[Federal Register Volume 88, Number 208 (Monday, October 30, 2023)]
[Proposed Rules]
[Pages 74107-74113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23916]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 675

[Docket No. FTA-2023-0018]
RIN 2132-AB46


Transit Worker Hours of Service and Fatigue Risk Management

AGENCY: Federal Transit Administration (FTA), Department of 
Transportation (DOT).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Federal Transit Administration (FTA) is considering 
proposing minimum safety standards to provide protections for transit 
workers to obtain adequate rest thereby reducing the risk of fatigue-
related safety incidents. FTA seeks public input in two areas: hours of 
service; and fatigue risk management programs. FTA seeks information to 
understand better current industry practices, priorities, requirements, 
and the costs and benefits of Federal requirements. The information 
received in response to this ANPRM will assist FTA as it considers 
potential regulatory requirements.

DATES: Comments should be filed by December 29, 2023.

ADDRESSES: You may send comments, identified by docket number FTA-2023-
0018, by any of the following methods:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
    <bullet> Fax: (202) 493-2251.
    <bullet> Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
    <bullet> Hand Delivery/Courier: Dockets Operations, West Building, 
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal 
holidays.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
https://

[[Page 74108]]

www.regulations.gov, including any personal information provided. For 
detailed instructions on sending comments and additional information on 
the rulemaking process, see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov. Background 
documents and comments received may also be viewed at the U.S. 
Department of Transportation, 1200 New Jersey Ave. SE, Docket 
Operations, M-30, West Building, Ground Floor, Room W12-140, 
Washington, DC 20590-0001, between 9 a.m. and 5 p.m. EST, Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program matters, contact Valerie 
Beck, Office of Transit Safety and Oversight, FTA, telephone (202) 366-
9178 or <a href="/cdn-cgi/l/email-protection#5f190b1e19362b313a2c2c39302d1b2a2b261f3b302b71383029"><span class="__cf_email__" data-cfemail="9fd9cbded9f6ebf1faececf9f0eddbeaebe6dffbf0ebb1f8f0e9">[email protected]</span></a>. For legal matters, contact Emily 
Jessup, Attorney Advisor, 202-366-8907 or <a href="/cdn-cgi/l/email-protection#3e5b5357524710545b4d4d4b4e7e5a514a10595148"><span class="__cf_email__" data-cfemail="d6b3bbbfbaaff8bcb3a5a5a3a696b2b9a2f8b1b9a0">[email protected]</span></a>.
    Office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Legal Basis for Rulemaking
II. Background
    A. Hours of Service
    B. Fatigue Risk Management Programs
III. Comments Sought
    A. Regulatory Options
    B. Benefits and Costs
    C. Fatigue Data Collection
    D. Current Hours of Service and Fatigue Risk Management Policies
IV. Regulatory Analyses and Notices

I. Legal Basis for Rulemaking

    Congress directed the Federal Transit Administration (FTA) to 
establish a comprehensive Public Transportation Safety Program in the 
Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141) 
(MAP-21), which was reauthorized by the Fixing America's Surface 
Transportation Act (Pub. L. 114-94). The Bipartisan Infrastructure Law 
(BIL), enacted as the Infrastructure Investment and Jobs Act (Pub. L. 
117-58) (IIJA), continues FTA's authority to regulate public 
transportation systems that receive Federal financial assistance under 
chapter 53 of title 49.\1\ Section 5329(f)(7) of title 49, United 
States Code, authorizes FTA to issue rules to carry out the public 
transportation safety program.
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    \1\ Enacted by the Infrastructure Investment and Jobs Act. 
Public Law 117-58 (November 15, 2021).
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    Section 5329(b)(2) of title 49, United States Code, directs FTA to 
develop and implement a National Public Transportation Safety Plan 
(NSP) that includes minimum safety standards to ensure the safe 
operation of public transportation systems. In 2017, FTA published its 
first iteration of the NSP, which was intended to be FTA's primary tool 
for communicating with the transit industry about its safety 
performance.\2\ Subsequently, on May 31, 2023, FTA published proposed 
revisions to the NSP to address new requirements in the IIJA, to 
continue to mature FTA's national safety program and to advance transit 
safety further (88 FR 34917). While the NSP currently contains only 
voluntary standards, FTA is considering whether to propose mandatory 
standards for transit worker hours of service and fatigue risk 
management through a new rulemaking.
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    \2\ 82 FR 5628 (January 18, 2017).
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II. Background

    At present, there are no Federal minimum standards for hours of 
service (HOS) and fatigue risk management programs (FRMP) in the 
transit industry. HOS regulations reduce excessively long work hours, 
while FRMP address other workplace factors impacting fatigue, such as 
training and scheduling. Public transit is the only mode of 
transportation without such standards for its workers. The National 
Transportation Safety Board (NTSB) and FTA's Transit Advisory Committee 
for Safety (TRACS), among others, have recommended regulatory action to 
address safety concerns associated with transit worker fatigue. NTSB 
has found fatigue to be a cause and contributing factor for dozens of 
fatal transportation events dating back almost 40 years.
    NTSB has repeatedly identified rail transit crashes in which 
fatigue played a role. In 2004, two Washington Metropolitan Area 
Transit Authority Metrorail trains collided at the Woodley Park 
station, resulting in the transport of about 20 people to local 
hospitals and causing an estimated $3.45 million in property damage. 
NTSB found that the train operator, who had only 8 hours off between 
shifts, did not have the opportunity to receive adequate sleep to be 
fully alert and to operate safely.\3\ In 2014, a Chicago Transit 
Authority train collided with a bumping post at O'Hare Station and went 
up an escalator at the end of the track, resulting in 33 injured 
passengers, an injured train operator, and $11.1 million in damages. 
NTSB found that the train operator had worked 12 consecutive days and 
nights and experienced the effects of a cumulative sleep debt, which 
contributed to them falling asleep.\4\ In 2021, two Massachusetts Bay 
Transportation Authority light rail vehicles collided, resulting in 24 
injured passengers, 3 injured crewmembers, and about $2 million in 
equipment damage. The train operator told investigators that they 
believed they had fallen asleep.\5\
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    \3\ See NTSB RAR-06/01 ``Collision Between Two Washington 
Metropolitan Area Transit Authority Trains at the Woodley Park-Zoo/
Adams Morgan Station in Washington, DC'' (November 3, 2004), 
available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0601.pdf (last visited May 16, 2023).
    \4\ See NTSB/RAR-15-01 ``Railroad Accident Report: Chicago Train 
Authority Train Collides with Bumping Post and Escalator at O'Hare 
Station'' (March 24, 2014), available at https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf (last visited 
April 5, 2023).
    \5\ See NTSB/RIR-22-15 ``Massachusetts Bay Transportation 
Authority Trolley Collision with Derailment'' (July 30, 2021), 
available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RIR2215.pdf (last visited May 16, 2023).
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    In addition to NTSB's reports, local investigations have identified 
fatigue-related transit crashes. For example, on March 11, 2023, a 
Denver Regional Transportation District (RTD) light rail train 
derailed, resulting in injuries to two people, the train and RTD track, 
and station infrastructure. RTD determined that the train operator 
likely fell asleep before impact.\6\ In addition, the Washington 
Metrorail Safety Commission has identified at least two recent 
incidents in which a train operator appeared to fall asleep while 
operating the train.\7\
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    \6\ See Corrective Action Plan CAP01-03112023, The Regional 
Transportation District (RTD)--Denver (April 25, 2023), available at 
https://s3.documentcloud.org/documents/23789054/042523-cap01-03112023-jeffco-station-derailment.pdf (last visited May 17, 2023).
    \7\ See WMSC Commissioner Brief: W-0128--Red Signal Overrun--
Largo Town Center Station--August 18, 2021 (Dec. 7, 2021), available 
at https://wmsc.gov/wp-content/uploads/2021/12/W-0129-Red-Signal-Overrun-at-Largo-Town-Center-Station-August-18-2021.pdf (last 
visited May 17, 2023); Final Report of Investigation A&I E19328 
(June 25, 2019), available at https://wmsc.gov/wp-content/uploads/2020/02/W-0019-Adoption-of-WMATA-Final-Report_E19326_2019_06_25-Failure-to-service-station-merged.pdf (last visited May 17, 2023).
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    FTA's stakeholders have also identified fatigue as an area of 
concern. On July 15, 2021, FTA published a Request for Information to 
solicit input from the public regarding information and data on transit 
safety concerns that FTA should evaluate for potential action.\8\ FTA 
received 86 comments from 78 individuals and organizations, including 
rail transit agencies, State Safety Oversight Agencies, labor unions, 
industry businesses and organizations, and private individuals. 
Respondents,

[[Page 74109]]

including 4 transit agencies, offered 21 comments recommending FTA 
develop HOS requirements.
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    \8\ 86 FR 37400 (July 15, 2021).
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    Studies and medical research reports indicate that fatigue can 
deleteriously affect transportation worker performance. FTA's 2022 
report, Medical Fitness for Duty and Fatigue Risk Management prepared 
by the Center for Urban Transportation Research (``CUTR 2022 Report''), 
concluded that a fatigued transit worker may be unable to effectively 
perform safety-critical tasks, which may lead to ``catastrophic 
events.'' \9\ A 2017 National Safety Council report, Fatigue in Safety-
Critical Industries, found that 97 percent of employers in the 
transportation industry state that workers feel the impact of fatigue 
(the highest among all the safety-critical industries surveyed), that 
66 percent reported decreases in productivity due to fatigue, and that 
45 percent stated they had experienced safety incidents due to fatigue-
related issues.\10\ In a study of railroad employees, the Federal 
Railroad Administration (FRA) found that exposure to fatigue raised the 
chance of a human factors accident by 11 to 65 percent.\11\ Two 
research studies specifically examine transit bus operator fatigue. The 
first study found an increased propensity for collision involvement 
with an increase in weekly driving hours.\12\ The second study found 
that most bus operators work split schedules, which use shifts that are 
broken by a long break, typically two or more hours. The study found 
that split schedules are the most fatigue-inducing schedule.\13\ News 
reports of fatigue-related transit bus crashes also indicate, 
anecdotally, that transit bus operator fatigue is more prevalent than 
is captured in NTSB accident reports and State Safety Oversight Agency 
incident reports to FTA.\14\ FTA does not collect fatigue data as part 
of its National Transit Database (NTD), and there are no Federal 
requirements that the influence of fatigue be recorded during safety 
incident investigations.
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    \9\ See FTA Report No. 0223 ``FTA Standards Development Program: 
Medical Fitness for Duty and Fatigue Risk Management'' (June 2022), 
available at https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf (last visited April 5, 2023).
    \10\ See National Safety Council Report ''Fatigue in Safety-
Critical Industries: Impact, Risks & Recommendations'' (2017), 
available at: https://nsccdn.azureedge.net/nsc.org/media/site-media/docs/fatigue/part3-fatigue-survey-report.pdf (last visited June 22, 
2023).
    \11\ See Federal Railroad Administration, ``Fatigue Status of 
the U.S. Railroad Industry'' (2013), available at https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/2929/TR_Fatigue%20Status%20US%20Railroad%20Industry_CO%2020121119_20130221_FINAL.pdf (last visited April 21, 2023).
    \12\ See Sando, T., Mtoi, E., & Moses, R., ``Potential Causes of 
Driver Fatigue: A Study on Transit Bus Operators in Florida,'' 
Transportation Research Board of the National Academies' 2011 90th 
Annual Meeting, paper no. 11-3398, November 2010, available in the 
public docket for this rulemaking.
    \13\ See Sando, T., Angel, M., Mtoi, E., & Moses, R., ``Analysis 
of the Relationship Between Operator Cumulative Driving Hours and 
Involvement in Preventable Collisions,'' Transportation Research 
Board of the National Academies' 2011 90th Annual Meeting, paper no. 
11-4165, November 2010, available in the public docket for this 
rulemaking.
    \14\ See, e.g., ``New Video released in 2021 Pace bus crash that 
killed woman after driver fell asleep at the wheel'' (March 27, 
2023), available at https://www.fox32chicago.com/news/pace-to-pay-13m-settlement-after-bus-driver-fell-asleep-at-wheel-causing-crash-that-killed-68-year-old-woman (last visited May 17, 2023); ``Sleepy 
SMART bus driver who caused crash gets 93 days in jail'' (May 4, 
2015), available at https://www.clickondetroit.com/news/2015/05/04/sleepy-smart-bus-driver-who-caused-crash-gets-93-days-in-jail/ (last 
visited May 17, 2023).
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    This advance notice of proposed rulemaking (ANPRM) does not make 
specific proposals but requests public input in two areas: (1) HOS; and 
(2) FRMP. FTA will use information received in response to this ANPRM 
to inform FTA's future decision-making on whether and how to pursue 
Federal regulatory action in those two areas. This ANPRM is not 
requesting input on other topics that may impact a transit worker's 
fitness for duty, including medical qualifications and prescription and 
over-the-counter drug use, unless they are relevant to HOS or FRMP. FTA 
may address those topics independently in the future.

A. Hours of Service

    The goal of HOS regulations is to prevent excessively long work 
hours to lower the risk of fatigue and fatigue-related safety 
incidents. While HOS regulations alone cannot ensure that individuals 
receive adequate restorative rest, they can ensure that individuals 
have enough time off to obtain adequate rest on a daily and weekly 
basis. HOS regulations generally define parameters for active work 
time, time on duty, time off duty between shifts, work week hours, and 
the maximum number of consecutive workdays.
1. NTSB and TRACS Recommendations
    NTSB has four open fatigue-related safety recommendations to FTA 
arising from a March 2014 rail collision in which a train collided with 
a bumping post and went up an escalator at the O'Hare Station in 
Chicago, Illinois.\15\ NTSB determined that the probable cause of the 
collision was the failure of the train operator to stop the train due 
to falling asleep as a result of fatigue. Safety Recommendation R-15-
019 recommends FTA establish regulations that set HOS limitations, 
provide predictable work and rest schedules, and consider circadian 
rhythms and sleep and rest requirements. The other three 
recommendations are discussed in the Fatigue Risk Management section 
below.
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    \15\ See NTSB/RAR-15-01 ``Railroad Accident Report: Chicago 
Train Authority Train Collides with Bumping Post and Escalator at 
O'Hare Station'' (March 24, 2014), available at https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf 
(last visited April 5, 2023).
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    In October 2014, FTA tasked TRACS with developing recommendations 
on the elements that should comprise a Safety Management System (SMS) 
approach to a fatigue management program. TRACS found that transit 
worker fatigue is a serious problem and recommended in 2015 that FTA 
develop a Federal regulation mandating minimum HOS requirements as its 
first priority.\16\ TRACS issued a report which noted that the 
committee ``feels strongly that HOS is a fundamental, initial pillar of 
an SMS framework and should be implemented by FTA as soon as 
possible.'' In the same report, TRACS recommended that FTA's HOS 
regulations apply to employees involved with moving revenue and 
maintenance equipment, including bus and rail operators, dispatchers, 
conductors, and controllers. TRACS further recommended a maximum of 12 
on-duty hours over a maximum duty tour of 14 hours, including any 
periods of interim release, with a minimum of 10 consecutive hours off-
duty between shifts, and a maximum number of 6 consecutive working 
days.
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    \16\ See TRACS Report 14-02, ``Establishing a Fatigue Management 
Program for the Bus and Rail Transit Industry'' (July 30, 2015), 
available at https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_(2).pdf (last visited April 5, 
2023).
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    TRACS considered whether FTA should identify a maximum number of 
on-duty hours over the six consecutive working days. In its report, 
TRACS noted that experts from the Volpe National Transportation Systems 
Center recommended a limit of 60 on-duty hours over 6 consecutive 
working days, which would allow for a 10-hour workday, 9 hours of 
sleep, a 2-hour commute, and 5 hours of personal time (e.g., eating, 
showering, and family time). TRACS found that some agencies expressed 
concern about the need to hire and train new employees to achieve the 
staffing levels necessary to operate under the recommended HOS 
requirements, which could result in managing large numbers of 
inexperienced employees. The TRACS report noted that the committee 
considered anecdotal evidence from one

[[Page 74110]]

agency that despite initial resistance from operators to give up 
overtime, employees came to cite an overall increase in quality of life 
from the agency's adoption of a 60-hour maximum limit. TRACS members 
did not reach a consensus on the issue of including a maximum number of 
hours over six days and therefore did not make a recommendation in this 
regard to FTA.
2. Consensus Standards
    Through its bus and rail working groups, the American Public 
Transportation Association (APTA) develops voluntary, consensus-based 
industry operating and maintenance standards. APTA's consensus HOS 
standards for train operators limit maximum operating hours to 12 
hours, with a maximum duty day of 16 hours. APTA's consensus standards 
suggest that train operators have a minimum off-duty time of 10 hours 
and a maximum period of 7 consecutive workdays. APTA's voluntary 
standards do not include a maximum number of on-duty hours over the 7 
consecutive workdays.\17\
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    \17\ See APTA RT-OP-S-015-09 Rev 1, ``Train Operator Hours-of-
Service Requirements'' (June 7, 2019), available at https://www.apta.com/wp-content/uploads/APTA-RT-OP-S-015-09_Rev_-1-1.pdf 
(last visited April 5, 2023).
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3. Federal and State Regulations
    The Federal Motor Carrier Safety Administration (FMCSA), FRA, 
Federal Aviation Administration, and United States Coast Guard 
prescribe HOS limitations applicable to their regulated industries, as 
summarized in detail in the CUTR 2022 Report.\18\ Of particular 
relevance to transit operators, FMCSA prohibits drivers of passenger-
carrying commercial motor vehicles from driving more than 10 hours 
following 8 consecutive hours off duty. Such drivers also may not drive 
after being on duty for 15 hours following 8 consecutive hours off 
duty. FMCSA limits on-duty time to no more than 60 hours over 7 
consecutive days for motor carriers that do not operate every day of 
the week, and to no more than 70 hours over eight consecutive days for 
motor carriers that operate every day of the week.\19\ FMCSA's HOS 
requirements do not apply to transit buses operated by any political 
subdivision of a State.\20\ Transit buses operated by contractors that 
operate under their own USDOT registration, however, may be subject to 
FMCSA's requirements if they operate in interstate commerce. FRA 
requires that before a train employee engaged in commuter or intercity 
rail passenger transportation remains or goes on-duty the employee must 
have had at least 8 consecutive hours off duty during the prior 24 
hours or at least 10 consecutive hours off duty after working 12 
consecutive hours. Those train employees may not spend more than 14 
consecutive calendar days on duty, although there are some specific, 
additional limitations for train employees who engage in service during 
the hours of 8 p.m.-3:59 a.m. (known as ``Type II'' schedules).\21\ 
Train employees working at least one Type II schedule may not spend 
more than 6 consecutive calendar days on duty. FRA HOS regulations for 
passenger train crews also require a commuter or intercity passenger 
railroad to evaluate Type II schedules using a validated 
biomathematical model of human performance and fatigue determine 
whether train employees may be at increased risk of fatigue. Railroads 
must develop a fatigue risk mitigation plan to reduce the risk of 
fatigue in those schedules having an increased risk for fatigue.\22\ 
Train crews must also receive initial and refresher training on fatigue 
awareness and other topics related to understanding and mitigating 
fatigue as part of HOS requirements.\23\
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    \18\ See FTA Report No. 0223 ``FTA Standards Development 
Program: Medical Fitness for Duty and Fatigue Risk Management'' 
(June 2022), available at https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf (last visited April 
5, 2023).
    \19\ 49 CFR 395.5 (January 3, 2017).
    \20\ 49 CFR 390.3T(f)(2) (November 11, 2021).
    \21\ 49 CFR 228.405 (January 3, 2017).
    \22\ 49 CFR 228.407 (January 3, 2017).
    \23\ 49 CFR 228.411 (January 3, 2017).
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    In addition to Federal regulations, a number of States have their 
own State HOS limitations that apply to bus and rail operators.\24\ 
FTA's understanding, however, is that State HOS limitations do not 
apply to transit workers in most States. Some States and transit 
agencies also have policy requirements, not codified in State law, that 
include HOS limitations.
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    \24\ See FTA Report No. 0223 ``FTA Standards Development 
Program: Medical Fitness for Duty and Fatigue Risk Management'' 
(June 2022), available at https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf (last visited April 
5, 2023).
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B. Fatigue Risk Management Programs

    HOS limitations do not account for other factors that contribute to 
fatigue, including work schedules; environmental factors, such as 
temperature and humidity; circadian rhythms; and the effects of the 
type of task being performed, such as the level of monotony or stress. 
FRMPs complement HOS requirements by addressing various workplace 
factors that contribute to fatigue to reduce the potential for fatigue-
related safety incidents. An effective FRMP implements processes to 
measure, manage, and mitigate fatigue risk in a specific operational 
setting.
1. NTSB and TRACS Recommendations
    As a result of its March 2014 investigation of the Chicago train 
collision, NTSB issued three recommendations to FTA relating to fatigue 
risk management. Safety Recommendation R-15-018 recommends FTA develop 
and implement a work scheduling program for rail transit agencies that 
incorporates the management of fatigue risk. Safety Recommendations R-
15-020 and R-15-021 focus on identifying training and certification 
necessary for work schedulers and training personnel who are 
responsible for developing rail transit employee work schedules.
    TRACS made several recommendations to FTA relating to FRMP 
requirements in its 2015 report.\25\ TRACS noted that shift scheduling 
is an essential part of managing fatigue. TRACS recommended that FTA 
require transit agencies to provide the necessary training for their 
work schedulers to understand elements of fatigue science, including 
circadian rhythms. In addition, TRACS recommended that agencies provide 
mandatory fatigue awareness training for all safety-sensitive 
personnel, including bus and train operators, conductors, tower 
operators, starters, inspectors, yard persons, shift schedulers, 
maintenance-of-way employees, signal and electric traction employees, 
mechanical department employees, dispatchers, and supervisors, and 
consider fatigue as a potential underlying factor in all safety 
investigations of incidents and accidents. TRACS also recommended that 
FTA require transit agencies to collect and track data on fatigue 
performance measures to evaluate the success of their FRMPs.
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    \25\ See TRACS Report 14-02, ``Establishing a Fatigue Management 
Program for the Bus and Rail Transit Industry'' (July 30, 2015), 
available at https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_(2).pdf (last visited April 5, 
2023).
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2. Consensus Standards
    APTA's consensus standards for rail transit system fatigue 
management programs establish formal steps to develop and implement an 
organization's fatigue management program for operators, controllers, 
and any other safety-critical personnel.\26\

[[Page 74111]]

APTA's standards include the establishment of a fatigue management 
program steering committee and a fatigue management policy with core 
program elements. APTA's standards also provide that agencies must 
consider fatigue as a line of inquiry when conducting accident 
investigations or developing schedules and that agencies must collect 
and assess fatigue-related data.
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    \26\ See APTA RT-OP-S-23-17 ``Fatigue Management Program 
Requirements'' (April 7, 2017), available at https://www.apta.com/wp-content/uploads/Standards_Documents/APTA-RT-OP-S-023-17.pdf (last 
visited April 5, 2023).
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3. Federal Regulations
    In 2022, FRA promulgated regulations that require railroads that 
operate commuter and intercity passenger service to develop and 
implement an FRMP.\27\ Pursuant to those regulations, a railroad must 
develop, and FRA must approve, an FRMP that contains the goals of the 
program; describes processes to conduct a fatigue risk assessment, 
identify mitigations, and monitor identified fatigue-related hazards; 
and describes how railroads plan to implement an FRMP. At a minimum, 
when conducting a risk assessment, a railroad must evaluate the general 
health and medical conditions that can affect the fatigue levels, 
scheduling issues that can impact quality and quantity of sleep, and 
characteristics of each job category of safety-related railroad 
employees that can affect fatigue levels.
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    \27\ 87 FR 35660 (June 13, 2022), codified at 49 CFR part 270 et 
seq.
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III. Comments Sought

    FTA seeks comments, information, and data from the public in 
response to this ANPRM. We request that commenters address their 
comments specifically to the enumerated list of issues below, and 
number their comments to correspond to each issue. In the following 
questions, FTA uses the term ``transit worker'' to indicate any 
employee, contractor, or volunteer working on behalf of a public 
transit agency. This includes vehicle operators, dispatchers, 
maintenance workers, managerial staff, and all other workers whose 
information could aid the development of a future Hours of Service and 
Fatigue Risk Management rule. Please indicate which worker groups you 
are addressing when commenting.

A. Regulatory Options

    1. Generally, why should or should not FTA adopt mandatory Federal 
hours of service (HOS) and fatigue risk management programs (FRMP) 
requirements for transit workers?
    2. What aspects of transit operations should FTA consider if it 
develops Federal HOS and FRMP requirements for transit workers? Are 
there unique characteristics of transit operations, as compared to 
motor carrier and railroad operations, that FTA should consider when 
evaluating existing FMCSA and FRA requirements? How should FTA consider 
differences in urban and rural operating environments and agency size?
    3. Specifically, what are the reasons you would or would not 
support any of the following options? What alternatives should FTA 
consider? Please explain.
    a. The TRACS recommendation for a maximum of 12 on-duty hours over 
a maximum duty tour of 14 hours, with a minimum of 10 consecutive hours 
off-duty between shifts, and a maximum of 6 working days.
    b. The Volpe recommendation to TRACS for a limit of 60 on-duty 
hours over 6 consecutive working days.
    c. The APTA train operator standard of a maximum time of 12 
operating hours, a maximum duty day of 16 hours, a minimum off-duty 
time of 10 hours, and a maximum period of l7 consecutive workdays. Is 
there a likely increase in safety risk by adopting the APTA standard 
for a maximum duty day of 16 rather than 14 hours? How would a 16-hour 
duty day change transit agency operations as compared to a 14-hour duty 
day?
    d. For transit bus operators, FMCSA's passenger carrier HOS 
requirements of a 15-hour on-duty limit and a 10-hour driving limit 
following 8 consecutive hours off-duty, and no more than 70 hours over 
8 consecutive days. Could adoption of different HOS requirements for 
transit bus drivers than FMCSA's passenger carrier requirements cause 
confusion for drivers?
    e. A requirement for transit agencies to develop and implement an 
FRMP. If transit agencies were required to develop and implement an 
FRMP, what elements should the FRMP include? Should transit agencies 
have primary responsibility for developing the FRMP? For agencies that 
have a Safety Committee, should the Safety Committee have a role in 
developing or approving the FRMP?
    4. What specific qualities of workers' regular tasks should FTA 
consider to make them subject to HOS requirements? Does the definition 
of ``safety-sensitive function'' in 49 CFR 655.4 include all categories 
of employees who FTA should consider for HOS requirements? Are there 
employees who perform safety-sensitive functions who should not be 
subject to HOS requirements?
    5. Would you support a single HOS standard that applies across all 
transit modes subject to safety regulation by FTA? Or would you support 
multiple HOS standards based on the varying characteristics of 
different transit modes, for example, one set of standards for bus 
operators and a different set of standards for rail operators? Please 
explain.
    6. Should shift schedulers who create work schedules have minimum 
certification and training requirements? If so, please explain what 
minimum requirements for training and/or certification FTA should 
consider establishing.

B. Benefits and Costs

    7. How would changes in hours, as a result of new HOS requirements, 
impact worker health and safety?
    8. Do you have information on any HOS research FTA should consider 
as part of this or future rulemakings?
    9. How would changes in hours, as a result of HOS requirements, 
impact transit agency operations (e.g., their ability to fully staff 
service)? How would changes in hours impact customers? What costs would 
agencies incur to change their operations and ensure that workers 
comply with the requirements?

C. Fatigue Data Collection

    10. Is the prevalence of fatigue among transit workers and its 
safety implications tracked or measured? Please explain. Do you have 
any data on the prevalence or impact of fatigue among transit workers?
    11. As a standard process, do investigations consider whether 
fatigue was a probable cause or contributing factor in a transit safety 
event? If so, please explain. How are such data recorded or tracked? Do 
you have any data on transit safety events in which fatigue was 
determined to be a probable cause or contributing factor?
    12. Would you support requirements for State Safety Oversight 
Agencies in investigating the potential role of fatigue in rail safety 
events and near misses? If so, what requirements would you support? 
What would be the burdens to the industry? What would be the benefits?
    13. Would you support routine data collection through the National 
Transit Database on whether an incident was fatigue related? What 
additional data would help assess national trend analyses on the safety 
impacts of fatigue? For example, FTA could update National Transit 
Database reporting for major safety events to include elements, such as 
the number of hours the

[[Page 74112]]

operator was on duty, the end time of the operator's previous shift 
before the current shift, and the number of consecutive days the 
operator was on duty. Which of these would be useful? Would other data 
elements be useful? What barriers might impact the collection of 
additional data? Would this data be useful for both bus and rail 
events?
    14. What would the burdens to the industry be if FTA instituted new 
requirements to record transit worker fatigue data in the National 
Transit Database? What would be the benefits to the industry of having 
such worker fatigue data for transit safety events?
    15. FTA recently began collecting annual counts of fatal bus 
collisions from transit operators that are not currently required to 
file major safety event reports. These are primarily operators in rural 
areas, or operators with fewer than 30 vehicles in peak service. Some 
of these fatal bus collisions may be fatigue-related. Should FTA 
consider gathering data on fatigue from these events?

D. Current Hours of Service and Fatigue Risk Management Policies

    16. Do you have information or data on whether and how transit 
agencies are currently using their documented safety risk management 
processes to assess the associated safety risk and, based on the 
results of the safety risk assessment, identify safety risk mitigations 
or strategies as necessary to address the safety risk of transit worker 
fatigue through their Agency Safety Plan?
    17. Do you have information or data on existing State or local HOS 
or FRMP requirements that apply to transit workers?
    a. To which transit agencies do they apply?
    b. To which modes do they apply?
    c. To which classifications of workers do they apply (e.g., 
operators, maintenance, dispatchers)?
    d. Are waivers allowed to accommodate exigent or other 
circumstances? Please explain.
    e. Please describe the HOS and FRMP requirements (e.g., hours 
restrictions, training requirements, designated breaks, and rest 
areas).
    f. Has the effectiveness of the HOS or FRMP requirements been 
evaluated? How were they evaluated and what were the results?
    g. Are existing HOS requirements part of collective bargaining 
agreements? If so, what are the details? If not, how would HOS or FRMP 
requirements interact with existing collective bargaining agreements?
    18. Is transit worker secondary employment tracked? If so, how? Are 
secondary employment hours tracked in addition to primary employment? 
Do transit agencies face any limitations on their ability to track 
secondary employment?
    19. Do you have information on transit worker schedules for 
operators, maintenance workers, control center workers, and other 
workers?
    a. How long are shifts? How long are overtime shifts?
    b. What are the non-operational job responsibilities of bus and 
rail operators? How much time do workers spend on-task, for example, 
operating a vehicle or performing maintenance work, as compared to 
other work, such as office administrative work?
    c. How many breaks do workers get? How long are the breaks?
    d. How much off-duty time do workers get?
    e. What split-shift policies are used? What is their service span 
on their longest service days? Which workers work split shifts?
    f. How consistent are transit workers' shift schedules? Are 
assigned service hours stable week-to-week? Month-to-month? Year-to-
year?
    20. What fatigue-related factors are considered when developing bus 
and rail schedules? Why are these factors considered?
    21. Do you have information on transit agency use of other safety 
enhancing policies or technology solutions that FTA should consider?

IV. Regulatory Analyses and Notices

Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    Executive Order 12866 (``Regulatory Planning and Review''), as 
supplemented by Executive Order 13563 (``Improving Regulation and 
Regulatory Review''), and the Executive order on Modernizing Regulatory 
Review, directs Federal agencies to assess the benefits and costs of 
regulations, to select regulatory approaches that maximize net benefits 
when possible, and to consider economic, environmental, and 
distributional effects. It also directs the Office of Management and 
Budget (OMB) to review significant regulatory actions, including 
regulations with annual economic effects of $200 million or more. The 
agency has considered the impact of this ANPRM under these Executive 
orders and the Department of Transportation's regulatory policies and 
procedures. In this ANPRM, the agency requests comments that would help 
FTA assess and make judgments on the benefits, costs, and other 
impacts, of transit worker fitness for duty standards. FTA believes 
that a notice relating to new requirements for hours of service and 
fatigue risk management programs may generate raise legal or policy 
issues for which centralized review would meaningfully further the 
President's priorities or the principles set forth in the Executive 
order on Modernizing Regulatory Review, and therefore is significant.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. This ANPRM 
would not establish any new information collection requirements.

Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to https://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
https://www.dot.gov/privacy.

National Environmental Policy Act

    Federal agencies are required to adopt implementing procedures for 
the National Environmental Policy Act (NEPA) that establish specific 
criteria for, and identification of, three classes of actions: (1) 
Those that normally require preparation of an Environmental Impact 
Statement, (2) those that normally require preparation of an 
Environmental Assessment, and (3) those that are categorically excluded 
from further NEPA review (40 CFR 1507.3(b)). This ANPRM qualifies for 
categorical exclusions under 23 CFR 771.118(c)(4) (planning and 
administrative activities that do not involve or lead directly to 
construction). FTA has evaluated whether the ANPRM will involve unusual 
or extraordinary circumstances and has determined that it will not.

Executive Order 12630 (Taking of Private Property)

    FTA has analyzed this ANPRM under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. FTA does not believe this ANPRM affects a taking of 
private property or otherwise has taking

[[Page 74113]]

implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This ANRPM meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FTA has analyzed this ANPRM under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. FTA 
certifies that this action will not cause an environmental risk to 
health or safety that might disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    FTA has analyzed this ANPRM under Executive Order 13175, dated 
November 6, 2000, and believes that it will not have substantial direct 
effects on one or more Indian tribes; will not impose substantial 
direct compliance costs on Indian tribal governments; and will not 
preempt tribal laws. Therefore, a tribal summary impact statement is 
not required.

Executive Order 13211 (Energy Effects)

    FTA has analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FTA has determined that this action is not a 
significant energy action under that order and is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations) and DOT 
Order 5610.2(a) (77 FR 27534, May 10, 2012) (https://www.transportation.gov/transportation-policy/environmental-justice/department-transportation-order-56102a) require DOT agencies to achieve 
Environmental Justice (EJ) as part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects, including interrelated social and 
economic effects, of their programs, policies, and activities on 
minority and low-income populations. All DOT agencies must address 
compliance with Executive Order 12898 and the DOT Order in all 
rulemaking activities. On August 15, 2012, FTA's Circular 4703.1 became 
effective, which contains guidance for recipients of FTA financial 
assistance to incorporate EJ principles into plans, projects, and 
activities (https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/environmental-justice-policy-guidance-federal-transit).
    FTA has evaluated this action under the Executive order, the DOT 
Order, and the FTA Circular and FTA has determined that this action 
will not cause disproportionately high and adverse human health and 
environmental effects on minority or low-income populations.

Regulation Identifier Number

    A Regulation Identifier Number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this rulemaking with 
the Unified Agenda.

List of Subjects in 49 CFR Part 675

    Mass transportation, Safety.

(Authority: 49 U.S.C. 5329; 49 CFR 1.91)

Nuria I. Fernandez,
Administrator.
[FR Doc. 2023-23916 Filed 10-27-23; 8:45 am]
BILLING CODE 4910-57-P


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