[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Proposed Rules]
[Pages 24735-24741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11088]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 218

[Docket No. FRA-2014-0033, Notice No. 4]
RIN 2130-AC48


Train Crew Staffing

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

ACTION: Notice of proposed rulemaking (NPRM); withdrawal.

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SUMMARY: FRA withdraws the March 15, 2016 NPRM concerning train crew 
staffing. In withdrawing the NPRM, FRA is providing notice of its 
affirmative decision that no regulation of train crew staffing is 
necessary or appropriate for railroad operations to be conducted safely 
at this time.

DATES: As of May 29, 2019, the NPRM published on March 15, 2016 (81 FR 
13918), is withdrawn.

FOR FURTHER INFORMATION CONTACT: Alan H. Nagler, Senior Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, Room W31-309, 1200 New Jersey Avenue SE, Washington, 
DC 20590, 202-493-6038.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background
    A. Comments Generally Supporting the Proposed Rule
    B. Comments Generally Opposing the Proposed Rule
II. FRA's Decision
    A. There Is No Direct Safety Connection Between Train Crew 
Staffing and the Lac-M[eacute]gantic or Casselton Accidents
    B. Rail Safety Data Does Not Support a Train Crew Staffing 
Rulemaking
    C. Comments to the NPRM Do Not Support a Train Crew Staffing 
Rulemaking
    D. A Train Crew Staffing Rule Would Unnecessarily Impede the 
Future of Rail Innovation and Automation
    E. FRA's Withdrawal Is an Affirmative Decision Not To Regulate 
With the Intention To Preempt State Laws

I. Background

    FRA has the authority to regulate train crew staffing pursuant to 
its broad authority to, ``as necessary, . . . prescribe regulations and 
issue orders for every area of railroad safety supplementing laws and 
regulations in effect on October 16, 1970.'' \1\ On March 15, 2016, FRA 
issued an NPRM which proposed regulations establishing minimum 
requirements for the size of train crew staffs depending on the type of 
operation (referred to herein as train crew staffing). The proposed 
rule was not statutorily mandated, but rather, arose out of two rail 
accidents in 2013 (Lac-M[eacute]gantic, Quebec and Casselton, North 
Dakota).\2\ Following the Lac-M[eacute]gantic and Casselton accidents, 
the rail industry, Transportation Safety Board of Canada (TSB of 
Canada), and DOT undertook a variety of investigations and actions \3\ 
to address rail safety and hazardous materials issues highlighted by 
those accidents, including FRA's submission of a task to the Railroad 
Safety Advisory Committee (RSAC).\4\
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    \1\ 49 U.S.C. 20103; 49 CFR 1.89.
    \2\ The accidents are described in the NPRM. See 81 FR 13918, 
13921-13924 (Mar. 15, 2016).
    \3\ Some of those actions are described in the NPRM. See, e.g., 
81 FR at 13922 (Mar. 15, 2016).
    \4\ To adopt a participatory approach to rulemaking, in 1996, 
FRA first established the RSAC, which is designed to bring together 
all segments of the rail community to provide advice and 
recommendations to FRA on railroad safety issues. The RSAC includes 
representatives from railroads, labor, shippers, industry 
associations, and other government agencies. The RSAC provides 
recommendations to FRA on issuing and updating regulations and 
identifies non-regulatory approaches to improve safety. The most 
recent RSAC meeting occurred on April 24, 2019.
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    On August 29, 2013, RSAC accepted a task (No. 13-05) entitled 
``Appropriate Train Crew Size'' and formed a Working Group. The task 
statement noted that in light of the Lac-M[eacute]gantic accident, 
``FRA believes it is appropriate to review whether train crew staffing 
practices affect railroad safety.'' Because FRA did not have reliable 
or conclusive statistical data to suggest whether one-person crew 
operations are safer or less safe than multiple-person crew operations, 
FRA hoped that RSAC would provide useful analysis, including conclusive 
data addressing whether there is a safety benefit or detriment from 
crew redundancy (i.e., multiple-person train crews) and a report on the 
costs and benefits associated with crew redundancy.

[[Page 24736]]

    Despite meeting five times from October 2013 to March 2014, the 
RSAC Working Group was unable to reach consensus on any recommendation 
or identify conclusive, statistical data to suggest whether there is a 
safety benefit or detriment from crew redundancy. As noted in the NPRM, 
the accident data railroads provided did not capture accidents where 
the cause or contributing factor was a lack of a second crewmember and 
thus that data did not aid the Working Group.
    Although RSAC was unable to identify data necessary to determine 
whether a regulation was needed to address train crew staffing, FRA 
believed it was important to give the broader public an opportunity to 
provide input on this issue. Accordingly, on March 15, 2016, FRA issued 
the NPRM with an initial 60-day comment period. FRA then extended the 
comment period for an additional month \5\ and held a public hearing on 
July 15, 2016. Subsequently, FRA extended the comment period through 
August 15, 2016.\6\
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    \5\ 81 FR 30229 (May 16, 2016).
    \6\ 81 FR 39014 (June 15, 2016).
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    FRA received nearly 1,600 comments on the NPRM from industry 
stakeholders and individuals, including current, former, and retired 
crewmembers. FRA also received comments from the National 
Transportation Safety Board (NTSB), two members of Congress, and 
numerous state and local government officials. A general summary of the 
comments is provided below.\7\
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    \7\ The order the comments are discussed in this document, 
whether by issue or by commenter, 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 extent and nature of the 
comments, as well as give some specific descriptions to provide 
context. Not every comment is described in this summary though all 
were thoughtfully considered and, when specific numbers of comments 
are identified by comment theme or issue, such numbers are 
approximate as some comments could not be easily grouped with 
others.
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A. Comments Generally Supporting the Proposed Rule

    Approximately 1,545 of the written comments were in support of some 
kind of train crew staffing requirements, although not necessarily the 
exact proposed requirements found in the NPRM. Two railroad employee 
unions, the Brotherhood of Locomotive Engineers and Trainmen (BLET) and 
the International Association of Sheet Metal, Air, Rail and 
Transportation Workers Transportation Division (SMART TD), submitted 
comments advocating for changes to the proposed rule. Commenters 
supportive of the rule commonly sought more stringent requirements that 
would mandate fewer, or no, exceptions to a two-person train crew, or 
require the second person be a certified conductor under FRA's 
requirements in 49 CFR part 242. The four central points of these 
comments were that: (1) A train crew's duties are too demanding for one 
person; (2) new technology will make the job more complex; (3) 
unpredictable scheduling makes fatigue a greater factor when there is 
only a one-person crew; and (4) the idea of a one-person train crew is 
seemingly in conflict with the statutory and regulatory requirements 
for certification of both locomotive engineers and conductors.
    The vast majority of comments supporting crew staffing 
requirements, approximately 1,418, were filed by members of the public 
on behalf of themselves as individuals. Most of these individual 
commenters identified themselves as current, former, or retired train 
crewmembers. These commenters largely provided anecdotal information 
supporting why they thought trains staffed with fewer than two persons 
created unsafe conditions. For example, Mike Rankin, who also testified 
at the public hearing, recalled that he was a conductor working with a 
locomotive engineer and was able to ``cut'' (separate) a train in half 
after a grade crossing accident. He stated that his actions likely 
saved a teenager's life by allowing emergency first responders quick 
access to the injured teenager though the grade crossing, and enabling 
hospital treatment much faster than if only one train crewmember had 
been present and the crossing remained blocked.
    A variety of governmental officials and organizations also 
indicated support for train crew staffing requirements, but with a 
greater focus on safety for the communities in proximity to railroad 
tracks, as opposed to the safety of the rail operation itself. For 
example, FRA heard testimony at the public hearing from Mayor Karen 
Darch of Barrington, Illinois. Mayor Darch explained that local 
governments and railroads face the same task of determining appropriate 
staffing levels, with the local governments focusing on police, fire, 
and emergency medical services. She testified ``FRA should be concerned 
that industry may be tempted to bet on its favorable accident odds and 
make overly hasty staffing decisions to reduce operating costs.'' She 
asked FRA to ``balance the interests of the public living or traveling 
with proximity to'' railroad track, because the economies of 
``villages, towns, and cities are negatively impacted on a daily basis 
by train or grade crossing warning device malfunctions that block 
crossings.'' FRA also heard testimony from Mr. Ronnie C. Harris, 
Executive Director of the Louisiana Municipal Association, an 
organization that represents 303 cities, towns, and villages, and two 
consolidated parish governments in Louisiana. Mr. Harris expressed 
concern about dangerous commodities being transported by rail on long 
trains that have reached as long as 11,000 feet in length, and that, 
without two crewmembers, any blocked crossings would remain blocked for 
considerably longer than the time it would take a two-person crew to 
unblock a crossing.\8\ In addition to these summarized comments, FRA 
also received written comments generally supporting the NPRM's proposed 
requirements from State and local governmental officials, agencies and 
organizations from at least 16 States.
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    \8\ FRA is currently researching the rail operation safety 
issues associated with freight train length, as well as 
participating in a U.S. Government Accountability Office (GAO) 
engagement (code 102557) on the same subject.
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    Two Members of Congress commented on the rule, and they echoed the 
concerns of State and local governmental commenters, as well as the 
labor unions. For instance, then-Senator Heidi Heitkamp (North Dakota) 
testified at the public hearing that, as a representative of a State 
that moves a lot of oil by rail, the people she represented are 
concerned about safety and they want to know that their government is 
doing everything possible from a regulatory standpoint to keep the 
movement of oil and other hazardous materials safe. Senator Heitkamp 
testified that she supports a crew staffing rule because she has heard 
from rail workers in her State that believe having two crew members is 
essential for their safety and the public's safety. Senator Heitkamp 
further added that the NPRM provided the right balance as it proposed 
to allow exceptions grounded in a safety rationale. Then-Rep. Richard 
M. Nolan (8th District, Minnesota) also commented in support of the 
rule. Like BLET and SMART TD, Rep. Nolan supported FRA adopting a more 
stringent requirement that the second crewmember must be a certified 
conductor.
    The Western Organization of Resource Councils (WORC), a regional 
network of grassroots community organizations that includes 12,200 
members, many of whom are farmers, ranchers, and others directly 
affected by coal, oil, and gas development and who live in communities 
along rail lines, raised

[[Page 24737]]

concerns with trains being operated with fewer than two crewmembers. 
WORC commented that the 20-car hazardous materials threshold for ``key 
trains'' is not stringent enough to adequately protect communities and 
advocated for a single car threshold for determining whether a second 
crewmember must be present.
    The Environmental Law & Policy Center, an organization dedicated to 
the protection of the environment, commented that a second crewmember 
can be critical in containing environmental damage or making 
operational moves that could prevent accidents, and thus believes it is 
common sense that two crewmembers are better than one.
    The National League of Cities (NLC), an advocate for more than 
19,000 cities, villages, and towns, supported the NPRM. NLC commented 
that local officials are concerned with the significant increase in the 
volume of hazardous materials shipments combined with rail operators 
seeking to reduce crew sizes. NLC supported the rule as a response to 
``preventable tragedies of the past.''

B. Comments Generally Opposing the Proposed Rule

    Railroads, railroad associations, other associations and 
organizations, and some individual commenters submitted approximately 
39 comments that largely took the position that FRA should not regulate 
train crew size for a variety of reasons. The Association of American 
Railroads (AAR) commented that FRA's admission as to a lack of safety 
data meant the rule was ``arbitrary,'' indicating that AAR believed the 
rule could be determined unlawful through judicial review as a 
challenge under the Administrative Procedure Act (APA). AAR supported 
the NTSB's approach encouraging FRA to first modify its accident report 
form to include the number of crewmembers in the controlling cab at the 
time of an accident and then use the data it gathers to evaluate the 
safety adequacy of current regulatory requirements.\9\ In addition, AAR 
noted that the crew staffing issue has historically been left for labor 
relations and that one-person train crews are currently being used 
safely. Further, AAR also believed that: (1) The accidents FRA relied 
on in the NPRM as the basis for the proposed rule did not provide such 
a basis; (2) FRA massively underestimated the costs of the rule on the 
industry; and (3) FRA's proposed rule was stifling innovation just as 
autonomous technologies were emerging and DOT was removing roadblocks 
to automation in other modes of transportation. AAR also provided 
research documents to support its position. For instance, AAR funded 
two studies conducted by Oliver Wyman, a consulting firm. One study, 
``Analysis of North American Freight Rail Single-Person Crews: Safety 
and Economics,'' concluded that safety data analyses show single-person 
crew operations appear as safe as multiple-person crew operations, if 
not safer. This study also concluded that the proposed rule would 
greatly reduce U.S. railroads' ability to control operating costs, 
without making the industry safer. A second study, ``Assessment of 
European Railways: Characteristics and Crew-Related Safety,'' critiqued 
several of the assertions FRA made in its Regulatory Impact Analysis 
(RIA) on the NPRM, and generally found that European rail operations 
are comparable to U.S. rail operations and therefore the success of the 
European network in implementing single-person crew operations can 
serve as a model for the U.S. rail system. AAR also submitted a 
comparative risk assessment completed by ICF Incorporated, a consulting 
firm, titled ``Evaluation of Single Crew Risks,'' which compared 
traditional Class I railroad two-person crew mainline operations with 
an FRA-compliant positive train control (PTC) system installed for both 
one-person- and two-person-crew mainline operations to determine the 
frequency of accidents that might be impacted by crew size. That 
assessment found almost no difference in accident rates between one- 
and two-person operations where PTC has been fully implemented. Union 
Pacific Railroad and Norfolk Southern Railway were two of the Class I 
freight railroads represented by AAR that submitted extensive comments 
raising the same themes.
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    \9\ The NTSB's comment on the NPRM stated that the NTSB had not 
taken a prior position on crew size but that its accident report 
investigation into the derailment of National Railroad Passenger 
Corporation (Amtrak) train no. 188 in Philadelphia, Pennsylvania, on 
May 12, 2015, would address the issue. In that report, issued on May 
17, 2016, the NTSB made a finding that FRA's ``accident database is 
inadequate for comparing relevant accident rates based on crew size 
because the information about accident circumstances and number of 
crewmembers in the controlling cab is insufficient.'' NTSB, RAR-16/
02, Derailment of Amtrak Passenger Train 188 at 19 (2016). 
Therefore, the NTSB made new recommendations to FRA to capture 
crewmember data and use the data to evaluate the adequacy of current 
crew size regulations. Id. (citing recommendations R-16-33 and R-16-
34). On April 25, 2018, FRA asked RSAC to consider forming a working 
group to meet and discuss possible changes and updates to FRA's data 
collection requirements that would include the NTSB's 
recommendations and RSAC accepted that task. That process is 
ongoing.
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    The American Short Line and Regional Railroad Association (ASLRRA) 
objected to the NPRM for several reasons. ASLRRA was concerned about 
the financial impact and paperwork burden the rule would have on short 
line railroads, which generally are small entities, and questioned 
whether FRA adequately followed existing legal requirements that 
protect small businesses. ASLRRA challenged FRA's lack of data and 
FRA's internal survey of its regional personnel to determine the extent 
of one-person crew operations. Also, ASLRRA commented that its members 
would have a competitive disadvantage compared to the trucking 
industry, if the NPRM was finalized, and it submitted an economic paper 
suggesting the proposed rule's requirements may induce railroads to 
reallocate scarce resources away from upgrades to track and equipment.

II. FRA's Decision

    While FRA continues to monitor the potential safety impact of train 
crew staffing, for the reasons provided below, FRA finds that no 
regulation of train crew staffing is necessary or appropriate at this 
time. FRA believes that current safety programs and actions taken 
following the Lac-M[eacute]gantic and Casselton accidents are the 
appropriate avenues for addressing those accidents. Moreover, despite 
studying this issue in-depth and performing extensive outreach to 
industry stakeholders and the general public, FRA's statement in the 
NPRM that it ``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'' still holds true 
today. Accordingly, FRA withdraws the NPRM.

A. There Is No Direct Safety Connection Between Train Crew Staffing and 
the Lac-M[eacute]gantic or Casselton Accidents

    Although the Lac-M[eacute]gantic and Casselton accidents initially 
led FRA to review the potential impact of train crew staffing on 
safety, FRA subsequently determined that no direct conclusions could be 
drawn about train crew staffing's safety impact on those accidents. As 
FRA acknowledged in the NPRM, the TSB of Canada's investigation report 
on the Lac-M[eacute]gantic accident concluded it would have been 
possible for a single operator to apply a sufficient number of hand 
brakes within a reasonable amount of time to have secured the train 
involved in that

[[Page 24738]]

accident.\10\ The NPRM summarized TSB of Canada's finding that it could 
not be concluded that a one-person crew contributed to the accident, 
and that risk, if any, posed by a one-person crew was not determined to 
have directly led to the accident. Simply put, TSB of Canada found no 
direct causal connection between this catastrophic accident and the 
number of train crewmembers.\11\ As FRA acknowledged in the NPRM, ``FRA 
does not have information that suggests that there have been any 
previous accidents involving one-person crew operations that could have 
been avoided by adding a second crewmember.'' \12\ That fact remains 
true today.
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    \10\ 81 FR at 13921.
    \11\ Railway Investigation Report R13D0054 at 117-18 (July 6, 
2013), http://bit.ly/VLqVBk.
    \12\ 81 FR at 13921.
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    While the NPRM noted some indirect connections between crew 
staffing and railroad safety with respect to the Lac-M[eacute]gantic 
and Casselton accidents, those connections are tangential at best and 
do not provide a sufficient basis for FRA regulation of train crew 
staffing requirements. For example, TSB of Canada made indirect 
connections in the Lac-M[eacute]gantic accident between the railroad's 
poor safety culture and the one train crewmember's alleged failure to 
properly secure the train. However, in making this connection, TSB of 
Canada emphasized that a single crewmember could have prevented or 
helped avoid the catastrophic accident by following the railroad's rule 
requiring a proper hand brake effectiveness test (i.e., to determine 
whether a sufficient number of hand brakes were applied to properly 
secure the train), and that the incident may have been just as likely 
with multiple train crewmembers and a poor safety culture.
    Likewise, after reviewing the facts of the Casselton accident as 
described in the NPRM,\13\ and FRA's final accident investigation 
report,\14\ FRA believes that the same type of positive post-accident 
mitigating actions were achievable with: (1) Fewer than two crewmembers 
on the BNSF grain train involved in the accident, and (2) a well-
planned, post-accident protocol that quickly brings railroad employees 
to the scene of an accident.\15\ In other words, the facts of the 
accident suggest that BNSF could have duplicated the mitigating moves 
of the grain train crew with responding emergency crewmembers. While 
FRA acknowledges the BNSF key train crew performed well, potentially 
saving each other's lives, it is possible that one properly trained 
crewmember, technology, and/or additional railroad emergency planning 
could have achieved similar mitigating actions. Thus, the indirect 
safety connections cited in the NPRM do not provide a sufficient basis 
for FRA regulation of train crew staffing.
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    \13\ 81 FR at 13923-24.
    \14\ https://www.fra.dot.gov/eLib/details/L18586#p1_z50_gD_lAC_y2013.
    \15\ BNSF's post-accident actions included the development of an 
inventory of emergency response resources along crude oil train 
routes, identifying locations for staging emergency response 
equipment, and identifying contacts for community notification. 
NTSB/Railroad Accident Brief RAB-17/01 at 15-16, https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1701.pdf.
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    FRA's current safety programs and actions taken by FRA and DOT 
following the Lac-M[eacute]gantic and Casselton accidents appropriately 
address safety concerns raised by those accidents. In direct response 
to the Lac-M[eacute]gantic derailment, FRA has taken the following 
actions to ensure the safe transportation of products by rail in the 
United States, with a particular focus on certain hazardous materials 
that present an immediate danger for communities and the environment in 
the event of a train accident.
     FRA issued Emergency Order (E.O.) 28 to address the 
immediate dangers that arise from unattended equipment left unsecured 
on mainline tracks.\16\ E.O. 28 was rescinded on the effective date of 
a subsequent final rule,\17\ discussed further below.
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    \16\ See 78 FR 48218, Aug. 7, 2013.
    \17\ See Securement of Unattended Equipment, 80 FR 47349, 47358, 
Aug. 6, 2015.
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     FRA and the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) jointly issued a Safety Advisory to railroads 
and commodity shippers detailing eight recommended actions the industry 
should take to better ensure the safe transport of hazardous 
materials.\18\ These recommendations include: Reviewing the details and 
lessons learned from the Lac M[eacute]gantic accident; reviewing crew 
staffing levels; removing and securing the train's ``reverser'' when 
unattended; reviewing all railroad operating procedures and testing/
operating rules related to securing a train; reviewing Transport 
Canada's directives to secure and safely operate a train; and 
conducting a system-wide assessment of security risks when a train is 
unattended and identifying mitigation efforts for those risks. 
Additionally, the Safety Advisory recommends testing and sampling of 
crude oil for proper classification for shipment, as well as a review 
of all shippers' safety and security plans.
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    \18\ See Federal Railroad Administration Safety Advisory 2013-
06, Lac-M[eacute]gantic Railroad Accident and DOT Safety 
Recommendations, 78 FR 48224, Aug. 7, 2013, available at http://www.fra.dot.gov/eLib/details/L04720.
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     FRA and PHMSA jointly issued a follow-up Safety 
Advisory.\19\ In this Safety Advisory, PHMSA and FRA reinforced the 
importance of proper characterization, classification, and selection of 
a packing group for Class 3 materials, and the corresponding 
requirements in the federal hazardous materials regulations for safety 
and security planning. In addition, the Safety Advisory reinforced that 
FRA expects offerors by rail and rail carriers to revise their safety 
and security plans required by the federal hazardous materials 
regulations, including the required risk assessments, to address the 
safety and security issues identified in FRA's E.O. 28 and the August 
7, 2013, joint Safety Advisory.
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    \19\ See Federal Railroad Administration Safety Advisory 2013-
07, Safety and Security Plans for Class 3 Hazardous Materials 
Transported by Rail, 78 FR 69745, Nov. 20, 2013, available at 
https://www.fra.dot.gov/eLib/details/L04861.
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     FRA and PHMSA jointly issued a Safety Advisory 
specifically regarding the transportation of petroleum crude oil.\20\ 
More specifically, the Safety Advisory recommends that offerors and 
carriers of Bakken crude oil by rail tank car select and use the 
railroad tank car designs with the highest level of integrity 
reasonably available within their fleet for shipment of these hazardous 
materials by rail in interstate commerce. Further, the Safety Advisory 
recommends offerors and carriers of Bakken crude oil avoid the use of 
older, legacy DOT Specification 111 or CTC 111 tank cars for the 
shipment of such oil, to the extent reasonably practicable.
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    \20\ See Federal Railroad Administration Safety Advisory 2014-
01, Notice of Safety Advisory, 79 FR 27370, May 13, 2014, available 
at https://www.fra.dot.gov/eLib/details/L05222.
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     FRA coordinated with PHMSA on a PHMSA final rule adopting 
new operational requirements for certain trains transporting large 
quantities of flammable liquids known as ``high-hazard flammable 
trains''; enhancing safety improvements in tank car design standards; 
providing a sampling and classification program for unrefined 
petroleum-based products; and mandating notification requirements.\21\
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    \21\ See Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High Hazard Flammable Trains, 80 FR 26643, 
May 8, 2015.
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     FRA issued a final rule to strengthen existing securement 
regulations, which mitigate risks associated with the unintended

[[Page 24739]]

movement of unattended equipment.\22\ Additional requirements addressed 
hazards identified from the Lac-M[eacute]gantic accident. The final 
rule codified much of FRA's E.O. 28, requiring railroads to implement 
procedures to ensure the proper securement of equipment containing 
certain types and amounts of hazardous materials when left unattended. 
For example, the rule contains requirements to ensure that each 
locomotive left unattended outside of a yard is equipped with an 
operative exterior locking mechanism and that such locks be applied on 
the controlling locomotive cab door when a train is transporting tank 
cars loaded with certain hazardous materials. The rule also provides 
that such hazardous materials trains may only be left unattended on a 
main track or siding if justified in a plan adopted by the railroad, 
accompanied by an appropriate job briefing, and proper securement is 
made and verified. This rule also requires additional verification of 
securement if a non-railroad emergency responder may have been in a 
position to have affected the equipment.
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    \22\ See Securement of Unattended Equipment, 80 FR 47349, Aug. 
6, 2015.
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    In addition to those actions, FRA previously addressed post-
accident protocols for passenger trains through the passenger train 
emergency preparedness regulation.\23\ That rule, typically referred to 
as the passenger train ``e-prep'' rule, requires each railroad involved 
in passenger train operations to submit a plan, for FRA approval, that 
ensures the railroad can effectively and efficiently manage passenger 
train emergencies. The e-prep rule does not require a specific number 
of on-board personnel, but rather ensures that railroads can 
successfully implement the emergency preparedness plans and those 
operations adopted under the rule; this notice of withdrawal does not 
have any effect on the emergency preparedness plan requirements.
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    \23\ 49 CFR part 239, Passenger Train Emergency Preparedness; 63 
FR 24630 (May 4, 1998).
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    As identified in the NPRM, FRA is also in the process of developing 
regulations requiring Class I railroads, other freight railroads with 
inadequate safety performance, and all passenger railroads to implement 
safety risk reduction programs (RRPs).\24\ These RRPs represent a 
comprehensive, system-oriented approach to safety that determines an 
operation's level of risk by identifying and analyzing applicable 
hazards and developing strategies to mitigate that risk. As part of its 
RRP, a railroad would identify safety hazards and risks associated with 
its operations, which could include changes in train crew staffing.\25\
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    \24\ On August 12, 2016, FRA published a final rule, found at 49 
CFR part 270, mandating that commuter and intercity passenger 
railroads develop and implement a system safety program to improve 
the safety of their operations. 81 FR 53850. A stay was issued on 
this final rule until September 4, 2019, to consider petitions for 
reconsideration. 83 FR 63106. (Dec. 7, 2018). Similarly, on February 
27, 2015, FRA published an NPRM that proposes to require each Class 
I railroad and any freight railroad with inadequate safety 
performance develop and implement an RRP to improve the safety of 
their operations. 80 FR 10950.
    \25\ For example, FRA's proposed risk reduction rule would 
require, if made final, that a railroad's safety performance 
evaluation monitors the railroad's system to identify emerging or 
new risks, which is expected to include a reduction in crew staffing 
levels. See proposed 49 CFR 271.105, 80 FR at 10992-93. FRA's system 
safety final rule requires that once FRA approves a railroad's plan, 
the railroad must apply a risk-based hazard analysis to identify 
hazards such as ``employee levels and schedules'' and must also 
perform a new analysis whenever there are ``significant operational 
changes.'' 49 CFR 270.103(q)(1) and (3).
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    In particular, as new technologies are introduced that may be 
connected to future reductions in crew size (e.g., PTC technology), 
railroads will be required to analyze the safety impacts of 
implementing those technologies as part of their RRPs. As provided in 
49 CFR part 270 and proposed in 49 CFR part 271,\26\ railroads required 
to have an RRP shall conduct a technology analysis evaluating current, 
new, or novel technologies that may mitigate or eliminate hazards and 
the resulting risks identified through the risk-based hazard management 
program. The technology analysis must also analyze the safety impact of 
implementing the identified technologies.
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    \26\ See 49 CFR part 270.103 and proposed 49 CFR 271.109, 80 FR 
at 10993.
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B. Rail Safety Data Does Not Support a Train Crew Staffing Rulemaking

    FRA's accident/incident safety data \27\ does not establish that 
one-person operations are less safe than multi-person train crews. 
Indeed, as FRA noted in the NPRM, existing one-person operations ``have 
not yet raised serious safety concerns'' and, in fact, ``it is possible 
that one-person crews have contributed to the [railroads'] improving 
safety record.'' \28\ The NTSB also concurs with that conclusion:
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    \27\ 49 CFR part 225, Railroad Accidents/Incidents: Reports 
Classification, and Investigations.
    \28\ 81 FR at 13950 and 13932.

    [T]here is insufficient data to demonstrate that accidents are 
avoided by having a second qualified person in the cab. In fact, the 
NTSB has investigated numerous accidents in which both qualified 
individuals in a two-person crew made mistakes and failed to avoid 
an accident.\29\
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    \29\ NTSB, RAR-16/02, Derailment of Amtrak Passenger Train 188, 
at 18 (2016).

    FRA reviewed accident/incident data over a seventeen-year period 
ending in 2018 and could not determine that any of the accidents/
incidents involving a one-person crew would have been prevented by 
having multiple crewmembers.\30\ Moreover, because ``FRA does not 
capture data that would provide information regarding the total 
operating mileage for one-person crew operations in the United States 
(or even two-person operations), it is impossible for FRA to normalize 
the data and be able to compare the accident/incident rate of one-
person operations to that of two-person train crew operations to see if 
one-person operations appear safer or less safe.'' \31\
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    \30\ FRA presented safety data to the RSAC covering nearly 12 
years of railroad safety data between January 2002 and October 2013. 
The data was developed by reviewing accident/incident reports 
submitted to FRA. As stated in the NPRM, the ``accident/incident 
reports involving one-person train crews . . . do not clearly help 
determine that the accident/incident would have been prevented by 
having multiple crewmembers.'' 81 FR at 13931. In a subsequent 
review of the data through 2018, FRA again could not conclude that 
any of the accidents/incidents involving a one-person crew would 
have been prevented by having multiple crewmembers.
    \31\ 81 FR at 13931.
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    For these reasons, this accident/incident data does not support a 
train crew staffing regulation. Rather, the accident/incident data FRA 
presented in the NPRM suggests that a railroad with a higher rate of 
train accidents involving the transportation of hazardous materials 
could find itself more likely to continue that trend, regardless of the 
size of the crew, assuming the railroad takes no further action to 
prevent such accidents from occurring.\32\
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    \32\ 81 FR 13930-32.
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    Without ``data to prove a direct correlation between higher rates 
of safety and multiple person crews,'' \33\ FRA provided the Working 
Group with five FRA-sponsored research reports,\34\

[[Page 24740]]

as well as one Transportation Research Board (TRB) conference report 
that contained presentations from multiple research reports, before the 
first meeting of the RSAC in October 2013. While these reports identify 
safety issues that railroads should consider when evaluating any 
reduction in the number of train crewmembers or a shift in 
responsibilities among those crewmembers, the reports do not indicate 
that one-person crew operations are less safe and therefore do not form 
a sufficient basis for a final rule on crew staffing.
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    \33\ 81 FR at 13919.
    \34\ The following is a list of the five research reports and 
their location on FRA's website:
    (1) Cognitive and Collaborative Demands of Freight Conductor 
Activities: Results and Implications of a Cognitive Task Analysis--
Human Factors in Railroad Operations, Final Report, dated July 2012, 
DOT/FRA/ORD-12/13. The report was prepared and researched by the 
John A. Volpe National Transportation Systems Center (Volpe Center). 
http://www.fra.dot.gov/eLib/details/L04331.
    (2) Rail Industry Job Analysis: Passenger Conductor, Final 
Report, dated Feb. 2013, DOT/FRA/ORD-13/07. The report was prepared 
and researched by the Volpe Center. http://www.fra.dot.gov/eLib/details/L04321.
    (3) Fatigue Status in the U.S. Railroad Industry, Final Report, 
dated Feb. 2013, DOT/FRA/ORD-13/06. www.fra.dot.gov/Elib/Document/2929. The report was prepared and researched by QinetiQ North 
America and FRA's Office of Research and Development.
    (4) Technology Implications of a Cognitive Task Analysis for 
Locomotive Engineers--Human Factors in Railroad Operations, Final 
Report, dated Jan. 2009, DOT/FRA/ORD-09/03. The report was prepared 
and researched by the Volpe Center. www.fra.dot.gov/Elib/Document/381.
    (5) Using Cognitive Task Analysis to Inform Issues in Human 
Systems Integration in Railroad Operations--Human Factors in 
Railroad Operations, Final Report, dated May 2013, DOT/FRA/ORD-13/
31. The report was prepared and researched by the Volpe Center. 
http://www.fra.dot.gov/eLib/details/L04589.
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C. Comments to the NPRM Do Not Support a Train Crew Staffing Rulemaking

    Based on its review and careful consideration of all the comments 
to the NPRM, FRA has determined that no regulation of train crew 
staffing is necessary or appropriate at this time. The comments do not 
provide conclusive data suggesting that there have been any previous 
accidents involving one-person crew operations that could have been 
avoided by adding a second crewmember or that one-person crew 
operations are less safe.
    While the comments note some indirect connections between crew 
staffing and railroad safety, such as post-accident response or 
handling of disabled trains, those indirect connections do not provide 
a sufficient basis for FRA regulation of train crew staffing 
requirements. Moreover, FRA believes the indirect safety connections 
cited in the comments could be achieved with fewer than two crewmembers 
with a well-planned, disabled-train/post-accident protocol that quickly 
brings railroad employees to the scene of a disabled train or accident. 
FRA expects railroads would consider these protocols as mitigation 
options under their RRPs when evaluating any changes to train crew 
staffing levels. Thus, FRA believes that its previously discussed 
current safety programs, along with other actions taken by FRA and DOT, 
more appropriately address the safety concerns raised by the 
commenters.
    FRA also does not concur with commenters who assert that the idea 
of a one-person train crew is seemingly in conflict with the statutory 
and regulatory requirements for certification of both locomotive 
engineers and conductors. There are no specific statutes or regulations 
prohibiting a one-person train crew, nor is there a specific 
requirement that would prohibit autonomous technology from operating a 
locomotive or train in lieu of a certified locomotive engineer. 
However, the NPRM identified several regulations that a railroad would 
need to be cognizant of when adjusting its crew staffing levels, while 
acknowledging that none of those regulations requires a minimum number 
of crewmembers to achieve compliance.

D. A Train Crew Staffing Rule Would Unnecessarily Impede the Future of 
Rail Innovation and Automation

    FRA's current regulatory regime is largely based on traditional or 
``legacy'' equipment and systems \35\ that railroads are, in many 
instances, moving away from. DOT has recognized that the integration of 
technology and automation across our transportation system has the 
potential to increase productivity, facilitate freight movement, create 
new kinds of jobs, and, most importantly, improve safety significantly 
by reducing accidents caused by human error.\36\ FRA's accident/
incident data for calendar year 2017 shows that railroads reported 
1,710 train accidents not occurring at highway grade crossings, and the 
most frequent of which, 38 percent of those accidents (650), were 
attributable to human factor causes.\37\ The potential benefits of 
automation will certainly bring new challenges, requiring active steps 
to prepare for the future by engaging with new technologies to ensure 
safety without hampering innovation.
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    \35\ Notable exceptions are 49 CFR part 236, subparts H and I, 
which contain FRA's standards for processor-based signal and train 
control systems and positive train control regulations.
    \36\ DOT's ``Preparing for the Future of Transportation,'' 
Automated Vehicles 3.0 (Oct. 4, 2018).
    \37\ The other causes cited were track (27 percent), 
miscellaneous (18 percent), motive power/equipment (14 percent), and 
signal caused, all track types (3 percent). https://safetydata.fra.dot.gov/officeofsafety/default.aspx.
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    DOT's approach to achieving safety improvements begins with a focus 
on removing unnecessary barriers and issuing voluntary guidance, rather 
than regulations that could stifle innovation. In furtherance of these 
goals, on March 29, 2018, FRA published a request for information (RFI) 
on the subject of automation in the railroad industry.\38\ The RFI's 
purpose was to facilitate comments that would help FRA understand the 
current stage and development of automated railroad operations and how 
the agency can best position itself to support the integration and 
implementation of new automation technologies to increase the safety, 
reliability, and capacity of the nation's railroad system. Some 
commenters to the RFI identified the train crew staffing rulemaking as 
a potential barrier to automation or other technology improvements. 
Similar comments were submitted to the train crew staffing NPRM itself. 
FRA generally agrees with those comments and, without sufficient safety 
data showing the need for such a rule, concurs that the NPRM should be 
withdrawn.
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    \38\ 83 FR 13583.
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    By requiring a minimum number of crewmembers for certain trains, 
finalizing the train crew staffing rule would have departed from FRA's 
long-standing regulatory approach of not endorsing any particular crew 
staffing arrangement.\39\ FRA completely disagrees with the comments 
suggesting that there is a specific statutory or regulatory requirement 
that a certified locomotive engineer and a certified conductor are 
required on each locomotive or train. The lack of a legal prohibition 
means that each railroad is free to make train crew staffing decisions 
as part of their operational management decisions, which would include 
consideration of technological advancements and any applicable 
collective bargaining agreements. However, the NPRM identified several 
regulations that a railroad would need to be cognizant of when 
adjusting its crew staffing levels, while acknowledging that none of 
those regulations requires a minimum number of crewmembers to achieve 
compliance. For example, the NPRM noted that when complying with the 
requirements in 49 CFR 218.99 for performing a shoving or pushing 
movement, a second crewmember routinely provides point protection. 
However, the NPRM also noted that the point protection rule permits use 
of cameras for performing these movements.\40\
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    \39\ For example, FRA's conductor certification final rule 
provides that: ``It is FRA's intent that this conductor 
certification regulation . . . be neutral on the crew consist issue. 
Nothing in part 242 should be read as FRA's endorsement of any 
particular crew consist arrangement.'' 76 FR 69802, 69825 (Nov. 9, 
2011).
    \40\ 81 FR at 13932 (citing 49 CFR 218.99).

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[[Page 24741]]

E. FRA's Withdrawal Is an Affirmative Decision Not To Regulate With the 
Intention To Preempt State Laws

    In issuing this withdrawal, FRA has determined that no regulation 
of train crew staffing is necessary or appropriate at this time and 
intends for the withdrawal to preempt all state laws attempting to 
regulate train crew staffing in any manner. FRA believes that nine 
states have laws in place regulating crew size in some manner: 
California, West Virginia, and Wisconsin require a minimum of two crew 
members for certain trains; \41\ Arizona, California, Ohio, and Oregon 
have ``full crew'' requirements for certain trains; \42\ and 
Massachusetts, New Jersey, and Washington impose other 
restrictions.\43\ FRA also believes that laws regulating crew size have 
been proposed in 30 states since 2015.\44\
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    \41\ Cal. Lab. Code Sec.  6903(a); W. Va. Code Ann. Sec.  24-3-
1b(a); Wis. Stat. Ann. Sec.  192.25(2).
    \42\ Ariz. Rev. Stat. Ann. Sec.  40-881; Cal. Lab. Code Sec.  
6901(a); Ohio Rev. Code Ann. Sec.  4999.06; Or. Rev. Stat. Ann. 
Sec.  824.300.
    \43\ Mass. Gen. Laws Ann. ch. 160, Sec.  185; N.J. Stat. Ann. 
Sec.  48:12-155; Wash. Rev. Code Ann. Sec.  81.40.010(1).
    \44\ 2016 Ala. S.B. 239; 2019 Ariz. H.B. 2102; 2019 Colo. H.B. 
1034; 2019 Geor. H.B. 190; 2019 Idaho H.B. 53; 2019 Ill. S.B. 24; 
2016 Ind. H.B. 1029; 2019 Iowa S.F. 248; 2015 Kan. S.B. 164; 2019 
Ky. H.B. 111; 2016 La. H.B. 778; 2019 Maine H.P. 521; 2019 Md. H.B. 
66; 2017 Mass. S.B. 1953; 2019 Minn. S.F. 263; 2019 Mo. H.B. 179; 
2019 Neb. L.B. 611; 2017 Nev. S.B. 427; 2019 N.M. H.B. 244; 2015 
N.Y. S.B. 7435; 2015 N.D. H.B. 1357; 2017 Ohio S.B. 74; 2017 Okla. 
H.B. 1195; 2017 Pa. H.B. 1585; 2018 S.D. H.B. 1150; 2019 Tex. H.B. 
742; 2019 Utah S.B. 176; 2018 Va. H.B. 1789; 2019 Wash. S.B. 5877; 
2019 Wyo. H.B. 104.
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    Provisions of the federal railroad safety statutes, specifically 
the former Federal Railroad Safety Act of 1970 (FRSA), repealed and 
recodified at 49 U.S.C. 20106, mandate that laws, regulations, and 
orders ``related to railroad safety'' be nationally uniform.\45\ The 
FRSA provides that a state law is preempted where FRA, under authority 
delegated from the Secretary of Transportation, ``prescribes a 
regulation or issues an order covering the subject matter of the State 
requirement.'' \46\ A federal regulation or order covers the subject 
matter of a state law where ``the federal regulations substantially 
subsume the subject matter of the relevant state law.'' \47\ A federal 
regulation or order need not be identical to the state law to cover the 
same subject matter. The Supreme Court has held preemption can be found 
from ``related safety regulations'' and ``the context of the overall 
structure of the regulations.'' \48\ Federal and state actions cover 
the same subject matter when they address the same railroad safety 
concerns.\49\ FRA intends this notice of withdrawal to cover the same 
subject matter as the state laws regulating crew size and therefore 
expects it will have preemptive effect.
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    \45\ 49 U.S.C. 20106(a)(1).
    \46\ 49 U.S.C. 20106(a)(2). While the FRSA also includes a 
narrow savings clause for ``essentially local safety hazards'' which 
might except an otherwise preempted state law, that clause would not 
apply to the state laws at issue which would apply statewide and 
therefore do not address an ``essentially local'' hazard. 49 U.S.C. 
20106(a)(2); H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970) 
(``these local hazards would not be statewide in character''); see 
also Norfolk & Western Ry. Co. v. Public Utilities Com'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, 13 (3d Cir. 1976) (both 
holding that the local hazard exception cannot be applied to uphold 
the application of a statewide rule).
    \47\ CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664-
65 (1993).
    \48\ Easterwood, 507 U.S. at 674.
    \49\ Burlington Northern R.R. v. Montana, 880 F.2d 1104, 1105 
(9th Cir. 1989).
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    This notice of withdrawal provides what the Supreme Court referred 
to as ``negative'' or ``implicit'' preemption. The Court recognized 
that ``where failure of . . . federal officials affirmatively to 
exercise their full authority takes on the character of a ruling that 
no such regulation is appropriate or approved pursuant to the policy of 
the statute,'' any state law enacting such a regulation is 
preempted.\50\
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    \50\ Ray v. Atlantic Richfield Co., 435 U.S. 151, 178 (1978) 
(quoting Bethlehem Steel Co. v. New York State Labor Relations 
Board, 330 U.S. 767, 774 (1947)). For example, FRA examined the 
effectiveness of strobe and oscillating lights on locomotives and 
concluded they were not effective in reducing grade-crossing 
accidents and mandating them was therefore unjustified. 48 FR 20257 
(May 5, 1983). When examined by the Ninth Circuit, the court held 
that ``[u]nder [FRSA], where the FRA has rejected the requirement of 
strobe or oscillating lights, a state may not require them.'' 
Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1154 (9th Cir. 
1983).
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    After closely examining the train crew staffing issue and 
conducting significant outreach to industry and public stakeholders, 
FRA determined 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. Thus, this notice of withdrawal provides FRA's determination that 
no regulation of train crew staffing is appropriate and that FRA 
intends to negatively preempt any state laws concerning that subject 
matter.

    Issued in Washington, DC, under the authority set forth in 49 
CFR 1.89(b).
Ronald L. Batory,
Administrator.
[FR Doc. 2019-11088 Filed 5-28-19; 8:45 am]
BILLING CODE 4910-06-P


