[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 16200-16229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6528]



[[Page 16199]]

Vol. 76

Tuesday,

No. 55

March 22, 2011

Part IV





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 228



Hours of Service of Railroad Employees; Substantive Regulations for 
Train Employees Providing Commuter and Intercity Rail Passenger 
Transportation; Conforming Amendments to Recordkeeping Requirements; 
Proposed Rule

Federal Register / Vol. 76 , No. 55 / Tuesday, March 22, 2011 / 
Proposed Rules

[[Page 16200]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. FRA-2009-0043, Notice No. 1]
RIN 2130-AC15


Hours of Service of Railroad Employees; Substantive Regulations 
for Train Employees Providing Commuter and Intercity Rail Passenger 
Transportation; Conforming Amendments to Recordkeeping Requirements

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its hours of service recordkeeping 
regulations, to establish hours of service regulations, including 
maximum on-duty periods, minimum off-duty periods, and other 
limitations, for train employees (e.g., locomotive engineers and 
conductors) providing commuter and intercity rail passenger 
transportation. The proposed regulations would require that railroads 
employing such train employees analyze and mitigate the risks for 
fatigue in the schedules worked by these train employees, and that the 
railroads submit to FRA for its approval the relevant schedules and 
fatigue mitigation plans. This proposed rule would also make 
corresponding changes to FRA's hours of service recordkeeping 
regulation, to require railroads to keep hours of service records and 
report excess service to FRA in a manner consistent with the new 
requirements. This proposed regulation is authorized by the Rail Safety 
Improvement Act of 2008.

DATES: Comments: Written comments must be received by May 23, 2011. 
Comments received after that date will be considered to the extent 
possible without incurring additional delay or expense.
    Public hearing: FRA anticipates being able to resolve this 
rulemaking without a public hearing. However, if FRA receives a 
specific request for a public hearing prior to March 29, 2011, one will 
be scheduled, to be held in the Washington, DC area, on a date prior to 
the end of the comment period, and FRA will publish a supplemental 
notice in the Federal Register to inform interested parties of the 
date, time, and specific location of any such hearing.

ADDRESSES: Comments, which should be identified by Docket No. FRA-2009-
0043, Notice No. 1, may be submitted by any one of the following 
methods:
    <bullet> Fax: 1-202-493-2251;
    <bullet> Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590;
    <bullet> Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
    <bullet> Electronically through the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    Instructions: All submissions must include the agency name, docket 
name, and docket number or Regulatory Identification Number (RIN) for 
this rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act section of this 
document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
the U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to 
the Associate Administrator for Railroad Safety/Chief Safety Officer, 
FRA, 1200 New Jersey Avenue, SE., RRS-1, Mail Stop 25, Washington, DC 
20590 (telephone: 202-493-6350); Dr. Thomas G. Raslear, Staff Director, 
Human Factors Research Program, Office of Research and Development, 
FRA, 1200 New Jersey Avenue, SE., RPD-321, Mail Stop 20, Washington, DC 
20590 (telephone 202-493-6356); or Colleen A. Brennan, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail 
Stop 10, Washington, DC 20590 (telephone 202-493-6028 or 202-493-6052).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background and History
III. Scientific Background
    A. Validated and Calibrated Fatigue Models
    1. Fatigue Avoidance Scheduling Tool \TM\ Model
    2. Fatigue Audit InterDyne \TM\ Model
    B. Diary Study of Train Employees on Commuter and Intercity 
Passenger Railroads
IV. Railroad Safety Advisory Committee Process
    A. Overview of the RSAC
    B. RSAC Proceedings in This Rulemaking
    C. Significant Task Force Contributions
    1. Schedule Analysis
    2. Fatigue Mitigation Tool Box
    D. Areas of Working Group and Task Force Concern
    1. Definitions of ``Type 1 Assignment'' and ``Type 2 
Assignment''
    2. Limitations on Number of Consecutive Days of Work
    3. Precision of Fatigue Models and Threshold
    4. Freight Railroad Employees Acting as Pilots for Commuter or 
Intercity Passenger Trains
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act and Executive Order 13272
    1. Description of Regulated Entities and Impacts
    2. Certification
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act
    G. Environmental Assessment
    H. Privacy Act

I. Executive Summary

    This NPRM proposes hours of service regulations for train employees 
who provide commuter or intercity rail passenger transportation 
(passenger train employees). FRA seeks comment on all aspects of this 
proposal.
    Federal laws governing railroad employees' hours of service date 
back to 1907 with the enactment of the Hours of Service Act (Pub. L. 
59-274, 34 Stat. 1415), and FRA, under delegations from the Secretary 
of Transportation (Secretary), has long administered statutory hours of 
service requirements for the three groups of employees now covered 
under the statute, namely employees performing the functions of train 
employees, signal employees, and dispatching service employees, as 
those terms are defined at 49 U.S.C. 21101. See 49 CFR 1.49; 49 U.S.C. 
21101-21109, 21303.
    These requirements have been amended several times over the years, 
most recently in the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Div. A; RSIA). The RSIA substantially amended the requirements of 
49 U.S.C. 21103, applicable to train employees, defined as ``* * * 
individual[s] engaged in or connected with the movement of a train, 
including

[[Page 16201]]

a hostler.'' 49 U.S.C. 21101(5). However, the RSIA also granted the 
Secretary authority to prescribe regulations governing the hours of 
service of passenger train employees. 49 U.S.C. 21109(b)-(c). As will 
be discussed below, FRA interprets commuter or intercity rail passenger 
transportation to include rail passenger transportation by tourist, 
scenic, excursion, and historic railroads. The RSIA provided that this 
particular subset of train employees would continue to be governed by 
49 U.S.C. 21103 as it existed prior to the enactment of the RSIA (old 
Section 21103), until the earlier of, the effective date of final 
regulations prescribed by the Secretary, or the date that is three 
years from the date of enactment of the RSIA. 49 U.S.C. 21102(c). In 
the absence of a final rule in effect governing this group of train 
employees, the requirements of the RSIA currently in effect for other 
train employees (new Section 21103) will go into effect for passenger 
train employees on October 16, 2011. 49 U.S.C. 21102(c).
    As will be discussed further below, FRA reviewed the applicable 
fatigue science, and sought input from FRA's Railroad Safety Advisory 
Committee (RSAC). Based on FRA's understanding of current fatigue 
science, and information received through RSAC, FRA determined that the 
requirements imposed on train employees by the RSIA were not 
appropriate for passenger train employees. The chart below compares and 
contrasts (1) the hours of service requirements in 49 U.S.C. 21103 as 
amended by the RSIA, (2) the hours of service requirements applicable 
to all train employees immediately prior to the RSIA, which are 
currently still applicable to passenger train employees, and (3) the 
requirements of this proposed regulation that if adopted would apply to 
passenger train employees.

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                                                                   Train employee
                                                               provisions immediately
                                       FRA Freight train          prior to RSIA and        FRA passenger train
                                        employee statute        currently applicable          employee NPRM
                                                               only to passenger train
                                                                      employees
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Citation.........................  49 U.S.C. 21103 (as        49 U.S.C. 21103 as it     Proposed 49 CFR part
                                    amended by the RSIA        existed prior to the      228, subpart F.
                                    effective July 16, 2009)   October 16, 2008,
                                    (new section 21103)        enactment of the RSIA
                                    (Applies to train          (old section 21103)
                                    employees on freight       (Train employees
                                    railroads. Will apply to   providing commuter and
                                    train employees on         intercity rail
                                    commuter and intercity     passenger
                                    passenger railroads if     transportation are
                                    no regulations are in      currently covered by
                                    effect by October 16,      these provisions
                                    2011).                     pursuant to 49 U.S.C.
                                                               21102(c).).
Use of Fatigue Science...........  None.....................  None....................  NRPM requires schedules
                                                                                         to be analyzed under a
                                                                                         validated
                                                                                         biomathematical fatigue
                                                                                         model such as the
                                                                                         Fatigue Avoidance
                                                                                         Scheduling Tool \TM\,
                                                                                         with the exception of
                                                                                         certain schedules
                                                                                         (completely within the
                                                                                         hours of 4 a.m. and 8
                                                                                         p.m. and otherwise in
                                                                                         compliance with the
                                                                                         limitations in the
                                                                                         regulation) deemed as
                                                                                         categorically
                                                                                         presenting an
                                                                                         acceptable level of
                                                                                         risk for fatigue that
                                                                                         does not exceed the
                                                                                         defined fatigue
                                                                                         threshold.
Limitations on Time on Duty in a   12 consecutive hours of    12 consecutive hours of   12 consecutive hours of
 Single Tour.                       time on duty or 12         time on duty or 12        time on duty or 12
                                    nonconsecutive hours on    nonconsecutive hours on   nonconsecutive hours on
                                    duty if broken by an       duty if broken by an      duty if broken by an
                                    interim release of at      interim release of at     interim release of at
                                    least 4 consecutive        least 4 consecutive       least 4 consecutive
                                    hours uninterrupted by     hours, in a 24-hour       hours, in a 24-hour
                                    communication from the     period that begins at     period that begins at
                                    railroad likely to         the beginning of the      the beginning of the
                                    disturb rest, in a 24-     duty tour.                duty tour.
                                    hour period that begins
                                    at the beginning of the
                                    duty tour.
Limitations on Consecutive Duty    May not be on duty as a    None....................  No more than six ``Type
 Tours.                             train employee after                                 2'' assignments
                                    initiating an on-duty                                (generally, those
                                    period on six                                        including time on duty
                                    consecutive days without                             between 8 p.m. and 4
                                    receiving 48 consecutive                             a.m.) without 24
                                    hours off duty free from                             consecutive hours off
                                    any service for any                                  duty at the employee's
                                    railroad carrier at the                              home terminal. No more
                                    employee's home                                      than 14 ``Type 1''
                                    terminal. Employees are                              assignments (those not
                                    permitted to initiate a                              Type 2) without 2
                                    seventh consecutive day                              consecutive calendar
                                    when the employee ends                               days off duty at the
                                    the sixth consecutive                                employee's home
                                    day at the away-from-                                terminal. Employees may
                                    home terminal, as part                               be permitted to perform
                                    of a pilot project, or                               service on an
                                    as part of a                                         additional day to
                                    grandfathered                                        facilitate their return
                                    collectively bargained                               to their home terminal.
                                    arrangement. Employees
                                    performing service on
                                    this additional day must
                                    receive 72 consecutive
                                    hours free from any
                                    service for any railroad
                                    carrier at their home
                                    terminal before going on
                                    duty again as a train
                                    employee.

[[Page 16202]]

 
Cumulative Limits on Time on Duty  Limited to 276 hours of    None....................  None.
                                    time on duty, in
                                    deadhead transportation
                                    to a point of final
                                    release, or any other
                                    mandatory activity for
                                    the railroad carrier.
                                   Limited to 30 hours of                               ........................
                                    time spent on duty and
                                    waiting for or in
                                    deadhead transportation
                                    to a point of final
                                    release after reaching
                                    12 hours of time on duty
                                    and waiting for or in
                                    deadhead transportation
                                    to a point of final
                                    release.
Mandatory Off-Duty Periods.......  10 consecutive hours of    8 consecutive hours (10   8 consecutive hours (10
                                    time off duty free from    consecutive hours if      consecutive hours if
                                    any communication from     time on duty reaches 12   time on duty reaches 12
                                    the railroad likely to     consecutive hours).       consecutive hours).
                                    disturb rest, with
                                    additional time off duty
                                    if on-duty time plus
                                    time in or awaiting
                                    deadhead transportation
                                    to final release exceeds
                                    12 hours.
                                   48 consecutive hours off                             ........................
                                    duty, free from any
                                    service for any railroad
                                    carrier, after
                                    initiating an on-duty
                                    period for 6 consecutive
                                    days. If 7 consecutive
                                    days are permitted,
                                    mandatory off-duty
                                    period extended to 72
                                    consecutive hours.
Specific Rules for Nighttime       None.....................  None....................  Schedules that include
 Operations.                                                                             any time on duty
                                                                                         between 8 p.m. and 4
                                                                                         a.m. must be analyzed
                                                                                         using a validated
                                                                                         biomathematical model
                                                                                         of human performance
                                                                                         and fatigue approved by
                                                                                         FRA. Schedules with
                                                                                         excess risk of fatigue
                                                                                         must be mitigated or
                                                                                         supported by a
                                                                                         determination that
                                                                                         mitigation is not
                                                                                         possible and the
                                                                                         schedule is
                                                                                         operationally necessary
                                                                                         and approved by FRA.
Specific Rules for Unscheduled     None.....................  None....................  The potential for
 Assignments.                                                                            fatigue presented by
                                                                                         unscheduled work
                                                                                         assignments must be
                                                                                         mitigated as part of a
                                                                                         railroad's FRA-approved
                                                                                         fatigue management
                                                                                         plan.
Recordkeeping requirements.......  Record for each duty tour  Record for each duty      Record for each duty
                                    must contain 15 elements   tour must contain the     tour must contain the
                                    specified in 49 CFR        first 11 elements         first 12 elements
                                    228.11(b).                 specified in 49 CFR       specified in 49 CFR
                                                               228.11(b), as items 12    228.11(b). Item 12
                                                               through 15 relate to      refers to recording the
                                                               RSIA requirements not     number of consecutive
                                                               applicable to train       days, which would be
                                                               employees providing       required by the
                                                               commuter or intercity     proposed rule.
                                                               rail passenger
                                                               transportation.
Excess Service Reporting           Requires reporting of any  Requires reporting of     Requires reporting of
 Requirements.                      of 10 different ways in    any of 4 different ways   any of 10 different
                                    which hours of service     in which hours of         ways in which hours of
                                    limitations may be         service limitations may   service limitations may
                                    exceeded.                  be exceeded.              be exceeded (reflecting
                                                                                         various ways of
                                                                                         violating new
                                                                                         consecutive-days
                                                                                         requirements).
----------------------------------------------------------------------------------------------------------------

This proposed rule would leave intact the existing limitations set by 
old section 21103 on the maximum number of hours in a duty tour and 
minimum number of hours in a statutory off-duty period. An additional 
limitation would be added on the number of consecutive days that a 
passenger train employee may work, depending on the time of day of the 
assignment. This differentiation takes into account the fact that work 
during nighttime hours may present a greater risk for fatigue. 
Conforming changes would also be made to the recordkeeping and 
reporting requirements to accommodate the consecutive limitations on 
consecutive days.
    The limitations on maximum hours worked, minimum hours of rest, and 
consecutive days would provide a ``floor,'' a minimum set of 
limitations, within which the proposed rule would require railroads 
subject to this proposed rule to analyze their schedules using a 
validated and calibrated biomathematical model of human performance and 
fatigue, and to mitigate any fatigue identified that exceeds the 
fatigue threshold for the model. The fatigue threshold is a level of 
fatigue at which safety may be compromised. As will be discussed below, 
there are two models that currently have been validated and calibrated 
using data from freight railroads, that can be used for the analysis 
required by this proposed rule. The proposed rule also allows for the 
development of new models. It

[[Page 16203]]

discusses procedures for validating and calibrating a model, and 
provides that evidence of a new model's validation and calibration may 
be submitted to FRA for approval.
    The proposed rule would define as a ``Type 1 assignment'' any 
assignment that requires an employee to report for duty no earlier than 
4 a.m. and be released from duty no later than 8 p.m. Based on analysis 
conducted during the formulation of this proposal, FRA proposes to 
subject such assignments to a less restrictive consecutive-days 
limitation, and to deem such schedules as presenting an acceptable 
level of fatigue when otherwise in compliance with the limitations 
established in this proposal, such that these schedules would not be 
required to be submitted to FRA for approval, nor would the application 
of fatigue mitigation tools to these schedules be required.
    A ``Type 2 assignment'' would be any assignment having any period 
of time during a calendar day before 4 a.m. or after 8 p.m. Within 180 
days of the effective date of a final regulation in this rulemaking, 
the proposed rule would require railroads to analyze the fatigue risk 
of assignments they make to their passenger train employees. If the 
analysis shows that a schedule does not exceed the fatigue threshold, 
and the schedule is otherwise in compliance with the limitations of the 
proposed rule and does not require the employee to be on duty for any 
period of time between midnight and 4 a.m., the proposed rule would 
allow that schedule to be treated as a Type 1 assignment for the 
purposes of the consecutive-days limitation, and there would be no 
requirement to mitigate fatigue in that schedule. However, for those 
schedules that analysis indicates have a level of risk for fatigue 
exceeding the fatigue threshold, the railroad would be required to 
mitigate the fatigue. Railroads would also be required to complete 
their analysis and submit any schedules with a risk exceeding the 
fatigue threshold, and the mitigation tools the railroad applied to 
mitigate the fatigue risk in those schedules to FRA for approval. In 
addition, any schedule, the fatigue risk of which could not be 
sufficiently mitigated to within the fatigue threshold, but which the 
railroad deems operationally necessary, must also be submitted for FRA 
approval, along with a declaration of operational necessity.
    The proposed rule would also require railroads to submit any 
schedule changes that would result in a schedule that would have been 
required to be submitted if it were an original schedule, unless the 
new schedule was the same as another schedule that had previously been 
analyzed and approved.
    Within 120 days of any railroad submission, FRA will notify the 
railroad of any exceptions taken to its submission. While the proposed 
rule would require FRA approval of the schedules and fatigue mitigation 
tools, FRA expects that it would work with a railroad to make necessary 
modifications to schedules or mitigation tools to minimize fatigue to 
the greatest extent possible. FRA does not intend to dictate a required 
schedule for operations. FRA seeks comment on the logistics of schedule 
review and approval and the collaboration between FRA and the railroad 
to address any areas of concern.
    Railroads would be required to consult with affected employees and 
applicable labor organizations regarding the analysis of work 
schedules, fatigue mitigation tools, and submissions to FRA. Should the 
employees or labor organizations disagree with the railroad, they have 
the opportunity, under the proposal to file a statement for FRA's 
consideration in reviewing the submission and determining whether to 
approve it.
    Finally, the proposed rule would require initial fatigue training, 
addressing a list of subjects, and refresher training every three 
years. This training may be combined with other training the railroads 
are providing to their employees.
    FRA has analyzed the economic impacts of this proposed rule against 
two baselines. One is a ``status quo'' baseline that reflects present 
conditions (i.e., primarily, the statutory hours of service provisions 
(specifically, old section 21103) and, secondarily, the hours of 
service recordkeeping and reporting regulations) that have applied, and 
will continue to apply, to passenger railroads, with respect to their 
train employees, until either the passenger railroads become subject, 
with respect to the same employees, to either the freight hours of 
service laws on October 16, 2011 or an FRA-issued hours of service rule 
prior to that). The other baseline is a ``no regulatory action'' 
baseline that reflects what would happen in absence of this rulemaking 
(i.e., the freight hours of service laws are applied to passenger 
railroads with respect to their train employees).
    With respect to the ``status-quo'' baseline, the FRA proposal would 
impose costs that are higher than the quantified safety benefits. Costs 
compared to the ``status quo'' baseline total $2.1 million 
(undiscounted), $1.4 million (PV, 7 percent), and $1.7 million (PV, 3 
percent). Quantified benefits compared to the ``status quo'' baseline 
total $1.4 million (undiscounted), $.7 million (PV, 7 percent), and 
$1.0 million (PV, 3 percent). However, there are additional benefits 
that have not been quantified, but should be considered when comparing 
the overall costs and benefits. For instance, safety and health 
benefits will accrue from the transfer of knowledge to employees, their 
families, friends and others with whom they may share the fatigue 
knowledge they acquire from the required fatigue awareness training 
programs. This fatigue awareness will result in more optimal decisions 
regarding rest and sleep leading to less fatigue and improved safety 
outside of passenger train operations during the course of daily 
activities that may include the operation of motor vehicles or other 
heavy machinery. This fatigue awareness will also result in proper 
identification and treatment, if necessary, of fatigue symptoms. 
Separately, accident avoidance will result in fewer unplanned delays to 
passengers and freight commodities impacted by passenger train accident 
and incidents that result in blocking one or more tracks for prolonged 
periods. These costs can be very substantial given the need to 
investigate accidents and often clear wreckage. Finally, there is the 
non-quantified benefit of ensuring that passenger railroads do not 
unknowingly require train employees to work schedules with unacceptable 
high-fatigue risk levels. It is not unreasonable to expect that the 
unquantified benefits will raise the benefits to a level quite 
comparable to the costs. FRA also believes that the unquantified 
benefits coupled with the quantified safety benefits compare very well 
with the costs associated with meeting the intent of the statutory 
mandate as proposed.
    With respect to the ``no regulatory action'' baseline, FRA found 
that its proposal represents a substantially more cost-effective 
alternative for achieving the goal of identifying and mitigating 
unacceptable fatigue risk levels and thus ensuring the safety of 
passenger train operations. Over the 20-year period analyzed, the 
undiscounted costs associated with the ``no regulatory action'' 
alternative total $75.5 million compared to $2.1 million for the FRA 
proposal. Similarly, when discounted at 7 percent, the costs associated 
with the ``no regulatory action'' alternative total $59.0 million 
compared to $1.4 million for the FRA proposal and when discounted at 3 
percent, the costs associated with the ``no regulatory action'' 
alternative total $66.8 million

[[Page 16204]]

compared to $1.7 million for the FRA proposal.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  No-action alternative                                       NPRM
                 Cost description                  -----------------------------------------------------------------------------------------------------
                                                      Undiscounted        PV@7%            PV@3%         Undiscounted        PV@7%            PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20% New Hires)....      $31,237,549      $26,299,825      $28,705,081                0                0                0
New Engineer Training, Refresher (20% New Hires)..        4,599,050        2,278,431        3,327,802                0                0                0
New Conductor Training, Initial (20% New Hires)...       30,847,974       25,942,971       28,330,908                0                0                0
New Conductor Training, Refresher (20% New Hires).        8,636,745        4,278,146        6,249,071                0                0                0
Work Schedule Analysis (No-Reg Action)/Initial              189,723          177,312          184,198      ($126,482 +      ($118,208 +      ($122,798 +
 Analysis of Work Schedules + Follow-up Analysis                                                           $240,316) =      $122,175) =      $175,894) =
 and Fatigue Mitigation Plan Review (NPRM)........                                                            $366,799         $240,382         $298,692
Biomathematical Model of Fatigue Software.........                0                0                0          417,500          268,723          337,240
Use of Rest Facilities............................                0                0                0           30,988           28,961           30,086
Fatigue Training..................................                0                0                0        1,329,673          841,748        1,065,188
                                                   -----------------------------------------------------------------------------------------------------
    TOTAL (rounded)...............................       75,511,041       58,976,685       66,797,059        2,144,960        1,379,815        1,731,206
--------------------------------------------------------------------------------------------------------------------------------------------------------

FRA estimates that the recordkeeping and reporting costs per employee 
record under the no-regulatory action alternative and FRA proposal will 
be practically the same.
    The estimated accident reduction benefits of the proposed rule 
relative to the statutory hours of service requirements currently in 
place include prevented accident damages, injuries, and fatalities. The 
table below presents the estimates for the 20-year period of analysis.

                         Intercity Passenger, Commuter, Tourist and Excursion Railroads
                                                [All track types]
----------------------------------------------------------------------------------------------------------------
                                                                  VSL = $6 M       VSL = $6 M       VSL = $6 M
                 Accident reduction benefits                     undiscounted    discounted PV@   discounted PV@
                                                                   benefits            7%               3%
----------------------------------------------------------------------------------------------------------------
Property Damage..............................................         $829,366         $439,316         $616,943
Injuries.....................................................          120,547           63,854           89,672
Fatalities...................................................          429,088          227,288          319,187
                                                              --------------------------------------------------
    TOTAL (rounded)..........................................        1,379,001          730,458        1,025,803
----------------------------------------------------------------------------------------------------------------

    FRA does not expect that the overall number of casualties and 
property damages prevented under the proposed rule will differ from 
those that would be prevented under the statutory freight hours of 
service requirements.
    FRA seeks comments on all aspects of the economic impacts of its 
proposal.

II. Statutory Background and History

    Federal laws governing railroad employees' hours of service date 
back to 1907 with the enactment of the Hours of Service Act. These 
laws, codified as amended primarily at 49 U.S.C. 21101-21109, are 
intended to promote safe railroad operations by limiting the hours of 
service of certain railroad employees and ensuring that they receive 
adequate opportunities for rest in the course of performing their 
duties. Public Law 103-272 (1994). The Secretary is charged with the 
administration of those laws, collectively referred to in this document 
as the hours of service laws (HSL). This function has been delegated to 
the FRA Administrator. 49 U.S.C. 103(c); 49 CFR 1.49(d).
    Congress substantially amended the HSL on three occasions. The 
first significant amendments occurred in 1969. Public Law 91-169, 83 
Stat. 463. The 1969 amendments reduced the maximum time on duty for 
train employees \1\ from 16 hours to 14 hours effective immediately, 
with a further reduction to 12 hours automatically taking effect two 
years later. Congress also established provisions for determining, in 
the case of a train employee, whether a period of time is to be counted 
as time on duty. 49 U.S.C. 21103(b). In so doing, Congress also 
addressed the issue of deadhead

[[Page 16205]]

transportation \2\ time, providing that ``[t]ime spent in deadhead 
transportation to a duty assignment'' is counted as time on duty. 
(Emphasis added). Although time spent in deadhead transportation from a 
duty assignment to the point of final release is not included within 
any of the categories of time on duty, Congress further provided that 
it shall be counted as neither time on duty nor time off duty. 49 
U.S.C. 21103(b)(4). This provision effectively created a third category 
of time, known commonly as ``limbo time.''
---------------------------------------------------------------------------

    \1\ A ``train employee'' is defined at 49 U.S.C. 21101(5) and 49 
CFR 228.5 as an individual engaged in or connected with the movement 
of a train, including a hostler. FRA also interpreted this statutory 
term in published interpretations in 49 CFR part 228, Appendix A, 
providing: ``Train or engine service refers to the actual assembling 
or operation of trains. Employees who perform this type of service 
commonly include locomotive engineers, firemen, conductors, 
trainmen, switchmen, switchtenders (unless their duties come under 
the provisions of section 3) and hostlers.'' Other employees, such 
as food service providers or sleeping car attendants, who may work 
on passenger trains, but have no responsibility for assembling or 
operating the train, are not within the definition of a train 
employee, and are, as such, not generally covered by this proposed 
rule, or any other hours of service limitations, but they would be 
covered if they performed functions related to assembling or 
operating the train, regardless of the employee's job title.
    \2\ Deadheading is defined at 49 CFR 228.5 as the physical 
relocation of a train employee from one point to another as a result 
of a railroad-issued verbal or written directive.
---------------------------------------------------------------------------

    In 1976, Congress again amended the HSL in several important 
respects. Most significantly, Congress expanded the coverage of the 
laws, by including hostlers within the definition of employees now 
termed ``train employees'', and adding the section providing hours of 
service requirements for ``signal employees'', now codified at 49 
U.S.C. 21104. Congress also added a provision that prohibited a 
railroad from providing sleeping quarters that are not free from 
interruptions of rest caused by noise under the control of the 
railroad, and that are not clean, safe, and sanitary, and prohibited 
the construction or reconstruction of sleeping quarters in an area or 
in the immediate vicinity of an area in which humping or switching 
operations are performed. See Public Law 94-348, 90 Stat. 818 (1976).
    Section 108 of the RSIA also amended the HSL in a number of 
significant ways, most of which became effective July 16, 2009. See 
Section 108 of Public Law 110-432, Div. A, and FRA Interim Statement of 
Agency Policy and Interpretation at 74 FR 30665 (June 26, 2009). The 
RSIA established a limit of 276 hours per calendar month for train 
employees on service performed for a railroad and on time spent in or 
waiting for deadhead transportation to a point of final release, 
increased the quantity of the statutory minimum off-duty period after 
being on duty for 12 hours in broken service from 8 hours of rest to 10 
hours of rest, prohibited communication with train or signal employees 
during certain minimum statutory rest periods, and established 
mandatory time off duty for train employees of 48 hours after 
initiating an on-duty period on six consecutive days, or 72 hours after 
initiating an on-duty period on seven consecutive days. 49 U.S.C. 
21103-21104. The RSIA also revised the definition of ``signal 
employee'' to include contractors who perform the work of a signal 
employee within the scope of the statute. 49 U.S.C. 21101(4).
    However, Section 108(d) of the RSIA, which became effective on 
October 16, 2008, provided that the requirements described above for 
train employees would not go into effect on July 16, 2009, for train 
employees when providing commuter or intercity rail passenger 
transportation. 49 U.S.C. 21102(c). Section 108(d) further provided 
that these train employees, who provide commuter or intercity passenger 
rail service, would continue to be governed by the old HSL (as they 
existed immediately prior to the enactment of the RSIA, at 49 U.S.C. 
21103 prior to its 2008 amendment), until the effective date of 
regulations promulgated by the Secretary. 49 U.S.C. 21102(c). However, 
if no new regulations are in effect before October 16, 2011, the 
provisions of Section 108(b), which applied to train employees, would 
be extended to these employees at that time. Id.
    Section 108(e) of the RSIA specifically provides the Secretary with 
the authority to issue hours of service rules and orders applicable to 
train employees engaged in commuter rail passenger transportation and 
intercity rail passenger transportation (as defined in 49 U.S.C. 
24102), that may be different from the statute applied to other train 
employees. 49 U.S.C. 21109(b). It further provides that such 
regulations and orders may address railroad operating and scheduling 
practices, including unscheduled duty calls, communications during time 
off duty, and time spent waiting for deadhead transportation or in 
deadhead transportation from a duty assignment to the place of final 
release, that could affect employee fatigue and railroad safety. Id.
    Section 108(e) of the RSIA also provides:

[i]n issuing regulations under subsection (a) the Secretary shall 
consider scientific and medical research related to fatigue and 
fatigue abatement, railroad scheduling and operating practices that 
improve safety or reduce employee fatigue, a railroad's use of new 
or novel technology intended to reduce or eliminate human error, the 
variations in freight and passenger railroad scheduling practices 
and operating conditions, the variations in duties and operating 
conditions for employees subject to this chapter, a railroad's 
required or voluntary use of fatigue management plans covering 
employees subject to this chapter, and any other relevant factors.

49 U.S.C. 21109(c). Section 21109(a) of title 49 of the U.S. Code 
refers to other regulatory authority granted to FRA, as the Secretary's 
delegate related to the HSL, which is not relevant to this proposed 
rule. However, FRA believes that one of the goals of the present 
rulemaking is to identify and reduce fatigue for the employees who will 
be covered by the final rule. Therefore, as will be described below, 
FRA has based these proposed regulations on scientific research related 
to fatigue and fatigue abatement, as applied to railroad scheduling 
practices and operating conditions for train employees providing 
commuter and intercity rail passenger transportation. Section III below 
will describe the primary scientific foundation and support for the 
requirements contained in this proposed rule. In addition, scientific 
considerations will also be addressed in discussion of various elements 
of this proposal, including in the discussion of specific provisions in 
the Section-by-Section Analysis below.

III. Scientific Background

    Most mammals, including human beings, have an approximately 24-hour 
sleep-wake cycle known as a ``circadian rhythm.'' Rapid changes in the 
circadian pattern of sleep and wakefulness disrupt many physiological 
functions such as hormone releases, digestion, and temperature 
regulation. Human function can be affected, performance may be 
impaired, and a general feeling of debility may occur until realignment 
is achieved. Jet lag when flying east is the most commonly experienced 
syndrome similar to the experience of consistently working on a less-
than-24-hour cycle.
    Fatigue risk in an industry that operates 24 hours a day and 7 days 
per week is not just dependent on how many hours per day a person is 
permitted to work, or the amount of time that a person is required to 
be off duty between periods of work. Other significant factors in the 
level of fatigue risk include the time of day that an employee works 
and the number of consecutive days that an employee works. In addition, 
the quantity and quality of sleep vary with the time of day. Because of 
natural circadian rhythms and environmental and social factors, most 
people are able to achieve the best quality and most restful sleep at 
night.
    As previously mentioned, the statutory hours of service 
requirements currently in effect for train employees providing commuter 
and intercity rail passenger transportation establish a maximum on-duty 
time of 12 hours in a 24-hour period, and a minimum off-duty time of 8 
hours in a 24-hour period, or 10 hours after a period of 12 consecutive 
hours on duty. Statutory requirements applicable to train

[[Page 16206]]

employees on freight railroads, as revised by the RSIA, include a 
limitation on the number of consecutive days on which a train employee 
may initiate an on-duty period. However, the HSL for the railroad 
industry have never, up to the present day, differentiated in their 
requirements based on the time of day in which service is performed, or 
the time of day that a period is available for rest.
    As will be discussed further below, FRA conducted two work/rest 
diary studies with train employees in freight and passenger operations. 
Data from these studies indicate that train employees get more sleep 
than the average U.S. adult. While 46 percent of U.S. adults get less 
than seven hours of sleep, only 35 percent of freight train employees 
and 41 percent of passenger train employees get less than seven hours 
of sleep. This amount of sleep results in a level of fatigue that 
increases accident risk by 21 to 39 percent.\3\ Moreover, certain 
operational characteristics of commuter and intercity passenger service 
mitigate the fatigue associated with this amount of sleep loss relative 
to freight service. For example, many train employees on commuter and 
intercity passenger railroads work scheduled assignments, in which they 
begin and end their work day at approximately the same time each day. 
These employees also usually begin and end their duty tour at the same 
location, meaning that they can go home at the end of their work day 
and sleep in their own beds. In addition, very few scheduled 
assignments on most railroads operate during late night hours, and many 
of them result in duty tours significantly shorter than the maximum 
hours that the employee would be allowed to remain or go on duty under 
the existing law or this proposed regulation. Because these 
characteristics are more likely to allow for periods of rest that are 
consistent with normal circadian rhythms, they will provide better 
opportunities for rest, and less risk for fatigue. In addition, as will 
be discussed further below, two FRA work/rest diary studies demonstrate 
that levels of fatigue are not equivalent in freight and passenger 
operations (Work Schedules and Sleep Patterns of Railroad Train and 
Engine Service Workers http://www.fra.dot.gov/downloads/Research/ord0922.pdf (which included data from a small number of train employees 
in passenger operations); Work Schedules and Sleep Patterns of Railroad 
Train and Engine Employees in Passenger Operations [in review--the 
diary study conducted to support this rulemaking]).
---------------------------------------------------------------------------

    \3\ See Hursh, et al. infra at footnote 8.
---------------------------------------------------------------------------

    For all of these reasons, FRA has determined that some of the 
specific limitations that Congress applied to train employees on 
freight railroads in the RSIA are not appropriate for train employees 
on commuter and intercity passenger railroads.
    However, FRA also recognizes that some train employees covered by 
this proposed rule will experience a level of fatigue at which safety 
may be compromised. This is particularly true of those employees who do 
not work scheduled assignments and may not return home at the end of 
each duty tour, or who are required to perform service during late 
night hours, or to work duty tours of the maximum length allowed by 
existing requirements, with only the minimum required rest between duty 
tours. FRA has attempted, in this proposed regulation, to specifically 
address those employees who are most at risk for fatigue, even when in 
compliance with specific hours of service limitations. As will be 
discussed below, research that resulted in the validation of fatigue 
models using data from freight railroads demonstrated that fatigue 
increases the risk of a human factors accident. In addition, as will be 
discussed below, diary data show the risk of fatigue in passenger 
operations. The risk must be measured in order to be managed, and 
fatigue models allow for that measurement.
    An effective proactive fatigue risk management program needs to 
balance the amount of work performed against when the work is 
performed, how long a work schedule is in effect in terms of hours in a 
day, consecutive days, and other variables. This proposed regulation 
would address fatigue risk by going beyond establishing limitations on 
the amount of time that an employee may work, and the minimum amount of 
time that an employee must be off duty between duty tours. It would 
additionally require the analysis of the fatigue risk in employee work 
schedules using a biomathematical model of performance and fatigue, 
identification of those schedules that present an unacceptable level of 
fatigue risk, and mitigation of the identified fatigue risk. In 
addition, the proposed regulation would establish different 
requirements for schedules of employees who operate trains during the 
late night hours in which the fatigue risk is greatest. Thus, the 
proposed rule would specifically address those schedules the 
characteristics of which present a risk for fatigue, even when 
otherwise in compliance with required maximum on-duty and minimum off-
duty periods and other limitations. These risks would not be addressed 
by a regulation that simply established maximum on-duty and minimum 
off-duty periods, just as they are not addressed by the existing 
statutory requirements.

A. Validated and Calibrated Fatigue Models \4\
---------------------------------------------------------------------------

    \4\ For a discussion of existing models and their application, 
see Dean II, D.A., Fletcher, A., Hursh, S.R. and Klerman, E.B., 
Developing Models of Neurobehavioral Performance for the ``Real 
World'', J. Biol Rhythms 2007; 22; 246.
---------------------------------------------------------------------------

    A biomathematical model of performance and fatigue that has been 
properly validated and calibrated predicts accident risk based on 
analysis of identified periods of wakefulness and periods available for 
sleep.
    ``Validation'' of a biomathematical model of human performance and 
fatigue means determining that the output of a biomathematical model of 
human performance and fatigue actually measures human performance and 
fatigue. There are two dimensions to this validation. The first is that 
the model must be demonstrated to be consistent with currently 
established science in the area of human performance, sleep, and 
fatigue. The second part of the validation process involves determining 
that the model output has a statistically reliable relationship with 
the risk of a human factors accident caused by fatigue, and that the 
model output does not have such a relationship with nonhuman factors 
accident risk.
    In general, and for the purpose of compliance with this rule, a 
model will be validated if statistical analyses demonstrate the 
existence of a statistically significant relationship between the 
output of the model and the human factors accident risk ratio, and the 
absence of such a relationship between the output of the model and the 
nonhuman factors accident risk ratio. The presence of a statistically 
significant relationship is evaluated by way of the correlation 
coefficient (r) with statistical significance requiring a p-value of 
less than 0.05. The first step is the selection of bin \5\ edges that 
correspond to varying levels of fatigue (e.g., the ``not fatigued'' bin 
and the ``severely fatigued'' bin). The ``not fatigued'' bin is 
determined by the output of the model when sleep occurs or can occur 
for 8 or more hours, without abrupt phase changes, between 10 p.m. and 
10 a.m. This is similar to the amount of fatigue produced by the 
standard 9 a.m. to 5 p.m., Monday

[[Page 16207]]

through Friday work week. The performance bin ``severely fatigued'' is 
determined by the output of the model when there is total sleep 
deprivation for 42.5 hours after waking at 7 a.m. This is similar to 
the amount of fatigue produced by a permanent night shift schedule with 
six consecutive 12-hour work periods followed by 1 day off. These two 
bins are the ``anchor'' bins for the validation procedure. Four 
additional bins, equally spaced between the anchor bins, accommodate 
the intermediate fatigue scores.
---------------------------------------------------------------------------

    \5\ In statistics, a ``bin'' is a discrete, nonoverlapping 
interval of a variable. Here, the variable is the level of fatigue.
---------------------------------------------------------------------------

    Calibration is, in general, the assignment of numerical values to 
represent aspects of empirical observations. In the case of human 
fatigue and performance, the calibration of a fatigue scale would start 
with the assignment of values to ``not fatigued,'' and the most 
fatigued condition might be described as ``severely fatigued.'' The 
calibration process starts during the validation process with the 
assignment of model output values to anchor bins for ``not fatigued'' 
and ``severely fatigued.'' The next step consists of determining the 
fatigue threshold. Given a scale for human fatigue and performance and 
a relationship between that scale and human factors accident risk, a 
final calibration point would be to determine the fatigue value at 
which fatigue becomes unacceptable because the increase in accident 
risk at that level compromises safety. This is the fatigue threshold.
    The procedure for determining the fatigue threshold consists of 
several computations. First, the cumulative risk for the six fatigue 
score bins is determined for human factor and nonhuman factor 
accidents. Next, a 95-percent confidence interval is calculated for the 
cumulative risk in each bin. Finally, the fatigue score bin in which 
human factor cumulative risk exceeds both human factors Accident Risk 
Ratio = 1 and the mean non-human factors risk is determined. This is 
the fatigue threshold for the model.
    The accident risk is defined as an odds ratio, expressed as a 
percentage of accidents occurring when employees involved in the 
accident are within a given range of fatigue, divided by the percentage 
of time spent by the individual working in that given range of 
predicted fatigue. For example, if 20 percent of accidents occur when 
an employee is within a particular range of predicted fatigue, and 10 
percent of an employee's time in a given duty tour is spent within that 
range of predicted fatigue, then that specific range of predicted 
fatigue has doubled the accident risk.\6\
---------------------------------------------------------------------------

    \6\ For more information on the proper procedures for validation 
and calibration of a biomathematical model of performance and 
fatigue, see Raslear, T.G., Criteria and Procedures for Validating 
Biomathematical Models of Human Performance and Fatigue; Procedures 
for Analysis of Work Schedules. (A copy of this document has been 
placed in the docket for this rulemaking.)
---------------------------------------------------------------------------

1. Fatigue Avoidance Scheduling Tool<SUP>TM</SUP> Model
    FRA-sponsored research resulted in the development of a Sleep, 
Activity, Fatigue, and Task Effectiveness (SAFTE) model and Fatigue 
Avoidance Scheduling Tool<SUP>TM</SUP> (FAST) that have been validated 
and calibrated using data from freight railroads. FAST is a 
biomathematical model of performance and fatigue that can be used to 
assess the risk of fatigue in work schedules and to plan schedules that 
ameliorate fatigue. The model takes into account the time of day when 
work occurs (circadian rhythm) and opportunities for sleep based on 
work schedules.\7\
---------------------------------------------------------------------------

    \7\ For a description of the FAST model, see Hursh, S. R., 
Redmond, D. P., Johnson, M. L., Thorne, D. R., Belenky, G., Balkin, 
T. J., Storm, W. F., Miller, J. C., and Eddy, D. R. (2004). Fatigue 
models for applied research in warfighting. Aviation, Space, and 
Environmental Medicine, 75, A44-53.
---------------------------------------------------------------------------

    The model validation used work histories from 400 human factors 
accidents and 1,000 non-human factors accidents on freight railroads. 
The model has not specifically been validated using passenger railroad 
accidents, because there were not enough such accidents in the relevant 
time period to obtain statistically significant results, and had the 
period of analysis been extended sufficiently to capture enough 
passenger railroad accidents, much of the needed work schedule data for 
the employees involved in those accidents would no longer be available. 
However, FAST measures fatigue and effectiveness, based on laboratory 
analysis of cognitive and sensory motor functions during sleep 
deprivation, which are not job specific. Furthermore, the tasks 
associated with freight and passenger train operations are actually 
highly similar. In addition, there was no statistically significant 
difference between the proportion of accidents in categories associated 
with fatigue, between freight and passenger railroads. For all of these 
reasons, FRA has determined that the model is valid for use in 
evaluating fatigue levels in passenger railroad schedules for the 
purposes of this proposed rule. Indeed, the FAST model has been used by 
other entities, including the military and the airline industry.
    FAST was used to calculate cognitive effectiveness (the inverse of 
fatigue) on a scale from 0 (worst) to 100 (best) using the 30-day work 
histories of locomotive engineers prior to the accidents and at the 
time of the accidents.\8\ Cognitive effectiveness is a metric that 
tracks speed of performance on a simple reaction time test and is 
strongly related to overall response speed, vigilance, and the 
probability of lapses.
---------------------------------------------------------------------------

    \8\ Hursh, S. R., Raslear, T. G., Kaye, A. S., and Fanzone, J. 
F. (2006). Validation and calibration of a fatigue assessment tool 
for railroad work schedules, summary report (Report No. DOT/FRA/ORD-
06/21). Washington, DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0621.pdf; Hursh, S. R., 
Raslear, T. G., Kaye, A. S., and Fanzone, J. F. (2008). Validation 
and calibration of a fatigue assessment tool for railroad work 
schedules, final report (Report No. DOT/FRA/ORD-08/04). Washington, 
DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0804.pdf.
---------------------------------------------------------------------------

    The analysis revealed a significant high correlation between 
reduced predicted crew effectiveness (as a result of increased fatigue) 
and the risk of a human factor accident for freight railroads. As was 
discussed above, although FAST was validated using freight railroad 
accidents, the cognitive and sensory motor functions it measures are 
not job specific, so the resulting determinations of effectiveness and 
accident risk are equally applicable to passenger railroads. There was 
no significant relationship between increased fatigue and non-human 
factor accidents. In addition, the data showed that there is a reliable 
relationship between the time of day of human factor accidents and the 
expected, normal circadian rhythm. The circadian pattern was not 
reliably present for non-human factor accidents. The risk of a human 
factor accident is increased by 20 percent by working during the hours 
from midnight to 3 a.m. Id.
    The study showed that there is an elevated risk of human factors 
accidents at any effectiveness score below 90, and accident risk 
increased as effectiveness decreased. The risk of a human factors 
accident is increased by 21 percent at effectiveness scores at or below 
70, which is a level of risk elevated beyond chance level, and greater 
than the mean risk of non-human factor accidents. Twenty-three percent 
of the freight accidents examined occurred when an employee involved 
was at or below an effectiveness score of 70. The study also found that 
cause codes associated with accidents that occurred at or below an 
effectiveness score of 70 showed an over-representation of the type of 
human factors accident that might be expected of a fatigued crew, such 
as passing a signal indicating stop, or

[[Page 16208]]

exceeding the maximum authorized speed, which confirmed that the 
detected relationship between accident risk and predicted effectiveness 
is meaningful.
    Other research, comparing the effects of alcohol and sleep 
deprivation on performance on a driving simulator, has also indicated 
that an effectiveness score of 70 is the rough equivalent of a 0.08 
blood alcohol level, or the equivalent of being awake for 21 hours 
following an 8-hour sleep period the previous night.\9\ However, direct 
comparisons between the performance effects of alcohol and fatigue must 
be made with caution. Some aspects of a complex task, such as driving 
an automobile simulator, show a high degree of congruence between the 
effects of alcohol and fatigue, while the effects of alcohol and 
fatigue on other aspects of the same task are highly dissimilar. For 
instance, Arnedt et al. (2001) found that tracking, tracking 
variability, and speed variability were all similarly affected by 
alcohol and fatigue in a driving simulator. However, Arnedt et al. 
found that, while subjects drove faster after consuming alcohol, 
fatigue did not affect driving speed. In addition, alcohol produced a 
more rapid deterioration in performance in off-road events (incidents 
in which the simulated vehicle was driven off the road) than did 
fatigue. Thus, while it is clear that alcohol and fatigue can both 
cause deterioration in task performance, the effect of alcohol is often 
more severe and extensive.\10\
---------------------------------------------------------------------------

    \9\ See Arnedt, J.T., Wilde, G.J., Munt, P.W., and MacLean, A.W. 
(2001). How do prolonged wakefulness and alcohol compare in the 
decrements they produce on a simulated driving task? Accident 
Analysis and Prevention, 33, 3, 337-44; Dawson, D., and Reid, K. 
(1997). ``Fatigue, alcohol and performance impairment.'' Nature 388, 
23.
    \10\ See also Williamson, A., Feyer, A.-M., Friswell, R., and 
Finlay-Brown, S. (2000). Development of Measures of Fatigue: Using 
an Alcohol Comparison to Validate the Effects of Fatigue on 
Performance (Road Safety Research Report CR 189). Canberra, 
Australia: Australian Transport Safety Bureau.
---------------------------------------------------------------------------

    As a result of this analysis, a fatigue threshold (the fatigue 
level at which there is an unacceptable accident risk due to fatigue) 
of 70 was established for FAST.\11\ Accordingly, an effectiveness score 
of less than 70 would exceed that threshold for the purposes of this 
proposed regulation.\12\
---------------------------------------------------------------------------

    \11\ See Hursh, et al., supra note 8.
    \12\ A 21-day free trial of the FAST Model can be downloaded at 
http://fatiguescience.com/products/fast.
---------------------------------------------------------------------------

2. Fatigue Audit InterDyne \TM\ Model \13\
---------------------------------------------------------------------------

    \13\ For a description of FAID, see Roach, G. D., Fletcher, A., 
and Dawson, D. (2004). A model to predict work-related fatigue based 
on hours of work. Aviation, Space, and Environmental Medicine, 75, 
A61-9.
---------------------------------------------------------------------------

    Another biomathematical model of performance and fatigue that has 
recently been validated and calibrated is the Fatigue Audit InterDyne 
\TM\ (FAID). FAID was validated and calibrated using the same accident 
data from freight railroads as FAST used.\14\ For the same reasons 
described above with regard to FAST, FRA has determined that FAID is 
valid for use in evaluating fatigue levels in passenger railroad 
schedules for the purposes of this proposed rule.
---------------------------------------------------------------------------

    \14\ For details see Tabak, B., and Raslear, T. G. (2010). 
Procedures for Validation and Calibration of Human Fatigue Models: 
The Fatigue Audit InterDyne (FAID) Tool (Report No. DOT/FRA/ORD-10/
14). Washington, DC: U.S. Department of Transportation. (http://www.fra.dot.gov/rpd/downloads/TR_Procedures_or_Validation_and_Calibration_final.pdf)
---------------------------------------------------------------------------

    Analysis of the FAID scores resulted in a statistically significant 
correlation for both human factor and non-human factor accidents, which 
meant that FAID could be validated for freight railroads, and as 
explained above FRA has determined that it is equally applicable to 
passenger railroads. The FAID model was validated with scores of 40 and 
120, corresponding to ``not fatigued'' and ``extremely fatigued.'' FAID 
scores showed a statistically reliable relationship with the risk of a 
human factors accident but did not show such a relationship with other 
accident risk.
    However, in analyzing the FAID data for the purpose of calibration, 
none of the confidence intervals demonstrated a statistically 
significant increase in cumulative risk. This was true for both human 
factors and non-human factors accidents. An alternative procedure, 
using FAST, which was already a validated and calibrated model, allowed 
for calibration of FAID. The alternative procedure required correlating 
FAST and FAID scores. The calibration of FAST is the equivalent of 
fundamental measurement in physics, while the calibration of FAID by 
reference to FAST is the equivalent of derived measurement, both of 
which are valid measurement methods.\15\
---------------------------------------------------------------------------

    \15\ Kranz, D.H., Luce, R.D., Suppes, P., and Tversky, A. 
(1971). Foundations of measurement. Volume 1. Additive and 
polynomial representations. New York: Academic Press.
---------------------------------------------------------------------------

    Correlation of individual FAST and FAID scores found a high level 
of variation in the individual FAST scores within a FAID bin, so 
linking fatigue scores on an individual level was not feasible. An 
alternative method is to calculate confidence intervals for the 
population or mean score. Since biomathematical models are known to be 
more accurate at predicting population behavior rather than individual 
behavior, the confidence intervals of the bin means were compared. When 
analyzed at the population level, the regression line for FAID scores 
as a function of FAST scores, or FAST scores as a function of FAID 
scores, has an r of 0.909.
    The calibration of FAID indicated that FAID scores above 80 
indicate a severe level of fatigue, and that FAID scores between 70 and 
80 indicate extreme fatigue. A fatigue threshold (as with FAST, the 
fatigue level at which there is an unacceptable accident risk due to 
fatigue) of 60 was established for FAID, and an effectiveness score 
greater than 60 would exceed that threshold.\16\
---------------------------------------------------------------------------

    \16\ A free trial of the FAID Model can be downloaded at http://www.faidsafe.com/products-main.htm#faid330.
---------------------------------------------------------------------------

    FRA believes that the prediction of the effectiveness of an 
employee's performance may be used to improve work schedules, to alter 
to the extent possible the timing of safety-critical tasks to coincide 
with periods of optimal performance, and to apply countermeasures to 
reduce the fatigue risk, and the corresponding risk of accidents or 
other errors associated with that fatigue. It is for this reason that 
FRA has concluded that it is appropriate to require analysis of 
employee work schedules using a validated and calibrated 
biomathematical model of performance and fatigue, as an essential 
component of these proposed hours of service regulations.
    As will be discussed in detail below, this proposed rule would 
require the railroads to mitigate the fatigue resulting from following 
a certain work schedule, and submit the schedules and fatigue 
mitigations to FRA for approval. These requirements will be triggered 
when analysis reveals that an employee working a given schedule will 
experience 20 percent or more of the employee's working time at an 
effectiveness score at or exceeding the fatigue threshold under the 
model used for analysis; that is to say, at an effectiveness score of 
70 or less determined by FAST, or at an effectiveness score of 60 or 
greater as determined by FAID. The applicable effectiveness score could 
be different if a railroad were using another model that had been 
properly validated and calibrated. FRA encourages the development, 
validation, and calibration of alternative models, and their submission 
to FRA for approval under proposed Sec.  228.407(c), by any

[[Page 16209]]

railroad desiring to use an alternative model for the analyses required 
by this proposed rule.\17\
---------------------------------------------------------------------------

    \17\ See Raslear, supra note 6 for information on procedures for 
validating and calibrating a model.
---------------------------------------------------------------------------

B. Diary Study of Train Employees on Commuter and Intercity Passenger 
Railroads

    To further support this proposed rule, FRA conducted primary 
research specifically directed to train employees of commuter and 
intercity passenger railroads (OMB Control Number 2130-0588). The 
results of the study provided valuable evidence of the actual levels of 
fatigue experienced by train employees on commuter and intercity 
passenger railroads, because it allowed analysis of the actual periods 
of time that an employee reports having worked, slept, or spent in 
other activities during the period analyzed, which may be different 
from the assigned schedule and presumed periods available for sleep.
    FRA had previously conducted similar surveys for signal employees 
(OMB Control Number 2130-0558), maintenance of way employees (OMB 
Control Number 2130-0561), dispatching service employees (OMB Control 
Number 2130-0570), and train employees generally (OMB Control Number 
2130-0577). The purpose of these studies was to characterize, using a 
consistent statistical survey methodology, the work schedules and sleep 
patterns of each unique group of railroad workers. Because each of 
these studies used a random sample of each worker population, they 
provide defensible and definitive data on work/rest cycle parameters 
and fatigue for the respective group. The small number of train 
employees on commuter and intercity passenger railroads represented in 
the previous study of train employees generally did not allow for 
meaningful conclusions with regard to this subpopulation of train 
employees. As a result, the present study, specifically focused on this 
population, was necessary. The present study of train employees on 
commuter and intercity passenger railroads used the same methodology as 
the previous studies.
    The primary objectives of this study were to design and conduct a 
survey to collect work schedule and sleep data from train and engine 
service (T&E) employees, and to analyze the data to characterize the 
work/sleep patterns and to identify work schedule-related fatigue 
issues. The goal was to characterize train employees on commuter and 
intercity passenger railroads as a group, not to characterize such 
employees on a specific railroad.
    The research described in this report had three phases: 
preparation; field data collection; and data analysis. Since no 
existing source would provide answers to the study's research 
questions, a survey of train employees was the only means to obtain the 
necessary data. The preparation phase included securing approval from 
the Office of Management and Budget for the proposed data collection. 
Representatives from the Brotherhood of Locomotive Engineers and 
Trainmen (BLET) and the United Transportation Union (UTU) worked 
closely with the researchers throughout the study.
    The study used two survey instruments--a background survey and a 
daily log. Survey participants used the background survey to provide 
demographic information, descriptive data for their type of work, type 
of position, and work schedule, and a self-assessment of overall 
health. The daily log provided the means for survey participants to 
record their daily activities in terms of sleep, personal time, time 
spent commuting to and from work, work time, limbo time, and periods of 
interim release. Study participants also provided self-assessments of 
the quality of their sleep and their level of alertness at the start 
and end of each work period. This study used a 14-day data-collection 
period to accommodate those train employees who did not work a regular 
schedule.
    Researchers drew a random sample of 1275 train employees on 
commuter and intercity passenger railroads. The size of the sample from 
each of the two unions was proportional to that organization's 
representation in the total number of eligible participants. Retirees, 
full-time union officials, and anyone currently holding a railroad 
management position were not eligible for the study. Determination of 
the sample size assumed a 95-percent confidence interval on the 
estimates for mean sleep time, an error tolerance of 15 percent, and a 
33-percent response rate.
    Mailing of the survey materials occurred on December 31, 2009. Ten 
days later, every potential survey participant received a postcard, 
signed by his or her union president, to encourage the employee to 
participate in the survey. Three weeks after distribution of the 
materials, a second postcard thanked those who had decided to 
participate and encouraged those who had not yet done so to 
participate.
    The overall response rate for the survey was 21 percent. Of the 269 
complete responses, 13 could not be part of the analysis because either 
there were problems with the respondents' log books, or the respondents 
were not in crafts covered by the survey. (It was not possible to 
identify these individuals from the information contained in union 
membership databases.) The nonresponse-bias study based on age found no 
difference between survey respondents and nonrespondents.
    The results of the study support the approach that FRA has taken in 
this rule. For instance, the results are consistent with the separate 
analysis during the development of this proposed rule of schedules 
provided by commuter and intercity passenger railroads, indicating that 
a fairly small percentage of employee work time (about 1.8 percent) 
exceeds the fatigue threshold. The proposed rule would focus additional 
attention and effort specifically on those schedules presenting this 
fatigue risk by requiring the mitigation of that risk, while schedules 
not at risk for fatigue would not be subject to these additional 
requirements.
    In addition, when compared to the results of the previous study 
that primarily considered train employees on freight railroads, the 
results support a significantly different approach. Train employees on 
freight railroads were found to experience some level of fatigue 
(equivalent to an effectiveness score <90 using the FAST model) during 
73 percent of their work time, while train employees on commuter and 
intercity passenger railroads experienced this level of fatigue during 
14 percent of their work time. The substantive limitations imposed on 
train employees on freight railroads in the RSIA would largely be 
unnecessary for the commuter and intercity passenger railroad industry, 
as well as ineffective to target the specific areas where there is a 
fatigue risk.

IV. Railroad Safety Advisory Committee (RSAC) Process

A. Overview of the RSAC

    In March 1996, FRA established RSAC,\18\ which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major stakeholder groups, 
including railroads, labor organizations, suppliers, and manufacturers, 
and other interested parties. A list of member groups follows:
---------------------------------------------------------------------------

    \18\ For more information about RSAC activities, see http://rsac.fra.dot.gov/. Meetings of the full RSAC are also announced by 
publication in the Federal Register.

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

[[Page 16210]]

    <bullet> American Association of Private Railroad Car Owners 
(AARPCO);
    <bullet> American Association of State Highway and Transportation 
Officials (AASHTO);
    <bullet> American Chemistry Council;
    <bullet> American Petroleum Institute;
    <bullet> American Public Transportation Association (APTA);
    <bullet> American Short Line and Regional Railroad Association 
(ASLRRA);
    <bullet> American Train Dispatchers' Association (ATDA);
    <bullet> Association of American Railroads (AAR);
    <bullet> Association of Railway Museums;
    <bullet> Association of State Rail Safety Managers (ASRSM);
    <bullet> Brotherhood of Locomotive Engineers and Trainmen (BLET);
    <bullet> Brotherhood of Maintenance of Way Employes Division 
(BMWED);
    <bullet> Brotherhood of Railroad Signalmen (BRS);
    <bullet> Chlorine Institute;
    <bullet> FRA;
    <bullet> Federal Transit Administration (FTA); *
    <bullet> Fertilizer Institute;
    <bullet> High Speed Ground Transportation Association (HSGTA);
    <bullet> Institute of Makers of Explosives;
    <bullet> International Association of Machinists and Aerospace 
Workers;
    <bullet> International Brotherhood of Electrical Workers (IBEW);
    <bullet> Labor Council for Latin American Advancement; *
    <bullet> League of Railway Industry Women; *
    <bullet> National Association of Railroad Passengers (NARP);
    <bullet> National Association of Railway Business Women;*
    <bullet> National Conference of Firemen & Oilers;
    <bullet> National Railroad Construction and Maintenance Association 
(NRC);
    <bullet> National Railroad Passenger Corporation (Amtrak);
    <bullet> National Transportation Safety Board (NTSB); *
    <bullet> Railway Supply Institute (RSI);
    <bullet> Safe Travel America (STA);
    <bullet> Secretaria de Comunicaciones y Transporte; *
    <bullet> Sheet Metal Workers International Association (SMWIA);
    <bullet> Tourist Railway Association, Inc.;
    <bullet> Transport Canada; *
    <bullet> Transport Workers Union of America (TWU);
    <bullet> Transportation Communications International Union/BRC 
(TCIU/BRC);
    <bullet> Transportation Security Administration (TSA); * and
    <bullet> United Transportation Union (UTU).

    * Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. If a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff plays an active role at the working group level in discussing 
the issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward RSAC recommendations. 
However, FRA is in no way bound to follow the recommendation, and the 
agency exercises its independent judgment on whether the recommended 
rule achieves the agency's regulatory goal, is soundly supported, and 
is in accordance with policy and legal requirements. Often, FRA varies 
in some respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on a recommendation for 
action, FRA moves ahead to resolve the issue through traditional 
rulemaking proceedings.

B. RSAC Proceedings in This Rulemaking

    FRA proposed Task No. 08-06 to the RSAC on April 2, 2009. The RSAC 
accepted the task, and formed the Passenger Hours of Service Working 
Group (Working Group) for the purpose of developing implementing 
regulations for the hours of service of train employees of commuter and 
intercity passenger railroads under the RSIA.
    The Working Group is comprised of members from the following 
organizations:
    <bullet> AASHTO;
    <bullet> Amtrak;
    <bullet> APTA;
    <bullet> ASLRRA;
    <bullet> ATDA;
    <bullet> AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway Company (CN), Canadian Pacific Railway, 
Limited (CP), CSX Transportation, Inc. (CSXT), Iowa Interstate 
Railroad, Ltd. (IAIS), Kansas City Southern (KCS) railroads, Metra 
Electric District, Norfolk Southern Corporation (NS) railroads, and 
Union Pacific Railroad Company (UP);
    <bullet> BLET;
    <bullet> BRS;
    <bullet> FRA;
    <bullet> Federal Transit Administration (FTA);
    <bullet> IBEW;
    <bullet> Long Island Rail Road (LIRR);
    <bullet> Metro-North Commuter Railroad Company (Metro-North);
    <bullet> National Association of Railroad Passengers (NARP);
    <bullet> National Railroad Construction and Maintenance 
Association;
    <bullet> National Transportation Safety Board (NTSB);
    <bullet> Southeastern Pennsylvania Transportation Authority 
(SEPTA);
    <bullet> Tourist Railway Association; and
    <bullet> UTU.
    The Working Group completed its work after six meetings and several 
conference calls. The first meeting of the Working Group took place on 
June 24, 2009, in Washington, DC. At that meeting the group heard 
several presentations on fatigue science, including a report on the 
diary study that was to be conducted as described above. The group 
discussed the general approach for the rulemaking, and it was agreed 
that analysis of the railroads' work schedules would support the 
rulemaking. Subsequent meetings were held on February 3, 2010; March 4, 
2010; April 6, 2010; May 20, 2010; and June 29, 2010. In addition, a 
Task Force was formed that met on January 14-15, 2010, March 30-31, 
2010, and April 28-29, 2010.
    At the conclusion of the June 29, 2010 meeting, the Working Group 
voted to approve a draft of the proposed rule text, with the exception 
of two sections, to which the group had suggested numerous edits. It 
was agreed that FRA would address the remaining issues in those 
sections and circulate a revised draft, on which the group would vote 
electronically. After the revised draft was produced, the Task Force 
had several conference calls to discuss the revised provisions, and FRA 
also participated in several calls with task force members. Ultimately, 
on September 22, 2010, the Working Group voted unanimously to agree to 
the rule text presented in this proposed rule. The group's 
recommendation was presented to the full RSAC on

[[Page 16211]]

September 23, 2010. The full RSAC agreed to vote electronically on the 
rule text recommended by the Working Group, and ultimately accepted its 
recommendation. Although only a majority was required, the vote was 
unanimous.\19\
---------------------------------------------------------------------------

    \19\ The rule text voted on by the full RSAC and recommended to 
FRA is available on the RSAC Web site.
---------------------------------------------------------------------------

    Following the vote of the Working Group and the full RSAC, FRA 
recognized the need to make two changes to the recordkeeping and 
reporting requirements in 49 CFR 228.11 and 228.19, to accommodate a 
new substantive limitation contained in the proposed rule as approved 
by the RSAC. While the RSAC voted in favor of the substantive 
requirement in question, and all other elements of the proposed rule, 
the corresponding amendments to the recordkeeping and reporting 
provisions were not presented to them.
    With the exception of the proposed revisions to 49 CFR 228.11 and 
228.19, this proposed regulation is consistent with the recommendation 
of the Working Group and the full RSAC.
    At the February 3, 2010, meeting, FRA presented a strawman draft of 
the rule text, identifying the basic concepts and direction of the 
rulemaking. Based on discussions at that meeting, a more complete draft 
was presented at the March 4, 2010 meeting, and the text was refined 
and supplemented at subsequent meetings. In addition, during the course 
of the Working Group and Task Force meetings, a number of significant 
issues were discussed that resulted in changes in the proposed rule 
text or common understanding of the intent of specific provisions that 
should be explained. Some such issues will be explained in this 
section, while other subjects of discussion by the Working Group and 
the Task Force will be discussed in the Section-by-Section Analysis at 
Section V of the preamble.
    In addition, as discussed below in the Regulatory Impact and 
Notices section of the preamble, Section VI, FRA has considered the 
costs and benefits of this proposed rule. Implementation costs would be 
associated with analyzing work schedules, training, and rest 
facilities. However, relative to the ``no regulatory action'' 
alternative in which passenger railroad train employees would become 
subject to the new HSL in effect for freight train employees, the 
proposed rule would result in a cost savings of $57.6 million 
(discounted at 7 percent) and $65 million (discounted at 3 percent) 
over a 20-year period. The quantified accident reduction benefits 
achieved under both the ``no regulatory action'' baseline and the 
proposed rule total $1.4 million (undiscounted), $0.7 million (PV, 7 
percent), and $1.0 million (PV, 3 percent). FRA does not expect that 
the overall number of casualties and property damages prevented will 
differ under either scenario. Implementation of the proposed rule would 
yield these benefits at lower cost. While the proposed rule has lower 
monetized benefits than costs, when compared to the current HSL, FRA 
believes that there are unquantified benefits that could close the gap.

C. Significant Task Force Contributions

    As was noted above, the Working Group created the Task Force, 
comprised of representatives from BLET, UTU, APTA, AAR, and FRA. The 
Task Force met between Working Group meetings to provide additional 
input and advice to the Working Group on the approach to the proposed 
rule, specific concerns as to the rule text, and implementation of the 
proposed regulatory requirements. Although the Task Force was extremely 
helpful throughout the development of the proposed rule in offering 
suggestions as to the rule text, its primary contributions were in the 
areas of schedule analysis and the creation of a fatigue mitigation 
tool box.
1. Schedule Analysis
    The diary study discussed in Section III B of the preamble provided 
valuable evidence of the actual levels of fatigue experienced by train 
employees on commuter and intercity passenger railroads. However, since 
many of these employees work scheduled assignments, it was also 
valuable to evaluate the schedules themselves, to get a sense of the 
parameters of those assignments that would result in fatigue exceeding 
the threshold, which informed some of the provisions of this proposed 
rule. The Task Force assisted the Working Group by evaluating the 
schedules and presenting their results to the Working Group.
    APTA hired a consultant to analyze the schedules provided by the 
railroads that were worked by their train employees. The railroads 
provided all of their schedules for the month of July 2009. The 
schedules were analyzed using the FAST model, including conservative 
assumptions about the sleep that would be obtained by an employee 
working that schedule. For example, the analyses assumed that employees 
did not sleep during periods of interim release.
    The analyses that the Task Force presented to the Working Group 
demonstrated that most schedules did not result in an employee's 
exceeding the fatigue threshold. This was true even for schedules in 
which the employee reported for duty at 4 a.m. and was relieved from 
duty at 8 p.m., for a 16-hour duty tour that included a total of 12 
hours on duty and a 4-hour interim release. Most of the problematic 
schedules identified through the analysis presented by the Task Force 
involved duty tours in which some time was spent working during late 
night hours. These analyses formed the parameters for FRA's definitions 
of ``Type 1 assignment'' and ``Type 2 assignment'' for which different 
requirements would apply in this proposed rule.
2. Fatigue Mitigation Tool Box
    Because a major aspect of this proposed rule would require 
mitigation of the fatigue risks identified in those schedules that 
resulted in an employee's exceeding the fatigue threshold, and 
experiencing a level of fatigue at which safety may be compromised, the 
Task Force assisted the Working Group by developing a fatigue 
mitigation tool box, a document that would illustrate the variety of 
ways in which a railroad might seek to address the fatigue risks in its 
schedules. (A copy of this document has been placed in the docket for 
this rulemaking.) The tool box itself is not intended to become a part 
of the regulatory text. Instead, it is intended to provide the variety 
of methods from which a railroad may propose, in its plans submitted to 
FRA for approval, to mitigate identified fatigue risks in its work 
schedules, to bring them into compliance with the regulation. It is 
expected that not every tool will be appropriate for each railroad, or 
for individual locations or schedules on a given railroad, and that the 
railroads, in consultation with their labor organizations, will choose 
the mitigation tools most appropriate to each circumstance, subject to 
FRA review and approval. In addition, the tool box is expected to be a 
living document, as the available fatigue mitigation tools will change 
over time as fatigue science continues to develop, or as railroad 
operations change, either generally or as related to specific 
properties or schedules. The tool box as a whole will not be approved 
by FRA, nor will it be maintained by FRA as it evolves. FRA will 
evaluate the appropriateness of specific fatigue mitigation tools as 
they are submitted to FRA as part of a railroad's plan to mitigate 
fatigue risks associated with particular schedules.

[[Page 16212]]

    This section will describe a representative sample of the variety 
of the tools included in the tool box developed by the Task Force, 
which may be applied to mitigate fatigue risk. This is not intended to 
be an all-inclusive list of the possible fatigue mitigation tools. A 
railroad is free to use any fatigue mitigation tool that it believes is 
effective in reducing the fatigue risk found in its schedules, subject 
to FRA's review and approval.
    Perhaps the easiest mitigation tool to understand that was 
identified by the Task Force is the adoption and implementation of a 
napping policy, and the provision of facilities for employees to take a 
nap during interim releases or other periods between assignments that 
may be available for rest during a duty tour. Addition of a period of 
sleep to the employee's schedule would have a clear impact on the 
employee's current level of fatigue, and the level of fatigue that the 
employee would be expected to experience throughout the remainder of 
the duty tour after a nap, which might reduce the risk of fatigue 
sufficiently to bring the schedule and the employee's effectiveness 
score within the fatigue threshold.
    To use this tool to mitigate fatigue, a railroad would be required 
to identify, in consultation with its labor organizations or employees, 
the facilities that would be available for the purpose of rest during 
the duty tour, that are appropriate to the schedule and location at 
issue. This would not always require a bunk or a quiet room, though 
this might be available at some locations and in certain situations. 
However, the period available for rest would have to be at least 90 
minutes for this mitigation tool to be applied, as this amount of time 
would provide sufficient opportunity for an employee to get to his or 
her napping location and fall asleep, having enough time for a nap of 
sufficient duration to be beneficial to the employee's level of 
fatigue, and then also allowing the employee time to be fully awake and 
ready to resume the duty tour.
    Another mitigation tool, applicable to railroads and locations 
using employees from an extra board, would be the use of multiple extra 
boards that are temporally separated, so that employees would be 
scheduled to work morning assignments or evening assignments, rather 
than being subject to calls for assignments at all times of day. For 
example, employees assigned to a morning extra board might be subject 
to being called only for assignments requiring them to report for duty 
between 4 a.m. and 10 a.m., while employees assigned to an evening 
extra board might be subject to being called only for assignments 
requiring them to report for duty between 4 p.m. and 10 p.m. Employees 
on either extra board would know that they would not be called for an 
assignment requiring them to report for duty outside the times 
established for the employee's particular assigned extra board. This 
would lead to greater predictability of schedule and ability to plan 
rest, while also avoiding (1) circadian shifts between duty tours 
resulting from changes in the time of day that the employee is awake 
and (2) difficulties in adjusting to changing periods available for 
sleep.
    Call windows (i.e., limited periods of time during which an 
employee is subject to receiving calls from the railroad to report for 
duty) are another mitigation tool in the tool box, which may be 
combined with a temporally separated extra board, but could also be 
used even if the extra board were not so divided. For example, a 
railroad might decide to establish a call window that would reduce or 
eliminate calls to the employee during the time from 11 p.m. and 5 a.m. 
Open assignments that would need to be filled from an extra board of 
employees who would otherwise be called for the assignment during that 
time would instead be filled before 11 p.m., which would give the 
employees greater predictability and ability to plan rest, as well as 
allowing them more rest during the late night hours.
    Another possible tool would be to allow employees a period of 
uninterrupted rest, similar to the requirement that applies to train 
employees on freight railroads, which is found at 49 U.S.C. 21103(e). 
The uninterrupted rest could be applied to an employee's statutory off-
duty period before or after the employee is to work a schedule 
exceeding the fatigue threshold. It could also be applied to periods of 
interim release within the duty tour.
    Education could also be part of the tools that a railroad will use 
to mitigate fatigue in certain circumstances, and is also a key 
component of the other mitigation tools. The mitigation tools will not 
be beneficial if the employees working the schedules to which they are 
applied do not understand the available tools, and how to properly use 
them to reduce their fatigue and increase their effectiveness. If 
employees do not take advantage of the mitigation tools, and use them 
properly to increase their rest, even those mitigation tools most 
likely to have the greatest and most tangible impact on reducing 
fatigue will not have the desired effect. FRA has also recognized the 
importance of education as a component of fatigue management by 
specifically requiring in this proposed rule that employees and 
supervisors receive training on fatigue and strategies for reducing it.
    Finally, one additional mitigation tool was discussed by the Task 
Force that was extremely well-received and supported by the Working 
Group, including FRA representatives. That suggestion was to develop 
software that would link the railroad's crew management resources to 
both the employee's electronic hours of service records (created and 
maintained in compliance with subpart D of 49 CFR part 228), and a 
valid biomathematical model of performance and fatigue.
    The idea is that the fatigue model would be able to look back at 
previous duty tours and rest periods to determine which schedules might 
have sufficiently rested employees available to report for the 
assignment, not only under the limitations on time on duty and required 
minimum time off duty that would be established by this proposed rule, 
but also in terms of the fatigue threshold. The model would have the 
benefit of the data from the previous duty tours to take into account 
in determining whether these schedules would exceed the fatigue 
threshold during the duty tour, as well as at the report-for-duty time. 
If the analysis revealed that the employees on these schedules would be 
too fatigued to report for the assignment, or would exceed the fatigue 
threshold during the duty tour, crew management would be alerted that 
these employees could be at risk if they work this particular 
assignment. Employees would have to affirm their fitness for duty if 
asked to work such assignments and be empowered to reject the 
assignments, because the model is being used to predict group (average) 
fatigue from work schedules that could be worked by several 
individuals. Any individual could be more or less fatigued than the 
average or group. Employees have a responsibility to indicate if they 
feel fit to work or not, regardless of the effectiveness score that a 
model would predict. The employer's responsibility is to arrange 
schedules that minimize fatigue.
    While all of the parties to the Working Group agreed that this idea 
showed great promise as an effective fatigue mitigation tool for the 
future, it is not something that the railroads will be able to apply 
immediately, for technological reasons. Most railroads that would be 
subject to this proposed rule do not yet create and maintain their 
hours of service records electronically in

[[Page 16213]]

compliance with subpart D, although there is interest among those 
railroads in developing hours of service electronic recordkeeping 
programs. In addition, software would need to be developed that would 
allow the fatigue model to retrieve data from the electronic 
recordkeeping system, without any possibility of altering or otherwise 
affecting the integrity of the records maintained in the system. 
Likewise, software would be needed to connect the fatigue model to the 
crew management system, so that it could appropriately alert that 
system and prevent an employee being placed on an assignment for which 
he or she would be too fatigued. If the necessary systems and software 
can be developed, compliance with the fatigue threshold would become 
much easier, and there would be much less excessive fatigue to be 
mitigated.

D. Areas of Working Group and Task Force Concern

    During the course of the Task Force and Working Group meetings, a 
few issues resulted in significant discussion. Some issues were related 
to specific provisions in the rule text, while other concerns were 
about the broader implications of the rule, as well as its effects on 
aspects of railroad operations or existing collective bargaining 
agreements.
1. Definitions of ``Type 1 Assignment'' and ``Type 2 Assignment''
    Some members of the Working Group suggested that there should be a 
way to determine a template for schedules that would be deemed not to 
exceed the fatigue threshold. As was discussed above, the Task Force 
presented schedule analyses showing that a schedule in which an 
employee began work at 4 a.m. and was relieved at 8 p.m., resulting in 
a duty tour with a total time on duty of 12 hours, with a 4-hour period 
of interim release, did not exceed the fatigue threshold.
    Based on this analysis, FRA initially defined any assignment 
beginning no earlier than 4 a.m. and ending no later than 8 p.m., 
assuming at least a 4-hour period of interim release, as a Type 1 
assignment, which would be deemed not to exceed the fatigue threshold. 
Assignments that included any period of time outside the defined time 
parameters of a Type 1 assignment would be considered a Type 2 
assignment, which would be subject to more stringent requirements, 
including analysis of the schedule using a scientifically valid 
biomathematical model, and a more restrictive limit on the number of 
consecutive days that employees working such assignments could initiate 
an on-duty period.
    However, some Task Force members pointed out that there could be 
assignments that include time outside the time parameters of a Type 1 
assignment that would not exceed the fatigue threshold. In some cases 
these schedules would only have a small amount of their overall time 
outside of the Type 1 parameters. For example, an assignment might 
begin at 4:30 a.m. and end at 8:30 p.m. In addition, some assignments 
might not exceed the threshold because of the short duration of the 
duty tour involved, such as, perhaps, an assignment from 5 p.m. until 
9:30 p.m.
    Based on these considerations, FRA amended the definition of a Type 
2 assignment to indicate that if an assignment does not include any 
time between midnight and 4 a.m., then the particular time of day or 
night that an assignment is to be performed is not the only determinant 
of whether an assignment is considered a Type 2 assignment. In 
particular, a Type 2 assignment that is analyzed using a scientifically 
valid biomathematical model and is determined not to exceed the fatigue 
threshold, and that includes no period of time between midnight and 4 
a.m., would be considered a Type 1 assignment.
    FRA also added language to the definitions of both ``Type 1 
assignment'' and ``Type 2 assignment'' to require compliance with the 
substantive limitations contained in proposed Sec.  228.405. FRA 
expects that railroads would not be operating schedules that violate 
these limitations; most schedules have long been in effect for the 
railroads subject to this proposed rule, and this was an implicit 
assumption of the Working Group. For example, a schedule that requires 
an employee to report for duty at 4 a.m. and to be released from duty 
at 8 p.m. would have to include a period of interim release of at least 
4 hours that is not time on duty, as defined by proposed Sec.  
228.405(b). However, this language is added to the definitions to make 
clear that the schedule analysis and fatigue mitigation requirements of 
this proposed rule supplement, but do not replace, the specific 
limitations, and any schedule that violated other provisions of this 
proposed rule (for example, exceeded 12 hours total time on duty, or 
did not allow for at least 8 hours off duty, or 10 hours off duty after 
12 consecutive hours) could not be deemed ``approved'' by FRA and 
subject to the less stringent requirements applicable to Type 1 
assignments.
2. Limitations on Number of Consecutive Days
    In the Working Group, both the railroads and labor contended that 
FAST and/or FAID analysis would suggest that an employee could work 
beyond the limitations in this proposed rule without adversely 
affecting safety. One requirement about which this was specifically 
argued was the proposed limitation on the number of consecutive days 
that an employee would be permitted to work under this regulation, 
which would differ depending on the time of day that the employee 
works. See proposed Sec.  228.405(a)(3) and (a)(4). In the Working 
Group, the railroads and labor unions presented fatigue analyses for 
theoretical schedules that would have an employee initiating on-duty 
periods for numbers of days that exceeded those permitted by the 
proposed rule. The railroads and labor also indicated that the current 
agreements or practices on their properties allow for such schedules.
    Research shows that work on successive days without a full day off 
exponentially increases the accident risk as the number of days worked 
increases. For instance, after working four consecutive day shifts, 
there is a 17-percent increase in risk, and after working four 
consecutive night shifts, there is a 36-percent increase in risk.\20\ 
FRA research on train crew work schedules and sleep patterns \21\ has 
shown that train crews average a 10.25-hour day (work period, limbo 
time, and commute time) and get 6.88 hours of primary sleep per day. A 
follow-up study on passenger train crews found that workers on split 
shift assignments average a 13.75-hour day (work period, interim 
release, and commute time) and get 6.18 hours of primary sleep. 
Laboratory studies of restricted sleep \22\ show a 5-percent decrease 
in performance after 7 days with 7 hours of sleep per day and a 15-
percent decrease after 7 days with 5 hours of sleep per day. These 
studies are consistent with the previously noted increase in accident 
risk with the number of days worked.
---------------------------------------------------------------------------

    \20\ Folkard, S. and Akerstedt, T., Trends in the Risk of 
Accidents and Injuries and Their Implications for Models of Fatigue 
and Performance, Aviat. Space Environ. Med. (2004).
    \21\ Gertler, J., and DiFiore, A. (2009). Work schedules and 
sleep patterns of railroad train and engine service workers (Report 
No. DOT/FRA/ORD-09/22). Washington, DC: U.S. Department of 
Transportation
    \22\ Balkin, T., Thorne, D., Sing, H. (2000). Effects of sleep 
schedules on commercial driver performance (Report No. DOT-MC-00-
133). Washington, DC: U.S. Department of Transportation.

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

[[Page 16214]]

    Therefore, FRA reasoned that, even if an employee were working a 
schedule for which the employee's effectiveness score did not exceed 
the fatigue threshold, even when the schedule was worked for more 
consecutive days than the regulation would permit, at some point the 
employee would have to use some of the time between duty tours (time 
that a model would otherwise view as available for rest) to attend to 
other personal activities. This time spent in activities other than 
rest would decrease the time actually available to the employee for 
rest, and, therefore, the employee's actual effectiveness score. This 
circumstance would be particularly problematic for schedules featuring 
long duty tours, such as the maximum 12 hours on duty, including an 
interim release, for a total time of 16 hours in the duty tour, 
followed by the minimum of 8 consecutive hours off duty before 
reporting for the next duty tour. From this perspective, FRA believes 
that, although the available research does not identify the exact 
number of consecutive days allowed under this proposed rule as the 
maximum that can be safely worked, the limitations that FRA has 
established are reasonable. FRA seeks comment on this.
    FRA is aware that the requirements of the proposed rule may have an 
impact on the collective bargaining agreements affecting the railroads 
and employees covered by proposed subpart F. For example, there may be 
some agreements that would allow employees to work a greater number of 
consecutive days than would be allowed by this proposal. FRA is also 
mindful that the law provides an option that enables the regulated 
community to seek waivers to implement pilot projects in accordance 
with the requirements of 49 U.S.C. 21108(a) and encourages members of 
the regulated community to consider this option. Pursuant to 49 CFR 
part 211, subpart C, the Railroad Safety Board will consider whether or 
not granting such waivers would be in the public interest and 
consistent with railroad safety. Where warranted, and upon the 
necessary showing, FRA may grant waivers of the requirements of this 
proposed rule, including requirements concerning the maximum number of 
consecutive days an employee may work, to allow for the establishment 
of pilot projects to demonstrate the possible benefits of implementing 
alternatives to the strict application of the requirements contained in 
this proposed rule.
3. Precision of Fatigue Models and Threshold
    There was considerable discussion in the Working Group of the 
precision embodied in the FAST model or the FAID model, and the 
appropriateness of requiring compliance with a specific fatigue 
threshold. The railroads argued that models such as the FAST model and 
the FAID model are not scientifically precise enough to warrant the 
adoption of a specific threshold, and that different types of 
operations could safely function at different levels of fatigue. For 
example, the railroads contended that yard switching activities could 
safely operate at a different level of fatigue than passenger 
operations or through-freight activities.
    The railroads conceded, however, that the regulatory structure 
contained in this proposal would not be problematic for passenger 
operations. The railroads' concern was that, in the future, someone 
might argue for adoption of the same regulatory structure for freight 
operations and, were that to occur, schedules might be prohibited from 
use that should, in fact, be acceptable from a fatigue perspective.
    In FRA's view, a specific threshold is desirable because it 
provides regulatory certainty as to what railroads must do to be 
considered in compliance with the regulations. FRA has based its 
regulation on the best available fatigue science, including the FAST 
model and the FAID model, which are the only currently validated 
models, and the thresholds established by those models. FRA has left 
open the possibility that other models may be validated, and other 
thresholds established in the future, which could be used for the 
purpose of compliance with this regulation.\23\
---------------------------------------------------------------------------

    \23\ See Raslear, supra note 6.
---------------------------------------------------------------------------

    Inasmuch as FRA has determined that use of these models and their 
established thresholds adequately protect safety, that the regulations 
proposed in this rule would not present significant implementation 
problems for passenger service, and that a specific threshold would 
provide the desired regulatory certainty, FRA believes that it is 
appropriate to include in the regulations a requirement for a specific 
threshold, based on the understanding that the regulatory requirements 
will be satisfied based on a ``70/20 threshold'' using the FAST model 
(meaning that the fatigue threshold is exceeded if an employee's 
effectiveness score is less than 70 for 20 percent or more of the 
employee's time on duty), or a ``60/20 threshold'' using FAID (meaning 
that the fatigue threshold is exceeded if an employee's effectiveness 
score is more than 60 for 20 percent or more of the employee's time on 
duty).\24\
---------------------------------------------------------------------------

    \24\ See Hursh, et al., supra note 8, and Tabak and Raslear, 
supra note 13.
---------------------------------------------------------------------------

    In proposing an hours of service regulation with a specific 
threshold for train employees in passenger service, FRA is not drawing 
any conclusion about the suitability of such a regulatory scheme for 
freight operations. There may be substantial differences between 
freight railroad operating and crew schedules and passenger operating 
and crew schedules. Passenger railroads have analyzed the results of 
applying the proposed regulations to their work schedules and concluded 
that this proposal is feasible. Freight railroads have not undertaken 
such analysis, nor would they be required to under the proposed 
regulations, except to the extent that employees of freight railroads 
may work in passenger service.
4. Freight Railroad Employees Acting as Pilots for Commuter or 
Intercity Passenger Trains
    The Working Group also discussed the application of the 
requirements of proposed subpart F to train employees of freight 
railroads who occasionally provide pilot service to a commuter railroad 
or intercity passenger railroad. FRA's locomotive engineer 
certification regulations require a pilot to assist an engineer who may 
not be sufficiently familiar with the territory over which he or she is 
called to operate. See 49 CFR 240.231(b). The railroads indicated that 
a request for a pilot may come without advance notice, so that it would 
be difficult to comply with the substantive hours of service 
limitations and recordkeeping requirements of this regulation, and even 
more difficult to adhere to the schedule analysis requirements, for an 
employee who did not otherwise regularly engage in commuter or 
intercity rail passenger transportation.
    The Working Group also cited the safety benefits of having a pilot 
available on a route when necessary, and the potential risk if commuter 
or intercity passenger railroads were to become less likely to request 
a pilot, or freight railroads less likely to be able to make a pilot 
available when requested, because of concerns about the proposed 
requirements of this regulation. FRA acknowledges these benefits. 
Therefore, although a pilot is performing covered service under the HSL 
on the assignment on which the pilot service is provided, FRA will not 
consider a train employee employed by a freight railroad

[[Page 16215]]

who serves as a pilot on a train operated by a commuter railroad or 
intercity passenger railroad to be a train employee who is engaged in 
commuter or intercity rail passenger transportation, provided that the 
employee does not serve as a pilot more than four times in a calendar 
month, or engage in any other commuter or intercity rail passenger 
transportation.

V. Section-by-Section Analysis

Subpart A--General

228.1 Scope
    FRA proposes to revise this section by adding paragraph (c), which 
indicates that the regulation prescribes substantive hours of service 
requirements for train employees engaged in commuter or intercity rail 
passenger transportation.
228.5 Definitions
    FRA proposes to amend this section to add definitions of 
``Associate Administrator for Railroad Safety/Chief Safety Officer'' 
and ``FRA'' as used in this part. Associate Administrator for Railroad 
Safety/Chief Safety Officer became the title of FRA's Associate 
Administrator for Safety because Section 101 of the RSIA refers to 
FRA's ``Associate Administrator for Railroad Safety'' and emphasizes 
that the Associate Administrator is the Chief Safety Officer.
    FRA also proposes to add definitions of the terms ``Type 1 
assignment'' and ``Type 2 assignment.'' As was previously discussed in 
Section IV above, these definitions were the subject of significant 
discussion in the Task Force and the Working Group, particularly 
because of the implications of a particular schedule's status as a Type 
1 assignment or a Type 2 assignment for determining the application of 
the limitations on consecutive days in proposed Sec.  228.405 and the 
requirements for analysis of schedules and submission of schedules to 
FRA for approval in proposed Sec.  228.407. FRA believes the proposed 
definitions accommodate the concerns expressed in the Working Group 
regarding schedules outside the time parameters for a Type 1 assignment 
that may still present very little risk of an effectiveness score that 
would exceed the fatigue threshold and compromise safety. At the same 
time, however, the proposed definitions recognize the increased risk of 
fatigue associated with working late night and very early morning 
hours, which justifies the application of the more stringent 
requirements.
    FRA has added these terms to this general definitions section for 
Part 228, rather than the definitions specific to subpart F, because 
these terms are also used in the recordkeeping provisions of subpart B, 
as amended by this proposed rule.

Subpart B--Records and Reporting

228.11 Hours of Duty Records
    FRA proposes to revise paragraph (c) of this section to indicate 
that paragraphs (13) through (15) of paragraph (b) do not apply to the 
records of train employees providing commuter or intercity passenger 
rail transportation. These paragraphs relate to substantive provisions 
of the HSL for train employees, added by the RSIA. As was described 
above, these requirements were not extended to train employees on 
commuter and intercity passenger railroads. The requirements referred 
to in paragraphs (13) through (15) of paragraph (b) are not required by 
this proposed rule and therefore would continue not to apply to train 
employees providing commuter and intercity rail passenger 
transportation.
    Paragraph (c) of this section, as published in FRA's hours of 
service recordkeeping regulation on May 27, 2009 (74 FR 25330, 25348-
49), provided that paragraphs (13) through (16) of paragraph (b) did 
not apply to the records of train employees providing commuter or 
intercity passenger rail transportation. However, paragraph (16) 
requires that a record include the number of consecutive days on which 
a period of time on duty was initiated. Because this proposed rule 
would limit the number of consecutive days on which train employees 
providing commuter or intercity passenger rail transportation may 
initiate an on-duty period, it is appropriate to require that an 
employee's hours of service record include the number of consecutive 
days on which that employee has initiated an on-duty period, so that it 
is possible for both the railroad and FRA to determine compliance with 
the limitation established by this proposed rule. Thus, this paragraph 
is revised to include the requirement in paragraph (16) of paragraph 
(b), while continuing to exclude the requirements of paragraphs (13) 
through (15) of paragraph (b), which relate to provisions that do not 
apply to train employees providing commuter or intercity passenger rail 
transportation.
    FRA recognizes that most railroads and employees subject to this 
subpart are currently keeping their hours of service records manually, 
and it may be burdensome for an employee to be required to keep track 
of his or her consecutive days worked and mark it on the hours of 
service record each day. However, the railroad will have to have some 
way to track this information. Therefore, if a railroad wishes to keep 
this information centrally for all of its employees, this will be 
considered sufficient to satisfy the requirement that the hours of 
service record include the number of consecutive days that an employee 
has worked, provided this information is made available to FRA upon 
request.
228.19 Monthly Reports of Excess Service
    FRA proposes to revise paragraph (c) of this section to require 
railroads to report to FRA instances of excess service related to new 
substantive limitations contained in Sec.  228.405(a)(3) and (a)(4) of 
this proposed rule. Those paragraphs propose to limit the number of 
consecutive days that train employees engaged in commuter or intercity 
passenger railroad transportation may initiate an on-duty period, and 
to require a minimum amount of time off duty after an employee has 
reached the maximum number of consecutive days, before the employee may 
return to duty, with different requirements depending on the time of 
day of the employee's assignment.

Subpart F--Substantive Hours of Service Requirements for Train 
Employees Engaged in Commuter or Intercity Rail Passenger 
Transportation

228.401 Applicability
    This proposed section would establish the specific applicability of 
proposed new subpart F, which differs from that of existing subparts in 
this part. The requirements of subpart F apply to railroads and their 
officers and agents, only with respect to their train employees engaged 
in commuter or intercity rail passenger transportation. For purposes of 
subpart F, FRA interprets commuter or intercity passenger 
transportation to include rail passenger transportation by tourist, 
scenic, excursion, and historic railroads (referred to collectively for 
the purposes of this discussion as tourist railroads). FRA believes 
that Congress intended that these regulations apply to all railroads 
providing rail passenger transportation, and that Congress did not 
intend to apply the new statutory provision at 49 U.S.C. 21103 to 
tourist railroads because tourist railroad operations are more similar 
to the other passenger service than they are to freight service. The 
provisions of the HSL that apply to train employees on freight 
railroads are not as appropriate, therefore, for train employees on 
tourist

[[Page 16216]]

railroads. For fatigue purposes, the most salient difference between 
passenger and freight operations is that most passenger operations tend 
to be scheduled, whereas freight operations tend to be unscheduled. 
Virtually all passenger crew assignments have scheduled on-duty and 
off-duty times, and the vast majority of passenger crew assignments are 
to report in the morning and go off duty in the late afternoon or early 
evening, thereby reducing the likelihood of fatigue. Like classic 
intercity and commuter rail operations, tourist rail operations tend to 
be scheduled.
228.403 Nonapplication, Exemption, and Definitions
    This proposed section would establish the situations in which this 
subpart shall not apply, provide circumstances in which a railroad may 
seek an exemption from the provisions of this subpart, and provide key 
definitions specifically applicable to this subpart.
    Proposed paragraph (a) of this section would establish the 
situations in which this subpart shall not apply, such as an act of 
God. This proposed paragraph is substantively identical to the 
nonapplication provision of the HSL (49 U.S.C. 21102(a)), which was 
unchanged by the RSIA. The provisions of this proposed rule would 
therefore not apply to train employees engaged in commuter or intercity 
passenger service in the same situations as the statutory hours of 
service requirements would not apply to other train employees, or to 
signal employees or dispatching service employees.
    Proposed paragraph (b) of this section would provide the 
possibility of an exemption from the requirements of this subpart for a 
railroad having not more than a total of 15 train employees, signal 
employees, and dispatching service employees. This proposed paragraph 
is substantively identical to the exemption provision of the HSL at 49 
U.S.C. 21102(b), which was unchanged by the RSIA. It would provide the 
same opportunity for a railroad to seek an exemption from the 
requirements of this subpart as a railroad would have to seek an 
exemption from the statutory requirements applicable to its other 
employees.
    Proposed paragraph (c) of this section defines several key terms 
specifically applicable to this subpart. It defines ``commuter or 
intercity rail passenger transportation'' as the terms ``commuter rail 
passenger transportation'' and ``intercity rail passenger 
transportation'' have been defined at 49 U.S.C. 24102. This definition 
is consistent with FRA's authority to issue this proposed rule, as 
Section 108(e) of the RSIA defined these terms as they are defined at 
49 U.S.C. 24102.
    This proposed paragraph would also define ``train employee who is 
engaged in commuter or intercity rail passenger transportation'' to 
establish that the term includes any train employee performing that 
function, regardless of whether the train employee is employed by a 
commuter or intercity passenger railroad, or another type of railroad 
or other entity. The term also includes all train employees employed by 
a commuter or intercity passenger railroad. The term excludes a train 
employee employed by another type of railroad or entity who is engaged 
in work train service.
228.405 Limitations on Duty Hours of Train Employees Engaged in 
Commuter or Intercity Rail Passenger Transportation
    This proposed section provides the substantive limitations on the 
duty hours of train employees subject to this subpart.
    Paragraphs (a)(1) and (a)(2) of this proposed section establish the 
maximum time on duty in a duty tour and the required minimum time off 
duty in a 24-hour period. These limitations are substantively identical 
to the statutory requirements of 49 U.S.C. 21103(a)(1) and (a)(2) as 
they existed prior to July 16, 2009, the effective date of the 
amendments to that section arising from the RSIA, which requirements 
currently still apply to train employees engaged in commuter or 
intercity rail passenger transportation. FRA proposes to retain these 
limitations because there is limited evidence of fatigue-related 
accidents in operations that would be subject to this proposed rule, 
and analysis of the schedules provided by the railroads subject to this 
proposed rule, that are worked by their employees subject to this rule, 
indicate that many of them are not likely to be at risk for a level of 
fatigue at which safety may be compromised. Thus, there does not appear 
at this time to be sufficient justification to change these 
limitations. Should further research or other evidence or events 
suggest that different limitations are necessary, FRA will reconsider 
this issue.
    Proposed paragraphs (a)(3) and (a)(4) of Sec.  228.405 would 
establish limitations on the number of days that an employee may work, 
with proposed paragraph (a)(3) providing the limitation for an employee 
who works one or more Type 2 assignments, and proposed paragraph (a)(4) 
providing the limitation for an employee who works only Type 1 
assignments.
    Proposed paragraph (a)(3) provides that an employee who initiates 
an on-duty period on 6 consecutive calendar days including one or more 
Type 2 assignments must have at least 24 consecutive hours off duty at 
the employee's home terminal. However, if the on-duty period initiated 
on the sixth consecutive calendar day does not end at the employee's 
home terminal, the employee may initiate an on-duty period or deadhead 
on a seventh consecutive calendar day in order to return to the home 
terminal, and must then have at least 24 consecutive hours off duty at 
the home terminal before returning to duty.
    Proposed paragraph (a)(4) provides that after an employee has 
initiated on-duty periods in a period of 14 consecutive calendar days 
and has not had a total of at least two calendar days within that 14-
day period in which the employee has not initiated an on-duty period, 
the employee must have two consecutive calendar days off duty at the 
home terminal. However, if the on-duty period initiated on the 14th 
calendar day does not end at the employee's home terminal, and the 
employee has not had at least two calendar days within the 14-day 
period in which the employee has not initiated an on-duty period, the 
employee may initiate an on-duty period or deadhead on a 15th calendar 
day in order to return to the home terminal, and must then have at 
least two consecutive calendar days off duty at the employee's home 
terminal. However, a new 14-day period begins when the employee 
accumulates a total of two calendar days in the period of 14 days in 
which the employee has not initiated an on-duty period.
    If an employee works only Type 1 assignments for a period of more 
than 6 but fewer than 14 calendar days on which the employee has 
initiated an on-duty period, and then works a Type 2 assignment--for 
example, a Type 2 assignment on the eighth consecutive day after having 
worked Type 1 assignments on the previous 7 days--the ``Type 2'' 
limitation will apply at that time, and the employee must have 24 hours 
off duty following the Type 2 assignment (or work or deadhead to the 
home terminal the next day and then have 24 hours off duty at the home 
terminal) and then begin a new period of consecutive days upon 
returning to duty.
    Although many train employees engaged in commuter or intercity 
passenger service regularly end their duty tour at their home terminal, 
FRA

[[Page 16217]]

recognizes that this will not be the case for all employees and all 
railroads subject to this subpart. The language of these paragraphs 
allows the railroad the flexibility to get the employee back to his or 
her home terminal, while at the same time ensuring that the employee 
will observe the required rest period at the home terminal.
    As was discussed in Section IV above, members of the Working Group 
expressed concern about these requirements, because the schedule 
analysis done by the Task Force had indicated a number of situations in 
which employees who worked consecutive days beyond the limitations 
proposed by FRA would not exceed the fatigue threshold. However, as 
also stated above, FRA still believed the limitations were appropriate, 
based on accepted fatigue science indicating that work on successive 
days increases the risk of accidents as the number of successive days 
of work increases, and because of the likelihood that an employee 
working an indefinite number of consecutive days will eventually attend 
to other activities during time that a fatigue model would consider 
available for rest.
    FRA accommodated the concerns of Working Group members in revising 
the definition of ``Type 2 assignments'' as discussed above. In 
addition, the ``consecutive day'' limitation of paragraph (a)(4) that 
applies to employees working only Type 1 assignments allows employees 
to work two consecutive hold downs (allowing the employee to exercise 
seniority to select and work the full cycle of two 6-day or 7-day 
schedules for which the incumbent employee is on vacation or otherwise 
unavailable), before being required to have two consecutive days off. 
This flexibility eliminates some potential conflict with existing 
operations and agreements.
    At the same time, an employee who does not work the maximum number 
of consecutive days will be able to restart the count toward 14 
consecutive days after having accumulated two calendar days in which 
the employee does not initiate an on-duty period. This language 
eliminates a concern that the railroad and the employee would have to 
look back and find two days off at any point in time to be in 
compliance.
    Paragraph (b) of this proposed section describes how various 
periods of time are counted for the purpose of determining total time 
on duty. This paragraph is substantively identical to the provisions 
for determining time on duty in 49 U.S.C. 21103(b), which were 
unchanged by the RSIA. Therefore, these provisions are currently in 
effect for train employees of commuter and intercity passenger 
railroads, as well as for other train employees. FRA recognizes that 
any change in these provisions would require significant changes for 
the industry in operations and recordkeeping. FRA does not believe that 
there is any reason to change these provisions at the present time.
    Paragraph (c) of this proposed section allows a train employee to 
work additional hours in emergency situations. This paragraph is 
substantively identical to the ``emergency'' provision of 49 U.S.C. 
21103(c), which was unchanged by the RSIA.
228.407 Analysis of Work Schedules; Submissions; FRA Review and 
Approval of Submissions; Fatigue Mitigation Plans
    This proposed section would require a railroad subject to this 
subpart to analyze the schedules that the railroad intends its 
employees subject to this subpart to work, to identify those schedules 
at risk for fatigue exceeding the fatigue threshold, and to report to 
FRA in certain circumstances.
    Proposed paragraph (a) would require the railroads to analyze one 
work cycle, of each schedule, using a valid biomathematical model of 
performance and fatigue, to determine whether the fatigue risk posed by 
the schedule exceeds the fatigue threshold. A work cycle is the cycle 
within which the schedule repeats. For example, if a schedule called 
for an employee to work Monday through Friday from 8 a.m. until 4 p.m., 
with Saturday and Sunday off, and then report again Monday at 8 a.m., 
the work cycle is the Monday to Sunday schedule that then repeats. 
Other schedules on some railroads may operate over a two-week period, 
with certain days off within the two-week cycle.
    For the purpose of this section, FRA considers a Type 1 assignment 
to present an acceptable level of risk for fatigue that does not exceed 
the fatigue threshold.
    Based on this analysis, the railroad is required to identify those 
schedules at risk for resulting in a level of fatigue that would exceed 
the fatigue threshold. To the extent possible, the railroad is required 
to apply fatigue mitigation tools identified in the railroad's fatigue 
mitigation plan (including, but not limited to, those tools described 
in Section IV above) to mitigate the fatigue risk in those schedules to 
a level that does not exceed the fatigue threshold. If the railroad is 
unable to mitigate the risk for fatigue presented by a particular 
schedule to the point that it no longer exceeds the fatigue threshold, 
and the schedule cannot be modified to reduce the fatigue risk 
sufficiently, then the railroad must make a determination that the 
fatigue risk cannot be sufficiently mitigated to bring it within the 
fatigue threshold, but that the schedule is operationally necessary. 
Any schedule that has been identified as having a risk for fatigue that 
exceeds the fatigue threshold must be reported to FRA within 180 days 
of the effective date of the final rule in this rulemaking.
    Paragraph (b) of this proposed section provides further details as 
to the requirements and procedures for submission of schedules and 
other information to FRA for review within 180 days of the effective 
date of the final rule.
    A railroad must submit to FRA those schedules for which it has 
mitigated the fatigue risk so that it no longer exceeds the fatigue 
threshold, along with the fatigue mitigation tools it applied to each 
particular schedule to reduce the fatigue risk.
    A railroad must also submit to FRA those schedules for which it is 
unable to mitigate the fatigue risk to a level that does not exceed the 
fatigue threshold, but which the railroad has determined are 
operationally necessary. A railroad must also submit the fatigue 
mitigation tools that the railroad applied to each schedule, if any, to 
reduce its fatigue risk even if it could not be reduced to the point 
that it no longer exceeded the fatigue threshold. Finally, a railroad 
must submit the basis for its determination that each schedule is 
operationally necessary.
    If a railroad performs the required analysis of its schedules and 
determines that none of its schedules presents a risk for a level of 
fatigue that exceeds the fatigue threshold and requires transmittal to 
FRA, the railroad must submit a declaration that it has performed the 
required analysis and determined that none of its schedules exceed the 
fatigue threshold, and therefore none are required to be submitted.
    FRA will review the submissions, and will notify the railroad if 
the agency takes any exception to the submitted information within 120 
days of FRA's receipt of the submission. FRA expects that it will work 
with a railroad to address any concerns with the schedules, mitigation 
tools, or determinations of operational necessity, and does not intend 
to dictate how a schedule must be modified. FRA seeks comments on the 
process for resolving concerns about a railroad's submissions.

[[Page 16218]]

    FRA will also audit each railroad's work schedules and mitigation 
tools every two years to ensure compliance with the requirements of 
this proposed section.
    Paragraph (c) of this proposed section provides a railroad's 
options with regard to the use of a biomathematical model of 
performance and fatigue. Proposed paragraph (c)(1) provides that a 
railroad may submit to FRA's Associate Administrator for Railroad 
Safety/Chief Safety Officer for approval evidence of the scientific 
validation of any biomathematical model of performance and fatigue that 
it wishes to use for the analysis required by this proposed section. 
Decisions of the Associate Administrator for Railroad Safety/Chief 
Safety Officer regarding the validity of a model are subject to review 
as provided by 49 CFR 211.55. If the Associate Administrator for 
Railroad Safety/Chief Safety Officer approves a new model as having 
been validated and calibrated, so that it can be used for schedule 
analysis in compliance with this regulation, FRA will publish notice of 
this determination in the Federal Register. Proposed paragraph (c)(2) 
provides that a railroad may use a model that has already been 
approved, and further provides that FRA has approved the use of both 
the FAST model and the FAID model, both of which are discussed in 
Section II above, for the analysis required by this proposed section.
    Paragraph (d) of this proposed section requires a railroad that 
changes its schedules to analyze certain of those schedules and submit 
them to FRA for approval.
    Paragraph (d)(1)(i) requires a railroad to analyze and submit for 
approval any schedule that has been changed such that it would differ 
from the parameters of any schedule that had been previously analyzed 
and approved. In other words, a railroad would not have to submit a 
revised schedule to FRA if it is the same as any of its schedules that 
had been previously approved, or is a schedule that would not have had 
to be analyzed or submitted if it were an original schedule.
    Specifically, if a schedule is revised so that it is now the same 
as another schedule that has previously been submitted to and approved 
by FRA, that schedule would not have to be analyzed or submitted. A 
railroad would also not have to analyze or submit any schedule that, as 
revised, is wholly within the hours of 4 a.m. to 8 p.m. (a Type 1 
schedule, which FRA considers per se to present an acceptable level of 
risk for fatigue that would not exceed the fatigue threshold). A 
railroad would also not be required to submit a schedule that, as 
revised, is now the same as another schedule that includes time outside 
the 4 a.m. to 8 p.m. hours, but that the railroad analyzed and found 
not to exceed the fatigue threshold, and that does not include any time 
between midnight and 4 a.m. (because such a schedule would qualify for 
treatment as a Type 1 assignment).
    However, any revised schedule that includes time outside the hours 
of 4 a.m. to 8 p.m. that is not either the same as a schedule 
previously approved, or the same as a schedule previously analyzed and 
found not to exceed the fatigue threshold and not including any time 
between midnight and 4 a.m., would have to be analyzed by the railroad. 
Further, a railroad must submit to FRA any revised schedules that, when 
analyzed, are found to exceed the fatigue threshold, along with the 
fatigue mitigation tools that the railroad has applied to mitigate the 
fatigue risk in those schedules to a level that does not exceed the 
fatigue threshold. In addition, if the railroad analyzes a revised 
schedule and finds that it cannot be mitigated so that the risk for 
fatigue does not exceed the fatigue threshold, but is operationally 
necessary, the railroad must submit the schedule, along with any 
fatigue mitigation tools that have been applied, and the railroad's 
determination of the operational necessity of the schedule and the 
basis for that determination.
    Paragraph (d)(1)(ii) of this proposed section requires a railroad 
to analyze any revised schedule that has been altered to an extent that 
employees working the schedule may be at risk of experiencing a level 
of fatigue that exceeds the fatigue threshold. This means that the 
railroad must analyze a schedule that previously was not at risk of 
exceeding the fatigue threshold but that may be at risk as revised. If 
such a revised schedule is in fact found to exceed the fatigue 
threshold, the fatigue risk must be mitigated or the schedule 
determined to be operationally necessary, just as in the initial 
analysis required by paragraph (a) of this proposed section.
    In addition, any schedules that were previously found to exceed the 
fatigue threshold and either mitigated or found to be operationally 
necessary would also have to be analyzed when those schedules are 
changed, and submitted to FRA if the revised schedule exceeds the 
fatigue threshold. Even though the schedule was already known to 
present a fatigue risk, the level of risk presented by the schedule as 
revised could increase or decrease, and different mitigations may be 
warranted, or the determination of operational necessity could be 
different, depending on the level of fatigue risk, as that 
determination is based on balancing the necessity with the risk. 
Therefore, FRA review of these revised schedules, along with the 
relevant fatigue mitigation tools or determinations of operational 
necessity, is required.
    Paragraph (d)(2) of this proposed section requires that revised 
schedules and supporting documentation that are required to be 
submitted to FRA must be submitted as provided by paragraph (b) of this 
proposed section, as soon as practicable prior to the use of the new 
schedule. Some railroads expressed the concern that work schedule 
changes are sometimes not finalized until shortly before the schedules 
are to begin operation, and the FRA approval process could delay work 
schedule implementation and published timetable changes. However, the 
regulatory language does not require FRA approval before a new schedule 
may begin operation, just that it be submitted as soon as practicable 
prior to use. In addition, given the limited nature of the schedules 
that require FRA review, FRA would expect some degree of advance 
planning for those kinds of schedules, so that the fatigue implications 
of the revised schedules can be fully understood by the railroad, as 
well as by FRA.
    Some APTA members also expressed concern about compliance with 
these requirements for special trains that they are sometimes called 
upon to operate. Many special events require advance notification and 
planning. For those events of which the railroad does not have advance 
notice, FRA will address those situations and work with the railroad on 
a case-by-case basis.
    Paragraph (e) of this proposed section requires a railroad to have 
and comply with a written fatigue mitigation plan, to mitigate the 
potential for fatigue in its work schedules, identified through the 
analysis required by paragraphs (a) and (d) of this proposed section. 
The railroad is required to review the plan every two years and update 
it as necessary.
    Paragraph (f) of this proposed section requires a railroad to 
consult in good faith with its directly affected employees and any 
labor organization representing them, on the analysis of work 
schedules, selection of mitigation tools, and any submissions to FRA 
required by this proposed section. If the railroad and its affected 
employees or their labor organization cannot reach consensus on any of 
those items, the employees or labor organizations may file a statement 
with FRA's Associate

[[Page 16219]]

Administrator for Railroad Safety/Chief Safety Officer, explaining 
their views on any issue on which consensus was not reached. Any such 
statements will be considered by FRA during the review and approval of 
any submissions required by this proposed section.
228.409 Requirements for Railroad-Provided Employee Sleeping Quarters 
During Interim Releases and Other Periods Available for Rest Within a 
Duty Tour
    This proposed section provides that any rest facilities provided by 
a railroad for the use of its employees during periods of interim 
release or other periods during a duty tour must be ``clean, safe, and 
sanitary,'' and give the employee ``an opportunity for rest free from 
the interruptions caused by noise under the control of the'' railroad. 
This is consistent with statutory language for sleeping quarters at 49 
U.S.C. 21106, including sleeping quarters provided for the use of 
employees during the required minimum off-duty period.
    Paragraph (b) of this proposed section provides that if the 
facilities are proposed as a fatigue mitigation tool, for the purpose 
of mitigating fatigue identified by the schedule analysis required by 
Sec.  228.407, then those facilities are subject to the requirement in 
Sec.  228.407(f), that the railroad consult with affected employees and 
labor organizations.
228.411 Training
    This proposed section would establish training requirements for 
this proposed rule. FRA believes this provision is especially important 
because the schedule analysis and fatigue mitigation required by other 
sections of this proposed rule have little meaning if employees are not 
aware of the level of fatigue predicted to occur as a result of their 
work schedule, and the mitigation tools available to the employee to 
reduce the fatigue risk. For example, suppose that a railroad submits a 
schedule to FRA for approval that exceeds the fatigue threshold, but as 
a mitigation tool, the railroad indicates that it will provide 
facilities and allow employees working that schedule to take a nap 
during a two-hour break between scheduled trains, and that the 
insertion of a nap at that point decreases the fatigue level so that 
the threshold is no longer exceeded. If the employee working that 
schedule does not realize that his or her work schedule exceeds the 
fatigue threshold (which is a level of fatigue at which, according to 
the model, safety may be compromised), or is unaware of facilities and 
policies allowing the employee to take a nap, or is unaware of the 
beneficial effect of the nap on the predicted fatigue level, then the 
employee will not take advantage of the mitigation tool purported to 
reduce the fatigue risk in that schedule, and the risk will not 
actually be reduced. Employees who are not currently working 
assignments that exceed the fatigue threshold will also benefit from 
the training required by this section, as it may raise awareness of, 
and provide strategies for addressing, other circumstances in their 
lives that contribute to their actual level of fatigue that are not 
accounted for in work schedule analysis. The training requirements in 
this proposed rule were the subject of extensive discussion within the 
working group, and members of the working group recommended the content 
of training, as well as the proposed training interval.
    Paragraph (a) of this proposed section would require railroads to 
provide training to employees subject to this subpart and their 
immediate supervisors. Paragraph (b) of this proposed section lists the 
minimum subjects that must be covered in training, based on the most 
current available scientific and medical research and literature. 
Although the subjects to be covered are quite broad, the specific 
information to be covered may change over time based on scientific 
developments or changes in a railroad's operations that may make 
additional topics appropriate. The format of the required training is 
not prescribed, as FRA specifically intends to allow each railroad the 
flexibility to provide training at a level of formality and complexity 
that is appropriate to its operations and the needs of its employees. 
Options include, but are not limited to, classroom training, computer-
based training, review of written materials, and oral job briefings. 
Railroads may also combine this training with other training provided 
to their employees.
    Paragraph (c) of this proposed section requires that training be 
provided to affected employees as soon as practicable, and to new 
employees within 90 days after they first work a schedule for the 
railroad that is subject to analysis under this subpart. Paragraph (d) 
of this proposed section would require refresher training at least 
every three years, and when significant changes are made to the 
railroad's fatigue mitigation plan or to the available fatigue 
mitigation tools applied to an employee's assignment or to assignments 
at the location where the employee works. Railroads also have the 
flexibility to select an appropriate method of providing refresher 
training, which will likely be less detailed, and could also be less 
formal, than the initial training provided to an employee, depending on 
the extent of any new information to be presented.
    Paragraph (e) of this proposed section would require a railroad to 
keep records of each employee provided training and to retain these 
records for three years.
228.413 Compliance Date
    This proposed section provides that 180 days from the effective 
date of the final rule, railroads subject to this subpart will comply 
with this subpart with respect to their train employees who are engaged 
in commuter or intercity rail passenger transportation, and shall be 
exempt from complying with the hours of service requirements currently 
in effect for them, which are the requirements of 49 U.S.C. 21103 as it 
was in effect the day before the enactment of the RSIA.

 VI. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures under not only Executive Orders 12866 and 13563 
but also DOT policies and procedures. The economic impacts of the 
proposed rule are well under $100 million annually relative to the no-
action alternative. FRA has prepared and placed in the docket a 
regulatory impact analysis (RIA) addressing the economic impact of this 
proposed rule over a 20-year period. This section summarizes the 
impacts of the rule.
    This proposed regulation is intended to promote safe railroad 
operations by limiting the hours of service for passenger railroad 
train employees, and ensuring that they receive adequate opportunities 
for rest in the course of performing their duties. The main goal of 
this rulemaking is to identify and reduce fatigue for passenger train 
employees.
    FRA is proposing to establish substantive hours of service 
regulations, including maximum on-duty periods, minimum off-duty 
periods, and other limitations, for train employees of passenger 
railroads. The proposed regulations would require that passenger 
railroads analyze and mitigate the risks for fatigue in the schedules 
worked by their train employees, and that the railroads submit to FRA 
the relevant schedules and fatigue mitigation plans for approval. The 
RSIA established a limit of 276 hours each

[[Page 16220]]

calendar month for train employees on service performed for a railroad, 
and on time spent in or waiting for deadhead transportation to a point 
of final release; increased the quantity of the statutory minimum off-
duty period after being on duty for 12 hours in broken service from 8 
hours of rest to 10 hours of rest; prohibited communication with train 
or signal employees during certain minimum statutory rest periods; and 
established mandatory time off duty for train employees of 48 hours 
after initiating an on-duty period on 6 consecutive days, or 72 hours 
after initiating an on-duty period on 7 consecutive days. In absence of 
a final rule effective before October 16, 2011, passenger railroad 
train employees would be subject to the more stringent freight hours of 
service laws described above. Until then, passenger railroads will 
continue to operate under the hours of service laws in effect prior to 
the enactment of the RSIA. Thus, issuance of requirements FRA is 
proposing would relieve railroads covered by this rule from becoming 
covered by the more strict statutory hours of service laws governing 
freight railroads and their train crews.
    The RSIA mandated that in issuing regulations FRA ``consider 
scientific and medical research related to fatigue and fatigue 
abatement, railroad scheduling and operating practices that improve 
safety and reduce employee fatigue, a railroad's use of new or novel 
technology intended to reduce or eliminate human error, the variations 
in freight and passenger railroad scheduling practices and operating 
conditions, the variations in duties and operating conditions for 
employees, a railroad's required or voluntary use of fatigue management 
plans * * *, and any other relevant factors.'' 49 U.S.C. 21109(c). FRA 
relied on its RSAC to make recommendations with respect to this 
rulemaking and this proposed rule reflects the recommendations of this 
committee.
    FRA has analyzed the economic impacts of this proposed rule against 
a ``no regulatory action'' baseline that reflects what would happen in 
absence of this rulemaking (i.e., the freight hours of service laws are 
applied to passenger railroads) as well as a ``status quo'' baseline 
that reflects present conditions (i.e., primarily, the statutory hours 
of service provisions (specifically, old section 21103 and, 
secondarily, the applicable hours of service recordkeeping and 
reporting regulations) that have and will continue to apply to 
passenger railroads until either they become subject to either the 
freight hours of service laws on October 16, 2011 or an FRA-issued 
hours of service rule prior to that). With respect to the ``no 
regulatory action'' baseline, the FRA proposal represents a 
substantially more cost-effective alternative for achieving the goal of 
identifying and mitigating unacceptable fatigue risk levels and thus 
ensuring the safety of passenger train operations. Over the 20-year 
period analyzed, the undiscounted costs associated with the ``no 
regulatory action'' alternative total $75.5 million compared to $2.1 
million for the FRA proposal. Similarly, when discounted at 7 percent, 
the costs associated with the ``no regulatory action'' alternative 
total $59.0 million compared to $1.4 million for the FRA proposal and 
when discounted at 3 percent, the costs associated with the ``no 
regulatory action'' alternative total $66.8 million compared to $1.7 
million for the FRA proposal. The quantified accident reduction 
benefits achieved under both the ``no regulatory action'' baseline and 
the proposed rule total $1.4 million (undiscounted), $0.7 million (PV, 
7 percent), and $1.0 million (PV, 3 percent). FRA does not expect that 
the overall number of casualties and property damages prevented will 
differ under either scenario. Implementation of the proposed rule would 
yield these benefits at lower cost.
    With respect to the ``status-quo'' baseline, the FRA proposal would 
impose costs that are higher than the quantified safety benefits. Costs 
compared to the ``status quo'' baseline total $2.1 million 
(undiscounted), $1.4 million (PV, 7 percent), and $1.7 million (PV, 3 
percent). Quantified benefits compared to the ``status quo'' baseline 
total $1.4 million (undiscounted), $.7 million (PV, 7 percent), and 
$1.0 million (PV, 3 percent). However, there are additional benefits 
that have not been quantified, but should be considered when comparing 
the overall costs and benefits. For instance, safety and health 
benefits will accrue from the transfer of knowledge to employees, their 
families, friends and others with whom they may share the fatigue 
knowledge that they acquire from the required fatigue awareness 
training programs. This fatigue awareness will result in more optimal 
decisions regarding rest and sleep, leading to less fatigue and 
improved safety outside of passenger train operations during the course 
of daily activities that may include the operation of motor vehicles or 
other heavy machinery. This fatigue awareness will also result in 
proper identification and treatment, if necessary, of fatigue symptoms. 
Separately, accident avoidance will result in fewer unplanned delays to 
passengers and freight commodities impacted by passenger train accident 
and incidents that result in blocking one or more tracks for prolonged 
periods. These costs can be very substantial given the need to 
investigate accidents and often clear wreckage. Finally, there is the 
non-quantified benefit of ensuring that passenger railroads do not 
unknowingly require train employees to work schedules with unacceptable 
high-fatigue risk levels. It is not unreasonable to expect that the 
unquantified benefits will raise the benefits to a level quite 
comparable to the costs.
    FRA believes that the unquantified benefits coupled with the 
quantified safety benefits that would result from its proposal compare 
very well with the costs associated with meeting the intent of the 
statutory mandate.
    The table below presents the costs associated with both the ``no 
regulatory action'' alternative and the FRA proposal.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  No-action alternative                                       NPRM
                 Cost description                  -----------------------------------------------------------------------------------------------------
                                                      Undiscounted        PV@7%            PV@3%         Undiscounted        PV@7%            PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20% New Hires)....      $31,237,549      $26,299,825      $28,705,081                0                0                0
New Engineer Training, Refresher (20% New Hires)..        4,599,050        2,278,431        3,327,802                0                0                0
New Conductor Training, Initial (20% New Hires)...       30,847,974       25,942,971       28,330,908                0                0                0
New Conductor Training, Refresher (20% New Hires).        8,636,745        4,278,146     6,249,071.15                0                0                0

[[Page 16221]]

 
Work Schedule Analysis (No-Reg Action)/Initial              189,723          177,312          184,198      ($126,482 +      ($118,208 +      ($122,798 +
 Analysis of Work Schedules + Follow-up Analysis                                                           $240,316) =      $122,175) =      $175,894) =
 and Fatigue Mitigation Plan Review (NPRM)........                                                            $366,799         $240,382         $298,692
Biomathematical Model of Fatigue Software.........                0                0                0         $417,500         $268,723         $337,240
Use of Rest Facilities............................                0                0                0          $30,988          $28,961          $30,086
Fatigue Training..................................                0                0                0       $1,329,673         $841,748       $1,065,188
                                                   -----------------------------------------------------------------------------------------------------
    TOTAL (rounded)...............................      $75,511,041      $58,976,685      $66,797,059       $2,144,960       $1,379,815       $1,731,206
--------------------------------------------------------------------------------------------------------------------------------------------------------

    FRA estimates that the recordkeeping and reporting costs per 
employee record under the no-action alternative and FRA proposal will 
be practically the same. Under the ``no regulatory action'' 
alternative, costs for recordkeeping and reporting employee hours of 
service are reflected in the New Engineer and New Conductor training 
requirements and the Work Schedule Analysis burden. Under the FRA 
proposal, the costs associated with the recordkeeping and reporting 
requirements for the substantive hours of service changes are reflected 
in Fatigue Training as well as the Initial and Follow-up Analysis and 
Fatigue Mitigation Plan Review.
    The estimated benefits of the rule relative to the ``status quo'' 
baseline, based on the above calculations of potentially prevented 
accident damages, injuries, and fatalities, over a 20-year period of 
analysis are presented below.

                Intercity Passenger, Commuter, Tourist and Excursion Railroads (All Track Types)
----------------------------------------------------------------------------------------------------------------
                                                                  VSL = $6 M       VSL = $6 M       VSL = $6 M
                 Accident reduction benefits                     Undiscounted    Discounted PV@   Discounted PV@
                                                                   benefits            7%               3%
----------------------------------------------------------------------------------------------------------------
Property Damage..............................................         $829,366         $439,316         $616,943
Injuries.....................................................          120,547           63,854           89,672
Fatalities...................................................          429,088          227,288          319,187
                                                              --------------------------------------------------
    TOTAL (rounded)..........................................        1,379,001          730,458        1,025,803
----------------------------------------------------------------------------------------------------------------

    FRA does not expect that the overall number of casualties prevented 
will differ under the FRA proposed rule or the ``no regulatory action'' 
baseline in which the freight hours of service law would apply to 
passenger train crews.
    FRA requests comments on all aspects of this analysis.

B. Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10, 
1999)), 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, 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. Where a regulation has federalism implications and preempts 
State law, the agency seeks to consult with State and local officials 
in the process of developing the regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. This proposed rule would 
not have substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply. Nevertheless, State and local officials were involved in 
developing this rule. The RSAC, which was used to assist in the 
development of this rule, has as permanent members, the AASHTO and the 
ASRSM.
    However, this proposed rule could have preemptive effect by 
operation of law under a provision of the former Federal Railroad 
Safety Act of 1970 (FRSA) (49 U.S.C. 20106 (Section 20106)) and the 
HSL. The FRSA provides that States may not adopt or continue in effect 
any law, regulation, or order related to railroad safety or security 
that covers the subject matter of a regulation prescribed or order 
issued by the Secretary of Transportation (with respect to railroad 
safety matters) or the Secretary of Homeland Security (with respect to 
railroad security matters), except when the State law, regulation, or 
order qualifies under the ``essentially local safety or security 
hazard'' exception to Section 20106. Moreover, the HSL have been 
interpreted by the Supreme Court as totally preempting the field of the 
hours of labor of railroad employees. Erie RR. Co. v. New York, 233 
U.S. 671 (1914).

[[Page 16222]]

C. Executive Order 13175

    FRA analyzed this proposed rule in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule does 
not significantly or uniquely affect tribes and does not impose 
substantial and direct compliance costs on Indian tribal governments, 
the funding and consultation requirements of Executive Order 13175 do 
not apply, and a tribal summary impact statement is not required.

D. Regulatory Flexibility Act and Executive Order 13272

    To ensure that the potential impact of this rulemaking on small 
entities is properly considered, FRA developed this proposed rule in 
accordance with Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') and DOT's policies and procedures to 
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant economic 
impact on a substantial number of small entities.
    As discussed in earlier sections of this preamble, FRA is proposing 
to establish hours of service regulations, including maximum on-duty 
periods, minimum off-duty periods, and other limitations, for train 
employees providing commuter and intercity rail passenger 
transportation. The proposed regulations would require that commuter 
and intercity passenger railroads analyze and mitigate the risks for 
fatigue in the schedules worked by their train employees, and that the 
railroads submit to FRA for its approval the relevant schedules and 
fatigue mitigation plans. This rule would also apply to train employees 
of tourist, scenic, excursion, and historic railroads (tourist and 
excursion railroads) as well. Issuance of these regulations would 
relieve railroads covered by this rule from being covered by the more 
strict hours of service laws governing freight train crews.
    This proposed regulation is authorized by Section 108(e) of the 
RSIA (49 U.S.C. 21109(b)) and is intended to promote safe railroad 
operations by limiting the hours of service for passenger railroad 
train employees and ensuring that they receive adequate opportunities 
for rest in the course of performing their duties. The main goal of 
this rulemaking is to identify and reduce fatigue for the employees who 
will be covered by the final rule. As described in Section II of this 
preamble, FRA has based the proposed regulation on scientific research 
related to fatigue and fatigue abatement, as applied to railroad 
scheduling practices and operating conditions for train employees of 
commuter and intercity passenger railroads. FRA is also proposing 
conforming changes to existing hours of service recordkeeping 
requirements.
    Federal laws governing railroad employees' hours of service date 
back to 1907 with the enactment of the Hours of Service Act. Railroads 
have been subject to the provisions of this Act or successor Federal 
hours of service laws since it was first enacted. Currently, railroads 
are subject to the version of 49 U.S.C. 21103 that was in effect the 
day before the enactment of the RSIA, with respect to their train 
employees who are engaged in intercity or commuter rail transportation, 
including tourist and excursion rail operations.
    FRA is certifying that this proposed rule will result in ``no 
significant economic impact on a substantial number of small 
entities.'' The following section explains the reasons for this 
certification.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only 
those small entities that can reasonably be expected to be directly 
affected by the provisions of this rule. In this case, the ``universe'' 
comprises Class III freight railroads that provide train crews for 
commuter operations and tourist and excursion railroads.
    ``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section 
601(3) defines a ``small entity'' as having the same meaning as ``small 
business concern'' under Section 3 of the Small Business Act. This 
includes any small business concern that is independently owned and 
operated, and is not dominant in its field of operation. Section 
601(4), likewise includes within the definition of ``small entities'' 
not-for-profit enterprises that are independently owned and operated, 
and are not dominant in their fields of operation. Additionally, 
Section 601(5) defines as ``small entities'' governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be and still classify as a ``small 
entity'' is 1,500 employees for ``Line-Haul Operating'' railroads, and 
500 employees for ``Short-Line Operating'' railroads.\25\
---------------------------------------------------------------------------

    \25\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR part 121. See also NAICS 
Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy that formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad.\26\ Currently, the revenue requirement is $20 million or 
less in annual operating revenue, adjusted annually for inflation 
($32,113,449 for 2008). This threshold is based on the Surface 
Transportation Board's (STB) threshold of a Class III railroad carrier, 
which is adjusted by applying the railroad revenue deflator 
adjustment.\27\ FRA is using the STB's threshold in its definition of 
``small entities'' for this rule.
---------------------------------------------------------------------------

    \26\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
    \27\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    The proposed regulation would apply to railroads with respect to 
their train employees engaged in commuter or intercity rail passenger 
transportation as well as train employees of tourist and excursion 
railroads. Intercity passenger railroads include Amtrak and the Alaska 
Railroad, both of which employ their own train crews and neither of 
which is considered a small entity. Amtrak is a Class I railroad, and 
the Alaska Railroad is a Class II railroad. Amtrak is owned by the U.S. 
Government, and the Alaska Railroad is owned by the State of Alaska. 
Neither the U.S. nor the State of Alaska has a population of less than 
50,000.
    All commuter railroads in operation in the U.S. serve major 
metropolitan areas with populations higher than 50,000. Although some 
commuter railroads contract with Amtrak or other entities to operate 
some or all of their trains, most employ their own train crews.
    Train employees of only two small entities that operate trains 
under contract for commuter railroads would be covered by this rule, 
and they are not expected to be impacted significantly. Both of the 
entities are Class III freight railroads with commuter rail train crew 
schedules that would be considered

[[Page 16223]]

Type 1 assignments as defined by this proposed rule and thus be 
determined not to exceed the fatigue threshold, thus exempting the 
railroads from analyzing those work schedules. Their current train crew 
assignments would be allowed to continue without change. Although this 
proposal would impose some additional recordkeeping burden on these 
entities for tracking days of consecutive service, the increase would 
be nominal and proportionate to the extent of their passenger train 
service, which is quite limited. These train crews would also be 
subject to initial and refresher training no less frequently than every 
three years. This training would cover the following topics: (1) 
Physiological and human factors that affect fatigue, as well as 
strategies to reduce or mitigate the effects of fatigue; (2) 
opportunities for identification, diagnosis, and treatment of any 
medical condition that may affect alertness or fatigue, including sleep 
disorders; (3) alertness strategies, such as policies on napping, to 
address acute drowsiness and fatigue while an employee is on duty; (4) 
opportunities to obtain restful sleep at lodging facilities, including 
employee sleeping quarters provided by the railroad; and (5) the 
effects of abrupt changes in rest cycles for employees. There is 
flexibility with respect to how the training is delivered (e.g., 
computer-based training, job briefings, pamphlets, as well as in class 
instruction). Such training could be accomplished in about one hour 
initially and 15 minutes triennially per train employee. Small freight 
railroads operating commuter trains could recoup any costs associated 
with this rulemaking from the commuter authorities with which they 
contract.
    The requirements of this rule that would apply to tourist and 
excursion railroads are those contained in subpart F, Substantive Hours 
of Service Requirements for Train Employees Engaged in Commuter or 
Intercity Rail Passenger Transportation, as well as the conforming 
changes to the recordkeeping requirements in subpart B. FRA regulates 
approximately 140 tourist and excursion railroads nationwide. 
Approximately 130 of these railroads have fewer than 15 covered 
employees and thus qualify for exemption from the limitations that 
would be imposed under proposed Sec.  228.403. As noted earlier, this 
particular exemption is substantively identical to the exemption 
provision of the HSL at 49 U.S.C. 21102(b), which was unchanged by the 
RSIA. Proposed Sec.  228.403 would provide the same opportunity for a 
railroad to seek an exemption from the requirements of this subpart as 
a railroad would have to seek an exemption from the statutory 
requirements applicable to its other employees. Thus these 130 tourist 
and excursion railroads would not be impacted any differently by this 
rulemaking than by the HSL.
    About 10 tourist and excursion railroads have more than 15 covered 
employees, yet by virtue of their train service schedules would 
generally have only Type 1 assignments, which have been determined not 
to exceed the fatigue threshold, thus exempting the railroads from 
analyzing or mitigating Type 2 work schedules. Scheduled assignments 
that include ``Dinner Train'' operations may be the only ones impacted 
by the requirement for analysis or mitigation. Information available 
regarding train schedules for these railroads indicates that trains do 
not operate for more than 12 hours on any day with virtually all train 
service starting at 10 a.m. or afterward. Dinner trains operate until 
no later than 10 p.m. and are not in operation every day of the week. 
They generally operate once a week and in no case more than three days 
a week. Thus the impact of crew assignment limitations would be 
minimal. Impacted railroads may conduct the analysis in house or 
contract it out for a nominal fee. Given the similarity of the 
assignments, the tourist and excursion railroads impacted may decide to 
address the assignments that include ``Dinner Trains'' jointly, either 
under the auspices of the Tourist Railway Association, Inc. or 
otherwise. The consecutive-day limitations will likely not impact these 
railroads since they already accommodate time off for their train 
crews. Given the very limited train service and the need to accommodate 
time off now, crew schedules should allow for the proposed time off 
following consecutive days of service requirement to be met. Since 
``Dinner Trains'' are not included in most assignments, the majority of 
current scheduled train crew assignments would run no later than 6:30 
p.m. and thus be considered Type 1 assignments and be unaffected, 
assuming the consecutive-day limitations do not affect them. Although 
the modifications to existing recordkeeping requirements proposed would 
impose some additional net burden on these entities, the increase would 
be nominal and proportionate to the size of their passenger service, 
which is quite limited. The training requirements discussed above would 
also apply to the approximately 10 tourist and excursion railroads and 
vary in proportion to the size of each operation. Note, however, that 
the training cost associated with this proposed rule is lower than that 
associated with complying with the training requirements for the 
freight hours of service laws.
    The limitations on service proposed afford significantly more 
flexibility to passenger train employees than those imposed by the RSIA 
on freight train employees. Given that, in absence of a final rule 
effective by October 16, 2011, passenger train employees would be 
subject to the more stringent freight hours of service laws (49 U.S.C. 
21103), issuance of this proposed rule could only create a cost savings 
for small entities impacted. In addition, the more stringent 
requirements proposed for schedules of employees who operate trains 
during the late night hours, in which the fatigue risk is greatest, 
would probably not apply to any tourist and excursion railroads because 
they do not operate during late night hours.
    No shippers, contractors, or small governmental jurisdictions would 
be directly impacted by this proposal.
    If FRA receives a specific request for a public hearing, one will 
be scheduled, and FRA will publish a supplemental notice in the Federal 
Register to inform interested parties of the date, time, and location 
of any such hearing.
2. Certification
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
FRA Administrator certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
FRA requests comments on both this analysis and this certification.

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the current and proposed information 
collection requirements, and the estimated time to fulfill each 
requirement are as follows:

[[Page 16224]]



----------------------------------------------------------------------------------------------------------------
   49 CFR Section or statutory         Respondent          Total annual       Average time per     Total annual
            provision                   universe            responses             response         burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of Duty Records     768 railroads/       27,429,750 records.  2 min./5 min./10           2,856,125
 (Current Requirement).            signal contractors.                       min..
228.17--Dispatchers Record of     150 Dispatch         200,750 records....  3 hours............          602,250
 Train Movements (Current          Offices.
 Requirement).
228.19--Monthly Reports of        300 railroads......  2,670 reports......  2 hours............            5,340
 Excess Service (Current
 Requirement But Now includes
 Limbo time and consecutive days
 on duty Proposed New/Revised
 Requirement).
228.103--Construction of          50 railroads.......  1 petition.........  16 hours...........               16
 Employee Sleeping Quarters--
 Petitions to allow construction
 near work areas (Current
 Requirement).
228.203--Program Components       9 railroads........  5 modifications....  120 hours..........              600
 (Current Requirements)--
 Electronic Recordkeeping--
 Modifications for Daylight
 Savings Time.
    --System Security/Individual  9 railroads........  1 program w/         720 hours..........              720
     User Identification/Program                        security/etc..
     Logic Capabilities/Search
     Capabilities.
228.205--Access to Electronic     768 railroads/       100 electronic       30 minutes.........               50
 Records--(Current Requirement)--  signal contractors.  records access
 System Access Procedures for                           procedures.
 Inspectors.
228.207--Training in Use of       768 railroads/       47,000 tr.           1 hour.............           47,000
 Electronic System--(Current       signal contractors.  employees.
 Requirements)--Initial Training.
    --Refresher Training........  768 railroads/       2,200 tr. employees  1 hour.............            2,200
                                   signal contractors.
49 U.S.C. 21102(b)--The Federal   10 railroads.......  2 petitions........  10 hours...........               20
 hours of service laws--
 Petitions for Exemption from
 Laws (Current Requirement).
228.403--Exemption requests from  28 railroads.......  5 exemption          8 hours............               40
 passenger/commuter railroads--                         requests.
 (Proposed/New Requirements).
    --Initial exemption requests  140 railroads......  130 exempt requests  2 hours............              260
     from tourist/excursion
     railroads.
    --Renewal exemption requests  140 railroads......  130 renewal          30 minutes.........         65 hours
     from tourist/excursion                             exemption requests.
     railroads.
228.407--Analysis of Work         168 railroads......  28 work schedule     80 hours...........            2,240
 Schedules Submissions (Proposed/                       analyses.
 New Requirements).
    --Reports to FRA of Work      168 railroads......  20 reports.........  2 hours............               40
     Schedules that Exceed
     Fatigue Threshold.
    --Fatigue Mitigation Plans    168 railroads......  15 plans...........  4 hours............               60
     Submitted to FRA.
    --Submission of Work          168 railroads......  15 work schedules..  4 hours............               60
     Schedules Using Validation
     Model At/Exceeding
     Threshold that can be
     mitigated by tools.
    --Submission of Work          168 railroads......  5 work schedules...  4 hours............               20
     Schedules Using Validation
     Model At/Exceeding
     Threshold that cannot be
     mitigated by tools.
    --RR Determinations of        168 railroads......  20 decisions.......  2 hours............               40
     necessary schedules.
    --RR Declaration that no      168 railroads......  10 written           1 hours............               10
     work schedule needs to be                          declarations.
     submitted to FRA for
     exceeding fatigue threshold.
    --Submission of follow-up     168 railroads......  28 analyses........  4 hours............              112
     analysis by RR due to work
     schedule change.
    --Updated fatigue mitigation  168 railroads......  28 plans...........  4 hours............              112
     plans.
    --RR consultations w/         168 railroads......  40 consults........  4 hours............              160
     employees.
    --Filed statements w/FRA by   RR Employees/        5 statements.......  2 hours............               10
     employees and employee        Employee
     organizations unable to       Organizations.
     reach consensus w/RR on
     work schedules or
     mitigation tools/RR
     submissions to FRA.
228.411--Training Programs        168 railroads......  29 programs........  20 hours...........              580
 (Proposed/New Requirements).
    --Employee Initial Training.  168 railroads......  10,000 tr.           1 hour.............           10,000
                                                        employees.
    --Initial Training--New       168 railroads......  150 trained          1 hour.............              150
     Employees.                                         employees.
    --Triennial Refresher         168 railroads......  10,150 tr.           15 minutes.........            2,538
     Training of Employees.                             employees.
    --Records of Training.......  168 railroads......  10,150 records.....  5 minutes..........              846
Appendix D: Guidance on Fatigue   168 railroads......  4 plans............  15 hours...........               60
 Management Plans--(Proposed/New
 Requirement).
----------------------------------------------------------------------------------------------------------------


[[Page 16225]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone 
at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following 
address: <a href="/cdn-cgi/l/email-protection#396b565b5c4b4d177b4b565e5857795d564d175e564f"><span class="__cf_email__" data-cfemail="da88b5b8bfa8aef498a8b5bdbbb49abeb5aef4bdb5ac">[email protected]</span></a>; <a href="/cdn-cgi/l/email-protection#feb597939c9b8c9287d0aa9191909bbe9a918ad0999188"><span class="__cf_email__" data-cfemail="266d4f4b4443544a5f0872494948436642495208414950">[email protected]</span></a>.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which 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 OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Unfunded Mandates Reform Act

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), 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 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $140,800,000 or more 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. The proposed 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.

G. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires that Federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. This proposed rule will not have a significant impact on 
the human environment.

H. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477-78).

List of Subjects in 49 CFR Part 228

    Administrative practice and procedures, Buildings and facilities, 
Hazardous materials transportation, Noise control, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, FRA proposes to amend 
part 228 of chapter II, subtitle B, title 49 of the Code of Federal 
Regulations as follows:

PART 228--[AMENDED]

    1. The authority citation for part 228 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. 
A, Public Law 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303, 
21304, 21311; 28 U.S.C. 2461, note; 49 U.S.C. 103; and 49 CFR 1.49.

    2. Section 228.1 is amended by removing the word ``and'' at the end 
of paragraph (a), removing the period and adding ``; and'' at the end 
of paragraph (b), and adding paragraph (c) to read as follows:


Sec.  228.1  Scope.

* * * * *
    (c) Prescribes substantive hours of service requirements for train 
employees engaged in commuter or intercity rail passenger 
transportation.
    3. Section 228.5 is amended by adding the following definitions in 
alphabetical order to read as follows:


Sec.  228.5  Definitions.

* * * * *
    Associate Administrator for Railroad Safety/Chief Safety Officer 
means the Associate Administrator for Railroad Safety/Chief Safety 
Officer, Office of Railroad Safety, Federal Railroad Administration, 
1200 New Jersey Ave., SE., Washington, DC 20590, or any person to whom 
he or she has delegated authority in the matter concerned.
* * * * *
    FRA means the Federal Railroad Administration.
* * * * *
    Type 1 assignment means an assignment to be worked by a train 
employee who is engaged in commuter or intercity rail passenger 
transportation that requires the employee to report for duty no earlier 
than 4 a.m. on a calendar day and be released from duty no later than 8 
p.m. on the same calendar day, and that complies with the provisions of 
Sec.  228.405. For the purposes of this subpart, FRA considers a Type 1 
assignment to present an acceptable level of risk for fatigue that does 
not exceed the defined fatigue threshold under a scientifically valid, 
biomathematical model of human performance and fatigue specified by FRA 
at Sec.  228.407(c)(1) or approved by FRA at Sec.  228.407(c)(2) .
    Type 2 assignment means an assignment to be worked by a train 
employee who is engaged in commuter or intercity rail passenger 
transportation that requires the employee to be on duty for any period 
of time between 8:01 p.m. on a calendar day and 3:59 a.m. on the next 
calendar day, or that otherwise fails to qualify as a Type 1 
assignment.

[[Page 16226]]

A Type 2 assignment may be considered a Type 1 assignment if:
    (1) It does not exceed the defined fatigue threshold under a 
scientifically valid biomathematical model of human performance and 
fatigue specified by FRA at Sec.  228.407(c)(2) or approved by FRA at 
Sec.  228.407(c)(1);
    (2) It complies with the provisions of Sec.  228.405; and
    (3) It does not require the employee to be on duty for any period 
of time between midnight and 4 a.m.
    4. Section 228.11 is amended by revising paragraph (c) to read as 
follows:


Sec.  228.11  Hours of duty records.

* * * * *
    (c) Exceptions to requirements for train employees. Paragraphs 
(b)(13) through (15) of this section do not apply to the hours of duty 
records of train employees providing commuter rail passenger 
transportation or intercity rail passenger transportation.
* * * * *
    5. Section 228.19 is amended by adding paragraphs (c)(5) through 
(10) to read as follows:


Sec.  228.19  Monthly reports of excess service.

* * * * *
    (c) * * *
    (5) A train employee initiates an on-duty period on more than 6 
consecutive calendar days including one or more Type 2 assignments, 
when the on-duty period on the sixth consecutive day ended at the 
employee's home terminal.
    (6) A train employee initiates an on-duty period on more than 7 
consecutive days including one or more Type 2 assignments.
    (7) A train employee returns to duty after initiating an on-duty 
period on 6 or 7 consecutive days including one or more Type 2 
assignments, without having had 24 consecutive hours off duty at the 
employee's home terminal.
    (8) A train employee initiates an on-duty period on 14 or more 
calendar days including only Type 1 assignments without having had at 
least two calendar days within the 14-day period in which the employee 
has not initiated an on-duty period, if the on-duty period on the 
fourteenth consecutive day ended at the employee's home terminal.
    (9) A train employee initiates an on-duty period on more than 15 
consecutive days including only Type 1 assignments.
    (10) A train employee returns to duty after initiating an on-duty 
period on 14 or 15 consecutive calendar days including only Type 1 
assignments, without 2 consecutive calendar days off duty at the 
employee's home terminal.
* * * * *
    6. Part 228 is amended by adding Subpart F to read as follows:
Subpart F--Substantive Hours of Service Requirements for Train 
Employees Engaged in Commuter or Intercity Rail Passenger 
Transportation
Sec.
228.401 Applicability.
228.403 Nonapplication, exemption, and definitions.
228.405 Limitations on duty hours of train employees engaged in 
commuter or intercity rail passenger transportation.
228.407 Analysis of work schedules; submissions; FRA review and 
approval of submissions; fatigue mitigation plans.
228.409 Requirements for railroad-provided employee sleeping 
quarters during interim releases and other periods available for 
rest within a duty tour.
228.411 Training.
228.413 Compliance date.

Subpart F--Substantive Hours of Service Requirements for Train 
Employees Engaged in Commuter or Intercity Rail Passenger 
Transportation


Sec.  228.401  Applicability.

    The requirements of this subpart apply to railroads and their 
officers and agents, with respect to their train employees who are 
engaged in commuter or intercity rail passenger transportation, 
including train employees who are engaged in tourist, scenic, historic, 
or excursion rail passenger transportation.


Sec.  228.403  Nonapplication, exemption, and definitions.

    (a) General. This subpart does not apply to a situation involving 
any of the following:
    (1) A casualty;
    (2) An unavoidable accident;
    (3) An act of God; or
    (4) A delay resulting from a cause unknown and unforeseeable to a 
railroad or its officer or agent in charge of the employee when the 
employee left a terminal.
    (b) Exemption. The Administrator may exempt a railroad having not 
more than a total of 15 train employees, signal employees, and 
dispatching service employees from the limitations imposed by this 
subpart on the railroad's train employees who are engaged in commuter 
or intercity rail passenger transportation. The Administrator may allow 
the exemption from this subpart after a full hearing, for good cause 
shown, and on deciding that the exemption is in the public interest and 
will not affect safety adversely. The exemption shall be for a specific 
period of time and is subject to review at least annually. The 
exemption may not authorize a railroad to require or allow its train 
employees to be on duty more than a total of 16 hours in a 24-hour 
period.
    (c) Definitions. In this subpart--
    Commuter or intercity rail passenger transportation has the meaning 
assigned by section 24102 of title 49, United States Code, to the terms 
``commuter rail passenger transportation'' or ``intercity rail 
passenger transportation.''
    Train employee who is engaged in commuter or intercity rail 
passenger transportation includes a train employee who is engaged in 
commuter or intercity rail passenger transportation regardless of the 
nature of the entity by whom the employee is employed and any other 
train employee who is employed by a commuter railroad or an intercity 
passenger railroad. The term excludes a train employee of another type 
of railroad who is engaged in work train service even though that work 
train service might be related to providing commuter or intercity rail 
passenger transportation.


Sec.  228.405  Limitations on duty hours of train employees engaged in 
commuter or intercity rail passenger transportation.

    (a) General. Except as provided in paragraph (c) of this section, a 
railroad and its officers and agents may not require or allow a train 
employee engaged in commuter or intercity rail passenger transportation 
to remain or go on duty--
    (1) Unless that employee has had at least 8 consecutive hours off 
duty during the prior 24 hours; or
    (2) After that employee has been on duty for 12 consecutive hours, 
until that employee has had at least 10 consecutive hours off duty; or
    (3) After that employee has initiated an on-duty period each day 
for six consecutive calendar days including one or more Type 2 
assignments, unless that employee has had at least 24 consecutive hours 
off duty at the employee's home terminal during which time the employee 
is unavailable for any service for any railroad; except that an 
employee may either deadhead to the point of final release at the 
employee's home terminal on a seventh consecutive day or initiate an 
on-duty period on a seventh consecutive calendar day in order to return 
to the employee's home terminal, and after arrival at the employee's 
home terminal the employee must have had at least 24 consecutive hours 
off duty at the employee's home terminal during which time the employee 
is unavailable for any service

[[Page 16227]]

for any railroad before being allowed or required to remain or go on 
duty; or
    (4) After that employee has initiated on-duty periods including 
only Type 1 assignments in a period of 14 consecutive calendar days, 
and has not had at least a total of two calendar days in that 14-day 
period in which the employee has not initiated an on-duty period, until 
that employee has had at least two consecutive calendar days off duty 
at the employee's home terminal during which time the employee is 
unavailable for any service for any railroad; except that an employee 
may either deadhead to the point of final release at the employee's 
home terminal on a fifteenth consecutive day or initiate an on-duty 
period on a fifteenth consecutive calendar day in order to return to 
the employee's home terminal, and after arrival at the employee's home 
terminal the employee must have had at least two consecutive calendar 
days at the employee's home terminal during which the employee does not 
initiate an on-duty period, and during which time the employee is 
unavailable for any service for any railroad, before being allowed or 
required to remain or go on duty. For the purposes of this paragraph 
(a)(4), a new 14-day period begins each time the employee has 
accumulated a total of two calendar days in which the employee has not 
initiated an on-duty period.
    (b) Determining time on duty. In determining under paragraph (a) of 
this section the time that a train employee subject to this subpart is 
on or off duty, the following rules apply:
    (1) Time on duty begins when the employee reports for duty and ends 
when the employee is finally released from duty;
    (2) Time the employee is engaged in or connected with the movement 
of a train is time on duty;
    (3) Time spent performing any other service for the railroad during 
a 24-hour period in which the employee is engaged in or connected with 
the movement of a train is time on duty;
    (4) Time spent in deadhead transportation to a duty assignment is 
time on duty, but time spent in deadhead transportation from a duty 
assignment to the place of final release is neither time on duty nor 
time off duty;
    (5) An interim period available for rest at a place other than a 
designated terminal is time on duty;
    (6) An interim period available for less than four hours rest at a 
designated terminal is time on duty; and
    (7) An interim period available for at least four hours rest at a 
place with suitable facilities for food and lodging is not time on duty 
when the employee is prevented from getting to the employee's 
designated terminal by any of the following:
    (i) A casualty;
    (ii) A track obstruction;
    (iii) An act of God; or
    (iv) A derailment or major equipment failure resulting from a cause 
that was unknown and unforeseeable to the railroad or its officer or 
agent in charge of that employee when that employee left the designated 
terminal.
    (c) Emergencies. A train employee subject to this subpart who is on 
the crew of a wreck or relief train may be allowed to remain or go on 
duty for not more than four additional hours in any period of 24 
consecutive hours when an emergency exists and the work of the crew is 
related to the emergency. In this paragraph, an emergency ends when the 
track is cleared and the railroad line is open for traffic.


Sec.  228.407  Analysis of work schedules; submissions; FRA review and 
approval of submissions; fatigue mitigation plans.

    (a) Analysis of work schedules. Each railroad subject to this 
subpart must perform an analysis of one cycle of the work schedules 
(the period within which the work schedule repeats) of its train 
employees engaged in commuter or intercity rail passenger 
transportation and identify those work schedules intended to be 
assigned to its train employees, that, if worked by such a train 
employee, put the train employee at risk for a level of fatigue at 
which safety may be compromised. A level of fatigue at which safety may 
be compromised, hereafter called ``the fatigue threshold,'' shall be 
determined by procedures that use a scientifically valid, 
biomathematical model of human performance and fatigue that has been 
approved by the Associate Administrator for Railroad Safety/Chief 
Safety Officer pursuant to paragraph (c)(1) of this section, or 
previously accepted pursuant to paragraph (c)(2) of this section. Each 
work schedule that exceeds the fatigue threshold must be--
    (1) Reported to the Associate Administrator for Railroad Safety/
Chief Safety Officer as provided in paragraph (b) of this section, no 
later than the date that is 180 days after the effective date of the 
final rule;
    (2) Either--
    (i) Mitigated by action in compliance with the railroad's fatigue 
mitigation plan that has been approved by the Associate Administrator 
for Railroad Safety/Chief Safety Officer as specified in paragraph (b) 
of this section, no later than the date that is 180 days after the 
effective date of the final rule; or
    (ii) Supported by a determination that has been approved by the 
Associate Administrator for Railroad Safety/Chief Safety Officer as 
specified in paragraph (b) of this section, that the schedule is 
operationally necessary, and that the fatigue risk cannot be 
sufficiently mitigated by the use of fatigue mitigation tools to reduce 
the risk for fatigue to a level within the fatigue threshold, no later 
than the date that is 180 days after the effective date of the final 
rule; or
    (iii) Both, no later than the date that is 180 days after the 
effective date of the final rule; and
    (3) Approved by FRA for use in accordance with paragraph (b) of 
this section.
    (b) Submissions of certain work schedules and any fatigue 
mitigation plans and determinations of operational necessity or 
declarations; FRA review and approval. (1) No later than the date that 
is 180 days after the effective date of the final rule, the railroad 
shall submit for approval to the Associate Administrator for Railroad 
Safety/Chief Safety Officer the work schedules described in paragraphs 
(b)(1)(i) and (ii) of this section. The railroad shall identify and 
group the work schedules as follows:
    (i) Work schedules that the railroad has found, using a validated 
model (as specified in paragraph (c)(1) of this section or approved by 
FRA in accordance with paragraph (c)(2) of this section) to present a 
risk for a level of fatigue that is at or greater than the fatigue 
threshold, but that the railroad has determined can be mitigated by the 
use of fatigue mitigation tools so as to present a risk for a level of 
fatigue that is less than the fatigue threshold. The fatigue mitigation 
tools that will be used to mitigate the fatigue risk presented by the 
schedule must also be submitted.
    (ii) Work schedules that the railroad has found, using a validated 
model (as specified in paragraph (c)(1) of this section or approved by 
FRA in accordance with paragraph (c)(2) of this section), to present a 
risk for a level of fatigue that is at or greater than the fatigue 
threshold, but that the railroad has determined cannot be mitigated so 
as to present a risk for a level of fatigue that is less than the 
fatigue threshold by the use of fatigue mitigation tools, and that the 
railroad has determined are operationally necessary. The basis for the 
determination must also be submitted.
    (2) If a railroad performs the analysis of its schedules required 
by paragraph (a) of this section, and determines that none of them 
presents a risk for fatigue that requires it to be submitted to the

[[Page 16228]]

Associate Administrator for Railroad Safety/Chief Safety Officer 
pursuant to this paragraph, that railroad shall, no later than the date 
that is 180 days after the effective date of the final rule, submit to 
the Associate Administrator for Railroad Safety/Chief Safety Officer a 
written declaration, signed by an officer of the railroad, that the 
railroad has performed the required analysis and determined that it has 
no schedule that is required to be submitted.
    (3) FRA will review submitted work schedules, fatigue mitigation 
tools, and determinations of operational necessity. If FRA identifies 
any exceptions to the submitted information, the agency will notify the 
railroad within 120 days of receipt of the railroad's submission.
    (4) FRA will audit railroad work schedules and fatigue mitigation 
tools every two years to ensure compliance with this section.
    (c) Submission of models for FRA approval; validated models already 
accepted by FRA. (1) If a railroad subject to this subpart wishes to 
use a model of human performance and fatigue, not previously approved, 
for the purpose of making part or all of the analysis required by 
paragraph (a) or (d) of this section, the railroad shall submit the 
model and evidence in support of its scientific validation, for the 
approval of the Associate Administrator for Railroad Safety/Chief 
Safety Officer. Decisions of the Associate Administrator for Railroad 
Safety/Chief Safety Officer regarding the validity of a model are 
subject to review under Sec.  211.55 of this chapter; or
    (2) A railroad may use a model that is already accepted by FRA. FRA 
has approved the Fatigue Avoidance Scheduling Tool\TM\ (FAST) issued on 
July 15, 2009, by Fatigue Science, Inc., and Fatigue Audit 
InterDyne\TM\ (FAID) version 2, issued in September 2007 by 
InterDynamics Pty Ltd. (Australian Company Number (ACN) 057 037 635) as 
scientifically valid, biomathematical models of human performance and 
fatigue for the purpose of making the analysis required by paragraph 
(a) or (d) of this section.
    (d) Analysis of certain later changes in work schedules. (1) 
Additional follow-up analysis must be performed each time that the 
railroad changes one of its work schedules in a manner--
    (i) That would differ from the FRA-approved parameters for hours of 
duty of any work schedule previously analyzed pursuant to paragraph (a) 
of this section; or
    (ii) That would alter the work schedule to the extent that train 
employees who work the schedule may be at risk of experiencing a level 
of fatigue that exceeds the FRA-approved fatigue threshold established 
by paragraph (a) of this section.
    (2) Such additional follow-up analysis must be submitted for FRA 
approval as provided under paragraph (b) of this section, as soon as 
practicable, prior to the use of the new schedule for an employee 
subject to this subpart.
    (e) Fatigue mitigation plans. A written plan must be developed and 
adopted by the railroad to mitigate the potential for fatigue for any 
work schedule identified through the analysis required by Sec.  
228.407(a) or (d) as at risk, including potential fatigue caused by 
unscheduled work assignments. Compliance with the fatigue mitigation 
plan is mandatory. The railroad shall review and, if necessary, update 
the plan at least once every two years after adopting the plan.
    (f) Consultation. (1) Each railroad subject to this subpart shall 
consult with, employ good faith, and use its best efforts to reach 
agreement with, all of its directly affected employees, including any 
nonprofit employee labor organization representing a class or craft of 
directly affected employees of the railroad, on--
    (i) The railroad's review of work schedules found to be at risk for 
a level of fatigue at which safety may be compromised (as described by 
paragraph (a) of this section);
    (ii) The railroad's selection of appropriate fatigue mitigation 
tools; and
    (iii) All submissions by the railroad to the Associate 
Administrator for Railroad Safety/Chief Safety Officer for approval 
that are required by this section.
    (2) For purposes of this section, the term ``directly affected 
employee'' means an employee to whom one of the work schedules applies 
or would apply if approved.
    (3) If the railroad and its directly affected employees, including 
any nonprofit employee labor organization representing a class or craft 
of directly affected employees of the railroad, cannot reach consensus 
on any area described in paragraph (f)(1) of this section, then 
directly affected employees and any such organization may file a 
statement with the Associate Administrator for Railroad Safety/Chief 
Safety Officer explaining their views on any issue on which consensus 
was not reached. The Associate Administrator for Railroad Safety/Chief 
Safety Officer shall consider such views during review and approval of 
items required by this section.


Sec.  228.409  Requirements for Railroad-Provided Employee Sleeping 
Quarters During Interim Releases and Other Periods Available for Rest 
Within a Duty Tour.

    (a) If a railroad subject to this subpart provides sleeping 
quarters for the use of a train employee subject to this subpart during 
interim periods of release as a method of mitigating fatigue identified 
by the analysis of work schedules required by Sec.  228.407(a) and (d), 
such sleeping quarters must be ``clean, safe, and sanitary,'' and give 
the employee ``an opportunity for rest free from the interruptions 
caused by noise under the control of the'' railroad within the meaning 
of section 21106(a)(1) of title 49 of the United States Code.
    (b) Any sleeping quarters provided by a railroad that are proposed 
as a fatigue mitigation tool pursuant to Sec.  228.407(b)(1)(i), are 
subject to the requirements of Sec.  228.407(f).


Sec.  228.411  Training

    (a) Individuals to be trained. Each railroad subject to this 
subpart shall provide training for its employees subject to this 
subpart, and the immediate supervisors of its employees subject to this 
subpart.
    (b) Subjects to be covered. The training shall provide, at a 
minimum, information on the following subjects that is based on the 
most current available scientific and medical research literature:
    (1) Physiological and human factors that affect fatigue, as well as 
strategies to reduce or mitigate the effects of fatigue;
    (2) Opportunities for identification, diagnosis, and treatment of 
any medical condition that may affect alertness or fatigue, including 
sleep disorders;
    (3) Alertness strategies, such as policies on napping, to address 
acute drowsiness and fatigue while an employee is on duty;
    (4) Opportunities to obtain restful sleep at lodging facilities, 
including employee sleeping quarters provided by the railroad; and
    (5) The effects of abrupt changes in rest cycles for employees.
    (c) Timing of initial training. Initial training shall be provided 
to affected employees as soon as practicable, and to new employees 
subject to this subpart within 90 days of their first working a 
schedule subject to analysis under this subpart.
    (d) Timing of refresher training. (1) At a minimum, refresher 
training shall be provided every three calendar years.
    (2) Additional refresher training shall also be provided when 
significant changes are made to the railroad's fatigue mitigation plan 
or to the available fatigue mitigation tools applied to an employee's 
assignment or assignments at the location where he or she works.
    (e) Records of training. A railroad shall maintain a record of each

[[Page 16229]]

employee provided training in compliance with this section and shall 
retain these records for three years.


Sec.  228.413  Compliance date.

    (a) General. On and after the date that is 180 days after the 
effective date of the final rule, railroads subject to this subpart 
shall--
    (1) Comply with this subpart with respect to their train employees 
who are engaged in commuter or intercity rail passenger transportation; 
and
    (2) Be exempt from complying with the provisions of old section 
21103 and new section 21103 for such employees.
    (b) Definitions. In this section--
    (1) The term ``new section 21103'' means section 21103 of title 49, 
United States Code, as amended by the Rail Safety Improvement Act of 
2008 effective July 16, 2009.
    (2) The term ``old section 21103'' means section 21103 of title 49, 
United States Code, as it was in effect on the day before the enactment 
of that Act.
    7. Part 228 is amended by adding Appendix D to read as follows:

Appendix D: Guidance on Fatigue Management Plans

    Railroads subject to subpart F of this part, Substantive Hours 
of Service Requirements for Train Employees Engaged in Commuter or 
Intercity Rail Passenger Transportation, may wish to consider 
adopting a written fatigue management plan that is designed to 
reduce the fatigue experienced by their train employees subject to 
that subpart and to reduce the likelihood of accidents, incidents, 
injuries, and fatalities caused by the fatigue of these employees. 
If a railroad is required to have a fatigue mitigation plan under 
Sec.  228.407 (containing the fatigue mitigation tools that the 
railroad has determined will mitigate the risk posed by a particular 
work schedule for a level of fatigue at or above the fatigue 
threshold), then the railroad's fatigue management plan could 
include the railroad's written fatigue mitigation plan, designated 
as such to distinguish it from the part of the plan that is 
optional, or could be a separate document. As provided in Sec.  
228.407(a)(2) and (e), compliance with the fatigue mitigation plan 
itself is mandatory.
    A good fatigue management plan contains targeted fatigue 
countermeasures for the particular railroad. In other words, the 
plan takes into account varying circumstances of operations by the 
railroad on different parts of its system, and should prescribe 
appropriate fatigue countermeasures to address those varying 
circumstances. In addition, the plan addresses each of the following 
items, as applicable:
    (1) Employee education and training on the physiological and 
human factors that affect fatigue, as well as strategies to reduce 
or mitigate the effects of fatigue, based on the most current 
scientific and medical research and literature;
    (2) Opportunities for identification, diagnosis, and treatment 
of any medical condition that may affect alertness or fatigue, 
including sleep disorders;
    (3) Effects on employee fatigue of an employee's short-term or 
sustained response to emergency situations, such as derailments and 
natural disasters, or engagement in other intensive working 
conditions;
    (4) Scheduling practices for employees, including innovative 
scheduling practices, on-duty call practices, work and rest cycles, 
increased consecutive days off for employees, changes in shift 
patterns, appropriate scheduling practices for varying types of 
work, and other aspects of employee scheduling that would reduce 
employee fatigue and cumulative sleep loss;
    (5) Methods to minimize accidents and incidents that occur as a 
result of working at times when scientific and medical research has 
shown that increased fatigue disrupts employees' circadian rhythm;
    (6) Alertness strategies, such as policies on napping, to 
address acute drowsiness and fatigue while an employee is on duty;
    (7) Opportunities to obtain restful sleep at lodging facilities, 
including employee sleeping quarters provided by the railroad;
    (8) The increase of the number of consecutive hours of off-duty 
rest, during which an employee receives no communication from the 
employing railroad or its managers, supervisors, officers, or 
agents; and
    (9) Avoidance of abrupt changes in rest cycles for employees.
    Finally, if a railroad chooses to adopt a fatigue management 
plan, FRA suggests that the railroad review the plan and update it 
periodically as the railroad sees fit if changes are warranted.

    Issued in Washington, DC, on March 15, 2011.
Karen J. Rae,
Deputy Administrator.
[FR Doc. 2011-6528 Filed 3-16-11; 4:15 pm]
BILLING CODE 4910-06-P


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