Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74107 

arise from bad actors that access 

numbering resources indirectly (i.e., 

without a direct access authorization), 

by requiring the direct access 

authorization holders that supply them 

with numbering resources to obtain 

from them the same certifications, 

acknowledgments, and disclosures 

required of direct access applicants. 

46. The Commission anticipates some 

of the approaches proposed to 

implement the requirements in the 

Second Report and Order on existing 

direct access authorization holders will 

have minimal or de minimis cost 

implications because many of these 

obligations are required to comply with 

existing Commission regulations. At this 

time however, the Commission is not in 

a position to determine whether, if 

adopted, proposals and the matters 

upon which we seek comment will 

require small entities to hire 

professionals to comply, and cannot 

quantify the cost of compliance with the 

potential rule changes discussed herein. 

We anticipate the information we 

receive in comments including where 

requested, cost and benefit analyses, 

will help the Commission identify and 

evaluate relevant compliance matters for 

small entities, including compliance 

costs and other burdens that may result 

from the proposals and inquiries we 

make in the Second Further Notice. 

Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

47. The RFA requires an agency to 

describe any significant, specifically 

small business, alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) the establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rules for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 

48. The Commission considered the 

possibility that burdens may be imposed 

on interconnected VoIP service 

providers (small or large) if we adopt 

rules that propose to strengthen 

requirements for existing direct access 

authorization holders. The Commission 

welcomes comments on any of the 

issues raised in the Second Further 

Notice that will impact small providers. 

In particular, the Second Further Notice 

considered and seeks comment on 

whether requiring existing direct access 

authorization holders to meet the new 

requirements of the Second Report and 

Order is necessary, or would be unduly 

burdensome, and whether the proposed 

30-day timeframe for compliance is 

sufficient. The Second Further Notice 

also requests comment on possible 

burdens associated with requiring direct 

access applicants to provide their initial 

proposed service area and the states 

where they intend to provide service 

and whether better options exist. In 

addition, the Second Further Notice 

seeks comment on the potential burdens 

and impact of requiring direct access 

authorization holders that sell, lease, or 

otherwise provide telephone numbers to 

an interconnected VoIP provider to 

obtain certifications, acknowledgments, 

and disclosures from them as if they 

were applying for a direct access 

authorization. 

49. The Second Further Notice 

proposes that authorization holders be 

allowed to continue to use numbers 

they obtained prior to submitting 

updated or corrected ownership 

information to the Bureau unless the 

Bureau determines that the 

authorization must be revoked per the 

formal revocation procedure we adopt 

in the Second Report and Order. 

Alternatively, we seek comment on 

whether this step is necessary to narrow 

the gap in our oversight ability to reach 

bad actors with respect to numbering 

resources, and other factors the 

Commission should consider to enforce 

these rules. 

50. To assist in the Commission’s 

evaluation of the economic impact on 

small entities, as a result of actions that 

have been proposed in the Second 

Further Notice, and to better explore 

options and alternatives, the 

Commission seeks comment on whether 

any of the burdens associated with the 

filing, recordkeeping and reporting 

requirements described above can be 

minimized for small entities. 

Additionally, the Commission seeks 

comment on whether any of the costs 

associated with any of the proposed 

requirements to eliminate unlawful 

robocalls can be alleviated for small 

entities. The Commission expects to 

more fully consider the economic 

impact and alternatives for small 

entities based on its review of the record 

and any comments filed in response to 

the Second Further Notice and this 

IRFA. 

Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

None. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2023–23903 Filed 10–27–23; 8:45 am] 

BILLING CODE 6712–01–P 

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). 

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: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for sending comments. 

• Fax: (202) 493–2251. 

• Mail: Dockets Operations, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, West Building, 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• 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:// 


khammond on DSKJM1Z7X2PROD with PROPOSALS
74108 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

1Enacted by the Infrastructure Investment and 

Jobs Act. Public Law 117–58 (November 15, 2021). 

2 82 FR 5628 (January 18, 2017). 

3See 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). 

4See 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). 

5See 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). 

6See 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-stationderailment.pdf (last visited May 17, 2023). 

7See 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-StationAugust-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-WMATAFinal-Report_E19326_2019_06_25-Failure-toservice-station-merged.pdf (last visited May 17, 

2023). 

8 86 FR 37400 (July 15, 2021). 

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 

FTAFitnessforDuty@dot.gov. For legal 

matters, contact Emily Jessup, Attorney 

Advisor, 202–366–8907 or 

emily.jessup@dot.gov. 

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.

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. 

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

In addition to NTSB’s reports, local 

investigations have identified fatiguerelated 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

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, 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74109 

9See 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). 10See 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). 11See 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%20

Railroad%20Industry_CO%2020121119_20130221_

FINAL.pdf (last visited April 21, 2023). 

12See 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. 

13See 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. 

14See, 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-13msettlement-after-bus-driver-fell-asleep-at-wheelcausing-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-whocaused-crash-gets-93-days-in-jail/ (last visited May 

17, 2023). 

15See 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). 

16See 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). 

including 4 transit agencies, offered 21 

comments recommending FTA develop 

HOS requirements. 

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 SafetyCritical 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 fatiguerelated 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. 

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 fatiguerelated 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. 

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 onduty 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. 

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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
74110 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

17See APTA RT–OP–S–015–09 Rev 1, ‘‘Train 

Operator Hours-of-Service Requirements’’ (June 7, 

2019), available at https://www.apta.com/wpcontent/uploads/APTA-RT-OP-S-015-09_Rev_-1- 

1.pdf (last visited April 5, 2023). 

18See 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). 

24See 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). 

25See 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). 

26See APTA RT–OP–S–23–17 ‘‘Fatigue 

Management Program Requirements’’ (April 7, 

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 offduty 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

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

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. 

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 safetysensitive personnel, including bus and 

train operators, conductors, tower 

operators, starters, inspectors, yard 

persons, shift schedulers, maintenanceof-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. 

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


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74111 

2017), available at https://www.apta.com/wpcontent/uploads/Standards_Documents/APTA-RTOP-S-023-17.pdf (last visited April 5, 2023). 

27 87 FR 35660 (June 13, 2022), codified at 49 CFR 

part 270 et seq. 

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. 

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. 

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 offduty 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
74112 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

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-tomonth? 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 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/environmentaljustice/department-transportationorder-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-guidancefederal-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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 231023–0251] 

RIN 0648–BL79 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Naval 

Magazine Indian Island Ammunition 

Wharf Maintenance and Pile 

Replacement Project, Puget Sound, 

Washington 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule, request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization to take marine mammals 

incidental to the maintenance and pile 

replacement construction activities at 

the Ammunition Wharf at Naval 

Magazine (NAVMAG) Indian Island in 

Puget Sound, Washington, over the 

course of 5 years (2024–2029). As 

required by the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take, and requests comments on the 

proposed regulations. NMFS will 

consider public comments prior to 

making any final decision on the 

issuance of the requested MMPA 

authorization and agency responses will 

be summarized in the final notice of our 

decision. 

DATES: Comments and information must 

be received no later than November 29, 

2023. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2023–0122, by the following 

method: 

• Electronic submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2023–0122 in the Search 

box, click the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on https://www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Robert Pauline, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability of Navy’s Application, 

Marine Mammal Monitoring Plan, and 

List of References 

A copy of the Navy’s application, 

monitoring plan, and any supporting 

documents, as well as a list of the 

references cited in this document, may 

be obtained online at: https:// 


khammond on DSKJM1Z7X2PROD with PROPOSALS