[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 16200-16229]
[FR Doc No: 2011-6528]

Vol. 76

Tuesday,

No. 55

March 22, 2011

Part IV

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 228

Hours of Service of Railroad Employees; Substantive Regulations for
Train Employees Providing Commuter and Intercity Rail Passenger
Transportation; Conforming Amendments to Recordkeeping Requirements;
Proposed Rule

Federal Register / Vol. 76 , No. 55 / Tuesday, March 22, 2011 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. FRA-2009-0043, Notice No. 1]
RIN 2130-AC15

Hours of Service of Railroad Employees; Substantive Regulations
for Train Employees Providing Commuter and Intercity Rail Passenger
Transportation; Conforming Amendments to Recordkeeping Requirements

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its hours of service recordkeeping
regulations, to establish hours of service regulations, including
maximum on-duty periods, minimum off-duty periods, and other
limitations, for train employees (e.g., locomotive engineers and
conductors) providing commuter and intercity rail passenger
transportation. The proposed regulations would require that railroads
employing such train employees analyze and mitigate the risks for
fatigue in the schedules worked by these train employees, and that the
railroads submit to FRA for its approval the relevant schedules and
fatigue mitigation plans. This proposed rule would also make
corresponding changes to FRA's hours of service recordkeeping
regulation, to require railroads to keep hours of service records and
report excess service to FRA in a manner consistent with the new
requirements. This proposed regulation is authorized by the Rail Safety
Improvement Act of 2008.

DATES: Comments: Written comments must be received by May 23, 2011.
Comments received after that date will be considered to the extent
possible without incurring additional delay or expense.
    Public hearing: FRA anticipates being able to resolve this
rulemaking without a public hearing. However, if FRA receives a
specific request for a public hearing prior to March 29, 2011, one will
be scheduled, to be held in the Washington, DC area, on a date prior to
the end of the comment period, and FRA will publish a supplemental
notice in the Federal Register to inform interested parties of the
date, time, and specific location of any such hearing.

ADDRESSES: Comments, which should be identified by Docket No. FRA-2009-
0043, Notice No. 1, may be submitted by any one of the following
methods:
     Fax: 1-202-493-2251;
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
     Electronically through the Federal eRulemaking Portal,
http://www.regulations.gov. Follow the online instructions for
submitting comments.
    Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act section of this
document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mark H. McKeon, Special Assistant to
the Associate Administrator for Railroad Safety/Chief Safety Officer,
FRA, 1200 New Jersey Avenue, SE., RRS-1, Mail Stop 25, Washington, DC
20590 (telephone:<PHONE_NUMBER>); Dr. Thomas G. Raslear, Staff Director,
Human Factors Research Program, Office of Research and Development,
FRA, 1200 New Jersey Avenue, SE., RPD-321, Mail Stop 20, Washington, DC
20590 (telephone<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. Executive Summary
II. Statutory Background and History
III. Scientific Background
    A. Validated and Calibrated Fatigue Models
    1. Fatigue Avoidance Scheduling Tool \TM\ Model
    2. Fatigue Audit InterDyne \TM\ Model
    B. Diary Study of Train Employees on Commuter and Intercity
Passenger Railroads
IV. Railroad Safety Advisory Committee Process
    A. Overview of the RSAC
    B. RSAC Proceedings in This Rulemaking
    C. Significant Task Force Contributions
    1. Schedule Analysis
    2. Fatigue Mitigation Tool Box
    D. Areas of Working Group and Task Force Concern
    1. Definitions of ``Type 1 Assignment'' and ``Type 2
Assignment''
    2. Limitations on Number of Consecutive Days of Work
    3. Precision of Fatigue Models and Threshold
    4. Freight Railroad Employees Acting as Pilots for Commuter or
Intercity Passenger Trains
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies
and Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act and Executive Order 13272
    1. Description of Regulated Entities and Impacts
    2. Certification
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act
    G. Environmental Assessment
    H. Privacy Act

I. Executive Summary

    This NPRM proposes hours of service regulations for train employees
who provide commuter or intercity rail passenger transportation
(passenger train employees). FRA seeks comment on all aspects of this
proposal.
    Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act (Pub. L.
59-274, 34 Stat. 1415), and FRA, under delegations from the Secretary
of Transportation (Secretary), has long administered statutory hours of
service requirements for the three groups of employees now covered
under the statute, namely employees performing the functions of train
employees, signal employees, and dispatching service employees, as
those terms are defined at 49 U.S.C. 21101. See 49 CFR 1.49; 49 U.S.C.
21101-21109, 21303.
    These requirements have been amended several times over the years,
most recently in the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Div. A; RSIA). The RSIA substantially amended the requirements of
49 U.S.C. 21103, applicable to train employees, defined as ``* * *
individual[s] engaged in or connected with the movement of a train,
including

a hostler.'' 49 U.S.C. 21101(5). However, the RSIA also granted the
Secretary authority to prescribe regulations governing the hours of
service of passenger train employees. 49 U.S.C. 21109(b)-(c). As will
be discussed below, FRA interprets commuter or intercity rail passenger
transportation to include rail passenger transportation by tourist,
scenic, excursion, and historic railroads. The RSIA provided that this
particular subset of train employees would continue to be governed by
49 U.S.C. 21103 as it existed prior to the enactment of the RSIA (old
Section 21103), until the earlier of, the effective date of final
regulations prescribed by the Secretary, or the date that is three
years from the date of enactment of the RSIA. 49 U.S.C. 21102(c). In
the absence of a final rule in effect governing this group of train
employees, the requirements of the RSIA currently in effect for other
train employees (new Section 21103) will go into effect for passenger
train employees on October 16, 2011. 49 U.S.C. 21102(c).
    As will be discussed further below, FRA reviewed the applicable
fatigue science, and sought input from FRA's Railroad Safety Advisory
Committee (RSAC). Based on FRA's understanding of current fatigue
science, and information received through RSAC, FRA determined that the
requirements imposed on train employees by the RSIA were not
appropriate for passenger train employees. The chart below compares and
contrasts (1) the hours of service requirements in 49 U.S.C. 21103 as
amended by the RSIA, (2) the hours of service requirements applicable
to all train employees immediately prior to the RSIA, which are
currently still applicable to passenger train employees, and (3) the
requirements of this proposed regulation that if adopted would apply to
passenger train employees.

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                                                                   Train employee
                                                               provisions immediately
                                       FRA Freight train          prior to RSIA and        FRA passenger train
                                        employee statute        currently applicable          employee NPRM
                                                               only to passenger train
                                                                      employees
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Citation.........................  49 U.S.C. 21103 (as        49 U.S.C. 21103 as it     Proposed 49 CFR part
                                    amended by the RSIA        existed prior to the      228, subpart F.
                                    effective July 16, 2009)   October 16, 2008,
                                    (new section 21103)        enactment of the RSIA
                                    (Applies to train          (old section 21103)
                                    employees on freight       (Train employees
                                    railroads. Will apply to   providing commuter and
                                    train employees on         intercity rail
                                    commuter and intercity     passenger
                                    passenger railroads if     transportation are
                                    no regulations are in      currently covered by
                                    effect by October 16,      these provisions
                                    2011).                     pursuant to 49 U.S.C.
                                                               21102(c).).
Use of Fatigue Science...........  None.....................  None....................  NRPM requires schedules
                                                                                to be analyzed under a
                                                                                validated
                                                                                biomathematical fatigue
                                                                                model such as the
                                                                                Fatigue Avoidance
                                                                                Scheduling Tool \TM\,
                                                                                with the exception of
                                                                                certain schedules
                                                                                (completely within the
                                                                                hours of 4 a.m. and 8
                                                                                p.m. and otherwise in
                                                                                compliance with the
                                                                                limitations in the
                                                                                regulation) deemed as
                                                                                categorically
                                                                                presenting an
                                                                                acceptable level of
                                                                                risk for fatigue that
                                                                                does not exceed the
                                                                                defined fatigue
                                                                                threshold.
Limitations on Time on Duty in a   12 consecutive hours of    12 consecutive hours of   12 consecutive hours of
 Single Tour.                       time on duty or 12         time on duty or 12        time on duty or 12
                                    nonconsecutive hours on    nonconsecutive hours on   nonconsecutive hours on
                                    duty if broken by an       duty if broken by an      duty if broken by an
                                    interim release of at      interim release of at     interim release of at
                                    least 4 consecutive        least 4 consecutive       least 4 consecutive
                                    hours uninterrupted by     hours, in a 24-hour       hours, in a 24-hour
                                    communication from the     period that begins at     period that begins at
                                    railroad likely to         the beginning of the      the beginning of the
                                    disturb rest, in a 24-     duty tour.                duty tour.
                                    hour period that begins
                                    at the beginning of the
                                    duty tour.
Limitations on Consecutive Duty    May not be on duty as a    None....................  No more than six ``Type
 Tours.                             train employee after                                 2'' assignments
                                    initiating an on-duty                                (generally, those
                                    period on six                                        including time on duty
                                    consecutive days without                             between 8 p.m. and 4
                                    receiving 48 consecutive                             a.m.) without 24
                                    hours off duty free from                             consecutive hours off
                                    any service for any                                  duty at the employee's
                                    railroad carrier at the                              home terminal. No more
                                    employee's home                                      than 14 ``Type 1''
                                    terminal. Employees are                              assignments (those not
                                    permitted to initiate a                              Type 2) without 2
                                    seventh consecutive day                              consecutive calendar
                                    when the employee ends                               days off duty at the
                                    the sixth consecutive                                employee's home
                                    day at the away-from-                                terminal. Employees may
                                    home terminal, as part                               be permitted to perform
                                    of a pilot project, or                               service on an
                                    as part of a                                         additional day to
                                    grandfathered                                        facilitate their return
                                    collectively bargained                               to their home terminal.
                                    arrangement. Employees
                                    performing service on
                                    this additional day must
                                    receive 72 consecutive
                                    hours free from any
                                    service for any railroad
                                    carrier at their home
                                    terminal before going on
                                    duty again as a train
                                    employee.

Cumulative Limits on Time on Duty  Limited to 276 hours of    None....................  None.
                                    time on duty, in
                                    deadhead transportation
                                    to a point of final
                                    release, or any other
                                    mandatory activity for
                                    the railroad carrier.
                                   Limited to 30 hours of                               ........................
                                    time spent on duty and
                                    waiting for or in
                                    deadhead transportation
                                    to a point of final
                                    release after reaching
                                    12 hours of time on duty
                                    and waiting for or in
                                    deadhead transportation
                                    to a point of final
                                    release.
Mandatory Off-Duty Periods.......  10 consecutive hours of    8 consecutive hours (10   8 consecutive hours (10
                                    time off duty free from    consecutive hours if      consecutive hours if
                                    any communication from     time on duty reaches 12   time on duty reaches 12
                                    the railroad likely to     consecutive hours).       consecutive hours).
                                    disturb rest, with
                                    additional time off duty
                                    if on-duty time plus
                                    time in or awaiting
                                    deadhead transportation
                                    to final release exceeds
                                    12 hours.
                                   48 consecutive hours off                             ........................
                                    duty, free from any
                                    service for any railroad
                                    carrier, after
                                    initiating an on-duty
                                    period for 6 consecutive
                                    days. If 7 consecutive
                                    days are permitted,
                                    mandatory off-duty
                                    period extended to 72
                                    consecutive hours.
Specific Rules for Nighttime       None.....................  None....................  Schedules that include
 Operations.                                                                             any time on duty
                                                                                between 8 p.m. and 4
                                                                                a.m. must be analyzed
                                                                                using a validated
                                                                                biomathematical model
                                                                                of human performance
                                                                                and fatigue approved by
                                                                                FRA. Schedules with
                                                                                excess risk of fatigue
                                                                                must be mitigated or
                                                                                supported by a
                                                                                determination that
                                                                                mitigation is not
                                                                                possible and the
                                                                                schedule is
                                                                                operationally necessary
                                                                                and approved by FRA.
Specific Rules for Unscheduled     None.....................  None....................  The potential for
 Assignments.                                                                            fatigue presented by
                                                                                unscheduled work
                                                                                assignments must be
                                                                                mitigated as part of a
                                                                                railroad's FRA-approved
                                                                                fatigue management
                                                                                plan.
Recordkeeping requirements.......  Record for each duty tour  Record for each duty      Record for each duty
                                    must contain 15 elements   tour must contain the     tour must contain the
                                    specified in 49 CFR        first 11 elements         first 12 elements
                                    228.11(b).                 specified in 49 CFR       specified in 49 CFR
                                                               228.11(b), as items 12    228.11(b). Item 12
                                                               through 15 relate to      refers to recording the
                                                               RSIA requirements not     number of consecutive
                                                               applicable to train       days, which would be
                                                               employees providing       required by the
                                                               commuter or intercity     proposed rule.
                                                               rail passenger
                                                               transportation.
Excess Service Reporting           Requires reporting of any  Requires reporting of     Requires reporting of
 Requirements.                      of 10 different ways in    any of 4 different ways   any of 10 different
                                    which hours of service     in which hours of         ways in which hours of
                                    limitations may be         service limitations may   service limitations may
                                    exceeded.                  be exceeded.              be exceeded (reflecting
                                                                                various ways of
                                                                                violating new
                                                                                consecutive-days
                                                                                requirements).
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This proposed rule would leave intact the existing limitations set by
old section 21103 on the maximum number of hours in a duty tour and
minimum number of hours in a statutory off-duty period. An additional
limitation would be added on the number of consecutive days that a
passenger train employee may work, depending on the time of day of the
assignment. This differentiation takes into account the fact that work
during nighttime hours may present a greater risk for fatigue.
Conforming changes would also be made to the recordkeeping and
reporting requirements to accommodate the consecutive limitations on
consecutive days.
    The limitations on maximum hours worked, minimum hours of rest, and
consecutive days would provide a ``floor,'' a minimum set of
limitations, within which the proposed rule would require railroads
subject to this proposed rule to analyze their schedules using a
validated and calibrated biomathematical model of human performance and
fatigue, and to mitigate any fatigue identified that exceeds the
fatigue threshold for the model. The fatigue threshold is a level of
fatigue at which safety may be compromised. As will be discussed below,
there are two models that currently have been validated and calibrated
using data from freight railroads, that can be used for the analysis
required by this proposed rule. The proposed rule also allows for the
development of new models. It

discusses procedures for validating and calibrating a model, and
provides that evidence of a new model's validation and calibration may
be submitted to FRA for approval.
    The proposed rule would define as a ``Type 1 assignment'' any
assignment that requires an employee to report for duty no earlier than
4 a.m. and be released from duty no later than 8 p.m. Based on analysis
conducted during the formulation of this proposal, FRA proposes to
subject such assignments to a less restrictive consecutive-days
limitation, and to deem such schedules as presenting an acceptable
level of fatigue when otherwise in compliance with the limitations
established in this proposal, such that these schedules would not be
required to be submitted to FRA for approval, nor would the application
of fatigue mitigation tools to these schedules be required.
    A ``Type 2 assignment'' would be any assignment having any period
of time during a calendar day before 4 a.m. or after 8 p.m. Within 180
days of the effective date of a final regulation in this rulemaking,
the proposed rule would require railroads to analyze the fatigue risk
of assignments they make to their passenger train employees. If the
analysis shows that a schedule does not exceed the fatigue threshold,
and the schedule is otherwise in compliance with the limitations of the
proposed rule and does not require the employee to be on duty for any
period of time between midnight and 4 a.m., the proposed rule would
allow that schedule to be treated as a Type 1 assignment for the
purposes of the consecutive-days limitation, and there would be no
requirement to mitigate fatigue in that schedule. However, for those
schedules that analysis indicates have a level of risk for fatigue
exceeding the fatigue threshold, the railroad would be required to
mitigate the fatigue. Railroads would also be required to complete
their analysis and submit any schedules with a risk exceeding the
fatigue threshold, and the mitigation tools the railroad applied to
mitigate the fatigue risk in those schedules to FRA for approval. In
addition, any schedule, the fatigue risk of which could not be
sufficiently mitigated to within the fatigue threshold, but which the
railroad deems operationally necessary, must also be submitted for FRA
approval, along with a declaration of operational necessity.
    The proposed rule would also require railroads to submit any
schedule changes that would result in a schedule that would have been
required to be submitted if it were an original schedule, unless the
new schedule was the same as another schedule that had previously been
analyzed and approved.
    Within 120 days of any railroad submission, FRA will notify the
railroad of any exceptions taken to its submission. While the proposed
rule would require FRA approval of the schedules and fatigue mitigation
tools, FRA expects that it would work with a railroad to make necessary
modifications to schedules or mitigation tools to minimize fatigue to
the greatest extent possible. FRA does not intend to dictate a required
schedule for operations. FRA seeks comment on the logistics of schedule
review and approval and the collaboration between FRA and the railroad
to address any areas of concern.
    Railroads would be required to consult with affected employees and
applicable labor organizations regarding the analysis of work
schedules, fatigue mitigation tools, and submissions to FRA. Should the
employees or labor organizations disagree with the railroad, they have
the opportunity, under the proposal to file a statement for FRA's
consideration in reviewing the submission and determining whether to
approve it.
    Finally, the proposed rule would require initial fatigue training,
addressing a list of subjects, and refresher training every three
years. This training may be combined with other training the railroads
are providing to their employees.
    FRA has analyzed the economic impacts of this proposed rule against
two baselines. One is a ``status quo'' baseline that reflects present
conditions (i.e., primarily, the statutory hours of service provisions
(specifically, old section 21103) and, secondarily, the hours of
service recordkeeping and reporting regulations) that have applied, and
will continue to apply, to passenger railroads, with respect to their
train employees, until either the passenger railroads become subject,
with respect to the same employees, to either the freight hours of
service laws on October 16, 2011 or an FRA-issued hours of service rule
prior to that). The other baseline is a ``no regulatory action''
baseline that reflects what would happen in absence of this rulemaking
(i.e., the freight hours of service laws are applied to passenger
railroads with respect to their train employees).
    With respect to the ``status-quo'' baseline, the FRA proposal would
impose costs that are higher than the quantified safety benefits. Costs
compared to the ``status quo'' baseline total $2.1 million
(undiscounted), $1.4 million (PV, 7 percent), and $1.7 million (PV, 3
percent). Quantified benefits compared to the ``status quo'' baseline
total $1.4 million (undiscounted), $.7 million (PV, 7 percent), and
$1.0 million (PV, 3 percent). However, there are additional benefits
that have not been quantified, but should be considered when comparing
the overall costs and benefits. For instance, safety and health
benefits will accrue from the transfer of knowledge to employees, their
families, friends and others with whom they may share the fatigue
knowledge they acquire from the required fatigue awareness training
programs. This fatigue awareness will result in more optimal decisions
regarding rest and sleep leading to less fatigue and improved safety
outside of passenger train operations during the course of daily
activities that may include the operation of motor vehicles or other
heavy machinery. This fatigue awareness will also result in proper
identification and treatment, if necessary, of fatigue symptoms.
Separately, accident avoidance will result in fewer unplanned delays to
passengers and freight commodities impacted by passenger train accident
and incidents that result in blocking one or more tracks for prolonged
periods. These costs can be very substantial given the need to
investigate accidents and often clear wreckage. Finally, there is the
non-quantified benefit of ensuring that passenger railroads do not
unknowingly require train employees to work schedules with unacceptable
high-fatigue risk levels. It is not unreasonable to expect that the
unquantified benefits will raise the benefits to a level quite
comparable to the costs. FRA also believes that the unquantified
benefits coupled with the quantified safety benefits compare very well
with the costs associated with meeting the intent of the statutory
mandate as proposed.
    With respect to the ``no regulatory action'' baseline, FRA found
that its proposal represents a substantially more cost-effective
alternative for achieving the goal of identifying and mitigating
unacceptable fatigue risk levels and thus ensuring the safety of
passenger train operations. Over the 20-year period analyzed, the
undiscounted costs associated with the ``no regulatory action''
alternative total $75.5 million compared to $2.1 million for the FRA
proposal. Similarly, when discounted at 7 percent, the costs associated
with the ``no regulatory action'' alternative total $59.0 million
compared to $1.4 million for the FRA proposal and when discounted at 3
percent, the costs associated with the ``no regulatory action''
alternative total $66.8 million

compared to $1.7 million for the FRA proposal.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  No-action alternative                                       NPRM
                 Cost description                  -----------------------------------------------------------------------------------------------------
                                                      Undiscounted        PV@7%            PV@3%         Undiscounted        PV@7%            PV@3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Engineer Training, Initial (20% New Hires)....      $31,237,549      $26,299,825      $28,705,081                0                0                0
New Engineer Training, Refresher (20% New Hires)..        4,599,050        2,278,431        3,327,802                0                0                0
New Conductor Training, Initial (20% New Hires)...       30,847,974       25,942,971       28,330,908                0                0                0
New Conductor Training, Refresher (20% New Hires).        8,636,745        4,278,146        6,249,071                0                0                0
Work Schedule Analysis (No-Reg Action)/Initial              189,723          177,312          184,198      ($126,482 +      ($118,208 +      ($122,798 +
 Analysis of Work Schedules + Follow-up Analysis                                                           $240,316) =      $122,175) =      $175,894) =
 and Fatigue Mitigation Plan Review (NPRM)........                                                            $366,799         $240,382         $298,692
Biomathematical Model of Fatigue Software.........                0                0                0          417,500          268,723          337,240
Use of Rest Facilities............................                0                0                0           30,988           28,961           30,086
Fatigue Training..................................                0                0                0        1,329,673          841,748        1,065,188
                                                   -----------------------------------------------------------------------------------------------------
    TOTAL (rounded)...............................       75,511,041       58,976,685       66,797,059        2,144,960        1,379,815        1,731,206
--------------------------------------------------------------------------------------------------------------------------------------------------------

FRA estimates that the recordkeeping and reporting costs per employee
record under the no-regulatory action alternative and FRA proposal will
be practically the same.
    The estimated accident reduction benefits of the proposed rule
relative to the statutory hours of service requirements currently in
place include prevented accident damages, injuries, and fatalities. The
table below presents the estimates for the 20-year period of analysis.

                         Intercity Passenger, Commuter, Tourist and Excursion Railroads
                                                [All track types]
----------------------------------------------------------------------------------------------------------------
                                                                  VSL = $6 M       VSL = $6 M       VSL = $6 M
                 Accident reduction benefits                     undiscounted    discounted PV@   discounted PV@
                                                                   benefits            7%               3%
----------------------------------------------------------------------------------------------------------------
Property Damage..............................................         $829,366         $439,316         $616,943
Injuries.....................................................          120,547           63,854           89,672
Fatalities...................................................          429,088          227,288          319,187
                                                              --------------------------------------------------
    TOTAL (rounded)..........................................        1,379,001          730,458        1,025,803
----------------------------------------------------------------------------------------------------------------

    FRA does not expect that the overall number of casualties and
property damages prevented under the proposed rule will differ from
those that would be prevented under the statutory freight hours of
service requirements.
    FRA seeks comments on all aspects of the economic impacts of its
proposal.

II. Statutory Background and History

    Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act. These
laws, codified as amended primarily at 49 U.S.C. 21101-21109, are
intended to promote safe railroad operations by limiting the hours of
service of certain railroad employees and ensuring that they receive
adequate opportunities for rest in the course of performing their
duties. Public Law 103-272 (1994). The Secretary is charged with the
administration of those laws, collectively referred to in this document
as the hours of service laws (HSL). This function has been delegated to
the FRA Administrator. 49 U.S.C. 103(c); 49 CFR 1.49(d).
    Congress substantially amended the HSL on three occasions. The
first significant amendments occurred in 1969. Public Law 91-169, 83
Stat. 463. The 1969 amendments reduced the maximum time on duty for
train employees \1\ from 16 hours to 14 hours effective immediately,
with a further reduction to 12 hours automatically taking effect two
years later. Congress also established provisions for determining, in
the case of a train employee, whether a period of time is to be counted
as time on duty. 49 U.S.C. 21103(b). In so doing, Congress also
addressed the issue of deadhead

transportation \2\ time, providing that ``[t]ime spent in deadhead
transportation to a duty assignment'' is counted as time on duty.
(Emphasis added). Although time spent in deadhead transportation from a
duty assignment to the point of final release is not included within
any of the categories of time on duty, Congress further provided that
it shall be counted as neither time on duty nor time off duty. 49
U.S.C. 21103(b)(4). This provision effectively created a third category
of time, known commonly as ``limbo time.''
---------------------------------------------------------------------------

    \1\ A ``train employee'' is defined at 49 U.S.C. 21101(5) and 49
CFR 228.5 as an individual engaged in or connected with the movement
of a train, including a hostler. FRA also interpreted this statutory
term in published interpretations in 49 CFR part 228, Appendix A,
providing: ``Train or engine service refers to the actual assembling
or operation of trains. Employees who perform this type of service
commonly include locomotive engineers, firemen, conductors,
trainmen, switchmen, switchtenders (unless their duties come under
the provisions of section 3) and hostlers.'' Other employees, such
as food service providers or sleeping car attendants, who may work
on passenger trains, but have no responsibility for assembling or
operating the train, are not within the definition of a train
employee, and are, as such, not generally covered by this proposed
rule, or any other hours of service limitations, but they would be
covered if they performed functions related to assembling or
operating the train, regardless of the employee's job title.
    \2\ Deadheading is defined at 49 CFR 228.5 as the physical
relocation of a train employee from one point to another as a result
of a railroad-issued verbal or written directive.
---------------------------------------------------------------------------

    In 1976, Congress again amended the HSL in several important
respects. Most significantly, Congress expanded the coverage of the
laws, by including hostlers within the definition of employees now
termed ``train employees'', and adding the section providing hours of
service requirements for ``signal employees'', now codified at 49
U.S.C. 21104. Congress also added a provision that prohibited a
railroad from providing sleeping quarters that are not free from
interruptions of rest caused by noise under the control of the
railroad, and that are not clean, safe, and sanitary, and prohibited
the construction or reconstruction of sleeping quarters in an area or
in the immediate vicinity of an area in which humping or switching
operations are performed. See Public Law 94-348, 90 Stat. 818 (1976).
    Section 108 of the RSIA also amended the HSL in a number of
significant ways, most of which became effective July 16, 2009. See
Section 108 of Public Law 110-432, Div. A, and FRA Interim Statement of
Agency Policy and Interpretation at 74 FR 30665 (June 26, 2009). The
RSIA established a limit of 276 hours per calendar month for train
employees on service performed for a railroad and on time spent in or
waiting for deadhead transportation to a point of final release,
increased the quantity of the statutory minimum off-duty period after
being on duty for 12 hours in broken service from 8 hours of rest to 10
hours of rest, prohibited communication with train or signal employees
during certain minimum statutory rest periods, and established
mandatory time off duty for train employees of 48 hours after
initiating an on-duty period on six consecutive days, or 72 hours after
initiating an on-duty period on seven consecutive days. 49 U.S.C.
21103-21104. The RSIA also revised the definition of ``signal
employee'' to include contractors who perform the work of a signal
employee within the scope of the statute. 49 U.S.C. 21101(4).
    However, Section 108(d) of the RSIA, which became effective on
October 16, 2008, provided that the requirements described above for
train employees would not go into effect on July 16, 2009, for train
employees when providing commuter or intercity rail passenger
transportation. 49 U.S.C. 21102(c). Section 108(d) further provided
that these train employees, who provide commuter or intercity passenger
rail service, would continue to be governed by the old HSL (as they
existed immediately prior to the enactment of the RSIA, at 49 U.S.C.
21103 prior to its 2008 amendment), until the effective date of
regulations promulgated by the Secretary. 49 U.S.C. 21102(c). However,
if no new regulations are in effect before October 16, 2011, the
provisions of Section 108(b), which applied to train employees, would
be extended to these employees at that time. Id.
    Section 108(e) of the RSIA specifically provides the Secretary with
the authority to issue hours of service rules and orders applicable to
train employees engaged in commuter rail passenger transportation and
intercity rail passenger transportation (as defined in 49 U.S.C.
24102), that may be different from the statute applied to other train
employees. 49 U.S.C. 21109(b). It further provides that such
regulations and orders may address railroad operating and scheduling
practices, including unscheduled duty calls, communications during time
off duty, and time spent waiting for deadhead transportation or in
deadhead transportation from a duty assignment to the place of final
release, that could affect employee fatigue and railroad safety. Id.
    Section 108(e) of the RSIA also provides:

[i]n issuing regulations under subsection (a) the Secretary shall
consider scientific and medical research related to fatigue and
fatigue abatement, railroad scheduling and operating practices that
improve safety or reduce employee fatigue, a railroad's use of new
or novel technology intended to reduce or eliminate human error, the
variations in freight and passenger railroad scheduling practices
and operating conditions, the variations in duties and operating
conditions for employees subject to this chapter, a railroad's
required or voluntary use of fatigue management plans covering
employees subject to this chapter, and any other relevant factors.

49 U.S.C. 21109(c). Section 21109(a) of title 49 of the U.S. Code
refers to other regulatory authority granted to FRA, as the Secretary's
delegate related to the HSL, which is not relevant to this proposed
rule. However, FRA believes that one of the goals of the present
rulemaking is to identify and reduce fatigue for the employees who will
be covered by the final rule. Therefore, as will be described below,
FRA has based these proposed regulations on scientific research related
to fatigue and fatigue abatement, as applied to railroad scheduling
practices and operating conditions for train employees providing
commuter and intercity rail passenger transportation. Section III below
will describe the primary scientific foundation and support for the
requirements contained in this proposed rule. In addition, scientific
considerations will also be addressed in discussion of various elements
of this proposal, including in the discussion of specific provisions in
the Section-by-Section Analysis below.

III. Scientific Background

    Most mammals, including human beings, have an approximately 24-hour
sleep-wake cycle known as a ``circadian rhythm.'' Rapid changes in the
circadian pattern of sleep and wakefulness disrupt many physiological
functions such as hormone releases, digestion, and temperature
regulation. Human function can be affected, performance may be
impaired, and a general feeling of debility may occur until realignment
is achieved. Jet lag when flying east is the most commonly experienced
syndrome similar to the experience of consistently working on a less-
than-24-hour cycle.
    Fatigue risk in an industry that operates 24 hours a day and 7 days
per week is not just dependent on how many hours per day a person is
permitted to work, or the amount of time that a person is required to
be off duty between periods of work. Other significant factors in the
level of fatigue risk include the time of day that an employee works
and the number of consecutive days that an employee works. In addition,
the quantity and quality of sleep vary with the time of day. Because of
natural circadian rhythms and environmental and social factors, most
people are able to achieve the best quality and most restful sleep at
night.
    As previously mentioned, the statutory hours of service
requirements currently in effect for train employees providing commuter
and intercity rail passenger transportation establish a maximum on-duty
time of 12 hours in a 24-hour period, and a minimum off-duty time of 8
hours in a 24-hour period, or 10 hours after a period of 12 consecutive
hours on duty. Statutory requirements applicable to train

employees on freight railroads, as revised by the RSIA, include a
limitation on the number of consecutive days on which a train employee
may initiate an on-duty period. However, the HSL for the railroad
industry have never, up to the present day, differentiated in their
requirements based on the time of day in which service is performed, or
the time of day that a period is available for rest.
    As will be discussed further below, FRA conducted two work/rest
diary studies with train employees in freight and passenger operations.
Data from these studies indicate that train employees get more sleep
than the average U.S. adult. While 46 percent of U.S. adults get less
than seven hours of sleep, only 35 percent of freight train employees
and 41 percent of passenger train employees get less than seven hours
of sleep. This amount of sleep results in a level of fatigue that
increases accident risk by 21 to 39 percent.\3\ Moreover, certain
operational characteristics of commuter and intercity passenger service
mitigate the fatigue associated with this amount of sleep loss relative
to freight service. For example, many train employees on commuter and
intercity passenger railroads work scheduled assignments, in which they
begin and end their work day at approximately the same time each day.
These employees also usually begin and end their duty tour at the same
location, meaning that they can go home at the end of their work day
and sleep in their own beds. In addition, very few scheduled
assignments on most railroads operate during late night hours, and many
of them result in duty tours significantly shorter than the maximum
hours that the employee would be allowed to remain or go on duty under
the existing law or this proposed regulation. Because these
characteristics are more likely to allow for periods of rest that are
consistent with normal circadian rhythms, they will provide better
opportunities for rest, and less risk for fatigue. In addition, as will
be discussed further below, two FRA work/rest diary studies demonstrate
that levels of fatigue are not equivalent in freight and passenger
operations (Work Schedules and Sleep Patterns of Railroad Train and
Engine Service Workers http://www.fra.dot.gov/downloads/Research/ord0922.pdf (which included data from a small number of train employees
in passenger operations); Work Schedules and Sleep Patterns of Railroad
Train and Engine Employees in Passenger Operations [in review--the
diary study conducted to support this rulemaking]).
---------------------------------------------------------------------------

    \3\ See Hursh, et al. infra at footnote 8.
---------------------------------------------------------------------------

    For all of these reasons, FRA has determined that some of the
specific limitations that Congress applied to train employees on
freight railroads in the RSIA are not appropriate for train employees
on commuter and intercity passenger railroads.
    However, FRA also recognizes that some train employees covered by
this proposed rule will experience a level of fatigue at which safety
may be compromised. This is particularly true of those employees who do
not work scheduled assignments and may not return home at the end of
each duty tour, or who are required to perform service during late
night hours, or to work duty tours of the maximum length allowed by
existing requirements, with only the minimum required rest between duty
tours. FRA has attempted, in this proposed regulation, to specifically
address those employees who are most at risk for fatigue, even when in
compliance with specific hours of service limitations. As will be
discussed below, research that resulted in the validation of fatigue
models using data from freight railroads demonstrated that fatigue
increases the risk of a human factors accident. In addition, as will be
discussed below, diary data show the risk of fatigue in passenger
operations. The risk must be measured in order to be managed, and
fatigue models allow for that measurement.
    An effective proactive fatigue risk management program needs to
balance the amount of work performed against when the work is
performed, how long a work schedule is in effect in terms of hours in a
day, consecutive days, and other variables. This proposed regulation
would address fatigue risk by going beyond establishing limitations on
the amount of time that an employee may work, and the minimum amount of
time that an employee must be off duty between duty tours. It would
additionally require the analysis of the fatigue risk in employee work
schedules using a biomathematical model of performance and fatigue,
identification of those schedules that present an unacceptable level of
fatigue risk, and mitigation of the identified fatigue risk. In
addition, the proposed regulation would establish different
requirements for schedules of employees who operate trains during the
late night hours in which the fatigue risk is greatest. Thus, the
proposed rule would specifically address those schedules the
characteristics of which present a risk for fatigue, even when
otherwise in compliance with required maximum on-duty and minimum off-
duty periods and other limitations. These risks would not be addressed
by a regulation that simply established maximum on-duty and minimum
off-duty periods, just as they are not addressed by the existing
statutory requirements.

A. Validated and Calibrated Fatigue Models \4\
---------------------------------------------------------------------------

    \4\ For a discussion of existing models and their application,
see Dean II, D.A., Fletcher, A., Hursh, S.R. and Klerman, E.B.,
Developing Models of Neurobehavioral Performance for the ``Real
World'', J. Biol Rhythms 2007; 22; 246.
---------------------------------------------------------------------------

    A biomathematical model of performance and fatigue that has been
properly validated and calibrated predicts accident risk based on
analysis of identified periods of wakefulness and periods available for
sleep.
    ``Validation'' of a biomathematical model of human performance and
fatigue means determining that the output of a biomathematical model of
human performance and fatigue actually measures human performance and
fatigue. There are two dimensions to this validation. The first is that
the model must be demonstrated to be consistent with currently
established science in the area of human performance, sleep, and
fatigue. The second part of the validation process involves determining
that the model output has a statistically reliable relationship with
the risk of a human factors accident caused by fatigue, and that the
model output does not have such a relationship with nonhuman factors
accident risk.
    In general, and for the purpose of compliance with this rule, a
model will be validated if statistical analyses demonstrate the
existence of a statistically significant relationship between the
output of the model and the human factors accident risk ratio, and the
absence of such a relationship between the output of the model and the
nonhuman factors accident risk ratio. The presence of a statistically
significant relationship is evaluated by way of the correlation
coefficient (r) with statistical significance requiring a p-value of
less than 0.05. The first step is the selection of bin \5\ edges that
correspond to varying levels of fatigue (e.g., the ``not fatigued'' bin
and the ``severely fatigued'' bin). The ``not fatigued'' bin is
determined by the output of the model when sleep occurs or can occur
for 8 or more hours, without abrupt phase changes, between 10 p.m. and
10 a.m. This is similar to the amount of fatigue produced by the
standard 9 a.m. to 5 p.m., Monday

through Friday work week. The performance bin ``severely fatigued'' is
determined by the output of the model when there is total sleep
deprivation for 42.5 hours after waking at 7 a.m. This is similar to
the amount of fatigue produced by a permanent night shift schedule with
six consecutive 12-hour work periods followed by 1 day off. These two
bins are the ``anchor'' bins for the validation procedure. Four
additional bins, equally spaced between the anchor bins, accommodate
the intermediate fatigue scores.
---------------------------------------------------------------------------

    \5\ In statistics, a ``bin'' is a discrete, nonoverlapping
interval of a variable. Here, the variable is the level of fatigue.
---------------------------------------------------------------------------

    Calibration is, in general, the assignment of numerical values to
represent aspects of empirical observations. In the case of human
fatigue and performance, the calibration of a fatigue scale would start
with the assignment of values to ``not fatigued,'' and the most
fatigued condition might be described as ``severely fatigued.'' The
calibration process starts during the validation process with the
assignment of model output values to anchor bins for ``not fatigued''
and ``severely fatigued.'' The next step consists of determining the
fatigue threshold. Given a scale for human fatigue and performance and
a relationship between that scale and human factors accident risk, a
final calibration point would be to determine the fatigue value at
which fatigue becomes unacceptable because the increase in accident
risk at that level compromises safety. This is the fatigue threshold.
    The procedure for determining the fatigue threshold consists of
several computations. First, the cumulative risk for the six fatigue
score bins is determined for human factor and nonhuman factor
accidents. Next, a 95-percent confidence interval is calculated for the
cumulative risk in each bin. Finally, the fatigue score bin in which
human factor cumulative risk exceeds both human factors Accident Risk
Ratio = 1 and the mean non-human factors risk is determined. This is
the fatigue threshold for the model.
    The accident risk is defined as an odds ratio, expressed as a
percentage of accidents occurring when employees involved in the
accident are within a given range of fatigue, divided by the percentage
of time spent by the individual working in that given range of
predicted fatigue. For example, if 20 percent of accidents occur when
an employee is within a particular range of predicted fatigue, and 10
percent of an employee's time in a given duty tour is spent within that
range of predicted fatigue, then that specific range of predicted
fatigue has doubled the accident risk.\6\
---------------------------------------------------------------------------

    \6\ For more information on the proper procedures for validation
and calibration of a biomathematical model of performance and
fatigue, see Raslear, T.G., Criteria and Procedures for Validating
Biomathematical Models of Human Performance and Fatigue; Procedures
for Analysis of Work Schedules. (A copy of this document has been
placed in the docket for this rulemaking.)
---------------------------------------------------------------------------

1. Fatigue Avoidance Scheduling ToolTM Model
    FRA-sponsored research resulted in the development of a Sleep,
Activity, Fatigue, and Task Effectiveness (SAFTE) model and Fatigue
Avoidance Scheduling ToolTM (FAST) that have been validated
and calibrated using data from freight railroads. FAST is a
biomathematical model of performance and fatigue that can be used to
assess the risk of fatigue in work schedules and to plan schedules that
ameliorate fatigue. The model takes into account the time of day when
work occurs (circadian rhythm) and opportunities for sleep based on
work schedules.\7\
---------------------------------------------------------------------------

    \7\ For a description of the FAST model, see Hursh, S. R.,
Redmond, D. P., Johnson, M. L., Thorne, D. R., Belenky, G., Balkin,
T. J., Storm, W. F., Miller, J. C., and Eddy, D. R. (2004). Fatigue
models for applied research in warfighting. Aviation, Space, and
Environmental Medicine, 75, A44-53.
---------------------------------------------------------------------------

    The model validation used work histories from 400 human factors
accidents and 1,000 non-human factors accidents on freight railroads.
The model has not specifically been validated using passenger railroad
accidents, because there were not enough such accidents in the relevant
time period to obtain statistically significant results, and had the
period of analysis been extended sufficiently to capture enough
passenger railroad accidents, much of the needed work schedule data for
the employees involved in those accidents would no longer be available.
However, FAST measures fatigue and effectiveness, based on laboratory
analysis of cognitive and sensory motor functions during sleep
deprivation, which are not job specific. Furthermore, the tasks
associated with freight and passenger train operations are actually
highly similar. In addition, there was no statistically significant
difference between the proportion of accidents in categories associated
with fatigue, between freight and passenger railroads. For all of these
reasons, FRA has determined that the model is valid for use in
evaluating fatigue levels in passenger railroad schedules for the
purposes of this proposed rule. Indeed, the FAST model has been used by
other entities, including the military and the airline industry.
    FAST was used to calculate cognitive effectiveness (the inverse of
fatigue) on a scale from 0 (worst) to 100 (best) using the 30-day work
histories of locomotive engineers prior to the accidents and at the
time of the accidents.\8\ Cognitive effectiveness is a metric that
tracks speed of performance on a simple reaction time test and is
strongly related to overall response speed, vigilance, and the
probability of lapses.
---------------------------------------------------------------------------

    \8\ Hursh, S. R., Raslear, T. G., Kaye, A. S., and Fanzone, J.
F. (2006). Validation and calibration of a fatigue assessment tool
for railroad work schedules, summary report (Report No. DOT/FRA/ORD-
06/21). Washington, DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0621.pdf; Hursh, S. R.,
Raslear, T. G., Kaye, A. S., and Fanzone, J. F. (2008). Validation
and calibration of a fatigue assessment tool for railroad work
schedules, final report (Report No. DOT/FRA/ORD-08/04). Washington,
DC: U.S. Department of Transportation. http://www.fra.dot.gov/downloads/Research/ord0804.pdf.
---------------------------------------------------------------------------

    The analysis revealed a significant high correlation between
reduced predicted crew effectiveness (as a result of increased fatigue)
and the risk of a human factor accident for freight railroads. As was
discussed above, although FAST was validated using freight railroad
accidents, the cognitive and sensory motor functions it measures are
not job specific, so the resulting determinations of effectiveness and
accident risk are equally applicable to passenger railroads. There was
no significant relationship between increased fatigue and non-human
factor accidents. In addition, the data showed that there is a reliable
relationship between the time of day of human factor accidents and the
expected, normal circadian rhythm. The circadian pattern was not
reliably present for non-human factor accidents. The risk of a human
factor accident is increased by 20 percent by working during the hours
from midnight to 3 a.m. Id.
    The study showed that there is an elevated risk of human factors
accidents at any effectiveness score below 90, and accident risk
increased as effectiveness decreased. The risk of a human factors
accident is increased by 21 percent at effectiveness scores at or below
70, which is a level of risk elevated beyond chance level, and greater
than the mean risk of non-human factor accidents. Twenty-three percent
of the freight accidents examined occurred when an employee involved
was at or below an effectiveness score of 70. The study also found that
cause codes associated with accidents that occurred at or below an
effectiveness score of 70 showed an over-representation of the type of
human factors accident that might be expected of a fatigued crew, such
as passing a signal indicating stop, or

exceeding the maximum authorized speed, which confirmed that the
detected relationship between accident risk and predicted effectiveness
is meaningful.
    Other research, comparing the effects of alcohol and sleep
deprivation on performance on a driving simulator, has also indicated
that an effectiveness score of 70 is the rough equivalent of a 0.08
blood alcohol level, or the equivalent of being awake for 21 hours
following an 8-hour sleep period the previous night.\9\ However, direct
comparisons between the performance effects of alcohol and fatigue must
be made with caution. Some aspects of a complex task, such as driving
an automobile simulator, show a high degree of congruence between the
effects of alcohol and fatigue, while the effects of alcohol and
fatigue on other aspects of the same task are highly dissimilar. For
instance, Arnedt et al. (2001) found that tracking, tracking
variability, and speed variability were all similarly affected by
alcohol and fatigue in a driving simulator. However, Arnedt et al.
found that, while subjects drove faster after consuming alcohol,
fatigue did not affect driving speed. In addition, alcohol produced a
more rapid deterioration in performance in off-road events (incidents
in which the simulated vehicle was driven off the road) than did
fatigue. Thus, while it is clear that alcohol and fatigue can both
cause deterioration in task performance, the effect of alcohol is often
more severe and extensive.\10\
---------------------------------------------------------------------------

    \9\ See Arnedt, J.T., Wilde, G.J., Munt, P.W., and MacLean, A.W.
(2001). How do prolonged wakefulness and alcohol compare in the
decrements they produce on a simulated driving task? Accident
Analysis and Prevention, 33, 3, 337-44; Dawson, D., and Reid, K.
(1997). ``Fatigue, alcohol and performance impairment.'' Nature 388,
23.
    \10\ See also Williamson, A., Feyer, A.-M., Friswell, R., and
Finlay-Brown, S. (2000). Development of Measures of Fatigue: Using
an Alcohol Comparison to Validate the Effects of Fatigue on
Performance (Road Safety Research Report CR 189). Canberra,
Australia: Australian Transport Safety Bureau.
---------------------------------------------------------------------------

    As a result of this analysis, a fatigue threshold (the fatigue
level at which there is an unacceptable accident risk due to fatigue)
of 70 was established for FAST.\11\ Accordingly, an effectiveness score
of less than 70 would exceed that threshold for the purposes of this
proposed regulation.\12\
---------------------------------------------------------------------------

    \11\ See Hursh, et al., supra note 8.
    \12\ A 21-day free trial of the FAST Model can be downloaded at
http://fatiguescience.com/products/fast.
---------------------------------------------------------------------------

2. Fatigue Audit InterDyne \TM\ Model \13\
---------------------------------------------------------------------------

    \13\ For a description of FAID, see Roach, G. D., Fletcher, A.,
and Dawson, D. (2004). A model to predict work-related fatigue based
on hours of work. Aviation, Space, and Environmental Medicine, 75,
A61-9.
---------------------------------------------------------------------------

    Another biomathematical model of performance and fatigue that has
recently been validated and calibrated is the Fatigue Audit InterDyne
\TM\ (FAID). FAID was validated and calibrated using the same accident
data from freight railroads as FAST used.\14\ For the same reasons
described above with regard to FAST, FRA has determined that FAID is
valid for use in evaluating fatigue levels in passenger railroad
schedules for the purposes of this proposed rule.
---------------------------------------------------------------------------

    \14\ For details see Tabak, B., and Raslear, T. G. (2010).
Procedures for Validation and Calibration of Human Fatigue Models:
The Fatigue Audit InterDyne (FAID) Tool (Report No. DOT/FRA/ORD-10/
14). Washington, DC: U.S. Department of Transportation. (http://www.fra.dot.gov/rpd/downloads/TR_Procedures_or_Validation_and_Calibration_final.pdf)
---------------------------------------------------------------------------

    Analysis of the FAID scores resulted in a statistically significant
correlation for both human factor and non-human factor accidents, which
meant that FAID could be validated for freight railroads, and as
explained above FRA has determined that it is equally applicable to
passenger railroads. The FAID model was validated with scores of 40 and
120, corresponding to ``not fatigued'' and ``extremely fatigued.'' FAID
scores showed a statistically reliable relationship with the risk of a
human factors accident but did not show such a relationship with other
accident risk.
    However, in analyzing the FAID data for the purpose of calibration,
none of the confidence intervals demonstrated a statistically
significant increase in cumulative risk. This was true for both human
factors and non-human factors accidents. An alternative procedure,
using FAST, which was already a validated and calibrated model, allowed
for calibration of FAID. The alternative procedure required correlating
FAST and FAID scores. The calibration of FAST is the equivalent of
fundamental measurement in physics, while the calibration of FAID by
reference to FAST is the equivalent of derived measurement, both of
which are valid measurement methods.\15\
---------------------------------------------------------------------------

    \15\ Kranz, D.H., Luce, R.D., Suppes, P., and Tversky, A.
(1971). Foundations of measurement. Volume 1. Additive and
polynomial representations. New York: Academic Press.
---------------------------------------------------------------------------

    Correlation of individual FAST and FAID scores found a high level
of variation in the individual FAST scores within a FAID bin, so
linking fatigue scores on an individual level was not feasible. An
alternative method is to calculate confidence intervals for the
population or mean score. Since biomathematical models are known to be
more accurate at predicting population behavior rather than individual
behavior, the confidence intervals of the bin means were compared. When
analyzed at the population level, the regression line for FAID scores
as a function of FAST scores, or FAST scores as a function of FAID
scores, has an r of 0.909.
    The calibration of FAID indicated that FAID scores above 80
indicate a severe level of fatigue, and that FAID scores between 70 and
80 indicate extreme fatigue. A fatigue threshold (as with FAST, the
fatigue level at which there is an unacceptable accident risk due to
fatigue) of 60 was established for FAID, and an effectiveness score
greater than 60 would exceed that threshold.\16\
---------------------------------------------------------------------------

    \16\ A free trial of the FAID Model can be downloaded at http://www.faidsafe.com/products-main.htm#faid330.
---------------------------------------------------------------------------

    FRA believes that the prediction of the effectiveness of an
employee's performance may be used to improve work schedules, to alter
to the extent possible the timing of safety-critical tasks to coincide
with periods of optimal performance, and to apply countermeasures to
reduce the fatigue risk, and the corresponding risk of accidents or
other errors associated with that fatigue. It is for this reason that
FRA has concluded that it is appropriate to require analysis of
employee work schedules using a validated and calibrated
biomathematical model of performance and fatigue, as an essential
component of these proposed hours of service regulations.
    As will be discussed in detail below, this proposed rule would
require the railroads to mitigate the fatigue resulting from following
a certain work schedule, and submit the schedules and fatigue
mitigations to FRA for approval. These requirements will be triggered
when analysis reveals that an employee working a given schedule will
experience 20 percent or more of the employee's working time at an
effectiveness score at or exceeding the fatigue threshold under the
model used for analysis; that is to say, at an effectiveness score of
70 or less determined by FAST, or at an effectiveness score of 60 or
greater as determined by FAID. The applicable effectiveness score could
be different if a railroad were using another model that had been
properly validated and calibrated. FRA encourages the development,
validation, and calibration of alternative models, and their submission
to FRA for approval under proposed Sec.  228.407(c), by any

railroad desiring to use an alternative model for the analyses required
by this proposed rule.\17\
---------------------------------------------------------------------------

    \17\ See Raslear, supra note 6 for information on procedures for
validating and calibrating a model.
---------------------------------------------------------------------------

B. Diary Study of Train Employees on Commuter and Intercity Passenger
Railroads

    To further support this proposed rule, FRA conducted primary
research specifically directed to train employees of commuter and
intercity passenger railroads (OMB Control Number 2130-0588). The
results of the study provided valuable evidence of the actual levels of
fatigue experienced by train employees on commuter and intercity
passenger railroads, because it allowed analysis of the actual periods
of time that an employee reports having worked, slept, or spent in
other activities during the period analyzed, which may be different
from the assigned schedule and presumed periods available for sleep.
    FRA had previously conducted similar surveys for signal employees
(OMB Control Number 2130-0558), maintenance of way employees (OMB
Control Number 2130-0561), dispatching service employees (OMB Control
Number 2130-0570), and train employees generally (OMB Control Number
2130-0577). The purpose of these studies was to characterize, using a
consistent statistical survey methodology, the work schedules and sleep
patterns of each unique group of railroad workers. Because each of
these studies used a random sample of each worker population, they
provide defensible and definitive data on work/rest cycle parameters
and fatigue for the respective group. The small number of train
employees on commuter and intercity passenger railroads represented in
the previous study of train employees generally did not allow for
meaningful conclusions with regard to this subpopulation of train
employees. As a result, the present study, specifically focused on this
population, was necessary. The present study of train employees on
commuter and intercity passenger railroads used the same methodology as
the previous studies.
    The primary objectives of this study were to design and conduct a
survey to collect work schedule and sleep data from train and engine
service (T&E) employees, and to analyze the data to characterize the
work/sleep patterns and to identify work schedule-related fatigue
issues. The goal was to characterize train employees on commuter and
intercity passenger railroads as a group, not to characterize such
employees on a specific railroad.
    The research described in this report had three phases:
preparation; field data collection; and data analysis. Since no
existing source would provide answers to the study's research
questions, a survey of train employees was the only means to obtain the
necessary data. The preparation phase included securing approval from
the Office of Management and Budget for the proposed data collection.
Representatives from the Brotherhood of Locomotive Engineers and
Trainmen (BLET) and the United Transportation Union (UTU) worked
closely with the researchers throughout the study.
    The study used two survey instruments--a background survey and a
daily log. Survey participants used the background survey to provide
demographic information, descriptive data for their type of work, type
of position, and work schedule, and a self-assessment of overall
health. The daily log provided the means for survey participants to
record their daily activities in terms of sleep, personal time, time
spent commuting to and from work, work time, limbo time, and periods of
interim release. Study participants also provided self-assessments of
the quality of their sleep and their level of alertness at the start
and end of each work period. This study used a 14-day data-collection
period to accommodate those train employees who did not work a regular
schedule.
    Researchers drew a random sample of 1275 train employees on
commuter and intercity passenger railroads. The size of the sample from
each of the two unions was proportional to that organization's
representation in the total number of eligible participants. Retirees,
full-time union officials, and anyone currently holding a railroad
management position were not eligible for the study. Determination of
the sample size assumed a 95-percent confidence interval on the
estimates for mean sleep time, an error tolerance of 15 percent, and a
33-percent response rate.
    Mailing of the survey materials occurred on December 31, 2009. Ten
days later, every potential survey participant received a postcard,
signed by his or her union president, to encourage the employee to
participate in the survey. Three weeks after distribution of the
materials, a second postcard thanked those who had decided to
participate and encouraged those who had not yet done so to
participate.
    The overall response rate for the survey was 21 percent. Of the 269
complete responses, 13 could not be part of the analysis because either
there were problems with the respondents' log books, or the respondents
were not in crafts covered by the survey. (It was not possible to
identify these individuals from the information contained in union
membership databases.) The nonresponse-bias study based on age found no
difference between survey respondents and nonrespondents.
    The results of the study support the approach that FRA has taken in
this rule. For instance, the results are consistent with the separate
analysis during the development of this proposed rule of schedules
provided by commuter and intercity passenger railroads, indicating that
a fairly small percentage of employee work time (about 1.8 percent)
exceeds the fatigue threshold. The proposed rule would focus additional
attention and effort specifically on those schedules presenting this
fatigue risk by requiring the mitigation of that risk, while schedules
not at risk for fatigue would not be subject to these additional
requirements.
    In addition, when compared to the results of the previous study
that primarily considered train employees on freight railroads, the
results support a significantly different approach. Train employees on
freight railroads were found to experience some level of fatigue
(equivalent to an effectiveness score <90 using the FAST model) during
73 percent of their work time, while train employees on commuter and
intercity passenger railroads experienced this level of fatigue during
14 percent of their work time. The substantive limitations imposed on
train employees on freight railroads in the RSIA would largely be
unnecessary for the commuter and intercity passenger railroad industry,
as well as ineffective to target the specific areas where there is a
fatigue risk.

IV. Railroad Safety Advisory Committee (RSAC) Process

A. Overview of the RSAC

    In March 1996, FRA established RSAC,\18\ which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major stakeholder groups,
including railroads, labor organizations, suppliers, and manufacturers,
and other interested parties. A list of member groups follows:
---------------------------------------------------------------------------

    \18\ For more information about RSAC activities, see http://rsac.fra.dot.gov/. Meetings of the full RSAC are also announced by
publication in the Federal Register.

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

     American Association of Private Railroad Car Owners
(AARPCO);
     American Association of State Highway and Transportation
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association
(ASLRRA);
     American Train Dispatchers' Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employes Division
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     FRA;
     Federal Transit Administration (FTA); *
     Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace
Workers;
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement; *
     League of Railway Industry Women; *
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB); *
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte; *
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada; *
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC
(TCIU/BRC);
     Transportation Security Administration (TSA); * and
     United Transportation Union (UTU).

    * Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. If a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff plays an active role at the working group level in discussing
the issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward RSAC recommendations.
However, FRA is in no way bound to follow the recommendation, and the
agency exercises its independent judgment on whether the recommended
rule achieves the agency's regulatory goal, is soundly supported, and
is in accordance with policy and legal requirements. Often, FRA varies
in some respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on a recommendation for
action, FRA moves ahead to resolve the issue through traditional
rulemaking proceedings.

B. RSAC Proceedings in This Rulemaking

    FRA proposed Task No. 08-06 to the RSAC on April 2, 2009. The RSAC
accepted the task, and formed the Passenger Hours of Service Working
Group (Working Group) for the purpose of developing implementing
regulations for the hours of service of train employees of commuter and
intercity passenger railroads under the RSIA.
    The Working Group is comprised of members from the following
organizations:
     AASHTO;
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway Company (CN), Canadian Pacific Railway,
Limited (CP), CSX Transportation, Inc. (CSXT), Iowa Interstate
Railroad, Ltd. (IAIS), Kansas City Southern (KCS) railroads, Metra
Electric District, Norfolk Southern Corporation (NS) railroads, and
Union Pacific Railroad Company (UP);
     BLET;
     BRS;
     FRA;
     Federal Transit Administration (FTA);
     IBEW;
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     National Association of Railroad Passengers (NARP);
     National Railroad Construction and Maintenance
Association;
     National Transportation Safety Board (NTSB);
     Southeastern Pennsylvania Transportation Authority
(SEPTA);
     Tourist Railway Association; and
     UTU.
    The Working Group completed its work after six meetings and several
conference calls. The first meeting of the Working Group took place on
June 24, 2009, in Washington, DC. At that meeting the group heard
several presentations on fatigue science, including a report on the
diary study that was to be conducted as described above. The group
discussed the general approach for the rulemaking, and it was agreed
that analysis of the railroads' work schedules would support the
rulemaking. Subsequent meetings were held on February 3, 2010; March 4,
2010; April 6, 2010; May 20, 2010; and June 29, 2010. In addition, a
Task Force was formed that met on January 14-15, 2010, March 30-31,
2010, and April 28-29, 2010.
    At the conclusion of the June 29, 2010 meeting, the Working Group
voted to approve a draft of the proposed rule text, with the exception
of two sections, to which the group had suggested numerous edits. It
was agreed that FRA would address the remaining issues in those
sections and circulate a revised draft, on which the group would vote
electronically. After the revised draft was produced, the Task Force
had several conference calls to discuss the revised provisions, and FRA
also participated in several calls with task force members. Ultimately,
on September 22, 2010, the Working Group voted unanimously to agree to
the rule text presented in this proposed rule. The group's
recommendation was presented to the full RSAC on

September 23, 2010. The full RSAC agreed to vote electronically on the
rule text recommended by the Working Group, and ultimately accepted its
recommendation. Although only a majority was required, the vote was
unanimous.\19\
---------------------------------------------------------------------------

    \19\ The rule text voted on by the full RSAC and recommended to
FRA is available on the RSAC Web site.
---------------------------------------------------------------------------

    Following the vote of the Working Group and the full RSAC, FRA
recognized the need to make two changes to the recordkeeping and
reporting requirements in 49 CFR 228.11 and 228.19, to accommodate a
new substantive limitation contained in the proposed rule as approved
by the RSAC. While the RSAC voted in favor of the substantive
requirement in question, and all other elements of the proposed rule,
the corresponding amendments to the recordkeeping and reporting
provisions were not presented to them.
    With the exception of the proposed revisions to 49 CFR 228.11 and
228.19, this proposed regulation is consistent with the recommendation
of the Working Group and the full RSAC.
    At the February 3, 2010, meeting, FRA presented a strawman draft of
the rule text, identifying the basic concepts and direction of the
rulemaking. Based on discussions at that meeting, a more complete draft
was presented at the March 4, 2010 meeting, and the text was refined
and supplemented at subsequent meetings. In addition, during the course
of the Working Group and Task Force meetings, a number of significant
issues were discussed that resulted in changes in the proposed rule
text or common understanding of the intent of specific provisions that
should be explained. Some such issues will be explained in this
section, while other subjects of discussion by the Working Group and
the Task Force will be discussed in the Section-by-Section Analysis at
Section V of the preamble.
    In addition, as discussed below in the Regulatory Impact and
Notices section of the preamble, Section VI, FRA has considered the
costs and benefits of this proposed rule. Implementation costs would be
associated with analyzing work schedules, training, and rest
facilities. However, relative to the ``no regulatory action''
alternative in which passenger railroad train employees would become
subject to the new HSL in effect for freight train employees, the
proposed rule would result in a cost savings of $57.6 million
(discounted at 7 percent) and $65 million (discounted at 3 percent)
over a 20-year period. The quantified accident reduction benefits
achieved under both the ``no regulatory action'' baseline and the
proposed rule total $1.4 million (undiscounted), $0.7 million (PV, 7
percent), and $1.0 million (PV, 3 percent). FRA does not expect that
the overall number of casualties and property damages prevented will
differ under either scenario. Implementation of the proposed rule would
yield these benefits at lower cost. While the proposed rule has lower
monetized benefits than costs, when compared to the current HSL, FRA
believes that there are unquantified benefits that could close the gap.

C. Significant Task Force Contributions

    As was noted above, the Working Group created the Task Force,
comprised of representatives from BLET, UTU, APTA, AAR, and FRA. The
Task Force met between Working Group meetings to provide additional
input and advice to the Working Group on the approach to the proposed
rule, specific concerns as to the rule text, and implementation of the
proposed regulatory requirements. Although the Task Force was extremely
helpful throughout the development of the proposed rule in offering
suggestions as to the rule text, its primary contributions were in the
areas of schedule analysis and the creation of a fatigue mitigation
tool box.
1. Schedule Analysis
    The diary study discussed in Section III B of the preamble provided
valuable evidence of the actual levels of fatigue experienced by train
employees on commuter and intercity passenger railroads. However, since
many of these employees work scheduled assignments, it was also
valuable to evaluate the schedules themselves, to get a sense of the
parameters of those assignments that would result in fatigue exceeding
the threshold, which informed some of the provisions of this proposed
rule. The Task Force assisted the Working Group by evaluating the
schedules and presenting their results to the Working Group.
    APTA hired a consultant to analyze the schedules provided by the
railroads that were worked by their train employees. The railroads
provided all of their schedules for the month of July 2009. The
schedules were analyzed using the FAST model, including conservative
assumptions about the sleep that would be obtained by an employee
working that schedule. For example, the analyses assumed that employees
did not sleep during periods of interim release.
    The analyses that the Task Force presented to the Working Group
demonstrated that most schedules did not result in an employee's
exceeding the fatigue threshold. This was true even for schedules in
which the employee reported for duty at 4 a.m. and was relieved from
duty at 8 p.m., for a 16-hour duty tour that included a total of 12
hours on duty and a 4-hour interim release. Most of the problematic
schedules identified through the analysis presented by the Task Force
involved duty tours in which some time was spent working during late
night hours. These analyses formed the parameters for FRA's definitions
of ``Type 1 assignment'' and ``Type 2 assignment'' for which different
requirements would apply in this proposed rule.
2. Fatigue Mitigation Tool Box
    Because a major aspect of this proposed rule would require
mitigation of the fatigue risks identified in those schedules that
resulted in an employee's exceeding the fatigue threshold, and
experiencing a level of fatigue at which safety may be compromised, the
Task Force assisted the Working Group by developing a fatigue
mitigation tool box, a document that would illustrate the variety of
ways in which a railroad might seek to address the fatigue risks in its
schedules. (A copy of this document has been placed in the docket for
this rulemaking.) The tool box itself is not intended to become a part
of the regulatory text. Instead, it is intended to provide the variety
of methods from which a railroad may propose, in its plans submitted to
FRA for approval, to mitigate identified fatigue risks in its work
schedules, to bring them into compliance with the regulation. It is
expected that not every tool will be appropriate for each railroad, or
for individual locations or schedules on a given railroad, and that the
railroads, in consultation with their labor organizations, will choose
the mitigation tools most appropriate to each circumstance, subject to
FRA review and approval. In addition, the tool box is expected to be a
living document, as the available fatigue mitigation tools will change
over time as fatigue science continues to develop, or as railroad
operations change, either generally or as related to specific
properties or schedules. The tool box as a whole will not be approved
by FRA, nor will it be maintained by FRA as it evolves. FRA will
evaluate the appropriateness of specific fatigue mitigation tools as
they are submitted to FRA as part of a railroad's plan to mitigate
fatigue risks associated with particular schedules.

    This section will describe a representative sample of the variety
of the tools included in the tool box developed by the Task Force,
which may be applied to mitigate fatigue risk. This is not intended to
be an all-inclusive list of the possible fatigue mitigation tools. A
railroad is free to use any fatigue mitigation tool that it believes is
effective in reducing the fatigue risk found in its schedules, subject
to FRA's review and approval.
    Perhaps the easiest mitigation tool to understand that was
identified by the Task Force is the adoption and implementation of a
napping policy, and the provision of facilities for employees to take a
nap during interim releases or other periods between assignments that
may be available for rest during a duty tour. Addition of a period of
sleep to the employee's schedule would have a clear impact on the
employee's current level of fatigue, and the level of fatigue that the
employee would be expected to experience throughout the remainder of
the duty tour after a nap, which might reduce the risk of fatigue
sufficiently to bring the schedule and the employee's effectiveness
score within the fatigue threshold.
    To use this tool to mitigate fatigue, a railroad would be required
to identify, in consultation with its labor organizations or employees,
the facilities that would be available for the purpose of rest during
the duty tour, that are appropriate to the schedule and location at
issue. This would not always require a bunk or a quiet room, though
this might be available at some locations and in certain situations.
However, the period available for rest would have to be at least 90
minutes for this mitigation tool to be applied, as this amount of time
would provide sufficient opportunity for an employee to get to his or
her napping location and fall asleep, having enough time for a nap of
sufficient duration to be beneficial to the employee's level of
fatigue, and then also allowing the employee time to be fully awake and
ready to resume the duty tour.
    Another mitigation tool, applicable to railroads and locations
using employees from an extra board, would be the use of multiple extra
boards that are temporally separated, so that employees would be
scheduled to work morning assignments or evening assignments, rather
than being subject to calls for assignments at all times of day. For
example, employees assigned to a morning extra board might be subject
to being called only for assignments requiring them to report for duty
between 4 a.m. and 10 a.m., while employees assigned to an evening
extra board might be subject to being called only for assignments
requiring them to report for duty between 4 p.m. and 10 p.m. Employees
on either extra board would know that they would not be called for an
assignment requiring them to report for duty outside the times
established for the employee's particular assigned extra board. This
would lead to greater predictability of schedule and ability to plan
rest, while also avoiding (1) circadian shifts between duty tours
resulting from changes in the time of day that the employee is awake
and (2) difficulties in adjusting to changing periods available for
sleep.
    Call windows (i.e., limited periods of time during which an
employee is subject to receiving calls from the railroad to report for
duty) are another mitigation tool in the tool box, which may be
combined with a temporally separated extra board, but could also be
used even if the extra board were not so divided. For example, a
railroad might decide to establish a call window that would reduce or
eliminate calls to the employee during the time from 11 p.m. and 5 a.m.
Open assignments that would need to be filled from an extra board of
employees who would otherwise be called for the assignment during that
time would instead be filled before 11 p.m., which would give the
employees greater predictability and ability to plan rest, as well as
allowing them more rest during the late night hours.
    Another possible tool would be to allow employees a period of
uninterrupted rest, similar to the requirement that applies to train
employees on freight railroads, which is found at 49 U.S.C. 21103(e).
The uninterrupted rest could be applied to an employee's statutory off-
duty period before or after the employee is to work a schedule
exceeding the fatigue threshold. It could also be applied to periods of
interim release within the duty tour.
    Education could also be part of the tools that a railroad will use
to mitigate fatigue in certain circumstances, and is also a key
component of the other mitigation tools. The mitigation tools will not
be beneficial if the employees working the schedules to which they are
applied do not understand the available tools, and how to properly use
them to reduce their fatigue and increase their effectiveness. If
employees do not take advantage of the mitigation tools, and use them
properly to increase their rest, even those mitigation tools most
likely to have the greatest and most tangible impact on reducing
fatigue will not have the desired effect. FRA has also recognized the
importance of education as a component of fatigue management by
specifically requiring in this proposed rule that employees and
supervisors receive training on fatigue and strategies for reducing it.
    Finally, one additional mitigation tool was discussed by the Task
Force that was extremely well-received and supported by the Working
Group, including FRA representatives. That suggestion was to develop
software that would link the railroad's crew management resources to
both the employee's electronic hours of service records (created and
maintained in compliance with subpart D of 49 CFR part 228), and a
valid biomathematical model of performance and fatigue.
    The idea is that the fatigue model would be able to look back at
previous duty tours and rest periods to determine which schedules might
have sufficiently rested employees available to report for the
assignment, not only under the limitations on time on duty and required
minimum time off duty that would be established by this proposed rule,
but also in terms of the fatigue threshold. The model would have the
benefit of the data from the previous duty tours to take into account
in determining whether these schedules would exceed the fatigue
threshold during the duty tour, as well as at the report-for-duty time.
If the analysis revealed that the employees on these schedules would be
too fatigued to report for the assignment, or would exceed the fatigue
threshold during the duty tour, crew management would be alerted that
these employees could be at risk if they work this particular
assignment. Employees would have to affirm their fitness for duty if
asked to work such assignments and be empowered to reject the
assignments, because the model is being used to predict group (average)
fatigue from work schedules that could be worked by several
individuals. Any individual could be more or less fatigued than the
average or group. Employees have a responsibility to indicate if they
feel fit to work or not, regardless of the effectiveness score that a
model would predict. The employer's responsibility is to arrange
schedules that minimize fatigue.
    While all of the parties to the Working Group agreed that this idea
showed great promise as an effective fatigue mitigation tool for the
future, it is not something that the railroads will be able to apply
immediately, for technological reasons. Most railroads that would be
subject to this proposed rule do not yet create and maintain their
hours of service records electronically in

compliance with subpart D, although there is interest among those
railroads in developing hours of service electronic recordkeeping
programs. In addition, software would need to be developed that would
allow the fatigue model to retrieve data from the electronic
recordkeeping system, without any possibility of altering or otherwise
affecting the integrity of the records maintained in the system.
Likewise, software would be needed to connect the fatigue model to the
crew management system, so that it could appropriately alert that
system and prevent an employee being placed on an assignment for which
he or she would be too fatigued. If the necessary systems and software
can be developed, compliance with the fatigue threshold would become
much easier, and there would be much less excessive fatigue to be
mitigated.

D. Areas of Working Group and Task Force Concern

    During the course of the Task Force and Working Group meetings, a
few issues resulted in significant discussion. Some issues were related
to specific provisions in the rule text, while other concerns were
about the broader implications of the rule, as well as its effects on
aspects of railroad operations or existing collective bargaining
agreements.
1. Definitions of ``Type 1 Assignment'' and ``Type 2 Assignment''
    Some members of the Working Group suggested that there should be a
way to determine a template for schedules that would be deemed not to
exceed the fatigue threshold. As was discussed above, the Task Force
presented schedule analyses showing that a schedule in which an
employee began work at 4 a.m. and was relieved at 8 p.m., resulting in
a duty tour with a total time on duty of 12 hours, with a 4-hour period
of interim release, did not exceed the fatigue threshold.
    Based on this analysis, FRA initially defined any assignment
beginning no earlier than 4 a.m. and ending no later than 8 p.m.,
assuming at least a 4-hour period of interim release, as a Type 1
assignment, which would be deemed not to exceed the fatigue threshold.
Assignments that included any period of time outside the defined time
parameters of a Type 1 assignment would be considered a Type 2
assignment, which would be subject to more stringent requirements,
including analysis of the schedule using a scientifically valid
biomathematical model, and a more restrictive limit on the number of
consecutive days that employees working such assignments could initiate
an on-duty period.
    However, some Task Force members pointed out that there could be
assignments that include time outside the time parameters of a Type 1
assignment that would not exceed the fatigue threshold. In some cases
these schedules would only have a small amount of their overall time
outside of the Type 1 parameters. For example, an assignment might
begin at 4:30 a.m. and end at 8:30 p.m. In addition, some assignments
might not exceed the threshold because of the short duration of the
duty tour involved, such as, perhaps, an assignment from 5 p.m. until
9:30 p.m.
    Based on these considerations, FRA amended the definition of a Type
2 assignment to indicate that if an assignment does not include any
time between midnight and 4 a.m., then the particular time of day or
night that an assignment is to be performed is not the only determinant
of whether an assignment is considered a Type 2 assignment. In
particular, a Type 2 assignment that is analyzed using a scientifically
valid biomathematical model and is determined not to exceed the fatigue
threshold, and that includes no period of time between midnight and 4
a.m., would be considered a Type 1 assignment.
    FRA also added language to the definitions of both ``Type 1
assignment'' and ``Type 2 assignment'' to require compliance with the
substantive limitations contained in proposed Sec.  228.405. FRA
expects that railroads would not be operating schedules that violate
these limitations; most schedules have long been in effect for the
railroads subject to this proposed rule, and this was an implicit
assumption of the Working Group. For example, a schedule that requires
an employee to report for duty at 4 a.m. and to be released from duty
at 8 p.m. would have to include a period of interim release of at least
4 hours that is not time on duty, as defined by proposed Sec.
228.405(b). However, this language is added to the definitions to make
clear that the schedule analysis and fatigue mitigation requirements of
this proposed rule supplement, but do not replace, the specific
limitations, and any schedule that violated other provisions of this
proposed rule (for example, exceeded 12 hours total time on duty, or
did not allow for at least 8 hours off duty, or 10 hours off duty after
12 consecutive hours) could not be deemed ``approved'' by FRA and
subject to the less stringent requirements applicable to Type 1
assignments.
2. Limitations on Number of Consecutive Days
    In the Working Group, both the railroads and labor contended that
FAST and/or FAID analysis would suggest that an employee could work
beyond the limitations in this proposed rule without adversely
affecting safety. One requirement about which this was specifically
argued was the proposed limitation on the number of consecutive days
that an employee would be permitted to work under this regulation,
which would differ depending on the time of day that the employee
works. See proposed Sec.  228.405(a)(3) and (a)(4). In the Working
Group, the railroads and labor unions presented fatigue analyses for
theoretical schedules that would have an employee initiating on-duty
periods for numbers of days that exceeded those permitted by the
proposed rule. The railroads and labor also indicated that the current
agreements or practices on their properties allow for such schedules.
    Research shows that work on successive days without a full day off
exponentially increases the accident risk as the number of days worked
increases. For instance, after working four consecutive day shifts,
there is a 17-percent increase in risk, and after working four
consecutive night shifts, there is a 36-percent increase in risk.\20\
FRA research on train crew work schedules and sleep patterns \21\ has
shown that train crews average a 10.25-hour day (work period, limbo
time, and commute time) and get 6.88 hours of primary sleep per day. A
follow-up study on passenger train crews found that workers on split
shift assignments average a 13.75-hour day (work period, interim
release, and commute time) and get 6.18 hours of primary sleep.
Laboratory studies of restricted sleep \22\ show a 5-percent decrease
in performance after 7 days with 7 hours of sleep per day and a 15-
percent decrease after 7 days with 5 hours of sleep per day. These
studies are consistent with the previously noted increase in accident
risk with the number of days worked.
---------------------------------------------------------------------------

    \20\ Folkard, S. and Akerstedt, T., Trends in the Risk of
Accidents and Injuries and Their Implications for Models of Fatigue
and Performance, Aviat. Space Environ. Med. (2004).
    \21\ Gertler, J., and DiFiore, A. (2009). Work schedules and
sleep patterns of railroad train and engine service workers (Report
No. DOT/FRA/ORD-09/22). Washington, DC: U.S. Department of
Transportation
    \22\ Balkin, T., Thorne, D., Sing, H. (2000). Effects of sleep
schedules on commercial driver performance (Report No. DOT-MC-00-
133). Washington, DC: U.S. Department of Transportation.

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

    Therefore, FRA reasoned that, even if an employee were working a
schedule for which the employee's effectiveness score did not exceed
the fatigue threshold, even when the schedule was worked for more
consecutive days than the regulation would permit, at some point the
employee would have to use some of the time between duty tours (time
that a model would otherwise view as available for rest) to attend to
other personal activities. This time spent in activities other than
rest would decrease the time actually available to the employee for
rest, and, therefore, the employee's actual effectiveness score. This
circumstance would be particularly problematic for schedules featuring
long duty tours, such as the maximum 12 hours on duty, including an
interim release, for a total time of 16 hours in the duty tour,
followed by the minimum of 8 consecutive hours off duty before
reporting for the next duty tour. From this perspective, FRA believes
that, although the available research does not identify the exact
number of consecutive days allowed under this proposed rule as the
maximum that can be safely worked, the limitations that FRA has
established are reasonable. FRA seeks comment on this.
    FRA is aware that the requirements of the proposed rule may have an
impact on the collective bargaining agreements affecting the railroads
and employees covered by proposed subpart F. For example, there may be
some agreements that would allow employees to work a greater number of
consecutive days than would be allowed by this proposal. FRA is also
mindful that the law provides an option that enables the regulated
community to seek waivers to implement pilot projects in accordance
with the requirements of 49 U.S.C. 21108(a) and encourages members of
the regulated community to consider this option. Pursuant to 49 CFR
part 211, subpart C, the Railroad Safety Board will consider whether or
not granting such waivers would be in the public interest and
consistent with railroad safety. Where warranted, and upon the
necessary showing, FRA may grant waivers of the requirements of this
proposed rule, including requirements concerning the maximum number of
consecutive days an employee may work, to allow for the establishment
of pilot projects to demonstrate the possible benefits of implementing
alternatives to the strict application of the requirements contained in
this proposed rule.
3. Precision of Fatigue Models and Threshold
    There was considerable discussion in the Working Group of the
precision embodied in the FAST model or the FAID model, and the
appropriateness of requiring compliance with a specific fatigue
threshold. The railroads argued that models such as the FAST model and
the FAID model are not scientifically precise enough to warrant the
adoption of a specific threshold, and that different types of
operations could safely function at different levels of fatigue. For
example, the railroads contended that yard switching activities could
safely operate at a different level of fatigue than passenger
operations or through-freight activities.
    The railroads conceded, however, that the regulatory structure
contained in this proposal would not be problematic for passenger
operations. The railroads' concern was that, in the future, someone
might argue for adoption of the same regulatory structure for freight
operations and, were that to occur, schedules might be prohibited from
use that should, in fact, be acceptable from a fatigue perspective.
    In FRA's view, a specific threshold is desirable because it
provides regulatory certainty as to what railroads must do to be
considered in compliance with the regulations. FRA has based its
regulation on the best available fatigue science, including the FAST
model and the FAID model, which are the only currently validated
models, and the thresholds established by those models. FRA has left
open the possibility that other models may be validated, and other
thresholds established in the future, which could be used for the
purpose of compliance with this regulation.\23\
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    \23\ See Raslear, supra note 6.
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    Inasmuch as FRA has determined that use of these models and their
established thresholds adequately protect safety, that the regulations
proposed in this rule would not present significant implementation
problems for passenger service, and that a specific threshold would
provide the desired regulatory certainty, FRA believes that it is
appropriate to include in the regulations a requirement for a specific
threshold, based on the understanding that the regulatory requirements
will be satisfied based on a ``70/20 threshold'' using the FAST model
(meaning that the fatigue threshold is exceeded if an employee's
effectiveness score is less than 70 for 20 percent or more of the
employee's time on duty), or a ``60/20 threshold'' using FAID (meaning
that the fatigue threshold is exceeded if an employee's effectiveness
score is more than 60 for 20 percent or more of the employee's time on
duty).\24\
---------------------------------------------------------------------------

    \24\ See Hursh, et al., supra note 8, and Tabak and Raslear,
supra note 13.
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    In proposing an hours of service regulation with a specific
threshold for train employees in passenger service, FRA is not drawing
any conclusion about the suitability of such a regulatory scheme for
freight operations. There may be substantial differences between
freight railroad operating and crew schedules and passenger operating
and crew schedules. Passenger railroads have analyzed the results of
applying the proposed regulations to their work schedules and concluded
that this proposal is feasible. Freight railroads have not undertaken
such analysis, nor would they be required to under the proposed
regulations, except to the extent that employees of freight railroads
may work in passenger service.
4. Freight Railroad Employees Acting as Pilots for Commuter or
Intercity Passenger Trains
    The Working Group also discussed the application of the
requirements of proposed subpart F to train employees of freight
railroads who occasionally provide pilot service to a commuter railroad
or intercity passenger railroad. FRA's locomotive engineer
certification regulations require a pilot to assist an engineer who may
not be sufficiently familiar with the territory over which he or she is
called to operate. See 49 CFR 240.231(b). The railroads indicated that
a request for a pilot may come without advance notice, so that it would
be difficult to comply with the substantive hours of service
limitations and recordkeeping requirements of this regulation, and even
more difficult to adhere to the schedule analysis requirements, for an
employee who did not otherwise regularly engage in commuter or
intercity rail passenger transportation.
    The Working Group also cited the safety benefits of having a pilot
available on a route when necessary, and the potential risk if commuter
or intercity passenger railroads were to become less likely to request
a pilot, or freight railroads less likely to be able to make a pilot
available when requested, because of concerns about the proposed
requirements of this regulation. FRA acknowledges these benefits.
Therefore, although a pilot is performing covered service under the HSL
on the assignment on which the pilot service is provided, FRA will not
consider a train employee employed by a freight railroad

who serves as a pilot on a train operated by a commuter railroad or
intercity passenger railroad to be a train employee who is engaged in
commuter or intercity rail passenger transportation, provided that the
employee does not serve as a pilot more than four times in a calendar
month, or engage in any other commuter or intercity rail passenger
transportation.

V. Section-by-Section Analysis

Subpart A--General

228.1 Scope
    FRA proposes to revise this section by adding paragraph (c), which
indicates that the regulation prescribes substantive hours of service
requirements for train employees engaged in commuter or intercity rail
passenger transportation.
228.5 Definitions
    FRA proposes to amend this section to add definitions of
``Associate Administrator for Railroad Safety/Chief Safety Officer''
and ``FRA'' as used in this part. Associate Administrator for Railroad
Safety/Chief Safety Officer became the title of FRA's Associate
Administrator for Safety because Section 101 of the RSIA refers to
FRA's ``Associate Administrator for Railroad Safety'' and emphasizes
that the Associate Administrator is the Chief Safety Officer.
    FRA also proposes to add definitions of the terms ``Type 1
assignment'' and ``Type 2 assignment.'' As was previously discussed in
Section IV above, these definitions were the subject of significant
discussion in the Task Force and the Working Group, particularly
because of the implications of a particular schedule's status as a Type
1 assignment or a Type 2 assignment for determining the application of
the limitations on consecutive days in proposed Sec.  228.405 and the
requirements for analysis of schedules and submission of schedules to
FRA for approval in proposed Sec.  228.407. FRA believes the proposed
definitions accommodate the concerns expressed in the Working Group
regarding schedules outside the time parameters for a Type 1 assignment
that may still present very little risk of an effectiveness score that
would exceed the fatigue threshold and compromise safety. At the same
time, however, the proposed definitions recognize the increased risk of
fatigue associated with working late night and very early morning
hours, which justifies the application of the more stringent
requirements.
    FRA has added these terms to this general definitions section for
Part 228, rather than the definitions specific to subpart F, because
these terms are also used in the recordkeeping provisions of subpart B,
as amended by this proposed rule.

Subpart B--Records and Reporting

228.11 Hours of Duty Records
    FRA proposes to revise paragraph (c) of this section to indicate
that paragraphs (13) through (15) of paragraph (b) do not apply to the
records of train employees providing commuter or intercity passenger
rail transportation. These paragraphs relate to substantive provisions
of the HSL for train employees, added by the RSIA. As was described
above, these requirements were not extended to train employees on
commuter and intercity passenger railroads. The requirements referred
to in paragraphs (13) through (15) of paragraph (b) are not required by
this proposed rule and therefore would continue not to apply to train
employees providing commuter and intercity rail passenger
transportation.
    Paragraph (c) of this section, as published in FRA's hours of
service recordkeeping regulation on May 27, 2009 (74 FR 25330, 25348-
49), provided that paragraphs (13) through (16) of paragraph (b) did
not apply to the records of train employees providing commuter or
intercity passenger rail transportation. However, paragraph (16)
requires that a record include the number of consecutive days on which
a period of time on duty was initiated. Because this proposed rule
would limit the number of consecutive days on which train employees
providing commuter or intercity passenger rail transportation may
initiate an on-duty period, it is appropriate to require that an
employee's hours of service record include the number of consecutive
days on which that employee has initiated an on-duty period, so that it
is possible for both the railroad and FRA to determine compliance with
the limitation established by this proposed rule. Thus, this paragraph
is revised to include the requirement in paragraph (16) of paragraph
(b), while continuing to exclude the requirements of paragraphs (13)
through (15) of paragraph (b), which relate to provisions that do not
apply to train employees providing commuter or intercity passenger rail
transportation.
    FRA recognizes that most railroads and employees subject to this
subpart are currently keeping their hours of service records manually,
and it may be burdensome for an employee to be required to keep track
of his or her consecutive days worked and mark it on the hours of
service record each day. However, the railroad will have to have some
way to track this information. Therefore, if a railroad wishes to keep
this information centrally for all of its employees, this will be
considered sufficient to satisfy the requirement that the hours of
service record include the number of consecutive days that an employee
has worked, provided this information is made available to FRA upon
request.
228.19 Monthly Reports of Excess Service
    FRA proposes to revise paragraph (c) of this section to require
railroads to report to FRA instances of excess service related to new
substantive limitations contained in Sec.  228.405(a)(3) and (a)(4) of
this proposed rule. Those paragraphs propose to limit the number of
consecutive days that train employees engaged in commuter or intercity
passenger railroad transportation may initiate an on-duty period, and
to require a minimum amount of time off duty after an employee has
reached the maximum number of consecutive days, before the employee may
return to duty, with different requirements depending on the time of
day of the employee's assignment.

Subpart F--Substantive Hours of Service Requirements for Train
Employees Engaged in Commuter or Intercity Rail Passenger
Transportation

228.401 Applicability
    This proposed section would establish the specific applicability of
proposed new subpart F, which differs from that of existing subparts in
this part. The requirements of subpart F apply to railroads and their
officers and agents, only with respect to their train employees engaged
in commuter or intercity rail passenger transportation. For purposes of
subpart F, FRA interprets commuter or intercity passenger
transportation to include rail passenger transportation by tourist,
scenic, excursion, and historic railroads (referred to collectively for
the purposes of this discussion as tourist railroads). FRA believes
that Congress intended that these regulations apply to all railroads
providing rail passenger transportation, and that Congress did not
intend to apply the new statutory provision at 49 U.S.C. 21103 to
tourist railroads because tourist railroad operations are more similar
to the other passenger service than they are to freight service. The
provisions of the HSL that apply to train employees on freight
railroads are not as appropriate, therefore, for train employees on
tourist