[Federal Register: May 27, 2009 (Volume 74, Number 100)]
[Rules and Regulations]
[Page 25329-25352]
[DOCID:fr27my09-10]

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Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 228

Hours of Service of Railroad Employees; Amended Recordkeeping and
Reporting Regulations; Final Rule

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. 2006-26176, Notice No. 1]
RIN 2130-AB85

Hours of Service of Railroad Employees; Amended Recordkeeping and
Reporting Regulations

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

ACTION: Final rule.

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SUMMARY: FRA is amending its hours of service recordkeeping and
reporting regulations to ensure the creation of records that support
compliance with the hours of service laws as amended by the Rail Safety
Improvement Act of 2008 (RSIA of 2008). This regulation will also
provide for electronic recordkeeping and reporting, and will require
training of employees and supervisors of those employees, who are
required to complete hours of service records, or are responsible for
making determinations as to excess service and the reporting of excess
service to FRA as required by the regulation. This regulation is
required by Section 108(f) of the RSIA of 2008.

DATES: This final rule is effective July 16, 2009. Petitions for
reconsideration must be received on or before July 6, 2009.

ADDRESSES: Petitions for reconsideration: Any petitions for
reconsideration related to Docket No. FRA-2006-26176, may be submitted
by any of the following methods:
     Web site: The Federal eRulemaking Portal, http://
www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all petitions received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted petitions, comments, or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to Room W12-140
on the Ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Norris, Operating Practices
Specialist, Operating Practices Division, Office of Safety Assurance
and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone<PHONE_NUMBER>); 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<PHONE_NUMBER>
or<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background and History
    A. Statutory History
    B. History of Hours of Service Recordkeeping
II. Rail Safety Improvement Act of 2008
    A. Substantive Changes to the HSL
    B. Rulemaking Mandate
III. Railroad Safety Advisory Committee Process
    1. Multiple-Train Reporting
    2. Pre-Population of Data
    3. Tie-up Procedures for Signal Employees
    4. Tracking Cumulative Totals Toward the 276-Hour Monthly
Maximum Limitation
    5. Multiple Reporting Points
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Statutory Authority
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment

I. Background and History

A. Statutory History

    Federal laws governing railroad employees' hours of service date
back to 1907. See Public Law 59-274, 34 Stat. 1415 (1907). These laws,
codified at 49 U.S.C. 21101 et seq. are intended to promote safe
railroad operations by limiting the hours of service of certain
railroad employees and ensuring that they receive adequate
opportunities for rest in the course of performing their duties. The
Secretary of Transportation (``Secretary'') is charged with the
administration of those laws, 49 U.S.C. 103(a), now collectively
referred to as the HSL. These functions have been delegated to the FRA
Administrator. 49 U.S.C. 103(c); 49 CFR 1.49(d).
    Congress substantially amended the HSL on two previous occasions.
The first significant amendments occurred in 1969. Public Law 91-169,
83 Stat. 463. The 1969 amendments reduced the maximum time on duty for
train employees from 16 hours to 14 hours effective immediately, with a
further reduction to 12 hours automatically taking effect two years
later. Congress also established provisions for determining, in the
case of a train employee, whether a period of time is to be counted as
time on duty. 49 U.S.C. 21103(b). In so doing, Congress also addressed
the issue of deadhead transportation time, providing that ``[t]ime
spent in deadhead transportation to a duty assignment'' is counted as
time on duty. (Emphasis added). Although time spent in deadhead
transportation from a duty assignment is not included within any of the
categories of time on duty, Congress further provided that it shall be
counted as neither time on duty nor time off duty. 49 U.S.C.
21103(b)(4). This provision effectively created a third category of
time, known commonly as ``limbo time.''
    In 1976, Congress again amended the hours of service laws in
several important respects. Most significantly, Congress expanded the
coverage of the laws, by including hostlers within the definition of a
train employee, and adding the section providing hours of service
requirements for signal employees, now codified at 49 U.S.C. 21104.
Congress also added a provision that prohibited a railroad from
providing sleeping quarters that are not free from interruptions of
rest caused by noise under the control of the railroad, and that are
not clean, safe, and sanitary, and prohibited the construction or
reconstruction of sleeping quarters in an area or in the immediate
vicinity of a rail yard in which humping or switching operations are
performed. See Public Law 94-348, 90 Stat. 818 (1976).

B. History of Hours of Service Recordkeeping

    With the formation of DOT and its regulatory agencies in 1966, the
oversight and enforcement of the HSL was transferred from the
Interstate Commerce Commission (ICC) to the newly established FRA.
Prior to this transfer the ICC had enforced reporting requirements
based on its May 2, 1921

order that established the records required to be maintained by
carriers relating to the time on duty of employees who were involved in
either the movement of trains (referred to in the current HSL as
``train employees'') or the issuance of movement authority (referred to
in the current HSL as ``dispatching service employees''). The ICC Order
mandated both the content and the format of the hours of service record
for train employees and dispatching service employees.
    The records required by the ICC Order included one titled ``Time
Return and Delay Report of Engine and Train Employees.'' The format and
required fields mandated for this record formed the basis for all train
employee hours of service recordkeeping and reporting, and for the
reporting requirements initially established by FRA for hours of
service recordkeeping by railroad employees in 49 CFR part 228, and
specifically Sec.  228.11.
    The ICC Order also mandated the format for a form titled ``Details
of Service'', which was a required part of the train employee's hours
of service record. This segment of the employee's record required the
railroads to report operational data that included train number, engine
number, the departure station, the time that the employee went on duty,
the time the train departed, the arrival station, the time the train
arrived, the time the employee went off duty, and the kind of service
in which the employee was working, i.e., passenger, freight, work
train, or deadhead. The Details of Service form contained entries for
each train with which an employee was associated during a duty tour.
    As was discussed above, the 1969 amendments to the HSL addressed
the issue of time spent by train employees in deadhead transportation
from a duty assignment to the point of final release, establishing that
such time is neither time on duty nor time off duty, which created a
new category of time that has come to be known as ``limbo time.''
Following the 1969 amendments, the railroads continued to use the ICC
recordkeeping formats. The ``Time Return'' portion of the recordkeeping
document only provided a place to enter on-duty time and off-duty time,
and could not accommodate the separate entry of limbo time. However,
the railroads also continued to use the ``Details of Service'' portion,
and this form became critical to proper recordkeeping. The ``Details of
Service'' required train arrival and departure times, usually included
comments as to when the crew had finished securing the train and
therefore was relieved from covered service, and indicated the
departure and arrival times of the deadhead vehicle and final release
from service. With this information, it was possible to differentiate
an employee's time spent on duty in covered service from time that was
spent awaiting deadhead transportation and in deadhead transportation
to the point of final release, which was limbo time.
    The 1921 ICC Order also required records and provided recordkeeping
formats for dispatching service employees, including records of
dispatchers' time on duty, and records documenting train operation over
the territory controlled by each dispatcher. The required records for
dispatching service employees included the ``Daily Time Report of
Dispatchers,'' the ``Dispatchers Record of Movement of Trains'', and
for those dispatching service employees known as operators, in addition
to the ``Daily Time Report of Dispatchers,'' a ``Station Record of
Train Movements,'' a form that identified the operators by shift, and
required the operator to list the train or engine number, along with
the arrival and departure times for each train passing the specific
station where the operator was located. Following the transfer of
responsibilities, FRA adopted the ICC's established reporting
requirements for dispatching service employees, but did not require its
specific format. However, the formats and data fields are still used,
even currently, by virtually all railroads that employ dispatching
service employees.
    As was discussed above, the Federal Railroad Safety Authorization
Act of 1976 expanded coverage of the HSL to signal employees. Congress
defined a signal employee as an individual employed by a railroad
carrier who is engaged in installing, repairing, or maintaining signal
systems. This, in effect, excluded contract signal employees from the
coverage of the HSL. The statutory limitations for signal employees
were very similar to those for train employees. Also, in both cases,
the HSL treated the time these employees reported for duty as the time
covered service began, irrespective of whether or not a covered
function was actually performed. In addition, both train employees and
signal employees had periods of time spent in travel to and from a duty
location, some of which the HSL treated as limbo time. Also, in both
cases, the HSL treated the time that one of these employees ``reports
for duty'' as the time that time on duty began. Because of the
similarities in their statutory provisions, the recordkeeping
requirements for these two functions were also quite similar, and FRA
did not need to revise its reporting requirements to establish distinct
recordkeeping provisions for signal employees.
    The 1921 ICC Order also stated, in part, that ``each carrier may at
its option, and with the approval of the Commission, add to such
records appropriate blanks for any additional information desired by
it.'' Over time, railroads came to record information for employee pay
claims, railroad operations and crew management on the same form that
was used for hours of service recordkeeping. The combination of pay and
hours of service information on the same document facilitated employee
hours of service reporting practices that were greatly influenced by
collective bargaining agreements and pay considerations, where
differences existed between the activities for which a collective
bargaining agreement required an employee to be paid, and those
activities required to be reported for the purposes of the HSL. For
example, an employee might report that he or she went off duty at the
time that his or her paid activities ended. This would not be accurate
reporting for the purposes of the HSL, if the duty tour included
deadhead transportation to the point of final release. Regardless of
whether an employee received additional pay for the deadhead
transportation, the HSL required the time to be recorded, and the
employee would not be off duty for the purposes of the HSL until after
the completion of the deadhead transportation.
    As technology expanded in the rail industry, some railroads in the
1980s became interested in electronically recording and reporting
employee hours of service data. By the mid to late 1980s, the CSX
Transportation, Inc. (CSX) had developed an automated program generated
from its crew management system. CSX began using the program to
generate and maintain hours of service records for its train employees.
The program produced paper copies of the recorded entries for the
employee's signature. Then, in 1991, CSX and the Union Pacific Railroad
Company jointly presented a proposal to use an electronic record,
without a signature, as the railroad's official train employee hours of
service record. Section 228.9 of the existing hours of service
recordkeeping regulations required that the hours of service record be
signed. Therefore, it was necessary for FRA to waive the signature
requirement, to allow for the development of a program that would allow
the railroad and its train employees to electronically record and store
hours of service information, with the employee electronically
certifying the accuracy of the entered

data, so that this record would become the official hours of service
record, in lieu of a signed paper record. As CSX worked to develop an
electronic program for which FRA would grant a waiver, a number of
issues became apparent. These issues had to be resolved to ensure that
the system would have sufficient data fields to allow the employee to
record the different events that occurred in his or her duty tour, to
capture all of the data necessary for FRA to determine compliance with
the HSL.
    The concept of electronic recordkeeping presented a significant
change in how employees were used to reporting their hours of service
information. Data entry moved from a dynamic manual reporting method,
in which a record was continually updated by the reporting employee
during the course of his or her duty tour, to an automated end-of-trip
report where all reporting related to a particular duty tour was made
in after-the-fact entries into the railroad's computer system, after
the completion of the duty tour. In addition, manual records afforded
the employee flexibility to provide information about any activities
that occurred during the duty tour, as well as any comments that might
be necessary to understand any apparent anomalies in reported
information. However, an electronic record would be limited to the data
fields provided by the recordkeeping program, so it was essential that
the programs were designed to provide sufficient data fields to
accommodate the variety of reporting scenarios that an employee might
encounter, so that the employee had the opportunity to record all
relevant data for the events that occurred in his or her duty tour.
    CSX's first attempt to develop an electronic recordkeeping system
resulted in a program that functioned in much the same manner as a
paper record, but without the comprehensive information provided by the
``Details of Service'' portion of the employee's record. It was on this
portion of their record that employees recorded a number of items that
were necessary for determining compliance with the HSL, including
deadhead transportation either to or from a duty assignment, multiple
covered service assignments, other activities performed for the carrier
that constituted commingled service if not separated from covered
service by a statutory off-duty period, and the distinct times that an
employee was relieved from covered service, and then subsequently
released from all service to begin a statutory off-duty period, which
would not be the same times when limbo time was present at the end of
the duty tour. In addition, the first attempt at an electronic
recordkeeping system also had not considered the features of the system
itself, that were necessary for ensuring the accuracy of the data and
the ability of FRA to use the data to determine compliance with the
HSL. These features included program logic that was necessary, for
example, to calculate total time on duty from the appropriate data
entered in the record, to require explanation when the total time on
duty exceeded the statutory maximum, and to use program edits to
identify obvious employee input errors. The mechanism for providing FRA
with the ability to access the electronic records was also an issue
that needed to be resolved. Because part 228, as drafted in 1972, did
not contemplate the existence of electronic recordkeeping, it provided
no framework for addressing these issues.
    However, FRA and CSX pledged to work together through a ``test
waiver'' process to develop a program with logic, edits, and access
that would accommodate FRA oversight and enforcement of the current HSL
provisions, and ultimately allow FRA to grant a waiver of the signature
requirement, thereby allowing hours of service data to be both reported
and recorded electronically. The FRA and CSX partnership eventually
resulted in the development of a system containing sufficient data
entry fields and system features to resolve many of the issues facing
movement to electronic recordkeeping.
    Another significant issue that arose in the development of
electronic recordkeeping systems was providing sufficient data fields
to differentiate limbo time from time spent performing covered service,
which distinction was necessary to correctly determine an employee's
total time on duty. The electronic programs that were initially devised
required the employee to report only an on-duty time and an off-duty
time, and the beginning and ending times of periods spent in
transportation. The records did not include the features of the delay
report that had been a part of the paper records, on which employees
included their beginning and ending location, date, and time for
periods spent in covered service assignments, and noted, for example,
that the ending time was the time at which the employee secured the
train, which completed his or her covered service on that train.
    The railroads viewed this information as not being required by Part
228, but this information was regularly used by FRA in reviewing
records for compliance with the HSL, and it was essential that the
information continue to be captured in electronic records. Without an
indication of the time that the employee stopped performing covered
service, there was no way to determine when the employee stopped
accumulating time on duty and when he or she began limbo time. Once the
employee stopped performing covered service, limbo time began, as the
time that the employee spent awaiting transportation to the point of
final release, like the transportation itself, was limbo time. However,
if the employee's record showed only the time that the employee
reported for duty, the time spent in transportation, and the off-duty
time, all of the time between reporting for duty and beginning deadhead
to the point of final release would necessarily be calculated as time
on duty, which could result in a record that incorrectly showed a total
time on duty in excess of the statutory maximum, because limbo time was
not properly reflected.
    To resolve these complex issues, FRA developed a 3x3 matrix, in
which an employee entered the location, date, and time for each time
that he or she went on duty in covered service, the location, date, and
time for each time that he or she was relieved from a covered service
assignment, and the location, date, and time for each time that he or
she was released from an assignment, to begin another assignment or
activity, or to be released from all service to begin a period of off-
duty time. This 3x3 matrix was eventually incorporated in all of the
waiver-approved electronic programs.
    However, deadhead transportation, and activities that constitute
other service for the carrier (which may commingle with covered
service) do not have relieved and released times in the activity. These
activities have only a beginning and an ending time for each event.
Thus, FRA also developed a second section of data entry, in which the
employee reported the location, date, and time for the beginning and
the ending of all non-covered service activities that are part of the
employee's duty tour, but may or may not be calculated in the
employee's total time on duty.
    FRA and CSX continued to work together until these early issues
were sufficiently resolved, and eventually, CSX was granted a waiver of
the signature requirement in Sec.  228.9. As a result, CSX was allowed
to utilize an electronic recordkeeping program, in which its train
employees reported their hours of service at the end of each duty tour,
and those electronic records constituted the official hours of service

record for CSX train employees. As the use of electronic information
systems further expanded in the industry, other railroads began
developing, with assistance from FRA, electronic hours of service
recordkeeping programs patterned somewhat after the original CSX
program. During the development of the later programs, as well as
audits of the CSX program after it was fully functioning, other issues
began to surface, some of which remained topics of discussion during
this rulemaking. Among those issues were the reporting of multiple
covered service assignments in a duty tour, and administrative duties
performed after the twelfth hour on duty.
    Multiple-train duty tours have occurred in the railroad industry
for decades. As was discussed above, employees used the ``Details of
Service'' section of the paper hours of service record to provide the
times spent in covered service on each train to which the employee was
assigned, and on each train on which the employee may have been in
deadhead transportation, whether that deadhead transportation was
transportation to the first covered service assignment of a duty tour,
transportation from one covered service assignment to another within a
duty tour, or transportation to the point of final release at the end
of a duty tour. For many years, employees diligently reported each
train to which they were assigned or on which they deadheaded, because
employees were paid for a minimum 100-mile day for each such train.
However, as collective bargaining agreements evolved, and employees
were instead paid on the basis of actual miles run, it became more
common to use a single crew to handle multiple trains.
    In the development of electronic programs, FRA was concerned that
the programs initially lacked the ability to segment the employee's
record by train, for data entry and program logic purposes, as well as
for inspection and enforcement purposes. If an employee did not report
individually the locations, dates, and times that he or she went on
duty, was relieved, and was released for each covered service
assignment in a multiple-train duty tour, the program read the data as
if the employee had worked on one train with a lengthy and continuous
period of time on duty, often in excess of the statutory 12-hour limit
when a statutory interim release was present. In addition, FRA
inspections yielded records that did not present all crew members
assigned to a particular train, or in which trains appeared to
disappear at one point on line-of-road and reappear at another point,
suggesting that a record was missing in the database.
    Because all of the existing and developing programs were tied to
the railroad's crew management, FRA proposed that railroad crew
management initiate a separate call for each assignment, so that each
would have a data entry screen created to differentiate between
multiple covered service assignments in a duty tour. The railroads
resisted this proposal because the additional calls would increase the
level of work for crew dispatchers. The railroads also expressed
concerns about collective bargaining issues regarding pay claims for
each call. FRA noted, however, that there was past historical precedent
for employees completing a separate report for each assignment,
although there were pay-related reasons for doing so which were not now
always present. However, this dispute led to a solution which would not
require additional crew dispatcher involvement. Programs were designed
to allow the employee to use a function key to access additional
reporting screens for reporting multiple trains or non-covered service
activities. This feature of the programs mimicked the manner in which
employees previously added additional forms to reflect multiple
assignments prior to electronic recordkeeping. Once the crew dispatcher
has called a crew to duty on one train or job and has established the
employee's initial reporting screens, the employee may work multiple
assignments at the discretion of the railroad and report the activities
involved in each train without the crew dispatcher having to take any
further action to create another call to establish the necessary
additional reporting screens. This feature not only allows the employee
to report the actual events of his or her duty tour, but also allows
the program's FRA Inspection System to identify and present records
based on train identification.
    As was noted above, one of the many ways in which electronic
recordkeeping represents a significant change in the way that employees
report their time is that with electronic recordkeeping programs, all
reporting is accomplished at time of tie-up, just prior to the
employee's being released from all service to the carrier to begin a
statutory off-duty period, the electronic record thereby becoming an
``end-of-trip report.'' In contrast, manual records maintained by the
reporting employee allowed the employee to periodically add information
to the record while continuing with the activities of his or her duty
tour. Then, when the reporting employee reached his or her point of
final release, he or she would complete the reporting, sign the record,
and place it in the appropriate collection receptacle. Also, any other
reporting or recording activities, including payroll, or other data
beyond hours of service for the benefit of either the railroad or the
employee, were completed at this time. As long as the reporting
employee had not reached the statutory limits for the duty tour, he or
she was allowed to take as long as necessary to complete any reporting,
recording, and other administrative duties. However, in the event that
the reporting employee was at or beyond his or her statutory limits,
FRA had a long standing policy of exercising prosecutorial discretion
to allow a few minutes for the reporting employee to complete his or
her administrative duties.
    However, as railroads moved to electronic recordkeeping, the
reporting employee could not begin reporting any of his or her train
operation, pay and hours of service data in an electronic program prior
to arrival at his or her final terminal, so the time involved in
completing the necessary reporting might exceed a few minutes,
especially if a large amount of work order reporting or other
documentation beyond hours of service was required. Railroad labor
organizations challenged FRA's practice of allowing a few minutes in
excess of the 12-hour statutory maximum time on duty to complete
administrative duties. FRA recognized the validity of these concerns,
but also recognized the need for certain information at the conclusion
of the duty tour to ensure compliance with the HSL. The railroad must
know both the time that an employee is relieved from covered service,
and the time that the employee is released from all duties, in order to
determine the minimum off-duty period that the employee required under
the HSL, when to start the statutory off-duty period, and at what time
the employee would have completed the minimum required rest to remain
in compliance with the HSL. Because the employee is the one with first-
hand knowledge of these times as applied to his or her own duty tour,
FRA believed that the employee was best suited to certify the accuracy
of these times.
    FRA convened a Technical Resolution Committee (TRC) in 1996 to
resolve this issue. Initially, the TRC leaned toward limiting the
employee initiated tie-up to just a relieved time and a released time.
Ultimately, however, two additional items were included, which were
necessary to both the railroads and the employees from an operational
perspective. Because many collective

bargaining agreements contained provisions for how and when an employee
would be placed back in a pool or on an extra board following tie-up,
both the railroad and the employee needed to be aware of the employee's
placement time before the employee began the statutory off-duty period.
Finally, FRA allowed the employee to enter information to provide a
contact number, if different from the number on record, to ensure that
the railroad could contact the employee regarding his or her next
assignment.
    With these four items (a relieved time, a released time, a board
placement time, and a contact number, if different from that of
record), FRA believed that the railroad would have sufficient
information to know when the employee could legally next be called to
duty. Although the HSL does not authorize performance of any
administrative duties in the period beyond the employee's statutory
maximum, FRA announced a policy that allowed an employee who was being
released from a duty tour to begin a statutory off-duty period after
more than 12 hours of total time on duty (including limbo time) to
complete a ``quick tie-up'' limited to entering and certifying these
four items. The quick tie-up was not intended for use when the employee
had time remaining within the statutory limits to complete a full
record at the end of the duty tour. The intention was to require the
employee whose duty tour had reached or exceeded the statutory limits
to perform only the minimum administrative duties necessary to
determine when the employee would next be available to be called for
duty. If the railroad did not require the employee to perform any other
administrative duties in addition to the quick tie-up, FRA would
exercise its prosecutorial discretion and not prosecute the railroad
for requiring the employee to perform administrative duties beyond the
employee's statutory limits. FRA allowed the completion of any record
in which only quick tie-up information had been entered prior to the
statutory off-duty period, when the employee returned to duty. FRA
announced this policy in a Technical Bulletin OP No. 96-03 (since
renumbered as OP 04-27). After this policy was announced, railroads
developed data entry screens that allowed employees to enter and
certify only the quick tie-up information when appropriate, allowing
the completion of the record when the employee next reported for duty.
Electronic recordkeeping systems were also designed to require
completion of the full record before it could be certified if the
employee had not reached the maximum statutory limit for the duty tour.
    In addition to the many issues related to ensuring that the
developing electronic recordkeeping systems allowed the employees to
enter sufficient data to determine compliance with the HSL, there were
also issues to be resolved as to how FRA would access the system and
the records that it created. The initial proposal from CSX provided
that an officer would log into the railroad's network using his or her
identification number (ID) and password and access the employees' entry
screens. The officer would then turn over the computer to the FRA
Inspector, who would directly review all of the data entered by the
employee. This procedure presented a security issue that FRA wanted to
avoid. Instead, CSX developed an inspection system that was available
only to FRA inspectors through the use of unique FRA IDs and passwords
that allowed FRA inspectors to access and retrieve only hours of
service records, using a combination of selection criteria to retrieve
a specific record or group of records. Selection criteria for records
searches were: By employee name or ID; by train or job; and by location
(which could include a yard, a subdivision or division (service unit)
or other railroad area), combined with a date or date range. Another
option for the FRA or participating State inspector is to search for
records reporting in excess of 12 hours total time on duty, combining
this with a date or date range, and possibly other selection criteria.
Combinations of the ``optional'' fields can narrow a selection to a
precise time frame. This method of access allowed FRA to ensure that
the hours of service records were protected from alteration and
unauthorized access, which would not be possible if the same method of
access allowed access to other railroad data, which FRA could not
restrict.
    The unique FRA IDs and passwords are not permanently assigned to a
specific FRA Inspector, but are given out upon the request of an
inspector prior to an inspection. Passwords are temporary, and expire
in seven days or less. Upon arrival at the rail facility, the FRA
Inspector contacts the local railroad officer and presents his or her
credentials for verification. The inspector is then provided the
necessary ID and password and assigned a computer terminal with printer
capabilities for use during his or her inspection.
    Using the selection criteria, FRA could retrieve records in a
manner that was crew based and duty tour oriented, even if employees
each reported individually. This meant that the records for all members
of a requested train or job were displayed together. In addition, if a
duty tour involved multiple covered service assignments, the whole crew
would be displayed for each train or job ID, and all records for a
given duty tour would be displayed together, with total time on duty
for the entire duty tour displayed on the last record of a multiple
covered service assignment duty tour.
    In the early stages of program development with CSX, FRA began to
develop a guide for electronic recordkeeping, which has been used for
several years to assist railroads in developing electronic
recordkeeping programs for which FRA might likely grant waiver
approval. The guide has been used successfully for approximately 15
years. The requirements for electronic recordkeeping systems imposed by
this regulation are largely based on the guide and the resulting
waiver-approved programs currently in existence.
    At present, four Class I carriers (CSX, Norfolk Southern Railway
Company, Union Pacific Railroad Company, and Canadian National Railway)
have waiver authority to use their existing electronic hours of service
recordkeeping programs to record and report the official hours of
service records for their train employees. There are no waiver-approved
electronic recordkeeping programs for the records of signal employees
or dispatching service employees, although there has been interest in
moving to electronic recordkeeping for these employees, and there are
some programs in various stages of development.

II. Rail Safety Improvement Act of 2008

    Section 108 of the Rail Safety Improvement Act of 2008 (Pub. L.
110-432), substantively amends the HSL in a number of ways. It also
provides the statutory mandate for this rulemaking, because it requires
that FRA revise its hours of service recordkeeping requirements to take
into account these substantive changes, as well as to provide for
electronic recordkeeping and to require training.

A. Substantive Amendments to the HSL

    Effective July 16, 2009, section 108(a) amends the definition of
``signal employee'', to eliminate the words ``employed by a railroad
carrier.'' With this amendment, employees of contractors or
subcontractors to a

railroad who are engaged in installing, repairing, or maintaining
signal systems (the functions within the definition of signal employee
in the HSL) will be covered by the HSL, because a signal employee under
the HSL is no longer by definition only a railroad employee.
    Section 108(b) amends the hours of service requirements for train
employees in many ways, all of which are effective July 16, 2009. The
provision limits train employees to 276 hours of time on-duty, awaiting
or in deadhead transportation from a duty assignment to the place of
final release, or in any other mandatory service for the carrier per
calendar month. The provision retains the existing maximum of 12
consecutive hours on duty, but increases the minimum off-duty period to
10 hours consecutive hours during the prior 24-hour period.
    Section 108(b) also requires that after an employee initiates an
on-duty period each day for six consecutive days, the employee must
receive at least 48 consecutive hours off duty at the employee's home
terminal, during which the employee is unavailable for any service for
any railroad; except that if the sixth on-duty period ends at a
location other than the home terminal, the employee may initiate an on-
duty period for a seventh consecutive day, but must then receive at
least 72 consecutive hours off duty at the employee's home terminal,
during which time the employee is unavailable for any service for any
railroad.
    Section 108(b) further provides that employees may also initiate an
on-duty period for a seventh consecutive day and receive 72 consecutive
hours off duty if such schedules are provided for in existing
collective bargaining agreements for a period of 18 months, or after 18
months by collective bargaining agreements entered into during that
period, or a pilot program that is either authorized by collective
bargaining agreement, or related to work rest cycles under section
21108 of the HSL.
    Section 108(b) also provides that the Secretary may waive the
requirements of 48 and 72 consecutive hours off duty if a collective
bargaining agreement provides a different arrangement that the
Secretary determines is in the public interest and consistent with
safety.
    The RSIA of 2008 also significantly changes the hours of service
requirements for train employees by establishing for the first time a
limitation on the amount of time an employee may spend awaiting and in
deadhead transportation. These new requirements, also found in section
108(b), provide that a railroad may not require or allow an employee to
exceed 40 hours per month awaiting or in deadhead transportation from
duty that is neither time on duty nor time off duty in the first year
after the date of enactment, with that number decreasing to 30 hours
per employee per month after the first year, except in situations
involving casualty, accident, track obstruction, act of God including
weather causing delay, derailment, equipment failure, or other delay
from unforeseeable cause. Railroads are required to report to the
Secretary all instances in which these limitations are exceeded. In
addition, the railroad is required to provide the train employee with
additional time off duty equal to the amount that combined on-duty time
and time awaiting or in transportation to final release exceeds 12
hours.
    Finally, section 108(b) restricts communication with train
employees except in case of emergency during the minimum off-duty
period, statutory periods of interim release, and periods of additional
rest required equal to the amount that combined on-duty time and time
awaiting or in transportation to final release exceeds 12 hours.
However, the Secretary may waive this provision for train employees of
commuter or intercity passenger railroads if the Secretary determines
that a waiver would not reduce safety and is necessary to efficiency
and on time performance.
    However, section 108(d) of the RSIA of 2008 provides that the
requirements described above for train employees will not go into
effect on July 16, 2009 for train employees of commuter and intercity
passenger railroads. This section provides the Secretary with the
authority to issue hours of service rules and orders applicable to
these train employees, which may be different than the statute applied
to other train employees. It further provides that these train
employees will continue to be governed by the HSL as it existed prior
to the RSIA of 2008 until the effective date of regulations promulgated
by the Secretary. However, if no new regulations have been promulgated
before October 16, 2011, the provisions of section 108(b) would be
extended to these employees at that time.
    Section 108(c) of the RSIA of 2008 amends the hours of service
requirements for signal employees in a number of ways, effective July
16, 2009. As was noted above, by amending the definition of ``signal
employee,'' it extends the reach of the substantive requirements to a
contractor or subcontractor to a railroad carrier and its officers and
agents. In addition, as section 108(b) does for train employees,
section 108(c) retains for signal employees the existing maximum of 12
consecutive hours on duty, but increases the minimum off-duty period to
10 consecutive hours during the prior 24-hour period.
    Section 108(c) also eliminates language in the HSL stating that
last hour of signal employee's return from final trouble call is time
off duty, and defines ``emergency situations'' in which the HSL permits
signal employees to work additional hours not to include routine
repairs, maintenance, or inspection.
    Section 108(c) also contains language virtually identical to that
in section 108(b) for train employees, prohibiting railroad
communication with signal employees during off-duty periods except for
in an emergency situation.
    Finally, section 108(c) provides that the hours of service, duty
hours, and rest periods of signal employees are governed exclusively by
the HSL, and that signal employees operating motor vehicles are not
subject to other hours of service, duty hours, or rest period rules
besides FRA's.
    Section 108(e) specifically provides FRA a statutory mandate to
issue hours of service regulations for train employees of commuter and
intercity passenger railroads. It also provides FRA additional
regulatory authority not relevant to the present rulemaking, and
requires FRA to complete at least two pilot projects.

B. Rulemaking Mandate

    Section 108(f) requires the Secretary to prescribe a regulation
revising the requirements for recordkeeping and reporting for Hours of
Service of Railroad Employees contained in part 228 of title 49, Code
of Federal Regulations to adjust recordkeeping and reporting
requirements to support compliance with chapter 211 of title 49, United
States Code, as amended by the RSIA of 2008; to authorize electronic
recordkeeping, and reporting of excess service, consistent with
appropriate considerations for user interface; and to require training
of affected employees and supervisors, including training of employees
in the entry of hours of service data.
    Section 108(f) further provides that the regulation must be issued
not later than 180 days after October 16, 2008, and that in lieu of
issuing a notice of proposed rulemaking as contemplated by 5 U.S.C.
553, the Secretary may utilize the Railroad Safety Advisory Committee
(RSAC) to assist in development of the regulation.

III. Railroad Safety Advisory Committee Process

A. Overview of the RSAC

    In March 1996, FRA established RSAC, which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major customer groups,
including railroads, labor organizations, suppliers and manufacturers,
and other interested parties. A list of member groups follows:
     American Association of Private Railroad Car Owners
(AARPCO);
     American Association of State Highway and Transportation
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association
(ASLRRA);
     American Train Dispatchers' Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Railroad Administration (FRA);
     Federal Transit Administration (FTA)*;
     Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace
Workers;
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement*;
     League of Railway Industry Women*;
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women*;
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB)*;
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte*;
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada*;
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC
(TCIU/BRC);
     Transportation Security Administration (TSA)*; and
     United Transportation Union (UTU).
    * Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. If a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff play an active role at the working group level in discussing
the issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation, and the agency exercises its independent judgment on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal or final
rule. Any such variations would be noted and explained in the
rulemaking document issued by FRA. If the working group or RSAC is
unable to reach consensus on a recommendation for action, FRA moves
ahead to resolve the issue through traditional rulemaking proceedings.

B. RSAC Proceedings in This Rulemaking

    Given the time constraints within which FRA was required to issue
this regulation, FRA decided to request the assistance of the RSAC in
developing it, in order to take advantage of the provisions of the
statutory mandate which allowed FRA to proceed to a final rule, without
having first issued a notice of proposed rulemaking. FRA proposed Task
No. 08-06 to the RSAC on December 10, 2008. The RSAC accepted the task,
and formed the Hours of Service Working Group (Working Group) for the
purpose of developing the hours of service recordkeeping regulations
required by section 108(f) of the RSIA of 2008.
    The Working Group was comprised of members from the following
organizations:
     AASHTO
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway Company (CN), Canadian Pacific Railway,
Limited (CP), CSX Transportation, Inc. (CSXT), Iowa Interstate
Railroad, Ltd. (IAIS), Kansas City Southern (KCS), Norfolk Southern
Corporation (NS), and Union Pacific Railroad Company (UP);
     BLET;
     BRS;
     Federal Railroad Administration (FRA);
     IBEW
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     Southeastern Pennsylvania Transportation Authority
(SEPTA);
     Tourist Railway Association; and
     UTU.
    The Working Group completed its work after four meetings and two
conference calls. The first meeting of the Working Group took place on
January 22-23, 2009, in Washington, DC. Subsequent meetings were held
on February 4-6, 2009, February 18-20, 2009, and March 23-24, 2009,
each also in Washington, DC. Conference calls were held on March 30 and
March 31, 2009. The Working Group achieved consensus on the rule text
with the exception of one issue. The group's recommendation, including
the one area of non-consensus, was presented to the full RSAC on April
2, 2009, and the full RSAC accepted its recommendation. This regulation
is consistent with the recommendation of the Working Group, with the
exception of the issue on

which the group failed to reach consensus.
    Prior to the first meeting of the Working Group, FRA distributed
draft rule text to provide a framework for the discussions. This
enabled the group to focus its discussions on those issues with which
the other members of the group disagreed or had concern. The issues
that led to significant discussion and subsequent changes in the
initial rule text can generally be characterized in one of four ways:
(1) Disagreement of members of the Working Group with some aspects of
FRA's current approach to electronic recordkeeping that had been
mirrored in the draft rule text; (2) concern about making the
requirements for electronic recordkeeping systems sufficiently flexible
to accommodate the circumstances of those groups of employees who are
not currently reporting and recording their hours of service
electronically, but may do so in the future; (3) concern about the
burden of some of the recordkeeping requirements on those railroads or
contractors or subcontractors to a railroad who use paper records; and
(4) concerns about FRA's interpretation of the substantive provisions
of the HSL that have an effect on recordkeeping, including new issues
arising from the RSIA of 2008, as well as other substantive
interpretations that some members of the group wished to have clarified
or urged FRA to change. The most significant of these issues will be
discussed in this section. Other subjects of discussion within the
working group will be discussed in the section-by-section analysis of
the language to which they relate.
1. Multiple-Train Reporting
    As was discussed in section IB, above, of the preamble, FRA
required that electronic recordkeeping programs for which it granted a
waiver would require the employee to report each assignment in a duty
tour. In brief, FRA's reason for this approach was that it allowed FRA
to search for records by the job or assignment, and to retrieve the
full records of each employee on that assignment, so that they could be
cross-referenced against each other. This approach also allowed the
system to link the records for each assignment in a duty tour, so that
an employee's prior time off before an assignment would indicate
whether it was preceded by another assignment, or was the first
assignment following a statutory off-duty period. Thus, the full duty
tour would be represented, without gaps in the data that would suggest
a missing record. This approach was also consistent with the way that
FRA had historically reviewed paper records, because this information
was available on the ``Details of Service'' portion of the form, which
the railroads had since stopped using because of changes in pay
structures and other operational issues, and which they, therefore,
resisted incorporating in electronic recordkeeping.
    AAR objected to the requirements initially included by FRA in Sec.
228.11(b) of this rule, because FRA required the employee to report the
beginning time, relieved time, and released time of each assignment in
a duty tour, as it had in the waiver-approved electronic programs. AAR
contended that FRA did not need this level of detail for each
assignment because the time was all counted as time on duty, and also
contended that the requirements were too burdensome because of the
number of data fields that an employee would be required to enter, and
the amount of time that this data entry could consume.
    During the working group proceedings, FRA made a number of
concessions from its original language. FRA excluded from the
requirement to list each assignment employees having several kinds of
assignments likely to result in their handling a large number of trains
in a single duty tour. Specifically, FRA excluded utility employees,
employees assigned to yard jobs, and assignments established to shuttle
trains into and out of a terminal that are identified by a unique job
or train symbol as such an assignment. When AAR continued to object to
these requirements, FRA limited them further, by requiring only that
the employee record the first train and the last train to which he or
she was assigned, and any train immediately preceding or immediately
following a period of interim release. FRA reasoned that information
was needed regarding assignments before and after a period of interim
release, so that the interim release period, which would not count
toward total time on duty, could be determined. FRA agreed that it
would not require the recording of trains in the middle of a duty tour
that were not associated with an interim release, agreeing in those
limited circumstances to resort to other methods of piecing together
the duty tour if necessary.
    Ultimately, however, AAR wanted FRA to require that the employee
record only the beginning time of the first train and any train
following a period of interim release, and only the relieved time and
released time of any train preceding a period of interim release and
the last train in a duty tour. The limited issue of the specific
requirements to record the relieved time and released time for an
employee for the first train in the employee's duty tour and for any
train preceding a period of interim release by the employee, and the
beginning time of the last train or any train following a period of
interim release for the employee, was the only area of non-consensus
during the working group proceedings and before the full RSAC.
    Following the RSAC vote, FRA decided to further modify the
requirements of section 228.11(b). This paragraph now requires that an
employee record only the beginning time of the first train and any
train following a period of interim release, and only the relieved time
and released time of any train preceding a period of interim release
and the last train in a duty tour, as requested by AAR. It also
requires, however, that employees report the train ID for each train
required to be reported. Utility employees, employees assigned to yard
jobs, and assignments established to shuttle trains into and out of a
terminal that are identified by a unique job or train symbol as such an
assignment, are excluded from the requirement to report separate train
IDs. In addition, this paragraph requires employees to report periods
spent in deadhead transportation from a duty assignment to a period of
interim release, and from a period of interim release to a duty
assignment.
2. Pre-Population of Data
    AAR proposed elimination of the concept of the quick tie-up. As was
discussed above, the quick tie-up is a feature that allows an employee
who is at or beyond the statutory maximum time on duty to report only
the four items necessary for the employee and the railroad to determine
the beginning of the statutory off-duty period and for the railroad to
be allowed to call the employee for the next duty tour. The employee
completes the remainder of the record for any duty tour ended with a
quick tie-up when he or she next reports for duty. AAR suggested that
the regulation instead limit those items required for a full tie-up, or
a complete record, and allow those items that are required to be pre-
populated on the record by the railroad, so that the time required for
a full tie-up would be decreased. FRA could not agree to limit the
required data as AAR suggested. In addition, there are a number of
items not related to hours of service (such as pay claims and details
as to the cars in the train) that are normally a part of a full tie-up,
but which FRA does not believe should be required of an employee who is
at or near the statutory

maximum time on duty. Therefore, the group agreed not to eliminate the
quick tie-up, but continued to discuss the concept of pre-population of
the data on the hours of service record.
    FRA did not allow pre-population of data as electronic
recordkeeping programs were developed during the waiver process,
because when pre-population was attempted, records were pre-populated
with data from sources not likely to be accurate reflections of the
duty tour, such as payroll or other times related to collective
bargaining. The Working Group spent substantial time discussing which
data fields on the record might be pre-populated. However, the group
could not agree on data fields that always may be pre-populated, or
those that never should, as a wide variety of factors might affect
whether pre-population of certain data is appropriate for a particular
employee or assignment. It was generally agreed, however, that pre-
population could reduce the time and effort required for completion of
the record if the data was reliable.
    The group reached a compromise, reflected in section
228.203(a)(1)(i) of this regulation. This paragraph provides that a
record may be pre-populated with data known to be factually accurate
for a specific employee. Estimated, historical, or arbitrary data are
not to be used to pre-populate data in a record. However, a railroad,
or a contractor or subcontractor to a railroad, is not in violation of
this requirement if it makes a good faith judgment as to the factual
accuracy of data for a specific employee but the pre-populated data
turns out to be incorrect. In addition, the employee must be able to
make any necessary changes to pre-populated data by simply typing into
the data field, without having to access another screen or obtain
clearance from the railroad. Finally, this paragraph also provides that
an electronic recordkeeping system may provide the ability for an
employee to copy data from one field of a record to another where
appropriate.
3. Tie-Up Procedures for Signal Employees
    Labor representatives in the Working Group, and particularly
representatives of the Brotherhood of Railroad Signalmen, expressed
concern that the requirements for electronic recordkeeping systems were
not appropriate to the way that signal employees tie up at the end of a
duty tour, and complete their records. Although there are currently no
waiver-approved programs allowing electronic recordkeeping by signal
employees, there are some systems currently under development, and
railroads and signal employees are interested in moving to electronic
recordkeeping. The requirements for electronic recordkeeping systems as
originally drafted by FRA were based on the past experience of FRA and
the industry with electronic recordkeeping, which was admittedly
limited to train employees.
    During the Working Group discussions, it was pointed out that
signal employees tie up differently, and some of the limitations on the
system that are appropriate for train employees would not allow signal
employees to complete their records. Unlike train employees, signal
employees are not usually released from their duty tour at a location
where there is likely to be a computer available to complete a record,
because they often travel home from their duty location, and do not go
by way of a railroad headquarters. In addition, signal employees may
not tie-up on a daily basis, rather, they may complete a number of
records at one time, on a day when they have time in their schedule to
prepare this paperwork. Signal employees do not generally need to do a
quick tie-up to know when they are eligible to return to duty, because
they have a scheduled eight-hour shift. They do call into the trouble
desk if they work beyond their scheduled hours, or after returning from
a trouble call. Although the primary purpose of this call is to report
the nature of the trouble that was found and what was done to fix it,
the employee also reports the time that he or she completed the work,
and this allows the railroad to determine if the employee has enough
time remaining to respond to another trouble call, or if a late trouble
call causes the employee not to be rested for the beginning of the next
scheduled shift.
    FRA agrees that the regulation should establish requirements
appropriate to all employees, so that the regulation will not need to
be revised to reflect future systems that may be developed. To
accommodate the differences in the reporting practices of signal
employees, FRA modified several paragraphs of Sec.  228.203(c).
Paragraph (c)(7) of Sec.  228.203 allows an employee to certify a
release time in the past compared to the clock time of the computer,
except for the current duty tour being concluded, so that a signal
employee may complete multiple records at one time. This limitation is
not a problem for train employees, who will have provided a release
time through the quick tie-up for any record being completed that
relates to a previous duty tour. The rule text also excludes signal
employees from the scope of requirements in subparagraphs that provide
that electronic recordkeeping systems must require employees to
complete a full record, and disallow a quick tie-up at the end of any
duty tour in which the employee has less than the statutory maximum
time on duty. Even with less than the statutory maximum time on duty, a
signal employee may not complete any record at the end of that duty
tour, or may complete a form of quick tie-up through communication
regarding trouble calls and how much time the employee has remaining to
work.
    FRA notes that railroads, contractors and subcontractors to
railroads, and signal employees will need to have some way of keeping
track of when the employee goes off duty, to ensure that they receive
the 10 hours uninterrupted rest required by the RSIA of 2008.
4. Tracking Cumulative Totals Toward the 276-Hour Monthly Maximum
Limitation
    Section 228.11(b)(14) requires that a train employee record include
the cumulative total for the calendar month of time spent in covered
service, awaiting or in deadhead transportation from a duty assignment
to the place of final release, and time spent in any other service at
the behest of the railroad, the elements that make up the cumulative
total for the month toward the 276-hour limitation. Members of the
Working Group representing the Class III railroads pointed out that
compliance with this requirement would be much more complicated for
those employees completing paper records. Electronic recordkeeping
systems will likely be programmed to calculate the cumulative monthly
total, but it will be more difficult for an employee to have to keep
track of the running total and note it on his or her signed record each
day. FRA is persuaded that this could be burdensome, and could result
in inaccurate reporting of the totals, and could possibly cause an
employee to inadvertently exceed the monthly limitations by calculating
it inaccurately and certifying that number. Therefore, FRA agreed to
allow Class III railroads to track the cumulative total throughout the
month, note it on the records, and make it available to FRA. The
employee will be expected to certify the monthly total promptly after
the end of the month.
5. Multiple Reporting Points
    This regulation requires that each train employee have a regular
reporting point. In numerous locations across the railroad system,
railroads and their

employees have established more than one location within a designated
terminal that the employees may directly report to, essentially
treating multiple locations located near each other as one regular
reporting point. In enforcing this regulation, FRA will continue to
treat these multiple locations as constituting a single regular
reporting point, provided that (a) it can reasonably be expected that
doing so would not unduly affect fatigue and (b) if the railroad is
unionized, the multiple reporting points have been agreed to under a
collective bargaining agreement. When determining whether or not
fatigue is unduly affected, FRA will take into account the distance
between the multiple locations, traffic patterns (e.g., rural vs.
urban), and other relevant factors.
    As has been discussed, the RSIA of 2008 amends the definition of
``signal employee'' so that employees of a contractor or a
subcontractor to a railroad performing maintenance, inspection, or
repair of signal systems are covered by the HSL. The railroads in the
Working Group expressed concern that they would be responsible for
keeping records for contract signal employees who perform work on their
property. This would be particularly difficult if the contractors or
subcontractors are hired for specific short-term assignments or
projects. FRA expects that the contractor or subcontractor who employs
the employee would be responsible for his or her records, because that
company would know when the employee would be properly rested under the
statute to begin a new assignment, which might be on a different
railroad than the assignment just completed. It should be noted,
however, that since the substantive provisions of the HSL still
prohibit either requiring or allowing an employee to remain or go on
duty, FRA may take enforcement action for violation of the statute
against either the employer or the railroad for whom the employee is
performing covered service, depending on the facts of the situation.
    FRA has amended language throughout this part that imposes
recordkeeping duties on a railroad, so that those duties are imposed on
a railroad or a contractor or a subcontractor to a railroad. However,
FRA recognizes that some railroads have kept hours of service records
and reported excess service for contractors and subcontractors who were
covered by the HSL prior to the RSIA of 2008, particularly as train
employees. FRA does not intend to prohibit such practices, if the
parties have contracted to have the railroad for which an employee
performs covered service handle the recordkeeping and reporting
responsibilities for that employee.

IV. Section-by-Section Analysis

Section 228.1 Scope

    FRA has revised this section to reflect the fact that the
regulation prescribes reporting and recordkeeping requirements for
employees of railroad contractors and subcontractors as well as for
railroad employees.

Section 228.3 Application

    FRA has revised this section to reflect the fact that the
regulation applies to railroad contractors and subcontractors as well
as to railroads, and does not apply to the contractors and
subcontractors of railroads to which the regulation does not apply.

Section 228.5 Definitions

    This section is amended to add a large number of definitions
relevant to compliance with the HSL, and the recordkeeping and
reporting requirements of this part, including the data fields found on
an hours of service record, the data required to be entered, and the
proper calculation and representation of the periods of time which must
be identified on a record. Most of these definitions have been used by
FRA and the industry for many years and have a common understanding.
Some are discussed in existing Operating Practices Technical Bulletins
providing FRA's position on substantive issues of enforcement under the
HSL. As a result, while the Working Group recommended minor revisions
to a number of the definitions to clarify them, relatively few caused
concern among Working Group members or required significant discussion.
    The Working Group discussed the definition of ``actual time,''
which can refer to either a specific time of day, or a precise amount
of time. FRA's intention with this definition is to make clear that any
time related to an activity that is entered on an hours of service
record should represent the actual time that the activity occurred or
actual amount of time spent in the activity, rather than scheduled or
estimated times or amounts of time that may be used for pay and
collective-bargaining-related purposes. Records must also not show non-
specific numbers in reference to data fields that correspond to
specific statutory limitations. For example, it would not be correct
simply to indicate ``10+'' in the prior time off field, rather than the
actual amount of time in hours and minutes that the employee had been
off before beginning an assignment, or ``12+'' for total time on duty,
rather than the actual total amount of time that the employee was on
duty.
    The Working Group also discussed the definition of ``commuting,''
and specifically the portion of the definition that applies to train
employees. The first part of the definition led to discussions related
to an employee's regular reporting point, because only travel between
an employee's residence and his or her regular reporting point is
considered commuting. As was discussed in section III, above, of the
preamble, FRA acknowledges that it will treat multiple locations within
a designated terminal as a single reporting point in certain
circumstances. However, the definition of ``commuting'' is not changed.
The second part of this definition as applied to train employees
provides that travel in railroad-provided transportation to a lodging
facility at an away-from-home terminal is considered commuting if the
time does not exceed 30 minutes. The ``30 minute rule'' is longstanding
FRA policy, intended to provide railroads some flexibility to get their
employees to lodging, but limiting the potential erosion of an
employee's statutory off-duty period that could result from extended
periods of travel to the away-from-home lodging facility. Nothing in
the RSIA of 2008 would require FRA to change its position on this
issue, and FRA declines to do so.
    FRA defines designated terminal for purposes of this section by
copying the definition of the term found in the HSL at 49 U.S.C. 21101.
It is necessary to define this term because any period of interim
release that a train employee has during a duty tour is considered off-
duty time under the HSL only if the release occurs at a designated
terminal. Otherwise, the time must be calculated as on-duty time. FRA's
position regarding designated terminals has been previously published
in Appendix A of this regulation, and further established through
extensive litigation related to this issue. By including this
definition, FRA does not intend to alter any of its previous statements
related to this issue, including the fact that FRA does not exercise
jurisdiction over any lodging facilities used to house railroad
employees that are not railroad-provided, and are usually subject to
collective bargaining.
    This section defines the terms ``reporting point,'' ``regular
reporting point'' and ``other than regular reporting point.'' As was
discussed in section III, above, of the preamble, and in this section,
in regard to the definition of commuting, an employee has only one
regular reporting point at any given

time. Travel from the employee's regular reporting point to any other
reporting point on the railroad is considered a deadhead to a duty
assignment, in which the time spent deadheading to duty is time on
duty, and if an employee travels directly from his or her residence to
a reporting point that is other than his or her regular reporting
point, any time spent in that travel exceeding the time that would have
been spent in travel to the regular reporting point is also time on
duty. As was discussed in section III, above, of the preamble, FRA will
consider multiple locations within a designated terminal to be a single
reporting point in certain circumstances. This interpretation does not
change the definitions of the terms ``reporting point,'' ``regular
reporting point,'' or ``other-than-regular reporting point,'' this
simply means that if an employee's regular reporting point is any one
of the locations that constitute a single reporting point, an
assignment to report to any location that is considered part of that
single reporting point would be considered reporting to the regular
reporting point for that employee.
    The Working Group discussed the definition of ``release'' as it
applies to signal employees. A release is a period of more than an hour
but less than a statutory off-duty period, after a signal employee
completes regular assigned hours, or completes return travel from a
trouble call. Members of the Working Group representing the interests
of signal employees commented that a release should not just consist of
an employee being told to go and wait at a nearby restaurant until he
or she is needed for another assignment, but should allow an employee
to come and go as he or she pleases in order to be considered off-duty
time. FRA notes that the HSL does not define the release period for
signal employees as ``interim release'' is defined for train employees,
providing that the period of release constitutes off-duty time only if
it is at a designated terminal. However, it is certainly consistent
with the statutory purpose to require a railroad, or contractor or
subcontractor to a railroad, to provide as much opportunity for food,
rest, and freedom of activity for the employee as circumstances will
allow during any release period that is to be considered off-duty time.
    The Working Group also discussed the distinction between the
defined terms, ``prior time off'' and total off-duty period. As
indicated in the definition of ``total off-duty period,'' it may differ
from a computer-generated prior time off, which would be calculated
based on the release time of the previous duty tour, if the employee
performed an activity between duty tours that was required to be
reported as other service at the behest of the railroad. Under Sec.
228.11(b)(8), (d)(6) and (e)(9), the employee must record any such
service, and it would be recorded on the hours of service record
created for the next duty tour as an activity at the behest of the
railroad. Prior time off would be calculated as the sum of the time
between the previous final release and the beginning of that activity
and the time between the end of the activity and the beginning of the
next duty tour. The total time spent in the activity, plus the prior
time off before and after the activity should equal the system-known
prior time off.
    There were a number of questions discussed in the Working Group
related to the definitions of ``dispatching service employee,''
``signal employee,'' and ``train employee.'' These definitions are
copied directly from the HSL at 49 U.S.C. 21101, and are included in
this regulation simply for ease of reference, since the terms are used
throughout the rule text. The questions surrounding these definitions
related to whether employees with certain job titles, or who perform
certain job functions, would be included within the scope of the
definitions. These questions present issues of substantive
interpretation of the HSL, and have been addressed in published
interpretations in Appendix A of this rule and various Operating
Practices Technical Bulletins. The only change in these definitions
made by the RSIA of 2008 is to amend the definition of ``signal
employee'' so that it applies to employees of contractors or
subcontractors to a railroad who perform the functions of a signal
employee. Therefore, FRA's position remains unchanged with respect to
these issues, except to the extent that FRA has ever indicated prior to
the enactment of the RSIA of 2008 that employees of contractors or
subcontractors performing the functions of a signal employee are not
covered by the HSL, because that would no longer be FRA's position, in
light of the statutory changes.
    In determining whether a given employee is covered by the HSL, FRA
continues to take a functional approach, rather than one based on job
or craft title. If an employee performs functions included within the
definition of a dispatching service employee, a signal employee, or a
train employee, that employee is covered under the HSL as that type of
employee, and must observe the relevant statutory limitations and
recordkeeping requirements, regardless of the employee's actual job
title. For example, an employee whose job title is Yardmaster may be
covered under the HSL as any one of three categories of covered
employees, or he or she may not be covered by the HSL at all, depending
on the functions performed. By the same token, if an employee performs
functions that are typically performed by employees who are covered by
the HSL, but the specific function is not itself covered, performing
that function does not bring the employee under the coverage of the
HSL. For example, if an employee removes orders from a printer, that
function alone does not make the employee a dispatching service
employee, even if that function is usually performed by a dispatcher,
because this action alone does not constitute dispatching, reporting,
transmitting, receiving or delivering an order affecting train
movement.

Section 228.9 Records; General

    This section is revised to eliminate the signature requirement for
records maintained electronically. Paragraph (a) applies only to manual
records, and retains the text of Sec.  228.9 prior to this regulation.
Paragraph (b), which is added to this section, provides that an
electronic record must be certified and electronically stamped with the
certifying employee's name and the date and time of certification. Both
paragraphs contain requirements for retention of and access to the
records. Finally, paragraph (b) requires that electronic records must
be capable of being reproduced on railroad printers.

Section 228.11 Hours of Duty Records

    This section establishes the requirement to keep hours of service
records and sets forth what information the records must contain. The
requirements have been clarified by being broken into separate
paragraphs for the different types of employees, each containing the
recordkeeping requirements specific to that kind of employee that FRA
believes are necessary to determining whether the employee is in
compliance with the HSL for the duty tour being reported. This includes
requiring data related to the new substantive requirements of the RSIA
of 2008.
    Paragraph (a) of this section establishes the general recordkeeping
requirement, and provides that contractors and subcontractors whose
employees perform covered service should also record the name of the
railroad for which the employee performed covered service. This
paragraph also provides that if an employee performs covered service

within the same duty tour that is subject to different statutory
requirements, and therefore, different recordkeeping requirements in
this section, such as, performing both the functions of a train
employee and a dispatching service employee, the employee should
complete a record appropriate to the type of service to which he or she
was called, and reflect other covered service as an activity that is
other service at the behest of the railroad. However, the total time on
duty must be governed by the most restrictive statutory provision.
    Paragraph (b) of this section establishes the recordkeeping
requirements for train employees, including subparagraphs (13) through
(16), which relate to information required as a result of the statutory
amendments in the RSIA of 2008. Subparagraph (13) requires that the
record must indicate the total amount of time by which the combination
of the total time on duty and time spent awaiting or in deadhead
transportation to the point of final release exceeds 12 hours.
Subparagraph (14) requires the record to reflect the cumulative total
for the calendar month of time spent on duty, awaiting or in deadhead
transportation, and in any other service for the carrier (in other
words the cumulative total toward the 276-hour monthly maximum).
Subparagraph (15) requires the record to indicate the cumulative total
for the calendar month of time spent awaiting or in deadhead
transportation from a duty assignment to the place of final release
following a period of 12 consecutive hours on duty. Subparagraph (16)
requires the record to indicate the number of consecutive days in which
a period of time on duty was initiated.
    Paragraph (b) of this section resulted in significant discussion in
the working group, which resulted in a number of changes to the rule
text. As was discussed in section III, above, of the preamble, AAR did
not agree during the RSAC process with FRA's requirement to report the
first train and the last train to which the employee was assigned, and
any train immediately preceding or immediately following a period of
interim release, even after utility employees, employees performing
yard jobs and employees on shuttle assignments were excluded, and FRA
subsequently made further modifications to this paragraph.
    Subparagraph (4) requires train employees to report the train ID
for each assignment required to be reported. Utility employees,
employees assigned to yard jobs, and employees assigned to shuttle
assignments identified as such by a unique job or train symbol are
excluded from the requirements of this subparagraph. FRA expects,
however, that railroads will take care to avoid designating as a
shuttle assignment jobs that do not truly function in the manner
suggested by the language.
    Subparagraph (5) requires train employees to report the location,
date, and beginning time of the first assignment in a duty tour, and
any assignment immediately following a period of interim release.
    Subparagraph (6) requires train employees to report the location,
date, and time relieved for the last assignment in a duty tour and any
assignment preceding a period of interim release.
    Subparagraph (7) requires train employees to report the location,
date, and time released for the last assignment in a duty tour and any
assignment preceding a period of interim release.
    Subparagraph (8) requires train employees to report the beginning
and ending location, date, and time for periods spent in transportation
to the first assignment in a duty tour, from an assignment to a period
of interim release, from a period of interim release to the next
assignment in a duty tour, and from the last assignment in a duty tour
to the point of final release.
    Also, as was discussed in section III, above, of the preamble, the
requirement in subparagraph (14) to track the cumulative total toward
the limitation of 276 hours in a calendar month was opposed as being
too burdensome, especially for those employees completing paper
records. In response, FRA will allow Class III railroads to track the
cumulative total throughout the month, note it on the records, and make
it available to FRA, provided that the employee certify the monthly
total after the end of each month.
    Paragraph (c) provides that subparagraphs (13) through (16) of
paragraph (b) do not apply to the records of train employees providing
commuter or intercity passenger rail transportation, because these
subparagraphs relate to the new substantive provisions of the HSL in
the RSIA of 2008, and those provisions do not apply to train employees
of commuter and intercity passenger railroads at this time. This
distinction led to some discussion as to how to apply the recordkeeping
requirements to train employees who work in both freight and passenger
service. FRA believes this issue is best addressed by the individual
recordkeeping systems of railroads that have employees who work in both
types of service. The railroad should ensure that the employee has the
appropriate record to complete for the type of service that he or she
performed in any given duty tour.
    Paragraphs (d) and (e) provide the recordkeeping requirements for
dispatching service employees and signal employees respectively.

Section 228.13 Preemptive Effect

    This section sets forth the preemptive effect of this part. The
preemption provision of the former Federal Railroad Safety Act of 1970
(FRSA), as amended, 49 U.S.C. 20106, governs the preemptive effect of
this regulation, and the preemption provision of the regulation
conforms to the terms of the statute. State and local requirements,
both statutory and common law, are preempted when such non-Federal
requirements cover the same subject matter as the requirements of this
part. A State may adopt, or continue in force a law, regulation, or
order covering the same subject matter as a DOT regulation or order
applicable to railroad safety and security only when the additional or
more stringent state law, regulation, or order is necessary to
eliminate or reduce an essentially local safety or security hazard; is
not incompatible with a law, regulation, or order of the United States
Government; and does not unreasonably burden interstate commerce.
    Section 20106 also permits State tort actions arising from events
or activities occurring on or after January 18, 2002 that allege a
violation of the Federal standard of care established by regulation or
order issued by the Secretary of Transportation (with respect to
railroad safety) or the Secretary of Homeland Security (with respect to
railroad security), a party's failure to comply with its own plan,
rule, or standard that it created pursuant to a regulation or order
issued by either of the two Secretaries, or a party's violation of a
State standard that is necessary to eliminate or reduce an essentially
local safety or security hazard, is not incompatible with a law,
regulations, or order of the United States Government, and does not
unreasonably burden interstate commerce.

Section 228.19 Monthly Reports of Excess Service

    This section requires monthly reports of excess service, and
indicates the instances of excess service that must be reported, in
separate paragraphs for train employees, dispatching service employees,
and signal employees, including requirements related to new substantive
provisions of the HSL that were added by the RSIA of 2008. It also
provides for excess service reports to be submitted electronically or
appended to

and retained with the employee hours of service record to which the
excess service being reported relates.
    Paragraph (a) requires that the instances of excess service listed
in this section be reported to FRA's Associate Administrator for
Railroad Safety/Chief Safety Officer.
    Paragraph (b) provides the instances of excess service which must
be reported for train employees. Subparagraphs (1) through (3)
correspond to requirements that were contained in this section as it
existed prior to the enactment of the RSIA of 2008, with the exception
that the new minimum statutory off-duty period of 10 hours is
substituted. Subparagraphs (4) through (10) are instances of possible
excess service related to new substantive limitations in the HSL.
Paragraph (c) provides the instances of excess service that must be
reported for train employees of commuter or intercity passenger
railroads. Because these employees continue to be covered by the HSL as
it existed prior to the enactment of the RSIA of 2008, the instances of
excess service which must be reported for these employees are identical
to those required by this section for train employees prior to this
revision.
    Paragraph (d) contains the instances of excess service which must
be reported for dispatching service employees. Because there were no
substantive changes to the HSL related to dispatching service employees
other than the grant of authority to the Secretary to prescribe
regulations more stringent than the statute, the instances of excess
service that must be reported are identical to those required by this
section for dispatching service employees by this section prior to this
revision.
    Paragraph (e) provides the instances of excess service that must be
reported for signal employees, which were modified to reflect the new
minimum statutory off-duty period.
    Paragraph (f) provides the method for filing with FRA the instances
of excess service required to be reported by this section, while
paragraph (g) provides procedures for the use of an alternative method
for filing instances of excess service using an electronic signature.
    Paragraph (h) excepts any railroad, or contractor or subcontractor
to a railroad that uses an electronic recordkeeping system that
complies with this part from the requirement to file with FRA its
monthly reports of excess service. The electronic recordkeeping system
must require the employee to enter an explanation for any excess
service that the employee certifies on his or her record, require the
railroad, contractor, or subcontractor to make a determination as to
whether each instance would be reportable, allow the railroad,
contractor, or subcontractor to append its analysis to the electronic
record, and allow FRA inspectors and participating State inspectors
access to employee reports of excess service and any explanations
provided.

Section 228.23 Criminal Penalty

    This section is amended only to update the statutory citation to
the penalty provision of the HSL to reflect the recodification of the
Federal railroad safety laws, including the HSL, in 1994. Public Law
103-272, 108 Stat. 745.

Section 228.201 Electronic Recordkeeping; General

    This section sets forth the basic requirements for the use of an
electronic recordkeeping system to create and maintain the records
required by this part. Any record required by this part may be created
and stored electronically in such a system, and those records submitted
to FRA may also be submitted electronically, consistent with the
requirements of the Electronic Signatures in Global and National
Commerce Act (Pub. L. 106-229, 114 Stat. 464, June 30, 2000).
    The system must meet the requirements of this part, and the records
created and stored in the system must contain the required information.
The section further provides that a railroad, contractor, or
subcontractor using an electronic recordkeeping system must
sufficiently monitor the database to ensure a high degree of accuracy
in the records, and train its employees on the proper use of the
system. The information technology security program of the railroad,
contractor, or subcontractor must also be adequate to prevent
unauthorized access to the program logic or individual records.
Finally, this section provides that FRA may prohibit or revoke the
authority to use an electronic recordkeeping system if FRA finds that
the system is not properly secured, is inaccessible to FRA, or fails to
record and store the information adequately and accurately. If FRA
makes such a determination, it will be issued in writing.

Section 228.203 Program Components

    This section establishes the required components for electronic
recordkeeping programs in the areas of system security, identification
of the individual who entered specific data, capabilities of program
logic, and system search capabilities.
    Paragraph (a) provides the standards that the electronic
recordkeeping system must meet in terms of system security.
Subparagraph (a)(1) provides that data entry is restricted to the
employee or train crew whose time is being reported. However, there are
two exceptions to this requirement. The first is for pre-populated
data, which was an area of significant discussion and eventual
compromise in the working group, as discussed in section III above. The
second exception applies to situations in which an employee has reached
or exceeded his or her maximum allowed time on duty, and a quick tie-up
is required. As was discussed in section IB, the idea behind a quick
tie-up is that a few items of basic information are needed to determine
the time at which the employee is beginning his or her statutory off-
duty period, and when he or she will be rested to begin the next duty
tour. However, the intention is for the employee to be able to complete
this limited data entry very quickly in order to begin the statutory
off-duty period and not extend a duty tour that is already at its
maximum limit. Therefore, FRA has provided an additional exception to
the requirement of employee-entered data, to allow an employee to
provide quick tie-up information by telephone, by facsimile, or by
other electronic means in situations where for any reason, a computer
terminal is unavailable. FRA expects that in most situations, the
employee will call a dispatcher, call desk, or trouble desk, to provide
the quick tie-up information to those who need to know it to be able to
call the employee for his or her next time on duty. However, situations
may arise when it is difficult to reach someone by telephone, which
could increase the time it will take to complete the process. The
Working Group requested that FRA allow the use of other technology for
electronic transmission of the information, and FRA revised the rule
text accordingly. However, FRA cautions against the use of electronic
means, such as e-mail, to enable an employee to tie up and officially
begin a statutory off-duty period while in fact still performing
service, awaiting transportation to final release, or otherwise still
involved in the duty tour being tied up.
    Subparagraph (a)(1) also provides that the system may not allow two
individuals to have the same electronic identity, and that the system
must be structured so that a record cannot be deleted or altered once
it is certified, and that any amendment to a record must either be
stored electronically

apart from the record it amends or electronically attached as
information but without altering the record. Amendments must also
identify the person making the amendment. Finally, the system must be
capable of maintaining records as submitted without corruption or loss
of data, and ensure that supervisors and crew management officials can
access, but not delete or alter a record, once the employee has
reported for duty, and once the employee has certified information that
he or she entered on the record.
    Paragraph (b) provides that the program must be capable of
identifying each individual who entered data on a record, and which
data items were entered by each individual if more than one person
entered data on a given record.
    Paragraph (c) provides the program logic features that an
electronic recordkeeping system must contain in order to properly
calculate total time on duty, to identify errors, to require
reconciliation of differences in prior time off, which would indicate
an activity or assignment not captured on a record, to require
explanations when total time on duty exceeds the statutory maximum for
the employee, and to require proper use of the quick tie-up. As was
discussed in section III above, this section was the subject of
discussion in the Working Group, and the rule text was modified to
provide flexibility for future systems, and in particular for the
recording and reporting of hours of service data by signal employees,
who do not report in the same manner as train employees.
    Paragraph (d) establishes the required search capabilities for an
electronic recordkeeping system, establishing the specific data fields
and other criteria by which the system must be capable of searching for
and retrieving responsive records.

Section 228.205 Access to Electronic Records

    Paragraph (a) of this section provides that access to electronic
recordkeeping systems must be granted to FRA and State inspectors
through the use of railroad computer terminals. Paragraph (b) requires
the establishment of procedures for providing inspectors with an
identification number and password to access the system.
    Paragraph (c) provides that the inspection screen must be formatted
so that each data field entered by an employee is visible, that the
data fields must be searchable as described in Sec.  228.203(d) and
yield access to all records matching the specified search criteria, and
that the records must be displayed in a manner that is crew-based and
duty-tour-oriented, so that the records of all employees who worked
together as part of a train crew or signal gang will be displayed
together, and the record will include all of the assignments or
activities required to be reported.

Section 228.207 Training

    This section requires railroads and contractors and subcontractors
to railroads to provide initial and refresher training to train
employees, signal employees, and dispatching service employees, and the
supervisors of these employees. Paragraph (b) provides that initial
training must include classroom and hands-on components, and must cover
the aspects of the HSL relevant to the employee's position, and proper
entry of hours of service data. Testing is also required to ensure that
the objectives of the training are met. This section requires that
initial training be provided as soon as practicable. FRA would expect
that some level of training, such as on the new statutory requirements,
will be needed fairly quickly, to ensure proper recordkeeping. This may
be done less formally, either in person with a supervisor, as ``on the
job'' training, or through electronic media that may be provided to an
employee. However, the more comprehensive initial training required by
this section may be provided in combination with other training, such
as that required by section 402 of the RSIA of 2008, and may be
completed within the regular training cycle for the employee.
    Paragraph (c) provides significant flexibility regarding refresher
training. The paragraph does, however, require that the refresher
training emphasize any relevant changes to the HSL or the recordkeeping
system, as well as any areas in which supervisors or other railroad
managers are noticing recurrent errors. No specific interval for
refresher training is required, just that it must be provided when
suggested by recurrent errors. FRA had initially proposed requiring
refresher training every two years, but members of the Working Group
objected, arguing that employees who complete records every day will
not need training at a regular interval on how to do so, and that
refresher training should be provided to those who are having
difficulty. FRA revised the text of this section accordingly.

V. Regulatory Impact and Notices

A. Statutory Authority

    Section 20103(a) of title 49 U.S. Code authorizes the Secretary to
issue regulations governing all areas of railroad transportation
safety, supplementing laws and regulations in effect on October 16,
1970. In addition, Section 108(f)(1) of the RSIA of 2008 requires the
Secretary to prescribe a regulation revising the requirements for
recordkeeping and reporting for hours of service of railroad employees
contained in 49 CFR part 228 to adjust recordkeeping and reporting
requirements to support compliance with 49 CFR ch. 211, as amended by
the RSIA of 2008; to authorize electronic recordkeeping, and reporting
of excess service, consistent with appropriate considerations for user
interface; and to require training of affected employees and
supervisors, including training of employees in the entry of hours of
service data.
    Section 108(f)(2) provides that in lieu of issuing a notice of
proposed rulemaking as contemplated by 5 U.S.C. 553, the Secretary may
use the RSAC to assist in development of the regulation.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing
policies and procedures, and determined not to be economically
significant under both Executive Order 12866 and DOT policies and
procedures. See 44 FR 11034 (Feb. 26, 1979). This rule is a non-
significant regulatory action under Sec.  3(f) of Executive Order 12866
and the regulatory policies and procedures order issued by the DOT. Id.
We have prepared and placed in the docket a regulatory impact analysis
(RIA) addressing the economic impact of this rule.
    This section summarizes the estimated economic impacts of the rule.
The final rule is mandated by the RSIA of 2008, in order to revise the
recordkeeping and reporting regulations in accordance with the
substantive changes to employee work and rest periods that are
specified in the RSIA of 2008. The impacts described are the impacts of
the rule, distinct from the impacts of the RSIA of 2008.
    The RIA contains a description of the costs of the rule. All
railroads that operate on the general system of transportation are
subject to the final rule. Train employees of commuter and intercity
passenger railroads, however, are exempt from the new, specific
limitations on employee work and rest periods in the RSIA of 2008. The
RSIA

adds employees of contractors and subcontractors that perform signal
work for railroads to those covered by the rule. The costs of the rule
result from making required changes to existing recordkeeping systems
to comply with the final rule. FRA establishes the standards for
electronic recordkeeping systems for those railroads that wish to
implement an electronic hours of service system. Four Class I railroads
already use an electronic recordkeeping system by FRA waiver. The
rule's specifications for electronic recordkeeping were based on FRA's
experience with these waiver-approved systems to minimize the burden of
the electronic recordkeeping option. The RSIA of 2008 also mandates
that training be provided to employees on the hours of service law and
recordkeeping system. FRA notes that training would be necessary even
in the absence of FRA's rule, but accounts for training on the
recordkeeping system to illustrate the type and extent of training a
railroad, or a contractor or subcontractor to a railroad, would be
expected to provide. Given the large number of employees subject to the
rule, training costs are the biggest component of costs. For a 20 year
period of analysis, the present value of costs attributable to the rule
total about $11.2 million, using a discount rate of 7%, and $14 million
using a discount rate of 3%. Of those costs, $9.2 million and $11.6
million are training costs respectively.
    Members of the RSAC that helped develop the rule and the RIA stated
that the primary benefit of the rule was a mechanism by which to comply
with the hours of service law. The public welfare benefit of the rule
is a method for effectively enforcing the substantive, new provisions
in the RSIA of 2008. The benefit of training and recordkeeping is the
ability of covered employees to comply with the requirements of the
RSIA and thereby achieve the safety benefits intended by Congress. To
the extent that railroads that are not currently using electronic
recordkeeping take advantage of the option to use electronic
recordkeeping, they may benefit from some efficiency gains. RSAC
industry representatives indicated that there may be up to a 50%
decrease in the time needed to complete an hours of service record,
depending on the amount of information needed to be recorded. If the
scale of time savings using an electronic system was a few minutes per
individual entry, the savings could be significant when multiplied
across the large number of employees covered by the RSIA of 2008 that
perform daily or frequent recordkeeping. In addition, there may be
indirect benefits of the rule, such as reduced storage needs for paper
hours of service records.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rule amends FRA's regulations regarding the reporting and recordkeeping
requirements for railroad employees and employees of contractors and
subcontractors of a railroad who are performing service covered by the
HSL. State and local requirements on the same subject matter covered by
FRA's regulation and the amendments proposed in this rule, including
the standards of care applicable in certain State common law tort
actions, are preempted by 49 U.S.C. 20106. The preemption provision in
the regulation directly reflects the terms of the statute. At the same
time, this final rule does not propose any regulation that would have
direct effects on the States, the relationship between the national
government and the States, or the distribution of power and
responsibilities among the various levels of government. Additionally,
it would not impose any direct compliance costs on State and local
governments. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply. However, State and local officials
were involved in developing this rule. The RSAC, which was used to
assist in the development of this rule, has as permanent members, the
AASHTO and the ASRSM.

D. Executive Order 13175

    We analyzed this final rule in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rule does
not significantly or uniquely affect tribes and does not impose
substantial and direct compliance costs on Indian tribal governments,
the funding and consultation requirements of Executive Order 13175 do
not apply, and a tribal summary impact statement is not required.

E. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, we developed this final rule in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), and
have determined that the RFA does not apply to this rulemaking.
    As was discussed above, this rulemaking is required by the section
108(f) of the RSIA of 2008, which provides that in lieu of issuing a
notice of proposed rulemaking as contemplated by 5 U.S.C. 553, the
Secretary may utilize the RSAC to assist in development of the
regulation, and FRA chose to utilize the RSAC to assist in developing
the regulation.
    The Small Business Administration's A Guide for Government
Agencies: How To Comply With the Regulatory Flexibility Act (2003),
provides that:

[i]f, under the APA or any rule of general applicability governing
federal grants to state and local governments, the agency is
required to publish a general notice of proposed rulemaking (NPRM),
the RFA must be considered (citing 5 U.S.C. 604(a)). * * * If an
NPRM is not required, the RFA does not apply.''

    Because an NPRM was not required in this instance, the RFA does not
apply.

F. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
   49 CFR section or statutory                              Total annual       Average time per    Total annual
            provision              Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of Duty Records      720 railroads/       29,893,000 records.  2 min./5 min./10          3,049,210
 (New Requirement now includes      signal contractors.                       min..
 signal contractors and their
 employees).
228.17--Dispatchers Record of      150 Dispatch         200,750 records....  3 hours............         602,250
 Train Movements.                   Offices.

228.19--Monthly Reports of Excess  300 railroads......  2,640 reports......  2 hours............           5,280
 Service (New Report Requirement
 includes Limbo time and
 consecutive days on duty).
228.103--Construction of Employee  50 railroads.......  1 petition.........  16 hours...........              16
 Sleeping Quarters--Petitions to
 allow construction near work
 areas.
228.203--Program Components (New
 Requirement)--Electronic
 Recordkeeping--
    --Modifications for Daylight   9 railroads........  5 modifications....  120 hours..........             600
     Savings Time.                                      1 program with       720 hours..........             720
    --System Security/Individual                         security/I.D./
     User Identification/Program                         program logic &
     Logic Capabilities/Search                           search capability..
     Capabilities.
228.205--Access to Electronic      632 railroads......  100 electronic       30 minutes.........              50
 Records--(New Requirement)--                            records access
 System Access Procedures for                            procedures.
 Inspectors.
228.207--Training in Use of        720 railroads/       47,000 train         1 hour.............          47,000
 Electronic System--(New            signal contractors.  employees.
 Requirements)--Initial Training.
    --Refresher Training.........  720 railroads/       2,200 train          1 hour.............           2,200
                                    signal contractors.  employees.
49 U.S.C. 21102(b)--The Federal
 hours of service laws:
    --Petitions for Exemption      10 railroads.......  2 petitions........  10 hours...........              20
     from Laws
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Nakia Poston,
Information Clearance Officer, at<PHONE_NUMBER>.
    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements that do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

G. Regulation Identifier Number (RIN)

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

H. Unfunded Mandates Reform Act

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that:

    ``Before promulgating any general notice of proposed rulemaking
that is likely to result in the promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $141,100,000 or more (adjusted annually for
inflation) in any 1 year, and before promulgating any final rule for
which a general notice of proposed rulemaking was published, the
agency shall prepare a written statement''

detailing the effect on State, local, and tribal governments and the
private sector.
    This rule will not result in the expenditure of more than
$141,100,000 (adjusted annually for inflation) by the public sector in
any one year, and thus preparation of such a statement is not required.

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that Federal agencies analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. This rule will not have a significant impact on the human
environment.

List of Subjects in 49 CFR Part 228

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

PART 228--[AMENDED]

The Rule

0
For the reasons discussed in the preamble, part 228 of chapter II,
subtitle B of title 49, Code of Federal Regulations is amended as
follows:
0
1. The authority citation for part 228 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div.
A, Public Law 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303,
21304, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49; and 49 U.S.C. 103.

0
2. Section 228.1 is amended by revising paragraph (a) to read as
follows:

Sec.  228.1  Scope.

* * * * *
    (a) Prescribes reporting and recordkeeping requirements with
respect to the hours of service of certain railroad employees and
certain employees of railroad contractors and subcontractors; and

0
3. Section 228.3 is revised to read as follows:

Sec.  228.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part
applies to all railroads and contractors and subcontractors of
railroads.
    (b) This part does not apply to:

    (1) A railroad or a contractor or subcontractor of a railroad that
operates only on track inside an installation which is not part of the
general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not
connected with the general railroad system of transportation.

0
4. Section 228.5 is revised to read as follows:

Sec.  228.5  Definitions.

    As used in this part--
    Actual time means either the specific time of day, to the hour and
minute, or the precise amount of time spent in an activity, in hours
and minutes, that must be included in the hours of duty record,
including, where appropriate, reference to the applicable time zone and
either standard time or daylight savings time.
    Administrator means the Administrator of the Federal Railroad
Administration or any person to whom the Administrator has delegated
authority in the matter concerned.
    Administrative duties means any activities required by the railroad
as a condition of employment, related to reporting, recording, or
providing an oral or written statement related to a current, previous,
or future duty tour. Such activities are considered service for the
railroad, and time spent in these activities must be included in the
total time on duty for any duty tour with which it may commingle.
    At the behest of the employee refers to time spent by an employee
in a railroad-related activity that is not required by the railroad as
a condition of employment, in which the employee voluntarily
participates.
    At the behest of the railroad refers to time spent by an employee
in a railroad-required activity that compels an employee to perform
service for the railroad as a condition of employment.
    Broken (aggregate) service means one or more periods of time on
duty within a single duty tour separated by one or more qualifying
interim releases.
    Call and release occurs when an employing railroad issues an
employee a report-for-duty time, and then releases the employee from
the requirement to report prior to the report-for-duty time.
    Carrier, common carrier, and common carrier engaged in interstate
or foreign commerce by railroad mean railroad.
    Commingled service means--
    (1) For a train employee or a signal employee, any non-covered
service at the behest of the railroad and performed for the railroad
that is not separated from covered service by a qualifying statutory
off-duty period of 8 or 10 hours or more. Such commingled service is
counted as time on duty pursuant to 49 U.S.C. 21103(b)(3) (for train
employees) or 49 U.S.C. 21104(b)(2) (for signal employees).
    (2) For a dispatching service employee, any non-covered service
mandated by the railroad and performed for the railroad within any 24-
hour period containing covered service. Such commingled service is
counted as time on duty pursuant to 49 U.S.C. 21105(c).
    Commuting means--
    (1) For a train employee, the time spent in travel--
    (i) Between the employee's residence and the employee's regular
reporting point, and
    (ii) In railroad-provided or authorized transportation to and from
the lodging facility at the away-from-home terminal (excluding travel
for purposes of an interim release), where such time (including travel
delays and room availability) does not exceed 30 minutes.
    (2) For a signal employee, the time spent in travel between the
employee's residence and the employee's headquarters.
    (3) For a dispatching service employee, the time spent in travel
between the employee's residence and any reporting point.
    Consecutive service is a period of unbroken total time on duty
during a duty tour.
    Covered service means--
    (1) For a train employee, the portion of the employee's time on
duty during which the employee is engaged in, or connected with, the
movement of a train.
    (2) For a dispatching service employee, the portion of the
employee's time on duty during which the employee, by the use of an
electrical or mechanical device, dispatches, reports, transmits,
receives, or delivers an order related to or affecting the movement of
a train.
    (3) For a signal employee, the portion of the employee's time on
duty during which the employee is engaged in installing, repairing, or
maintaining a signal system.
    Covered service assignment means--
    (1) For a train employee, each unique assignment of the employee
during a period of covered service that is associated with either a
specific train or a specific yard job.
    (2) For a signal employee, the assigned duty hours of the employee,
including overtime, or unique trouble call assignments occurring
outside the employee's assigned duty hours.
    (3) For a dispatching service employee, each unique assignment for
the employee that occurs within any 24-hour period in which the
employee, by the use of an electrical or mechanical device, dispatches,
reports, transmits, receives, or delivers orders related to or
affecting train movements.
    Deadheading means the physical relocation of a train employee from
one point to another as a result of a railroad-issued verbal or written
directive.
    Designated terminal means the home or away-from-home terminal for
the assignment of a particular train crew.
    Dispatching service employee means an operator, train dispatcher,
or other train employee who by the use of an electrical or mechanical
device dispatches, reports, transmits, receives, or delivers orders
related to or affecting train movements.
    Duty location for a signal employee is the employee's headquarters
or the precise location where the employee is expected to begin
performing service for the railroad as defined in 49 U.S.C. 21104(b)(1)
and (2).
    Duty tour means--
    (1) The total of all periods of covered service and commingled
service for a train employee or a signal employee occurring between two
statutory off-duty periods (i.e., off-duty periods of a minimum of 8 or
10 hours); or
    (2) The total of all periods of covered service and commingled
service for a dispatching service employee occurring in any 24-hour
period.
    Employee means an individual employed by a railroad or a contractor
or subcontractor to a railroad who--
    (1) Is actually engaged in or connected with the movement of any
train, including a person who performs the duties of a hostler;
    (2) Dispatches, reports, transmits, receives, or delivers an order
pertaining to a train movement by the use of telegraph, telephone,
radio, or any other electrical or mechanical device; or
    (3) Is engaged in installing, repairing, or maintaining a signal
system.
    Final release is the time that a train employee or a signal
employee is released from all activities at the behest of the railroad
and begins his or her statutory off-duty period.
    Headquarters means the regular assigned on-duty location for signal
employees, or the lodging facility or crew quarters where traveling
signal gangs reside when working at various system locations.
    Interim release means an off-duty period applied to train employees
only, of at least 4 hours but less than the required statutory off-duty
period at a designated terminal, which off-duty period temporarily
suspends the

accumulation of time on duty, but does not start a new duty tour.
    Limbo time means a period of time treated as neither time on duty
nor time off duty in 49 U.S.C. 21103 and 21104, and any other period of
service for the railroad that does not qualify as either covered
service or commingled service.
    On-duty time means the actual time that an employee reports for
duty to begin a covered service assignment.
    Other-than-regular reporting point means any location where a train
employee reports to begin or restart a duty tour, that is not the
employee's regular reporting point.
    Prior time off means the amount of time that an employee has been
off duty between identifiable periods of service at the behest of the
railroad.
    Program edits are filters contained in the logic of an hours of
service recordkeeping program that detect identifiable reporting errors
made by a reporting employee at the time of data entry, and prevent the
employee from submitting a record without first correcting or
explaining any identified errors or anomalies.
    Quick tie-up is a data entry process used only when an employee is
within 3 minutes of, or is beyond, his or her statutory maximum on-duty
period, which process allows an employee to enter only the basic
information necessary for the railroad to identify the beginning of an
employee's statutory off-duty period, to avoid the excess service that
would otherwise be incurred in completing the full record for the duty
tour. The information permitted in a quick tie-up process is limited