25330 Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 228 

[Docket No. 2006–26176, Notice No. 1] 

RIN 2130–AB85 

Hours of Service of Railroad 

Employees; Amended Recordkeeping 

and Reporting Regulations 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is amending its hours of 

service recordkeeping and reporting 

regulations to ensure the creation of 

records that support compliance with 

the hours of service laws as amended by 

the Rail Safety Improvement Act of 2008 

(RSIA of 2008). This regulation will also 

provide for electronic recordkeeping 

and reporting, and will require training 

of employees and supervisors of those 

employees, who are required to 

complete hours of service records, or are 

responsible for making determinations 

as to excess service and the reporting of 

excess service to FRA as required by the 

regulation. This regulation is required 

by Section 108(f) of the RSIA of 2008. 

DATES: This final rule is effective July 

16, 2009. Petitions for reconsideration 

must be received on or before July 6, 

2009. 

ADDRESSES: Petitions for 

reconsideration: Any petitions for 

reconsideration related to Docket No. 

FRA–2006–26176, may be submitted by 

any of the following methods: 

• Web site: The Federal eRulemaking 

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

Follow the Web site’s online 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., W12–140, 

Washington, DC 20590. 

• Hand Delivery: Room W12–140 on 

the Ground level of the West Building, 

1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 5 

p.m. Monday through Friday, except 

Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all petitions received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

petitions, comments, or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or to Room W12– 

140 on the Ground level of the West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 5 

p.m. Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Norris, Operating Practices 

Specialist, Operating Practices Division, 

Office of Safety Assurance and 

Compliance, FRA, 1200 New Jersey 

Avenue, SE., RRS–11, Mail Stop 25, 

Washington, DC 20590 (telephone 202– 

493–6242); or Colleen A. Brennan, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Avenue, SE., RCC–12, 

Mail Stop 10, Washington, DC 20590 

(telephone 202–493–6028 or 202–493– 

6052). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Background and History 

A. Statutory History 

B. History of Hours of Service 

Recordkeeping 

II. Rail Safety Improvement Act of 2008 

A. Substantive Changes to the HSL 

B. Rulemaking Mandate 

III. Railroad Safety Advisory Committee 

Process 

1. Multiple-Train Reporting 

2. Pre-Population of Data 

3. Tie-up Procedures for Signal Employees 

4. Tracking Cumulative Totals Toward the 

276-Hour Monthly Maximum Limitation 

5. Multiple Reporting Points 

IV. Section-by-Section Analysis 

V. Regulatory Impact and Notices 

A. Statutory Authority 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

C. Executive Order 13132 

D. Executive Order 13175 

E. Regulatory Flexibility Act and Executive 

Order 13272 

F. Paperwork Reduction Act 

G. Regulation Identifier Number (RIN) 

H. Unfunded Mandates Reform Act 

I. Environmental Assessment 

I. Background and History 

A. Statutory History 

Federal laws governing railroad 

employees’ hours of service date back to 

1907. See Public Law 59–274, 34 Stat. 

1415 (1907). These laws, codified at 49 

U.S.C. 21101 et seq. are intended to 

promote safe railroad operations by 

limiting the hours of service of certain 

railroad employees and ensuring that 

they receive adequate opportunities for 

rest in the course of performing their 

duties. The Secretary of Transportation 

(‘‘Secretary’’) is charged with the 

administration of those laws, 49 U.S.C. 

103(a), now collectively referred to as 

the HSL. These functions have been 

delegated to the FRA Administrator. 49 

U.S.C. 103(c); 49 CFR 1.49(d). 

Congress substantially amended the 

HSL on two previous occasions. The 

first significant amendments occurred in 

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

The 1969 amendments reduced the 

maximum time on duty for train 

employees from 16 hours to 14 hours 

effective immediately, with a further 

reduction to 12 hours automatically 

taking effect two years later. Congress 

also established provisions for 

determining, in the case of a train 

employee, whether a period of time is 

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

21103(b). In so doing, Congress also 

addressed the issue of deadhead 

transportation time, providing that 

‘‘[t]ime spent in deadhead 

transportation to a duty assignment’’ is 

counted as time on duty. (Emphasis 

added). Although time spent in 

deadhead transportation from a duty 

assignment is not included within any 

of the categories of time on duty, 

Congress further provided that it shall 

be counted as neither time on duty nor 

time off duty. 49 U.S.C. 21103(b)(4). 

This provision effectively created a 

third category of time, known 

commonly as ‘‘limbo time.’’ 

In 1976, Congress again amended the 

hours of service laws in several 

important respects. Most significantly, 

Congress expanded the coverage of the 

laws, by including hostlers within the 

definition of a train employee, and 

adding the section providing hours of 

service requirements for signal 

employees, now codified at 49 U.S.C. 

21104. Congress also added a provision 

that prohibited a railroad from 

providing sleeping quarters that are not 

free from interruptions of rest caused by 

noise under the control of the railroad, 

and that are not clean, safe, and 

sanitary, and prohibited the 

construction or reconstruction of 

sleeping quarters in an area or in the 

immediate vicinity of a rail yard in 

which humping or switching operations 

are performed. See Public Law 94–348, 

90 Stat. 818 (1976). 

B. History of Hours of Service 

Recordkeeping 

With the formation of DOT and its 

regulatory agencies in 1966, the 

oversight and enforcement of the HSL 

was transferred from the Interstate 

Commerce Commission (ICC) to the 

newly established FRA. Prior to this 

transfer the ICC had enforced reporting 

requirements based on its May 2, 1921 


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order that established the records 

required to be maintained by carriers 

relating to the time on duty of 

employees who were involved in either 

the movement of trains (referred to in 

the current HSL as ‘‘train employees’’) 

or the issuance of movement authority 

(referred to in the current HSL as 

‘‘dispatching service employees’’). The 

ICC Order mandated both the content 

and the format of the hours of service 

record for train employees and 

dispatching service employees. 

The records required by the ICC Order 

included one titled ‘‘Time Return and 

Delay Report of Engine and Train 

Employees.’’ The format and required 

fields mandated for this record formed 

the basis for all train employee hours of 

service recordkeeping and reporting, 

and for the reporting requirements 

initially established by FRA for hours of 

service recordkeeping by railroad 

employees in 49 CFR part 228, and 

specifically § 228.11. 

The ICC Order also mandated the 

format for a form titled ‘‘Details of 

Service’’, which was a required part of 

the train employee’s hours of service 

record. This segment of the employee’s 

record required the railroads to report 

operational data that included train 

number, engine number, the departure 

station, the time that the employee went 

on duty, the time the train departed, the 

arrival station, the time the train 

arrived, the time the employee went off 

duty, and the kind of service in which 

the employee was working, i.e., 

passenger, freight, work train, or 

deadhead. The Details of Service form 

contained entries for each train with 

which an employee was associated 

during a duty tour. 

As was discussed above, the 1969 

amendments to the HSL addressed the 

issue of time spent by train employees 

in deadhead transportation from a duty 

assignment to the point of final release, 

establishing that such time is neither 

time on duty nor time off duty, which 

created a new category of time that has 

come to be known as ‘‘limbo time.’’ 

Following the 1969 amendments, the 

railroads continued to use the ICC 

recordkeeping formats. The ‘‘Time 

Return’’ portion of the recordkeeping 

document only provided a place to enter 

on-duty time and off-duty time, and 

could not accommodate the separate 

entry of limbo time. However, the 

railroads also continued to use the 

‘‘Details of Service’’ portion, and this 

form became critical to proper 

recordkeeping. The ‘‘Details of Service’’ 

required train arrival and departure 

times, usually included comments as to 

when the crew had finished securing 

the train and therefore was relieved 

from covered service, and indicated the 

departure and arrival times of the 

deadhead vehicle and final release from 

service. With this information, it was 

possible to differentiate an employee’s 

time spent on duty in covered service 

from time that was spent awaiting 

deadhead transportation and in 

deadhead transportation to the point of 

final release, which was limbo time. 

The 1921 ICC Order also required 

records and provided recordkeeping 

formats for dispatching service 

employees, including records of 

dispatchers’ time on duty, and records 

documenting train operation over the 

territory controlled by each dispatcher. 

The required records for dispatching 

service employees included the ‘‘Daily 

Time Report of Dispatchers,’’ the 

‘‘Dispatchers Record of Movement of 

Trains’’, and for those dispatching 

service employees known as operators, 

in addition to the ‘‘Daily Time Report of 

Dispatchers,’’ a ‘‘Station Record of Train 

Movements,’’ a form that identified the 

operators by shift, and required the 

operator to list the train or engine 

number, along with the arrival and 

departure times for each train passing 

the specific station where the operator 

was located. Following the transfer of 

responsibilities, FRA adopted the ICC’s 

established reporting requirements for 

dispatching service employees, but did 

not require its specific format. However, 

the formats and data fields are still used, 

even currently, by virtually all railroads 

that employ dispatching service 

employees. 

As was discussed above, the Federal 

Railroad Safety Authorization Act of 

1976 expanded coverage of the HSL to 

signal employees. Congress defined a 

signal employee as an individual 

employed by a railroad carrier who is 

engaged in installing, repairing, or 

maintaining signal systems. This, in 

effect, excluded contract signal 

employees from the coverage of the 

HSL. The statutory limitations for signal 

employees were very similar to those for 

train employees. Also, in both cases, the 

HSL treated the time these employees 

reported for duty as the time covered 

service began, irrespective of whether or 

not a covered function was actually 

performed. In addition, both train 

employees and signal employees had 

periods of time spent in travel to and 

from a duty location, some of which the 

HSL treated as limbo time. Also, in both 

cases, the HSL treated the time that one 

of these employees ‘‘reports for duty’’ as 

the time that time on duty began. 

Because of the similarities in their 

statutory provisions, the recordkeeping 

requirements for these two functions 

were also quite similar, and FRA did not 

need to revise its reporting requirements 

to establish distinct recordkeeping 

provisions for signal employees. 

The 1921 ICC Order also stated, in 

part, that ‘‘each carrier may at its option, 

and with the approval of the 

Commission, add to such records 

appropriate blanks for any additional 

information desired by it.’’ Over time, 

railroads came to record information for 

employee pay claims, railroad 

operations and crew management on the 

same form that was used for hours of 

service recordkeeping. The combination 

of pay and hours of service information 

on the same document facilitated 

employee hours of service reporting 

practices that were greatly influenced by 

collective bargaining agreements and 

pay considerations, where differences 

existed between the activities for which 

a collective bargaining agreement 

required an employee to be paid, and 

those activities required to be reported 

for the purposes of the HSL. For 

example, an employee might report that 

he or she went off duty at the time that 

his or her paid activities ended. This 

would not be accurate reporting for the 

purposes of the HSL, if the duty tour 

included deadhead transportation to the 

point of final release. Regardless of 

whether an employee received 

additional pay for the deadhead 

transportation, the HSL required the 

time to be recorded, and the employee 

would not be off duty for the purposes 

of the HSL until after the completion of 

the deadhead transportation. 

As technology expanded in the rail 

industry, some railroads in the 1980s 

became interested in electronically 

recording and reporting employee hours 

of service data. By the mid to late 1980s, 

the CSX Transportation, Inc. (CSX) had 

developed an automated program 

generated from its crew management 

system. CSX began using the program to 

generate and maintain hours of service 

records for its train employees. The 

program produced paper copies of the 

recorded entries for the employee’s 

signature. Then, in 1991, CSX and the 

Union Pacific Railroad Company jointly 

presented a proposal to use an 

electronic record, without a signature, 

as the railroad’s official train employee 

hours of service record. Section 228.9 of 

the existing hours of service 

recordkeeping regulations required that 

the hours of service record be signed. 

Therefore, it was necessary for FRA to 

waive the signature requirement, to 

allow for the development of a program 

that would allow the railroad and its 

train employees to electronically record 

and store hours of service information, 

with the employee electronically 

certifying the accuracy of the entered 


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data, so that this record would become 

the official hours of service record, in 

lieu of a signed paper record. As CSX 

worked to develop an electronic 

program for which FRA would grant a 

waiver, a number of issues became 

apparent. These issues had to be 

resolved to ensure that the system 

would have sufficient data fields to 

allow the employee to record the 

different events that occurred in his or 

her duty tour, to capture all of the data 

necessary for FRA to determine 

compliance with the HSL. 

The concept of electronic 

recordkeeping presented a significant 

change in how employees were used to 

reporting their hours of service 

information. Data entry moved from a 

dynamic manual reporting method, in 

which a record was continually updated 

by the reporting employee during the 

course of his or her duty tour, to an 

automated end-of-trip report where all 

reporting related to a particular duty 

tour was made in after-the-fact entries 

into the railroad’s computer system, 

after the completion of the duty tour. In 

addition, manual records afforded the 

employee flexibility to provide 

information about any activities that 

occurred during the duty tour, as well 

as any comments that might be 

necessary to understand any apparent 

anomalies in reported information. 

However, an electronic record would be 

limited to the data fields provided by 

the recordkeeping program, so it was 

essential that the programs were 

designed to provide sufficient data 

fields to accommodate the variety of 

reporting scenarios that an employee 

might encounter, so that the employee 

had the opportunity to record all 

relevant data for the events that 

occurred in his or her duty tour. 

CSX’s first attempt to develop an 

electronic recordkeeping system 

resulted in a program that functioned in 

much the same manner as a paper 

record, but without the comprehensive 

information provided by the ‘‘Details of 

Service’’ portion of the employee’s 

record. It was on this portion of their 

record that employees recorded a 

number of items that were necessary for 

determining compliance with the HSL, 

including deadhead transportation 

either to or from a duty assignment, 

multiple covered service assignments, 

other activities performed for the carrier 

that constituted commingled service if 

not separated from covered service by a 

statutory off-duty period, and the 

distinct times that an employee was 

relieved from covered service, and then 

subsequently released from all service to 

begin a statutory off-duty period, which 

would not be the same times when 

limbo time was present at the end of the 

duty tour. In addition, the first attempt 

at an electronic recordkeeping system 

also had not considered the features of 

the system itself, that were necessary for 

ensuring the accuracy of the data and 

the ability of FRA to use the data to 

determine compliance with the HSL. 

These features included program logic 

that was necessary, for example, to 

calculate total time on duty from the 

appropriate data entered in the record, 

to require explanation when the total 

time on duty exceeded the statutory 

maximum, and to use program edits to 

identify obvious employee input errors. 

The mechanism for providing FRA with 

the ability to access the electronic 

records was also an issue that needed to 

be resolved. Because part 228, as drafted 

in 1972, did not contemplate the 

existence of electronic recordkeeping, it 

provided no framework for addressing 

these issues. 

However, FRA and CSX pledged to 

work together through a ‘‘test waiver’’ 

process to develop a program with logic, 

edits, and access that would 

accommodate FRA oversight and 

enforcement of the current HSL 

provisions, and ultimately allow FRA to 

grant a waiver of the signature 

requirement, thereby allowing hours of 

service data to be both reported and 

recorded electronically. The FRA and 

CSX partnership eventually resulted in 

the development of a system containing 

sufficient data entry fields and system 

features to resolve many of the issues 

facing movement to electronic 

recordkeeping. 

Another significant issue that arose in 

the development of electronic 

recordkeeping systems was providing 

sufficient data fields to differentiate 

limbo time from time spent performing 

covered service, which distinction was 

necessary to correctly determine an 

employee’s total time on duty. The 

electronic programs that were initially 

devised required the employee to report 

only an on-duty time and an off-duty 

time, and the beginning and ending 

times of periods spent in transportation. 

The records did not include the features 

of the delay report that had been a part 

of the paper records, on which 

employees included their beginning and 

ending location, date, and time for 

periods spent in covered service 

assignments, and noted, for example, 

that the ending time was the time at 

which the employee secured the train, 

which completed his or her covered 

service on that train. 

The railroads viewed this information 

as not being required by Part 228, but 

this information was regularly used by 

FRA in reviewing records for 

compliance with the HSL, and it was 

essential that the information continue 

to be captured in electronic records. 

Without an indication of the time that 

the employee stopped performing 

covered service, there was no way to 

determine when the employee stopped 

accumulating time on duty and when he 

or she began limbo time. Once the 

employee stopped performing covered 

service, limbo time began, as the time 

that the employee spent awaiting 

transportation to the point of final 

release, like the transportation itself, 

was limbo time. However, if the 

employee’s record showed only the time 

that the employee reported for duty, the 

time spent in transportation, and the offduty time, all of the time between 

reporting for duty and beginning 

deadhead to the point of final release 

would necessarily be calculated as time 

on duty, which could result in a record 

that incorrectly showed a total time on 

duty in excess of the statutory 

maximum, because limbo time was not 

properly reflected. 

To resolve these complex issues, FRA 

developed a 3x3 matrix, in which an 

employee entered the location, date, and 

time for each time that he or she went 

on duty in covered service, the location, 

date, and time for each time that he or 

she was relieved from a covered service 

assignment, and the location, date, and 

time for each time that he or she was 

released from an assignment, to begin 

another assignment or activity, or to be 

released from all service to begin a 

period of off-duty time. This 3x3 matrix 

was eventually incorporated in all of the 

waiver-approved electronic programs. 

However, deadhead transportation, 

and activities that constitute other 

service for the carrier (which may 

commingle with covered service) do not 

have relieved and released times in the 

activity. These activities have only a 

beginning and an ending time for each 

event. Thus, FRA also developed a 

second section of data entry, in which 

the employee reported the location, 

date, and time for the beginning and the 

ending of all non-covered service 

activities that are part of the employee’s 

duty tour, but may or may not be 

calculated in the employee’s total time 

on duty. 

FRA and CSX continued to work 

together until these early issues were 

sufficiently resolved, and eventually, 

CSX was granted a waiver of the 

signature requirement in § 228.9. As a 

result, CSX was allowed to utilize an 

electronic recordkeeping program, in 

which its train employees reported their 

hours of service at the end of each duty 

tour, and those electronic records 

constituted the official hours of service 


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record for CSX train employees. As the 

use of electronic information systems 

further expanded in the industry, other 

railroads began developing, with 

assistance from FRA, electronic hours of 

service recordkeeping programs 

patterned somewhat after the original 

CSX program. During the development 

of the later programs, as well as audits 

of the CSX program after it was fully 

functioning, other issues began to 

surface, some of which remained topics 

of discussion during this rulemaking. 

Among those issues were the reporting 

of multiple covered service assignments 

in a duty tour, and administrative duties 

performed after the twelfth hour on 

duty. 

Multiple-train duty tours have 

occurred in the railroad industry for 

decades. As was discussed above, 

employees used the ‘‘Details of Service’’ 

section of the paper hours of service 

record to provide the times spent in 

covered service on each train to which 

the employee was assigned, and on each 

train on which the employee may have 

been in deadhead transportation, 

whether that deadhead transportation 

was transportation to the first covered 

service assignment of a duty tour, 

transportation from one covered service 

assignment to another within a duty 

tour, or transportation to the point of 

final release at the end of a duty tour. 

For many years, employees diligently 

reported each train to which they were 

assigned or on which they deadheaded, 

because employees were paid for a 

minimum 100-mile day for each such 

train. However, as collective bargaining 

agreements evolved, and employees 

were instead paid on the basis of actual 

miles run, it became more common to 

use a single crew to handle multiple 

trains. 

In the development of electronic 

programs, FRA was concerned that the 

programs initially lacked the ability to 

segment the employee’s record by train, 

for data entry and program logic 

purposes, as well as for inspection and 

enforcement purposes. If an employee 

did not report individually the 

locations, dates, and times that he or she 

went on duty, was relieved, and was 

released for each covered service 

assignment in a multiple-train duty 

tour, the program read the data as if the 

employee had worked on one train with 

a lengthy and continuous period of time 

on duty, often in excess of the statutory 

12-hour limit when a statutory interim 

release was present. In addition, FRA 

inspections yielded records that did not 

present all crew members assigned to a 

particular train, or in which trains 

appeared to disappear at one point on 

line-of-road and reappear at another 

point, suggesting that a record was 

missing in the database. 

Because all of the existing and 

developing programs were tied to the 

railroad’s crew management, FRA 

proposed that railroad crew 

management initiate a separate call for 

each assignment, so that each would 

have a data entry screen created to 

differentiate between multiple covered 

service assignments in a duty tour. The 

railroads resisted this proposal because 

the additional calls would increase the 

level of work for crew dispatchers. The 

railroads also expressed concerns about 

collective bargaining issues regarding 

pay claims for each call. FRA noted, 

however, that there was past historical 

precedent for employees completing a 

separate report for each assignment, 

although there were pay-related reasons 

for doing so which were not now always 

present. However, this dispute led to a 

solution which would not require 

additional crew dispatcher involvement. 

Programs were designed to allow the 

employee to use a function key to access 

additional reporting screens for 

reporting multiple trains or non-covered 

service activities. This feature of the 

programs mimicked the manner in 

which employees previously added 

additional forms to reflect multiple 

assignments prior to electronic 

recordkeeping. Once the crew 

dispatcher has called a crew to duty on 

one train or job and has established the 

employee’s initial reporting screens, the 

employee may work multiple 

assignments at the discretion of the 

railroad and report the activities 

involved in each train without the crew 

dispatcher having to take any further 

action to create another call to establish 

the necessary additional reporting 

screens. This feature not only allows the 

employee to report the actual events of 

his or her duty tour, but also allows the 

program’s FRA Inspection System to 

identify and present records based on 

train identification. 

As was noted above, one of the many 

ways in which electronic recordkeeping 

represents a significant change in the 

way that employees report their time is 

that with electronic recordkeeping 

programs, all reporting is accomplished 

at time of tie-up, just prior to the 

employee’s being released from all 

service to the carrier to begin a statutory 

off-duty period, the electronic record 

thereby becoming an ‘‘end-of-trip 

report.’’ In contrast, manual records 

maintained by the reporting employee 

allowed the employee to periodically 

add information to the record while 

continuing with the activities of his or 

her duty tour. Then, when the reporting 

employee reached his or her point of 

final release, he or she would complete 

the reporting, sign the record, and place 

it in the appropriate collection 

receptacle. Also, any other reporting or 

recording activities, including payroll, 

or other data beyond hours of service for 

the benefit of either the railroad or the 

employee, were completed at this time. 

As long as the reporting employee had 

not reached the statutory limits for the 

duty tour, he or she was allowed to take 

as long as necessary to complete any 

reporting, recording, and other 

administrative duties. However, in the 

event that the reporting employee was at 

or beyond his or her statutory limits, 

FRA had a long standing policy of 

exercising prosecutorial discretion to 

allow a few minutes for the reporting 

employee to complete his or her 

administrative duties. 

However, as railroads moved to 

electronic recordkeeping, the reporting 

employee could not begin reporting any 

of his or her train operation, pay and 

hours of service data in an electronic 

program prior to arrival at his or her 

final terminal, so the time involved in 

completing the necessary reporting 

might exceed a few minutes, especially 

if a large amount of work order 

reporting or other documentation 

beyond hours of service was required. 

Railroad labor organizations challenged 

FRA’s practice of allowing a few 

minutes in excess of the 12-hour 

statutory maximum time on duty to 

complete administrative duties. FRA 

recognized the validity of these 

concerns, but also recognized the need 

for certain information at the conclusion 

of the duty tour to ensure compliance 

with the HSL. The railroad must know 

both the time that an employee is 

relieved from covered service, and the 

time that the employee is released from 

all duties, in order to determine the 

minimum off-duty period that the 

employee required under the HSL, 

when to start the statutory off-duty 

period, and at what time the employee 

would have completed the minimum 

required rest to remain in compliance 

with the HSL. Because the employee is 

the one with first-hand knowledge of 

these times as applied to his or her own 

duty tour, FRA believed that the 

employee was best suited to certify the 

accuracy of these times. 

FRA convened a Technical Resolution 

Committee (TRC) in 1996 to resolve this 

issue. Initially, the TRC leaned toward 

limiting the employee initiated tie-up to 

just a relieved time and a released time. 

Ultimately, however, two additional 

items were included, which were 

necessary to both the railroads and the 

employees from an operational 

perspective. Because many collective 


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bargaining agreements contained 

provisions for how and when an 

employee would be placed back in a 

pool or on an extra board following tieup, both the railroad and the employee 

needed to be aware of the employee’s 

placement time before the employee 

began the statutory off-duty period. 

Finally, FRA allowed the employee to 

enter information to provide a contact 

number, if different from the number on 

record, to ensure that the railroad could 

contact the employee regarding his or 

her next assignment. 

With these four items (a relieved time, 

a released time, a board placement time, 

and a contact number, if different from 

that of record), FRA believed that the 

railroad would have sufficient 

information to know when the 

employee could legally next be called to 

duty. Although the HSL does not 

authorize performance of any 

administrative duties in the period 

beyond the employee’s statutory 

maximum, FRA announced a policy that 

allowed an employee who was being 

released from a duty tour to begin a 

statutory off-duty period after more than 

12 hours of total time on duty 

(including limbo time) to complete a 

‘‘quick tie-up’’ limited to entering and 

certifying these four items. The quick 

tie-up was not intended for use when 

the employee had time remaining 

within the statutory limits to complete 

a full record at the end of the duty tour. 

The intention was to require the 

employee whose duty tour had reached 

or exceeded the statutory limits to 

perform only the minimum 

administrative duties necessary to 

determine when the employee would 

next be available to be called for duty. 

If the railroad did not require the 

employee to perform any other 

administrative duties in addition to the 

quick tie-up, FRA would exercise its 

prosecutorial discretion and not 

prosecute the railroad for requiring the 

employee to perform administrative 

duties beyond the employee’s statutory 

limits. FRA allowed the completion of 

any record in which only quick tie-up 

information had been entered prior to 

the statutory off-duty period, when the 

employee returned to duty. FRA 

announced this policy in a Technical 

Bulletin OP No. 96–03 (since 

renumbered as OP 04–27). After this 

policy was announced, railroads 

developed data entry screens that 

allowed employees to enter and certify 

only the quick tie-up information when 

appropriate, allowing the completion of 

the record when the employee next 

reported for duty. Electronic 

recordkeeping systems were also 

designed to require completion of the 

full record before it could be certified if 

the employee had not reached the 

maximum statutory limit for the duty 

tour. 

In addition to the many issues related 

to ensuring that the developing 

electronic recordkeeping systems 

allowed the employees to enter 

sufficient data to determine compliance 

with the HSL, there were also issues to 

be resolved as to how FRA would access 

the system and the records that it 

created. The initial proposal from CSX 

provided that an officer would log into 

the railroad’s network using his or her 

identification number (ID) and 

password and access the employees’ 

entry screens. The officer would then 

turn over the computer to the FRA 

Inspector, who would directly review 

all of the data entered by the employee. 

This procedure presented a security 

issue that FRA wanted to avoid. Instead, 

CSX developed an inspection system 

that was available only to FRA 

inspectors through the use of unique 

FRA IDs and passwords that allowed 

FRA inspectors to access and retrieve 

only hours of service records, using a 

combination of selection criteria to 

retrieve a specific record or group of 

records. Selection criteria for records 

searches were: By employee name or ID; 

by train or job; and by location (which 

could include a yard, a subdivision or 

division (service unit) or other railroad 

area), combined with a date or date 

range. Another option for the FRA or 

participating State inspector is to search 

for records reporting in excess of 12 

hours total time on duty, combining this 

with a date or date range, and possibly 

other selection criteria. Combinations of 

the ‘‘optional’’ fields can narrow a 

selection to a precise time frame. This 

method of access allowed FRA to ensure 

that the hours of service records were 

protected from alteration and 

unauthorized access, which would not 

be possible if the same method of access 

allowed access to other railroad data, 

which FRA could not restrict. 

The unique FRA IDs and passwords 

are not permanently assigned to a 

specific FRA Inspector, but are given 

out upon the request of an inspector 

prior to an inspection. Passwords are 

temporary, and expire in seven days or 

less. Upon arrival at the rail facility, the 

FRA Inspector contacts the local 

railroad officer and presents his or her 

credentials for verification. The 

inspector is then provided the necessary 

ID and password and assigned a 

computer terminal with printer 

capabilities for use during his or her 

inspection. 

Using the selection criteria, FRA 

could retrieve records in a manner that 

was crew based and duty tour oriented, 

even if employees each reported 

individually. This meant that the 

records for all members of a requested 

train or job were displayed together. In 

addition, if a duty tour involved 

multiple covered service assignments, 

the whole crew would be displayed for 

each train or job ID, and all records for 

a given duty tour would be displayed 

together, with total time on duty for the 

entire duty tour displayed on the last 

record of a multiple covered service 

assignment duty tour. 

In the early stages of program 

development with CSX, FRA began to 

develop a guide for electronic 

recordkeeping, which has been used for 

several years to assist railroads in 

developing electronic recordkeeping 

programs for which FRA might likely 

grant waiver approval. The guide has 

been used successfully for 

approximately 15 years. The 

requirements for electronic 

recordkeeping systems imposed by this 

regulation are largely based on the guide 

and the resulting waiver-approved 

programs currently in existence. 

At present, four Class I carriers (CSX, 

Norfolk Southern Railway Company, 

Union Pacific Railroad Company, and 

Canadian National Railway) have 

waiver authority to use their existing 

electronic hours of service 

recordkeeping programs to record and 

report the official hours of service 

records for their train employees. There 

are no waiver-approved electronic 

recordkeeping programs for the records 

of signal employees or dispatching 

service employees, although there has 

been interest in moving to electronic 

recordkeeping for these employees, and 

there are some programs in various 

stages of development. 

II. Rail Safety Improvement Act of 2008 

Section 108 of the Rail Safety 

Improvement Act of 2008 (Pub. L. 110– 

432), substantively amends the HSL in 

a number of ways. It also provides the 

statutory mandate for this rulemaking, 

because it requires that FRA revise its 

hours of service recordkeeping 

requirements to take into account these 

substantive changes, as well as to 

provide for electronic recordkeeping 

and to require training. 

A. Substantive Amendments to the HSL 

Effective July 16, 2009, section 108(a) 

amends the definition of ‘‘signal 

employee’’, to eliminate the words 

‘‘employed by a railroad carrier.’’ With 

this amendment, employees of 

contractors or subcontractors to a 


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railroad who are engaged in installing, 

repairing, or maintaining signal systems 

(the functions within the definition of 

signal employee in the HSL) will be 

covered by the HSL, because a signal 

employee under the HSL is no longer by 

definition only a railroad employee. 

Section 108(b) amends the hours of 

service requirements for train 

employees in many ways, all of which 

are effective July 16, 2009. The 

provision limits train employees to 276 

hours of time on-duty, awaiting or in 

deadhead transportation from a duty 

assignment to the place of final release, 

or in any other mandatory service for 

the carrier per calendar month. The 

provision retains the existing maximum 

of 12 consecutive hours on duty, but 

increases the minimum off-duty period 

to 10 hours consecutive hours during 

the prior 24-hour period. 

Section 108(b) also requires that after 

an employee initiates an on-duty period 

each day for six consecutive days, the 

employee must receive at least 48 

consecutive hours off duty at the 

employee’s home terminal, during 

which the employee is unavailable for 

any service for any railroad; except that 

if the sixth on-duty period ends at a 

location other than the home terminal, 

the employee may initiate an on-duty 

period for a seventh consecutive day, 

but must then receive at least 72 

consecutive hours off duty at the 

employee’s home terminal, during 

which time the employee is unavailable 

for any service for any railroad. 

Section 108(b) further provides that 

employees may also initiate an on-duty 

period for a seventh consecutive day 

and receive 72 consecutive hours off 

duty if such schedules are provided for 

in existing collective bargaining 

agreements for a period of 18 months, or 

after 18 months by collective bargaining 

agreements entered into during that 

period, or a pilot program that is either 

authorized by collective bargaining 

agreement, or related to work rest cycles 

under section 21108 of the HSL. 

Section 108(b) also provides that the 

Secretary may waive the requirements 

of 48 and 72 consecutive hours off duty 

if a collective bargaining agreement 

provides a different arrangement that 

the Secretary determines is in the public 

interest and consistent with safety. 

The RSIA of 2008 also significantly 

changes the hours of service 

requirements for train employees by 

establishing for the first time a 

limitation on the amount of time an 

employee may spend awaiting and in 

deadhead transportation. These new 

requirements, also found in section 

108(b), provide that a railroad may not 

require or allow an employee to exceed 

40 hours per month awaiting or in 

deadhead transportation from duty that 

is neither time on duty nor time off duty 

in the first year after the date of 

enactment, with that number decreasing 

to 30 hours per employee per month 

after the first year, except in situations 

involving casualty, accident, track 

obstruction, act of God including 

weather causing delay, derailment, 

equipment failure, or other delay from 

unforeseeable cause. Railroads are 

required to report to the Secretary all 

instances in which these limitations are 

exceeded. In addition, the railroad is 

required to provide the train employee 

with additional time off duty equal to 

the amount that combined on-duty time 

and time awaiting or in transportation to 

final release exceeds 12 hours. 

Finally, section 108(b) restricts 

communication with train employees 

except in case of emergency during the 

minimum off-duty period, statutory 

periods of interim release, and periods 

of additional rest required equal to the 

amount that combined on-duty time and 

time awaiting or in transportation to 

final release exceeds 12 hours. However, 

the Secretary may waive this provision 

for train employees of commuter or 

intercity passenger railroads if the 

Secretary determines that a waiver 

would not reduce safety and is 

necessary to efficiency and on time 

performance. 

However, section 108(d) of the RSIA 

of 2008 provides that the requirements 

described above for train employees will 

not go into effect on July 16, 2009 for 

train employees of commuter and 

intercity passenger railroads. This 

section provides the Secretary with the 

authority to issue hours of service rules 

and orders applicable to these train 

employees, which may be different than 

the statute applied to other train 

employees. It further provides that these 

train employees will continue to be 

governed by the HSL as it existed prior 

to the RSIA of 2008 until the effective 

date of regulations promulgated by the 

Secretary. However, if no new 

regulations have been promulgated 

before October 16, 2011, the provisions 

of section 108(b) would be extended to 

these employees at that time. 

Section 108(c) of the RSIA of 2008 

amends the hours of service 

requirements for signal employees in a 

number of ways, effective July 16, 2009. 

As was noted above, by amending the 

definition of ‘‘signal employee,’’ it 

extends the reach of the substantive 

requirements to a contractor or 

subcontractor to a railroad carrier and 

its officers and agents. In addition, as 

section 108(b) does for train employees, 

section 108(c) retains for signal 

employees the existing maximum of 12 

consecutive hours on duty, but 

increases the minimum off-duty period 

to 10 consecutive hours during the prior 

24-hour period. 

Section 108(c) also eliminates 

language in the HSL stating that last 

hour of signal employee’s return from 

final trouble call is time off duty, and 

defines ‘‘emergency situations’’ in 

which the HSL permits signal 

employees to work additional hours not 

to include routine repairs, maintenance, 

or inspection. 

Section 108(c) also contains language 

virtually identical to that in section 

108(b) for train employees, prohibiting 

railroad communication with signal 

employees during off-duty periods 

except for in an emergency situation. 

Finally, section 108(c) provides that 

the hours of service, duty hours, and 

rest periods of signal employees are 

governed exclusively by the HSL, and 

that signal employees operating motor 

vehicles are not subject to other hours 

of service, duty hours, or rest period 

rules besides FRA’s. 

Section 108(e) specifically provides 

FRA a statutory mandate to issue hours 

of service regulations for train 

employees of commuter and intercity 

passenger railroads. It also provides 

FRA additional regulatory authority not 

relevant to the present rulemaking, and 

requires FRA to complete at least two 

pilot projects. 

B. Rulemaking Mandate 

Section 108(f) requires the Secretary 

to prescribe a regulation revising the 

requirements for recordkeeping and 

reporting for Hours of Service of 

Railroad Employees contained in part 

228 of title 49, Code of Federal 

Regulations to adjust recordkeeping and 

reporting requirements to support 

compliance with chapter 211 of title 49, 

United States Code, as amended by the 

RSIA of 2008; to authorize electronic 

recordkeeping, and reporting of excess 

service, consistent with appropriate 

considerations for user interface; and to 

require training of affected employees 

and supervisors, including training of 

employees in the entry of hours of 

service data. 

Section 108(f) further provides that 

the regulation must be issued not later 

than 180 days after October 16, 2008, 

and that in lieu of issuing a notice of 

proposed rulemaking as contemplated 

by 5 U.S.C. 553, the Secretary may 

utilize the Railroad Safety Advisory 

Committee (RSAC) to assist in 

development of the regulation. 


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III. Railroad Safety Advisory 

Committee Process 

A. Overview of the RSAC 

In March 1996, FRA established 

RSAC, which provides a forum for 

developing consensus recommendations 

to FRA’s Administrator on rulemakings 

and other safety program issues. The 

Committee includes representation from 

all of the agency’s major customer 

groups, including railroads, labor 

organizations, suppliers and 

manufacturers, and other interested 

parties. A list of member groups follows: 

• American Association of Private 

Railroad Car Owners (AARPCO); 

• American Association of State 

Highway and Transportation Officials 

(AASHTO); 

• American Chemistry Council; 

• American Petroleum Institute; 

• American Public Transportation 

Association (APTA); 

• American Short Line and Regional 

Railroad Association (ASLRRA); 

• American Train Dispatchers’ 

Association (ATDA); 

• Association of American Railroads 

(AAR); 

• Association of Railway Museums; 

• Association of State Rail Safety 

Managers (ASRSM); 

• Brotherhood of Locomotive 

Engineers and Trainmen (BLET); 

• Brotherhood of Maintenance of Way 

Employees Division (BMWED); 

• Brotherhood of Railroad Signalmen 

(BRS); 

• Chlorine Institute; 

• Federal Railroad Administration 

(FRA); 

• Federal Transit Administration 

(FTA)*; 

• Fertilizer Institute; 

• High Speed Ground Transportation 

Association (HSGTA); 

• Institute of Makers of Explosives; 

• International Association of 

Machinists and Aerospace Workers; 

• International Brotherhood of 

Electrical Workers (IBEW); 

• Labor Council for Latin American 

Advancement*; 

• League of Railway Industry 

Women*; 

• National Association of Railroad 

Passengers (NARP); 

• National Association of Railway 

Business Women*; 

• National Conference of Firemen & 

Oilers; 

• National Railroad Construction and 

Maintenance Association (NRC); 

• National Railroad Passenger 

Corporation (Amtrak); 

• National Transportation Safety 

Board (NTSB)*; 

• Railway Supply Institute (RSI); 

• Safe Travel America (STA); 

• Secretaria de Comunicaciones y 

Transporte*; 

• Sheet Metal Workers International 

Association (SMWIA); 

• Tourist Railway Association, Inc.; 

• Transport Canada*; 

• Transport Workers Union of 

America (TWU); 

• Transportation Communications 

International Union/BRC (TCIU/BRC); 

• Transportation Security 

Administration (TSA)*; and 

• United Transportation Union 

(UTU). 

* Indicates associate, non-voting 

membership. 

When appropriate, FRA assigns a task 

to RSAC, and after consideration and 

debate, RSAC may accept or reject the 

task. If the task is accepted, RSAC 

establishes a working group that 

possesses the appropriate expertise and 

representation of interests to develop 

recommendations to FRA for action on 

the task. These recommendations are 

developed by consensus. A working 

group may establish one or more task 

forces to develop facts and options on 

a particular aspect of a given task. The 

individual task force then provides that 

information to the working group for 

consideration. If a working group comes 

to unanimous consensus on 

recommendations for action, the 

package is presented to the full RSAC 

for a vote. If the proposal is accepted by 

a simple majority of RSAC, the proposal 

is formally recommended to FRA. FRA 

then determines what action to take on 

the recommendation. Because FRA staff 

play an active role at the working group 

level in discussing the issues and 

options and in drafting the language of 

the consensus proposal, FRA is often 

favorably inclined toward the RSAC 

recommendation. However, FRA is in 

no way bound to follow the 

recommendation, and the agency 

exercises its independent judgment on 

whether the recommended rule achieves 

the agency’s regulatory goal, is soundly 

supported, and is in accordance with 

policy and legal requirements. Often, 

FRA varies in some respects from the 

RSAC recommendation in developing 

the actual regulatory proposal or final 

rule. Any such variations would be 

noted and explained in the rulemaking 

document issued by FRA. If the working 

group or RSAC is unable to reach 

consensus on a recommendation for 

action, FRA moves ahead to resolve the 

issue through traditional rulemaking 

proceedings. 

B. RSAC Proceedings in This 

Rulemaking 

Given the time constraints within 

which FRA was required to issue this 

regulation, FRA decided to request the 

assistance of the RSAC in developing it, 

in order to take advantage of the 

provisions of the statutory mandate 

which allowed FRA to proceed to a final 

rule, without having first issued a notice 

of proposed rulemaking. FRA proposed 

Task No. 08–06 to the RSAC on 

December 10, 2008. The RSAC accepted 

the task, and formed the Hours of 

Service Working Group (Working 

Group) for the purpose of developing 

the hours of service recordkeeping 

regulations required by section 108(f) of 

the RSIA of 2008. 

The Working Group was comprised of 

members from the following 

organizations: 

• AASHTO 

• Amtrak; 

• APTA; 

• ASLRRA; 

• ATDA; 

• AAR, including members from 

BNSF Railway Company (BNSF), 

Canadian National Railway Company 

(CN), Canadian Pacific Railway, Limited 

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

Iowa Interstate Railroad, Ltd. (IAIS), 

Kansas City Southern (KCS), Norfolk 

Southern Corporation (NS), and Union 

Pacific Railroad Company (UP); 

• BLET; 

• BRS; 

• Federal Railroad Administration 

(FRA); 

• IBEW 

• Long Island Rail Road (LIRR); 

• Metro-North Commuter Railroad 

Company (Metro-North); 

• Southeastern Pennsylvania 

Transportation Authority (SEPTA); 

• Tourist Railway Association; and 

• UTU. 

The Working Group completed its 

work after four meetings and two 

conference calls. The first meeting of the 

Working Group took place on January 

22–23, 2009, in Washington, DC. 

Subsequent meetings were held on 

February 4–6, 2009, February 18–20, 

2009, and March 23–24, 2009, each also 

in Washington, DC. Conference calls 

were held on March 30 and March 31, 

2009. The Working Group achieved 

consensus on the rule text with the 

exception of one issue. The group’s 

recommendation, including the one area 

of non-consensus, was presented to the 

full RSAC on April 2, 2009, and the full 

RSAC accepted its recommendation. 

This regulation is consistent with the 

recommendation of the Working Group, 

with the exception of the issue on 


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which the group failed to reach 

consensus. 

Prior to the first meeting of the 

Working Group, FRA distributed draft 

rule text to provide a framework for the 

discussions. This enabled the group to 

focus its discussions on those issues 

with which the other members of the 

group disagreed or had concern. The 

issues that led to significant discussion 

and subsequent changes in the initial 

rule text can generally be characterized 

in one of four ways: (1) Disagreement of 

members of the Working Group with 

some aspects of FRA’s current approach 

to electronic recordkeeping that had 

been mirrored in the draft rule text; (2) 

concern about making the requirements 

for electronic recordkeeping systems 

sufficiently flexible to accommodate the 

circumstances of those groups of 

employees who are not currently 

reporting and recording their hours of 

service electronically, but may do so in 

the future; (3) concern about the burden 

of some of the recordkeeping 

requirements on those railroads or 

contractors or subcontractors to a 

railroad who use paper records; and (4) 

concerns about FRA’s interpretation of 

the substantive provisions of the HSL 

that have an effect on recordkeeping, 

including new issues arising from the 

RSIA of 2008, as well as other 

substantive interpretations that some 

members of the group wished to have 

clarified or urged FRA to change. The 

most significant of these issues will be 

discussed in this section. Other subjects 

of discussion within the working group 

will be discussed in the section-bysection analysis of the language to 

which they relate. 

1. Multiple-Train Reporting 

As was discussed in section IB, above, 

of the preamble, FRA required that 

electronic recordkeeping programs for 

which it granted a waiver would require 

the employee to report each assignment 

in a duty tour. In brief, FRA’s reason for 

this approach was that it allowed FRA 

to search for records by the job or 

assignment, and to retrieve the full 

records of each employee on that 

assignment, so that they could be crossreferenced against each other. This 

approach also allowed the system to 

link the records for each assignment in 

a duty tour, so that an employee’s prior 

time off before an assignment would 

indicate whether it was preceded by 

another assignment, or was the first 

assignment following a statutory offduty period. Thus, the full duty tour 

would be represented, without gaps in 

the data that would suggest a missing 

record. This approach was also 

consistent with the way that FRA had 

historically reviewed paper records, 

because this information was available 

on the ‘‘Details of Service’’ portion of 

the form, which the railroads had since 

stopped using because of changes in pay 

structures and other operational issues, 

and which they, therefore, resisted 

incorporating in electronic 

recordkeeping. 

AAR objected to the requirements 

initially included by FRA in § 228.11(b) 

of this rule, because FRA required the 

employee to report the beginning time, 

relieved time, and released time of each 

assignment in a duty tour, as it had in 

the waiver-approved electronic 

programs. AAR contended that FRA did 

not need this level of detail for each 

assignment because the time was all 

counted as time on duty, and also 

contended that the requirements were 

too burdensome because of the number 

of data fields that an employee would be 

required to enter, and the amount of 

time that this data entry could consume. 

During the working group 

proceedings, FRA made a number of 

concessions from its original language. 

FRA excluded from the requirement to 

list each assignment employees having 

several kinds of assignments likely to 

result in their handling a large number 

of trains in a single duty tour. 

Specifically, FRA excluded utility 

employees, employees assigned to yard 

jobs, and assignments established to 

shuttle trains into and out of a terminal 

that are identified by a unique job or 

train symbol as such an assignment. 

When AAR continued to object to these 

requirements, FRA limited them further, 

by requiring only that the employee 

record the first train and the last train 

to which he or she was assigned, and 

any train immediately preceding or 

immediately following a period of 

interim release. FRA reasoned that 

information was needed regarding 

assignments before and after a period of 

interim release, so that the interim 

release period, which would not count 

toward total time on duty, could be 

determined. FRA agreed that it would 

not require the recording of trains in the 

middle of a duty tour that were not 

associated with an interim release, 

agreeing in those limited circumstances 

to resort to other methods of piecing 

together the duty tour if necessary. 

Ultimately, however, AAR wanted 

FRA to require that the employee record 

only the beginning time of the first train 

and any train following a period of 

interim release, and only the relieved 

time and released time of any train 

preceding a period of interim release 

and the last train in a duty tour. The 

limited issue of the specific 

requirements to record the relieved time 

and released time for an employee for 

the first train in the employee’s duty 

tour and for any train preceding a 

period of interim release by the 

employee, and the beginning time of the 

last train or any train following a period 

of interim release for the employee, was 

the only area of non-consensus during 

the working group proceedings and 

before the full RSAC. 

Following the RSAC vote, FRA 

decided to further modify the 

requirements of section 228.11(b). This 

paragraph now requires that an 

employee record only the beginning 

time of the first train and any train 

following a period of interim release, 

and only the relieved time and released 

time of any train preceding a period of 

interim release and the last train in a 

duty tour, as requested by AAR. It also 

requires, however, that employees 

report the train ID for each train 

required to be reported. Utility 

employees, employees assigned to yard 

jobs, and assignments established to 

shuttle trains into and out of a terminal 

that are identified by a unique job or 

train symbol as such an assignment, are 

excluded from the requirement to report 

separate train IDs. In addition, this 

paragraph requires employees to report 

periods spent in deadhead 

transportation from a duty assignment 

to a period of interim release, and from 

a period of interim release to a duty 

assignment. 

2. Pre-Population of Data 

AAR proposed elimination of the 

concept of the quick tie-up. As was 

discussed above, the quick tie-up is a 

feature that allows an employee who is 

at or beyond the statutory maximum 

time on duty to report only the four 

items necessary for the employee and 

the railroad to determine the beginning 

of the statutory off-duty period and for 

the railroad to be allowed to call the 

employee for the next duty tour. The 

employee completes the remainder of 

the record for any duty tour ended with 

a quick tie-up when he or she next 

reports for duty. AAR suggested that the 

regulation instead limit those items 

required for a full tie-up, or a complete 

record, and allow those items that are 

required to be pre-populated on the 

record by the railroad, so that the time 

required for a full tie-up would be 

decreased. FRA could not agree to limit 

the required data as AAR suggested. In 

addition, there are a number of items 

not related to hours of service (such as 

pay claims and details as to the cars in 

the train) that are normally a part of a 

full tie-up, but which FRA does not 

believe should be required of an 

employee who is at or near the statutory 


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maximum time on duty. Therefore, the 

group agreed not to eliminate the quick 

tie-up, but continued to discuss the 

concept of pre-population of the data on 

the hours of service record. 

FRA did not allow pre-population of 

data as electronic recordkeeping 

programs were developed during the 

waiver process, because when prepopulation was attempted, records were 

pre-populated with data from sources 

not likely to be accurate reflections of 

the duty tour, such as payroll or other 

times related to collective bargaining. 

The Working Group spent substantial 

time discussing which data fields on the 

record might be pre-populated. 

However, the group could not agree on 

data fields that always may be prepopulated, or those that never should, 

as a wide variety of factors might affect 

whether pre-population of certain data 

is appropriate for a particular employee 

or assignment. It was generally agreed, 

however, that pre-population could 

reduce the time and effort required for 

completion of the record if the data was 

reliable. 

The group reached a compromise, 

reflected in section 228.203(a)(1)(i) of 

this regulation. This paragraph provides 

that a record may be pre-populated with 

data known to be factually accurate for 

a specific employee. Estimated, 

historical, or arbitrary data are not to be 

used to pre-populate data in a record. 

However, a railroad, or a contractor or 

subcontractor to a railroad, is not in 

violation of this requirement if it makes 

a good faith judgment as to the factual 

accuracy of data for a specific employee 

but the pre-populated data turns out to 

be incorrect. In addition, the employee 

must be able to make any necessary 

changes to pre-populated data by simply 

typing into the data field, without 

having to access another screen or 

obtain clearance from the railroad. 

Finally, this paragraph also provides 

that an electronic recordkeeping system 

may provide the ability for an employee 

to copy data from one field of a record 

to another where appropriate. 

3. Tie-Up Procedures for Signal 

Employees 

Labor representatives in the Working 

Group, and particularly representatives 

of the Brotherhood of Railroad 

Signalmen, expressed concern that the 

requirements for electronic 

recordkeeping systems were not 

appropriate to the way that signal 

employees tie up at the end of a duty 

tour, and complete their records. 

Although there are currently no waiverapproved programs allowing electronic 

recordkeeping by signal employees, 

there are some systems currently under 

development, and railroads and signal 

employees are interested in moving to 

electronic recordkeeping. The 

requirements for electronic 

recordkeeping systems as originally 

drafted by FRA were based on the past 

experience of FRA and the industry 

with electronic recordkeeping, which 

was admittedly limited to train 

employees. 

During the Working Group 

discussions, it was pointed out that 

signal employees tie up differently, and 

some of the limitations on the system 

that are appropriate for train employees 

would not allow signal employees to 

complete their records. Unlike train 

employees, signal employees are not 

usually released from their duty tour at 

a location where there is likely to be a 

computer available to complete a 

record, because they often travel home 

from their duty location, and do not go 

by way of a railroad headquarters. In 

addition, signal employees may not tieup on a daily basis, rather, they may 

complete a number of records at one 

time, on a day when they have time in 

their schedule to prepare this 

paperwork. Signal employees do not 

generally need to do a quick tie-up to 

know when they are eligible to return to 

duty, because they have a scheduled 

eight-hour shift. They do call into the 

trouble desk if they work beyond their 

scheduled hours, or after returning from 

a trouble call. Although the primary 

purpose of this call is to report the 

nature of the trouble that was found and 

what was done to fix it, the employee 

also reports the time that he or she 

completed the work, and this allows the 

railroad to determine if the employee 

has enough time remaining to respond 

to another trouble call, or if a late 

trouble call causes the employee not to 

be rested for the beginning of the next 

scheduled shift. 

FRA agrees that the regulation should 

establish requirements appropriate to all 

employees, so that the regulation will 

not need to be revised to reflect future 

systems that may be developed. To 

accommodate the differences in the 

reporting practices of signal employees, 

FRA modified several paragraphs of 

§ 228.203(c). Paragraph (c)(7) of 

§ 228.203 allows an employee to certify 

a release time in the past compared to 

the clock time of the computer, except 

for the current duty tour being 

concluded, so that a signal employee 

may complete multiple records at one 

time. This limitation is not a problem 

for train employees, who will have 

provided a release time through the 

quick tie-up for any record being 

completed that relates to a previous 

duty tour. The rule text also excludes 

signal employees from the scope of 

requirements in subparagraphs that 

provide that electronic recordkeeping 

systems must require employees to 

complete a full record, and disallow a 

quick tie-up at the end of any duty tour 

in which the employee has less than the 

statutory maximum time on duty. Even 

with less than the statutory maximum 

time on duty, a signal employee may not 

complete any record at the end of that 

duty tour, or may complete a form of 

quick tie-up through communication 

regarding trouble calls and how much 

time the employee has remaining to 

work. 

FRA notes that railroads, contractors 

and subcontractors to railroads, and 

signal employees will need to have 

some way of keeping track of when the 

employee goes off duty, to ensure that 

they receive the 10 hours uninterrupted 

rest required by the RSIA of 2008. 

4. Tracking Cumulative Totals Toward 

the 276-Hour Monthly Maximum 

Limitation 

Section 228.11(b)(14) requires that a 

train employee record include the 

cumulative total for the calendar month 

of time spent in covered service, 

awaiting or in deadhead transportation 

from a duty assignment to the place of 

final release, and time spent in any 

other service at the behest of the 

railroad, the elements that make up the 

cumulative total for the month toward 

the 276-hour limitation. Members of the 

Working Group representing the Class 

III railroads pointed out that compliance 

with this requirement would be much 

more complicated for those employees 

completing paper records. Electronic 

recordkeeping systems will likely be 

programmed to calculate the cumulative 

monthly total, but it will be more 

difficult for an employee to have to keep 

track of the running total and note it on 

his or her signed record each day. FRA 

is persuaded that this could be 

burdensome, and could result in 

inaccurate reporting of the totals, and 

could possibly cause an employee to 

inadvertently exceed the monthly 

limitations by calculating it inaccurately 

and certifying that number. Therefore, 

FRA agreed to allow Class III railroads 

to track the cumulative total throughout 

the month, note it on the records, and 

make it available to FRA. The employee 

will be expected to certify the monthly 

total promptly after the end of the 

month. 

5. Multiple Reporting Points 

This regulation requires that each 

train employee have a regular reporting 

point. In numerous locations across the 

railroad system, railroads and their 


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employees have established more than 

one location within a designated 

terminal that the employees may 

directly report to, essentially treating 

multiple locations located near each 

other as one regular reporting point. In 

enforcing this regulation, FRA will 

continue to treat these multiple 

locations as constituting a single regular 

reporting point, provided that (a) it can 

reasonably be expected that doing so 

would not unduly affect fatigue and (b) 

if the railroad is unionized, the multiple 

reporting points have been agreed to 

under a collective bargaining agreement. 

When determining whether or not 

fatigue is unduly affected, FRA will take 

into account the distance between the 

multiple locations, traffic patterns (e.g., 

rural vs. urban), and other relevant 

factors. 

As has been discussed, the RSIA of 

2008 amends the definition of ‘‘signal 

employee’’ so that employees of a 

contractor or a subcontractor to a 

railroad performing maintenance, 

inspection, or repair of signal systems 

are covered by the HSL. The railroads in 

the Working Group expressed concern 

that they would be responsible for 

keeping records for contract signal 

employees who perform work on their 

property. This would be particularly 

difficult if the contractors or 

subcontractors are hired for specific 

short-term assignments or projects. FRA 

expects that the contractor or 

subcontractor who employs the 

employee would be responsible for his 

or her records, because that company 

would know when the employee would 

be properly rested under the statute to 

begin a new assignment, which might be 

on a different railroad than the 

assignment just completed. It should be 

noted, however, that since the 

substantive provisions of the HSL still 

prohibit either requiring or allowing an 

employee to remain or go on duty, FRA 

may take enforcement action for 

violation of the statute against either the 

employer or the railroad for whom the 

employee is performing covered service, 

depending on the facts of the situation. 

FRA has amended language 

throughout this part that imposes 

recordkeeping duties on a railroad, so 

that those duties are imposed on a 

railroad or a contractor or a 

subcontractor to a railroad. However, 

FRA recognizes that some railroads have 

kept hours of service records and 

reported excess service for contractors 

and subcontractors who were covered 

by the HSL prior to the RSIA of 2008, 

particularly as train employees. FRA 

does not intend to prohibit such 

practices, if the parties have contracted 

to have the railroad for which an 

employee performs covered service 

handle the recordkeeping and reporting 

responsibilities for that employee. 

IV. Section-by-Section Analysis 

Section 228.1 Scope 

FRA has revised this section to reflect 

the fact that the regulation prescribes 

reporting and recordkeeping 

requirements for employees of railroad 

contractors and subcontractors as well 

as for railroad employees. 

Section 228.3 Application 

FRA has revised this section to reflect 

the fact that the regulation applies to 

railroad contractors and subcontractors 

as well as to railroads, and does not 

apply to the contractors and 

subcontractors of railroads to which the 

regulation does not apply. 

Section 228.5 Definitions 

This section is amended to add a large 

number of definitions relevant to 

compliance with the HSL, and the 

recordkeeping and reporting 

requirements of this part, including the 

data fields found on an hours of service 

record, the data required to be entered, 

and the proper calculation and 

representation of the periods of time 

which must be identified on a record. 

Most of these definitions have been 

used by FRA and the industry for many 

years and have a common 

understanding. Some are discussed in 

existing Operating Practices Technical 

Bulletins providing FRA’s position on 

substantive issues of enforcement under 

the HSL. As a result, while the Working 

Group recommended minor revisions to 

a number of the definitions to clarify 

them, relatively few caused concern 

among Working Group members or 

required significant discussion. 

The Working Group discussed the 

definition of ‘‘actual time,’’ which can 

refer to either a specific time of day, or 

a precise amount of time. FRA’s 

intention with this definition is to make 

clear that any time related to an activity 

that is entered on an hours of service 

record should represent the actual time 

that the activity occurred or actual 

amount of time spent in the activity, 

rather than scheduled or estimated 

times or amounts of time that may be 

used for pay and collective-bargainingrelated purposes. Records must also not 

show non-specific numbers in reference 

to data fields that correspond to specific 

statutory limitations. For example, it 

would not be correct simply to indicate 

‘‘10+’’ in the prior time off field, rather 

than the actual amount of time in hours 

and minutes that the employee had been 

off before beginning an assignment, or 

‘‘12+’’ for total time on duty, rather than 

the actual total amount of time that the 

employee was on duty. 

The Working Group also discussed 

the definition of ‘‘commuting,’’ and 

specifically the portion of the definition 

that applies to train employees. The first 

part of the definition led to discussions 

related to an employee’s regular 

reporting point, because only travel 

between an employee’s residence and 

his or her regular reporting point is 

considered commuting. As was 

discussed in section III, above, of the 

preamble, FRA acknowledges that it 

will treat multiple locations within a 

designated terminal as a single reporting 

point in certain circumstances. 

However, the definition of 

‘‘commuting’’ is not changed. The 

second part of this definition as applied 

to train employees provides that travel 

in railroad-provided transportation to a 

lodging facility at an away-from-home 

terminal is considered commuting if the 

time does not exceed 30 minutes. The 

‘‘30 minute rule’’ is longstanding FRA 

policy, intended to provide railroads 

some flexibility to get their employees 

to lodging, but limiting the potential 

erosion of an employee’s statutory offduty period that could result from 

extended periods of travel to the awayfrom-home lodging facility. Nothing in 

the RSIA of 2008 would require FRA to 

change its position on this issue, and 

FRA declines to do so. 

FRA defines designated terminal for 

purposes of this section by copying the 

definition of the term found in the HSL 

at 49 U.S.C. 21101. It is necessary to 

define this term because any period of 

interim release that a train employee has 

during a duty tour is considered offduty time under the HSL only if the 

release occurs at a designated terminal. 

Otherwise, the time must be calculated 

as on-duty time. FRA’s position 

regarding designated terminals has been 

previously published in Appendix A of 

this regulation, and further established 

through extensive litigation related to 

this issue. By including this definition, 

FRA does not intend to alter any of its 

previous statements related to this issue, 

including the fact that FRA does not 

exercise jurisdiction over any lodging 

facilities used to house railroad 

employees that are not railroadprovided, and are usually subject to 

collective bargaining. 

This section defines the terms 

‘‘reporting point,’’ ‘‘regular reporting 

point’’ and ‘‘other than regular reporting 

point.’’ As was discussed in section III, 

above, of the preamble, and in this 

section, in regard to the definition of 

commuting, an employee has only one 

regular reporting point at any given 


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time. Travel from the employee’s regular 

reporting point to any other reporting 

point on the railroad is considered a 

deadhead to a duty assignment, in 

which the time spent deadheading to 

duty is time on duty, and if an employee 

travels directly from his or her residence 

to a reporting point that is other than his 

or her regular reporting point, any time 

spent in that travel exceeding the time 

that would have been spent in travel to 

the regular reporting point is also time 

on duty. As was discussed in section III, 

above, of the preamble, FRA will 

consider multiple locations within a 

designated terminal to be a single 

reporting point in certain 

circumstances. This interpretation does 

not change the definitions of the terms 

‘‘reporting point,’’ ‘‘regular reporting 

point,’’ or ‘‘other-than-regular reporting 

point,’’ this simply means that if an 

employee’s regular reporting point is 

any one of the locations that constitute 

a single reporting point, an assignment 

to report to any location that is 

considered part of that single reporting 

point would be considered reporting to 

the regular reporting point for that 

employee. 

The Working Group discussed the 

definition of ‘‘release’’ as it applies to 

signal employees. A release is a period 

of more than an hour but less than a 

statutory off-duty period, after a signal 

employee completes regular assigned 

hours, or completes return travel from a 

trouble call. Members of the Working 

Group representing the interests of 

signal employees commented that a 

release should not just consist of an 

employee being told to go and wait at 

a nearby restaurant until he or she is 

needed for another assignment, but 

should allow an employee to come and 

go as he or she pleases in order to be 

considered off-duty time. FRA notes 

that the HSL does not define the release 

period for signal employees as ‘‘interim 

release’’ is defined for train employees, 

providing that the period of release 

constitutes off-duty time only if it is at 

a designated terminal. However, it is 

certainly consistent with the statutory 

purpose to require a railroad, or 

contractor or subcontractor to a railroad, 

to provide as much opportunity for 

food, rest, and freedom of activity for 

the employee as circumstances will 

allow during any release period that is 

to be considered off-duty time. 

The Working Group also discussed 

the distinction between the defined 

terms, ‘‘prior time off’’ and total off-duty 

period. As indicated in the definition of 

‘‘total off-duty period,’’ it may differ 

from a computer-generated prior time 

off, which would be calculated based on 

the release time of the previous duty 

tour, if the employee performed an 

activity between duty tours that was 

required to be reported as other service 

at the behest of the railroad. Under 

§ 228.11(b)(8), (d)(6) and (e)(9), the 

employee must record any such service, 

and it would be recorded on the hours 

of service record created for the next 

duty tour as an activity at the behest of 

the railroad. Prior time off would be 

calculated as the sum of the time 

between the previous final release and 

the beginning of that activity and the 

time between the end of the activity and 

the beginning of the next duty tour. The 

total time spent in the activity, plus the 

prior time off before and after the 

activity should equal the system-known 

prior time off. 

There were a number of questions 

discussed in the Working Group related 

to the definitions of ‘‘dispatching 

service employee,’’ ‘‘signal employee,’’ 

and ‘‘train employee.’’ These definitions 

are copied directly from the HSL at 49 

U.S.C. 21101, and are included in this 

regulation simply for ease of reference, 

since the terms are used throughout the 

rule text. The questions surrounding 

these definitions related to whether 

employees with certain job titles, or 

who perform certain job functions, 

would be included within the scope of 

the definitions. These questions present 

issues of substantive interpretation of 

the HSL, and have been addressed in 

published interpretations in Appendix 

A of this rule and various Operating 

Practices Technical Bulletins. The only 

change in these definitions made by the 

RSIA of 2008 is to amend the definition 

of ‘‘signal employee’’ so that it applies 

to employees of contractors or 

subcontractors to a railroad who 

perform the functions of a signal 

employee. Therefore, FRA’s position 

remains unchanged with respect to 

these issues, except to the extent that 

FRA has ever indicated prior to the 

enactment of the RSIA of 2008 that 

employees of contractors or 

subcontractors performing the functions 

of a signal employee are not covered by 

the HSL, because that would no longer 

be FRA’s position, in light of the 

statutory changes. 

In determining whether a given 

employee is covered by the HSL, FRA 

continues to take a functional approach, 

rather than one based on job or craft 

title. If an employee performs functions 

included within the definition of a 

dispatching service employee, a signal 

employee, or a train employee, that 

employee is covered under the HSL as 

that type of employee, and must observe 

the relevant statutory limitations and 

recordkeeping requirements, regardless 

of the employee’s actual job title. For 

example, an employee whose job title is 

Yardmaster may be covered under the 

HSL as any one of three categories of 

covered employees, or he or she may 

not be covered by the HSL at all, 

depending on the functions performed. 

By the same token, if an employee 

performs functions that are typically 

performed by employees who are 

covered by the HSL, but the specific 

function is not itself covered, 

performing that function does not bring 

the employee under the coverage of the 

HSL. For example, if an employee 

removes orders from a printer, that 

function alone does not make the 

employee a dispatching service 

employee, even if that function is 

usually performed by a dispatcher, 

because this action alone does not 

constitute dispatching, reporting, 

transmitting, receiving or delivering an 

order affecting train movement. 

Section 228.9 Records; General 

This section is revised to eliminate 

the signature requirement for records 

maintained electronically. Paragraph (a) 

applies only to manual records, and 

retains the text of § 228.9 prior to this 

regulation. Paragraph (b), which is 

added to this section, provides that an 

electronic record must be certified and 

electronically stamped with the 

certifying employee’s name and the date 

and time of certification. Both 

paragraphs contain requirements for 

retention of and access to the records. 

Finally, paragraph (b) requires that 

electronic records must be capable of 

being reproduced on railroad printers. 

Section 228.11 Hours of Duty Records 

This section establishes the 

requirement to keep hours of service 

records and sets forth what information 

the records must contain. The 

requirements have been clarified by 

being broken into separate paragraphs 

for the different types of employees, 

each containing the recordkeeping 

requirements specific to that kind of 

employee that FRA believes are 

necessary to determining whether the 

employee is in compliance with the 

HSL for the duty tour being reported. 

This includes requiring data related to 

the new substantive requirements of the 

RSIA of 2008. 

Paragraph (a) of this section 

establishes the general recordkeeping 

requirement, and provides that 

contractors and subcontractors whose 

employees perform covered service 

should also record the name of the 

railroad for which the employee 

performed covered service. This 

paragraph also provides that if an 

employee performs covered service 


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within the same duty tour that is subject 

to different statutory requirements, and 

therefore, different recordkeeping 

requirements in this section, such as, 

performing both the functions of a train 

employee and a dispatching service 

employee, the employee should 

complete a record appropriate to the 

type of service to which he or she was 

called, and reflect other covered service 

as an activity that is other service at the 

behest of the railroad. However, the 

total time on duty must be governed by 

the most restrictive statutory provision. 

Paragraph (b) of this section 

establishes the recordkeeping 

requirements for train employees, 

including subparagraphs (13) through 

(16), which relate to information 

required as a result of the statutory 

amendments in the RSIA of 2008. 

Subparagraph (13) requires that the 

record must indicate the total amount of 

time by which the combination of the 

total time on duty and time spent 

awaiting or in deadhead transportation 

to the point of final release exceeds 12 

hours. Subparagraph (14) requires the 

record to reflect the cumulative total for 

the calendar month of time spent on 

duty, awaiting or in deadhead 

transportation, and in any other service 

for the carrier (in other words the 

cumulative total toward the 276-hour 

monthly maximum). Subparagraph (15) 

requires the record to indicate the 

cumulative total for the calendar month 

of time spent awaiting or in deadhead 

transportation from a duty assignment 

to the place of final release following a 

period of 12 consecutive hours on duty. 

Subparagraph (16) requires the record to 

indicate the number of consecutive days 

in which a period of time on duty was 

initiated. 

Paragraph (b) of this section resulted 

in significant discussion in the working 

group, which resulted in a number of 

changes to the rule text. As was 

discussed in section III, above, of the 

preamble, AAR did not agree during the 

RSAC process with FRA’s requirement 

to report the first train and the last train 

to which the employee was assigned, 

and any train immediately preceding or 

immediately following a period of 

interim release, even after utility 

employees, employees performing yard 

jobs and employees on shuttle 

assignments were excluded, and FRA 

subsequently made further 

modifications to this paragraph. 

Subparagraph (4) requires train 

employees to report the train ID for each 

assignment required to be reported. 

Utility employees, employees assigned 

to yard jobs, and employees assigned to 

shuttle assignments identified as such 

by a unique job or train symbol are 

excluded from the requirements of this 

subparagraph. FRA expects, however, 

that railroads will take care to avoid 

designating as a shuttle assignment jobs 

that do not truly function in the manner 

suggested by the language. 

Subparagraph (5) requires train 

employees to report the location, date, 

and beginning time of the first 

assignment in a duty tour, and any 

assignment immediately following a 

period of interim release. 

Subparagraph (6) requires train 

employees to report the location, date, 

and time relieved for the last assignment 

in a duty tour and any assignment 

preceding a period of interim release. 

Subparagraph (7) requires train 

employees to report the location, date, 

and time released for the last 

assignment in a duty tour and any 

assignment preceding a period of 

interim release. 

Subparagraph (8) requires train 

employees to report the beginning and 

ending location, date, and time for 

periods spent in transportation to the 

first assignment in a duty tour, from an 

assignment to a period of interim 

release, from a period of interim release 

to the next assignment in a duty tour, 

and from the last assignment in a duty 

tour to the point of final release. 

Also, as was discussed in section III, 

above, of the preamble, the requirement 

in subparagraph (14) to track the 

cumulative total toward the limitation 

of 276 hours in a calendar month was 

opposed as being too burdensome, 

especially for those employees 

completing paper records. In response, 

FRA will allow Class III railroads to 

track the cumulative total throughout 

the month, note it on the records, and 

make it available to FRA, provided that 

the employee certify the monthly total 

after the end of each month. 

Paragraph (c) provides that 

subparagraphs (13) through (16) of 

paragraph (b) do not apply to the 

records of train employees providing 

commuter or intercity passenger rail 

transportation, because these 

subparagraphs relate to the new 

substantive provisions of the HSL in the 

RSIA of 2008, and those provisions do 

not apply to train employees of 

commuter and intercity passenger 

railroads at this time. This distinction 

led to some discussion as to how to 

apply the recordkeeping requirements to 

train employees who work in both 

freight and passenger service. FRA 

believes this issue is best addressed by 

the individual recordkeeping systems of 

railroads that have employees who work 

in both types of service. The railroad 

should ensure that the employee has the 

appropriate record to complete for the 

type of service that he or she performed 

in any given duty tour. 

Paragraphs (d) and (e) provide the 

recordkeeping requirements for 

dispatching service employees and 

signal employees respectively. 

Section 228.13 Preemptive Effect 

This section sets forth the preemptive 

effect of this part. The preemption 

provision of the former Federal Railroad 

Safety Act of 1970 (FRSA), as amended, 

49 U.S.C. 20106, governs the preemptive 

effect of this regulation, and the 

preemption provision of the regulation 

conforms to the terms of the statute. 

State and local requirements, both 

statutory and common law, are 

preempted when such non-Federal 

requirements cover the same subject 

matter as the requirements of this part. 

A State may adopt, or continue in force 

a law, regulation, or order covering the 

same subject matter as a DOT regulation 

or order applicable to railroad safety 

and security only when the additional 

or more stringent state law, regulation, 

or order is necessary to eliminate or 

reduce an essentially local safety or 

security hazard; is not incompatible 

with a law, regulation, or order of the 

United States Government; and does not 

unreasonably burden interstate 

commerce. 

Section 20106 also permits State tort 

actions arising from events or activities 

occurring on or after January 18, 2002 

that allege a violation of the Federal 

standard of care established by 

regulation or order issued by the 

Secretary of Transportation (with 

respect to railroad safety) or the 

Secretary of Homeland Security (with 

respect to railroad security), a party’s 

failure to comply with its own plan, 

rule, or standard that it created pursuant 

to a regulation or order issued by either 

of the two Secretaries, or a party’s 

violation of a State standard that is 

necessary to eliminate or reduce an 

essentially local safety or security 

hazard, is not incompatible with a law, 

regulations, or order of the United States 

Government, and does not unreasonably 

burden interstate commerce. 

Section 228.19 Monthly Reports of 

Excess Service 

This section requires monthly reports 

of excess service, and indicates the 

instances of excess service that must be 

reported, in separate paragraphs for 

train employees, dispatching service 

employees, and signal employees, 

including requirements related to new 

substantive provisions of the HSL that 

were added by the RSIA of 2008. It also 

provides for excess service reports to be 

submitted electronically or appended to 


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and retained with the employee hours of 

service record to which the excess 

service being reported relates. 

Paragraph (a) requires that the 

instances of excess service listed in this 

section be reported to FRA’s Associate 

Administrator for Railroad Safety/Chief 

Safety Officer. 

Paragraph (b) provides the instances 

of excess service which must be 

reported for train employees. 

Subparagraphs (1) through (3) 

correspond to requirements that were 

contained in this section as it existed 

prior to the enactment of the RSIA of 

2008, with the exception that the new 

minimum statutory off-duty period of 10 

hours is substituted. Subparagraphs (4) 

through (10) are instances of possible 

excess service related to new 

substantive limitations in the HSL. 

Paragraph (c) provides the instances of 

excess service that must be reported for 

train employees of commuter or 

intercity passenger railroads. Because 

these employees continue to be covered 

by the HSL as it existed prior to the 

enactment of the RSIA of 2008, the 

instances of excess service which must 

be reported for these employees are 

identical to those required by this 

section for train employees prior to this 

revision. 

Paragraph (d) contains the instances 

of excess service which must be 

reported for dispatching service 

employees. Because there were no 

substantive changes to the HSL related 

to dispatching service employees other 

than the grant of authority to the 

Secretary to prescribe regulations more 

stringent than the statute, the instances 

of excess service that must be reported 

are identical to those required by this 

section for dispatching service 

employees by this section prior to this 

revision. 

Paragraph (e) provides the instances 

of excess service that must be reported 

for signal employees, which were 

modified to reflect the new minimum 

statutory off-duty period. 

Paragraph (f) provides the method for 

filing with FRA the instances of excess 

service required to be reported by this 

section, while paragraph (g) provides 

procedures for the use of an alternative 

method for filing instances of excess 

service using an electronic signature. 

Paragraph (h) excepts any railroad, or 

contractor or subcontractor to a railroad 

that uses an electronic recordkeeping 

system that complies with this part from 

the requirement to file with FRA its 

monthly reports of excess service. The 

electronic recordkeeping system must 

require the employee to enter an 

explanation for any excess service that 

the employee certifies on his or her 

record, require the railroad, contractor, 

or subcontractor to make a 

determination as to whether each 

instance would be reportable, allow the 

railroad, contractor, or subcontractor to 

append its analysis to the electronic 

record, and allow FRA inspectors and 

participating State inspectors access to 

employee reports of excess service and 

any explanations provided. 

Section 228.23 Criminal Penalty 

This section is amended only to 

update the statutory citation to the 

penalty provision of the HSL to reflect 

the recodification of the Federal railroad 

safety laws, including the HSL, in 1994. 

Public Law 103–272, 108 Stat. 745. 

Section 228.201 Electronic 

Recordkeeping; General 

This section sets forth the basic 

requirements for the use of an electronic 

recordkeeping system to create and 

maintain the records required by this 

part. Any record required by this part 

may be created and stored electronically 

in such a system, and those records 

submitted to FRA may also be submitted 

electronically, consistent with the 

requirements of the Electronic 

Signatures in Global and National 

Commerce Act (Pub. L. 106–229, 114 

Stat. 464, June 30, 2000). 

The system must meet the 

requirements of this part, and the 

records created and stored in the system 

must contain the required information. 

The section further provides that a 

railroad, contractor, or subcontractor 

using an electronic recordkeeping 

system must sufficiently monitor the 

database to ensure a high degree of 

accuracy in the records, and train its 

employees on the proper use of the 

system. The information technology 

security program of the railroad, 

contractor, or subcontractor must also 

be adequate to prevent unauthorized 

access to the program logic or 

individual records. Finally, this section 

provides that FRA may prohibit or 

revoke the authority to use an electronic 

recordkeeping system if FRA finds that 

the system is not properly secured, is 

inaccessible to FRA, or fails to record 

and store the information adequately 

and accurately. If FRA makes such a 

determination, it will be issued in 

writing. 

Section 228.203 Program Components 

This section establishes the required 

components for electronic 

recordkeeping programs in the areas of 

system security, identification of the 

individual who entered specific data, 

capabilities of program logic, and 

system search capabilities. 

Paragraph (a) provides the standards 

that the electronic recordkeeping system 

must meet in terms of system security. 

Subparagraph (a)(1) provides that data 

entry is restricted to the employee or 

train crew whose time is being reported. 

However, there are two exceptions to 

this requirement. The first is for prepopulated data, which was an area of 

significant discussion and eventual 

compromise in the working group, as 

discussed in section III above. The 

second exception applies to situations 

in which an employee has reached or 

exceeded his or her maximum allowed 

time on duty, and a quick tie-up is 

required. As was discussed in section 

IB, the idea behind a quick tie-up is that 

a few items of basic information are 

needed to determine the time at which 

the employee is beginning his or her 

statutory off-duty period, and when he 

or she will be rested to begin the next 

duty tour. However, the intention is for 

the employee to be able to complete this 

limited data entry very quickly in order 

to begin the statutory off-duty period 

and not extend a duty tour that is 

already at its maximum limit. Therefore, 

FRA has provided an additional 

exception to the requirement of 

employee-entered data, to allow an 

employee to provide quick tie-up 

information by telephone, by facsimile, 

or by other electronic means in 

situations where for any reason, a 

computer terminal is unavailable. FRA 

expects that in most situations, the 

employee will call a dispatcher, call 

desk, or trouble desk, to provide the 

quick tie-up information to those who 

need to know it to be able to call the 

employee for his or her next time on 

duty. However, situations may arise 

when it is difficult to reach someone by 

telephone, which could increase the 

time it will take to complete the process. 

The Working Group requested that FRA 

allow the use of other technology for 

electronic transmission of the 

information, and FRA revised the rule 

text accordingly. However, FRA 

cautions against the use of electronic 

means, such as e-mail, to enable an 

employee to tie up and officially begin 

a statutory off-duty period while in fact 

still performing service, awaiting 

transportation to final release, or 

otherwise still involved in the duty tour 

being tied up. 

Subparagraph (a)(1) also provides that 

the system may not allow two 

individuals to have the same electronic 

identity, and that the system must be 

structured so that a record cannot be 

deleted or altered once it is certified, 

and that any amendment to a record 

must either be stored electronically 


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apart from the record it amends or 

electronically attached as information 

but without altering the record. 

Amendments must also identify the 

person making the amendment. Finally, 

the system must be capable of 

maintaining records as submitted 

without corruption or loss of data, and 

ensure that supervisors and crew 

management officials can access, but not 

delete or alter a record, once the 

employee has reported for duty, and 

once the employee has certified 

information that he or she entered on 

the record. 

Paragraph (b) provides that the 

program must be capable of identifying 

each individual who entered data on a 

record, and which data items were 

entered by each individual if more than 

one person entered data on a given 

record. 

Paragraph (c) provides the program 

logic features that an electronic 

recordkeeping system must contain in 

order to properly calculate total time on 

duty, to identify errors, to require 

reconciliation of differences in prior 

time off, which would indicate an 

activity or assignment not captured on 

a record, to require explanations when 

total time on duty exceeds the statutory 

maximum for the employee, and to 

require proper use of the quick tie-up. 

As was discussed in section III above, 

this section was the subject of 

discussion in the Working Group, and 

the rule text was modified to provide 

flexibility for future systems, and in 

particular for the recording and 

reporting of hours of service data by 

signal employees, who do not report in 

the same manner as train employees. 

Paragraph (d) establishes the required 

search capabilities for an electronic 

recordkeeping system, establishing the 

specific data fields and other criteria by 

which the system must be capable of 

searching for and retrieving responsive 

records. 

Section 228.205 Access to Electronic 

Records 

Paragraph (a) of this section provides 

that access to electronic recordkeeping 

systems must be granted to FRA and 

State inspectors through the use of 

railroad computer terminals. Paragraph 

(b) requires the establishment of 

procedures for providing inspectors 

with an identification number and 

password to access the system. 

Paragraph (c) provides that the 

inspection screen must be formatted so 

that each data field entered by an 

employee is visible, that the data fields 

must be searchable as described in 

§ 228.203(d) and yield access to all 

records matching the specified search 

criteria, and that the records must be 

displayed in a manner that is crewbased and duty-tour-oriented, so that 

the records of all employees who 

worked together as part of a train crew 

or signal gang will be displayed 

together, and the record will include all 

of the assignments or activities required 

to be reported. 

Section 228.207 Training 

This section requires railroads and 

contractors and subcontractors to 

railroads to provide initial and refresher 

training to train employees, signal 

employees, and dispatching service 

employees, and the supervisors of these 

employees. Paragraph (b) provides that 

initial training must include classroom 

and hands-on components, and must 

cover the aspects of the HSL relevant to 

the employee’s position, and proper 

entry of hours of service data. Testing is 

also required to ensure that the 

objectives of the training are met. This 

section requires that initial training be 

provided as soon as practicable. FRA 

would expect that some level of 

training, such as on the new statutory 

requirements, will be needed fairly 

quickly, to ensure proper recordkeeping. 

This may be done less formally, either 

in person with a supervisor, as ‘‘on the 

job’’ training, or through electronic 

media that may be provided to an 

employee. However, the more 

comprehensive initial training required 

by this section may be provided in 

combination with other training, such as 

that required by section 402 of the RSIA 

of 2008, and may be completed within 

the regular training cycle for the 

employee. 

Paragraph (c) provides significant 

flexibility regarding refresher training. 

The paragraph does, however, require 

that the refresher training emphasize 

any relevant changes to the HSL or the 

recordkeeping system, as well as any 

areas in which supervisors or other 

railroad managers are noticing recurrent 

errors. No specific interval for refresher 

training is required, just that it must be 

provided when suggested by recurrent 

errors. FRA had initially proposed 

requiring refresher training every two 

years, but members of the Working 

Group objected, arguing that employees 

who complete records every day will 

not need training at a regular interval on 

how to do so, and that refresher training 

should be provided to those who are 

having difficulty. FRA revised the text 

of this section accordingly. 

V. Regulatory Impact and Notices 

A. Statutory Authority 

Section 20103(a) of title 49 U.S. Code 

authorizes the Secretary to issue 

regulations governing all areas of 

railroad transportation safety, 

supplementing laws and regulations in 

effect on October 16, 1970. In addition, 

Section 108(f)(1) of the RSIA of 2008 

requires the Secretary to prescribe a 

regulation revising the requirements for 

recordkeeping and reporting for hours of 

service of railroad employees contained 

in 49 CFR part 228 to adjust 

recordkeeping and reporting 

requirements to support compliance 

with 49 CFR ch. 211, as amended by the 

RSIA of 2008; to authorize electronic 

recordkeeping, and reporting of excess 

service, consistent with appropriate 

considerations for user interface; and to 

require training of affected employees 

and supervisors, including training of 

employees in the entry of hours of 

service data. 

Section 108(f)(2) provides that in lieu 

of issuing a notice of proposed 

rulemaking as contemplated by 5 U.S.C. 

553, the Secretary may use the RSAC to 

assist in development of the regulation. 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule has been evaluated in 

accordance with existing policies and 

procedures, and determined not to be 

economically significant under both 

Executive Order 12866 and DOT 

policies and procedures. See 44 FR 

11034 (Feb. 26, 1979). This rule is a 

non-significant regulatory action under 

§ 3(f) of Executive Order 12866 and the 

regulatory policies and procedures order 

issued by the DOT. Id. We have 

prepared and placed in the docket a 

regulatory impact analysis (RIA) 

addressing the economic impact of this 

rule. 

This section summarizes the 

estimated economic impacts of the rule. 

The final rule is mandated by the RSIA 

of 2008, in order to revise the 

recordkeeping and reporting regulations 

in accordance with the substantive 

changes to employee work and rest 

periods that are specified in the RSIA of 

2008. The impacts described are the 

impacts of the rule, distinct from the 

impacts of the RSIA of 2008. 

The RIA contains a description of the 

costs of the rule. All railroads that 

operate on the general system of 

transportation are subject to the final 

rule. Train employees of commuter and 

intercity passenger railroads, however, 

are exempt from the new, specific 

limitations on employee work and rest 

periods in the RSIA of 2008. The RSIA 


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adds employees of contractors and 

subcontractors that perform signal work 

for railroads to those covered by the 

rule. The costs of the rule result from 

making required changes to existing 

recordkeeping systems to comply with 

the final rule. FRA establishes the 

standards for electronic recordkeeping 

systems for those railroads that wish to 

implement an electronic hours of 

service system. Four Class I railroads 

already use an electronic recordkeeping 

system by FRA waiver. The rule’s 

specifications for electronic 

recordkeeping were based on FRA’s 

experience with these waiver-approved 

systems to minimize the burden of the 

electronic recordkeeping option. The 

RSIA of 2008 also mandates that 

training be provided to employees on 

the hours of service law and 

recordkeeping system. FRA notes that 

training would be necessary even in the 

absence of FRA’s rule, but accounts for 

training on the recordkeeping system to 

illustrate the type and extent of training 

a railroad, or a contractor or 

subcontractor to a railroad, would be 

expected to provide. Given the large 

number of employees subject to the rule, 

training costs are the biggest component 

of costs. For a 20 year period of analysis, 

the present value of costs attributable to 

the rule total about $11.2 million, using 

a discount rate of 7%, and $14 million 

using a discount rate of 3%. Of those 

costs, $9.2 million and $11.6 million are 

training costs respectively. 

Members of the RSAC that helped 

develop the rule and the RIA stated that 

the primary benefit of the rule was a 

mechanism by which to comply with 

the hours of service law. The public 

welfare benefit of the rule is a method 

for effectively enforcing the substantive, 

new provisions in the RSIA of 2008. The 

benefit of training and recordkeeping is 

the ability of covered employees to 

comply with the requirements of the 

RSIA and thereby achieve the safety 

benefits intended by Congress. To the 

extent that railroads that are not 

currently using electronic recordkeeping 

take advantage of the option to use 

electronic recordkeeping, they may 

benefit from some efficiency gains. 

RSAC industry representatives 

indicated that there may be up to a 50% 

decrease in the time needed to complete 

an hours of service record, depending 

on the amount of information needed to 

be recorded. If the scale of time savings 

using an electronic system was a few 

minutes per individual entry, the 

savings could be significant when 

multiplied across the large number of 

employees covered by the RSIA of 2008 

that perform daily or frequent 

recordkeeping. In addition, there may be 

indirect benefits of the rule, such as 

reduced storage needs for paper hours of 

service records. 

C. Executive Order 13132 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This rule amends 

FRA’s regulations regarding the 

reporting and recordkeeping 

requirements for railroad employees and 

employees of contractors and 

subcontractors of a railroad who are 

performing service covered by the HSL. 

State and local requirements on the 

same subject matter covered by FRA’s 

regulation and the amendments 

proposed in this rule, including the 

standards of care applicable in certain 

State common law tort actions, are 

preempted by 49 U.S.C. 20106. The 

preemption provision in the regulation 

directly reflects the terms of the statute. 

At the same time, this final rule does 

not propose any regulation that would 

have direct effects on the States, the 

relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Additionally, it 

would not impose any direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, State and local officials were 

involved in developing this rule. The 

RSAC, which was used to assist in the 

development of this rule, has as 

permanent members, the AASHTO and 

the ASRSM. 

D. Executive Order 13175 

We analyzed this final rule in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this rule does not significantly 

or uniquely affect tribes and does not 

impose substantial and direct 

compliance costs on Indian tribal 

governments, the funding and 

consultation requirements of Executive 

Order 13175 do not apply, and a tribal 

summary impact statement is not 

required. 

E. Regulatory Flexibility Act and 

Executive Order 13272 

To ensure potential impacts of rules 

on small entities are properly 

considered, we developed this final rule 

in accordance with Executive Order 

13272 (‘‘Proper Consideration of Small 

Entities in Agency Rulemaking’’) and 

DOT’s procedures and policies to 

promote compliance with the 

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

et seq.) (RFA), and have determined that 

the RFA does not apply to this 

rulemaking. 

As was discussed above, this 

rulemaking is required by the section 

108(f) of the RSIA of 2008, which 

provides that in lieu of issuing a notice 

of proposed rulemaking as 

contemplated by 5 U.S.C. 553, the 

Secretary may utilize the RSAC to assist 

in development of the regulation, and 

FRA chose to utilize the RSAC to assist 

in developing the regulation. 

The Small Business Administration’s 

A Guide for Government Agencies: How 

To Comply With the Regulatory 

Flexibility Act (2003), provides that: 

[i]f, under the APA or any rule of general 

applicability governing federal grants to state 

and local governments, the agency is 

required to publish a general notice of 

proposed rulemaking (NPRM), the RFA must 

be considered (citing 5 U.S.C. 604(a)). * * * 

If an NPRM is not required, the RFA does not 

apply.’’ 

Because an NPRM was not required in 

this instance, the RFA does not apply. 

F. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

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 and 

the estimated time to fulfill each 

requirement are as follows: 

49 CFR section or statutory provision Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

228.11—Hours of Duty Records (New Requirement now includes signal contractors and their 

employees).

720 railroads/signal 

contractors.

29,893,000 records ...... 2 min./5 min./10 min. ... 3,049,210 

228.17—Dispatchers Record of Train Movements.150 Dispatch Offices .... 200,750 records ........... 3 hours ......................... 602,250 


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49 CFR section or statutory provision Respondent universe Total annual responses Average time per 

response 

Total annual 

burden hours 

228.19—Monthly Reports of Excess Service 

(New Report Requirement includes Limbo 

time and consecutive days on duty).

300 railroads ................ 2,640 reports ................ 2 hours ......................... 5,280 

228.103—Construction of Employee Sleeping 

Quarters—Petitions to allow construction near 

work areas.

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

228.203—Program Components (New Requirement)—Electronic Recordkeeping— 

—Modifications for Daylight Savings Time ..

—System Security/Individual User Identification/Program Logic Capabilities/Search 

Capabilities 

9 railroads .................... 5 modifications .............

1 program with security/ 

I.D./program logic & 

search capability. 

120 hours .....................

720 hours .....................

600 

720 

228.205—Access to Electronic Records—(New 

Requirement)—System Access Procedures for 

Inspectors.

632 railroads ................ 100 electronic records 

access procedures.

30 minutes ................... 50 

228.207—Training in Use of Electronic System—(New Requirements)—Initial Training.720 railroads/signal 

contractors.

47,000 train employees 1 hour ........................... 47,000 

—Refresher Training .................................... 720 railroads/signal 

contractors.

2,200 train employees 1 hour ........................... 2,200 

49 U.S.C. 21102(b)—The Federal hours of service laws: 

—Petitions for Exemption from Laws 10 railroads .................. 2 petitions ..................... 10 hours ....................... 20 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. Nakia 

Poston, Information Clearance Officer, 

at 202–493–6073. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this final rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. FRA intends to 

obtain current OMB control numbers for 

any new information collection 

requirements resulting from this 

rulemaking action prior to the effective 

date of the final rule. The OMB control 

number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

G. Regulation Identifier Number (RIN) 

A 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 action with the Unified Agenda. 

H. Unfunded Mandates Reform Act 

Pursuant to section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

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

1532) further requires that: 

‘‘Before promulgating any general notice of 

proposed rulemaking that is likely to result 

in the promulgation of any rule that includes 

any Federal mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $141,100,000 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 agency shall 

prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. 

This rule will not result in the 

expenditure of more than $141,100,000 

(adjusted annually for inflation) by the 

public sector in any one year, and thus 

preparation of such a statement is not 

required. 

I. Environmental Assessment 

The National Environmental Policy 

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

Federal agencies analyze proposed 

actions to determine whether the action 

will have a significant impact on the 

human environment. This rule will not 

have a significant impact on the human 

environment. 

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. 

PART 228—[AMENDED] 

The Rule 

■ For the reasons discussed in the 

preamble, part 228 of chapter II, subtitle 

B of title 49, Code of Federal 

Regulations is amended as follows: 

■ 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, Public Law 110–432, 

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

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

1.49; and 49 U.S.C. 103. 

■ 2. Section 228.1 is amended by 

revising paragraph (a) to read as follows: 

§ 228.1 Scope. 

* * * * * 

(a) Prescribes reporting and 

recordkeeping requirements with 

respect to the hours of service of certain 

railroad employees and certain 

employees of railroad contractors and 

subcontractors; and 

■ 3. Section 228.3 is revised to read as 

follows: 

§ 228.3 Application. 

(a) Except as provided in paragraph 

(b) of this section, this part applies to all 

railroads and contractors and 

subcontractors of railroads. 

(b) This part does not apply to: 


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(1) A railroad or a contractor or 

subcontractor of a railroad that operates 

only on track inside an installation 

which is not part of the general railroad 

system of transportation; or 

(2) Rapid transit operations in an 

urban area that are not connected with 

the general railroad system of 

transportation. 

■ 4. Section 228.5 is revised to read as 

follows: 

§ 228.5 Definitions. 

As used in this part— 

Actual time means either the specific 

time of day, to the hour and minute, or 

the precise amount of time spent in an 

activity, in hours and minutes, that 

must be included in the hours of duty 

record, including, where appropriate, 

reference to the applicable time zone 

and either standard time or daylight 

savings time. 

Administrator means the 

Administrator of the Federal Railroad 

Administration or any person to whom 

the Administrator has delegated 

authority in the matter concerned. 

Administrative duties means any 

activities required by the railroad as a 

condition of employment, related to 

reporting, recording, or providing an 

oral or written statement related to a 

current, previous, or future duty tour. 

Such activities are considered service 

for the railroad, and time spent in these 

activities must be included in the total 

time on duty for any duty tour with 

which it may commingle. 

At the behest of the employee refers 

to time spent by an employee in a 

railroad-related activity that is not 

required by the railroad as a condition 

of employment, in which the employee 

voluntarily participates. 

At the behest of the railroad refers to 

time spent by an employee in a railroadrequired activity that compels an 

employee to perform service for the 

railroad as a condition of employment. 

Broken (aggregate) service means one 

or more periods of time on duty within 

a single duty tour separated by one or 

more qualifying interim releases. 

Call and release occurs when an 

employing railroad issues an employee 

a report-for-duty time, and then releases 

the employee from the requirement to 

report prior to the report-for-duty time. 

Carrier, common carrier, and common 

carrier engaged in interstate or foreign 

commerce by railroad mean railroad. 

Commingled service means— 

(1) For a train employee or a signal 

employee, any non-covered service at 

the behest of the railroad and performed 

for the railroad that is not separated 

from covered service by a qualifying 

statutory off-duty period of 8 or 10 

hours or more. Such commingled 

service is counted as time on duty 

pursuant to 49 U.S.C. 21103(b)(3) (for 

train employees) or 49 U.S.C. 

21104(b)(2) (for signal employees). 

(2) For a dispatching service 

employee, any non-covered service 

mandated by the railroad and performed 

for the railroad within any 24-hour 

period containing covered service. Such 

commingled service is counted as time 

on duty pursuant to 49 U.S.C. 21105(c). 

Commuting means— 

(1) For a train employee, the time 

spent in travel— 

(i) Between the employee’s residence 

and the employee’s regular reporting 

point, and 

(ii) In railroad-provided or authorized 

transportation to and from the lodging 

facility at the away-from-home terminal 

(excluding travel for purposes of an 

interim release), where such time 

(including travel delays and room 

availability) does not exceed 30 

minutes. 

(2) For a signal employee, the time 

spent in travel between the employee’s 

residence and the employee’s 

headquarters. 

(3) For a dispatching service 

employee, the time spent in travel 

between the employee’s residence and 

any reporting point. 

Consecutive service is a period of 

unbroken total time on duty during a 

duty tour. 

Covered service means— 

(1) For a train employee, the portion 

of the employee’s time on duty during 

which the employee is engaged in, or 

connected with, the movement of a 

train. 

(2) For a dispatching service 

employee, the portion of the employee’s 

time on duty during which the 

employee, by the use of an electrical or 

mechanical device, dispatches, reports, 

transmits, receives, or delivers an order 

related to or affecting the movement of 

a train. 

(3) For a signal employee, the portion 

of the employee’s time on duty during 

which the employee is engaged in 

installing, repairing, or maintaining a 

signal system. 

Covered service assignment means— 

(1) For a train employee, each unique 

assignment of the employee during a 

period of covered service that is 

associated with either a specific train or 

a specific yard job. 

(2) For a signal employee, the 

assigned duty hours of the employee, 

including overtime, or unique trouble 

call assignments occurring outside the 

employee’s assigned duty hours. 

(3) For a dispatching service 

employee, each unique assignment for 

the employee that occurs within any 24- 

hour period in which the employee, by 

the use of an electrical or mechanical 

device, dispatches, reports, transmits, 

receives, or delivers orders related to or 

affecting train movements. 

Deadheading means the physical 

relocation of a train employee from one 

point to another as a result of a railroadissued verbal or written directive. 

Designated terminal means the home 

or away-from-home terminal for the 

assignment of a particular train crew. 

Dispatching service employee means 

an operator, train dispatcher, or other 

train employee who by the use of an 

electrical or mechanical device 

dispatches, reports, transmits, receives, 

or delivers orders related to or affecting 

train movements. 

Duty location for a signal employee is 

the employee’s headquarters or the 

precise location where the employee is 

expected to begin performing service for 

the railroad as defined in 49 U.S.C. 

21104(b)(1) and (2). 

Duty tour means— 

(1) The total of all periods of covered 

service and commingled service for a 

train employee or a signal employee 

occurring between two statutory offduty periods (i.e., off-duty periods of a 

minimum of 8 or 10 hours); or 

(2) The total of all periods of covered 

service and commingled service for a 

dispatching service employee occurring 

in any 24-hour period. 

Employee means an individual 

employed by a railroad or a contractor 

or subcontractor to a railroad who— 

(1) Is actually engaged in or connected 

with the movement of any train, 

including a person who performs the 

duties of a hostler; 

(2) Dispatches, reports, transmits, 

receives, or delivers an order pertaining 

to a train movement by the use of 

telegraph, telephone, radio, or any other 

electrical or mechanical device; or 

(3) Is engaged in installing, repairing, 

or maintaining a signal system. 

Final release is the time that a train 

employee or a signal employee is 

released from all activities at the behest 

of the railroad and begins his or her 

statutory off-duty period. 

Headquarters means the regular 

assigned on-duty location for signal 

employees, or the lodging facility or 

crew quarters where traveling signal 

gangs reside when working at various 

system locations. 

Interim release means an off-duty 

period applied to train employees only, 

of at least 4 hours but less than the 

required statutory off-duty period at a 

designated terminal, which off-duty 

period temporarily suspends the 


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accumulation of time on duty, but does 

not start a new duty tour. 

Limbo time means a period of time 

treated as neither time on duty nor time 

off duty in 49 U.S.C. 21103 and 21104, 

and any other period of service for the 

railroad that does not qualify as either 

covered service or commingled service. 

On-duty time means the actual time 

that an employee reports for duty to 

begin a covered service assignment. 

Other-than-regular reporting point 

means any location where a train 

employee reports to begin or restart a 

duty tour, that is not the employee’s 

regular reporting point. 

Prior time off means the amount of 

time that an employee has been off duty 

between identifiable periods of service 

at the behest of the railroad. 

Program edits are filters contained in 

the logic of an hours of service 

recordkeeping program that detect 

identifiable reporting errors made by a 

reporting employee at the time of data 

entry, and prevent the employee from 

submitting a record without first 

correcting or explaining any identified 

errors or anomalies. 

Quick tie-up is a data entry process 

used only when an employee is within 

3 minutes of, or is beyond, his or her 

statutory maximum on-duty period, 

which process allows an employee to 

enter only the basic information 

necessary for the railroad to identify the 

beginning of an employee’s statutory 

off-duty period, to avoid the excess 

service that would otherwise be 

incurred in completing the full record 

for the duty tour. The information 

permitted in a quick tie-up process is 

limited to, at a maximum: 

(1) Board placement time; 

(2) Relieved location, date, and time; 

(3) Final release location, date, and 

time; 

(4) Contact information for the 

employee during the statutory off-duty 

period; 

(5) Request for rest in addition to the 

statutory minimum, if provided by 

collective bargaining agreement or local 

practice; 

(6) The employee may be provided an 

option to enter basic payroll 

information, related only to the duty 

tour being tied up; and 

(7) Employee certification of the tieup information provided. 

Railroad means a person providing 

railroad transportation. 

Railroad transportation means any 

form of non-highway ground 

transportation that runs on rails or 

electromagnetic guideways, including 

commuter or other short-haul rail 

passenger service in a metropolitan or 

suburban area, and high speed ground 

transportation systems that connect 

metropolitan areas, without regard to 

whether they use new technologies not 

associated with traditional railroads. 

Such term does not include rapid transit 

operations within an urban area that are 

not connected to the general railroad 

system of transportation. 

Regular reporting point means the 

permanent on-duty location of a train 

employee’s regular assignment that is 

established through a job bulletin 

assignment (either a job award or a 

forced assignment) or through an 

employee’s exercise of seniority to be 

placed in an assignment. The assigned 

regular reporting point is a single fixed 

location identified by the railroad, even 

for extra board and pool crew 

employees. 

Release means— 

(1) For a train employee, 

(i) The time within the duty tour that 

the employee begins an interim release; 

(ii) The time that an employee 

completes a covered service assignment 

and begins another covered service 

assignment on a different train or job, or 

(iii) The time that an employee 

completes a covered service assignment 

to begin another activity that counts as 

time on duty (including waiting for 

deadhead transportation to another duty 

location at which the employee will 

perform covered service, deadheading to 

duty, or any other commingled service). 

(2) For a signal employee, the time 

within a duty tour that the employee— 

(i) Completes his or her regular 

assigned hours and begins an off-duty 

period of at least one hour but less than 

a statutory off-duty period; or 

(ii) Completes his or her return travel 

from a trouble call or other unscheduled 

duty and begins an off-duty period of at 

least one hour, but less than a statutory 

off-duty period. 

(3) For a dispatching service 

employee, when he or she stops 

performing covered service and 

commingled service within any 24-hour 

period and begins an off-duty period of 

at least one hour. 

Relieved time means— 

(1) The actual time that a train 

employee stops performing a covered 

service assignment or commingled 

service. 

(2) The actual time that a signal 

employee: 

(i) Completes his or her assigned duty 

hours, or stops performing covered 

service or commingled service, 

whichever is later; or 

(ii) Stops performing covered service 

associated with a trouble call or other 

unscheduled duty outside of normally 

assigned duty hours. 

Reports for duty means that an 

employee— 

(i) Presents himself or herself at the 

location established by the railroad at 

the time the railroad established for the 

employee to be present; and 

(ii) Is ready to perform covered 

service. 

Report-for-duty time means— 

(1) For a train employee, the actual 

time that the employee is required to be 

present at a reporting point and 

prepared to start a covered service 

assignment. 

(2) For a signal employee, the 

assigned starting time of an employee’s 

scheduled shift, or the time that he or 

she receives a trouble call or a call for 

any other unscheduled duty during an 

off-duty period. 

(3) For a dispatching service 

employee, when the employee begins 

the turn-over process at or before the 

beginning of his or her assigned shift, or 

begins any other activity at the behest of 

the railroad during any 24-hour period 

in which covered service is performed. 

Reporting point means any location 

where an employee is required to begin 

or restart a duty tour. 

Seniority move means a repositioning 

at the behest of the employee, usually a 

repositioning from a regular assignment 

or extra board to a different regularly 

assigned position or extra board, as the 

result of the employee’s selection of a 

bulletin assignment or the employee’s 

exercise of seniority over a junior 

employee. 

Signal employee means an individual 

who is engaged in installing, repairing, 

or maintaining signal systems. 

Station, office or tower means the 

precise location where a dispatching 

service employee is expected to perform 

service for the railroad as defined in 49 

U.S.C. 21105(b) and (c). 

Statutory off-duty period means the 

period of 8 or 10 consecutive hours or 

more time, that is the minimum off-duty 

period required under the hours of 

service laws for a train employee or a 

signal employee to begin a new 24-hour 

period for the purposes of calculating 

his or her total time on duty. 

Total off-duty period means the actual 

amount of time that a train employee or 

a signal employee is off duty between 

duty tours after the previous final 

release and before the beginning of the 

next duty tour. This time may differ 

from the expected prior time off that 

will be generated by the recordkeeping 

system, if the employee performed 

service at the behest of the railroad 

between the duty tours. 

Total time on duty (TTOD) means the 

total accumulation of time spent in 

periods of covered service and 

commingled service between qualifying 

statutory off-duty periods of 8 or 10 


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25348 Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 

hours or more. Mandatory activities that 

do not constitute covered service, such 

as rules classes, when they may not 

attach to covered service, are counted as 

limbo time, rather than commingled 

service, which limbo time is not 

counted toward the calculation of total 

time on duty. 

Train employee means an individual 

engaged in or connected with the 

movement of a train, including a 

hostler. 

Travel time means— 

(1) For a signal employee, the time 

spent in transportation between the 

employee’s headquarters and an 

outlying duty point or between the 

employee’s residence and an outlying 

duty point, or, between duty locations, 

including both on-track and on-highway 

vehicular travel. 

(2) For a dispatching service 

employee, the time spent in travel 

between stations, offices, or towers 

during the employee’s time on duty. 

■ 5. Section 228.9 is amended by 

revising the section heading and 

paragraph (a) and adding paragraph (b), 

to read as follows: 

§ 228.9 Records; general. 

(a) Each manual record maintained 

under this part shall be— 

(1) Signed by the employee whose 

time on duty is being recorded or, in the 

case of a train and engine crew or a 

signal employee gang, signed by the 

ranking crewmember; 

(2) Retained for two years at locations 

identified by the carrier; and 

(3) Available upon request at the 

identified location for inspection and 

copying by the Administrator during 

regular business hours. 

(b) Each electronic record maintained 

under this part shall be— 

(1) Certified by the employee whose 

time on duty is being recorded or, in the 

case of a train and engine crew or a 

signal employee gang, certified by the 

reporting employee who is a member of 

the train crew or signal gang whose time 

is being recorded; 

(2) Electronically stamped with the 

certifying employee’s name and the date 

and time of certification; 

(3) Retained for 2 years in a secured 

file that prevents alteration after 

certification; 

(4) Accessible by the Administrator 

through a computer terminal of the 

railroad, using a railroad-provided 

identification code and a unique 

password. 

(5) Reproducible using the printing 

capability at the location where records 

are accessed. 

■ 6. Section 228.11 is amended by 

revising paragraph (a) and adding 

paragraphs (b), (c), and (d) to read as 

follows: 

§ 228.11 Hours of duty records. 

(a) In general. Each railroad, or a 

contractor or a subcontractor of a 

railroad, shall keep a record, either 

manually or electronically, concerning 

the hours of duty of each employee. 

Each contractor or subcontractor of a 

railroad shall also record the name of 

the railroad for whom its employee 

performed covered service during the 

duty tour covered by the record. 

Employees who perform covered service 

assignments in a single duty tour that 

are subject to the recordkeeping 

requirements of more than one 

paragraph of this section, must complete 

the record applicable to the covered 

service position for which they were 

called, and record other covered service 

as an activity constituting other service 

at the behest of the railroad. 

(b) For train employees. Except as 

provided by paragraph (c) of this 

section, each hours of duty record for a 

train employee shall include the 

following information about the 

employee: 

(1) Identification of the employee 

(initials and last name; or if last name 

is not the employee’s surname, provide 

the employee’s initials and surname). 

(2) Each covered service position in a 

duty tour. 

(3) Amount of time off duty before 

beginning a new covered service 

assignment or resuming a duty tour. 

(4) Train ID for each assignment 

required to be reported by this part, 

except for the following employees, who 

may instead report the unique job or 

train ID identifying their assignment: 

(i) Utility employees assigned to 

perform covered service, who are 

identified as such by a unique job or 

train ID; 

(ii) Employees assigned to yard jobs, 

except that employees assigned to 

perform yard jobs on all or parts of 

consecutive shifts must at least report 

the yard assignment for each shift; 

(iii) Assignments, either regular or 

extra, that are specifically established to 

shuttle trains into and out of a terminal 

during a single duty tour that are 

identified by a unique job or train 

symbol as such an assignment. 

(5) Location, date, and beginning time 

of the first assignment in a duty tour, 

and, if the duty tour exceeds 12 hours 

and includes a qualifying period of 

interim release as provided by 49 U.S.C. 

21103(b), the location, date, and 

beginning time of the assignment 

immediately following the interim 

release. 

(6) Location, date, and time relieved 

for the last assignment in a duty tour, 

and, if the duty tour exceeds 12 hours 

and includes a qualifying period of 

interim release as provided by 49 U.S.C. 

21103(b), the location, date, and time 

relieved for the assignment immediately 

preceding the interim release. 

(7) Location, date, and time released 

from the last assignment in a duty tour, 

and, if the duty tour exceeds 12 hours 

and includes a qualifying period of 

interim release as provided by 49 U.S.C. 

21103(b), the location, date, and time 

released from the assignment 

immediately preceding the interim 

release. 

(8) Beginning and ending location, 

date, and time for periods spent in 

transportation, other than personal 

commuting, if any, to the first 

assignment in a duty tour, from an 

assignment to the location of a period of 

interim release, from a period of interim 

release to the next assignment, or from 

the last assignment in a duty tour to the 

point of final release, including the 

mode of transportation (train, track car, 

railroad-provided motor vehicle, 

personal automobile, etc.). 

(9) Beginning and ending location, 

date, and time of any other service 

performed at the behest of the railroad. 

(10) Identification (code) of service 

type for any other service performed at 

the behest of the railroad. 

(11) Total time on duty for the duty 

tour. 

(12) Reason for any service that 

exceeds 12 hours total time on duty for 

the duty tour. 

(13) The total amount of time by 

which the sum of total time on duty and 

time spent awaiting or in deadhead 

transportation to the point of final 

release exceeds 12 hours. 

(14) The cumulative total for the 

calendar month of— 

(i) Time spent in covered service; 

(ii) Time spent awaiting or in 

deadhead transportation from a duty 

assignment to the place of final release; 

and 

(iii) Time spent in any other service 

at the behest of the railroad. 

(15) The cumulative total for the 

calendar month of time spent awaiting 

or in deadhead transportation from a 

duty assignment to the place of final 

release following a period of 12 

consecutive hours on duty. 

(16) Number of consecutive days in 

which a period of time on duty was 

initiated. 

(c) Exceptions to requirements for 

train employees. Paragraphs (b)(13) 

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

apply to the hours of duty records of 

train employees providing commuter 


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Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 25349 

1 Instances involving duty tours that are broken 

by four or more consecutive hours of off duty time 

at a designated terminal which duty tours do not 

constitute more than a total of 12 hours time on 

duty are not required to be reported, provided such 

duty tours are immediately preceded by 10 or more 

consecutive hours of off-duty time. 

rail passenger transportation or intercity 

rail passenger transportation. 

(d) For dispatching service employees. 

Each hours of duty record for a 

dispatching service employee shall 

include the following information about 

the employee: 

(1) Identification of the employee 

(initials and last name; or if last name 

is not the employee’s surname, provide 

the employee’s initials and surname). 

(2) Each covered service position in a 

duty tour. 

(3) Amount of time off duty before 

going on duty or returning to duty in a 

duty tour. 

(4) Location, date, and beginning time 

of each assignment in a duty tour. 

(5) Location, date, and time released 

from each assignment in a duty tour. 

(6) Beginning and ending location, 

date, and time of any other service 

performed at the behest of the railroad. 

(7) Total time on duty for the duty 

tour. 

(e) For signal employees. Each hours 

of duty record for a signal employee 

shall include the following information 

about the employee: 

(1) Identification of the employee 

(initials and last name; or if last name 

is not the employee’s surname, provide 

the employee’s initials and surname). 

(2) Each covered service position in a 

duty tour. 

(3) Headquarters location for the 

employee. 

(4) Amount of time off duty before 

going on duty or resuming a duty tour. 

(5) Location, date, and beginning time 

of each covered service assignment in a 

duty tour. 

(6) Location, date, and time relieved 

for each covered service assignment in 

a duty tour. 

(7) Location, date, and time released 

from each covered service assignment in 

a duty tour. 

(8) Beginning and ending location, 

date, and time for periods spent in 

transportation, other than personal 

commuting, to or from a duty 

assignment, and mode of transportation 

(train, track car, railroad-provided motor 

vehicle, personal automobile, etc.). 

(9) Beginning and ending location, 

date, and time of any other service 

performed at the behest of the railroad. 

(10) Total time on duty for the duty 

tour. 

(11) Reason for any service that 

exceeds 12 hours total time on duty for 

the duty tour. 

■ 7. Add § 228.13 to read as follows: 

§ 228.13 Preemptive effect. 

Under 49 U.S.C. 20106, issuance of 

the regulations in this part preempts any 

State law, regulation, or order covering 

the same subject matter, except for a 

provision necessary to eliminate or 

reduce an essentially local safety hazard 

if that provision is not incompatible 

with a law, regulation, or order of the 

United States government and does not 

unreasonably burden interstate 

commerce. Nothing in this paragraph 

shall be construed to preempt an action 

under State law seeking damages for 

personal injury, death, or property 

damage alleging that a party has failed 

to comply with the Federal standard of 

care established by this part, has failed 

to comply with its own plan, rule, or 

standard that it created pursuant to this 

part, or has failed to comply with a State 

law, regulation, or order that is not 

incompatible with the first sentence of 

this paragraph. 

■ 8. Section 228.19 is revised to read as 

follows: 

§ 228.19 Monthly reports of excess 

service. 

(a) In general. Except as provided in 

paragraph (h) of this section, each 

railroad, or a contractor or a 

subcontractor of a railroad, shall report 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer, 

Federal Railroad Administration, 

Washington, DC 20590, each instance of 

excess service listed in paragraphs (b) 

through (e) of this section, in the 

manner provided by paragraph (f) of this 

section, within 30 days after the 

calendar month in which the instance 

occurs. 

(b) For train employees. Except as 

provided in paragraph (c) of this 

section, the following instances of 

excess service by train employees must 

be reported to FRA as required by this 

section: 

(1) A train employee is on duty for 

more than 12 consecutive hours. 

(2) A train employee continues on 

duty without at least 10 consecutive 

hours off duty during the preceding 24 

hours. Instances involving duty tours 

that are broken by less than 10 

consecutive hours off duty which duty 

tours constitute more than a total of 12 

hours time on duty must be reported.1

(3) A train employee returns to duty 

without at least 10 consecutive hours off 

duty during the preceding 24 hours. 

Instances involving duty tours that are 

broken by less than 10 consecutive 

hours off duty which duty tours 

constitute more than a total of 12 hours 

time on duty must be reported.1

(4) A train employee returns to duty 

without additional time off duty, equal 

to the total amount of time by which the 

employee’s sum of total time on duty 

and time spent awaiting or in deadhead 

transportation to the point of final 

release exceeds 12 hours. 

(5) A train employee exceeds a 

cumulative total of 276 hours in the 

following activities in a calendar month: 

(i) Time spent in covered service; 

(ii) Time spent awaiting or in 

deadhead transportation from a duty 

assignment to the place of final release; 

and 

(iii) Time spent in any other service 

at the behest of the railroad. 

(6) A train employee initiates an onduty period on more than 6 consecutive 

days, when the on-duty period on the 

sixth consecutive day ended at the 

employee’s home terminal, and the 

seventh consecutive day is not allowed 

pursuant to a collective bargaining 

agreement or pilot project. 

(7) A train employee returns to duty 

after initiating an on-duty period on 6 

consecutive days, without 48 

consecutive hours off duty at the 

employee’s home terminal. 

(8) A train employee initiates an onduty period on more than 7 consecutive 

days. 

(9) A train employee returns to duty 

after initiating an on-duty period on 7 

consecutive days, without 72 

consecutive hours off duty at the 

employee’s home terminal. 

(10) A train employee exceeds the 

following limitations on time spent 

awaiting or in deadhead transportation 

from a duty assignment to the place of 

final release following a period of 12 

consecutive hours on duty: 

(i) 40 hours in any calendar month 

completed prior to October 1, 2009; 

(ii) 20 hours in the transition period 

from October 1, 2009–October 15, 2009; 

(iii) 15 hours in the transition period 

from October 16, 2009–October 31, 

2009; and 

(iv) 30 hours in any calendar month 

completed after October 31, 2009. 

(c) Exception to requirements for train 

employees. For train employees who 

provide commuter rail passenger 

transportation or intercity rail passenger 

transportation during a duty tour, the 

following instances of excess service 

must be reported to FRA as required by 

this section: 

(1) A train employee is on duty for 

more than 12 consecutive hours. 

(2) A train employee returns to duty 

after 12 consecutive hours of service 

without at least 10 consecutive hours off 

duty. 


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25350 Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 

2 Instances involving duty tours that are broken 

by four or more consecutive hours of off-duty time 

at a designated terminal which duty tours do not 

constitute more than a total of 12 hours time on 

duty are not required to be reported, provided such 

duty tours are immediately preceded by 8 or more 

consecutive hours of off-duty time. 

3Form may be obtained from the Office of 

Railroad Safety, Federal Railroad Administration, 

Washington, DC 20590. Reproduction is authorized. 

(3) A train employee continues on 

duty without at least 8 consecutive 

hours off duty during the preceding 24 

hours. Instances involving duty tours 

that are broken by less than 8 

consecutive hours off duty which duty 

tours constitute more than a total of 12 

hours time on duty must be reported.2

(4) A train employee returns to duty 

without at least 8 consecutive hours off 

duty during the preceding 24 hours. 

Instances involving duty tours that are 

broken by less than 8 consecutive hours 

off duty which duty tours constitute 

more than a total of 12 hours time on 

duty must be reported.2

(d) For dispatching service employees. 

The following instances of excess 

service by dispatching service 

employees must be reported to FRA as 

required by this section: 

(1) A dispatching service employee is 

on duty for more than 9 hours in any 24- 

hour period at an office where two or 

more shifts are employed. 

(2) A dispatching service employee is 

on duty for more than 12 hours in any 

24-hour period at any office where one 

shift is employed. 

(e) For signal employees. The 

following instances of excess service by 

signal employees must be reported to 

FRA as required by this section: 

(1) A signal employee is on duty for 

more than 12 consecutive hours. 

(2) A signal employee continues on 

duty without at least 10 consecutive 

hours off duty during the preceding 24 

hours. 

(3) A signal employee returns to duty 

without at least 10 consecutive hours off 

duty during the preceding 24 hours. 

(f) Except as provided in paragraph 

(h) of this section, reports required by 

paragraphs (b) through (e) of this section 

shall be filed in writing on FRA Form 

F–6180–3 3 with the Office of Railroad 

Safety, Federal Railroad Administration, 

Washington, DC 20590. A separate form 

shall be used for each instance reported. 

(g) Use of electronic signature. For the 

purpose of complying with paragraph (f) 

of this section, the signature required on 

Form FRA F–6180–3 may be provided 

to FRA by means of an electronic 

signature provided that: 

(1) The record contains the printed 

name of the signer and the date and 

actual time that the signature was 

executed, and the meaning (such as 

authorship, review, or approval), 

associated with the signature; 

(2) Each electronic signature shall be 

unique to one individual and shall not 

be used by, or assigned to, anyone else; 

(3) Before a railroad, or a contractor or 

subcontractor to 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) Persons using electronic signatures 

shall, prior to or at the time of such use, 

certify to the agency that the electronic 

signatures in their system, used on or 

after the effective date of this regulation, 

are the legally binding equivalent of 

traditional handwritten signatures; 

(5) The certification shall be 

submitted, in paper form and signed 

with a traditional handwritten 

signature, to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer; and 

(6) Persons using electronic signatures 

shall, upon agency request, provide 

additional certification or testimony that 

a specific electronic signature is the 

legally binding equivalent of the signer’s 

handwritten signature. 

(h) Exception. A railroad, or a 

contractor or subcontractor to a railroad, 

is excused from the requirements of 

paragraphs (a) and (f) of this section as 

to any employees for which— 

(1) The railroad, or a contractor or 

subcontractor to a railroad, maintains 

hours of service records using an 

electronic recordkeeping system that 

complies with the requirements of 

subpart D of this part; and 

(2) The electronic recordkeeping 

system referred to in paragraph (h)(1) of 

this section requires— 

(i) The employee to enter an 

explanation for any excess service 

certified by the employee; and 

(ii) The railroad, or a contractor or 

subcontractor of a railroad, to analyze 

each instance of excess service certified 

by one of its employees, make a 

determination as to whether each 

instance of excess service would be 

reportable under the provisions of 

paragraphs (b) through (e) of this 

section, and allows the railroad, or a 

contractor or subcontractor to a railroad, 

to append its analysis to its employee’s 

electronic record; and 

(iii) Allows FRA inspectors and State 

inspectors participating under 49 CFR 

Part 212 access to employee reports of 

excess service and any explanations 

provided. 

■ 9. Section 228.23 is revised to read as 

follows: 

§ 228.23 Criminal penalty. 

Any person who knowingly and 

willfully falsifies a report or record 

required to be kept under this part or 

otherwise knowingly and willfully 

violates any requirement of this part 

may be liable for criminal penalties of 

a fine up to $5,000, imprisonment for up 

to two years, or both, in accordance 

with 49 U.S.C. 21311(a). 

■ 10. Add subpart D to read as follows: 

Subpart D—Electronic Recordkeeping 

Sec. 

228.201 Electronic recordkeeping; general. 

228.203 Program components. 

228.205 Access to electronic records. 

228.207 Training. 

Subpart D—Electronic Recordkeeping 

§ 228.201 Electronic recordkeeping; 

general. 

For purposes of compliance with the 

recordkeeping requirements of subpart 

B, a railroad, or a contractor or a 

subcontractor to a railroad may create 

and maintain any of the records 

required by subpart B through electronic 

transmission, storage, and retrieval 

provided that all of the following 

conditions are met: 

(1) The system used to generate the 

electronic record meets all requirements 

of this subpart; 

(2) The electronically generated 

record contains the information 

required by § 228.11; 

(3) The railroad, or contractor or 

subcontractor to the railroad, monitors 

its electronic database of employee 

hours of duty records through sufficient 

number of monitoring indicators to 

ensure a high degree of accuracy of 

these records; and 

(4) The railroad, or contractor or 

subcontractor to the railroad, trains its 

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 

§ 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. 

(6) FRA’s Associate Administrator for 

Railroad Safety/Chief Safety Officer may 

prohibit or revoke the authority to use 

an electronic system if FRA finds the 

system is not properly secure, is 

inaccessible to FRA, or fails to record 

and store the information adequately 

and accurately. FRA will record such a 

determination in writing, including the 

basis for such action, and will provide 

a copy of its determination to the 


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Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 25351 

affected railroad, or contractor or 

subcontractor to a railroad. 

§ 228.203 Program components. 

(a) System security. The integrity of 

the program and database must be 

protected by a security system that 

utilizes 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, with the 

following exceptions: 

(i) A railroad, or a contractor or 

subcontractor to a railroad, may allow 

its recordkeeping system to prepopulate fields of the hours of service 

record provided that— 

(A) The recordkeeping system prepopulates fields of the hours of service 

record with information known to the 

railroad, or contractor or subcontractor 

to the railroad, to be factually accurate 

for a specific employee. 

(B) The recordkeeping system may 

also provide the ability for employees to 

copy data from one field of a record into 

another field, where applicable. 

(C) Estimated, historical, or arbitrary 

data are not used to pre-populate any 

field of an hours of service record. 

(D) A railroad, or a contractor or a 

subcontractor to a railroad, is not in 

violation of this paragraph if it makes a 

good faith judgment as to the factual 

accuracy of the data for a specific 

employee but nevertheless errs in prepopulating a data field. 

(E) 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 

the railroad, or a contractor or 

subcontractor to a railroad. 

(ii) A railroad, or a contractor or a 

subcontractor to a railroad, shall allow 

employees to complete a verbal quick 

tie-up, or to transmit by facsimile or 

other electronic means the information 

necessary for a quick tie-up, if— 

(A) The employee is released from 

duty at a location at which there is no 

terminal available; 

(B) Computer systems are unavailable 

as a result of technical issues; or 

(C) Access to computer terminals is 

delayed and the employee has exceeded 

his or her maximum allowed time on 

duty. 

(2) No two individuals have the same 

electronic identity. 

(3) A record cannot be deleted or 

altered by any individual after the 

record is certified by the employee who 

created 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 electronic system provides for 

the maintenance of inspection records 

as originally submitted without 

corruption or loss of data. 

(7) Supervisors and crew management 

officials can access, but cannot delete or 

alter the records of any employee after 

the report-for-duty time of the employee 

or after the record has been certified by 

the reporting employee. 

(b) Identification of the individual 

entering data. The program must be 

capable of identifying each individual 

who entered data for a given record. If 

a given record contains data entered by 

more than one individual, the program 

must be capable of identifying each 

individual who entered specific 

information within the record. 

(c) Capabilities of program logic. The 

program logic must have the ability to— 

(1) Calculate the total time on duty for 

each employee, using data entered by 

the employee and treating each 

identified period as defined in § 228.5; 

(2) Identify input errors through the 

use of program edits; 

(3) Require records, including 

outstanding records, the completion of 

which was delayed, to be completed in 

chronological order; 

(4) Require reconciliation when the 

known (system-generated) prior time off 

differs from the prior time off reported 

by an employee; 

(5) Require explanation if the total 

time on duty reflected in the certified 

record exceeds the statutory maximum 

for the employee; 

(6) Require the use of a quick tie-up 

process when the employee has 

exceeded or is within three minutes of 

his or her statutory maximum time on 

duty; 

(7) Require that the employee’s 

certified final release be not more than 

three minutes in the future, and that the 

employee may not certify a final release 

time for a current duty tour that is in the 

past, compared to the clock time of the 

computer system at the time that the 

record is certified, allowing for changes 

in time zones; 

(8) Require automatic modification to 

prevent miscalculation of an employee’s 

total time on duty for a duty tour that 

spans changes from and to daylight 

savings time; 

(9) For train employees, require 

completion of a full record at the end of 

a duty tour when the employee initiates 

a tie-up with less than the statutory 

maximum time on duty and a quick tieup is not mandated; 

(10) For train employees, disallow use 

of a quick tie-up when the employee has 

time remaining to complete a full 

record, except as provided in paragraph 

(a)(1)(ii) of this section. 

(11) Disallow any manipulation of the 

tie-up process that precludes 

compliance with any of the 

requirements specified by paragraphs 

(c)(1) through (c)(10) of this section. 

(d) Search capabilities. The program 

must contain sufficient search criteria to 

allow any record to be retrieved through 

a search of any one or more of the 

following data fields, by specific date or 

by a date range not exceeding 30 days 

for the data fields specified by 

paragraphs (d)(1) and (d)(2) of this 

section, and not exceeding one day for 

the data fields specified by paragraphs 

(d)(3) through (d)(7) of this section: 

(1) Employee, by name or 

identification number; 

(2) Train or job symbol; 

(3) Origin location, either yard or 

station; 

(4) Released location, either yard or 

station; 

(5) Operating territory (i.e., division or 

service unit, subdivision, or railroadidentified line segment); 

(6) Certified records containing one or 

more instances of excess service; and 

(7) Certified records containing duty 

tours in excess of 12 hours. 

(e) The program must display 

individually each train or job 

assignment within a duty tour that is 

required to be reported by this part. 

§ 228.205 Access to electronic records. 

(a) FRA inspectors and State 

inspectors participating under 49 CFR 

Part 212 must have access to hours of 

service records created and maintained 

electronically that is obtained as 

required by § 228.9(b)(4). 

(b) Railroads must establish and 

comply with procedures for providing 

an FRA inspector or participating State 

inspector with an identification number 

and temporary password for access to 

the system upon request, which access 

will be valid for a period not to exceed 

seven days. Access to the system must 

be provided as soon as possible and no 

later than 24 hours after a request for 

access. 

(c) The inspection screen provided to 

FRA inspectors and participating State 

inspectors for searching employee hours 

of duty records must be formatted so 

that— 

(1) Each data field entered by an 

employee on the input screen is visible 

to the FRA inspector or participating 

State inspector; and 


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25352 Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules and Regulations 

(2) The data fields are searchable as 

described in § 228.203(d) and yield 

access to all records matching criteria 

specified in a search. 

(3) Records are displayed in a manner 

that is both crew-based and duty tour 

oriented, so that the data pertaining to 

all employees who worked together as 

part of a crew or signal gang will be 

displayed together, and the record will 

include all of the assignments and 

activities of a given duty tour that are 

required to be recorded by this part. 

§ 228.207 Training. 

(a) In general. A railroad, or a 

contractor or subcontractor to a railroad, 

shall provide its train employees, signal 

employees, and dispatching service 

employees and its supervisors of these 

employees with initial training and 

refresher training as provided in this 

section. 

(b) Initial training. (1) Initial training 

shall include the following: 

(i) Instructional components 

presented in a classroom setting or by 

electronic means; and 

(ii) Experiential (‘‘hands-on’’) 

components; and 

(iii) Training on— 

(A) The aspects of the hours of service 

laws relevant to the employee’s position 

that are necessary to understanding the 

proper completion of the hours of 

service record required by this part, and 

(B) The entry of hours of service data, 

into the electronic system or on the 

appropriate paper records used by the 

railroad or contractor or subcontractor 

to a railroad for whom the employee 

performs covered service; and 

(iv) Testing to ensure that the 

objectives of training are met. 

(2) Initial training shall be provided— 

(i) To each current employee and 

supervisor of an employee as soon after 

May 27, 2009 as practicable; and 

(ii) To new employees and 

supervisors prior to the time that they 

will be required to complete an hours of 

service record or supervise an employee 

required to complete an hours of service 

record. 

(c) Refresher training. (1) The content 

and level of formality of refresher 

training should be tailored to the needs 

of the location and employees involved, 

except that the training shall— 

(i) Emphasize any relevant changes to 

the hours of service laws, the reporting 

requirements in this part, or the carrier’s 

electronic or other recordkeeping 

system since the employee last received 

training; and 

(ii) Cover any areas in which 

supervisors or other railroad managers 

are finding recurrent errors in the 

employees’ records through the 

monitoring indicators. 

(2) Refresher training shall be 

provided to each employee any time 

that recurrent errors in records prepared 

by the employee, discovered through 

the monitoring indicators, suggest, for 

example, the employee’s lack of 

understanding of how to complete hours 

of service records. 

Issued in Washington, DC, on May 19, 

2009. 

Karen J. Rae, 

Deputy Administrator. 

[FR Doc. E9–12059 Filed 5–21–09; 4:15 pm] 

BILLING CODE 4910–06–P 


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