[Federal Register Volume 76, Number 156 (Friday, August 12, 2011)]
[Rules and Regulations]
[Pages 50360-50401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20290]



[[Page 50359]]

Vol. 76

Friday,

No. 156

August 12, 2011

Part III





Department of Transportation





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





Federal Railroad Administration





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





49 CFR Part 228





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

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

[[Page 50360]]


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

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 on-duty periods, minimum off-duty periods, and other 
limitations, for train employees (e.g., locomotive engineers and 
conductors) providing commuter and intercity rail passenger 
transportation. The 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:
    <bullet> Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
    <bullet> Fax: 202-493-2251.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 
20590.
    <bullet> 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 Tool\TM\ Model
    2. Fatigue Audit InterDyne\TM\ Model
    B. Diary Study of Train Employees on Commuter and Intercity 
Passenger Railroads
IV. Railroad Safety Advisory Committee Process
    A. Overview of the RSAC
    B. RSAC Proceedings in this Rulemaking
    C. Significant Task Force Contributions 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

[[Page 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.

----------------------------------------------------------------------------------------------------------------
                                                                     Train employee
                                                                 statutory  provisions
                                                                 immediately prior  to
                                        Freight train employee   the RSIA and currently    FRA passenger train
                                               statute             applicable only to      employee final rule
                                                                    passenger  train
                                                                       employees
----------------------------------------------------------------------------------------------------------------
Citation.............................  49 U.S.C. 21103 (as      49 U.S.C. 21103 as it    49 CFR part 228,
                                        amended by the RSIA      existed prior to the     subpart F.
                                        effective July 16,       October 16, 2008,
                                        2009) (new section       enactment of the RSIA
                                        21103) (Applies to       (old section 21103)
                                        train employees on       (Train employees
                                        freight railroads.       providing commuter and
                                        Will apply to train      intercity rail
                                        employees on commuter    passenger
                                        and intercity            transportation are
                                        passenger railroads if   currently covered by
                                        no regulations are in    these provisions
                                        effect by October 16,    pursuant to 49 U.S.C.
                                        2011).                   21102(c).).
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       12 consecutive hours of  12 consecutive hours of  12 consecutive hours of
 Single Tour.                           time on duty or 12       time on duty or 12       time on duty or 12
                                        nonconsecutive hours     nonconsecutive hours     nonconsecutive hours
                                        on duty if broken by     on duty if broken by     on duty if broken by
                                        an interim release of    an interim release of    an interim release of
                                        at least 4 consecutive   at least 4 consecutive   at least 4 consecutive
                                        hours uninterrupted by   hours, in a 24-hour      hours, in a 24-hour
                                        communication from the   period that begins at    period that begins at
                                        railroad likely to       the beginning of the     the beginning of the
                                        disturb rest, in a 24-   duty tour.               duty tour. This is
                                        hour period that                                  effective on the
                                        begins at the                                     effective date of the
                                        beginning of the duty                             final rule.
                                        tour.

[[Page 50362]]

 
Limitations on Consecutive Duty Tours  May not be on duty as a  None...................  If employee initiates
 or Total Duty Tours in Set Period.     train employee after                              an on-duty period each
                                        initiating an on-duty                             day for six
                                        period on six                                     consecutive calendar
                                        consecutive days                                  days including at
                                        without receiving 48                              least one ``Type 2''
                                        consecutive hours off                             assignment (generally,
                                        duty free from any                                those including time
                                        service for any                                   on duty between 8 p.m.
                                        railroad carrier at                               and 4 a.m.) employee
                                        the employee's home                               must have 24
                                        terminal. Employees                               consecutive hours off
                                        are permitted to                                  duty at the employee's
                                        initiate a seventh                                home terminal. If an
                                        consecutive day when                              employee initiates an
                                        the employee ends the                             on-duty period on 13
                                        sixth consecutive day                             or more calendar days
                                        at the away-from-home                             of a period of 14
                                        terminal, as part of a                            consecutive days then
                                        pilot project, or as                              must have 2
                                        part of a                                         consecutive calendar
                                        grandfathered                                     days without
                                        collectively bargained                            initiating an on-duty
                                        arrangement. Employees                            period at the
                                        performing service on                             employee's home
                                        this additional day                               terminal. Employees
                                        must receive 72                                   may be permitted to
                                        consecutive hours free                            perform service on an
                                        from any service for                              additional day to
                                        any railroad carrier                              facilitate their
                                        at their home terminal                            return to their home
                                        before going on duty                              terminal. These
                                        again as a train                                  limitations are
                                        employee.                                         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  None...................  None.
                                        time on duty, in
                                        deadhead
                                        transportation to a
                                        point of final
                                        release, or any other
                                        mandatory activity for
                                        the railroad carrier.
                                       Limited to 30 hours of
                                        time spent on duty and
                                        waiting for or in
                                        deadhead
                                        transportation to a
                                        point of final release
                                        after reaching 12
                                        hours of time on duty
                                        and waiting for or in
                                        deadhead
                                        transportation to a
                                        point of final release.
Mandatory Off-Duty Periods...........  10 consecutive hours of  8 consecutive hours (10  8 consecutive hours (10
                                        time off duty free       consecutive hours if     consecutive hours if
                                        from any communication   time on duty reaches     time on duty reaches
                                        from the railroad        12 consecutive hours).   12 consecutive hours).
                                        likely to disturb                                 This is effective on
                                        rest, with additional                             the effective date of
                                        time off duty if on-                              the final rule.
                                        duty time plus time in
                                        or awaiting deadhead
                                        transportation to
                                        final release exceeds
                                        12 hours.
                                       48 consecutive hours
                                        off duty, free from
                                        any service for any
                                        railroad carrier,
                                        after initiating an on-
                                        duty period for 6
                                        consecutive days. If 7
                                        consecutive days are
                                        permitted, mandatory
                                        off-duty period
                                        extended to 72
                                        consecutive hours.

[[Page 50363]]

 
Specific Rules for Nighttime           None...................  None...................  Schedules that include
 Operations.                                                                              any time on duty
                                                                                          between 8 p.m. and 4
                                                                                          a.m. must be analyzed
                                                                                          using a validated
                                                                                          biomathematical model
                                                                                          of human performance
                                                                                          and fatigue approved
                                                                                          by FRA. Schedules with
                                                                                          excess risk of fatigue
                                                                                          must be mitigated or
                                                                                          supported by a
                                                                                          determination that
                                                                                          mitigation is not
                                                                                          possible and the
                                                                                          schedule is
                                                                                          operationally
                                                                                          necessary and approved
                                                                                          by FRA. 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         None...................  None...................  The potential for
 Assignments.                                                                             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     Record for each duty     Record for each duty
                                        tour must contain 15     tour must contain the    tour must contain the
                                        elements specified in    first 12 elements        first 12 elements
                                        49 CFR 228.11(b).        specified in 49 CFR      specified in 49 CFR
                                                                 228.11(b), as items 13   228.11(b). Record must
                                                                 through 16 relate to     also indicate the date
                                                                 RSIA requirements not    on which the series of
                                                                 applicable to train      at most 14 consecutive
                                                                 employees providing      calendar days begins,
                                                                 commuter or intercity    as well as the date of
                                                                 rail passenger           any calendar day on
                                                                 transportation.          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.

[[Page 50364]]

 
Excess Service Reporting Requirements  Requires reporting of    Requires reporting of    Requires reporting of
                                        any of 10 different      any of 4 different       any of 8 different
                                        ways in which hours of   ways in which hours of   ways in which hours of
                                        service limitations      service limitations      service limitations
                                        may be exceeded.         may be exceeded.         may be exceeded
                                                                                          (reflecting various
                                                                                          ways of violating new
                                                                                          consecutive-days
                                                                                          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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.

[[Page 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.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         No regulatory action alternative--                                    Final rule
                                                     freight HSL               -------------------------------------------------------------------------
          Cost description           ------------------------------------------
                                      Undiscounted      PV@7%         PV@3%           Undiscounted                PV@7%                    PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20%    $31,237,549   $26,299,825   $28,705,081  0......................  0......................  0.
 New Hires).
New Engineer Training, Refresher        $4,599,050    $2,278,431    $3,327,802  0......................  0......................  0.
 (20% New Hires).
New Conductor Training, Initial (20%   $30,847,974   $25,942,971   $28,330,908  0......................  0......................  0.
 New Hires).
New Conductor Training, Refresher       $8,636,745    $4,278,146    $6,249,071  0......................  0......................  0.
 (20% New Hires).
Work Schedule Analysis (No-Reg            $189,723      $177,312      $184,198  ($126,482 + $240,316) =  ($118,208 + $122,175) =  ($122,798 + $175,894)
 Action)/Initial Analysis of Work                                                $366,799.                $240,382.                = $298,692.
 Schedules + Follow-up Analysis and
 Fatigue Mitigation Plan Review (FRA
 rule).
Indirect Determination that Type 2    ............  ............  ............  -$91,700...............  -$60,096...............  -$74,673.
 Schedules are Acceptable
 (``Nested'' Schedules Reduction).
Biomathematical Model of Fatigue                 0             0             0  $417,500 (includes       $268,723 (includes       $337,240 (includes
 Software (Training on model use).                                               $192,500 for training    $119,175 for training    $152,843 for training
                                                                                 on model use).           on model use).           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 &                      0             0             0  $20,000................  $12,000................  $16,000.
 Excursion).
                                     -------------------------------------------------------------------------------------------------------------------
    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]
----------------------------------------------------------------------------------------------------------------
                                                                    VSL = $6 M      VSL = $6 M      VSL = $6 M
                   Accident reduction benefits                     undiscounted     discounted      discounted
                                                                     benefits          PV@7%           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

[[Page 50366]]

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 ``no-regulatory 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.''
---------------------------------------------------------------------------

    \2\ A ``train employee'' is defined at 49 U.S.C. 21101(5) and 49 
CFR 228.5 as an individual engaged in or connected with the movement 
of a train, including a hostler. FRA also interpreted this statutory 
term in published interpretations in 49 CFR part 228, appendix A, 
providing: ``Train or engine service refers to the actual assembling 
or operation of trains. Employees who perform this type of service 
commonly include locomotive engineers, firemen, conductors, 
trainmen, switchmen, switchtenders (unless their duties come under 
the provisions of section 3 [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.
---------------------------------------------------------------------------

    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

[[Page 50367]]

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\
---------------------------------------------------------------------------

    \4\ See Pilcher and Coplen, Ergonomics, 2000, Vol. 43, No. 5, 
573-588.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \5\ FRA 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 example, if a fatigue model were to identify a particular type 
of work

[[Page 50368]]

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 off-duty time of 8 
hours in a 24-hour period, or 10 hours after a period of 12 consecutive 
hours on duty. Statutory requirements applicable to train 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).
---------------------------------------------------------------------------

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

    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 off-
duty periods and other limitations. These risks would not be addressed 
by a regulation that simply established maximum on-duty and minimum 
off-duty periods, just as they are not addressed by the existing 
statutory requirements.

A. Validated and Calibrated Fatigue Models \7\
---------------------------------------------------------------------------

    \7\ For a discussion of existing models and their application, 
see Dean II, D.A., Fletcher, A., Hursh, S.R. and Klerman, E.B., 
Developing Models of Neurobehavioral Performance for the ``Real 
World,'' J. Biol. Rhythms 2007; 22; 246.
---------------------------------------------------------------------------

    A biomathematical model of performance and fatigue that has been 
properly validated and calibrated predicts accident risk based on 
analysis of identified periods of wakefulness and periods available for 
sleep.
    ``Validation'' of a biomathematical model of human performance and 
fatigue means determining that the output of 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

[[Page 50369]]

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.
---------------------------------------------------------------------------

    \8\ In statistics, a ``bin'' is a discrete, non-overlapping 
interval of a variable. Here, the variable is the level of fatigue.
---------------------------------------------------------------------------

    Calibration is, in general, the assignment of numerical values to 
represent aspects of empirical observations. In the case of human 
fatigue and performance, the calibration of a fatigue scale would start 
with the assignment of values to ``not fatigued,'' and the most 
fatigued condition might be described as ``severely fatigued.'' The 
calibration process starts during the validation process with the 
assignment of model output values to anchor bins for ``not fatigued'' 
and ``severely fatigued.'' The next step consists of determining the 
fatigue threshold. Given a scale for human fatigue and performance and 
a relationship between that scale and human factors accident risk, a 
final calibration point would be to determine the fatigue value at 
which fatigue becomes unacceptable because the increase in accident 
risk at that level compromises safety. This is the fatigue 
threshold.\9\
---------------------------------------------------------------------------

    \9\ For 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.
---------------------------------------------------------------------------

    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 non-human 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\
---------------------------------------------------------------------------

    \10\ A 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \11\ For more information on the proper procedures for 
validation and calibration of a biomathematical model of performance 
and fatigue, see Raslear, T.G., Criteria and Procedures for 
Validating Biomathematical Models of Human Performance and Fatigue; 
Procedures for Analysis of Work Schedules. (A copy of this document 
has been placed in the docket for this rulemaking.)
---------------------------------------------------------------------------

1. Fatigue Avoidance Scheduling Tool<SUP>TM</SUP> Model
    FRA-sponsored research resulted in the development of a Sleep, 
Activity, Fatigue, and Task Effectiveness (SAFTE) model and Fatigue 
Avoidance Scheduling Tool<SUP>TM</SUP> (FAST) that have been validated 
and calibrated using data from freight railroads. FAST is a 
biomathematical model of performance and fatigue that can be used to 
assess the risk of fatigue in work schedules and to plan schedules that 
ameliorate fatigue. The model takes into account the time of day when 
work occurs (circadian rhythm) and opportunities for sleep based on 
work schedules.\12\
---------------------------------------------------------------------------

    \12\ For a description of the FAST model, see Hursh, S. R., 
Redmond, D. P., Johnson, M. L., Thorne, D. R., Belenky, G., Balkin, 
T. J., Storm, W. F., Miller, J. C., and Eddy, D. R. (2004). Fatigue 
models for applied research in warfighting. Aviation, Space, and 
Environmental Medicine, 75, A44-53.
---------------------------------------------------------------------------

    The model validation used work histories from 400 human factors 
accidents and 1,000 non-human factors accidents on freight railroads. 
The model has not specifically been validated using passenger railroad 
accidents, because there were not enough such accidents in the relevant 
time period to obtain statistically significant results, and had the 
period of analysis been extended sufficiently to capture enough 
passenger railroad accidents, much of the needed work schedule data for 
the employees involved in those accidents would no longer be available. 
However, FAST measures fatigue and effectiveness, based on laboratory 
analysis of cognitive and sensory motor functions during sleep 
deprivation, which are not job specific. Furthermore, the tasks 
associated with freight and passenger train operations are actually 
highly similar. In addition, there was no statistically significant 
difference between the proportion of accidents in categories associated 
with fatigue, between freight and passenger railroads. For all of these 
reasons, FRA has determined that the model is valid for use in 
evaluating fatigue levels in passenger railroad schedules for the 
purposes of this 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.
---------------------------------------------------------------------------

    \13\ Hursh, S. R., Raslear, T. G., Kaye, A. S., and Fanzone, J. 
F. (2006). Validation and calibration of a fatigue assessment tool 
for railroad work schedules, summary report (Report No. DOT/FRA/ORD-
06/21). Washington, DC: U.S. Department of Transportation.
    http://www.fra.dot.gov/downloads/Research/ord0621.pdf; Hursh, S. 
R., Raslear, T. G., Kaye, A. S., and Fanzone, J. F. (2008). 
Validation and calibration of a fatigue assessment tool for railroad 
work schedules, final report (Report No. DOT/FRA/ORD-08/04). 
Washington, DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0804.pdf.
---------------------------------------------------------------------------

    The analysis revealed a significant high correlation between 
reduced predicted crew effectiveness (as a result of increased fatigue) 
and the risk of a human factor accident for freight railroads. As was 
discussed above,

[[Page 50370]]

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\
---------------------------------------------------------------------------

    \14\ See Arnedt, J.T., Wilde, G.J., Munt, P.W., and MacLean, 
A.W. (2001). How do prolonged wakefulness and alcohol compare in the 
decrements they produce on a simulated driving task? Accident 
Analysis and Prevention, 33, 3, 337-44; Dawson, D., and Reid, K. 
(1997). ``Fatigue, alcohol and performance impairment.'' Nature 388, 
23.
    \15\ See also Williamson, A., Feyer, A.M., Friswell, R., and 
Finlay-Brown, S. (2000). Development of Measures of Fatigue: Using 
an Alcohol Comparison to Validate the Effects of Fatigue on 
Performance (Road Safety Research Report CR 189). Canberra, 
Australia: Australian Transport Safety Bureau.
---------------------------------------------------------------------------

    As a result of this analysis, a fatigue threshold (the fatigue 
level at which there is an unacceptable accident risk due to fatigue) 
of 70 was established for FAST.\16\ Accordingly, an effectiveness score 
less than or equal to 70 violates that threshold for the purposes of 
this regulation.\17\
---------------------------------------------------------------------------

    \16\ See Hursh, et al., supra note 7.
    \17\ A 21-day free trial of the FAST Model can be downloaded at 
http://fatiguescience.com/products/fast.
---------------------------------------------------------------------------

2. Fatigue Audit InterDyne\TM\ Model \18\
---------------------------------------------------------------------------

    \18\ For a description of FAID, see Roach, G. D., Fletcher, A., 
and Dawson, D. (2004). A model to predict work-related fatigue based 
on hours of work. Aviation, Space, and Environmental Medicine, 75, 
A61-9.
---------------------------------------------------------------------------

    Another biomathematical model of performance and fatigue that has 
recently been validated and calibrated is the Fatigue Audit InterDyne 
\TM\ (FAID). FAID was validated and calibrated using the same accident 
data from freight railroads as FAST used.\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.
---------------------------------------------------------------------------

    \19\ For details see Tabak, B., and Raslear, T. G. (2010). 
Procedures for Validation and Calibration of Human Fatigue Models: 
The Fatigue Audit InterDyne (FAID) Tool (Report No. DOT/FRA/ORD-10/
14). Washington, DC: U.S. Department of Transportation. (http://www.fra.dot.gov/rpd/downloads/TR_Procedures_or_Validation_and_Calibration_final.pdf) (``FAID validation report'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \20\ Id. at 9.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ A free trial of the FAID Model can be downloaded at http://www.faidsafe.com/products-main.htm#faid330.
---------------------------------------------------------------------------

    In the NPRM, FRA proposed to use the threshold of 60 to trigger the 
requirements to mitigate fatigue in work

[[Page 50371]]

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 x 
(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.
---------------------------------------------------------------------------

    \23\ Tabak and Raslear, infra note 19.
    \24\ Id. at 24.
    \25\ The 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.
---------------------------------------------------------------------------

    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 fatigue-related 
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 Sec.  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.
---------------------------------------------------------------------------

    \26\ See Raslear, supra note 11 for information on procedures 
for validating and calibrating a model.
---------------------------------------------------------------------------

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

    To further support this 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.
---------------------------------------------------------------------------

    \27\ http://www.fra.dot.gov/rpd/downloads/TR_Work_Schedules_and_Sleep_Patterns_final.pdf.
---------------------------------------------------------------------------

    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

[[Page 50372]]

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 self-assessment of overall health. 
The daily log provided the means for survey participants to record 
their daily activities in terms of sleep, personal time, time spent 
commuting to and from work, work time, limbo time, and periods of 
interim release. Study participants also provided self-assessments of 
the quality of their sleep and their level of alertness at the start 
and end of each work period. This study used a 14-day data-collection 
period to accommodate those train employees who did not work a regular 
schedule.
    Researchers drew a random sample of 1275 train employees on 
commuter and intercity passenger railroads. The size of the sample from 
each of the two unions was proportional to that organization's 
representation in the total number of eligible participants. Retirees, 
full-time union officials, and anyone currently holding a railroad 
management position were not eligible for the study. Determination of 
the sample size assumed a 95-percent confidence interval on the 
estimates for mean sleep time, an error tolerance of 15 percent, and a 
33-percent response rate.
    Mailing of the survey materials occurred on December 31, 2009. Ten 
days later, every potential survey participant received a postcard, 
signed by his or her union president, to encourage the employee to 
participate in the survey. Three weeks after distribution of the 
materials, a second postcard thanked those who had decided to 
participate and encouraged those who had not yet done so to 
participate.
    The overall response rate for the survey was 21 percent. Of the 269 
complete responses, 13 could not be part of the analysis because either 
there were problems with the respondents' log books, or the respondents 
were not in crafts covered by the survey. (It was not possible to 
identify these individuals from the information contained in union 
membership databases.) The nonresponse-bias study based on age found no 
difference between survey respondents and nonrespondents.
    The results of the study support the approach that FRA has taken in 
this rule. For instance, the results are consistent with the separate 
analysis during the development of this 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:
---------------------------------------------------------------------------

    \28\ For more information about RSAC activities, see http://rsac.fra.dot.gov/. Meetings of the full RSAC are also announced by 
publication in the Federal Register.
---------------------------------------------------------------------------

    <bullet> American Association of Private Railroad Car Owners 
(AARPCO);
    <bullet> American Association of State Highway and Transportation 
Officials (AASHTO);
    <bullet> American Chemistry Council;
    <bullet> American Petroleum Institute;
    <bullet> APTA;
    <bullet> American Short Line and Regional Railroad Association 
(ASLRRA);
    <bullet> American Train Dispatchers' Association (ATDA);
    <bullet> AAR;
    <bullet> Association of Railway Museums;
    <bullet> Association of State Rail Safety Managers (ASRSM);
    <bullet> BLET;
    <bullet> Brotherhood of Maintenance of Way Employees Division 
(BMWED);
    <bullet> Brotherhood of Railroad Signalmen (BRS);
    <bullet> The Chlorine Institute;
    <bullet> FRA;
    <bullet> Federal Transit Administration (FTA);*
    <bullet> Fertilizer Institute;
    <bullet> High Speed Ground Transportation Association (HSGTA);
    <bullet> Institute of Makers of Explosives;
    <bullet> International Association of Machinists and Aerospace 
Workers;
    <bullet> International Brotherhood of Electrical Workers (IBEW);
    <bullet> Labor Council for Latin American Advancement;*
    <bullet> League of Railway Industry Women;*
    <bullet> National Association of Railroad Passengers (NARP);
    <bullet> National Association of Railway Business Women;*
    <bullet> National Conference of Firemen & Oilers;
    <bullet> National Railroad Construction and Maintenance Association 
(NRC);

[[Page 50373]]

    <bullet> National Railroad Passenger Corporation (Amtrak);
    <bullet> National Transportation Safety Board (NTSB);*
    <bullet> Railway Supply Institute (RSI);
    <bullet> Safe Travel America (STA);
    <bullet> Secretaria de Comunicaciones y Transporte;*
    <bullet> Sheet Metal Workers International Association (SMWIA);
    <bullet> Tourist Railway Association, Inc.;
    <bullet> Transport Canada;*
    <bullet> Transport Workers Union of America (TWU);
    <bullet> Transportation Communications International Union/BRC 
(TCIU/BRC);
    <bullet> Transportation Security Administration (TSA);* and
    <bullet> 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:
    <bullet> AASHTO;
    <bullet> Amtrak;
    <bullet> APTA;
    <bullet> ASLRRA;
    <bullet> ATDA;
    <bullet> AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway Company (CN), Canadian Pacific Railway, 
Limited (CP), CSX Transportation, Inc. (CSXT), Iowa Interstate 
Railroad, Ltd. (IAIS), Kansas City Southern (KCS) railroads, Metra 
Electric District, Norfolk Southern Corporation (NS) railroads, and 
Union Pacific Railroad Company (UP);
    <bullet> BLET;
    <bullet> BRS;
    <bullet> FRA;
    <bullet> FTA;
    <bullet> IBEW;
    <bullet> Long Island Rail Road (LIRR);
    <bullet> Metro-North Commuter Railroad Company (Metro-North);
    <bullet> National Association of Railroad Passengers (NARP);
    <bullet> National Railroad Construction and Maintenance 
Association;
    <bullet> National Transportation Safety Board (NTSB);
    <bullet> Southeastern Pennsylvania Transportation Authority 
(SEPTA);
    <bullet> Tourist Railway Association; and
    <bullet> UTU.
    The Working Group completed its work after six meetings and several 
conference calls. The first meeting of the Working Group took place on 
June 24, 2009, in Washington, DC. At that meeting the group heard 
several presentations on fatigue science, including a report on the 
diary study that was to be conducted as described above. The group 
discussed the general approach for the rulemaking, and it was agreed 
that analysis of the railroads' work schedules would support the 
rulemaking. Subsequent meetings were held on February 3, 2010; March 4, 
2010; April 6, 2010; May 20, 2010; and June 29, 2010. In addition, a 
Task Force was formed that met on January 14-15, 2010, March 30-31, 
2010, and April 28-29, 2010.
    At the conclusion of the June 29, 2010 meeting, the Working Group 
voted to approve a draft of the proposed rule text, with the exception 
of two sections, to which the group had suggested numerous edits. It 
was agreed that FRA would address the remaining issues in those 
sections and circulate a revised draft, on which the group would vote 
electronically. After the revised draft was produced, the Task Force 
had several conference calls to discuss the revised provisions, and FRA 
also participated in several calls with task force members. Ultimately, 
on September 22, 2010, the Working Group voted unanimously to agree to 
the rule text presented in 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\
---------------------------------------------------------------------------

    \29\ The rule text voted on by the full RSAC and recommended to 
FRA is available on the RSAC Web site.
---------------------------------------------------------------------------

    Following the vote of the Working Group and the full RSAC, FRA 
recognized the need to make two changes to the recordkeeping and 
reporting requirements in 49 CFR 228.11 and 228.19, to accommodate a 
new substantive limitation contained in the proposed rule as approved 
by the RSAC. While the RSAC voted in favor of the 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

[[Page 50374]]

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

[[Page 50375]]

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

[[Page 50376]]

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 Sec.  228.405. FRA expects that 
railroads would not be operating schedules that violate these 
limitations; most schedules have long been in effect for the railroads 
subject to this 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 Sec.  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 Sec.  228.405(a)(3) and (a)(4) of the proposed 
rule, and Sec.  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.
---------------------------------------------------------------------------

    \30\ Folkard, S. and Akerstedt, T., Trends in the Risk of 
Accidents and Injuries and Their Implications for Models of Fatigue 
and Performance, Aviat. Space Environ. Med. (2004).
    \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.
    \32\ Balkin, T., Thorne, D., Sing, H. (2000). Effects of sleep 
schedules on commercial driver performance (Report No. DOT-MC-00-
133). Washington, DC: U.S. Department of Transportation.
---------------------------------------------------------------------------

    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

[[Page 50377]]

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.
---------------------------------------------------------------------------

    \33\ See Raslear, supra note 11.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \34\ See Hursh, et al., supra note 13, and Tabak and Raslear, 
supra note 19.
---------------------------------------------------------------------------

    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

[[Page 50378]]

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 Sec.  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.
---------------------------------------------------------------------------

    \35\ OMB Circular A-4 is available at: http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.
---------------------------------------------------------------------------

    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

[[Page 50379]]

``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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 lower-cost 
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 Sec.  
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 (Sec.  228.401 and Sec.  
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

[[Page 50380]]

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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 (Sec.  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 on-duty period in a period of 14 consecutive 
calendar days, that employee must have two consecutive calendar days 
off duty at his or her

[[Page 50381]]

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\
---------------------------------------------------------------------------

    \37\ See, 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).
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  
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'' (Sec.  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 Sec.  228.5.

Comments About Nap Policies and Sleep Facilities (Sec.  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 (Sec.  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

[[Page 50382]]

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 Sec.  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 Sec.  
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 Sec.  228.401, which is the specific applicability 
provision for new subpart F.
    Paragraph (b) of Sec.  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 Sec.  228.405 and the requirements 
for analysis of schedules and submission of schedules to FRA for 
approval in Sec.  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

[[Page 50383]]

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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 on-duty 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 Sec.  
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 Sec.  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 Sec.  
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

[[Page 50384]]

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 Sec.  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.
---------------------------------------------------------------------------

    \38\ Similarly, 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.
---------------------------------------------------------------------------

    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 Sec.  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 on-duty period on 6 consecutive calendar days 
including one or more Type 2 assignments must have at least 24 
consecutive hours off duty at the employee's home terminal. 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 on-duty 
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

[[Page 50385]]

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 on-duty 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 on-duty period on May 4 and May 9, the 
series beginning on May 1 ends on May 9. If the employee next initiates 
an on-duty 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 at-most 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 calendar days without 
initiating an on-

[[Page 50386]]

duty period. If an employee initiated an on-duty period each day on 6 
consecutive calendar days, had one calendar day without initiating an 
on-duty period, and then initiated an on-duty 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 on-duty 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 
on-duty 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 on-duty 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 on-duty 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 on-duty 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 
on-duty 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 Sec.  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

[[Page 50387]]

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 Sec.  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 two-week 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 Sec.  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

[[Page 50388]]

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

[[Page 50389]]

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 cost-effective 
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 Sec.  228.407, 
then those facilities are subject to the requirement in Sec.  
228.407(f), that the railroad consult with affected employees and labor 
organizations.

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 
Sec.  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 Sec.  
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

[[Page 50390]]

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 Sec. Sec.  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

[[Page 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 high-fatigue risk levels. 
It is not unreasonable to expect that the unquantified benefits will 
raise the benefits to a level quite comparable to the costs.
    FRA 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.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            No regulatory action alternative                                   FRA final rule
          Cost description          --------------------------------------------------------------------------------------------------------------------
                                     Undiscounted      PV@7%           PV@3%             Undiscounted               PV@7%                  PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20%   $31,237,549   $26,299,825        $28,705,081  0.....................  0....................  0.
 New Hires).
New Engineer Training, Refresher       $4,599,050    $2,278,431         $3,327,802  0.....................  0....................  0.
 (20% New Hires).
New Conductor Training, Initial       $30,847,974   $25,942,971        $28,330,908  0.....................  0....................  0.
 (20% New Hires).
New Conductor Training, Refresher      $8,636,745    $4,278,146      $6,249,071.15  0.....................  0....................  0.
 (20% New Hires).
Work Schedule Analysis (No-Reg           $189,723      $177,312           $184,198  ($126,482 + $240,316)   ($118,208 + $122,175)  ($122,798 + $175,894)
 Action)/Initial Analysis of Work                                                    = $366,799.             = $240,382.            = $298,692.
 Schedules + Follow-up Analysis and
 Fatigue Mitigation Plan Review.
Indirect Determination that Type 2   ............  ............  .................  -$91,700..............  -$60,096.............  -$74,673.
 Schedules are Acceptable
 (``Nested'' Schedules Reduction.
Biomathematical Model of Fatigue                0             0                  0  $417,500..............  $268,723.............  $337,240.
 Software.
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 &                     0             0                  0  $20,000...............  $12,000..............  $16,000.
 Excursion).
                                    --------------------------------------------------------------------------------------------------------------------
    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,

[[Page 50392]]

injuries, and fatalities, over a 20-year period of analysis are 
presented below.

                         Intercity Passenger, Commuter, Tourist and Excursion Railroads
                                                [All track types]
----------------------------------------------------------------------------------------------------------------
                                                                    VSL = $6 M      VSL = $6 M      VSL = $6 M
                   Accident reduction benefits                     undiscounted   discounted PV@  discounted PV@
                                                                     benefits           7%              3%
----------------------------------------------------------------------------------------------------------------
Property Damage.................................................        $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

[[Page 50393]]

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 Sec.  
228.407 work schedule analysis and that its dinner train assignments 
should be specifically exempted from the Sec.  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'' 
not-for-profit enterprises that are independently owned and operated, 
and are not dominant in their fields of operation. Additionally, 
Section 601(5) defines as ``small entities'' governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be and still classify as a ``small 
entity'' is 1,500 employees for ``Line-Haul Operating'' railroads, and 
500 employees for ``Short-Line Operating'' railroads.\39\
---------------------------------------------------------------------------

    \39\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR part 121. See also NAICS 
Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy that formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad.\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.
---------------------------------------------------------------------------

    \40\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
    \41\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    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

[[Page 50394]]

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., computer-based training, job 
briefings, pamphlets, as well as in class instruction). Such training 
could be accomplished in about one hour initially and 15 minutes 
triennially per train employee. Small freight railroads operating 
commuter trains could recoup any costs associated with this rulemaking 
from the commuter authorities with which they contract.
    The requirements of this rule that 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 Sec.  
228.403. As noted earlier, this particular exemption is substantively 
identical to the exemption provision of the HSL at 49 U.S.C. 21102(b), 
which was unchanged by the RSIA, and Sec.  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.

[[Page 50395]]

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                             Total annual        Average time per    Total annual
            provision             Respondent universe        responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of Duty Records     768 railroads/       27,429,750 records..  2 min./5 min./10          2,856,125
 (Current Requirement).            signal contractors.                        min.
228.17--Dispatcher's Record of    150 Dispatch         200,750 records.....  3 hours............         602,250
 Train Movements (Current          Offices.
 Requirement).
228.19--Monthly Reports of        300 railroads......  2,670 reports.......  2 hours............           5,340
 Excess Service (Current
 Requirement But Now includes
 consecutive days on duty).
228.103--Construction of          50 railroads.......  1 petition..........  16 hours...........              16
 Employee Sleeping Quarters--
 Petitions to allow construction
 near work areas (Current
 Requirement).
228.203--Program Components       9 railroads........  5 modifications.....  120 hours..........              60
 (Current Requirements)--
 Electronic Recordkeeping--
 Modifications for Daylight
 Savings Time.
--System Security/Individual      9 railroads........  1 program w/security/ 720 Hours..........             720
 User Identification/Program                            etc.
 Logic Capabilities/Search
 Capabilities.
228.205--Access to Electronic     768 railroads/       100 electronic        30 minutes.........              50
 Records--(Current Requirement)--  signal contractors.  records access
 System Access Procedures for                           procedures.
 Inspectors.
228.207--Training in Use of       768 railroads/       47,000 tr. employees  1 hour.............          47,000
 Electronic System--(Current       signal contractors.
 Requirements)--Initial Training.
--Refresher Training............  768 railroads/       2,200 tr. employees.  1 hour.............           2,200
                                   signal contractors.
49 U.S.C. 21102(b)--The Federal   10 railroads.......  2 petitions.........  10 hours...........              20
 hours of service laws--
 Petitions for Exemption from
 Laws (Current Requirement).
228.403--Exemption requests from  28 railroads.......  5 exemption requests  8 hours............              40
 passenger/commuter railroads--
 (New Requirements).
--Initial exemption requests      140 railroads......  10 exempt requests..  2 hours............              20
 from tourist/excursion
 railroads.
--Renewal exemption requests      140 railroads......  5 renewal exemption   30 minutes.........               3
 from tourist/excursion                                 requests.
 railroads.
228.407--Analysis of Work         168 railroads......  28 analyses.........  80 hours...........           2,240
 Schedules Submissions (New
 Requirements).
--Reports to FRA of Work          168 railroads......  20 reports..........  2 hours............              40
 Schedules that Violate Fatigue
 Threshold.
--Fatigue Mitigation Plans        168 railroads......  15 plans............  4 hours............              60
 Submitted to FRA.
--Submission of Work Schedules    168 railroads......  15 work schedule      4 hours............              60
 Using Validation Model                                 submissions.
 Violating Threshold that can be
 mitigated by tools.
--Submission of Work Schedules    168 railroads......  5 work schedule       4 hours............              20
 Using Validation Model                                 submissions.
 Violating Threshold that cannot
 be mitigated by tools.
--RR Determinations of necessary  168 railroads......  20 decisions........  2 hours............              40
 schedules.
--RR Declaration that no work     168 railroads......  148 written           1 hour.............             148
 schedule needs to be submitted                         declarations.
 to FRA for violating fatigue
 threshold.
--Corrected work schedules, etc.  168 railroads......  2 documents.........  2 hours............               4
--Submission of follow-up         168 railroads......  28 analyses.........  4 hours............             112
 analysis by RR due to work
 schedule change.
--Corrected work schedules, etc.  168 railroads......  2 documents.........  2 hours............               4
--Updated fatigue mitigation      168 railroads......  28 plans............  4 hours............             112
 plans.
--RR consultations w/employees..  168 railroads......  28 plans............  4 hours............             112
--Filed statements w/FRA by       RR Employees/        5 statements........  2 hours............              10
 employees and employee            Employee
 organizations unable to reach     Organizations.
 consensus w/RR on work
 schedules or mitigation tools/
 RR submissions to FRA.
228.411--Training Programs (New   168 railroads......  29 programs.........  20 hours...........             580
 Requirements).
--Employee Initial Training.....  168 railroads......  10,200 tr. employees  1 hour.............          10,200
--Initial Training--New           168 railroads......  150 trained           1 hour.............             150
 Employees.                                             employees.
--Triennial Refresher Training    168 railroads......  n/a.................  n/a................             n/a
 of Employees \42\.
--Records of Training...........  168 railroads......  10,350 records......  5 minutes..........             863
--Written Declaration by Tourist  140 railroads......  100 written           60 minutes.........             100
 Railroads for Exclusion from                           declarations.
 this Section's Requirements.
Appendix D: Guidance on Fatigue   168 railroads......  4 plans.............  15 hours...........              60
 Management Plans--(New Option).
----------------------------------------------------------------------------------------------------------------

    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: <a href="/cdn-cgi/l/email-protection#f7a59895928583d9b58598909699b7939883d9909881"><span class="__cf_email__" data-cfemail="386a575a5d4a4c167a4a575f5956785c574c165f574e">[email protected]</span></a>; <a href="/cdn-cgi/l/email-protection#e1aa888c8384938d98cfb58e8e8f84a1858e95cf868e97"><span class="__cf_email__" data-cfemail="ce85a7a3acabbca2b7e09aa1a1a0ab8eaaa1bae0a9a1b8">[email protected]</span></a>.
    Organizations and individuals desiring to submit comments on the

[[Page 50396]]

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-- <a href="/cdn-cgi/l/email-protection#295a5c4b44405a5a4046476946444b074c4659074e465f"><span class="__cf_email__" data-cfemail="334046515e5a40405a5c5d735c5e511d565c431d545c45">[email protected]</span></a>.
---------------------------------------------------------------------------

    \42\ The 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 
rule, which will be addressed in the renewal submission for this 
information collection.
---------------------------------------------------------------------------

    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]

0
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.


0
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:


Sec.  228.1  Scope.

* * * * *
    (d) Prescribes substantive hours of service requirements for train 
employees engaged in commuter or intercity rail passenger 
transportation.

0
3. Section 228.3 is amended by revising paragraph (b) introductory text 
to read as follows:


Sec.  228.3  Application.

* * * * *
    (b) Except as provided in Sec.  228.401 of this part, this part 
does not apply to:
* * * * *

0
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:


Sec.  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 
Sec.  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 Sec.  228.407(c)(1) or approved by FRA under the procedures at Sec.  
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 Sec.  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 Sec.  228.407(c)(1);
    (ii) It complies with the provisions of Sec.  228.405; and

[[Page 50397]]

    (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 Sec.  228.405.

0
5. Section 228.11 is amended by revising paragraph (c) to read as 
follows:


Sec.  228.11  Hours of duty records.

* * * * *
    (c) Exceptions to requirements for train employees. Paragraphs 
(b)(13) through (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.
* * * * *

0
6. Section 228.19 is amended by adding paragraphs (c)(5) through (8) to 
read as follows:


Sec.  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 Sec.  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 Sec.  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]

0
7. Subpart E to part 228 is added and reserved.

0
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


Sec.  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.


Sec.  228.403  Nonapplication, exemption, and definitions.

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


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

    (a) General. Except as provided in paragraph (c) of this section, a 
railroad and its officers and agents may not require or allow a train 
employee

[[Page 50398]]

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 Sec.  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 
on-duty 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 on-duty 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 on-duty 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.


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

    (a) Analysis of work schedules. Each railroad subject to this 
subpart must perform an analysis of one cycle of the work schedules 
(the period within which the work schedule repeats) of its train 
employees engaged in commuter or intercity rail passenger 
transportation and identify those work schedules intended to be 
assigned to its train employees, that, if worked by such a train 
employee, put the train employee at risk for a level of fatigue at 
which safety may be compromised. 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

[[Page 50399]]

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 Sec.  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 Tool\TM\ (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 
InterDyne\TM\ (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 FRA-approved parameters for hours of 
duty of any work schedule previously analyzed pursuant to paragraph (a) 
of this section; or
    (ii) That would alter the work schedule to the extent that train 
employees who work the schedule may be at risk of experiencing a level 
of fatigue that 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:

[[Page 50400]]

    (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.


Sec.  228.409  Requirements for railroad-provided employee sleeping 
quarters during interim releases and other periods available for rest 
within a duty tour.

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


Sec.  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 Sec.  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.


Sec.  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 Sec.  228.411, on and after April 12, 2012, railroads 
subject to this subpart shall comply with this subpart and Sec. Sec.  
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 Sec. Sec.  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 Sec. Sec.  228.11(c)(1)-(2) and 
228.19(c)(5)-(c)(8) until April 12, 2013.

0
9. Add Appendix D to Part 228 to read as follows:

[[Page 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 Sec.  228.407 (containing the fatigue mitigation tools 
that the railroad has determined will mitigate the risk posed by a 
particular work schedule for a level of fatigue at or above the 
fatigue threshold), then the railroad's fatigue management plan 
could include the railroad's written fatigue mitigation plan, 
designated as such to distinguish it from the part of the plan that 
is optional, or could be a separate document. As provided in Sec.  
228.407(a)(2) and (e), compliance with the fatigue mitigation plan 
itself is mandatory.
    (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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>