[Federal Register Volume 83, Number 168 (Wednesday, August 29, 2018)]
[Rules and Regulations]
[Pages 43988-43999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18639]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. FRA-2012-0101]
RIN 2130-AC41


Hours of Service Recordkeeping; Automated Recordkeeping

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

ACTION: Final rule.

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

SUMMARY: This rule is part of FRA's broader initiative to reduce the 
paperwork burden of its regulations while still supporting compliance 
with the Federal hours of service laws and regulations. Current 
regulations require employees covered by those laws or regulations 
(covered service employees) to create and retain hours of service 
records by hand (a paper system) or ``certify'' the record using a 
compliant computerized system (an electronic system) with program 
logic. Cognizant of the burden placed on small operations, FRA provides 
a simplified method of computerized recordkeeping (an automated 
system)--in which employees apply their electronic signatures to 
automated records stored in a railroad computer system without the 
complexity and functionality of an electronic system--for eligible 
smaller railroads (and contractors and subcontractors providing covered 
service employees to such railroads). This rule does not require the 
use of automated recordkeeping, but, when implemented by the small 
operations for which it is tailored, it will decrease the burden hours 
spent on hours of service recordkeeping.

DATES: This final rule is effective August 29, 2018 in accordance with 
5 U.S.C. 553(d)(1).

ADDRESSES: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and follow the 
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Patrick J. Hogan, Transportation 
Specialist, Office of Railroad Safety, Federal Railroad Administration, 
1200 New Jersey Avenue SE, W33-448, Washington, DC 20590; telephone: 
202-493-0277; email: <a href="/cdn-cgi/l/email-protection#bbebdacfc9d2d8d095f3d4dcdad5fbdfd4cf95dcd4cd"><span class="__cf_email__" data-cfemail="de8ebfaaacb7bdb5f096b1b9bfb09ebab1aaf0b9b1a8">[email protected]</span></a>; Kyle Fields, Trial 
Attorney, Office of Chief Counsel, Federal Railroad Administration, 
1200 New Jersey Avenue SE., W31-232, Washington, DC 20590; telephone 
202-493-6168; email: <a href="/cdn-cgi/l/email-protection#52192b3e377c143b373e362112363d267c353d24"><span class="__cf_email__" data-cfemail="5d16243138731b343831392e1d393229733a322b">[email protected]</span></a>; or Emily T. Prince, Trial 
Attorney, Office of Chief Counsel, Federal Railroad Administration, 
1200 New Jersey Avenue SE, W31-216, Washington, DC 20590; telephone 
202-493-6146; email: <a href="/cdn-cgi/l/email-protection#b1f4dcd8ddc89fe1c3d8dfd2d4f1d5dec59fd6dec7"><span class="__cf_email__" data-cfemail="befbd3d7d2c790eeccd7d0dddbfedad1ca90d9d1c8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Commonly Used Abbreviations

CFR Code of Federal Regulations
FRA Federal Railroad Administration
HS Hours of service

Table of Contents for Supplementary Information

I. Executive Summary
II. Background and History

[[Page 43989]]

III. Scope of the Final Rule
IV. Discussion of Comments
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Orders 12866, 13563, and 13771 and DOT Regulatory 
Policies and Procedures
    B. Regulatory Flexibility Determination
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act Statement

I. Executive Summary

    In 2009, FRA finalized amendments to the HS recordkeeping 
regulations at 49 CFR part 228 (part 228) to authorize electronic 
recordkeeping and reporting as a means of compliance with the Federal 
HS laws. In addition to certification requirements, see 49 CFR 
228.9(b), these amendments added new subpart D to part 228, which 
established comprehensive requirements for electronic recordkeeping 
systems. Some smaller railroads informed FRA that the requirements of 
part 228, subpart D make electronic recordkeeping systems infeasible 
for their operations, which are less complex and variable than larger 
railroads' operations. Some small railroads already use an automated 
system for covered service employees to enter required HS data, which 
the employees then print and sign as a paper HS record. This rule 
allows a railroad with less than 400,000 employee-hours annually (an 
``eligible smaller railroad''), and contractors and subcontractors that 
provide covered service employees to that railroad, to have employees 
electronically sign the automated records of their hours of duty and to 
store the records in the railroad's computer system. Thus, this rule 
eliminates the requirement to print and sign the record.
    This rule amends part 228, subpart D by defining an ``automated 
recordkeeping system'' for eligible smaller railroads under new Sec.  
228.201(b) and outlining the requirements of such a system under new 
Sec.  228.206, while retaining the definition of an ``electronic 
recordkeeping system'' as Sec.  228.201(a) and the existing 
requirements under Sec. Sec.  228.203-228.205. The rule also provides 
general requirements for automated records, such as electronic 
signatures, retention periods, and FRA access, under new Sec.  
228.9(c), and it modifies training requirements under Sec.  228.207.
    This rule allows an eligible smaller railroad to adopt an automated 
recordkeeping system without conforming to all the requirements for an 
electronic recordkeeping system. For example, new Sec.  228.206 does 
not require an automated recordkeeping system to include some of the 
program components and other features that are not appropriate or 
necessary for the operations of eligible smaller railroads, although 
those features are important for an electronic recordkeeping system in 
light of the more complex operations of larger railroads. New Sec.  
228.206 includes requirements for FRA and participating State inspector 
access to and ability to search an automated recordkeeping system to 
effectively monitor compliance with the HS laws and regulations, 
similar to the search capabilities and access requirements for 
electronic recordkeeping systems.
    This rule significantly reduces costs and paperwork burdens for 
eligible smaller railroads because automated records require less time 
to complete than manual records and the records may be stored 
digitally, relieving eligible smaller railroads of the burden of 
storing and maintaining paper records. The costs of implementing an 
automated recordkeeping system are projected as substantially less than 
an electronic recordkeeping system and are relatively small compared to 
the benefits gained by eliminating a paper recordkeeping system. 
Adopting an automated recordkeeping system is purely voluntary, but FRA 
expects many eligible smaller railroads currently using manual records 
to begin creating and maintaining HS records using an automated system, 
with a projected reduction of over 194,000 burden hours. FRA's economic 
analysis projects an estimated $87.6 million in net savings over a 10-
year period as a result of this rule, and the present value of this 
savings is $55.1 million (discounted at 7 percent). The final rule is 
expected to have no negative impact on safety, as it simply provides a 
voluntary option for eligible smaller railroads and their contractors 
and subcontractors to use an alternative means of compliance with 
recordkeeping obligations.

II. Background and History

    Federal laws governing railroad employees' hours of service date 
back to 1907 \1\ and are presently codified at 49 U.S.C. 21101-
21109,\2\ 21303, and 21304.\3\ FRA, under 49 U.S.C. 103(g), 49 CFR 
1.89, and internal delegations, has long administered the statutory HS 
requirements and the agency's HS recordkeeping and reporting 
regulations (49 CFR part 228, subpart B), which promote compliance with 
the HS laws. Currently, the HS statutory requirements cover three 
groups of employees: train employees, signal employees, and dispatching 
service employees, as those terms are defined at Sec. 21101. The HS 
recordkeeping and reporting regulations at 49 CFR 228.5 include the 
statutory definitions of these terms and FRA interpretations discuss 
them. See FRA's ``Requirements of the Hours of Service Act; Statement 
of Agency Policy and Interpretation'' at 49 CFR part 228, appendix A, 
most of which was issued in the 1970s, and subsequent FRA 
interpretations of the HS laws published in the Federal Register.
---------------------------------------------------------------------------

    \1\ See the Hours of Service Act (Pub. L. 59-274, 34 Stat. 1415 
(1907)). Effective July 5, 1994, Public Law 103-272, 108 Stat. 745 
(1994), repealed the Hours of Service Act as amended, then codified 
at 45 U.S.C. 61-64b, and revised and reenacted its provisions, 
without substantive change, as positive law at 49 U.S.C. 21101-
21108, 21303, and 21304. The Hours of Service Act was administered 
by the Interstate Commerce Commission until these duties were 
transferred to FRA in 1966.
    \2\ These sections may also be cited as 49 U.S.C. Chapter 211. 
Hereinafter, references to a ``Sec.'' are to a section of title 49 
of the U.S. Code unless otherwise specified.
    \3\ For a table comparing and contrasting the current Federal HS 
requirements with respect to freight train employees, passenger 
train employees, signal employees, and dispatching service 
employees, please see Appendix A to the Second Interim 
Interpretations. 78 FR 58830, 58850-58854, Sept. 24, 2013.
---------------------------------------------------------------------------

    Congress has amended the HS statutory requirements several times 
over the years, most recently in the Rail Safety Improvement Act of 
2008 (RSIA).\4\ The RSIA substantially amended the requirements of 
Secs. 21103 and 21104, applicable to a ``train employee'' \5\ and a 
``signal employee,'' \6\ respectively, and added new provisions at 
Secs. 21102(c) and 21109 that together made a train employee providing 
rail passenger transportation subject to HS regulations, not Sec. 
21103, if the Secretary timely issued regulations. Subsequently, FRA, 
as the Secretary's delegate, timely issued those regulations, codified 
at 49 CFR part 228, subpart F (Passenger Train Employee HS 
Regulations), which became effective October 15, 2011.
---------------------------------------------------------------------------

    \4\ Public Law 110-432, Div. A, 122 Stat. 4848.
    \5\ See Sec. 21101(5).
    \6\ See Sec. 21101(4). The RSIA also amended the definition of 
``signal employee'' effective October 16, 2008. Before the RSIA, the 
term meant ``an individual employed by a railroad carrier who is 
engaged in installing, repairing, or maintaining signal systems.'' 
Emphasis added.
---------------------------------------------------------------------------

    Additionally, section 108(f)(1) of the RSIA required the Secretary 
to prescribe a regulation revising the requirements for recordkeeping 
and reporting for hours of service of railroad employees, specifically 
to authorize electronic record keeping and reporting of excess

[[Page 43990]]

service and to require training of affected employees and supervisors, 
including training of employees in the entry of hours of service data. 
FRA, as the Secretary's delegate, also issued those regulations, 
codified at 49 CFR part 228, including subpart D (Electronic 
Recordkeeping), which became effective July 16, 2009. 74 FR 25330, May 
27, 2009 (2009 Recordkeeping Amendments).\7\
---------------------------------------------------------------------------

    \7\ FRA issued its first HS recordkeeping regulation, codified 
at 49 CFR part 228, subparts A and B, in 1972. See 37 FR 12234, Jun. 
21, 1972. Because the regulation did not contemplate electronic 
recordkeeping, it required HS records be signed manually by the 
employee whose time was being recorded. Therefore, prior to the 
effective date of the 2009 Recordkeeping Amendments, railroads that 
wished to create and maintain their required HS records 
electronically rather than manually needed FRA's waiver of the 
requirement for a handwritten signature. See FRA procedural 
regulations at 49 CFR part 211. At the time the 2009 recordkeeping 
amendments went into effect, several Class I railroads were creating 
and maintaining their required HS records using an electronic 
recordkeeping system approved by FRA pursuant to a waiver. See the 
preamble of the 2009 Recordkeeping Amendments for further discussion 
of the history of electronic recordkeeping and the development of 
waiver-approved electronic recordkeeping systems. See 74 FR 25330, 
25330-25334.
---------------------------------------------------------------------------

    In general, the 2009 Recordkeeping Amendments required that either 
employees recording their own time, or the reporting crewmember of a 
train crew or signal gang who was recording time, certify their 
electronic HS records, instead of signing them by hand, and that the 
recordkeeping system electronically stamp the records with the name of 
the certifying employee and the date and time of certification. See 49 
CFR 228.9(b). These amendments also established comprehensive 
requirements for electronic recordkeeping systems. A brief summary of 
the most significant requirements follows.
    <bullet> First, electronic recordkeeping systems must generate 
records that provide sufficient data fields for an employee to report a 
wide variety and number of activities that could arise during a duty 
tour. See 49 CFR 228.201.
    <bullet> Second, the systems must have security features to control 
access to HS records and to identify any individual who entered 
information on a record. See 49 CFR 228.203(a)(1)(i), (a)(2)-(a)(7), 
and (b).
    <bullet> Third, systems must include program logic that identifies 
how periods of time spent in any activity that is entered on a record 
are treated under the HS laws (and the substantive HS regulations for 
passenger train employees).
    <bullet> Fourth, program logic must allow the systems to calculate 
total time on duty from the data the employee entered, flag employee-
input errors so the employee can correct them before certifying the 
record, and require the employee to enter an explanation when the data 
entered shows a violation of the HS laws or regulations. See 49 CFR 
228.203(c).
    <bullet> Fifth, electronic recordkeeping systems must provide a 
method known as a ``quick tie-up'' for employees to enter limited HS 
information when they have met or exceeded the maximum hours allowed 
for the duty tour, and railroads must have procedures for employees to 
do a quick tie-up by telephone or facsimile (fax) if computer access is 
not available. See 49 CFR 228.5 and 228.203(a)(1)(ii).
    <bullet> Finally, an electronic recordkeeping system must provide 
search capability so records may be searched by date or date range and 
by employee name or identification number, train or job assignment, 
origin or release location, territory, and by records showing excess 
service. The results of any such search must yield all records matching 
specified criteria. See 49 CFR 228.203(d).

III. Scope of the Final Rule

    The final rule applies only to eligible smaller railroads \8\, as 
well as contractors and subcontractors to such eligible smaller 
railroads. FRA is aware that some railroads have been using an 
automated system in which covered service employees access a blank HS 
record on a railroad computer, enter required data on the form, and 
then print and sign the record. The printed record is still considered 
a manual or paper record, with the associated burden of storage placed 
on the railroad. FRA expects many eligible smaller railroads will 
choose to comply with this rule using existing equipment and software 
already in use. For example, many eligible smaller railroads will find 
their existing equipment and software can generate forms that will 
allow employees to enter the information relevant to their duty tours 
as required by Sec.  228.11 and save those records in a directory 
structure that would allow either the railroad or FRA to retrieve them 
using the search criteria provided in this rule.
---------------------------------------------------------------------------

    \8\ Railroads that: (1) Reported less than 400,000 employee 
hours to FRA during the preceding three consecutive calendar years 
under 49 CFR 225.21(d) on Form FRA 6180.55, Annual Railroad Reports 
of Manhours by State; or (2) operating less than three consecutive 
calendar years that reported less than 400,000 employee hours to FRA 
during the current calendar year under 49 CFR 225.21(d) on Form FRA 
6180.55, Annual Railroad Reports of Manhours by State.
---------------------------------------------------------------------------

    Contractors and subcontractors to eligible smaller railroads are 
also eligible to use automated recordkeeping systems for their 
employees working on eligible smaller railroads, but not for their 
employees working on ineligible railroads. For instance, a contractor 
or subcontractor that performs covered service for both eligible 
smaller railroads and Class I railroads is not eligible to use an 
automated recordkeeping system for the hours of service records of its 
employees working for Class I railroads. If a contractor or 
subcontractor small enough to be eligible to use an automated 
recordkeeping system under this rule performs service for eligible and 
ineligible railroads and seeks to use an automated recordkeeping 
system, such a contractor or subcontractor may pursue relief through 
the waiver process, under 49 CFR 211.41.
    It is appropriate to allow the eligible smaller railroads to use an 
automated recordkeeping system that lacks the programming and analysis 
capabilities required of an electronic recordkeeping system because of 
the less complex and less varied nature of the operations of eligible 
smaller railroads. For example, this rule does not require an automated 
system to calculate and fill in total time on duty based on the 
information an employee enters because that would require costly 
programming to enable the system to identify how various periods of 
time are treated. Instead, an employee will enter that information just 
as if the automated record were a paper record. Similarly, the rule 
does not require an automated system to include costly programming that 
would prompt the employee to enter an explanation of a duty tour over 
12 hours or that would flag possible input errors or missing data (for 
example, showing an on-duty location that differs from the released 
location of the previous duty tour).
    Approximately 746 railroads, 18 commuter railroads, and their 
contractors and subcontractors, are eligible to use automated 
recordkeeping systems pursuant to this rule. FRA declines to extend 
this rule to railroads with 400,000 or more employee-hours annually 
because the number of employees, volume of HS records, and complexity 
of operations associated with larger railroads requires a more 
sophisticated electronic recordkeeping system that complies with part 
228, subpart D if those operations want to use an alternative to manual 
records.\9\ A

[[Page 43991]]

larger and more complex operation benefits from an electronic 
recordkeeping system's program logic that helps to ensure accurate 
recordkeeping, and search capabilities that help to better identify 
relevant records for the railroad's own review and in response to FRA 
requests.
---------------------------------------------------------------------------

    \9\ FRA also declines to adopt a per se rule allowing Class III 
railroads to use automated recordkeeping because the definition of 
``Class III railroad'' includes all terminal and switching 
operations, regardless of operating revenue, some of which have 
extensive operations more appropriately served by an electronic 
recordkeeping system. See 49 CFR 1201.1-1(d). Accordingly, FRA chose 
to define the rule's applicability based on employee hours.
---------------------------------------------------------------------------

    Among commuter railroads, for example, Metro-North Commuter 
Railroad is currently using an electronic recordkeeping system, and New 
Jersey Transit Railroad is developing an electronic recordkeeping 
system. FRA understands that these railroads are willing to share some 
information with other commuter railroads that are ineligible for 
automated recordkeeping systems to help them develop electronic 
recordkeeping systems compliant with part 228, subpart D. By developing 
these partnerships, larger commuter railroads will have a cost-
effective opportunity to eliminate paper records and adopt electronic 
recordkeeping systems even if they do not qualify for automated 
recordkeeping under this rule. For these reasons, FRA adopts this rule 
applicable only to eligible smaller railroads.

IV. Discussion of Comments

    FRA received two public comments on the automated recordkeeping 
NPRM. The American Short Line and Regional Railroad Association filed a 
short comment October 23, 2015, indicating the NPRM accurately assessed 
the ability of small railroads to capture HS data and expressing 
eagerness to see a final rule in effect. FRA also received an anonymous 
comment October 22, 2015, indicating only that the NPRM was, ``Good.'' 
FRA received no public comments conveying a need to change the scope or 
substance of the proposed rule.

V. Section-by-Section Analysis

Subpart A--General

Section 228.5 Definitions
    FRA adds definitions of ``automated recordkeeping system''; 
``electronic recordkeeping system''; ``electronic signature''; and 
``eligible smaller railroad.''
    The definitions of ``automated recordkeeping system'' and 
``electronic recordkeeping system'' distinguish the automated systems 
subject to this rulemaking, which are required to conform to the 
requirements of new Sec. Sec.  228.201(b) and 228.206, from the 
electronic recordkeeping systems that must meet the pre-existing 
requirements of Sec. Sec.  228.201(a) and 228.203-228.205.
    The definition of ``electronic signature'' is consistent with the 
Electronic Signatures in Global and National Commerce Act.\10\ It 
allows railroads the choice of using two different types of electronic 
signatures for their employees to sign their HS records: Either (1) a 
unique digital signature, created based on the employee's 
identification number and password, or other means used to uniquely 
identify the employee in the automated recordkeeping system; or (2) a 
unique digitized version of the employee's handwritten signature that 
would be applied to the HS record.\11\ The definition also provides the 
electronic signature must be created as provided in Sec.  228.19(g) 
(existing regulatory requirements for creating an electronic signature 
for railroads' use on their reports of excess service) or Sec.  
228.206(a) (new requirements for creating electronic signatures for use 
on employees' HS records in an automated recordkeeping system).
---------------------------------------------------------------------------

    \10\ Public Law 106-229, 114 Stat. 472 (2000); see 15 U.S.C. 
7006.
    \11\ If a railroad creates an electronic signature that is a 
unique digital signature for each of its employees, the employee's 
HS record will be signed with the employee's printed name or other 
identifying information, when the employee signs the record using 
his or her electronic signature. If the railroad instead creates a 
digitized version of the employee's handwritten signature, the 
record will be signed with the employee's handwritten signature when 
the employee signs the record using his or her electronic signature.
---------------------------------------------------------------------------

    This rule defines an ``eligible smaller railroad'', in general, as 
a railroad with less than 400,000 employee hours annually, which is 
eligible to use an automated recordkeeping system under this rule. More 
specifically, an eligible smaller railroad is defined as a railroad 
that has reported to FRA it had less than 400,000 employee hours during 
the preceding three consecutive calendar years on Form FRA 6180.55--
Annual Railroad Reports of Manhours by State, as required by 49 CFR 
225.21(d). As an exception to the general rule, railroads that have not 
been operating for three prior consecutive calendar years and expect to 
have less than 400,000 employee hours annually during the current year 
may use an automated recordkeeping system. This final rule combines the 
substantive content of the proposed definitions of ``eligible smaller 
railroad'' and ``railroad that has less than 400,000 employee hours 
annually'' into the final definition of ``eligible smaller railroad.''
Section 228.9 Records; General
    New Sec.  228.9(c) establishes requirements for automated records 
that parallel the requirements of paragraph (a) for manual records and 
paragraph (b) for electronic records. Paragraph (c) requires that 
automated records be electronically signed and stamped with the 
certifying employee's electronic signature that meets the requirements 
of Sec.  228.206(a) and the date and time that the employee 
electronically signed the record. As in paragraphs (a) and (b), 
paragraph (c) contains requirements for retaining and accessing the 
records. Unlike paragraph (b) applicable to electronic records, 
paragraph (c) does not require using an employee identification (ID) 
and password to access automated records.\12\ While some eligible 
smaller railroads might choose to provide an ID and password for the 
purpose of accessing an automated system, FRA concludes mandating an ID 
and password would be more complex than necessary for smaller 
operations, which may choose, for example, to have a railroad official 
directly provide access.\13\ Finally, paragraph (c) requires automated 
records be capable of being reproduced on printers available at the 
location where records are accessed, meaning railroads must have 
printers available at any location where they provide access to 
records. This requirement also applies to electronic recordkeeping 
systems under Sec.  228.9(b).
---------------------------------------------------------------------------

    \12\ Employee ID and passwords are necessary for employees to 
certify their hours of service records, but are not required as a 
mechanism for providing access to the automated recordkeeping 
system.
    \13\ It is important to note access must be available as soon as 
possible and no later than 24 hours after a request, as required by 
Sec.  228.206(e)(2), as discussed further below. In addition, 
railroads and managers risk civil and criminal liability if they 
control access to an automated recordkeeping system in a manner that 
prevents employees from accurately reporting their hours of service.
---------------------------------------------------------------------------

Section 228.11 Hours of Duty Records
    Section 228.11(a) requires each railroad, or a contractor or a 
subcontractor that provides covered service employees to a railroad, to 
``keep a record, either manually or electronically, concerning the 
hours of duty of each employee.'' Because HS records created and 
maintained using an automated recordkeeping system will also be 
required to comply with the requirements of Sec.  228.11 (see section-
by-section analysis of Sec.  228.201(b) below), this rule removes the 
words ``either manually or electronically'' from the requirement.

[[Page 43992]]

Section 228.201 Electronic Recordkeeping System and Automated 
Recordkeeping System; General
    FRA retains the pre-existing requirements of this section for 
electronic recordkeeping systems as paragraph (a) and adopts new 
paragraph (b) with similar but simplified requirements for automated 
recordkeeping systems, in part by cross-referencing those requirements 
of paragraph (a) also applicable to automated recordkeeping systems. 
The rule makes minor non-substantive changes to paragraphs (a)(3), 
(a)(4), and (a)(5) to correct typographical errors, specifically by 
deleting the ``and'' after paragraph (a)(3), replacing the periods at 
the end of paragraphs (a)(4) and (a)(5) with semicolons, and adding 
``and'' after the semicolon at the end of paragraph (a)(5). New Sec.  
228.201(b)(1) requires an automated recordkeeping system to comply with 
new Sec.  228.206. New Sec.  228.201(b)(2) requires eligible smaller 
railroads using automated recordkeeping systems to comply with the 
requirements of paragraphs (a)(2) and (a)(4)-(a)(6), requirements also 
applicable to electronic records and recordkeeping systems. The main 
difference between the requirements of new Sec.  228.201(b)(2) for 
automated records and recordkeeping systems and the corresponding 
existing requirements for electronic records and recordkeeping systems 
is that automated systems are not required to have monitoring 
indicators in the system to help the railroad monitor the accuracy of 
the records. Eligible smaller railroads, however, remain responsible 
for the accuracy of their required HS records, regardless of whether 
the record is manual, automated, or electronic.
    Finally, under new Sec.  228.201(c), if a railroad, or a contractor 
or subcontractor to a railroad with an automated recordkeeping system, 
ceases to qualify as an ``eligible smaller railroad'' based on the new 
definition in Sec.  228.5, that railroad, or contractor or 
subcontractor to a railroad, may not use an automated recordkeeping 
system unless FRA grants a waiver under 49 CFR 211.41. As described 
above, FRA believes larger railroads are better served by the use of an 
electronic recordkeeping system. In most cases, a railroad with such 
growth for three consecutive calendar years will have had sufficient 
time and funding to transition to an electronic recordkeeping system.
Section 228.206 Requirements for Automated Records and Recordkeeping 
Systems on Eligible Smaller Railroads
    New Sec.  228.206 establishes the requirements for an automated 
recordkeeping system, some of which are similar to the requirements for 
electronic recordkeeping systems found in Sec. Sec.  228.203 and 
228.205. As discussed in Section III above, however, Sec.  228.206 is 
tailored to the nature and lesser complexity of the operations of 
eligible smaller railroads. Therefore, the rule does not require an 
automated system to include some of the program components and other 
features that apply to electronic recordkeeping systems. These elements 
are not appropriate or necessary for the operations of eligible smaller 
railroads; however, the rule requires other elements for the automated 
systems not used in an electronic recordkeeping system.
    Paragraph (a) mandates an employee creating an automated record 
must sign the record and establishes the requirements for an electronic 
signature. These requirements largely track paragraph (g) of Sec.  
228.19, which explains the requirements for railroads to establish and 
use electronic signatures for filing reports of excess service. These 
requirements are unique to automated recordkeeping systems and do not 
apply to electronic recordkeeping systems.
    Paragraph (b) provides standards for system security of automated 
recordkeeping systems. Eligible smaller railroads must control access 
to the automated recordkeeping system using a user name and password or 
comparable method. Paragraph (b)(1) restricts data entry to the 
employee, train crew, or signal gang whose time is being reported, 
although a railroad may pre-populate some of the known factual data on 
its employees' HS records. An employee's name or identification number, 
or the on-duty time for an employee who works a regular schedule, are 
examples of the kind of data that the automated system can pre-
populate; however, the regulation requires that the employee may make 
changes to any pre-populated data at all times without requiring 
permission or authorization from any third party, such as, but not 
limited to, a railroad manager.
    Paragraph (b)(2) requires no two individuals have the same 
electronic signature, and paragraph (b)(3) requires the system not 
permit the deletion or alteration of an electronically-signed automated 
record. Paragraphs (b)(4) and (b)(5) together require that any 
amendment to a record must (1) be stored digitally apart from the 
record it amends or attached as information without altering the record 
and (2) identify the person making the amendment. Finally, paragraphs 
(b)(6) and (b)(7) require the automated recordkeeping systems maintain 
records as submitted without corruption or loss of data and ensure 
supervisors and crew management officials can access, but not delete or 
alter, an automated record after an employee electronically signs the 
record. The proposed rule did not establish a specific interval for 
railroads to back-up the data contained in their automated 
recordkeeping system. FRA requested comments on the appropriate 
interval and method of data back-up, but did not receive any comments 
on this issue. To guarantee sufficient data redundancy to prevent 
substantial loss of HS records, paragraph (b)(6) now requires back-up 
of automated recordkeeping systems at least quarterly.
    Paragraph (c) requires the automated recordkeeping system to 
identify each individual who enters data on a record and which data 
items each individual entered if more than one person entered data on a 
given record.
    Paragraph (d) establishes the required search capabilities for an 
automated recordkeeping system. Though the rule provides specific data 
fields and other criteria the system must be able to use to search for 
and retrieve responsive records, the requirements are notably less 
complex than those for an electronic recordkeeping system.
    Paragraph (e) establishes the requirements for access to automated 
recordkeeping systems. Eligible smaller railroads must grant FRA 
inspectors, and participating State inspectors, access to the system 
using railroad computer terminals as soon as possible, and no later 
than 24 hours after a request for access. The access must make visible 
each data field an employee completed, and data fields must be 
searchable as described in paragraph (d).
Section 228.207 Training
    This rule revises the training requirements of part 228. 
Specifically, paragraph (b) of this section, which sets forth the 
components of initial training, will now require training on how to 
enter HS data into an automated system. The paragraph currently 
requires training of employees on the electronic recordkeeping system 
or the appropriate paper records used by the railroad, contractor, or 
subcontractor for whom the employees perform covered service. Paragraph 
(b) will now include a similar training requirement for eligible 
smaller

[[Page 43993]]

railroads that develop an automated recordkeeping system in compliance 
with this rule.
    Similarly, this rule revises paragraph (c) of this section to 
specifically require eligible smaller railroads with automated systems 
to provide refresher training emphasizing any changes in HS substantive 
requirements, HS recordkeeping requirements, or a railroad's HS 
recordkeeping system since the employee was last provided training. FRA 
expects any railroad implementing an automated recordkeeping system to 
replace previously-used paper records would need to provide training on 
the use of that system to its employees, even if those employees had 
previously received training for paper records as required by this 
section.

VI. Regulatory Impact and Notices

A. Executive Orders 12866, 13563, and 13771 and DOT Regulatory Policies 
and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures under Executive Order 12866, Executive Order 
13563, Executive Order 13771, and DOT policies and procedures. 44 FR 
11034, Feb. 26, 1979; 76 FR 3821, Jan. 21, 2011; 82 FR 9339, Jan. 30, 
2017. OMB designated this rule nonsignificant. FRA prepared and placed 
in the docket a Regulatory Evaluation addressing the economic impacts 
of this rule.
    FRA will now allow eligible smaller railroads, and their 
contractors and subcontractors, to use automated recordkeeping systems, 
a simpler alternative to electronic recordkeeping systems that are 
infeasible for them, because their operations are less complex and 
variable than the operations of larger railroads. Both electronic and 
automated records require substantially less time to complete and cost 
less to store than manual records. Under this rule, eligible smaller 
railroads can take advantage of paper-saving technology to create and 
maintain hours of duty records as required by 49 CFR part 228, subpart 
B without complying with the more-stringent requirements for electronic 
recordkeeping systems under 49 CFR part 228, subpart D that may not be 
relevant to their operations. As part of its regulatory evaluation, FRA 
explained the benefits/cost savings of automated records and 
recordkeeping systems under this rule and provided a monetized value. 
The rule substantially reduces costs compared to current paper 
recordkeeping systems by allowing eligible smaller railroads to use 
automated recordkeeping systems. FRA believes the majority of eligible 
smaller railroads will take advantage of the opportunity for cost 
savings and incur a small burden to realize projected significant net 
cost savings. The final rule also follows the direction of Executive 
Order 13563, which emphasizes the importance of quantifying both costs 
and benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Finally, this final rule is considered an E.O. 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the rule's economic analysis.
    FRA estimates this regulation will result in a total estimated 
reduction of just over 194,000 burden hours annually. Based on 
railroads' annual 6180.55 reports to FRA for 2016, this rule will apply 
to a total of approximately 764 railroads with less than 400,000 
employee-hours annually. These 764 railroads include the eligible 
employees of 746 probable small freight railroads and 18 small commuter 
railroads, as well as their contractors and subcontractors. FRA 
estimates 615 of these entities will adopt an automated recordkeeping 
system: 80 percent of the 746 small railroads and all 18 of the small 
commuter railroads.
    The economic analysis \14\ provides a quantitative evaluation of 
the costs, cost savings, and benefits of the rule. The cost savings 
equals the reduced time an employee spends entering hours of duty in an 
automated system compared to the time they currently spend to manually 
produce a paper record of hours on duty. FRA calculated a reduction of 
8 minutes per record.
---------------------------------------------------------------------------

    \14\ The Regulatory Evaluation for Docket No. FRA-2012-101, 
Notice No. 2, is placed in the regulatory docket for this final 
rule.
---------------------------------------------------------------------------

    FRA estimated the net cost savings expected from this final rule. 
In particular, over a 10-year period, $87.6 million in net savings 
could accrue through the adoption of automated recordkeeping systems. 
The present value of this savings is $55.1 million (discounted at 7 
percent). FRA concludes the eligible small railroads would benefit 
significantly from adoption of the final rule.
    Railroads are already producing HS records manually on paper 
records to comply with 49 CFR 228.11, and adopting an automated 
recordkeeping system is voluntary. FRA expects a relatively small 
implementation investment cost for railroads electing to use the 
automated system to realize the significant benefits (cost burden 
reduction). Costs are primarily labor driven along with the potential 
purchase of hardware \15\ and software. \16\FRA estimates that if each 
of these railroads were to expend $5,590 discounted at 7 percent over a 
10-year period to set up and operate an automated recordkeeping system 
for HS records, the railroads would reduce their paperwork burden by 
$95,174 discounted at 7 percent over that same period.
---------------------------------------------------------------------------

    \15\ The equipment needed for an automated recordkeeping system 
includes, a PC and other computer accessories such as printers.
    \16\ Examples of the types of software that might be purchased 
are simple programmable accounting type spreadsheets, or electronic 
signature and encryption software.
---------------------------------------------------------------------------

    Therefore, this final rule would have a positive effect on these 
railroads, saving each railroad approximately a net $89,584 in costs at 
discounted 7 percent over the 10-year analysis. The table below 
presents the estimated net cost savings associated with the final rule, 
over the 10-year analysis.

        Table 1--10-Year Estimated Net Cost Savings of Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Costs to prepare and operate automated record keeping         $3,438,058
Cost Savings: Reduced Hours of recordkeeping.........         58,532,167
                                                      ------------------
    Net Cost Savings.................................         55,094,109
------------------------------------------------------------------------
Dollars are discounted at a present value rate of 7%.

B. Regulatory Flexibility Determination

    Both the Regulatory Flexibility Act (RFA), Public Law 96-354, as 
amended, and codified as amended at 5 U.S.C. 601-612, and Executive 
Order 13272--Proper Consideration of Small Entities in Agency 
Rulemaking, 67 FR 53461, Aug. 16, 2002, require agency review of 
proposed and final rules to assess their

[[Page 43994]]

impact on ``small entities'' for purposes of the RFA. An agency must 
prepare a regulatory flexibility analysis unless it determines and 
certifies a final rule is not expected to have a significant impact on 
a substantial number of small entities. Pursuant to the RFA, 5 U.S.C. 
605(b), the Administrator of FRA certifies this final rule will not 
have a significant economic impact on a substantial number of small 
entities. Although this final rule could affect many small railroads, 
they may voluntarily adopt the requirements. Moreover, the effect on 
those railroads that do voluntarily adopt the requirements is primarily 
beneficial and not significant because it will reduce their labor 
burden for hours of service recordkeeping and reporting.
    The term ``small entity'' is defined in 5 U.S.C. 601 (Section 601). 
Section 601(6) defines ``small entity'' as having the same meaning as 
``the terms `small business', `small organization' and `small 
governmental jurisdiction' defined in paragraphs (3), (4), and (5) of 
this section.'' In turn, Section 601(3) defines a ``small business'' as 
generally having the same meaning as ``small business concern'' under 
Section 3 of the Small Business Act, and includes any a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. Next, Sec. 601(4) defines ``small 
organization'' as generally meaning any not-for-profit enterprises that 
is independently owned and operated, and not dominant in its field of 
operations. Additionally, Sec. 601(5) defines ``small governmental 
jurisdiction'' in general to include governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
populations less than 50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that, in order to qualify 
for ``small entity'' status, a for-profit railroad business firm may 
have a maximum of 1,500 employees for ``Line-Haul Operating'' railroads 
and 500 employees for ``Short-Line Operating'' railroads. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A.
    Under exceptions in Section 601, Federal agencies may adopt their 
own size standards for small entities in consultation with SBA, and in 
conjunction with public comment. Under that authority, FRA published a 
``Final Policy Statement Concerning Small Entities Subject to the 
Railroad Safety Laws'' (Policy) which formally establishes that small 
entities include among others, the following: (1) Railroads that 
Surface Transportation Board (STB) regulations classify as Class III 
and (2) commuter railroads ``that serve populations of 50,000 or 
less.'' \17\ See 68 FR 24891, May 9, 2003, codified at appendix C to 49 
CFR part 209. Currently, railroads eligible for small entity status 
under the Policy also must have $20 million or less in annual operating 
revenue, adjusted annually for inflation. The $20 million limit 
(adjusted annually for inflation) is based on the STB's threshold for a 
Class III railroad, which is adjusted by applying the railroad revenue 
deflator adjustment. For further information on the calculation of the 
specific dollar limit, see 49 CFR part 1201. FRA uses this definition 
of ``small entity'' for this final rule.
---------------------------------------------------------------------------

    \17\ ``In the Interim Policy Statement [62 FR 43024, Aug. 11, 
1997], FRA defined `small entity,' for the purpose of communication 
and enforcement policies, the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., and the Equal Access for Justice Act 5 U.S.C. 501 et 
seq., to include only railroads which are classified as Class III. 
FRA further clarified the definition to include, in addition to 
Class III railroads, hazardous materials shippers that meet the 
income level established for Class III railroads (those with annual 
operating revenues of $20 million per year or less, as set forth in 
49 CFR 1201.1-1); railroad contractors that meet the income level 
established for Class III railroads; and those commuter railroads or 
small governmental jurisdictions that serve populations of 50,000 or 
less.'' 68 FR 24892 (May 9, 2003). ``The Final Policy Statement 
issued today is substantially the same as the Interim Policy 
Statement.'' 68 FR 24894.
---------------------------------------------------------------------------

    FRA amends its hours of service recordkeeping regulations to 
provide simplified recordkeeping requirements by allowing eligible 
smaller railroads, and their contractors and subcontractors, to utilize 
an automated system to create and maintain hours of duty records as 
required by 49 CFR 228.11. As stated above, FRA reports indicate there 
are 742 Class III railroads that are eligible to use the simplified 
automated recordkeeping system this final rule provides. However, if 
they are affected, it is voluntary because this final rule does not 
require any railroad to develop and use an automated recordkeeping 
system. As stated above, there are also 18 commuter railroads, each of 
which is run by a State, County, or Municipal Agency, eligible under 
this final rule to develop and use an automated recordkeeping system, 
but all serve populations of 50,000 or more and are not designated as 
small businesses.\18\
---------------------------------------------------------------------------

    \18\ Under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), ``small governmental jurisdictions'' are governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts with a population of less than 50,000.
---------------------------------------------------------------------------

    FRA estimates 80 percent of small railroads and all small commuter 
railroads to convert to automated recordkeeping. For the purposes of 
this analysis, the 615 railroads FRA estimates are affected by this 
final rule are assumed to be small railroads. However, as discussed 
above, the economic impact on these small railroads is not significant. 
This final rule does not affect any other small entities other than 
these small railroads. As stated above in Section VI.A., although FRA 
estimates each of these railroads will expend $5,590, this final rule 
will have a positive net economic effect on these railroads, saving 
each railroad approximately $89,584 in costs at discounted 7 percent 
over the 10-year period analyzed. Since this amount is relatively small 
and beneficial, FRA concludes this final rule does not have a 
significant impact on these railroads.
    To determine the significance of the economic impact for this RFA, 
during the NPRM process, FRA invited comments from all interested 
parties concerning the potential economic impact of this rulemaking on 
small entities. However, FRA did not receive any comments related to 
small entities.
    FRA expects the final rule will reduce the paperwork burden for 
smaller railroads. Therefore, this RFA concludes this final rule will 
not cause an economic impact on any small entities.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the 
FRA Administrator hereby certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
FRA continues to invite comments from members of the public who foresee 
a significant impact.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' The executive 
order defines ``policies that have federalism implications'' to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments or the agency 
consults with State and local government officials early in the process 
of developing the regulation. Where a

[[Page 43995]]

regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    FRA analyzed this final rule consistent with the principles and 
criteria contained in Executive Order 13132. FRA determined the final 
rule will not have substantial direct effects on States, on the 
relationship between the national government and States, or on the 
distribution of power and responsibilities among the various levels of 
government. In addition, FRA determined this final rule will not impose 
substantial direct compliance costs on State and local governments. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply.
    This final rule amends FRA's HS reporting and recordkeeping 
regulations to allow a railroad with less than 400,000 employee hours 
annually, and a contractor or subcontractor providing covered service 
employees to such a railroad, to create and maintain HS records for its 
covered service employees using an automated recordkeeping system. FRA 
is not aware of any State with regulations covering the subject of this 
final rule. However, FRA notes this rule could have preemptive effect 
under Section 20106 of the former Federal Railroad Safety Act of 1970, 
that Congress repealed, reenacted without substantive change, codified 
at 49 U.S.C. 20106, and later amended (Section 20106). Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters), 
unless the State law, regulation, or order (1) qualifies under the 
``essentially local safety or security hazard'' exception to Section 
20106, (2) is not incompatible with a law, regulation, or order of the 
U.S. Government, and (3) does not unreasonably burden interstate 
commerce.
    In sum, FRA analyzed this final rule consistent with the principles 
and criteria contained in Executive Order 13132. As explained above, 
FRA determined this final rule has no federalism implications other 
than possible preemption of State laws under 49 U.S.C. 20106 and 21109 
(providing regulatory authority for hours of service). Accordingly, FRA 
determined it is not required to prepare a federalism summary impact 
statement for this final rule.

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

    The information collection requirements in this final rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new and current information collection 
requirements are duly designated, and the estimated time to fulfill 
each requirement is as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
        CFR section-49 CFR         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of duty records....  785 railroads/       27,511,875 records.  2 min./5 min./8 min       2,733,439
                                    signal contractors
                                    & subcontactors.
228.17--Dispatchers record of      150 dispatch         200,750 records....  3 hours............         602,250
 train movements.                   offices.
228.19--Monthly reports of excess  300 railroads......  2,670 reports......  2 hours............           5,340
 service.
228.103--Construction of Employee  50 railroads.......  1 petition.........  16 hours...........              16
 Sleeping Quarters--Petitions to
 allow construction near work
 areas.
228.201(b)--Electronic             764 railroads......  615 automated        24 hours...........          14,760
 recordkeeping system and                                systems.
 Automated system--RR automated
 systems (Revised Requirement).
(c)--Waiver requests by railroads/ 615 railroads......  2 waiver requests..  8 hours............              16
 contractors/subcontractors no
 longer eligible use an automated
 recordkeeping system to refrain
 from having to begin keeping
 manual or electronic records or
 refrain from retaining its
 automated records as required
 under section 228.9(c) (New
 Requirement).
228.206--New Requirements--        100,500 employees..  19,365 signed        5 minutes..........           1,614
 Requirements for automated                              certifications.
 records and for automated
 recordkeeping systems on
 eligible smaller railroads, and
 their contractors or
 subcontractors that provide
 covered service employees to
 such railroads.
Certification of employee's        100,500 employees..  75 signed            5 minutes..........               6
 electronic signature.                                   certifications.
--Additional certification/        615 railroads......  615 procedures.....  90 minutes.........             923
 testimony provided by employee
 upon FRA request.
--Procedure for providing FRA/
 state inspector with system
 access upon request.
228.207--Revised Requirements--    615 railroads......  5,931 trained        2 hours............          11,862
 Training in use of electronic or                        employees.
 automated system--Initial
 training.

[[Page 43996]]

 
--Employee refresher training on   785 railroads/       47,000 trained       1 hour.............          47,000
 relevant changes to hours of       contractors &        employees.
 service laws, the recording or     subcontractors.
 reporting requirements in
 Subparts B and D of this Part,
 or the electronic, automated, or
 manual recordkeeping system of
 the railroad/contractor.
49 U.S.C. 21102--The Federal       10 railroads.......  1 petition.........  10 hours...........              10
 Hours of Service Laws--Petitions
 for exemption from laws.
228.407--Analysis of work          168 railroads......  2 analyses.........  20 hours...........              40
 schedules--RR analysis of one
 cycle of work schedules of
 employees engaged in commuter or
 intercity passenger
 transportation.
--RR Report to FRA Administrator   168 railroads......  1 report...........  2 hours............               2
 of each work schedule that
 exceeds fatigue threshold.
--RR Fatigue mitigation plan--     168 railroads......  1 plan.............  4 hours............               4
 submission and FRA approval.
--Work schedules, proposed         168 railroads......  1 corrected          2 hours............               2
 mitigation plans/tools,                                 document.
 determinations of operational
 necessity--found deficient by
 FRA and needing correction.
--Follow-up analyses submitted to  168 railroads......  5 analyses.........  4 hours............              20
 FRA for approval.
--Deficiencies found by FRA in     168 railroads......  1 corrected          2 hours............               2
 revised work schedules and                              document.
 accompanying fatigue mitigation
 tools and determinations of
 operational necessity needing
 correction.
--Updated fatigue mitigation       168 railroads......  8 plans............  4 hours............              32
 plans.
--RR Consultation with directly    168 railroads......  5 consultations....  2 hours............              10
 affected employees on: (i) RR
 Work schedules at risk for
 fatigue level possibly
 compromising safety; and
(ii) Railroad's selection of
 fatigue mitigation tools; and
 (iii) All RR Submissions
 required by this section seeking
 FRA approval.
--Filed employee statements with   RR Employee          2 filed statements.  2 hours............               4
 FRA explaining any issues          Organizations.
 related to paragraph (f)(1) of
 this section where consensus was
 not reached.
228.411--RR Training programs on   168 railroads......  14 training          5 hours............              70
 fatigue and related topics                              programs.
 (e.g., rest, alertness, changes
 in rest cycles, etc.).
--Refresher training for new       168 railroads......  150 initially        1 hour.............             150
 employees.                                              trained employees.
--RR Every 3 Years refresher       168 railroads......  3,400 trained        1 hour.............           3,400
 training for existing employees.                        employees.
--RR Record of employees trained   168 railroads......  3,550 records......  5 minutes..........             296
 in compliance with this section.
--Written declaration to FRA by    140 railroads......  2 written            1 hour.............               2
 tourist, scenic, historic, or                           declarations.
 excursion RR seeking exclusion
 from this section's requirements
 because its employees are
 assigned schedules wholly within
 the hours of 4 a.m. to 8 p.m. on
 the same calendar day that
 comply with the provisions of
 section 228.405.
Appendix D--Guidance on fatigue    168 railroads......  2 updated plans....  10 hours...........              20
 management plan--RR reviewed and
 updated fatigue management plans.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Collection Clearance Officer, Office of Railroad Safety, at 
202-493-6292, or Ms. Kim Toone, Information Collection Clearance 
Officer, Office of Railroad Administration, at 202-493-6132, or via 
email at the following addresses: <a href="/cdn-cgi/l/email-protection#83d1ece1e6f1f7adc1f1ece4e2edc3e7ecf7ade4ecf5"><span class="__cf_email__" data-cfemail="cf9da0adaabdbbe18dbda0a8aea18faba0bbe1a8a0b9">[email protected]</span></a>; 
<a href="/cdn-cgi/l/email-protection#a6edcfcb88f2c9c9c8c3e6c2c9d288c1c9d0"><span class="__cf_email__" data-cfemail="f0bb999ddea49f9f9e95b0949f84de979f86">[email protected]</span></a>.

[[Page 43997]]

    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to the Office of Management and Budget at the following 
address: <a href="/cdn-cgi/l/email-protection#d5babca7b48aa6a0b7b8bca6a6bcbabba695bab8b7fbb0baa5fbb2baa3"><span class="__cf_email__" data-cfemail="4e21273c2f113d3b2c23273d3d2721203d0e21232c602b213e60292138">[email protected]</span></a>.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of this final rule. The 
OMB control number assigned to the collection of information associated 
with the current rule is OMB No. 2130-0005.

F. Environmental Assessment

    FRA evaluated this final rule consistent with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA determined this final rule is 
not a major FRA action requiring the preparation of an environmental 
impact statement or environmental assessment because it is 
categorically excluded from detailed environmental review under section 
4(c)(20) of FRA's Procedures.See 64 FR 28547, May 26, 1999. Section 
4(c)(20) states certain classes of FRA actions have been determined to 
be categorically excluded from the requirements of FRA's Procedures as 
they do not individually or cumulatively have a significant effect on 
the human environment, including the promulgation of railroad safety 
rules and policy statements that do not result in significantly 
increased emissions of air or water pollutants or noise or increased 
traffic congestion in any mode of transportation.
    FRA further concluded no extraordinary circumstances exist with 
respect to this final regulation that might trigger the need for a more 
detailed environmental review under sections 4(c) and (e) of FRA's 
Procedures. As a result, FRA finds that this final rule is not a major 
Federal action significantly affecting the quality of the human 
environment.

G. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. 
L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise 
prohibited by law, assess the effects of Federal regulatory actions on 
State, local, and tribal governments, and the private sector (other 
than to the extent that such regulations incorporate requirements 
specifically set forth in law).'' Section 202 of the Act (2 U.S.C. 
1532) further requires written statements from agencies before 
promulgating any general notice of proposed rulemaking that includes 
any Federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) in any 1 year 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published. The written statement, if required, 
would detail the effect on State, local, and tribal governments and the 
private sector.
    For the year 2015, FRA adjusted the monetary amount of $100,000,000 
to $156,000,000 for inflation. This final rule would not result in the 
expenditure of more than $156,000,000 by the public sector in any one 
year, and thus preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, ``significant energy 
action'' means any action by an agency (normally published in the 
Federal Register) that promulgates, or is expected to lead to the 
promulgation of, a final rule or regulation (including a notice of 
inquiry, advance NPRM, and NPRM) that (1)(i) is a significant 
regulatory action under Executive Order 12866 or any successor order 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (2) is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action. FRA evaluated this rule consistent with 
Executive Order 13211. FRA determined this rule will not have a 
significant adverse effect on the supply, distribution, or use of 
energy and, thus, is not a ``significant energy action'' under the 
Executive Order 13211.

List of Subjects in 49 CFR Part 228

    Administrative practice and procedures, Buildings and facilities, 
Hazardous materials transportation, Noise control, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

The Rule

    For the reasons discussed in the preamble, FRA amends part 228 of 
chapter II, subtitle B of title 49, Code of Federal Regulations, as 
follows:

PART 228--PASSENGER TRAIN EMPLOYEE HOURS OF SERVICE; RECORDKEEPING 
AND REPORTING; SLEEPING QUARTERS

0
1. The authority citation for part 228 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. 
A, Pub. L. 110-432, 122 Stat. 4860-4866, 4893-4894; 49 U.S.C. 21301, 
21303, 21304, 21311; 28 U.S.C. 2461, note; 49 U.S.C. 103; and 49 CFR 
1.89.

0
2. The heading of part 228 is revised to read as set forth above.

0
3. In Sec.  228.5, add definitions of ``Automated recordkeeping 
system''; ``Electronic recordkeeping system''; ``Electronic 
signature''; and ``Eligible smaller railroad'' in alphabetical order to 
read as follows:


Sec.  228.5   Definitions.

* * * * *
    Automated recordkeeping system means a recordkeeping system that--
    (1) An eligible smaller railroad, or a contractor or subcontractor 
to such a railroad, may use instead of a manual recordkeeping system or 
electronic recordkeeping system to create and maintain any records 
subpart B of this part requires; and
    (2) Conforms to the requirements of Sec.  228.206.
* * * * *
    Electronic recordkeeping system means a recordkeeping system that--
    (1) A railroad may use instead of a manual recordkeeping system or 
automated recordkeeping system to create and maintain any records 
required by subpart B of this part; and
    (2) Conforms to the requirements of Sec. Sec.  228.201-228.205.
    Electronic signature means an electronic sound, symbol, or process 
that--
    (1) Is attached to, or logically associated with, a contract or 
other record;

[[Page 43998]]

    (2) Is executed or adopted by a person with the intent to sign the 
record, to create either an individual's unique digital signature, or 
unique digitized handwritten signature; and
    (3) Complies with the requirements of Sec.  228.19(g) or Sec.  
228.206(a).
    Eligible smaller railroad means either:
    (1) A railroad that reported to FRA that it had less than 400,000 
employee hours during the preceding three consecutive calendar years 
under Sec.  225.21(d) of this chapter on Form FRA 6180.55, Annual 
Railroad Reports of Employee Hours by State; or
    (2) A railroad operating less than 3 consecutive calendar years 
that reported to FRA that it had less than 400,000 employee hours 
during the current calendar year under Sec.  225.21(d) of this chapter 
on Form FRA 6180.55, Annual Railroad Reports of Employee Hours by 
State.
* * * * *

0
4. In Sec.  228.9, revise the section heading, add headings to 
paragraphs (a) and (b), and add new paragraph (c) to read as follows:


Sec.  228.9   Manual, electronic, and automated records; general.

    (a) Manual records. * * *
* * * * *
    (b) Electronic records. * * *
* * * * *
    (c) Automated records. Each automated record maintained under this 
part shall be--
    (1) Signed electronically by the employee whose time on duty is 
being recorded or, in the case of a member of a train crew or a signal 
employee gang, digitally signed by the reporting employee who is a 
member of the train crew or signal gang whose time is being recorded as 
provided by Sec.  228.206(a);
    (2) Stamped electronically with the certifying employee's 
electronic signature and the date and time the employee electronically 
signed the record;
    (3) Retained for 2 years in a secured file that prevents alteration 
after electronic signature;
    (4) Accessible by the Administrator through a computer terminal of 
the railroad; and
    (5) Reproducible using printers at the location where records are 
accessed.

0
5. In Sec.  228.11, revise the first sentence of paragraph (a) to read 
as follows:


Sec.  228.11  Hours of duty records.

    (a) In general. Each railroad, or a contractor or a subcontractor 
of a railroad, shall keep a record of the hours of duty of each 
employee. * * *
* * * * *

0
6. Revise the heading of subpart D to read as follows:

Subpart D--Electronic Recordkeeping System and Automated 
Recordkeeping System

0
7. In Sec.  228.201, revise the section heading, designate the 
introductory text as paragraph (a), add a heading to newly designated 
paragraph (a), redesignate paragraphs (1) through (6) as paragraphs 
(a)(1) through (6), revise the paragraphs newly designated as (a)(1), 
(a)(3), (a)(4), and (a)(5), and add new paragraph (b) to read as 
follows:


Sec.  228.201  Electronic recordkeeping system and automated 
recordkeeping system; general.

    (a) Electronic recordkeeping system. * * *
    (1) The system used to generate the electronic record meets all 
requirements of this paragraph (a) of this section and all requirements 
of Sec. Sec.  228.203 and 228.205;
* * * * *
    (3) The railroad, or contractor or subcontractor to the railroad, 
monitors its electronic database of employee hours of duty records 
through a sufficient number of monitoring indicators to ensure a high 
degree of accuracy of these records;
    (4) The railroad, or contractor or subcontractor to the railroad, 
trains its affected employees on the proper use of the electronic 
recordkeeping system to enter the information necessary to create their 
hours of service record, as required by Sec.  228.207;
    (5) The railroad, or contractor or subcontractor to the railroad, 
maintains an information technology security program adequate to ensure 
the integrity of the system, including the prevention of unauthorized 
access to the program logic or individual records; and
* * * * *
    (b) Automated recordkeeping system. For purposes of compliance with 
the recordkeeping requirements of subpart B of this part, an eligible 
smaller railroad, or a contractor or a subcontractor that provides 
covered service employees to such a railroad, may create and maintain 
any of the records required by subpart B using an automated 
recordkeeping system if all of the following conditions are met:
    (1) The automated recordkeeping system meets all requirements of 
paragraph (b) of this section and all requirements of Sec.  228.206; 
and
    (2) The eligible smaller railroad or its contractor or 
subcontractor complies with all of the requirements of paragraphs 
(a)(2) and (a)(4) through (6) of this section for its automated records 
and automated recordkeeping system.
    (c) If a railroad, or a contractor or subcontractor to the 
railroad, is no longer eligible to use an automated recordkeeping 
system to record data subpart B of this part requires, the entity must 
begin keeping manual or electronic records and must retain its 
automated records as required under Sec.  228.9(c) unless the entity 
requests, and FRA grants, a waiver under Sec.  211.41 of this chapter.

0
8. Add Sec.  228.206 to read as follows:


Sec.  228.206  Requirements for automated records and for automated 
recordkeeping systems on eligible smaller railroads, and their 
contractors or subcontractors that provide covered service employees to 
such railroads.

    (a) Use of electronic signature. Each employee creating a record 
required by subpart B of this part must sign the record using an 
electronic signature that meets the following requirements:
    (1) The record contains the printed name of the signer and the date 
and actual time the signature was executed, and the meaning (such as 
authorship, review, or approval) associated with the signature;
    (2) Each electronic signature is unique to one individual and shall 
not be used by, or assigned to, anyone else;
    (3) Before an eligible smaller railroad, or a contractor or 
subcontractor to such a railroad, establishes, assigns, certifies, or 
otherwise sanctions an individual's electronic signature, or any 
element of such electronic signature, the organization shall verify the 
identity of the individual;
    (4) A person using an electronic signature shall, prior to or at 
the time of each such use, certify to FRA that the person's electronic 
signature in the system, used on or after August 29, 2018 is the 
legally binding equivalent of the person's traditional handwritten 
signature;
    (5) Each employee shall sign the initial certification of his or 
her electronic signature with a traditional handwritten signature, and 
each railroad using an automated system shall maintain certification of 
each electronic signature at its headquarters or the headquarters of 
any contractor or subcontractor providing employees who perform covered 
service to such a railroad, and railroads, contractors, and 
subcontractors must make the certification available to FRA upon 
request; and
    (6) A person using an electronic signature in such a system shall, 
upon FRA request, provide additional certification or testimony that a 
specific

[[Page 43999]]

electronic signature is the legally binding equivalent of his or her 
handwritten signature.
    (b) System security. Railroads using an automated recordkeeping 
system must protect the integrity of the system by the use of an 
employee identification number and password, or a comparable method, to 
establish appropriate levels of program access meeting all of the 
following standards:
    (1) Data input is restricted to the employee or train crew or 
signal gang whose time is being recorded, except that an eligible 
smaller railroad, or a contractor or subcontractor to such a railroad, 
may pre-populate fields of the hours of service record provided that--
    (i) The eligible smaller railroad, or its contractor or 
subcontractor, pre-populates fields of the hours of service record with 
information the railroad, or its contractor or subcontractor knows is 
factually accurate for a specific employee.
    (ii) The recordkeeping system may allow employees to copy data from 
one field of a record into another field, where applicable.
    (iii) The eligible smaller railroad, or its contractor or 
subcontractor does not use estimated, historical, or arbitrary 
information to pre-populate any field of an hours of service record.
    (iv) An eligible smaller railroad, or a contractor or a 
subcontractor to such a railroad, is not in violation of paragraph 
(b)(1) of this section if it makes a good faith judgment as to the 
factual accuracy of the data for a specific employee but nevertheless 
errs in pre-populating a data field.
    (v) The employee may make any necessary changes to the data by 
typing into the field without having to access another screen or obtain 
clearance from railroad, or contractor or subcontractor to the 
railroad.
    (2) No two individuals have the same electronic signature.
    (3) No individual can delete or alter a record after the employee 
who created the record electronically signs the record.
    (4) Any amendment to a record is either:
    (i) Electronically stored apart from the record that it amends; or
    (ii) Electronically attached to the record as information without 
changing the original record.
    (5) Each amendment to a record uniquely identifies the individual 
making the amendment.
    (6) The automated system maintains the records as originally 
submitted without corruption or loss of data. Beginning August 29, 
2018, an eligible smaller railroad must retain back-up data storage for 
its automated records for the quarters prescribed in the following 
table for the time specified in Sec.  228.9(c)(3), to be updated within 
30 days of the end of each prescribed quarter--

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Quarter 1..............................  January 1 through March 31.
Quarter 2..............................  April 1 through June 30.
Quarter 3..............................  July 1 through September 30.
Quarter 4..............................  October 1 through December 31.
------------------------------------------------------------------------

    (7) Supervisors and crew management officials can access, but 
cannot delete or alter, the records of any employee after the employee 
electronically signs the record.
    (c) Identification of the individual entering data. If a given 
record contains data entered by more than one individual, the record 
must identify each individual who entered specific information within 
the record and the data the individual entered.
    (d) Search capabilities. The automated recordkeeping system must 
store records using the following criteria so all records matching the 
selected criteria are retrieved from the same location:
    (1) Date (month and year);
    (2) Employee name or identification number; and
    (3) Electronically signed records containing one or more instances 
of excess service, including duty tours in excess of 12 hours.
    (e) Access to records. An eligible smaller railroad, or contractor 
or subcontractor providing covered service employees to such a 
railroad, must provide access to its hours of service records under 
subpart B that are created and maintained in its automated 
recordkeeping system to FRA inspectors and State inspectors 
participating under 49 CFR part 212, subject to the following 
requirements:
    (1) Access to records created and maintained in the automated 
recordkeeping system must be obtained as required by Sec.  228.9(c)(4);
    (2) An eligible smaller railroad must establish and comply with 
procedures for providing an FRA inspector or participating State 
inspector with access to the system upon request and must provide 
access to the system as soon as possible but not later than 24 hours 
after a request for access;
    (3) Each data field entered by an employee on the input screen must 
be visible to the FRA inspector or participating State inspector; and
    (4) The data fields must be searchable as described in paragraph 
(d) of this section and must yield access to all records matching the 
criteria specified in a search.

0
9. In Sec.  228.207, revise paragraphs (b)(1)(iii)(B) and (c)(1)(i) to 
read as follows:


Sec.  228.207  Training.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (B) The entry of hours of service data, into the electronic system 
or automated system or on the appropriate paper records used by the 
railroad or contractor or subcontractor to a railroad for which the 
employee performs covered service; and
* * * * *
    (c) * * *
    (1) * * *
    (i) Emphasize any relevant changes to the hours of service laws, 
the recording and reporting requirements in subparts B and D of this 
part, or the electronic, automated, or manual recordkeeping system of 
the railroad or contractor or subcontractor to a railroad for which the 
employee performs covered service since the employee last received 
training; and
* * * * *

    Issued in Washington, DC.
Ronald Louis Batory,
Administrator.
[FR Doc. 2018-18639 Filed 8-28-18; 8:45 am]
 BILLING CODE 4910-06-P


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