16200 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

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). 

SUMMARY: FRA is proposing to amend its 

hours of service recordkeeping 

regulations, to establish hours of service 

regulations, including maximum onduty 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: 

• Fax: 1–202–493–2251; 

• 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; 

• 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 

• 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 


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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. 

FRA Freight train employee statute 

Train employee provisions immediately 

prior to RSIA and currently applicable 

only to passenger train employees 

FRA passenger train employee NPRM 

Citation .................... 49 U.S.C. 21103 (as amended by the 

RSIA effective July 16, 2009) (new 

section 21103) (Applies to train employees on freight railroads. Will 

apply to train employees on commuter and intercity passenger railroads if no regulations are in effect 

by October 16, 2011).

49 U.S.C. 21103 as it existed prior to 

the October 16, 2008, enactment of 

the RSIA (old section 21103) (Train 

employees providing commuter and 

intercity rail passenger transportation 

are currently covered by these provisions pursuant to 49 U.S.C. 

21102(c).).

Proposed 49 CFR part 228, subpart F. 

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 Single Tour.

12 consecutive hours of time on duty 

or 12 nonconsecutive hours on duty 

if broken by an interim release of at 

least 4 consecutive hours uninterrupted by communication from the 

railroad likely to disturb rest, in a 24- 

hour period that begins at the beginning of the duty tour.

12 consecutive hours of time on duty 

or 12 nonconsecutive hours on duty 

if broken by an interim release of at 

least 4 consecutive hours, in a 24- 

hour period that begins at the beginning of the duty tour.

12 consecutive hours of time on duty 

or 12 nonconsecutive hours on duty 

if broken by an interim release of at 

least 4 consecutive hours, in a 24- 

hour period that begins at the beginning of the duty tour. 

Limitations on Consecutive Duty 

Tours.

May not be on duty as a train employee after initiating an on-duty period on six consecutive days without 

receiving 48 consecutive hours off 

duty free from any service for any 

railroad carrier at the employee’s 

home terminal. Employees are permitted to initiate a seventh consecutive day when the employee ends 

the sixth consecutive day at the 

away-from-home terminal, as part of 

a pilot project, or as part of a grandfathered collectively bargained 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.

None ..................................................... No more than six ‘‘Type 2’’ assignments (generally, those including 

time on duty between 8 p.m. and 4 

a.m.) without 24 consecutive hours 

off duty at the employee’s home terminal. No more than 14 ‘‘Type 1’’ 

assignments (those not Type 2) 

without 2 consecutive calendar days 

off duty at the employee’s home terminal. Employees may be permitted 

to perform service on an additional 

day to facilitate their return to their 

home terminal. 


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16202 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

FRA Freight train employee statute 

Train employee provisions immediately 

prior to RSIA and currently applicable 

only to passenger train employees 

FRA passenger train employee NPRM 

Cumulative Limits on 

Time on Duty.

Limited to 276 hours of time on duty, 

in deadhead transportation to a point 

of final release, or any other mandatory activity for the railroad carrier.

None ..................................................... None. 

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 time off duty 

free from any communication from 

the railroad likely to disturb rest, with 

additional time off duty if on-duty 

time plus time in or awaiting 

deadhead transportation to final release exceeds 12 hours.

8 consecutive hours (10 consecutive 

hours if time on duty reaches 12 

consecutive hours).

8 consecutive hours (10 consecutive 

hours if time on duty reaches 12 

consecutive 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 Operations.

None ..................................................... None ..................................................... Schedules that include 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 Assignments.

None ..................................................... None ..................................................... The potential for 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 must contain 

15 elements specified in 49 CFR 

228.11(b).

Record for each duty tour must contain 

the first 11 elements specified in 49 

CFR 228.11(b), as items 12 through 

15 relate to RSIA requirements not 

applicable to train employees providing commuter or intercity rail passenger transportation.

Record for each duty tour must contain 

the first 12 elements specified in 49 

CFR 228.11(b). Item 12 refers to recording the number of consecutive 

days, which would be required by 

the proposed rule. 

Excess Service Reporting Requirements.Requires reporting of any of 10 different ways in which hours of service limitations may be exceeded.Requires reporting of any of 4 different 

ways in which hours of service limitations may be exceeded.

Requires reporting of any of 10 different ways in which hours of service limitations may 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 


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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 highfatigue 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 


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16204 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

1A ‘‘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. 

compared to $1.7 million for the FRA 

proposal. 

Cost description 

No-action alternative NPRM 

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 Analysis of Work 

Schedules + Follow-up Analysis and Fatigue Mitigation 

Plan Review (NPRM) ............... 189,723 177,312 184,198 ($126,482 + 

$240,316) = 

$366,799 

($118,208 + 

$122,175) = 

$240,382 

($122,798 + 

$175,894) = 

$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] 

Accident reduction benefits 

VSL = $6 M 

undiscounted 

benefits 

VSL = $6 M 

discounted 

PV@ 7% 

VSL = $6 M 

discounted 

PV@ 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 


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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. 

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.’’ 

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-bySection 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 offduty 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 


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

4For 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. 

5 In statistics, a ‘‘bin’’ is a discrete, nonoverlapping 

interval of a variable. Here, the variable is the level 

of fatigue. 

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]). 

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 onduty 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

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 


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Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 16207 

6For 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.) 

7For 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. 

8Hursh, 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. 

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. 

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

1. Fatigue Avoidance Scheduling 

ToolTM Model 

FRA-sponsored research resulted in 

the development of a Sleep, Activity, 

Fatigue, and Task Effectiveness (SAFTE) 

model and Fatigue Avoidance 

Scheduling ToolTM (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

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. 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
16208 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

9See 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. 

10See 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. 

11See Hursh, et al., supra note 8. 

12A 21-day free trial of the FAST Model can be 

downloaded at http://fatiguescience.com/products/ 

fast. 

13For 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. 

14For 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) 

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. 

16A free trial of the FAID Model can be 

downloaded at http://www.faidsafe.com/productsmain.htm#faid330. 

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

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

2. Fatigue Audit InterDyne TM Model 13

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. 

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

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

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 § 228.407(c), by any 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 16209 

17See Raslear, supra note 6 for information on 

procedures for validating and calibrating a model. 

18For 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. 

railroad desiring to use an alternative 

model for the analyses required by this 

proposed rule.17

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 selfassessment 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 selfassessments 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: 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
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• American Association of Private 

Railroad Car Owners (AARPCO); 

• American Association of State 

Highway and Transportation Officials 

(AASHTO); 

• American Chemistry Council; 

• American Petroleum Institute; 

• American Public Transportation 

Association (APTA); 

• American Short Line and Regional 

Railroad Association (ASLRRA); 

• American Train Dispatchers’ 

Association (ATDA); 

• Association of American Railroads 

(AAR); 

• Association of Railway Museums; 

• Association of State Rail Safety 

Managers (ASRSM); 

• Brotherhood of Locomotive 

Engineers and Trainmen (BLET); 

• Brotherhood of Maintenance of Way 

Employes Division (BMWED); 

• Brotherhood of Railroad Signalmen 

(BRS); 

• Chlorine Institute; 

• FRA; 

• Federal Transit Administration 

(FTA); * 

• Fertilizer Institute; 

• High Speed Ground Transportation 

Association (HSGTA); 

• Institute of Makers of Explosives; 

• International Association of 

Machinists and Aerospace Workers; 

• International Brotherhood of 

Electrical Workers (IBEW); 

• Labor Council for Latin American 

Advancement; * 

• League of Railway Industry 

Women; * 

• National Association of Railroad 

Passengers (NARP); 

• National Association of Railway 

Business Women;* 

• National Conference of Firemen & 

Oilers; 

• National Railroad Construction and 

Maintenance Association (NRC); 

• National Railroad Passenger 

Corporation (Amtrak); 

• National Transportation Safety 

Board (NTSB); * 

• Railway Supply Institute (RSI); 

• Safe Travel America (STA); 

• Secretaria de Comunicaciones y 

Transporte; * 

• Sheet Metal Workers International 

Association (SMWIA); 

• Tourist Railway Association, Inc.; 

• Transport Canada; * 

• Transport Workers Union of 

America (TWU); 

• Transportation Communications 

International Union/BRC (TCIU/BRC); 

• Transportation Security 

Administration (TSA); * and 

• 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: 

• AASHTO; 

• Amtrak; 

• APTA; 

• ASLRRA; 

• ATDA; 

• 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); 

• BLET; 

• BRS; 

• FRA; 

• Federal Transit Administration 

(FTA); 

• IBEW; 

• Long Island Rail Road (LIRR); 

• Metro-North Commuter Railroad 

Company (Metro-North); 

• National Association of Railroad 

Passengers (NARP); 

• National Railroad Construction and 

Maintenance Association; 

• National Transportation Safety 

Board (NTSB); 

• Southeastern Pennsylvania 

Transportation Authority (SEPTA); 

• Tourist Railway Association; and 

• 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 


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19The rule text voted on by the full RSAC and 

recommended to FRA is available on the RSAC Web 

site. 

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

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. 


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16212 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

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 allinclusive 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 16213 

20Folkard, 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 

22Balkin, 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. 

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 

§ 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 § 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 § 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. 


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23See Raslear, supra note 6. 

24See Hursh, et al., supra note 8, and Tabak and 

Raslear, supra note 13. 

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

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

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 


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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 § 228.405 and the 

requirements for analysis of schedules 

and submission of schedules to FRA for 

approval in proposed § 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 § 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 


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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 § 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 onduty 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 onduty 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 onduty 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 onduty 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 


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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. 


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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 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 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 RailroadProvided 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 § 228.407, then those 

facilities are subject to the requirement 

in § 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 twohour 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
16220 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

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 highfatigue 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. 

Cost description 

No-action alternative NPRM 

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 


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Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 16221 

Cost description 

No-action alternative NPRM 

Undiscounted PV@7% PV@3% Undiscounted PV@7% PV@3% 

Work Schedule Analysis (No-Reg 

Action)/Initial Analysis of Work 

Schedules + Follow-up Analysis and Fatigue Mitigation 

Plan Review (NPRM) ............... 189,723 177,312 184,198 ($126,482 + 

$240,316) = 

$366,799 

($118,208 + 

$122,175) = 

$240,382 

($122,798 + 

$175,894) = 

$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) 

Accident reduction benefits 

VSL = $6 M 

Undiscounted 

benefits 

VSL = $6 M 

Discounted 

PV@ 7% 

VSL = $6 M 

Discounted 

PV@ 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). 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
16222 Federal Register / Vol. 76, No. 55 / Tuesday, March 22, 2011 / Proposed Rules 

25 ‘‘Table of Size Standards,’’ U.S. Small Business 

Administration, January 31, 1996, 13 CFR part 121. 

See also NAICS Codes 482111 and 482112. 

26See 68 FR 24891 (May 9, 2003); 49 CFR part 

209, app. C. 

27For further information on the calculation of 

the specific dollar limit, please see 49 CFR part 

1201. 

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-forprofit 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

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. 

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 


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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., computerbased 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 

§ 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 

§ 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: 


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49 CFR Section or statutory provision Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

228.11—Hours of Duty Records (Current Requirement).768 railroads/signal 

contractors.

27,429,750 records ...... 2 min./5 min./10 min. ... 2,856,125 

228.17—Dispatchers Record of Train Movements (Current Requirement).150 Dispatch Offices ... 200,750 records ........... 3 hours ......................... 602,250 

228.19—Monthly Reports of Excess Service 

(Current Requirement But Now includes 

Limbo time and consecutive days on duty 

Proposed New/Revised Requirement).

300 railroads ................ 2,670 reports ............... 2 hours ......................... 5,340 

228.103—Construction of Employee Sleeping 

Quarters—Petitions to allow construction near 

work areas (Current Requirement).

50 railroads .................. 1 petition ...................... 16 hours ....................... 16 

228.203—Program Components (Current Requirements)—Electronic Recordkeeping— 

Modifications for Daylight Savings Time.

9 railroads .................... 5 modifications ............. 120 hours ..................... 600 

—System Security/Individual User Identification/Program Logic Capabilities/ 

Search Capabilities.

9 railroads .................... 1 program w/security/ 

etc..

720 hours ..................... 720 

228.205—Access to Electronic Records—(Current Requirement)—System Access Procedures for Inspectors.768 railroads/signal 

contractors.

100 electronic records 

access procedures.

30 minutes ................... 50 

228.207—Training in Use of Electronic System—(Current Requirements)—Initial Training.768 railroads/signal 

contractors.

47,000 tr. employees ... 1 hour .......................... 47,000 

—Refresher Training .................................... 768 railroads/signal 

contractors.

2,200 tr. employees ..... 1 hour .......................... 2,200 

49 U.S.C. 21102(b)—The Federal hours of 

service laws—Petitions for Exemption from 

Laws (Current Requirement).

10 railroads .................. 2 petitions .................... 10 hours ....................... 20 

228.403—Exemption requests from passenger/ 

commuter railroads—(Proposed/New Requirements).

28 railroads .................. 5 exemption requests .. 8 hours ......................... 40 

—Initial exemption requests from tourist/excursion railroads.140 railroads ................ 130 exempt requests ... 2 hours ......................... 260 

—Renewal exemption requests from tourist/ 

excursion railroads.

140 railroads ................ 130 renewal exemption 

requests.

30 minutes ................... 65 hours 

228.407—Analysis of Work Schedules Submissions (Proposed/New Requirements).168 railroads ................ 28 work schedule analyses.80 hours ....................... 2,240 

—Reports to FRA of Work Schedules that 

Exceed Fatigue Threshold.

168 railroads ................ 20 reports .................... 2 hours ......................... 40 

—Fatigue Mitigation Plans Submitted to 

FRA.

168 railroads ................ 15 plans ....................... 4 hours ......................... 60 

—Submission of Work Schedules Using 

Validation Model At/Exceeding Threshold 

that can be mitigated by tools.

168 railroads ................ 15 work schedules ....... 4 hours ......................... 60 

—Submission of Work Schedules Using 

Validation Model At/Exceeding Threshold 

that cannot be mitigated by tools.

168 railroads ................ 5 work schedules ......... 4 hours ......................... 20 

—RR Determinations of necessary schedules.168 railroads ................ 20 decisions ................. 2 hours ......................... 40 

—RR Declaration that no work schedule 

needs to be submitted to FRA for exceeding fatigue threshold.

168 railroads ................ 10 written declarations 1 hours ......................... 10 

—Submission of follow-up analysis by RR 

due to work schedule change.

168 railroads ................ 28 analyses ................. 4 hours ......................... 112 

—Updated fatigue mitigation plans .............. 168 railroads ................ 28 plans ....................... 4 hours ......................... 112 

—RR consultations w/employees ................ 168 railroads ................ 40 consults .................. 4 hours ......................... 160 

—Filed statements w/FRA by employees 

and employee organizations unable to 

reach consensus w/RR on work schedules or mitigation tools/RR submissions 

to FRA.

RR Employees/Employee Organizations.5 statements ................ 2 hours ......................... 10 

228.411—Training Programs (Proposed/New 

Requirements).

168 railroads ................ 29 programs ................ 20 hours ....................... 580 

—Employee Initial Training .......................... 168 railroads ................ 10,000 tr. employees ... 1 hour .......................... 10,000 

—Initial Training—New Employees ............. 168 railroads ................ 150 trained employees 1 hour .......................... 150 

—Triennial Refresher Training of Employees.168 railroads ................ 10,150 tr. employees ... 15 minutes ................... 2,538 

—Records of Training .................................. 168 railroads ................ 10,150 records ............. 5 minutes ..................... 846 

Appendix D: Guidance on Fatigue Management 

Plans—(Proposed/New Requirement).

168 railroads ................ 4 plans ......................... 15 hours ....................... 60 


srobinson on DSKHWCL6B1PROD with PROPOSALS4
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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: Robert.Brogan@dot.gov; 

Kimberly.Toone@dot.gov. 

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: 

§ 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: 

§ 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 

§ 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 § 228.407(c)(1) or approved by 

FRA at § 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. 


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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 § 228.407(c)(2) or approved by 

FRA at § 228.407(c)(1); 

(2) It complies with the provisions of 

§ 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: 

§ 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: 

§ 228.19 Monthly reports of excess 

service. 

* * * * * 

(c) * * * 

(5) A train employee initiates an onduty 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 onduty 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 onduty 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 onduty 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 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 


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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 § 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 ToolTM (FAST) issued on 

July 15, 2009, by Fatigue Science, Inc., 

and Fatigue Audit InterDyneTM (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 FRAapproved 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 

§ 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. 

§ 228.409 Requirements for RailroadProvided 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 § 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 

§ 228.407(b)(1)(i), are subject to the 

requirements of § 228.407(f). 

§ 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 


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employee provided training in 

compliance with this section and shall 

retain these records for three years. 

§ 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 

§ 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 

§ 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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