[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 16200-16229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6528]
[[Page 16199]]
Vol. 76
Tuesday,
No. 55
March 22, 2011
Part IV
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 228
Hours of Service of Railroad Employees; Substantive Regulations for
Train Employees Providing Commuter and Intercity Rail Passenger
Transportation; Conforming Amendments to Recordkeeping Requirements;
Proposed Rule
Federal Register / Vol. 76 , No. 55 / Tuesday, March 22, 2011 /
Proposed Rules
[[Page 16200]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 228
[Docket No. FRA-2009-0043, Notice No. 1]
RIN 2130-AC15
Hours of Service of Railroad Employees; Substantive Regulations
for Train Employees Providing Commuter and Intercity Rail Passenger
Transportation; Conforming Amendments to Recordkeeping Requirements
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to amend its hours of service recordkeeping
regulations, to establish hours of service regulations, including
maximum on-duty periods, minimum off-duty periods, and other
limitations, for train employees (e.g., locomotive engineers and
conductors) providing commuter and intercity rail passenger
transportation. The proposed regulations would require that railroads
employing such train employees analyze and mitigate the risks for
fatigue in the schedules worked by these train employees, and that the
railroads submit to FRA for its approval the relevant schedules and
fatigue mitigation plans. This proposed rule would also make
corresponding changes to FRA's hours of service recordkeeping
regulation, to require railroads to keep hours of service records and
report excess service to FRA in a manner consistent with the new
requirements. This proposed regulation is authorized by the Rail Safety
Improvement Act of 2008.
DATES: Comments: Written comments must be received by May 23, 2011.
Comments received after that date will be considered to the extent
possible without incurring additional delay or expense.
Public hearing: FRA anticipates being able to resolve this
rulemaking without a public hearing. However, if FRA receives a
specific request for a public hearing prior to March 29, 2011, one will
be scheduled, to be held in the Washington, DC area, on a date prior to
the end of the comment period, and FRA will publish a supplemental
notice in the Federal Register to inform interested parties of the
date, time, and specific location of any such hearing.
ADDRESSES: Comments, which should be identified by Docket No. FRA-2009-
0043, Notice No. 1, may be submitted by any one of the following
methods:
Fax: 1-202-493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Electronically through the Federal eRulemaking Portal,
http://www.regulations.gov. Follow the online instructions for
submitting comments.
Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act section of this
document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to
the Associate Administrator for Railroad Safety/Chief Safety Officer,
FRA, 1200 New Jersey Avenue, SE., RRS-1, Mail Stop 25, Washington, DC
20590 (telephone: 202-493-6350); Dr. Thomas G. Raslear, Staff Director,
Human Factors Research Program, Office of Research and Development,
FRA, 1200 New Jersey Avenue, SE., RPD-321, Mail Stop 20, Washington, DC
20590 (telephone 202-493-6356); 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. Executive Summary
II. Statutory Background and History
III. Scientific Background
A. Validated and Calibrated Fatigue Models
1. Fatigue Avoidance Scheduling Tool \TM\ Model
2. Fatigue Audit InterDyne \TM\ Model
B. Diary Study of Train Employees on Commuter and Intercity
Passenger Railroads
IV. Railroad Safety Advisory Committee Process
A. Overview of the RSAC
B. RSAC Proceedings in This Rulemaking
C. Significant Task Force Contributions
1. Schedule Analysis
2. Fatigue Mitigation Tool Box
D. Areas of Working Group and Task Force Concern
1. Definitions of ``Type 1 Assignment'' and ``Type 2
Assignment''
2. Limitations on Number of Consecutive Days of Work
3. Precision of Fatigue Models and Threshold
4. Freight Railroad Employees Acting as Pilots for Commuter or
Intercity Passenger Trains
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Executive Order 13132
C. Executive Order 13175
D. Regulatory Flexibility Act and Executive Order 13272
1. Description of Regulated Entities and Impacts
2. Certification
E. Paperwork Reduction Act
F. Unfunded Mandates Reform Act
G. Environmental Assessment
H. Privacy Act
I. Executive Summary
This NPRM proposes hours of service regulations for train employees
who provide commuter or intercity rail passenger transportation
(passenger train employees). FRA seeks comment on all aspects of this
proposal.
Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act (Pub. L.
59-274, 34 Stat. 1415), and FRA, under delegations from the Secretary
of Transportation (Secretary), has long administered statutory hours of
service requirements for the three groups of employees now covered
under the statute, namely employees performing the functions of train
employees, signal employees, and dispatching service employees, as
those terms are defined at 49 U.S.C. 21101. See 49 CFR 1.49; 49 U.S.C.
21101-21109, 21303.
These requirements have been amended several times over the years,
most recently in the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Div. A; RSIA). The RSIA substantially amended the requirements of
49 U.S.C. 21103, applicable to train employees, defined as ``* * *
individual[s] engaged in or connected with the movement of a train,
including
[[Page 16201]]
a hostler.'' 49 U.S.C. 21101(5). However, the RSIA also granted the
Secretary authority to prescribe regulations governing the hours of
service of passenger train employees. 49 U.S.C. 21109(b)-(c). As will
be discussed below, FRA interprets commuter or intercity rail passenger
transportation to include rail passenger transportation by tourist,
scenic, excursion, and historic railroads. The RSIA provided that this
particular subset of train employees would continue to be governed by
49 U.S.C. 21103 as it existed prior to the enactment of the RSIA (old
Section 21103), until the earlier of, the effective date of final
regulations prescribed by the Secretary, or the date that is three
years from the date of enactment of the RSIA. 49 U.S.C. 21102(c). In
the absence of a final rule in effect governing this group of train
employees, the requirements of the RSIA currently in effect for other
train employees (new Section 21103) will go into effect for passenger
train employees on October 16, 2011. 49 U.S.C. 21102(c).
As will be discussed further below, FRA reviewed the applicable
fatigue science, and sought input from FRA's Railroad Safety Advisory
Committee (RSAC). Based on FRA's understanding of current fatigue
science, and information received through RSAC, FRA determined that the
requirements imposed on train employees by the RSIA were not
appropriate for passenger train employees. The chart below compares and
contrasts (1) the hours of service requirements in 49 U.S.C. 21103 as
amended by the RSIA, (2) the hours of service requirements applicable
to all train employees immediately prior to the RSIA, which are
currently still applicable to passenger train employees, and (3) the
requirements of this proposed regulation that if adopted would apply to
passenger train employees.
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Train employee
provisions immediately
FRA Freight train prior to RSIA and FRA passenger train
employee statute currently applicable employee NPRM
only to passenger train
employees
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Citation......................... 49 U.S.C. 21103 (as 49 U.S.C. 21103 as it Proposed 49 CFR part
amended by the RSIA existed prior to the 228, subpart F.
effective July 16, 2009) October 16, 2008,
(new section 21103) enactment of the RSIA
(Applies to train (old section 21103)
employees on freight (Train employees
railroads. Will apply to providing commuter and
train employees on intercity rail
commuter and intercity passenger
passenger railroads if transportation are
no regulations are in currently covered by
effect by October 16, these provisions
2011). pursuant to 49 U.S.C.
21102(c).).
Use of Fatigue Science........... None..................... None.................... NRPM requires schedules
to be analyzed under a
validated
biomathematical fatigue
model such as the
Fatigue Avoidance
Scheduling Tool \TM\,
with the exception of
certain schedules
(completely within the
hours of 4 a.m. and 8
p.m. and otherwise in
compliance with the
limitations in the
regulation) deemed as
categorically
presenting an
acceptable level of
risk for fatigue that
does not exceed the
defined fatigue
threshold.
Limitations on Time on Duty in a 12 consecutive hours of 12 consecutive hours of 12 consecutive hours of
Single Tour. time on duty or 12 time on duty or 12 time on duty or 12
nonconsecutive hours on nonconsecutive hours on nonconsecutive hours on
duty if broken by an duty if broken by an duty if broken by an
interim release of at interim release of at interim release of at
least 4 consecutive least 4 consecutive least 4 consecutive
hours uninterrupted by hours, in a 24-hour hours, in a 24-hour
communication from the period that begins at period that begins at
railroad likely to the beginning of the the beginning of the
disturb rest, in a 24- duty tour. duty tour.
hour period that begins
at the beginning of the
duty tour.
Limitations on Consecutive Duty May not be on duty as a None.................... No more than six ``Type
Tours. train employee after 2'' assignments
initiating an on-duty (generally, those
period on six including time on duty
consecutive days without between 8 p.m. and 4
receiving 48 consecutive a.m.) without 24
hours off duty free from consecutive hours off
any service for any duty at the employee's
railroad carrier at the home terminal. No more
employee's home than 14 ``Type 1''
terminal. Employees are assignments (those not
permitted to initiate a Type 2) without 2
seventh consecutive day consecutive calendar
when the employee ends days off duty at the
the sixth consecutive employee's home
day at the away-from- terminal. Employees may
home terminal, as part be permitted to perform
of a pilot project, or service on an
as part of a additional day to
grandfathered facilitate their return
collectively bargained to their home terminal.
arrangement. Employees
performing service on
this additional day must
receive 72 consecutive
hours free from any
service for any railroad
carrier at their home
terminal before going on
duty again as a train
employee.
[[Page 16202]]
Cumulative Limits on Time on Duty Limited to 276 hours of None.................... None.
time on duty, in
deadhead transportation
to a point of final
release, or any other
mandatory activity for
the railroad carrier.
Limited to 30 hours of ........................
time spent on duty and
waiting for or in
deadhead transportation
to a point of final
release after reaching
12 hours of time on duty
and waiting for or in
deadhead transportation
to a point of final
release.
Mandatory Off-Duty Periods....... 10 consecutive hours of 8 consecutive hours (10 8 consecutive hours (10
time off duty free from consecutive hours if consecutive hours if
any communication from time on duty reaches 12 time on duty reaches 12
the railroad likely to consecutive hours). consecutive hours).
disturb rest, with
additional time off duty
if on-duty time plus
time in or awaiting
deadhead transportation
to final release exceeds
12 hours.
48 consecutive hours off ........................
duty, free from any
service for any railroad
carrier, after
initiating an on-duty
period for 6 consecutive
days. If 7 consecutive
days are permitted,
mandatory off-duty
period extended to 72
consecutive hours.
Specific Rules for Nighttime None..................... None.................... Schedules that include
Operations. any time on duty
between 8 p.m. and 4
a.m. must be analyzed
using a validated
biomathematical model
of human performance
and fatigue approved by
FRA. Schedules with
excess risk of fatigue
must be mitigated or
supported by a
determination that
mitigation is not
possible and the
schedule is
operationally necessary
and approved by FRA.
Specific Rules for Unscheduled None..................... None.................... The potential for
Assignments. fatigue presented by
unscheduled work
assignments must be
mitigated as part of a
railroad's FRA-approved
fatigue management
plan.
Recordkeeping requirements....... Record for each duty tour Record for each duty Record for each duty
must contain 15 elements tour must contain the tour must contain the
specified in 49 CFR first 11 elements first 12 elements
228.11(b). specified in 49 CFR specified in 49 CFR
228.11(b), as items 12 228.11(b). Item 12
through 15 relate to refers to recording the
RSIA requirements not number of consecutive
applicable to train days, which would be
employees providing required by the
commuter or intercity proposed rule.
rail passenger
transportation.
Excess Service Reporting Requires reporting of any Requires reporting of Requires reporting of
Requirements. of 10 different ways in any of 4 different ways any of 10 different
which hours of service in which hours of ways in which hours of
limitations may be service limitations may service limitations may
exceeded. be exceeded. be exceeded (reflecting
various ways of
violating new
consecutive-days
requirements).
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This proposed rule would leave intact the existing limitations set by
old section 21103 on the maximum number of hours in a duty tour and
minimum number of hours in a statutory off-duty period. An additional
limitation would be added on the number of consecutive days that a
passenger train employee may work, depending on the time of day of the
assignment. This differentiation takes into account the fact that work
during nighttime hours may present a greater risk for fatigue.
Conforming changes would also be made to the recordkeeping and
reporting requirements to accommodate the consecutive limitations on
consecutive days.
The limitations on maximum hours worked, minimum hours of rest, and
consecutive days would provide a ``floor,'' a minimum set of
limitations, within which the proposed rule would require railroads
subject to this proposed rule to analyze their schedules using a
validated and calibrated biomathematical model of human performance and
fatigue, and to mitigate any fatigue identified that exceeds the
fatigue threshold for the model. The fatigue threshold is a level of
fatigue at which safety may be compromised. As will be discussed below,
there are two models that currently have been validated and calibrated
using data from freight railroads, that can be used for the analysis
required by this proposed rule. The proposed rule also allows for the
development of new models. It
[[Page 16203]]
discusses procedures for validating and calibrating a model, and
provides that evidence of a new model's validation and calibration may
be submitted to FRA for approval.
The proposed rule would define as a ``Type 1 assignment'' any
assignment that requires an employee to report for duty no earlier than
4 a.m. and be released from duty no later than 8 p.m. Based on analysis
conducted during the formulation of this proposal, FRA proposes to
subject such assignments to a less restrictive consecutive-days
limitation, and to deem such schedules as presenting an acceptable
level of fatigue when otherwise in compliance with the limitations
established in this proposal, such that these schedules would not be
required to be submitted to FRA for approval, nor would the application
of fatigue mitigation tools to these schedules be required.
A ``Type 2 assignment'' would be any assignment having any period
of time during a calendar day before 4 a.m. or after 8 p.m. Within 180
days of the effective date of a final regulation in this rulemaking,
the proposed rule would require railroads to analyze the fatigue risk
of assignments they make to their passenger train employees. If the
analysis shows that a schedule does not exceed the fatigue threshold,
and the schedule is otherwise in compliance with the limitations of the
proposed rule and does not require the employee to be on duty for any
period of time between midnight and 4 a.m., the proposed rule would
allow that schedule to be treated as a Type 1 assignment for the
purposes of the consecutive-days limitation, and there would be no
requirement to mitigate fatigue in that schedule. However, for those
schedules that analysis indicates have a level of risk for fatigue
exceeding the fatigue threshold, the railroad would be required to
mitigate the fatigue. Railroads would also be required to complete
their analysis and submit any schedules with a risk exceeding the
fatigue threshold, and the mitigation tools the railroad applied to
mitigate the fatigue risk in those schedules to FRA for approval. In
addition, any schedule, the fatigue risk of which could not be
sufficiently mitigated to within the fatigue threshold, but which the
railroad deems operationally necessary, must also be submitted for FRA
approval, along with a declaration of operational necessity.
The proposed rule would also require railroads to submit any
schedule changes that would result in a schedule that would have been
required to be submitted if it were an original schedule, unless the
new schedule was the same as another schedule that had previously been
analyzed and approved.
Within 120 days of any railroad submission, FRA will notify the
railroad of any exceptions taken to its submission. While the proposed
rule would require FRA approval of the schedules and fatigue mitigation
tools, FRA expects that it would work with a railroad to make necessary
modifications to schedules or mitigation tools to minimize fatigue to
the greatest extent possible. FRA does not intend to dictate a required
schedule for operations. FRA seeks comment on the logistics of schedule
review and approval and the collaboration between FRA and the railroad
to address any areas of concern.
Railroads would be required to consult with affected employees and
applicable labor organizations regarding the analysis of work
schedules, fatigue mitigation tools, and submissions to FRA. Should the
employees or labor organizations disagree with the railroad, they have
the opportunity, under the proposal to file a statement for FRA's
consideration in reviewing the submission and determining whether to
approve it.
Finally, the proposed rule would require initial fatigue training,
addressing a list of subjects, and refresher training every three
years. This training may be combined with other training the railroads
are providing to their employees.
FRA has analyzed the economic impacts of this proposed rule against
two baselines. One is a ``status quo'' baseline that reflects present
conditions (i.e., primarily, the statutory hours of service provisions
(specifically, old section 21103) and, secondarily, the hours of
service recordkeeping and reporting regulations) that have applied, and
will continue to apply, to passenger railroads, with respect to their
train employees, until either the passenger railroads become subject,
with respect to the same employees, to either the freight hours of
service laws on October 16, 2011 or an FRA-issued hours of service rule
prior to that). The other baseline is a ``no regulatory action''
baseline that reflects what would happen in absence of this rulemaking
(i.e., the freight hours of service laws are applied to passenger
railroads with respect to their train employees).
With respect to the ``status-quo'' baseline, the FRA proposal would
impose costs that are higher than the quantified safety benefits. Costs
compared to the ``status quo'' baseline total $2.1 million
(undiscounted), $1.4 million (PV, 7 percent), and $1.7 million (PV, 3
percent). Quantified benefits compared to the ``status quo'' baseline
total $1.4 million (undiscounted), $.7 million (PV, 7 percent), and
$1.0 million (PV, 3 percent). However, there are additional benefits
that have not been quantified, but should be considered when comparing
the overall costs and benefits. For instance, safety and health
benefits will accrue from the transfer of knowledge to employees, their
families, friends and others with whom they may share the fatigue
knowledge they acquire from the required fatigue awareness training
programs. This fatigue awareness will result in more optimal decisions
regarding rest and sleep leading to less fatigue and improved safety
outside of passenger train operations during the course of daily
activities that may include the operation of motor vehicles or other
heavy machinery. This fatigue awareness will also result in proper
identification and treatment, if necessary, of fatigue symptoms.
Separately, accident avoidance will result in fewer unplanned delays to
passengers and freight commodities impacted by passenger train accident
and incidents that result in blocking one or more tracks for prolonged
periods. These costs can be very substantial given the need to
investigate accidents and often clear wreckage. Finally, there is the
non-quantified benefit of ensuring that passenger railroads do not
unknowingly require train employees to work schedules with unacceptable
high-fatigue risk levels. It is not unreasonable to expect that the
unquantified benefits will raise the benefits to a level quite
comparable to the costs. FRA also believes that the unquantified
benefits coupled with the quantified safety benefits compare very well
with the costs associated with meeting the intent of the statutory
mandate as proposed.
With respect to the ``no regulatory action'' baseline, FRA found
that its proposal represents a substantially more cost-effective
alternative for achieving the goal of identifying and mitigating
unacceptable fatigue risk levels and thus ensuring the safety of
passenger train operations. Over the 20-year period analyzed, the
undiscounted costs associated with the ``no regulatory action''
alternative total $75.5 million compared to $2.1 million for the FRA
proposal. Similarly, when discounted at 7 percent, the costs associated
with the ``no regulatory action'' alternative total $59.0 million
compared to $1.4 million for the FRA proposal and when discounted at 3
percent, the costs associated with the ``no regulatory action''
alternative total $66.8 million
[[Page 16204]]
compared to $1.7 million for the FRA proposal.
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No-action alternative NPRM
Cost description -----------------------------------------------------------------------------------------------------
Undiscounted PV@7% PV@3% Undiscounted PV@7% PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20% New Hires).... $31,237,549 $26,299,825 $28,705,081 0 0 0
New Engineer Training, Refresher (20% New Hires).. 4,599,050 2,278,431 3,327,802 0 0 0
New Conductor Training, Initial (20% New Hires)... 30,847,974 25,942,971 28,330,908 0 0 0
New Conductor Training, Refresher (20% New Hires). 8,636,745 4,278,146 6,249,071 0 0 0
Work Schedule Analysis (No-Reg Action)/Initial 189,723 177,312 184,198 ($126,482 + ($118,208 + ($122,798 +
Analysis of Work Schedules + Follow-up Analysis $240,316) = $122,175) = $175,894) =
and Fatigue Mitigation Plan Review (NPRM)........ $366,799 $240,382 $298,692
Biomathematical Model of Fatigue Software......... 0 0 0 417,500 268,723 337,240
Use of Rest Facilities............................ 0 0 0 30,988 28,961 30,086
Fatigue Training.................................. 0 0 0 1,329,673 841,748 1,065,188
-----------------------------------------------------------------------------------------------------
TOTAL (rounded)............................... 75,511,041 58,976,685 66,797,059 2,144,960 1,379,815 1,731,206
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FRA estimates that the recordkeeping and reporting costs per employee
record under the no-regulatory action alternative and FRA proposal will
be practically the same.
The estimated accident reduction benefits of the proposed rule
relative to the statutory hours of service requirements currently in
place include prevented accident damages, injuries, and fatalities. The
table below presents the estimates for the 20-year period of analysis.
Intercity Passenger, Commuter, Tourist and Excursion Railroads
[All track types]
----------------------------------------------------------------------------------------------------------------
VSL = $6 M VSL = $6 M VSL = $6 M
Accident reduction benefits undiscounted discounted PV@ discounted PV@
benefits 7% 3%
----------------------------------------------------------------------------------------------------------------
Property Damage.............................................. $829,366 $439,316 $616,943
Injuries..................................................... 120,547 63,854 89,672
Fatalities................................................... 429,088 227,288 319,187
--------------------------------------------------
TOTAL (rounded).......................................... 1,379,001 730,458 1,025,803
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FRA does not expect that the overall number of casualties and
property damages prevented under the proposed rule will differ from
those that would be prevented under the statutory freight hours of
service requirements.
FRA seeks comments on all aspects of the economic impacts of its
proposal.
II. Statutory Background and History
Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act. These
laws, codified as amended primarily at 49 U.S.C. 21101-21109, are
intended to promote safe railroad operations by limiting the hours of
service of certain railroad employees and ensuring that they receive
adequate opportunities for rest in the course of performing their
duties. Public Law 103-272 (1994). The Secretary is charged with the
administration of those laws, collectively referred to in this document
as the hours of service laws (HSL). This function has been delegated to
the FRA Administrator. 49 U.S.C. 103(c); 49 CFR 1.49(d).
Congress substantially amended the HSL on three occasions. The
first significant amendments occurred in 1969. Public Law 91-169, 83
Stat. 463. The 1969 amendments reduced the maximum time on duty for
train employees \1\ 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
[[Page 16205]]
transportation \2\ 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 to the point of final release is not included within
any of the categories of time on duty, Congress further provided that
it shall be counted as neither time on duty nor time off duty. 49
U.S.C. 21103(b)(4). This provision effectively created a third category
of time, known commonly as ``limbo time.''
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\1\ A ``train employee'' is defined at 49 U.S.C. 21101(5) and 49
CFR 228.5 as an individual engaged in or connected with the movement
of a train, including a hostler. FRA also interpreted this statutory
term in published interpretations in 49 CFR part 228, Appendix A,
providing: ``Train or engine service refers to the actual assembling
or operation of trains. Employees who perform this type of service
commonly include locomotive engineers, firemen, conductors,
trainmen, switchmen, switchtenders (unless their duties come under
the provisions of section 3) and hostlers.'' Other employees, such
as food service providers or sleeping car attendants, who may work
on passenger trains, but have no responsibility for assembling or
operating the train, are not within the definition of a train
employee, and are, as such, not generally covered by this proposed
rule, or any other hours of service limitations, but they would be
covered if they performed functions related to assembling or
operating the train, regardless of the employee's job title.
\2\ Deadheading is defined at 49 CFR 228.5 as the physical
relocation of a train employee from one point to another as a result
of a railroad-issued verbal or written directive.
---------------------------------------------------------------------------
In 1976, Congress again amended the HSL in several important
respects. Most significantly, Congress expanded the coverage of the
laws, by including hostlers within the definition of employees now
termed ``train employees'', and adding the section providing hours of
service requirements for ``signal employees'', now codified at 49
U.S.C. 21104. Congress also added a provision that prohibited a
railroad from providing sleeping quarters that are not free from
interruptions of rest caused by noise under the control of the
railroad, and that are not clean, safe, and sanitary, and prohibited
the construction or reconstruction of sleeping quarters in an area or
in the immediate vicinity of an area in which humping or switching
operations are performed. See Public Law 94-348, 90 Stat. 818 (1976).
Section 108 of the RSIA also amended the HSL in a number of
significant ways, most of which became effective July 16, 2009. See
Section 108 of Public Law 110-432, Div. A, and FRA Interim Statement of
Agency Policy and Interpretation at 74 FR 30665 (June 26, 2009). The
RSIA established a limit of 276 hours per calendar month for train
employees on service performed for a railroad and on time spent in or
waiting for deadhead transportation to a point of final release,
increased the quantity of the statutory minimum off-duty period after
being on duty for 12 hours in broken service from 8 hours of rest to 10
hours of rest, prohibited communication with train or signal employees
during certain minimum statutory rest periods, and established
mandatory time off duty for train employees of 48 hours after
initiating an on-duty period on six consecutive days, or 72 hours after
initiating an on-duty period on seven consecutive days. 49 U.S.C.
21103-21104. The RSIA also revised the definition of ``signal
employee'' to include contractors who perform the work of a signal
employee within the scope of the statute. 49 U.S.C. 21101(4).
However, Section 108(d) of the RSIA, which became effective on
October 16, 2008, provided that the requirements described above for
train employees would not go into effect on July 16, 2009, for train
employees when providing commuter or intercity rail passenger
transportation. 49 U.S.C. 21102(c). Section 108(d) further provided
that these train employees, who provide commuter or intercity passenger
rail service, would continue to be governed by the old HSL (as they
existed immediately prior to the enactment of the RSIA, at 49 U.S.C.
21103 prior to its 2008 amendment), until the effective date of
regulations promulgated by the Secretary. 49 U.S.C. 21102(c). However,
if no new regulations are in effect before October 16, 2011, the
provisions of Section 108(b), which applied to train employees, would
be extended to these employees at that time. Id.
Section 108(e) of the RSIA specifically provides the Secretary with
the authority to issue hours of service rules and orders applicable to
train employees engaged in commuter rail passenger transportation and
intercity rail passenger transportation (as defined in 49 U.S.C.
24102), that may be different from the statute applied to other train
employees. 49 U.S.C. 21109(b). It further provides that such
regulations and orders may address railroad operating and scheduling
practices, including unscheduled duty calls, communications during time
off duty, and time spent waiting for deadhead transportation or in
deadhead transportation from a duty assignment to the place of final
release, that could affect employee fatigue and railroad safety. Id.
Section 108(e) of the RSIA also provides:
[i]n issuing regulations under subsection (a) the Secretary shall
consider scientific and medical research related to fatigue and
fatigue abatement, railroad scheduling and operating practices that
improve safety or reduce employee fatigue, a railroad's use of new
or novel technology intended to reduce or eliminate human error, the
variations in freight and passenger railroad scheduling practices
and operating conditions, the variations in duties and operating
conditions for employees subject to this chapter, a railroad's
required or voluntary use of fatigue management plans covering
employees subject to this chapter, and any other relevant factors.
49 U.S.C. 21109(c). Section 21109(a) of title 49 of the U.S. Code
refers to other regulatory authority granted to FRA, as the Secretary's
delegate related to the HSL, which is not relevant to this proposed
rule. However, FRA believes that one of the goals of the present
rulemaking is to identify and reduce fatigue for the employees who will
be covered by the final rule. Therefore, as will be described below,
FRA has based these proposed regulations on scientific research related
to fatigue and fatigue abatement, as applied to railroad scheduling
practices and operating conditions for train employees providing
commuter and intercity rail passenger transportation. Section III below
will describe the primary scientific foundation and support for the
requirements contained in this proposed rule. In addition, scientific
considerations will also be addressed in discussion of various elements
of this proposal, including in the discussion of specific provisions in
the Section-by-Section Analysis below.
III. Scientific Background
Most mammals, including human beings, have an approximately 24-hour
sleep-wake cycle known as a ``circadian rhythm.'' Rapid changes in the
circadian pattern of sleep and wakefulness disrupt many physiological
functions such as hormone releases, digestion, and temperature
regulation. Human function can be affected, performance may be
impaired, and a general feeling of debility may occur until realignment
is achieved. Jet lag when flying east is the most commonly experienced
syndrome similar to the experience of consistently working on a less-
than-24-hour cycle.
Fatigue risk in an industry that operates 24 hours a day and 7 days
per week is not just dependent on how many hours per day a person is
permitted to work, or the amount of time that a person is required to
be off duty between periods of work. Other significant factors in the
level of fatigue risk include the time of day that an employee works
and the number of consecutive days that an employee works. In addition,
the quantity and quality of sleep vary with the time of day. Because of
natural circadian rhythms and environmental and social factors, most
people are able to achieve the best quality and most restful sleep at
night.
As previously mentioned, the statutory hours of service
requirements currently in effect for train employees providing commuter
and intercity rail passenger transportation establish a maximum on-duty
time of 12 hours in a 24-hour period, and a minimum off-duty time of 8
hours in a 24-hour period, or 10 hours after a period of 12 consecutive
hours on duty. Statutory requirements applicable to train
[[Page 16206]]
employees on freight railroads, as revised by the RSIA, include a
limitation on the number of consecutive days on which a train employee
may initiate an on-duty period. However, the HSL for the railroad
industry have never, up to the present day, differentiated in their
requirements based on the time of day in which service is performed, or
the time of day that a period is available for rest.
As will be discussed further below, FRA conducted two work/rest
diary studies with train employees in freight and passenger operations.
Data from these studies indicate that train employees get more sleep
than the average U.S. adult. While 46 percent of U.S. adults get less
than seven hours of sleep, only 35 percent of freight train employees
and 41 percent of passenger train employees get less than seven hours
of sleep. This amount of sleep results in a level of fatigue that
increases accident risk by 21 to 39 percent.\3\ Moreover, certain
operational characteristics of commuter and intercity passenger service
mitigate the fatigue associated with this amount of sleep loss relative
to freight service. For example, many train employees on commuter and
intercity passenger railroads work scheduled assignments, in which they
begin and end their work day at approximately the same time each day.
These employees also usually begin and end their duty tour at the same
location, meaning that they can go home at the end of their work day
and sleep in their own beds. In addition, very few scheduled
assignments on most railroads operate during late night hours, and many
of them result in duty tours significantly shorter than the maximum
hours that the employee would be allowed to remain or go on duty under
the existing law or this proposed regulation. Because these
characteristics are more likely to allow for periods of rest that are
consistent with normal circadian rhythms, they will provide better
opportunities for rest, and less risk for fatigue. In addition, as will
be discussed further below, two FRA work/rest diary studies demonstrate
that levels of fatigue are not equivalent in freight and passenger
operations (Work Schedules and Sleep Patterns of Railroad Train and
Engine Service Workers http://www.fra.dot.gov/downloads/Research/ord0922.pdf (which included data from a small number of train employees
in passenger operations); Work Schedules and Sleep Patterns of Railroad
Train and Engine Employees in Passenger Operations [in review--the
diary study conducted to support this rulemaking]).
---------------------------------------------------------------------------
\3\ See Hursh, et al. infra at footnote 8.
---------------------------------------------------------------------------
For all of these reasons, FRA has determined that some of the
specific limitations that Congress applied to train employees on
freight railroads in the RSIA are not appropriate for train employees
on commuter and intercity passenger railroads.
However, FRA also recognizes that some train employees covered by
this proposed rule will experience a level of fatigue at which safety
may be compromised. This is particularly true of those employees who do
not work scheduled assignments and may not return home at the end of
each duty tour, or who are required to perform service during late
night hours, or to work duty tours of the maximum length allowed by
existing requirements, with only the minimum required rest between duty
tours. FRA has attempted, in this proposed regulation, to specifically
address those employees who are most at risk for fatigue, even when in
compliance with specific hours of service limitations. As will be
discussed below, research that resulted in the validation of fatigue
models using data from freight railroads demonstrated that fatigue
increases the risk of a human factors accident. In addition, as will be
discussed below, diary data show the risk of fatigue in passenger
operations. The risk must be measured in order to be managed, and
fatigue models allow for that measurement.
An effective proactive fatigue risk management program needs to
balance the amount of work performed against when the work is
performed, how long a work schedule is in effect in terms of hours in a
day, consecutive days, and other variables. This proposed regulation
would address fatigue risk by going beyond establishing limitations on
the amount of time that an employee may work, and the minimum amount of
time that an employee must be off duty between duty tours. It would
additionally require the analysis of the fatigue risk in employee work
schedules using a biomathematical model of performance and fatigue,
identification of those schedules that present an unacceptable level of
fatigue risk, and mitigation of the identified fatigue risk. In
addition, the proposed regulation would establish different
requirements for schedules of employees who operate trains during the
late night hours in which the fatigue risk is greatest. Thus, the
proposed rule would specifically address those schedules the
characteristics of which present a risk for fatigue, even when
otherwise in compliance with required maximum on-duty and minimum off-
duty periods and other limitations. These risks would not be addressed
by a regulation that simply established maximum on-duty and minimum
off-duty periods, just as they are not addressed by the existing
statutory requirements.
A. Validated and Calibrated Fatigue Models \4\
---------------------------------------------------------------------------
\4\ For a discussion of existing models and their application,
see Dean II, D.A., Fletcher, A., Hursh, S.R. and Klerman, E.B.,
Developing Models of Neurobehavioral Performance for the ``Real
World'', J. Biol Rhythms 2007; 22; 246.
---------------------------------------------------------------------------
A biomathematical model of performance and fatigue that has been
properly validated and calibrated predicts accident risk based on
analysis of identified periods of wakefulness and periods available for
sleep.
``Validation'' of a biomathematical model of human performance and
fatigue means determining that the output of a biomathematical model of
human performance and fatigue actually measures human performance and
fatigue. There are two dimensions to this validation. The first is that
the model must be demonstrated to be consistent with currently
established science in the area of human performance, sleep, and
fatigue. The second part of the validation process involves determining
that the model output has a statistically reliable relationship with
the risk of a human factors accident caused by fatigue, and that the
model output does not have such a relationship with nonhuman factors
accident risk.
In general, and for the purpose of compliance with this rule, a
model will be validated if statistical analyses demonstrate the
existence of a statistically significant relationship between the
output of the model and the human factors accident risk ratio, and the
absence of such a relationship between the output of the model and the
nonhuman factors accident risk ratio. The presence of a statistically
significant relationship is evaluated by way of the correlation
coefficient (r) with statistical significance requiring a p-value of
less than 0.05. The first step is the selection of bin \5\ edges that
correspond to varying levels of fatigue (e.g., the ``not fatigued'' bin
and the ``severely fatigued'' bin). The ``not fatigued'' bin is
determined by the output of the model when sleep occurs or can occur
for 8 or more hours, without abrupt phase changes, between 10 p.m. and
10 a.m. This is similar to the amount of fatigue produced by the
standard 9 a.m. to 5 p.m., Monday
[[Page 16207]]
through Friday work week. The performance bin ``severely fatigued'' is
determined by the output of the model when there is total sleep
deprivation for 42.5 hours after waking at 7 a.m. This is similar to
the amount of fatigue produced by a permanent night shift schedule with
six consecutive 12-hour work periods followed by 1 day off. These two
bins are the ``anchor'' bins for the validation procedure. Four
additional bins, equally spaced between the anchor bins, accommodate
the intermediate fatigue scores.
---------------------------------------------------------------------------
\5\ In statistics, a ``bin'' is a discrete, nonoverlapping
interval of a variable. Here, the variable is the level of fatigue.
---------------------------------------------------------------------------
Calibration is, in general, the assignment of numerical values to
represent aspects of empirical observations. In the case of human
fatigue and performance, the calibration of a fatigue scale would start
with the assignment of values to ``not fatigued,'' and the most
fatigued condition might be described as ``severely fatigued.'' The
calibration process starts during the validation process with the
assignment of model output values to anchor bins for ``not fatigued''
and ``severely fatigued.'' The next step consists of determining the
fatigue threshold. Given a scale for human fatigue and performance and
a relationship between that scale and human factors accident risk, a
final calibration point would be to determine the fatigue value at
which fatigue becomes unacceptable because the increase in accident
risk at that level compromises safety. This is the fatigue threshold.
The procedure for determining the fatigue threshold consists of
several computations. First, the cumulative risk for the six fatigue
score bins is determined for human factor and nonhuman factor
accidents. Next, a 95-percent confidence interval is calculated for the
cumulative risk in each bin. Finally, the fatigue score bin in which
human factor cumulative risk exceeds both human factors Accident Risk
Ratio = 1 and the mean non-human factors risk is determined. This is
the fatigue threshold for the model.
The accident risk is defined as an odds ratio, expressed as a
percentage of accidents occurring when employees involved in the
accident are within a given range of fatigue, divided by the percentage
of time spent by the individual working in that given range of
predicted fatigue. For example, if 20 percent of accidents occur when
an employee is within a particular range of predicted fatigue, and 10
percent of an employee's time in a given duty tour is spent within that
range of predicted fatigue, then that specific range of predicted
fatigue has doubled the accident risk.\6\
---------------------------------------------------------------------------
\6\ For more information on the proper procedures for validation
and calibration of a biomathematical model of performance and
fatigue, see Raslear, T.G., Criteria and Procedures for Validating
Biomathematical Models of Human Performance and Fatigue; Procedures
for Analysis of Work Schedules. (A copy of this document has been
placed in the docket for this rulemaking.)
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1. Fatigue Avoidance Scheduling ToolTM Model
FRA-sponsored research resulted in the development of a Sleep,
Activity, Fatigue, and Task Effectiveness (SAFTE) model and Fatigue
Avoidance Scheduling ToolTM (FAST) that have been validated
and calibrated using data from freight railroads. FAST is a
biomathematical model of performance and fatigue that can be used to
assess the risk of fatigue in work schedules and to plan schedules that
ameliorate fatigue. The model takes into account the time of day when
work occurs (circadian rhythm) and opportunities for sleep based on
work schedules.\7\
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\7\ For a description of the FAST model, see Hursh, S. R.,
Redmond, D. P., Johnson, M. L., Thorne, D. R., Belenky, G., Balkin,
T. J., Storm, W. F., Miller, J. C., and Eddy, D. R. (2004). Fatigue
models for applied research in warfighting. Aviation, Space, and
Environmental Medicine, 75, A44-53.
---------------------------------------------------------------------------
The model validation used work histories from 400 human factors
accidents and 1,000 non-human factors accidents on freight railroads.
The model has not specifically been validated using passenger railroad
accidents, because there were not enough such accidents in the relevant
time period to obtain statistically significant results, and had the
period of analysis been extended sufficiently to capture enough
passenger railroad accidents, much of the needed work schedule data for
the employees involved in those accidents would no longer be available.
However, FAST measures fatigue and effectiveness, based on laboratory
analysis of cognitive and sensory motor functions during sleep
deprivation, which are not job specific. Furthermore, the tasks
associated with freight and passenger train operations are actually
highly similar. In addition, there was no statistically significant
difference between the proportion of accidents in categories associated
with fatigue, between freight and passenger railroads. For all of these
reasons, FRA has determined that the model is valid for use in
evaluating fatigue levels in passenger railroad schedules for the
purposes of this proposed rule. Indeed, the FAST model has been used by
other entities, including the military and the airline industry.
FAST was used to calculate cognitive effectiveness (the inverse of
fatigue) on a scale from 0 (worst) to 100 (best) using the 30-day work
histories of locomotive engineers prior to the accidents and at the
time of the accidents.\8\ Cognitive effectiveness is a metric that
tracks speed of performance on a simple reaction time test and is
strongly related to overall response speed, vigilance, and the
probability of lapses.
---------------------------------------------------------------------------
\8\ Hursh, S. R., Raslear, T. G., Kaye, A. S., and Fanzone, J.
F. (2006). Validation and calibration of a fatigue assessment tool
for railroad work schedules, summary report (Report No. DOT/FRA/ORD-
06/21). Washington, DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0621.pdf; Hursh, S. R.,
Raslear, T. G., Kaye, A. S., and Fanzone, J. F. (2008). Validation
and calibration of a fatigue assessment tool for railroad work
schedules, final report (Report No. DOT/FRA/ORD-08/04). Washington,
DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0804.pdf.
---------------------------------------------------------------------------
The analysis revealed a significant high correlation between
reduced predicted crew effectiveness (as a result of increased fatigue)
and the risk of a human factor accident for freight railroads. As was
discussed above, although FAST was validated using freight railroad
accidents, the cognitive and sensory motor functions it measures are
not job specific, so the resulting determinations of effectiveness and
accident risk are equally applicable to passenger railroads. There was
no significant relationship between increased fatigue and non-human
factor accidents. In addition, the data showed that there is a reliable
relationship between the time of day of human factor accidents and the
expected, normal circadian rhythm. The circadian pattern was not
reliably present for non-human factor accidents. The risk of a human
factor accident is increased by 20 percent by working during the hours
from midnight to 3 a.m. Id.
The study showed that there is an elevated risk of human factors
accidents at any effectiveness score below 90, and accident risk
increased as effectiveness decreased. The risk of a human factors
accident is increased by 21 percent at effectiveness scores at or below
70, which is a level of risk elevated beyond chance level, and greater
than the mean risk of non-human factor accidents. Twenty-three percent
of the freight accidents examined occurred when an employee involved
was at or below an effectiveness score of 70. The study also found that
cause codes associated with accidents that occurred at or below an
effectiveness score of 70 showed an over-representation of the type of
human factors accident that might be expected of a fatigued crew, such
as passing a signal indicating stop, or
[[Page 16208]]
exceeding the maximum authorized speed, which confirmed that the
detected relationship between accident risk and predicted effectiveness
is meaningful.
Other research, comparing the effects of alcohol and sleep
deprivation on performance on a driving simulator, has also indicated
that an effectiveness score of 70 is the rough equivalent of a 0.08
blood alcohol level, or the equivalent of being awake for 21 hours
following an 8-hour sleep period the previous night.\9\ However, direct
comparisons between the performance effects of alcohol and fatigue must
be made with caution. Some aspects of a complex task, such as driving
an automobile simulator, show a high degree of congruence between the
effects of alcohol and fatigue, while the effects of alcohol and
fatigue on other aspects of the same task are highly dissimilar. For
instance, Arnedt et al. (2001) found that tracking, tracking
variability, and speed variability were all similarly affected by
alcohol and fatigue in a driving simulator. However, Arnedt et al.
found that, while subjects drove faster after consuming alcohol,
fatigue did not affect driving speed. In addition, alcohol produced a
more rapid deterioration in performance in off-road events (incidents
in which the simulated vehicle was driven off the road) than did
fatigue. Thus, while it is clear that alcohol and fatigue can both
cause deterioration in task performance, the effect of alcohol is often
more severe and extensive.\10\
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\9\ See Arnedt, J.T., Wilde, G.J., Munt, P.W., and MacLean, A.W.
(2001). How do prolonged wakefulness and alcohol compare in the
decrements they produce on a simulated driving task? Accident
Analysis and Prevention, 33, 3, 337-44; Dawson, D., and Reid, K.
(1997). ``Fatigue, alcohol and performance impairment.'' Nature 388,
23.
\10\ See also Williamson, A., Feyer, A.-M., Friswell, R., and
Finlay-Brown, S. (2000). Development of Measures of Fatigue: Using
an Alcohol Comparison to Validate the Effects of Fatigue on
Performance (Road Safety Research Report CR 189). Canberra,
Australia: Australian Transport Safety Bureau.
---------------------------------------------------------------------------
As a result of this analysis, a fatigue threshold (the fatigue
level at which there is an unacceptable accident risk due to fatigue)
of 70 was established for FAST.\11\ Accordingly, an effectiveness score
of less than 70 would exceed that threshold for the purposes of this
proposed regulation.\12\
---------------------------------------------------------------------------
\11\ See Hursh, et al., supra note 8.
\12\ A 21-day free trial of the FAST Model can be downloaded at
http://fatiguescience.com/products/fast.
---------------------------------------------------------------------------
2. Fatigue Audit InterDyne \TM\ Model \13\
---------------------------------------------------------------------------
\13\ For a description of FAID, see Roach, G. D., Fletcher, A.,
and Dawson, D. (2004). A model to predict work-related fatigue based
on hours of work. Aviation, Space, and Environmental Medicine, 75,
A61-9.
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Another biomathematical model of performance and fatigue that has
recently been validated and calibrated is the Fatigue Audit InterDyne
\TM\ (FAID). FAID was validated and calibrated using the same accident
data from freight railroads as FAST used.\14\ For the same reasons
described above with regard to FAST, FRA has determined that FAID is
valid for use in evaluating fatigue levels in passenger railroad
schedules for the purposes of this proposed rule.
---------------------------------------------------------------------------
\14\ For details see Tabak, B., and Raslear, T. G. (2010).
Procedures for Validation and Calibration of Human Fatigue Models:
The Fatigue Audit InterDyne (FAID) Tool (Report No. DOT/FRA/ORD-10/
14). Washington, DC: U.S. Department of Transportation. (http://www.fra.dot.gov/rpd/downloads/TR_Procedures_or_Validation_and_Calibration_final.pdf)
---------------------------------------------------------------------------
Analysis of the FAID scores resulted in a statistically significant
correlation for both human factor and non-human factor accidents, which
meant that FAID could be validated for freight railroads, and as
explained above FRA has determined that it is equally applicable to
passenger railroads. The FAID model was validated with scores of 40 and
120, corresponding to ``not fatigued'' and ``extremely fatigued.'' FAID
scores showed a statistically reliable relationship with the risk of a
human factors accident but did not show such a relationship with other
accident risk.
However, in analyzing the FAID data for the purpose of calibration,
none of the confidence intervals demonstrated a statistically
significant increase in cumulative risk. This was true for both human
factors and non-human factors accidents. An alternative procedure,
using FAST, which was already a validated and calibrated model, allowed
for calibration of FAID. The alternative procedure required correlating
FAST and FAID scores. The calibration of FAST is the equivalent of
fundamental measurement in physics, while the calibration of FAID by
reference to FAST is the equivalent of derived measurement, both of
which are valid measurement methods.\15\
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\15\ Kranz, D.H., Luce, R.D., Suppes, P., and Tversky, A.
(1971). Foundations of measurement. Volume 1. Additive and
polynomial representations. New York: Academic Press.
---------------------------------------------------------------------------
Correlation of individual FAST and FAID scores found a high level
of variation in the individual FAST scores within a FAID bin, so
linking fatigue scores on an individual level was not feasible. An
alternative method is to calculate confidence intervals for the
population or mean score. Since biomathematical models are known to be
more accurate at predicting population behavior rather than individual
behavior, the confidence intervals of the bin means were compared. When
analyzed at the population level, the regression line for FAID scores
as a function of FAST scores, or FAST scores as a function of FAID
scores, has an r of 0.909.
The calibration of FAID indicated that FAID scores above 80
indicate a severe level of fatigue, and that FAID scores between 70 and
80 indicate extreme fatigue. A fatigue threshold (as with FAST, the
fatigue level at which there is an unacceptable accident risk due to
fatigue) of 60 was established for FAID, and an effectiveness score
greater than 60 would exceed that threshold.\16\
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\16\ A free trial of the FAID Model can be downloaded at http://www.faidsafe.com/products-main.htm#faid330.
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FRA believes that the prediction of the effectiveness of an
employee's performance may be used to improve work schedules, to alter
to the extent possible the timing of safety-critical tasks to coincide
with periods of optimal performance, and to apply countermeasures to
reduce the fatigue risk, and the corresponding risk of accidents or
other errors associated with that fatigue. It is for this reason that
FRA has concluded that it is appropriate to require analysis of
employee work schedules using a validated and calibrated
biomathematical model of performance and fatigue, as an essential
component of these proposed hours of service regulations.
As will be discussed in detail below, this proposed rule would
require the railroads to mitigate the fatigue resulting from following
a certain work schedule, and submit the schedules and fatigue
mitigations to FRA for approval. These requirements will be triggered
when analysis reveals that an employee working a given schedule will
experience 20 percent or more of the employee's working time at an
effectiveness score at or exceeding the fatigue threshold under the
model used for analysis; that is to say, at an effectiveness score of
70 or less determined by FAST, or at an effectiveness score of 60 or
greater as determined by FAID. The applicable effectiveness score could
be different if a railroad were using another model that had been
properly validated and calibrated. FRA encourages the development,
validation, and calibration of alternative models, and their submission
to FRA for approval under proposed Sec. 228.407(c), by any
[[Page 16209]]
railroad desiring to use an alternative model for the analyses required
by this proposed rule.\17\
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\17\ See Raslear, supra note 6 for information on procedures for
validating and calibrating a model.
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B. Diary Study of Train Employees on Commuter and Intercity Passenger
Railroads
To further support this proposed rule, FRA conducted primary
research specifically directed to train employees of commuter and
intercity passenger railroads (OMB Control Number 2130-0588). The
results of the study provided valuable evidence of the actual levels of
fatigue experienced by train employees on commuter and intercity
passenger railroads, because it allowed analysis of the actual periods
of time that an employee reports having worked, slept, or spent in
other activities during the period analyzed, which may be different
from the assigned schedule and presumed periods available for sleep.
FRA had previously conducted similar surveys for signal employees
(OMB Control Number 2130-0558), maintenance of way employees (OMB
Control Number 2130-0561), dispatching service employees (OMB Control
Number 2130-0570), and train employees generally (OMB Control Number
2130-0577). The purpose of these studies was to characterize, using a
consistent statistical survey methodology, the work schedules and sleep
patterns of each unique group of railroad workers. Because each of
these studies used a random sample of each worker population, they
provide defensible and definitive data on work/rest cycle parameters
and fatigue for the respective group. The small number of train
employees on commuter and intercity passenger railroads represented in
the previous study of train employees generally did not allow for
meaningful conclusions with regard to this subpopulation of train
employees. As a result, the present study, specifically focused on this
population, was necessary. The present study of train employees on
commuter and intercity passenger railroads used the same methodology as
the previous studies.
The primary objectives of this study were to design and conduct a
survey to collect work schedule and sleep data from train and engine
service (T&E) employees, and to analyze the data to characterize the
work/sleep patterns and to identify work schedule-related fatigue
issues. The goal was to characterize train employees on commuter and
intercity passenger railroads as a group, not to characterize such
employees on a specific railroad.
The research described in this report had three phases:
preparation; field data collection; and data analysis. Since no
existing source would provide answers to the study's research
questions, a survey of train employees was the only means to obtain the
necessary data. The preparation phase included securing approval from
the Office of Management and Budget for the proposed data collection.
Representatives from the Brotherhood of Locomotive Engineers and
Trainmen (BLET) and the United Transportation Union (UTU) worked
closely with the researchers throughout the study.
The study used two survey instruments--a background survey and a
daily log. Survey participants used the background survey to provide
demographic information, descriptive data for their type of work, type
of position, and work schedule, and a self-assessment of overall
health. The daily log provided the means for survey participants to
record their daily activities in terms of sleep, personal time, time
spent commuting to and from work, work time, limbo time, and periods of
interim release. Study participants also provided self-assessments of
the quality of their sleep and their level of alertness at the start
and end of each work period. This study used a 14-day data-collection
period to accommodate those train employees who did not work a regular
schedule.
Researchers drew a random sample of 1275 train employees on
commuter and intercity passenger railroads. The size of the sample from
each of the two unions was proportional to that organization's
representation in the total number of eligible participants. Retirees,
full-time union officials, and anyone currently holding a railroad
management position were not eligible for the study. Determination of
the sample size assumed a 95-percent confidence interval on the
estimates for mean sleep time, an error tolerance of 15 percent, and a
33-percent response rate.
Mailing of the survey materials occurred on December 31, 2009. Ten
days later, every potential survey participant received a postcard,
signed by his or her union president, to encourage the employee to
participate in the survey. Three weeks after distribution of the
materials, a second postcard thanked those who had decided to
participate and encouraged those who had not yet done so to
participate.
The overall response rate for the survey was 21 percent. Of the 269
complete responses, 13 could not be part of the analysis because either
there were problems with the respondents' log books, or the respondents
were not in crafts covered by the survey. (It was not possible to
identify these individuals from the information contained in union
membership databases.) The nonresponse-bias study based on age found no
difference between survey respondents and nonrespondents.
The results of the study support the approach that FRA has taken in
this rule. For instance, the results are consistent with the separate
analysis during the development of this proposed rule of schedules
provided by commuter and intercity passenger railroads, indicating that
a fairly small percentage of employee work time (about 1.8 percent)
exceeds the fatigue threshold. The proposed rule would focus additional
attention and effort specifically on those schedules presenting this
fatigue risk by requiring the mitigation of that risk, while schedules
not at risk for fatigue would not be subject to these additional
requirements.
In addition, when compared to the results of the previous study
that primarily considered train employees on freight railroads, the
results support a significantly different approach. Train employees on
freight railroads were found to experience some level of fatigue
(equivalent to an effectiveness score <90 using the FAST model) during
73 percent of their work time, while train employees on commuter and
intercity passenger railroads experienced this level of fatigue during
14 percent of their work time. The substantive limitations imposed on
train employees on freight railroads in the RSIA would largely be
unnecessary for the commuter and intercity passenger railroad industry,
as well as ineffective to target the specific areas where there is a
fatigue risk.
IV. Railroad Safety Advisory Committee (RSAC) Process
A. Overview of the RSAC
In March 1996, FRA established RSAC,\18\ which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major stakeholder groups,
including railroads, labor organizations, suppliers, and manufacturers,
and other interested parties. A list of member groups follows:
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\18\ For more information about RSAC activities, see http://rsac.fra.dot.gov/. Meetings of the full RSAC are also announced by
publication in the Federal Register.
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[[Page 16210]]
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 Employes Division
(BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
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 plays an active role at the working group level in discussing
the issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward RSAC recommendations.
However, FRA is in no way bound to follow the recommendation, and the
agency exercises its independent judgment on whether the recommended
rule achieves the agency's regulatory goal, is soundly supported, and
is in accordance with policy and legal requirements. Often, FRA varies
in some respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on a recommendation for
action, FRA moves ahead to resolve the issue through traditional
rulemaking proceedings.
B. RSAC Proceedings in This Rulemaking
FRA proposed Task No. 08-06 to the RSAC on April 2, 2009. The RSAC
accepted the task, and formed the Passenger Hours of Service Working
Group (Working Group) for the purpose of developing implementing
regulations for the hours of service of train employees of commuter and
intercity passenger railroads under the RSIA.
The Working Group is comprised of members from the following
organizations:
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) railroads, Metra
Electric District, Norfolk Southern Corporation (NS) railroads, and
Union Pacific Railroad Company (UP);
BLET;
BRS;
FRA;
Federal Transit Administration (FTA);
IBEW;
Long Island Rail Road (LIRR);
Metro-North Commuter Railroad Company (Metro-North);
National Association of Railroad Passengers (NARP);
National Railroad Construction and Maintenance
Association;
National Transportation Safety Board (NTSB);
Southeastern Pennsylvania Transportation Authority
(SEPTA);
Tourist Railway Association; and
UTU.
The Working Group completed its work after six meetings and several
conference calls. The first meeting of the Working Group took place on
June 24, 2009, in Washington, DC. At that meeting the group heard
several presentations on fatigue science, including a report on the
diary study that was to be conducted as described above. The group
discussed the general approach for the rulemaking, and it was agreed
that analysis of the railroads' work schedules would support the
rulemaking. Subsequent meetings were held on February 3, 2010; March 4,
2010; April 6, 2010; May 20, 2010; and June 29, 2010. In addition, a
Task Force was formed that met on January 14-15, 2010, March 30-31,
2010, and April 28-29, 2010.
At the conclusion of the June 29, 2010 meeting, the Working Group
voted to approve a draft of the proposed rule text, with the exception
of two sections, to which the group had suggested numerous edits. It
was agreed that FRA would address the remaining issues in those
sections and circulate a revised draft, on which the group would vote
electronically. After the revised draft was produced, the Task Force
had several conference calls to discuss the revised provisions, and FRA
also participated in several calls with task force members. Ultimately,
on September 22, 2010, the Working Group voted unanimously to agree to
the rule text presented in this proposed rule. The group's
recommendation was presented to the full RSAC on
[[Page 16211]]
September 23, 2010. The full RSAC agreed to vote electronically on the
rule text recommended by the Working Group, and ultimately accepted its
recommendation. Although only a majority was required, the vote was
unanimous.\19\
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\19\ The rule text voted on by the full RSAC and recommended to
FRA is available on the RSAC Web site.
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Following the vote of the Working Group and the full RSAC, FRA
recognized the need to make two changes to the recordkeeping and
reporting requirements in 49 CFR 228.11 and 228.19, to accommodate a
new substantive limitation contained in the proposed rule as approved
by the RSAC. While the RSAC voted in favor of the substantive
requirement in question, and all other elements of the proposed rule,
the corresponding amendments to the recordkeeping and reporting
provisions were not presented to them.
With the exception of the proposed revisions to 49 CFR 228.11 and
228.19, this proposed regulation is consistent with the recommendation
of the Working Group and the full RSAC.
At the February 3, 2010, meeting, FRA presented a strawman draft of
the rule text, identifying the basic concepts and direction of the
rulemaking. Based on discussions at that meeting, a more complete draft
was presented at the March 4, 2010 meeting, and the text was refined
and supplemented at subsequent meetings. In addition, during the course
of the Working Group and Task Force meetings, a number of significant
issues were discussed that resulted in changes in the proposed rule
text or common understanding of the intent of specific provisions that
should be explained. Some such issues will be explained in this
section, while other subjects of discussion by the Working Group and
the Task Force will be discussed in the Section-by-Section Analysis at
Section V of the preamble.
In addition, as discussed below in the Regulatory Impact and
Notices section of the preamble, Section VI, FRA has considered the
costs and benefits of this proposed rule. Implementation costs would be
associated with analyzing work schedules, training, and rest
facilities. However, relative to the ``no regulatory action''
alternative in which passenger railroad train employees would become
subject to the new HSL in effect for freight train employees, the
proposed rule would result in a cost savings of $57.6 million
(discounted at 7 percent) and $65 million (discounted at 3 percent)
over a 20-year period. The quantified accident reduction benefits
achieved under both the ``no regulatory action'' baseline and the
proposed rule total $1.4 million (undiscounted), $0.7 million (PV, 7
percent), and $1.0 million (PV, 3 percent). FRA does not expect that
the overall number of casualties and property damages prevented will
differ under either scenario. Implementation of the proposed rule would
yield these benefits at lower cost. While the proposed rule has lower
monetized benefits than costs, when compared to the current HSL, FRA
believes that there are unquantified benefits that could close the gap.
C. Significant Task Force Contributions
As was noted above, the Working Group created the Task Force,
comprised of representatives from BLET, UTU, APTA, AAR, and FRA. The
Task Force met between Working Group meetings to provide additional
input and advice to the Working Group on the approach to the proposed
rule, specific concerns as to the rule text, and implementation of the
proposed regulatory requirements. Although the Task Force was extremely
helpful throughout the development of the proposed rule in offering
suggestions as to the rule text, its primary contributions were in the
areas of schedule analysis and the creation of a fatigue mitigation
tool box.
1. Schedule Analysis
The diary study discussed in Section III B of the preamble provided
valuable evidence of the actual levels of fatigue experienced by train
employees on commuter and intercity passenger railroads. However, since
many of these employees work scheduled assignments, it was also
valuable to evaluate the schedules themselves, to get a sense of the
parameters of those assignments that would result in fatigue exceeding
the threshold, which informed some of the provisions of this proposed
rule. The Task Force assisted the Working Group by evaluating the
schedules and presenting their results to the Working Group.
APTA hired a consultant to analyze the schedules provided by the
railroads that were worked by their train employees. The railroads
provided all of their schedules for the month of July 2009. The
schedules were analyzed using the FAST model, including conservative
assumptions about the sleep that would be obtained by an employee
working that schedule. For example, the analyses assumed that employees
did not sleep during periods of interim release.
The analyses that the Task Force presented to the Working Group
demonstrated that most schedules did not result in an employee's
exceeding the fatigue threshold. This was true even for schedules in
which the employee reported for duty at 4 a.m. and was relieved from
duty at 8 p.m., for a 16-hour duty tour that included a total of 12
hours on duty and a 4-hour interim release. Most of the problematic
schedules identified through the analysis presented by the Task Force
involved duty tours in which some time was spent working during late
night hours. These analyses formed the parameters for FRA's definitions
of ``Type 1 assignment'' and ``Type 2 assignment'' for which different
requirements would apply in this proposed rule.
2. Fatigue Mitigation Tool Box
Because a major aspect of this proposed rule would require
mitigation of the fatigue risks identified in those schedules that
resulted in an employee's exceeding the fatigue threshold, and
experiencing a level of fatigue at which safety may be compromised, the
Task Force assisted the Working Group by developing a fatigue
mitigation tool box, a document that would illustrate the variety of
ways in which a railroad might seek to address the fatigue risks in its
schedules. (A copy of this document has been placed in the docket for
this rulemaking.) The tool box itself is not intended to become a part
of the regulatory text. Instead, it is intended to provide the variety
of methods from which a railroad may propose, in its plans submitted to
FRA for approval, to mitigate identified fatigue risks in its work
schedules, to bring them into compliance with the regulation. It is
expected that not every tool will be appropriate for each railroad, or
for individual locations or schedules on a given railroad, and that the
railroads, in consultation with their labor organizations, will choose
the mitigation tools most appropriate to each circumstance, subject to
FRA review and approval. In addition, the tool box is expected to be a
living document, as the available fatigue mitigation tools will change
over time as fatigue science continues to develop, or as railroad
operations change, either generally or as related to specific
properties or schedules. The tool box as a whole will not be approved
by FRA, nor will it be maintained by FRA as it evolves. FRA will
evaluate the appropriateness of specific fatigue mitigation tools as
they are submitted to FRA as part of a railroad's plan to mitigate
fatigue risks associated with particular schedules.
[[Page 16212]]
This section will describe a representative sample of the variety
of the tools included in the tool box developed by the Task Force,
which may be applied to mitigate fatigue risk. This is not intended to
be an all-inclusive list of the possible fatigue mitigation tools. A
railroad is free to use any fatigue mitigation tool that it believes is
effective in reducing the fatigue risk found in its schedules, subject
to FRA's review and approval.
Perhaps the easiest mitigation tool to understand that was
identified by the Task Force is the adoption and implementation of a
napping policy, and the provision of facilities for employees to take a
nap during interim releases or other periods between assignments that
may be available for rest during a duty tour. Addition of a period of
sleep to the employee's schedule would have a clear impact on the
employee's current level of fatigue, and the level of fatigue that the
employee would be expected to experience throughout the remainder of
the duty tour after a nap, which might reduce the risk of fatigue
sufficiently to bring the schedule and the employee's effectiveness
score within the fatigue threshold.
To use this tool to mitigate fatigue, a railroad would be required
to identify, in consultation with its labor organizations or employees,
the facilities that would be available for the purpose of rest during
the duty tour, that are appropriate to the schedule and location at
issue. This would not always require a bunk or a quiet room, though
this might be available at some locations and in certain situations.
However, the period available for rest would have to be at least 90
minutes for this mitigation tool to be applied, as this amount of time
would provide sufficient opportunity for an employee to get to his or
her napping location and fall asleep, having enough time for a nap of
sufficient duration to be beneficial to the employee's level of
fatigue, and then also allowing the employee time to be fully awake and
ready to resume the duty tour.
Another mitigation tool, applicable to railroads and locations
using employees from an extra board, would be the use of multiple extra
boards that are temporally separated, so that employees would be
scheduled to work morning assignments or evening assignments, rather
than being subject to calls for assignments at all times of day. For
example, employees assigned to a morning extra board might be subject
to being called only for assignments requiring them to report for duty
between 4 a.m. and 10 a.m., while employees assigned to an evening
extra board might be subject to being called only for assignments
requiring them to report for duty between 4 p.m. and 10 p.m. Employees
on either extra board would know that they would not be called for an
assignment requiring them to report for duty outside the times
established for the employee's particular assigned extra board. This
would lead to greater predictability of schedule and ability to plan
rest, while also avoiding (1) circadian shifts between duty tours
resulting from changes in the time of day that the employee is awake
and (2) difficulties in adjusting to changing periods available for
sleep.
Call windows (i.e., limited periods of time during which an
employee is subject to receiving calls from the railroad to report for
duty) are another mitigation tool in the tool box, which may be
combined with a temporally separated extra board, but could also be
used even if the extra board were not so divided. For example, a
railroad might decide to establish a call window that would reduce or
eliminate calls to the employee during the time from 11 p.m. and 5 a.m.
Open assignments that would need to be filled from an extra board of
employees who would otherwise be called for the assignment during that
time would instead be filled before 11 p.m., which would give the
employees greater predictability and ability to plan rest, as well as
allowing them more rest during the late night hours.
Another possible tool would be to allow employees a period of
uninterrupted rest, similar to the requirement that applies to train
employees on freight railroads, which is found at 49 U.S.C. 21103(e).
The uninterrupted rest could be applied to an employee's statutory off-
duty period before or after the employee is to work a schedule
exceeding the fatigue threshold. It could also be applied to periods of
interim release within the duty tour.
Education could also be part of the tools that a railroad will use
to mitigate fatigue in certain circumstances, and is also a key
component of the other mitigation tools. The mitigation tools will not
be beneficial if the employees working the schedules to which they are
applied do not understand the available tools, and how to properly use
them to reduce their fatigue and increase their effectiveness. If
employees do not take advantage of the mitigation tools, and use them
properly to increase their rest, even those mitigation tools most
likely to have the greatest and most tangible impact on reducing
fatigue will not have the desired effect. FRA has also recognized the
importance of education as a component of fatigue management by
specifically requiring in this proposed rule that employees and
supervisors receive training on fatigue and strategies for reducing it.
Finally, one additional mitigation tool was discussed by the Task
Force that was extremely well-received and supported by the Working
Group, including FRA representatives. That suggestion was to develop
software that would link the railroad's crew management resources to
both the employee's electronic hours of service records (created and
maintained in compliance with subpart D of 49 CFR part 228), and a
valid biomathematical model of performance and fatigue.
The idea is that the fatigue model would be able to look back at
previous duty tours and rest periods to determine which schedules might
have sufficiently rested employees available to report for the
assignment, not only under the limitations on time on duty and required
minimum time off duty that would be established by this proposed rule,
but also in terms of the fatigue threshold. The model would have the
benefit of the data from the previous duty tours to take into account
in determining whether these schedules would exceed the fatigue
threshold during the duty tour, as well as at the report-for-duty time.
If the analysis revealed that the employees on these schedules would be
too fatigued to report for the assignment, or would exceed the fatigue
threshold during the duty tour, crew management would be alerted that
these employees could be at risk if they work this particular
assignment. Employees would have to affirm their fitness for duty if
asked to work such assignments and be empowered to reject the
assignments, because the model is being used to predict group (average)
fatigue from work schedules that could be worked by several
individuals. Any individual could be more or less fatigued than the
average or group. Employees have a responsibility to indicate if they
feel fit to work or not, regardless of the effectiveness score that a
model would predict. The employer's responsibility is to arrange
schedules that minimize fatigue.
While all of the parties to the Working Group agreed that this idea
showed great promise as an effective fatigue mitigation tool for the
future, it is not something that the railroads will be able to apply
immediately, for technological reasons. Most railroads that would be
subject to this proposed rule do not yet create and maintain their
hours of service records electronically in
[[Page 16213]]
compliance with subpart D, although there is interest among those
railroads in developing hours of service electronic recordkeeping
programs. In addition, software would need to be developed that would
allow the fatigue model to retrieve data from the electronic
recordkeeping system, without any possibility of altering or otherwise
affecting the integrity of the records maintained in the system.
Likewise, software would be needed to connect the fatigue model to the
crew management system, so that it could appropriately alert that
system and prevent an employee being placed on an assignment for which
he or she would be too fatigued. If the necessary systems and software
can be developed, compliance with the fatigue threshold would become
much easier, and there would be much less excessive fatigue to be
mitigated.
D. Areas of Working Group and Task Force Concern
During the course of the Task Force and Working Group meetings, a
few issues resulted in significant discussion. Some issues were related
to specific provisions in the rule text, while other concerns were
about the broader implications of the rule, as well as its effects on
aspects of railroad operations or existing collective bargaining
agreements.
1. Definitions of ``Type 1 Assignment'' and ``Type 2 Assignment''
Some members of the Working Group suggested that there should be a
way to determine a template for schedules that would be deemed not to
exceed the fatigue threshold. As was discussed above, the Task Force
presented schedule analyses showing that a schedule in which an
employee began work at 4 a.m. and was relieved at 8 p.m., resulting in
a duty tour with a total time on duty of 12 hours, with a 4-hour period
of interim release, did not exceed the fatigue threshold.
Based on this analysis, FRA initially defined any assignment
beginning no earlier than 4 a.m. and ending no later than 8 p.m.,
assuming at least a 4-hour period of interim release, as a Type 1
assignment, which would be deemed not to exceed the fatigue threshold.
Assignments that included any period of time outside the defined time
parameters of a Type 1 assignment would be considered a Type 2
assignment, which would be subject to more stringent requirements,
including analysis of the schedule using a scientifically valid
biomathematical model, and a more restrictive limit on the number of
consecutive days that employees working such assignments could initiate
an on-duty period.
However, some Task Force members pointed out that there could be
assignments that include time outside the time parameters of a Type 1
assignment that would not exceed the fatigue threshold. In some cases
these schedules would only have a small amount of their overall time
outside of the Type 1 parameters. For example, an assignment might
begin at 4:30 a.m. and end at 8:30 p.m. In addition, some assignments
might not exceed the threshold because of the short duration of the
duty tour involved, such as, perhaps, an assignment from 5 p.m. until
9:30 p.m.
Based on these considerations, FRA amended the definition of a Type
2 assignment to indicate that if an assignment does not include any
time between midnight and 4 a.m., then the particular time of day or
night that an assignment is to be performed is not the only determinant
of whether an assignment is considered a Type 2 assignment. In
particular, a Type 2 assignment that is analyzed using a scientifically
valid biomathematical model and is determined not to exceed the fatigue
threshold, and that includes no period of time between midnight and 4
a.m., would be considered a Type 1 assignment.
FRA also added language to the definitions of both ``Type 1
assignment'' and ``Type 2 assignment'' to require compliance with the
substantive limitations contained in proposed Sec. 228.405. FRA
expects that railroads would not be operating schedules that violate
these limitations; most schedules have long been in effect for the
railroads subject to this proposed rule, and this was an implicit
assumption of the Working Group. For example, a schedule that requires
an employee to report for duty at 4 a.m. and to be released from duty
at 8 p.m. would have to include a period of interim release of at least
4 hours that is not time on duty, as defined by proposed Sec.
228.405(b). However, this language is added to the definitions to make
clear that the schedule analysis and fatigue mitigation requirements of
this proposed rule supplement, but do not replace, the specific
limitations, and any schedule that violated other provisions of this
proposed rule (for example, exceeded 12 hours total time on duty, or
did not allow for at least 8 hours off duty, or 10 hours off duty after
12 consecutive hours) could not be deemed ``approved'' by FRA and
subject to the less stringent requirements applicable to Type 1
assignments.
2. Limitations on Number of Consecutive Days
In the Working Group, both the railroads and labor contended that
FAST and/or FAID analysis would suggest that an employee could work
beyond the limitations in this proposed rule without adversely
affecting safety. One requirement about which this was specifically
argued was the proposed limitation on the number of consecutive days
that an employee would be permitted to work under this regulation,
which would differ depending on the time of day that the employee
works. See proposed Sec. 228.405(a)(3) and (a)(4). In the Working
Group, the railroads and labor unions presented fatigue analyses for
theoretical schedules that would have an employee initiating on-duty
periods for numbers of days that exceeded those permitted by the
proposed rule. The railroads and labor also indicated that the current
agreements or practices on their properties allow for such schedules.
Research shows that work on successive days without a full day off
exponentially increases the accident risk as the number of days worked
increases. For instance, after working four consecutive day shifts,
there is a 17-percent increase in risk, and after working four
consecutive night shifts, there is a 36-percent increase in risk.\20\
FRA research on train crew work schedules and sleep patterns \21\ has
shown that train crews average a 10.25-hour day (work period, limbo
time, and commute time) and get 6.88 hours of primary sleep per day. A
follow-up study on passenger train crews found that workers on split
shift assignments average a 13.75-hour day (work period, interim
release, and commute time) and get 6.18 hours of primary sleep.
Laboratory studies of restricted sleep \22\ show a 5-percent decrease
in performance after 7 days with 7 hours of sleep per day and a 15-
percent decrease after 7 days with 5 hours of sleep per day. These
studies are consistent with the previously noted increase in accident
risk with the number of days worked.
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\20\ Folkard, S. and Akerstedt, T., Trends in the Risk of
Accidents and Injuries and Their Implications for Models of Fatigue
and Performance, Aviat. Space Environ. Med. (2004).
\21\ Gertler, J., and DiFiore, A. (2009). Work schedules and
sleep patterns of railroad train and engine service workers (Report
No. DOT/FRA/ORD-09/22). Washington, DC: U.S. Department of
Transportation
\22\ Balkin, T., Thorne, D., Sing, H. (2000). Effects of sleep
schedules on commercial driver performance (Report No. DOT-MC-00-
133). Washington, DC: U.S. Department of Transportation.
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[[Page 16214]]
Therefore, FRA reasoned that, even if an employee were working a
schedule for which the employee's effectiveness score did not exceed
the fatigue threshold, even when the schedule was worked for more
consecutive days than the regulation would permit, at some point the
employee would have to use some of the time between duty tours (time
that a model would otherwise view as available for rest) to attend to
other personal activities. This time spent in activities other than
rest would decrease the time actually available to the employee for
rest, and, therefore, the employee's actual effectiveness score. This
circumstance would be particularly problematic for schedules featuring
long duty tours, such as the maximum 12 hours on duty, including an
interim release, for a total time of 16 hours in the duty tour,
followed by the minimum of 8 consecutive hours off duty before
reporting for the next duty tour. From this perspective, FRA believes
that, although the available research does not identify the exact
number of consecutive days allowed under this proposed rule as the
maximum that can be safely worked, the limitations that FRA has
established are reasonable. FRA seeks comment on this.
FRA is aware that the requirements of the proposed rule may have an
impact on the collective bargaining agreements affecting the railroads
and employees covered by proposed subpart F. For example, there may be
some agreements that would allow employees to work a greater number of
consecutive days than would be allowed by this proposal. FRA is also
mindful that the law provides an option that enables the regulated
community to seek waivers to implement pilot projects in accordance
with the requirements of 49 U.S.C. 21108(a) and encourages members of
the regulated community to consider this option. Pursuant to 49 CFR
part 211, subpart C, the Railroad Safety Board will consider whether or
not granting such waivers would be in the public interest and
consistent with railroad safety. Where warranted, and upon the
necessary showing, FRA may grant waivers of the requirements of this
proposed rule, including requirements concerning the maximum number of
consecutive days an employee may work, to allow for the establishment
of pilot projects to demonstrate the possible benefits of implementing
alternatives to the strict application of the requirements contained in
this proposed rule.
3. Precision of Fatigue Models and Threshold
There was considerable discussion in the Working Group of the
precision embodied in the FAST model or the FAID model, and the
appropriateness of requiring compliance with a specific fatigue
threshold. The railroads argued that models such as the FAST model and
the FAID model are not scientifically precise enough to warrant the
adoption of a specific threshold, and that different types of
operations could safely function at different levels of fatigue. For
example, the railroads contended that yard switching activities could
safely operate at a different level of fatigue than passenger
operations or through-freight activities.
The railroads conceded, however, that the regulatory structure
contained in this proposal would not be problematic for passenger
operations. The railroads' concern was that, in the future, someone
might argue for adoption of the same regulatory structure for freight
operations and, were that to occur, schedules might be prohibited from
use that should, in fact, be acceptable from a fatigue perspective.
In FRA's view, a specific threshold is desirable because it
provides regulatory certainty as to what railroads must do to be
considered in compliance with the regulations. FRA has based its
regulation on the best available fatigue science, including the FAST
model and the FAID model, which are the only currently validated
models, and the thresholds established by those models. FRA has left
open the possibility that other models may be validated, and other
thresholds established in the future, which could be used for the
purpose of compliance with this regulation.\23\
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\23\ See Raslear, supra note 6.
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Inasmuch as FRA has determined that use of these models and their
established thresholds adequately protect safety, that the regulations
proposed in this rule would not present significant implementation
problems for passenger service, and that a specific threshold would
provide the desired regulatory certainty, FRA believes that it is
appropriate to include in the regulations a requirement for a specific
threshold, based on the understanding that the regulatory requirements
will be satisfied based on a ``70/20 threshold'' using the FAST model
(meaning that the fatigue threshold is exceeded if an employee's
effectiveness score is less than 70 for 20 percent or more of the
employee's time on duty), or a ``60/20 threshold'' using FAID (meaning
that the fatigue threshold is exceeded if an employee's effectiveness
score is more than 60 for 20 percent or more of the employee's time on
duty).\24\
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\24\ See Hursh, et al., supra note 8, and Tabak and Raslear,
supra note 13.
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In proposing an hours of service regulation with a specific
threshold for train employees in passenger service, FRA is not drawing
any conclusion about the suitability of such a regulatory scheme for
freight operations. There may be substantial differences between
freight railroad operating and crew schedules and passenger operating
and crew schedules. Passenger railroads have analyzed the results of
applying the proposed regulations to their work schedules and concluded
that this proposal is feasible. Freight railroads have not undertaken
such analysis, nor would they be required to under the proposed
regulations, except to the extent that employees of freight railroads
may work in passenger service.
4. Freight Railroad Employees Acting as Pilots for Commuter or
Intercity Passenger Trains
The Working Group also discussed the application of the
requirements of proposed subpart F to train employees of freight
railroads who occasionally provide pilot service to a commuter railroad
or intercity passenger railroad. FRA's locomotive engineer
certification regulations require a pilot to assist an engineer who may
not be sufficiently familiar with the territory over which he or she is
called to operate. See 49 CFR 240.231(b). The railroads indicated that
a request for a pilot may come without advance notice, so that it would
be difficult to comply with the substantive hours of service
limitations and recordkeeping requirements of this regulation, and even
more difficult to adhere to the schedule analysis requirements, for an
employee who did not otherwise regularly engage in commuter or
intercity rail passenger transportation.
The Working Group also cited the safety benefits of having a pilot
available on a route when necessary, and the potential risk if commuter
or intercity passenger railroads were to become less likely to request
a pilot, or freight railroads less likely to be able to make a pilot
available when requested, because of concerns about the proposed
requirements of this regulation. FRA acknowledges these benefits.
Therefore, although a pilot is performing covered service under the HSL
on the assignment on which the pilot service is provided, FRA will not
consider a train employee employed by a freight railroad
[[Page 16215]]
who serves as a pilot on a train operated by a commuter railroad or
intercity passenger railroad to be a train employee who is engaged in
commuter or intercity rail passenger transportation, provided that the
employee does not serve as a pilot more than four times in a calendar
month, or engage in any other commuter or intercity rail passenger
transportation.
V. Section-by-Section Analysis
Subpart A--General
228.1 Scope
FRA proposes to revise this section by adding paragraph (c), which
indicates that the regulation prescribes substantive hours of service
requirements for train employees engaged in commuter or intercity rail
passenger transportation.
228.5 Definitions
FRA proposes to amend this section to add definitions of
``Associate Administrator for Railroad Safety/Chief Safety Officer''
and ``FRA'' as used in this part. Associate Administrator for Railroad
Safety/Chief Safety Officer became the title of FRA's Associate
Administrator for Safety because Section 101 of the RSIA refers to
FRA's ``Associate Administrator for Railroad Safety'' and emphasizes
that the Associate Administrator is the Chief Safety Officer.
FRA also proposes to add definitions of the terms ``Type 1
assignment'' and ``Type 2 assignment.'' As was previously discussed in
Section IV above, these definitions were the subject of significant
discussion in the Task Force and the Working Group, particularly
because of the implications of a particular schedule's status as a Type
1 assignment or a Type 2 assignment for determining the application of
the limitations on consecutive days in proposed Sec. 228.405 and the
requirements for analysis of schedules and submission of schedules to
FRA for approval in proposed Sec. 228.407. FRA believes the proposed
definitions accommodate the concerns expressed in the Working Group
regarding schedules outside the time parameters for a Type 1 assignment
that may still present very little risk of an effectiveness score that
would exceed the fatigue threshold and compromise safety. At the same
time, however, the proposed definitions recognize the increased risk of
fatigue associated with working late night and very early morning
hours, which justifies the application of the more stringent
requirements.
FRA has added these terms to this general definitions section for
Part 228, rather than the definitions specific to subpart F, because
these terms are also used in the recordkeeping provisions of subpart B,
as amended by this proposed rule.
Subpart B--Records and Reporting
228.11 Hours of Duty Records
FRA proposes to revise paragraph (c) of this section to indicate
that paragraphs (13) through (15) of paragraph (b) do not apply to the
records of train employees providing commuter or intercity passenger
rail transportation. These paragraphs relate to substantive provisions
of the HSL for train employees, added by the RSIA. As was described
above, these requirements were not extended to train employees on
commuter and intercity passenger railroads. The requirements referred
to in paragraphs (13) through (15) of paragraph (b) are not required by
this proposed rule and therefore would continue not to apply to train
employees providing commuter and intercity rail passenger
transportation.
Paragraph (c) of this section, as published in FRA's hours of
service recordkeeping regulation on May 27, 2009 (74 FR 25330, 25348-
49), provided that paragraphs (13) through (16) of paragraph (b) did
not apply to the records of train employees providing commuter or
intercity passenger rail transportation. However, paragraph (16)
requires that a record include the number of consecutive days on which
a period of time on duty was initiated. Because this proposed rule
would limit the number of consecutive days on which train employees
providing commuter or intercity passenger rail transportation may
initiate an on-duty period, it is appropriate to require that an
employee's hours of service record include the number of consecutive
days on which that employee has initiated an on-duty period, so that it
is possible for both the railroad and FRA to determine compliance with
the limitation established by this proposed rule. Thus, this paragraph
is revised to include the requirement in paragraph (16) of paragraph
(b), while continuing to exclude the requirements of paragraphs (13)
through (15) of paragraph (b), which relate to provisions that do not
apply to train employees providing commuter or intercity passenger rail
transportation.
FRA recognizes that most railroads and employees subject to this
subpart are currently keeping their hours of service records manually,
and it may be burdensome for an employee to be required to keep track
of his or her consecutive days worked and mark it on the hours of
service record each day. However, the railroad will have to have some
way to track this information. Therefore, if a railroad wishes to keep
this information centrally for all of its employees, this will be
considered sufficient to satisfy the requirement that the hours of
service record include the number of consecutive days that an employee
has worked, provided this information is made available to FRA upon
request.
228.19 Monthly Reports of Excess Service
FRA proposes to revise paragraph (c) of this section to require
railroads to report to FRA instances of excess service related to new
substantive limitations contained in Sec. 228.405(a)(3) and (a)(4) of
this proposed rule. Those paragraphs propose to limit the number of
consecutive days that train employees engaged in commuter or intercity
passenger railroad transportation may initiate an on-duty period, and
to require a minimum amount of time off duty after an employee has
reached the maximum number of consecutive days, before the employee may
return to duty, with different requirements depending on the time of
day of the employee's assignment.
Subpart F--Substantive Hours of Service Requirements for Train
Employees Engaged in Commuter or Intercity Rail Passenger
Transportation
228.401 Applicability
This proposed section would establish the specific applicability of
proposed new subpart F, which differs from that of existing subparts in
this part. The requirements of subpart F apply to railroads and their
officers and agents, only with respect to their train employees engaged
in commuter or intercity rail passenger transportation. For purposes of
subpart F, FRA interprets commuter or intercity passenger
transportation to include rail passenger transportation by tourist,
scenic, excursion, and historic railroads (referred to collectively for
the purposes of this discussion as tourist railroads). FRA believes
that Congress intended that these regulations apply to all railroads
providing rail passenger transportation, and that Congress did not
intend to apply the new statutory provision at 49 U.S.C. 21103 to
tourist railroads because tourist railroad operations are more similar
to the other passenger service than they are to freight service. The
provisions of the HSL that apply to train employees on freight
railroads are not as appropriate, therefore, for train employees on
tourist
[[Page 16216]]
railroads. For fatigue purposes, the most salient difference between
passenger and freight operations is that most passenger operations tend
to be scheduled, whereas freight operations tend to be unscheduled.
Virtually all passenger crew assignments have scheduled on-duty and
off-duty times, and the vast majority of passenger crew assignments are
to report in the morning and go off duty in the late afternoon or early
evening, thereby reducing the likelihood of fatigue. Like classic
intercity and commuter rail operations, tourist rail operations tend to
be scheduled.
228.403 Nonapplication, Exemption, and Definitions
This proposed section would establish the situations in which this
subpart shall not apply, provide circumstances in which a railroad may
seek an exemption from the provisions of this subpart, and provide key
definitions specifically applicable to this subpart.
Proposed paragraph (a) of this section would establish the
situations in which this subpart shall not apply, such as an act of
God. This proposed paragraph is substantively identical to the
nonapplication provision of the HSL (49 U.S.C. 21102(a)), which was
unchanged by the RSIA. The provisions of this proposed rule would
therefore not apply to train employees engaged in commuter or intercity
passenger service in the same situations as the statutory hours of
service requirements would not apply to other train employees, or to
signal employees or dispatching service employees.
Proposed paragraph (b) of this section would provide the
possibility of an exemption from the requirements of this subpart for a
railroad having not more than a total of 15 train employees, signal
employees, and dispatching service employees. This proposed paragraph
is substantively identical to the exemption provision of the HSL at 49
U.S.C. 21102(b), which was unchanged by the RSIA. It would provide the
same opportunity for a railroad to seek an exemption from the
requirements of this subpart as a railroad would have to seek an
exemption from the statutory requirements applicable to its other
employees.
Proposed paragraph (c) of this section defines several key terms
specifically applicable to this subpart. It defines ``commuter or
intercity rail passenger transportation'' as the terms ``commuter rail
passenger transportation'' and ``intercity rail passenger
transportation'' have been defined at 49 U.S.C. 24102. This definition
is consistent with FRA's authority to issue this proposed rule, as
Section 108(e) of the RSIA defined these terms as they are defined at
49 U.S.C. 24102.
This proposed paragraph would also define ``train employee who is
engaged in commuter or intercity rail passenger transportation'' to
establish that the term includes any train employee performing that
function, regardless of whether the train employee is employed by a
commuter or intercity passenger railroad, or another type of railroad
or other entity. The term also includes all train employees employed by
a commuter or intercity passenger railroad. The term excludes a train
employee employed by another type of railroad or entity who is engaged
in work train service.
228.405 Limitations on Duty Hours of Train Employees Engaged in
Commuter or Intercity Rail Passenger Transportation
This proposed section provides the substantive limitations on the
duty hours of train employees subject to this subpart.
Paragraphs (a)(1) and (a)(2) of this proposed section establish the
maximum time on duty in a duty tour and the required minimum time off
duty in a 24-hour period. These limitations are substantively identical
to the statutory requirements of 49 U.S.C. 21103(a)(1) and (a)(2) as
they existed prior to July 16, 2009, the effective date of the
amendments to that section arising from the RSIA, which requirements
currently still apply to train employees engaged in commuter or
intercity rail passenger transportation. FRA proposes to retain these
limitations because there is limited evidence of fatigue-related
accidents in operations that would be subject to this proposed rule,
and analysis of the schedules provided by the railroads subject to this
proposed rule, that are worked by their employees subject to this rule,
indicate that many of them are not likely to be at risk for a level of
fatigue at which safety may be compromised. Thus, there does not appear
at this time to be sufficient justification to change these
limitations. Should further research or other evidence or events
suggest that different limitations are necessary, FRA will reconsider
this issue.
Proposed paragraphs (a)(3) and (a)(4) of Sec. 228.405 would
establish limitations on the number of days that an employee may work,
with proposed paragraph (a)(3) providing the limitation for an employee
who works one or more Type 2 assignments, and proposed paragraph (a)(4)
providing the limitation for an employee who works only Type 1
assignments.
Proposed paragraph (a)(3) provides that an employee who initiates
an on-duty period on 6 consecutive calendar days including one or more
Type 2 assignments must have at least 24 consecutive hours off duty at
the employee's home terminal. However, if the on-duty period initiated
on the sixth consecutive calendar day does not end at the employee's
home terminal, the employee may initiate an on-duty period or deadhead
on a seventh consecutive calendar day in order to return to the home
terminal, and must then have at least 24 consecutive hours off duty at
the home terminal before returning to duty.
Proposed paragraph (a)(4) provides that after an employee has
initiated on-duty periods in a period of 14 consecutive calendar days
and has not had a total of at least two calendar days within that 14-
day period in which the employee has not initiated an on-duty period,
the employee must have two consecutive calendar days off duty at the
home terminal. However, if the on-duty period initiated on the 14th
calendar day does not end at the employee's home terminal, and the
employee has not had at least two calendar days within the 14-day
period in which the employee has not initiated an on-duty period, the
employee may initiate an on-duty period or deadhead on a 15th calendar
day in order to return to the home terminal, and must then have at
least two consecutive calendar days off duty at the employee's home
terminal. However, a new 14-day period begins when the employee
accumulates a total of two calendar days in the period of 14 days in
which the employee has not initiated an on-duty period.
If an employee works only Type 1 assignments for a period of more
than 6 but fewer than 14 calendar days on which the employee has
initiated an on-duty period, and then works a Type 2 assignment--for
example, a Type 2 assignment on the eighth consecutive day after having
worked Type 1 assignments on the previous 7 days--the ``Type 2''
limitation will apply at that time, and the employee must have 24 hours
off duty following the Type 2 assignment (or work or deadhead to the
home terminal the next day and then have 24 hours off duty at the home
terminal) and then begin a new period of consecutive days upon
returning to duty.
Although many train employees engaged in commuter or intercity
passenger service regularly end their duty tour at their home terminal,
FRA
[[Page 16217]]
recognizes that this will not be the case for all employees and all
railroads subject to this subpart. The language of these paragraphs
allows the railroad the flexibility to get the employee back to his or
her home terminal, while at the same time ensuring that the employee
will observe the required rest period at the home terminal.
As was discussed in Section IV above, members of the Working Group
expressed concern about these requirements, because the schedule
analysis done by the Task Force had indicated a number of situations in
which employees who worked consecutive days beyond the limitations
proposed by FRA would not exceed the fatigue threshold. However, as
also stated above, FRA still believed the limitations were appropriate,
based on accepted fatigue science indicating that work on successive
days increases the risk of accidents as the number of successive days
of work increases, and because of the likelihood that an employee
working an indefinite number of consecutive days will eventually attend
to other activities during time that a fatigue model would consider
available for rest.
FRA accommodated the concerns of Working Group members in revising
the definition of ``Type 2 assignments'' as discussed above. In
addition, the ``consecutive day'' limitation of paragraph (a)(4) that
applies to employees working only Type 1 assignments allows employees
to work two consecutive hold downs (allowing the employee to exercise
seniority to select and work the full cycle of two 6-day or 7-day
schedules for which the incumbent employee is on vacation or otherwise
unavailable), before being required to have two consecutive days off.
This flexibility eliminates some potential conflict with existing
operations and agreements.
At the same time, an employee who does not work the maximum number
of consecutive days will be able to restart the count toward 14
consecutive days after having accumulated two calendar days in which
the employee does not initiate an on-duty period. This language
eliminates a concern that the railroad and the employee would have to
look back and find two days off at any point in time to be in
compliance.
Paragraph (b) of this proposed section describes how various
periods of time are counted for the purpose of determining total time
on duty. This paragraph is substantively identical to the provisions
for determining time on duty in 49 U.S.C. 21103(b), which were
unchanged by the RSIA. Therefore, these provisions are currently in
effect for train employees of commuter and intercity passenger
railroads, as well as for other train employees. FRA recognizes that
any change in these provisions would require significant changes for
the industry in operations and recordkeeping. FRA does not believe that
there is any reason to change these provisions at the present time.
Paragraph (c) of this proposed section allows a train employee to
work additional hours in emergency situations. This paragraph is
substantively identical to the ``emergency'' provision of 49 U.S.C.
21103(c), which was unchanged by the RSIA.
228.407 Analysis of Work Schedules; Submissions; FRA Review and
Approval of Submissions; Fatigue Mitigation Plans
This proposed section would require a railroad subject to this
subpart to analyze the schedules that the railroad intends its
employees subject to this subpart to work, to identify those schedules
at risk for fatigue exceeding the fatigue threshold, and to report to
FRA in certain circumstances.
Proposed paragraph (a) would require the railroads to analyze one
work cycle, of each schedule, using a valid biomathematical model of
performance and fatigue, to determine whether the fatigue risk posed by
the schedule exceeds the fatigue threshold. A work cycle is the cycle
within which the schedule repeats. For example, if a schedule called
for an employee to work Monday through Friday from 8 a.m. until 4 p.m.,
with Saturday and Sunday off, and then report again Monday at 8 a.m.,
the work cycle is the Monday to Sunday schedule that then repeats.
Other schedules on some railroads may operate over a two-week period,
with certain days off within the two-week cycle.
For the purpose of this section, FRA considers a Type 1 assignment
to present an acceptable level of risk for fatigue that does not exceed
the fatigue threshold.
Based on this analysis, the railroad is required to identify those
schedules at risk for resulting in a level of fatigue that would exceed
the fatigue threshold. To the extent possible, the railroad is required
to apply fatigue mitigation tools identified in the railroad's fatigue
mitigation plan (including, but not limited to, those tools described
in Section IV above) to mitigate the fatigue risk in those schedules to
a level that does not exceed the fatigue threshold. If the railroad is
unable to mitigate the risk for fatigue presented by a particular
schedule to the point that it no longer exceeds the fatigue threshold,
and the schedule cannot be modified to reduce the fatigue risk
sufficiently, then the railroad must make a determination that the
fatigue risk cannot be sufficiently mitigated to bring it within the
fatigue threshold, but that the schedule is operationally necessary.
Any schedule that has been identified as having a risk for fatigue that
exceeds the fatigue threshold must be reported to FRA within 180 days
of the effective date of the final rule in this rulemaking.
Paragraph (b) of this proposed section provides further details as
to the requirements and procedures for submission of schedules and
other information to FRA for review within 180 days of the effective
date of the final rule.
A railroad must submit to FRA those schedules for which it has
mitigated the fatigue risk so that it no longer exceeds the fatigue
threshold, along with the fatigue mitigation tools it applied to each
particular schedule to reduce the fatigue risk.
A railroad must also submit to FRA those schedules for which it is
unable to mitigate the fatigue risk to a level that does not exceed the
fatigue threshold, but which the railroad has determined are
operationally necessary. A railroad must also submit the fatigue
mitigation tools that the railroad applied to each schedule, if any, to
reduce its fatigue risk even if it could not be reduced to the point
that it no longer exceeded the fatigue threshold. Finally, a railroad
must submit the basis for its determination that each schedule is
operationally necessary.
If a railroad performs the required analysis of its schedules and
determines that none of its schedules presents a risk for a level of
fatigue that exceeds the fatigue threshold and requires transmittal to
FRA, the railroad must submit a declaration that it has performed the
required analysis and determined that none of its schedules exceed the
fatigue threshold, and therefore none are required to be submitted.
FRA will review the submissions, and will notify the railroad if
the agency takes any exception to the submitted information within 120
days of FRA's receipt of the submission. FRA expects that it will work
with a railroad to address any concerns with the schedules, mitigation
tools, or determinations of operational necessity, and does not intend
to dictate how a schedule must be modified. FRA seeks comments on the
process for resolving concerns about a railroad's submissions.
[[Page 16218]]
FRA will also audit each railroad's work schedules and mitigation
tools every two years to ensure compliance with the requirements of
this proposed section.
Paragraph (c) of this proposed section provides a railroad's
options with regard to the use of a biomathematical model of
performance and fatigue. Proposed paragraph (c)(1) provides that a
railroad may submit to FRA's Associate Administrator for Railroad
Safety/Chief Safety Officer for approval evidence of the scientific
validation of any biomathematical model of performance and fatigue that
it wishes to use for the analysis required by this proposed section.
Decisions of the Associate Administrator for Railroad Safety/Chief
Safety Officer regarding the validity of a model are subject to review
as provided by 49 CFR 211.55. If the Associate Administrator for
Railroad Safety/Chief Safety Officer approves a new model as having
been validated and calibrated, so that it can be used for schedule
analysis in compliance with this regulation, FRA will publish notice of
this determination in the Federal Register. Proposed paragraph (c)(2)
provides that a railroad may use a model that has already been
approved, and further provides that FRA has approved the use of both
the FAST model and the FAID model, both of which are discussed in
Section II above, for the analysis required by this proposed section.
Paragraph (d) of this proposed section requires a railroad that
changes its schedules to analyze certain of those schedules and submit
them to FRA for approval.
Paragraph (d)(1)(i) requires a railroad to analyze and submit for
approval any schedule that has been changed such that it would differ
from the parameters of any schedule that had been previously analyzed
and approved. In other words, a railroad would not have to submit a
revised schedule to FRA if it is the same as any of its schedules that
had been previously approved, or is a schedule that would not have had
to be analyzed or submitted if it were an original schedule.
Specifically, if a schedule is revised so that it is now the same
as another schedule that has previously been submitted to and approved
by FRA, that schedule would not have to be analyzed or submitted. A
railroad would also not have to analyze or submit any schedule that, as
revised, is wholly within the hours of 4 a.m. to 8 p.m. (a Type 1
schedule, which FRA considers per se to present an acceptable level of
risk for fatigue that would not exceed the fatigue threshold). A
railroad would also not be required to submit a schedule that, as
revised, is now the same as another schedule that includes time outside
the 4 a.m. to 8 p.m. hours, but that the railroad analyzed and found
not to exceed the fatigue threshold, and that does not include any time
between midnight and 4 a.m. (because such a schedule would qualify for
treatment as a Type 1 assignment).
However, any revised schedule that includes time outside the hours
of 4 a.m. to 8 p.m. that is not either the same as a schedule
previously approved, or the same as a schedule previously analyzed and
found not to exceed the fatigue threshold and not including any time
between midnight and 4 a.m., would have to be analyzed by the railroad.
Further, a railroad must submit to FRA any revised schedules that, when
analyzed, are found to exceed the fatigue threshold, along with the
fatigue mitigation tools that the railroad has applied to mitigate the
fatigue risk in those schedules to a level that does not exceed the
fatigue threshold. In addition, if the railroad analyzes a revised
schedule and finds that it cannot be mitigated so that the risk for
fatigue does not exceed the fatigue threshold, but is operationally
necessary, the railroad must submit the schedule, along with any
fatigue mitigation tools that have been applied, and the railroad's
determination of the operational necessity of the schedule and the
basis for that determination.
Paragraph (d)(1)(ii) of this proposed section requires a railroad
to analyze any revised schedule that has been altered to an extent that
employees working the schedule may be at risk of experiencing a level
of fatigue that exceeds the fatigue threshold. This means that the
railroad must analyze a schedule that previously was not at risk of
exceeding the fatigue threshold but that may be at risk as revised. If
such a revised schedule is in fact found to exceed the fatigue
threshold, the fatigue risk must be mitigated or the schedule
determined to be operationally necessary, just as in the initial
analysis required by paragraph (a) of this proposed section.
In addition, any schedules that were previously found to exceed the
fatigue threshold and either mitigated or found to be operationally
necessary would also have to be analyzed when those schedules are
changed, and submitted to FRA if the revised schedule exceeds the
fatigue threshold. Even though the schedule was already known to
present a fatigue risk, the level of risk presented by the schedule as
revised could increase or decrease, and different mitigations may be
warranted, or the determination of operational necessity could be
different, depending on the level of fatigue risk, as that
determination is based on balancing the necessity with the risk.
Therefore, FRA review of these revised schedules, along with the
relevant fatigue mitigation tools or determinations of operational
necessity, is required.
Paragraph (d)(2) of this proposed section requires that revised
schedules and supporting documentation that are required to be
submitted to FRA must be submitted as provided by paragraph (b) of this
proposed section, as soon as practicable prior to the use of the new
schedule. Some railroads expressed the concern that work schedule
changes are sometimes not finalized until shortly before the schedules
are to begin operation, and the FRA approval process could delay work
schedule implementation and published timetable changes. However, the
regulatory language does not require FRA approval before a new schedule
may begin operation, just that it be submitted as soon as practicable
prior to use. In addition, given the limited nature of the schedules
that require FRA review, FRA would expect some degree of advance
planning for those kinds of schedules, so that the fatigue implications
of the revised schedules can be fully understood by the railroad, as
well as by FRA.
Some APTA members also expressed concern about compliance with
these requirements for special trains that they are sometimes called
upon to operate. Many special events require advance notification and
planning. For those events of which the railroad does not have advance
notice, FRA will address those situations and work with the railroad on
a case-by-case basis.
Paragraph (e) of this proposed section requires a railroad to have
and comply with a written fatigue mitigation plan, to mitigate the
potential for fatigue in its work schedules, identified through the
analysis required by paragraphs (a) and (d) of this proposed section.
The railroad is required to review the plan every two years and update
it as necessary.
Paragraph (f) of this proposed section requires a railroad to
consult in good faith with its directly affected employees and any
labor organization representing them, on the analysis of work
schedules, selection of mitigation tools, and any submissions to FRA
required by this proposed section. If the railroad and its affected
employees or their labor organization cannot reach consensus on any of
those items, the employees or labor organizations may file a statement
with FRA's Associate
[[Page 16219]]
Administrator for Railroad Safety/Chief Safety Officer, explaining
their views on any issue on which consensus was not reached. Any such
statements will be considered by FRA during the review and approval of
any submissions required by this proposed section.
228.409 Requirements for Railroad-Provided Employee Sleeping Quarters
During Interim Releases and Other Periods Available for Rest Within a
Duty Tour
This proposed section provides that any rest facilities provided by
a railroad for the use of its employees during periods of interim
release or other periods during a duty tour must be ``clean, safe, and
sanitary,'' and give the employee ``an opportunity for rest free from
the interruptions caused by noise under the control of the'' railroad.
This is consistent with statutory language for sleeping quarters at 49
U.S.C. 21106, including sleeping quarters provided for the use of
employees during the required minimum off-duty period.
Paragraph (b) of this proposed section provides that if the
facilities are proposed as a fatigue mitigation tool, for the purpose
of mitigating fatigue identified by the schedule analysis required by
Sec. 228.407, then those facilities are subject to the requirement in
Sec. 228.407(f), that the railroad consult with affected employees and
labor organizations.
228.411 Training
This proposed section would establish training requirements for
this proposed rule. FRA believes this provision is especially important
because the schedule analysis and fatigue mitigation required by other
sections of this proposed rule have little meaning if employees are not
aware of the level of fatigue predicted to occur as a result of their
work schedule, and the mitigation tools available to the employee to
reduce the fatigue risk. For example, suppose that a railroad submits a
schedule to FRA for approval that exceeds the fatigue threshold, but as
a mitigation tool, the railroad indicates that it will provide
facilities and allow employees working that schedule to take a nap
during a two-hour break between scheduled trains, and that the
insertion of a nap at that point decreases the fatigue level so that
the threshold is no longer exceeded. If the employee working that
schedule does not realize that his or her work schedule exceeds the
fatigue threshold (which is a level of fatigue at which, according to
the model, safety may be compromised), or is unaware of facilities and
policies allowing the employee to take a nap, or is unaware of the
beneficial effect of the nap on the predicted fatigue level, then the
employee will not take advantage of the mitigation tool purported to
reduce the fatigue risk in that schedule, and the risk will not
actually be reduced. Employees who are not currently working
assignments that exceed the fatigue threshold will also benefit from
the training required by this section, as it may raise awareness of,
and provide strategies for addressing, other circumstances in their
lives that contribute to their actual level of fatigue that are not
accounted for in work schedule analysis. The training requirements in
this proposed rule were the subject of extensive discussion within the
working group, and members of the working group recommended the content
of training, as well as the proposed training interval.
Paragraph (a) of this proposed section would require railroads to
provide training to employees subject to this subpart and their
immediate supervisors. Paragraph (b) of this proposed section lists the
minimum subjects that must be covered in training, based on the most
current available scientific and medical research and literature.
Although the subjects to be covered are quite broad, the specific
information to be covered may change over time based on scientific
developments or changes in a railroad's operations that may make
additional topics appropriate. The format of the required training is
not prescribed, as FRA specifically intends to allow each railroad the
flexibility to provide training at a level of formality and complexity
that is appropriate to its operations and the needs of its employees.
Options include, but are not limited to, classroom training, computer-
based training, review of written materials, and oral job briefings.
Railroads may also combine this training with other training provided
to their employees.
Paragraph (c) of this proposed section requires that training be
provided to affected employees as soon as practicable, and to new
employees within 90 days after they first work a schedule for the
railroad that is subject to analysis under this subpart. Paragraph (d)
of this proposed section would require refresher training at least
every three years, and when significant changes are made to the
railroad's fatigue mitigation plan or to the available fatigue
mitigation tools applied to an employee's assignment or to assignments
at the location where the employee works. Railroads also have the
flexibility to select an appropriate method of providing refresher
training, which will likely be less detailed, and could also be less
formal, than the initial training provided to an employee, depending on
the extent of any new information to be presented.
Paragraph (e) of this proposed section would require a railroad to
keep records of each employee provided training and to retain these
records for three years.
228.413 Compliance Date
This proposed section provides that 180 days from the effective
date of the final rule, railroads subject to this subpart will comply
with this subpart with respect to their train employees who are engaged
in commuter or intercity rail passenger transportation, and shall be
exempt from complying with the hours of service requirements currently
in effect for them, which are the requirements of 49 U.S.C. 21103 as it
was in effect the day before the enactment of the RSIA.
VI. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures under not only Executive Orders 12866 and 13563
but also DOT policies and procedures. The economic impacts of the
proposed rule are well under $100 million annually relative to the no-
action alternative. FRA has prepared and placed in the docket a
regulatory impact analysis (RIA) addressing the economic impact of this
proposed rule over a 20-year period. This section summarizes the
impacts of the rule.
This proposed regulation is intended to promote safe railroad
operations by limiting the hours of service for passenger railroad
train employees, and ensuring that they receive adequate opportunities
for rest in the course of performing their duties. The main goal of
this rulemaking is to identify and reduce fatigue for passenger train
employees.
FRA is proposing to establish substantive hours of service
regulations, including maximum on-duty periods, minimum off-duty
periods, and other limitations, for train employees of passenger
railroads. The proposed regulations would require that passenger
railroads analyze and mitigate the risks for fatigue in the schedules
worked by their train employees, and that the railroads submit to FRA
the relevant schedules and fatigue mitigation plans for approval. The
RSIA established a limit of 276 hours each
[[Page 16220]]
calendar month for train employees on service performed for a railroad,
and on time spent in or waiting for deadhead transportation to a point
of final release; increased the quantity of the statutory minimum off-
duty period after being on duty for 12 hours in broken service from 8
hours of rest to 10 hours of rest; prohibited communication with train
or signal employees during certain minimum statutory rest periods; and
established mandatory time off duty for train employees of 48 hours
after initiating an on-duty period on 6 consecutive days, or 72 hours
after initiating an on-duty period on 7 consecutive days. In absence of
a final rule effective before October 16, 2011, passenger railroad
train employees would be subject to the more stringent freight hours of
service laws described above. Until then, passenger railroads will
continue to operate under the hours of service laws in effect prior to
the enactment of the RSIA. Thus, issuance of requirements FRA is
proposing would relieve railroads covered by this rule from becoming
covered by the more strict statutory hours of service laws governing
freight railroads and their train crews.
The RSIA mandated that in issuing regulations FRA ``consider
scientific and medical research related to fatigue and fatigue
abatement, railroad scheduling and operating practices that improve
safety and reduce employee fatigue, a railroad's use of new or novel
technology intended to reduce or eliminate human error, the variations
in freight and passenger railroad scheduling practices and operating
conditions, the variations in duties and operating conditions for
employees, a railroad's required or voluntary use of fatigue management
plans * * *, and any other relevant factors.'' 49 U.S.C. 21109(c). FRA
relied on its RSAC to make recommendations with respect to this
rulemaking and this proposed rule reflects the recommendations of this
committee.
FRA has analyzed the economic impacts of this proposed rule against
a ``no regulatory action'' baseline that reflects what would happen in
absence of this rulemaking (i.e., the freight hours of service laws are
applied to passenger railroads) as well as a ``status quo'' baseline
that reflects present conditions (i.e., primarily, the statutory hours
of service provisions (specifically, old section 21103 and,
secondarily, the applicable hours of service recordkeeping and
reporting regulations) that have and will continue to apply to
passenger railroads until either they become subject to either the
freight hours of service laws on October 16, 2011 or an FRA-issued
hours of service rule prior to that). With respect to the ``no
regulatory action'' baseline, the FRA proposal represents a
substantially more cost-effective alternative for achieving the goal of
identifying and mitigating unacceptable fatigue risk levels and thus
ensuring the safety of passenger train operations. Over the 20-year
period analyzed, the undiscounted costs associated with the ``no
regulatory action'' alternative total $75.5 million compared to $2.1
million for the FRA proposal. Similarly, when discounted at 7 percent,
the costs associated with the ``no regulatory action'' alternative
total $59.0 million compared to $1.4 million for the FRA proposal and
when discounted at 3 percent, the costs associated with the ``no
regulatory action'' alternative total $66.8 million compared to $1.7
million for the FRA proposal. The quantified accident reduction
benefits achieved under both the ``no regulatory action'' baseline and
the proposed rule total $1.4 million (undiscounted), $0.7 million (PV,
7 percent), and $1.0 million (PV, 3 percent). FRA does not expect that
the overall number of casualties and property damages prevented will
differ under either scenario. Implementation of the proposed rule would
yield these benefits at lower cost.
With respect to the ``status-quo'' baseline, the FRA proposal would
impose costs that are higher than the quantified safety benefits. Costs
compared to the ``status quo'' baseline total $2.1 million
(undiscounted), $1.4 million (PV, 7 percent), and $1.7 million (PV, 3
percent). Quantified benefits compared to the ``status quo'' baseline
total $1.4 million (undiscounted), $.7 million (PV, 7 percent), and
$1.0 million (PV, 3 percent). However, there are additional benefits
that have not been quantified, but should be considered when comparing
the overall costs and benefits. For instance, safety and health
benefits will accrue from the transfer of knowledge to employees, their
families, friends and others with whom they may share the fatigue
knowledge that they acquire from the required fatigue awareness
training programs. This fatigue awareness will result in more optimal
decisions regarding rest and sleep, leading to less fatigue and
improved safety outside of passenger train operations during the course
of daily activities that may include the operation of motor vehicles or
other heavy machinery. This fatigue awareness will also result in
proper identification and treatment, if necessary, of fatigue symptoms.
Separately, accident avoidance will result in fewer unplanned delays to
passengers and freight commodities impacted by passenger train accident
and incidents that result in blocking one or more tracks for prolonged
periods. These costs can be very substantial given the need to
investigate accidents and often clear wreckage. Finally, there is the
non-quantified benefit of ensuring that passenger railroads do not
unknowingly require train employees to work schedules with unacceptable
high-fatigue risk levels. It is not unreasonable to expect that the
unquantified benefits will raise the benefits to a level quite
comparable to the costs.
FRA believes that the unquantified benefits coupled with the
quantified safety benefits that would result from its proposal compare
very well with the costs associated with meeting the intent of the
statutory mandate.
The table below presents the costs associated with both the ``no
regulatory action'' alternative and the FRA proposal.
--------------------------------------------------------------------------------------------------------------------------------------------------------
No-action alternative NPRM
Cost description -----------------------------------------------------------------------------------------------------
Undiscounted PV@7% PV@3% Undiscounted PV@7% PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20% New Hires).... $31,237,549 $26,299,825 $28,705,081 0 0 0
New Engineer Training, Refresher (20% New Hires).. 4,599,050 2,278,431 3,327,802 0 0 0
New Conductor Training, Initial (20% New Hires)... 30,847,974 25,942,971 28,330,908 0 0 0
New Conductor Training, Refresher (20% New Hires). 8,636,745 4,278,146 6,249,071.15 0 0 0
[[Page 16221]]
Work Schedule Analysis (No-Reg Action)/Initial 189,723 177,312 184,198 ($126,482 + ($118,208 + ($122,798 +
Analysis of Work Schedules + Follow-up Analysis $240,316) = $122,175) = $175,894) =
and Fatigue Mitigation Plan Review (NPRM)........ $366,799 $240,382 $298,692
Biomathematical Model of Fatigue Software......... 0 0 0 $417,500 $268,723 $337,240
Use of Rest Facilities............................ 0 0 0 $30,988 $28,961 $30,086
Fatigue Training.................................. 0 0 0 $1,329,673 $841,748 $1,065,188
-----------------------------------------------------------------------------------------------------
TOTAL (rounded)............................... $75,511,041 $58,976,685 $66,797,059 $2,144,960 $1,379,815 $1,731,206
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA estimates that the recordkeeping and reporting costs per
employee record under the no-action alternative and FRA proposal will
be practically the same. Under the ``no regulatory action''
alternative, costs for recordkeeping and reporting employee hours of
service are reflected in the New Engineer and New Conductor training
requirements and the Work Schedule Analysis burden. Under the FRA
proposal, the costs associated with the recordkeeping and reporting
requirements for the substantive hours of service changes are reflected
in Fatigue Training as well as the Initial and Follow-up Analysis and
Fatigue Mitigation Plan Review.
The estimated benefits of the rule relative to the ``status quo''
baseline, based on the above calculations of potentially prevented
accident damages, injuries, and fatalities, over a 20-year period of
analysis are presented below.
Intercity Passenger, Commuter, Tourist and Excursion Railroads (All Track Types)
----------------------------------------------------------------------------------------------------------------
VSL = $6 M VSL = $6 M VSL = $6 M
Accident reduction benefits Undiscounted Discounted PV@ Discounted PV@
benefits 7% 3%
----------------------------------------------------------------------------------------------------------------
Property Damage.............................................. $829,366 $439,316 $616,943
Injuries..................................................... 120,547 63,854 89,672
Fatalities................................................... 429,088 227,288 319,187
--------------------------------------------------
TOTAL (rounded).......................................... 1,379,001 730,458 1,025,803
----------------------------------------------------------------------------------------------------------------
FRA does not expect that the overall number of casualties prevented
will differ under the FRA proposed rule or the ``no regulatory action''
baseline in which the freight hours of service law would apply to
passenger train crews.
FRA requests comments on all aspects of this analysis.
B. Executive Order 13132
Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10,
1999)), requires FRA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, the agency may not issue a regulation with
federalism implications that imposes substantial direct compliance
costs and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, the agency consults with
State and local governments, or the agency consults with State and
local government officials early in the process of developing the
regulation. Where a regulation has federalism implications and preempts
State law, the agency seeks to consult with State and local officials
in the process of developing the regulation.
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have substantial effect on the States or their political
subdivisions; it would not impose any compliance costs; and it would
not affect the relationships between the Federal government and the
States or their political subdivisions, or the distribution of power
and responsibilities among the various levels of government. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply. Nevertheless, State and local officials were involved in
developing this rule. The RSAC, which was used to assist in the
development of this rule, has as permanent members, the AASHTO and the
ASRSM.
However, this proposed rule could have preemptive effect by
operation of law under a provision of the former Federal Railroad
Safety Act of 1970 (FRSA) (49 U.S.C. 20106 (Section 20106)) and the
HSL. The FRSA provides that States may not adopt or continue in effect
any law, regulation, or order related to railroad safety or security
that covers the subject matter of a regulation prescribed or order
issued by the Secretary of Transportation (with respect to railroad
safety matters) or the Secretary of Homeland Security (with respect to
railroad security matters), except when the State law, regulation, or
order qualifies under the ``essentially local safety or security
hazard'' exception to Section 20106. Moreover, the HSL have been
interpreted by the Supreme Court as totally preempting the field of the
hours of labor of railroad employees. Erie RR. Co. v. New York, 233
U.S. 671 (1914).
[[Page 16222]]
C. Executive Order 13175
FRA analyzed this proposed rule in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rule does
not significantly or uniquely affect tribes and does not impose
substantial and direct compliance costs on Indian tribal governments,
the funding and consultation requirements of Executive Order 13175 do
not apply, and a tribal summary impact statement is not required.
D. Regulatory Flexibility Act and Executive Order 13272
To ensure that the potential impact of this rulemaking on small
entities is properly considered, FRA developed this proposed rule in
accordance with Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') and DOT's policies and procedures to
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant economic
impact on a substantial number of small entities.
As discussed in earlier sections of this preamble, FRA is proposing
to establish hours of service regulations, including maximum on-duty
periods, minimum off-duty periods, and other limitations, for train
employees providing commuter and intercity rail passenger
transportation. The proposed regulations would require that commuter
and intercity passenger railroads analyze and mitigate the risks for
fatigue in the schedules worked by their train employees, and that the
railroads submit to FRA for its approval the relevant schedules and
fatigue mitigation plans. This rule would also apply to train employees
of tourist, scenic, excursion, and historic railroads (tourist and
excursion railroads) as well. Issuance of these regulations would
relieve railroads covered by this rule from being covered by the more
strict hours of service laws governing freight train crews.
This proposed regulation is authorized by Section 108(e) of the
RSIA (49 U.S.C. 21109(b)) and is intended to promote safe railroad
operations by limiting the hours of service for passenger railroad
train employees and ensuring that they receive adequate opportunities
for rest in the course of performing their duties. The main goal of
this rulemaking is to identify and reduce fatigue for the employees who
will be covered by the final rule. As described in Section II of this
preamble, FRA has based the proposed regulation on scientific research
related to fatigue and fatigue abatement, as applied to railroad
scheduling practices and operating conditions for train employees of
commuter and intercity passenger railroads. FRA is also proposing
conforming changes to existing hours of service recordkeeping
requirements.
Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act. Railroads
have been subject to the provisions of this Act or successor Federal
hours of service laws since it was first enacted. Currently, railroads
are subject to the version of 49 U.S.C. 21103 that was in effect the
day before the enactment of the RSIA, with respect to their train
employees who are engaged in intercity or commuter rail transportation,
including tourist and excursion rail operations.
FRA is certifying that this proposed rule will result in ``no
significant economic impact on a substantial number of small
entities.'' The following section explains the reasons for this
certification.
1. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. In this case, the ``universe''
comprises Class III freight railroads that provide train crews for
commuter operations and tourist and excursion railroads.
``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section
601(3) defines a ``small entity'' as having the same meaning as ``small
business concern'' under Section 3 of the Small Business Act. This
includes any small business concern that is independently owned and
operated, and is not dominant in its field of operation. Section
601(4), likewise includes within the definition of ``small entities''
not-for-profit enterprises that are independently owned and operated,
and are not dominant in their fields of operation. Additionally,
Section 601(5) defines as ``small entities'' governments of cities,
counties, towns, townships, villages, school districts, or special
districts with populations less than 50,000.
The U.S. Small Business Administration (SBA) stipulates ``size
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be and still classify as a ``small
entity'' is 1,500 employees for ``Line-Haul Operating'' railroads, and
500 employees for ``Short-Line Operating'' railroads.\25\
---------------------------------------------------------------------------
\25\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR part 121. See also NAICS
Codes 482111 and 482112.
---------------------------------------------------------------------------
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to the authority provided to it by SBA, FRA has
published a final policy that formally establishes small entities as
railroads that meet the line haulage revenue requirements of a Class
III railroad.\26\ Currently, the revenue requirement is $20 million or
less in annual operating revenue, adjusted annually for inflation
($32,113,449 for 2008). This threshold is based on the Surface
Transportation Board's (STB) threshold of a Class III railroad carrier,
which is adjusted by applying the railroad revenue deflator
adjustment.\27\ FRA is using the STB's threshold in its definition of
``small entities'' for this rule.
---------------------------------------------------------------------------
\26\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
\27\ For further information on the calculation of the specific
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------
The proposed regulation would apply to railroads with respect to
their train employees engaged in commuter or intercity rail passenger
transportation as well as train employees of tourist and excursion
railroads. Intercity passenger railroads include Amtrak and the Alaska
Railroad, both of which employ their own train crews and neither of
which is considered a small entity. Amtrak is a Class I railroad, and
the Alaska Railroad is a Class II railroad. Amtrak is owned by the U.S.
Government, and the Alaska Railroad is owned by the State of Alaska.
Neither the U.S. nor the State of Alaska has a population of less than
50,000.
All commuter railroads in operation in the U.S. serve major
metropolitan areas with populations higher than 50,000. Although some
commuter railroads contract with Amtrak or other entities to operate
some or all of their trains, most employ their own train crews.
Train employees of only two small entities that operate trains
under contract for commuter railroads would be covered by this rule,
and they are not expected to be impacted significantly. Both of the
entities are Class III freight railroads with commuter rail train crew
schedules that would be considered
[[Page 16223]]
Type 1 assignments as defined by this proposed rule and thus be
determined not to exceed the fatigue threshold, thus exempting the
railroads from analyzing those work schedules. Their current train crew
assignments would be allowed to continue without change. Although this
proposal would impose some additional recordkeeping burden on these
entities for tracking days of consecutive service, the increase would
be nominal and proportionate to the extent of their passenger train
service, which is quite limited. These train crews would also be
subject to initial and refresher training no less frequently than every
three years. This training would cover the following topics: (1)
Physiological and human factors that affect fatigue, as well as
strategies to reduce or mitigate the effects of fatigue; (2)
opportunities for identification, diagnosis, and treatment of any
medical condition that may affect alertness or fatigue, including sleep
disorders; (3) alertness strategies, such as policies on napping, to
address acute drowsiness and fatigue while an employee is on duty; (4)
opportunities to obtain restful sleep at lodging facilities, including
employee sleeping quarters provided by the railroad; and (5) the
effects of abrupt changes in rest cycles for employees. There is
flexibility with respect to how the training is delivered (e.g.,
computer-based training, job briefings, pamphlets, as well as in class
instruction). Such training could be accomplished in about one hour
initially and 15 minutes triennially per train employee. Small freight
railroads operating commuter trains could recoup any costs associated
with this rulemaking from the commuter authorities with which they
contract.
The requirements of this rule that would apply to tourist and
excursion railroads are those contained in subpart F, Substantive Hours
of Service Requirements for Train Employees Engaged in Commuter or
Intercity Rail Passenger Transportation, as well as the conforming
changes to the recordkeeping requirements in subpart B. FRA regulates
approximately 140 tourist and excursion railroads nationwide.
Approximately 130 of these railroads have fewer than 15 covered
employees and thus qualify for exemption from the limitations that
would be imposed under proposed Sec. 228.403. As noted earlier, this
particular exemption is substantively identical to the exemption
provision of the HSL at 49 U.S.C. 21102(b), which was unchanged by the
RSIA. Proposed Sec. 228.403 would provide the same opportunity for a
railroad to seek an exemption from the requirements of this subpart as
a railroad would have to seek an exemption from the statutory
requirements applicable to its other employees. Thus these 130 tourist
and excursion railroads would not be impacted any differently by this
rulemaking than by the HSL.
About 10 tourist and excursion railroads have more than 15 covered
employees, yet by virtue of their train service schedules would
generally have only Type 1 assignments, which have been determined not
to exceed the fatigue threshold, thus exempting the railroads from
analyzing or mitigating Type 2 work schedules. Scheduled assignments
that include ``Dinner Train'' operations may be the only ones impacted
by the requirement for analysis or mitigation. Information available
regarding train schedules for these railroads indicates that trains do
not operate for more than 12 hours on any day with virtually all train
service starting at 10 a.m. or afterward. Dinner trains operate until
no later than 10 p.m. and are not in operation every day of the week.
They generally operate once a week and in no case more than three days
a week. Thus the impact of crew assignment limitations would be
minimal. Impacted railroads may conduct the analysis in house or
contract it out for a nominal fee. Given the similarity of the
assignments, the tourist and excursion railroads impacted may decide to
address the assignments that include ``Dinner Trains'' jointly, either
under the auspices of the Tourist Railway Association, Inc. or
otherwise. The consecutive-day limitations will likely not impact these
railroads since they already accommodate time off for their train
crews. Given the very limited train service and the need to accommodate
time off now, crew schedules should allow for the proposed time off
following consecutive days of service requirement to be met. Since
``Dinner Trains'' are not included in most assignments, the majority of
current scheduled train crew assignments would run no later than 6:30
p.m. and thus be considered Type 1 assignments and be unaffected,
assuming the consecutive-day limitations do not affect them. Although
the modifications to existing recordkeeping requirements proposed would
impose some additional net burden on these entities, the increase would
be nominal and proportionate to the size of their passenger service,
which is quite limited. The training requirements discussed above would
also apply to the approximately 10 tourist and excursion railroads and
vary in proportion to the size of each operation. Note, however, that
the training cost associated with this proposed rule is lower than that
associated with complying with the training requirements for the
freight hours of service laws.
The limitations on service proposed afford significantly more
flexibility to passenger train employees than those imposed by the RSIA
on freight train employees. Given that, in absence of a final rule
effective by October 16, 2011, passenger train employees would be
subject to the more stringent freight hours of service laws (49 U.S.C.
21103), issuance of this proposed rule could only create a cost savings
for small entities impacted. In addition, the more stringent
requirements proposed for schedules of employees who operate trains
during the late night hours, in which the fatigue risk is greatest,
would probably not apply to any tourist and excursion railroads because
they do not operate during late night hours.
No shippers, contractors, or small governmental jurisdictions would
be directly impacted by this proposal.
If FRA receives a specific request for a public hearing, one will
be scheduled, and FRA will publish a supplemental notice in the Federal
Register to inform interested parties of the date, time, and location
of any such hearing.
2. Certification
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
FRA Administrator certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
FRA requests comments on both this analysis and this certification.
E. Paperwork Reduction Act
The information collection requirements in this proposed 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 current and proposed information
collection requirements, and the estimated time to fulfill each
requirement are as follows:
[[Page 16224]]
----------------------------------------------------------------------------------------------------------------
49 CFR Section or statutory Respondent Total annual Average time per Total annual
provision universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of Duty Records 768 railroads/ 27,429,750 records. 2 min./5 min./10 2,856,125
(Current Requirement). signal contractors. min..
228.17--Dispatchers Record of 150 Dispatch 200,750 records.... 3 hours............ 602,250
Train Movements (Current Offices.
Requirement).
228.19--Monthly Reports of 300 railroads...... 2,670 reports...... 2 hours............ 5,340
Excess Service (Current
Requirement But Now includes
Limbo time and consecutive days
on duty Proposed New/Revised
Requirement).
228.103--Construction of 50 railroads....... 1 petition......... 16 hours........... 16
Employee Sleeping Quarters--
Petitions to allow construction
near work areas (Current
Requirement).
228.203--Program Components 9 railroads........ 5 modifications.... 120 hours.......... 600
(Current Requirements)--
Electronic Recordkeeping--
Modifications for Daylight
Savings Time.
--System Security/Individual 9 railroads........ 1 program w/ 720 hours.......... 720
User Identification/Program security/etc..
Logic Capabilities/Search
Capabilities.
228.205--Access to Electronic 768 railroads/ 100 electronic 30 minutes......... 50
Records--(Current Requirement)-- signal contractors. records access
System Access Procedures for procedures.
Inspectors.
228.207--Training in Use of 768 railroads/ 47,000 tr. 1 hour............. 47,000
Electronic System--(Current signal contractors. employees.
Requirements)--Initial Training.
--Refresher Training........ 768 railroads/ 2,200 tr. employees 1 hour............. 2,200
signal contractors.
49 U.S.C. 21102(b)--The Federal 10 railroads....... 2 petitions........ 10 hours........... 20
hours of service laws--
Petitions for Exemption from
Laws (Current Requirement).
228.403--Exemption requests from 28 railroads....... 5 exemption 8 hours............ 40
passenger/commuter railroads-- requests.
(Proposed/New Requirements).
--Initial exemption requests 140 railroads...... 130 exempt requests 2 hours............ 260
from tourist/excursion
railroads.
--Renewal exemption requests 140 railroads...... 130 renewal 30 minutes......... 65 hours
from tourist/excursion exemption requests.
railroads.
228.407--Analysis of Work 168 railroads...... 28 work schedule 80 hours........... 2,240
Schedules Submissions (Proposed/ analyses.
New Requirements).
--Reports to FRA of Work 168 railroads...... 20 reports......... 2 hours............ 40
Schedules that Exceed
Fatigue Threshold.
--Fatigue Mitigation Plans 168 railroads...... 15 plans........... 4 hours............ 60
Submitted to FRA.
--Submission of Work 168 railroads...... 15 work schedules.. 4 hours............ 60
Schedules Using Validation
Model At/Exceeding
Threshold that can be
mitigated by tools.
--Submission of Work 168 railroads...... 5 work schedules... 4 hours............ 20
Schedules Using Validation
Model At/Exceeding
Threshold that cannot be
mitigated by tools.
--RR Determinations of 168 railroads...... 20 decisions....... 2 hours............ 40
necessary schedules.
--RR Declaration that no 168 railroads...... 10 written 1 hours............ 10
work schedule needs to be declarations.
submitted to FRA for
exceeding fatigue threshold.
--Submission of follow-up 168 railroads...... 28 analyses........ 4 hours............ 112
analysis by RR due to work
schedule change.
--Updated fatigue mitigation 168 railroads...... 28 plans........... 4 hours............ 112
plans.
--RR consultations w/ 168 railroads...... 40 consults........ 4 hours............ 160
employees.
--Filed statements w/FRA by RR Employees/ 5 statements....... 2 hours............ 10
employees and employee Employee
organizations unable to Organizations.
reach consensus w/RR on
work schedules or
mitigation tools/RR
submissions to FRA.
228.411--Training Programs 168 railroads...... 29 programs........ 20 hours........... 580
(Proposed/New Requirements).
--Employee Initial Training. 168 railroads...... 10,000 tr. 1 hour............. 10,000
employees.
--Initial Training--New 168 railroads...... 150 trained 1 hour............. 150
Employees. employees.
--Triennial Refresher 168 railroads...... 10,150 tr. 15 minutes......... 2,538
Training of Employees. employees.
--Records of Training....... 168 railroads...... 10,150 records..... 5 minutes.......... 846
Appendix D: Guidance on Fatigue 168 railroads...... 4 plans............ 15 hours........... 60
Management Plans--(Proposed/New
Requirement).
----------------------------------------------------------------------------------------------------------------
[[Page 16225]]
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone
at 202-493-6132.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
F. Unfunded Mandates Reform Act
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $140,800,000 or more 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. The proposed rule will not result
in the expenditure, in the aggregate, of $100,000,000 or more (as
adjusted annually for inflation) in any one year, and thus preparation
of such a statement is not required.
G. Environmental Assessment
The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that Federal agencies analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. This proposed rule will not have a significant impact on
the human environment.
H. Privacy Act
FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477-78).
List of Subjects in 49 CFR Part 228
Administrative practice and procedures, Buildings and facilities,
Hazardous materials transportation, Noise control, Penalties, Railroad
employees, Railroad safety, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, FRA proposes to amend
part 228 of chapter II, subtitle B, title 49 of the Code of Federal
Regulations as follows:
PART 228--[AMENDED]
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 U.S.C. 103; and 49 CFR 1.49.
2. Section 228.1 is amended by removing the word ``and'' at the end
of paragraph (a), removing the period and adding ``; and'' at the end
of paragraph (b), and adding paragraph (c) to read as follows:
Sec. 228.1 Scope.
* * * * *
(c) Prescribes substantive hours of service requirements for train
employees engaged in commuter or intercity rail passenger
transportation.
3. Section 228.5 is amended by adding the following definitions in
alphabetical order to read as follows:
Sec. 228.5 Definitions.
* * * * *
Associate Administrator for Railroad Safety/Chief Safety Officer
means the Associate Administrator for Railroad Safety/Chief Safety
Officer, Office of Railroad Safety, Federal Railroad Administration,
1200 New Jersey Ave., SE., Washington, DC 20590, or any person to whom
he or she has delegated authority in the matter concerned.
* * * * *
FRA means the Federal Railroad Administration.
* * * * *
Type 1 assignment means an assignment to be worked by a train
employee who is engaged in commuter or intercity rail passenger
transportation that requires the employee to report for duty no earlier
than 4 a.m. on a calendar day and be released from duty no later than 8
p.m. on the same calendar day, and that complies with the provisions of
Sec. 228.405. For the purposes of this subpart, FRA considers a Type 1
assignment to present an acceptable level of risk for fatigue that does
not exceed the defined fatigue threshold under a scientifically valid,
biomathematical model of human performance and fatigue specified by FRA
at Sec. 228.407(c)(1) or approved by FRA at Sec. 228.407(c)(2) .
Type 2 assignment means an assignment to be worked by a train
employee who is engaged in commuter or intercity rail passenger
transportation that requires the employee to be on duty for any period
of time between 8:01 p.m. on a calendar day and 3:59 a.m. on the next
calendar day, or that otherwise fails to qualify as a Type 1
assignment.
[[Page 16226]]
A Type 2 assignment may be considered a Type 1 assignment if:
(1) It does not exceed the defined fatigue threshold under a
scientifically valid biomathematical model of human performance and
fatigue specified by FRA at Sec. 228.407(c)(2) or approved by FRA at
Sec. 228.407(c)(1);
(2) It complies with the provisions of Sec. 228.405; and
(3) It does not require the employee to be on duty for any period
of time between midnight and 4 a.m.
4. Section 228.11 is amended by revising paragraph (c) to read as
follows:
Sec. 228.11 Hours of duty records.
* * * * *
(c) Exceptions to requirements for train employees. Paragraphs
(b)(13) through (15) of this section do not apply to the hours of duty
records of train employees providing commuter rail passenger
transportation or intercity rail passenger transportation.
* * * * *
5. Section 228.19 is amended by adding paragraphs (c)(5) through
(10) to read as follows:
Sec. 228.19 Monthly reports of excess service.
* * * * *
(c) * * *
(5) A train employee initiates an on-duty period on more than 6
consecutive calendar days including one or more Type 2 assignments,
when the on-duty period on the sixth consecutive day ended at the
employee's home terminal.
(6) A train employee initiates an on-duty period on more than 7
consecutive days including one or more Type 2 assignments.
(7) A train employee returns to duty after initiating an on-duty
period on 6 or 7 consecutive days including one or more Type 2
assignments, without having had 24 consecutive hours off duty at the
employee's home terminal.
(8) A train employee initiates an on-duty period on 14 or more
calendar days including only Type 1 assignments without having had at
least two calendar days within the 14-day period in which the employee
has not initiated an on-duty period, if the on-duty period on the
fourteenth consecutive day ended at the employee's home terminal.
(9) A train employee initiates an on-duty period on more than 15
consecutive days including only Type 1 assignments.
(10) A train employee returns to duty after initiating an on-duty
period on 14 or 15 consecutive calendar days including only Type 1
assignments, without 2 consecutive calendar days off duty at the
employee's home terminal.
* * * * *
6. Part 228 is amended by adding Subpart F to read as follows:
Subpart F--Substantive Hours of Service Requirements for Train
Employees Engaged in Commuter or Intercity Rail Passenger
Transportation
Sec.
228.401 Applicability.
228.403 Nonapplication, exemption, and definitions.
228.405 Limitations on duty hours of train employees engaged in
commuter or intercity rail passenger transportation.
228.407 Analysis of work schedules; submissions; FRA review and
approval of submissions; fatigue mitigation plans.
228.409 Requirements for railroad-provided employee sleeping
quarters during interim releases and other periods available for
rest within a duty tour.
228.411 Training.
228.413 Compliance date.
Subpart F--Substantive Hours of Service Requirements for Train
Employees Engaged in Commuter or Intercity Rail Passenger
Transportation
Sec. 228.401 Applicability.
The requirements of this subpart apply to railroads and their
officers and agents, with respect to their train employees who are
engaged in commuter or intercity rail passenger transportation,
including train employees who are engaged in tourist, scenic, historic,
or excursion rail passenger transportation.
Sec. 228.403 Nonapplication, exemption, and definitions.
(a) General. This subpart does not apply to a situation involving
any of the following:
(1) A casualty;
(2) An unavoidable accident;
(3) An act of God; or
(4) A delay resulting from a cause unknown and unforeseeable to a
railroad or its officer or agent in charge of the employee when the
employee left a terminal.
(b) Exemption. The Administrator may exempt a railroad having not
more than a total of 15 train employees, signal employees, and
dispatching service employees from the limitations imposed by this
subpart on the railroad's train employees who are engaged in commuter
or intercity rail passenger transportation. The Administrator may allow
the exemption from this subpart after a full hearing, for good cause
shown, and on deciding that the exemption is in the public interest and
will not affect safety adversely. The exemption shall be for a specific
period of time and is subject to review at least annually. The
exemption may not authorize a railroad to require or allow its train
employees to be on duty more than a total of 16 hours in a 24-hour
period.
(c) Definitions. In this subpart--
Commuter or intercity rail passenger transportation has the meaning
assigned by section 24102 of title 49, United States Code, to the terms
``commuter rail passenger transportation'' or ``intercity rail
passenger transportation.''
Train employee who is engaged in commuter or intercity rail
passenger transportation includes a train employee who is engaged in
commuter or intercity rail passenger transportation regardless of the
nature of the entity by whom the employee is employed and any other
train employee who is employed by a commuter railroad or an intercity
passenger railroad. The term excludes a train employee of another type
of railroad who is engaged in work train service even though that work
train service might be related to providing commuter or intercity rail
passenger transportation.
Sec. 228.405 Limitations on duty hours of train employees engaged in
commuter or intercity rail passenger transportation.
(a) General. Except as provided in paragraph (c) of this section, a
railroad and its officers and agents may not require or allow a train
employee engaged in commuter or intercity rail passenger transportation
to remain or go on duty--
(1) Unless that employee has had at least 8 consecutive hours off
duty during the prior 24 hours; or
(2) After that employee has been on duty for 12 consecutive hours,
until that employee has had at least 10 consecutive hours off duty; or
(3) After that employee has initiated an on-duty period each day
for six consecutive calendar days including one or more Type 2
assignments, unless that employee has had at least 24 consecutive hours
off duty at the employee's home terminal during which time the employee
is unavailable for any service for any railroad; except that an
employee may either deadhead to the point of final release at the
employee's home terminal on a seventh consecutive day or initiate an
on-duty period on a seventh consecutive calendar day in order to return
to the employee's home terminal, and after arrival at the employee's
home terminal the employee must have had at least 24 consecutive hours
off duty at the employee's home terminal during which time the employee
is unavailable for any service
[[Page 16227]]
for any railroad before being allowed or required to remain or go on
duty; or
(4) After that employee has initiated on-duty periods including
only Type 1 assignments in a period of 14 consecutive calendar days,
and has not had at least a total of two calendar days in that 14-day
period in which the employee has not initiated an on-duty period, until
that employee has had at least two consecutive calendar days off duty
at the employee's home terminal during which time the employee is
unavailable for any service for any railroad; except that an employee
may either deadhead to the point of final release at the employee's
home terminal on a fifteenth consecutive day or initiate an on-duty
period on a fifteenth consecutive calendar day in order to return to
the employee's home terminal, and after arrival at the employee's home
terminal the employee must have had at least two consecutive calendar
days at the employee's home terminal during which the employee does not
initiate an on-duty period, and during which time the employee is
unavailable for any service for any railroad, before being allowed or
required to remain or go on duty. For the purposes of this paragraph
(a)(4), a new 14-day period begins each time the employee has
accumulated a total of two calendar days in which the employee has not
initiated an on-duty period.
(b) Determining time on duty. In determining under paragraph (a) of
this section the time that a train employee subject to this subpart is
on or off duty, the following rules apply:
(1) Time on duty begins when the employee reports for duty and ends
when the employee is finally released from duty;
(2) Time the employee is engaged in or connected with the movement
of a train is time on duty;
(3) Time spent performing any other service for the railroad during
a 24-hour period in which the employee is engaged in or connected with
the movement of a train is time on duty;
(4) Time spent in deadhead transportation to a duty assignment is
time on duty, but time spent in deadhead transportation from a duty
assignment to the place of final release is neither time on duty nor
time off duty;
(5) An interim period available for rest at a place other than a
designated terminal is time on duty;
(6) An interim period available for less than four hours rest at a
designated terminal is time on duty; and
(7) An interim period available for at least four hours rest at a
place with suitable facilities for food and lodging is not time on duty
when the employee is prevented from getting to the employee's
designated terminal by any of the following:
(i) A casualty;
(ii) A track obstruction;
(iii) An act of God; or
(iv) A derailment or major equipment failure resulting from a cause
that was unknown and unforeseeable to the railroad or its officer or
agent in charge of that employee when that employee left the designated
terminal.
(c) Emergencies. A train employee subject to this subpart who is on
the crew of a wreck or relief train may be allowed to remain or go on
duty for not more than four additional hours in any period of 24
consecutive hours when an emergency exists and the work of the crew is
related to the emergency. In this paragraph, an emergency ends when the
track is cleared and the railroad line is open for traffic.
Sec. 228.407 Analysis of work schedules; submissions; FRA review and
approval of submissions; fatigue mitigation plans.
(a) Analysis of work schedules. Each railroad subject to this
subpart must perform an analysis of one cycle of the work schedules
(the period within which the work schedule repeats) of its train
employees engaged in commuter or intercity rail passenger
transportation and identify those work schedules intended to be
assigned to its train employees, that, if worked by such a train
employee, put the train employee at risk for a level of fatigue at
which safety may be compromised. A level of fatigue at which safety may
be compromised, hereafter called ``the fatigue threshold,'' shall be
determined by procedures that use a scientifically valid,
biomathematical model of human performance and fatigue that has been
approved by the Associate Administrator for Railroad Safety/Chief
Safety Officer pursuant to paragraph (c)(1) of this section, or
previously accepted pursuant to paragraph (c)(2) of this section. Each
work schedule that exceeds the fatigue threshold must be--
(1) Reported to the Associate Administrator for Railroad Safety/
Chief Safety Officer as provided in paragraph (b) of this section, no
later than the date that is 180 days after the effective date of the
final rule;
(2) Either--
(i) Mitigated by action in compliance with the railroad's fatigue
mitigation plan that has been approved by the Associate Administrator
for Railroad Safety/Chief Safety Officer as specified in paragraph (b)
of this section, no later than the date that is 180 days after the
effective date of the final rule; or
(ii) Supported by a determination that has been approved by the
Associate Administrator for Railroad Safety/Chief Safety Officer as
specified in paragraph (b) of this section, that the schedule is
operationally necessary, and that the fatigue risk cannot be
sufficiently mitigated by the use of fatigue mitigation tools to reduce
the risk for fatigue to a level within the fatigue threshold, no later
than the date that is 180 days after the effective date of the final
rule; or
(iii) Both, no later than the date that is 180 days after the
effective date of the final rule; and
(3) Approved by FRA for use in accordance with paragraph (b) of
this section.
(b) Submissions of certain work schedules and any fatigue
mitigation plans and determinations of operational necessity or
declarations; FRA review and approval. (1) No later than the date that
is 180 days after the effective date of the final rule, the railroad
shall submit for approval to the Associate Administrator for Railroad
Safety/Chief Safety Officer the work schedules described in paragraphs
(b)(1)(i) and (ii) of this section. The railroad shall identify and
group the work schedules as follows:
(i) Work schedules that the railroad has found, using a validated
model (as specified in paragraph (c)(1) of this section or approved by
FRA in accordance with paragraph (c)(2) of this section) to present a
risk for a level of fatigue that is at or greater than the fatigue
threshold, but that the railroad has determined can be mitigated by the
use of fatigue mitigation tools so as to present a risk for a level of
fatigue that is less than the fatigue threshold. The fatigue mitigation
tools that will be used to mitigate the fatigue risk presented by the
schedule must also be submitted.
(ii) Work schedules that the railroad has found, using a validated
model (as specified in paragraph (c)(1) of this section or approved by
FRA in accordance with paragraph (c)(2) of this section), to present a
risk for a level of fatigue that is at or greater than the fatigue
threshold, but that the railroad has determined cannot be mitigated so
as to present a risk for a level of fatigue that is less than the
fatigue threshold by the use of fatigue mitigation tools, and that the
railroad has determined are operationally necessary. The basis for the
determination must also be submitted.
(2) If a railroad performs the analysis of its schedules required
by paragraph (a) of this section, and determines that none of them
presents a risk for fatigue that requires it to be submitted to the
[[Page 16228]]
Associate Administrator for Railroad Safety/Chief Safety Officer
pursuant to this paragraph, that railroad shall, no later than the date
that is 180 days after the effective date of the final rule, submit to
the Associate Administrator for Railroad Safety/Chief Safety Officer a
written declaration, signed by an officer of the railroad, that the
railroad has performed the required analysis and determined that it has
no schedule that is required to be submitted.
(3) FRA will review submitted work schedules, fatigue mitigation
tools, and determinations of operational necessity. If FRA identifies
any exceptions to the submitted information, the agency will notify the
railroad within 120 days of receipt of the railroad's submission.
(4) FRA will audit railroad work schedules and fatigue mitigation
tools every two years to ensure compliance with this section.
(c) Submission of models for FRA approval; validated models already
accepted by FRA. (1) If a railroad subject to this subpart wishes to
use a model of human performance and fatigue, not previously approved,
for the purpose of making part or all of the analysis required by
paragraph (a) or (d) of this section, the railroad shall submit the
model and evidence in support of its scientific validation, for the
approval of the Associate Administrator for Railroad Safety/Chief
Safety Officer. Decisions of the Associate Administrator for Railroad
Safety/Chief Safety Officer regarding the validity of a model are
subject to review under Sec. 211.55 of this chapter; or
(2) A railroad may use a model that is already accepted by FRA. FRA
has approved the Fatigue Avoidance Scheduling Tool\TM\ (FAST) issued on
July 15, 2009, by Fatigue Science, Inc., and Fatigue Audit
InterDyne\TM\ (FAID) version 2, issued in September 2007 by
InterDynamics Pty Ltd. (Australian Company Number (ACN) 057 037 635) as
scientifically valid, biomathematical models of human performance and
fatigue for the purpose of making the analysis required by paragraph
(a) or (d) of this section.
(d) Analysis of certain later changes in work schedules. (1)
Additional follow-up analysis must be performed each time that the
railroad changes one of its work schedules in a manner--
(i) That would differ from the FRA-approved parameters for hours of
duty of any work schedule previously analyzed pursuant to paragraph (a)
of this section; or
(ii) That would alter the work schedule to the extent that train
employees who work the schedule may be at risk of experiencing a level
of fatigue that exceeds the FRA-approved fatigue threshold established
by paragraph (a) of this section.
(2) Such additional follow-up analysis must be submitted for FRA
approval as provided under paragraph (b) of this section, as soon as
practicable, prior to the use of the new schedule for an employee
subject to this subpart.
(e) Fatigue mitigation plans. A written plan must be developed and
adopted by the railroad to mitigate the potential for fatigue for any
work schedule identified through the analysis required by Sec.
228.407(a) or (d) as at risk, including potential fatigue caused by
unscheduled work assignments. Compliance with the fatigue mitigation
plan is mandatory. The railroad shall review and, if necessary, update
the plan at least once every two years after adopting the plan.
(f) Consultation. (1) Each railroad subject to this subpart shall
consult with, employ good faith, and use its best efforts to reach
agreement with, all of its directly affected employees, including any
nonprofit employee labor organization representing a class or craft of
directly affected employees of the railroad, on--
(i) The railroad's review of work schedules found to be at risk for
a level of fatigue at which safety may be compromised (as described by
paragraph (a) of this section);
(ii) The railroad's selection of appropriate fatigue mitigation
tools; and
(iii) All submissions by the railroad to the Associate
Administrator for Railroad Safety/Chief Safety Officer for approval
that are required by this section.
(2) For purposes of this section, the term ``directly affected
employee'' means an employee to whom one of the work schedules applies
or would apply if approved.
(3) If the railroad and its directly affected employees, including
any nonprofit employee labor organization representing a class or craft
of directly affected employees of the railroad, cannot reach consensus
on any area described in paragraph (f)(1) of this section, then
directly affected employees and any such organization may file a
statement with the Associate Administrator for Railroad Safety/Chief
Safety Officer explaining their views on any issue on which consensus
was not reached. The Associate Administrator for Railroad Safety/Chief
Safety Officer shall consider such views during review and approval of
items required by this section.
Sec. 228.409 Requirements for Railroad-Provided Employee Sleeping
Quarters During Interim Releases and Other Periods Available for Rest
Within a Duty Tour.
(a) If a railroad subject to this subpart provides sleeping
quarters for the use of a train employee subject to this subpart during
interim periods of release as a method of mitigating fatigue identified
by the analysis of work schedules required by Sec. 228.407(a) and (d),
such sleeping quarters must be ``clean, safe, and sanitary,'' and give
the employee ``an opportunity for rest free from the interruptions
caused by noise under the control of the'' railroad within the meaning
of section 21106(a)(1) of title 49 of the United States Code.
(b) Any sleeping quarters provided by a railroad that are proposed
as a fatigue mitigation tool pursuant to Sec. 228.407(b)(1)(i), are
subject to the requirements of Sec. 228.407(f).
Sec. 228.411 Training
(a) Individuals to be trained. Each railroad subject to this
subpart shall provide training for its employees subject to this
subpart, and the immediate supervisors of its employees subject to this
subpart.
(b) Subjects to be covered. The training shall provide, at a
minimum, information on the following subjects that is based on the
most current available scientific and medical research literature:
(1) Physiological and human factors that affect fatigue, as well as
strategies to reduce or mitigate the effects of fatigue;
(2) Opportunities for identification, diagnosis, and treatment of
any medical condition that may affect alertness or fatigue, including
sleep disorders;
(3) Alertness strategies, such as policies on napping, to address
acute drowsiness and fatigue while an employee is on duty;
(4) Opportunities to obtain restful sleep at lodging facilities,
including employee sleeping quarters provided by the railroad; and
(5) The effects of abrupt changes in rest cycles for employees.
(c) Timing of initial training. Initial training shall be provided
to affected employees as soon as practicable, and to new employees
subject to this subpart within 90 days of their first working a
schedule subject to analysis under this subpart.
(d) Timing of refresher training. (1) At a minimum, refresher
training shall be provided every three calendar years.
(2) Additional refresher training shall also be provided when
significant changes are made to the railroad's fatigue mitigation plan
or to the available fatigue mitigation tools applied to an employee's
assignment or assignments at the location where he or she works.
(e) Records of training. A railroad shall maintain a record of each
[[Page 16229]]
employee provided training in compliance with this section and shall
retain these records for three years.
Sec. 228.413 Compliance date.
(a) General. On and after the date that is 180 days after the
effective date of the final rule, railroads subject to this subpart
shall--
(1) Comply with this subpart with respect to their train employees
who are engaged in commuter or intercity rail passenger transportation;
and
(2) Be exempt from complying with the provisions of old section
21103 and new section 21103 for such employees.
(b) Definitions. In this section--
(1) The term ``new section 21103'' means section 21103 of title 49,
United States Code, as amended by the Rail Safety Improvement Act of
2008 effective July 16, 2009.
(2) The term ``old section 21103'' means section 21103 of title 49,
United States Code, as it was in effect on the day before the enactment
of that Act.
7. Part 228 is amended by adding Appendix D to read as follows:
Appendix D: Guidance on Fatigue Management Plans
Railroads subject to subpart F of this part, Substantive Hours
of Service Requirements for Train Employees Engaged in Commuter or
Intercity Rail Passenger Transportation, may wish to consider
adopting a written fatigue management plan that is designed to
reduce the fatigue experienced by their train employees subject to
that subpart and to reduce the likelihood of accidents, incidents,
injuries, and fatalities caused by the fatigue of these employees.
If a railroad is required to have a fatigue mitigation plan under
Sec. 228.407 (containing the fatigue mitigation tools that the
railroad has determined will mitigate the risk posed by a particular
work schedule for a level of fatigue at or above the fatigue
threshold), then the railroad's fatigue management plan could
include the railroad's written fatigue mitigation plan, designated
as such to distinguish it from the part of the plan that is
optional, or could be a separate document. As provided in Sec.
228.407(a)(2) and (e), compliance with the fatigue mitigation plan
itself is mandatory.
A good fatigue management plan contains targeted fatigue
countermeasures for the particular railroad. In other words, the
plan takes into account varying circumstances of operations by the
railroad on different parts of its system, and should prescribe
appropriate fatigue countermeasures to address those varying
circumstances. In addition, the plan addresses each of the following
items, as applicable:
(1) Employee education and training on the physiological and
human factors that affect fatigue, as well as strategies to reduce
or mitigate the effects of fatigue, based on the most current
scientific and medical research and literature;
(2) Opportunities for identification, diagnosis, and treatment
of any medical condition that may affect alertness or fatigue,
including sleep disorders;
(3) Effects on employee fatigue of an employee's short-term or
sustained response to emergency situations, such as derailments and
natural disasters, or engagement in other intensive working
conditions;
(4) Scheduling practices for employees, including innovative
scheduling practices, on-duty call practices, work and rest cycles,
increased consecutive days off for employees, changes in shift
patterns, appropriate scheduling practices for varying types of
work, and other aspects of employee scheduling that would reduce
employee fatigue and cumulative sleep loss;
(5) Methods to minimize accidents and incidents that occur as a
result of working at times when scientific and medical research has
shown that increased fatigue disrupts employees' circadian rhythm;
(6) Alertness strategies, such as policies on napping, to
address acute drowsiness and fatigue while an employee is on duty;
(7) Opportunities to obtain restful sleep at lodging facilities,
including employee sleeping quarters provided by the railroad;
(8) The increase of the number of consecutive hours of off-duty
rest, during which an employee receives no communication from the
employing railroad or its managers, supervisors, officers, or
agents; and
(9) Avoidance of abrupt changes in rest cycles for employees.
Finally, if a railroad chooses to adopt a fatigue management
plan, FRA suggests that the railroad review the plan and update it
periodically as the railroad sees fit if changes are warranted.
Issued in Washington, DC, on March 15, 2011.
Karen J. Rae,
Deputy Administrator.
[FR Doc. 2011-6528 Filed 3-16-11; 4:15 pm]
BILLING CODE 4910-06-P