[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
[Proposed Rules]
[Pages 83484-83509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27085]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 270 and 271

[Docket No. FRA-2015-0122, Notice No. 1]
RIN 2130-AC54


Fatigue Risk Management Programs for Certain Passenger and 
Freight Railroads

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: Pursuant to the Rail Safety Improvement Act of 2008, FRA 
proposes to issue regulations requiring certain railroads to develop 
and implement a Fatigue Risk Management Program, as one component of 
the railroads' larger railroad safety risk reduction programs.

DATES: Written comments must be received by February 22, 2021. Comments 
received after that date will be considered to the extent practicable 
without incurring additional expense or delay.

ADDRESSES: Comments related to Docket No. FRA-2015-0122 may be 
submitted by going to http://www.regulations.gov and 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 (2130-AC54). 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 heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information on any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Audit 
Management Division, at 202-493-6224 or <a href="/cdn-cgi/l/email-protection#ff92968d969e92d19493909a8f8f9a93bf9b908bd1989089"><span class="__cf_email__" data-cfemail="4d20243f242c2063262122283d3d28210d292239632a223b">[email protected]</span></a>; Amanda 
K. Emo, Ph.D., Fatigue Program Manager, at 202-281-0695 or 
<a href="/cdn-cgi/l/email-protection#c6a7aba7a8a2a7e8a3aba986a2a9b2e8a1a9b0"><span class="__cf_email__" data-cfemail="157478747b71743b70787a55717a613b727a63">[email protected]</span></a>; or Colleen A. Brennan, Deputy Assistant Chief 
Counsel, at 202-493-6028 or <a href="/cdn-cgi/l/email-protection#a1c2cecdcdc4c4cf8fc3d3c4cfcfc0cfe1c5ced58fc6ced7"><span class="__cf_email__" data-cfemail="c4a7aba8a8a1a1aaeaa6b6a1aaaaa5aa84a0abb0eaa3abb2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Introduction and Executive Summary
    A. Purpose of Rulemaking
    B. Summary of Costs and Benefits
II. Rulemaking Authority and Background
    A. RSIA
    1. Mandate for Rulemaking on Railroad Safety Risk Reduction 
Programs
    2. Mandate for Rulemaking on Fatigue Management Plans
    3. Authority for Rulemaking on Information Protection
    B. Fatigue and Fatigue Risk Management Plans
III. Railroad Safety Advisory Committee Process
    A. Fatigue Management Plans Working Group
    B. Task Forces
IV. FRMP Considerations
    A. General Overview
    B. Roles and Responsibilities
    C. Components of an FRMP
    1. Identifying Safety Hazards
    2. Assessing Risks Associated With Identified Hazards
    3. Prioritizing Risks and Implementing Mitigation
    4. Summary of the Work of the FRMP Working Group's Task Forces
    5. Tracking Performance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Orders 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Analysis
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement

I. Introduction and Executive Summary

A. Purpose of Rulemaking

    This proposed rule is part of FRA's efforts to improve rail safety 
continually and to satisfy the statutory mandate of Section 103 of the 
Rail Safety Improvement Act of 2008 (RSIA).\1\ That section, codified 
at 49 U.S.C. 20156, requires Class I railroads; railroad carriers with 
inadequate safety performance (ISP), as determined by the Secretary; 
and railroad carriers that provide intercity rail passenger or commuter 
rail passenger transportation to develop and implement a safety risk 
reduction program to improve the safety of their operations. The 
section further requires a railroad's safety risk reduction program to 
include a ``fatigue management plan'' meeting certain requirements.
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    \1\ Section 103, Public Law 110-432, Division A, 122 Stat. 4848 
et seq.
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    This proposed rule, if finalized, would fulfill RSIA's mandate for 
railroads to include fatigue management plans in their safety risk 
reduction programs by requiring railroads to develop and implement 
Fatigue Risk Management Programs (FRMPs).\2\ As proposed, a railroad 
would implement its FRMP through an FRMP plan.
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    \2\ Section 20156 uses the term ``fatigue management plans'' so 
sections of this preamble discussing the statutory requirements 
likewise use this term, as do the sections discussing the Railroad 
Safety Advisory Committee task statement on fatigue and Fatigue 
Working Group. However, because section 20156 requires fatigue to be 
addressed as part of a railroad's safety risk reduction program, for 
consistency with the terminology used in FRA's final rules governing 
those programs (81 FR 53849 (Aug. 12, 2016) and 85 FR 9262 (Feb. 18, 
2020)), elsewhere throughout this proposed rule, FRA uses the terms 
``fatigue risk management program'' (FRMP) and ``FRMP plan.''
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    Under this proposed rule, consistent with the mandate of Section 
20156, an FRMP is a comprehensive, system-oriented approach to safety 
in which a railroad determines its fatigue risk by identifying and 
analyzing applicable hazards and takes action to mitigate, if not 
eliminate, that fatigue risk.\3\ As proposed, a railroad would be 
required to prepare a written FRMP plan and submit it to FRA for review 
and approval. A railroad's written FRMP plan would become part of its 
existing safety risk reduction program plan. A railroad would also be 
required to implement its FRA-approved FRMP plan, conduct an internal 
annual assessment of its FRMP, and consistent with Section 20156's 
mandate, update its FRMP plan periodically. As part of a railroad 
safety risk reduction program, a railroad's FRMP would also be subject 
to assessments by FRA.
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    \3\ Risk is defined as a combination of the probability of an 
adverse event occurring and the potential severity of that adverse 
event. Fatigue increases the likelihood of certain negative events 
occurring. Therefore, reducing fatigue helps reduce fatigue-related 
risks. See United States Department of Transportation, Partnering in 
Safety: Managing Fatigue: A Significant Problem Affecting Safety, 
Security, and Productivity, 1999.
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B. Summary of Costs and Benefits

    FRA estimated the costs and benefits of this proposed rule using 
discount rates of 3 and 7 percent over a ten-year time horizon. FRA 
presents monetized costs and benefits where possible and discusses 
those non-quantifiable elements qualitatively where data is

[[Page 83485]]

lacking. Details on the estimated costs and benefits of this proposed 
rule can be found in the rule's economic analysis, which has been 
included in the docket.
    In preparing the economic analysis, FRA estimated that the total 
costs and benefits over 10 years for the implementation of an FRMP and 
the fatigue training mitigation for Class I railroads and the 50 ISP 
railroads subject to this proposed regulation. FRA was unable to 
quantify costs or benefits for passenger railroads and discusses the 
implementation of the proposed regulation qualitatively within the 
Regulatory Impact Analysis which has been placed into the docket.
    FRA also estimated the total costs over 10 years to develop and 
monitor FRMP plans for Class I railroads, passenger and commuter 
railroads, and the 50 ISP railroads subject to this proposed 
regulation. The proposed regulation will also impose a new economic 
cost on the agency over the 10-year period, to review and audit the 
FRMPs.
    Please see Table I.B for the total costs and benefits associated 
with the proposed rule.

                         Table I.B--10-Year Costs and Benefits--Training Only Mitigation
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                                                   Present value   Present value   Annualized at   Annualized at
        Calculation aid               Costs             7%              3%              7%              3%
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A.............................  Training Only              $2.02           $2.04           $0.29           $0.24
                                 (low).
B.............................  Training Only               4.13            4.18            0.59            0.49
                                 (high).
C.............................  FRMP Plan                   0.89            1.04            0.13            0.12
                                 Creation.
D.............................  Government Costs            2.03            2.59            0.29            0.30
A + C + D.....................  Total Cost (low)            4.94            5.68            0.70            0.67
B + C + D.....................  Total Cost                  7.05            7.81            1.00            0.92
                                 (high).
A + C.........................  Total Cost w/o              2.91            3.08            0.41            0.36
                                 Government
                                 Costs (low).
B + C.........................  Total Cost w/o              5.01            5.22            0.71            0.61
                                 Government
                                 Costs (high).
                                Benefits........  ..............  ..............  ..............  ..............
                                Training Only               5.41            6.33            0.77            0.74
                                 (low).
                                Training Only              21.65           25.34            3.08            2.97
                                 (high).
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II. Rulemaking Authority and Background

A. RSIA

1. Mandate for Rulemaking on Railroad Safety Risk Reduction Programs
    The RSIA requires the Secretary of Transportation (Secretary) to 
issue regulations requiring certain railroads to develop and implement 
a ``railroad safety risk reduction program.'' \4\ Under RSIA, as part 
of their railroad safety risk reduction programs, railroads must 
analyze the risks associated with aspects of their operations that 
affect railroad safety and based on that risk analysis, railroads must, 
through their railroad safety risk reduction programs, mitigate risks 
to railroad safety.\5\ Among other requirements, the RSIA requires 
railroads to consult with ``directly affected employees'' and their 
labor organizations on the content of their safety risk reduction 
programs, including the fatigue management plan component.\6\
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    \4\ Public Law 110-432, Div. A, sec. 103 (49 U.S.C. 20156).
    \5\ Sec. 20156(d)(1).
    \6\ 49 U.S.C. 20156(f) and (g)(1).
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    The Secretary delegated responsibility for carrying out the mandate 
of Section 20156 to the FRA Administrator.\7\
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    \7\ 49 CFR 1.89, 77 FR 49965 (August 17, 2012); see also 49 
U.S.C. 103(g).
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    Section 20156(a)(1) mandates that each of the following types of 
railroads would have to comply with this proposed regulation: (1) Class 
I railroads; (2) railroad carriers with ISP; and (3) railroad carriers 
that provide intercity rail passenger or commuter rail passenger 
transportation. This preamble refers to the railroads that would be 
subject to this proposed rule as ``covered railroads.''
    To implement the requirements of Section 20156, FRA published the 
System Safety Program (SSP) final rule implementing the railroad safety 
risk reduction program mandate for passenger railroads on August 12, 
2016.\8\ On February 18, 2020, FRA published the Risk Reduction Program 
(RRP) final rule implementing the mandate for Class I freight and ISP 
railroads.\9\
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    \8\ 81 FR 53849.
    \9\ 85 FR 9262. The RRP final rule also defines ``railroad 
carriers with inadequate safety performance'' to whom this proposed 
rule would apply. 49 CFR 271.13, 85 FR at 9316-9317.
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    Both the SSP and RRP rules allow a railroad to tailor its program 
to its unique operating characteristics.\10\ All railroads that must 
develop either an RRP or an SSP would also have to develop an FRMP as a 
component of the RRP or the SSP.
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    \10\ SSP Final Rule at 81 FR 53849, August 12, 2016, and RRP 
Final Rule at 85 FR 9262, February 18, 2020.
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    Both RRPs and SSPs reflect comprehensive, system-oriented 
approaches to improving safety, by which an organization formally 
identifies and analyzes applicable hazards and takes action to 
mitigate, if not eliminate, the risks associated with those hazards. 
RRPs and SSPs provide a railroad with a framework for processes and 
procedures that can help it plan, organize, direct, and control its 
business activities in a way that enhances safety and promotes 
compliance with regulatory standards. As such, risk reduction and 
system safety programs are a form of ``safety management system,'' 
which is a term that generally refers to a comprehensive, systematic 
approach to managing safety throughout an organization.
    Safety management systems were developed to ensure high safety 
performance in various industries, including aviation, passenger 
railroad, nuclear, and other industries with the potential for 
catastrophic accidents. For ease of understanding, the elements of a 
safety management system are typically grouped into larger descriptive 
categories. These descriptive categories include: (1) An organization-
wide safety policy; (2) formal methods for identifying hazards, and for 
prioritizing and mitigating risks associated with those hazards; (3) 
data collection, data analysis, and evaluation processes to determine 
the effectiveness of mitigation strategies and to identify emerging 
hazards; and (4) outreach, education, and promotion of an improved 
safety culture within the organization.
    Effective implementation of all the elements of an RRP or SSP, 
including the FRMP this proposed rule would

[[Page 83486]]

require, will foster continuous safety improvement.\11\
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    \11\ For a more detailed discussion of safety management systems 
and FRA risk reduction programs, see FRA's final RRP and SSP rules. 
85 FR 9265 (RRP final rule) and 81 FR 53853-54 (SSP final rule).
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2. Mandate for Rulemaking on Fatigue Management Plans
    Sections 20156(d)(2) and (f) of the RSIA mandate that as part of a 
railroad's safety risk reduction program, a railroad must develop and 
implement a fatigue management plan ``designed to reduce the fatigue 
experienced by safety-related railroad employees and to reduce the 
likelihood of accidents, incidents, injuries, and fatalities caused by 
fatigue.'' \12\ The statute requires railroads to update their fatigue 
management plans at least once every two years, with each update 
subject to FRA review and approval.\13\ Section 20156(f)(2) also 
requires each railroad's fatigue management plan to take into account 
the varying circumstances of operations on different parts of its 
system, and to prescribe appropriate fatigue countermeasures to address 
the varying circumstances.
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    \12\ Sec. 20156(f)(1).
    \13\ Id.
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    Finally, Section 20156(f)(3) requires a covered railroad to 
consider the need to include in its fatigue management plan elements 
addressing 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 have shown 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 carrier; (8) the increase of the number of consecutive hours 
of off-duty rest, during which an employee receives no communication 
from the employing railroad carrier or its managers, supervisors, 
officers, or agents; (9) avoidance of abrupt changes in rest cycles for 
employees, and (10) additional elements that the Secretary considers 
appropriate.
3. Authority for Rulemaking on Information Protection
    Section 109 of the RSIA specifies that subject to specific 
exceptions, certain railroad safety risk reduction records obtained by 
the Secretary are exempt from the public disclosure requirements of the 
Freedom of Information Act (FOIA).\14\ Both the SSP and RRP final rules 
implement these authorized information protections. Further, FRA has 
concluded section 20118 is a FOIA Exemption 3 statute and, therefore, 
would exempt, as part of a railroad's safety risk reduction program, 
FRMP records in FRA's possession from mandatory disclosure under FOIA 
(unless one of two statutory exceptions apply).\15\
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    \14\ 49 U.S.C. 20118.
    \15\ 80 FR at 10957-10958.
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B. Fatigue and Fatigue Risk Management Plans

    Humans 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. Such disruptions may 
also impair human performance, and may cause a general feeling of 
debility until realignment is achieved. For instance, the experience of 
jet lag is comparable to the experience of working schedules that vary 
among different duty shifts, and similar disruptions in human 
performance occur. Research has shown that fatigue is a multivariate 
condition, being either directly or secondarily affected by 
physiological and environmental variables such as sleep loss, workload, 
stress, monotony, workplace ergonomics, age, health, medications, 
noise, and circadian disruption. Symptoms of fatigue include, but are 
not limited to, falling asleep, increased reaction time, loss of 
attentional capacity, and decline of short-term and working memory 
function which may impair performance, increase error, and increase 
accident risk.
    The Federal Government requires railroads to manage their 
employees' fatigue associated with railroad operations through 
prescriptive hours of service (HOS) limitations and rest requirements. 
See 49 U.S.C. 21103, 21104, and 21105 and regulations at 49 CFR part 
228, subpart F (implementing 49 U.S.C. 21102 and 21109). HOS 
limitations are generally based on the assumption that fatigue simply 
increases as time passes; therefore, the longer the time on task, the 
greater the risk for fatigue. However, this approach does not account 
for factors such as sleep loss, amount of sleep, circadian rhythms, 
sleep quality (which may be impacted by environmental factors or 
sleeping accommodations), and even the effects of the type of task 
being performed on the resulting level of fatigue. Furthermore, the HOS 
limitations and rest requirements apply only to individuals who perform 
certain types of work and do not cover all railroad employees (e.g., 
ordinarily, not maintenance-of-way employees or carmen). Laws and 
regulations following this model, therefore, may reduce, but cannot 
eliminate, the conditions that contribute to fatigue.\16\ An FRMP, on 
the other hand, is intended to be a systematic program to address 
fatigue in a dynamic manner.
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    \16\ Thomas, G., Raslear, T., & Kuehn, G. (1997), The effects of 
work schedule on train handling performance and sleep of locomotive 
engineers: A simulator study, Report No. DOT/FRA/ORD-97-09), 
Washington, DC: Federal Railroad Administration; available at: 
http://www.fra.dot.gov/eLib/details/L04245.
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    An FRMP is a form of a safety management system. Like the other 
elements of an RRP and an SSP, an FRMP implements organizational 
policies, processes, and procedures to reduce safety risk in a 
railroad's operations. An FRMP is a data-driven and scientifically-
based process that allows for periodic review and management of safety 
risks associated with fatigue-related error(s). Like other safety 
management systems, an FRMP applies the risk management process to 
identify fatigue risks through the use of data-established, scientific 
principles. An FRMP includes collecting and analyzing fatigue-related 
safety data and implementing corrective actions--always encouraging 
continuous improvement. This proposed rule would require railroads to 
develop FRMPs that are consistent with these general principles.

[[Page 83487]]

    An effective FRMP implements processes and procedures for 
measuring, modeling, managing, mitigating, and reassessing fatigue risk 
in a specific operational setting. The primary stakeholders--the main 
persons with the authority and/or interest to improve conditions to 
reduce fatigue--would implement FRMP processes. In the case of this 
specific rulemaking, that stakeholder group would include 
representation from management and labor (union representation, if 
applicable) and may also include scientific consultants.
    By combining schedule assessment, operational data collection, 
continuous and systematic analysis, and both proactive and reactive 
fatigue mitigation techniques, guided by information provided by 
scientific studies of fatigue, an FRMP offers a way to conduct railroad 
operations more safely by offering a global, comprehensive, and 
specific approach that complements statutory or regulatory HOS 
limitations. An FRMP would provide an interactive and collaborative 
approach to improving operational performance and safety levels on a 
case-by-case basis. Therefore, an FRMP would permit a railroad to adapt 
policies, procedures, and practices to the specific conditions that 
create fatigue in a particular railroad setting. A railroad could 
tailor its FRMP to unique operational demands and focus on techniques 
for mitigating risk caused by fatigue that are practical within the 
specific operational environment. This flexibility would also allow a 
railroad to alter its FRMP based on changing needs, new research, data 
from an existing FRMP, comments from labor and management, and 
established best practices.

III. Railroad Safety Advisory Committee Process

    In December 2011, FRA asked the Railroad Safety Advisory Committee 
(RSAC) to accept a task to address the fatigue management plan mandate 
of the RSIA.\17\ The RSAC voted to accept the task and on December 8, 
2011, the RSAC formed the Fatigue Management Plans Working Group 
(Working Group). Members of the Working Group included physicians, 
human factors psychologists, railroad schedulers, and other 
representatives of railroad management and labor, as well as FRA 
employees.
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    \17\ Railroad Safety Advisory Committee Task Statement: Fatigue 
Management Plans, Task No.: 11-03, Dec. 8, 2011. The Task Statement 
read as follows:
    Review the mandates and objectives of the [RSIA] related to the 
development of Fatigue Management Plans, determine how medical 
conditions that affect alertness and fatigue will be incorporated 
into Fatigue Management Plans, review available data on existing 
alertness strategies, consider the role of innovative scheduling 
practices in the reduction of employee fatigue, and review the 
existing data on fatigue countermeasures.
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    The Working Group formed three Task Forces to address particular 
aspects of the RSIA mandate in more detail: (1) The Education and 
Training Task Force; (2) the Scheduling Task Force; and (3) the 
Infrastructure and Environment Task Force. The Task Forces met multiple 
times throughout 2012 and 2013 and the Working Group itself met eight 
times during the same period.
    After initially reaching consensus on draft rule text in June 2013, 
the Working Group did not reach consensus as to how its recommendations 
should be implemented. The Task Forces had developed a multitude of 
documents, which Labor representatives on the Working Group wanted 
published as appendices to the regulation. Railroad management members 
of the Working Group, on the other hand, asserted that the documents 
should not be published as appendices to the regulation, but instead 
recommended that the documents be made available on the FRA website and 
in the rulemaking docket for all parties to use in the required 
consultation process as part of developing railroads' FRMPs. As a 
result, in late 2013, FRA withdrew the task from the RSAC, and as the 
agency worked to implement other aspects of the safety risk reduction 
program mandate of the RSIA (i.e., the RRP and SSP rules), the Agency 
began developing a rule specifically to address the RSIA's mandate that 
fatigue management plans be included as part of railroads' safety risk-
reduction programs.
    Although the RSAC did not make a consensus recommendation to FRA 
related to fatigue, FRA believes that information developed and 
documented during the RSAC process is informative and will be very 
useful to railroads required to develop FRMP plans. FRA made minor 
amendments to the June 2013 draft rule text to clarify it and make it 
more consistent with similar rule text in the SSP and RRP rules. 
However, the substance of this proposed rule text is the same as the 
draft rule text the Working Group voted to approve.
    Accordingly, the proposals in this NPRM reflect FRA's consideration 
of the Working Group's recommended rule text and the documents 
developed by each of the three Task Forces. Those RSAC-developed 
documents are included in the rulemaking docket.
    The RSIA does not mandate, and this NPRM does not propose to 
include, language specifically addressing the predictability of work 
schedules. However, the RSIA does require railroads to consider 
scheduling practices, of which predictability is one factor. There is 
significant discussion of predictability throughout this document, 
particularly when describing the Task Force discussions and the complex 
issues addressed in the Task Force documents that will inform 
railroads' analysis of fatigue risks and their efforts to mitigate the 
identified fatigue risks in consultation with employees and labor 
organizations. However, the proposed rule requires railroads to 
consider several factors, including work schedule predictability, but 
does not require any particular factor to be analyzed.
    The NPRM also does not propose to include the Task Force documents 
as appendices to this proposed rule. As FRA previously explained to the 
members of the Working Group, many of these documents are written 
informally, for the use of railroads and labor in developing FRMP 
plans. The documents are best practices generated by the Working Group, 
but are not specifically FRA guidance and, therefore, should not be in 
an appendix to an FRA regulation. In addition, the content of the Task 
Force documents is subject to change based on advances in fatigue 
science, changes in railroad operations, and experience with FRA's SSP 
and RRP rules and the development and implementation of FRMPs and FRMP 
plans. The Task Force documents should be easy to update as necessary 
so that they are most beneficial to those using them. If they were 
published as appendices to the regulation, changing them would require 
the cumbersome process of publishing them in the Federal Register, and 
the industry would be left with outdated or less useful documents until 
revisions could be completed. For the convenience of readers, however, 
the full text of each of these documents can be found in the docket for 
this rulemaking.

B. Task Forces

    As noted above, paragraph (f)(3) of Section 20156 requires 
railroads to consider including 10 different elements in their fatigue 
management plans.
    The Working Group assigned the Education and Training Task Force to 
address section 20156(f)(3) subparagraphs (A), (B), (E), and (F), 
specifically:
    <bullet> Employee education and training on the physiological and 
human factors that affect fatigue;
    <bullet> Medical and scientific research-based fatigue mitigation 
strategies;

[[Page 83488]]

    <bullet> Opportunities for identification, diagnosis, and treatment 
of any medical condition that may affect alertness or fatigue, 
including sleep disorders;
    <bullet> Methods to minimize accidents and incidents during 
circadian low periods; and
    <bullet> Alertness strategies.
    The Task Force produced a document outlining existing railroad 
fatigue educational resources; a document outlining potential fatigue 
training topics; fatigue education dissemination and evaluation 
strategies; and a document outlining fatigue countermeasures.
    The Working Group assigned the Scheduling Task Force to address 
subparagraphs (D), (H), and (I) of the required elements outlined in 
section 20156(f)(3).
    The task statement specifically included:
    <bullet> Innovative scheduling practices;
    <bullet> On duty call practices;
    <bullet> Work and rest cycles;
    <bullet> Increased consecutive days off;
    <bullet> Other aspects of employee scheduling that would reduce 
employee fatigue and cumulative sleep loss;
    <bullet> The increase of the number of consecutive hours of off-
duty rest; and
    <bullet> Avoidance of abrupt changes in rest cycles for employees.
    The Working Group assigned the Infrastructure and Environment Task 
Force to address subparagraphs (C) and (G) of section 20156(f)(3) 
including:
    <bullet> Effects on employee fatigue of an employee's short term or 
sustained response to emergency situations;
    <bullet> Opportunities to obtain restful sleep at lodging 
facilities; and
    <bullet> Effects of environmental conditions (e.g., temperature, 
vibrations, etc.) on employee fatigue.
    The Task Force created documents on emergency work, lodging 
facilities, and dispute resolution.

IV. FRMP Considerations

    This proposed rule, if finalized, will fulfill the requirement of 
paragraph (d) of Section 20156 that a covered railroad's railroad 
safety risk reduction program include a fatigue management plan. This 
rule would amend both Parts 270 and 271, adding a subpart to both parts 
requiring railroads to develop and implement FRMPs. This section 
provides a summary of potential methods and considerations for 
developing and maintaining a FRMP. FRA welcomes comments on the 
discussion in this section, including thoughts on how to develop and 
maintain an effective FRMP. Unless specifically identified as a 
statutory or regulatory requirement, the information and suggestions 
contained in this section are not meant to bind the public in any way, 
and is intended only to provide clarity to the public regarding this 
proposal and information to aid in compliance if the proposal is 
finalized.

A. General Overview

    This proposed rule would require each covered railroad to establish 
and periodically update an FRMP plan, which explains the railroad's 
method of analysis of fatigue risks and the processes for implementing 
the FRMP. FRA would review and approve the FRMP plan. FRA proposes that 
requirements for the filing, approval, and amendment of the FRMP plan 
be made the same as for other components of RRP or SSP plans so those 
requirements are not set forth in this proposed rule. Instead, the 
proposed rule text cites to the sections of the SSP and RRP rules that 
contain those procedures.\18\ Because railroads will have submitted 
their SSP plans or RRP plans to FRA under part 270, subpart C, or part 
271, subpart D before this proposed rule becomes final, railroads would 
need to amend their SSP plan or RRP plan to include an FRMP plan. Thus, 
a railroad would follow the procedures in Sec.  270.201(c) or 271.303 
to amend its SSP plan or RRP plan.
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    \18\ 49 CFR 271.301 Filing and approval, 271.303 Amendments, and 
49 CFR 270.201 Filing and approval.
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    As part of their FRMP, covered railroads would be required to 
identify fatigue-related safety hazards, to assess the risks associated 
with those hazards, and to prioritize those risks for mitigation. These 
railroads would be required to consider certain categories of risk as 
part of the FRMP, and to consider the development and implementation of 
policies and practices to reduce risks, related specifically to the 
items identified in the RSIA as items railroads are required to 
consider.
    FRA proposes that railroads be required to adopt and implement 
their FRMP through an FRMP plan describing the railroads' processes for 
conducting their fatigue-risk analysis, including the processes for the 
identification of fatigue-related railroad safety hazards and resulting 
risks, processes for the development and implementation of mitigation 
measures, processes for the evaluation of the FRMP and its 
effectiveness, and procedures for the review and update of the FRMP 
plan. The FRMP plan would also describe processes, milestones, and 
timelines for the implementation of the FRMP.
    Finally, the proposed rule contains no express requirements on 
information protection or consultation, because the information 
protection and consultation requirements in the RRP and SSP rules would 
apply to the FRMP, the FRMP plan, and their related documents, just as 
those requirements would apply to similar documents on other aspects of 
the RRP or SSP. As required by the RSIA, fatigue management plans are 
required elements of a railroad's statutorily-mandated railroad safety 
risk reduction program. Therefore, the statutory requirements on 
information protection and consultation, implemented in the SSP and RRP 
final rules, would also apply to the documents required by this 
proposed rule to implement the required fatigue component of each 
railroad's RRP or SSP. Regarding information protection, as with RRP 
and SSP, only information compiled or collected solely for developing, 
implementing, or evaluating a railroad's FRMP would be protected.\19\
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    \19\ For a detailed discussion of information protection, see 
the SSP final rule at 81 FR 53855-56 and 53878-82, and RRP final 
rule at 85 FR 9266-9272 and 9279-9282. For more information on the 
consultation requirements, see the SSP final rule at 81 FR 53856, 
53882-87 and 49 CFR part 270 app. B, and RRP NPRM at 85 FR 9266, 
9299-9303.
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B. Roles and Responsibilities

    Consistent with the program requirements of an RRP or SSP,\20\ an 
FRMP is an ongoing program that supports continuous safety improvement, 
and requires systematic evaluation and management of risks. An FRMP is 
more than a document; it is a living program that is implemented by 
members of the organization who regularly meet to review data on 
fatigue indicators, analyze contributing factors to fatigue, take 
necessary actions (reactive and proactive) to mitigate fatigue, 
objectively audit the effectiveness of the system, and take corrective 
action continuously to improve the system. Consistent with comments 
made at the Working Group meetings, FRA expects most railroads will 
form a dedicated fatigue management committee to implement the program. 
The committee should include representatives of all departments and 
groups, including labor representatives as appropriate, that have a 
role in reporting, managing, and mitigating fatigue.
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    \20\ 49 CFR 271.101(a), 270.101, and 270.103(p)(vii).
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    SSPs and RRPs require outreach to employees so that they can 
understand why certain actions are taken, or why certain safety 
procedures are introduced

[[Page 83489]]

or changed.\21\ As this relates to an FRMP, it means that all safety-
related personnel need to understand the corporate policies that 
underlie the FRMP; these may include policies and procedures that 
govern: Fatigue reporting, fitness-for-duty, absence due to fatigue, 
incident reporting, employee privacy, and prohibitions on coercion to 
perform duties while fatigued.
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    \21\ 49 CFR 271.107 and 270.103(i)(4).
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    As provided in the RSIA, the three main stakeholders in the FRMP 
are railroad management, railroad employees (including nonprofit 
employee labor organizations), and FRA. Each of these stakeholders 
plays an important role in implementing an FRMP successfully. Railroad 
management must develop, document, and implement an FRMP, tailored to 
the size of the railroad, in a collaborative environment with relevant 
stakeholders; it must also then allocate the resources required to 
implement any fatigue countermeasures in a timely fashion. FRA notes 
that the RSIA, in multiple places, specifically requires railroads to 
develop and implement elements of their programs based on the latest 
scientific principles.\22\ FRA will review, and as appropriate, approve 
each railroad's FRMP plan, and evaluate to ensure that the railroads 
are complying with their plans.
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    \22\ 49 U.S.C. 20156(f)(3)(A) and (E) specifically require 
railroads to consider scientific and medical research, in 
determining whether to include certain elements in their FRMP. The 
other elements of Sec.  20156(f)(3) require railroads to consider 
various scientific concepts, such as medical conditions, cumulative 
fatigue, and circadian rhythms.
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    These general roles and functions are not an exhaustive description 
of the various actions each group could take during the development and 
execution of the FRMP.

C. Components of an FRMP

    As proposed, a railroad's FRMP must consist of actions taken by the 
railroad pursuant to formally documented policies, processes, and 
procedures intended to mitigate fatigue risk. It incorporates specific 
components that enable the following: (1) Identifying safety hazards 
associated with fatigue; (2) assessing the risks associated with 
identified hazards; (3) prioritizing risks for mitigation and 
implementing mitigation strategies for those risks; and (4) tracking 
the performance and effectiveness of each mitigation strategy and 
reviewing and revising an FRMP based on results.
1. Identifying Safety Hazards
a. Examples of Methods of Identifying Safety Hazards
    A risk-based hazard analysis \23\ identifies operational processes, 
procedures, or activities that increase the likelihood of fatigue, and 
lays the foundation for subsequent assessment and mitigation of risks 
associated with the fatigue hazards identified. Hazards may be 
identified through quantitative, data-driven methods; through 
qualitative processes such as discussions, interviews, and 
brainstorming; or through a combination of both approaches. Identifying 
a hazard does not guarantee that it will be selected for mitigation.
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    \23\ Although the RSIA uses the term ``risk analysis,'' FRA uses 
``risk-based hazard analysis'' because it is more consistent with 
the terminology used in the SSP and RRP rules, as defined in 49 CFR 
270.5 and 49 CFR 271.5.
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    In general, data-driven methods identify and record hazards through 
a systematic process that allows for tracking and further analysis. 
These methods could use various types of recorded observations, such as 
records of actual schedules, efficiency testing, accident/incident 
investigations, company audits, employee surveys, close-call or 
hazardous condition reports, and others. Simulations may also be used 
to identify potential hazards and to estimate the potential severity of 
outcomes.
    Understanding the current conditions within a railroad is critical 
for a railroad's ability to identify fatigue hazards accurately. 
Important sources of information include current schedules, train 
lineups, throughput, and operating practices. Employee reports of 
fatigue or fatigue-related errors and incidents, and information on the 
work schedules that led up to them, would also be valuable. Likewise, 
employees may be able to provide information regarding travel 
assignments and random duty reports.
    Comprehensive and objective accident, incident, and error analyses 
can also be conducted to determine when fatigue has been a potential 
contributing factor. The identified fatigue-sensitive situations can 
then be addressed to mitigate or to avoid them in the future. For 
example, if analyses identify a high probability of a specific error 
occurring during the hours when employees are highly susceptible to 
fatigue, engineering or procedural safeguards could potentially be put 
in place to minimize or eliminate the possibility of that error 
recurring.
    In addition to data-driven methods, qualitative methods that are 
often founded on expert judgment can be very effective at identifying 
fatigue hazards. Examples of qualitative hazard identification methods 
include, but are not limited to, the following:
    <bullet> Brainstorming may be useful for identifying hazards in new 
or novel systems. Ideally, it involves all key stakeholders, is 
relatively quick and easy, and can be applied to a wide range of 
systems. Because brainstorming is commonly unstructured, it may not be 
comprehensive. The success of brainstorming depends heavily on the 
expertise of the participants and may be susceptible to the influence 
of group dynamics.
    <bullet> Checklists are inventories of known hazards. They can be 
used by people who are not experts in the operation or system being 
analyzed, to capture a wide range of existing knowledge and experience, 
and help ensure that common and obvious problems are not discounted, 
minimized, or overlooked. However, checklists may be less useful for 
unusual operations or systems, may inhibit expansive thinking, or may 
overlook hazards that have not been previously or widely observed.
    <bullet> Failure Modes and Effects Analysis (FMEA) is a reliability 
assessment technique built upon a detailed system description used to 
evaluate the ways in which basic system processes, components, or 
subcomponents can fail to perform safely. FMEA considers all the 
potential ways a component could fail, the effects of these failures on 
the system, possible causes of the failures, and how the failures might 
be mitigated. See Figure 1. FMEA is a systematic and rigorous 
evaluation approach that can yield a detailed record of the hazard 
identification process, and can be applied to a wide range of types of 
systems. However, it primarily focuses on single point-of-failure modes 
rather than combinations of failures, relies heavily upon individuals 
with detailed system knowledge, and can be both time-consuming and 
expensive.

[[Page 83490]]

[GRAPHIC] [TIFF OMITTED] TP22DE20.000

    <bullet> Structured What-If Technique (SWIFT) is a form of 
facilitated brainstorming, typically carried out on a higher-level 
system description with relatively few subcomponents, involving a 
multidisciplinary team of experts. The facilitator uses various 
prompts, such as ``what if,'' ``could someone,'' or ``has anyone ever'' 
questions to initiate discussion within the group. SWIFT creates a 
detailed record of the hazard identification process, and can consume 
less time than some other methods. However, successful application 
requires careful preparation, relies on the expertise and experience of 
the team, and depends heavily on the skills of the facilitator.
    <bullet> Operating Hazard Analysis (OHA) is when a team or 
individual uses various sources of information to identify hazards 
resulting from the operation and maintenance of a system, following a 
structured and formal process. In addition to the engineering design 
analysis at which FMEA excels, OHA is structured so that human 
performance and human interactions can be included in the analysis. 
Information sources can include analyses of known hazards, written 
procedures and manuals, engineering system descriptions, and other 
materials to analyze detailed procedures performed during system 
operation.
    <bullet> Hazard identification software programs are designed to 
support the identification of hazards using a systematic method. 
Programs are available that provide structured guidance for identifying 
general hazards or only fatigue-specific hazards. Such software may 
also offer the ability to catalog the resultant fatigue-related risks 
to help railroads prioritize risks.
    <bullet> Employee workshops may be used to engage employees in the 
railroad's hazard analysis. Employees can share their experiences and 
concerns relating to fatigue with the goal of identifying fatigue 
hazards, related risks, and potential solutions or mitigations.
    These are just some of the methods available for identifying 
hazards. Each has advantages and disadvantages, and a combination of 
two or more methods may minimize any shortcomings.
b. Specific Fatigue-Related Hazards To Consider
    A number of individual, organizational, or environmental factors 
can contribute to the likelihood of fatigue. As provided in the RSIA, 
these factors should be among the many items considered during a hazard 
analysis.\24\
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    \24\ See 49 U.S.C. 20156(c).
---------------------------------------------------------------------------

    <bullet<ls-thn-eq> General health and medical conditions. According 
to the National Sleep Foundation,\25\ there are several medical 
conditions or treatments of those conditions that may affect alertness. 
They include, but are not limited to, obstructive sleep apnea, 
insomnia, periodic limb movement disorder (restless leg syndrome), 
hypersomnia/narcolepsy (excessive daytime sleepiness), delayed sleep 
phase syndrome (circadian misalignment), depression, anxiety,

[[Page 83491]]

bruxism (teeth grinding), night sweats, night terrors, nocturia (waking 
several times throughout the night to urinate), poor sleep efficiency, 
and residual effects of neurological damage (e.g., stroke).
---------------------------------------------------------------------------

    \25\ https://sleepfoundation.org/sleep-disorders-problems.
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    <bullet<ls-thn-eq> Scheduling issues. Systemic or particular 
scheduling and crew-calling practices and issues may affect 
opportunities for employees to obtain sufficient quality and quantity 
of sleep. Related issues that increase fatigue risks include, but are 
not limited to, the following:
    <bullet> On-duty call practices;
    <bullet> Work and rest cycles;
    <bullet> Frequency and duration of days off;
    <bullet> Changes in start times;
    <bullet> Policies regarding napping; and
    <bullet> Policies and practices regarding marking-off.
    The level of predictability of work assignments, particularly those 
assignments that occur at night, can influence the ability of employees 
to anticipate work assignments and obtain necessary off-duty sleep. 
Note that work shift or duty tour predictability alone will not 
necessarily eliminate fatigue risk, and it is possible for highly 
predictable schedules to also have high exposure to fatigue. Other 
factors such as time of shift, work-to-rest ratio, and the speed and 
direction of shift rotation may also play a role in the employee's 
ability to plan for and obtain sufficient sleep.\26\
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    \26\ Rosa, R.R. & Colligan, M.J., Plain language about shiftwork 
(DHHS [NIOSH] Publication No. 97-145) (1997), Cincinnati, OH: 
National Institute for Occupational Safety and Health, available at: 
http://www.cdc.gov/niosh/docs/97-145/pdfs/97-145.pdf.
---------------------------------------------------------------------------

    An FRA report \27\ found that high variability in shift start times 
contributes to fatigue. Furthermore, FRA research also established that 
the probability of rail accidents increases as fatigue increases.\28\ 
Thus, reducing start time variability could potentially increase 
safety. In addition to examining the relationship between start time 
variability and fatigue, the report contains information on statistical 
methods, including analyzing variance of start times and calculating a 
hazard function, which can be used to compare work locations, types of 
jobs, and changes in policies and procedures, with regard to fatigue.
---------------------------------------------------------------------------

    \27\ Raslear, T.G., Start time variability and predictability in 
railroad train and engine freight and passenger service employees 
(Report No. DOT/FRA/ORD-14/05) (2014), Washington, DC: U.S. 
Department of Transportation.
    \28\ Raslear, T.G., Hursh, S.R., & Van Dongen, H.P.A., 
Predicting cognitive impairment and accident risk, in H.P.A. Van 
Dongen & G.A. Kerkhof (Eds.), Progress in Brain Research, Vol. 190 
(pp. 155-167), Amsterdam, The Netherlands: Elsevier B.V. (2011).
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    Job characteristics can also be a factor, including, but not 
limited to, whether the work is physically demanding, whether the work 
requires extended travel to a reporting point, and whether the 
employees are called upon to respond to emergencies. In general, a 
railroad that effectively manages the combined effects of crew 
scheduling, employee rostering, additional tasks assigned to employees, 
schedule changes, and other factors should succeed at minimizing 
fatigue-inducing conditions.
2. Assessing Risks Associated With Identified Hazards
    As mandated by the RSIA, a FRMP must systematically identify 
fatigue hazards and evaluate fatigue safety risks on the railroad 
system. The goal of this hazard analysis is to identify work schedules 
and other conditions that put employees at risk for a level of fatigue 
that compromises safety.
    Different jobs may have different fatigue related risks. As such, 
it is important to examine the hazards associated with each job. A 
systematic assessment of risk involves: (1) Determining the severity 
and likelihood of potential incidents associated with the hazards 
identified; (2) assessing risk by evaluating the relative risk of each 
identified hazard and how it impacts established safety performance 
targets and/or by ranking hazards based on risk; and (3) systematically 
determining the order in which risks should be addressed. Selecting the 
criteria and methods for establishing priorities in advance will 
promote consistent decision making over time. However, flexibility is 
needed as risk tolerance levels or prioritizations can change over time 
as circumstances dictate.
    One tool that railroads may want to consider using to assess their 
fatigue-related risk is a biomathematical model. A biomathematical 
model of performance and fatigue that has been properly validated and 
calibrated predicts accident risk based on analyzing 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 the model actually measures human 
performance and fatigue levels. 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 areas of human 
performance, sleep, and fatigue level. 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 accident risks not associated with human 
factors.
    Calibration of the biomathematical model involves the assignment of 
numerical values to represent aspects of empirical observations, 
similar to marking degrees on a thermometer. In the case of human 
fatigue level and performance, the calibration of a fatigue scale would 
start with the assignment of values ranging from ``not fatigued'' to 
``severely fatigued.'' The calibration process starts during the 
validation process with the assignment of model output values to data 
bins for ``not fatigued'' and ``severely fatigued.'' The next step 
consists of determining the fatigue threshold. Given a scale for human 
fatigue level and performance, and a relationship between that scale 
and human factors accident risk, a final calibration point would 
determine the value at which fatigue becomes unacceptable because the 
increase in accident risk at that level compromises safety; this is the 
fatigue threshold. Railroads choosing to use biomathematical fatigue 
modeling in their schedule analysis will need to establish a fatigue 
threshold.
    Currently, FRA has validated and calibrated two commercially 
available biomathematical fatigue models. These are the Fatigue 
Avoidance Scheduling Tool (FAST) and the Fatigue Audit InterDyne 
(FAID). However, any validated and calibrated biomathematical fatigue 
model may be used in schedule analysis. An FRA-sponsored report details 
how any biomathematical fatigue model may be validated and 
calibrated.\29\
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    \29\ Hursh, S.R., Raslear, T.G., Kaye, A.S., & Fanzone, J.F., 
Validation and calibration of a fatigue assessment tool for railroad 
work schedules, summary report (Report No. DOT/FRA/ORD-06/21) 
(2006), Washington, DC: U.S. Department of Transportation.
---------------------------------------------------------------------------

    FRA expects that new methods for measuring and assessing fatigue 
risk will continue to be developed. If the system provides a 
scientifically valid measure of fatigue risk, whether using a 
biomathematical modeling tool or another system, its use is acceptable 
for purposes of developing and implementing an FRMP.
    As discussed below, there are many ways to measure fatigue risk. 
The system or metric a railroad ultimately chooses to measure its 
fatigue risk will depend on a variety of factors and will be unique to 
each railroad. For example, regardless of whether scheduled service

[[Page 83492]]

is covered under statutory HOS requirements (49 U.S.C. Ch. 211), 
passenger train employee HOS regulations (49 CFR part 228, subpart F), 
or no HOS limitations, a railroad should consider whether to include in 
its FRMP an analysis of at least two consecutive cycles of the work 
schedules (the period within which the work schedule repeats) of its 
safety-related railroad employees. Analyzing more than one cycle of a 
work schedule can provide information about cumulative fatigue effects 
that would not be apparent if only one work schedule cycle were 
analyzed. However, railroads will need to determine how many work 
schedule cycles to examine based on factors such as start time 
variability, shift start and end time, and type of work being 
performed.
    When looking at job tasks, some form of a Haddon matrix can be 
helpful in determining the risk associated with a particular hazard. 
Figure 2 shows a basic Haddon risk matrix, which can be customized to 
represent categories of probability and severity that are meaningful 
and useful to the railroad. Such a matrix provides a visual 
representation of risks. As shown in the matrix, when the probability 
of an incident is low and severity is low, the risk is also low. 
Conversely, when the probability of an incident is high and severity is 
high, the risk is also high.
[GRAPHIC] [TIFF OMITTED] TP22DE20.001

    For example, overnight schedules will inevitably include the period 
identified as the Window of Circadian Low.\30\ This low point in 
performance could be evaluated in relation to the duties to be 
performed at that time because an expected raised level of fatigue is 
of greater concern if it coincides with the performance of critical or 
difficult tasks.
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    \30\ The Window of Circadian Low is the time between 2:00 a.m. 
and 6:00 a.m. where individuals are normally adapted to sleep and 
performance of tasks during this period may be degraded. See 
Advisory Circular 120-100, Basics of Aviation Fatigue, 06/07/10, 
U.S. Department of Transportation.
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    Using a fatigue model can be helpful for determining both frequency 
and severity of fatigue risk associated with specific schedules. 
Modeling is extremely useful because it applies scientific principles 
about fatigue to find the specific operational and employee factors 
that could contribute to significant performance changes due to 
fatigue. In general, modeling cannot consider non-duty-related causes 
of fatigue, individual differences related to sleep loss tolerance, and 
individual differences in circadian phase and amplitude. Because of 
these limitations, modeling should never be used to contradict an 
individual's reported fatigue level. However, these models can take 
into account the complex interactions among human physiology, work, and 
rest times. In the absence of such a model, the interaction of these 
factors would be very difficult to specify.
    For example, if a fatigue model identified a particular type of 
work schedule that would benefit from fatigue mitigation, the railroad 
may discover underlying systems issues and factors (e.g., inadequate 
rest facilities, lack of napping opportunities) that not only 
contribute to fatigue-related risks on that work schedule, but also on 
other schedules. The use of fatigue modeling in this way provides 
railroads with a method for systematically identifying and addressing 
the overall underlying system risks--not just the risks for a given 
work schedule.
3. Prioritizing Risks and Implementing Mitigation
    Risk assessment processes must include a method for determining 
which risks most urgently require mitigation, which could be addressed 
at a later time, and which are minor enough that simply monitoring the 
hazard would be

[[Page 83493]]

sufficient. Methods commonly used in Safety Management Systems include, 
but are not limited to, ranking all risks based on their risk score, or 
setting a risk tolerance threshold. If the risk assessment process 
includes a risk tolerance threshold, hazards whose associated risk is 
above that threshold should be addressed; those with risk below the 
threshold need not be mitigated, but should be monitored for change. If 
a risk tolerance threshold is not used, the risks should be tackled in 
whatever priority order is established during the risk assessment. Once 
the assessment of risks associated with fatigue hazards has been 
completed, as part of their FRMP, railroads must develop and implement 
mitigations to reduce as many of those risks as possible.
    Based on an analysis of the factors that lead to fatigue and 
practical mitigation alternatives, one or more mitigation options may 
be applied to reduce fatigue associated with specific schedules or 
situations. Risk mitigations are changes to the way things are done, or 
to the conditions under which things are done, that can reduce either 
the likelihood or the severity of a hazard. Examples of mitigations 
range from small actions, such as replacing a faded sign to improve 
visibility, to very large interventions, such as a system-wide rule 
change or technology implementation and associated training. The 
mitigations selected must be tailored to address at least one of the 
risks assessed. Railroads should, however, be alert to potential 
unintended consequences of mitigations, and be careful to select 
mitigations that minimize the possibility of inadvertently increasing 
other risks.
    There are many ways railroads can mitigate the specific risk types 
that are required under the RSIA as part of an FRMP to be considered 
for mitigation. Below are some examples of how a railroad may mitigate 
these fatigue risks.
    If the risk assessment shows that fatigue risks to the population 
of safety-related railroad employees associated with general health and 
medical conditions meet the railroad's established criteria for 
requiring mitigation, there are several approaches that can be taken. 
The railroad can establish new policies, such as those requiring 
periodic screening for specific medical conditions. The railroad can 
establish practices (e.g., exercise breaks or making healthy foods more 
available) that encourage greater general health and fitness to reduce 
the likelihood of sleep apnea. The railroad can also take steps to 
increase awareness of medical conditions that affect alertness. This 
can be accomplished by providing information about the specific medical 
condition, its risk factors, prevalence, and how to recognize symptoms, 
or by identifying when to seek treatment, how to obtain a diagnosis, 
and treatment options.
    Information relevant to determining when to seek treatment can 
include the time of onset, duration of symptoms, related health 
factors, comorbid conditions, and observations from the employee or 
family. Observation of these factors can be helpful in distinguishing a 
condition such as transient insomnia, which often resolves on its own, 
from chronic insomnia, which frequently requires medical treatment. 
Railroads could consider informing their safety-related employees that 
information from family members may provide insight into a sleep 
disorder of which an employee may otherwise be unaware.
    Railroads can collect information regarding the medical 
professionals involved in diagnosis. For some disorders, this may only 
involve an individual's primary care physician. Other disorders may 
require consultation from a neurologist, sleep specialist, cognitive 
behavioral therapist, or other medical professionals. In addition, it 
may be helpful to list or describe the diagnostic tests involved and 
the typical time required to obtain diagnosis. For example, a diagnosis 
of obstructive sleep apnea may require a sleep study such as a 
polysomnography, which generally requires an individual to spend the 
night in a sleep center.
    Lastly, treatment options could be discussed. For some sleep 
disorders, behavioral modifications or lifestyle changes, such as 
weight loss, may be sufficient to address the medical condition. Other 
medical conditions may require breathing assistance via continuous 
positive airway pressure, medical devices (such as night guards or 
mandibular advancing devices), or medication.
    Sometimes scheduling issues affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of 
sleep. When the risk assessment determines that the risks associated 
with those schedules meets the railroad's established criteria for 
requiring mitigation, methods for mitigating those risks could include: 
(1) Identifying 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 levels disrupt employees' circadian 
rhythm; and (2) developing and implementing alertness strategies, such 
as policies on napping, to address acute drowsiness and fatigue while 
an employee is on duty.
    Alertness strategies are generally classified into two broad 
categories: Preventative and operational. Preventative countermeasures 
are designed to minimize sleep loss and reduce the disruption to 
circadian cycles. The benefits of preventative countermeasures can be 
long-lasting.\31\ Operational countermeasures are designed to enhance 
alertness and task performance and are generally only effective for a 
short time.\32\
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    \31\ Preventative countermeasures include: Adequate sleep/
minimizing sleep loss, strategic napping at times such as before 
working or during an interim release period, good sleep habits/
environment to maximize opportunities for good quality sleep, 
limiting work schedule modification/maximizing schedule 
predictability, diet, exercise, fatigue education, model-based 
schedule optimization/innovative scheduling and staffing practices, 
and opportunities to identify, diagnose, and treat sleep disorders.
    \32\ Operational countermeasures include: Alertness aids 
including, workplace napping, split sleep, rest breaks, self and 
peer monitoring, mental stimulation, worker status alerting or 
monitoring technologies, strategies for shifting an employee's 
biological clock, bursts of physical activity, increasing the number 
of consecutive hours of off-duty rest, during which an employee 
receives no communication from the employing railroad's managers, 
supervisors, officers, or agents, and avoiding abrupt changes in 
rest cycles for employees by improving schedule predictability.
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    Work schedule systems are typically designed to organize the timing 
and structure of work to maximize efficiency and productivity, and 
seldom are these schedules designed to minimize the safety risks 
associated with work schedules that are incompatible with human 
biological limitations, such as circadian rhythm.\33\ Fatigue risk in 
an industry that operates 24 hours a day, 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 that influence the level of 
fatigue risk include the time of day that an employee works, the number 
of consecutive hours worked, direction and frequency of schedule 
rotation, the number of consecutive days that an employee works, amount 
of sleep, and sleep quality. In addition, individual factors such as 
sleep disorders, age, and ``morningness/eveningness'' as well as 
natural circadian rhythms and environmental and social factors may 
affect one's

[[Page 83494]]

fatigue level and alertness.\34\ Developing work schedules that reduce 
the risks of fatigue as part of a systematic FRMP may help a railroad 
balance its productivity and safety needs.
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    \33\ Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules, 
sleep, fatigue, and accidents in the US railroad industry, Fatigue: 
Biomedicine, Health & Behavior, 1, 99-115 (2013), available at: 
http://www.fra.dot.gov/eLib/details/L04272.
    \34\ Horne, J.A., & [Ouml]stberg, O., A self-assessment 
questionnaire to determine morningness-eveningness in human 
circadian rhythms, International Journal of Chronobiology, 4, 97-110 
(1976).
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4. Summary of the Work of the FRMP Working Group's Task Forces
    The FRMP Working Group's Task Forces extensively discussed 
mitigation of identified fatigue risks in the areas set forth in the 
RSIA.
a. The Education and Training Task Force
    The Education and Training Task Force focused on the content and 
dissemination of training on the fatigue issues specific to the 
railroad industry. The Education and Training Task Force began by 
preparing a document summarizing existing fatigue training and 
education materials and highlighting the diversity of the materials and 
some of the major topics they covered. The document also includes 
information on other fatigue educational resources, including The 
Railroaders' Guide to Healthy Sleep website, existing FRA fatigue-
related publications, other rail-related fatigue training and 
educational resources, and general fatigue resources.
    The Education and Training Task Force also created the ``Training 
Topics'' document, which identifies appropriate fatigue-related 
training topics. The ``Training Topics'' document covers four major 
categories: Introductory fatigue training, off-duty fatigue issues, 
preventative strategies, and operational strategies. The Task Force 
members agreed on the content of most of the sections and subsections. 
A few topics represented major areas of concern for both railroad labor 
and railroad management.
    Both labor and management members of the Task Force asked that a 
section on the role of individual differences in fatigue related to 
vulnerability, countermeasure efficacy, and performance be included in 
the ``Training Topics'' document as a topic for introductory fatigue 
training.
    The Education and Training Task Force thoroughly discussed the 
``Training Topics'' section on shiftwork as a cause of fatigue. Much of 
this discussion centered on predictability issues inherent in this type 
of work schedule and differing perspectives on how to address 
predictability.
    Members of the Education and Training Task Force representing labor 
organizations also expressed major concerns with the ``Training 
Topics'' section on commuting. Specifically, labor did not feel the 
commuting section adequately captured the extended commuting 
requirements of some employees (e.g., maintenance-of-way), and the 
concern that extended commuting is a required activity that contributes 
to employee fatigue, even though it occurs during off-duty hours.
    In 2019, FRA released a report examining the relationship between 
accidents and incidents involving maintenance-of-way employees and 
their work schedules to determine the role of fatigue in such accidents 
and incidents.\35\ This report may help address some of the concerns 
raised by the Education and Training Task Force regarding fatigue 
issues experienced by these employees.
---------------------------------------------------------------------------

    \35\ Kumagai, J.K. & Harnett, M., Data analysis for maintenance-
of-way worker fatigue, Washington, DC: Federal Railroad 
Administration (2019), retrieved from: https://www.fra.dot.gov/eLib/Details/L1984.3.
---------------------------------------------------------------------------

    The section of the Training Topics document on scheduling had the 
most areas of concern and protracted discussion, particularly on the 
issue of schedule predictability.
    The Task Force discussed that a fatigue education and training 
program must have the following characteristics to be effective: (1) 
The program must be technically correct, reflecting current scientific 
understanding of the issue being addressed; (2) information must be 
meaningful and useful to the intended audience; (3) the materials must 
be disseminated appropriately; and (4) the program's impact must be 
evaluated. Furthermore, the Task Force discussed the following basic 
elements of any fatigue training and education program.
    (1) Fatigue definitions: Fatigue is a complex state that is 
characterized by a lack of alertness and reduced mental and physical 
performance, often accompanied by drowsiness.\36\ Railroads may also 
wish to provide other definitions that will be used throughout the 
training and education program, including those that are unique to the 
railroad.
---------------------------------------------------------------------------

    \36\ United States Department of Transportation, Partnering in 
Safety: Managing Fatigue: A Significant Problem Affecting Safety, 
Security, and Productivity, p. 5 (1999).
---------------------------------------------------------------------------

    (2) Signs and symptoms of fatigue: Although signs and symptoms of 
fatigue can vary among individuals in both their presence and 
magnitude, it is useful to review common signs and symptoms of fatigue. 
These should not be limited to physiological symptoms such as excessive 
blinking, yawning, or physiological discomfort, but also should include 
fatigue-related performance decrements such as increased reaction time.
    (3) Causes of fatigue: Although individual differences play a 
significant role in how an individual will react to different causes of 
or risk factors for fatigue, some of the main causes of fatigue should 
be highlighted. These include: Amount of sleep, quality of sleep, 
amount of time since last sleep (i.e., number of continuous hours 
awake), time of day (circadian rhythm), workload and time on task, 
amount of recuperative time between wakeful episodes, sleep disorders 
and co-morbid conditions (e.g., stress, depression, anxiety, post-
traumatic stress disorder), general health, and family factors 
(including caregiver responsibilities). In addition, employees may 
provide anecdotal information of fatigue factors for a particular job 
and a railroad may consider this information in addressing causes of 
fatigue in its training program.
    (4) Circadian rhythm: An individual's circadian rhythm dictates 
when he or she will be most alert and at what times he or she will feel 
the most fatigued. Employees should have a general understanding of the 
circadian rhythm, how it affects fatigue levels, how it is impacted by 
the light-dark cycle, and its role in such processes as body 
temperature, brain wave activity, and other biological functions.
    (5) Individual differences: As part of a fatigue training and 
education program, the role individual differences play in fatigue 
should be understood. For example, there is a great deal of variability 
of sleep requirements among individuals. Some individuals may feel 
rested and alert after as few as 5 hours of sleep, while others may 
require 10 or more hours of sleep to feel rested and alert. These sleep 
requirements vary due to such factors as the exact phase and amplitude 
of an individual's circadian rhythm, activity level, age, fatigue 
sensitivity, and health. Furthermore, some individuals may be more 
sensitive to the effects of fatigue, and efficacy of countermeasures 
may vary depending on the individual.
    (6) Fatigue misconceptions: There are some misconceptions 
associated with fatigue. Individuals are often poor judges of both 
their own fatigue level and the efficacy of fatigue countermeasures. 
This is an opportunity to debunk certain ineffective countermeasure 
myths and also to discuss the limitations associated with effective 
countermeasures. Certain stereotypes regarding fatigue can be

[[Page 83495]]

addressed as well. For example, experiencing fatigue does not 
automatically indicate weakness or a lack of motivation.
    (7) Shiftwork: Many railroads operate 24 hours a day, 7 days a 
week, 365 days a year. This operational schedule requires employees to 
work different shifts. Passenger and freight operations, different 
railroad classes, and different jobs will all have different shiftwork 
needs. Some jobs will work a dedicated shift, while other jobs can be 
unpredictable and be based on a variety of factors including train 
schedules, employee availability, and other needs. When discussing 
shiftwork, training content will be influenced by a particular 
railroad's operations and collective bargaining agreements. However, 
discussions of shiftwork should provide information on the fatigue 
risks associated with night work, split shifts, consecutive shifts 
worked, and working different shifts throughout the week. This 
information should include strategies to cope with those shifts 
occurring during circadian lows.
    (8) Illnesses and stress: Although it would be impractical to 
discuss the impact of every possible illness and stressor on fatigue, 
it nevertheless is worthwhile to discuss how illnesses and stress in 
general can impact sleep quality. Furthermore, some stressors and 
illnesses can lead to sensitization to fatigue-inducing factors.
    (9) Consequences of fatigue: The potential consequences of fatigue 
are numerous and varied. However, from a training perspective, the key 
information to convey is the relationship between fatigue and 
performance. Although individual differences will influence how fatigue 
affects performance, in general, as fatigue levels increase, task 
performance decreases, and this decrease in performance increases 
accident risk.
    (10) Introduction to FRA FRMP regulations: A railroad may choose to 
provide an overview of FRA regulations regarding the requirements for 
FRMPs. This overview can highlight any changes to operations as a 
result of the promulgation of the FRMP regulation as well as highlight 
the key requirements that all FRMPs must contain.
    (11) Railroad FRMP: Following information on FRA FRMP regulations, 
a railroad may wish to take time to familiarize its employees with its 
own FRMP. Railroads should highlight any new policies or procedures 
associated with the creation of the FRMP as well as detail any changes 
or benefits that have resulted from its implementation. A railroad may 
also wish to provide employees with a mechanism to provide feedback 
about the FRMP as part of the railroad's own periodic review process. 
In addition, a railroad should familiarize its employees with its 
procedures and processes for reporting fatigue levels and fatigue mark-
off policies.
    As provided in the RSIA, any training and education program should 
be based on a foundation of the most current medical and scientific 
research; \37\ FRA interprets this to include relevant statistical 
information, to the extent possible. FRA notes that resources that 
provide information on the prevalence of sleep disorders, the number of 
Americans not obtaining adequate sleep, and the mental and physical 
implications that result are available and updated annually.\38\ Sleep 
research collected from and related to railroad employees of various 
crafts is also available.
---------------------------------------------------------------------------

    \37\ 49 U.S.C. 20156(f)(3)(A).
    \38\ Example resources include:
    Calabrese, C., Mejia, B., McInnis, C.A., France, M., Nadler, E., 
& Raslear, T.G., Time of day effects on railroad roadway worker 
injury risk, Journal of Safety Research, 61, pp. 53-64 (2017).
    Dorrian, J., Baulk, S.D., & Dawson, D., Work hours, workload, 
sleep and fatigue in Australian Rail Industry employees, Applied 
Ergonomics, 42(2), pp. 202-209 (2011).
    Dorrian, J., Hussey, F., & Dawson, D., Train driving efficiency 
and safety: Examining the cost of fatigue, Journal of Sleep 
Research, 16, pp. 1-11 (2007).
    Gertler, J., Difiore, A., & Raslear, T., Fatigue Status of the 
U.S. Railroad Industry, Washington, DC: U.S. Department of 
Transportation, Federal Railroad Administration (2013).
    Gertler, J., & Viale, A., Work Schedules and Sleep Patterns of 
Railroad Maintenance of Way Workers, Washington, DC: U.S. Department 
of Transportation, Federal Railroad Administration (2006).
    Kumagai, J. & Harnett, M. Data Analysis for Maintenance-of-Way 
Worker Fatigue (2019), available at: https://www.fra.dot.gov/eLib/details/L19843#p1_z50_gD_lRT.
    Sussman, D., & Coplen, M., Fatigue and Alertness in the United 
States Railroad Industry Part 1: The Nature of the Problem, 
Transportation Research Part F: Traffic Psychology and Behaviour, 
3(4), pp. 211-220 (2000).
    Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules, 
sleep, fatigue, and accidents in the US railroad industry, Fatigue: 
Biomedicine, Health & Behavior, 1, pp. 99-115 (2013), available at: 
http://www.fra.dot.gov/eLib/details/L04272.
    https://www.cdc.gov/sleep/index.html and https://www.sleepfoundation.org./
---------------------------------------------------------------------------

    The Education and Training Task Force also identified training 
topics addressing off-duty fatigue issues and preventative strategies. 
These included common sleep disorders, physiological versus subjective 
assessments of fatigue, lifestyle factors, nutrition and hydration, 
exercise, substance use, the home environment, and commuting.
    The Task Force also created a ``Dissemination Strategies'' document 
outlining steps railroads should consider when choosing delivery 
approaches for fatigue education and training, and suggesting methods 
railroads could use for successful evaluation of a fatigue education 
and training program. The ``Dissemination Strategies'' document 
identifies and discusses the following ten elements of an effective 
dissemination and evaluation plan listed below.
    1. Goals: The first step in an effective dissemination and 
evaluation plan is determining and documenting the goals for the 
training and education program. The primary question to ask at this 
step is: What is the desired outcome of the training and education 
program? Different railroads may have different training goals and 
these goals will help shape how information is presented to employees.
    2. Objectives: When considering objectives of a fatigue training 
and education program, determine specific areas of accomplishment for 
each goal. Once those areas have been established, the next step is to 
determine what will be required to measure success.
    3. Measuring Success: There is no single ``correct'' way to measure 
success. However, any measure of success should indicate if the 
material reached the intended audience, was understood, and had a 
positive effect. Evaluation strategies may be direct, such as 
administering a quiz to test knowledge of a particular topic, or 
indirect, such as looking at safety culture change as a result of 
training. Neither method is superior to the other, but multiple 
evaluation strategies may provide a more comprehensive understanding of 
program efficacy.
    4. Employees Covered: An effective dissemination and evaluation 
plan should identify the employees covered by the different elements of 
a training and education program. There may be some elements of a 
program that apply to all railroad employees, while other elements may 
only apply to a particular craft, shift, or schedule type. At this 
stage, thought should also be given to any special needs a covered 
group may have. For example, if a large percentage of a covered group 
does not have email access, disseminating information via email would 
be neither practical nor effective.
    5. Content: Perhaps the most important element to consider when 
developing a dissemination and evaluation plan is the content to be 
presented. At this step, proposed fatigue training and education 
content should be reviewed to make sure it is accurate and relevant to 
the covered groups.
    6. Source: Care should be given to ensure that information 
presented

[[Page 83496]]

comes from credible and trusted sources.
    7. Presentation Medium: At this stage in the process, the program 
designer should determine the most effective methods to present 
different elements of the fatigue training and education program. Some 
information may be best suited for in-person training while other 
information might be best conveyed through publications. Some 
presentation media to consider include in-class training, informational 
videos, handouts, peer-to-peer efforts, job briefings, and conferences 
or other meetings. Depending on the covered group's access to the 
internet, Web resources such as Web-based training, emails, websites, 
blogs, and social media could also be used. The preceding examples are 
not an exhaustive list, and each railroad will need to tailor its 
presentation media based on the identified goals, objectives, and 
employees to be covered.
    8. Access: Fatigue training and education should be an ongoing 
process. Therefore, it is important that employees have easy access to 
information. Employees should have a way to revisit information that 
was previously presented. Examples of making information accessible 
could include providing access to fatigue presentations on the company 
Intranet after an initial classroom presentation, handouts after a one-
time job briefing, or posters that highlight key points.
    9. Availability: At this step, a railroad developing a fatigue 
training and education program should consider strategies for promoting 
awareness of the availability of training and educational materials.
    10. Challenges: The challenges related to effectively disseminating 
and evaluating information as part of a fatigue training and education 
program will vary greatly. These challenges could include a variety of 
issues, such as difficulty reaching a particular group, lack of 
resources to present a topic as originally planned, or even glitches in 
Web technology. Determining how best to deliver information in a manner 
that is understandable, appropriate, and engaging to different employee 
groups will present its own set of challenges. At this stage, potential 
challenges should be identified as well as solutions for overcoming or 
mitigating these challenges.
    Finally, the Education and Training Task Force created a document 
that highlights and explains two general categories of fatigue 
countermeasures (preventative and operational), and provides examples 
of each. Preventative countermeasures, as the name suggests, are 
countermeasures designed to minimize sleep loss and reduce the 
disruption of circadian cycles and the benefits of preventative 
countermeasures can be long-lasting. Operational countermeasures are 
designed to enhance alertness and task performance while on duty and 
are generally only effective for a short time.
b. Scheduling Task Force
    The FRMP Working Group's Scheduling Task Force discussed the 
scheduling issues that affect fatigue. However, several issues 
prevented agreement on scheduling including: (1) The need to 
differentiate between employees covered by HOS limitations (covered 
service employees) and employees not covered by such requirements; (2) 
the need for waivers and/or pilot projects to implement scheduling 
practices that might conflict with existing HOS limitations; (3) 
disagreement on whether using biomathematical fatigue models is 
appropriate for freight operations; (4) potential conflict with 
existing collective bargaining agreements; and (5) how much emphasis 
should be placed on an employee's work schedule predictability. The 
Scheduling Task Force did not produce a document.
c. Infrastructure and Environment Task Force
    The Infrastructure and Environment Task Force provided guidelines 
it suggested railroads should consider to mitigate fatigue when 
employees are involved in emergency work. The Task Force interpreted an 
emergency based on the nonapplication language in the HOS laws at 49 
U.S.C. 21102(a). Specifically, the ``Emergency Work'' document provides 
that an emergency for purposes of the guidelines is defined in 49 
U.S.C. 21102(a)(1)-(4), which states that the HOS requirements do not 
apply to situations involving a casualty, an unavoidable accident, an 
act of God, or a delay resulting from a cause unknown and unforeseeable 
to a railroad carrier or its officer or agent in charge of the employee 
when the employee left a terminal.
    This definition incorporates a wide variety of emergency 
situations, including those referred to in section 20156(f)(3)(C), 
``derailments and natural disasters, or engagement in other intensive 
working conditions.'' The employees responsible for responding to these 
emergency situations may include employees performing functions not 
covered by HOS requirements, and the ``Emergency Work'' document makes 
clear that the Infrastructure and Environment Task Force intended it to 
apply to these employees as well. For example, the ``Emergency Work'' 
document includes provisions such as relief assignments when an 
emergency is anticipated to extend more than 16 hours, and provisions 
to offer relief lodging for employees both between shifts of extended 
work at an emergency location, and, if necessary, for an employee to 
rest before commuting home after an extended period of emergency 
service. Such provisions would provide some protection against fatigue 
for those employees not subject to HOS requirements and, if the 
emergency situation resulted in the nonapplication of the HOS laws, for 
employees performing service normally covered by the HOS limitations.
    The Task Force also created two documents; ``Accommodations'' and 
``Dispute Resolutions,'' focused on mitigating fatigue related to 
issues at lodging facilities. The first document, ``Accommodations,'' 
includes guidelines for accommodations where employees rest during off-
duty periods, and the second document, ``Dispute Resolutions,'' 
provides dispute resolution procedures for issues arising with lodging 
facilities that interfere with an employee's ability to rest.\39\ The 
Task Force made clear that the ``Accommodations'' and ``Dispute 
Resolution'' documents were intended to apply to all employee lodging, 
even lodging that is not ``railroad provided'' (e.g., commercial 
hotels).
---------------------------------------------------------------------------

    \39\ Under 49 U.S.C. 21106, a railroad may provide sleeping 
quarters for employees, and any individuals employed to maintain the 
right-of-way of a railroad carrier, only if the sleeping quarters 
are clean, safe, and sanitary, give those employees and individuals 
an opportunity for rest free from the interruptions caused by noise 
under the control of the carrier, and provide indoor toilet 
facilities, potable water, and other features to protect the health 
of employees. Further, 49 CFR part 228, subpart C, provides 
additional requirements for railroad-provided sleeping quarters.
---------------------------------------------------------------------------

    The Task Force indicated that the accommodations guidelines are 
intended to provide elements for discussion during the required 
consultation between management and labor about a railroad's FRMP, 
rather than to provide minimum standards for lodging facilities. The 
Task Force did not expect every lodging facility would meet all of the 
listed criteria. The Task Force agreed that while the listed elements 
were desirable, they may not be possible at all locations, and, in some 
cases, collective bargaining agreements might provide for other 
arrangements. For example, while the guidelines recommend a single 
occupancy room, some existing labor agreements may provide for four 
employees to a room. Similarly, while a full or double bed

[[Page 83497]]

may be preferred, there may be locations where this is not an option 
and only single beds are available at the only available lodging 
facility.
    The ``Dispute Resolution'' document recognizes that employees will 
first seek to resolve issues at lodging facilities with on-site staff, 
such as the front desk at a hotel. The ``Dispute Resolution'' document 
recommends that FRMP plans include a railroad contact with authority 
over lodging decisions and require that contact to make a good faith 
effort to resolve lodging issues in a timely manner so the employee can 
obtain adequate rest before returning to duty. For example, if the heat 
is not working in a given room, the lodging facility will likely move 
the employee to a different room. However, if there were no other rooms 
available, or if the issue were something like electric power being out 
at an entire facility, the railroad contact should become involved to 
assist the employee in finding alternate lodging.
    The ``Dispute Resolution'' document provides that FRMP plans should 
contain a dispute resolution process covering sleeping accommodations 
provided by or through the railroad. It should be noted that this 
process is not intended to supplant or modify the requirements 
established by 49 CFR 228.333, Remedial action, as part of the Camp Car 
regulation. The Task Force suggested that any FRMP dispute resolution 
process should be designed to address problems associated with the 
sleeping accommodations that would interfere with an employee obtaining 
adequate rest. As part of the FRMP plan, the Task Force recommended 
that railroads identify a protocol for contacting a railroad 
representative should resolution with a lodging facility fail.
    The Task Force identified parameters it recommended employer-
provided lodging should meet to the extent practicable. FRA notes that 
interim rest facilities provided by passenger train operators under 49 
CFR 228.409, Requirements for railroad-provided employee sleeping 
quarters during interim releases and other periods available for rest 
within a duty tour, are subject to the requirements of that section. As 
such, the Task Force's suggested parameters are not applicable to 
interim rest facilities under Sec.  228.409. In addition, local labor 
agreements may supersede or supplement some of the elements of these 
parameters. The parameters the ``Dispute Resolution'' document 
identifies include structural factors, availability of meal 
accommodations, building safety and security, and personal hygiene and 
sanitation.
    The Task Force ``Dispute Resolution'' document does not define 
``adequate rest,'' nor does it specify the conditions at a lodging 
facility that would prevent an employee from obtaining adequate rest. 
Employees covered by HOS laws or regulations would be required to 
receive the amount of off-duty time provided under the relevant laws or 
regulations. For other employees, rest requirements may depend on the 
situation, or may be provided by a collective bargaining agreement or 
other mechanism. However, the Task Force ``Dispute Resolution'' 
document suggests that if an issue arises at a lodging facility that 
interferes with an employee's ability to obtain rest, the employee 
should receive the amount of rest he or she would have had if the 
lodging issue had not occurred. For example, if there are no towels in 
the room when an employee arrives, but the front desk promptly brings 
towels upon request, this should not hinder the employee's ability to 
get adequate rest. On the other hand, if an employee is provided a room 
with a broken bed, and it takes five hours to locate another room or 
bed, the railroad may need to adjust the time an employee is required 
to return to duty so the employee can obtain adequate rest.
    Lastly, as part of its discussions, the Task Force identified 
circumstances when employees may have to work under excessive fatigue 
conditions. In these instances, when, despite best efforts, employees 
must work under conditions identified as having an excessive risk for 
fatigue, the Task Force discussed that the specific risks and hazards 
associated with operations under excessive fatigue should be 
identified. Once identified, an excessive fatigue protocol can be 
implemented for employees at risk. The Task Force suggested that 
railroads may wish to consider formalizing these protocols into a 
Workplace Fatigue Policy. They also suggested that a fatigue policy may 
be an effective way to communicate how operations will be handled when 
employees are working under fatigued conditions. This policy could be 
system-wide or site or craft specific. A fatigue policy may include 
information about: (1) Roles and responsibilities of employees and 
supervisors when working under excessive fatigue conditions; (2) 
maximum shift length; (3) control measures for specific jobs, tasks, or 
operations; (4) fatigue self-assessment checklists; (5) identification 
of errors that are more likely to happen when fatigued and procedures 
to reduce the likelihood of these errors; (6) procedures for managing 
employees working under excessive fatigue conditions; (7) procedures 
for reporting potential hazards and risks; and (8) procedures for when 
an employee is too fatigued to continue work (e.g., temporary work 
assignment).
5. Tracking Performance
    As required in 49 CFR 270.103(p)(1)(viii) and 49 CFR 271.105(c)(3), 
FRA proposes that each railroad must develop a system to track 
identified risks and mitigation strategies within the FRMP. Railroads 
must continually monitor all identified risks, not just risks that are 
currently being targeted for mitigation. As a railroad's FRMP matures, 
mitigation strategies are implemented, and operations change, risks 
will also change. A railroad may find that certain risks have been 
essentially eliminated, while others may have been significantly 
reduced, and previously undetected risks may emerge. As risks develop, 
the system must be able to incorporate these newly identified risks 
into their processes.
    Evaluation of fatigue-related information might show that some 
mitigation strategies do not meet expectations for effectively reducing 
fatigue. It could also show that changes in schedules, the addition of 
new technologies, turnover in the workforce, added demands for service, 
and other operational changes could present new fatigue hazards or 
change the risks associated with hazards already known. When either of 
these circumstances arises, the fatigue risk landscape is altered, and 
the railroad should again use the risk factor analysis processes to 
address those changes.
    For risks being mitigated, the railroad should note the date the 
mitigation strategy was implemented and track the progress and success 
of the mitigation strategy over time. Risks that are not mitigated or 
have not been mitigated to the extent desired should be evaluated for 
changes in mitigation strategies, as appropriate. Risks that have been 
successfully eliminated should be noted, and new risks that have 
emerged should be assessed for probability and severity and 
incorporated into the railroad's risk assessment catalog. Existing 
risks should also be reviewed for changes in probability and severity. 
As a railroad reviews its fatigue-related risks and risk tolerance, the 
risks to be mitigated and the types of mitigation strategy to be used 
may change over time. Evaluation might also show that some portion of 
the FRMP is not being implemented as designed. It could also identify 
aspects of the program that, even though they are working as

[[Page 83498]]

designed, are not effective. In any of these instances, the evaluation 
could lead to program improvements.
    Finally, consistent with 49 CFR 271.107, an effective FRMP includes 
feedback mechanisms and regular information updates about the system to 
all affected employees to encourage cooperative participation in the 
FRMP.

V. Section-by-Section Analysis

    FRA proposes to amend 49 CFR part 270 (SSP) by adding a new subpart 
E, and to amend 49 CFR part 271 (RRP) by adding new subpart G. As 
proposed, each of these new subparts would be titled ``Fatigue Risk 
Management Programs;'' substantively identical; and set forth the 
requirements for railroads to develop and implement FRMPs as part of 
their SSPs or RRPs. FRA also proposes to amend: Sec.  270.103(a)(1) to 
ensure a railroad's SSP plan includes subpart E, by replacing the word 
``section'' with the word ``part''; Sec.  271.101(a) by adding an FRMP 
to the list of required elements of an RRP; and Sec.  271.201, to 
include an FRMP plan as a required component of an RRP plan.
    The new subparts would require each railroad subject to part 270 or 
part 271 (covered railroads) to establish and implement an FRMP that is 
supported by an FRA-approved written FRMP plan, as a component of a 
railroad's SSP or RRP. This proposed rule would also require covered 
railroads to review their FRMP annually, and if necessary, make FRA-
approved updates to their plans. FRA is proposing this rule in its 
effort to improve rail safety continually and to satisfy the statutory 
mandate in 49 U.S.C. 20156. FRA seeks comments on all aspects of the 
proposed rule.

Sections 270.401 and 271.601--Definitions

    Proposed Sec. Sec.  270.401 and 271.601 contain definitions for 
terms used in this NPRM. The sections include proposed definitions for 
the terms: Contributing factor, fatigue, fatigue-risk analysis, FRMP, 
FRMP plan, and safety-related railroad employee. The proposed 
definitions are intended to clarify the meaning of important terms used 
in this proposed rule and to minimize potential misinterpretation of 
the regulations. FRA is proposing to define ``contributing factor'' as 
a circumstance or condition that helps cause a result (i.e., fatigue). 
Contributing factors do not necessarily cause fatigue by themselves, 
but they can increase the likelihood fatigue will occur, or can 
increase the severity of fatigue when it does occur. Eliminating or 
mitigating contributing factors may not eliminate fatigue and 
associated risk, but doing so can moderate the frequency with which it 
occurs, or reduce the severity of fatigue consequences.
    While the RSIA did not define ``fatigue,'' FRA is proposing to 
define ``fatigue'' consistent with the DOT operational definition \40\ 
of the term, as ``a complex state characterized by a lack of alertness 
and reduced mental and physical performance, often accompanied by 
drowsiness.''
---------------------------------------------------------------------------

    \40\ United States Department of Transportation, Partnering in 
Safety: Managing Fatigue: A Significant Problem Affecting Safety, 
Security, and Productivity, 1999; p. 5.
---------------------------------------------------------------------------

    FRA proposes to define ``fatigue risk analysis'' as a risk-based 
analysis that is focused on the hazards and risks associated with 
fatigue. In 49 CFR 271.103(b), a covered railroad is required to 
conduct a risk-based hazard analysis of its operations that includes: 
(1) Identification of hazards; and (2) a calculation of risk by 
determining and analyzing the likelihood and severity of potential 
events associated with those hazards. See also 49 CFR 270.5, definition 
of risk based hazard management. FRA proposes to define FRMP as fatigue 
risk management program, and the FRMP plan is the documentation that 
describes the processes and procedures a railroad uses to implement its 
FRMP.
    Section 20156(f)(1) requires a railroad to have a fatigue 
management plan designed to reduce the fatigue experienced by ``safety-
related employees.'' FRA proposes to define ``safety-related railroad 
employee'' consistent with the definition of the term in 49 U.S.C. 
20102. As proposed, ``safety-related railroad employee'' would mean a 
person: (1) Subject to 49 U.S.C. 21103, 21104, or 21105 or 49 CFR part 
228 subpart F (the hours of service laws and regulations); (2) involved 
in railroad operations, but not subject to the hours of service laws 
and regulations; (3) who inspects, installs, repairs or maintains 
track, roadbed, signal and communication systems, and electric traction 
systems including a roadway or railroad bridge worker; (4) who is a 
hazmat employee as defined in 49 U.S.C. 5102(3); (5) who inspects, 
repairs, or maintains locomotives, passenger cars, or freight cars; or 
(6) who is the employee of any person who enters into a contractual 
relationship with the railroad either to perform significant safety-
related services on the railroad's behalf or to utilize significant 
safety-related services provided by the railroad for railroad 
operations purposes, if the person performs one of the functions 
identified in paragraphs (1) through (5).
    The SSP and RRP rules do not use the term ``safety-related 
employee'' because the RSIA does not limit the railroad safety risk 
reduction requirement to these employees. See 49 U.S.C. 20156(a)-(e). 
FRA requests comment on whether the proposed definition of ``safety-
related employee'' captures the intended scope of Congress's mandate 
for fatigue management plans in Section 20156.
    FRA requests public comment on these proposed definitions and 
whether other terms used in this proposal should be defined.

Sections 270.403 and 271.603--Purpose and Scope of a FRMP

    Proposed Sec. Sec.  270.403 and 271.603 explain the purpose and 
scope of the proposed rule. As proposed, paragraph (a) of each section 
states that the purpose of the subparts is to require railroads to 
develop and implement FRMPs to improve railroad safety through 
structured, proactive processes and procedures to identify and mitigate 
the risks associated with fatigue on their employees.
    Proposed paragraph (b) of these sections address the scope of the 
proposed rule and would require railroads to develop their FRMPs to 
reduce the fatigue of their safety-related railroad employees and to 
reduce the risk of railroad accidents, incidents, injuries, and 
fatalities where the fatigue of any of these employees is a 
contributing factor.\41\ Proposed paragraph (b) further requires each 
railroad, in developing its FRMP, to identify and evaluate, 
systematically, the fatigue-related railroad safety hazards and risks 
on its system, determine the degree of risk associated with each 
hazard, and manage those risks to reduce the fatigue that its safety-
related railroad employees experience. This system-wide fatigue risk 
identification and evaluation process must account for the varying 
circumstances of railroad operations on different parts of its system. 
The railroad would then be required to employ in its FRMP the 
appropriately identified fatigue risk mitigation

[[Page 83499]]

strategies to address those varying circumstances.\42\
---------------------------------------------------------------------------

    \41\ The RSIA requires railroads ``to reduce the likelihood of 
accidents, incidents, injuries, and fatalities caused by fatigue.'' 
Fatigue is a complex and multifaceted condition with varying effects 
among individuals; however, it is not always the primary cause of an 
accident or incident. The presence of fatigue can increase the 
likelihood of an accident happening, or it can make the consequences 
of an accident more severe. FRA uses the term ``contributing 
factor'' to make clear that railroads may choose mitigations that 
address either the likelihood or the severity of an accident, 
incident, injury, or fatality caused in part by fatigue.
    \42\ See 49 CFR 270.407(c) and 271.607(c).
---------------------------------------------------------------------------

Sections 270.405 and 271.605--General Requirements; Procedure

    These proposed sections set forth the rule's general requirements. 
Paragraph (a) in each of these sections would require each railroad 
subject to either RRP or SSP to establish and implement an FRMP fully 
as part of its SSP or RRP. As proposed, these paragraphs would also 
require each railroad to develop and implement an FRMP plan to support 
its FRMP. A railroad's FRMP plan would be required to meet the 
requirements of proposed Sec.  270.409 or 271.609, and be approved by 
FRA under the processes in subpart C of part 270 or subpart D of part 
271. Consistent with Section 20156's mandate for railroads to update 
their fatigue mitigation plans periodically, proposed paragraph (a) 
would also require railroads to update their FRMP plans as necessary as 
part of the annual, internal assessment of the railroad's SSP or RRP 
already required by existing Sec. Sec.  270.303 and 271.401. FRA 
believes the annual internal assessment should be sufficient for a 
railroad to determine whether any aspect of its FRMP plan requires 
updating. FRA requests comments on whether the annual internal 
assessment provides an appropriate mechanism and timing for evaluating 
and updating railroads' FRMP plans.
    Proposed paragraph (b) of these sections would require a railroad 
to explain in its FRMP plan its method for analyzing fatigue risks and 
its process(es) for implementing its FRMP.
    Proposed paragraphs (c) of these sections would require railroads 
to submit their FRMP plans to FRA for approval either within six months 
of publication of a final rule in this proceeding or within the 
applicable existing timelines in parts 270 and 271 for filing SSP or 
RRP plans. These paragraphs would also require railroads to follow the 
existing processes in parts 270 and 271 for submitting updates of their 
FRMP plans to FRA for approval.
    Proposed paragraph (d) would require FRA to approve or disapprove 
railroads' FRMP plans (and any updates) under the existing approval 
processes in parts 270 and 271 applicable to FRA approval of railroad 
SSP plans and RRP plans.

Sections 270.407 and 271.607--Requirements for an FRMP

    Proposed Sec. Sec.  270.407 and 271.607 set forth the proposed 
requirements for railroads' FRMPs. As proposed, paragraph (a) of these 
sections sets forth the general requirement that a railroad subject to 
part 270 or 271 would have to establish and implement an FRMP that 
meets certain requirements.
    Proposed paragraph (b) of these sections contains the minimum 
requirements for the fatigue-risk analysis part of a railroad's FRMP. 
These paragraphs specify that a railroad's fatigue-risk analysis must 
include identification of fatigue-related railroad safety hazards, 
assessment of the risks associated with those hazards, and 
prioritization of those risks for mitigation. The proposed paragraph 
also requires that the fatigue risk analysis consider, at a minimum, 
three categories of risk factors:
    (1) General health and medical conditions that can affect the 
fatigue levels of safety-related railroad employees;
    (2) scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of 
sleep; and
    (3) characteristics of each job category worked by safety-related 
railroad employees that can affect the fatigue levels and risk for 
fatigue of safety-related railroad employees.
    Railroads are not limited to consideration of these three types of 
risk factors in their FRMPs and FRA encourages railroads to consider 
other relevant factors based on developments in fatigue science. The 
types of principles and processes that inform a fatigue-risk analysis 
are well-established and, as discussed in detail above and in the 
preamble of the SSP and RRP proposed rules, have been adopted into 
industry standards and described in detail in other written resources. 
See 77 FR 55375 and 80 FR 10953. For example, as discussed in those 
preambles, MIL-STD-882,\43\ APTA's Manual for the Development of System 
Safety Program Plans for Commuter Railroads,\44\ and FRA's Collision 
Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service 
discuss how to conduct risk analyses in detail.\45\ A railroad subject 
to this part could use any of these resources when developing and 
conducting a fatigue-risk analysis. FRA requests public comment as to 
whether additional resources are necessary to help railroads comply 
with the requirements of this proposed section and if so, what type of 
additional resources would be necessary.
---------------------------------------------------------------------------

    \43\ Department of Defense, Standard practice system safety, 
(MIL-STD-882E) (2012), retrieved from https://www.dau.edu/cop/armyesoh/DAU%20Sponsored%20Documents/MIL-STD-882E.pdf (last accessed 
on July 27, 2020).
    \44\ https://www.trbtss.org/wp-content/uploads/2016/03/APTA-Safety-Management-System-Manual.pdf (last accessed on July 27, 
2020).
    \45\ https://www.fra.dot.gov/eLib/Details/L03191 (last accessed 
on July 27, 2020).
---------------------------------------------------------------------------

    Paragraph (c) of these sections would require a railroad as part of 
its FRMP to develop and implement mitigation strategies that improve 
safety by reducing the risk of railroad accidents, incidents, injuries, 
and fatalities where fatigue of any of its safety-related railroad 
employees is a contributing factor. These paragraphs state that as a 
railroad develops and implements mitigation strategies, it would be 
required to consider, at a minimum, the railroad's policies, practices, 
and communication. Paragraphs (c)(1)-(3) describe each of these three 
areas of consideration in more detail.
    Paragraph (c)(1) would require railroads to consider developing and 
implementing policies to reduce the risk of the exposure of its safety-
related railroad employees to fatigue-related railroad safety hazards 
on its system.
    Paragraph (c)(2) would require railroads to consider developing and 
implementing operational practices to reduce the risk of the exposure 
of its safety-related railroad employees to fatigue-related railroad 
safety hazards on its system.
    Paragraph (c)(3) would require railroads to consider developing and 
implementing training, education, and outreach methods to deliver 
fatigue-related information effectively to its safety-related railroad 
employees. At a minimum, a railroad must consider the need to include 
employee education and training on the physiological and human factors 
that affect fatigue and strategies to reduce or mitigate the effects of 
fatigue based on the most current scientific and medical research and 
literature. If a railroad chooses to include these subjects in its 
training, this training would supplement the requirement in 49 CFR part 
243 to develop minimum training standards for each occupational 
category that includes a list of the Federal railroad safety laws, 
regulations, and orders that an employee is required to comply with by 
adding employee fatigue education and training topics that relate to 
employee safety independent of any regulatory or statutory 
requirements.
    Paragraph (d) proposes requirements for a railroad to develop and 
implement procedures and processes for monitoring and evaluating its 
FRMP. Monitoring and evaluation are necessary parts of a railroad's 
FRMP; they enable a railroad to determine whether the FRMP is 
effectively reducing the numbers and rates of railroad accidents,

[[Page 83500]]

incidents, injuries, and fatalities where fatigue is a contributing 
factor.

Sections 270.409 and 271.609--Requirements for a FRMP Plan

    Proposed Sec. Sec.  270.409 and 271.609 would require a railroad to 
adopt and implement its FRMP through an FRMP plan that meets certain 
requirements. As proposed, paragraph (a) of these sections would 
require railroads to develop their FRMP plans in consultation with 
directly-affected employees and FRA would have to approve a railroad's 
FRMP. The existing consultation and approval processes of parts 270 and 
271 would apply.
    Proposed paragraph (b) would require the FRMP plan to describe 
specific, fatigue-related goals of the FRMP and clear strategies for 
attaining those goals.
    Proposed paragraph (c) addresses the methods a railroad uses to 
develop its FRMP plan. Proposed paragraph (c)(1) would require an FRMP 
plan to describe the railroad's method(s) for conducting the fatigue-
risk analysis as part of its FRMP.\46\ While FRA understands that 
railroads subject to a final FRMP rule would likely need to develop 
processes unique to their own operations, FRA expects that railroads' 
fatigue-risk analysis processes will use techniques similar to those 
currently used in other safety management systems. This section also 
specifies information railroads must include in an FRMP plan's 
description of a railroad's fatigue-risk analysis. FRA requests comment 
on whether additional resources are necessary to help railroads comply 
with the requirements of this proposed section and if so, what type of 
resources would be helpful.
---------------------------------------------------------------------------

    \46\ As previously discussed, railroads could look to well-
established safety management systems which describe processes for 
conducting a fatigue-risk analysis, such as MIL-STD-882, APTA's 
Manual for the Development of System Safety Program Plans for 
Commuter Railroads, and FRA's Collision Hazard Analysis Guide: 
Commuter and Intercity Passenger Rail Service.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2) would require an FRMP plan to describe 
the railroad's processes for identifying and selecting mitigation 
strategies, and for monitoring identified hazards while the risk 
associated with the hazard is being mitigated.
    Proposed paragraph (c)(3) would require an FRMP plan to describe a 
railroad's processes for monitoring and evaluating the overall 
effectiveness of the FRMP and the mitigation strategies, along with 
procedures for reviewing and updating the FRMP. As noted above, FRA 
anticipates this review will be the same as for the overall SSP or RRP.
    Proposed paragraph (d) of this section would require an FRMP plan 
to describe how the railroad will implement its FRMP. As proposed, a 
railroad may implement its FRMP in stages, provided the FRMP is fully 
implemented and operational within 36 months of FRA's approval of the 
plan. This implementation plan would cover the entire implementation 
period and contain a timeline (beginning with the date FRA approves the 
railroad's FRMP plan) describing when the railroad will achieve 
specific and measurable implementation milestones.
    Consistent with 49 CFR 270.103(p)(2)(i) and 49 CFR 271.203(b)(3), 
as part of the implementation description, proposed paragraph (d)(1) 
would require a railroad to include a description of the roles and 
responsibilities of each position or job function with significant 
responsibility for implementing the railroad's FRMP (including any 
positions or job functions held by an entity or contractor that 
provides significant FRMP services for the railroad).
    Consistent with 49 CFR 271.225(b)(2), proposed paragraph (d)(2) 
would require a railroad to include a description of the planned 
timeline for meeting the milestones required for the FRMP plan to be 
fully implemented. Proposed paragraphs (d)(3) and (d)(4) would require 
a railroad to describe how it will make significant changes to the 
FRMP, and procedures for consultation with directly affected employees 
on substantive amendments to the FRMP plan.
    Proposed paragraph (e) would require that a railroad submit its 
FRMP plan to FRA by amending its SSP plan or RRP plan. Since this 
proposed rule would be published as a final rule after the SSP and RRP 
final rules are in effect and railroads have submitted their SSP plans 
or RRP plans to FRA under part 270, subpart C, or part 271, subpart D, 
railroads would need to amend their SSP plans or RRP plans to include 
an FRMP plan. Thus, as proposed, a railroad would follow the procedures 
in Sec.  270.201(c) or 271.303 to amend its SSP plan or RRP plan. FRA 
proposes that an FRMP plan is not considered a safety-critical 
amendment of an SSP plan for the purposes of Sec.  270.201(c)(1)(ii), 
so a railroad should be able to submit the FRMP plan to FRA as an 
amendment to its SSP plan or RRP plan 60 days before the proposed 
effective date of the FRMP plan. If a railroad is initially not 
required to submit an SSP plan or RRP plan, but is later required to, 
the railroad must include an FRMP plan as part of its SSP plan or RRP 
plan submission to FRA, or submit the FRMP plan by August 19, 2021, 
whichever is later. FRA will review the railroads' FRMP plans under the 
amendment process in Sec.  270.201(c)(2) or 271.303(c).

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is a non-significant regulatory action within 
the meaning of Executive Order 12866 (E.O. 12866) and DOT's 
Administrative Rulemaking, Guidance, and Enforcement Procedures in 49 
CFR part 5.
    FRA has prepared and placed a Regulatory Evaluation addressing the 
economic impact of this proposed rule in the docket (Docket No. FRA-
2015-0122). The Regulatory Evaluation contains estimates of the costs 
and benefits of this proposed rule that are likely to be incurred over 
a ten-year period. FRA estimated the costs and benefits of this 
proposed rule using discount rates of 3 and 7 percent. FRA was unable 
to quantify the costs and benefits for all the elements within the 
proposed regulation for both passenger and freight railroads. FRA 
presents monetized costs and benefits where possible and discusses 
those non-quantified elements qualitatively where data was lacking.
    Section 103 of the RSIA mandates that FRA (as delegated by the 
Secretary) require certain railroads to establish a railroad safety 
risk reduction program, of which an FRMP is a required component. This 
proposed rule is part of FRA's efforts to improve rail safety 
continually and to satisfy the statutory mandate in the RSIA.
    FRA anticipates railroads will develop and implement mitigation 
strategies that are either cost-beneficial or cost-neutral to the 
railroad. FRA requests public comment on this assumption. FRA is 
particularly interested in the experience of railroads that have 
already utilized mitigation strategies to reduce the risk of the 
exposure of safety-related railroad employees to fatigue-related 
railroad safety hazards on their systems; specifically, whether the 
railroads have realized costs and benefits from the development and 
implementation of such mitigation strategies, and how much those 
strategies cost the railroads to implement.
    The Regulatory Evaluation analyzes two mitigation strategies to 
quantify potential costs and benefits that railroads may achieve 
through the proposed regulation: Training and screening for sleep 
conditions. However, since the proposed regulation gives railroads the 
flexibility to select

[[Page 83501]]

the mitigation strategies that would work best for them rather than 
prescribing standards, there is a high amount of uncertainty in FRA's 
costs and benefit estimates, specifically pertaining to the training 
mitigation, as FRA is unsure how railroads will implement the various 
mitigations.
    The costs and benefits \47\ associated with the proposed rule are 
presented in Table VI-1 below:
---------------------------------------------------------------------------

    \47\ Unless otherwise noted, costs and benefits are presented in 
2018 dollars.

                           Table VI-1--Summary of Total 10-Year Impact (2018 Dollars)
                                                  [In millions]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value   Annualized at   Annualized at
        Calculation aid               Costs             7%              3%              7%              3%
----------------------------------------------------------------------------------------------------------------
A.............................  Training Only              $2.02           $2.04           $0.29           $0.24
                                 (low).
B.............................  Training Only               4.13            4.18            0.59            0.49
                                 (high).
C.............................  FRMP Plan                   0.89            1.04            0.13            0.12
                                 Creation.
D.............................  Government Costs            2.03            2.59            0.29            0.30
A + C + D.....................  Total Cost (low)            4.94            5.68            0.70            0.67
B + C + D.....................  Total Cost                  7.05            7.81            1.00            0.92
                                 (high).
A + C.........................  Total Cost w/o              2.91            3.08            0.41            0.36
                                 Government
                                 Costs (low).
B + C.........................  Total Cost w/o              5.01            5.22            0.71            0.61
                                 Government
                                 Costs (high).
                                Benefits
                                Training Only               5.41            6.33            0.77            0.74
                                 (low).
                                Training Only              21.65           25.34            3.08            2.97
                                 (high).
----------------------------------------------------------------------------------------------------------------

    FRA is interested in comments addressing the Regulatory 
Evaluation's methodology for establishing the accident pool used to 
calculate benefits as well as establish the effectiveness rates of 
mitigations. Specifically, FRA seeks public input on the studies used 
to establish the effectiveness rates and the use of all human factor 
accidents within the benefit pool. As the proposed regulation does not 
specifically require railroads to implement specific mitigations, but 
rather allows railroads to implement the mitigation that best addresses 
their specific fatigue risks, FRA requests comments on any costs and 
benefits that might be associated with the elements that FRA was unable 
to quantify.
    FRA's analysis shows there are many factors that are difficult to 
quantify both for passenger and freight railroads. Where possible, 
FRA's Regulatory Evaluation estimates costs and benefits for each 
element within the proposed regulation. FRA also requests comments on 
the elements that are qualitatively discussed. Given current railroad 
business and operational practices, this analysis demonstrates the 
fatigue training element, an element that all railroads will most 
likely implement, may be cost effective. FRA also believes the napping 
mitigation presented within the Regulatory Evaluation's alternative 
analysis could be cost beneficial. However, given the uncertainty 
surrounding the use of alertness as a measure of reduced fatigue, in an 
effort to not overestimate the benefits associated with the proposed 
regulation, FRA does not present the findings regarding napping in the 
main analysis of the Regulatory Evaluation. Despite the uncertainty, 
FRA believes that there could be significant reduction in fatigue with 
the implementation of a napping mitigation. Not only do various studies 
support the idea that napping reduces fatigue, but a large number of 
Class I railroads already have policies supporting napping, which 
suggests that the benefits outweigh the costs for those railroads.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency 
review of proposed and final rules to assess their impacts on small 
entities. An agency must prepare an Initial Regulatory Flexibility 
Analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. FRA is publishing this IRFA to 
aid the public in commenting on the potential small business impacts of 
the requirements in this NPRM. FRA invites all interested parties to 
submit data and information regarding the potential economic impact on 
small entities that would result from the adoption of the proposals in 
this NPRM. FRA will consider all information, including comments 
received in the public comment process, to determine whether the rule 
will have a significant economic impact on small entities.
1. Reasons FRA Is Considering the Proposed Rule
    FRA is initiating this NPRM pursuant to 49 U.S.C. 20156, which 
provides that FRA, by delegation from the Secretary, shall require 
certain railroads to develop and implement an FRMP as part of either 
their SSP or RRP.
2. Objectives and the Legal Basis for the Proposed Rule
    This NPRM proposes to implement the FRMP element of the statutory 
mandate by requiring each Class I freight railroad, each railroad that 
provides intercity rail passenger transportation or commuter rail 
passenger transportation, and each ISP railroad to develop and 
implement an FRMP as one component of a larger railroad safety RRP or 
SSP. A detailed discussion of the objectives and legal basis for the 
proposed rule is provided in Section III of the preamble.
3. Description and Estimate of the Number of Small Entities Affected
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities, unless the Secretary certifies that the rule would not 
have a significant economic impact on a substantial number of small 
entities. ``Small entity'' is defined in 5 U.S.C. 601 as a small 
business concern that is independently owned and operated, and is not 
dominant in its

[[Page 83502]]

field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for-profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 500 
employees, or a ``commuter rail system'' with annual receipts of less 
than seven million dollars. See ``Size Eligibility Provisions and 
Standards,'' 13 CFR part 121, subpart A. In addition, section 601(5) of 
the Small Business Act defines ``small entities'' as governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000 that operate 
railroads.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Thus, in consultation with SBA, FRA has published a final 
statement of agency policy that formally establishes ``small entities'' 
or ``small businesses'' as railroads, contractors, and shippers that 
meet the revenue requirements of a Class III railroad \48\--$20 million 
or less in inflation-adjusted annual revenue--and commuter railroads or 
small government jurisdictions that serve populations of 50,000 or 
less.\49\
---------------------------------------------------------------------------

    \48\ See 49 CFR 1201.1.
    \49\ See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49 
CFR part 209).
---------------------------------------------------------------------------

    The universe of entities this NPRM would affect 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 consists of 
railroads that would be subject to the requirements under 49 CFR part 
270 and under the RRP rule. For the purposes of this analysis, 736 
railroads would be considered ``small entities,'' since they are Class 
III freight railroads. Of the 736 small entities, 695 are on the 
general system and could be potentially impacted by the proposed 
regulation.\50\ Since FRA does not currently know which railroads will 
be considered ISP railroads, but an ISP railroad could be either a 
Class II or Class III railroad, FRA is unable to provide a more 
accurate impact that the proposed regulation would have on small 
entities.
---------------------------------------------------------------------------

    \50\ Both the SSP rule and RRP rule exempts railroads not on the 
general system. See 49 CFR 270.3(b) and 49 CFR 271.3(b).
---------------------------------------------------------------------------

    For purposes of this analysis, this proposed rule will apply to 35 
commuter or other short-haul passenger railroads and two intercity 
passenger railroads, the National Railroad Passenger Corporation 
(Amtrak) and the Alaska Railroad Corporation (ARC).\51\ Neither of the 
intercity passenger railroads is considered a small entity. Amtrak 
serves populations well in excess of 50,000, and the ARC is owned by 
the State of Alaska, which has a population well in excess of 50,000.
---------------------------------------------------------------------------

    \51\ There are State-sponsored intercity passenger rail 
services, the majority of which will be part of Amtrak's SSP.
---------------------------------------------------------------------------

    Based on the definition of ``small entity,'' only one commuter or 
other short-haul passenger railroad is considered a small entity: The 
Hawkeye Express (operated by the Iowa Northern Railway Company).
    The impact of the proposed regulation on these small entities is 
unknown, since FRA is allowing the railroads to decide their fatigue 
mitigations based on their specific needs instead of mandating that 
railroads adopt specific mitigation programs. Furthermore, FRA 
estimates that only 50 ISP railroads would be impacted by the proposed 
regulation, which is approximately 7 percent of small entities, 
assuming all the 50 ISP railroads are considered small entities. FRA 
estimates that the 50 ISP railroads would be impacted over the course 
of 10 years, at a rate of approximately 5 ISPs per year. This estimate 
is consistent with the RRP final rule that FRA has published. 
Therefore, because of the uncertainty surrounding both the number of 
ISP railroads that would be considered small entities as well as the 
impact that the proposed regulation would have on those small entities, 
the impact that the NPRM would have on small entities is unclear. FRA 
requests comments about the impact that the proposed regulation would 
have on both freight and passenger rail small entities.
4. Description of the Projected Reporting, Recordkeeping, and Other 
Requirements
    The rule will require an ISP railroad to develop and implement an 
FRMP under an RRP or SSP plan that FRA has reviewed and approved. There 
are several reporting and recordkeeping costs associated with the 
proposed regulation. Since the railroads have the flexibility to adjust 
their FRMPs to their specific risks, these costs will vary based on the 
respective risks as well as the size of the ISP railroad. While FRA is 
unable to estimate the burden that the proposed regulation would have 
on small entities, FRA expects that the impact will be proportional to 
the number of employees as well as the mitigation strategy that is 
implemented. Other mitigation strategies such as screening for sleep 
disorders could include costs that are higher.
    While FRA is unable to identify the specific railroads that would 
be considered ISPs, to estimate the potential impact that developing an 
FRMP would have on an ISP railroad, FRA used the average Class III 
revenue to estimate the impact.\52\ Per the American Short Line and 
Regional Railroad Association (ASLRRA), the average Class III railroad 
has an annual average revenue of $4.75 million. FRA estimated the 
annual cost to ISP railroads at $60,052, with approximately five ISP 
railroads incurring this cost per year. The $60,052 cost consists of an 
annual average of $53,228 \53\ for FRMP program development and $7,274 
for employee training.\54\ The total 10-year cost that would impact a 
single ISP railroad would be $121,004.\55\ The annual cost represents 
approximately 2.5 percent of the average Class III railroad's 
revenue.\56\ However, as this estimate is based off of the average 
annual Class III railroad revenue, and there could be a large variance 
in the revenue of Class III railroads, FRA requests comments regarding 
the annual revenue of Class III railroads as well as the impact the 
proposed regulation would have on Class III railroads.
---------------------------------------------------------------------------

    \52\ The Class II and Class III average costs per railroad come 
from the 2015 Edition of the ASLRRA Facts and Figures.
    \53\ An average is used to better account for the impact as the 
cost schedule varies as the number of ISP railroads increases. See 
the RIA in the docket for more information on the cost structure for 
ISP railroads.
    \54\ Calculation: $53,228 (program development cost) + $7,274 
(ISP employee training costs) = $60,052 (Annual cost for 5 ISP 
railroads).
    \55\ Calculation: ([$60,052/5 (ISP railroads)] (annual cost to 
ISP)) x 10 (number of years) = $121,004 (10-year cost to single ISP 
railroad).
    \56\ Calculation: $121,004 (annual cost to ISP)/$4,750,000 
(average annual Class III revenue) = 0.025 or 2.5 percent.
---------------------------------------------------------------------------

    FRA has identified several possible reporting and recordkeeping 
costs associated with the proposed regulation such as:
    (1) Development, submission to FRA, and recordkeeping of the FRMP 
plan;
    (2) identification of the specific fatigue risks that impact the 
specific ISP; and
    (3) recordkeeping associated with fatigue training.
    More information about the burden and associated costs for each of 
the projected reporting, recordkeeping, and other requirements can be 
found in the information collection request FRA will be submitting to 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq. FRA requests comments regarding 
the recordkeeping

[[Page 83503]]

burden that the proposed regulation would have on ISP railroads to 
ensure that all cost elements of recordkeeping and how those elements 
would impact Class III railroads are captured.
5. Identification of Relevant Federal Rules That May Duplicate, 
Overlap, or Conflict With the Proposed Rule
    While the proposed FRMP rule would be a component of the RRP and 
SSP rules, the proposed FRMP would specifically address fatigue-related 
risks and is aimed at mitigating those risks specifically. As such, 
there will be some coordination needed to ensure that a railroad's FRMP 
is developed and worked into the railroad's RRP or SSP. Regardless, 
considering that the proposed FRMP is a subpart within both RRP and 
SSP, neither RRP nor SSP provide any elements, outside of the proposed 
regulation, that are designed to mitigate fatigue related risk 
specifically. As such, FRA does not expect there to be any relevant 
Federal rules that would duplicate, overlap with, or conflict with the 
proposed regulations in this NPRM.
6. Significant Regulatory Alternatives
    Within the preamble above, FRA outlines the various fatigue risks 
that railroads need to address. FRA does not specifically state, 
however, in what manner the railroads must address those risks. One 
alternative is for railroads to not create an FRMP and to continue to 
address their fatigue risks as they have currently been doing. This 
would result in the railroads violating the RSIA mandate. In addition, 
if railroads continue to address their fatigue risks as they have in 
the past, FRA expects that safety would continue to be negatively 
impacted because the fatigue risks are not adequately addressed 
currently. Since railroads have some flexibility in how they design 
their FRMPs, it is expected that the impact of each FRMP on a railroad 
will be minimal as the flexibility in implementing mitigations will 
most likely be done in a cost effective manner. FRA expects that 
railroads will consider the cost of the mitigation as well as the 
fatigue risks when creating their FRMPs.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a determination.

C. Federalism

    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.'' The Executive 
Order defines ``policies that have federalism implications'' 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 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.
    FRA analyzed this NPRM consistent with the principles and criteria 
contained in Executive Order 13132. FRA has determined the proposed 
rule would not have substantial direct effects on States, on the 
relationship between the national government and States, or on the 
distribution of power and responsibilities among the various levels of 
government. In addition, FRA has determined this proposed rule would 
not impose substantial direct compliance costs on State and local 
governments. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
    This NPRM proposes to add subpart E, Fatigue Management Plans, to 
49 CFR part 270 and subpart G, Fatigue Management Plans, to 49 CFR part 
271. FRA is not aware of any State with regulations similar to this 
proposed rule. However, FRA notes that this part could have preemptive 
effect by the operation of law under 49 U.S.C. 20106. Section 20106 
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), 
unless the State law, regulation, or order (1) qualifies under the 
``essentially local safety or security hazard'' exception to sec. 
20106; (2) is not incompatible with a law, regulation, or order of the 
U.S. Government; and (3) does not unreasonably burden interstate 
commerce.
    In sum, FRA analyzed this proposed rule consistent with the 
principles and criteria in Executive Order 13132. FRA has determined 
this proposed rule has no federalism implications and has determined it 
is not required to prepare a federalism summary impact statement for 
this proposed rule.

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being 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 new information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

[[Page 83504]]



----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
                                  Respondent       Total annual    Average time    Total annual     dollar cost
     CFR section/subject           universe         responses      per response    burden hours     equivalent
                                                                      (hours)                          \57\
----------------------------------------------------------------------------------------------------------------
270.409--Fatigue Risk          35 passenger      12 plans.......              60             720         $63,144
 Management Program Plan        railroads.
 (FRMP Plan) as part of its
 SSP--Comprehensive FRMP plan
 meeting all of this
 section's requirements and
 under Part 270 subpart C.
--(c)(3)(ii)--Annual internal  35 passenger      12 evaluations/               2              24           1,824
 FRMP Plan assessments/         railroads.        reports.
 reports conducted by RRs.
--FRMP plans found deficient   35 passenger      4 amended plans              30             120           9,588
 by FRA and requiring           railroads.
 amendment.
--Review of amended FRMP       35 passenger      1 further                    15              15           1,199
 plans found deficient and      railroads.        amended plan.
 requiring further amendment
 by RRs.
--Consultation requirements--  35 passenger      12                          1.5              18           1,368
 RR consultation with its       railroads.        consultations
 directly affected employees                      (w/labor union
 on FRMP Plan.                                    reps.).
271.609--Fatigue Risk          7 Class I         2 plans........              90             180          15,786
 Management Program Plan        railroads.       5 plans........              50             250          21,925
 (FRMP Plan) as part of its    15 ISP railroads
 RRP--Comprehensive written
 FRMP Plan meeting all of
 this section's requirements
 and under Part 271 subpart d.
--(c)(3)(ii)--Annual internal  7 Class I + 15    7 evaluations/                2              14           1,064
 FRMP Plan assessments/         ISP railroads.    reports.
 reports conducted by RRs.
--Consultation requirements--  7 Class I         2 consultations             1.5               3             228
 RR consultation with its       railroads.        (w/labor union
 directly affected employees                      reps.).
 on FRMP Plan.
                               15 ISP railroads  5 consultations               1               5             380
                                                  (w/labor union
                                                  reps.).
--FRMP plans found deficient   7 Class I         1 amended plan.              40              40           3,196
 by FRA and requiring           railroads.
 amendment.
                               15 ISP railroads  3 amended plans              20              60           4,794
--Review of amended FRMP       7 Class I         1 further                    20              20           1,598
 plans found deficient and      railroads.        amended plan.
 requiring further amendment
 by RRs.
                               15 ISP railroads  2 further                    10              20           1,598
                                                  amended plans.
                              ----------------------------------------------------------------------------------
    Totals...................  35 railroads....  69 responses...             N/A           1,489         127,692
----------------------------------------------------------------------------------------------------------------

    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 Ms. Hodan Wells, 
Information Collection Clearance Officer, Federal Railroad 
Administration, at 202-493-0440.
---------------------------------------------------------------------------

    \57\ The dollar equivalent cost is derived from the 2018 Surface 
Transportation Board's Full Year Wage A&B data series using the 
appropriate employee group hourly wage rate that includes 75-percent 
overhead charges.
---------------------------------------------------------------------------

    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Hodan 
Wells via email at <a href="/cdn-cgi/l/email-protection#7f37101b1e1151281a13130c3f1b100b51181009"><span class="__cf_email__" data-cfemail="460e292227286811232a2a350622293268212930">[email protected]</span></a>.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

F. Environmental Assessment

    FRA has evaluated this proposed rule consistent with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321, et seq.), the Council 
of Environmental Quality's NEPA implementing regulations at 40 CFR 
parts 1500-1508, and FRA's NEPA implementing regulations at 23 CFR part 
771 and determined that it is categorically excluded from environmental 
review and therefore does not require the preparation of an 
environmental assessment (EA) or environmental impact statement (EIS). 
Categorical exclusions (CEs) are actions

[[Page 83505]]

identified in an agency's NEPA implementing regulations that do not 
normally have a significant impact on the environment and therefore do 
not require either an EA or EIS. See 40 CFR 1508.4. Specifically, FRA 
has determined that this proposed rule is categorically excluded from 
detailed environmental review pursuant to 23 CFR 771.116(c)(15), 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly increased 
emissions of air or water pollutants or noise.''
    The purpose of this rulemaking is to propose requirements for 
certain railroads to develop and implement an FRMP, as one component of 
the railroads' larger railroad safety risk reduction programs. This 
rule does not directly or indirectly impact any environmental resources 
and will not result in significantly increased emissions of air or 
water pollutants or noise. Instead, the proposed rule is likely to 
result in safety benefits. In analyzing the applicability of a CE, FRA 
must also consider whether unusual circumstances are present that would 
warrant a more detailed environmental review. See 23 CFR 771.116(b). 
FRA has concluded that no such unusual circumstances exist with respect 
to this proposed regulation and the proposal meets the requirements for 
categorical exclusion under 23 CFR 771.116(c)(15).
    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties. See 16 U.S.C. 470. FRA 
has also determined that this rulemaking does not approve a project 
resulting in a use of a resource protected by Section 4(f). See 
Department of Transportation Act of 1966, as amended (Pub. L. 89-670, 
80 Stat. 931); 49 U.S.C. 303.

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2B \58\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations. FRA has evaluated this 
proposed rule under Executive Order 12898 and the DOT Order and has 
determined it would not cause disproportionately high and adverse human 
health and environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \58\ Available at: https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under Section 201 of the Unfunded Mandates Reform Act of 1995 (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 $100,000,000 or more (adjusted annually for 
inflation) in any 1 year, and before promulgating any final rule for 
which a general notice of proposed rulemaking was published, the agency 
shall prepare a written statement'' detailing the effect on State, 
local, and tribal governments and the private sector. This 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.

I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. FRA evaluated this NPRM under Executive Order 
13211, and determined this NPRM is not a ``significant energy action'' 
under the Executive Order 13211.

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. In order to facilitate comment tracking and 
response, we encourage commenters to provide their name, or the name of 
their organization; however, submission of names is completely 
optional. Whether or not commenters identify themselves, all timely 
comments will be fully considered. If you wish to provide comments 
containing proprietary or confidential information, please contact the 
agency for alternate submission instructions.

List of Subjects

49 CFR Part 270

    Fatigue, Penalties, Railroad safety, Reporting and recordkeeping 
requirements, System safety.

49 CFR Part 271

    Fatigue, Penalties, Railroad safety, Reporting and recordkeeping 
requirements, Risk reduction.

The Proposed Rule

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

PART 270--SYSTEM SAFETY PROGRAM

0
1. The authority citation for part 270 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

0
2. Section 270.103(a)(1) is revised to read as follows:


Sec.  270.103  System safety program plan.

    (a) General. (1) Each railroad subject to this part shall adopt and 
fully implement a system safety program through a written SSP plan 
that, at a minimum, contains the elements in this section and in 
subpart E of this part. This SSP plan shall be approved by FRA under 
the process specified in Sec.  270.201.
0
3. Add subpart E to read as follows:

Subpart E--Fatigue Risk Management Programs

Sec.

[[Page 83506]]

270.401 Definitions.
270.403 Purpose and scope of a Fatigue Risk Management Program 
(FRMP).
270.405 General requirements; procedure.
270.407 Requirements for an FRMP.
270.409 Requirements for a FRMP plan.

Subpart E--Fatigue Risk Management Programs


Sec.  270.401  Definitions.

    As used in this subpart--
    Contributing factor means a circumstance or condition that helps 
cause a result.
    Fatigue means a complex state characterized by a lack of alertness 
and reduced mental and physical performance, often accompanied by 
drowsiness.
    Fatigue-risk analysis means a railroad's analysis of its operations 
that:
    (1) Identifies and evaluates the fatigue-related railroad safety 
hazards on its system(s); and
    (2) Determines the degree of risk associated with each of those 
hazards.
    FRMP means a Fatigue Risk Management Program.
    FRMP plan means a Fatigue Risk Management Program plan.
    Safety-related railroad employee means:
    (1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
    (2) Another person involved in railroad operations not subject to 
49 U.S.C. 21103, 21104, or 21105;
    (3) A person who inspects, installs, repairs or maintains track, 
roadbed, signal and communication systems, and electric traction 
systems including a roadway worker or railroad bridge worker;
    (4) A hazmat employee defined under 49 U.S.C. 5102(3);
    (5) A person who inspects, repairs, or maintains locomotives, 
passenger cars, or freight cars; or
    (6) An employee of any person who utilizes or performs significant 
railroad safety-related services, as described in Sec.  270.103(d)(2), 
if that employee performs a function identified in paragraphs (1) 
through (5) of this definition.


Sec.  270.403  Purpose and scope of a Fatigue Risk Management Program 
(FRMP).

    (a) Purpose. The purpose of an FRMP is to improve railroad safety 
through structured, systematic, proactive processes and procedures that 
a railroad subject to this part develops and implements to identify and 
mitigate the effects of fatigue on its employees.
    (b) Scope. A railroad shall:
    (1) Design its FRMP to reduce the fatigue its safety-related 
railroad employees experience and to reduce the risk of railroad 
accidents, incidents, injuries, and fatalities where the fatigue of any 
of these employees is a contributing factor;
    (2) Develop its FRMP by systematically identifying and evaluating 
the fatigue-related railroad safety hazards on its system, determining 
the degree of risk associated with each hazard, and managing those 
risks to reduce the fatigue that its safety-related railroad employees 
experience. This system-wide fatigue risk identification and evaluation 
process must account for the varying circumstances of a railroad's 
operations on different parts of its system; and
    (3) Employ in its FRMP the fatigue risk mitigation strategies a 
railroad identifies as appropriate to address those varying 
circumstances.


Sec.  270.405  General requirements; procedure.

    (a) Each railroad subject to this part shall:
    (1) Establish and implement an FRMP as part of its SSP; and
    (2) Establish an FRA-approved FRMP plan as a component of a 
railroad's FRA-approved SSP plan and then update its FRMP plan as 
necessary as part of the annual internal assessment of its SSP under 
Sec.  270.303.
    (b) A railroad's FRMP plan must explain the railroad's method of 
analysis of fatigue risks and the railroad's process(es) for 
implementing its FRMP.
    (c)(1) A railroad shall submit an FRMP plan to FRA for approval no 
later than either the applicable timeline in Sec.  270.201(a) for 
filing its SSP plan or [date six months after publication of the final 
rule in the Federal Register].
    (2) A railroad shall submit updates to its FRMP plan under the 
process for amending its SSP plan in Sec.  270.201(c).
    (d) FRA shall review and approve or disapprove a railroad's FRMP 
plan and amendments to that plan under the process for reviewing SSP 
plans and amendments in Sec.  270.201(b) and (c), respectively.


Sec.  270.407  Requirements for an FRMP.

    (a) In general. An FRMP shall include an analysis of fatigue risks 
and mitigation strategies, as described in paragraphs (b) and (c) of 
this section.
    (b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
risk analysis as part of its FRA-approved FRMP, which includes 
identification of fatigue-related railroad safety hazards, assessment 
of the risks associated with those hazards, and prioritization of risks 
for mitigation. At a minimum, a railroad must consider the following 
categories of risk factors:
    (1) General health and medical conditions that can affect the 
fatigue levels among the population of safety-related railroad 
employees;
    (2) Scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of 
sleep; and
    (3) Characteristics of each job category of safety-related railroad 
employees work that can affect fatigue levels and risk for fatigue of 
those employees.
    (c) Mitigation strategies. A railroad shall develop and implement 
mitigation strategies to reduce the risk of railroad accidents, 
incidents, injuries, and fatalities where fatigue of any of its safety-
related employees is a contributing factor. At a minimum, in developing 
and implementing these mitigation strategies, a railroad shall consider 
the railroad's policies, practices, and communication related to its 
safety-related railroad employees.
    (1) Policies. A railroad shall consider developing and implementing 
policies to reduce the risk of the exposure of its safety-related 
railroad employees to fatigue-related railroad safety hazards on its 
system. At a minimum, a railroad shall consider these policies:
    (i) Providing opportunities for identification, diagnosis, and 
treatment of any medical condition that may affect alertness or 
fatigue, including sleep disorders;
    (ii) Identifying methods to minimize accidents and incidents that 
occur as a result of working at times when scientific and medical 
research have shown increased fatigue disrupts employees' circadian 
rhythms;
    (iii) Developing and implementing alertness strategies, such as 
policies on napping, to address acute drowsiness and fatigue while an 
employee is on duty;
    (iv) Increasing 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
    (v) Avoiding abrupt changes in rest cycles for employees.
    (2) Practices. A railroad shall consider developing and 
implementing operational practices to reduce the risk of exposure of 
its safety-related railroad employees to fatigue-related railroad 
safety hazards on its system. At a minimum, a railroad shall consider 
these practices:
    (i) Minimizing the effects on employee fatigue of an employee's 
short-term or sustained response to emergency situations, such as

[[Page 83507]]

derailments and natural disasters, or engagement in other intensive 
working conditions;
    (ii) Developing and implementing 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 to 
reduce employee fatigue and cumulative sleep loss; and
    (iii) Providing opportunities to obtain restful sleep at lodging 
facilities, including employee sleeping quarters provided by the 
railroad carrier.
    (3) Communications. A railroad shall consider developing and 
implementing training, education, and outreach methods to deliver 
fatigue-related information effectively to its safety-related railroad 
employees. At a minimum, a railroad shall consider including in its 
employee education and training information 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.
    (d) Evaluation. A railroad shall develop and implement procedures 
and processes for monitoring and evaluating its FRMP to assess whether 
the FRMP effectively meets the goals its FRMP plan describes, as 
required under Sec.  270.409(b).
    (1) The evaluation shall include, at a minimum:
    (i) Periodic monitoring of the railroad's operational environment 
to detect changes that may generate new hazards;
    (ii) Analysis of the risks associated with any identified hazards; 
and
    (iii) Periodic safety assessments to determine the need for changes 
to its mitigation strategies.
    (2) A railroad shall evaluate newly-identified hazards, and hazards 
associated with ineffective mitigation strategies, through processes 
for analyzing fatigue risks described in the railroad's FRMP plan.
    (3) Any necessary changes not addressed prior to a railroad's 
annual internal assessment must be included in the internal assessment 
improvement plans required under Sec.  270.303.


Sec.  270.409  Requirements for a FRMP plan.

    (a) In general. A railroad shall adopt and implement its FRMP 
through an FRA-approved FRMP plan, developed in consultation with 
directly affected employees as described under Sec.  270.107. A 
railroad FRMP plan must contain the elements described in this section. 
A railroad must submit the plan to FRA for approval under the criteria 
of subpart C.
    (b) Goals. An FRMP plan must contain a statement that defines the 
specific fatigue-related goals of the FRMP and describes strategies for 
reaching those goals.
    (c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall 
describe a railroad's method(s) for conducting its fatigue-risk 
analysis as part of its FRMP. The description shall specify:
    (i) The scope of the analysis, which is the covered population of 
safety-related railroad employees;
    (ii) The processes a railroad will use to identify fatigue-related 
railroad safety hazards on its system and determine the degree of risk 
associated with each fatigue-related hazard identified;
    (iii) The processes a railroad will use to compare and prioritize 
identified fatigue-related risks for mitigation purposes; and
    (iv) The information sources a railroad will use to support ongoing 
identification of fatigue-related railroad safety hazards and determine 
the degree of risk associated with those hazards.
    (2) Mitigation strategies. An FRMP plan shall describe a railroad's 
processes for:
    (i) Identifying and selecting fatigue risk mitigation strategies; 
and
    (ii) Monitoring identified fatigue-related railroad safety hazards.
    (3) Evaluation. An FRMP plan shall describe:
    (i) A railroad's processes for monitoring and evaluating the 
overall effectiveness of its FRMP and the effectiveness of fatigue-
related mitigation strategies the railroad uses under Sec.  270.407; 
and
    (ii) A railroad's procedures for reviewing the FRMP as part of the 
annual internal assessment of its SSP under Sec.  270.303 and for 
updating the FRMP plan under the process for amending its SSP plan 
under Sec.  270.201(c).
    (d) FRMP implementation plan. A railroad shall describe in its FRMP 
plan how it will implement its FRMP. This description must cover an 
implementation period not to exceed 36 months, and shall include:
    (1) A description of the roles and responsibilities of each 
position or job function with significant responsibility for 
implementing the FRMP, including those held by employees, contractors 
who provide significant FRMP-related services, and other entities or 
persons that provide significant FRMP services;
    (2) A timeline describing when certain milestones that must be met 
to implement the FRMP fully will be achieved. Implementation milestones 
shall be specific and measurable;
    (3) A description of how a railroad may make significant changes to 
the FRMP plan under the process for amending its SSP plan in Sec.  
270.201(c); and
    (4) The procedures for consultation with directly affected 
employees on any subsequent substantive amendments to the railroad's 
FRMP plan. The requirements of this section do not apply to non-
substantive amendments (e.g., amendments that update names and 
addresses of railroad personnel).
    (e) Submittal. A railroad shall amend its SSP plan submitted under 
subpart C of this part to include its FRMP plan that meets the 
requirements of this section no later than August 19, 2021.
    (1) A railroad shall follow the procedures in Sec.  270.201(c) to 
amend its SSP plan.
    (2) An FRMP plan is not considered a safety critical amendment for 
the purposes of Sec.  270.201(c)(ii).
    (3) If a railroad was not required to submit an SSP plan initially, 
but is required to do so at a later date, the railroad shall either 
include an FRMP plan as part of its SSP plan submission under Sec.  
270.201(a), or submit its FRMP plan in accordance with the procedures 
for amending its SSP plan under Sec.  270.201(c) no later than August 
19, 2021, whichever is later.

PART 271--RISK REDUCTION PROGRAM

0
4. The authority citation for part 271 continues to read as follows:

    Authority:  49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

0
5. Amend Sec.  271.101 by revising paragraph (a) to read as follows:


Sec.  271.101  Risk reduction programs.

    (a) Program required. Each railroad shall establish and fully 
implement an RRP meeting the requirements of this part. An RRP shall 
systematically evaluate railroad safety hazards on a railroad's system 
and manage the resulting risks to reduce the number and rates of 
railroad accidents/incidents, injuries, and fatalities. An RRP is an 
ongoing program that supports continuous safety improvement. A railroad 
shall design its RRP so that it promotes and supports a positive safety 
culture at the railroad. An RRP shall include the following:
    (1) A risk-based hazard management program, as described in Sec.  
271.103;
    (2) A safety performance evaluation component, as described in 
Sec.  271.105;

[[Page 83508]]

    (3) A safety outreach component, as described in Sec.  271.107;
    (4) A technology analysis and technology implementation plan, as 
described in Sec.  271.109;
    (5) RRP implementation and support training, as described in Sec.  
271.111;
    (6) Involvement of railroad employees in the establishment and 
implementation of an RRP, as described in Sec.  271.113; and
    (7) An FRMP as described in Sec.  271.607.
0
6. Section 271.201 is revised to read as follows:


Sec.  271.201  General.

    A railroad shall adopt and implement its RRP through a written RRP 
plan containing the elements described in this subpart and in Sec.  
271.609. A railroad's RRP plan shall be approved by FRA according to 
the requirements contained in subpart D of this part.
0
7. Add subpart G to read as follows:

Subpart G--Fatigue Risk Management Programs

Sec.
271.601 Definitions.
271.603 Purpose and scope of a Fatigue Risk Management Program 
(FRMP).
271.605 General requirements; procedure.
271.607 Requirements for an FRMP.
271.609 Requirements for a FRMP plan.

Subpart G--Fatigue Risk Management Programs


Sec.  271.601  Definitions.

    As used in this subpart--
    Contributing factor means a circumstance or condition that helps 
cause a result.
    Fatigue means a complex state characterized by a lack of alertness 
and reduced mental and physical performance, often accompanied by 
drowsiness.
    Fatigue-risk analysis means a railroad's analysis of its operations 
that:
    (1) Identifies and evaluates the fatigue-related railroad safety 
hazards on its system(s) and;
    (2) Determines the degree of risk associated with each of those 
hazards.
    FRMP means a Fatigue Risk Management Program.
    FRMP plan means a Fatigue Risk Management Program plan.
    Safety-related railroad employee means:
    (1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
    (2) Another person involved in railroad operations not subject to 
49 U.S.C. 21103, 21104, or 21105;
    (3) A person who inspects, installs, repairs or maintains track, 
roadbed, signal and communication systems, and electric traction 
systems including a roadway worker or railroad bridge worker;
    (4) A hazmat employee defined under 49 U.S.C. 5102(3);
    (5) A person who inspects, repairs, or maintains locomotives, 
passenger cars, or freight cars; or
    (6) An employee of any person who utilizes or performs significant 
railroad safety-related services, as described in Sec.  271.205(a)(3), 
if that employee performs a function identified in paragraphs (1) 
through (5) of this definition.


Sec.  271.603  Purpose and scope of a Fatigue Risk Management Program 
(FRMP).

    (a) Purpose. The purpose of an FRMP is to improve railroad safety 
through structured, proactive processes and procedures a railroad 
subject to this part develops and implements. A railroad's FRMP shall 
systematically identify and evaluate the fatigue-related railroad 
safety hazards on its system, determine the degree of risk associated 
with each hazard, and manage those risks to reduce the fatigue that its 
safety-related railroad employees experience and to reduce the risk of 
railroad accidents, incidents, injuries, and fatalities where the 
fatigue of any of these employees is a contributing factor.
    (b) Scope. A railroad shall:
    (1) Design its FRMP to reduce the fatigue its safety-related 
railroad employees experience and to reduce the risk of railroad 
accidents, incidents, injuries, and fatalities where the fatigue of any 
of these employees is a contributing factor;
    (2) Develop its FRMP by conducting a system-wide fatigue-risk 
analysis that accounts for the varying circumstances of its operations 
on different parts of its system; and
    (3) Employ in its FRMP the fatigue risk mitigation strategies the 
railroad identifies as appropriate to address those varying 
circumstances.


Sec.  271.605  General requirements; procedure.

    (a) Each railroad subject to this part shall:
    (1) Establish and implement an FRMP as part of its RRP; and
    (2) Establish an FRA-approved FRMP plan as a component of a 
railroad's FRA-approved RRP plan and then update the FRMP plan as 
necessary as part of the annual internal assessment of its RRP under 
Sec.  271.401.
    (b) A railroad's FRMP plan must explain the railroad's method of 
analysis of fatigue risks and the railroad's process(es) for 
implementing its FRMP.
    (c)(1) A railroad shall submit an FRMP plan to FRA for approval no 
later than either the applicable timeline in Sec.  271.301(b) for 
filing its RRP plan or [date six months after publication of the final 
rule in the Federal Register], whichever is later; and
    (2) A railroad shall submit updates to its FRMP plan under the 
process for amending its RRP plan in Sec.  271.303.
    (d) FRA shall review and approve or disapprove a railroad's FRMP 
plan under the process for reviewing RRP plans in Sec.  271.301(d) and 
updates to the railroad's FRMP plan under the process for reviewing 
amendments to an RRP plan in Sec.  271.303(c).


Sec.  271.607  Requirements for an FRMP.

    (a) In general. An FRMP shall include an analysis of fatigue risks 
and mitigation strategies described in paragraphs (b) and (c) of this 
section.
    (b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
risk analysis as part of its FRA-approved FRMP, which includes 
identification of fatigue-related railroad safety hazards, assessment 
of the risks associated with those hazards, and prioritization of risks 
for mitigation. At a minimum, railroads must consider the following 
categories of risk factors, as applicable:
    (1) General health and medical conditions that can affect the 
fatigue levels among the population of safety-related railroad 
employees;
    (2) Scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of 
sleep; and
    (3) Characteristics of each job category safety-related railroad 
employees work that can affect fatigue levels and risk for fatigue of 
those employees.
    (c) Mitigation strategies. A railroad shall develop and implement 
mitigation strategies to reduce the risk of railroad accidents, 
incidents, injuries, and fatalities where fatigue of any of its safety-
related employees is a contributing factor. At a minimum, in developing 
and implementing these mitigation strategies, a railroad shall consider 
the railroad's policies, practices, and communications related to its 
safety-related railroad employees.
    (1) Policies. A railroad shall consider developing and implementing 
policies to reduce the risk of the exposure of its safety-related 
railroad employees to fatigue-related railroad safety hazards on its 
system. At a minimum, a railroad shall consider these policies:
    (i) Providing opportunities for identification, diagnosis, and 
treatment of any medical condition that may affect alertness or 
fatigue, including sleep disorders;

[[Page 83509]]

    (ii) Identifying methods to minimize accidents and incidents that 
occur as a result of working at times when scientific and medical 
research have shown increased fatigue disrupts employees' circadian 
rhythms;
    (iii) Developing and implementing alertness strategies, such as 
policies on napping, to address acute drowsiness and fatigue while an 
employee is on duty;
    (iv) Increasing 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
    (v) Avoiding abrupt changes in rest cycles for employees.
    (2) Practices. A railroad shall consider developing and 
implementing operational practices to reduce the risk of exposure of 
its safety-related railroad employees to fatigue-related railroad 
safety hazards on its system. At a minimum, a railroad shall consider 
these practices:
    (i) Minimizing the 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;
    (ii) Developing and implementing 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 to 
reduce employee fatigue and cumulative sleep loss; and
    (iii) Providing opportunities to obtain restful sleep at lodging 
facilities, including employee sleeping quarters provided by the 
railroad carrier.
    (3) Communication. A railroad shall consider developing and 
implementing training, education, and outreach methods to deliver 
fatigue-related information effectively to its safety-related railroad 
employees. At a minimum, a railroad shall consider communications 
regarding 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.
    (d) Evaluation. A railroad shall develop and implement procedures 
and processes for monitoring and evaluating its FRMP to assess whether 
the FRMP effectively meets the goals its FRMP plan describes under 
Sec.  271.609(b).
    (1) The evaluation shall include, at a minimum:
    (i) Periodic monitoring of the railroad's operational environment 
to detect changes that may generate new hazards;
    (ii) Analysis of the risks associated with any identified hazards; 
and
    (iii) Periodic safety assessments to determine the need for changes 
to its mitigation strategies.
    (2) A railroad shall evaluate newly-identified hazards, and hazards 
associated with ineffective mitigation strategies, through processes 
for analyzing fatigue risks described in the railroad's FRMP plan.
    (3) Any necessary changes not addressed prior to a railroad's 
annual internal assessment must be included in the internal assessment 
improvement plans required under Sec.  271.403.


Sec.  271.609  Requirements for a FRMP plan.

    (a) In general. A railroad shall adopt and implement its FRMP 
through an FRA-approved FRMP plan, developed in consultation with 
directly affected employees as described under Sec.  271.207. A 
railroad FRMP plan must contain the elements described in this section. 
The railroad must submit the plan to FRA for approval under the 
criteria of subpart D.
    (b) Goals. An FRMP plan must contain a statement that defines the 
specific fatigue-related goals of the FRMP and describes strategies for 
reaching those goals.
    (c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall 
describe a railroad's method(s) for conducting its fatigue-risk 
analysis as part of its FRMP. The description shall specify:
    (i) The scope of the analysis, which is the covered population of 
safety-related railroad employees;
    (ii) The processes a railroad will use to identify fatigue-related 
railroad safety hazards on its system and determine the degree of risk 
associated with each fatigue-related hazard identified;
    (iii) The processes a railroad will use to compare and prioritize 
identified fatigue-related risks for mitigation purposes; and
    (iv) The information sources a railroad will use to support ongoing 
identification of fatigue-related railroad safety hazards and determine 
the degree of risk associated with those hazards.
    (2) Mitigation strategies. An FRMP plan shall describe a railroad's 
processes for:
    (i) Identifying and selecting fatigue risk mitigation strategies; 
and
    (ii) Monitoring identified fatigue-related railroad safety hazards.
    (3) Evaluation. An FRMP plan shall describe:
    (i) A railroad's processes for monitoring and evaluating the 
overall effectiveness of its FRMP and the effectiveness of fatigue-
related mitigation strategies the railroad uses under Sec.  271.607; 
and
    (ii) A railroad's procedures for reviewing the FRMP as part of the 
annual assessment of its RRP under Sec.  271.401 and for updating the 
FRMP plan under the process for amending its RRP plan under Sec.  
271.303.
    (d) FRMP implementation plan. A railroad shall describe in its FRMP 
plan how it will implement its FRMP. This description must cover an 
implementation period not to exceed 36 months, and shall include:
    (1) A description of the roles and responsibilities of each 
position or job function with significant responsibility for 
implementing the FRMP, including those held by employees, contractors 
who provide significant FRMP-related services, and other entities or 
persons that provide significant FRMP services;
    (2) A timeline describing when certain milestones that must be met 
to implement the FRMP fully will be achieved. Implementation milestones 
shall be specific and measurable;
    (3) A description of how the railroad may make significant changes 
to the FRMP plan under the process for amending its RRP plan in Sec.  
271.303; and
    (4) The procedures for consultation with directly affected 
employees on any subsequent substantive amendments to the railroad's 
FRMP plan. The requirements of this section do not apply to non-
substantive amendments (e.g., amendments that update names and 
addresses of railroad personnel).
    (e) Submittal. A railroad shall amend its RRP plan submitted under 
subpart D of this part to include its FRMP plan that meets the 
requirements of this section no later than August 19, 2021.
    (1) A railroad shall follow the procedures in Sec.  271.303 to 
amend its RRP plan.
    (2) If a railroad was not required to submit an RRP plan initially, 
but is required to do so at a later date, the railroad shall either 
include an FRMP plan as part of its RRP plan submission under Sec.  
271.301 or submit its FRMP plan in accordance with the procedures for 
amending its RRP plan under Sec.  271.303 no later than August 19, 
2021, whichever is later.

    Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020-27085 Filed 12-21-20; 8:45 am]
BILLING CODE 4910-06-P


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