50360 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 228 

[Docket No. FRA–2009–0043, Notice No. 2] 

RIN 2130–AC15 

Hours of Service of Railroad 

Employees; Substantive Regulations 

for Train Employees Providing 

Commuter and Intercity Rail Passenger 

Transportation; Conforming 

Amendments to Recordkeeping 

Requirements 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is amending its hours of 

service recordkeeping regulations, to 

add substantive hours of service 

regulations, including maximum onduty periods, minimum off-duty 

periods, and other limitations, for train 

employees (e.g., locomotive engineers 

and conductors) providing commuter 

and intercity rail passenger 

transportation. The new substantive 

regulations require that railroads 

employing such train employees 

analyze and mitigate the risks for fatigue 

in the schedules worked by these train 

employees, and that the railroads 

submit to FRA for its approval the 

relevant schedules and fatigue 

mitigation plans. This final rule also 

makes corresponding changes to FRA’s 

hours of service recordkeeping 

regulation, to require railroads to keep 

hours of service records and report 

excess service to FRA in a manner 

consistent with the new substantive 

requirements. This regulation is 

authorized by the Rail Safety 

Improvement Act of 2008. 

DATES: Effective Date: This final rule is 

effective October 15, 2011. Petitions for 

reconsideration must be received on or 

before October 5, 2011. 

ADDRESSES: Petitions for 

reconsideration: Any petitions for 

reconsideration related to Docket No. 

FRA–2009–0043, Notice No. 2, may be 

submitted by any of the following 

methods: 

• Web site: The Federal eRulemaking 

Portal, http://www.regulations.gov. 

Follow the Web site’s online 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., W12–140, 

Washington, DC 20590. 

• Hand Delivery: Room W12–140 on 

the Ground level of the West Building, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m. Monday through Friday, except 

Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all petitions received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

petitions, comments, or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or to Room W12– 

140 on the Ground level of the West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m. Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Mark H. McKeon, Special Assistant to 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer, FRA, 1200 

New Jersey Avenue, SE., RRS–1, Mail 

Stop 25, Washington, DC 20590 

(telephone: 202–493–6350); Dr. Thomas 

G. Raslear, Staff Director, Human 

Factors Research Program, Office of 

Research and Development, FRA, 1200 

New Jersey Avenue, SE., RPD–321, Mail 

Stop 20, Washington, DC 20590 

(telephone 202–493–6356); Colleen A. 

Brennan, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue, 

SE., RCC–12, Mail Stop 10, Washington, 

DC 20590 (telephone 202–493–6028 or 

202–493–6052); or Matthew T. Prince, 

Trial Attorney, Office of Chief Counsel, 

FRA, 1200 New Jersey Avenue, SE., 

RCC–12, Mail Stop 10, Washington, DC 

20590 (telephone 202–493–6146 or 202– 

493–6052). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Statutory Background and History 

III. Scientific Background 

A. Validated and Calibrated Fatigue 

Models 

1. Fatigue Avoidance Scheduling ToolTM

Model 

2. Fatigue Audit InterDyneTM Model 

B. Diary Study of Train Employees on 

Commuter and Intercity Passenger 

Railroads 

IV. Railroad Safety Advisory Committee 

Process 

A. Overview of the RSAC 

B. RSAC Proceedings in this Rulemaking 

C. Significant Task Force Contributions to 

the Development of the NPRM 

1. Schedule Analysis 

2. Fatigue Mitigation Tool Box 

D. Areas of Working Group and Task Force 

Concern During Development of the 

NPRM 

1. Proposed Definitions of ‘‘Type 1 

Assignment’’ and ‘‘Type 2 Assignment’’ 

2. Proposed Limitations on Number of 

Consecutive Days 

3. Precision of Fatigue Models and 

Threshold 

4. Freight Railroad Employees Acting as 

Pilots for Commuter or Intercity 

Passenger Trains 

V. Response to Public Comments on the 

NPRM 

VI. Section-by-Section Analysis 

VII. Regulatory Impact and Notices 

A. Executive Order 12866 and 13563 and 

DOT Regulatory Policies and Procedures 

B. Executive Order 13132 

C. Executive Order 13175 

D. Regulatory Flexibility Act and Executive 

Order 13272 

1. Description of Regulated Entities and 

Impacts 

2. Certification 

E. Paperwork Reduction Act 

F. Unfunded Mandates Reform Act 

G. Environmental Assessment 

H. Privacy Act 

I. Executive Summary 

Having considered public comments 

in response to FRA’s March 22, 2011 

proposed rule in this rulemaking (76 FR 

16200), FRA issues this final rule 

establishing substantive hours of service 

regulations for train employees who 

provide commuter or intercity rail 

passenger transportation (passenger 

train employees). 

Federal laws governing railroad 

employees’ hours of service date back to 

1907 with the enactment of the Hours of 

Service Act (Pub. L. 59–274, 34 Stat. 

1415), and FRA, under delegations from 

the Secretary of Transportation 

(Secretary), has long administered 

statutory hours of service requirements 

for the three groups of employees now 

covered under the statute, namely 

employees performing the functions of 

train employees, signal employees, and 

dispatching service employees, as those 

terms are defined at 49 U.S.C. 21101. 

See 49 CFR 1.49; 49 U.S.C. 21101– 

21109, 21303. 

These requirements have been 

amended several times over the years, 

most recently in the Rail Safety 

Improvement Act of 2008 (Pub. L. 110– 

432, Div. A) (RSIA). The RSIA 

substantially amended the requirements 

of 49 U.S.C. 21103, applicable to train 

employees, defined as ‘‘individual[s] 

engaged in or connected with the 

movement of a train, including a 

hostler.’’ 49 U.S.C. 21101(5). However, 

the RSIA also granted the Secretary 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50361 

authority to prescribe regulations 

governing the hours of service of 

passenger train employees. 49 U.S.C. 

21109(b)–(c). As will be discussed 

below, FRA interprets commuter or 

intercity rail passenger transportation to 

include rail passenger transportation by 

tourist, scenic, excursion, and historic 

railroads. The RSIA provided that this 

particular subset of train employees 

(i.e., passenger train employees) would 

continue to be governed by 49 U.S.C. 

21103 as it existed prior to the 

enactment of the RSIA (old Section 

21103), until the earlier of, the effective 

date of final regulations prescribed by 

the Secretary, or the date that is three 

years from the date of enactment of the 

RSIA. 49 U.S.C. 21102(c). In the absence 

of a final rule in effect governing this 

group of train employees, the 

requirements of the RSIA currently in 

effect for other train employees (new 

Section 21103) would go into effect for 

passenger train employees on October 

16, 2011. 49 U.S.C. 21102(c). 

As will be discussed further below, 

FRA reviewed the applicable fatigue 

science, and sought input from FRA’s 

Railroad Safety Advisory Committee 

(RSAC). Based on FRA’s understanding 

of current fatigue science, and 

information received through RSAC, 

FRA determined that the requirements 

imposed on train employees by the 

RSIA were not appropriate for passenger 

train employees. The chart below 

compares and contrasts (1) the hours of 

service requirements in 49 U.S.C. 21103 

as amended by the RSIA, (2) the 

statutory hours of service requirements 

applicable to all train employees 

immediately prior to the RSIA, which 

are currently still applicable to 

passenger train employees until the 

effective date of this final rule, and (3) 

the requirements of this final rule that 

applies to passenger train employees 

from the effective date of the rule, with 

the compliance date of some provisions 

delayed for a period of 180 or 545 days 

from the effective date. 

Freight train employee statute 

Train employee statutory 

provisions immediately prior 

to the RSIA and currently 

applicable only to passenger 

train employees 

FRA passenger train employee 

final rule 

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

the RSIA effective July 16, 

2009) (new section 21103) (Applies to train employees on 

freight railroads. Will apply to 

train employees on commuter 

and intercity passenger railroads if no regulations are in effect by October 16, 2011).

49 U.S.C. 21103 as it existed 

prior to the October 16, 2008, 

enactment of the RSIA (old 

section 21103) (Train employees providing commuter and 

intercity rail passenger transportation are currently covered 

by these provisions pursuant to 

49 U.S.C. 21102(c).).

49 CFR part 228, subpart F. 

Use of Fatigue Science ................. None ............................................. None ............................................. This final rule requires passenger 

train employees’ work schedules to be analyzed under an 

FRA-approved validated biomathematical fatigue model 

such as the specified version of 

the Fatigue Avoidance Scheduling ToolTM or Fatigue Audit 

InterDyneTM, with the exception 

of certain schedules (completely within the hours of 4 

a.m. and 8 p.m., or nested within other schedules that have 

been previously modeled and 

shown to present an acceptable 

level of risk for fatigue, and otherwise in compliance with the 

limitations in the regulation) 

deemed as categorically presenting an acceptable level of 

risk for fatigue that does not 

violate the defined fatigue 

threshold. Analysis must be 

complete 180 days from the effective date of the final rule, except that tourist, scenic, historic 

and excursion railroads have 

545 days from the effective 

date of the final rule to complete their analysis. 

Limitations on Time on Duty in a 

Single Tour.

12 consecutive hours of time on 

duty or 12 nonconsecutive 

hours on duty if broken by an 

interim release of at least 4 

consecutive hours uninterrupted 

by communication from the railroad likely to disturb rest, in a 

24-hour period that begins at 

the beginning of the duty tour.

12 consecutive hours of time on 

duty or 12 nonconsecutive 

hours on duty if broken by an 

interim release of at least 4 

consecutive hours, in a 24-hour 

period that begins at the beginning of the duty tour.

12 consecutive hours of time on 

duty or 12 nonconsecutive 

hours on duty if broken by an 

interim release of at least 4 

consecutive hours, in a 24-hour 

period that begins at the beginning of the duty tour. This is effective on the effective date of 

the final rule. 

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50362 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

Freight train employee statute 

Train employee statutory 

provisions immediately prior 

to the RSIA and currently 

applicable only to passenger 

train employees 

FRA passenger train employee 

final rule 

Limitations on Consecutive Duty 

Tours or Total Duty Tours in Set 

Period.

May not be on duty as a train employee after initiating an on-duty 

period on six consecutive days 

without receiving 48 consecutive hours off duty free from any 

service for any railroad carrier 

at the employee’s home terminal. Employees are permitted 

to initiate a seventh consecutive 

day when the employee ends 

the sixth consecutive day at the 

away-from-home terminal, as 

part of a pilot project, or as part 

of a grandfathered collectively 

bargained arrangement. Employees performing service on 

this additional day must receive 

72 consecutive hours free from 

any service for any railroad carrier at their home terminal before going on duty again as a 

train employee.

None ............................................. If employee initiates an on-duty 

period each day for six consecutive calendar days including at least one ‘‘Type 2’’ assignment (generally, those including time on duty between 8 

p.m. and 4 a.m.) employee 

must have 24 consecutive 

hours off duty at the employee’s home terminal. If an employee initiates an on-duty period on 13 or more calendar 

days of a period of 14 consecutive days then must have 2 consecutive calendar days without 

initiating an on-duty period at 

the employee’s home terminal. 

Employees may be permitted to 

perform service on an additional day to facilitate their return to their home terminal. 

These limitations are effective 

180 days from the effective 

date of the final rule, except 

that they become effective for 

tourist, scenic, historic and excursion railroads 545 days from 

the effective date of the final 

rule. 

Cumulative Limits on Time on Duty Limited to 276 hours of time on 

duty, in deadhead transportation to a point of final release, 

or any other mandatory activity 

for the railroad carrier.

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

Limited to 30 hours of time spent 

on duty and waiting for or in 

deadhead transportation to a 

point of final release after 

reaching 12 hours of time on 

duty and waiting for or in 

deadhead transportation to a 

point of final release.

Mandatory Off-Duty Periods .......... 10 consecutive hours of time off 

duty free from any communication from the railroad likely to 

disturb rest, with additional time 

off duty if on-duty time plus time 

in or awaiting deadhead transportation to final release exceeds 12 hours.

8 consecutive hours (10 consecutive hours if time on duty 

reaches 12 consecutive hours).

8 consecutive hours (10 consecutive hours if time on duty 

reaches 12 consecutive hours). 

This is effective on the effective 

date of the final rule. 

48 consecutive hours off duty, 

free from any service for any 

railroad carrier, after initiating 

an on-duty period for 6 consecutive days. If 7 consecutive 

days are permitted, mandatory 

off-duty period extended to 72 

consecutive hours.

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50363 

Freight train employee statute 

Train employee statutory 

provisions immediately prior 

to the RSIA and currently 

applicable only to passenger 

train employees 

FRA passenger train employee 

final rule 

Specific Rules for Nighttime Operations.None ............................................. None ............................................. Schedules that include any time 

on duty between 8 p.m. and 4 

a.m. must be analyzed using a 

validated biomathematical 

model of human performance 

and fatigue approved by FRA. 

Schedules with excess risk of 

fatigue must be mitigated or 

supported by a determination 

that mitigation is not possible 

and the schedule is operationally necessary and approved by 

FRA. Analysis must be complete and required submissions 

must be made 180 days from 

the effective date of the final 

rule, except that tourist, scenic, 

historic and excursion railroads 

have 545 days from the effective date of the final rule to 

complete their analysis and any 

required submission. 

Specific Rules for Unscheduled 

Assignments.

None ............................................. None ............................................. The potential for fatigue presented by unscheduled work 

assignments must be mitigated 

as part of a railroad’s FRA-approved fatigue mitigation plan. 

Plans must be submitted for 

FRA review and approval along 

with the associated schedules 

requiring mitigation, 180 days 

from the effective date of the 

final rule, except that tourist, 

scenic, historic and excursion 

railroads have 545 days from 

the effective date of the final 

rule to complete their analysis 

and any required submission. 

Recordkeeping requirements ......... Record for each duty tour must 

contain 15 elements specified 

in 49 CFR 228.11(b).

Record for each duty tour must 

contain the first 12 elements 

specified in 49 CFR 228.11(b), 

as items 13 through 16 relate to 

RSIA requirements not applicable to train employees providing 

commuter or intercity rail passenger transportation.

Record for each duty tour must 

contain the first 12 elements 

specified in 49 CFR 228.11(b). 

Record must also indicate the 

date on which the series of at 

most 14 consecutive calendar 

days begins, as well as the 

date of any calendar day on 

which the employee did not initiate an on-duty period during 

the series. These recordkeeping requirements go into 

effect at the same time as the 

substantive provisions being 

tracked by them, which is 180 

days from the effective date of 

the final rule, except that those 

provisions go into effect for 

tourist, scenic, historic and excursion railroads 545 days from 

the effective date of the final 

rule, as would the associated 

recordkeeping requirements. 

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50364 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

1 In the NPRM, FRA referred to ‘‘exceeding’’ the 

fatigue threshold. The two currently approved 

models differ in how their thresholds are expressed, 

with FAST requiring an effectiveness score greater 

than or equal to its threshold, and FAID requiring 

a score less than or equal to its threshold, so FRA 

realized there could be confusion as to what it 

meant to ‘‘exceed’’ the threshold depending which 

model is being used, while it is equally applicable 

to say the threshold is violated, however that 

threshold is expressed. 

Freight train employee statute 

Train employee statutory 

provisions immediately prior 

to the RSIA and currently 

applicable only to passenger 

train employees 

FRA passenger train employee 

final rule 

Excess Service Reporting Requirements.Requires reporting of any of 10 

different ways in which hours of 

service limitations may be exceeded.

Requires reporting of any of 4 different ways in which hours of 

service limitations may be exceeded.

Requires reporting of any of 8 different ways in which hours of 

service limitations may be exceeded (reflecting various ways 

of violating new consecutivedays requirements). These recordkeeping requirements go 

into effect at the same time as 

the substantive provisions being 

tracked by them, which is 180 

days from the effective date of 

the final rule, except that those 

provisions go into effect for 

tourist, scenic, historic and excursion railroads 545 days from 

the effective date of the final 

rule, as would the associated 

recordkeeping requirements. 

This rule mirrors the existing 

limitations set by old section 21103 on 

the maximum number of hours in a duty 

tour and minimum number of hours in 

a statutory off-duty period. Additional 

limitations are added on the number of 

consecutive days or total days within a 

prescribed period that a passenger train 

employee may work, depending on the 

time of day of the assignment. This 

differentiation takes into account the 

fact that work during nighttime hours 

may present a greater risk for fatigue. 

(For ease of reference, these provisions 

of this regulation are collectively 

referred to as ‘‘consecutive-days 

limitations’’). Conforming changes are 

also made to the recordkeeping and 

reporting requirements to accommodate 

the consecutive-days limitations. 

The limitations on maximum hours 

worked, minimum hours of rest, and 

consecutive days or total days within a 

prescribed period provide a ‘‘floor,’’ a 

minimum set of limitations, within 

which the rule requires railroads subject 

to this rule to analyze the work 

schedules of their passenger train 

employees using a validated and 

calibrated biomathematical model of 

human performance and fatigue, and to 

mitigate any fatigue identified that 

violates the fatigue threshold for the 

model.1 The fatigue threshold is a level 

of fatigue at which safety may be 

compromised. As will be discussed 

below, especially under Section III.A, 

there are two models that currently have 

been validated and calibrated using data 

from freight railroads, that have been 

approved by FRA to be used for the 

analysis required by this rule. The rule 

also allows for the development of new 

models. It discusses procedures for 

validating and calibrating a model, and 

provides that evidence of a new model’s 

validation and calibration may be 

submitted to FRA for approval. 

The rule defines as a ‘‘Type 1 

assignment’’ any assignment that 

requires an employee to report for duty 

no earlier than 4 a.m. and be released 

from duty no later than 8 p.m. Based on 

analysis conducted during the 

formulation of this rule, such 

assignments are subjected to a less 

restrictive consecutive-days limitation, 

and such schedules are deemed to 

present an acceptable level of fatigue 

when otherwise in compliance with the 

limitations established in this rule. 

Thus, these schedules are not required 

to be submitted to FRA for approval, nor 

is the application of fatigue mitigation 

tools to these schedules required. 

A ‘‘Type 2 assignment’’ is any 

assignment having any period of time 

during a calendar day before 4 a.m. or 

after 8 p.m. Within 180 days of the 

effective date of this regulation, 

railroads are required to analyze the 

fatigue risk of assignments that they 

make to their passenger train employees 

using an FRA-approved fatigue model. If 

the analysis shows that a schedule does 

not violate the fatigue threshold, and the 

schedule is otherwise in compliance 

with the limitations of the rule and does 

not require the employee to be on duty 

for any period of time between midnight 

and 4 a.m., the rule allows that schedule 

to be treated as a Type 1 assignment for 

the purposes of the consecutive-days 

limitation, and there is no requirement 

to submit the schedule to FRA or to 

mitigate fatigue in that schedule. 

However, for those schedules that the 

analysis indicates have a level of risk for 

fatigue violating the fatigue threshold, 

the railroad is required to mitigate the 

fatigue. Railroads are also required to 

complete their analysis and submit any 

schedules with a risk violating the 

fatigue threshold, and the mitigation 

tools the railroad applied to mitigate the 

fatigue risk in those schedules to FRA 

for approval. In addition, any schedule, 

the fatigue risk of which could not be 

sufficiently mitigated so that it no 

longer violates the fatigue threshold, but 

which the railroad deems operationally 

necessary, must also be submitted for 

FRA approval, along with a declaration 

of operational necessity for FRA 

approval. 

The rule also requires railroads to 

submit any schedule changes that result 

in a schedule that would have been 

required to be submitted if it were an 

original schedule, unless the new 

schedule is the same as another 

schedule that has previously been 

analyzed and approved. 

Within 120 days of any railroad 

submission, FRA will notify the railroad 

of any exceptions taken to its 

submission and the time frame within 

which the railroad must correct the 

exceptions. While the rule requires FRA 

approval of the schedules and fatigue 

mitigation tools, FRA expects that it will 

work with a railroad to make necessary 

modifications to schedules or mitigation 

tools to minimize fatigue to the greatest 

extent possible. 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50365 

Railroads are required to consult with 

affected employees and applicable labor 

organizations regarding the analysis of 

work schedules, fatigue mitigation tools, 

and submissions to FRA. Should the 

employees or labor organizations 

disagree with the railroad, they have the 

opportunity to file a statement for FRA’s 

consideration in reviewing the 

submission and determining whether to 

approve it. 

Finally, the rule requires initial 

fatigue training, addressing a list of 

subjects, and refresher training every 

three years. This training may be 

combined with other training that the 

railroads are providing to their 

employees. 

FRA analyzed the economic impacts 

of this rule against two baselines. One 

is a ‘‘status quo’’ baseline that reflects 

present conditions (i.e., primarily, the 

statutory hours of service provisions 

(specifically, old section 21103) and, 

secondarily, the hours of service 

recordkeeping and reporting 

regulations) that have applied, and will 

continue to apply to passenger railroads, 

with respect to their train employees, 

until this final rule becomes effective. 

The other baseline is a ‘‘no regulatory 

action’’ baseline that reflects what 

would have happened in the absence of 

this rulemaking (i.e., the freight hours of 

service laws would have been applied to 

passenger railroads with respect to their 

train employees). 

With respect to the ‘‘no regulatory 

action’’ baseline, this rule represents a 

substantially more cost-effective 

alternative for achieving the goal of 

identifying and mitigating unacceptable 

fatigue risk levels and thus ensuring the 

safety of passenger train operations. The 

following table presents the costs of the 

final rule compared to the ‘‘no 

regulatory action’’ alternative. 

Cost description 

No regulatory action alternative—freight HSL Final rule 

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

New Engineer Training, Initial (20% 

New Hires).

$31,237,549 $26,299,825 $28,705,081 0 ..................................... 0 ................................. 0. 

New Engineer Training, Refresher 

(20% New Hires).

$4,599,050 $2,278,431 $3,327,802 0 ..................................... 0 ................................. 0. 

New Conductor Training, Initial (20% 

New Hires).

$30,847,974 $25,942,971 $28,330,908 0 ..................................... 0 ................................. 0. 

New Conductor Training, Refresher 

(20% New Hires).

$8,636,745 $4,278,146 $6,249,071 0 ..................................... 0 ................................. 0. 

Work Schedule Analysis (No-Reg Action)/Initial Analysis of Work Schedules + Follow-up Analysis and Fatigue Mitigation Plan Review (FRA 

rule).

$189,723 $177,312 $184,198 ($126,482 + $240,316) = 

$366,799.

($118,208 + $122,175) 

= $240,382.

($122,798 + $175,894) 

= $298,692. 

Indirect Determination that Type 2 

Schedules are Acceptable (‘‘Nested’’ 

Schedules Reduction).

...................... ...................... ...................... ¥$91,700 ....................... ¥$60,096 ................... ¥$74,673. 

Biomathematical Model of Fatigue Software (Training on model use).0 0 0 $417,500 (includes 

$192,500 for training 

on model use).

$268,723 (includes 

$119,175 for training on model use).

$337,240 (includes 

$152,843 for training on model use). 

Use of Rest Facilities ............................ 0 0 0 $30,988 .......................... $28,961 ...................... $30,086. 

Fatigue Training .................................... 0 0 0 $1,312,920 ..................... $782,634 .................... $1,025,158. 

Fatigue Training (Tourist & Excursion) 0 0 0 $20,000 .......................... $12,000 ...................... $16,000. 

Total (rounded) .............................. $75,511,041 $58,976,685 $66,797,059 $2,056,507 ..................... $1,272,605 ................. $1,632,502. 

FRA estimates that the recordkeeping 

and reporting costs per employee record 

under the no-regulatory action 

alternative and this rule will be 

practically the same. 

The estimated accident reduction 

benefits of the rule relative to the 

statutory hours of service requirements 

currently in place include prevented 

accident damages, injuries, and 

fatalities. The table below presents the 

estimates for the 20-year period of 

analysis for the benefits of this rule, 

which FRA estimates to be the same as 

the benefits of the no-regulatory action 

alternative. 

INTERCITY PASSENGER, COMMUTER, TOURIST AND EXCURSION RAILROADS

[All track types] 

Accident reduction benefits 

VSL = $6 M 

undiscounted 

benefits 

VSL = $6 M 

discounted 

PV@7% 

VSL = $6 M 

discounted 

PV@3% 

Property Damage ......................................................................................................................... $685,915 $348,713 $502,039 

Injuries ......................................................................................................................................... 94,861 48,227 69,431 

Fatalities ....................................................................................................................................... 407,634 207,237 298,358 

Total (rounded) ..................................................................................................................... 1,188,410 604,177 869,828 

FRA does not expect that the overall 

number of casualties and property 

damages attributable to the rule will 

differ from those that would be 

prevented under the statutory freight 

hours of service requirements. However, 

as noted above, there are significant 

additional potential safety enhancement 

benefits that may result from the FRA 

approach. FRA believes that the safety 

of passenger train operations will be 

enhanced under this rule as a result of 

subjecting every crew assignment to a 

biomathematical analysis either via the 

analyses conducted while developing 

the RSAC recommendation or the 

analyses that will be performed by 

railroads in the years ahead. The 

information that railroads will have as 

a result of this rule regarding fatigue, its 

causes and symptoms, and its impact on 

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50366 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

2A ‘‘train employee’’ is defined at 49 U.S.C. 

21101(5) and 49 CFR 228.5 as an individual 

engaged in or connected with the movement of a 

train, including a hostler. FRA also interpreted this 

statutory term in published interpretations in 49 

CFR part 228, appendix A, providing: ‘‘Train or 

engine service refers to the actual assembling or 

operation of trains. Employees who perform this 

type of service commonly include locomotive 

engineers, firemen, conductors, trainmen, 

switchmen, switchtenders (unless their duties come 

under the provisions of section 3 [49 U.S.C. 21105]) 

and hostlers.’’ Other employees, such as food 

service providers or sleeping car attendants, who 

may work on passenger trains, but have no 

responsibility for assembling or operating the train, 

are not within the definition of a train employee, 

and are, as such, not generally covered by this rule, 

or any other hours of service limitations, but they 

would be covered if they performed functions 

related to assembling or operating the train, 

regardless of the employee’s job title. 

3 ‘‘Deadheading’’ is defined at 49 CFR 228.5 as the 

physical relocation of a train employee from one 

point to another as a result of a railroad-issued 

verbal or written directive. 

safety, will allow them to make crew 

assignments that take this into 

consideration and minimize fatigue 

beyond the requirements of this rule. 

Based on its literature review, FRA is 

confident that, overall, fatigue 

awareness training will positively 

contribute to a stronger safety culture 

that will extend beyond railroad 

operations, which is a benefit that 

extends beyond what would result 

under the freight hours of service law. 

For instance, safety and health benefits 

may accrue from the transfer of 

knowledge to employees, their families, 

friends, and others with whom they may 

share the fatigue knowledge that they 

acquire from the required fatigue 

awareness training programs. This 

fatigue awareness may result in more 

optimal decisions regarding rest and 

sleep, leading to less fatigue and 

improved safety outside of passenger 

train operations during the course of 

daily activities that may also include the 

operation of motor vehicles or other 

heavy machinery. This fatigue 

awareness may also result in proper 

identification and treatment, if 

necessary, of fatigue symptoms. 

Although FRA has not identified 

research on the effectiveness of the 

specific types of fatigue training 

programs required under this rule, many 

studies have indicated health training 

programs in general produce meaningful 

behavioral performance improvements. 

With respect to the ‘‘status-quo’’ 

baseline, this rule imposes costs that are 

higher than the safety benefits FRA was 

able to quantify. Costs compared to the 

‘‘status quo’’ baseline total $2.1 million 

(undiscounted), $1.3 million (PV, 7 

percent), and $1.6 million (PV, 3 

percent). Quantified benefits compared 

to the ‘‘status quo’’ baseline total $1.2 

million (undiscounted), $0.6 million 

(PV, 7 percent), and $0.9 million (PV, 3 

percent). However, there are additional 

benefits that have not been quantified, 

but should be considered when 

comparing the overall costs and 

benefits. As when compared to the ‘‘noregulatory action’’ baseline, FRA 

believes that the safety of passenger 

train operations will be enhanced under 

this rule as a result of a stronger safety 

culture that may extend beyond railroad 

operations, which would be a benefit 

that extends beyond what would result 

under the freight hours of service law. 

Separately, accident avoidance will 

result in fewer unplanned delays to 

passengers and freight commodities 

impacted by passenger train accidents 

and incidents that result in blocking one 

or more tracks for prolonged periods. 

These costs can be very substantial 

given the need to investigate accidents 

and often clear wreckage. It is not 

unreasonable to expect that the 

unquantified benefits will raise the 

benefits to a level quite comparable to 

the costs. FRA also believes that the 

unquantified benefits coupled with the 

quantified safety benefits are 

comparable to the costs associated with 

meeting the intent of the statutory 

mandate. 

After careful consideration of 

comments received in response to the 

NPRM, FRA has made modifications to 

its proposal in the final rule that reduce 

the overall burden by approximately 

$100,000 due in equal part to 

flexibilities added by extending the 

deadline for fatigue awareness training 

and the expanded ability to rely on the 

findings of analyses conducted for other 

assignments. 

II. Statutory Background and History 

Federal laws governing railroad 

employees’ hours of service date back to 

1907 with the enactment of the Hours of 

Service Act. These laws, codified as 

amended primarily at 49 U.S.C. 21101– 

21109, are intended to promote safe 

railroad operations by limiting the hours 

of service of certain railroad employees 

and ensuring that they receive adequate 

opportunities for rest in the course of 

performing their duties. Public Law 

103–272 (1994). The Secretary is 

charged with the administration of those 

laws, collectively referred to in this 

document as the hours of service laws 

(HSL). This function has been delegated 

to the FRA Administrator. 49 U.S.C. 

103(c); 49 CFR 1.49(d). 

Congress substantially amended the 

HSL on three occasions. The first 

significant amendments occurred in 

1969. Public Law 91–169, 83 Stat. 463. 

The 1969 amendments reduced the 

maximum time on duty for train 

employees 2 from 16 hours to 14 hours 

effective immediately, with a further 

reduction to 12 hours automatically 

taking effect two years later. Congress 

also established provisions for 

determining, in the case of a train 

employee, whether a period of time is 

to be counted as time on duty. 49 U.S.C. 

21103(b). In so doing, Congress also 

addressed the issue of deadhead 

transportation 3 time, providing that 

‘‘[t]ime spent in deadhead 

transportation to a duty assignment’’ is 

counted as time on duty. Although time 

spent in deadhead transportation from a 

duty assignment to the point of final 

release is not included within any of the 

categories of time on duty, Congress 

further provided that it shall be counted 

as neither time on duty nor time off 

duty. 49 U.S.C. 21103(b)(4). This 

provision effectively created a third 

category of time, known commonly as 

‘‘limbo time.’’ 

In 1976, Congress again amended the 

HSL in several important respects. Most 

significantly, Congress expanded the 

coverage of the laws, by including 

hostlers within the definition of 

employees now termed ‘‘train 

employees,’’ and adding the section 

providing hours of service requirements 

for ‘‘signal employees,’’ now codified at 

49 U.S.C. 21104. Congress also added a 

provision that prohibited a railroad from 

providing sleeping quarters that are not 

free from interruptions of rest caused by 

noise under the control of the railroad, 

and that are not clean, safe, and 

sanitary, and prohibited beginning 

construction or reconstruction of 

sleeping quarters in an area or in the 

immediate vicinity of an area in which 

humping or switching operations are 

performed after July 7, 1996. See Public 

Law 94–348, 90 Stat. 818 (1976). 

Section 108 of the RSIA also amended 

the HSL in a number of significant 

ways, most of which became effective 

July 16, 2009. See Section 108 of Public 

Law 110–432, Div. A, and FRA Interim 

Statement of Agency Policy and 

Interpretation at 74 FR 30665 (June 26, 

2009). The RSIA established a limit of 

276 hours per calendar month for train 

employees on service performed for a 

railroad and on time spent in or waiting 

for deadhead transportation to a point of 

final release, increased the quantity of 

the statutory minimum off-duty period 

after being on duty for 12 hours in 

broken service from 8 hours of rest to 10 

hours of rest, prohibited communication 

with train or signal employees during 

certain minimum statutory rest periods, 

and established mandatory time off duty 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50367 

4See Pilcher and Coplen, Ergonomics, 2000, Vol. 

43, No. 5, 573–588. 

5FRA notes that other provisions of the RSIA 

mandate issuance of regulations requiring certain 

railroads to implement railroad safety risk 

reduction programs and plans; one component of 

each plan is a fatigue management plan. See 49 

U.S.C. 20156. 

for train employees of 48 hours after 

initiating an on-duty period on six 

consecutive days, or 72 hours after 

initiating an on-duty period on seven 

consecutive days. 49 U.S.C. 21103– 

21104. The RSIA also revised the 

definition of ‘‘signal employee’’ to 

include contractors who perform the 

work of a signal employee within the 

scope of the statute. 49 U.S.C. 21101(4). 

However, Section 108(d) of the RSIA, 

which became effective on October 16, 

2008, provided that the requirements 

described above for train employees 

would not go into effect on July 16, 

2009, for train employees when 

providing commuter or intercity rail 

passenger transportation. 49 U.S.C. 

21102(c). Section 108(d) further 

provided that these train employees, 

who provide commuter or intercity 

passenger rail service, would continue 

to be governed by the old HSL (as they 

existed immediately prior to the 

enactment of the RSIA, at 49 U.S.C. 

21103 prior to its 2008 amendment), 

until the effective date of regulations 

promulgated by the Secretary. 49 U.S.C. 

21102(c). However, if no new 

regulations are in effect before October 

16, 2011, the provisions of Section 

108(b), which applied to train 

employees, would be extended to these 

employees at that time. Id. 

Section 108(e) of the RSIA specifically 

provides the Secretary with the 

authority to issue hours of service rules 

and orders applicable to train 

employees engaged in commuter rail 

passenger transportation and intercity 

rail passenger transportation (as defined 

in 49 U.S.C. 24102), that may be 

different from the statute applied to 

other train employees. 49 U.S.C. 

21109(b). Section 108(e) of the RSIA 

further provides that such regulations 

and orders may address railroad 

operating and scheduling practices, 

including unscheduled duty calls, 

communications during time off duty, 

and time spent waiting for deadhead 

transportation or in deadhead 

transportation from a duty assignment 

to the place of final release, that could 

affect employee fatigue and railroad 

safety. Id. 

Section 108(e) of the RSIA also 

provides— 

[i]n issuing regulations under subsection (a) 

the Secretary shall consider scientific and 

medical research related to fatigue and 

fatigue abatement, railroad scheduling and 

operating practices that improve safety or 

reduce employee fatigue, a railroad’s use of 

new or novel technology intended to reduce 

or eliminate human error, the variations in 

freight and passenger railroad scheduling 

practices and operating conditions, the 

variations in duties and operating conditions 

for employees subject to this chapter, a 

railroad’s required or voluntary use of fatigue 

management plans covering employees 

subject to this chapter, and any other relevant 

factors. 

49 U.S.C. 21109(c). Section 21109(a) of 

title 49 of the U.S. Code refers to other 

regulatory authority granted to FRA, as 

the Secretary’s delegate related to the 

HSL, which is not relevant to this rule. 

One of the goals of the present 

rulemaking is to identify and reduce 

unacceptable fatigue for the employees 

who will be covered by the final rule. 

Therefore, as will be described below, 

FRA has based these regulations on 

scientific research related to fatigue and 

fatigue abatement, as applied to railroad 

scheduling practices and operating 

conditions for train employees 

providing commuter and intercity rail 

passenger transportation. Section III 

below will describe the primary 

scientific foundation and support for the 

requirements contained in this rule. In 

addition, scientific considerations will 

also be addressed in discussion of 

various elements of the rule, including 

in the discussion of specific provisions 

in Section VI, Section-by-Section 

Analysis, below. 

III. Scientific Background 

Most mammals, including human 

beings, have an approximately 24-hour 

sleep-wake cycle known as a ‘‘circadian 

rhythm.’’ Rapid changes in the circadian 

pattern of sleep and wakefulness disrupt 

many physiological functions such as 

hormone releases, digestion, and 

temperature regulation. Physiological 

functions can be affected, performance 

may be impaired, and a general feeling 

of fatigue and debility may occur until 

realignment is achieved. Jet lag, a 

commonly experienced syndrome when 

flying across several time zones, 

especially when flying east, is similar to 

the experience of individuals working 

schedules with abrupt changes in the 

timing of work and subsequent sleep. 

Fatigue risk in an industry that 

operates 24 hours a day and 7 days a 

week is not just dependent on how 

many hours per day a person is 

permitted to work, or the amount of 

time that a person is required to be off 

duty between periods of work. Other 

significant factors in the level of fatigue 

risk include the time of day that an 

employee works, the number of 

consecutive hours worked, direction 

and rate of schedule rotation, and the 

number of consecutive days that an 

employee works. In addition, the 

quantity and quality of sleep vary with 

the time of day and environmental 

conditions in which sleep occurs. 

Furthermore, there are significant 

individual factors such as sleep 

disorders, age and time of day (e.g., 

morning or evening that may affect 

one’s fatigue and alertness. Because of 

natural circadian rhythms and 

environmental and social factors, most 

people are able to achieve the best 

quality and most restful sleep at night. 

The railroad industry by necessity is 

a continuous operation, 24 hours a day, 

seven days a week, 365 days a year, 

including both day and night work. 

Consequently, fatigue risk mitigation is 

a very important strategy of a railroad 

safety management system. In fact, the 

design and operation of the work 

schedule system are perhaps the most 

essential elements of that fatigue risk 

management strategy. While the 

purpose of any work schedule system is 

to provide the organization with a 

methodical means of organizing the 

timing and structure of work to 

maximize efficiency and productivity, 

seldom are these schedules designed to 

minimize the safety risks associated 

with work schedules that are 

incompatible with human biological 

limitations, such as our circadian 

system. Because the railroad industry is 

a continuous service industry, and 

because both employees and the general 

public are exposed to the safety risks 

associated with railroad operations, 

researchers have long called for 

validated fatigue models to better 

identify and mitigate fatigue-related 

risks associated with work scheduling.4

The general purpose for a regulation 

requiring an industry to use a valid 

fatigue model is to impose a minimum 

standard for identifying and mitigating 

fatigue risk that otherwise might not 

occur without such a standard. These 

models take into account the complex 

interaction between human physiology 

and work times, something that would 

be very difficult to specify through other 

means. Use of fatigue modeling tools to 

evaluate work schedules, however, is 

just one aspect of mitigating fatigue risk 

in a larger system. While FRA intends 

to enforce the minimum standards in 

the regulatory text, including those 

related to fatigue models, it also hopes 

that the industry will go beyond 

compliance with this standard by using 

the models and other tools to assess and 

address fatigue risk across the system.5

For example, if a fatigue model were 

to identify a particular type of work 

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50368 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

6See Hursh, et al. infra at footnote 7. 

7For a discussion of existing models and their 

application, see Dean II, D.A., Fletcher, A., Hursh, 

S.R. and Klerman, E.B., Developing Models of 

Neurobehavioral Performance for the ‘‘Real World,’’ 

J. Biol. Rhythms 2007; 22; 246. 

schedule that violates the model’s 

fatigue threshold, and thus requires 

fatigue mitigation, the carrier may 

discover underlying systems issues and 

factors (e.g., inadequate rest facilities, 

etc.) that contribute to fatigue-related 

risks on not only that work schedule, 

but also on other less fatiguing 

schedules that do not violate the fatigue 

threshold. The use of fatigue modeling 

in this way, then, provides the 

organization with a method for 

systematically identifying and 

addressing the underlying system risks, 

as opposed to those risks only for a 

given work schedule. In going beyond 

compliance with the minimum 

standard, the organization also builds its 

organizational capacity for mitigating 

fatigue as a major safety risk factor 

across the system. 

As previously mentioned, the 

statutory hours of service requirements 

currently in effect for train employees 

providing commuter and intercity rail 

passenger transportation establish a 

maximum on-duty time of 12 hours in 

a 24-hour period, and a minimum offduty time of 8 hours in a 24-hour 

period, or 10 hours after a period of 12 

consecutive hours on duty. Statutory 

requirements applicable to train 

employees on freight railroads, as 

revised by the RSIA, include a 

limitation on the number of consecutive 

days on which a train employee may 

initiate an on-duty period. However, the 

HSL for the railroad industry have 

never, up to the present day, 

differentiated in their requirements 

based on the time of day in which 

service is performed, or the time of day 

that a period is available for rest. 

As will be discussed further below, 

FRA conducted two work/rest diary 

studies with train employees in freight 

and passenger operations. Data from 

these studies indicate that train 

employees get more sleep than the 

average U.S. adult. While 46 percent of 

U.S. adults get less than seven hours of 

sleep, only 35 percent of freight train 

employees and 41 percent of passenger 

train employees get less than seven 

hours of sleep. This amount of sleep 

results in a level of fatigue that increases 

accident risk by 21 to 39 percent.6

Moreover, certain operational 

characteristics of commuter and 

intercity passenger service mitigate the 

fatigue associated with this amount of 

sleep loss relative to freight service. For 

example, many train employees on 

commuter and intercity passenger 

railroads work scheduled assignments, 

in which they begin and end their work 

day at approximately the same time 

each day. These employees also usually 

begin and end their duty tour at the 

same location, meaning that they can go 

home at the end of their work day and 

sleep in their own beds. In addition, 

very few scheduled assignments on 

most railroads operate during late night 

hours, and many of them result in duty 

tours significantly shorter than the 

maximum hours that the employee 

would be allowed to remain or go on 

duty under the existing law or this 

regulation. Because these characteristics 

are more likely to allow for periods of 

rest that are consistent with normal 

circadian rhythms, they will provide 

better opportunities for rest, and less 

risk for fatigue. In addition, as will be 

discussed further below, two FRA work/ 

rest diary studies demonstrate that 

levels of fatigue are not equivalent in 

freight and passenger operations (Work 

Schedules and Sleep Patterns of 

Railroad Train and Engine Service 

Workers http://www.fra.dot.gov/

downloads/Research/ord0922.pdf) 

(which included data from a small 

number of train employees in passenger 

operations); Work Schedules and Sleep 

Patterns of Railroad Train and Engine 

Employees in Passenger Operations 

http://www.fra.dot.gov/rpd/downloads/ 

TR_Work_Schedules_and_Sleep_

Patterns_final.pdf (the diary study 

conducted to support this rulemaking). 

For all of these reasons, FRA has 

determined that some of the specific 

limitations that Congress applied to 

train employees on freight railroads in 

the RSIA are not appropriate for train 

employees on commuter and intercity 

passenger railroads. 

However, FRA also recognizes that 

some train employees covered by this 

rule experience a level of fatigue at 

which safety may be compromised. This 

is particularly true of those employees 

who do not work scheduled 

assignments and may not return home at 

the end of each duty tour, or who are 

required to perform service during late 

night hours, or to work duty tours of the 

maximum length allowed by existing 

requirements, with only the minimum 

required rest between duty tours. FRA 

has attempted, in this regulation, to 

specifically address those employees 

who are most at risk for fatigue, even 

when in compliance with specific hours 

of service limitations. As will be 

discussed below, research that resulted 

in the validation of fatigue models using 

data from freight railroads demonstrated 

that fatigue increases the risk of a 

human factors accident. In addition, as 

will be discussed below, diary data 

show the risk of fatigue in passenger 

operations. The risk must be measured 

in order to be managed, and fatigue 

models allow for that measurement. 

An effective proactive fatigue risk 

management program needs to balance 

the amount of work performed against 

when the work is performed, how long 

a work schedule is in effect in terms of 

hours in a day, consecutive days, and 

other variables. This regulation 

addresses fatigue risk by going beyond 

establishing limitations on the amount 

of time that an employee may work, and 

the minimum amount of time that an 

employee must be off duty between 

duty tours. It additionally requires the 

analysis of the fatigue risk in employee 

work schedules using a biomathematical 

model of performance and fatigue, 

identification of those schedules that 

present an unacceptable level of fatigue 

risk, and mitigation of the identified 

fatigue risk. In addition, the regulation 

establishes different requirements for 

schedules of employees who operate 

trains during the late night hours in 

which the fatigue risk is greatest. Thus, 

the rule will specifically address those 

schedules the characteristics of which 

present a risk for fatigue, even when 

otherwise in compliance with required 

maximum on-duty and minimum offduty periods and other limitations. 

These risks would not be addressed by 

a regulation that simply established 

maximum on-duty and minimum offduty periods, just as they are not 

addressed by the existing statutory 

requirements. 

A. Validated and Calibrated Fatigue 

Models 7

A biomathematical model of 

performance and fatigue that has been 

properly validated and calibrated 

predicts accident risk based on analysis 

of identified periods of wakefulness and 

periods available for sleep. 

‘‘Validation’’ of a biomathematical 

model of human performance and 

fatigue means determining that the 

output of the model actually measures 

human performance and fatigue. There 

are two dimensions to this validation. 

The first is that the model must be 

demonstrated to be consistent with 

currently established science in the area 

of human performance, sleep, and 

fatigue. The second part of the 

validation process involves determining 

that the model output has a statistically 

reliable relationship with the risk of a 

human factors accident caused by 

fatigue, and that the model output does 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50369 

8 In statistics, a ‘‘bin’’ is a discrete, nonoverlapping interval of a variable. Here, the variable 

is the level of fatigue. 

9For the purposes of this regulation, the fatigue 

threshold is referred to as a level of fatigue at which 

safety may be compromised, in recognition of the 

fact that while it is possible to determine the level 

of fatigue expected to be produced by working a 

certain schedule, that is not necessarily the exact 

level of fatigue experienced by each individual 

employee working that schedule. 

10A model may also be calibrated by reference to 

a model that has been previously validated and 

calibrated, as discussed in Section III.A.2, below. 

11For more information on the proper procedures 

for validation and calibration of a biomathematical 

model of performance and fatigue, see Raslear, T.G., 

Criteria and Procedures for Validating 

Biomathematical Models of Human Performance 

and Fatigue; Procedures for Analysis of Work 

Schedules. (A copy of this document has been 

placed in the docket for this rulemaking.) 

12For a description of the FAST model, see 

Hursh, S. R., Redmond, D. P., Johnson, M. L., 

Thorne, D. R., Belenky, G., Balkin, T. J., Storm, W. 

F., Miller, J. C., and Eddy, D. R. (2004). Fatigue 

models for applied research in warfighting. 

Aviation, Space, and Environmental Medicine, 75, 

A44–53. 

13Hursh, S. R., Raslear, T. G., Kaye, A. S., and 

Fanzone, J. F. (2006). Validation and calibration of 

a fatigue assessment tool for railroad work 

schedules, summary report (Report No. DOT/FRA/ 

ORD–06/21). Washington, DC: U.S. Department of 

Transportation. 

http://www.fra.dot.gov/downloads/Research/

ord0621.pdf; Hursh, S. R., Raslear, T. G., Kaye, A. 

S., and Fanzone, J. F. (2008). Validation and 

calibration of a fatigue assessment tool for railroad 

work schedules, final report (Report No. DOT/FRA/ 

ORD–08/04). Washington, DC: U.S. Department of 

Transportation. http://www.fra.dot.gov/downloads/ 

Research/ord0804.pdf. 

not have such a relationship with 

nonhuman factors accident risk. 

In general, and for the purpose of 

compliance with this rule, a model will 

be validated if statistical analyses 

demonstrate the existence of a 

statistically significant relationship 

between the output of the model and the 

human factors accident risk ratio, and 

the absence of such a relationship 

between the output of the model and the 

non-human factors accident risk ratio. 

The presence of a statistically 

significant relationship is evaluated by 

way of the correlation coefficient (r) 

with statistical significance requiring a 

p-value of less than 0.05. The first step 

is the selection of bin 8 edges that 

correspond to varying levels of fatigue, 

(e.g., the ‘‘not fatigued’’ bin and the 

‘‘severely fatigued’’ bin). The ‘‘not 

fatigued’’ bin is determined by the 

output of the model when sleep occurs 

or can occur for 8 or more hours, 

without abrupt phase changes, between 

10 p.m. and 10 a.m. This is similar to 

the amount of fatigue produced by the 

standard 9 a.m. to 5 p.m., Monday 

through Friday work week. The 

performance bin ‘‘severely fatigued’’ is 

determined by the output of the model 

when there is total sleep deprivation for 

42.5 hours after waking at 7 a.m. This 

is similar to the amount of fatigue 

produced by a permanent night shift 

schedule with six consecutive 12-hour 

work periods followed by 1 day off. 

These two bins are the ‘‘anchor’’ bins for 

the validation procedure. Four 

additional bins, equally spaced between 

the anchor bins, accommodate the 

intermediate fatigue scores. 

Calibration is, in general, the 

assignment of numerical values to 

represent aspects of empirical 

observations. In the case of human 

fatigue and performance, the calibration 

of a fatigue scale would start with the 

assignment of values to ‘‘not fatigued,’’ 

and the most fatigued condition might 

be described as ‘‘severely fatigued.’’ The 

calibration process starts during the 

validation process with the assignment 

of model output values to anchor bins 

for ‘‘not fatigued’’ and ‘‘severely 

fatigued.’’ The next step consists of 

determining the fatigue threshold. Given 

a scale for human fatigue and 

performance and a relationship between 

that scale and human factors accident 

risk, a final calibration point would be 

to determine the fatigue value at which 

fatigue becomes unacceptable because 

the increase in accident risk at that level 

compromises safety. This is the fatigue 

threshold.9

The procedure for determining the 

fatigue threshold consists of several 

computations. First, the cumulative risk 

for the six fatigue score bins is 

determined for human factor and nonhuman factor accidents. Next, a 95- 

percent confidence interval is calculated 

for the cumulative risk in each bin. 

Finally, the fatigue score bin in which 

human factor cumulative risk exceeds 

both human factors Accident Risk Ratio 

= 1 and the mean non-human factors 

risk is determined. This is the fatigue 

threshold for the model.10

The accident risk is defined as an 

odds ratio, expressed as a percentage of 

accidents occurring when employees 

involved in the accident are within a 

given range of fatigue, divided by the 

percentage of time spent by the 

individual working in that given range 

of predicted fatigue. For example, if 20 

percent of accidents occur when an 

employee is within a particular range of 

predicted fatigue, and 10 percent of an 

employee’s time in a given duty tour is 

spent within that range of predicted 

fatigue, then that specific range of 

predicted fatigue has doubled the 

accident risk.11

1. Fatigue Avoidance Scheduling 

ToolTM Model 

FRA-sponsored research resulted in 

the development of a Sleep, Activity, 

Fatigue, and Task Effectiveness (SAFTE) 

model and Fatigue Avoidance 

Scheduling ToolTM (FAST) that have 

been validated and calibrated using data 

from freight railroads. FAST is a 

biomathematical model of performance 

and fatigue that can be used to assess 

the risk of fatigue in work schedules and 

to plan schedules that ameliorate 

fatigue. The model takes into account 

the time of day when work occurs 

(circadian rhythm) and opportunities for 

sleep based on work schedules.12

The model validation used work 

histories from 400 human factors 

accidents and 1,000 non-human factors 

accidents on freight railroads. The 

model has not specifically been 

validated using passenger railroad 

accidents, because there were not 

enough such accidents in the relevant 

time period to obtain statistically 

significant results, and had the period of 

analysis been extended sufficiently to 

capture enough passenger railroad 

accidents, much of the needed work 

schedule data for the employees 

involved in those accidents would no 

longer be available. However, FAST 

measures fatigue and effectiveness, 

based on laboratory analysis of cognitive 

and sensory motor functions during 

sleep deprivation, which are not job 

specific. Furthermore, the tasks 

associated with freight and passenger 

train operations are actually highly 

similar. In addition, there was no 

statistically significant difference 

between the proportion of accidents in 

categories associated with fatigue, 

between freight and passenger railroads. 

For all of these reasons, FRA has 

determined that the model is valid for 

use in evaluating fatigue levels in 

passenger railroad schedules for the 

purposes of this rule. Indeed, the FAST 

model has been used by other entities, 

including the military and the airline 

industry. 

FAST was used to calculate cognitive 

effectiveness (the inverse of fatigue) on 

a scale from 0 (worst) to 100 (best) using 

the 30-day work histories of locomotive 

engineers prior to the accidents and at 

the time of the accidents.13 Cognitive 

effectiveness is a metric that tracks 

speed of performance on a simple 

reaction time test and is strongly related 

to overall response speed, vigilance, and 

the probability of lapses. 

The analysis revealed a significant 

high correlation between reduced 

predicted crew effectiveness (as a result 

of increased fatigue) and the risk of a 

human factor accident for freight 

railroads. As was discussed above, 

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14See Arnedt, J.T., Wilde, G.J., Munt, P.W., and 

MacLean, A.W. (2001). How do prolonged 

wakefulness and alcohol compare in the 

decrements they produce on a simulated driving 

task? Accident Analysis and Prevention, 33, 3, 337– 

44; Dawson, D., and Reid, K. (1997). ‘‘Fatigue, 

alcohol and performance impairment.’’ Nature 388, 

23. 

15See also Williamson, A., Feyer, A.M., Friswell, 

R., and Finlay-Brown, S. (2000). Development of 

Measures of Fatigue: Using an Alcohol Comparison 

to Validate the Effects of Fatigue on Performance 

(Road Safety Research Report CR 189). Canberra, 

Australia: Australian Transport Safety Bureau. 

16See Hursh, et al., supra note 7. 

17A 21-day free trial of the FAST Model can be 

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

fast. 

18For a description of FAID, see Roach, G. D., 

Fletcher, A., and Dawson, D. (2004). A model to 

predict work-related fatigue based on hours of 

work. Aviation, Space, and Environmental 

Medicine, 75, A61–9. 

19For details see Tabak, B., and Raslear, T. G. 

(2010). Procedures for Validation and Calibration of 

Human Fatigue Models: The Fatigue Audit 

InterDyne (FAID) Tool (Report No. DOT/FRA/ORD– 

10/14). Washington, DC: U.S. Department of 

Transportation. (http://www.fra.dot.gov/rpd/ 

downloads/TR_Procedures_or_Validation_

and_Calibration_final.pdf) (‘‘FAID validation 

report’’). 

20 Id. at 9. 

21 Kranz, D.H., Luce, R.D., Suppes, P., and 

Tversky, A. (1971). Foundations of measurement. 

Volume 1. Additive and polynomial 

representations. New York: Academic Press. 

22A free trial of the FAID Model can be 

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

although FAST was validated using 

freight railroad accidents, the cognitive 

and sensory motor functions it measures 

are not job specific, so the resulting 

determinations of effectiveness and 

accident risk are equally applicable to 

passenger railroads. There was no 

significant relationship between 

increased fatigue and non-human factor 

accidents. In addition, the data showed 

that there is a reliable relationship 

between the time of day of human factor 

accidents and the expected, normal 

circadian rhythm. The circadian pattern 

was not reliably present for non-human 

factor accidents. The risk of a human 

factor accident is increased by 20 

percent by working during the hours 

from midnight to 3 a.m. Id. 

The study showed that there is an 

elevated risk of human factors accidents 

at any effectiveness score below 90, and 

accident risk increased as effectiveness 

decreased. The risk of a human factors 

accident is increased by 21 percent at 

effectiveness scores at or below 70, 

which is a level of risk elevated beyond 

chance level, and greater than the mean 

risk of non-human factor accidents. 

Twenty-three percent of the freight 

accidents examined occurred when an 

employee involved was at or below an 

effectiveness score of 70. The study also 

found that cause codes associated with 

accidents that occurred at or below an 

effectiveness score of 70 showed an 

over-representation of the type of 

human factors accident that might be 

expected of a fatigued crew, such as 

passing a signal indicating stop, or 

exceeding the maximum authorized 

speed, which confirmed that the 

detected relationship between accident 

risk and predicted effectiveness is 

meaningful. 

Other research, comparing the effects 

of alcohol and sleep deprivation on 

performance on a driving simulator, has 

also indicated that an effectiveness 

score of 70 is the rough equivalent of a 

0.08 blood alcohol level, or the 

equivalent of being awake for 21 hours 

following an 8-hour sleep period the 

previous night.14 However, direct 

comparisons between the performance 

effects of alcohol and fatigue must be 

made with caution. Some aspects of a 

complex task, such as driving an 

automobile simulator, show a high 

degree of congruence between the 

effects of alcohol and fatigue, while the 

effects of alcohol and fatigue on other 

aspects of the same task are highly 

dissimilar. For instance, Arnedt et al. 

(2001) found that tracking, tracking 

variability, and speed variability were 

all similarly affected by alcohol and 

fatigue in a driving simulator. However, 

Arnedt et al. found that, while subjects 

drove faster after consuming alcohol, 

fatigue did not affect driving speed. In 

addition, alcohol produced a more rapid 

deterioration in performance in off-road 

events (incidents in which the 

simulated vehicle was driven off the 

road) than did fatigue. Thus, while it is 

clear that alcohol and fatigue can both 

cause deterioration in task performance, 

the effect of alcohol is often more severe 

and extensive.15

As a result of this analysis, a fatigue 

threshold (the fatigue level at which 

there is an unacceptable accident risk 

due to fatigue) of 70 was established for 

FAST.16 Accordingly, an effectiveness 

score less than or equal to 70 violates 

that threshold for the purposes of this 

regulation.17

2. Fatigue Audit InterDyneTM Model 18

Another biomathematical model of 

performance and fatigue that has 

recently been validated and calibrated is 

the Fatigue Audit InterDyne TM (FAID). 

FAID was validated and calibrated using 

the same accident data from freight 

railroads as FAST used.19 For the same 

reasons described above with regard to 

FAST, FRA has determined that FAID is 

valid for use in evaluating fatigue levels 

in passenger railroad schedules for the 

purposes of this rule. 

Analysis of the FAID scores resulted 

in a statistically significant correlation 

for human factor accidents and no 

statistically significant correlation for 

non-human factor accidents, which 

meant that FAID could be validated for 

freight railroads, and, as explained 

above, FRA has determined that it is 

equally applicable to passenger 

railroads. The FAID model was 

validated with scores of 40 and 120, 

corresponding to ‘‘not fatigued’’ and 

‘‘extremely fatigued.’’ FAID scores 

showed a statistically reliable 

relationship (p-value below .05) with 

the risk of a human factors accident but 

did not show such a relationship with 

other accident risk.20

However, in analyzing the FAID data 

for the purpose of calibration, none of 

the confidence intervals demonstrated a 

statistically significant increase in 

cumulative risk. This was true for both 

human factors and non-human factors 

accidents. An alternative procedure, 

using FAST, which was already a 

validated and calibrated model, allowed 

for calibration of FAID. The alternative 

procedure required correlating FAST 

and FAID scores. The calibration of 

FAST is the equivalent of fundamental 

measurement in physics, while the 

calibration of FAID by reference to 

FAST is the equivalent of derived 

measurement, both of which are valid 

measurement methods.21

Correlation of individual FAST and 

FAID scores found a high level of 

variation in the individual FAST scores 

within a FAID bin, so linking fatigue 

scores on an individual level was not 

feasible. An alternative method is to 

calculate confidence intervals for the 

population, or mean, score. Since 

biomathematical models are known to 

be more accurate at predicting 

population behavior rather than 

individual behavior, the confidence 

intervals of the bin means were 

compared. When analyzed at the 

population level, the regression line for 

FAID scores as a function of FAST 

scores, or FAST scores as a function of 

FAID scores, has an r of 0.909. 

The calibration of FAID indicated that 

FAID scores above 80 indicate a severe 

level of fatigue, and that FAID scores 

between 70 and 80 indicate extreme 

fatigue. A fatigue threshold (as with 

FAST, the fatigue level at which there 

is an unacceptable accident risk due to 

fatigue) of 60 was established for FAID 

in its validation report, and an 

effectiveness score greater than or equal 

to 60 would violate that threshold.22

In the NPRM, FRA proposed to use 

the threshold of 60 to trigger the 

requirements to mitigate fatigue in work 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50371 

23Tabak and Raslear, infra note 19. 

24 Id. at 24. 

25The upper 99-percent confidence limit 

represents the highest value of a variable within a 

99-percent confidence interval. The 99-percent 

confidence interval is a range of values with a 0.99 

probability of including the true population value 

of a variable. 

26See Raslear, supra note 11 for information on 

procedures for validating and calibrating a model. 

27http://www.fra.dot.gov/rpd/downloads/ 

TR_Work_Schedules_and_Sleep_Patterns_final.pdf. 

schedules analyzed using FAID. 

However, following publication of the 

NPRM, further schedule analysis 

revealed that some schedules that had 

an acceptable level of risk for fatigue 

when analyzed using FAST, violated the 

proposed FAID threshold when 

analyzed using FAID, including 

schedules, to be discussed in detail 

below, that included work entirely 

between the hours of 4 a.m. and 8 p.m. 

10.6 percent of these schedules violated 

the proposed FAID threshold rather 

than the 2.5 percent expected. 

Schedules wholly within these hours 

are defined as ‘‘Type 1 assignments,’’ 

that are deemed not to violate the 

fatigue threshold, are not required to be 

analyzed, mitigated or submitted to FRA 

for approval, and are subjected to a less 

restrictive consecutive-days limitation. 

Representatives of the Association of 

American Railroads (AAR) and the 

American Public Transportation 

Association (APTA) who actively 

participated in the development of this 

rulemaking, submitted to FRA data 

illustrating this issue, and suggestions 

for addressing it. These documents have 

been added to the docket for this 

rulemaking. 

The calibration of FAID, as indicated 

in its validation report,23 and described 

above, was not successful as a direct 

process using the fatigue accident 

validation database. Instead, an indirect 

process in which values for FAID were 

related to values for FAST was used. 

This process is similar to calibrating a 

measurement instrument by reference to 

a known standard. In this case, FAST is 

the known standard because it was 

directly calibrated using the fatigue 

accident validation database. There is 

inherent variability in both FAST and 

FAID values, so FRA used regression 

analysis, a statistical method, to 

determine the estimated mean values of 

FAID that correspond to mean values of 

FAST. Table 8 in the FAID validation 

report shows the corresponding 

approximate values for FAID and FAST 

using this procedure. The exact 

threshold for FAID, as noted in its 

validation report, is 63.18,24 as 

calculated from the regression equation: 

FAID score = 149 ¥ 1.227 × (FAST 

score). Taking into account the 

variability associated with predicting 

mean FAID scores from mean FAST 

scores, a range of FAID scores that is 

highly likely to include the true mean 

FAID score can be calculated. The upper 

99-percent confidence limit 25 for 

estimating FAID at FAST = 70 is 72.16. 

This means that we can expect the true 

mean FAID score to be as high as 72.16. 

Allowing the FAID threshold for 

fatigue to be as high as 72 reduces the 

percentage of schedules that violate the 

FAID threshold from 10.6 percent to 

2.11 percent in the data presented by 

AAR and APTA. The passenger train 

and engine diary study (Work Schedules 

and Sleep Patterns of Railroad Train and 

Engine Service Employees in Passenger 

Operations. DOT/FRA/ORD–11/05), 

which will be discussed in detail in 

Section III.B below, indicates that none 

of the employees subject to this 

regulation work more than 2.5 percent 

of the time at a FAST score of ≤ 70. 

Therefore, FRA concludes that allowing 

the FAID threshold to be placed at the 

upper 99 percent confidence limit of 72 

is a reasonable solution to this issue. 

FRA expects that the percentage of 

schedules that violate a FAID threshold 

of 72 would be approximately 2.5 

percent, which will allow the railroads 

to focus mitigation efforts on those 

schedules that are at greater risk for 

producing an unacceptable level of 

fatigue and thereby reduce fatiguerelated accidents and injuries. 

FRA believes that the prediction of 

the effectiveness of an employee’s 

performance may be used to improve 

work schedules, to alter to the extent 

possible the timing of safety-critical 

tasks to coincide with periods of 

optimal performance, and to apply 

countermeasures to reduce the fatigue 

risk, and the corresponding risk of 

accidents or other errors associated with 

that fatigue. It is for this reason that FRA 

has concluded that it is appropriate to 

require analysis of employee work 

schedules using a validated and 

calibrated biomathematical model of 

performance and fatigue, as an essential 

component of these hours of service 

regulations. 

As will be discussed in detail below, 

this rule requires railroads to mitigate 

the fatigue resulting from following a 

certain work schedule, and submit the 

schedules and fatigue mitigations to 

FRA for approval. These requirements 

will be triggered when analysis reveals 

that an employee working a given 

schedule will experience 20 percent or 

more of his or her working time during 

the schedule at an effectiveness score 

violating the fatigue threshold under the 

model used for analysis; that is to say, 

at an effectiveness score of 70 or less 

determined by FAST, or at an 

effectiveness score of 72 or greater as 

determined by FAID. The applicable 

effectiveness score could be different if 

a railroad were using another model that 

had been properly validated and 

calibrated. FRA encourages the 

development, validation, and 

calibration of alternative models, and 

their submission to FRA for approval 

under § 228.407(c), by any railroad 

desiring to use an alternative model for 

the analyses required by this rule.26

FRA expects fatigue science to continue 

to develop, and also anticipates the 

implementation of the rule will assist 

the agency in better assessing the role of 

fatigue in accidents that may occur in 

the future. As a result, FRA will 

consider such developments and new 

evidence in its regularly-scheduled 

retrospective review of the rule, and 

will expedite that review of the rule 

should evidence suggest such review is 

appropriate. 

B. Diary Study of Train Employees on 

Commuter and Intercity Passenger 

Railroads 

To further support this rule, FRA 

conducted primary research specifically 

directed to train employees of commuter 

and intercity passenger railroads (Office 

of Management and Budget (OMB) 

Control Number 2130–0588).27 The 

results of the study provided valuable 

evidence of the actual levels of fatigue 

experienced by train employees on 

commuter and intercity passenger 

railroads, because the study allowed 

analysis of the actual periods of time 

that an employee reports having 

worked, slept, or spent in other 

activities during the period analyzed, 

which may be different from the 

assigned schedule and presumed 

periods available for sleep. 

FRA had previously conducted 

similar surveys for signal employees 

(OMB Control Number 2130–0558), 

maintenance of way employees (OMB 

Control Number 2130–0561), 

dispatching service employees (OMB 

Control Number 2130–0570), and train 

employees generally (OMB Control 

Number 2130–0577). The purpose of 

these studies was to characterize, using 

a consistent statistical survey 

methodology, the work schedules and 

sleep patterns of each unique group of 

railroad workers. Because each of these 

studies used a random sample of each 

worker population, they provide 

defensible and definitive data on work/ 

rest cycle parameters and fatigue for the 

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50372 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

28For more information about RSAC activities, 

see http://rsac.fra.dot.gov/. Meetings of the full 

RSAC are also announced by publication in the 

Federal Register. 

respective group. The small number of 

train employees on commuter and 

intercity passenger railroads represented 

in the previous study of train employees 

generally did not allow for meaningful 

conclusions with regard to this 

subpopulation of train employees. As a 

result, the present study, specifically 

focused on this population, was 

necessary. The present study of train 

employees on commuter and intercity 

passenger railroads used the same 

methodology as the previous studies. 

The primary objectives of this study 

were to design and conduct a survey to 

collect work schedule and sleep data 

from train and engine service (T&E) 

employees, and to analyze the data to 

characterize the work/sleep patterns and 

to identify work schedule-related fatigue 

issues. The goal was to characterize 

train employees on commuter and 

intercity passenger railroads as a group, 

not to characterize such employees on a 

specific railroad. 

The research described in this report 

had three phases: preparation; field data 

collection; and data analysis. Since no 

existing source would provide answers 

to the study’s research questions, a 

survey of train employees was the only 

means to obtain the necessary data. The 

preparation phase included securing 

approval from the OMB for the 

proposed data collection. 

Representatives from the Brotherhood of 

Locomotive Engineers and Trainmen 

(BLET) and the United Transportation 

Union (UTU) worked closely with the 

researchers throughout the study. 

The study used two survey 

instruments—a background survey and 

a daily log. Survey participants used the 

background survey to provide 

demographic information, descriptive 

data for their type of work, type of 

position, work schedule, and a selfassessment of overall health. The daily 

log provided the means for survey 

participants to record their daily 

activities in terms of sleep, personal 

time, time spent commuting to and from 

work, work time, limbo time, and 

periods of interim release. Study 

participants also provided selfassessments of the quality of their sleep 

and their level of alertness at the start 

and end of each work period. This study 

used a 14-day data-collection period to 

accommodate those train employees 

who did not work a regular schedule. 

Researchers drew a random sample of 

1275 train employees on commuter and 

intercity passenger railroads. The size of 

the sample from each of the two unions 

was proportional to that organization’s 

representation in the total number of 

eligible participants. Retirees, full-time 

union officials, and anyone currently 

holding a railroad management position 

were not eligible for the study. 

Determination of the sample size 

assumed a 95-percent confidence 

interval on the estimates for mean sleep 

time, an error tolerance of 15 percent, 

and a 33-percent response rate. 

Mailing of the survey materials 

occurred on December 31, 2009. Ten 

days later, every potential survey 

participant received a postcard, signed 

by his or her union president, to 

encourage the employee to participate 

in the survey. Three weeks after 

distribution of the materials, a second 

postcard thanked those who had 

decided to participate and encouraged 

those who had not yet done so to 

participate. 

The overall response rate for the 

survey was 21 percent. Of the 269 

complete responses, 13 could not be 

part of the analysis because either there 

were problems with the respondents’ 

log books, or the respondents were not 

in crafts covered by the survey. (It was 

not possible to identify these 

individuals from the information 

contained in union membership 

databases.) The nonresponse-bias study 

based on age found no difference 

between survey respondents and 

nonrespondents. 

The results of the study support the 

approach that FRA has taken in this 

rule. For instance, the results are 

consistent with the separate analysis 

during the development of this rule of 

schedules provided by commuter and 

intercity passenger railroads, indicating 

that a fairly small percentage of 

employee work time (about 1.8 percent) 

violates the fatigue threshold. The rule 

focuses additional attention and effort 

specifically on those schedules 

presenting this fatigue risk by requiring 

the mitigation of that risk, while 

schedules not at risk for fatigue would 

not be subject to these additional 

requirements. 

In addition, when compared to the 

results of the previous study that 

primarily considered train employees 

on freight railroads, the results of the 

study of train employees on commuter 

and intercity passenger railroads 

support a significantly different 

approach. Train employees on freight 

railroads were found to experience some 

level of fatigue (equivalent to an 

effectiveness score <90 using the FAST 

model) during 73 percent of their work 

time, while train employees on 

commuter and intercity passenger 

railroads experienced this level of 

fatigue during only 14 percent of their 

work time. The substantive limitations 

imposed on train employees on freight 

railroads in the RSIA would largely be 

unnecessary for the commuter and 

intercity passenger railroad industry, as 

well as ineffective to target the specific 

areas where there is a fatigue risk. 

IV. Railroad Safety Advisory 

Committee (RSAC) Process 

A. Overview of the RSAC 

In March 1996, FRA established 

RSAC,28 which provides a forum for 

developing consensus recommendations 

to FRA’s Administrator on rulemakings 

and other safety program issues. The 

Committee includes representation from 

all of the agency’s major stakeholder 

groups, including railroads, labor 

organizations, suppliers, and 

manufacturers, and other interested 

parties. A list of member groups follows: 

• American Association of Private 

Railroad Car Owners (AARPCO); 

• American Association of State 

Highway and Transportation Officials 

(AASHTO); 

• American Chemistry Council; 

• American Petroleum Institute; 

• APTA; 

• American Short Line and Regional 

Railroad Association (ASLRRA); 

• American Train Dispatchers’ 

Association (ATDA); 

• AAR; 

• Association of Railway Museums; 

• Association of State Rail Safety 

Managers (ASRSM); 

• BLET; 

• Brotherhood of Maintenance of Way 

Employees Division (BMWED); 

• Brotherhood of Railroad Signalmen 

(BRS); 

• The Chlorine Institute; 

• FRA; 

• Federal Transit Administration 

(FTA);* 

• Fertilizer Institute; 

• High Speed Ground Transportation 

Association (HSGTA); 

• Institute of Makers of Explosives; 

• International Association of 

Machinists and Aerospace Workers; 

• International Brotherhood of 

Electrical Workers (IBEW); 

• Labor Council for Latin American 

Advancement;* 

• League of Railway Industry 

Women;* 

• National Association of Railroad 

Passengers (NARP); 

• National Association of Railway 

Business Women;* 

• National Conference of Firemen & 

Oilers; 

• National Railroad Construction and 

Maintenance Association (NRC); 

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29The rule text voted on by the full RSAC and 

recommended to FRA is available on the RSAC Web 

site. 

• National Railroad Passenger 

Corporation (Amtrak); 

• National Transportation Safety 

Board (NTSB);* 

• Railway Supply Institute (RSI); 

• Safe Travel America (STA); 

• Secretaria de Comunicaciones y 

Transporte;* 

• Sheet Metal Workers International 

Association (SMWIA); 

• Tourist Railway Association, Inc.; 

• Transport Canada;* 

• Transport Workers Union of 

America (TWU); 

• Transportation Communications 

International Union/BRC (TCIU/BRC); 

• Transportation Security 

Administration (TSA);* and 

• UTU. 

*Indicates associate, non-voting 

membership. 

When appropriate, FRA assigns a task 

to RSAC, and after consideration and 

debate, RSAC may accept or reject the 

task. If the task is accepted, RSAC 

establishes a working group that 

possesses the appropriate expertise and 

representation of interests to develop 

recommendations to FRA for action on 

the task. These recommendations are 

developed by consensus. A working 

group may establish one or more task 

forces to develop facts and options on 

a particular aspect of a given task. The 

individual task force then provides that 

information to the working group for 

consideration. When a working group 

comes to unanimous consensus on 

recommendations for action, the 

package is presented to the full RSAC 

for a vote. If the proposal is accepted by 

a simple majority of RSAC, the proposal 

is formally recommended to FRA. FRA 

then determines what action to take on 

the recommendation. Because FRA staff 

plays an active role at the working 

group level in discussing the issues and 

options and in drafting the language of 

the consensus proposal, FRA is often 

favorably inclined toward RSAC 

recommendations. However, FRA is in 

no way bound to follow the 

recommendation, and the agency 

exercises its independent judgment on 

whether the recommended rule achieves 

the agency’s regulatory goal, is soundly 

supported, and is in accordance with 

policy and legal requirements. Often, 

FRA varies in some respects from the 

RSAC recommendation in developing 

the actual regulatory proposal or final 

rule. Any such variations would be 

noted and explained in the rulemaking 

document issued by FRA. However, to 

the maximum extent practicable, FRA 

utilizes RSAC to provide consensus 

recommendations with respect to both 

proposed and final agency action. If 

RSAC is unable to reach consensus on 

a recommendation for action, the task is 

withdrawn and FRA determines the best 

course of action. If the working group or 

RSAC is unable to reach consensus on 

a recommendation for action, FRA 

moves ahead to resolve the issue 

through traditional rulemaking 

proceedings. 

B. RSAC Proceedings in This 

Rulemaking 

FRA proposed Task No. 08–06 to the 

RSAC on April 2, 2009. The RSAC 

accepted the task, and formed the 

Passenger Hours of Service Working 

Group (Working Group) for the purpose 

of developing implementing regulations 

for the hours of service of train 

employees of commuter and intercity 

passenger railroads under the RSIA. 

The Working Group is comprised of 

members from the following 

organizations: 

• AASHTO; 

• Amtrak; 

• APTA; 

• ASLRRA; 

• ATDA; 

• AAR, including members from 

BNSF Railway Company (BNSF), 

Canadian National Railway Company 

(CN), Canadian Pacific Railway, Limited 

(CP), CSX Transportation, Inc. (CSXT), 

Iowa Interstate Railroad, Ltd. (IAIS), 

Kansas City Southern (KCS) railroads, 

Metra Electric District, Norfolk Southern 

Corporation (NS) railroads, and Union 

Pacific Railroad Company (UP); 

• BLET; 

• BRS; 

• FRA; 

• FTA; 

• IBEW; 

• Long Island Rail Road (LIRR); 

• Metro-North Commuter Railroad 

Company (Metro-North); 

• National Association of Railroad 

Passengers (NARP); 

• National Railroad Construction and 

Maintenance Association; 

• National Transportation Safety 

Board (NTSB); 

• Southeastern Pennsylvania 

Transportation Authority (SEPTA); 

• Tourist Railway Association; and 

• UTU. 

The Working Group completed its 

work after six meetings and several 

conference calls. The first meeting of the 

Working Group took place on June 24, 

2009, in Washington, DC. At that 

meeting the group heard several 

presentations on fatigue science, 

including a report on the diary study 

that was to be conducted as described 

above. The group discussed the general 

approach for the rulemaking, and it was 

agreed that analysis of the railroads’ 

work schedules would support the 

rulemaking. Subsequent meetings were 

held on February 3, 2010; March 4, 

2010; April 6, 2010; May 20, 2010; and 

June 29, 2010. In addition, a Task Force 

was formed that met on January 14–15, 

2010, March 30–31, 2010, and April 28– 

29, 2010. 

At the conclusion of the June 29, 2010 

meeting, the Working Group voted to 

approve a draft of the proposed rule 

text, with the exception of two sections, 

to which the group had suggested 

numerous edits. It was agreed that FRA 

would address the remaining issues in 

those sections and circulate a revised 

draft, on which the group would vote 

electronically. After the revised draft 

was produced, the Task Force had 

several conference calls to discuss the 

revised provisions, and FRA also 

participated in several calls with task 

force members. Ultimately, on 

September 22, 2010, the Working Group 

voted unanimously to agree to the rule 

text presented in the proposed rule. The 

group’s recommendation was presented 

to the full RSAC on September 23, 2010. 

The full RSAC agreed to vote 

electronically on the proposed rule text 

recommended by the Working Group, 

and ultimately accepted its 

recommendation. Although only a 

majority was required, the vote was 

unanimous.29

Following the vote of the Working 

Group and the full RSAC, FRA 

recognized the need to make two 

changes to the recordkeeping and 

reporting requirements in 49 CFR 

228.11 and 228.19, to accommodate a 

new substantive limitation contained in 

the proposed rule as approved by the 

RSAC. While the RSAC voted in favor 

of the proposed substantive 

requirements in question, and all other 

elements of the proposed rule, the 

corresponding amendments to the 

recordkeeping and reporting provisions 

were not presented to them. After 

publication of the proposed rule on 

March 22, 2011, and consideration of 

public comments, FRA has made 

additional changes, as discussed in 

Section V of the preamble, below. 

Earlier, at the February 3, 2010, 

meeting, FRA presented an initial draft 

of the rule text, identifying the basic 

concepts and direction of the 

rulemaking. Based on discussions at 

that meeting, a more complete draft was 

presented at the March 4, 2010 meeting, 

and the text was refined and 

supplemented at subsequent meetings. 

In addition, during the course of the 

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50374 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

Working Group and Task Force 

meetings, a number of significant issues 

were discussed that resulted in changes 

in the rule text or common 

understanding of the intent of specific 

provisions that should be explained. 

Some such issues will be explained in 

this section, while other subjects of 

discussion by the Working Group and 

the Task Force will be discussed in the 

Section-by-Section Analysis at Section 

VI of the preamble. 

In addition, as discussed below in the 

Regulatory Impact and Notices section 

of the preamble, Section VII, FRA has 

considered the costs and benefits of this 

rule. Implementation costs would be 

associated with analyzing work 

schedules, training, and rest facilities. 

However, relative to the ‘‘no regulatory 

action’’ alternative in which passenger 

railroad train employees would become 

subject to the new HSL in effect for 

freight train employees, the rule would 

result in a cost savings of $57.7 million 

(discounted at 7 percent) and $65.2 

million (discounted at 3 percent) over a 

20-year period. The quantified accident 

reduction benefits achieved under both 

the ‘‘no regulatory action’’ baseline and 

the rule total $1.2 million 

(undiscounted), $0.6 million (PV, 7 

percent), and $0.9 million (PV, 3 

percent). FRA does not expect that the 

overall number of casualties and 

property damages prevented will differ 

under either scenario. Implementation 

of the final rule will yield these benefits 

at lower cost. While the rule has lower 

monetized benefits than costs, when 

compared to the current HSL, FRA 

believes that there are unquantified 

benefits that could close the gap. 

C. Significant Task Force Contributions 

to the Development of the NPRM 

As was noted above, the Working 

Group created the Task Force, 

comprised of representatives from 

BLET, UTU, APTA, AAR, and FRA. The 

Task Force met between Working Group 

meetings to provide additional input 

and advice to the Working Group on the 

approach to the rule, specific concerns 

as to the rule text, and implementation 

of the regulatory requirements. 

Although the Task Force was extremely 

helpful throughout the development of 

the proposed rule in offering 

suggestions as to the rule text, its 

primary contributions were in the areas 

of schedule analysis and the creation of 

a fatigue mitigation tool box. 

1. Schedule Analysis 

The diary study discussed in Section 

III.B of the preamble provided valuable 

evidence of the actual levels of fatigue 

experienced by train employees on 

commuter and intercity passenger 

railroads. However, since many of these 

employees work scheduled assignments, 

it was also valuable to evaluate the 

schedules themselves, to get a sense of 

the parameters of those assignments that 

would result in fatigue violating the 

threshold, which informed some of the 

provisions of this rule. The Task Force 

assisted the Working Group by 

evaluating the schedules and presenting 

their results to the Working Group. 

APTA hired a consultant to analyze 

the schedules provided by the railroads 

that were worked by their train 

employees. The railroads provided all of 

their schedules for the month of July 

2009. The schedules were analyzed 

using the FAST model, including 

conservative assumptions about the 

sleep that would be obtained by an 

employee working that schedule. For 

example, the analyses assumed that 

employees did not sleep during periods 

of interim release. 

The analyses that the Task Force 

presented to the Working Group 

demonstrated that most schedules did 

not result in an employee’s violating the 

fatigue threshold. This was true even for 

schedules in which the employee 

reported for duty at 4 a.m. and was 

relieved from duty at 8 p.m., for a 16- 

hour duty tour that included a total of 

12 hours on duty and a 4-hour interim 

release. Most of the problematic 

schedules identified through the 

analysis presented by the Task Force 

involved duty tours in which some time 

was spent working during late night 

hours. These analyses formed the 

parameters for FRA’s definitions of 

‘‘Type 1 assignment’’ and ‘‘Type 2 

assignment’’ for which different 

requirements would apply in this rule. 

2. Fatigue Mitigation Tool Box 

Because a major aspect of this rule 

requires mitigation of the fatigue risks 

identified in those schedules that 

resulted in an employee’s violating the 

applicable fatigue threshold, and 

experiencing a level of fatigue at which 

safety may be compromised, the Task 

Force assisted the Working Group by 

developing a fatigue mitigation tool box, 

a document that would illustrate the 

variety of ways in which a railroad 

might seek to address the fatigue risks 

in its schedules. (A copy of this 

document has been placed in the docket 

for this rulemaking.) The tool box itself 

is not intended to become a part of the 

regulatory text. Instead, it is intended to 

provide the variety of methods from 

which a railroad may propose, in its 

plans submitted to FRA for approval, to 

mitigate identified fatigue risks in its 

work schedules, to bring them into 

compliance with the regulation. It is 

expected that not every tool will be 

appropriate for each railroad, or for 

individual locations or schedules on a 

given railroad, and that the railroads, in 

consultation with their labor 

organizations, will choose the 

mitigation tools most appropriate to 

each circumstance, subject to FRA 

review and approval. In addition, the 

tool box is expected to be a living 

document, as the available fatigue 

mitigation tools will change over time as 

fatigue science continues to develop, or 

as railroad operations change, either 

generally or as related to specific 

properties or schedules. The tool box as 

a whole will not be approved by FRA, 

nor will it be maintained by FRA as it 

evolves. FRA will evaluate the 

appropriateness of specific fatigue 

mitigation tools as they are submitted to 

FRA as part of a railroad’s plan to 

mitigate fatigue risks associated with 

particular schedules. 

This section will describe a 

representative sample of the variety of 

the tools included in the tool box 

developed by the Task Force, which 

may be applied to mitigate fatigue risk. 

This discussion is not intended to 

provide an all-inclusive list of the 

possible fatigue mitigation tools. A 

railroad is free to use any fatigue 

mitigation tool that it believes is 

effective in reducing the fatigue risk 

found in its schedules, subject to FRA’s 

review and approval when the tools are 

applied to mitigate fatigue in a 

particular work schedule. 

Perhaps the easiest mitigation tool to 

understand that was identified by the 

Task Force is the adoption and 

implementation of a napping policy, 

and the provision of facilities for 

employees to take a nap during interim 

releases or other periods between 

assignments that may be available for 

rest during a duty tour. The addition of 

a period of sleep to the employee’s 

schedule would have a clear impact on 

the employee’s level of fatigue when 

working that schedule, and the level of 

fatigue that the employee would be 

expected to experience throughout the 

remainder of the duty tour after a nap, 

which might reduce the risk of fatigue 

sufficiently to bring the schedule and 

the employee’s effectiveness score 

within the fatigue threshold. 

To use this tool to mitigate fatigue, a 

railroad would be required to identify, 

in consultation with its labor 

organizations or employees, the 

facilities that would be available for the 

purpose of rest during the duty tour, 

that are appropriate to the schedule and 

location at issue. This would not always 

require a bunk or a quiet room, though 

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this might be available at some locations 

and in certain situations. However, the 

period available for rest would have to 

be at least 90 minutes for this mitigation 

tool to be applied, as this amount of 

time would provide sufficient 

opportunity for an employee to get to 

his or her napping location and fall 

asleep, having enough time for a nap of 

sufficient duration to be beneficial to 

the employee’s level of fatigue, and then 

also allowing the employee time to 

become fully awake and ready to 

resume the duty tour. 

Another mitigation tool, applicable to 

railroads and locations using employees 

from an extra board, would be the use 

of multiple extra boards that are 

temporally separated, so that employees 

would be scheduled to work morning 

assignments or evening assignments, 

rather than being subject to calls for 

assignments at all times of day. For 

example, employees assigned to a 

morning extra board might be subject to 

being called only for assignments 

requiring them to report for duty 

between 4 a.m. and 10 a.m., while 

employees assigned to an evening extra 

board might be subject to being called 

only for assignments requiring them to 

report for duty between 4 p.m. and 10 

p.m. Employees on either extra board 

would know that they would not be 

called for an assignment requiring them 

to report for duty outside the times 

established for the employee’s particular 

assigned extra board. This would lead to 

greater predictability of schedule and 

ability to plan rest, while also avoiding 

(1) circadian shifts between duty tours 

resulting from changes in the time of 

day that the employee is awake and (2) 

difficulties in adjusting to changing 

periods available for sleep. 

Call windows (i.e., limited periods of 

time during which an employee is 

subject to receiving calls from the 

railroad to report for duty) are another 

mitigation tool in the tool box, which 

may be combined with a temporally 

separated extra board, but could also be 

used even if the extra board were not so 

divided. For example, a railroad might 

decide to establish a call window that 

would reduce or eliminate calls to the 

employee during the time from 11 p.m. 

and 5 a.m. Open assignments that 

would need to be filled from an extra 

board of employees who would 

otherwise be called for the assignment 

during that time would instead be filled 

before 11 p.m., which would give the 

employees greater predictability and 

ability to plan rest, as well as allowing 

them more rest during the late night 

hours. 

Another possible tool would be to 

allow employees a period of 

uninterrupted rest, similar to the 

requirement that applies to train 

employees on freight railroads, which is 

found at 49 U.S.C. 21103(e). The 

uninterrupted rest could be applied to 

an employee’s statutory off-duty period 

before or after the employee is to work 

a schedule violating the fatigue 

threshold. It could also be applied to 

periods of interim release within the 

duty tour. 

Education could also be part of the 

tools that a railroad will use to mitigate 

fatigue in certain circumstances, and is 

also a key component of the other 

mitigation tools. The mitigation tools 

will not be beneficial if the employees 

working the schedules to which they are 

applied do not understand the available 

tools, and how to properly use them to 

reduce their fatigue and increase their 

effectiveness. If employees do not take 

advantage of the mitigation tools, and 

use them properly to increase their rest, 

even those mitigation tools most likely 

to have the greatest and most tangible 

impact on reducing fatigue will not have 

the desired effect. FRA has also 

recognized the importance of education 

as a component of fatigue management 

by specifically requiring in this rule that 

employees and supervisors receive 

training on fatigue and strategies for 

reducing it. 

Finally, one additional mitigation tool 

was discussed by the Task Force that 

was extremely well-received and 

supported by the Working Group, 

including FRA representatives. That 

suggestion was to develop software that 

would link the railroad’s crew 

management resources to both the 

employee’s electronic hours of service 

records (created and maintained in 

compliance with subpart D of 49 CFR 

part 228), and a valid biomathematical 

model of performance and fatigue. 

The idea is that the fatigue model 

would be able to look back at previous 

duty tours and rest periods to determine 

which schedules might have sufficiently 

rested employees available to report for 

the assignment, not only under the 

limitations on time on duty and 

consecutive days and the requirement 

for minimum time off duty established 

by this rule, but also in terms of the 

fatigue threshold. The model would 

have the benefit of the data from the 

previous duty tours to take into account 

in determining whether these schedules 

would violate the fatigue threshold 

during the duty tour, as well as at the 

report-for-duty time. If the analysis 

revealed that the employees on these 

schedules would be too fatigued to 

report for the assignment, or would 

violate the fatigue threshold during the 

duty tour, crew management would be 

alerted that these employees could be at 

risk if they work this particular 

assignment. Employees would have to 

affirm their fitness for duty if asked to 

work such assignments and be 

empowered to reject the assignments, 

because the model is being used to 

predict group (average) fatigue from 

work schedules that could be worked by 

several individuals. Any individual 

could be more or less fatigued than the 

average or group. Employees have a 

responsibility to indicate if they feel fit 

to work or not, regardless of the 

effectiveness score that a model would 

predict. The employer’s responsibility is 

to arrange schedules that minimize 

fatigue. 

While all of the parties to the Working 

Group agreed that this idea showed 

great promise as an effective fatigue 

mitigation tool for the future, it is not 

something that the railroads will be able 

to apply immediately, for technological 

reasons. Most railroads subject to this 

rule do not yet create and maintain their 

hours of service records electronically 

in compliance with subpart D, although 

there is interest among those railroads 

in developing hours of service 

electronic recordkeeping programs. In 

addition, software would need to be 

developed that would allow the fatigue 

model to retrieve data from the 

electronic recordkeeping system, 

without any possibility of altering or 

otherwise affecting the integrity of the 

records maintained in the system. 

Likewise, software would be needed to 

connect the fatigue model to the crew 

management system, so that it could 

appropriately alert that system and 

prevent an employee being placed on an 

assignment for which he or she would 

be too fatigued. If the necessary systems 

and software can be developed, 

compliance with the fatigue threshold 

would become much easier, and there 

would be much less excessive fatigue to 

be mitigated. 

D. Areas of Working Group and Task 

Force Concern During Development of 

the NPRM 

During the course of the Task Force 

and Working Group meetings, a few 

issues resulted in significant discussion. 

Some issues were related to specific 

provisions in the rule text, while other 

concerns were about the broader 

implications of the rule, as well as its 

effects on aspects of railroad operations 

or existing collective bargaining 

agreements. 

1. Proposed Definitions of ‘‘Type 1 

Assignment’’ and ‘‘Type 2 Assignment’’ 

Some members of the Working Group 

suggested that there should be a way to 

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50376 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

30Folkard, S. and Akerstedt, T., Trends in the 

Risk of Accidents and Injuries and Their 

Implications for Models of Fatigue and 

Performance, Aviat. Space Environ. Med. (2004). 

31 Gertler, J., and DiFiore, A. (2009). Work 

schedules and sleep patterns of railroad train and 

engine service workers (Report No. DOT/FRA/ 

ORD–09/22). Washington, DC: U.S. Department of 

Transportation. 

32Balkin, T., Thorne, D., Sing, H. (2000). Effects 

of sleep schedules on commercial driver 

performance (Report No. DOT–MC–00–133). 

Washington, DC: U.S. Department of 

Transportation. 

determine a template for schedules that 

would be deemed not to violate the 

fatigue threshold. As was discussed 

above, the Task Force presented 

schedule analyses showing that a 

schedule in which an employee began 

work at 4 a.m. and was relieved at 

8 p.m., resulting in a duty tour with a 

total time on duty of 12 hours, with a 

4-hour period of interim release, did not 

violate the fatigue threshold. 

Based on this analysis, FRA initially 

defined any assignment beginning no 

earlier than 4 a.m. and ending no later 

than 8 p.m., assuming at least a 4-hour 

period of interim release, as a Type 1 

assignment, which would be deemed 

not to violate the fatigue threshold. 

Assignments that included any period 

of time outside the defined time 

parameters of a Type 1 assignment 

would be considered a Type 2 

assignment, which would be subject to 

more stringent requirements, including 

analysis of the schedule using a 

scientifically valid biomathematical 

model, and a more restrictive limit on 

the number of consecutive days on 

which an employee working such an 

assignment would be allowed to initiate 

an on-duty period. 

However, some Task Force members 

pointed out that there could be 

assignments that include time outside 

the time parameters of a Type 1 

assignment that would not violate the 

fatigue threshold. In some cases these 

schedules would only have a small 

amount of their overall time outside of 

the Type 1 parameters. For example, an 

assignment might begin at 4:30 a.m. and 

end at 8:30 p.m. In addition, some 

assignments might not violate the 

threshold because of the short duration 

of the duty tour involved, such as, 

perhaps, an assignment from 5 p.m. 

until 9:30 p.m. 

Based on these considerations, FRA 

amended the definition of ‘‘Type 2 

assignment’’ to indicate that if an 

assignment does not include any time 

between midnight and 4 a.m., then the 

particular time of day or night that an 

assignment is to be performed is not the 

only determinant of whether an 

assignment is considered a Type 2 

assignment. In particular, a Type 2 

assignment that is analyzed using a 

scientifically valid biomathematical 

model and is determined not to violate 

the fatigue threshold, and that includes 

no period of time between midnight and 

4 a.m., would be considered a Type 1 

assignment. 

FRA also added language to the 

definitions of both ‘‘Type 1 assignment’’ 

and ‘‘Type 2 assignment’’ to require 

compliance with the substantive 

limitations contained in § 228.405. FRA 

expects that railroads would not be 

operating schedules that violate these 

limitations; most schedules have long 

been in effect for the railroads subject to 

this rule, and this was an implicit 

assumption of the Working Group. For 

example, a schedule that requires an 

employee to report for duty at 4 a.m. 

and to be released from duty at 8 p.m. 

would have to include a period of 

interim release of at least 4 hours that 

is not time on duty, as defined by 

§ 228.405(b). However, this language 

was added to the definitions to make 

clear that the schedule analysis and 

fatigue mitigation requirements of this 

rule supplement, but do not replace, the 

specific limitations, and any schedule 

that violated other provisions of this 

rule (for example, exceeded 12 hours 

total time on duty, or did not allow for 

at least 8 hours off duty, or 10 hours off 

duty after 12 consecutive hours) could 

not be deemed ‘‘approved’’ by FRA and 

subject to the less stringent 

requirements applicable to Type 1 

assignments. 

2. Proposed Limitations on Number of 

Consecutive Days 

In the Working Group, both the 

railroads and labor contended that 

FAST and/or FAID analysis would 

suggest that an employee could work 

beyond the limitations in what became 

the proposed rule and this final rule 

without adversely affecting safety. One 

potential requirement about which this 

was specifically argued was the 

limitation on the number of consecutive 

days or days within a prescribed period 

that an employee would be permitted to 

initiate an on-duty period before the 

employee was required to have a 24- 

hour or two-consecutive calendar days 

off-duty period at the employee’s home 

terminal under this regulation, which 

would differ depending on the time of 

day that the employee works. See 

§ 228.405(a)(3) and (a)(4) of the 

proposed rule, and § 228.405(a)(3) of 

this final rule. In the Working Group, 

the railroads and labor unions presented 

fatigue analyses for theoretical 

schedules that would have an employee 

initiating on-duty periods for numbers 

of days that exceeded those permitted 

by the contemplated rule. The railroads 

and labor also indicated that the current 

agreements or practices on their 

properties allow for such schedules. 

Research shows that work on 

successive days without a full day off 

exponentially increases the accident 

risk as the number of days worked 

increases. For instance, after working 

four consecutive day shifts, there is a 

17-percent increase in risk, and after 

working four consecutive night shifts, 

there is a 36-percent increase in risk.30

FRA research on train crew work 

schedules and sleep patterns 31 has 

shown that train crews average a 10.25- 

hour day (work period, limbo time, and 

commute time) and get 6.88 hours of 

primary sleep per day. A follow-up 

study on passenger train crews found 

that workers on split shift assignments 

average a 13.75-hour day (work period, 

interim release, and commute time) and 

get 6.18 hours of primary sleep. 

Laboratory studies of restricted sleep 32

show a 5-percent decrease in 

performance after 7 days with 7 hours 

of sleep per day and a 15-percent 

decrease after 7 days with 5 hours of 

sleep per day. These studies are 

consistent with the previously noted 

increase in accident risk with the 

number of days worked. 

Therefore, FRA reasoned that, even if 

an employee were working a schedule 

for which the employee’s effectiveness 

score did not violate the fatigue 

threshold, even when the schedule was 

worked for more consecutive days or 

days in a 14-day period than the 

regulation would permit, at some point 

the employee would have to use some 

of the time between duty tours (time 

that a model would otherwise view as 

available for rest) to attend to other 

personal activities. This time spent in 

activities other than rest would decrease 

the time actually available to the 

employee for rest, and, therefore, the 

employee’s actual effectiveness score. 

This circumstance would be particularly 

problematic for schedules featuring long 

duty tours, such as the maximum 12 

hours on duty, including an interim 

release, for a total time of 16 hours in 

the duty tour, followed by the minimum 

of 8 consecutive hours off duty before 

reporting for the next duty tour. From 

this perspective, FRA believes that, 

although the available research does not 

identify the exact number of 

consecutive days or days in a prescribed 

period allowed under this rule as the 

maximum that can be safely worked, the 

limitations that FRA has established are 

reasonable. 

FRA remains aware that the 

requirements of the final rule may have 

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33See Raslear, supra note 11. 

34See Hursh, et al., supra note 13, and Tabak and 

Raslear, supra note 19. 

an impact on the collective bargaining 

agreements affecting the railroads and 

employees covered by subpart F. For 

example, there may be some agreements 

that would allow employees to work a 

greater number of consecutive days or 

days in a 14-day period than would be 

allowed by this regulation. FRA also 

remains mindful that the law provides 

an option that enables the regulated 

community to seek waivers to 

implement pilot projects in accordance 

with the requirements of 49 U.S.C. 

21108(a) and encourages members of the 

regulated community to consider this 

option. Pursuant to 49 CFR part 211, 

subpart C, the Railroad Safety Board 

will consider whether or not granting 

such waivers would be in the public 

interest and consistent with railroad 

safety. Where warranted, and upon the 

necessary showing, FRA may grant 

waivers of the requirements of this rule, 

including requirements concerning the 

maximum number of consecutive days 

or days in a 14-day period that an 

employee may work, to allow for the 

establishment of pilot projects to 

demonstrate the possible benefits of 

implementing alternatives to the strict 

application of the requirements 

contained in this rule. 

3. Precision of Fatigue Models and 

Threshold 

There was considerable discussion in 

the Working Group of the precision 

embodied in the FAST model or the 

FAID model, and the appropriateness of 

requiring compliance with a specific 

fatigue threshold. The railroads argued 

that models such as the FAST model 

and the FAID model are not 

scientifically precise enough to warrant 

the adoption of a specific threshold, and 

that different types of operations could 

safely function at different levels of 

fatigue. For example, the railroads 

contended that yard switching activities 

could safely operate at a different level 

of fatigue than passenger operations or 

through-freight activities. 

The railroads conceded, however, that 

the regulatory structure contained in the 

proposed regulation, and in provisions 

of the final rule that mirror the proposal 

would not be problematic for passenger 

operations. The railroads’ concern was 

that, in the future, someone might argue 

for adoption of the same regulatory 

structure for freight operations and, 

were that to occur, schedules might be 

prohibited from use that should, in fact, 

be acceptable from a fatigue perspective. 

In FRA’s view, a specific threshold is 

desirable because it provides regulatory 

certainty as to what railroads must do to 

be considered in compliance with the 

regulations. FRA has based its 

regulation on the best available fatigue 

science, including the FAST model and 

the FAID model, which are the only 

currently validated models, and the 

appropriate fatigue thresholds for the 

purpose of compliance with this 

regulation. As was discussed in Section 

III above, FRA has adjusted the FAID 

threshold from the level stated in the 

preamble of the proposed rule, to 

achieve a closer correlation between the 

FAST and FAID thresholds for the 

purposes of the analyses required by 

this regulation. FRA has also left open 

the possibility that other models may be 

validated, and other thresholds 

established in the future, which could 

be used for the purpose of compliance 

with this regulation.33 In addition, as 

new scientific evidence comes to light, 

FRA will review this rule as discussed 

in Section III, above. 

As FRA has determined that use of 

these models and their established 

thresholds adequately protects safety, 

that this rule does not present 

significant implementation problems for 

passenger service, and that a specific 

threshold provides the desired 

regulatory certainty, FRA believes that it 

is appropriate to include in the 

regulations a requirement for a specific 

threshold. FRA based this belief on the 

understanding that the regulatory 

requirements will be satisfied based on 

a ‘‘70/20 threshold’’ using the FAST 

model (meaning that the fatigue 

threshold is violated if an employee’s 

effectiveness score is less than 70 for 20 

percent or more of the employee’s time 

on duty,) or a ‘‘72/20 threshold’’ using 

FAID (meaning that the fatigue 

threshold is violated if an employee’s 

effectiveness score is more than 72 for 

20 percent or more of the employee’s 

time on duty.)34

In establishing a substantive hours of 

service regulation with a specific 

threshold for train employees in 

passenger service, FRA is not drawing 

any conclusion about the suitability of 

such a regulatory scheme for freight 

operations. There may be substantial 

differences between freight railroad 

operating and crew schedules and 

passenger operating and crew 

schedules. Passenger railroads have 

analyzed the results of applying the 

regulations to their work schedules and 

concluded that this regulation is 

feasible. Freight railroads have not 

undertaken such analysis, nor would 

they be required to under the 

regulations, except to the extent that 

employees of freight railroads may work 

in passenger service. 

4. Freight Railroad Employees Acting as 

Pilots for Commuter or Intercity 

Passenger Trains 

The Working Group also discussed 

the application of requirements of 

proposed subpart F, which have now 

been adopted, to train employees of 

freight railroads who occasionally 

provide pilot service to a commuter 

railroad or intercity passenger railroad. 

FRA’s locomotive engineer certification 

regulations require a pilot to assist an 

engineer who may not be sufficiently 

familiar with the territory over which he 

or she is called to operate. See 49 CFR 

240.231(b). The railroads indicated that 

a request for a pilot may come without 

advance notice, so that it would be 

difficult to comply with the substantive 

hours of service limitations and 

recordkeeping requirements of this 

regulation, and even more difficult to 

adhere to the schedule analysis 

requirements, for an employee who did 

not otherwise regularly engage in 

commuter or intercity rail passenger 

transportation. 

The Working Group also cited the 

safety benefits of having a pilot 

available on a route when necessary, 

and the potential risk if commuter or 

intercity passenger railroads were to 

become less likely to request a pilot, or 

freight railroads less likely to be able to 

make a pilot available when requested, 

because of concerns about the 

requirements of this regulation, which 

has been adopted. FRA acknowledges 

these benefits. Therefore, although a 

pilot is performing covered service 

under the HSL on the assignment on 

which the pilot service is provided, FRA 

will not consider a train employee 

employed by a freight railroad who 

serves as a pilot on a train operated by 

a commuter railroad or intercity 

passenger railroad to be a train 

employee who is engaged in commuter 

or intercity rail passenger 

transportation. 

V. Response to Public Comments on the 

NPRM 

FRA received 10 sets of comments on 

the proposed rule. Comments were 

received from the National Institute for 

Occupational Safety and Health 

(NIOSH); the American Academy of 

Sleep Medicine (AASM); Port Authority 

Trans-Hudson (PATH); Metropolitan 

Transportation Authority (MTA); 

SEPTA; Strasburg Rail Road Company 

(Strasburg); Transportation Trades 

Department (TTD), AFL–CIO (American 

Federation of Labor and Congress of 

Industrial Organizations); BLET and 

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35OMB Circular A–4 is available at: http:// 

www.whitehouse.gov/sites/default/files/omb/assets/ 

omb/circulars/a004/a-4.pdf. 

UTU, which filed joint comments; AAR 

and APTA. Issues raised in the 

comments will be addressed in this 

section. Some issues arising out of the 

comments were also discussed in 

Section III, Scientific Background, and 

some will be further discussed in 

Section VI, Section-by-Section Analysis, 

below. 

Comments Related to the FAST and 

FAID Fatigue Models 

AAR and APTA indicate in their 

comments that their analysis shows that 

passenger train employees’ work 

schedules that are acceptable when 

analyzed using FAST with a proposed 

fatigue threshold of 70, violate a 

proposed FAID fatigue threshold of 60. 

Consequently, MTA, SEPTA, AAR and 

APTA, each recommend using a FAID 

threshold of 90, rather than the 

threshold of 60 proposed in the NPRM. 

AAR and APTA each attach to their 

comments, an analysis performed by the 

same consultant who performed work 

schedule analysis for APTA during the 

development of the proposed rule, in 

support of their request. MTA, SEPTA, 

AAR and APTA also contend that FRA 

agreed with a threshold of 90 for FAID 

during the Working Group, prior to 

FAID’s validation. FRA disagrees both 

with a FAID threshold of 90 and with 

the analysis submitted in support of it. 

FRA did not agree during the Working 

Group process that 90 was the 

appropriate threshold for FAID, and 

indeed recalls little, if any, discussion of 

a FAID threshold, as FAID had not been 

validated or calibrated at that time. It is 

possible that the railroads internally 

discussed a threshold of 90, as some 

railroads had been using FAID for the 

purposes of their own analysis even 

before the commencement of this 

rulemaking. 

The analysis attached to the AAR and 

APTA comments looked at 101 work 

schedules from ‘‘some of the largest 

railroads’’ involved in passenger 

service. It is not clear why that number 

of schedules was chosen, nor why the 

specific schedules were chosen for 

analysis. This suggests that the 101 

work schedules are a convenience 

sample, rather than a random sample of 

work schedules, which means that these 

schedules may not be representative of 

the rail passenger service industry. In 

addition, the analysis looked at work 

schedules alone, rather than both work 

schedules and on-duty accidents in 

which those working the schedules 

were involved, as had the FAST and 

FAID validation studies. The threshold 

that FRA is seeking is the point at which 

the risk of a human factors accident 

involving the person working the 

schedule increases. That is the point, for 

the purpose of this regulation, at which 

‘‘safety may be compromised’’ and the 

rule requires action to be taken to 

mitigate fatigue. See § 228.407(a). 

Looking at work schedule data only, the 

analysis provided by AAR and APTA 

has not identified that point. The 

analysis that they provided uses 

statistics, rather than fatigue science, to 

equate a FAST score of 70 with a FAID 

score of 90, based on where the 

effectiveness scores produced in the 

analyzed schedules were clustered. In 

validating and calibrating FAID, FRA 

used bins to analyze the data in light of 

the variation among FAID scores. 

Biomathematical models such as FAID 

are more accurate when used to predict 

population behavior rather than 

individual behavior, and the goal is 

establishing a fatigue threshold rather 

than establishing links between all 

FAST scores and FAID scores at an 

individual level. Accordingly, FRA does 

not believe that the statistical 

comparison of individual scores is an 

appropriate basis for establishing a 

FAID threshold for the purposes of this 

rulemaking. 

FRA recognizes the concern with 

schedules that are acceptable using one 

model violating the threshold using 

another. In Section III, Scientific 

Background, FRA explained its basis for 

modifying the FAID threshold, not to 

90, as urged by the railroads, but to 72. 

This change is achieved by basing the 

FAID threshold on the upper limit of the 

99-percent confidence interval rather 

than the mean. A 99-percent confidence 

interval for a FAID threshold of 72 

means that there is only a one-percent 

chance of a false positive (i.e., a 

schedule that will violate the FAID 

threshold of 72 while not actually 

posing a risk for the level of fatigue 

indicated by the threshold). A 

confidence interval for the FAID 

threshold is appropriate, since it is 

calibrated in relation to FAST. 

Finally, APTA suggests that FRA 

commit to further analysis, including 

analysis specifically of passenger data, 

which could form the basis for 

establishing a FAID threshold other than 

90. As noted above, FRA does not 

believe that 90 is a scientifically valid 

fatigue threshold for FAID. In terms of 

APTA’s recommendation that FRA agree 

to do further analysis, FRA is certainly 

willing to acknowledge that the area of 

fatigue science is still developing and 

that future developments or analyses 

may make it appropriate to revisit the 

models, their thresholds, or other 

aspects of this rulemaking, as discussed 

in Section III. 

Comments Related to Costs of 

Compliance With the Proposed Rule 

NIOSH questions whether the training 

costs included in the NPRM included 

costs to train staff on the use of the 

models. In the proposed rule, the cost of 

training staff to use the models was 

included in the cost of the 

biomathematical model, which also 

includes programming (for product 

enhancement) and technical support, 

and remains included in the model cost 

of the final rule. For purposes of 

clarification, FRA is presenting training 

related to the models separately. 

APTA indicates that the licensing cost 

for FAST is approximately $500,000 for 

a single railroad, which is far in excess 

of the cost estimated by FRA at the 

NPRM stage, and that the licensing cost 

for FAID is about five percent of the cost 

of FAST, or $25,000. FRA clarifies that 

its cost estimate was used for conduct 

of the regulatory analysis and as such 

includes only the cost to ‘‘society,’’ 

which does not include distributional 

effects that may arise through transfer 

payments including the revenue 

collected through a fee, surcharge in 

excess of the cost of services provided. 

‘‘Transfer payments are monetary 

payments from one group to another 

that do not affect total resources 

available to society.’’ OMB Circular A– 

4, p. 38.35 Thus, the FRA cost estimate 

included some programming costs for 

the development of certain 

enhancements tailored to the passenger 

rail industry that included the license 

cost, training on use of the model, and 

system support. FRA did not include 

costs associated with the original model 

development or economic rent from the 

sale of licenses to passenger railroads. 

Administrative costs associated with 

using the model to analyze assignments 

for purposes of complying with this rule 

are included in the FRA cost estimate 

separately. The development costs of 

the models themselves are considered 

‘‘sunk costs’’ incurred prior to the 

rulemaking and not attributable to this 

rule. 

In addition, FRA assumed that 

railroads would select the lowest cost 

alternative for achieving compliance. 

FRA recognizes other factors may 

contribute to model selection. While 

FRA did not and does not endorse any 

particular model or method for use in 

complying with this rule, and railroads 

are certainly permitted to use more 

costly alternatives, for purposes of 

conducting regulatory analysis, only the 

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36 ‘‘The opportunity cost is equal to the net 

benefit the resource would have provided in 

absence of the requirement.’’ OMB Circular A–4, 

p. 19. 

‘‘opportunity cost’’ 36 is included. Any 

additional expense, however, would not 

be a cost attributable to this rule. APTA 

did not provide a basis for its cost 

estimate of $500,000 per railroad for the 

FAST model, and based on information 

available to FRA, a cost of $500,000 

does not reflect the opportunity cost to 

society. 

In this case the opportunity cost 

includes the programming and licensing 

cost estimated at $75,000, the training 

cost estimated at $50,000, and product 

support associated with analyzing 

assignments for purposes of complying 

with this rule estimated at $7,500 

annually. As noted at the NPRM stage, 

FRA believes that a significantly lowercost viable alternative for compliance 

would be for the railroads to enter into 

a cost sharing agreement via a trade 

organization, such as APTA and the 

Association of Railway Museums 

(ARM), to facilitate so that one or few 

licenses are purchased for the use of all 

member railroads. 

On a related note, MTA points out 

that early in the Working Group process, 

as the NPRM was being developed, FRA 

indicated a willingness to explore 

funding access to the models. 

Unfortunately, FRA is not in a position 

to fund access to the models, but, as 

discussed above, FRA encourages 

relevant organizations to work together, 

as there may be ways to provide the 

model for a group of members that are 

more cost effective than for each 

member railroad to secure access 

individually. 

APTA also contends that the cost of 

fatigue training will exceed $1.8 million 

for a sample of 5 commuter railroads 

subject to this regulation. APTA does 

not provide any background or details 

related to this stated cost, and it is not 

consistent with information provided to 

FRA during the development of the 

proposed rule. However, it is possible 

that these costs are based on providing 

formal, classroom training to all of the 

employees to be covered by this 

regulation. As was explained in the 

NPRM, FRA incorporated significant 

flexibility into the training requirement, 

so that each railroad would be allowed 

to tailor the level of complexity and 

formality to the needs of its employees. 

There are likely railroads, or locations 

on a particular railroad, where the 

nature of the operations and 

assignments do not warrant formal 

classroom training and such training 

would not be practical or cost-effective. 

In many cases, there will be lower cost 

alternatives that will be more 

appropriate and sufficient to comply 

with the training requirement. 

APTA and MTA both claim costs 

related to the hiring of additional 

personnel. MTA says that it would have 

compliance costs of at least $5 million 

per year, including the cost of hiring 

additional train and engine employees. 

APTA contends that the cost of 

additional personnel will exceed $15 

million for five sample commuter 

railroads, and $12 million for Amtrak. 

Neither MTA nor APTA provides any 

specific information regarding these 

costs, and FRA does not believe that 

additional personnel will be required by 

the regulation. The rule provides 

substantial flexibility in how railroads 

may mitigate fatigue in their schedules. 

Many of the available fatigue mitigation 

tools, such as allowing employees to 

take a nap during available periods 

within a schedule, would significantly 

reduce fatigue without requiring the 

railroad to hire additional employees. In 

addition, should a railroad be unable to 

sufficiently mitigate the risk of fatigue 

in one of its schedules, it would also 

have the option of submitting a 

declaration of operational necessity to 

FRA for approval. See 

§ 228.407(b)(1)(ii). Although there may 

be some circumstances in which a 

railroad would choose to hire additional 

employees, the regulation does not 

require extra hiring, especially not to 

the extent of the costs alleged by MTA 

and APTA. Finally, addition of new 

train crews to perform the same train 

operations would result in a decrease in 

the hours of service performed by 

existing train crews, which in turn 

would result in a savings that would in 

large part offset the expense associated 

with the hours of service performed by 

new employees and must be taken into 

account. In other words, it would 

basically take the same number of total 

employee hours to operate trains if the 

train schedules are unchanged 

regardless of how many train crews 

participate in the operation, leaving the 

total wage expense largely unchanged 

and only impacting the fixed overhead 

costs resulting from a larger employee 

pool. The Regulatory Impact Analysis 

contains a more detailed discussion of 

such impacts. 

Some of the personnel costs described 

by MTA and APTA may be a result of 

concerns about the FAID threshold, 

proposed as 60 in the NPRM, which 

resulted in a greater number of 

schedules than expected violating the 

fatigue threshold. FRA responded to 

comments about the fatigue models 

above, and also addressed the issue in 

Section III of this preamble, Scientific 

Background. In light of the 

modifications made by FRA, the impact 

of this issue will be significantly 

reduced. In addition, as noted above, 

schedules violating the threshold do not 

require the hiring of additional 

personnel, as there are a variety of ways 

to mitigate the fatigue that would not 

require the expense of additional hiring. 

PATH also indicates that it would 

need to hire additional engineers and 

conductors ‘‘to mitigate the effects of a 

mandatory 48 to 72 consecutive-hour 

rest period’’ the cost of which it 

estimates at $4 million annually. This 

comment appears to refer to the 

statutory requirements at 49 U.S.C. 

21103(a)(4), which do not apply to train 

employees subject to this regulation. 

The requirements of this regulation are 

imposed instead of, rather than in 

addition to, the requirements for train 

employees in freight service. If, as 

PATH contends, its schedules will pass 

any fatigue analysis, its costs resulting 

from this regulation should be minimal. 

Finally, AAR objects to the cost of 

having some employees subject to two 

different sets of hours of service 

requirements, referring specifically to 

those employees working from an extra 

board that includes both freight and 

passenger assignments. For this reason, 

AAR suggests that train employees 

employed by freight railroads should be 

governed only by the freight hours of 

service provisions in 49 U.S.C. 21103. 

This comment will be more fully 

discussed below, with comments related 

to the scope of the rulemaking. From a 

cost perspective, however, the cost of 

compliance with two separate hours of 

service schemes is not a new cost, as 

freight railroads have already had to 

track their train employees who perform 

both freight and passenger service under 

the different statutory provisions 

currently applicable to both, as freight 

and passenger train employees have had 

different requirements since the 

effective date of the RSIA. In addition, 

AAR admits that very few employees 

would be affected by being subject to 

both freight and passenger 

requirements, so any cost would likely 

be minimal. 

Comments on the Scope of the Proposed 

Rule (§ 228.401 and § 228.403) 

AASM suggests that FRA should 

develop an additional subpart to 

establish comparable language for train 

employees engaged in transportation 

services outside of commuter or 

intercity rail passenger transportation. 

As was described in the Section II, 

Statutory Background and History, prior 

to the RSIA, the Secretary had no 

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50380 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

authority to issue regulations governing 

the hours of service of train employees. 

In the RSIA, Congress amended the 

then-existing statutory hours of service 

requirements for train employees, but 

specifically excluded train employees 

providing commuter or intercity rail 

passenger transportation from the 

application of those provisions for a 

period of three years, during which 

FRA, as the Secretary’s delegate, was 

granted authority to promulgate hours of 

service regulations for these train 

employees. Other train employees 

remain subject to the hours of service 

statutory provisions as amended by the 

RSIA. 

AAR and APTA both suggest that 

train employees on freight service extra 

boards who occasionally are called to 

operate passenger trains should be 

subject exclusively to the freight hours 

of service statutory requirements, rather 

than this final rule, and they suggest 

amending § 228.403 to exclude such 

employees from the requirements of this 

rule. FRA does not believe this 

exception would be consistent with the 

Congressional authorization, which is to 

establish hours of service regulations for 

train employees providing commuter or 

intercity rail passenger transportation. 

Congress recognized that the 

transportation of passengers has 

different characteristics that make the 

requirements established for freight 

operations inappropriate, and that 

regulations based on fatigue science 

would be more appropriate to passenger 

operations, regardless of the entity that 

employs the train employee providing 

this service. In addition, the railroads 

would have to track freight and 

passenger service separately for 

business purposes, to bill the commuter 

operator for the employee’s time, even 

if the employees were just under the 

freight provisions. Finally, if the fact 

that an employee could be called on to 

perform freight service on an as-needed 

basis is enough to exclude them from 

the coverage of this rule, this could 

result in excluding employees who 

perform predominantly passenger 

service just for the possibility of their 

performing occasional freight service. 

AAR also suggests that train 

employees of freight railroads who 

operate non-scheduled passenger 

service such as ‘‘Santa trains’’ or steam 

trains should not be subject to this 

regulation. AAR contends that these 

employees are ‘‘akin to employees 

operating work trains’’ who were 

specifically proposed for exclusion from 

the application of the proposed rule and 

who are specifically excluded from the 

application of this final rule by a 

definition in § 228.403(c). FRA disagrees 

with this analogy, as train employees 

operating ‘‘Santa trains’’ or steam trains 

are transporting passengers, while train 

employees operating work trains are 

not. In the NPRM, FRA stated its belief 

that Congress intended that these 

regulations apply to all railroads 

providing rail passenger transportation, 

and therefore included tourist, scenic, 

excursion and historic railroads within 

the scope of this regulation. FRA 

likewise believes it was the intent of 

Congress to cover operations such as 

those described by AAR that also 

involve rail passenger transportation. 

AAR also suggests that FRA remove 

the limit on the number of times a 

month that train employees employed 

by a freight railroad who may provide 

pilot service for a locomotive engineer 

of a passenger railroad without being 

subject to the schedule analysis and 

other requirements of this regulation. 

AAR acknowledges that it would be 

unlikely that an employee would 

provide pilot service more than four 

times in a month, but says it should be 

permitted if necessary. FRA agrees with 

this suggestion for the reasons discussed 

above in Section IV.D.4, and has 

eliminated the cap on the provision of 

pilot service. FRA has also added the 

exclusion of freight train employees 

providing pilot service from the 

coverage of this rule to the rule text, in 

§ 228.403(c), rather than just including 

it in the preamble, as was done in the 

NPRM. 

APTA recommends that mechanical 

breakdowns, signal failures, switch 

failures and similar conditions should 

come within the non-application 

provision of § 228.403. FRA does not 

believe this is appropriate, as these 

common operational issues do not 

justify a complete exemption from the 

provisions of this regulation. This 

position is consistent with FRA’s 

longstanding interpretation of the 

comparable statutory nonapplication 

provision at 49 U.S.C. 21102. See 49 

CFR part 228, Appendix A. However, as 

will be discussed below, to the extent 

that such issues delay schedules the 

fatigue implications of which a railroad 

had previously analyzed and mitigated 

as appropriate, FRA will allow 

flexibility as to the schedule analysis 

requirements and consecutive-days 

limitations of this rule, if the schedule 

as delayed does not extend past 

midnight. 

Strasburg suggests that Class III 

tourist, scenic, historic, and excursion 

railroad operations should be excluded 

from the schedule-analysis requirements 

of this rule, and specifically excluded 

from the definition of ‘‘Type 2 

assignment,’’ because of the nature of 

these operations. Strasburg contends 

that, even in their busiest periods, these 

operations generally operate shorter 

assignments than the duration permitted 

for a Type 1 assignment under this rule. 

In addition, employees rarely work 

more than five days in a row, and 

schedules begin and end at the same 

time and location each day. FRA 

acknowledges that the nature of these 

operations reduces the risk of 

cumulative fatigue experienced by 

employees of such railroads. 

While FRA does not believe these 

operations should be categorically 

excluded from the requirements of this 

regulation, FRA will delay the 

compliance date for tourist, scenic, 

historic and excursion railroads until 18 

months from the effective date of the 

final rule, or a year longer than other 

railroads will have to complete their 

work schedule analysis and make any 

required submission of schedules and 

fatigue mitigation tools to FRA. 

This extra year to prepare to comply 

would allow additional time for such 

operations to obtain necessary 

resources, but may also allow many 

such operations to avoid the necessity of 

obtaining access to an approved 

biomathematical model and analyzing 

schedules, if their only Type 2 

assignments had already been approved 

by FRA on the submission of another 

railroad, or had been modeled by 

another railroad and showed that they 

could be treated as Type 1. This deferral 

of the compliance date is also consistent 

with a suggestion in APTA’s comments 

that FRA should allow a schedule 

approved for one railroad to be used by 

others without also having to analyze 

the same schedule. FRA will create a 

public docket of schedules that it has 

approved, but if such a listing is to be 

complete, railroads would have to 

submit to the docket established for that 

purpose those Type 2 schedules that 

they analyze and determine do not 

violate the fatigue threshold and do not 

need to be mitigated or submitted to 

FRA for approval and can be treated as 

Type 1. 

Comments on Consecutive-Days 

Provisions (§ 228.405(a)(3) and (a)(4)) 

BLET/UTU and TTD contend that 

FRA has not made a sufficient case for 

imposing the limitation on employees 

working only Type 1 assignments 

included in the proposed rule, which 

would require that if an employee had 

not had at least two calendar days in 

which he or she had not initiated an onduty period in a period of 14 

consecutive calendar days, that 

employee must have two consecutive 

calendar days off duty at his or her 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50381 

37See, e.g., Balkin, T.J. et al. ‘‘Effects of Sleep 

Schedules on Commercial Motor Vehicle Driver 

Performance,’’ FMCSA Technical Report No. DOT– 

MC–00–133, U.S. Department of Transportation, 

(2000); Belenky et al., ‘‘Patterns of performance 

degradation and restoration during sleep restriction 

and subsequent recovery: A sleep dose-response 

study,’’ Journal of Sleep Research, 12, 1–12, (2003). 

home terminal (unless the fourteenth 

day ended at his or her away-from-home 

terminal, in which case the employee 

would be permitted to work a fifteenth 

day to return to his or her home 

terminal and then would be required to 

have two consecutive calendar days off 

duty at his or her home terminal). BLET 

and UTU note that schedule analysis 

conducted during the RSAC process did 

not support a limitation on Type 1 

assignments, and they argue that the 

proposed limitation was therefore not 

based on science but was a subjective 

requirement. FRA does not dispute the 

assertion that the work schedule 

analysis did not suggest the specific 

limitation proposed and adopted in the 

final rule. However, as FRA stated in the 

NPRM, even a Type 1 schedule that 

allowed the minimum rest required by 

this regulation would eventually result 

in an employee using time for other life 

activities (such as commuting, eating, 

grooming, personal errands, etc.) that 

the approved models assume to be 

available for sleep, if the employee is 

not at some point required to have a day 

off. FRA also notes that fatigue science 

indicates that individuals may require 

more than one recovery day to recover 

from sleep restriction.37

In contrast to the position of BLET/ 

UTU, NIOSH says it may be premature 

to say that an employee working even 

Type 1 schedules will get sufficient rest, 

noting that if an employee has only the 

required minimum 8 hours off duty 

between duty tours, this will not allow 

the employee to get 8 hours of rest. 

Likewise, AASM suggests that the 

required minimum off-duty period 

under the regulation should be 

sufficient to allow for an 8-hour sleep 

period. FRA is comfortable with the 

limitations included in the rule, because 

of the nature of the operations in 

question, and the fact that the diary 

study of passenger train employees 

indicated that these employees are 

usually getting appropriate amounts of 

sleep, and most are not subjected to 

fatigue that would violate a threshold 

established in this regulation. However, 

FRA believes that the support of the 

scientific community for even more 

stringent limitations indicates that the 

limitations included in this regulation 

are quite reasonable. 

Many comments asked for further 

clarification and examples to aid in the 

discussion of the limitation on Type 1 

assignments, and these clarifications 

have been made throughout the final 

rule in the many references to this 

provision, and rule text has been added 

to clarify the application of these 

limitations. See § 228.405(a)(3) and the 

discussion of the provision in Section V, 

Section-by-Section Analysis. 

For example, in the NPRM, FRA 

stated that if an employee worked only 

Type 1 assignments for a period of more 

than 6 consecutive calendar days but 

less than 14 consecutive calendar days, 

and then initiated an on-duty period 

involving a Type 2 assignment, the 

employee would be required to have the 

Type 2 assignment’s rest period of 24 

consecutive hours at the employee’s 

home terminal, and then start the count 

over with regard to consecutive days or 

total days worked in a 14-day period. In 

response, MTA asks in its comment 

what would happen if an employee 

worked Type 1 assignments on 13 

consecutive days, and then a Type 2 

assignment on day 14. If the assignment 

on the 14th consecutive day had been a 

Type 1 assignment, the employee would 

have to have two consecutive calendar 

days off. It does not make sense to 

require only 24 consecutive hours off 

after a more fatiguing Type 2 assignment 

at that point. FRA has revised the rule 

text in § 228.405(a)(3) to clarify this 

issue, and other questions related to the 

application of these provisions. 

Comments on Definitions of ‘‘Type 1 

Assignment’’ and ‘‘Type 2 Assignment’’ 

(§ 228.5) 

SEPTA, AAR and APTA each argue 

that the definition of ‘‘Type 2 

assignment’’ should be modified to 

cover any assignment with time 

between midnight and 3 a.m., rather 

than 4 a.m., and that Type 1 

assignments should be allowed to begin 

at 3 a.m. They point to a citation in the 

NPRM to the FAST validation study, 

which indicated a 20-percent increase 

in the risk of a human factors accident 

by working between the hours of 

midnight and 3 a.m. This causes AAR 

to conclude that 4 a.m. is an arbitrary 

threshold. However, 3 a.m. is actually 

the absolute low point for circadian 

rhythm, so it is actually the worst 

possible time to begin a shift, especially 

since to do so would require being 

awake in the period before that, in order 

to report for duty at 3 a.m. Indeed, 

NIOSH points out that even the 4 a.m. 

start time can have the same effect as an 

overnight shift because the employee 

must wake up earlier to report for duty 

at 4 a.m. Therefore, FRA has not 

modified the definitions as requested. 

SEPTA and MTA suggest that Type 1 

assignments that are delayed such that 

they extend past the Type 1 hours, or 

Type 2 assignments that model as Type 

1 and are delayed, should still be treated 

as Type 1 assignments. This seems 

reasonable to FRA, as it does not seem 

appropriate for a schedule to have to be 

modeled every day if it runs a few 

minutes late. However, if the delay 

results in the employee’s working in the 

midnight-to-4-am time period that is 

always to be considered a Type 2 

assignment, the assignment must be 

considered Type 2 for that day, and the 

employee who worked it will have 

worked a Type 2 assignment for the 

purposes of the consecutive-days 

limitation. FRA has added rule text to 

clarify this issue. See § 228.5. 

Comments About Nap Policies and 

Sleep Facilities (§ 228.409) 

MTA suggests reducing the minimum 

nap period to be eligible for fatigue 

mitigation to 60 minutes instead of 90 

minutes. The FRA-proposed 90-minute 

minimum nap period was the subject of 

significant Working Group discussion, 

and FRA does not see a significant 

reason to change it at this time. FRA 

notes that the Commercial 

Transportation Operator Fatigue 

Management Reference indicates that 

naps should not exceed 45 minutes and 

that 15–30 minutes should be allowed 

to fully wake up. If 15 minutes are 

added to allow time to fall asleep, the 

total is 75 minutes to 90 minutes. 

MTA also suggests allowing railroads 

to decide on nap policies and sleep 

facilities unilaterally. FRA believes that 

the collaboration of labor and 

management on fatigue mitigation 

efforts is important to ensure successful 

fatigue mitigation, and FRA therefore 

declines to modify these provisions. 

Comments About Training (§ 228.411) 

Comments about training were 

centered on the timing of both initial 

training of existing employees subject to 

the subpart and immediate supervisors 

of those employees, and initial training 

of new employees. The NPRM proposed 

initial training of such existing 

employees and supervisors ‘‘as soon as 

practicable.’’ This description of the 

deadline was deemed too uncertain. 

NIOSH suggested initial training should 

be provided to existing employees and 

supervisors within 90 days of the 

effective date of the final rule, while 

SEPTA recommended delaying the 

deadline for compliance with the initial 

training requirement for existing 

employees and supervisors until 

December 2012, so that it could be 

aligned with other railroad training 

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50382 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

schedules. FRA believes that SEPTA’s 

proposal is reasonable, has the benefit of 

certainty, and is consistent with the 

period for providing training in certain 

other FRA rules. Consequently, FRA has 

amended the training provision to 

require initial training of existing 

employees and supervisors no later than 

December 31, 2012. 

With regard to initial training of new 

employees, which FRA proposed to 

require within 90 days of an employee’s 

working an assignment that would be 

subject to this rule, AAR commented 

that this time frame will not allow 

employees to be trained within the 

railroads’ normal training schedules. 

FRA has revised the time period in 

which new employees must be trained 

to be consistent with the latest version 

of FRA’s forthcoming training 

standards, which was discussed in the 

Working Group as a standard with 

which it was agreed that the training 

provision in this regulation should be 

consistent. Therefore, new employees 

will have to be trained prior to 

December 31, 2012 or before they begin 

work, whichever is later. 

Other Comments 

BLET/UTU and TTD request that FRA 

require a ‘‘10-hour call’’ prior to an 

assignment (i.e., notification of the time 

to report 10 hours in advance of the 

time at which the employee is requested 

to report for duty). While FRA agrees 

that such a requirement would provide 

predictability as to when an employee 

will be called to work, adopting a 10- 

hour call requirement is not possible at 

this time, as it was not a part of the 

proposed rule. FRA notes, however, that 

a 10-hour call is one of the fatigue 

mitigation tools that was discussed. The 

regulation requires labor involvement in 

the determination of fatigue mitigation 

tools to be applied, so there may be 

opportunities to voluntarily make use of 

this scheduling practice. 

SEPTA suggested that the rule should 

place responsibility on the employee 

not to violate the regulation. FRA agrees 

that in some circumstances the 

employee may bear some responsibility, 

but the railroad bears responsibility for 

scheduling, so it will also bear some 

responsibility for scheduling an 

employee for an assignment that would 

violate the regulation. The applicable 

civil penalty provision (49 CFR 228.21) 

includes a reference to the liability of 

individuals for civil penalties for 

violating a requirement or causing the 

violation of any requirement of part 228, 

and the penalty schedule for part 228 

includes a footnote, common to the 

penalty schedules of many FRA 

regulations, providing for the possibility 

of individual liability for a civil penalty 

for a willful violation. 

Finally, NIOSH says this regulation 

should be part of a comprehensive 

fatigue management plan. FRA agrees, 

and notes that the fatigue mitigation 

plans applied to particular schedules 

found to violate the fatigue threshold 

will be part of overall fatigue 

management. Appendix D to this rule 

provides guidance on fatigue 

management plans. Additional 

requirements will likely result from 

other ongoing FRA rulemaking projects. 

VI. Section-by-Section Analysis 

Subpart A—General 

Section 228.1 Scope 

FRA is revising this section by adding 

paragraph (c), which indicates that the 

regulation prescribes substantive hours 

of service requirements for train 

employees engaged in commuter or 

intercity rail passenger transportation. 

Section 228.3 Application 

Existing paragraph (a) of this section 

states that part 228 applies to any 

railroad or contractor or subcontractor 

to a railroad except as provided in 

paragraph (b) of the section. 

Paragraph (b) of this section excludes 

from the scope of this part railroads or 

a contractor or subcontractor of a 

railroad that operates only on track 

inside an installation which is not part 

of the general railroad system of 

transportation. This provision would 

exclude from the coverage of subpart F 

some tourist, scenic, excursion or 

historic railroads because they operate 

off the general system. FRA has 

otherwise specifically included these 

operations within the coverage of this 

regulation, as provided by § 228.401, 

because if they are not covered by this 

regulation, their train employees would 

be subject to the statutory freight hours 

of service requirements of 49 U.S.C. 

21103. As is explained in more detail in 

the discussion below of § 228.401, FRA 

believes that Congress intended these 

operations to be subject to this 

regulation, rather than the statutory 

requirements, and FRA does not believe 

the statutory requirements are 

appropriate for these operations. 

Accordingly, FRA is revising paragraph 

(b) of this section to refer to § 228.401, 

which is the specific applicability 

provision for new subpart F. 

Paragraph (b) of § 228.3 also excludes 

from the application of part 228 rapid 

transit operations in an urban area that 

are not connected with the general 

railroad system of transportation. 

Section 228.401 contains an exclusion 

for these operations. 

Section 228.5 Definitions 

FRA is amending this section to add 

definitions of ‘‘Associate 

Administrator’’ and ‘‘FRA’’ as used in 

this part. Section 101 of the RSIA refers 

to FRA’s ‘‘Associate Administrator for 

Railroad Safety’’ and emphasizes that 

the Associate Administrator is the Chief 

Safety Officer. Thus, in this final rule 

‘‘Associate Administrator’’ means FRA’s 

Associate Administrator for Railroad 

Safety/Chief Safety Officer. 

FRA is also adding definitions of the 

terms ‘‘Type 1 assignment’’ and ‘‘Type 

2 assignment.’’ As was previously 

discussed in Section IV, above, these 

definitions were the subject of 

significant discussion in the Task Force 

and the Working Group, particularly 

because of the implications of a 

particular schedule’s status as a Type 1 

assignment or a Type 2 assignment for 

determining the application of the 

limitations on consecutive days in 

§ 228.405 and the requirements for 

analysis of schedules and submission of 

schedules to FRA for approval in 

§ 228.407. FRA believes that the 

definitions accommodate the concerns 

expressed in the Working Group 

regarding schedules outside the time 

parameters for a Type 1 assignment that 

may still present very little risk of an 

effectiveness score that would violate 

the fatigue threshold and compromise 

safety. At the same time, however, the 

definitions recognize the increased risk 

of fatigue associated with working late 

night and very early morning hours, 

which justifies the application of the 

more stringent requirements. 

FRA added language to these 

definitions as they appeared in the 

NPRM to make clear that if an 

assignment is delayed so that the 

assignment that an employee actually 

worked includes any period of time 

between midnight and 4 a.m., the 

assignment must be treated as a Type 2 

assignment for that employee for 

purposes of the consecutive days 

limitations and corresponding rest 

requirements in section 228.405. As was 

discussed in Section V, Responses to 

Public Comments on the NPRM, some 

commenters suggest that Type 1 

assignments, or assignments having 

some time within the definition of a 

Type 2 assignment but that modeled 

acceptably to be treated as Type 1 

assignments, should continue to be 

treated as Type 1 assignments even if 

delayed. 

In most circumstances, this makes 

sense to FRA, in that railroads should 

not be expected to model assignments 

on a daily basis if they extend a few 

minutes past the 8 p.m. limits of a Type 

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1 assignment, or past the scheduled end 

time of a Type 2 assignment that was 

acceptable to be treated as Type 1. 

However, if the assignment as delayed 

includes time between midnight and 4 

a.m., such an assignment is always 

considered Type 2, and an employee 

working that assignment should have 

Type 2 consecutive-days limitations and 

corresponding rest requirements. 

FRA has added these terms to this 

general definitions section for part 228, 

rather than the definitions specific to 

subpart F, because these terms are also 

used in the recordkeeping provisions of 

subpart B, as amended by this rule. 

Subpart B—Records and Reporting 

Section 228.11 Hours of Duty Records 

Paragraph (c) of this section indicates 

that paragraphs (b)(13) through (b)(16) 

do not apply to the records of train 

employees providing commuter or 

intercity passenger rail transportation. 

Paragraphs (b)(13) through (b)(16) relate 

to substantive provisions of the HSL for 

train employees, added by the RSIA. As 

was described above in Section II, these 

requirements were not extended to train 

employees on commuter and intercity 

passenger railroads. The requirements 

referred to in paragraphs (b)(13) through 

(b)(16) are not required by this rule and 

therefore would continue not to apply to 

train employees providing commuter 

and intercity rail passenger 

transportation. 

Paragraph (c) of this section now also 

requires two additional pieces of 

information, relating to the provisions of 

§ 228.405(a)(3). First, paragraph (c)(1) 

requires that the record must note the 

date that begins the series of at most 14 

consecutive calendar days that includes 

the duty tour being recorded. Second, 

paragraph (c)(2) requires that the record 

note the date, if any, of a calendar day 

on which the employee did not initiate 

an on-duty period prior to the current 

duty tour in the current series of at most 

14 consecutive calendar days. This 

information will allow the railroad and 

FRA to determine compliance with the 

limitations established by paragraph 

(a)(3), both with respect to calendar 

days on which the employee did not 

initiate an on-duty period and 

consecutive days including one or more 

Type 2 assignments. 

FRA recognizes that most railroads 

and employees subject to this subpart 

are currently keeping their hours of 

service records manually, and it may be 

burdensome for an employee to be 

required to keep track of his or her 

series of at most 14 consecutive days 

and mark its starting date on the hours 

of service record each day, as well as 

indicating whether there had been a 

prior day off during the series. However, 

the railroad will have to have some way 

to track this information. Therefore, if a 

railroad wishes to keep this information 

centrally for all of its employees, this 

will be considered sufficient to satisfy 

the requirements that the hours of 

service record include the start date of 

the at-most 14-day series and the date, 

if any, that the employee did not initiate 

an on-duty period during the at-most 

14-day series, provided this information 

is made available to FRA upon request. 

Section 228.19 Monthly Reports of 

Excess Service 

FRA is revising paragraph (c) of this 

section to require railroads to report to 

FRA instances of excess service related 

to new substantive limitations 

contained in § 228.405(a)(3) of this rule. 

That paragraph limits the number of 

consecutive days or total days within a 

series of at most 14 consecutive 

calendar days that train employees 

engaged in commuter or intercity 

passenger railroad transportation may 

initiate an on-duty period, and requires 

a minimum amount of time off duty or 

not initiating an on-duty period after an 

employee has reached the maximum 

number of consecutive or total days 

within the prescribed period, before the 

employee may return to duty, with 

different requirements depending on the 

time of day of the employee’s 

assignments. 

Excess service under 

§ 228.405(a)(3)(ii) occurs when an 

employee has initiated on-duty periods 

on six consecutive days, including one 

or more Type 2 assignments, and then 

initiates a new on-duty period without 

having had the required 24 consecutive 

hours off at the home terminal. 

Paragraph (c)(5) addresses this excess 

service in the situation when the 

employee is at his or her home terminal 

at the end of the duty tour that triggers 

the rest requirement. Paragraph (c)(6) 

addresses this excess service, including 

the exception for an additional 

initiation of an on-duty period when the 

employee is not at his or her home 

terminal at the end of the duty tour that 

triggers the rest requirement. 

Excess service under 

§ 228.405(a)(3)(iii) occurs when an 

employee has not had two consecutive 

calendar days in which the employee 

has not initiated an on-duty period 

during the series of 14 consecutive 

calendar days, and initiates a new onduty period without having had the 

required two consecutive calendar days 

without initiating an on-duty period at 

the home terminal. Paragraph (c)(7) 

addresses this excess service in the 

situation when the employee is at his or 

her home terminal at the end of the duty 

tour that triggers the rest requirement. 

Paragraph (c)(8) addresses this excess 

service, including the exception for an 

additional initiation of an on-duty 

period when the employee is not at his 

or her home terminal at the end of the 

duty tour that triggers the rest 

requirement. 

In the final rule, FRA has revised this 

section to reflect the consolidation of 

the revised consecutive-day provisions 

into § 228.405(a)(3). These issues were 

discussed in detail in Section V, 

Responses to Public Comments on the 

NPRM, and are further discussed in the 

section-by-section analysis of these 

provisions in § 228.405 below. 

Subpart F—Substantive Hours of 

Service Requirements for Train 

Employees Engaged in Commuter or 

Intercity Rail Passenger Transportation 

Section 228.401 Applicability 

This section would establish the 

specific applicability of new subpart F, 

which differs somewhat from that of 

existing subparts in this part. Paragraph 

(a) of this section provides that the 

requirements of subpart F apply to 

railroads and their officers and agents, 

only with respect to their train 

employees engaged in commuter or 

intercity rail passenger transportation. 

Subpart F does not apply to contractors 

or subcontractors to railroads, unlike the 

rest of part 228. See § 228.3(a). 

For purposes of subpart F, FRA 

interprets ‘‘commuter or intercity rail 

passenger transportation’’ to include rail 

passenger transportation by tourist, 

scenic, excursion, and historic railroads 

(referred to collectively for the purposes 

of this discussion as tourist railroads). 

FRA believes that in the RSIA Congress 

intended that these regulations apply to 

all railroads providing rail passenger 

transportation, and that Congress did 

not intend to apply the amended 

statutory provision at 49 U.S.C. 21103 to 

tourist railroads because tourist railroad 

operations are more similar to the other 

passenger service than they are to 

freight service. The provisions of the 

HSL that apply to train employees on 

freight railroads are not as appropriate, 

therefore, for train employees on tourist 

railroads. For fatigue purposes, the most 

salient difference between passenger 

and freight operations is that most 

passenger operations tend to be 

scheduled, whereas freight operations 

tend to be unscheduled. Virtually all 

passenger crew assignments have 

scheduled on-duty and off-duty times, 

and the vast majority of passenger crew 

assignments are to report in the morning 

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38Similarly, paragraphs (b) and (c) of the rule are 

substantively identical to their parallel provisions, 

paragraphs (b) and (c) of the old section 21103. As 

with paragraphs (a)(1) and (a)(2), FRA’s prior 

interpretations of these provisions continue to 

apply. 

and go off duty in the late afternoon or 

early evening, thereby reducing the 

likelihood of on-duty fatigue. Like 

typical intercity and commuter rail 

operations, tourist rail operations tend 

to be scheduled and to occur during the 

daytime or early evening. 

Paragraph (b) of this section provides 

that this subpart does not apply to urban 

rapid transit operations not connected 

with the general railroad system of 

transportation. 

Section 228.403 Nonapplication, 

Exemption, and Definitions 

This section would establish the 

situations in which this subpart does 

not apply, provide circumstances in 

which a railroad may seek an exemption 

from the provisions of this subpart, and 

provide key definitions specifically 

applicable to this subpart. 

Paragraph (a) of this section would 

establish the situations in which this 

subpart does not apply, such as an act 

of God. This paragraph is substantively 

identical to the nonapplication 

provision of the HSL (49 U.S.C. 

21102(a)), which was unchanged by the 

RSIA. The provisions of this rule would 

therefore not apply to train employees 

engaged in commuter or intercity 

passenger service in the same situations 

as the statutory hours of service 

requirements would not apply to other 

train employees, (or to signal employees 

or dispatching service employees). 

Paragraph (b) of this section would 

provide the possibility of an exemption 

from the requirements of this subpart for 

a railroad having not more than a total 

of 15 train employees, signal employees, 

and dispatching service employees. This 

paragraph is substantively identical to 

the exemption provision of the HSL at 

49 U.S.C. 21102(b), which was 

unchanged by the RSIA. It would 

provide the same opportunity for a 

railroad to seek an exemption from the 

requirements of this subpart as a 

railroad would have to seek an 

exemption from the statutory 

requirements applicable to its other 

employees. 

Paragraph (c) of this section defines 

several key terms specifically applicable 

to this subpart. It defines ‘‘commuter or 

intercity rail passenger transportation’’ 

as the terms ‘‘commuter rail passenger 

transportation’’ and ‘‘intercity rail 

passenger transportation’’ have been 

defined at 49 U.S.C. 24102. This 

definition is consistent with FRA’s 

authority to issue this rule, as Section 

108(e) of the RSIA defined these terms 

as they are defined at 49 U.S.C. 24102. 

This paragraph also defines ‘‘train 

employee who is engaged in commuter 

or intercity rail passenger 

transportation’’ to establish that the 

term includes any train employee 

performing that function, regardless of 

whether the train employee is employed 

by a commuter or intercity passenger 

railroad, or another type of railroad or 

other entity. The term also includes all 

train employees employed by a 

commuter or intercity passenger 

railroad. The term excludes a train 

employee employed by another type of 

railroad or entity who is engaged in 

work train service. In this final rule, 

FRA has added language to the 

proposed definition. As FRA discussed 

above in Section IV, the RSAC Working 

Group discussed the application of 

subpart F to train employees of freight 

railroads who provide pilot service on 

trains operated by commuter railroads 

or intercity passenger railroads, and 

FRA included preamble language in the 

NPRM excluding such pilot service from 

coverage under this rule, provided that 

an employee does not serve as a pilot 

more than four times in a calendar 

month, or engage in any other commuter 

or intercity rail passenger 

transportation. In response to comments 

on the scope of the rulemaking, 

discussed further in Section V, 

Responses to Public Comments on the 

NPRM, above, FRA has eliminated the 

cap on the amount of pilot service that 

may be performed, and has clarified the 

issue by specifically excluding pilot 

service from the definition of ‘‘train 

employee who is engaged in commuter 

or intercity rail passenger 

transportation.’’ See § 228.3. 

Section 228.405 Limitations on Duty 

Hours of Train Employees Engaged in 

Commuter or Intercity Rail Passenger 

Transportation 

This section provides the substantive 

limitations on the duty hours of train 

employees subject to this subpart. 

Paragraphs (a)(1) and (a)(2) of this 

section establish the maximum time on 

duty in a duty tour and the required 

minimum time off duty in a 24-hour 

period. These limitations are 

substantively identical to the statutory 

requirements of 49 U.S.C. 21103(a)(1) 

and (a)(2) as they existed prior to July 

16, 2009, the effective date of the 

amendments to that section made by the 

RSIA, which requirements currently 

still apply to train employees engaged in 

commuter or intercity rail passenger 

transportation, until the effective date of 

this regulation. As these provisions are 

substantively identical to their parallel 

provisions in old section 21103, FRA’s 

prior interpretations of these provisions, 

as established in FRA’s technical 

bulletins, will continue to apply.38 FRA 

retains these limitations as a ‘‘floor’’ 

because there is limited evidence of 

fatigue-related accidents in operations 

subject to this rule. Furthermore, an 

analysis sampling the schedules of train 

employees now subject to this rule 

indicates that many of the schedules are 

not likely to be at risk for producing a 

level of fatigue at which safety may be 

compromised. However, FRA is 

imposing additional requirements to 

address work schedules that are likely 

to result in fatigued employees and rest 

requirements that will minimize 

cumulative fatigue. 

In order to address cumulative 

fatigue, new requirements are added in 

paragraph (a)(3) restricting the number 

of consecutive days or total days in a 

prescribed period on which an 

employee may initiate an on-duty 

period, as discussed below. The changes 

from the proposed rule to the final rule 

do not significantly change the time off 

duty previously proposed to be required 

by proposed paragraphs (a)(3) and (a)(4), 

but resolve issues previously identified 

by FRA and further discussed by a 

commenter. In the NPRM, paragraphs 

(a)(3) and (a)(4) of § 228.405 proposed 

limitations on the number of days that 

an employee may work, with paragraph 

(a)(3) providing the limitation for an 

employee who works one or more Type 

2 assignments, and paragraph (a)(4) 

providing a less stringent, but more 

complex limitation for an employee 

who works only Type 1 assignments. 

Paragraph (a)(3) in the NRPM proposed 

that an employee who initiates an onduty period on 6 consecutive calendar 

days including one or more Type 2 

assignments must have at least 24 

consecutive hours off duty at the 

employee’s home terminal. Paragraph 

(a)(4) in the NRPM proposed that after 

an employee has initiated on-duty 

periods in a period of 14 consecutive 

calendar days and has not had a total of 

at least two calendar days within that 

14-day period in which the employee 

has not initiated an on-duty period, the 

employee must have two consecutive 

calendar days without initiating an onduty period at the employee’s home 

terminal. 

Recognizing the potential interaction 

between the proposed paragraphs (a)(3) 

and (a)(4), FRA provided an example in 

the NPRM of how the consecutive-days 

provisions would apply if an employee 

initiated a Type 2 assignment after 

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having initiated only Type 1 

assignments in a period of more than 6 

but less than 14 consecutive calendar 

days. FRA indicated that if an employee 

initiated only Type 1 assignments for a 

period of more than 6 consecutive 

calendar days but fewer than 14 

consecutive calendar days on which the 

employee has initiated an on-duty 

period, and then initiated a Type 2 

assignment—for example, a Type 2 

assignment on the eighth consecutive 

day after having worked Type 1 

assignments on the previous 7 days— 

the ‘‘Type 2’’ limitation will apply at 

that time, and the employee must have 

24 consecutive hours off duty following 

the Type 2 assignment (or work or 

deadhead to the home terminal the next 

day and then have 24 hours off duty at 

the home terminal) and then begin a 

new period of consecutive days upon 

returning to duty. 

However, as was discussed above in 

Section V, Response to Public 

Comments on the NPRM, FRA received 

a comment pointing out that if an 

employee had initiated an on-duty 

period in a Type 1 assignments each day 

for 13 consecutive days, and then 

initiated a Type 2 assignment on the 

14th day, it would not make sense for 

the employee to have only 24 hours off 

duty, when 2 consecutive calendar days 

without initiating an on-duty period 

would have been required had the 

employee worked a less fatiguing Type 

1 assignment on the 14th day. The 

consolidation of proposed paragraphs 

(a)(3) and (a)(4) into new paragraph 

(a)(3) addresses this concern by 

including the restriction on more than 

six consecutive days including a Type 2 

assignment in the same at-most 14-day 

period applicable to Type 1 

assignments, as discussed in more detail 

below. FRA has also rephrased the 

requirements into a positive statement 

of when additional time off duty is 

required, rather than negatively 

expressing when an employee may not 

work. FRA also clarified the nature of 

the ‘‘14-day period.’’ For the vast 

majority of circumstances considered by 

FRA, the rest required under the 

consolidated paragraph (a)(3) will not 

differ from the rest required under the 

proposed paragraphs (a)(3) and (a)(4). 

By including the limitation on 

consecutive assignments including at 

least one Type 2 assignment within the 

broader limitation of the at-most 14-day 

period, the consolidation provides a 

clearer set of rules to govern how much 

time off duty is required when an 

employee works a Type 2 assignment 

after having worked a series of Type 1 

assignments late in the at-most 14-day 

period. The revisions will also relieve 

railroads and employees from having to 

determine, on a daily basis, how many 

days have elapsed since the beginning 

of the at-most 14-day period in order to 

determine how much time off duty is 

required if a Type 2 assignment is 

worked on that day. 

As a general rule, the application of 

the cumulative-fatigue provisions has 

not changed from the NRPM. As 

proposed in the NPRM and as adopted 

in the final rule, if an employee initiates 

an on-duty period each day for 14 

consecutive calendar days, or 13 days 

out of the 14 consecutive calendar days, 

even if all of those assignments are Type 

1 assignments, that employee must have 

at least 2 consecutive calendar days on 

which he or she does not initiate an onduty period at his or her home terminal. 

As proposed in the NRPM and as 

adopted in the final rule, if an employee 

initiates an on-duty period for 6 

consecutive calendar days, including 

one or more Type 2 assignments, that 

employee must have at least 24 

consecutive hours off duty at his or her 

home terminal. Similarly, in both the 

proposed and the final versions of the 

cumulative-fatigue provisions, 

flexibility is provided to allow the 

employee to return to his or her home 

terminal, if necessary, before taking the 

required rest. The only clarifying change 

that the final rule makes is that both the 

24-hour and 2 consecutive calendar day 

off-duty periods can be applicable 

within a series of at most 14 consecutive 

calendar days; when this occurs, to the 

extent that the rest periods overlap, they 

do so concurrently, rather than 

consecutively. 

Paragraph (a)(3) of the final rule now 

provides a series of at most 14 

consecutive calendar days as the frame 

of reference regardless of whether the 

employee initiates Type 1 assignments, 

Type 2 assignments, or some 

combination thereof. As was implied in 

the NRPM, the final rule’s paragraph 

(a)(3)(i) now makes explicit that the first 

series of at most 14 consecutive 

calendar days begins at a fixed date: the 

first calendar day on or after the 

compliance date, as specified in section 

228.413, for paragraph (a)(3) that the 

employee initiates an on-duty period. A 

series of at most 14 consecutive 

calendar days ends either (1) after the 

employee has had two calendar days 

without initiating an on-duty period or 

(2) after the 14th consecutive day, 

whichever comes first. When a series of 

at most 14 consecutive calendar days 

ends, the next series of at most 14 

consecutive calendar days begins when 

the employee next initiates an on-duty 

period. Once a new series has begun, it 

is not necessary to look back at a prior 

series to find a day on which an on-duty 

period was not initiated. For instance, if 

an employee begins a series of at most 

14 consecutive calendar days on May 1, 

and he or she does not initiate an onduty period on May 4 and May 9, the 

series beginning on May 1 ends on May 

9. If the employee next initiates an onduty period on May 10, a new series 

begins on May 10, potentially extending 

as far as May 23. The series beginning 

May 10 will not end before May 23 

unless the employee has two days in the 

period between May 10 and May 23 on 

which the employee does not initiate an 

on-duty period. 

If the employee, at any point in the atmost 14-day period, works six 

consecutive calendar days including a 

Type 2 assignment, paragraph (a)(3)(ii) 

requires the employee to have 24 hours 

off duty before the employee may return 

to initiate another on-duty period. 

If an employee reaches the end of the 

14th consecutive day of the at-most 14 

day period without having two calendar 

days on which he or she did not initiate 

an on-duty period, paragraph (a)(3)(iii) 

requires the employee to have two 

consecutive calendar days on which he 

or she does not initiate an on-duty 

period before the employee may return 

to initiate another on-duty period. 

Paragraph (a)(3)(iv) establishes that 

this time off be at the home terminal, 

and that the employee not be available 

for any service for any railroad during 

the time off duty required by paragraph 

(a)(3). Paragraph (a)(3)(v) provides 

flexibility to railroads, allowing an 

employee to receive deadhead 

transportation to his or her home 

terminal or to work an additional 

assignment to the employee’s home 

terminal prior to receiving the required 

rest. 

Some examples may help to illustrate 

the cumulative-fatigue provisions of 

paragraph (a)(3) of this section as 

applied to employees working only 

Type 1 assignments under paragraph 

(a)(3)(iii). An employee who initiates an 

on-duty period each day on 14 

consecutive calendar days must have 

two consecutive calendar days on which 

he or she does not initiate an on-duty 

period. Likewise, an employee who 

initiates an on-duty period on any 

combination of calendar days during an 

at-most 14-day period that does not 

include a total of at least two calendar 

days when he or she did not initiate an 

on-duty period within the period (e.g., 

if the employee had no days or only one 

day in which he or she did not initiate 

an on-duty period in the at-most 14-day 

series), must also have two consecutive 

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50386 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

duty period. If an employee initiated an 

on-duty period each day on 6 

consecutive calendar days, had one 

calendar day without initiating an onduty period, and then initiated an onduty period for the next 7 consecutive 

calendar days, finishing the last of these 

on-duty periods on the 14th or 15th 

consecutive calendar day, that employee 

would not have had at least two 

calendar days in the 14-day period in 

which he or she did not initiate an onduty period, and that employee would 

have to have at least two consecutive 

calendar days in which he or she does 

not initiate an on-duty period, before 

the employee could initiate another onduty period. However, if an employee 

initiated an on-duty period for 4 

consecutive calendar days, had a 

calendar day in which he or she did not 

initiate an on-duty period, then initiated 

an on-duty period on 3 consecutive 

calendar days and had another calendar 

day without initiating an on-duty 

period, that employee would have had 

a total of 2 calendar days on which the 

employee did not initiate an on-duty 

period in the 14-day period, ending the 

at-most 14-day period. Because the 

employee has had two calendar days on 

which he or she has not initiated an onduty period in the at-most 14-day 

period, a new period of at-most 14 days 

will begin for that employee when he or 

she next initiates an on-duty period. If 

that same employee, starting on the next 

calendar day, initiated an on-duty 

period for 4 more consecutive calendar 

days, followed by a calendar day in 

which the employee does not initiate an 

on-duty period, the employee has had 

only 1 calendar day without initiating 

an on-duty period in the current at-most 

14-day period, because calendar days 

prior to the start of the 14-day period are 

not counted. 

The new paragraph (a)(3)(ii) addresses 

the time off duty that is required when 

an employee works a Type 2 assignment 

at any point in a series of at most 14 

consecutive calendar days; the 

employee is required to have 24 

consecutive hours of time off duty at the 

employee’s home terminal after any 

sequence of six consecutive calendar 

days each day of which the employee 

initiates an on-duty period including at 

least one Type 2 assignment, regardless 

of when this period of six or more 

consecutive days falls within the larger 

at-most 14-day period. This 24 hours off 

duty under paragraph (a)(3)(ii) must run 

concurrently with the two consecutive 

calendar days of not initiating an onduty period required by paragraph 

(a)(3)(iii) if an employee also has not 

had two calendar days on which he or 

she did not initiate an on-duty period in 

the fully realized series of 14 

consecutive calendar days. In the 

example provided in the comment on 

the NRPM discussed above, an 

employee who initiated an on-duty 

period in Type 1 assignments each day 

for 13 consecutive calendar days, and 

then initiated a Type 2 assignment on 

the 14th day will be required to have 24 

consecutive hours of time off duty 

before initiating an on-duty period again 

(as required by paragraph (a)(3)(ii) 

because the employee has initiated an 

on-duty period for six or more 

consecutive days), as well as not initiate 

an on-duty period for two consecutive 

calendar days before initiating an onduty period again (as required by 

paragraph (a)(3)(iii) because the 

employee has not had two calendar days 

without initiating an on-duty period 

during the 14-day period). To the extent 

that the required rest periods overlap, 

they run concurrently, not 

consecutively. 

Although many train employees 

engaged in commuter or intercity 

passenger service regularly end their 

duty tour at their home terminal, FRA 

recognizes that this will not be the case 

for all employees, and all railroads, 

subject to this subpart. The language of 

paragraph (a)(3)(v) allows the railroad 

the flexibility to get the employee back 

to his or her home terminal, while at the 

same time ensuring that the employee 

will observe the required rest period at 

the home terminal. Note that although 

rest periods of 24 consecutive hours and 

of two consecutive calendar days 

without initiating an on-duty period 

must be at the employee’s home 

terminal, by contrast, a calendar day 

during the at-most 14-day period ‘‘on 

which the employee has not initiated an 

on-duty period’’ under paragraphs 

(a)(3)(i)–(a)(3)(iii) does not have to be at 

the home terminal. 

As was discussed above in Section IV, 

members of the Working Group 

expressed concern about these 

requirements, because the schedule 

analysis done by the Task Force had 

indicated a number of situations in 

which employees who worked 

consecutive days beyond the limitations 

proposed by FRA would not exceed the 

fatigue threshold. However, as also 

stated above, FRA still believed the 

limitations were appropriate, based on 

accepted fatigue science indicating that 

work on successive days increases the 

risk of accidents as the number of 

successive days of work increases, and 

because of the likelihood that an 

employee working an indefinite number 

of consecutive days will eventually 

attend to other activities during time 

that a fatigue model would consider 

available for rest. 

FRA accommodated the concerns of 

Working Group members in revising the 

draft proposed definition of ‘‘Type 2 

assignments’’ as discussed above. In 

addition, the cumulative-fatigue 

provisions of paragraph (a)(3) as they 

apply to employees working only Type 

1 assignments allow employees to work 

two consecutive hold downs (allowing 

the employee to exercise seniority to 

select and work the full cycle of two 

separate 6-day or 7-day schedules for 

which the incumbent employee is on 

vacation or otherwise unavailable), 

before being required to have two 

consecutive days at the employee’s 

home terminal without initiating an onduty period. This flexibility eliminates 

some potential conflict with existing 

operations and agreements. 

At the same time, an employee who 

does not initiate an on-duty period each 

day for the maximum number of 

consecutive days will be able to restart 

the series of 14 consecutive days after 

having accumulated two calendar days 

in which the employee does not initiate 

an on-duty period, as provided in 

paragraph (a)(3)(i). This language 

eliminates a concern that the railroad 

and the employee would have to look 

back each day during any series of 14 

consecutive calendar days and find that 

the employee has had two calendar days 

without initiating an on-duty period 

during each of those previous 14-day 

periods to be in compliance. 

Paragraph (b) of this section describes 

how various periods of time are counted 

for the purpose of determining total 

time on duty. This paragraph is 

substantively identical to the provisions 

for determining time on duty in 49 

U.S.C. 21103(b), which were unchanged 

by the RSIA. Therefore, these provisions 

are currently in effect for train 

employees of commuter and intercity 

passenger railroads, as well as for other 

train employees. FRA recognizes that 

any change in these provisions would 

require significant changes for the 

industry in operations and 

recordkeeping. FRA does not believe 

that there is any reason to change these 

provisions at the present time. 

Paragraph (c) of this section allows a 

train employee to work additional hours 

in emergency situations. This paragraph 

is substantively identical to the 

‘‘emergency’’ provision of 49 U.S.C. 

21103(c), which was unchanged by the 

RSIA. 

As provided by § 228.413, paragraphs 

(a)(1), (a)(2), (b), and (c) are effective on 

and after October 15, 2011. The 

limitations provided by paragraph (a)(3) 

are generally effective beginning on the 

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date that is 180 days after the effective 

date of this final rule, to give railroads 

time to complete their analysis of their 

work schedules. See discussion under 

§ 228.407. A further delayed compliance 

date of 545 days after the effective date 

of this final rule is provided for 

railroads engaged in tourist, scenic, 

historic, or excursion rail passenger 

transportation, as discussed above in 

Section V, Response to Public 

Comments on the NPRM. 

Section 228.407 Analysis of Work 

Schedules; Submissions; FRA Review 

and Approval of Submissions; Fatigue 

Mitigation Plans 

This section requires a railroad 

subject to this subpart to analyze the 

schedules that the railroad intends its 

employees subject to this subpart to 

work, to identify those schedules at risk 

for fatigue violating the fatigue 

threshold, and to report to FRA in 

certain circumstances. 

Paragraph (a) requires the railroads to 

analyze one work cycle, of each 

schedule, using a valid biomathematical 

model of performance and fatigue, to 

determine whether the fatigue risk 

posed by the schedule violates the 

fatigue threshold. A work cycle is the 

cycle within which the schedule 

repeats. For example, if a schedule 

called for an employee to work Monday 

through Friday from 8 a.m. until 4 p.m., 

with Saturday and Sunday off, and then 

report again Monday at 8 a.m., the work 

cycle is the Monday to Sunday schedule 

that then repeats. Other schedules on 

some railroads may operate over a twoweek period, with certain days off 

within the two-week cycle. Some 

schedules do not require analysis, as 

provided by paragraph (g), discussed 

below. 

Based on this analysis, the railroad is 

required to identify those schedules at 

risk for resulting in a level of fatigue 

that would violate the fatigue threshold. 

To the extent possible, the railroad is 

required to apply fatigue mitigation 

tools identified in the railroad’s fatigue 

mitigation plan (including, but not 

limited to, those tools described in 

Section IV above) to mitigate the fatigue 

risk in those schedules to a level that 

does not violate the fatigue threshold. If 

the railroad is unable to mitigate the risk 

for fatigue presented by a particular 

schedule to the point that it no longer 

violates the fatigue threshold, and the 

schedule cannot be modified to reduce 

the fatigue risk sufficiently, then the 

railroad must make a determination that 

the fatigue risk cannot be sufficiently 

mitigated to bring it within the fatigue 

threshold, but that the schedule is 

operationally necessary. Any schedule 

that has been identified as having a risk 

for fatigue that violates the fatigue 

threshold must be reported to FRA 

within 180 days after the effective date 

of the final rule, with an extension to 

545 days after the effective of the final 

rule for tourist, scenic, historic, and 

excursion railroads, as specified by 

§ 228.413. 

Paragraph (b) of this section provides 

further details as to the requirements 

and procedures for submission of 

schedules and other information to FRA 

for review by the applicable compliance 

date. 

A railroad must submit to FRA those 

schedules for which it has mitigated the 

fatigue risk so that it no longer violates 

the fatigue threshold, along with the 

fatigue mitigation tools it applied to 

each particular schedule to reduce the 

fatigue risk. 

A railroad must also submit to FRA 

those schedules for which it is unable 

to mitigate the fatigue risk to a level that 

does not violate the fatigue threshold, 

but which the railroad has determined 

are operationally necessary. A railroad 

must also submit the fatigue mitigation 

tools that the railroad applied to each 

schedule, if any, to reduce its fatigue 

risk even if it could not be reduced to 

the point that it no longer violated the 

fatigue threshold. Finally, a railroad 

must submit the basis for its 

determination that each schedule is 

operationally necessary. 

If a railroad performs the required 

analysis of its schedules and determines 

that none of its schedules presents a risk 

for a level of fatigue that violates the 

fatigue threshold and requires 

transmittal to FRA, the railroad must 

submit a declaration that it has 

performed the required analysis and 

determined that none of its schedules 

violate the fatigue threshold, and 

therefore none are required to be 

submitted. 

FRA will review the submissions, and 

will notify the railroad if the agency 

takes any exception to the submitted 

information within 120 days of FRA’s 

receipt of the submission. Railroads are 

required to correct any deficiencies 

identified within the time frame 

specified by FRA. FRA expects that it 

will work with a railroad to address any 

concerns with the schedules, mitigation 

tools, or determinations of operational 

necessity, and does not intend to dictate 

how a schedule must be modified. 

FRA will also audit each railroad’s 

work schedules and mitigation tools 

every two years to ensure compliance 

with the requirements of this section. 

Paragraph (c) of this section provides 

a railroad’s options with regard to the 

use of a biomathematical model of 

performance and fatigue. Paragraph 

(c)(1) provides that a railroad may 

submit to FRA’s Associate 

Administrator for approval evidence of 

the scientific validation of any 

biomathematical model of performance 

and fatigue that it wishes to use for the 

analysis required by this section. 

Decisions of the Associate 

Administrator regarding the validity of 

a model are subject to review as 

provided by 49 CFR 211.55. 

Paragraph (c)(2) provides that a 

railroad may use a model that has 

already been approved, and further 

provides that FRA has approved the use 

of both the FAST model and the FAID 

model, both of which are discussed in 

Section III above, for the analysis 

required by this section. FRA has added 

language to this paragraph to specify the 

thresholds for FAST and FAID for the 

purposes of compliance with this 

regulation. In addition, the paragraph 

now indicates that versions of FAST 

and FAID besides those specifically 

identified in the paragraph must be 

submitted to FRA for approval prior to 

use, under the procedures provided by 

paragraph (c)(1) for approval of a new 

model. 

Paragraph (c)(3) has also been added 

to this section, to provide that if a new 

model is submitted to FRA for approval, 

pursuant to paragraph (c)(1) of this 

section, FRA will publish notice of the 

submission in the Federal Register, and 

will provide an opportunity for 

comment, before the Associate 

Administrator makes a final 

determination as to its approval or 

disapproval. If the Associate 

Administrator approves a new model as 

having been validated and calibrated, so 

that it can be used for schedule analysis 

in compliance with this regulation, FRA 

will also publish notice of this 

determination in the Federal Register. 

Paragraph (d) of this section requires 

a railroad that changes its schedules to 

analyze certain of those schedules and 

submit them to FRA for approval. 

Paragraph (d)(1)(i) requires a railroad 

to analyze and submit for approval any 

schedule that has been changed such 

that it would differ from the parameters 

of any schedule that had been 

previously analyzed and approved. In 

other words, a railroad does not have to 

submit a revised schedule to FRA if it 

is the same as any of its schedules that 

had been previously approved, or if it is 

a schedule that would not have had to 

be analyzed or submitted if it were an 

original schedule. 

Specifically, if a schedule is revised 

so that it is now the same as another 

schedule that has previously been 

submitted to and approved by FRA, that 

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schedule does not have to be analyzed 

or submitted. A railroad also does not 

have to analyze or submit any schedule 

that, as revised, is wholly within the 

hours of 4 a.m. to 8 p.m. (a Type 1 

schedule, which FRA considers per se 

to present an acceptable level of risk for 

fatigue that does not violate the fatigue 

threshold). A railroad is also not 

required to submit a schedule that, as 

revised, is now the same as another 

schedule that includes time outside the 

4 a.m. to 8 p.m. hours, but that the 

railroad analyzed and found not to 

violate the fatigue threshold, and that 

does not include any time between 

midnight and 4 a.m. (because such a 

schedule would qualify for treatment as 

a Type 1 assignment). 

However, any revised schedule that 

includes time outside the hours of 4 

a.m. to 8 p.m. that is not either the same 

as a schedule previously approved, or 

the same as a schedule previously 

analyzed and found not to violate the 

fatigue threshold and not including any 

time between midnight and 4 a.m., has 

to be analyzed by the railroad. Further, 

a railroad must submit to FRA any 

revised schedules that, when analyzed, 

are found to violate the fatigue 

threshold, along with the fatigue 

mitigation tools that the railroad has 

applied to mitigate the fatigue risk in 

those schedules to a level that does not 

violate the fatigue threshold. In 

addition, if the railroad analyzes a 

revised schedule and finds that it 

cannot be mitigated so that the risk for 

fatigue does not violate the fatigue 

threshold, but is operationally 

necessary, the railroad must submit the 

schedule, along with any fatigue 

mitigation tools that have been applied, 

and the railroad’s determination of the 

operational necessity of the schedule 

and the basis for that determination. 

Paragraph (d)(1)(ii) of this section 

requires a railroad to analyze any 

revised schedule that has been altered to 

an extent that employees working the 

schedule may be at risk of experiencing 

a level of fatigue that violates the fatigue 

threshold. This means that the railroad 

must analyze a schedule that previously 

was not at risk of violating the fatigue 

threshold but that may be at risk as 

revised. If such a revised schedule is in 

fact found to violate the fatigue 

threshold, the fatigue risk must be 

mitigated or the schedule determined to 

be operationally necessary, just as in the 

initial analysis required by paragraph (a) 

of this section. 

In addition, any schedules that were 

previously found to violate the fatigue 

threshold and either mitigated or found 

to be operationally necessary also have 

to be analyzed when those schedules are 

changed, and submitted to FRA for 

approval if the revised schedule violates 

the fatigue threshold. Even though the 

schedule was already known to present 

a fatigue risk, the level of risk presented 

by the schedule as revised could 

increase or decrease, and different 

mitigations may be warranted, or the 

determination of operational necessity 

could be different, depending on the 

level of fatigue risk, as that 

determination is based on balancing the 

necessity with the risk. Therefore, FRA 

review of these revised schedules, along 

with the relevant fatigue mitigation 

tools or determinations of operational 

necessity, is required. 

Paragraph (d)(2) of this section 

requires that revised schedules and 

supporting documentation that are 

required to be submitted to FRA must be 

submitted as provided by paragraph (b) 

of this section, as soon as practicable 

prior to the use of the new schedule. 

Some railroads expressed the concern 

that work schedule changes are 

sometimes not finalized until shortly 

before the schedules are to begin 

operation, and the FRA approval 

process could delay work schedule 

implementation and published 

timetable changes. However, the 

regulatory language does not require 

FRA approval before a new schedule 

may begin operation, just that it be 

submitted as soon as practicable prior to 

use. In addition, given the limited 

nature of the schedules that require FRA 

review, FRA would expect some degree 

of advance planning for those kinds of 

schedules, so that the fatigue 

implications of the revised schedules 

can be fully understood by the railroad, 

as well as by FRA. FRA has added 

paragraph (d)(3) to provide that FRA 

will respond to any submissions of 

revised schedules as soon as practicable, 

depending on the number and 

complexity of the revisions submitted, 

and that railroads are required to correct 

any deficiencies identified by FRA 

within the time frame specified by FRA 

in its response. FRA expects to work 

with the railroad to resolve any 

concerns about schedules, mitigation 

tools and determinations of operational 

necessity, and does not intend to dictate 

how a schedule must be modified. 

In addition, some APTA members 

also expressed concern about 

compliance with the requirements of 

this paragraph for special trains that 

they are sometimes called upon to 

operate. Many special events require 

advance notification and planning. For 

those events of which the railroad does 

not have advance notice, FRA will 

address those situations and work with 

the railroad on a case-by-case basis. 

Paragraph (e) of this section requires 

a railroad to have and comply with a 

written fatigue mitigation plan, to 

mitigate the potential for fatigue in its 

work schedules, identified through the 

analysis required by paragraphs (a) and 

(d) of this section. The railroad is 

required to review the plan every two 

years and update it as necessary. 

Paragraph (f) of this section requires 

a railroad to consult in good faith with 

its directly affected employees and any 

labor organization representing them, on 

the analysis of work schedules, 

selection of mitigation tools, and any 

submissions to FRA required by this 

section. If the railroad and its affected 

employees or their labor organization 

cannot reach consensus on any of those 

items, the employees or labor 

organizations may file a statement with 

FRA’s Associate Administrator, 

explaining their views on any issue on 

which consensus was not reached. Any 

such statements will be considered by 

FRA during the review and approval of 

any submissions required by this 

section. 

Paragraph (g) of this section allows a 

railroad not to analyze certain schedules 

that categorically do not present an 

unacceptable level of risk for fatigue 

that violates the fatigue threshold. FRA 

considers a Type 1 assignment to 

present an acceptable level of risk for 

fatigue that does not violate the fatigue 

threshold. Therefore, such schedules do 

not have to be analyzed according to 

paragraph (g)(1). In addition, FRA also 

considers it acceptable for railroads to 

make an indirect determination that a 

Type 2 assignment presents an 

acceptable level of risk for fatigue that 

does not violate the fatigue threshold if 

it is no longer in duration than, and 

fully contained within, the schedule of 

another Type 2 assignment that has 

already been analyzed and determined 

to present an acceptable level of risk for 

fatigue that does not violate the fatigue 

threshold. As a result, these schedules 

would not require further analysis. The 

daily schedule of such an indirectly 

analyzed assignment must be fully 

contained or ‘‘nested’’ within the same 

daily schedule of the previously 

analyzed assignment. If any mitigations 

were applied to the previously analyzed 

schedule to make this determination, 

the same or more effective mitigations 

must also be applied to the indirectly 

analyzed schedule to ensure that it is at 

least as safe. In other words, FRA will 

accept the results of an analysis 

performed of a schedule with identical 

or greater risk for fatigue that does not 

violate the fatigue threshold. For 

instance, if a tourist railroad operated a 

train from 11 a.m. to 8:30 p.m. with an 

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hour and a half break, and that schedule 

did not pose an unacceptable level of 

risk for fatigue and does not violate the 

fatigue threshold, a similar schedule 

operating from 1 p.m. to 8:30 p.m. 

would also be deemed to present an 

acceptable level of risk for fatigue that 

does not violate the fatigue threshold, 

provided that if any mitigations were 

applied to the first schedule to make 

this determination, the same or more 

effective mitigations were applied to the 

second. FRA believes that this added 

flexibility will allow railroads to make 

determinations of whether schedules are 

acceptable in a more timely and costeffective manner. 

Section 228.409 Requirements for 

Railroad-Provided Employee Sleeping 

Quarters During Interim Releases and 

Other Periods Available for Rest Within 

a Duty Tour 

This section provides that any rest 

facilities provided by a railroad for the 

use of its employees during periods of 

interim release or other periods during 

a duty tour must be ‘‘clean, safe, and 

sanitary,’’ and give the employee ‘‘an 

opportunity for rest free from the 

interruptions caused by noise under the 

control of the’’ railroad. This section is 

consistent with statutory language for 

sleeping quarters at 49 U.S.C. 21106, 

including sleeping quarters provided for 

the use of employees during the 

required minimum off-duty period. 

Paragraph (b) of this section provides 

that if the facilities are proposed as a 

fatigue mitigation tool, for the purpose 

of mitigating fatigue identified by the 

schedule analysis required by § 228.407, 

then those facilities are subject to the 

requirement in § 228.407(f), that the 

railroad consult with affected 

employees and labor organizations. 

Section 228.411 Training 

This section establishes training 

requirements for this rule. FRA believes 

this provision is especially important 

because the schedule analysis and 

fatigue mitigation required by other 

sections of this rule have little meaning 

if employees are not aware of the level 

of fatigue predicted to occur as a result 

of their work schedule, and the 

mitigation tools available to the 

employee to reduce the fatigue risk. For 

example, suppose that a railroad 

submits a schedule to FRA for approval 

that violates the fatigue threshold, but as 

a mitigation tool, the railroad indicates 

that it will provide facilities and allow 

employees working that schedule to 

take a nap during a two-hour break 

between scheduled trains, and that the 

insertion of a nap at that point decreases 

the fatigue level so that the threshold is 

no longer violated. If the employee 

working that schedule does not realize 

that his or her work schedule violates 

the fatigue threshold (which is a level of 

fatigue at which, according to the 

model, safety may be compromised), or 

is unaware of facilities and policies 

allowing the employee to take a nap, or 

is unaware of the beneficial effect of the 

nap on the predicted fatigue level, then 

the employee will not take advantage of 

the mitigation tool purported to reduce 

the fatigue risk in that schedule, and the 

risk will not actually be reduced. 

Employees who are not currently 

working assignments that violate the 

fatigue threshold will also benefit from 

the training required by this section, as 

it may raise awareness of, and provide 

strategies for addressing, other 

circumstances in their lives that 

contribute to their actual level of fatigue 

that are not accounted for in work 

schedule analysis. The training 

requirements in this rule were the 

subject of extensive discussion within 

the Working Group, and members of the 

Working Group recommended the 

content of training, as well as the 

training interval. 

Paragraph (a) of this section requires, 

as a general rule, that railroads subject 

to this subpart provide training to 

employees subject to this subpart and 

their immediate supervisors. Paragraph 

(b) of this section lists the minimum 

subjects that must be covered in 

training, based on the most current 

available scientific and medical research 

and literature. Although the subjects to 

be covered are quite broad, the specific 

information to be covered may change 

over time based on scientific 

developments or changes in a railroad’s 

operations that may make additional 

topics appropriate. The format of the 

required training is not prescribed, as 

FRA specifically intends to allow each 

railroad the flexibility to provide 

training at a level of formality and 

complexity that is appropriate to its 

operations and the needs of its 

employees. Options include, but are not 

limited to, classroom training, 

computer-based training, review of 

written materials, and oral job briefings. 

Railroads may also combine this 

training with other training provided to 

their employees. 

Paragraph (c) of this section requires 

that training be provided to existing 

affected employees no later than 

December 31, 2012. Based on comments 

received, this is a change from the 

NPRM, which had proposed to require 

training as soon as practicable. The 

revised deadline for initial training 

provides greater certainty, and allows 

railroads to schedule the training in 

their normal cycle. Training is required 

to be provided to new employees hired 

after December 31, 2012, before they 

first work a schedule for the railroad 

that is subject to analysis under this 

subpart. Although the NPRM had 

proposed to require that new employees 

receive training within 90 days after 

they work a schedule subject to 

analysis, the provision has been revised 

in the final rule to be consistent with 

the latest version of FRA’s forthcoming 

training standards (a separate 

rulemaking), as members of the Working 

Group requested that the interval in this 

rule be consistent with the training 

standards. 

Paragraph (d) of this section requires 

refresher training at least every three 

years, and when significant changes are 

made to the railroad’s fatigue mitigation 

plan or to the available fatigue 

mitigation tools applied to an 

employee’s assignment or to 

assignments at the location where the 

employee works. Railroads also have the 

flexibility to select an appropriate 

method of providing refresher training, 

which will likely be less detailed, and 

could also be less formal, than the 

initial training provided to an employee, 

depending on the extent of any new 

information to be presented. 

Paragraph (e) of this section requires 

a railroad to keep records of each 

employee provided training and to 

retain these records for three years. 

Paragraph (f) of this section provides 

an opportunity for tourist, scenic, 

historic, and excursion railroads to be 

excluded from the duty to comply with 

this section. The exclusion is available 

to such a railroad if its train employees 

subject to this rule are assigned to work 

only schedules that are wholly between 

the hours of 4 a.m. and 8 p.m. on the 

same calendar day, and that comply 

with the provisions of § 228.405, if the 

railroad provides written notice to FRA. 

Such a notice is required to help FRA 

ensure that the exclusion is exercised 

only by those railroads eligible for it in 

fact and not by inadvertence. FRA 

expects that most tourist, scenic, 

historic and excursion railroads will 

have schedules that do not violate the 

fatigue threshold and do not have to be 

mitigated, and that these railroads will 

submit a declaration of such to FRA 

pursuant to § 228.407(b)(2). 

Unfortunately, that declaration does not 

serve the same purpose as a declaration 

under this paragraph, because the 

former could include schedules having 

time outside the hours of 4 a.m. and 8 

p.m. that have been analyzed and do not 

violate the fatigue threshold. Railroads 

operating schedules outside those hours 

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are not eligible for the conditional 

exclusion provided by this paragraph. 

Section 228.413 Compliance Date for 

Regulations; Exemption From 

Compliance With Statute. 

This section provides, that, in general, 

the railroads subject to this subpart 

must comply with this subpart and 

associated recordkeeping requirements, 

with respect to their train employees 

who are engaged in commuter or 

intercity rail passenger transportation, 

beginning April 12, 2012. However, 

some provisions governing the hours of 

service of these employees go into effect 

for all railroads subject to this subpart 

on October 15, 2011, specifically 

§§ 228.401, 228.403, 228.405(a)(1)–(2), 

(b), and (c), and 228.409 (a). 

As an exception to this general 

principle, all railroads providing tourist, 

scenic, historic, or excursion rail 

passenger transportation subject to this 

subpart are not required to comply with 

the provisions of the subpart with 

which they would otherwise be required 

to comply on and after April 12, 2012 

until April 13, 2013. As was discussed 

in Section V, Response to Public 

Comments on the NRPM, FRA has 

added this approximately one-year 

delay of the compliance date to address 

the concerns of a commenter. 

This section also provides that 

railroads subject to this subpart are 

exempt from complying with the 

statutory hours of service requirements 

currently in effect for them, which are 

the requirements of 49 U.S.C. 21103 as 

it was in effect the day before the 

enactment of the RSIA, and are also 

exempt from complying with new 

section 21103, which is 49 U.S.C. 21103 

as it was amended by the RSIA effective 

July 16, 2009. See 49 U.S.C. 21102(c). 

VII. Regulatory Impact and Notices 

A. Executive Orders 12866 and 13563 

and DOT Regulatory Policies and 

Procedures 

This rule has been evaluated in 

accordance with existing policies and 

procedures under Executive Orders 

12866 and 13563 as well as DOT 

policies and procedures. The economic 

impacts of the rule are well under $100 

million. FRA has prepared and placed 

in the docket a regulatory impact 

analysis (RIA) addressing the economic 

impact of this rule over a 20-year 

period. This section summarizes the 

impacts of the rule. 

This regulation is intended to 

promote safe railroad operations by 

limiting the hours of service for 

passenger railroad train employees, and 

ensuring that they receive adequate 

opportunities for rest in the course of 

performing their duties. The main goal 

of this rulemaking is to identify and 

reduce fatigue for passenger train 

employees. 

FRA is establishing substantive hours 

of service regulations, including 

maximum on-duty periods, minimum 

off-duty periods, and other 

requirements, for train employees of 

passenger railroads. The regulations 

require that passenger railroads analyze 

and mitigate the risks for fatigue in the 

schedules worked by their train 

employees, and that the railroads 

submit to FRA the relevant schedules 

and fatigue mitigation plans for 

approval. The RSIA established a limit 

of 276 hours each calendar month for 

train employees on service performed 

for a railroad, and a limit of 30 hours on 

time spent in or waiting for deadhead 

transportation to a point of final release; 

increased the quantity of the statutory 

minimum off-duty period after being on 

duty for 12 hours in broken service from 

8 hours of rest to 10 hours of rest; 

prohibited communication with train or 

signal employees during certain 

minimum statutory rest periods; and 

established mandatory time off duty for 

train employees of 48 hours after 

initiating an on-duty period on 6 

consecutive days, or 72 hours after 

initiating an on-duty period on 7 

consecutive days. In absence of a final 

rule effective before October 16, 2011, 

passenger railroad train employees 

would be subject to the more stringent 

freight hours of service laws described 

above. Until then, passenger railroads 

will continue to operate under the hours 

of service laws in effect in effect prior 

to the enactment of the RSIA. Thus, 

issuance of this regulation relieves 

railroads covered by this rule from 

becoming covered by the stricter 

statutory hours of service laws 

governing freight railroads and their 

train crews. 

The RSIA mandated that in issuing 

regulations FRA ‘‘consider scientific 

and medical research related to fatigue 

and fatigue abatement, railroad 

scheduling and operating practices that 

improve safety and reduce employee 

fatigue, a railroad’s use of new or novel 

technology intended to reduce or 

eliminate human error, the variations in 

freight and passenger railroad 

scheduling practices and operating 

conditions, the variations in duties and 

operating conditions for employees, a 

railroad’s required or voluntary use of 

fatigue management plans * * *, and 

any other relevant factors.’’ 49 U.S.C. 

21109(c). FRA adhered to this mandate. 

In addition, FRA relied on its RSAC to 

make recommendations with respect to 

this rulemaking and this rule reflects the 

recommendations of this committee. 

FRA has analyzed the economic 

impacts of this rule against a ‘‘no 

regulatory action’’ baseline that reflects 

what would happen in absence of this 

rulemaking (i.e., the freight hours of 

service laws are applied to passenger 

railroads) as well as a ‘‘status quo’’ 

baseline that reflects present conditions 

(i.e., primarily, the statutory hours of 

service provisions (specifically, old 

section 21103 and, secondarily, the 

applicable hours of service 

recordkeeping and reporting 

regulations) that have and will continue 

to apply to passenger railroads until 

they become subject to either the freight 

hours of service laws on October 16, 

2011 or this rule prior to that). With 

respect to the ‘‘no regulatory action’’ 

baseline, this rule represents a 

substantially more cost-effective 

alternative for achieving the goal of 

identifying and mitigating unacceptable 

fatigue risk levels and thus ensuring the 

safety of passenger train operations. 

Over the 20-year period analyzed, the 

undiscounted costs associated with the 

‘‘no regulatory action’’ alternative total 

$75.5 million compared to $2.1 million 

for the FRA proposal. Similarly, when 

discounted at 7 percent, the costs 

associated with the ‘‘no regulatory 

action’’ alternative total $59.0 million 

compared to $1.3 million for this rule 

and when discounted at 3 percent, the 

costs associated with the ‘‘no regulatory 

action’’ alternative total $66.8 million 

compared to $1.6 million for this rule. 

The quantified accident reduction 

benefits achieved under both the ‘‘no 

regulatory action’’ baseline and this rule 

total $1.2 million (undiscounted), $0.6 

million (PV, 7 percent), and $0.9 million 

(PV, 3 percent). FRA does not expect 

that the overall number of casualties 

and property damages prevented will 

differ under either scenario. 

Implementation of this rule would yield 

these benefits at lower cost. However, 

there are significant additional potential 

safety enhancement benefits that may 

result from the FRA approach. FRA 

believes that the safety of passenger 

train operations will be enhanced under 

this rule as a result of subjecting every 

crew assignment to a biomathematical 

analysis either via the analyses 

conducted while developing the RSAC 

recommendation or the analyses that 

will be performed by railroads in the 

years ahead. The information that 

railroads will have as a result of this 

rule regarding fatigue, its causes and 

symptoms, and its impact on safety will 

allow them to make crew assignments 

that take this into consideration and 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50391 

minimize fatigue beyond the 

requirements of this rule. FRA is 

confident that, overall, fatigue 

awareness training will result in a 

stronger safety culture that will extend 

beyond railroad operations, which is a 

benefit that extends beyond what would 

result under the freight hours of service 

law. For instance, safety and health 

benefits will accrue from the transfer of 

knowledge to employees, their families, 

friends and others with whom they may 

share the fatigue knowledge that they 

acquire from the required fatigue 

awareness training programs. This 

fatigue awareness will result in more 

optimal decisions regarding rest and 

sleep, leading to less fatigue and 

improved safety outside of passenger 

train operations during the course of 

daily activities that may include the 

operation of motor vehicles or other 

heavy machinery. This fatigue 

awareness will also result in proper 

identification and treatment, if 

necessary, of fatigue symptoms. 

With respect to the ‘‘status-quo’’ 

baseline, this rule would impose costs 

that are higher than the safety benefits 

that were quantified. Costs compared to 

the ‘‘status quo’’ baseline total $2.1 

million (undiscounted), $1.3 million 

(PV, 7 percent), and $1.6 million (PV, 3 

percent). Quantified benefits compared 

to the ‘‘status quo’’ baseline total $1.2 

million (undiscounted), $0.6 million 

(PV, 7 percent), and $0.9 million (PV, 3 

percent). However, there are additional 

benefits that have not been quantified, 

but should be considered when 

comparing the overall costs and 

benefits. For instance, as noted above, 

FRA believes that the safety of 

passenger train operations will be 

enhanced under this rule as a result of 

subjecting every crew assignment to a 

biomathematical analysis either via the 

analyses conducted while developing 

the RSAC recommendation or the 

analyses that will be performed by 

railroads in the years ahead. The 

information that railroads will have as 

a result of this rule regarding fatigue, its 

causes and symptoms, and its impact on 

safety will allow them to make crew 

assignments that take this into 

consideration and minimize fatigue 

beyond the requirements of this rule. 

FRA is confident that, overall, fatigue 

awareness training will result in a 

stronger safety culture that will extend 

beyond railroad operations from the 

transfer of knowledge to employees, 

their families, friends and others with 

whom they may share the fatigue 

knowledge that they acquire from the 

required fatigue awareness training 

programs. This fatigue awareness will 

result in more optimal decisions 

regarding rest and sleep, leading to less 

fatigue and improved safety outside of 

passenger train operations during the 

course of daily activities that may 

include the operation of motor vehicles 

or other heavy machinery. This fatigue 

awareness will also result in proper 

identification and treatment, if 

necessary, of fatigue symptoms. 

Separately, accident avoidance will 

result in fewer unplanned delays to 

passengers and freight commodities 

impacted by passenger train accident 

and incidents that result in blocking one 

or more tracks for prolonged periods. 

These costs can be very substantial 

given the need to investigate accidents 

and often clear wreckage. Finally, there 

is the non-quantified benefit of ensuring 

that passenger railroads do not 

unknowingly require train employees to 

work schedules with unacceptable highfatigue risk levels. It is not unreasonable 

to expect that the unquantified benefits 

will raise the benefits to a level quite 

comparable to the costs. 

FRA notes that, in addition to the 

quantified safety benefits that would 

result from the rule, there are additional 

unquantified benefits which may result 

from the implementation of the rule, as 

discussed above. FRA expects these 

unquantified benefits to prevent several 

serious injuries, which may or may not 

be related to the operation of trains, over 

the next twenty years; when these 

benefits are combined with the 

quantified safety benefits, the benefits 

are comparable to the quantified costs of 

the rule. 

The table below presents the costs 

associated with both the ‘‘no regulatory 

action’’ alternative and this regulation. 

Cost description 

No regulatory action alternative FRA final rule 

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

New Engineer Training, Initial (20% 

New Hires).

$31,237,549 $26,299,825 $28,705,081 0 ................................... 0 ............................... 0. 

New Engineer Training, Refresher 

(20% New Hires).

$4,599,050 $2,278,431 $3,327,802 0 ................................... 0 ............................... 0. 

New Conductor Training, Initial (20% 

New Hires).

$30,847,974 $25,942,971 $28,330,908 0 ................................... 0 ............................... 0. 

New Conductor Training, Refresher 

(20% New Hires).

$8,636,745 $4,278,146 $6,249,071.15 0 ................................... 0 ............................... 0. 

Work Schedule Analysis (No-Reg Action)/Initial Analysis of Work Schedules + Follow-up Analysis and Fatigue Mitigation Plan Review.$189,723 $177,312 $184,198 ($126,482 + $240,316) 

= $366,799.

($118,208 + 

$122,175) = 

$240,382.

($122,798 + 

$175,894) = 

$298,692. 

Indirect Determination that Type 2 

Schedules are Acceptable 

(‘‘Nested’’ Schedules Reduction.

...................... ...................... .............................. ¥$91,700 ..................... ¥$60,096 ................. ¥$74,673. 

Biomathematical Model of Fatigue 

Software.

0 0 0 $417,500 ...................... $268,723 .................. $337,240. 

Use of Rest Facilities ......................... 0 0 0 $30,988 ........................ $28,961 .................... $30,086. 

Fatigue Training ................................. 0 0 0 $1,312,920 ................... $782,634 .................. $1,025,158. 

Fatigue Training (Tourist & Excursion) 0 0 0 $20,000 ........................ $12,000 .................... $16,000. 

Total (rounded) ............................ $75,511,041 $58,976,685 $66,797,059 $2,056,507 ................... $1,272,605 ............... $1,632,502. 

FRA estimates that the recordkeeping 

and reporting costs per employee record 

under the no-action alternative and this 

rule will be practically the same. Under 

the ‘‘no regulatory action’’ alternative, 

costs for recordkeeping and reporting 

employee hours of service are reflected 

in the New Engineer and New 

Conductor training requirements and 

the Work Schedule Analysis burden. 

Under this rule, the costs associated 

with the recordkeeping and reporting 

requirements for the substantive hours 

of service changes are reflected in 

Fatigue Training as well as the Initial 

and Follow-up Analysis and Fatigue 

Mitigation Plan Review. 

The estimated benefits of the rule 

relative to the ‘‘status quo’’ baseline, 

based on the above calculations of 

potentially prevented accident damages, 

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50392 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

injuries, and fatalities, over a 20-year 

period of analysis are presented below. 

INTERCITY PASSENGER, COMMUTER, TOURIST AND EXCURSION RAILROADS

[All track types] 

Accident reduction benefits 

VSL = $6 M 

undiscounted 

benefits 

VSL = $6 M 

discounted 

PV@ 7% 

VSL = $6 M 

discounted 

PV@ 3% 

Property Damage ......................................................................................................................... $685,915 $348,713 $502,039 

Injuries ......................................................................................................................................... 94,861 48,227 69,431 

Fatalities ....................................................................................................................................... 407,634 207,237 298,358 

Total (rounded) ..................................................................................................................... 1,188,410 604,177 869,828 

FRA does not expect that the overall 

number of casualties prevented will 

differ under this rule or the ‘‘no 

regulatory action’’ baseline in which the 

freight hours of service law would apply 

to passenger train crews. 

After careful consideration of 

comments received in response to the 

NPRM, FRA has made modifications to 

its proposal in the final rule that reduce 

the overall burden by approximately 

$100,000 due in equal part to 

flexibilities added by extending the 

deadline for fatigue awareness training 

and the expanded ability to rely on the 

findings of analyses conducted for other 

assignments. Nevertheless, since this 

would not greatly impact the overall 

conclusions, FRA has not adjusted its 

quantified cost and benefit estimates for 

use in this final rule. 

B. Executive Order 13132 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255 (Aug. 10, 1999)), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This rule would not have 

substantial effect on the States or their 

political subdivisions; it would not 

impose any compliance costs; and it 

would not affect the relationships 

between the Federal government and 

the States or their political subdivisions, 

or the distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

Nevertheless, State and local officials 

were involved in developing this rule. 

The RSAC, which was used to assist in 

the development of this rule, has as 

permanent members, the AASHTO and 

the ASRSM. 

However, this rule could have 

preemptive effect by operation of law 

under a provision of the former Federal 

Railroad Safety Act of 1970 (FRSA) (49 

U.S.C. 20106 (Section 20106)) and the 

HSL. See Public Law 103–272 (1994) 

repealing the Federal Railroad Safety 

Act of 1970 and the HSL and revising 

and enacting their provisions as positive 

law in title 49 U.S. Code. The FRSA 

provides that States may not adopt or 

continue in effect any law, regulation, or 

order related to railroad safety or 

security that covers the subject matter of 

a regulation prescribed or order issued 

by the Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘essentially 

local safety or security hazard’’ 

exception to Section 20106. Moreover, 

the HSL have been interpreted by the 

Supreme Court as totally preempting the 

field of the hours of labor of railroad 

employees. Erie RR. Co. v. New York, 

233 U.S. 671 (1914). 

C. Executive Order 13175 

FRA analyzed this rule in accordance 

with the principles and criteria 

contained in Executive Order 13175 

(‘‘Consultation and Coordination with 

Indian Tribal Governments’’). Because 

this rule does not significantly or 

uniquely affect tribes and does not 

impose substantial and direct 

compliance costs on Indian tribal 

governments, the funding and 

consultation requirements of Executive 

Order 13175 do not apply, and a tribal 

summary impact statement is not 

required. 

D. Regulatory Flexibility Act and 

Executive Order 13272 

To ensure that the potential impact of 

this rulemaking on small entities is 

properly considered, FRA developed 

this rule in accordance with Executive 

Order 13272 (‘‘Proper Consideration of 

Small Entities in Agency Rulemaking’’) 

and DOT’s policies and procedures to 

promote compliance with the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). 

The Regulatory Flexibility Act 

requires an agency to review regulations 

to assess their impact on small entities. 

An agency must conduct a regulatory 

flexibility analysis unless it determines 

and certifies that a rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities. 

As discussed in earlier sections of this 

preamble, FRA is establishing hours of 

service regulations, including maximum 

on-duty periods, minimum off-duty 

periods, and other requirements, for 

train employees providing commuter 

and intercity rail passenger 

transportation. The regulations require 

that commuter and intercity passenger 

railroads analyze and mitigate the risks 

for fatigue in the schedules worked by 

their train employees, and that the 

railroads submit to FRA for its approval 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50393 

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

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

See also NAICS Codes 482111 and 482112. 

40See 68 FR 24891 (May 9, 2003); 49 CFR part 

209, app. C. 

41For further information on the calculation of 

the specific dollar limit, please see 49 CFR part 

1201. 

the relevant schedules and fatigue 

mitigation plans. This rule also applies 

to train employees of tourist, scenic, 

excursion, and historic railroads (tourist 

and excursion railroads) as well. 

Issuance of these regulations relieves 

railroads covered by this rule from being 

covered by the more strict hours of 

service laws governing freight train 

crews. 

This regulation is authorized by 

Section 108(e) of the RSIA (49 U.S.C. 

21109(b)) and is intended to promote 

safe railroad operations by limiting the 

hours of service for passenger railroad 

train employees and ensuring that they 

receive adequate opportunities for rest 

in the course of performing their duties. 

The main goal of this rulemaking is to 

identify and reduce fatigue for the 

employees covered by the final rule. As 

described in Section II of this preamble, 

FRA has based the regulation on 

scientific research related to fatigue and 

fatigue abatement, as applied to railroad 

scheduling practices and operating 

conditions for train employees of 

commuter and intercity passenger 

railroads. FRA is also making 

conforming changes to existing hours of 

service recordkeeping requirements. 

Federal laws governing railroad 

employees’ hours of service date back to 

1907 with the enactment of the Hours of 

Service Act. Railroads have been subject 

to the provisions of this Act or successor 

Federal hours of service laws since it 

was first enacted. Currently, railroads 

are subject to the version of 49 U.S.C. 

21103 that was in effect the day before 

the enactment of the RSIA, with respect 

to their train employees who are 

engaged in intercity or commuter rail 

transportation, including tourist and 

excursion rail operations. 

In the NPRM, FRA certified that its 

proposal would result in ‘‘no significant 

economic impact on a substantial 

number of small entities.’’ FRA received 

one response to the NPRM from a small 

entity directly impacted by its proposal. 

Strasburg expressed concern regarding a 

‘‘Dinner Train’’ schedule operated by 

one of its train crews with an 

assignment from 11 a.m. to 8:30 p.m., 

including a 1.5-hour break. Strasburg 

notes that it ‘‘believes that the analysis 

required to determine the tranquil 

nature of these assignments is rooted in 

common sense and should not require 

yet an additional regulatory expense of 

human performance modeling.’’ 

Strasburg further states that it therefore 

‘‘believes that it should be exempt from 

§ 228.407 work schedule analysis and 

that its dinner train assignments should 

be specifically exempted from the 

§ 228.5 [sic] Definitions of a Type 2 

assignment.’’ For purposes of assessing 

the impacts of this final rule on this 

schedule, FRA analyzed this assignment 

using the FAST model and found that 

this Type 2 assignment could be 

considered a Type 1 assignment and not 

require any adjustment or mitigation. In 

fact, based on this analysis, other 

identical or shorter assignments ending 

at 8:30 p.m. could also be considered 

Type 1 assignments and not require any 

adjustment or mitigation. 

To alleviate the impact on small 

railroads in general, FRA is also 

extending the effective date of the final 

rule for all tourist, scenic, historic, and 

excursion railroads by one year relative 

to other intercity and passenger 

railroads. This should allow such 

railroads more time to perform any 

necessary analysis of assignments and 

in some cases to take advantage of any 

analyses that will have already been 

performed by larger railroads, to the 

extent that these are available. This 

additional time will also allow small 

railroads to implement any assignment 

adjustments or other mitigating 

measures. In addition, FRA is providing 

an opportunity for tourist, scenic, 

historic, and excursion railroads to be 

excluded from the training provisions of 

this rule. The exclusion is available to 

such railroads if their train employees 

subject to this rule only work schedules 

wholly between the hours of 4 a.m. and 

8 p.m. and they provide written notice 

to FRA. This exclusion should further 

reduce the burden on small railroads. 

FRA is certifying that this rule will 

result in ‘‘no significant economic 

impact on a substantial number of small 

entities.’’ The following section explains 

the reasons for this certification. 

1. Description of Regulated Entities and 

Impacts 

The ‘‘universe’’ of the entities under 

consideration includes only those small 

entities that can reasonably be expected 

to be directly affected by the provisions 

of this rule. In this case, the ‘‘universe’’ 

comprises Class III freight railroads that 

provide train crews for commuter 

operations and tourist, scenic, historic 

and excursion railroads. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 (Section 601). Section 601(3) 

defines a ‘‘small entity’’ as having the 

same meaning as ‘‘small business 

concern’’ under Section 3 of the Small 

Business Act. This includes any small 

business concern that is independently 

owned and operated, and is not 

dominant in its field of operation. 

Section 601(4), likewise includes within 

the definition of ‘‘small entities’’ notfor-profit enterprises that are 

independently owned and operated, and 

are not dominant in their fields of 

operation. Additionally, Section 601(5) 

defines as ‘‘small entities’’ governments 

of cities, counties, towns, townships, 

villages, school districts, or special 

districts with populations less than 

50,000. 

The U.S. Small Business 

Administration (SBA) stipulates ‘‘size 

standards’’ for small entities. It provides 

that the largest a for-profit railroad 

business firm may be and still classify 

as a ‘‘small entity’’ is 1,500 employees 

for ‘‘Line-Haul Operating’’ railroads, 

and 500 employees for ‘‘Short-Line 

Operating’’ railroads.39

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to the authority provided to it 

by SBA, FRA has published a final 

policy that formally establishes small 

entities as railroads that meet the line 

haulage revenue requirements of a Class 

III railroad.40 Currently, the revenue 

requirement is $20 million or less in 

annual operating revenue, adjusted 

annually for inflation ($30.3 million for 

2009). This threshold is based on the 

Surface Transportation Board’s (STB) 

threshold of a Class III railroad carrier, 

which is adjusted by applying the 

railroad revenue deflator adjustment.41

FRA is using the STB’s threshold in its 

definition of ‘‘small entities’’ for this 

rule. 

This regulation applies to railroads 

with respect to their train employees 

engaged in commuter or intercity rail 

passenger transportation as well as train 

employees of tourist and excursion 

railroads. Intercity passenger railroads 

include Amtrak and the Alaska 

Railroad, both of which employ their 

own train crews and neither of which is 

considered a small entity. Amtrak is a 

Class I railroad, and the Alaska Railroad 

is a Class II railroad. The Alaska 

Railroad is owned by the State of 

Alaska, which has a population well in 

excess of 50,000. 

All commuter railroads in operation 

in the U.S. serve major metropolitan 

areas with populations higher than 

50,000. Although some commuter 

railroads contract with Amtrak or other 

entities to operate some or all of their 

trains, most employ their own train 

crews. 

Train employees of only two small 

entities that operate trains under 

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50394 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

contract for commuter railroads would 

be covered by this rule, and they are not 

expected to be impacted significantly. 

One of these Class III freight railroads 

with commuter rail train crew schedules 

will likely modify its schedule by a few 

minutes each day so that all of its 

schedules will be considered Type 1 

assignments as defined by this rule and 

thus be determined not to violate the 

fatigue threshold, thus excluding the 

railroad from the requirement to analyze 

those work schedules. Their current 

train crew assignments would be 

allowed to continue with a less than 5 

minute change. The other Class III 

freight railroad with commuter train 

crew schedules would have to evaluate 

one or two schedules directly using a 

biomathematical model or indirectly by 

relying on the determination from 

another railroad that the same schedule, 

or a schedule within which it can nest, 

does not violate the fatigue threshold. 

Given the small size of the commuter 

operation, the burden of analysis and 

training would be small in absolute 

magnitude and in proportion to the size 

of their operation. Although this rule 

imposes some additional recordkeeping 

burden on these entities for tracking 

days of consecutive service, the increase 

would be nominal and proportionate to 

the extent of their passenger train 

service, which is quite limited. These 

train crews are also subject to initial and 

refresher training no less frequently 

than every three years. This training 

must cover the following topics: (1) 

Physiological and human factors that 

affect fatigue, as well as strategies to 

reduce or mitigate the effects of fatigue; 

(2) opportunities for identification, 

diagnosis, and treatment of any medical 

condition that may affect alertness or 

fatigue, including sleep disorders; (3) 

alertness strategies, such as policies on 

napping, to address acute drowsiness 

and fatigue while an employee is on 

duty; (4) opportunities to obtain restful 

sleep at lodging facilities, including 

employee sleeping quarters provided by 

the railroad; and (5) the effects of abrupt 

changes in rest cycles for employees. 

There is flexibility with respect to how 

the training is delivered (e.g., computerbased training, job briefings, pamphlets, 

as well as in class instruction). Such 

training could be accomplished in about 

one hour initially and 15 minutes 

triennially per train employee. Small 

freight railroads operating commuter 

trains could recoup any costs associated 

with this rulemaking from the 

commuter authorities with which they 

contract. 

The requirements of this rule that 

apply to tourist and excursion railroads 

are those contained in subpart F, 

Substantive Hours of Service 

Requirements for Train Employees 

Engaged in Commuter or Intercity Rail 

Passenger Transportation, as well as the 

conforming changes to the 

recordkeeping requirements in subpart 

B. These railroads benefit from a 

delayed compliance date for the 

portions of this rule requiring the 

analysis of schedules and associated 

recordkeeping requirements. FRA 

regulates approximately 140 tourist and 

excursion railroads nationwide. 

Approximately 130 of these railroads 

have 15 or fewer covered employees and 

thus are eligible to be considered for 

exemption from the limitations that 

would be imposed under § 228.403. As 

noted earlier, this particular exemption 

is substantively identical to the 

exemption provision of the HSL at 49 

U.S.C. 21102(b), which was unchanged 

by the RSIA, and § 228.403 provides the 

same opportunity for a railroad to seek 

an exemption from the requirements of 

this subpart as a railroad has to seek an 

exemption from the statutory 

requirements applicable to its other 

employees. Additionally, tourist, scenic, 

historic, and excursion railroads, 

regardless of size, may be excluded from 

the requirement to provide training, so 

long as their schedules are wholly 

within the hours of 4 a.m. and 8 p.m. 

Tourist, scenic, historic, and 

excursion railroads by virtue of their 

train service schedules generally have 

only Type 1 assignments, which 

categorically do not violate the fatigue 

threshold, thus excluding the railroads 

from the requirement to analyze or 

mitigate most of their schedules. 

Scheduled assignments that include 

‘‘Dinner Train’’ operations may be the 

only schedules impacted by the 

requirement for analysis or mitigation. 

Information available regarding train 

schedules for these railroads indicates 

that trains do not operate for more than 

12 hours on any day, with virtually all 

train service starting at 10 a.m. or 

afterward. Dinner trains operate until no 

later than 10 p.m. and are not in 

operation every day of the week. They 

generally operate once a week and in no 

case more than three days a week. Thus 

the impact of crew assignment 

limitations would be minimal. Impacted 

railroads are likely to be able to rely on 

the analysis of another railroad due to 

the delayed compliance date for tourist, 

scenic, historic, and excursion railroads, 

as many of their schedules will either be 

the same as those analyzed by another 

railroad, or will nest within a longer 

schedule analyzed by another railroad. 

In the rare instances where new analysis 

is required, the railroads may conduct 

the analysis in-house or contract it out 

for a nominal fee. Given the similarity 

of the assignments, the tourist, scenic, 

historic, and excursion railroads 

impacted may decide to address the 

assignments that include ‘‘Dinner 

Trains’’ jointly, either under the 

auspices of the Tourist Railway 

Association, Inc. or otherwise. The 

consecutive-day limitations will likely 

not impact these railroads since they 

already accommodate time off for their 

train crews. Given the very limited train 

service and the need to accommodate 

time off now, crew schedules should 

allow for the proposed time off allowing 

the consecutive days of service 

requirements to be met. Since ‘‘Dinner 

Trains’’ are not included in most 

assignments, the majority of current 

scheduled train crew assignments 

would run no later than 6:30 p.m. and 

thus be considered Type 1 assignments 

and be unaffected, assuming the 

consecutive-day limitations do not 

affect them. Although the modifications 

to existing recordkeeping requirements 

will impose some additional net burden 

on these entities, the increase is 

nominal and proportionate to the size of 

their passenger service, which is quite 

limited. Where these entities are not 

able to take advantage of the exclusion 

from the training requirements due to 

the operation of trains past 8 p.m., they 

will be required to train their employees 

as discussed above. The impact of the 

training requirements will vary in 

proportion to the size of each operation. 

Note, however, that the training cost 

associated with this rule is lower than 

that associated with complying with the 

training requirements for the freight 

hours of service laws. 

The limitations on service afford 

significantly more flexibility to 

passenger train employees than those 

imposed by the RSIA on freight train 

employees. Given that, in absence of a 

final rule effective by October 16, 2011, 

passenger train employees would be 

subject to the more stringent freight 

hours of service laws (49 U.S.C. 21103), 

issuance of this rule creates a cost 

savings for small entities impacted. In 

addition, the more stringent 

requirements for schedules of 

employees who operate trains during 

the late night hours, in which the 

fatigue risk is greatest, probably do not 

affect any tourist and excursion 

railroads because they do not operate 

during late night hours. 

No shippers, contractors, or small 

governmental jurisdictions will be 

directly impacted by this proposal. 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50395 

42The burden associated with this requirement 

occurs outside the scope of this information 

collection submission. This burden will occur in 

the fourth year following the effective date in the 

Continued 

2. Certification 

Pursuant to the Regulatory Flexibility 

Act, 5 U.S.C. 605(b), the FRA 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

E. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501 et seq. The sections that 

contain the current information 

collection requirements, which affect 

both passenger and freight railroads, 

and new information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

49 CFR section or statutory provision Respondent universe Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

228.11—Hours of Duty Records (Current Requirement) ............................. 768 railroads/signal contractors ....... 27,429,750 

records.

2 min./5 min./ 

10 min.

2,856,125 

228.17—Dispatcher’s Record of Train Movements (Current Requirement) 150 Dispatch Offices ........................ 200,750 

records.

3 hours ........... 602,250 

228.19—Monthly Reports of Excess Service (Current Requirement But 

Now includes consecutive days on duty).

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

228.103—Construction of Employee Sleeping Quarters—Petitions to allow 

construction near work areas (Current Requirement).

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

228.203—Program Components (Current Requirements)—Electronic Recordkeeping—Modifications for Daylight Savings Time.9 railroads ......................................... 5 modifications 120 hours ....... 60 

—System Security/Individual User Identification/Program Logic Capabilities/Search Capabilities.9 railroads ......................................... 1 program w/ 

security/etc.

720 Hours ...... 720 

228.205—Access to Electronic Records—(Current Requirement)—System 

Access Procedures for Inspectors.

768 railroads/signal contractors ....... 100 electronic 

records access procedures.

30 minutes ..... 50 

228.207—Training in Use of Electronic System—(Current Requirements)—Initial Training.768 railroads/signal contractors ....... 47,000 tr. employees.1 hour ............. 47,000 

—Refresher Training .................................................................................... 768 railroads/signal contractors ....... 2,200 tr. employees.1 hour ............. 2,200 

49 U.S.C. 21102(b)—The Federal hours of service laws—Petitions for Exemption from Laws (Current Requirement).10 railroads ....................................... 2 petitions ....... 10 hours ......... 20 

228.403—Exemption requests from passenger/commuter railroads—(New 

Requirements).

28 railroads ....................................... 5 exemption 

requests.

8 hours ........... 40 

—Initial exemption requests from tourist/excursion railroads ...................... 140 railroads ..................................... 10 exempt requests.2 hours ........... 20 

—Renewal exemption requests from tourist/excursion railroads ................. 140 railroads ..................................... 5 renewal exemption requests.30 minutes ..... 3 

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

—Reports to FRA of Work Schedules that Violate Fatigue Threshold ........ 168 railroads ..................................... 20 reports ....... 2 hours ........... 40 

—Fatigue Mitigation Plans Submitted to FRA .............................................. 168 railroads ..................................... 15 plans ......... 4 hours ........... 60 

—Submission of Work Schedules Using Validation Model Violating 

Threshold that can be mitigated by tools.

168 railroads ..................................... 15 work schedule submissions.4 hours ........... 60 

—Submission of Work Schedules Using Validation Model Violating 

Threshold that cannot be mitigated by tools.

168 railroads ..................................... 5 work schedule submissions.4 hours ........... 20 

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

—RR Declaration that no work schedule needs to be submitted to FRA 

for violating fatigue threshold.

168 railroads ..................................... 148 written 

declarations.

1 hour ............. 148 

—Corrected work schedules, etc ................................................................. 168 railroads ..................................... 2 documents .. 2 hours ........... 4 

—Submission of follow-up analysis by RR due to work schedule change .. 168 railroads ..................................... 28 analyses .... 4 hours ........... 112 

—Corrected work schedules, etc. ................................................................ 168 railroads ..................................... 2 documents .. 2 hours ........... 4 

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

—RR consultations w/employees ................................................................. 168 railroads ..................................... 28 plans ......... 4 hours ........... 112 

—Filed statements w/FRA by employees and employee organizations unable to reach consensus w/RR on work schedules or mitigation tools/ 

RR submissions to FRA.

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

228.411—Training Programs (New Requirements) ..................................... 168 railroads ..................................... 29 programs ... 20 hours ......... 580 

—Employee Initial Training ........................................................................... 168 railroads ..................................... 10,200 tr. employees.1 hour ............. 10,200 

—Initial Training—New Employees .............................................................. 168 railroads ..................................... 150 trained 

employees.

1 hour ............. 150 

—Triennial Refresher Training of Employees 42 .......................................... 168 railroads ..................................... n/a .................. n/a .................. n/a 

—Records of Training ................................................................................... 168 railroads ..................................... 10,350 records 5 minutes ....... 863 

—Written Declaration by Tourist Railroads for Exclusion from this Section’s Requirements.140 railroads ..................................... 100 written 

declarations.

60 minutes ..... 100 

Appendix D: Guidance on Fatigue Management Plans—(New Option) ...... 168 railroads ..................................... 4 plans ........... 15 hours ......... 60 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan at 202–493–6292 or Ms. 

Kimberly Toone at 202–493–6132 or via 

e-mail at the following addresses: 

Robert.Brogan@dot.gov; 

Kimberly.Toone@dot.gov. 

Organizations and individuals 

desiring to submit comments on the 

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50396 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

rule, which will be addressed in the renewal 

submission for this information collection. 

collection of information requirements 

should direct them to the Office of 

Management and Budget, Office of 

Information and Regulatory Affairs, 725 

17th St., NW., Washington, DC 20503, 

attn: FRA Desk Officer. Comments may 

also be sent via e-mail to OMB at the 

following address: oira_ 

submission@omb.eop.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this final rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. FRA intends to 

obtain current OMB control numbers for 

any new information collection 

requirements resulting from this 

rulemaking action prior to the effective 

date of this final rule. The OMB control 

number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

F. Unfunded Mandates Reform Act 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 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. For the year 

2010, this monetary amount of 

$100,000,000 has been adjusted to 

$140,800,000 to account for inflation. 

This rule will not result in the 

expenditure, in the aggregate, of 

$140,800,000 in any one year, and thus 

preparation of such a statement is not 

required. 

G. Environmental Assessment 

The National Environmental Policy 

Act, 42 U.S.C. 4321–4375, requires that 

Federal agencies analyze actions to 

determine whether the action will have 

a significant impact on the human 

environment. This rule will not have a 

significant impact on the human 

environment. 

H. Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received into any agency docket by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

List of Subjects in 49 CFR Part 228 

Administrative practice and 

procedures, Buildings and facilities, 

Hazardous materials transportation, 

Noise control, Penalties, Railroad 

employees, Railroad safety, Reporting 

and recordkeeping requirements. 

The Rule 

For the reasons set forth in the 

preamble, FRA amends part 228 of 

chapter II, subtitle B, title 49 of the Code 

of Federal Regulations as follows: 

PART 228—[AMENDED] 

■ 1. The authority citation for part 228 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 21101– 

21109; Sec. 108, Div. A, Pub. L. 110–432, 122 

Stat. 4860–4866; 49 U.S.C. 21301, 21303, 

21304, 21311; 28 U.S.C. 2461, note; 49 U.S.C. 

103; and 49 CFR 1.49. 

■ 2. Section 228.1 is amended by 

removing the word ‘‘and’’ at the end of 

paragraph (a), removing the period and 

adding a semicolon in its place at the 

end of paragraph (b), adding and 

reserving paragraph (c), and adding 

paragraph (d) to read as follows: 

§ 228.1 Scope. 

* * * * * 

(d) Prescribes substantive hours of 

service requirements for train 

employees engaged in commuter or 

intercity rail passenger transportation. 

■ 3. Section 228.3 is amended by 

revising paragraph (b) introductory text 

to read as follows: 

§ 228.3 Application. 

* * * * * 

(b) Except as provided in § 228.401 of 

this part, this part does not apply to: 

* * * * * 

■ 4. Section 228.5 is amended by adding 

definitions of Associate Administrator, 

FRA, Type 1 assignment, and Type 2 

assignment in alphabetical order to read 

as follows: 

§ 228.5 Definitions. 

* * * * * 

Associate Administrator means the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer, Office of 

Railroad Safety, Federal Railroad 

Administration, or any person to whom 

he or she has delegated authority in the 

matter concerned. 

* * * * * 

FRA means the Federal Railroad 

Administration. 

* * * * * 

Type 1 assignment means an 

assignment to be worked by a train 

employee who is engaged in commuter 

or intercity rail passenger transportation 

that requires the employee to report for 

duty no earlier than 4 a.m. on a calendar 

day and be released from duty no later 

than 8 p.m. on the same calendar day, 

and that complies with the provisions of 

§ 228.405. For the purposes of this part, 

FRA considers a Type 1 assignment to 

present an acceptable level of risk for 

fatigue that does not violate the defined 

fatigue threshold under a scientifically 

valid, biomathematical model of human 

performance and fatigue specified by 

FRA at § 228.407(c)(1) or approved by 

FRA under the procedures at 

§ 228.407(c)(2). However, a Type 1 

assignment that is delayed such that the 

schedule actually worked includes any 

period of time between midnight and 4 

a.m. is considered a Type 2 assignment 

for the purposes of compliance with 

§ 228.405. 

Type 2 assignment. (1) Type 2 

assignment means an assignment to be 

worked by a train employee who is 

engaged in commuter or intercity rail 

passenger transportation that requires 

the employee to be on duty for any 

period of time between 8:01 p.m. on a 

calendar day and 3:59 a.m. on the next 

calendar day, or that otherwise fails to 

qualify as a Type 1 assignment. A Type 

2 assignment is considered a Type 1 

assignment if— 

(i) It does not violate the defined 

fatigue threshold under a scientifically 

valid biomathematical model of human 

performance and fatigue specified by 

FRA at 228.407(c)(2) or approved by 

FRA under the procedures at 

§ 228.407(c)(1); 

(ii) It complies with the provisions of 

§ 228.405; and 

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(iii) It does not require the employee 

to be on duty for any period of time 

between midnight and 4 a.m. 

(2) If a Type 2 assignment that would 

normally qualify to be treated as a Type 

1 assignment is delayed so that the 

schedule actually worked includes any 

period of time between midnight and 4 

a.m., the assignment is considered a 

Type 2 assignment for the purposes of 

compliance with § 228.405. 

■ 5. Section 228.11 is amended by 

revising paragraph (c) to read as follows: 

§ 228.11 Hours of duty records. 

* * * * * 

(c) Exceptions to requirements for 

train employees. Paragraphs (b)(13) 

through (b)(16) of this section do not 

apply to the hours of duty records of 

train employees providing commuter 

rail passenger transportation or intercity 

rail passenger transportation. In 

addition to the information required by 

paragraphs (b)(1) through (b)(12) of this 

section, each hours of duty record for a 

train employee providing commuter rail 

passenger transportation or intercity rail 

passenger transportation shall include 

the following information: 

(1) For train employees providing 

commuter rail passenger transportation 

or intercity rail passenger 

transportation, the date on which the 

series of at most 14 consecutive 

calendar days began for the duty tour. 

(2) For train employees providing 

commuter rail passenger transportation 

or intercity rail passenger 

transportation, any date prior to the 

duty tour and during the series of at 

most 14 consecutive calendar days on 

which the employee did not initiate an 

on-duty period, if any. 

* * * * * 

■ 6. Section 228.19 is amended by 

adding paragraphs (c)(5) through (8) to 

read as follows: 

§ 228.19 Monthly reports of excess 

service. 

* * * * * 

(c) * * * 

(5) A train employee, after first 

initiating an on-duty period each day for 

6 or more consecutive calendar days 

including one or more Type 2 

assignments, the last on-duty period of 

which ended at the employee’s home 

terminal, initiates an on-duty period 

without having had 24 consecutive 

hours off duty at the employee’s home 

terminal. 

(6) A train employee, after first 

initiating an on-duty period each day for 

6 or more consecutive days including 

one or more Type 2 assignments, 

initiates two or more on-duty periods 

without having had 24 consecutive 

hours off duty at the employee’s home 

terminal. 

(7) A train employee, after initiating 

on-duty periods on 13 or more calendar 

days during a series of at most 14 

consecutive calendar days as defined in 

§ 228.405(a)(3)(i), the last of which 

ended at the employee’s home terminal, 

then initiates an on-duty period without 

having had at least two consecutive 

calendar days off duty at the employee’s 

home terminal. 

(8) A train employee, after initiating 

an on-duty periods on 13 or more 

calendar days during a series of at most 

14 consecutive calendar days as defined 

in § 228.405(a)(3)(i), then initiates two 

or more on-duty periods without having 

had at least two consecutive calendar 

days off duty at the employee’s home 

terminal. 

* * * * * 

Subpart E—[Added and reserved] 

■ 7. Subpart E to part 228 is added and 

reserved. 

■ 8. Subpart F to part 228 is added to 

read as follows: 

Subpart F—Substantive Hours of Service 

Requirements for Train Employees 

Engaged in Commuter or Intercity Rail 

Passenger Transportation 

Sec. 

228.401 Applicability. 

228.403 Nonapplication, exemption, and 

definitions. 

228.405 Limitations on duty hours of train 

employees engaged in commuter or 

intercity rail passenger transportation. 

228.407 Analysis of work schedules; 

submissions; FRA review and approval 

of submissions; fatigue mitigation plans. 

228.409 Requirements for railroad-provided 

employee sleeping quarters during 

interim releases and other periods 

available for rest within a duty tour. 

228.411 Training. 

228.413 Compliance date for regulations; 

exemption from compliance with statute. 

Subpart F—Substantive Hours of 

Service Requirements for Train 

Employees Engaged in Commuter or 

Intercity Rail Passenger Transportation 

§ 228.401 Applicability. 

(a) Except as provided in paragraph 

(b) of this section, the requirements of 

this subpart apply to railroads and their 

officers and agents, with respect to their 

train employees who are engaged in 

commuter or intercity rail passenger 

transportation, including train 

employees who are engaged in tourist, 

scenic, historic, or excursion rail 

passenger transportation. 

(b) This subpart does not apply to 

rapid transit operations in an urban area 

that are not connected with the general 

railroad system of transportation. 

§ 228.403 Nonapplication, exemption, and 

definitions. 

(a) General. This subpart does not 

apply to a situation involving any of the 

following: 

(1) A casualty; 

(2) An unavoidable accident; 

(3) An act of God; or 

(4) A delay resulting from a cause 

unknown and unforeseeable to a 

railroad or its officer or agent in charge 

of the employee when the employee left 

a terminal. 

(b) Exemption. The Administrator 

may exempt a railroad having not more 

than a total of 15 train employees, signal 

employees, and dispatching service 

employees from the limitations imposed 

by this subpart on the railroad’s train 

employees who are engaged in 

commuter or intercity rail passenger 

transportation. The Administrator may 

allow the exemption from this subpart 

after a full hearing, for good cause 

shown, and on deciding that the 

exemption is in the public interest and 

will not affect safety adversely. The 

exemption shall be for a specific period 

of time and is subject to review at least 

annually. The exemption may not 

authorize a railroad to require or allow 

its train employees to be on duty more 

than a total of 16 hours in a 24-hour 

period. 

(c) Definitions. In this subpart— 

Commuter or intercity rail passenger 

transportation has the meaning assigned 

by section 24102 of title 49, United 

States Code, to the terms ‘‘commuter rail 

passenger transportation’’ or ‘‘intercity 

rail passenger transportation.’’ 

Train employee who is engaged in 

commuter or intercity rail passenger 

transportation includes a train 

employee who is engaged in commuter 

or intercity rail passenger transportation 

regardless of the nature of the entity by 

whom the employee is employed and 

any other train employee who is 

employed by a commuter railroad or an 

intercity passenger railroad. The term 

excludes a train employee of another 

type of railroad who is engaged in work 

train service even though that work 

train service might be related to 

providing commuter or intercity rail 

passenger transportation, and a train 

employee of another type of railroad 

who serves as a pilot on a train operated 

by a commuter railroad or intercity 

passenger railroad. 

§ 228.405 Limitations on duty hours of 

train employees engaged in commuter or 

intercity rail passenger transportation. 

(a) General. Except as provided in 

paragraph (c) of this section, a railroad 

and its officers and agents may not 

require or allow a train employee 

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50398 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

engaged in commuter or intercity rail 

passenger transportation to remain or go 

on duty— 

(1) Unless that employee has had at 

least 8 consecutive hours off duty 

during the prior 24 hours; or 

(2) After that employee has been on 

duty for 12 consecutive hours, until that 

employee has had at least 10 

consecutive hours off duty; or 

(3) In a series of at most 14 

consecutive calendar days, in excess of 

the following limitations: 

(i) That employee’s first series of at 

most 14 consecutive calendar days 

begins on the first calendar day that the 

employee initiates an on-duty period on 

or after the compliance date for this 

paragraph (a)(3), as specified in 

§ 228.413. A series of at most 14 

consecutive calendar days either ends 

on the 14th consecutive day or may last 

for less than 14 days if an employee has 

accumulated a total of two calendar 

days on which the employee has not 

initiated an on-duty period before the 

beginning of the 14th day of the series. 

After the employee has accumulated a 

total of two calendar days on which the 

employee has not initiated an on-duty 

period, including at least 24 consecutive 

hours off duty as required by paragraph 

(a)(3)(ii) or two consecutive calendar 

days without initiating an on-duty 

period as required by paragraph 

(a)(3)(iii) of this section, during the 

employee’s current series of at most 14 

consecutive calendar days, a new series 

of at most 14 consecutive calendar days 

begins on the calendar day in which the 

employee next initiates an on-duty 

period. Only calendar days after the 

starting date of a series are counted 

toward the accumulation of a total of 

two calendar days on which the 

employee did not initiate an on-duty 

period. A calendar day on which an onduty period was not initiated that 

occurred prior to the start of the new 

series, does not count toward refreshing 

the new series. 

(ii) If the employee initiates an onduty period each day on any six or more 

consecutive calendar days during the 

series of at most 14 consecutive 

calendar days, and at least one of the 

on-duty periods is defined as a Type 2 

assignment, that employee must have at 

least 24 consecutive hours off duty prior 

to next initiating an on-duty period, 

except as provided in paragraph (a)(3)(v) 

of this section. 

(iii) If the employee has initiated an 

on-duty period each day on 13 or more 

calendar days in the series of at most 14 

consecutive calendar days, that 

employee must have at least two 

consecutive calendar days on which the 

employee does not initiate an on-duty 

period prior to next initiating an onduty period, except as provided in 

paragraph (a)(3)(v) of this section. 

(iv) The minimum time off duty 

required by paragraph (a)(3)(ii) of this 

section and the at least two consecutive 

calendar days in which the employee 

does not initiate an on-duty period 

required by paragraph (a)(3)(iii) of this 

section must be at the employee’s home 

terminal, and during such periods, the 

employee shall be unavailable for any 

service for any railroad. 

(v) Paragraphs (a)(3)(ii)–(iii) of this 

section notwithstanding, if the 

employee is not at the employee’s home 

terminal when time off duty is required 

by paragraph (a)(3)(ii) of this section or 

calendar days in which the employee 

does not initiate an on-duty period are 

required by paragraph (a)(3)(iii) of this 

section, the employee may either 

deadhead to the point of final release at 

the employee’s home terminal or initiate 

an on-duty period in order to return to 

the employee’s home terminal either on 

the same calendar day or the next 

consecutive calendar day after the 

completion of the duty tour triggering 

the requirements of paragraph (a)(3)(ii) 

or paragraph (a)(3)(iii) of this section. 

(vi) If the employee is required to 

have at least 24 consecutive hours off 

duty under paragraph (a)(3)(ii) of this 

section and not to initiate an on-duty 

period for at least two consecutive 

calendar days under paragraph (a)(3)(iii) 

of this section, both requirements shall 

be observed. The required periods run 

concurrently, to the extent that they 

overlap. 

(b) Determining time on duty. In 

determining under paragraph (a) of this 

section the time that a train employee 

subject to this subpart is on or off duty, 

the following rules apply: 

(1) Time on duty begins when the 

employee reports for duty and ends 

when the employee is finally released 

from duty; 

(2) Time the employee is engaged in 

or connected with the movement of a 

train is time on duty; 

(3) Time spent performing any other 

service for the railroad during a 24-hour 

period in which the employee is 

engaged in or connected with the 

movement of a train is time on duty; 

(4) Time spent in deadhead 

transportation to a duty assignment is 

time on duty, but time spent in 

deadhead transportation from a duty 

assignment to the place of final release 

is neither time on duty nor time off 

duty; 

(5) An interim period available for 

rest at a place other than a designated 

terminal is time on duty; 

(6) An interim period available for 

less than four hours rest at a designated 

terminal is time on duty; and 

(7) An interim period available for at 

least four hours rest at a place with 

suitable facilities for food and lodging is 

not time on duty when the employee is 

prevented from getting to the 

employee’s designated terminal by any 

of the following: 

(i) A casualty; 

(ii) A track obstruction; 

(iii) An act of God; or 

(iv) A derailment or major equipment 

failure resulting from a cause that was 

unknown and unforeseeable to the 

railroad or its officer or agent in charge 

of that employee when that employee 

left the designated terminal. 

(c) Emergencies. A train employee 

subject to this subpart who is on the 

crew of a wreck or relief train may be 

allowed to remain or go on duty for not 

more than four additional hours in any 

period of 24 consecutive hours when an 

emergency exists and the work of the 

crew is related to the emergency. In this 

paragraph, an emergency ends when the 

track is cleared and the railroad line is 

open for traffic. 

§ 228.407 Analysis of work schedules; 

submissions; FRA review and approval of 

submissions; fatigue mitigation plans. 

(a) Analysis of work schedules. Each 

railroad subject to this subpart must 

perform an analysis of one cycle of the 

work schedules (the period within 

which the work schedule repeats) of its 

train employees engaged in commuter 

or intercity rail passenger transportation 

and identify those work schedules 

intended to be assigned to its train 

employees, that, if worked by such a 

train employee, put the train employee 

at risk for a level of fatigue at which 

safety may be compromised. Schedules 

identified in paragraph (g) of this 

section do not have to be analyzed. A 

level of fatigue at which safety may be 

compromised, hereafter called ‘‘the 

fatigue threshold,’’ shall be determined 

by procedures that use a scientifically 

valid, biomathematical model of human 

performance and fatigue that has been 

approved by the Associate 

Administrator pursuant to paragraph 

(c)(1) of this section, or previously 

accepted pursuant to paragraph (c)(2) of 

this section. Each work schedule that 

violates the fatigue threshold must be— 

(1) Reported to the Associate 

Administrator as provided in paragraph 

(b) of this section, no later than April 

12, 2012; 

(2) Either— 

(i) Mitigated by action in compliance 

with the railroad’s fatigue mitigation 

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plan that has been approved by the 

Associate Administrator as specified in 

paragraph (b) of this section, no later 

than April 12, 2012; or 

(ii) Supported by a determination that 

the schedule is operationally necessary, 

and that the fatigue risk cannot be 

sufficiently mitigated by the use of 

fatigue mitigation tools to reduce the 

risk for fatigue to a level that does not 

violate the fatigue threshold, no later 

than April 12, 2012; or 

(iii) Both, no later than April 12, 2012; 

and 

(3) Approved by FRA for use in 

accordance with paragraph (b) of this 

section. 

(b) Submissions of certain work 

schedules and any fatigue mitigation 

plans and determinations of operational 

necessity or declarations; FRA review 

and approval. (1) No later than April 12, 

2012, the railroad shall submit for 

approval to the Associate Administrator 

the work schedules described in 

paragraph (b)(1)(i) and (ii) of this 

section. The railroad shall identify and 

group the work schedules as follows: 

(i) Work schedules that the railroad 

has found, using a validated model (as 

specified in paragraph (c)(1) of this 

section or approved by FRA in 

accordance with paragraph (c)(2) of this 

section) to present a risk for a level of 

fatigue that violates the applicable 

fatigue threshold, but that the railroad 

has determined can be mitigated by the 

use of fatigue mitigation tools so as to 

present a risk for a level of fatigue that 

does not violate the applicable fatigue 

threshold. The fatigue mitigation tools 

that will be used to mitigate the fatigue 

risk presented by the schedule must also 

be submitted. 

(ii) Work schedules that the railroad 

has found, using a validated model (as 

specified in paragraph (c)(1) of this 

section or approved by FRA in 

accordance with paragraph (c)(2) of this 

section), to present a risk for a level of 

fatigue that violates the applicable 

fatigue threshold, but that the railroad 

has determined cannot be mitigated so 

as to present a risk for a level of fatigue 

that does not violate the applicable 

fatigue threshold by the use of fatigue 

mitigation tools, and that the railroad 

has determined are operationally 

necessary. The basis for the 

determination must also be submitted. 

(2) If a railroad performs the analysis 

of its schedules required by paragraph 

(a) of this section, and determines that 

none of them violates the applicable 

fatigue threshold, and therefore none of 

them presents a risk for fatigue that 

requires it to be submitted to the 

Associate Administrator pursuant to 

this paragraph, that railroad shall, no 

later than April 12, 2012, submit to the 

Associate Administrator a written 

declaration, signed by an officer of the 

railroad, that the railroad has performed 

the required analysis and determined 

that it has no schedule that is required 

to be submitted. 

(3) FRA will review submitted work 

schedules, proposed fatigue mitigation 

tools, and determinations of operational 

necessity. If FRA identifies any 

exceptions to the submitted 

information, the agency will notify the 

railroad within 120 days of receipt of 

the railroad’s submission. Railroads are 

required to correct any deficiencies 

identified by FRA within the time frame 

specified by FRA. 

(4) FRA will audit railroad work 

schedules and fatigue mitigation tools 

every two years to ensure compliance 

with this section. 

(c) Submission of models for FRA 

approval; validated models already 

accepted by FRA. (1) If a railroad subject 

to this subpart wishes to use a model of 

human performance and fatigue, not 

previously approved by FRA, for the 

purpose of making part or all of the 

analysis required by paragraph (a) or (d) 

of this section, the railroad shall submit 

the model and evidence in support of its 

scientific validation, for the approval of 

the Associate Administrator. Decisions 

of the Associate Administrator regarding 

the validity of a model are subject to 

review under § 211.55 of this chapter. 

(2) A railroad may use a model that 

is already accepted by FRA. FRA has 

approved the Fatigue Avoidance 

Scheduling ToolTM (FAST) issued on 

July 15, 2009, by Fatigue Science, Inc. 

(with a fatigue threshold for the purpose 

of this regulation less than or equal to 

70 for 20 percent or more of the time 

worked in a duty tour), and Fatigue 

Audit InterDyneTM (FAID) version 2, 

issued in September 2007 by 

InterDynamics Pty Ltd. (Australian 

Company Number (ACN) 057 037 635) 

(with a fatigue threshold for the purpose 

of this regulation greater than or equal 

to 72 for 20 percent or more of the time 

worked in a duty tour) as scientifically 

valid, biomathematical models of 

human performance and fatigue for the 

purpose of making the analysis required 

by paragraph (a) or (d) of this section. 

Other versions of the models identified 

in this paragraph must be submitted to 

FRA for approval prior to use as 

provided by paragraph (c)(1) of this 

section. 

(3) If a new model is submitted to 

FRA for approval, pursuant to paragraph 

(c)(1) of this section, FRA will publish 

notice of the submission in the Federal 

Register, and will provide an 

opportunity for comment, prior to the 

Associate Administrator’s making a 

final determination as to its disposition. 

If the Associate Administrator approves 

a new model as having been validated 

and calibrated, so that it can be used for 

schedule analysis in compliance with 

this regulation, FRA will also publish 

notice of this determination in the 

Federal Register. 

(d) Analysis of certain later changes 

in work schedules. (1) Additional 

follow-up analysis must be performed 

each time that the railroad changes one 

of its work schedules in a manner— 

(i) That would differ from the FRAapproved parameters for hours of duty 

of any work schedule previously 

analyzed pursuant to paragraph (a) of 

this section; or 

(ii) That would alter the work 

schedule to the extent that train 

employees who work the schedule may 

be at risk of experiencing a level of 

fatigue that violates the FRA-approved 

fatigue threshold established by 

paragraph (a) of this section. 

(2) Such additional follow-up analysis 

must be submitted for FRA approval as 

provided under paragraph (b) of this 

section, as soon as practicable, prior to 

the use of the new schedule for an 

employee subject to this subpart. FRA 

approval is not necessary before a new 

schedule may be used; however, a 

schedule that has been disapproved by 

FRA may not be used. 

(3) FRA will review submitted revised 

work schedules, and any accompanying 

fatigue mitigation tools, and 

determinations of operational necessity. 

If FRA identifies any exceptions to the 

submitted information, the agency will 

notify the railroad as soon as possible. 

Railroads are required to correct any 

deficiencies identified by FRA within 

the time frame specified by FRA. 

(e) Fatigue mitigation plans. A written 

plan must be developed and adopted by 

the railroad to mitigate the potential for 

fatigue for any work schedule identified 

through the analysis required by 

paragraph (a) or (d) of this section as at 

risk, including potential fatigue caused 

by unscheduled work assignments. 

Compliance with the fatigue mitigation 

plan is mandatory. The railroad shall 

review and, if necessary, update the 

plan at least once every two years after 

adopting the plan. 

(f) Consultation. (1) Each railroad 

subject to this subpart shall consult 

with, employ good faith, and use its best 

efforts to reach agreement with, all of its 

directly affected employees, including 

any nonprofit employee labor 

organization representing a class or craft 

of directly affected employees of the 

railroad, on the following subjects: 

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50400 Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 

(i) The railroad’s review of work 

schedules found to be at risk for a level 

of fatigue at which safety may be 

compromised (as described by 

paragraph (a) of this section; 

(ii) The railroad’s selection of 

appropriate fatigue mitigation tools; and 

(iii) All submissions by the railroad to 

the Associate Administrator for 

approval that are required by this 

section. 

(2) For purposes of this section, the 

term ‘‘directly affected employee’’ 

means an employee to whom one of the 

work schedules applies or would apply 

if approved. 

(3) If the railroad and its directly 

affected employees, including any 

nonprofit employee labor organization 

representing a class or craft of directly 

affected employees of the railroad, 

cannot reach consensus on any area 

described in paragraph (f)(1) of this 

section, then directly affected 

employees and any such organization 

may file a statement with the Associate 

Administrator explaining their views on 

any issue on which consensus was not 

reached. The Associate Administrator 

shall consider such views during review 

and approval of items required by this 

section. 

(g) Schedules not requiring analysis. 

The types of schedules described in 

paragraphs (1) and (2) of this paragraph 

do not require the analysis described in 

paragraphs (a) or (d) of this section. 

(1) Schedules consisting solely of 

Type 1 assignments do not have to be 

analyzed. 

(2) Schedules containing Type 2 

assignments do not have be analyzed 

if— 

(i) The Type 2 assignment is no longer 

in duration than, and fully contained 

within, the schedule of another Type 2 

assignment that has already been 

determined to present an acceptable 

level of risk for fatigue that does not 

violate the fatigue threshold; and 

(ii) If the longer Type 2 schedule 

within which another Type 2 schedule 

is contained requires mitigations to be 

applied in order to achieve an 

acceptable level of risk for fatigue that 

does not violate the fatigue threshold, 

the same or more effective mitigations 

must be applied to the shorter Type 2 

schedule that is fully contained within 

the already acceptable Type 2 schedule. 

§ 228.409 Requirements for railroadprovided employee sleeping quarters 

during interim releases and other periods 

available for rest within a duty tour. 

(a) If a railroad subject to this subpart 

provides sleeping quarters for the use of 

a train employee subject to this subpart 

during interim periods of release as a 

method of mitigating fatigue identified 

by the analysis of work schedules 

required by § 228.407(a) and (d), such 

sleeping quarters must be ‘‘clean, safe, 

and sanitary,’’ and give the employee 

‘‘an opportunity for rest free from the 

interruptions caused by noise under the 

control of the’’ railroad within the 

meaning of section 21106(a)(1) of title 

49 of the United States Code. 

(b) Any sleeping quarters provided by 

a railroad that are proposed as a fatigue 

mitigation tool pursuant to 

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

requirements of § 228.407(f), 

Consultation. 

§ 228.411 Training. 

(a) Individuals to be trained. Except as 

provided by paragraph (f) of this 

section, each railroad subject to this 

subpart shall provide training for its 

employees subject to this subpart, and 

the immediate supervisors of its 

employees subject to this subpart. 

(b) Subjects to be covered. The 

training shall provide, at a minimum, 

information on the following subjects 

that is based on the most current 

available scientific and medical research 

literature: 

(1) Physiological and human factors 

that affect fatigue, as well as strategies 

to reduce or mitigate the effects of 

fatigue; 

(2) Opportunities for identification, 

diagnosis, and treatment of any medical 

condition that may affect alertness or 

fatigue, including sleep disorders; 

(3) Alertness strategies, such as 

policies on napping, to address acute 

drowsiness and fatigue while an 

employee is on duty; 

(4) Opportunities to obtain restful 

sleep at lodging facilities, including 

employee sleeping quarters provided by 

the railroad; and 

(5) The effects of abrupt changes in 

rest cycles for employees. 

(c) Timing of initial training. Initial 

training shall be provided to affected 

current employees not later than 

December 31, 2012, and to new 

employees subject to this subpart before 

the employee first works a schedule 

subject to analysis under this subpart, or 

not later than December 31, 2012, 

whichever occurs later. 

(d) Timing of refresher training. (1) At 

a minimum, refresher training shall be 

provided every three calendar years. 

(2) Additional refresher training shall 

also be provided when significant 

changes are made to the railroad’s 

fatigue mitigation plan or to the 

available fatigue mitigation tools 

applied to an employee’s assignment or 

assignments at the location where he or 

she works. 

(e) Records of training. A railroad 

shall maintain a record of each 

employee provided training in 

compliance with this section and shall 

retain these records for three years. 

(f) Conditional exclusion. A railroad 

engaged in tourist, scenic, historic, or 

excursion rail passenger transportation, 

may be excluded from the requirements 

of this section, if its train employees 

subject to this rule are assigned to work 

only schedules wholly within the hours 

of 4 a.m. and 8 p.m. on the same 

calendar day that comply with the 

provisions of § 228.405, upon that 

railroad’s submission to the Associate 

Administrator of a written declaration, 

signed by an officer of the railroad, 

indicating that the railroad meets the 

limitations established in this 

paragraph. 

§ 228.413 Compliance date for regulations; 

exemption from compliance with statute. 

(a) General. Except as provided by 

paragraph (d) of this section or as 

provided in § 228.411, on and after 

April 12, 2012, railroads subject to this 

subpart shall comply with this subpart 

and §§ 228.11(c)(1)–(2) and 

228.19(c)(5)–(c)(8) with respect to their 

train employees who are engaged in 

commuter or intercity rail passenger 

transportation. 

(b) Exemption from compliance with 

statute. On and after October 15, 2011, 

railroads subject to this subpart or any 

provision of this subpart shall be 

exempt from complying with the 

provisions of old section 21103 and new 

section 21103 for such employees. 

(c) Definitions. In this section— 

(1) The term ‘‘new section 21103’’ 

means section 21103 of title 49, United 

States Code, as amended by the Rail 

Safety Improvement Act of 2008 (RSIA) 

effective July 16, 2009. 

(2) The term ‘‘old section 21103’’ 

means section 21103 of title 49, United 

States Code, as it was in effect on the 

day before the enactment of the RSIA. 

(d) Exceptions. (1) On and after 

October 15, 2011, railroads subject to 

this subpart shall comply with 

§§ 228.401, 228.403, 228.405(a)(1), 

(a)(2), (b), and (c), and 228.409(a). 

(2) Railroads engaged in tourist, 

scenic, historic, or excursion rail 

passenger transportation, subject to this 

subpart, must comply with the sections 

listed in paragraph (d)(1) of this section 

on and after October 15, 2011, but are 

not required to comply with the other 

provisions of this subpart and 

§§ 228.11(c)(1)–(2) and 228.19(c)(5)– 

(c)(8) until April 12, 2013. 

■ 9. Add Appendix D to Part 228 to read 

as follows: 

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Federal Register / Vol. 76, No. 156 / Friday, August 12, 2011 / Rules and Regulations 50401 

Appendix D to Part 228—Guidance on 

Fatigue Management Plans 

(a) Railroads subject to subpart F of this 

part, Substantive Hours of Service 

Requirements for Train Employees Engaged 

in Commuter or Intercity Rail Passenger 

Transportation, may wish to consider 

adopting a written fatigue management plan 

that is designed to reduce the fatigue 

experienced by their train employees subject 

to that subpart and to reduce the likelihood 

of accidents, incidents, injuries, and fatalities 

caused by the fatigue of these employees. If 

a railroad is required to have a fatigue 

mitigation plan under § 228.407 (containing 

the fatigue mitigation tools that the railroad 

has determined will mitigate the risk posed 

by a particular work schedule for a level of 

fatigue at or above the fatigue threshold), 

then the railroad’s fatigue management plan 

could include the railroad’s written fatigue 

mitigation plan, designated as such to 

distinguish it from the part of the plan that 

is optional, or could be a separate document. 

As provided in § 228.407(a)(2) and (e), 

compliance with the fatigue mitigation plan 

itself is mandatory. 

(b) A good fatigue management plan 

contains targeted fatigue countermeasures for 

the particular railroad. In other words, the 

plan takes into account varying 

circumstances of operations by the railroad 

on different parts of its system, and should 

prescribe appropriate fatigue 

countermeasures to address those varying 

circumstances. In addition, the plan 

addresses each of the following items, as 

applicable: 

(1) Employee education and training on the 

physiological and human factors that affect 

fatigue, as well as strategies to reduce or 

mitigate the effects of fatigue, based on the 

most current scientific and medical research 

and literature; 

(2) Opportunities for identification, 

diagnosis, and treatment of any medical 

condition that may affect alertness or fatigue, 

including sleep disorders; 

(3) Effects on employee fatigue of an 

employee’s short-term or sustained response 

to emergency situations, such as derailments 

and natural disasters, or engagement in other 

intensive working conditions; 

(4) Scheduling practices for employees, 

including innovative scheduling practices, 

on-duty call practices, work and rest cycles, 

increased consecutive days off for employees, 

changes in shift patterns, appropriate 

scheduling practices for varying types of 

work, and other aspects of employee 

scheduling that would reduce employee 

fatigue and cumulative sleep loss; 

(5) Methods to minimize accidents and 

incidents that occur as a result of working at 

times when scientific and medical research 

has shown that increased fatigue disrupts 

employees’ circadian rhythm; 

(6) Alertness strategies, such as policies on 

napping, to address acute drowsiness and 

fatigue while an employee is on duty; 

(7) Opportunities to obtain restful sleep at 

lodging facilities, including employee 

sleeping quarters provided by the railroad; 

(8) The increase of the number of 

consecutive hours of off-duty rest, during 

which an employee receives no 

communication from the employing railroad 

or its managers, supervisors, officers, or 

agents; and 

(9) Avoidance of abrupt changes in rest 

cycles for employees. 

(c) Finally, if a railroad chooses to adopt 

a fatigue management plan, FRA suggests 

that the railroad review the plan and update 

it periodically as the railroad sees fit if 

changes are warranted. 

Joseph C. Szabo, 

Administrator. 

[FR Doc. 2011–20290 Filed 8–11–11; 8:45 am] 

BILLING CODE 4910–06–P 

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