirements if operated with a one-
person train crew.\300\ For this reason, FRA proposed an exception for 
RCL operations with the intention that the proposed general train crew 
staffing requirements would not apply but that other conditions would 
apply. In the NPRM, FRA proposed to address narrow safety concerns 
involving the use of an RCL by codifying long-standing agency guidance 
for the use of the remote control technology during non-switching 
service. These proposed requirements were intended to allow remote 
control operations with a one-person train crew as an exception if the 
operation was limited in complexity by weight, tonnage, grade, or other 
factors that reflected guidance previously accepted by industry 
stakeholders.\301\
---------------------------------------------------------------------------

    \300\ 87 FR 45594.
    \301\ 87 FR 45594-95.
---------------------------------------------------------------------------

    The NPRM therefore proposed to codify FRA's guidance on accepted 
industry safe practices for remote control operations. However, upon 
further consideration, FRA has determined that addressing this issue in 
this rulemaking is unnecessary. In deciding not to adopt the proposed 
remote control operations exception, FRA determined that the 
requirements for remote control operations, proposed in the NPRM, would 
be unnecessary as duplicative of existing requirements. For instance, 
this final rule will not require an alerter on an RCL to address the 
incapacitated locomotive engineer scenario because FRA's existing 
locomotive safety standards establish minimum equipment standards for 
an RCL that include an operator alertness device and a tilt feature 
that together perform the same functions as an

[[Page 25086]]

alerter.\302\ Likewise, there is no need to require enhanced 
communication or train tracking requirements for an RCL when FRA's 
existing locomotive safety standards establish a prohibition on the use 
of one-person operations with remote control locomotive systems that do 
not automatically notify the railroad in the event a remote control 
operator becomes incapacitated or the tilt feature is activated.\303\
---------------------------------------------------------------------------

    \302\ 49 CFR 229.15, in particular paragraph (a)(13).
    \303\ Id., in particular paragraphs (a)(15) and (16).
---------------------------------------------------------------------------

    However, based on a suggestion from some labor organizations, FRA 
may initiate a comprehensive review of every type and aspect of remote 
control operations to determine whether the safety of those operations 
could be improved through regulation or other actions.

F. Consideration of Requirements More Stringent Than Those Proposed

    Some of the commenters supporting the NPRM stated that, in their 
view, the NPRM did not go far enough. Specifically, these commenters 
supported more stringent requirements that would permit fewer or no 
exceptions to a two-person train crew, or include a requirement that 
the second crewmember be a person who is a certified conductor under 
FRA's requirements in 49 CFR part 242.
    TTD supported the proposed annual reporting requirements and 
recommended more stringent requirements that, instead of FRA granting 
special approval in perpetuity, would require each railroad to file a 
new petition for special approval after two years. Similarly, TTD 
supported a more stringent requirement to establish a process whereby 
FRA would periodically review the enumerated exceptions and seek public 
input whether to retain them.
    SMART-TD's Kansas State Legislative Board commented that railroads 
should be required to maintain a two-person crew in the control 
compartment of the lead locomotive unit of each train, a more stringent 
requirement than what FRA proposed.\304\ This comment raised safety 
concerns with trains being built too long for available sidings, risk 
of sabotage, and how a two-person team can combat fatigue.
---------------------------------------------------------------------------

    \304\ FRA-2021-0032-9397.
---------------------------------------------------------------------------

    SMART-TD's New Jersey State Legislative Board raised the concern 
that the NPRM's proposed process of granting exceptions to new and 
existing single-person crew operations was disconcerting as it seemed 
to place the efficiency of rail operations over safety.\305\ The 
comment raised a variety of safety concerns as a basis for establishing 
a more stringent two-crewmember train crew requirement. For instance, 
this commenter stated that there is a great need for crewmembers to 
assist rail passengers in a variety of emergency situations. This local 
division of SMART-TD placed emphasis on two crewmembers assisting each 
other as a team to battle fatigue, provide backup to reduce mistakes, 
and improve situational awareness. The commenter raised a concern about 
hazardous materials traveling by rail through New Jersey's dense urban 
areas with only a one-person train crew and the potential for a 
catastrophic accident. The commenter stated that, with a one-person 
train crew, motor vehicle traffic could significantly slow a response 
by the railroad's utility employees responding to a train breakdown as 
well as local emergency personnel responding to other types of 
emergencies--situations where a second crewmember can more quickly 
assist because they are already present. The commenter also disagreed 
with FRA's proposed criteria for continuing legacy operations and 
initiating new operations and stated that railroads should not be 
allowed to assess their own risks in a risk assessment. This local 
division of SMART-TD recommended that risk assessments be conducted by 
the National Transportation Safety Board (NTSB) and that FRA should use 
a waiver alternative to the special approval process.
---------------------------------------------------------------------------

    \305\ FRA-2021-0032-10602.
---------------------------------------------------------------------------

    The Nebraska Public Service Commission (NPSC), which oversees 
railroad safety in Nebraska, advocated for FRA to adopt an absolute 
prohibition against train operations with fewer than two-person 
crews.\306\ NPSC is concerned that the safety issues described in the 
NPRM would be present in the scenarios proposed as exceptions. NPSC 
stated that the railroad industry's opposition to the rule and need for 
exceptions for financial or other reasons should not be given greater 
weight than the need to maintain or improve the safety of the crew and 
the public.\307\
---------------------------------------------------------------------------

    \306\ FRA-2021-0032-10121.
    \307\ The Chicago Federation of Labor, stating that it 
represents tens of thousands of railroad workers who support the 
need for at least two crewmembers on all trains. FRA-2021-0032-6837. 
A similar comment was made by the International Brotherhood of 
Electrical Workers Local Union 146, Decatur, IL. FRA-2021-0032-
10465.
---------------------------------------------------------------------------

    Railroad Workers United (RWU), a group representing railroad 
workers in North America that are not managers or supervisors, 
commented that FRA should prohibit all one-person train crew 
operations.\308\ RWU commented that there is no safe way in the United 
States to run a train with a single crew member and that safety 
dictates never to allow a single point of failure.
---------------------------------------------------------------------------

    \308\ FRA-2021-0032-8001.
---------------------------------------------------------------------------

FRA's Response
    Although FRA did not adopt all proposals identified by commenters, 
the comments raised practical issues or problems with the proposed 
exceptions that led FRA to revise its approach in this final rule. For 
example, the commenters stated that certain one-person train crew 
operations that were proposed for exceptions in the NPRM would pose 
equivalent safety concerns to that of other one-person train crew 
operations FRA proposed to prohibit or regulate through the special 
approval process. FRA agrees with the comments pertaining to the 
proposed helper service and lite locomotive(s) consist exceptions, 
which were proposed without any conditions attached. Because FRA agrees 
with the commenters that those two types of one-person train crew 
operations pose the same safety concerns as the others that were 
proposed with conditions attached, FRA revisited those exceptions in 
Sec.  218.129(a)(4) and (5) and decided to attach similar conditions. 
FRA's decision to revise these exceptions and impose requirements in 
the final rule that are more stringent than those previously proposed 
is based on several considerations. For instance, FRA considered that 
railroads with a need for helper service or that regularly move 
locomotives without cars are mostly Class I and II operations that have 
newer locomotives, placed into service on or after June 10, 2013, or 
that would permit the controlling locomotives to operate at speeds in 
excess of 25 mph \309\ and, thus, likely have working alerters 
installed in their locomotives. These operations would then need to add 
operating rules addressing the communications and safety of the one-
person train crew and addressing how the railroad will take mitigation 
measures to address certain situations that could pose hazards to rail 
employees or the public--a burden, but not a significant one. Because a 
Class III railroad would generally own fewer miles of track than a 
Class I or II railroad and operate fewer trains, these short line 
railroads typically would provide enough locomotive power to traverse 
the track and would not be expected to use helper service as a regular 
business practice. Similarly, a lite locomotive

[[Page 25087]]

consist is typically used by Class I and II railroads to move 
locomotives from one yard to another to optimize their availability to 
move cars; in comparison, Class III railroads might not have more than 
one yard or such a complex business model that locomotives would 
regularly be moved without cars from one location to another. With 
regard to mine load out, plant dumping, and similar operations, FRA 
does not agree with the comments that these types of operation would 
always have duties requiring a second crewmember, and thus the final 
rule retains the exception for those operations as proposed.
---------------------------------------------------------------------------

    \309\ 49 CFR 229.140(a).
---------------------------------------------------------------------------

    FRA also did not agree with commenters who suggested that railroads 
should be required to maintain a two-person crew in the control 
compartment of the lead locomotive unit of each train, as that would 
apply a more stringent standard than a railroad meeting the current 
status quo of using two-person train crews. FRA is concerned that if it 
created such a stringent standard, railroads would be compelled to 
employ a three-person train crew to do the job that currently only 
takes two crewmembers. It could also create an impossible standard for 
certain passenger train operations in which the locomotive cab is not 
large enough to accommodate a second crewmember.

III. Section-by-Section Analysis

    This section responds to public comments and identifies any changes 
made from the provisions as proposed in the NPRM. Provisions that 
received no comment, and are otherwise being finalized as proposed, are 
not discussed again here.\310\
---------------------------------------------------------------------------

    \310\ 87 FR 45587-45605.
---------------------------------------------------------------------------

Section 218.5 Definitions

    This final rule adds 17 definitions to part 218--Railroad Operating 
Procedures. Part 218 prescribes minimum requirements for railroad 
operating rules and practices. The analysis in the NPRM is applicable 
for this section for the following terms which will have the same 
definitions as proposed: ``FTA,'' ``hazard,'' ``mishap,'' ``risk,'' 
``tourist train operation,'' ``tourist train operation that is not part 
of the general railroad system of transportation,'' ``trailing tons,'' 
and ``train.'' \311\ The remaining terms are described below.
---------------------------------------------------------------------------

    \311\ 87 FR 45587.
---------------------------------------------------------------------------

    The NPRM proposed a definition for ``Associate Administrator'' that 
was similar to the existing definition of ``Associate Administrator for 
Safety'' in Sec.  218.93, a definition only applicable to part 218, 
subpart F. To prevent having two similar definitions to describe the 
same FRA official, this final rule removes the existing definition from 
subpart F and replaces it with the definition as proposed in the NPRM 
so that the term ``Associate Administrator for Safety'' has the same 
meaning throughout part 218.
    This final rule includes two definitions not specifically proposed 
in the NPRM, but based on descriptions of two types of operations 
contained in proposed requirements. First, the final rule defines 
``helper service train operation'' to mean a train that is ``a 
locomotive or group of locomotives being used to assist another train 
that has incurred mechanical failure or lacks sufficient tractive force 
necessary to traverse a particular section of track due to train 
tonnage and the grade of the terrain.'' This definition is similar to 
the NPRM's definition of ``helper service'' in proposed Sec.  
218.125(a) but additionally clarifies that it does not matter whether 
the train that the ``helper service operation'' is assisting is on 
``difficult terrain.'' \312\ ``Lite locomotive train operation'' is 
defined as meaning the train is a locomotive or a consist of 
locomotives not attached to any piece of equipment or attached only to 
a caboose. This definition is the same as FRA proposed in Sec.  
218.125(b) of the NPRM within the requirements for the ``lite 
locomotive'' exception.
---------------------------------------------------------------------------

    \312\ The statement in proposed Sec.  218.125(a) that ``helper 
service includes traveling to or from a location where assistance is 
provided'' is located in Sec.  218.129(a)(4) of this final rule.
---------------------------------------------------------------------------

    The final rule includes a definition for ``locomotive, MU'' to 
refer to a type of locomotive that can transport passengers. An MU 
locomotive is a general term that includes a diesel- or electric-
multiple-unit (DMU or EMU) operation, as proposed in the NPRM, and 
would also include other self-propelled rail rolling equipment 
regardless of the power source. The NPRM only used the terms DMU or 
EMU, which would not be as inclusive, as it would only cover diesel or 
electric power sources, while steam, liquified natural gas, hydrogen, 
or other power sources may be available.
    Based on FRA's review of the comments, there appears to be some 
confusion about what FRA meant by a one-person train crew operation. To 
remove any ambiguity, in this final rule, FRA is adding two new 
definitions. First, FRA is adding a definition for the term ``one-
person train crew.'' This term is intended to clarify that, for 
purposes of this final rule, there are two scenarios in which a 
railroad will be considered as operating with a one-person train crew. 
In the first scenario, there is only one person assigned to the train 
as the train crew and that single, assigned person will be performing 
the duties of both the locomotive engineer and the conductor. 
Accordingly, in this scenario, the sole person assigned as the train 
crew will need to be certified as both a locomotive engineer and a 
conductor so that person can perform the duties of both of those roles; 
this scenario would also include alternative arrangements in which 
other rail employees that are not assigned train crewmembers 
temporarily assist the train.
    In the second scenario, two or more persons are assigned to a train 
as the train's crew, but only the locomotive engineer travels on the 
train when the train is moving because the remainder of the train crew, 
that would include the conductor if the locomotive engineer is not the 
assigned conductor, is assigned to intermittently assist the train's 
movements. In this second scenario, the remainder of the train crew is 
typically traveling in a motor vehicle and will be required to assist 
the train when switching cars in a yard or at a customer's facility, as 
well as assist the train when necessary to protect a crossing with flag 
protection, throw a switch or derail, or perform other duties 
associated with the train assigned. This second scenario clarifies that 
when only one crewmember is traveling with the train, even if there are 
additional crewmembers intermittently assisting and assigned to the 
train, the train will be considered a one-person train crew operation.
    The second definition FRA is adding in this final rule is a 
definition for the term ``one-person train crewmember.'' This final 
rule defines ``one-person train crewmember'' to mean, in the context of 
a one-person train crew operation, the single assigned person who is 
responsible for performing the duty of the locomotive engineer and will 
be traveling in the operating cab of the controlling locomotive when 
the train is moving. If there is a second crewmember traveling in a 
motor vehicle, that second crewmember would not be the one-person train 
crewmember.
    This final rule's definition for ``risk assessment'' differs 
slightly from the proposed definition in that the NPRM, which referred 
to operations with ``fewer than two crewmembers.'' FRA has not adopted 
that phrasing in the final rule. Instead, this final rule refers to 
risk assessments related to ``one-person train crews,'' as this rule 
applies to one-person train crew operations and

[[Page 25088]]

does not apply to autonomous operations.
    This final rule defines ``switching service or operation'' in the 
same way as the proposed definition did for ``switching service.'' The 
change in the term's name will harmonize it with its use throughout 
part 218. ``Switching service'' and ``switching operation'' are used 
interchangeably throughout part 218 and in this final rule.
    In this final rule, FRA has added a definition for ``unit freight 
train.'' As used in this final rule, ``unit freight train'' means a 
freight train composed of cars carrying a single type of commodity. In 
the NPRM, FRA proposed an exception for a ``mine load out, plant 
dumping, or similar operation'' that included a definition of a unit 
freight train. FRA moved the proposed ``unit freight train'' definition 
into the definitions section, and the ``mine load out, plant dumping, 
or similar operation'' exception that was proposed in Sec.  218.129(a) 
is in Sec.  218.127(a) of this final rule.

Section 218.99 Shoving or Pushing Movements

    This final rule amends this section to remove ambiguity and 
harmonize three current requirements with terms that that will apply to 
the entirety of part 218.
    Paragraph (a)(2) is amended to change ``switching activities'' to 
``switching service activities,'' which will thereby invoke the 
definition added in Sec.  218.5 for ``switching service or operation.'' 
The amendment will not change the meaning of the section but may help 
clarify what is meant by switching service as that term will now be 
defined.
    Paragraph (b)(3) will be amended to change ``a lite locomotive 
consist'' to ``a lite locomotive train with two or more locomotives 
that is operated from a single control stand.'' This revision will 
allow FRA to remove the definition of ``lite locomotive consist'' in 
Sec.  218.93, as the term is not used elsewhere in part 218. This 
revision will also allow FRA to use the term ``lite locomotive train,'' 
which is defined in Sec.  218.5. The amendment will not change the 
meaning of the section.
    Paragraph (e)(2) will be amended to remove the term ``manned helper 
locomotives'' and replace it with ``helper service train operation'' 
which is defined in Sec.  218.5. A helper service train operation has 
the same meaning as helper locomotives with a train crew. Thus, rather 
than using different terminology that has the same meaning within part 
218, this final rule will amend this paragraph.

Section 218.121 Purpose and Scope

    Generally, the purpose and scope of this final rule remain the same 
as proposed--to ensure trains are adequately staffed and have 
appropriate safeguards in place for safe train operations under all 
operating conditions. Accordingly, FRA is adopting paragraph (a) as 
proposed, making minor editorial revisions to paragraph (b), and adding 
a new paragraph (c) which essentially moves the proposed exception for 
remote control operations, previously found in proposed Sec.  
218.129(c)(3), to a new paragraph (c) of this section. FRA is modifying 
paragraph (b) of this section to replace the references to ``train crew 
staffs'' and ``crew staffing,'' with the terms ``train crews'' and 
``crew size'' respectively. These revisions are for clarity and 
readability only. No substantive change is intended. Consistent with 
the NPRM, paragraph (b) further notes that: (1) the minimum crew size 
requirements in the final rule reflect the potential safety risks posed 
to railroad employees, the public, and the environment; (2) the final 
rule prescribes minimum requirements for the location of a second train 
crewmember on a moving train and promotes safe and effective teamwork; 
and (3) railroads may prescribe additional or more stringent 
requirements in operating rules, timetables, timetable special 
instructions, and other instructions.
    Paragraph (c) of the final rule has been added based on comments 
received. In the discussion of comments and conclusions, FRA explained 
commenters' concerns with the exception for remote control operations 
as proposed in Sec.  218.129(c)(3). For the reasons explained in FRA's 
response to those comments, FRA has not adopted the exception; instead, 
FRA has added paragraph (c) to clarify that the requirements in this 
subpart do not apply to a train operation controlled by a remote 
control operator as defined in Sec.  229.5(a) of this chapter.

Section 218.123 General Train Crew Staffing Requirements

    As proposed in the NPRM, this section sets forth the final rule's 
general requirement that trains be operated with a minimum of two 
crewmembers. This final rule substantially adopts paragraphs (a), (b), 
and (d) as proposed, but revises paragraph (c) to allow certain 
exceptions to the requirement for two crewmembers on trains 
transporting certain types and quantities of hazardous materials. 
Consistent with the edits made throughout this final rule, FRA is 
revising the reference to ``train crew staffing'' in the section 
heading and the heading for paragraph (b) to ``train crew size 
safety.'' These changes do not change the meaning and thus the analysis 
provided in the NPRM is applicable for paragraphs (a) and (b).
    In the NPRM, paragraph (c) proposed to mandate, without exception 
or special approval eligibility, two crewmembers be assigned to trains 
transporting certain quantities and types of hazardous materials that 
have been determined to pose the highest risk for transportation from 
both a safety and security perspective. As explained in the discussion 
of comments and conclusions above, however, FRA determined that certain 
exceptions, including special approval eligibility, could be permitted 
while still allowing for safe operations. Those exceptions can be found 
in Sec.  218.129(a)(1) and Sec.  218.131(a)(2). The final rule retains 
the two-person requirements for trains transporting the same types and 
quantities of hazardous materials as was proposed in the NPRM when 
these exceptions do not apply. The final rule's requirements include a 
specific reference to a two-person train crew requirement for each 
high-hazard flammable train (HHFT) as defined in Sec.  171.8 of this 
title when an exception does not apply. The requirement in paragraph 
(c)(2) of the final rule would cover HHFT as currently defined by 
PHMSA, and the requirement in (c)(1) will ensure HHFT will continue to 
be covered if PHMSA amends its current HHFT definition.

Section 218.125 Specific Passenger and Tourist Train Operation 
Exceptions to Crew Size Safety Requirements

    This section, proposed as Sec.  218.127 in the NPRM, addresses 
passenger and tourist train operations that are not subject to the 
rule's crew size safety requirements. Although this final rule adopts, 
in Sec.  218.125, the general provisions of proposed Sec.  218.127, FRA 
is making editorial revisions to the section heading and paragraph (a) 
along with adding a new paragraph (e) to this section addressing 
certain existing one-person train crew operations.
    Specifically, consistent with the edits made throughout this final 
rule, FRA has revised the ``crew staffing'' reference in the section 
heading to ``crew size safety.'' FRA is also rephrasing paragraph (a) 
for ease of reading. As proposed, paragraph (a) identified passenger 
and tourist operations that would ``not require'' a minimum of two 
crewmembers. In this final rule, FRA is rephrasing paragraph (a) to 
affirmatively state that certain tourist and passenger

[[Page 25089]]

train operations ``may be'' operated with a one-person train crew. This 
change from the proposed rule is intended to remove any ambiguity 
regarding the type of operations that will be excepted through this 
section and does not change the section's meaning from that proposed. 
Thus, the analysis provided in the NPRM is applicable for paragraphs 
(a) through (d) of this section.\313\
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    \313\ 87 FR 45590-91.
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    A substantive change from the NPRM is the addition of paragraph 
(e), which provides an exception for existing passenger train 
operations with one-person train crews for which FRA has already 
approved the operation's required passenger train emergency 
preparedness plan under part 239.

Section 218.127 Specific Freight Train Exceptions to Crew Size Safety 
Requirements

    Proposed as Sec.  218.129 in the NPRM, this section addresses 
freight train exceptions to crew size safety requirements. Consistent 
with edits made elsewhere in this final rule, FRA has revised the 
section heading to refer to ``crew size safety,'' as opposed to ``crew 
staffing.'' FRA is also adding an introductory sentence to the section 
and moving the substance of proposed paragraph (b) to Sec.  218.129.
    As in the NPRM, paragraph (a) lists the requirements for an 
exception for a unit freight train when it is loading or unloading as 
part of a mine load-out, plant dumping, or similar operation. In this 
final rule, FRA is adopting paragraph (a) essentially as proposed, with 
the exception of removing the definition of ``unit freight train'' from 
the paragraph. As discussed above, in this final rule, the definition 
for that term is found in Sec.  218.5. Further, because the proposed 
requirements for the ``mine load out'' exception in paragraph (a) were 
originally in one long paragraph, this final rule places equivalent 
requirements in a numbered list for ease of use (paragraphs (a)(1)-
(5)). This formatting change does not affect the paragraph's meaning 
except for paragraph (a)(4), which does not contain the proposed 
requirement that a one-person train crewmember during mine load out, 
plant dumping, or similar operations must be prohibited from performing 
any duties that would require a second crewmember, as it instead 
specifies the duties that will be prohibited. Although the NPRM's 
analysis provided some examples of prohibited duties, FRA decided that 
greater clarity could be achieved by specifying the examples in the 
regulatory text, instead of mandating the more broadly stated proposed 
requirement. The prohibited duties are operation of a hand-operated 
switch, filling out paperwork, or calling out signal indications during 
the loading or unloading process. Otherwise, the analysis provided in 
the NPRM is applicable for this paragraph.\314\
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    \314\ 87 FR 45591-92.
---------------------------------------------------------------------------

    FRA is not adopting paragraph (b) as proposed. Instead, FRA is 
reserving paragraph (b) of this section for future use and, as 
discussed in the analysis of Sec.  218.129 below, has included some of 
the requirements and exceptions from proposed paragraph (b) in Sec.  
218.129.

Section 218.129 Conditional Exceptions Based on Compliance Dates for 
Class II and III Legacy Freight Train Operations, Certain Other Class 
II and III Freight Railroad Train Operations, Work Train Operations, 
Helper Service Train Operations, and Lite Locomotive Train Operations 
Staffed With a One-Person Train Crew

    This section of the final rule consolidates various proposed 
requirements and exceptions to the two-person train crew mandate and, 
therefore, includes many of the same or similar requirements to those 
proposed in Sec. Sec.  218.125, 218.129, and 218.131 of the NPRM. 
Consolidating these exceptions and requirements in this section makes 
the rule more concise, eliminating the need to repeat certain 
requirements shared by each of the exceptions as it did in the NPRM. 
However, because there were changes to the requirements for some of the 
proposed exceptions, FRA is not relying on the analysis in the NPRM for 
this section.
    Paragraph (a) provides that a railroad is not required to comply 
with the requirements in this section for each one-person train crew 
operation that is governed by an exception in another section of this 
subpart. Thus, this section does not apply to the specific passenger 
and tourist train operation exceptions in Sec.  218.125 or the specific 
freight train exceptions in Sec.  218.127. The train operation 
exceptions described in this section that provide for a one-person 
train crew are listed in paragraph (a) along with the requirements that 
will apply depending on the exception, as discussed further below.
    The purpose of paragraph (a)(1), which is based on the exception 
proposed in Sec.  218.131 of the NPRM, is to provide a way for each 
Class II and III railroad to continue a legacy one-person train crew 
freight operation after the effective date of this final rule, while 
ensuring each railroad with such a legacy operation will have 
sufficient time to add any necessary, minimum safeguards to protect 
rail employees, the public, or the environment. FRA is defining a 
legacy one-person train crew freight operation as one that a railroad 
established at least two years before the effective date of this final 
rule. Pursuant to this exception, a legacy operation may continue 
transporting hazardous materials of the types or quantities specified 
in Sec.  218.123(c) if the railroad can show it had such an established 
operation for at least two years before the effective date of the final 
rule. Although this notification requirement is not an approval 
process, compliance with the requirement is mandatory to use the legacy 
one-person train crew freight operation exception. In meeting the 
written notice requirements in paragraph (b) of this section, the 
railroad is required to provide the evidence necessary to establish the 
existence for at least two years of such a legacy one-person train crew 
freight operation. For example, in paragraph (b)(2), the final rule 
requires that the written notice include business records or other 
written documents supporting the legacy operation was established for 
at least two years before the rule's effective date. For a railroad to 
have an operation ``established at least two years before,'' FRA means 
that during that two-year period, an operation must have occurred at 
regular intervals under a set of defined procedures or conditions. It 
will be acceptable if a railroad's evidence for the one-person train 
crew operation shows that the railroad occasionally substituted a 
multi-person train crew; yet, FRA expects the evidence will show the 
railroad typically used the one-person train crew where circumstances 
allowed for the one-person operation. If a railroad did not conduct 
one-person train crew operations regularly, even where circumstances 
allowed, the existence of a legacy operation will likely not be 
considered established, and the railroad will need to consider whether 
another exception will be applicable or whether it will request special 
approval. Similarly, if a railroad cannot establish that its legacy 
one-person train crew freight operation was transporting hazardous 
materials of the types or quantities specified in Sec.  218.123(c), it 
will not be permitted to initiate such an operation under this 
exception and must consider whether another exception will be 
applicable or whether it will request special approval.

[[Page 25090]]

    Paragraph (a)(1)(i) prohibits a Class II or III railroad from 
continuing a legacy one-person train crew freight operation beyond 90 
days after the effective date of this final rule if the railroad fails 
to provide FRA with written notice meeting the requirements in 
paragraph (b). Hence, each railroad that established a legacy one-
person train crew freight operation for at least two years before the 
effective date of this final rule would need to decide whether it wants 
to continue the operation beyond 90 days after the effective date of 
this final rule; if it does, the railroad will be required to provide 
FRA with written notice meeting the requirements in paragraph (b), 
unless the operation is covered under one of the exceptions in 
Sec. Sec.  218.125 or 218.127.
    For those legacy one-person train crew freight operations that 
provide FRA with written notice meeting the requirements in paragraph 
(b), the railroad will be permitted to continue the operation beyond 90 
days after the effective date of the final rule if the railroad also 
complies with the additional requirements in paragraphs (c)(1) and (2) 
of this section. For these legacy one-person train crew freight 
operations, FRA will permit a railroad to phase in the additional 
requirements in paragraph (c). A railroad with such a legacy operation 
that does not implement all the additional requirements by each 
deadline will not be permitted to continue the operation. Further, a 
railroad that allows its legacy operation to lapse at one of the 
deadlines will not be permitted to utilize this exception if it wants 
to restore that legacy operation at a later date.
    Paragraph (a)(2) will permit each Class II and III freight railroad 
an opportunity to initiate a train operation with a one-person crew 
under certain conditions. The operations under this exception will be 
limited to a train that will not be transporting hazardous materials of 
the types or quantities specified in Sec.  218.123(c). Under paragraph 
(a)(2)(i), this exception will require that a railroad, before 
commencing the operation, provide FRA with written notice that contains 
the information required by paragraph (b) of this section. Under 
paragraph (a)(2)(ii), this exception will require a railroad to comply 
with the additional requirements in paragraph (c) of this section 
without a phase-in of compliance dates for those additional 
requirements. FRA determined that the initiation of a new one-person 
train crew operation without an FRA review process should, at a 
minimum, have already implemented the additional requirements in 
paragraph (c) of this section, which will allow the railroad to begin 
the operation with significant safeguards already in place. In 
contrast, the other exceptions in paragraph (a) are largely directed 
for existing operations that are already in wide use and, thus, 
requiring immediate implementation upon the effective date of the final 
rule for those other exceptions would have the potential to be 
disruptive to normal railroad operations.
    Thus, to meet the requirements of this exception in paragraph 
(a)(2), a railroad's one-person train crew operation will be required 
to use a locomotive equipped with alerters and comply with any required 
operating rules in paragraph (c) from the first day these operations 
are initiated. While this exception is based on the small railroad 
operations exception in proposed Sec.  218.129(c)(1) for a freight 
railroad with fewer than 400,000 total employee work hours annually, 
the exception in this final rule has been expanded to include more 
railroads, and it does not include the speed, grade, and train length 
requirements proposed in the NPRM.
    Paragraph (a)(3), which is based on proposed Sec.  218.129(c)(2), 
specifies the requirements for a work train exception to the two-person 
train crew mandate. The exception applies to work train operations 
regardless of whether they are existing or new operations. Each 
railroad may use a work train with a one-person train crew, including 
when a work train is traveling to or from a work site, as long as the 
railroad complies with the additional requirements in paragraph (c) 
according to the implementation schedule specified. Paragraph (a)(3)(i) 
limits the work train operation exception to non-revenue service trains 
that do not exceed 4,000 trailing tons and are used for the 
administration and upkeep service of the railroad. This work train 
requirement, which is the same as the proposed requirement, is based on 
the definition used in 49 CFR 232.407(a)(4) concerning requiring end-
of-train devices; and, as in that rule, the 4,000 trailing tons or less 
threshold will provide railroads operational flexibility, especially 
smaller railroads.\315\ Work trains mainly haul materials and equipment 
used to build or maintain the right-of-way and signal systems. Work 
trains are unlikely to be hauling hazardous materials (unless extra 
fuel is needed to power machinery) and, because they operate under 
their own set of safety rules, typically at low speeds or restricted 
speed, they pose fewer risks than long-haul trains. They often travel 
at restricted speed, which is a slow speed at which the locomotive 
engineer must be prepared to stop before colliding with on-track 
equipment or running through misaligned switches. For one-person train 
crew work train operations, FRA will permit a railroad to phase in the 
additional requirements in paragraph (c) of this section based on the 
implementation schedule provided.
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    \315\ 62 FR 278, 282 (Jan. 2, 1997).
---------------------------------------------------------------------------

    Paragraph (a)(4), which is based on proposed Sec.  218.125(a), 
specifies the requirements for a helper service train operation 
exception to the two-person train crew mandate. The exception applies 
to helper service train operations regardless of whether they are 
existing or new operations. Each railroad will be able to consider 
using a helper service train with a one-person train crew, including 
when a helper service train is traveling to or from a work site, as 
long as certain requirements are met. The definition for a ``helper 
service train operation'' in the definitions section of this final 
rule, Sec.  218.5, means the train is a locomotive or group of 
locomotives being used to assist another train that has incurred 
mechanical failure or lacks sufficient tractive force necessary to 
traverse a particular section of track due to train tonnage and the 
grade of the terrain. Helper service is a common service performed in 
the railroad industry as a one-person operation. It is typically not 
considered a complex operation, and FRA does not expect this type of 
operation will pose a significant risk to railroad employees, the 
public, or the environment. As with each of these exceptions, a 
railroad may decide that a certain helper service train operation is 
complex and that more than one crewmember should be assigned to the 
operation. Moreover, FRA notes that, while the helper locomotive itself 
may be operated with a one-person train crew, the train it is helping 
may be required to have a two-person crew, and the fact that a helper 
locomotive is assisting would not impact the number of crewmembers 
required for the train. For one-person train crew helper service 
operations, FRA will permit a railroad to phase in the additional 
requirements in paragraph (c) according to the implementation schedule 
specified.
    Paragraph (a)(5), which is based on proposed Sec.  218.125(b), 
provides an exception from the two-person crew requirement for an 
existing or new lite locomotive train operation. Similar to the safety 
rationale for the helper service exception, when a locomotive or a 
consist of locomotives is not attached to any piece of equipment, or 
attached only to a caboose, there is not a

[[Page 25091]]

significant risk to railroad employees, the public, or the environment. 
Lite locomotive train operations are mainly used to move locomotives to 
a location where the locomotives can be better utilized for revenue 
trains that are taking or delivering rail cars to customers, or to 
other railroad yards where the locomotives can be used in switching 
operations. Additionally, lite locomotives may be operating as a train 
to take more than one locomotive to a repair shop for servicing. The 
definition of ``lite locomotive train operation'' is consistent with 
the definition of ``lite locomotive'' in 49 CFR 229.5 of FRA's Railroad 
Locomotive Safety Standards. However, the exception for a lite 
locomotive train operation in this final rule includes a further 
clarification that ``excludes an MU locomotive operation.'' The reason 
for this additional clarification is that an MU locomotive is both a 
locomotive and a car that can transport passengers, and this exception 
will not cover a passenger train operation containing either single or 
multiple MU locomotives. FRA has further clarified the MU locomotive 
exceptions for passenger trains in Sec.  218.125(c). For one-person 
train crew lite locomotive train operations, FRA permits a railroad to 
phase in the additional requirements in paragraph (c) according to the 
implementation schedule specified.
    Paragraph (b) contains a list of the minimum written notice 
requirements for those operational exceptions in paragraph (a) that 
require it, i.e., the exceptions for a Class II or III railroad's 
legacy one-person train crew freight operation and for the Class II or 
III freight railroad that wants to initiate a train operation staffed 
with a one-person train crew that is not transporting hazardous 
materials of the types or quantities specified in Sec.  218.123(c). 
This notice requirement is based on the proposed special approval 
petition requirements in the NPRM for requesting either the continuance 
of a legacy one-person train operation in proposed Sec.  218.131(b) or 
for requesting the initiation of train operations with fewer than two 
crewmembers in proposed Sec.  218.133(b). The written notice 
requirements in this final rule will require each railroad that will be 
using one of these exceptions to provide FRA, by email, with largely 
the same information as the NPRM proposed for these operations, while 
eliminating the proposed special approval process. While the written 
notice requirements, in lieu of a special approval requirement that 
includes a risk assessment, will substantially lessen a railroad's 
burden when compared to the NPRM's proposed requirements for a special 
approval, FRA notes that, for compliance, a railroad's written notice 
must provide complete and accurate information.
    Paragraph (b)(1) requires information about the primary person at 
the railroad who can be contacted about the petition for a special 
approval. The remaining 13 numbered items listed under paragraph (b) 
require an accurate description of the operation, the hazards present, 
the mitigating measures taken to improve safety, and the railroad's 
description of how it determined the operation was safe to implement.
    For a railroad required to meet the written notice requirements, 
paragraph (b)(2) requires the railroad to identify the location of the 
operation with as much specificity as can be provided as to the 
characteristics of the geographic area through which the trains will 
operate (e.g., population density and proximity to environmentally 
sensitive areas), the terrain over which the trains will be operated, 
industries or communities served, and track segments, territories, 
divisions, or subdivisions operated over. In addition, each Class II or 
III railroad with a legacy one-person train crew freight operation will 
also need to include business records or other written documents as 
part of the written notice submission to show that the legacy operation 
was established for at least the two years before the effective date of 
this final rule. For example, documentation could show that a railroad 
established a legacy one-person train crew freight operation running 3 
days per week for 5 years without incident. That kind of information 
would show the extent of the operation and the safety record. Further, 
such a legacy operation must identify the current parameters of the 
operation's location and should not expand the parameters based on 
plans for future expansion, as doing so would be initiating a new 
operation. FRA expects that a Class III railroad is likely to describe 
its legacy operation as covering the entire railroad but also expects 
some short lines to describe an operation covering only a portion of 
its railroad. In comparison, FRA would expect a larger Class II 
regional railroad to describe an operation that covers only a portion 
of the railroad as it might find only some aspects of their entire 
operation were conducive to one-person train crews. A railroad that 
cannot provide records kept in the normal course of business to support 
a legacy operation can consider submitting affidavits from the 
railroad's employees, supervisors or managers, or others, in support of 
the existence and extent of the one-person train crew operation.
    Paragraphs (b)(3) through (7) and (10) are sufficiently descriptive 
that further analysis is generally unnecessary here. However, some 
information that was not proposed in the NPRM has been added to develop 
more fully the overall description of the one-person train crew 
operation. Notably, paragraph (b)(3) specifies that the description of 
track, signal and train control systems, and devices and appliances 
must also include a list of all active and passive highway-rail grade 
crossings, including crossing numbers. The addition of this list should 
be easy to provide as it should be available to train crews in 
timetables, track charts, or other easily reproduced documents. For 
paragraph (b)(7), in addition to any maximum number of cars and tonnage 
set for the operation, FRA included a requirement to provide the number 
and frequency of the trains involved to help fill out the description 
of the operation from both a historical perspective and a frequency of 
risk view. The information required in the written notice will permit 
FRA to identify these operations and evaluate how well each railroad 
has addressed the hazards and risk of the operation.
    Paragraph (b)(8) will require a railroad to state in its written 
notice whether the one-person train crew operation hauls hazardous 
materials of any quantity or type, and the approximate percentage of 
carload traffic in the one-person train crew operation that involves 
hazardous materials. A one-person train crew operation that does not 
haul hazardous materials would present less risk than one that does, 
all else being equal. FRA will require a railroad to approximate the 
percentage of carload traffic in the one-person train crew operation 
that is hazardous materials in its written notice, as each railroad 
should be considering it as a factor in its business decision to deploy 
such an operation under the exceptions to a minimum two-person train 
crew mandate. Considering other issues related to the operation's size 
and scope and understanding the quantity and type of hazardous 
materials hauled will help FRA evaluate the risks posed by an excepted 
operation that is required to file written notice.
    Paragraph (b)(9) will require each railroad that must file written 
notice to include information about whether the railroad places any 
limitations on a person operating as a one-person train crew. FRA 
expects that some railroads will limit a one-person train crew by 
establishing a maximum number of miles or hours the person may work 
during a single tour of duty. It is also

[[Page 25092]]

possible that a railroad will establish a fatigue mitigation plan 
voluntarily and other railroads will establish such a plan because a 
Federal requirement specifies that they do so.\316\ Although this final 
rule does not require a fatigue mitigation plan, the written notice 
requirement will allow FRA to consider this additional information when 
evaluating how each railroad will implement strategies for reducing 
railroad worker fatigue, such as improving the predictability of 
schedules, considering the time of day the railroad permits one-person 
train crews to operate, and educating workers about fatigue and sleep 
disorders. This information may also permit FRA to revisit these types 
of concerns and compare mitigating actions across the industry.
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    \316\ 87 FR 35660 (June 13, 2022) (publishing a final rule on 
``Fatigue Risk Management Programs for Certain Passenger and Freight 
Railroads'' effective July 13, 2022, and codified in 49 CFR part 
270, subpart E and 49 CFR part 271, subpart G).
---------------------------------------------------------------------------

    Paragraph (b)(11) will require a detailed description of any 
technology that is used to perform tasks typically performed by a 
second crewmember or that prevents or mitigates the consequences of 
accidents or incidents. The technologies described must be already 
installed and operational, with all FRA approvals as necessary, so that 
the functionality and impact of the technology on the operation is 
understood and can be effectively communicated to FRA.
    Paragraph (b)(12) will require that the railroad's mandatory notice 
include a copy of any railroad rule or practice that applies to the 
one-person train crew operation but does not apply to train crew 
operations with two or more crewmembers. Receiving this information 
will assist FRA in evaluating the safeguards each railroad has 
voluntarily implemented and to evaluate future effectiveness of these 
types of rules or practices.
    Paragraph (b)(13) will require each Class II or III railroad, 
seeking to continue a legacy freight train operation staffed with a 
one-person train crew, to include with its written notice five (5) 
years of the accident and incident data required by part 225 of this 
chapter, for the operation identified and that the railroad can 
attribute to a one-person train crew operation. If the operation was 
established between two to five years before the effective date of the 
final rule, then the railroad will provide the accident and incident 
data for the operation from the date the operation was established. 
Although current regulations require the railroad to report certain 
``accidents/incidents'' \317\ to FRA, FRA cannot accurately determine 
from that reported information which, if any, reportable accidents/
incidents are attributable to a railroad's one-person train crew 
operation. FRA expects that each railroad will have more information 
about its own accidents/incidents and can identify the data that 
applies to its legacy operation. The railroad must narrow the requested 
data to the location of the legacy operation that the railroad has 
identified in its written notice and only send additional accident/
incident data that pertains to the legacy operation subject to the 
railroad's written notice.
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    \317\ 49 CFR 225.5 (defining four different types of accidents 
or incidents).
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    Paragraph (b)(14) is a catch-all provision that permits a railroad 
filing a written notice to submit any other information describing 
protections that are or will be implemented to support the safety of 
the one-person train crew operation that the railroad wants to share 
with FRA to justify the safety of the operation. FRA expects that some 
railroads would have completed a risk assessment, a safety analysis, or 
compiled a safety data report before implementing a one-person train 
crew operation and that the railroad will share that information to 
show FRA how the hazards were, and will continue to be, mitigated, so 
that operation is as safe or safer than a two-person minimum train crew 
operation.
    Paragraph (c) contains a list of requirements that apply to all 
five exceptions described in paragraph (a). FRA encourages each 
railroad to implement these additional requirements as quickly as 
possible, consistent with the implementation schedule in this final 
rule that phases in requirements for some of the operational exceptions 
to the two-person train crew mandate. Compliance with the adoption of 
operating rules that ensure mitigation measures for certain safety-
critical situations specified, establish radio or wireless 
communications with a one-person train crew that is as safe or safer 
than a two-person train crew for train operations and crewmember 
safety, and require that a one-person train crew's controlling 
locomotive is equipped with a functioning and tested alerter will 
improve the immediate safety of the operation. The establishment of an 
implementation schedule for the four exceptions covering some existing 
operations will allow these operations time to, as necessary, install 
alerters, adopt operating rules, and/or hire and qualify additional 
train crewmembers.
    Paragraph (c) permits FRA to enforce a violation of an operating 
rule required under this paragraph in the same way as if the person 
violated the requirements of this section directly. The paragraph 
clarifies that a ``person'' will not be limited to a railroad employee, 
and may include each railroad, railroad officer, or supervisor. 
Contractors that act in any of those capacities will also be considered 
a person subject to FRA's jurisdiction.
    Paragraphs (c)(1) and (2) require each railroad with an applicable 
one-person train crew operation to adopt and comply with operating 
rules that cover certain safety concerns. These additional requirements 
for the adoption of minimum operating rules are mostly based on the 
proposed requirements in the NPRM for requesting either the continuance 
of a legacy one-person train operation in proposed Sec.  218.131(b)(12) 
and (13) or the initiation of train operations with fewer than two 
crewmembers in proposed Sec.  218.133(b)(12) and (13).\318\
---------------------------------------------------------------------------

    \318\ 87 FR at 45617-19 (citing proposed exceptions under 
Sec. Sec.  218.127 through 218.131).
---------------------------------------------------------------------------

    Similar to the proposal in the NPRM, paragraph (c)(1)(i) requires a 
railroad with a one-person train crew operation to adopt and comply 
with operating rules that address: (A) a release of any hazardous 
material; (B) any accident/incident regardless of whether it is 
reportable to FRA under part 225; (C) a request from an emergency 
responder to unblock a highway-rail grade crossing in response to a 
potentially life-threatening situation; (D) a train or on-track 
equipment derailment; (E) a disabled train; and (F) an illness, injury, 
or other incapacitation of the one-person train crewmember. This 
requirement will ensure that each railroad with a one-person train crew 
operation has operating rules specifying how the railroad will respond 
to these types of events and therefore will be prepared to take 
mitigating measures knowing that a second crewmember will not be 
traveling on the train and available to assist in a response. Although 
similar to the proposal in the NPRM, the various operating rule 
requirements that applied only to the proposed continuance of legacy 
train operations staffed with a one-person crew or for the initiation 
of train operations staffed with fewer than two crewmembers raise 
broadly applicable safety concerns for almost all one-person train crew 
operations; therefore, FRA determined these requirements are necessary 
for all the exceptions permitted by this section, not only the ones 
similar to the requirements as proposed in the NPRM.

[[Page 25093]]

    The requirement that the operating rule address a disabled train 
does not depend on the cause, which could include a track washout or 
other severe weather event, mechanical breakdown, accident, or other 
circumstances that prevent the train from moving. In some 
circumstances, a significant operational issue could disable a one-
person crew's train (e.g., if the one crewmember's hours of service 
expired, and the railroad has not adequately prepared to retrieve and 
replace the crewmember).\319\ A one-person train crew could also be 
considered disabled from an operational view if the railroad assigns a 
one-person crewmember that is unqualified to operate over the territory 
assigned and the crewmember is not provided with a qualified pilot. In 
that circumstance, the one-person train crewmember might not be able to 
move the train or might be operationally limited in how the train can 
be moved thereby equating to a disabled train situation caused by 
physical breakdowns in equipment, track, or signal systems. A railroad 
would not have to adopt or comply with an operating rule to address 
operational delays typical of normal railroad operations, such as one 
train waiting in a siding for another to pass, as that operational 
activity would not be considered disabling the train; FRA expects that 
each railroad is trying to optimize its performance and would avoid 
unnecessary operational delays whenever possible.
---------------------------------------------------------------------------

    \319\ 87 FR at 45597.
---------------------------------------------------------------------------

    In addition to addressing disabled trains, this final rule requires 
that the railroad's operating rule address, at a minimum, several other 
types of situations. For instance, the operating rule must address an 
accidental or non-accidental release of any hazardous material. This 
means that any release of a hazardous material must be covered whether 
caused by a train collision or a non-accidental release (e.g., a 
release caused by an offeror not properly preparing a shipment for 
transportation). All derailments, accidents, and incidents must also be 
addressed by operating rule. In addition, a railroad's operating rule 
must also address requests from an emergency responder to unblock a 
highway-rail grade crossing in response to a potentially life-
threatening situation.
    Further, as required by paragraph (c)(1)(i)(F), the operating rule 
will need to include mitigation measures to ensure the safety of the 
one-person train crewmember will be addressed in case of illness, 
injury, or another incapacitation. The communication requirements 
specified in paragraph (c)(2), and discussed below, will help each 
railroad with a one-person train crew operation to keep in close 
communication with a one-person train crewmember and, under this 
requirement, the railroad will need to specify who will act and how, 
and plan out how fast the reaction times will be to ensure the 
crewmember's safety.
    Paragraph (c)(1)(i) lists the types of situations that each 
affected railroad must address. The situations listed could involve 
responses requiring protocols for mitigation measures because each 
situation may include potential harm to rail employees, the public, or 
the environment. It is fundamental to rail safety that each railroad 
have an unambiguous operating rule addressing such mitigation measures 
and that by doing so the railroad will demonstrate that it will be 
prepared to respond as quickly as it would if the train were crewed 
with a two-person crew. All of the situations listed are foreseeable 
events on a railroad (and a railroad should in any case seek to 
prevent, and mitigate the impact of, such situations). All railroad 
employees and supervisors must have clearly described roles and 
responsibilities, and all logistics involved and expected response 
times must be clearly described. The reasonableness of the logistics 
and expected response times of each operation will depend on the scope 
of the operation and the potential impact on the public.
    Paragraph (c)(2) requires that each railroad have an operating rule 
to ensure radio or wireless communications with a one-person train crew 
can provide a level of safety for train operations and crewmember 
safety that is as safe or safer than a two-person train crew. The 
paragraph specifies that the required operating rule must cover four 
safety concerns: (i) the one-person train crew must have a working 
radio or working wireless communications on the controlling locomotive 
appropriate for railroad communications to cover those operations, even 
if the railroad is not otherwise required to supply them; \320\ (ii) 
the train dispatcher or operator must confirm with the one-person train 
crewmember that the train is stopped before conveying a mandatory 
directive; (iii) whenever a one-person train crewmember can anticipate 
that radio or wireless communication will be lost, e.g., when entering 
a tunnel, unless a railroad will monitor the train's real-time 
progress, the crewmember must contact another person who would be 
expected to act if communication is lost longer than what is specified 
by the operating rule; \321\ and (4) the railroad must establish 
procedures for when to initiate search-and-rescue operations if all 
radio or wireless communication is lost with a one-person train 
crewmember because the safety of the one-person train crewmember is 
always a fundamental safety concern that a railroad can plan for and 
address in an operating rule.
---------------------------------------------------------------------------

    \320\ Although not a requirement, FRA encourages each railroad 
to provide a redundant electronic device when possible, as FRA's 
requirement is only a safety minimum.
    \321\ The person who would receive such a communication would 
typically be a dispatcher. However, for railroads that do not use 
dispatchers, the person might be a supervisor or manager, an 
intermittently assisting crewmember, or another railroad employee.
---------------------------------------------------------------------------

    Paragraph (c)(3) requires each railroad with an applicable one-
person train crew operation to equip the operation's controlling 
locomotive with a functioning alerter that is operating as intended and 
requires that a one-person train crewmember test the alerter to confirm 
it is working before departure from each initial terminal, or prior to 
being coupled as the lead locomotive in a locomotive consist. This 
requirement is therefore consistent with requirements in Sec.  229.140 
of this chapter for ensuring that an alerter is functioning and 
operating as intended. Class I and II railroads that generally have 
newer locomotives, placed into service on or after June 10, 2013, or 
permit the controlling locomotives to operate at speeds in excess of 25 
mph, will already have locomotives with installed alerters that comply 
with FRA's requirements; thus, the issue of adding an alerter and 
operating rules that address the safety of that alerter will largely be 
an issue for Class III railroads whose locomotives may lack such an 
alerter or have an older style of alerter installed.\322\ That is, FRA 
is aware that some Class II and III freight railroads have alerters 
that do not meet, and are excepted from, these requirements. FRA also 
recognizes it may be less expensive to install a basic alerter that 
lacks all the functions of an alerter meeting FRA's current 
requirements. To address this issue, FRA will allow each railroad that 
limits the one-person train crew's operation to a maximum authorized 
speed of 25 mph to use a locomotive alerter that does not otherwise 
meet the requirements for alerters in Sec.  229.140, if the alerter has 
a manual reset and will result in a penalty brake application that 
brings the locomotive or train to a stop if not properly acknowledged. 
Of course, if

[[Page 25094]]

the railroad is required to have an alerter that complies with Sec.  
229.140, this provision does not provide an alternative to that 
existing requirement.
---------------------------------------------------------------------------

    \322\ 49 CFR 229.140(a).
---------------------------------------------------------------------------

Section 218.131 Special Approval Petition Requirements for Train 
Operations Staffed With a One-Person Train Crew

    This section, which is based on proposed Sec.  218.133, has a 
modified section heading to clarify that the section's requirements 
regarding the special approval petition will cover all special approval 
petition requirements, thus including requirements for both the 
initiation of new operations and potentially the continuation of some 
existing operations that are not otherwise exempted; on this issue, the 
proposed section was limited to the special approval petition 
requirements for only the initiation of train operations staffed with 
fewer than two crewmembers. Also, as changed in other sections, the 
``fewer than two crewmembers'' phrase has been replaced for clarity 
with ``a one-person train crew,'' as this final rule only addresses 
one-person train crew operations and does not apply to autonomous 
operations.
    Similar to the NPRM, paragraph (a)(1) prohibits a railroad from 
operating a train with a one-person train crew unless it receives 
special approval for the operation as required by this subpart or the 
operation complies with one of the exceptions specified in Sec. Sec.  
218.125 through 218.129. This paragraph has an option that will allow a 
railroad with an existing operation that is not otherwise excepted to 
continue that operation in the interim period before it receives FRA's 
decision on a special approval petition. For example, this option would 
apply to a Class II or III railroad's existing one-person train crew 
freight operation transporting hazardous materials of the types or 
quantities specified in Sec.  218.123(c) that was initiated less than 
two years before the effective date of the final rule (and therefore 
does not qualify for the legacy operation exception in Sec.  
218.129(a)(1)). As provided in paragraph (a)(2), there are three 
conditions for continuing that operation during this interim period 
before FRA decides on the special approval. First, the railroad must 
submit a written notice by email to FRA no later than 15 days after the 
effective date of the final rule. The written notice must include a 
summary of the railroad's operation, which is not expected to be as 
thorough as the description provided with the special approval petition 
that will be filed later. The written notice must also include the 
contact information for the railroad's primary point of contact on the 
operation. Second, FRA may identify existing safety hazards with any 
aspect of the one-person train crew operation and will coordinate with 
the railroad about such safety hazards that are required to be 
corrected, could be readily mitigated, or otherwise should be 
addressed. For example, if FRA finds that the operation is occurring 
over track or with rolling equipment that does not meet existing 
Federal standards, the railroad will need to coordinate with FRA on 
remedial action to redress the problems and to provide assurances that 
the railroad will prevent future occurrences. Similarly, although a 
railroad will address safety hazards in the risk assessment submitted 
as part of a special approval petition, FRA will examine the existing 
operation for safety concerns to ensure such concerns are addressed to 
protect the safety of the one-person train crewmember or the 
communities that the trains pass through. Third, the railroad must 
submit its special approval petition meeting all the requirements for 
such a petition no later than 60 days after the effective date of the 
final rule. This deadline is necessary so that the review and decision-
making process for these operations of less than two years can be 
processed quickly. As a practical matter, during the interim 60-day 
period from the effective date of the rule until the special approval 
petition deadline, a railroad may consider changing its one-person 
train crew operation to avoid having to submit a special approval 
petition by adding a second crewmember or changing aspects of the 
operation so that the operation otherwise complies with this final 
rule; in such circumstances, the railroad would no longer need to avail 
itself of this option. Because the final rule expressly permits a 
railroad to continue the operation in accordance with the requirements 
in this section ``pending FRA's decision on the railroad's special 
approval petition,'' if FRA requires additional information or requests 
modifications after receiving the petition, the railroad will have the 
discretion to continue the operation until FRA issues a decision on the 
petition.
    As discussed in the response to comments above, paragraph (a)(3) 
has been added to the final rule. Each freight railroad seeking to 
either initiate or continue a train operation with a one-person train 
crew that may transport hazardous materials of the types or quantities 
specified in Sec.  218.123(c) is required to receive FRA's special 
approval for the operation and to comply with the requirements in Sec.  
218.129(c). The paragraph thus requires those operations to have 
operating rules that address taking mitigation measures under specified 
situations, operating rules addressing the communication and safety 
concerns associated with a one-person train crew operation, and 
operating rules requiring a one-person train crew's controlling 
locomotive to be equipped with a functioning alerter and the testing of 
that alerter to determine it is functioning, in addition to requiring a 
special approval petition that includes a risk assessment.
    Paragraph (a)(4) was originally proposed as Sec.  218.133(a)(2), 
and the requirements are the same as proposed. Accordingly, the 
analysis provided in the NPRM is applicable for this paragraph.\323\
---------------------------------------------------------------------------

    \323\ 87 FR 45597.
---------------------------------------------------------------------------

    Paragraph (b), which is based on proposed Sec.  218.133(b), 
contains the minimum petition requirements for a railroad to request 
FRA's special approval to initiate a train operation with a one-person 
train crew that is not otherwise permitted by one of the exceptions. 
FRA expects that a petition meeting these minimum requirements will 
contain sufficient information for FRA to issue a decision. In the 
NPRM, FRA stated that it would determine whether approving the petition 
operation is ``consistent with railroad safety.'' In this final rule, 
FRA will be determining whether approving the operation described in 
the petition is ``as safe or safer'' than a two-person train crew 
operation. The reason for changing the standard to ``as safe or safer'' 
is to coincide with the risk assessment that a railroad must include as 
part of its petition. In the risk assessment, a railroad will compare 
the risks associated with the one-person train crew operation to those 
associated with the operation if it were performed by a two-person 
train crew. Accordingly, FRA will approve a petition for a one-person 
train crew operation only where the risk assessment shows that it will 
be as safe or safer than a two-person train crew operation.
    Where the requirements in paragraph (b) are substantively different 
than proposed, this analysis will address those differences.\324\ 
Otherwise, because the changes from the proposed rule will not change 
the paragraph's meaning, the

[[Page 25095]]

analysis provided in the NPRM is applicable for this final rule.\325\
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    \324\ FRA notes that it did not adopt proposed paragraph Sec.  
218.133(b)(14) in this final rule.
    \325\ 87 FR 45597-98.
---------------------------------------------------------------------------

    Paragraph (b)(8) will require a railroad to state in its petition 
for special approval whether the railroad is seeking approval to 
transport hazardous materials of any quantity and type. The term 
``hazardous materials'' is defined by PHMSA in 49 CFR 171.8. The final 
rule differs from the NPRM in that it contains the additional 
requirement that a railroad answer whether it is transporting hazardous 
materials listed in Sec.  218.123(c), because those are the materials 
identified as posing the greatest safety and security risks in 
transportation.
    Paragraph (b)(13) requires a railroad to submit with a special 
approval petition a copy of a railroad operating rule that will apply 
to the proposed train operation(s) with a one-person train crew, and 
which complies with the requirements of Sec.  218.129(c)(1) to ensure 
rail employees can take mitigation measures that provide a level of 
safety that is as safe or safer than a two-person train crew operation 
to address certain situations with the one-person train crew operation. 
In the NPRM, FRA described a disabled-train/post-accident protocol, 
which largely proposed the same requirement as in this final rule. The 
final rule provides clarity to the types of situations that will be 
required to be addressed in such an operating rule. The final rule also 
will require the same operating rule for an exception to the two-person 
train crew mandate under Sec.  218.129(c)(1) as it will for an 
exception permitted by special approval under this section. As proposed 
in the NPRM, the final rule will also permit a passenger train 
operation, with an approved emergency preparedness plan under part 239, 
to omit this requirement as duplicative.
    Paragraph (c) did not change from the NPRM and provides railroads 
notice that FRA may request any additional information, beyond what the 
railroad provided in the petition.

Section 218.133 Risk Assessment Content and Procedures

    This section, which was proposed as Sec.  218.135, contains the 
minimum requirements for a railroad's risk assessment under this 
subpart. As stated in the NPRM, the goal of a risk assessment is to 
assess risk in an objective manner by following a decision-making 
process designed to systematically identify hazards, assess the degree 
of risk associated with those hazards, and based on those assessed 
risks, identify and implement measures to minimize or mitigate the 
risks to an acceptable level. For this rule, a risk assessment is the 
process of determining, either quantitatively or qualitatively, or 
both, whether the level of risk associated with a proposed one-person 
train operation, when mitigated, is as safe or safer than the same 
operation operated with a two-person crew minimum.
    In this final rule, FRA has modified the risk assessment process 
and standard from the NPRM for several reasons described above in the 
discussion of comments and conclusions and further summarized here. The 
overall approach was to remove proposed requirements that might be 
viewed as difficult to meet and to provide railroads with more 
flexibility in adopting a risk assessment approach. One major 
difference from the NPRM led FRA to revisit aspects of the proposed 
quantitative risk-based hazard analysis and move it to appendix E, 
where it has been identified as one risk assessment approach. Although 
some commenters objected to the proposed version of this approach, FRA 
is retaining the overall approach in the rule, so it is readily 
available to those railroads who may want to apply an objective 
approach that is already approved by FRA. Similarly, FRA is also 
addressing the concerns raised relating to a quantitative assessment 
that calculates a mean time to hazardous event, noting that not all 
railroads may have the historical safety data to perform the 
calculations required in the NPRM with the level of statistical 
confidence. Addressing the issue of flexibility in adopting an 
approach, the risk-based hazard analysis in the final rule provides for 
a comparison, allowing for a qualitative approach as well as a 
quantitative approach, including use of both approaches in the overall 
analysis. These changes are consistent with the system safety program 
and risk reduction program rules, which require a risk-based hazard 
analysis as part of the risk-based hazard management program. Providing 
for use of a similar form of analysis will help address concerns 
regarding the complexity and burden of the risk assessment.
    Paragraph (a) of this section sets the minimum standards for the 
risk assessment's content and analysis requirements while paragraph (b) 
allows a railroad to use alternative risk assessment methodologies and/
or procedures if approved by the Associate Administrator for Safety.
    Paragraphs (a)(1) through (4) require a railroad's risk assessment 
to contain: (1) a complete description of the proposed operating 
environment, including a list and description of all functions, duties, 
and tasks associated with the operation of a train as proposed, 
performed by the one-person train crewmember, other railroad 
employee(s), or equipment; (2) a description of the allocation of all 
functions, duties, and tasks to the one-person train crewmember, other 
railroad employee(s), or equipment; (3) a risk-based hazard analysis 
for the proposed train operation's functions, duties and tasks that 
will identify new hazards, changes to existing hazards and/or changes 
to the risk of an existing hazard associated with the proposed train 
operation, as compared to a two-person minimum train crew operation, 
and then once mitigated, demonstrate that the proposed operation is as 
safe or safer than a train operation with a two-person minimum train 
crew; and (4) a mitigation plan that documents the design and 
implementation timeline of the sustained mitigation strategies to 
eliminate or reduce the overall risk to a level such that the one-
person train crew operation is as safe or safer than a two-person 
minimum train crew operation considering mitigation design and human 
factors, at a minimum.
    Using the information gathered in response to paragraphs (a)(1) and 
(2), paragraph (a)(3) requires a railroad to complete a risk-based 
hazard analysis that involves multiple steps. The first step, under 
paragraph (a)(3)(i), will be to identify any new hazards, changes to 
existing hazards, and/or changes to the risk of an existing hazard 
associated with the proposed one-person train operation, as compared a 
two-person minimum train crew operation. A ``hazard,'' as defined in 
Sec.  218.5, is an existing or potential condition that can lead to an 
unplanned event or series of events (i.e., mishap) that can cause an 
accident or incident; injury, illness, or death; damage to or loss of a 
system, equipment, or property; or environmental damage. Identifying 
relevant hazards and preparing a hazard analysis are fundamental to the 
process of assessing risk. This hazard analysis must take account of 
all aspects of the railroad's system, including at a minimum 
infrastructure, equipment, technology, work schedules, mode of 
operation, operating rules and practices, training and other areas 
impacting railroad safety. As mentioned with regard to paragraph 
(a)(1), the operating environment, as documented in the special 
approval petition as required by Sec.  218.131(b), must also be 
considered as part of the hazard analysis. Next, under paragraph 
(a)(3)(ii), each risk associated with the new or changed hazard must be 
evaluated, either qualitatively or

[[Page 25096]]

quantitatively, or both, in terms of the severity and likelihood of a 
mishap. The third step, under paragraph (a)(3)(iii), will be to 
identify mitigations that will be put in place to minimize or eliminate 
any new or changed hazard or any change to the risk of a hazard, and 
then recalculate in terms of severity and likelihood the risk of a 
mishap. The fourth and final step, under paragraph (a)(3)(iv), will 
require the railroad to provide a statement with supporting evidence 
that the one-person train crew operation with a fully implemented 
mitigation plan, is as safe or safer than a two-person minimum 
operation.
    The alternative standard in paragraph (b) has the same meaning as 
the requirement proposed in Sec.  218.135(b), with the only change from 
the proposal being that the term ``Associate Administrator'' is 
clarified as the ``Associate Administrator for Safety.'' Thus, the 
analysis for this paragraph in the NRPM applies the same.\326\
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    \326\ 87 FR 45603.
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Section 218.135 Special Approval Procedure

    Other than deleting some cross-references and updating the standard 
for a petition approval (i.e., as safe or safer), this section is 
unchanged from proposed Sec.  218.137. Paragraph (e) contains the same 
requirements as in the proposed rule, except that the final rule 
organized the requirements in a chronological order. Thus, the analysis 
provided in the NPRM is applicable for this section.\327\ FRA 
encourages railroads to approach FRA should they have any questions or 
concerns about demonstrating compliance with the requirements for train 
operations staffed with a one-person crew.
---------------------------------------------------------------------------

    \327\ 87 FR 45603-04.
---------------------------------------------------------------------------

Section 218.137 Annual Railroad Responsibilities After Receipt of 
Special Approval

    In the NPRM, this section was proposed as Sec.  218.139. The 
changes from the proposed rule are consistent with other changes made 
in the final rule, and the section's meaning has not changed. Thus, the 
analysis provided in the NPRM is applicable for this section.\328\ The 
following explanation provides additional information for clarity.
---------------------------------------------------------------------------

    \328\ 87 FR 45604-05.
---------------------------------------------------------------------------

    Paragraph (a) requires each railroad that receives special approval 
to use an operation with a one-person train crew under this subpart to 
conduct a formal review and analysis each calendar year, of the one-
person train crew operation, and report to FRA its findings and 
conclusions from its review no later than March 31 of the following 
year by email. The final rule clarifies that the review and analysis 
that will be required is the annual report and that the requirements in 
paragraphs (b) and (c) of this section describe the components of a 
railroad's annual report. Because, unlike the proposal in the NPRM, the 
final rule will not require special approval for certain existing 
passenger and freight train operations staffed with a one-person train 
crew, this section does not contain citations or references that 
include such operations as requiring an annual report.
    Paragraph (b)(1)(ix) was changed from the proposed requirement to 
provide clarity. In the NPRM, the proposed requirement would have 
required a railroad to report the total number of instances where a 
person certified as both a locomotive engineer and conductor had a 
certification revoked for violation of an operating rule or practice 
that occurred when the person was in an FRA-approved train operation 
with fewer than two crewmembers. In this final rule, a railroad will be 
required to report the total number of instances where a one-person 
train crewmember had a certification revoked for violation of an 
operating rule or practice that occurred when the person was operating 
a one-person train crew operation that received special approval under 
this subpart. The change from the proposed rule will clarify that the 
annual report will require inclusion of revocations of a locomotive 
engineer or conductor's certification of the one-person train 
crewmember. The final rule defines the ``one-person train crewmember'' 
to mean the single assigned person who is performing the duty of the 
locomotive engineer and is traveling in the operating cab of the 
controlling locomotive when the train is moving as part of a one-person 
train crew in Sec.  218.5. Thus, the final rule clarifies that a one-
person train crewmember can be a locomotive engineer alone and does not 
also need to be the train's assigned conductor. The final rule also 
clarifies that the annual report must capture the total number of 
instances where a one-person train crewmember's locomotive engineer or 
conductor certification is revoked for a violation of an operating rule 
or practice that occurred when the person was operating a one-person 
train crew operation receiving special approval under this subpart, and 
subtotals for each type of certification revoked; i.e., whether it is a 
locomotive engineer or conductor certification revocation.

Appendix E to Part 218--Recommended Procedures for Conducting Risk 
Assessments

    This appendix provides a quantitative risk-based hazard analysis 
methodology that may be used to meeting the requirements of Sec.  
218.133(a)(3) and is based upon the proposed requirements in Sec.  
218.135 of the NPRM. It provides one acceptable approach that may be 
used by a railroad to prepare a risk-based hazard analysis, which is 
part of the risk assessment required by Sec.  218.133. A railroad that 
is required to obtain FRA's special approval under Sec.  218.135 and 
complete a risk assessment may adopt this approach. A railroad that 
decides to modify this approach or to use a completely different 
approach is required to petition FRA for approval under Sec.  
218.133(b).
    The recommended and acceptable approach is a quantitative risk-
based hazard analysis. A hazard analysis is performed to identify new 
or changed hazards relating to the operation of a one-person train 
crew, as compared to a two-person minimum train crew operation, for 
purposes of eliminating, or at least mitigating, those hazards, thus 
ensuring that the operation by a one-person train crew is as safe or 
safer than that operating by a two-person crew. Paragraph (a) describes 
the first step as identifying all new hazards, changes to existing 
hazards, or changes to the risk of existing hazards, when comparing a 
one-person train crew operation with a two-person minimum train crew 
operation. Paragraph (b) describes the quantitative approach to 
assessing the severity of each of the hazards identified under 
paragraph (a) and the probability of occurrence. Paragraph (c) 
describes the process for applying sustained mitigation strategies and 
the requirement to recalculate the risk based on the implementation of 
those mitigation strategies. Paragraph (d) describes how to prepare a 
risk matrix that classifies the risks calculated in paragraph (c) in 
terms of severity and likelihood of each new hazard, change to an 
existing hazard, or change to the risk of an existing hazard.
    Paragraph (e) describes how to prepare a risk report documenting 
the basis for acceptability of all hazards not eliminated through the 
risk assessment process, i.e., the residual risk associated with the 
remaining partially mitigated or unmitigated hazards identified in the 
risk matrix. Paragraph (f) describes that, for a railroad to exercise 
this option, it must be able to conclude its risk assessment by issuing 
a statement with supporting evidence, that the one-

[[Page 25097]]

person operation with a fully implemented mitigation plan, is as safe 
or safer than a two-person minimum operation.

IV. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    This final rule is a significant regulatory action within the 
meaning of Executive Order 12866 as amended by Executive Order 14094, 
Modernizing Regulatory Review,\329\ and DOT Order 2100.6A (``Rulemaking 
and Guidance Procedures''). Details on the estimated costs of this 
final rule can be found in the RIA, which FRA has prepared and placed 
in the docket (FRA-2021-0032).
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    \329\ 88 FR 21879 (April 6, 2023) located at https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
---------------------------------------------------------------------------

    The final rule requires railroads seeking to operate trains with 
one-person train crews to submit a notification to FRA and in some 
cases, seek FRA approval for such an operation. The petition process 
requires the submission of information to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person 
minimum train crew operation. Class II and Class III railroads not 
transporting certain types or quantities of hazardous materials are 
required to submit a notification to FRA when commencing one-person 
train crew operations, adopt and comply with operating rules necessary 
to ensure the one-person train crewmember's safety and ensure the 
railroad is prepared to take appropriate mitigation measures in 
response to certain safety-critical situations, and equip a one-person 
train crew's controlling locomotive with an alerter.
    FRA analyzed the economic impact of this final rule. FRA estimated 
the costs associated with alerters, operating rules, notification to 
FRA, risk assessments and special approvals, annual reporting after 
receipt of special approval, and Government administration. FRA 
qualitatively discusses the benefits but does not have sufficient data 
to monetize those benefits.
    FRA estimates the 10-year costs of the final rule to be $6.6 
million, discounted at 7 percent. The annualized costs are estimated to 
be $0.9 million discounted at 7 percent. The following table shows the 
total costs of this final rule, over the 10-year analysis period.

                                         Total 10-Year Discounted Costs
                                              [2022 Dollars] \330\
----------------------------------------------------------------------------------------------------------------
                                                                                    Annualized      Annualized
                    Category                       Total cost, 7   Total cost, 3      cost, 7         cost, 3
                                                    percent ($)     percent ($)     percent ($)     percent ($)
----------------------------------------------------------------------------------------------------------------
Alerters (Legacy Operations)....................       2,176,402       2,217,233         309,871         259,927
Alerters (New Operations).......................       2,251,306       2,483,470         320,535         291,138
Operating Rules (Existing Operations)...........         119,954         119,954          17,079          14,062
Operating Rules (New Operations)................         280,824         308,591          39,983          36,176
Notification (Existing Operations)..............         185,114         185,114          26,356          21,701
Notification (New Operations)...................         111,133         122,593          15,823          14,372
Risk Assessment and Special Approval (Class I)..         560,745         570,571          79,837          66,888
Risk Assessment and Special Approval (Class II           162,446         164,506          23,129          19,285
 and III).......................................
Risk Assessment (Material Modifications)........          93,031         111,178          13,246          13,033
Annual Reporting................................         182,821         221,284          26,030          25,941
Government Administrative Cost..................         513,100         579,523          73,054          67,938
                                                 ---------------------------------------------------------------
    Total Costs.................................       6,636,876       7,084,016         944,942         830,463
----------------------------------------------------------------------------------------------------------------

    The primary benefit of this final rule is to ensure that each train 
is adequately staffed and has appropriate safeguards in place for safe 
train operations under all operating conditions. This final rule will 
also ensure that several significant operational safety issues with 
one-person train crews are addressed and allow FRA to collect 
information and data on one-person train crews. For instance, FRA will 
close a safety issue by requiring alerters for Class II and III 
railroads operating with a one-person train crew that do not already 
have these safety devices installed on their locomotives for that type 
of operation. Alerters will ensure that if a crewmember becomes 
unresponsive, the train will apply emergency brakes--a function 
typically left to a conductor or other second crewmember. FRA will also 
address issues that it cannot currently verify are addressed by each 
railroad's one-person train crew operations. These include public and 
rail employee concerns with the operational safety of a train operated 
by a one-person crew, the operational safeguards to protect that 
crewmember in various situations, and the impact of one-person train 
crew operations that travel through communities and need to take action 
to mitigate consequences in certain safety-critical situations. These 
are important safety issues when operating trains with one-person 
crews.
    For Class I railroads operating with one-person train crews and 
Class II and III railroads transporting certain types and quantities of 
hazardous materials, this rule will ensure the railroads identify, 
evaluate, and address safety concerns that may arise from such 
operations by submitting a risk assessment to FRA for approval.
    A second crewmember performs important safety functions that could 
be lost when reducing crew size to one person. The safety requirements 
in this final rule will allow the rail industry to continue, or 
initiate, train operations with a one-person train crew by ensuring 
that at least minimum safety requirements are met and that more complex 
operations make a concerted effort to mitigate the risks of foreseeable 
hazards.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \331\ and Executive Order 
13272 \332\ require agency review of proposed and final rules to assess 
their impacts on small entities. An agency must prepare a Final 
Regulatory Flexibility Analysis

[[Page 25098]]

(FRFA) unless it determines and certifies that a rule will not have a 
significant economic impact on a substantial number of small entities. 
FRA prepared this FRFA to evaluate the impact of the final rule on 
small entities and describe the effort to minimize the adverse impact 
because FRA did not make the determination necessary to avoid it.
---------------------------------------------------------------------------

    \331\ 5 U.S.C. 601 et seq.
    \332\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

1. Statement of the Need for, and Objectives of, the Rule
    Currently, the majority of trains operate with two crewmembers. The 
final rule helps ensure safe rail operations when railroads are using 
one-person train crews, or plan to reduce train crew sizes from two or 
more crewmembers to a one-person train crew, by prohibiting railroads 
from taking on unacceptable levels of safety risks with the potential 
to detrimentally impact railroad employees, the public, or the 
environment.
    This final rule requires that railroads have appropriate safeguards 
in place for safe train operations, whenever a railroad is operating 
with only one crewmember that travels on the train. Although operations 
with one-person train crews already exist in the United States, this 
final rule will help ensure consistency from State to State regarding 
the safety of such operations, and it provides several paths forward 
for railroads that wish to transition to one-person train crew 
operations. Additionally, the annual reporting requirement for 
operations that receive special approval will provide FRA with 
information regarding these one-person train crew operations on a 
periodic basis that is expected to be informative, allow for agency 
oversight, and lead to additional safety improvements.
2. Significant Issues Raised by Public Comments
    FRA received several comments related to the costs of the proposed 
rule. ASLRRA and short line railroads submitted comments related to the 
proposed rule. Issues not concerning the economics of the rule have 
been discussed above in the discussion of comments and conclusions. 
Comments were received from ASLRRA relating to the cost estimates and 
the number of small entities impacted by the rule. ASLRRA's concerns 
included not accounting for the cost of alerters, too low of a cost 
estimate for risk assessments, and a higher number of affected entities 
than what FRA estimated in the proposed rule.
    In response to the affected number of entities, FRA has increased 
the estimate to 75 legacy operations based on comments received in 
response to the NPRM. All but two of these legacy operations are on 
small railroads. Therefore, FRA estimates there are approximately 73 
small railroads currently operating that will be impacted by this final 
rule. FRA has also accounted for the cost for alerters in the final 
rule's RIA. Based on ASLRRA's comment, FRA has included the estimated 
cost of $20,000 per alerter.
    Further, FRA has revised the cost for preparing risk assessments 
from the estimates presented in the NPRM. ASLRRA commented that current 
one-person operations hauling hazardous materials would have to hire 
additional employees because such operations would not be allowed under 
the proposed requirements. However, in the final rule, Class III 
railroads will be allowed to continue legacy one-person train crew 
operations that transport hazardous materials of the types or 
quantities specified in Sec.  218.123(c), provided that they notify 
FRA. Therefore, small railroads with such train operations will be able 
to continue operating with one-person crews and will not need to hire 
additional employees if they adhere to the requirements in this final 
rule. Class III railroads that would like to commence new one-person 
train crew operations transporting certain types and quantities of 
hazardous materials specified in the final rule will need to apply for 
special approval and conduct a risk assessment but should not need to 
hire additional crewmembers to transition from a two-person train crew 
operation to a one-person train crew operation.
3. Response to Comments Filed by the Chief Counsel for Advocacy of the 
Small Business Administration
    FRA received a comment from SBA-Advocacy, asserting that FRA 
appears to have significantly understated the cost and number of small 
businesses that would be impacted by the proposed rule.
    As stated above, FRA has revised the estimated number of small 
entities impacted to 73 railroads with legacy operations, up from the 
original 7 estimated in the RIA for the NPRM. Currently, approximately 
75 railroads operate some trains with one-person crews. All but two of 
those operations are small railroads. Therefore, FRA estimates there 
are approximately 73 small railroads currently operating that will be 
impacted by this final rule.
    SBA-Advocacy also commented that FRA should revise and republish 
its Initial Regulatory Flexibility Analysis (IRFA), or a Supplemental 
IRFA, including further consideration of significant regulatory 
alternatives, for additional public comment before proceeding.
    As FRA has made several changes in the final rule from the proposal 
in the NPRM, FRA is publishing this FRFA to aid the public in 
determining the impact to small entities. FRA has adjusted the costs 
and revised the final rule based on public comments, including comments 
from small entities and SBA-Advocacy. FRA also provided extra time and 
various opportunities (including a public hearing) for interested 
parties, including small entities, to comment.
4. Description and Estimate of the Number of Small Entities to Which 
the Rule Will Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, a ``commuter rail system'' with annual receipts of less than 
$47.0 million dollars, or a contractor that performs support activities 
for railroads with annual receipts of less than $34.0 million.\333\
---------------------------------------------------------------------------

    \333\ U.S. Small Business Administration, ``Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, March 27, 2023. https://www.sba.gov/sites/sbagov/files/2023-06/Table%20of%20Size%20Standards_Effective%20March%2017%2C%202023%20%282%29.pdf.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a proposed statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR part 1201, General Instruction 1-1, which is $20 
million or less in inflation-adjusted annual revenues,\334\ and 
commuter railroads or

[[Page 25099]]

small governmental jurisdictions that serve populations of 50,000 or 
less.\335\ FRA is using this definition for the final rule.
---------------------------------------------------------------------------

    \334\ The Class III railroad revenue threshold is $46.3 million 
or less, for 2022. https://www.ecfr.gov/current/title-49/subtitle-B/chapter-X/subchapter-C/part-1201.
    \335\ See 68 FR 24891 (May 9, 2003) (codified at appendix C to 
49 CFR part 209).
---------------------------------------------------------------------------

    When shaping the final rule, FRA considered the impact that the 
final rule would have on small entities. FRA has provided exceptions to 
the two-person crew requirement which would limit the impact on small 
entities. In addition, tourist train operations that are not part of 
the general system may operate with one-person crews.
    The final rule is applicable to all railroads, although only 
railroads that operate trains with one crewmember would be affected. 
FRA estimates there are 768 Class III railroads, of which 734 operate 
on the general system. These railroads are of varying size, with 
approximately 250 Class III railroads belonging to larger holding 
companies.
    Many small railroads will qualify for an exception under Sec.  
218.129, which allows for one-person operations if a railroad is a 
legacy one-person freight train operation, work train operation, helper 
service train operation, or lite locomotive train operation staffed 
with a one-person train crew. Those railroads will not need to petition 
FRA for special approval for such an operation, nor will they be 
required to submit a risk assessment. They will be required to notify 
FRA of the operation and ensure that they adopt and comply with 
operating rules for the one-person operation and equip the one-person 
train crew's controlling locomotive with an alerter.
    FRA estimates that there are 73 legacy operations on Class III 
railroads. Legacy operations will be required to notify FRA of the 
operation and ensure that they adopt and comply with operating rules 
for the one-person operation and equip the one-person train crew's 
controlling locomotive with an alerter. Over the 10-year analysis, FRA 
estimates an additional 84 Class III railroads will be impacted by this 
final rule; this includes 50 railroads that would be required to notify 
FRA and 34 that would require special approval from FRA. The following 
table shows the estimated number of new one person operations per year 
on Class III railroads.

------------------------------------------------------------------------
                                                             Class III
                                             Class III      railroads,
                  Year                      railroads,        special
                                           notification      approval
------------------------------------------------------------------------
1.......................................              11               7
2.......................................              11               7
3.......................................               5               4
4.......................................               5               4
5.......................................               3               2
6.......................................               3               2
7.......................................               3               2
8.......................................               3               2
9.......................................               3               2
10......................................               3               2
                                         -------------------------------
  Total.................................              50              34
------------------------------------------------------------------------

    Some of those railroads may be some of the same railroads already 
operating a legacy one-person operation. If a railroad is beginning a 
new operation that does not fall under the parameters of the legacy 
operation, it will be required to notify FRA or apply for special 
approval, depending on the commodities transported. All new operations 
will need to adopt and comply with operating rules for one-person train 
crew operations and equip a one-person train crew's controlling 
locomotive with an alerter.
5. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule
    The final rule requires Class III railroads to notify FRA of 
current one-person train crew operations. Those operations must have 
operating rules relevant to one-person train crews and equip one-person 
locomotives with alerters. Class III railroads that commence one-person 
train crew operations that transport hazardous materials of the types 
or quantities specified in Sec.  218.123(c) must apply for special 
approval and conduct a risk assessment. Class III railroads commencing 
one-person train crew operations not hauling the types or quantities 
specified in Sec.  218.123(c) will need to notify FRA of the operation 
but will not need to apply for special approval. Those railroads will 
also need to comply with the requirements for operating rules and 
alerters in locomotives of one-person train crews.
    FRA estimates 73 one-person train crew operations currently exist 
across the Class III railroad industry. The following table shows the 
estimated number of new one-person operations over the 10-year 
analysis. These estimates are used throughout the analysis to estimate 
the impact to Class III railroads.
    Railroads currently operating trains with one-person crews that do 
not have an alerter installed in the locomotive will need to install an 
alerter in a one-person train crew's controlling locomotive within two 
years of the effective date of the final rule.
    Each alerter is estimated to cost $20,000 and each railroad would 
require, on average, 1.5 alerters for one-person train crew operations. 
The following table shows the cost to equip locomotives with alerters.
    Class III railroads with legacy one-person train crew operations 
required to install alerters will have up to two years after the 
effective date of the final rule to install alerters. FRA estimates 
that the cost will be split over the first two years. The following 
table shows the 10-year estimated cost for legacy Class III one-person 
train crew operations to equip locomotives with alerters. The total 
estimated 10-year cost will be $2.2 million. The estimated annualized 
cost will be $301,607 (PV, 7%).

                   Total 10-Year Cost for Alerters, Class III Railroads With Legacy Operations
----------------------------------------------------------------------------------------------------------------
                                                                                   Present value   Present value
                              Year                                Total cost ($)      7% ($)          3% ($)
----------------------------------------------------------------------------------------------------------------
1...............................................................       1,095,000       1,095,000       1,095,000
2...............................................................       1,095,000       1,023,364       1,063,107
3...............................................................               0               0               0
4...............................................................               0               0               0
5...............................................................               0               0               0
6...............................................................               0               0               0
7...............................................................               0               0               0
8...............................................................               0               0               0
9...............................................................               0               0               0

[[Page 25100]]

 
10..............................................................               0               0               0
                                                                 -----------------------------------------------
    Total.......................................................       2,190,000       2,118,364       2,158,107
    Annualized..................................................  ..............         301,607         252,996
----------------------------------------------------------------------------------------------------------------

    The following table shows the cost for new one-person operations on 
Class III railroads to equip locomotives with alerters. The total 
estimated 10-year cost will be $2.5 million. The estimated annualized 
cost will be $296,791 (PV, 7%).

                                                Total 10-Year Cost for Alerters, New Class III Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Number of new
                                                            one- person      Number of    Total cost per                   Present value   Present value
                          Year                            operations per   alerters per     alerter ($)   Total cost ($)      7% ($)          3% ($)
                                                               year          operation
                                                                       a               b               c   d = a * b * c
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................              18             1.5          20,000         540,000         540,000         540,000
2.......................................................              18             1.5          20,000         540,000         504,673         524,272
3.......................................................               9             1.5          20,000         270,000         235,828         254,501
4.......................................................               9             1.5          20,000         270,000         220,400         247,088
5.......................................................               5             1.5          20,000         150,000         114,434         133,273
6.......................................................               5             1.5          20,000         150,000         106,948         129,391
7.......................................................               5             1.5          20,000         150,000          99,951         125,623
8.......................................................               5             1.5          20,000         150,000          93,412         121,964
9.......................................................               5             1.5          20,000         150,000          87,301         118,411
10......................................................               5             1.5          20,000         150,000          81,590         114,963
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............       2,520,000       2,084,539       2,309,486
    Annualized..........................................  ..............  ..............  ..............  ..............         296,791         270,742
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The final rule requires each freight railroad with a legacy one-
person train crew operation to adopt and comply with operating rules 
that establish regular and effective communication with a one-person 
train crew to ensure the safety of the train and that one-person train 
crewmember's safety. Each railroad will need approximately 12 hours to 
formalize these operating rules.
    The following table shows the cost of formalizing operating rules 
for legacy Class III one-person train crew operations. This cost would 
be incurred only in year 1. Therefore, the total estimated 10-year cost 
will be $108,106. The estimated annualized cost will be $15,392 (PV, 
7%).

                        Cost of Formalizing Operating Rules, Legacy Class III Operations
----------------------------------------------------------------------------------------------------------------
                                                                  Total cost per     Number of     Total annual
        Type of employee               Hours        Hourly wage    notification       legacy        cost across
                                                     rate ($)           ($)         operations     industry ($)
                                               a               b       c = a * b               d       e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Managers.................               4          123.41             494  ..............  ..............
Superintendents.................               4          123.41             494  ..............  ..............
Train Masters...................               2          123.41             247  ..............  ..............
Road Foreman....................               2          123.41             247  ..............  ..............
                                 -------------------------------------------------------------------------------
    Total.......................              12  ..............           1,481              73         108,106
----------------------------------------------------------------------------------------------------------------

    Class III railroads implementing one-person train crew operations 
will be required to adopt and comply with operating rules that 
establish regular and effective communication with a one-person train 
crew to ensure the safety of the train and that one-person train 
crewmember's safety. The following table shows the cost of formalizing 
operating rules for new Class III one-person train crew operations. It 
is estimated to take 12 hours per railroad for a total cost of $1,481 
per railroad.

[[Page 25101]]



                          Cost of Formalizing Operating Rules, New Class III Operations
----------------------------------------------------------------------------------------------------------------
                                                                                    Hourly wage   Total cost per
                        Type of employee                               Hours         rate ($)      railroad ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Managers.................................................               4          123.41             494
Superintendents.................................................               4          123.41             494
Train Masters...................................................               2          123.41             247
Road Foreman....................................................               2          123.41             247
                                                                 -----------------------------------------------
    Total.......................................................              12  ..............           1,481
----------------------------------------------------------------------------------------------------------------

    The following table shows the total 10-year costs for Class III 
railroads to adopt and comply with operating rules for communication 
and emergency situations specific to one-person train crew operations. 
The total estimated 10-year cost is $124,396. The annualized cost is 
$14,651 (PV, 7%).

                        Total 10-Year Costs of Operating Rules, New Class III Operations
----------------------------------------------------------------------------------------------------------------
                                   Number of new
                                    one- person   Total cost per                   Present value   Present value
              Year                operations per   operation ($)  Total cost ($)      7% ($)          3% ($)
                                       year
                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
1...............................              18           1,481          26,656          26,656          26,656
2...............................              18           1,481          26,656          24,913          25,880
3...............................               9           1,481          13,328          11,641          12,563
4...............................               9           1,481          13,328          10,880          12,197
5...............................               5           1,481           7,405           5,649           6,579
6...............................               5           1,481           7,405           5,279           6,387
7...............................               5           1,481           7,405           4,934           6,201
8...............................               5           1,481           7,405           4,611           6,021
9...............................               5           1,481           7,405           4,310           5,845
10..............................               5           1,481           7,405           4,028           5,675
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............         124,396         102,901         114,005
    Annualized..................  ..............  ..............  ..............          14,651          13,365
----------------------------------------------------------------------------------------------------------------

    The final rule requires each freight railroad with a legacy one-
person train crew operation to provide certain information about the 
operation in a written notification to FRA. It will take approximately 
20 hours for each Class III railroad to prepare and make the 
notification to FRA of its one-person operations.
    The following table shows the cost for legacy Class III railroad 
operations to make the notification to FRA. This cost would be incurred 
only in year 1. Therefore, the total estimated cost will be $180,177. 
The estimated annualized cost will be $25,653 (PV, 7%).

                                Cost of Notification, Legacy Class III Operations
----------------------------------------------------------------------------------------------------------------
                                                                  Total cost per                   Total annual
        Type of employee             Hours per      Hourly wage    notification      Number of      cost across
                                   notification      rate ($)           ($)        notifications   industry ($)
                                               a               b       c = a * b               d       e = c * d
----------------------------------------------------------------------------------------------------------------
Senior Managers.................               7          123.41             864  ..............  ..............
Superintendents.................               5          123.41             617  ..............  ..............
Train Masters...................               4          123.41             494  ..............  ..............
Road Foreman....................               4          123.41             494  ..............  ..............
                                 -------------------------------------------------------------------------------
    Total.......................              20  ..............           2,468              73         180,177
----------------------------------------------------------------------------------------------------------------

    The final rule requires each Class III freight railroad that plans 
to initiate a one-person train crew operation after the final rule's 
effective date that will not be transporting certain types or 
quantities of hazardous materials that have been determined to pose the 
highest risk in transportation to provide FRA with written notification 
of the operation before commencing the operation. The following table 
shows the cost for Class III railroads to notify FRA of new one-person 
operations. It is estimated to take 20 hours per railroad

[[Page 25102]]

to prepare and make the notification to FRA for a total cost of $2,468.

                             Cost of Notification, New Class III Railroad Operations
----------------------------------------------------------------------------------------------------------------
                                                                                                  Total cost per
                        Type of employee                             Hours per      Hourly wage    notification
                                                                   notification      rate ($)           ($)
                                                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
Senior Managers.................................................               7          123.41             864
Superintendents.................................................               5          123.41             617
Train Masters...................................................               4          123.41             494
Road Foreman....................................................               4          123.41             494
                                                                 -----------------------------------------------
    Total.......................................................              20  ..............           2,468
----------------------------------------------------------------------------------------------------------------

    The following table shows the total 10-year costs for Class III 
railroads to notify FRA when commencing new one-person train crew 
operations. This option could also be used by railroads that are 
continuing an operation that was established less than two years before 
the effective date of the final rule. Railroads hauling certain types 
and quantities of hazardous materials require special approval; hence, 
those operations are not included in this estimate. The estimates here 
are solely for operations that only require notification to FRA. The 
total estimated 10-year cost is $133,282. The annualized cost is 
$15,823 (PV, 7%).

                      Total 10-Year Cost of Notification, New Class III Railroad Operations
----------------------------------------------------------------------------------------------------------------
                                     Estimated    Total cost per
              Year                 notifications   notification   Total cost ($)   Present value   Present value
                                     per year           ($)                           7% ($)          3% ($)
                                               a               b       c = a * b  ..............  ..............
----------------------------------------------------------------------------------------------------------------
1...............................              12           2,468          29,618          29,618          29,618
2...............................              12           2,468          29,618          27,681          28,756
3...............................               6           2,468          14,809          12,935          13,959
4...............................               6           2,468          14,809          12,089          13,552
5...............................               3           2,468           7,405           5,649           6,579
6...............................               3           2,468           7,405           5,279           6,387
7...............................               3           2,468           7,405           4,934           6,201
8...............................               3           2,468           7,405           4,611           6,021
9...............................               3           2,468           7,405           4,310           5,845
10..............................               3           2,468           7,405           4,028           5,675
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............         133,282         111,133         122,593
    Annualized..................  ..............  ..............  ..............          15,823          14,372
----------------------------------------------------------------------------------------------------------------

    The final rule requires Class III freight railroads that haul 
certain types or quantities of hazardous materials that have been 
determined to pose the highest risk in transportation that want to 
initiate a new operation with a one-person train crew or continue an 
operation that was established less than two years before the effective 
date of the final rule to petition FRA under a special approval 
procedure. As part of the special approval process, these railroads 
will be required to conduct a risk assessment. The risk assessment must 
include a description of the final operation, a hazard analysis, and 
discussion of the tasks and functions of the one crewmember and 
equipment.
    ASLRRA and holding companies will likely create a model or template 
program that can be used by Class III railroads; therefore, the burden 
for each Class III railroad is estimated to be six hours per one-person 
train crew operation. The estimated cost per railroad is $665 to apply 
for special approval and submit a risk assessment.

                        Cost of Special Approval and Risk Assessment, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of      Total  cost
                                                                   Hourly  wage      hours per     per  railroad
                                                                     rate  ($)       railroad           ($)
                                                                             (a)             (b)     (c) = (a) *
                                                                                                             (b)
----------------------------------------------------------------------------------------------------------------
Chief Safety Officer............................................          123.41               4             494
Administrative Assistant........................................           85.93               2             172
                                                                 -----------------------------------------------
    Total per Railroad..........................................  ..............               6             665
----------------------------------------------------------------------------------------------------------------


[[Page 25103]]

    The following table shows the total 10-year costs for Class III 
railroads to apply for special approval and conduct a risk assessment. 
Only railroads hauling certain types and quantities of hazardous 
materials require special approval, including a risk assessment. The 
total estimated 10-year cost is $22,627. The annualized cost is $2,661 
(PV, 7%).

                Total 10-Year Cost for Special Approval and Risk Assessment, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                    Number  of      Total cost
                                       risk          per risk       Total costs   Present  value  Present  value
              Year                  assessments     assessment          ($)           7%  ($)         3%  ($)
                                     per year           ($)
                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
1...............................               7             665           4,658           4,658           4,658
2...............................               7             665           4,658           4,354           4,523
3...............................               4             665           2,662           2,325           2,509
4...............................               4             665           2,662           2,173           2,436
5...............................               2             665           1,331           1,015           1,183
6...............................               2             665           1,331             949           1,148
7...............................               2             665           1,331             887           1,115
8...............................               2             665           1,331             829           1,082
9...............................               2             665           1,331             775           1,051
10..............................               2             665           1,331             724           1,020
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............          22,627          18,689          20,725
    Annualized..................  ..............  ..............  ..............           2,661           2,430
----------------------------------------------------------------------------------------------------------------

    Each railroad that receives special approval to use an operation 
with a one-person train crew must prepare an annual report, which will 
be a formal review and analysis each calendar year, of the one-person 
train crew operation. The annual report, which will include a 
railroad's findings and conclusions from its review, shall be submitted 
no later than March 31 of the following year. The following table shows 
the annual labor cost per railroad to complete each report. It is 
estimated to require approximately 8 hours of labor per railroad for a 
total cost of $687 per year.

                                       Cost of Annual Report, per Railroad
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
                       Type of employee                           Hours per       Hourly wage        cost per
                                                                   railroad        rate  ($)      railroad  ($)
                                                                            a                b        c = a * b
----------------------------------------------------------------------------------------------------------------
Professional and Administrative..............................               8            85.93              687
----------------------------------------------------------------------------------------------------------------

    The following table shows the total 10-year costs for Class III 
railroads to complete the annual report. The total estimated 10-year 
cost is $156,737. The annualized cost is $15,471 (PV, 7%).

                            Total 10-Year Costs of Annual Report, Class III Railroads
----------------------------------------------------------------------------------------------------------------
                                     Number of
              Year                 reports  per      Cost per       Total cost    Present  value  Present  value
                                       year         report  ($)         ($)           7%  ($)         3%  ($)
                                               a               b       c = a * b
----------------------------------------------------------------------------------------------------------------
1...............................               0             687               0               0               0
2...............................              14             687           9,624           8,995           9,344
3...............................              18             687          12,374          10,808          11,664
4...............................              22             687          15,124          12,346          13,840
5...............................              24             687          16,499          12,587          14,659
6...............................              26             687          17,874          12,744          15,418
7...............................              28             687          19,248          12,826          16,120
8...............................              30             687          20,623          12,843          16,769
9...............................              32             687          21,998          12,803          17,366
10..............................              34             687          23,373          12,713          17,914
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............         156,737         108,664         133,093
    Annualized..................  ..............  ..............  ..............          15,471          15,603
----------------------------------------------------------------------------------------------------------------


[[Page 25104]]

    The following table shows the annualized costs for all provisions 
of the final rule. The total annualized cost for all Class III 
railroads is $687,852 (PV, 7%).

     Annualized Costs for Class III Railroads' One-Person Operations
------------------------------------------------------------------------
                                                        Annualized cost,
                    Cost category                        7 percent  ($)
------------------------------------------------------------------------
Alerters, Legacy Operations..........................            301,607
Alerters, New Operations.............................            296,791
Operating Rules, Legacy Operations...................             15,392
Operating Rules, New Operations......................             14,651
Notification to FRA, Legacy Operations...............             25,653
Notification to FRA, New Operations..................             15,823
Special Approval and Risk Assessment.................              2,661
Annual Report........................................             15,471
                                                      ------------------
    Total Annualized Cost for All Class III Railroads            688,050
------------------------------------------------------------------------

    The industry trade organization representing small railroads, 
ASLRRA, reports the average freight revenue per Class III railroad is 
$4.75 million.\336\ The following table summarizes the average annual 
cost and revenue for Class III railroads.
---------------------------------------------------------------------------

    \336\ American Short Line and Regional Railroad Association, 
Short Line and Regional Railroad Facts and Figures, p. 10 (2017 
pamphlet).

                                  Annual Class III Railroads' Cost and Revenue
----------------------------------------------------------------------------------------------------------------
 Total costs for  all
Class III  railroads,   Number of  Class III   Average  annual cost    Average  Class III      Average  annual
annualized 7  percent        railroads            per Class III           revenue  ($)       cost as  percent of
          ($)                                     railroad  ($)                                    revenue
a                                      b              c = a / b                      d              e = c / d
----------------------------------------------------------------------------------------------------------------
          688,050                    157                  4,382              4,750,000                  0.09%
----------------------------------------------------------------------------------------------------------------

    The estimated average annual cost for a Class III railroad that is 
operating one-person train crews will be $4,382. This represents a 
small percentage (0.1%) of the average annual revenue for a Class III 
railroad.
6. A Description of the Steps the Agency Has Taken To Minimize the 
Economic Impact on Small Entities
    This final rule allows Class III freight railroads to continue 
operating with one-person train crews for operations established for at 
least two years before the effective date of the final rule as long as 
these railroads notify FRA, install alerters, and adopt and comply with 
operating rules specific for one-person train crews according to the 
implementation schedule.
    In response to comments on the NPRM, FRA has simplified the risk 
assessment and reduced the number of operations to which the special 
approval requirement will apply. Railroads commencing one-person train 
crew operations with certain types and quantities of hazardous 
materials will be required to petition FRA for special approval and 
conduct a risk assessment. Class III railroads commencing one-person 
operations without certain types and quantities of hazardous materials 
will not need to petition FRA for special approval or complete a risk 
assessment. Those new one-person train crew operations will require 
notification to FRA, installation of alerters, and adoption and 
compliance with operating rules specific for one-person crews. The 
notification requirement provides flexibility for Class III railroads 
not hauling certain types and quantities of hazardous materials.
    Based on comments requesting more time to comply with any new 
minimum requirements to allow for proper planning, operational changes, 
or hiring and training of additional crewmembers, FRA is extending 
compliance dates for Class III railroads for certain exceptions that 
cannot be used by a Class I railroad, and therefore Class III railroads 
are provided greater flexibility in those circumstances such as when a 
Class III railroad's legacy one-person train crew freight operation has 
been established for at least two years before the effective date of 
the final rule or the Class III railroad decides to initiate a new one-
person train crew operation that is not transporting hazardous 
materials of the types or quantities specified in Sec.  218.123(c).
    The final rule reflects relief from the proposed prohibition on the 
transportation of some hazardous materials with a one-person train crew 
set forth in the NPRM to provide for these legacy operations and new 
operations subject to conditions to ensure safety.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) for approval 
under the Paperwork Reduction Act of 1995.\337\ The sections that 
contain the new information collection requirements and the estimated 
time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \337\ 44 U.S.C. 3501 et seq.

[[Page 25105]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Total cost
             CFR section                Respondent universe     Total annual responses      Average time per       Total annual burden     equivalent in
                                               \338\                                            response                                    U.S. dollar
                                      .......................  (A)....................  (B)....................  (C = A * B)............          (D = C
                                                                                                                                           * wage rates)
                                                                                                                                                   \339\
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.123--General crew size staffing   784 railroads..........  47 adopted rules and     120 hours (96 + 12 +     816.00 hours (288 + 204      $70,118.88
 requirements--Each railroad's                                  practices (27 legacy     12) \340\.               + 324).
 adoption or revision of rules and                              operations + 3 Class I
 practices with the requirement of                              new operations + 17
 this subpart G (New requirement).                              Class II and III new
                                                                operations).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(2) Location of crewmember(s)    Direct communications between train crewmembers during train operations are a usual and customary practice.
 that is not operating the train       Consequently, there is no burden associated with this requirement.
 when the train is moving--Direct
 communication between train crew
 members (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.125(c)--Specific passenger and    The estimated paperwork burden for emergency preparedness plans is already included under OMB Control Number 2130-
 tourist train operation exceptions    0545. Consequently, there is no additional burden associated with this requirement.
 to crew size safety requirements--
 Passenger railroads' emergency
 preparedness plan approved under 49
 CFR 239.201 (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(3) Federal Transit              The estimated paperwork burden for approved FTA and SSO Public Transportation Agency Safety Plans is included
 Administration (FTA) and designated   under OMB Control Number 2132-0558. Consequently, there is no additional burden associated with this requirement.
 State Safety Oversight (SSO) Agency
 approved Public Transportation
 Agency Safety Plan in accordance
 with 49 CFR parts 673 and 674 (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Existing passenger train        The estimated paperwork burden for emergency preparedness plans is already included under OMB Control Number 2130-
 operations one-person train crew      0545. Consequently, there is no additional burden associated with this requirement.
 with an approved emergency
 preparedness plan (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.129(a)-(b)(11)--Conditional       Class II and III         35 notices (25 legacy    40 hours (20 + 20).....  700 hours..............         $86,387
 exceptions based on compliance        railroads.               operations + 10 Class
 dates for legacy freight train                                 II and III new
 operations, class II and III                                   operations).
 freight railroad train operations,
 work train operations, helper
 service train operations, and lite
 locomotive train operations staffed
 with a one-person train crew--
 Written notice requirements shall
 be submitted by email to FRA (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(12) Copy of any railroad rule   The estimated paperwork burden for this requirement is included above under Sec.   218.129(a)-(b)(11).
 or practice that applies to the one-
 person train crew operation (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(13)-(14) Accident and incident  The estimated paperwork burden for this requirement is included above under Sec.   218.129(b)(1)-(11).
 data or any other information
 describing protections in lieu of a
 second train crewmember (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(c) Additional requirements--Adopt  The estimated paperwork burden of this requirement is included above under Sec.   218.123.
 and comply with an operating rule
 that complies with the requirements
 of ensuring rail employees can take
 mitigation measures that provide a
 level of safety that is as safe or
 safer than a two-person train crew
 operation to address certain
 situations with the one-person
 train crew operation (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.131(a)(2)(i)--Special approval    The estimated paperwork burden for the special approval petition is included with the risk assessment burden under
 petition requirements for train       Sec.   218.133.
 operations staffed with a one-
 person train crew RR with
 established one-person train crew
 written notice to continue
 operations (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(2)(iii) RRs with established    The estimated paperwork burden for the special approval petition is included with the risk assessment burden under
 one-person train crew to submit       Sec.   218.133.
 special approval petition.
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(3)--Each freight railroad       The estimated paperwork burden for special approval petition is included with the risk assessment burden under
 seeking to either initiate or         Sec.   218.133.
 continue a one-person train crew
 must receive FRA's special approval
 for the operation under this
 subpart and comply with section
 Sec.   218.129(c) (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(a)(4)--Passenger railroads         The estimated paperwork burden for special approval petition is included with the risk assessment burden under
 seeking to initiate train             Sec.   218.133.
 operations with a one-person train
 crew must receive FRA's special
 approval for the operation (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b)(1)-(15) Petition for a train    The estimated paperwork burden for special approval petition is included with the risk assessment burden under
 operation staffed with a one-person   Sec.   218.133.
 train crew that is not permitted
 under Sec.  Sec.   218.125 through
 218.129 must contain sufficient
 information for FRA to determine
 whether approving the operation
 described in the petition is as
 safe or safer than a two-person
 minimum train crew operation (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 25106]]

 
218.133(a) Risk assessment content    784 railroads..........  10.33 risk assessments   586; 580 hours + 6       1,973.40 Hours               171,148.42
 and procedures--General (Note: The                             (3.33 Class I/           hours.                   (1,931.40 + 42).
 paperwork burden for special                                   Passenger operations +
 approval petition is included here.                            7 Class II and III
 The paperwork burden for revised                               operations).
 risk assessment is included under
 Sec.   218.135(e)) (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(b) Alternative standard--Petition  The estimated paperwork burden for this requirement is included under Sec.   218.133 and Sec.   218.135.
 for approval to use alternative
 methodologies (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.135(c)--Special approval          Railroad industry and    10 petition comments...  1 hour.................  10 hours...............          859.30
 procedure--Comments sent to FRA on    interested parties.
 petitions for special approval (New
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(1) Disposition of petitions--   The requirements of this provision are exempted from the Paperwork Reduction Act under 5 CFR 1320.4(a)(2) because
 Hearings on petitions (New            this activity is conducted during an administrative action affecting specific individuals or entities.
 requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d)(2) Special approval procedure-- The estimated paperwork burden for this requirement is included under Sec.   218.135.
 Disposition of petitions--
 Petitioners' response to FRA's
 special conditions to the approval
 of petition (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(e) Modifications of operations     9 railroads............  1.33 revised risk        70 hours...............  93.10 hours............        8,000.08
 already approved; revised risk                                 assessments.
 assessments submitted to FRA--All
 operations (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
218.137--Annual railroad              784 railroads..........  23 annual reports......  8 hours................  184 hours..............       15,811.12
 responsibilities after receipt of
 special approval--Annual review and
 analysis of FRA-approved train
 operation(s) (New requirement).
--------------------------------------------------------------------------------------------------------------------------------------------------------
--(d) Railroads' review of FRA        The paperwork burden for this requirement is included above under Sec.   218.137.
 response to their annual report
 (New requirement).
                                     -------------------------------------------------------------------------------------------------------------------
    Total \341\.....................  784 railroads..........  127 responses..........  N/A....................  3,777 hours............      352,324.81
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Ms. Arlette Mussington, 
Information Collection Clearance Officer, at email: 
[email protected] or telephone: (571) 609-1285; or Ms. Joanne 
Swafford, Information Collection Clearance Officer, at email: 
[email protected] or telephone: (757) 897-9908.
---------------------------------------------------------------------------

    \338\ For purposes of this table, there are 784 railroads, 
excluding tourist railroads not on the general system, in the 
respondent universe. Additionally, FRA is currently aware of nine 
one-person train crew operations.
    \339\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the 2022 Surface Transportation 
Board's Full Year Wage A&B data series using the appropriate 
employee group hourly wage rate that includes 75-percent overhead 
charges.
    \340\ This estimate also includes the burden associated with 
adopting and complying with operating rules under Sec.  218.123(c).
    \341\ Totals may not add due to rounding.
---------------------------------------------------------------------------

    OMB is required to decide concerning the collection of information 
requirements contained in this rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. FRA is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required. FRA intends to obtain current OMB control numbers for any new 
information collection requirements resulting from this rulemaking 
action prior to the effective date of the final rule. The current OMB 
control number for this rule is 2130-0636.

D. Federalism Implications

    Executive Order 13132, ``Federalism,'' \342\ requires FRA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, to the extent practicable 
and permitted by law, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, the agency consults with 
State and local governments, or the agency consults with State and 
local government officials early in the process of developing the 
regulation. National action limiting the policymaking discretion of the 
States shall be taken only where there is constitutional and statutory 
authority for the action and the national activity is appropriate in 
light of the presence of a problem of national significance. Where 
there are significant uncertainties as to whether national action is 
authorized or appropriate, agencies shall consult with appropriate 
State and local officials to determine whether Federal objectives can 
be attained by other means.
---------------------------------------------------------------------------

    \342\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that this

[[Page 25107]]

final rule has no federalism implications, other than the possible 
preemption of State laws under 49 U.S.C. 20106. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply, and preparation of a federalism summary impact statement for the 
rule is not required.
    Further, federalism concerns have been considered in the 
development of this rule both internally and through consultation 
within FRA's Federal advisory committee, RSAC, which has as permanent 
voting members two organizations representing State and local 
interests: the American Association of State Highway and Transportation 
Officials (AASHTO) and the Association of State Rail Safety Managers 
(ASRSM).\343\ FRA has also received input from State and local 
officials through the notice and comment public participation process 
and left it to State or local officials to decide whether to 
participate in the publicly held hearing, either in person or 
virtually. In the discussion of comments and FRA's conclusions, FRA 
responded to the comments on preemption and further expanded upon the 
agency's explanation of the perceived preemption implications of the 
final rule.
---------------------------------------------------------------------------

    \343\ In 1996, FRA established RSAC to develop new regulatory 
standards, through a collaborative process, with all segments of the 
rail community working together to fashion mutually satisfactory 
solutions on safety regulatory issues. Information about RSAC, 
including background, tasks, and documents, is available at https://rsac.fra.dot.gov/about. Although this rulemaking was not tasked to 
RSAC, FRA provided a regulatory activity update on the rulemaking at 
two RSAC meetings before the NPRM was published and at one meeting 
during the rulemaking's comment period and encouraged interested 
members of RSAC to submit comments or participate at the public 
hearing.
---------------------------------------------------------------------------

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \344\ prohibits Federal agencies 
from engaging in any standards or related activities that create 
unnecessary obstacles to the foreign commerce of the United States. 
Legitimate domestic objectives, such as safety, are not considered 
unnecessary obstacles. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. This final rule is purely domestic in nature and is 
not expected to affect trade opportunities for U.S. firms doing 
business overseas or for foreign firms doing business in the United 
States.
---------------------------------------------------------------------------

    \344\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------

F. Environmental Assessment

    FRA has evaluated this final rule consistent with the National 
Environmental Policy Act \345\ (NEPA), the Council of Environmental 
Quality's NEPA implementing regulations,\346\ and FRA's NEPA 
implementing regulations \347\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\348\ Specifically, FRA has determined that this 
rule is categorically excluded from detailed environmental review.\349\
---------------------------------------------------------------------------

    \345\ 42 U.S.C. 4321 et seq.
    \346\ 40 CFR parts 1500 through 1508.
    \347\ 23 CFR part 771.
    \348\ 40 CFR 1508.4.
    \349\ See 23 CFR 771.116(c)(15) (categorically excluding 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly 
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The main purpose of this rulemaking is to ensure that each train is 
adequately staffed and has appropriate safeguards in place for safe 
train operations under all operating conditions. This final rule would 
not directly or indirectly impact any environmental resources and would 
not result in significantly increased emissions of air or water 
pollutants or noise. In analyzing the applicability of a CE, FRA must 
also consider whether unusual circumstances are present that would 
warrant a more detailed environmental review.\350\ FRA has concluded 
that no such unusual circumstances exist with respect to this 
regulation and the final rule meets the requirements for categorical 
exclusion.\351\
---------------------------------------------------------------------------

    \350\ 23 CFR 771.116(b).
    \351\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\352\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\353\ Further, FRA 
reviewed this rule and found it consistent with Executive Order 14008, 
``Tackling the Climate Crisis at Home and Abroad.''
---------------------------------------------------------------------------

    \352\ See 54 U.S.C. 306108.
    \353\ See DOT Act of 1966, as amended (Pub. L. 89-670, 80 Stat. 
931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Environmental Justice

    Executive Order 14096, ``Revitalizing Our Nation's Commitment to 
Environmental Justice for All,'' which expands on Executive Order 
12898, ``Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations,'' requires DOT agencies to 
achieve environmental justice as part of their mission by identifying 
and addressing, as appropriate, disproportionate and adverse human 
health or environmental effects, including those related to climate 
change and cumulative impacts of environmental and other burdens on 
communities with environmental justice concerns. DOT Order 5610.2C 
(``U.S. Department of Transportation Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'') instructs 
DOT agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order 5610.2C in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations.\354\ FRA has evaluated 
this final rule under Executive Orders 14096 and 12898 and DOT Order 
5610.2C and has determined it will not cause disproportionate and 
adverse human health and environmental effects on communities with 
environmental justice concerns.
---------------------------------------------------------------------------

    \354\ Executive Order 14096 is not currently referenced in DOT 
Order 5610.2C.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\355\ 
each Federal agency ``shall, unless otherwise prohibited by law, assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, and the private sector (other than to the extent that such 
regulations incorporate requirements specifically set forth in law).'' 
Section 202 of the Act \356\ further requires that ``before 
promulgating any general notice of proposed rulemaking that is likely 
to result in promulgation of any rule that includes any Federal mandate 
that may result in the

[[Page 25108]]

expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100,000,000 or more (adjusted annually 
for inflation) in any 1 year, and before promulgating any final rule 
for which a general notice of proposed rulemaking was published, the 
agency shall prepare a written statement'' detailing the effect on 
State, local, and tribal governments and the private sector. This final 
rule will not result in the expenditure, in the aggregate, of 
$100,000,000 or more (as adjusted annually for inflation) in any one 
year, and thus preparation of such a statement is not required.
---------------------------------------------------------------------------

    \355\ Public Law 104-4, 2 U.S.C. 1531.
    \356\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action.'' \357\ FRA evaluated this final rule 
under Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.
---------------------------------------------------------------------------

    \357\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

List of Subjects in 49 CFR Part 218

    Occupational safety and health, Penalties, Railroad employees, 
Railroad safety, Reporting and recordkeeping requirements.

The Rule

    For the reasons discussed in the preamble, FRA amends chapter II, 
subtitle B of title 49 of the Code of Federal Regulations as follows:

PART 218--[AMENDED]

0
1. The authority citation for part 218 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20107, 20131, 20138, 20144, 20168; 
28 U.S.C. 2461 note; and 49 CFR 1.89.

Subpart A--General

0
2. Amend Sec.  218.5 by adding definitions in alphabetical order for 
``Associate Administrator for Safety'', ``FTA'', ``Hazard'', ``Helper 
service train operation'', ``Lite locomotive train operation'', 
``Locomotive, MU'', ``Mishap'', ``One-person train crew'', ``One-person 
train crewmember'', ``Risk'', ``Risk assessment'', ``Switching service 
or switching operation'', ``Tourist train operation'', ``Tourist train 
operation that is not part of the general railroad system of 
transportation'', ``Trailing tons'', ``Train'' and ``Unit freight 
train'' to read as follows:


Sec.  218.5   Definitions.

* * * * *
    Associate Administrator for Safety means the Associate 
Administrator for Railroad Safety and Chief Safety Officer of the 
Federal Railroad Administration or that person's delegate as designated 
in writing.
* * * * *
    FTA means the Federal Transit Administration.
* * * * *
    Hazard means an existing or potential condition that could lead to 
an unplanned event or series of events that can result in an accident 
or incident (i.e., mishap); injury, illness, or death; damage to or 
loss of a system, equipment, or property; or damage to the environment.
    Helper service train operation means the train is a locomotive or 
group of locomotives being used to assist another train that has 
incurred mechanical failure or lacks sufficient tractive force 
necessary to traverse a particular section of track due to train 
tonnage and the grade of the terrain.
* * * * *
    Lite locomotive train operation means the train is a locomotive or 
a consist of locomotives not attached to any piece of equipment or 
attached only to a caboose.
* * * * *
    Locomotive, MU means rail rolling equipment self-propelled by any 
power source and intended to provide transportation for members of the 
general public.
* * * * *
    Mishap means an event or condition or series of events or 
conditions resulting in an accident or incident.
    One-person train crew means either:
    (1) One railroad employee is assigned a train as a train crew, and 
that single assigned person is performing the duties of both the 
locomotive engineer and the conductor; or
    (2) More than one railroad employee is assigned a train as a train 
crew, but only a single assigned person, who is performing the duty of 
the locomotive engineer, is traveling on the train when the train is 
moving, and the remainder of the train crew, that would include the 
conductor if the locomotive engineer is not the assigned conductor, is 
assigned to intermittently assist the train's movements.
    One-person train crewmember means, in the context of a one-person 
train crew operation, the single assigned person who is performing the 
duty of the locomotive engineer and is traveling in the operating cab 
of the controlling locomotive when the train is moving.
    Risk means the combination of the expected probability (or 
frequency of occurrence) and the consequence (or severity) of a hazard.
    Risk assessment means the process of determining, either 
quantitatively or qualitatively, or both, the level of risk associated 
with train operations with a one-person train crew, compared to 
operations with a two-person (or larger) crew, under all operating 
conditions.
* * * * *
    Switching service or switching operation means classifying rail 
cars according to commodity or destination; assembling of cars for 
train movements; changing the position of cars for purposes of loading, 
unloading, or weighing; placing locomotives and cars for repair or 
storage; or moving of rail equipment in connection with work service 
that does not constitute a train movement.
    Tourist train operation means a tourist, scenic, historic, or 
excursion train operation.
    Tourist train operation that is not part of the general railroad 
system of transportation means a tourist, scenic, historic, or 
excursion train operation conducted only on track used exclusively for 
that purpose (i.e., there is no freight, intercity passenger, or 
commuter passenger railroad operation on the track).
    Trailing tons means the sum of the gross weights--expressed in 
tons-of the cars and the locomotives in a train that are not providing 
propelling power to the train.
    Train means one or more locomotives coupled with or without cars, 
except during switching service.
* * * * *
    Unit freight train means a freight train composed of cars carrying 
a single type of commodity.
* * * * *

Subpart F--Handling Equipment, Switches, and Fixed Derails


Sec.  218.93   [Amended]

0
3. Amend Sec.  218.93 by removing the definitions for ``Associate 
Administrator for Safety'' and ``Lite locomotive consist''.
* * * * *

0
4. Amend Sec.  218.99 by revising paragraph (a)(2), the introductory 
text of paragraph (b)(3), and paragraph (e)(2) to read as follows:


Sec.  218.99   Shoving or pushing movements.

    (a) * * *
    (2) The following requirements for shoving or pushing movements do 
not apply to rolling equipment intentionally

[[Page 25109]]

shoved or pushed to permit the rolling equipment to roll without power 
attached, i.e., free rolling equipment, during switching service 
activities known as kicking, humping, or dropping cars.
    (b) * * *
    (3) Point protection. When rolling equipment or a lite locomotive 
train with two or more locomotives that is operated from a single 
control stand is shoved or pushed, point protection shall be provided 
by a crewmember or other qualified employee by:
* * * * *
    (e) * * *
    (2) Shoving or pushing operations with a helper service train 
operation or distributed power locomotives assisting a train when the 
train is being operated from the leading end in the direction of 
movement;
* * * * *

0
5. Add subpart G to read as follows:
Subpart G--Train Crew Size Safety Requirements
Sec.
218.121 Purpose and scope.
218.123 General train crew size safety requirements.
218.125 Specific passenger and tourist train operation exceptions to 
crew size safety requirements.
218.127 Specific freight train exceptions to crew size safety 
requirements.
218.129 Conditional exceptions for Class II and III legacy freight 
train operations, certain other Class II and III freight railroad 
train operations, work train operations, helper service train 
operations, and lite locomotive train operations staffed with a one-
person train crew.
218.131 Special approval petition requirements for train operations 
staffed with a one-person train crew.
218.133 Risk assessment content and procedures.
218.135 Special approval procedure.
218.137 Annual railroad responsibilities after receipt of special 
approval.

Subpart G--Train Crew Size Safety Requirements


Sec.  218.121   Purpose and scope.

    (a) The purpose of this subpart is to ensure that each train is 
adequately staffed and has appropriate safeguards in place for safe 
train operations under all operating conditions.
    (b) This subpart prescribes minimum requirements for the size of 
different train crews depending on the type of operation and operating 
conditions. The minimum crew size requirements reflect the safety risks 
posed to railroad employees, the public, and the environment. This 
subpart also prescribes minimum requirements for the location of a 
second crewmember on a moving train and promotes safe and effective 
teamwork. Each railroad may prescribe additional or more stringent 
requirements in its operating rules, timetables, timetable special 
instructions, and other instructions.
    (c) The requirements in this subpart are not applicable to a train 
operation controlled by a remote control operator as defined in Sec.  
229.5 of this chapter.


Sec.  218.123   General train crew size safety requirements.

    (a) General. Each railroad shall comply with the requirements of 
this subpart and may adopt its own rules or practices consistent with 
the requirements of this subpart. If any person, as defined in Sec.  
218.9 (including, but not limited to, each railroad, railroad officer, 
supervisor, and employee), violates any requirement of a railroad rule 
or practice implementing the requirements of this subpart, that person 
shall be considered to have violated the requirements of this subpart.
    (b) Two-person train crew size safety requirement. Except as 
provided in this subpart, each train shall be assigned a minimum of two 
crewmembers.
    (c) Hazardous materials. For the purposes of this paragraph (c), a 
tank car containing residue of a hazardous material as defined in Sec.  
171.8 of this title is not considered a loaded car. The exceptions in 
Sec. Sec.  218.125 and 218.127 are not applicable, and the exceptions 
in Sec.  218.129 apply as specified therein, when any train is:
    (1) A high-hazard flammable train (HHFT) as defined in Sec.  171.8 
of this title;
    (2) Transporting twenty (20) or more loaded tank cars or loaded 
intermodal portable tanks of any one or any combination of the 
hazardous materials identified in Sec.  232.103(n)(6)(i)(B) of this 
chapter; or
    (3) Transporting one or more car loads of rail-security sensitive 
materials (RSSM) as defined in Sec.  1580.3 of this title.
    (d) Location of crewmember(s) when the train is moving. A train 
crewmember that is not operating the train may be located anywhere 
outside of the operating cab of the controlling locomotive when the 
train is moving if:
    (1) The train crewmember is on the train, except when the train 
crewmember cannot perform the duties assigned without temporarily 
disembarking from the train;
    (2) The train crewmember and a locomotive engineer in the cab of 
the controlling locomotive can directly communicate with each other;
    (3) The train crewmember can continue to perform the duties 
assigned; and
    (4) The location does not violate any Federal railroad safety law, 
regulation, or order.


Sec.  218.125   Specific passenger and tourist train operation 
exceptions to crew size safety requirements.

    The requirements in this subpart are not applicable to the 
following passenger and tourist train operations that are operated with 
a one-person train crew:
    (a) The train is a tourist train operation that is not part of the 
general railroad system of transportation;
    (b) A tourist train operation that is part of the general system of 
transportation or a passenger operation in which:
    (1) The locomotive engineer is moving cars empty of passengers; and
    (2) Passengers will not board the train's cars until the crew 
conducts a safety briefing on the safe operation and use of the train's 
exterior side doors, in accordance with Sec.  238.135 of this chapter;
    (c) A tourist train operation that is part of the general system of 
transportation or a passenger operation involving a single self-
propelled car or married-pair unit, e.g., an MU locomotive operation, 
where the locomotive engineer has direct access to the passenger 
seating compartment and (for passenger railroads subject to part 239 of 
this chapter) the passenger railroad's emergency preparedness plan for 
this operation is approved under Sec.  239.201 of this chapter;
    (d) A rapid transit operation in an urban area, i.e., an urban 
rapid transit system that is connected with the general railroad system 
of transportation under the following conditions:
    (1) The operation is temporally separated from any conventional 
railroad operations;
    (2) There is an FTA-approved and designated State Safety Oversight 
(SSO) Agency that is qualified to provide safety oversight; and
    (3) The operator has an FTA/SSO-approved Public Transportation 
Agency Safety Plan in accordance with parts 673 and 674 of this title; 
or
    (e) Each passenger train operation with a one-person train crew 
established before June 10, 2024 with an approved passenger train 
emergency preparedness plan under part 239 of this chapter for the 
operation.


Sec.  218.127   Specific freight train exceptions to crew size safety 
requirements.

    The requirements in this subpart are not applicable to the 
following freight

[[Page 25110]]

train operations that are operated with a one-person train crew:
    (a) Mine load out, plant dumping, or similar operation exception. A 
unit freight train:
    (1) Being loaded or unloaded in an assembly line manner;
    (2) Located on a track that is temporarily made inaccessible from 
the general railroad system of transportation;
    (3) Moving at a maximum authorized speed of 10 miles per hour or 
less;
    (4) Not requiring the one-person train crewmember to operate a 
hand-operated switch, fill out paperwork, or call signal indications 
during the loading or unloading process; and
    (5) If the operation is overseen by another person, typically in a 
tower or on the ground, requiring that person to have the capability of 
communicating with the one-person train crewmember operating the train.
    (b) [Reserved]


Sec.  218.129   Conditional exceptions based on compliance dates for 
Class II and III legacy freight train operations, certain other Class 
II and III freight railroad train operations, work train operations, 
helper service train operations, and lite locomotive train operations 
staffed with a one-person train crew.

    (a) Application of this section. A railroad is not required to 
comply with the requirements in this section for each one-person train 
crew operation subject to an exception covered by Sec.  218.125 or 
Sec.  218.127. The following train operations may be operated with a 
one-person train crew subject to the requirements in this subpart:
    (1) Each Class II or III railroad's legacy one-person train crew 
freight operation that has been established for at least two years 
before June 10, 2024, may continue to operate with a one-person train 
crew, including continuing to transport hazardous materials of the 
types or quantities specified in Sec.  218.123(c), if:
    (i) No later than September 6, 2024, the railroad:
    (A) Provides FRA with written notice, as specified by the 
requirements in paragraph (b) of this section; and
    (B) Complies with the additional requirements in paragraphs (c)(1) 
and (2) of this section; and
    (ii) No later than June 9, 2026, the railroad complies with the 
additional requirements in paragraph (c)(3) of this section.
    (2) Each Class II or III freight railroad seeking to initiate a 
train operation staffed with a one-person train crew not transporting 
hazardous materials of the types or quantities specified in Sec.  
218.123(c) shall:
    (i) Provide FRA with written notice, as specified by the 
requirements in paragraph (b) of this section before commencing the 
operation; and
    (ii) Comply with the additional requirements in paragraph (c) of 
this section.
    (3) Each railroad seeking to continue or initiate work train 
operations with a one-person train crew, including operations involving 
a work train traveling to or from a work site, shall:
    (i) Limit this type of non-revenue service train that is used for 
the administration and upkeep service of the railroad so that it does 
not exceed 4,000 trailing tons;
    (ii) No later than September 6, 2024, comply with the additional 
requirements in paragraphs (c)(1) and (2) of this section; and
    (iii) No later than June 9, 2026, comply with the additional 
requirements in paragraph (c)(3) of this section.
    (4) Each railroad seeking to continue or initiate helper service 
train operations with a one-person train crew, including operations 
involving a helper service train traveling to or from a work site, 
shall:
    (i) No later than September 6, 2024, comply with the additional 
requirements in paragraphs (c)(1) and (2) of this section; and
    (ii) No later than June 9, 2026, comply with the additional 
requirements in paragraph (c)(3) of this section.
    (5) Each railroad seeking to continue or initiate a lite locomotive 
train operation staffed with a one-person train crew, excluding an MU 
locomotive operation, shall:
    (i) No later than September 6, 2024, comply with the additional 
requirements in paragraphs (c)(1) and (2) of this section; and
    (ii) No later than June 9, 2026, comply with the additional 
requirements in paragraph (c)(3) of this section.
    (b) Written notice requirements. The written notice shall be 
submitted by email to [email protected] and, at a minimum, include 
the following:
    (1) The name, title, address, telephone number, and email address 
of the primary person(s) to be contacted regarding the written notice 
and the operation;
    (2) The location of the operation, with as much specificity as can 
be provided, as to the characteristics of the geographic area through 
which the trains will operate (e.g., population density and proximity 
to environmentally sensitive areas), the terrain over which the trains 
will be operated, industries or communities served, and track segments, 
territories, divisions, or subdivisions operated over. For each legacy 
one-person train crew freight operation under paragraph (a)(1) of this 
section, the written notice must include business records or other 
written documents supporting that the legacy operation was established 
for at least two years before June 10, 2024. To establish a legacy one-
person train crew freight operation, the railroad must provide evidence 
that the operation occurred at regular intervals under a set of defined 
procedures or conditions;
    (3) The class(es) of track operated over, the method of operation, 
a list of the signal and train control systems, devices, and appliances 
installed and in operation, and a list of all active and passive 
highway-rail grade crossings, including crossing numbers;
    (4) The locations of any track where the average grade of any 
segment of the track operated over is 1 percent or more over 3 
continuous miles or 2 percent or more over 2 continuous miles;
    (5) The maximum authorized speed of the operation;
    (6) The approximate average number of miles and hours a one-person 
train crew will operate in a single tour of duty;
    (7) The number and frequency of the trains involved, and the 
maximum number of cars and tonnage set for the operation, if any;
    (8) Whether the one-person train crew operation is permitted to 
haul hazardous materials of any quantity and type, and the approximate 
percentage of carload traffic in the one-person train crew operation 
that is hazardous materials;
    (9) Whether any limitations are placed on a person operating as a 
one-person train crew. Such limitations may include, but are not 
limited to, a maximum number of miles or hours during a single tour of 
duty, or limitations placed on a person in coordination with a fatigue 
mitigation plan;
    (10) Information regarding other operations traveling on the same 
track as the one-person train operation or that travel on an adjacent 
track. Such information shall include, but is not limited to, the 
volume of traffic and the types of opposing moves (e.g., passenger 
trains or freight trains hauling hazardous materials);
    (11) A detailed description of any technology that is used to 
perform tasks typically performed by a second crewmember, or that 
prevents or mitigates the consequences of accidents or incidents;
    (12) A copy of any railroad rule or practice that applies to the 
one-person

[[Page 25111]]

train crew operation, but does not apply to train crew operations with 
two or more crewmembers;
    (13) For each railroad seeking to continue a legacy freight train 
operation staffed with a one-person train crew as permitted by 
paragraph (a)(1) of this section, five (5) years of accident and 
incident data, as required by part 225 of this chapter, for the 
operation identified or, for operations established less than five (5) 
years before June 10, 2024, accident and incident data for the 
operation from the date the operation was established; and
    (14) Any other information describing protections provided in lieu 
of a second train crewmember, or relevant data or analysis, or both, 
that the railroad can provide about its one-person train crew operation 
and how that operation is as safe or safer than a two-person minimum 
train crew operation.
    (c) Additional requirements. Each railroad with an applicable one-
person train crew operation shall:
    (1) Adopt and comply with an operating rule that satisfies the 
requirements of this paragraph to ensure rail employees can take 
mitigation measures that provide a level of safety that is as safe or 
safer than a two-person train crew operation to address certain 
situations with the one-person train crew operation.
    (i) At a minimum, the operating rule shall address the following 
types of situations:
    (A) An accidental or non-accidental release of any hazardous 
material;
    (B) An accident/incident regardless of whether it is required to be 
reported to FRA under part 225 of this chapter;
    (C) A request from an emergency responder to unblock a highway-rail 
grade crossing in response to a potentially life-threatening situation;
    (D) A train or on-track equipment derailment;
    (E) A disabled train; and
    (F) An illness, injury, or other incapacitation of the one-person 
train crewmember.
    (ii) At a minimum, the operating rule shall:
    (A) Describe the role and responsibilities of the one-person train 
crewmember and any other railroad employees, including supervisors, 
with responsibility to address a situation described in paragraph 
(c)(1)(i) of this section; and
    (B) Describe any logistics and the railroad's expected response 
time(s).
    (2) Adopt and comply with an operating rule that satisfies the 
requirements of this paragraph to ensure radio or wireless 
communications with a one-person train crew is as safe or safer than a 
two-person train crew for train operations and crewmember safety. At a 
minimum, the operating rule shall require that:
    (i) The one-person train crew have a working radio or working 
wireless communications on the controlling locomotive appropriate for 
railroad communications as defined in Sec.  220.5 of this chapter, even 
if not otherwise required in Sec.  220.9 of this chapter;
    (ii) The train dispatcher or operator must confirm with a one-
person train crewmember that the train is stopped before conveying a 
mandatory directive by radio transmission as required in Sec.  220.61 
of this chapter;
    (iii) A one-person train crewmember must contact a railroad 
employee, typically a dispatcher, a supervisor or manager, or an 
intermittently assisting crewmember, whenever it can be anticipated 
that radio or wireless communication could be lost, e.g., before the 
train enters a tunnel, unless technology or a different protocol is 
established to monitor the train's real-time progress; and
    (iv) Procedures that establish when search-and-rescue operations 
shall be initiated if all radio or wireless communication is lost with 
a one-person train crewmember.
    (3) Adopt and comply with an operating rule that satisfies the 
requirements of this paragraph to ensure:
    (i) A one-person train crew's controlling locomotive is equipped 
with a functioning alerter that is operating as intended as defined in 
Sec.  229.5 of this chapter. For each railroad that limits the one-
person train crew's operation to a maximum authorized speed of 25 miles 
per hour and is not required to have an alerter on the locomotive that 
is equipped per the requirements in Sec.  229.140 of this chapter, any 
functioning alerter that is operating as intended will be acceptable if 
it has a manual reset and will result in a penalty brake application 
that brings the locomotive or train to a stop if not properly 
acknowledged; and
    (ii) That a one-person train crewmember must test that alerter to 
confirm it is functioning before departure from each initial terminal, 
or prior to being coupled as the lead locomotive in a locomotive 
consist.


Sec.  218.131   Special approval petition requirements for train 
operations staffed with a one-person train crew.

    (a) General. With the exception of operations permitted under 
Sec. Sec.  218.125 through 218.129, and as provided in paragraph (a)(2) 
of this section:
    (1) No railroad may operate a train with a one-person train crew 
unless it receives special approval for the operation under this 
subpart.
    (2) For a railroad that has established a one-person train crew 
operation before June 10, 2024, the railroad may continue the operation 
in accordance with this section pending FRA's decision on the 
railroad's special approval petition if:
    (i) The railroad submits a written notice by email to 
[email protected] no later than June 24, 2024 that, at a minimum, 
provides a summary of the operation and the name, title, address, 
telephone number, and email address of the primary person(s) to be 
contacted regarding the written notice and the operation;
    (ii) The railroad, in coordination with FRA, eliminates, mitigates, 
or otherwise addresses any safety hazards related to the one-person 
train crew operation FRA finds in reviewing the railroad's special 
approval petition; and
    (iii) The railroad submits its special approval petition, as 
specified by the requirements in paragraph (b) of this section, no 
later than August 7, 2024.
    (3) Each freight railroad seeking to either initiate or continue a 
train operation with a one-person train crew must receive FRA's special 
approval for the operation under this subpart and shall comply with the 
requirements in Sec.  218.129(c).
    (4) Each passenger railroad seeking to initiate a train operation 
with a one-person train crew must receive FRA's special approval for 
the operation under this subpart and have either:
    (i) An approved passenger train emergency preparedness plan under 
part 239 of this chapter for the operation; or
    (ii) An approved waiver from the passenger train emergency 
preparedness plan requirements as permitted under part 211 of this 
chapter. A passenger railroad may petition FRA for both a waiver under 
part 211 and special approval for a train operation staffed with a one-
person train crew in the same filing.
    (b) Petition for a train operation staffed with a one-person train 
crew. Each petition for a train operation with a one-person train crew 
that is not permitted under Sec. Sec.  218.125 through 218.129 must 
contain sufficient information for FRA to determine whether approving 
the operation described in the petition is as safe or safer than a two-
person minimum train crew operation. At a minimum, a petition must 
include:
    (1) The name, title, address, telephone number, and email address 
of the primary person to be contacted

[[Page 25112]]

regarding review of the special approval petition;
    (2) The location of the operation, with as much specificity as can 
be provided, as to the characteristics of the geographic area through 
which the trains will operate (e.g. population density and proximity to 
environmentally sensitive areas), the terrain over which the trains 
will be operated, industries or communities served, and track segments, 
territories, divisions, or subdivisions operated over;
    (3) The class(es) of track to be operated over, the method of 
operation, a list of the signal and train control systems, devices, and 
appliances installed and in operation, and a list of all active and 
passive highway-rail grade crossings, including crossing numbers;
    (4) The locations of any track where the average grade of any 
segment of the track operated over is 1 percent or more over 3 
continuous miles or 2 percent or more over 2 continuous miles;
    (5) The maximum authorized speed of the operation;
    (6) The approximate average number of miles and hours a person is 
projected to operate as a train crewmember in a one-person train crew 
operation;
    (7) The maximum number of cars and tonnage proposed for the 
operation, if any;
    (8) Whether the railroad is seeking approval to transport hazardous 
materials of the types or quantities specified in Sec.  218.123(c) or 
whether the railroad is seeking approval to transport other hazardous 
materials (as defined by Sec.  171.8 of this title) of any quantity and 
type;
    (9) Whether any limitations will be placed on a person operating as 
a one-person train crew. Such limitations may include, but are not 
limited to, a maximum number of miles or hours during a single tour of 
duty, or limitations placed on a person in coordination with a fatigue 
mitigation plan;
    (10) Information regarding other operations that may travel on the 
same track as, or an adjacent track to, the train operation staffed 
with a one-person train crew. Such information shall include, but is 
not limited to, the volume of traffic and the types of opposing moves 
(e.g., passenger or freight trains hauling hazardous materials);
    (11) A detailed description of any technology that will be used to 
perform or support tasks typically performed by a second crewmember, or 
that will prevent or significantly mitigate the consequences of 
accidents or incidents;
    (12) A copy of any railroad rule or practice that will apply to the 
proposed train operation(s) with a one-person train crew, but does not 
apply to train crew operations with two or more crewmembers;
    (13) A copy of a railroad operating rule that will apply to the 
proposed train operation(s) with a one-person train crew, and which 
complies with the requirements of Sec.  218.129(c)(1), to ensure rail 
employees can take mitigation measures that provide a level of safety 
that is as safe or safer than a two-person train crew operation to 
address certain situations with the one-person train crew operation. A 
passenger train operation with an approved emergency preparedness plan 
under part 239 of this chapter satisfies the requirement in this 
paragraph (b)(13);
    (14) Five (5) years of accident and incident data, as required by 
part 225 of this chapter, for the operation identified in paragraph 
(b)(2) of this section, when operating with two or more crewmembers, 
or, for operations established less than five (5) years before June 10, 
2024, accident and incident data for the operation from the date the 
operation was established;
    (15) A risk assessment of the proposed operation that meets the 
requirements of Sec.  218.133;
    (16) Any other information describing protections provided in lieu 
of a second train crewmember, or other relevant data or analysis.
    (c) Additional information. FRA may request any additional 
information, beyond what is provided in the petition, that it deems 
necessary.


Sec.  218.133   Risk assessment content and procedures.

    (a) General. A risk assessment submitted under this subpart must 
meet the following requirements:
    (1) Contain a list and descriptions of all functions, duties, and 
tasks associated with the proposed operation to be performed by the 
one-person train crewmember, other railroad employee(s), or equipment, 
including, at a minimum, any function performed:
    (i) To prepare a train for operation (including, but not limited 
to, pre-departure inspections, obtaining track bulletins, orders, or 
manifests, managing the train consist, including train makeup, 
obtaining and ensuring the accuracy of the train consist, arming and 
testing the end-of-train device, and performing brake tests);
    (ii) To operate a train (including, but not limited to, operating 
and controlling the train, interacting with non-crewmembers such as the 
dispatcher or roadway workers, and responding to emergencies or 
unexpected events); and
    (iii) To ensure safety once a train has stopped moving (e.g., 
including, but not limited to, securing the train).
    (2) Describe the allocation of all functions, duties, and tasks to 
the one-person train crewmember, other railroad employee(s), or 
equipment.
    (3) Contain a risk-based hazard analysis for the proposed train 
operation's functions, duties, and tasks, that shall:
    (i) Identify any new hazards, changes to existing hazards and/or 
changes to the risk of an existing hazard associated with the proposed 
train operation, as compared to a two-person minimum train crew 
operation, taking account of all aspects of the railroad's system, 
including, at a minimum, infrastructure, equipment, technology, work 
schedules, mode of operation, operating rules and practices, training 
and other areas impacting railroad safety;
    (ii) Calculate and/or update each risk, quantitatively or 
qualitatively, or both, by assessing each new hazard, change to an 
existing hazard and/or change to the risk of a hazard, in terms of the 
severity and likelihood of a mishap;
    (iii) Recalculate each risk mitigated in accordance with Sec.  
218.131(b)(15), quantitatively or qualitatively, or both, by assessing 
each new hazard, change to an existing hazard and/or change to the risk 
of a hazard and the level of mitigation (elimination or reduction), in 
terms of the severity and likelihood of a mishap; and
    (iv) Provide a statement with supporting evidence that the one-
person train crew operation with a fully implemented mitigation plan is 
as safe or safer than a two-person minimum train crew operation.
    (4) Contain a mitigation plan that documents the design and 
implementation timeline of the sustained mitigation strategies to 
eliminate or reduce the overall risk to a level such that the one-
person train crew operation is as safe or safer than a two-person 
minimum train crew operation, considering, at a minimum, the following:
    (i) The design of the system, equipment, and components, including 
equipment reliability and the necessary functions to be performed, in 
both a normal operation and in a degraded or failed state; and
    (ii) The human factors associated with the processes and tasks to 
be performed, including the required skills and capabilities, the 
operating environment, and existing or potential impairments.
    (b) Alternative standard. A railroad may petition the Associate

[[Page 25113]]

Administrator for Safety for approval to use alternative methodologies 
or procedures, or both, other than those required by paragraph (a) of 
this section to assess the risk associated with an operation proposed 
under this section. If, after providing public notice of the request 
for approval and an opportunity for public comment on the request, the 
Associate Administrator for Safety finds that any such petition 
demonstrates that the alternative proposed methodology or procedures, 
or both, will provide an accurate assessment of the risk associated 
with the operation, the Associate Administrator for Safety may approve 
the use of the proposed alternative(s).


Sec.  218.135   Special approval procedure.

    (a) Petition. Each railroad submitting a petition under Sec.  
218.131 shall send the petition by email to [email protected]. FRA 
will make the petition publicly available at https://www.regulations.gov.
    (b) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under Sec.  218.131.
    (c) Comment. Not later than 60 days from the date of publication of 
the notice in the Federal Register under paragraph (b) of this section, 
any person may comment on the petition.
    (1) Each comment shall provide all relevant information and data in 
support of the commenter's position.
    (2) Each comment shall be submitted to FRA through https://www.regulations.gov to the docket identified in the Federal Register 
notice.
    (d) Disposition of petitions. (1) If the Administrator finds it 
necessary or desirable, FRA will conduct a hearing on a petition in 
accordance with its rules of practice in part 211 of this chapter.
    (2) A petition must not be implemented until approved. If FRA finds 
that the petition complies with the requirements of Sec.  218.131 and 
that approving the petition is as safe or safer than a two-person 
minimum train crew operation, FRA will grant the petition, normally 
within 120 days of its receipt. If the petition is neither granted nor 
denied within 120 days, the petition remains pending for decision. FRA 
may attach special conditions to the approval of the petition. 
Following the approval of a petition, FRA may reopen consideration of 
the petition for cause stated.
    (3) If FRA finds that a petition does not comply with the 
requirements of this subpart or that approving the petition would not 
be as safe or safer than a two-person minimum train crew operation, FRA 
will deny the petition, normally within 120 days of its receipt.
    (4) When FRA decides a petition, reopens consideration of a 
petition, or closes a reopened petition, FRA will send written notice 
of the decision to the petitioner and publish that decision in the 
docket.
    (e) Modifications. (1) A railroad that intends to materially modify 
an operation subject to an FRA approval under this section shall submit 
a description of how it intends to modify the operation, along with 
either a new or an updated risk assessment accounting for the 
identified proposed modifications. The new or updated risk assessment 
must meet the requirements of Sec.  218.133 and be submitted by email 
to [email protected] at least 60 days before the date proposed to 
implement any such modification. For the purposes of this paragraph 
(e), a material modification is a change:
    (i) To a railroad's operations, infrastructure, locomotive control 
technology, or risk mitigation technology, that may affect the safety 
of the operation;
    (ii) That would affect the assumptions underlying the risk 
assessment on which an FRA approval under this section is based; or
    (iii) That would affect the assumptions underlying the risk 
assessment's risk calculations or mitigations on which an FRA approval 
under this section is based.
    (2) When FRA decides on a material modification to a petition, FRA 
will send written notice of the decision to the petitioner and publish 
that decision in the same docket created for the petition in paragraph 
(a) of this section. FRA may reopen consideration of a petition based 
on a material modification, deny the material modification, or grant 
the material modification with or without special conditions to the 
approval. A material modification must not be implemented until 
approved. If the material modification submission is neither granted 
nor denied within 60 days, the petition remains pending for decision.


Sec.  218.137   Annual railroad responsibilities after receipt of 
special approval.

    (a) Each railroad that receives special approval to use an 
operation with a one-person train crew under this subpart shall prepare 
an annual report, which will be a formal review and analysis each 
calendar year, of the one-person train crew operation. The annual 
report, which will include a railroad's findings and conclusions from 
its review, shall be submitted no later than March 31 of the following 
year to [email protected]. The requirements in paragraphs (b) and 
(c) of this section describe the components of a railroad's annual 
report.
    (b) A railroad's annual report must include the safety data and 
information listed in paragraphs (b)(1) and (2) of this section for any 
one-person train crew operation that receives special approval under 
this subpart.
    (1) The total number of:
    (i) FRA-reportable accidents/incidents under part 225 of this 
chapter, including subtotals for accidents/incidents that occurred at a 
highway-rail grade crossing and those that did not occur at a highway-
rail grade crossing, and subtotals by State and cause. If an accident/
incident was FRA-reportable for more than one reason (e.g., the 
accident/incident occurred at a highway-rail grade crossing and 
resulted in rail equipment damages higher than the current reporting 
threshold), the accident/incident shall only be listed once in the 
total calculation;
    (ii) FRA-reportable employee fatalities;
    (iii) FRA-reportable employee injuries;
    (iv) Trespasser fatalities at a highway-rail grade crossing;
    (v) Trespasser injuries at a highway-rail grade crossing;
    (vi) Passenger fatalities at a highway-rail grade crossing;
    (vii) Passenger injuries at a highway-rail grade crossing;
    (viii) Instances where a railroad employee did not comply with a 
railroad rule or practice applicable to the one-person train crew 
operation receiving special approval under this subpart but not 
applicable to train crew operations with two or more crewmembers that 
travel on the train;
    (ix) Instances where a one-person train crewmember had a locomotive 
engineer or conductor certification revoked for violation of an 
operating rule or practice that occurred when the person was operating 
a one-person train crew operation receiving special approval under this 
subpart. In addition to the total number of these instances, the 
railroad must report the subtotals for each type of certification 
revoked;
    (x) Accountable rail equipment accidents/incidents under part 225 
of this chapter;
    (xi) Instances when the railroad was required to comply with an 
operating rule to ensure rail employees can take mitigation measures 
that provide a level of safety that is as safe or safer than a two-
person train crew operation to address certain situations with the one-

[[Page 25114]]

person train crew operation under Sec.  218.131(b)(13);
    (xii) Instances when a dispatcher, operator, or other required 
employee unexpectedly lost communication with the one-person train crew 
operation receiving special approval under this subpart;
    (xiii) Employee hours worked; and
    (xiv) Train miles.
    (2) For each instance counted in the totals reported in paragraphs 
(b)(1)(i) through (xii) of this section, a railroad's annual report 
must clearly identify each instance by date and location and provide a 
complete factual description of the event.
    (c) The annual report must also include written confirmation that 
the risk assessment for operations receiving special approval under 
this subpart, including all calculations and assumptions, remains 
unchanged and that no technology changes have been implemented or new 
or additional hazards identified.
    (1) If any risk assessment calculation or assumption changes for an 
operation receiving special approval under this subpart, a new or 
updated risk assessment meeting the requirements of Sec.  218.133 must 
be prepared and submitted with the railroad's annual report. This 
annual reporting requirement does not negate the requirement to submit 
a new or updated risk assessment when making a material modification to 
an operation as required in Sec.  218.135.
    (2) Any new or updated risk assessment submitted in accordance with 
paragraph (c) of this section must include a written plan and schedule 
for implementing any mitigations required to address any newly 
identified hazards.
    (d) FRA will review and respond to a railroad's annual report 
submission in accordance with paragraph (a) of this section by 
September 30 of the year it is submitted.
    (1) FRA's response may include advice or recommendations; and
    (2) For a one-person train crew operation receiving special 
approval under this subpart, FRA may reopen consideration of a petition 
under Sec.  218.135 based on a finding that a railroad's annual report 
submission suggests that the petition does not comply with the 
requirements of this subpart or that the operation is no longer as safe 
or safer than a two-person train crew operation.

0
6. Add appendix E to part 218 to read as follows:

Appendix E to Part 218--Recommended Procedures for Conducting Risk 
Assessments

    A railroad petitioning to operate with a one-person train crew 
in accordance with Sec.  218.133 must prepare a risk-based hazard 
analysis that quantitatively and/or qualitatively demonstrates that 
the proposed operation using a one-person train crew will be as safe 
or safer than an operation using a two-person train crew under 
normal operation and in a degraded or failed state. This appendix 
provides one approach that may be used by a railroad to prepare a 
risk-based hazard analysis and compare the risks to determine if a 
proposed one-person train crew operation will be as safe or safer 
than a two-person minimum train crew operation, when all mitigations 
are in place. A railroad is not restricted to this approach and may 
use another formal safety methodology that fulfills the requirements 
of Sec.  218.133.

Quantitative Risk-Based Hazard Analysis

    (a) Identify new hazards, changes to existing hazards or changes 
to the risk of existing hazards of the one-person train crew 
operation, as compared to a two-person minimum train crew operation, 
as provided in Sec.  218.133(a)(3)(i).
    (b) Calculate and/or update each risk of the one-person train 
crew operation, as compared to a two-person minimum train crew 
operation, by assessing each new hazard, change to an existing 
hazard and/or change to the risk of an existing hazard, in terms of 
the severity and likelihood of potential events using the following 
framework:
    (1) The assessment of the severity is measured as the worst-
credible mishap resulting from the hazard and categorized in 
accordance with Table 1 of this paragraph (b)(1):

                       Table 1 to Paragraph (b)(1)
------------------------------------------------------------------------
                                 Severity
                                ranking (1
          Category            being the most          Definition
                                  severe)
------------------------------------------------------------------------
                           SEVERITY CATEGORIES
------------------------------------------------------------------------
Catastrophic................               1  Results in one or more of
                                               the following: fatality,
                                               irreversible significant
                                               environmental damage, or
                                               significant monetary
                                               loss. Accidents/incidents
                                               that must be reported to
                                               FRA telephonically under
                                               Sec.   225.9 of this
                                               chapter are considered
                                               catastrophic.
Critical....................               2  Results in one or more of
                                               the following:
                                               significant injury (as
                                               defined in Sec.   225.5
                                               of this chapter),
                                               reversible significant
                                               environmental damage, or
                                               reportable monetary loss.
                                               Accidents/incidents that
                                               are not telephonically
                                               reported under Sec.
                                               225.9 of this chapter but
                                               are still FRA-reportable
                                               under Sec.   225.19 of
                                               this chapter, are
                                               considered critical.
Marginal....................               3  Results in one or more of
                                               the following: minor
                                               injuries (i.e., injuries
                                               that are not significant
                                               as defined in Sec.
                                               225.5 of this chapter),
                                               reversible non-
                                               significant environmental
                                               damage, or monetary loss.
                                               Mishaps that are not FRA-
                                               reportable accidents/
                                               incidents but are
                                               considered accountable
                                               rail equipment accidents/
                                               incidents as defined in
                                               Sec.   225.5 of this
                                               chapter, are considered
                                               marginal.
Negligible..................               4  Results in one or more of
                                               the following: no
                                               injuries, no
                                               environmental damage, or
                                               equipment or railroad
                                               structure damage(s) that
                                               do not require repair.
------------------------------------------------------------------------


[[Page 25115]]

    (2) The assessment of probability of occurrence as defined in 
Table 2 of this paragraph (b)(2):

                                           Table 2 to Paragraph (b)(2)
----------------------------------------------------------------------------------------------------------------
                                                                     Qualitative              Quantitative
          Description                       Level                characterization of       characterization of
                                                                     probability             probability \1\
----------------------------------------------------------------------------------------------------------------
                                               PROBABILITY LEVELS
----------------------------------------------------------------------------------------------------------------
FREQUENT.......................  A                            Likely to occur           Greater than once every
                                                               frequently.               1,000 operating hours.
PROBABLE.......................  B                            Likely to occur several   Between once every 1,000
                                                               times.                    hours and once every
                                                                                         100,000 hours.
OCCASIONAL.....................  C                            Likely to occur once,     Between once every
                                                               but not several times.    100,000 hours and once
                                                                                         every 10,000,000 hours.
REMOTE.........................  D                            Unlikely but possible to  Between once every
                                                               occur.                    10,000,000 hours and
                                                                                         once every
                                                                                         1,000,000,000 hours.
IMPROBABLE.....................  E                            So unlikely that it can   Less than once every
                                                               be assumed the            1,000,000,000 hours.
                                                               occurrence may not be
                                                               experienced.
----------------------------------------------------------------------------------------------------------------
\1\ Probability of a hazard occurring per 1,000 operating hours.

    (c) Applying the sustained mitigation strategies designed and 
implemented in accordance with Sec.  218.133(a)(4), recalculate the 
risk using the framework documented in paragraph (b) of this 
appendix.
    (d) Prepare a risk matrix in the format of Table 3 of this 
paragraph (d) that classifies the risks calculated in paragraph (c) 
of this appendix in terms of severity and likelihood of each new 
hazard, change to an existing hazard, or change to the risk of an 
existing hazard as follows:

                                            Table 3 to Paragraph (d)
----------------------------------------------------------------------------------------------------------------
                                                                    Severity
         Probability          ----------------------------------------------------------------------------------
                                 (1) Catastrophic       (2) Critical         (3) Marginal       (4) Negligible
----------------------------------------------------------------------------------------------------------------
                                                   Risk Matrix
----------------------------------------------------------------------------------------------------------------
(A) FREQUENT.................  1A                   2A                   3A                   4A
(B) PROBABLE.................  1B                   2B                   3B                   ..................
(C) OCCASIONAL...............  1C                   2C                   3C                   4C
(D) REMOTE...................  1D                   2D                   4D                   ..................
(E) IMPROBABLE...............  1E                   3E                   4E                   ..................
----------------------------------------------------------------------------------------------------------------

    (e) Prepare a risk report of the train operation staffed with a 
one-person train crew, as compared to a two-person minimum train 
crew operation, documenting the basis for acceptability of all new 
hazards, changes to existing hazards and/or changes to the risk of 
existing hazards identified in the matrix required by paragraph (d) 
of this appendix. The risk report should categorize the risk of each 
new hazard, change to existing hazard and/or change to the risk of 
an existing hazard as follows:
    (1) Unacceptable. Categories 1A, 1B, 1C, 1D, 2A, 2B, 2C, 3A, 3B, 
and 4A are unacceptable. A railroad should not file a petition for 
special approval with a new hazard, change to existing hazard and/or 
change to the risk of an existing hazard in this category as FRA 
will not approve an operation with a partially mitigated or 
unmitigated hazard that is categorized as unacceptable;
    (2) Acceptable under specific conditions. Categories 1E, 2D, 3C, 
3D, 4B, and 4C are acceptable under specific conditions. A 
railroad's risk report should describe why the railroad finds the 
conditions acceptable. A new hazard, change to existing hazard and/
or change to the risk of an existing hazard will be acceptable under 
specific conditions if FRA finds that the one-person operation is as 
safe or safer than a two or more-person operation; and
    (3) Acceptable. Categories 2E, 3E, 4D, and 4E are acceptable. 
FRA will not deny a petition for special approval solely on the 
basis an appropriately categorized acceptable new hazard, change to 
existing hazard and/or change to the risk of an existing hazard if 
the one-person operation is as safe or safer than a two-person 
minimum operation.
    (f) Provide a statement with supporting evidence, that the one-
person operation with a fully implemented mitigation plan, is as 
safe or safer than a two-person minimum operation.

Amitabha Bose,
Administrator.
[FR Doc. 2024-06625 Filed 4-8-24; 8:45 am]
BILLING CODE 4910-06-P

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