Fatigue Risk Management Programs for Certain Passenger and Freight Railroads, 83484-83509 [2020-27085]
Download as PDF
83484
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
Beneficial use, Disposal, Hazardous
waste, Landfill, Surface impoundment.
Peter Wright,
Assistant Administrator, Office of Land and
Emergency Management.
[FR Doc. 2020–27525 Filed 12–21–20; 8:45 am]
BILLING CODE 6560–50–P
or miriam.kloeppel@dot.gov; Amanda K.
Emo, Ph.D., Fatigue Program Manager,
at 202–281–0695 or amanda.emo@
dot.gov; or Colleen A. Brennan, Deputy
Assistant Chief Counsel, at 202–493–
6028 or colleen.brennan@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 270 and 271
[Docket No. FRA–2015–0122, Notice No. 1]
RIN 2130–AC54
Fatigue Risk Management Programs
for Certain Passenger and Freight
Railroads
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
Pursuant to the Rail Safety
Improvement Act of 2008, FRA
proposes to issue regulations requiring
certain railroads to develop and
implement a Fatigue Risk Management
Program, as one component of the
railroads’ larger railroad safety risk
reduction programs.
DATES: Written comments must be
received by February 22, 2021.
Comments received after that date will
be considered to the extent practicable
without incurring additional expense or
delay.
ADDRESSES: Comments related to Docket
No. FRA–2015–0122 may be submitted
by going to https://www.regulations.gov
and 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 (2130–AC54). Note that all
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided. Please
see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of
this document for Privacy Act
information on any submitted
comments or materials.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
jbell on DSKJLSW7X2PROD with PROPOSALS
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Miriam Kloeppel, Staff Director, Audit
Management Division, at 202–493–6224
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
I. Introduction and Executive Summary
A. Purpose of Rulemaking
B. Summary of Costs and Benefits
II. Rulemaking Authority and Background
A. RSIA
1. Mandate for Rulemaking on Railroad
Safety Risk Reduction Programs
2. Mandate for Rulemaking on Fatigue
Management Plans
3. Authority for Rulemaking on
Information Protection
B. Fatigue and Fatigue Risk Management
Plans
III. Railroad Safety Advisory Committee
Process
A. Fatigue Management Plans Working
Group
B. Task Forces
IV. FRMP Considerations
A. General Overview
B. Roles and Responsibilities
C. Components of an FRMP
1. Identifying Safety Hazards
2. Assessing Risks Associated With
Identified Hazards
3. Prioritizing Risks and Implementing
Mitigation
4. Summary of the Work of the FRMP
Working Group’s Task Forces
5. Tracking Performance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Orders 12866 and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive
Order 13272; Initial Regulatory
Flexibility Analysis
C. Federalism
D. International Trade Impact Assessment
E. Paperwork Reduction Act
F. Environmental Assessment
G. Executive Order 12898 (Environmental
Justice)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Privacy Act Statement
I. Introduction and Executive Summary
A. Purpose of Rulemaking
This proposed rule is part of FRA’s
efforts to improve rail safety continually
and to satisfy the statutory mandate of
Section 103 of the Rail Safety
Improvement Act of 2008 (RSIA).1 That
section, codified at 49 U.S.C. 20156,
requires Class I railroads; railroad
carriers with inadequate safety
performance (ISP), as determined by the
Secretary; and railroad carriers that
provide intercity rail passenger or
1 Section 103, Public Law 110–432, Division A,
122 Stat. 4848 et seq.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
commuter rail passenger transportation
to develop and implement a safety risk
reduction program to improve the safety
of their operations. The section further
requires a railroad’s safety risk
reduction program to include a ‘‘fatigue
management plan’’ meeting certain
requirements.
This proposed rule, if finalized,
would fulfill RSIA’s mandate for
railroads to include fatigue management
plans in their safety risk reduction
programs by requiring railroads to
develop and implement Fatigue Risk
Management Programs (FRMPs).2 As
proposed, a railroad would implement
its FRMP through an FRMP plan.
Under this proposed rule, consistent
with the mandate of Section 20156, an
FRMP is a comprehensive, systemoriented approach to safety in which a
railroad determines its fatigue risk by
identifying and analyzing applicable
hazards and takes action to mitigate, if
not eliminate, that fatigue risk.3 As
proposed, a railroad would be required
to prepare a written FRMP plan and
submit it to FRA for review and
approval. A railroad’s written FRMP
plan would become part of its existing
safety risk reduction program plan. A
railroad would also be required to
implement its FRA-approved FRMP
plan, conduct an internal annual
assessment of its FRMP, and consistent
with Section 20156’s mandate, update
its FRMP plan periodically. As part of
a railroad safety risk reduction program,
a railroad’s FRMP would also be subject
to assessments by FRA.
B. Summary of Costs and Benefits
FRA estimated the costs and benefits
of this proposed rule using discount
rates of 3 and 7 percent over a ten-year
time horizon. FRA presents monetized
costs and benefits where possible and
discusses those non-quantifiable
elements qualitatively where data is
2 Section 20156 uses the term ‘‘fatigue
management plans’’ so sections of this preamble
discussing the statutory requirements likewise use
this term, as do the sections discussing the Railroad
Safety Advisory Committee task statement on
fatigue and Fatigue Working Group. However,
because section 20156 requires fatigue to be
addressed as part of a railroad’s safety risk
reduction program, for consistency with the
terminology used in FRA’s final rules governing
those programs (81 FR 53849 (Aug. 12, 2016) and
85 FR 9262 (Feb. 18, 2020)), elsewhere throughout
this proposed rule, FRA uses the terms ‘‘fatigue risk
management program’’ (FRMP) and ‘‘FRMP plan.’’
3 Risk is defined as a combination of the
probability of an adverse event occurring and the
potential severity of that adverse event. Fatigue
increases the likelihood of certain negative events
occurring. Therefore, reducing fatigue helps reduce
fatigue-related risks. See United States Department
of Transportation, Partnering in Safety: Managing
Fatigue: A Significant Problem Affecting Safety,
Security, and Productivity, 1999.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
lacking. Details on the estimated costs
and benefits of this proposed rule can be
found in the rule’s economic analysis,
which has been included in the docket.
In preparing the economic analysis,
FRA estimated that the total costs and
benefits over 10 years for the
implementation of an FRMP and the
fatigue training mitigation for Class I
railroads and the 50 ISP railroads
subject to this proposed regulation. FRA
was unable to quantify costs or benefits
for passenger railroads and discusses
the implementation of the proposed
regulation qualitatively within the
Regulatory Impact Analysis which has
been placed into the docket.
FRA also estimated the total costs
over 10 years to develop and monitor
FRMP plans for Class I railroads,
83485
passenger and commuter railroads, and
the 50 ISP railroads subject to this
proposed regulation. The proposed
regulation will also impose a new
economic cost on the agency over the
10-year period, to review and audit the
FRMPs.
Please see Table I.B for the total costs
and benefits associated with the
proposed rule.
TABLE I.B—10-YEAR COSTS AND BENEFITS—TRAINING ONLY MITIGATION
Calculation aid
Costs
Present value
7%
Present value
3%
Annualized at
7%
Annualized at
3%
A ....................................
B ....................................
C ....................................
D ....................................
A + C + D ......................
B + C + D ......................
A + C .............................
B + C .............................
Training Only (low) ...............................................
Training Only (high) .............................................
FRMP Plan Creation ............................................
Government Costs ...............................................
Total Cost (low) ....................................................
Total Cost (high) ..................................................
Total Cost w/o Government Costs (low) .............
Total Cost w/o Government Costs (high) ............
Benefits ................................................................
Training Only (low) ...............................................
Training Only (high) .............................................
$2.02
4.13
0.89
2.03
4.94
7.05
2.91
5.01
........................
5.41
21.65
$2.04
4.18
1.04
2.59
5.68
7.81
3.08
5.22
........................
6.33
25.34
$0.29
0.59
0.13
0.29
0.70
1.00
0.41
0.71
........................
0.77
3.08
$0.24
0.49
0.12
0.30
0.67
0.92
0.36
0.61
........................
0.74
2.97
II. Rulemaking Authority and
Background
A. RSIA
jbell on DSKJLSW7X2PROD with PROPOSALS
1. Mandate for Rulemaking on Railroad
Safety Risk Reduction Programs
The RSIA requires the Secretary of
Transportation (Secretary) to issue
regulations requiring certain railroads to
develop and implement a ‘‘railroad
safety risk reduction program.’’ 4 Under
RSIA, as part of their railroad safety risk
reduction programs, railroads must
analyze the risks associated with aspects
of their operations that affect railroad
safety and based on that risk analysis,
railroads must, through their railroad
safety risk reduction programs, mitigate
risks to railroad safety.5 Among other
requirements, the RSIA requires
railroads to consult with ‘‘directly
affected employees’’ and their labor
organizations on the content of their
safety risk reduction programs,
including the fatigue management plan
component.6
The Secretary delegated responsibility
for carrying out the mandate of Section
20156 to the FRA Administrator.7
Section 20156(a)(1) mandates that
each of the following types of railroads
would have to comply with this
proposed regulation: (1) Class I
railroads; (2) railroad carriers with ISP;
4 Public
Law 110–432, Div. A, sec. 103 (49 U.S.C.
20156).
5 Sec. 20156(d)(1).
6 49 U.S.C. 20156(f) and (g)(1).
7 49 CFR 1.89, 77 FR 49965 (August 17, 2012); see
also 49 U.S.C. 103(g).
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
and (3) railroad carriers that provide
intercity rail passenger or commuter rail
passenger transportation. This preamble
refers to the railroads that would be
subject to this proposed rule as
‘‘covered railroads.’’
To implement the requirements of
Section 20156, FRA published the
System Safety Program (SSP) final rule
implementing the railroad safety risk
reduction program mandate for
passenger railroads on August 12,
2016.8 On February 18, 2020, FRA
published the Risk Reduction Program
(RRP) final rule implementing the
mandate for Class I freight and ISP
railroads.9
Both the SSP and RRP rules allow a
railroad to tailor its program to its
unique operating characteristics.10 All
railroads that must develop either an
RRP or an SSP would also have to
develop an FRMP as a component of the
RRP or the SSP.
Both RRPs and SSPs reflect
comprehensive, system-oriented
approaches to improving safety, by
which an organization formally
identifies and analyzes applicable
hazards and takes action to mitigate, if
not eliminate, the risks associated with
those hazards. RRPs and SSPs provide
a railroad with a framework for
8 81
FR 53849.
FR 9262. The RRP final rule also defines
‘‘railroad carriers with inadequate safety
performance’’ to whom this proposed rule would
apply. 49 CFR 271.13, 85 FR at 9316–9317.
10 SSP Final Rule at 81 FR 53849, August 12,
2016, and RRP Final Rule at 85 FR 9262, February
18, 2020.
9 85
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
processes and procedures that can help
it plan, organize, direct, and control its
business activities in a way that
enhances safety and promotes
compliance with regulatory standards.
As such, risk reduction and system
safety programs are a form of ‘‘safety
management system,’’ which is a term
that generally refers to a comprehensive,
systematic approach to managing safety
throughout an organization.
Safety management systems were
developed to ensure high safety
performance in various industries,
including aviation, passenger railroad,
nuclear, and other industries with the
potential for catastrophic accidents. For
ease of understanding, the elements of
a safety management system are
typically grouped into larger descriptive
categories. These descriptive categories
include: (1) An organization-wide safety
policy; (2) formal methods for
identifying hazards, and for prioritizing
and mitigating risks associated with
those hazards; (3) data collection, data
analysis, and evaluation processes to
determine the effectiveness of
mitigation strategies and to identify
emerging hazards; and (4) outreach,
education, and promotion of an
improved safety culture within the
organization.
Effective implementation of all the
elements of an RRP or SSP, including
the FRMP this proposed rule would
E:\FR\FM\22DEP1.SGM
22DEP1
83486
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
require, will foster continuous safety
improvement.11
2. Mandate for Rulemaking on Fatigue
Management Plans
Sections 20156(d)(2) and (f) of the
RSIA mandate that as part of a railroad’s
safety risk reduction program, a railroad
must develop and implement a fatigue
management plan ‘‘designed to reduce
the fatigue experienced by safety-related
railroad employees and to reduce the
likelihood of accidents, incidents,
injuries, and fatalities caused by
fatigue.’’ 12 The statute requires
railroads to update their fatigue
management plans at least once every
two years, with each update subject to
FRA review and approval.13 Section
20156(f)(2) also requires each railroad’s
fatigue management plan to take into
account the varying circumstances of
operations on different parts of its
system, and to prescribe appropriate
fatigue countermeasures to address the
varying circumstances.
Finally, Section 20156(f)(3) requires a
covered railroad to consider the need to
include in its fatigue management plan
elements addressing each of the
following items, as applicable: (1)
Employee education and training on the
physiological and human factors that
affect fatigue, as well as strategies to
reduce or mitigate the effects of fatigue,
based on the most current scientific and
medical research and literature; (2)
opportunities for identification,
diagnosis, and treatment of any medical
condition that may affect alertness or
fatigue, including sleep disorders; (3)
effects on employee fatigue of an
employee’s short-term or sustained
response to emergency situations, such
as derailments and natural disasters, or
engagement in other intensive working
conditions; (4) scheduling practices for
employees, including innovative
scheduling practices, on-duty call
practices, work and rest cycles,
increased consecutive days off for
employees, changes in shift patterns,
appropriate scheduling practices for
varying types of work, and other aspects
of employee scheduling that would
reduce employee fatigue and cumulative
sleep loss; (5) Methods to minimize
accidents and incidents that occur as a
result of working at times when
scientific and medical research have
shown increased fatigue disrupts
employees’ circadian rhythm; (6)
11 For a more detailed discussion of safety
management systems and FRA risk reduction
programs, see FRA’s final RRP and SSP rules. 85 FR
9265 (RRP final rule) and 81 FR 53853–54 (SSP
final rule).
12 Sec. 20156(f)(1).
13 Id.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
alertness strategies, such as policies on
napping, to address acute drowsiness
and fatigue while an employee is on
duty; (7) opportunities to obtain restful
sleep at lodging facilities, including
employee sleeping quarters provided by
the railroad carrier; (8) the increase of
the number of consecutive hours of offduty rest, during which an employee
receives no communication from the
employing railroad carrier or its
managers, supervisors, officers, or
agents; (9) avoidance of abrupt changes
in rest cycles for employees, and (10)
additional elements that the Secretary
considers appropriate.
3. Authority for Rulemaking on
Information Protection
Section 109 of the RSIA specifies that
subject to specific exceptions, certain
railroad safety risk reduction records
obtained by the Secretary are exempt
from the public disclosure requirements
of the Freedom of Information Act
(FOIA).14 Both the SSP and RRP final
rules implement these authorized
information protections. Further, FRA
has concluded section 20118 is a FOIA
Exemption 3 statute and, therefore,
would exempt, as part of a railroad’s
safety risk reduction program, FRMP
records in FRA’s possession from
mandatory disclosure under FOIA
(unless one of two statutory exceptions
apply).15
B. Fatigue and Fatigue Risk
Management Plans
Humans have an approximately 24hour 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.
Such disruptions may also impair
human performance, and may cause a
general feeling of debility until
realignment is achieved. For instance,
the experience of jet lag is comparable
to the experience of working schedules
that vary among different duty shifts,
and similar disruptions in human
performance occur. Research has shown
that fatigue is a multivariate condition,
being either directly or secondarily
affected by physiological and
environmental variables such as sleep
loss, workload, stress, monotony,
workplace ergonomics, age, health,
medications, noise, and circadian
disruption. Symptoms of fatigue
include, but are not limited to, falling
asleep, increased reaction time, loss of
attentional capacity, and decline of
14 49
15 80
PO 00000
U.S.C. 20118.
FR at 10957–10958.
Frm 00009
Fmt 4702
Sfmt 4702
short-term and working memory
function which may impair
performance, increase error, and
increase accident risk.
The Federal Government requires
railroads to manage their employees’
fatigue associated with railroad
operations through prescriptive hours of
service (HOS) limitations and rest
requirements. See 49 U.S.C. 21103,
21104, and 21105 and regulations at 49
CFR part 228, subpart F (implementing
49 U.S.C. 21102 and 21109). HOS
limitations are generally based on the
assumption that fatigue simply
increases as time passes; therefore, the
longer the time on task, the greater the
risk for fatigue. However, this approach
does not account for factors such as
sleep loss, amount of sleep, circadian
rhythms, sleep quality (which may be
impacted by environmental factors or
sleeping accommodations), and even the
effects of the type of task being
performed on the resulting level of
fatigue. Furthermore, the HOS
limitations and rest requirements apply
only to individuals who perform certain
types of work and do not cover all
railroad employees (e.g., ordinarily, not
maintenance-of-way employees or
carmen). Laws and regulations
following this model, therefore, may
reduce, but cannot eliminate, the
conditions that contribute to fatigue.16
An FRMP, on the other hand, is
intended to be a systematic program to
address fatigue in a dynamic manner.
An FRMP is a form of a safety
management system. Like the other
elements of an RRP and an SSP, an
FRMP implements organizational
policies, processes, and procedures to
reduce safety risk in a railroad’s
operations. An FRMP is a data-driven
and scientifically-based process that
allows for periodic review and
management of safety risks associated
with fatigue-related error(s). Like other
safety management systems, an FRMP
applies the risk management process to
identify fatigue risks through the use of
data-established, scientific principles.
An FRMP includes collecting and
analyzing fatigue-related safety data and
implementing corrective actions—
always encouraging continuous
improvement. This proposed rule would
require railroads to develop FRMPs that
are consistent with these general
principles.
16 Thomas, G., Raslear, T., & Kuehn, G. (1997),
The effects of work schedule on train handling
performance and sleep of locomotive engineers: A
simulator study, Report No. DOT/FRA/ORD–97–
09), Washington, DC: Federal Railroad
Administration; available at: https://
www.fra.dot.gov/eLib/details/L04245.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
An effective FRMP implements
processes and procedures for measuring,
modeling, managing, mitigating, and
reassessing fatigue risk in a specific
operational setting. The primary
stakeholders—the main persons with
the authority and/or interest to improve
conditions to reduce fatigue—would
implement FRMP processes. In the case
of this specific rulemaking, that
stakeholder group would include
representation from management and
labor (union representation, if
applicable) and may also include
scientific consultants.
By combining schedule assessment,
operational data collection, continuous
and systematic analysis, and both
proactive and reactive fatigue mitigation
techniques, guided by information
provided by scientific studies of fatigue,
an FRMP offers a way to conduct
railroad operations more safely by
offering a global, comprehensive, and
specific approach that complements
statutory or regulatory HOS limitations.
An FRMP would provide an interactive
and collaborative approach to
improving operational performance and
safety levels on a case-by-case basis.
Therefore, an FRMP would permit a
railroad to adapt policies, procedures,
and practices to the specific conditions
that create fatigue in a particular
railroad setting. A railroad could tailor
its FRMP to unique operational
demands and focus on techniques for
mitigating risk caused by fatigue that are
practical within the specific operational
environment. This flexibility would also
allow a railroad to alter its FRMP based
on changing needs, new research, data
from an existing FRMP, comments from
labor and management, and established
best practices.
jbell on DSKJLSW7X2PROD with PROPOSALS
III. Railroad Safety Advisory
Committee Process
In December 2011, FRA asked the
Railroad Safety Advisory Committee
(RSAC) to accept a task to address the
fatigue management plan mandate of the
RSIA.17 The RSAC voted to accept the
task and on December 8, 2011, the
RSAC formed the Fatigue Management
Plans Working Group (Working Group).
Members of the Working Group
17 Railroad Safety Advisory Committee Task
Statement: Fatigue Management Plans, Task No.:
11–03, Dec. 8, 2011. The Task Statement read as
follows:
Review the mandates and objectives of the [RSIA]
related to the development of Fatigue Management
Plans, determine how medical conditions that affect
alertness and fatigue will be incorporated into
Fatigue Management Plans, review available data
on existing alertness strategies, consider the role of
innovative scheduling practices in the reduction of
employee fatigue, and review the existing data on
fatigue countermeasures.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
included physicians, human factors
psychologists, railroad schedulers, and
other representatives of railroad
management and labor, as well as FRA
employees.
The Working Group formed three
Task Forces to address particular
aspects of the RSIA mandate in more
detail: (1) The Education and Training
Task Force; (2) the Scheduling Task
Force; and (3) the Infrastructure and
Environment Task Force. The Task
Forces met multiple times throughout
2012 and 2013 and the Working Group
itself met eight times during the same
period.
After initially reaching consensus on
draft rule text in June 2013, the Working
Group did not reach consensus as to
how its recommendations should be
implemented. The Task Forces had
developed a multitude of documents,
which Labor representatives on the
Working Group wanted published as
appendices to the regulation. Railroad
management members of the Working
Group, on the other hand, asserted that
the documents should not be published
as appendices to the regulation, but
instead recommended that the
documents be made available on the
FRA website and in the rulemaking
docket for all parties to use in the
required consultation process as part of
developing railroads’ FRMPs. As a
result, in late 2013, FRA withdrew the
task from the RSAC, and as the agency
worked to implement other aspects of
the safety risk reduction program
mandate of the RSIA (i.e., the RRP and
SSP rules), the Agency began
developing a rule specifically to address
the RSIA’s mandate that fatigue
management plans be included as part
of railroads’ safety risk-reduction
programs.
Although the RSAC did not make a
consensus recommendation to FRA
related to fatigue, FRA believes that
information developed and documented
during the RSAC process is informative
and will be very useful to railroads
required to develop FRMP plans. FRA
made minor amendments to the June
2013 draft rule text to clarify it and
make it more consistent with similar
rule text in the SSP and RRP rules.
However, the substance of this proposed
rule text is the same as the draft rule text
the Working Group voted to approve.
Accordingly, the proposals in this
NPRM reflect FRA’s consideration of the
Working Group’s recommended rule
text and the documents developed by
each of the three Task Forces. Those
RSAC-developed documents are
included in the rulemaking docket.
The RSIA does not mandate, and this
NPRM does not propose to include,
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
83487
language specifically addressing the
predictability of work schedules.
However, the RSIA does require
railroads to consider scheduling
practices, of which predictability is one
factor. There is significant discussion of
predictability throughout this
document, particularly when describing
the Task Force discussions and the
complex issues addressed in the Task
Force documents that will inform
railroads’ analysis of fatigue risks and
their efforts to mitigate the identified
fatigue risks in consultation with
employees and labor organizations.
However, the proposed rule requires
railroads to consider several factors,
including work schedule predictability,
but does not require any particular
factor to be analyzed.
The NPRM also does not propose to
include the Task Force documents as
appendices to this proposed rule. As
FRA previously explained to the
members of the Working Group, many
of these documents are written
informally, for the use of railroads and
labor in developing FRMP plans. The
documents are best practices generated
by the Working Group, but are not
specifically FRA guidance and,
therefore, should not be in an appendix
to an FRA regulation. In addition, the
content of the Task Force documents is
subject to change based on advances in
fatigue science, changes in railroad
operations, and experience with FRA’s
SSP and RRP rules and the development
and implementation of FRMPs and
FRMP plans. The Task Force documents
should be easy to update as necessary so
that they are most beneficial to those
using them. If they were published as
appendices to the regulation, changing
them would require the cumbersome
process of publishing them in the
Federal Register, and the industry
would be left with outdated or less
useful documents until revisions could
be completed. For the convenience of
readers, however, the full text of each of
these documents can be found in the
docket for this rulemaking.
B. Task Forces
As noted above, paragraph (f)(3) of
Section 20156 requires railroads to
consider including 10 different elements
in their fatigue management plans.
The Working Group assigned the
Education and Training Task Force to
address section 20156(f)(3)
subparagraphs (A), (B), (E), and (F),
specifically:
• Employee education and training
on the physiological and human factors
that affect fatigue;
• Medical and scientific researchbased fatigue mitigation strategies;
E:\FR\FM\22DEP1.SGM
22DEP1
83488
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
• Opportunities for identification,
diagnosis, and treatment of any medical
condition that may affect alertness or
fatigue, including sleep disorders;
• Methods to minimize accidents and
incidents during circadian low periods;
and
• Alertness strategies.
The Task Force produced a document
outlining existing railroad fatigue
educational resources; a document
outlining potential fatigue training
topics; fatigue education dissemination
and evaluation strategies; and a
document outlining fatigue
countermeasures.
The Working Group assigned the
Scheduling Task Force to address
subparagraphs (D), (H), and (I) of the
required elements outlined in section
20156(f)(3).
The task statement specifically
included:
• Innovative scheduling practices;
• On duty call practices;
• Work and rest cycles;
• Increased consecutive days off;
• Other aspects of employee
scheduling that would reduce employee
fatigue and cumulative sleep loss;
• The increase of the number of
consecutive hours of off-duty rest; and
• Avoidance of abrupt changes in rest
cycles for employees.
The Working Group assigned the
Infrastructure and Environment Task
Force to address subparagraphs (C) and
(G) of section 20156(f)(3) including:
• Effects on employee fatigue of an
employee’s short term or sustained
response to emergency situations;
• Opportunities to obtain restful sleep
at lodging facilities; and
• Effects of environmental conditions
(e.g., temperature, vibrations, etc.) on
employee fatigue.
The Task Force created documents on
emergency work, lodging facilities, and
dispute resolution.
jbell on DSKJLSW7X2PROD with PROPOSALS
IV. FRMP Considerations
This proposed rule, if finalized, will
fulfill the requirement of paragraph (d)
of Section 20156 that a covered
railroad’s railroad safety risk reduction
program include a fatigue management
plan. This rule would amend both Parts
270 and 271, adding a subpart to both
parts requiring railroads to develop and
implement FRMPs. This section
provides a summary of potential
methods and considerations for
developing and maintaining a FRMP.
FRA welcomes comments on the
discussion in this section, including
thoughts on how to develop and
maintain an effective FRMP. Unless
specifically identified as a statutory or
regulatory requirement, the information
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
and suggestions contained in this
section are not meant to bind the public
in any way, and is intended only to
provide clarity to the public regarding
this proposal and information to aid in
compliance if the proposal is finalized.
A. General Overview
This proposed rule would require
each covered railroad to establish and
periodically update an FRMP plan,
which explains the railroad’s method of
analysis of fatigue risks and the
processes for implementing the FRMP.
FRA would review and approve the
FRMP plan. FRA proposes that
requirements for the filing, approval,
and amendment of the FRMP plan be
made the same as for other components
of RRP or SSP plans so those
requirements are not set forth in this
proposed rule. Instead, the proposed
rule text cites to the sections of the SSP
and RRP rules that contain those
procedures.18 Because railroads will
have submitted their SSP plans or RRP
plans to FRA under part 270, subpart C,
or part 271, subpart D before this
proposed rule becomes final, railroads
would need to amend their SSP plan or
RRP plan to include an FRMP plan.
Thus, a railroad would follow the
procedures in § 270.201(c) or 271.303 to
amend its SSP plan or RRP plan.
As part of their FRMP, covered
railroads would be required to identify
fatigue-related safety hazards, to assess
the risks associated with those hazards,
and to prioritize those risks for
mitigation. These railroads would be
required to consider certain categories
of risk as part of the FRMP, and to
consider the development and
implementation of policies and
practices to reduce risks, related
specifically to the items identified in the
RSIA as items railroads are required to
consider.
FRA proposes that railroads be
required to adopt and implement their
FRMP through an FRMP plan describing
the railroads’ processes for conducting
their fatigue-risk analysis, including the
processes for the identification of
fatigue-related railroad safety hazards
and resulting risks, processes for the
development and implementation of
mitigation measures, processes for the
evaluation of the FRMP and its
effectiveness, and procedures for the
review and update of the FRMP plan.
The FRMP plan would also describe
processes, milestones, and timelines for
the implementation of the FRMP.
18 49 CFR 271.301 Filing and approval, 271.303
Amendments, and 49 CFR 270.201 Filing and
approval.
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
Finally, the proposed rule contains no
express requirements on information
protection or consultation, because the
information protection and consultation
requirements in the RRP and SSP rules
would apply to the FRMP, the FRMP
plan, and their related documents, just
as those requirements would apply to
similar documents on other aspects of
the RRP or SSP. As required by the
RSIA, fatigue management plans are
required elements of a railroad’s
statutorily-mandated railroad safety risk
reduction program. Therefore, the
statutory requirements on information
protection and consultation,
implemented in the SSP and RRP final
rules, would also apply to the
documents required by this proposed
rule to implement the required fatigue
component of each railroad’s RRP or
SSP. Regarding information protection,
as with RRP and SSP, only information
compiled or collected solely for
developing, implementing, or evaluating
a railroad’s FRMP would be protected.19
B. Roles and Responsibilities
Consistent with the program
requirements of an RRP or SSP,20 an
FRMP is an ongoing program that
supports continuous safety
improvement, and requires systematic
evaluation and management of risks. An
FRMP is more than a document; it is a
living program that is implemented by
members of the organization who
regularly meet to review data on fatigue
indicators, analyze contributing factors
to fatigue, take necessary actions
(reactive and proactive) to mitigate
fatigue, objectively audit the
effectiveness of the system, and take
corrective action continuously to
improve the system. Consistent with
comments made at the Working Group
meetings, FRA expects most railroads
will form a dedicated fatigue
management committee to implement
the program. The committee should
include representatives of all
departments and groups, including
labor representatives as appropriate,
that have a role in reporting, managing,
and mitigating fatigue.
SSPs and RRPs require outreach to
employees so that they can understand
why certain actions are taken, or why
certain safety procedures are introduced
19 For a detailed discussion of information
protection, see the SSP final rule at 81 FR 53855–
56 and 53878–82, and RRP final rule at 85 FR 9266–
9272 and 9279–9282. For more information on the
consultation requirements, see the SSP final rule at
81 FR 53856, 53882–87 and 49 CFR part 270 app.
B, and RRP NPRM at 85 FR 9266, 9299–9303.
20 49 CFR 271.101(a), 270.101, and
270.103(p)(vii).
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
or changed.21 As this relates to an
FRMP, it means that all safety-related
personnel need to understand the
corporate policies that underlie the
FRMP; these may include policies and
procedures that govern: Fatigue
reporting, fitness-for-duty, absence due
to fatigue, incident reporting, employee
privacy, and prohibitions on coercion to
perform duties while fatigued.
As provided in the RSIA, the three
main stakeholders in the FRMP are
railroad management, railroad
employees (including nonprofit
employee labor organizations), and
FRA. Each of these stakeholders plays
an important role in implementing an
FRMP successfully. Railroad
management must develop, document,
and implement an FRMP, tailored to the
size of the railroad, in a collaborative
environment with relevant stakeholders;
it must also then allocate the resources
required to implement any fatigue
countermeasures in a timely fashion.
FRA notes that the RSIA, in multiple
places, specifically requires railroads to
develop and implement elements of
their programs based on the latest
scientific principles.22 FRA will review,
and as appropriate, approve each
railroad’s FRMP plan, and evaluate to
ensure that the railroads are complying
with their plans.
These general roles and functions are
not an exhaustive description of the
various actions each group could take
during the development and execution
of the FRMP.
C. Components of an FRMP
As proposed, a railroad’s FRMP must
consist of actions taken by the railroad
pursuant to formally documented
policies, processes, and procedures
intended to mitigate fatigue risk. It
incorporates specific components that
enable the following: (1) Identifying
safety hazards associated with fatigue;
(2) assessing the risks associated with
identified hazards; (3) prioritizing risks
for mitigation and implementing
mitigation strategies for those risks; and
(4) tracking the performance and
21 49
CFR 271.107 and 270.103(i)(4).
U.S.C. 20156(f)(3)(A) and (E) specifically
require railroads to consider scientific and medical
research, in determining whether to include certain
elements in their FRMP. The other elements of
§ 20156(f)(3) require railroads to consider various
scientific concepts, such as medical conditions,
cumulative fatigue, and circadian rhythms.
jbell on DSKJLSW7X2PROD with PROPOSALS
22 49
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
effectiveness of each mitigation strategy
and reviewing and revising an FRMP
based on results.
1. Identifying Safety Hazards
a. Examples of Methods of Identifying
Safety Hazards
A risk-based hazard analysis 23
identifies operational processes,
procedures, or activities that increase
the likelihood of fatigue, and lays the
foundation for subsequent assessment
and mitigation of risks associated with
the fatigue hazards identified. Hazards
may be identified through quantitative,
data-driven methods; through
qualitative processes such as
discussions, interviews, and
brainstorming; or through a combination
of both approaches. Identifying a hazard
does not guarantee that it will be
selected for mitigation.
In general, data-driven methods
identify and record hazards through a
systematic process that allows for
tracking and further analysis. These
methods could use various types of
recorded observations, such as records
of actual schedules, efficiency testing,
accident/incident investigations,
company audits, employee surveys,
close-call or hazardous condition
reports, and others. Simulations may
also be used to identify potential
hazards and to estimate the potential
severity of outcomes.
Understanding the current conditions
within a railroad is critical for a
railroad’s ability to identify fatigue
hazards accurately. Important sources of
information include current schedules,
train lineups, throughput, and operating
practices. Employee reports of fatigue or
fatigue-related errors and incidents, and
information on the work schedules that
led up to them, would also be valuable.
Likewise, employees may be able to
provide information regarding travel
assignments and random duty reports.
Comprehensive and objective
accident, incident, and error analyses
can also be conducted to determine
when fatigue has been a potential
contributing factor. The identified
fatigue-sensitive situations can then be
addressed to mitigate or to avoid them
in the future. For example, if analyses
23 Although the RSIA uses the term ‘‘risk
analysis,’’ FRA uses ‘‘risk-based hazard analysis’’
because it is more consistent with the terminology
used in the SSP and RRP rules, as defined in 49
CFR 270.5 and 49 CFR 271.5.
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
83489
identify a high probability of a specific
error occurring during the hours when
employees are highly susceptible to
fatigue, engineering or procedural
safeguards could potentially be put in
place to minimize or eliminate the
possibility of that error recurring.
In addition to data-driven methods,
qualitative methods that are often
founded on expert judgment can be very
effective at identifying fatigue hazards.
Examples of qualitative hazard
identification methods include, but are
not limited to, the following:
• Brainstorming may be useful for
identifying hazards in new or novel
systems. Ideally, it involves all key
stakeholders, is relatively quick and
easy, and can be applied to a wide range
of systems. Because brainstorming is
commonly unstructured, it may not be
comprehensive. The success of
brainstorming depends heavily on the
expertise of the participants and may be
susceptible to the influence of group
dynamics.
• Checklists are inventories of known
hazards. They can be used by people
who are not experts in the operation or
system being analyzed, to capture a
wide range of existing knowledge and
experience, and help ensure that
common and obvious problems are not
discounted, minimized, or overlooked.
However, checklists may be less useful
for unusual operations or systems, may
inhibit expansive thinking, or may
overlook hazards that have not been
previously or widely observed.
• Failure Modes and Effects Analysis
(FMEA) is a reliability assessment
technique built upon a detailed system
description used to evaluate the ways in
which basic system processes,
components, or subcomponents can fail
to perform safely. FMEA considers all
the potential ways a component could
fail, the effects of these failures on the
system, possible causes of the failures,
and how the failures might be mitigated.
See Figure 1. FMEA is a systematic and
rigorous evaluation approach that can
yield a detailed record of the hazard
identification process, and can be
applied to a wide range of types of
systems. However, it primarily focuses
on single point-of-failure modes rather
than combinations of failures, relies
heavily upon individuals with detailed
system knowledge, and can be both
time-consuming and expensive.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
• Structured What-If Technique
(SWIFT) is a form of facilitated
brainstorming, typically carried out on a
higher-level system description with
relatively few subcomponents,
involving a multidisciplinary team of
experts. The facilitator uses various
prompts, such as ‘‘what if,’’ ‘‘could
someone,’’ or ‘‘has anyone ever’’
questions to initiate discussion within
the group. SWIFT creates a detailed
record of the hazard identification
process, and can consume less time than
some other methods. However,
successful application requires careful
preparation, relies on the expertise and
experience of the team, and depends
heavily on the skills of the facilitator.
• Operating Hazard Analysis (OHA)
is when a team or individual uses
various sources of information to
identify hazards resulting from the
operation and maintenance of a system,
following a structured and formal
process. In addition to the engineering
design analysis at which FMEA excels,
OHA is structured so that human
performance and human interactions
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
can be included in the analysis.
Information sources can include
analyses of known hazards, written
procedures and manuals, engineering
system descriptions, and other materials
to analyze detailed procedures
performed during system operation.
• Hazard identification software
programs are designed to support the
identification of hazards using a
systematic method. Programs are
available that provide structured
guidance for identifying general hazards
or only fatigue-specific hazards. Such
software may also offer the ability to
catalog the resultant fatigue-related risks
to help railroads prioritize risks.
• Employee workshops may be used
to engage employees in the railroad’s
hazard analysis. Employees can share
their experiences and concerns relating
to fatigue with the goal of identifying
fatigue hazards, related risks, and
potential solutions or mitigations.
These are just some of the methods
available for identifying hazards. Each
has advantages and disadvantages, and
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
a combination of two or more methods
may minimize any shortcomings.
b. Specific Fatigue-Related Hazards To
Consider
A number of individual,
organizational, or environmental factors
can contribute to the likelihood of
fatigue. As provided in the RSIA, these
factors should be among the many items
considered during a hazard analysis.24
• General health and medical
conditions. According to the National
Sleep Foundation,25 there are several
medical conditions or treatments of
those conditions that may affect
alertness. They include, but are not
limited to, obstructive sleep apnea,
insomnia, periodic limb movement
disorder (restless leg syndrome),
hypersomnia/narcolepsy (excessive
daytime sleepiness), delayed sleep
phase syndrome (circadian
misalignment), depression, anxiety,
24 See
49 U.S.C. 20156(c).
25 https://sleepfoundation.org/sleep-disorders-
problems.
E:\FR\FM\22DEP1.SGM
22DEP1
EP22DE20.000
jbell on DSKJLSW7X2PROD with PROPOSALS
83490
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
bruxism (teeth grinding), night sweats,
night terrors, nocturia (waking several
times throughout the night to urinate),
poor sleep efficiency, and residual
effects of neurological damage (e.g.,
stroke).
• Scheduling issues. Systemic or
particular scheduling and crew-calling
practices and issues may affect
opportunities for employees to obtain
sufficient quality and quantity of sleep.
Related issues that increase fatigue risks
include, but are not limited to, the
following:
• On-duty call practices;
• Work and rest cycles;
• Frequency and duration of days off;
• Changes in start times;
• Policies regarding napping; and
• Policies and practices regarding
marking-off.
The level of predictability of work
assignments, particularly those
assignments that occur at night, can
influence the ability of employees to
anticipate work assignments and obtain
necessary off-duty sleep. Note that work
shift or duty tour predictability alone
will not necessarily eliminate fatigue
risk, and it is possible for highly
predictable schedules to also have high
exposure to fatigue. Other factors such
as time of shift, work-to-rest ratio, and
the speed and direction of shift rotation
may also play a role in the employee’s
ability to plan for and obtain sufficient
sleep.26
An FRA report 27 found that high
variability in shift start times
contributes to fatigue. Furthermore, FRA
research also established that the
probability of rail accidents increases as
fatigue increases.28 Thus, reducing start
time variability could potentially
increase safety. In addition to examining
the relationship between start time
variability and fatigue, the report
contains information on statistical
methods, including analyzing variance
of start times and calculating a hazard
function, which can be used to compare
work locations, types of jobs, and
26 Rosa, R.R. & Colligan, M.J., Plain language
about shiftwork (DHHS [NIOSH] Publication No.
97–145) (1997), Cincinnati, OH: National Institute
for Occupational Safety and Health, available at:
https://www.cdc.gov/niosh/docs/97-145/pdfs/97145.pdf.
27 Raslear, T.G., Start time variability and
predictability in railroad train and engine freight
and passenger service employees (Report No. DOT/
FRA/ORD–14/05) (2014), Washington, DC: U.S.
Department of Transportation.
28 Raslear, T.G., Hursh, S.R., & Van Dongen,
H.P.A., Predicting cognitive impairment and
accident risk, in H.P.A. Van Dongen & G.A. Kerkhof
(Eds.), Progress in Brain Research, Vol. 190 (pp.
155–167), Amsterdam, The Netherlands: Elsevier
B.V. (2011).
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
changes in policies and procedures,
with regard to fatigue.
Job characteristics can also be a factor,
including, but not limited to, whether
the work is physically demanding,
whether the work requires extended
travel to a reporting point, and whether
the employees are called upon to
respond to emergencies. In general, a
railroad that effectively manages the
combined effects of crew scheduling,
employee rostering, additional tasks
assigned to employees, schedule
changes, and other factors should
succeed at minimizing fatigue-inducing
conditions.
2. Assessing Risks Associated With
Identified Hazards
As mandated by the RSIA, a FRMP
must systematically identify fatigue
hazards and evaluate fatigue safety risks
on the railroad system. The goal of this
hazard analysis is to identify work
schedules and other conditions that put
employees at risk for a level of fatigue
that compromises safety.
Different jobs may have different
fatigue related risks. As such, it is
important to examine the hazards
associated with each job. A systematic
assessment of risk involves: (1)
Determining the severity and likelihood
of potential incidents associated with
the hazards identified; (2) assessing risk
by evaluating the relative risk of each
identified hazard and how it impacts
established safety performance targets
and/or by ranking hazards based on risk;
and (3) systematically determining the
order in which risks should be
addressed. Selecting the criteria and
methods for establishing priorities in
advance will promote consistent
decision making over time. However,
flexibility is needed as risk tolerance
levels or prioritizations can change over
time as circumstances dictate.
One tool that railroads may want to
consider using to assess their fatiguerelated risk is a biomathematical model.
A biomathematical model of
performance and fatigue that has been
properly validated and calibrated
predicts accident risk based on
analyzing 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 the model actually measures
human performance and fatigue levels.
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
areas of human performance, sleep, and
fatigue level. The second part of the
validation process involves determining
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
83491
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
accident risks not associated with
human factors.
Calibration of the biomathematical
model involves the assignment of
numerical values to represent aspects of
empirical observations, similar to
marking degrees on a thermometer. In
the case of human fatigue level and
performance, the calibration of a fatigue
scale would start with the assignment of
values ranging from ‘‘not fatigued’’ to
‘‘severely fatigued.’’ The calibration
process starts during the validation
process with the assignment of model
output values to data bins for ‘‘not
fatigued’’ and ‘‘severely fatigued.’’ The
next step consists of determining the
fatigue threshold. Given a scale for
human fatigue level and performance,
and a relationship between that scale
and human factors accident risk, a final
calibration point would determine the
value at which fatigue becomes
unacceptable because the increase in
accident risk at that level compromises
safety; this is the fatigue threshold.
Railroads choosing to use
biomathematical fatigue modeling in
their schedule analysis will need to
establish a fatigue threshold.
Currently, FRA has validated and
calibrated two commercially available
biomathematical fatigue models. These
are the Fatigue Avoidance Scheduling
Tool (FAST) and the Fatigue Audit
InterDyne (FAID). However, any
validated and calibrated
biomathematical fatigue model may be
used in schedule analysis. An FRAsponsored report details how any
biomathematical fatigue model may be
validated and calibrated.29
FRA expects that new methods for
measuring and assessing fatigue risk
will continue to be developed. If the
system provides a scientifically valid
measure of fatigue risk, whether using a
biomathematical modeling tool or
another system, its use is acceptable for
purposes of developing and
implementing an FRMP.
As discussed below, there are many
ways to measure fatigue risk. The
system or metric a railroad ultimately
chooses to measure its fatigue risk will
depend on a variety of factors and will
be unique to each railroad. For example,
regardless of whether scheduled service
29 Hursh, S.R., Raslear, T.G., Kaye, A.S., &
Fanzone, J.F., Validation and calibration of a
fatigue assessment tool for railroad work schedules,
summary report (Report No. DOT/FRA/ORD–06/21)
(2006), Washington, DC: U.S. Department of
Transportation.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
is covered under statutory HOS
requirements (49 U.S.C. Ch. 211),
passenger train employee HOS
regulations (49 CFR part 228, subpart F),
or no HOS limitations, a railroad should
consider whether to include in its FRMP
an analysis of at least two consecutive
cycles of the work schedules (the period
within which the work schedule
repeats) of its safety-related railroad
employees. Analyzing more than one
cycle of a work schedule can provide
information about cumulative fatigue
effects that would not be apparent if
only one work schedule cycle were
analyzed. However, railroads will need
to determine how many work schedule
cycles to examine based on factors such
as start time variability, shift start and
end time, and type of work being
performed.
When looking at job tasks, some form
of a Haddon matrix can be helpful in
determining the risk associated with a
particular hazard. Figure 2 shows a
basic Haddon risk matrix, which can be
customized to represent categories of
probability and severity that are
meaningful and useful to the railroad.
Such a matrix provides a visual
representation of risks. As shown in the
matrix, when the probability of an
incident is low and severity is low, the
risk is also low. Conversely, when the
probability of an incident is high and
severity is high, the risk is also high.
For example, overnight schedules will
inevitably include the period identified
as the Window of Circadian Low.30 This
low point in performance could be
evaluated in relation to the duties to be
performed at that time because an
expected raised level of fatigue is of
greater concern if it coincides with the
performance of critical or difficult tasks.
Using a fatigue model can be helpful
for determining both frequency and
severity of fatigue risk associated with
specific schedules. Modeling is
extremely useful because it applies
scientific principles about fatigue to
find the specific operational and
employee factors that could contribute
to significant performance changes due
to fatigue. In general, modeling cannot
consider non-duty-related causes of
fatigue, individual differences related to
sleep loss tolerance, and individual
differences in circadian phase and
amplitude. Because of these limitations,
modeling should never be used to
contradict an individual’s reported
fatigue level. However, these models
can take into account the complex
interactions among human physiology,
work, and rest times. In the absence of
such a model, the interaction of these
factors would be very difficult to
specify.
For example, if a fatigue model
identified a particular type of work
schedule that would benefit from fatigue
mitigation, the railroad may discover
underlying systems issues and factors
(e.g., inadequate rest facilities, lack of
napping opportunities) that not only
contribute to fatigue-related risks on
that work schedule, but also on other
schedules. The use of fatigue modeling
in this way provides railroads with a
method for systematically identifying
and addressing the overall underlying
system risks—not just the risks for a
given work schedule.
30 The Window of Circadian Low is the time
between 2:00 a.m. and 6:00 a.m. where individuals
are normally adapted to sleep and performance of
tasks during this period may be degraded. See
Advisory Circular 120–100, Basics of Aviation
Fatigue, 06/07/10, U.S. Department of
Transportation.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
3. Prioritizing Risks and Implementing
Mitigation
Risk assessment processes must
include a method for determining which
risks most urgently require mitigation,
which could be addressed at a later
time, and which are minor enough that
simply monitoring the hazard would be
E:\FR\FM\22DEP1.SGM
22DEP1
EP22DE20.001
jbell on DSKJLSW7X2PROD with PROPOSALS
83492
jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
sufficient. Methods commonly used in
Safety Management Systems include,
but are not limited to, ranking all risks
based on their risk score, or setting a
risk tolerance threshold. If the risk
assessment process includes a risk
tolerance threshold, hazards whose
associated risk is above that threshold
should be addressed; those with risk
below the threshold need not be
mitigated, but should be monitored for
change. If a risk tolerance threshold is
not used, the risks should be tackled in
whatever priority order is established
during the risk assessment. Once the
assessment of risks associated with
fatigue hazards has been completed, as
part of their FRMP, railroads must
develop and implement mitigations to
reduce as many of those risks as
possible.
Based on an analysis of the factors
that lead to fatigue and practical
mitigation alternatives, one or more
mitigation options may be applied to
reduce fatigue associated with specific
schedules or situations. Risk mitigations
are changes to the way things are done,
or to the conditions under which things
are done, that can reduce either the
likelihood or the severity of a hazard.
Examples of mitigations range from
small actions, such as replacing a faded
sign to improve visibility, to very large
interventions, such as a system-wide
rule change or technology
implementation and associated training.
The mitigations selected must be
tailored to address at least one of the
risks assessed. Railroads should,
however, be alert to potential
unintended consequences of
mitigations, and be careful to select
mitigations that minimize the
possibility of inadvertently increasing
other risks.
There are many ways railroads can
mitigate the specific risk types that are
required under the RSIA as part of an
FRMP to be considered for mitigation.
Below are some examples of how a
railroad may mitigate these fatigue risks.
If the risk assessment shows that
fatigue risks to the population of safetyrelated railroad employees associated
with general health and medical
conditions meet the railroad’s
established criteria for requiring
mitigation, there are several approaches
that can be taken. The railroad can
establish new policies, such as those
requiring periodic screening for specific
medical conditions. The railroad can
establish practices (e.g., exercise breaks
or making healthy foods more available)
that encourage greater general health
and fitness to reduce the likelihood of
sleep apnea. The railroad can also take
steps to increase awareness of medical
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
conditions that affect alertness. This can
be accomplished by providing
information about the specific medical
condition, its risk factors, prevalence,
and how to recognize symptoms, or by
identifying when to seek treatment, how
to obtain a diagnosis, and treatment
options.
Information relevant to determining
when to seek treatment can include the
time of onset, duration of symptoms,
related health factors, comorbid
conditions, and observations from the
employee or family. Observation of
these factors can be helpful in
distinguishing a condition such as
transient insomnia, which often resolves
on its own, from chronic insomnia,
which frequently requires medical
treatment. Railroads could consider
informing their safety-related employees
that information from family members
may provide insight into a sleep
disorder of which an employee may
otherwise be unaware.
Railroads can collect information
regarding the medical professionals
involved in diagnosis. For some
disorders, this may only involve an
individual’s primary care physician.
Other disorders may require
consultation from a neurologist, sleep
specialist, cognitive behavioral
therapist, or other medical
professionals. In addition, it may be
helpful to list or describe the diagnostic
tests involved and the typical time
required to obtain diagnosis. For
example, a diagnosis of obstructive
sleep apnea may require a sleep study
such as a polysomnography, which
generally requires an individual to
spend the night in a sleep center.
Lastly, treatment options could be
discussed. For some sleep disorders,
behavioral modifications or lifestyle
changes, such as weight loss, may be
sufficient to address the medical
condition. Other medical conditions
may require breathing assistance via
continuous positive airway pressure,
medical devices (such as night guards or
mandibular advancing devices), or
medication.
Sometimes scheduling issues affect
the opportunities of safety-related
railroad employees to obtain sufficient
quality and quantity of sleep. When the
risk assessment determines that the
risks associated with those schedules
meets the railroad’s established criteria
for requiring mitigation, methods for
mitigating those risks could include: (1)
Identifying methods to minimize
accidents and incidents that occur as a
result of working at times when
scientific and medical research has
shown that increased fatigue levels
disrupt employees’ circadian rhythm;
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
83493
and (2) developing and implementing
alertness strategies, such as policies on
napping, to address acute drowsiness
and fatigue while an employee is on
duty.
Alertness strategies are generally
classified into two broad categories:
Preventative and operational.
Preventative countermeasures are
designed to minimize sleep loss and
reduce the disruption to circadian
cycles. The benefits of preventative
countermeasures can be long-lasting.31
Operational countermeasures are
designed to enhance alertness and task
performance and are generally only
effective for a short time.32
Work schedule systems are typically
designed to organize the timing and
structure of work to maximize efficiency
and productivity, and seldom are these
schedules designed to minimize the
safety risks associated with work
schedules that are incompatible with
human biological limitations, such as
circadian rhythm.33 Fatigue risk in an
industry that operates 24 hours a day, 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 offduty between periods of work. Other
significant factors that influence the
level of fatigue risk include the time of
day that an employee works, the
number of consecutive hours worked,
direction and frequency of schedule
rotation, the number of consecutive
days that an employee works, amount of
sleep, and sleep quality. In addition,
individual factors such as sleep
disorders, age, and ‘‘morningness/
eveningness’’ as well as natural
circadian rhythms and environmental
and social factors may affect one’s
31 Preventative countermeasures include:
Adequate sleep/minimizing sleep loss, strategic
napping at times such as before working or during
an interim release period, good sleep habits/
environment to maximize opportunities for good
quality sleep, limiting work schedule modification/
maximizing schedule predictability, diet, exercise,
fatigue education, model-based schedule
optimization/innovative scheduling and staffing
practices, and opportunities to identify, diagnose,
and treat sleep disorders.
32 Operational countermeasures include:
Alertness aids including, workplace napping, split
sleep, rest breaks, self and peer monitoring, mental
stimulation, worker status alerting or monitoring
technologies, strategies for shifting an employee’s
biological clock, bursts of physical activity,
increasing the number of consecutive hours of offduty rest, during which an employee receives no
communication from the employing railroad’s
managers, supervisors, officers, or agents, and
avoiding abrupt changes in rest cycles for
employees by improving schedule predictability.
33 Raslear, T.G., Gertler, J., & DiFiore, A., Work
schedules, sleep, fatigue, and accidents in the US
railroad industry, Fatigue: Biomedicine, Health &
Behavior, 1, 99–115 (2013), available at: https://
www.fra.dot.gov/eLib/details/L04272.
E:\FR\FM\22DEP1.SGM
22DEP1
83494
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
fatigue level and alertness.34 Developing
work schedules that reduce the risks of
fatigue as part of a systematic FRMP
may help a railroad balance its
productivity and safety needs.
4. Summary of the Work of the FRMP
Working Group’s Task Forces
The FRMP Working Group’s Task
Forces extensively discussed mitigation
of identified fatigue risks in the areas set
forth in the RSIA.
jbell on DSKJLSW7X2PROD with PROPOSALS
a. The Education and Training Task
Force
The Education and Training Task
Force focused on the content and
dissemination of training on the fatigue
issues specific to the railroad industry.
The Education and Training Task Force
began by preparing a document
summarizing existing fatigue training
and education materials and
highlighting the diversity of the
materials and some of the major topics
they covered. The document also
includes information on other fatigue
educational resources, including The
Railroaders’ Guide to Healthy Sleep
website, existing FRA fatigue-related
publications, other rail-related fatigue
training and educational resources, and
general fatigue resources.
The Education and Training Task
Force also created the ‘‘Training
Topics’’ document, which identifies
appropriate fatigue-related training
topics. The ‘‘Training Topics’’
document covers four major categories:
Introductory fatigue training, off-duty
fatigue issues, preventative strategies,
and operational strategies. The Task
Force members agreed on the content of
most of the sections and subsections. A
few topics represented major areas of
concern for both railroad labor and
railroad management.
Both labor and management members
of the Task Force asked that a section
on the role of individual differences in
fatigue related to vulnerability,
countermeasure efficacy, and
performance be included in the
‘‘Training Topics’’ document as a topic
for introductory fatigue training.
The Education and Training Task
Force thoroughly discussed the
‘‘Training Topics’’ section on shiftwork
as a cause of fatigue. Much of this
discussion centered on predictability
issues inherent in this type of work
schedule and differing perspectives on
how to address predictability.
¨ stberg, O., A self-assessment
34 Horne, J.A., & O
questionnaire to determine morningnesseveningness in human circadian rhythms,
International Journal of Chronobiology, 4, 97–110
(1976).
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
Members of the Education and
Training Task Force representing labor
organizations also expressed major
concerns with the ‘‘Training Topics’’
section on commuting. Specifically,
labor did not feel the commuting section
adequately captured the extended
commuting requirements of some
employees (e.g., maintenance-of-way),
and the concern that extended
commuting is a required activity that
contributes to employee fatigue, even
though it occurs during off-duty hours.
In 2019, FRA released a report
examining the relationship between
accidents and incidents involving
maintenance-of-way employees and
their work schedules to determine the
role of fatigue in such accidents and
incidents.35 This report may help
address some of the concerns raised by
the Education and Training Task Force
regarding fatigue issues experienced by
these employees.
The section of the Training Topics
document on scheduling had the most
areas of concern and protracted
discussion, particularly on the issue of
schedule predictability.
The Task Force discussed that a
fatigue education and training program
must have the following characteristics
to be effective: (1) The program must be
technically correct, reflecting current
scientific understanding of the issue
being addressed; (2) information must
be meaningful and useful to the
intended audience; (3) the materials
must be disseminated appropriately;
and (4) the program’s impact must be
evaluated. Furthermore, the Task Force
discussed the following basic elements
of any fatigue training and education
program.
(1) Fatigue definitions: Fatigue is a
complex state that is characterized by a
lack of alertness and reduced mental
and physical performance, often
accompanied by drowsiness.36
Railroads may also wish to provide
other definitions that will be used
throughout the training and education
program, including those that are
unique to the railroad.
(2) Signs and symptoms of fatigue:
Although signs and symptoms of fatigue
can vary among individuals in both
their presence and magnitude, it is
useful to review common signs and
symptoms of fatigue. These should not
35 Kumagai, J.K. & Harnett, M., Data analysis for
maintenance-of-way worker fatigue, Washington,
DC: Federal Railroad Administration (2019),
retrieved from: https://www.fra.dot.gov/eLib/
Details/L1984.3.
36 United States Department of Transportation,
Partnering in Safety: Managing Fatigue: A
Significant Problem Affecting Safety, Security, and
Productivity, p. 5 (1999).
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
be limited to physiological symptoms
such as excessive blinking, yawning, or
physiological discomfort, but also
should include fatigue-related
performance decrements such as
increased reaction time.
(3) Causes of fatigue: Although
individual differences play a significant
role in how an individual will react to
different causes of or risk factors for
fatigue, some of the main causes of
fatigue should be highlighted. These
include: Amount of sleep, quality of
sleep, amount of time since last sleep
(i.e., number of continuous hours
awake), time of day (circadian rhythm),
workload and time on task, amount of
recuperative time between wakeful
episodes, sleep disorders and co-morbid
conditions (e.g., stress, depression,
anxiety, post-traumatic stress disorder),
general health, and family factors
(including caregiver responsibilities). In
addition, employees may provide
anecdotal information of fatigue factors
for a particular job and a railroad may
consider this information in addressing
causes of fatigue in its training program.
(4) Circadian rhythm: An individual’s
circadian rhythm dictates when he or
she will be most alert and at what times
he or she will feel the most fatigued.
Employees should have a general
understanding of the circadian rhythm,
how it affects fatigue levels, how it is
impacted by the light-dark cycle, and its
role in such processes as body
temperature, brain wave activity, and
other biological functions.
(5) Individual differences: As part of
a fatigue training and education
program, the role individual differences
play in fatigue should be understood.
For example, there is a great deal of
variability of sleep requirements among
individuals. Some individuals may feel
rested and alert after as few as 5 hours
of sleep, while others may require 10 or
more hours of sleep to feel rested and
alert. These sleep requirements vary due
to such factors as the exact phase and
amplitude of an individual’s circadian
rhythm, activity level, age, fatigue
sensitivity, and health. Furthermore,
some individuals may be more sensitive
to the effects of fatigue, and efficacy of
countermeasures may vary depending
on the individual.
(6) Fatigue misconceptions: There are
some misconceptions associated with
fatigue. Individuals are often poor
judges of both their own fatigue level
and the efficacy of fatigue
countermeasures. This is an opportunity
to debunk certain ineffective
countermeasure myths and also to
discuss the limitations associated with
effective countermeasures. Certain
stereotypes regarding fatigue can be
E:\FR\FM\22DEP1.SGM
22DEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
addressed as well. For example,
experiencing fatigue does not
automatically indicate weakness or a
lack of motivation.
(7) Shiftwork: Many railroads operate
24 hours a day, 7 days a week, 365 days
a year. This operational schedule
requires employees to work different
shifts. Passenger and freight operations,
different railroad classes, and different
jobs will all have different shiftwork
needs. Some jobs will work a dedicated
shift, while other jobs can be
unpredictable and be based on a variety
of factors including train schedules,
employee availability, and other needs.
When discussing shiftwork, training
content will be influenced by a
particular railroad’s operations and
collective bargaining agreements.
However, discussions of shiftwork
should provide information on the
fatigue risks associated with night work,
split shifts, consecutive shifts worked,
and working different shifts throughout
the week. This information should
include strategies to cope with those
shifts occurring during circadian lows.
(8) Illnesses and stress: Although it
would be impractical to discuss the
impact of every possible illness and
stressor on fatigue, it nevertheless is
worthwhile to discuss how illnesses and
stress in general can impact sleep
quality. Furthermore, some stressors
and illnesses can lead to sensitization to
fatigue-inducing factors.
(9) Consequences of fatigue: The
potential consequences of fatigue are
numerous and varied. However, from a
training perspective, the key
information to convey is the
relationship between fatigue and
performance. Although individual
differences will influence how fatigue
affects performance, in general, as
fatigue levels increase, task performance
decreases, and this decrease in
performance increases accident risk.
(10) Introduction to FRA FRMP
regulations: A railroad may choose to
provide an overview of FRA regulations
regarding the requirements for FRMPs.
This overview can highlight any
changes to operations as a result of the
promulgation of the FRMP regulation as
well as highlight the key requirements
that all FRMPs must contain.
(11) Railroad FRMP: Following
information on FRA FRMP regulations,
a railroad may wish to take time to
familiarize its employees with its own
FRMP. Railroads should highlight any
new policies or procedures associated
with the creation of the FRMP as well
as detail any changes or benefits that
have resulted from its implementation.
A railroad may also wish to provide
employees with a mechanism to provide
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
feedback about the FRMP as part of the
railroad’s own periodic review process.
In addition, a railroad should
familiarize its employees with its
procedures and processes for reporting
fatigue levels and fatigue mark-off
policies.
As provided in the RSIA, any training
and education program should be based
on a foundation of the most current
medical and scientific research; 37 FRA
interprets this to include relevant
statistical information, to the extent
possible. FRA notes that resources that
provide information on the prevalence
of sleep disorders, the number of
Americans not obtaining adequate sleep,
and the mental and physical
implications that result are available
and updated annually.38 Sleep research
collected from and related to railroad
employees of various crafts is also
available.
The Education and Training Task
Force also identified training topics
addressing off-duty fatigue issues and
preventative strategies. These included
common sleep disorders, physiological
versus subjective assessments of fatigue,
lifestyle factors, nutrition and
hydration, exercise, substance use, the
home environment, and commuting.
The Task Force also created a
‘‘Dissemination Strategies’’ document
outlining steps railroads should
37 49
U.S.C. 20156(f)(3)(A).
resources include:
Calabrese, C., Mejia, B., McInnis, C.A., France,
M., Nadler, E., & Raslear, T.G., Time of day effects
on railroad roadway worker injury risk, Journal of
Safety Research, 61, pp. 53–64 (2017).
Dorrian, J., Baulk, S.D., & Dawson, D., Work
hours, workload, sleep and fatigue in Australian
Rail Industry employees, Applied Ergonomics,
42(2), pp. 202–209 (2011).
Dorrian, J., Hussey, F., & Dawson, D., Train
driving efficiency and safety: Examining the cost of
fatigue, Journal of Sleep Research, 16, pp. 1–11
(2007).
Gertler, J., Difiore, A., & Raslear, T., Fatigue
Status of the U.S. Railroad Industry, Washington,
DC: U.S. Department of Transportation, Federal
Railroad Administration (2013).
Gertler, J., & Viale, A., Work Schedules and Sleep
Patterns of Railroad Maintenance of Way Workers,
Washington, DC: U.S. Department of
Transportation, Federal Railroad Administration
(2006).
Kumagai, J. & Harnett, M. Data Analysis for
Maintenance-of-Way Worker Fatigue (2019),
available at: https://www.fra.dot.gov/eLib/details/
L19843#p1_z50_gD_lRT.
Sussman, D., & Coplen, M., Fatigue and Alertness
in the United States Railroad Industry Part 1: The
Nature of the Problem, Transportation Research
Part F: Traffic Psychology and Behaviour, 3(4), pp.
211–220 (2000).
Raslear, T.G., Gertler, J., & DiFiore, A., Work
schedules, sleep, fatigue, and accidents in the US
railroad industry, Fatigue: Biomedicine, Health &
Behavior, 1, pp. 99–115 (2013), available at: https://
www.fra.dot.gov/eLib/details/L04272.
https://www.cdc.gov/sleep/ and
https://www.sleepfoundation.org./
38 Example
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
83495
consider when choosing delivery
approaches for fatigue education and
training, and suggesting methods
railroads could use for successful
evaluation of a fatigue education and
training program. The ‘‘Dissemination
Strategies’’ document identifies and
discusses the following ten elements of
an effective dissemination and
evaluation plan listed below.
1. Goals: The first step in an effective
dissemination and evaluation plan is
determining and documenting the goals
for the training and education program.
The primary question to ask at this step
is: What is the desired outcome of the
training and education program?
Different railroads may have different
training goals and these goals will help
shape how information is presented to
employees.
2. Objectives: When considering
objectives of a fatigue training and
education program, determine specific
areas of accomplishment for each goal.
Once those areas have been established,
the next step is to determine what will
be required to measure success.
3. Measuring Success: There is no
single ‘‘correct’’ way to measure
success. However, any measure of
success should indicate if the material
reached the intended audience, was
understood, and had a positive effect.
Evaluation strategies may be direct,
such as administering a quiz to test
knowledge of a particular topic, or
indirect, such as looking at safety
culture change as a result of training.
Neither method is superior to the other,
but multiple evaluation strategies may
provide a more comprehensive
understanding of program efficacy.
4. Employees Covered: An effective
dissemination and evaluation plan
should identify the employees covered
by the different elements of a training
and education program. There may be
some elements of a program that apply
to all railroad employees, while other
elements may only apply to a particular
craft, shift, or schedule type. At this
stage, thought should also be given to
any special needs a covered group may
have. For example, if a large percentage
of a covered group does not have email
access, disseminating information via
email would be neither practical nor
effective.
5. Content: Perhaps the most
important element to consider when
developing a dissemination and
evaluation plan is the content to be
presented. At this step, proposed fatigue
training and education content should
be reviewed to make sure it is accurate
and relevant to the covered groups.
6. Source: Care should be given to
ensure that information presented
E:\FR\FM\22DEP1.SGM
22DEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
83496
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
comes from credible and trusted
sources.
7. Presentation Medium: At this stage
in the process, the program designer
should determine the most effective
methods to present different elements of
the fatigue training and education
program. Some information may be best
suited for in-person training while other
information might be best conveyed
through publications. Some
presentation media to consider include
in-class training, informational videos,
handouts, peer-to-peer efforts, job
briefings, and conferences or other
meetings. Depending on the covered
group’s access to the internet, Web
resources such as Web-based training,
emails, websites, blogs, and social
media could also be used. The
preceding examples are not an
exhaustive list, and each railroad will
need to tailor its presentation media
based on the identified goals, objectives,
and employees to be covered.
8. Access: Fatigue training and
education should be an ongoing process.
Therefore, it is important that
employees have easy access to
information. Employees should have a
way to revisit information that was
previously presented. Examples of
making information accessible could
include providing access to fatigue
presentations on the company Intranet
after an initial classroom presentation,
handouts after a one-time job briefing,
or posters that highlight key points.
9. Availability: At this step, a railroad
developing a fatigue training and
education program should consider
strategies for promoting awareness of
the availability of training and
educational materials.
10. Challenges: The challenges related
to effectively disseminating and
evaluating information as part of a
fatigue training and education program
will vary greatly. These challenges
could include a variety of issues, such
as difficulty reaching a particular group,
lack of resources to present a topic as
originally planned, or even glitches in
Web technology. Determining how best
to deliver information in a manner that
is understandable, appropriate, and
engaging to different employee groups
will present its own set of challenges. At
this stage, potential challenges should
be identified as well as solutions for
overcoming or mitigating these
challenges.
Finally, the Education and Training
Task Force created a document that
highlights and explains two general
categories of fatigue countermeasures
(preventative and operational), and
provides examples of each. Preventative
countermeasures, as the name suggests,
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
are countermeasures designed to
minimize sleep loss and reduce the
disruption of circadian cycles and the
benefits of preventative
countermeasures can be long-lasting.
Operational countermeasures are
designed to enhance alertness and task
performance while on duty and are
generally only effective for a short time.
b. Scheduling Task Force
The FRMP Working Group’s
Scheduling Task Force discussed the
scheduling issues that affect fatigue.
However, several issues prevented
agreement on scheduling including: (1)
The need to differentiate between
employees covered by HOS limitations
(covered service employees) and
employees not covered by such
requirements; (2) the need for waivers
and/or pilot projects to implement
scheduling practices that might conflict
with existing HOS limitations; (3)
disagreement on whether using
biomathematical fatigue models is
appropriate for freight operations; (4)
potential conflict with existing
collective bargaining agreements; and
(5) how much emphasis should be
placed on an employee’s work schedule
predictability. The Scheduling Task
Force did not produce a document.
c. Infrastructure and Environment Task
Force
The Infrastructure and Environment
Task Force provided guidelines it
suggested railroads should consider to
mitigate fatigue when employees are
involved in emergency work. The Task
Force interpreted an emergency based
on the nonapplication language in the
HOS laws at 49 U.S.C. 21102(a).
Specifically, the ‘‘Emergency Work’’
document provides that an emergency
for purposes of the guidelines is defined
in 49 U.S.C. 21102(a)(1)–(4), which
states that the HOS requirements do not
apply to situations involving a casualty,
an unavoidable accident, an act of God,
or a delay resulting from a cause
unknown and unforeseeable to a
railroad carrier or its officer or agent in
charge of the employee when the
employee left a terminal.
This definition incorporates a wide
variety of emergency situations,
including those referred to in section
20156(f)(3)(C), ‘‘derailments and natural
disasters, or engagement in other
intensive working conditions.’’ The
employees responsible for responding to
these emergency situations may include
employees performing functions not
covered by HOS requirements, and the
‘‘Emergency Work’’ document makes
clear that the Infrastructure and
Environment Task Force intended it to
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
apply to these employees as well. For
example, the ‘‘Emergency Work’’
document includes provisions such as
relief assignments when an emergency
is anticipated to extend more than 16
hours, and provisions to offer relief
lodging for employees both between
shifts of extended work at an emergency
location, and, if necessary, for an
employee to rest before commuting
home after an extended period of
emergency service. Such provisions
would provide some protection against
fatigue for those employees not subject
to HOS requirements and, if the
emergency situation resulted in the
nonapplication of the HOS laws, for
employees performing service normally
covered by the HOS limitations.
The Task Force also created two
documents; ‘‘Accommodations’’ and
‘‘Dispute Resolutions,’’ focused on
mitigating fatigue related to issues at
lodging facilities. The first document,
‘‘Accommodations,’’ includes
guidelines for accommodations where
employees rest during off-duty periods,
and the second document, ‘‘Dispute
Resolutions,’’ provides dispute
resolution procedures for issues arising
with lodging facilities that interfere with
an employee’s ability to rest.39 The Task
Force made clear that the
‘‘Accommodations’’ and ‘‘Dispute
Resolution’’ documents were intended
to apply to all employee lodging, even
lodging that is not ‘‘railroad provided’’
(e.g., commercial hotels).
The Task Force indicated that the
accommodations guidelines are
intended to provide elements for
discussion during the required
consultation between management and
labor about a railroad’s FRMP, rather
than to provide minimum standards for
lodging facilities. The Task Force did
not expect every lodging facility would
meet all of the listed criteria. The Task
Force agreed that while the listed
elements were desirable, they may not
be possible at all locations, and, in some
cases, collective bargaining agreements
might provide for other arrangements.
For example, while the guidelines
recommend a single occupancy room,
some existing labor agreements may
provide for four employees to a room.
Similarly, while a full or double bed
39 Under 49 U.S.C. 21106, a railroad may provide
sleeping quarters for employees, and any
individuals employed to maintain the right-of-way
of a railroad carrier, only if the sleeping quarters are
clean, safe, and sanitary, give those employees and
individuals an opportunity for rest free from the
interruptions caused by noise under the control of
the carrier, and provide indoor toilet facilities,
potable water, and other features to protect the
health of employees. Further, 49 CFR part 228,
subpart C, provides additional requirements for
railroad-provided sleeping quarters.
E:\FR\FM\22DEP1.SGM
22DEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
may be preferred, there may be locations
where this is not an option and only
single beds are available at the only
available lodging facility.
The ‘‘Dispute Resolution’’ document
recognizes that employees will first seek
to resolve issues at lodging facilities
with on-site staff, such as the front desk
at a hotel. The ‘‘Dispute Resolution’’
document recommends that FRMP
plans include a railroad contact with
authority over lodging decisions and
require that contact to make a good faith
effort to resolve lodging issues in a
timely manner so the employee can
obtain adequate rest before returning to
duty. For example, if the heat is not
working in a given room, the lodging
facility will likely move the employee to
a different room. However, if there were
no other rooms available, or if the issue
were something like electric power
being out at an entire facility, the
railroad contact should become
involved to assist the employee in
finding alternate lodging.
The ‘‘Dispute Resolution’’ document
provides that FRMP plans should
contain a dispute resolution process
covering sleeping accommodations
provided by or through the railroad. It
should be noted that this process is not
intended to supplant or modify the
requirements established by 49 CFR
228.333, Remedial action, as part of the
Camp Car regulation. The Task Force
suggested that any FRMP dispute
resolution process should be designed
to address problems associated with the
sleeping accommodations that would
interfere with an employee obtaining
adequate rest. As part of the FRMP plan,
the Task Force recommended that
railroads identify a protocol for
contacting a railroad representative
should resolution with a lodging facility
fail.
The Task Force identified parameters
it recommended employer-provided
lodging should meet to the extent
practicable. FRA notes that interim rest
facilities provided by passenger train
operators under 49 CFR 228.409,
Requirements for railroad-provided
employee sleeping quarters during
interim releases and other periods
available for rest within a duty tour, are
subject to the requirements of that
section. As such, the Task Force’s
suggested parameters are not applicable
to interim rest facilities under § 228.409.
In addition, local labor agreements may
supersede or supplement some of the
elements of these parameters. The
parameters the ‘‘Dispute Resolution’’
document identifies include structural
factors, availability of meal
accommodations, building safety and
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
security, and personal hygiene and
sanitation.
The Task Force ‘‘Dispute Resolution’’
document does not define ‘‘adequate
rest,’’ nor does it specify the conditions
at a lodging facility that would prevent
an employee from obtaining adequate
rest. Employees covered by HOS laws or
regulations would be required to receive
the amount of off-duty time provided
under the relevant laws or regulations.
For other employees, rest requirements
may depend on the situation, or may be
provided by a collective bargaining
agreement or other mechanism.
However, the Task Force ‘‘Dispute
Resolution’’ document suggests that if
an issue arises at a lodging facility that
interferes with an employee’s ability to
obtain rest, the employee should receive
the amount of rest he or she would have
had if the lodging issue had not
occurred. For example, if there are no
towels in the room when an employee
arrives, but the front desk promptly
brings towels upon request, this should
not hinder the employee’s ability to get
adequate rest. On the other hand, if an
employee is provided a room with a
broken bed, and it takes five hours to
locate another room or bed, the railroad
may need to adjust the time an
employee is required to return to duty
so the employee can obtain adequate
rest.
Lastly, as part of its discussions, the
Task Force identified circumstances
when employees may have to work
under excessive fatigue conditions. In
these instances, when, despite best
efforts, employees must work under
conditions identified as having an
excessive risk for fatigue, the Task Force
discussed that the specific risks and
hazards associated with operations
under excessive fatigue should be
identified. Once identified, an excessive
fatigue protocol can be implemented for
employees at risk. The Task Force
suggested that railroads may wish to
consider formalizing these protocols
into a Workplace Fatigue Policy. They
also suggested that a fatigue policy may
be an effective way to communicate
how operations will be handled when
employees are working under fatigued
conditions. This policy could be systemwide or site or craft specific. A fatigue
policy may include information about:
(1) Roles and responsibilities of
employees and supervisors when
working under excessive fatigue
conditions; (2) maximum shift length;
(3) control measures for specific jobs,
tasks, or operations; (4) fatigue selfassessment checklists; (5) identification
of errors that are more likely to happen
when fatigued and procedures to reduce
the likelihood of these errors; (6)
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
83497
procedures for managing employees
working under excessive fatigue
conditions; (7) procedures for reporting
potential hazards and risks; and (8)
procedures for when an employee is too
fatigued to continue work (e.g.,
temporary work assignment).
5. Tracking Performance
As required in 49 CFR
270.103(p)(1)(viii) and 49 CFR
271.105(c)(3), FRA proposes that each
railroad must develop a system to track
identified risks and mitigation strategies
within the FRMP. Railroads must
continually monitor all identified risks,
not just risks that are currently being
targeted for mitigation. As a railroad’s
FRMP matures, mitigation strategies are
implemented, and operations change,
risks will also change. A railroad may
find that certain risks have been
essentially eliminated, while others may
have been significantly reduced, and
previously undetected risks may
emerge. As risks develop, the system
must be able to incorporate these newly
identified risks into their processes.
Evaluation of fatigue-related
information might show that some
mitigation strategies do not meet
expectations for effectively reducing
fatigue. It could also show that changes
in schedules, the addition of new
technologies, turnover in the workforce,
added demands for service, and other
operational changes could present new
fatigue hazards or change the risks
associated with hazards already known.
When either of these circumstances
arises, the fatigue risk landscape is
altered, and the railroad should again
use the risk factor analysis processes to
address those changes.
For risks being mitigated, the railroad
should note the date the mitigation
strategy was implemented and track the
progress and success of the mitigation
strategy over time. Risks that are not
mitigated or have not been mitigated to
the extent desired should be evaluated
for changes in mitigation strategies, as
appropriate. Risks that have been
successfully eliminated should be
noted, and new risks that have emerged
should be assessed for probability and
severity and incorporated into the
railroad’s risk assessment catalog.
Existing risks should also be reviewed
for changes in probability and severity.
As a railroad reviews its fatigue-related
risks and risk tolerance, the risks to be
mitigated and the types of mitigation
strategy to be used may change over
time. Evaluation might also show that
some portion of the FRMP is not being
implemented as designed. It could also
identify aspects of the program that,
even though they are working as
E:\FR\FM\22DEP1.SGM
22DEP1
83498
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
designed, are not effective. In any of
these instances, the evaluation could
lead to program improvements.
Finally, consistent with 49 CFR
271.107, an effective FRMP includes
feedback mechanisms and regular
information updates about the system to
all affected employees to encourage
cooperative participation in the FRMP.
jbell on DSKJLSW7X2PROD with PROPOSALS
V. Section-by-Section Analysis
FRA proposes to amend 49 CFR part
270 (SSP) by adding a new subpart E,
and to amend 49 CFR part 271 (RRP) by
adding new subpart G. As proposed,
each of these new subparts would be
titled ‘‘Fatigue Risk Management
Programs;’’ substantively identical; and
set forth the requirements for railroads
to develop and implement FRMPs as
part of their SSPs or RRPs. FRA also
proposes to amend: § 270.103(a)(1) to
ensure a railroad’s SSP plan includes
subpart E, by replacing the word
‘‘section’’ with the word ‘‘part’’;
§ 271.101(a) by adding an FRMP to the
list of required elements of an RRP; and
§ 271.201, to include an FRMP plan as
a required component of an RRP plan.
The new subparts would require each
railroad subject to part 270 or part 271
(covered railroads) to establish and
implement an FRMP that is supported
by an FRA-approved written FRMP
plan, as a component of a railroad’s SSP
or RRP. This proposed rule would also
require covered railroads to review their
FRMP annually, and if necessary, make
FRA-approved updates to their plans.
FRA is proposing this rule in its effort
to improve rail safety continually and to
satisfy the statutory mandate in 49
U.S.C. 20156. FRA seeks comments on
all aspects of the proposed rule.
Sections 270.401 and 271.601—
Definitions
Proposed §§ 270.401 and 271.601
contain definitions for terms used in
this NPRM. The sections include
proposed definitions for the terms:
Contributing factor, fatigue, fatigue-risk
analysis, FRMP, FRMP plan, and safetyrelated railroad employee. The proposed
definitions are intended to clarify the
meaning of important terms used in this
proposed rule and to minimize potential
misinterpretation of the regulations.
FRA is proposing to define
‘‘contributing factor’’ as a circumstance
or condition that helps cause a result
(i.e., fatigue). Contributing factors do not
necessarily cause fatigue by themselves,
but they can increase the likelihood
fatigue will occur, or can increase the
severity of fatigue when it does occur.
Eliminating or mitigating contributing
factors may not eliminate fatigue and
associated risk, but doing so can
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
moderate the frequency with which it
occurs, or reduce the severity of fatigue
consequences.
While the RSIA did not define
‘‘fatigue,’’ FRA is proposing to define
‘‘fatigue’’ consistent with the DOT
operational definition 40 of the term, as
‘‘a complex state characterized by a lack
of alertness and reduced mental and
physical performance, often
accompanied by drowsiness.’’
FRA proposes to define ‘‘fatigue risk
analysis’’ as a risk-based analysis that is
focused on the hazards and risks
associated with fatigue. In 49 CFR
271.103(b), a covered railroad is
required to conduct a risk-based hazard
analysis of its operations that includes:
(1) Identification of hazards; and (2) a
calculation of risk by determining and
analyzing the likelihood and severity of
potential events associated with those
hazards. See also 49 CFR 270.5,
definition of risk based hazard
management. FRA proposes to define
FRMP as fatigue risk management
program, and the FRMP plan is the
documentation that describes the
processes and procedures a railroad
uses to implement its FRMP.
Section 20156(f)(1) requires a railroad
to have a fatigue management plan
designed to reduce the fatigue
experienced by ‘‘safety-related
employees.’’ FRA proposes to define
‘‘safety-related railroad employee’’
consistent with the definition of the
term in 49 U.S.C. 20102. As proposed,
‘‘safety-related railroad employee’’
would mean a person: (1) Subject to 49
U.S.C. 21103, 21104, or 21105 or 49 CFR
part 228 subpart F (the hours of service
laws and regulations); (2) involved in
railroad operations, but not subject to
the hours of service laws and
regulations; (3) who inspects, installs,
repairs or maintains track, roadbed,
signal and communication systems, and
electric traction systems including a
roadway or railroad bridge worker; (4)
who is a hazmat employee as defined in
49 U.S.C. 5102(3); (5) who inspects,
repairs, or maintains locomotives,
passenger cars, or freight cars; or (6)
who is the employee of any person who
enters into a contractual relationship
with the railroad either to perform
significant safety-related services on the
railroad’s behalf or to utilize significant
safety-related services provided by the
railroad for railroad operations
purposes, if the person performs one of
the functions identified in paragraphs
(1) through (5).
40 United States Department of Transportation,
Partnering in Safety: Managing Fatigue: A
Significant Problem Affecting Safety, Security, and
Productivity, 1999; p. 5.
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
The SSP and RRP rules do not use the
term ‘‘safety-related employee’’ because
the RSIA does not limit the railroad
safety risk reduction requirement to
these employees. See 49 U.S.C.
20156(a)–(e). FRA requests comment on
whether the proposed definition of
‘‘safety-related employee’’ captures the
intended scope of Congress’s mandate
for fatigue management plans in Section
20156.
FRA requests public comment on
these proposed definitions and whether
other terms used in this proposal should
be defined.
Sections 270.403 and 271.603—Purpose
and Scope of a FRMP
Proposed §§ 270.403 and 271.603
explain the purpose and scope of the
proposed rule. As proposed, paragraph
(a) of each section states that the
purpose of the subparts is to require
railroads to develop and implement
FRMPs to improve railroad safety
through structured, proactive processes
and procedures to identify and mitigate
the risks associated with fatigue on their
employees.
Proposed paragraph (b) of these
sections address the scope of the
proposed rule and would require
railroads to develop their FRMPs to
reduce the fatigue of their safety-related
railroad employees and to reduce the
risk of railroad accidents, incidents,
injuries, and fatalities where the fatigue
of any of these employees is a
contributing factor.41 Proposed
paragraph (b) further requires each
railroad, in developing its FRMP, to
identify and evaluate, systematically,
the fatigue-related railroad safety
hazards and risks on its system,
determine the degree of risk associated
with each hazard, and manage those
risks to reduce the fatigue that its safetyrelated railroad employees experience.
This system-wide fatigue risk
identification and evaluation process
must account for the varying
circumstances of railroad operations on
different parts of its system. The
railroad would then be required to
employ in its FRMP the appropriately
identified fatigue risk mitigation
41 The RSIA requires railroads ‘‘to reduce the
likelihood of accidents, incidents, injuries, and
fatalities caused by fatigue.’’ Fatigue is a complex
and multifaceted condition with varying effects
among individuals; however, it is not always the
primary cause of an accident or incident. The
presence of fatigue can increase the likelihood of an
accident happening, or it can make the
consequences of an accident more severe. FRA uses
the term ‘‘contributing factor’’ to make clear that
railroads may choose mitigations that address either
the likelihood or the severity of an accident,
incident, injury, or fatality caused in part by fatigue.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
strategies to address those varying
circumstances.42
jbell on DSKJLSW7X2PROD with PROPOSALS
Sections 270.405 and 271.605—General
Requirements; Procedure
These proposed sections set forth the
rule’s general requirements. Paragraph
(a) in each of these sections would
require each railroad subject to either
RRP or SSP to establish and implement
an FRMP fully as part of its SSP or RRP.
As proposed, these paragraphs would
also require each railroad to develop
and implement an FRMP plan to
support its FRMP. A railroad’s FRMP
plan would be required to meet the
requirements of proposed § 270.409 or
271.609, and be approved by FRA under
the processes in subpart C of part 270
or subpart D of part 271. Consistent with
Section 20156’s mandate for railroads to
update their fatigue mitigation plans
periodically, proposed paragraph (a)
would also require railroads to update
their FRMP plans as necessary as part of
the annual, internal assessment of the
railroad’s SSP or RRP already required
by existing §§ 270.303 and 271.401. FRA
believes the annual internal assessment
should be sufficient for a railroad to
determine whether any aspect of its
FRMP plan requires updating. FRA
requests comments on whether the
annual internal assessment provides an
appropriate mechanism and timing for
evaluating and updating railroads’
FRMP plans.
Proposed paragraph (b) of these
sections would require a railroad to
explain in its FRMP plan its method for
analyzing fatigue risks and its
process(es) for implementing its FRMP.
Proposed paragraphs (c) of these
sections would require railroads to
submit their FRMP plans to FRA for
approval either within six months of
publication of a final rule in this
proceeding or within the applicable
existing timelines in parts 270 and 271
for filing SSP or RRP plans. These
paragraphs would also require railroads
to follow the existing processes in parts
270 and 271 for submitting updates of
their FRMP plans to FRA for approval.
Proposed paragraph (d) would require
FRA to approve or disapprove railroads’
FRMP plans (and any updates) under
the existing approval processes in parts
270 and 271 applicable to FRA approval
of railroad SSP plans and RRP plans.
Sections 270.407 and 271.607—
Requirements for an FRMP
Proposed §§ 270.407 and 271.607 set
forth the proposed requirements for
railroads’ FRMPs. As proposed,
paragraph (a) of these sections sets forth
42 See
49 CFR 270.407(c) and 271.607(c).
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
the general requirement that a railroad
subject to part 270 or 271 would have
to establish and implement an FRMP
that meets certain requirements.
Proposed paragraph (b) of these
sections contains the minimum
requirements for the fatigue-risk
analysis part of a railroad’s FRMP.
These paragraphs specify that a
railroad’s fatigue-risk analysis must
include identification of fatigue-related
railroad safety hazards, assessment of
the risks associated with those hazards,
and prioritization of those risks for
mitigation. The proposed paragraph also
requires that the fatigue risk analysis
consider, at a minimum, three categories
of risk factors:
(1) General health and medical
conditions that can affect the fatigue
levels of safety-related railroad
employees;
(2) scheduling issues that can affect
the opportunities of safety-related
railroad employees to obtain sufficient
quality and quantity of sleep; and
(3) characteristics of each job category
worked by safety-related railroad
employees that can affect the fatigue
levels and risk for fatigue of safetyrelated railroad employees.
Railroads are not limited to
consideration of these three types of risk
factors in their FRMPs and FRA
encourages railroads to consider other
relevant factors based on developments
in fatigue science. The types of
principles and processes that inform a
fatigue-risk analysis are well-established
and, as discussed in detail above and in
the preamble of the SSP and RRP
proposed rules, have been adopted into
industry standards and described in
detail in other written resources. See 77
FR 55375 and 80 FR 10953. For
example, as discussed in those
preambles, MIL–STD–882,43 APTA’s
Manual for the Development of System
Safety Program Plans for Commuter
Railroads,44 and FRA’s Collision Hazard
Analysis Guide: Commuter and Intercity
Passenger Rail Service discuss how to
conduct risk analyses in detail.45 A
railroad subject to this part could use
any of these resources when developing
and conducting a fatigue-risk analysis.
FRA requests public comment as to
whether additional resources are
necessary to help railroads comply with
43 Department of Defense, Standard practice
system safety, (MIL–STD–882E) (2012), retrieved
from https://www.dau.edu/cop/armyesoh/
DAU%20Sponsored%20Documents/MIL-STD882E.pdf (last accessed on July 27, 2020).
44 https://www.trbtss.org/wp-content/uploads/
2016/03/APTA-Safety-Management-SystemManual.pdf (last accessed on July 27, 2020).
45 https://www.fra.dot.gov/eLib/Details/L03191
(last accessed on July 27, 2020).
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
83499
the requirements of this proposed
section and if so, what type of
additional resources would be
necessary.
Paragraph (c) of these sections would
require a railroad as part of its FRMP to
develop and implement mitigation
strategies that improve safety by
reducing the risk of railroad accidents,
incidents, injuries, and fatalities where
fatigue of any of its safety-related
railroad employees is a contributing
factor. These paragraphs state that as a
railroad develops and implements
mitigation strategies, it would be
required to consider, at a minimum, the
railroad’s policies, practices, and
communication. Paragraphs (c)(1)–(3)
describe each of these three areas of
consideration in more detail.
Paragraph (c)(1) would require
railroads to consider developing and
implementing policies to reduce the risk
of the exposure of its safety-related
railroad employees to fatigue-related
railroad safety hazards on its system.
Paragraph (c)(2) would require
railroads to consider developing and
implementing operational practices to
reduce the risk of the exposure of its
safety-related railroad employees to
fatigue-related railroad safety hazards
on its system.
Paragraph (c)(3) would require
railroads to consider developing and
implementing training, education, and
outreach methods to deliver fatiguerelated information effectively to its
safety-related railroad employees. At a
minimum, a railroad must consider the
need to include employee education
and training on the physiological and
human factors that affect fatigue and
strategies to reduce or mitigate the
effects of fatigue based on the most
current scientific and medical research
and literature. If a railroad chooses to
include these subjects in its training,
this training would supplement the
requirement in 49 CFR part 243 to
develop minimum training standards for
each occupational category that
includes a list of the Federal railroad
safety laws, regulations, and orders that
an employee is required to comply with
by adding employee fatigue education
and training topics that relate to
employee safety independent of any
regulatory or statutory requirements.
Paragraph (d) proposes requirements
for a railroad to develop and implement
procedures and processes for
monitoring and evaluating its FRMP.
Monitoring and evaluation are necessary
parts of a railroad’s FRMP; they enable
a railroad to determine whether the
FRMP is effectively reducing the
numbers and rates of railroad accidents,
E:\FR\FM\22DEP1.SGM
22DEP1
83500
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
incidents, injuries, and fatalities where
fatigue is a contributing factor.
Sections 270.409 and 271.609—
Requirements for a FRMP Plan
Proposed §§ 270.409 and 271.609
would require a railroad to adopt and
implement its FRMP through an FRMP
plan that meets certain requirements. As
proposed, paragraph (a) of these
sections would require railroads to
develop their FRMP plans in
consultation with directly-affected
employees and FRA would have to
approve a railroad’s FRMP. The existing
consultation and approval processes of
parts 270 and 271 would apply.
Proposed paragraph (b) would require
the FRMP plan to describe specific,
fatigue-related goals of the FRMP and
clear strategies for attaining those goals.
Proposed paragraph (c) addresses the
methods a railroad uses to develop its
FRMP plan. Proposed paragraph (c)(1)
would require an FRMP plan to describe
the railroad’s method(s) for conducting
the fatigue-risk analysis as part of its
FRMP.46 While FRA understands that
railroads subject to a final FRMP rule
would likely need to develop processes
unique to their own operations, FRA
expects that railroads’ fatigue-risk
analysis processes will use techniques
similar to those currently used in other
safety management systems. This
section also specifies information
railroads must include in an FRMP
plan’s description of a railroad’s fatiguerisk analysis. FRA requests comment on
whether additional resources are
necessary to help railroads comply with
the requirements of this proposed
section and if so, what type of resources
would be helpful.
Proposed paragraph (c)(2) would
require an FRMP plan to describe the
railroad’s processes for identifying and
selecting mitigation strategies, and for
monitoring identified hazards while the
risk associated with the hazard is being
mitigated.
Proposed paragraph (c)(3) would
require an FRMP plan to describe a
railroad’s processes for monitoring and
evaluating the overall effectiveness of
the FRMP and the mitigation strategies,
along with procedures for reviewing and
updating the FRMP. As noted above,
FRA anticipates this review will be the
same as for the overall SSP or RRP.
Proposed paragraph (d) of this section
would require an FRMP plan to describe
46 As previously discussed, railroads could look
to well-established safety management systems
which describe processes for conducting a fatiguerisk analysis, such as MIL–STD–882, APTA’s
Manual for the Development of System Safety
Program Plans for Commuter Railroads, and FRA’s
Collision Hazard Analysis Guide: Commuter and
Intercity Passenger Rail Service.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
how the railroad will implement its
FRMP. As proposed, a railroad may
implement its FRMP in stages, provided
the FRMP is fully implemented and
operational within 36 months of FRA’s
approval of the plan. This
implementation plan would cover the
entire implementation period and
contain a timeline (beginning with the
date FRA approves the railroad’s FRMP
plan) describing when the railroad will
achieve specific and measurable
implementation milestones.
Consistent with 49 CFR
270.103(p)(2)(i) and 49 CFR
271.203(b)(3), as part of the
implementation description, proposed
paragraph (d)(1) would require a
railroad to include a description of the
roles and responsibilities of each
position or job function with significant
responsibility for implementing the
railroad’s FRMP (including any
positions or job functions held by an
entity or contractor that provides
significant FRMP services for the
railroad).
Consistent with 49 CFR 271.225(b)(2),
proposed paragraph (d)(2) would
require a railroad to include a
description of the planned timeline for
meeting the milestones required for the
FRMP plan to be fully implemented.
Proposed paragraphs (d)(3) and (d)(4)
would require a railroad to describe
how it will make significant changes to
the FRMP, and procedures for
consultation with directly affected
employees on substantive amendments
to the FRMP plan.
Proposed paragraph (e) would require
that a railroad submit its FRMP plan to
FRA by amending its SSP plan or RRP
plan. Since this proposed rule would be
published as a final rule after the SSP
and RRP final rules are in effect and
railroads have submitted their SSP
plans or RRP plans to FRA under part
270, subpart C, or part 271, subpart D,
railroads would need to amend their
SSP plans or RRP plans to include an
FRMP plan. Thus, as proposed, a
railroad would follow the procedures in
§ 270.201(c) or 271.303 to amend its SSP
plan or RRP plan. FRA proposes that an
FRMP plan is not considered a safetycritical amendment of an SSP plan for
the purposes of § 270.201(c)(1)(ii), so a
railroad should be able to submit the
FRMP plan to FRA as an amendment to
its SSP plan or RRP plan 60 days before
the proposed effective date of the FRMP
plan. If a railroad is initially not
required to submit an SSP plan or RRP
plan, but is later required to, the
railroad must include an FRMP plan as
part of its SSP plan or RRP plan
submission to FRA, or submit the FRMP
plan by August 19, 2021, whichever is
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
later. FRA will review the railroads’
FRMP plans under the amendment
process in § 270.201(c)(2) or 271.303(c).
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
This proposed rule is a nonsignificant regulatory action within the
meaning of Executive Order 12866 (E.O.
12866) and DOT’s Administrative
Rulemaking, Guidance, and
Enforcement Procedures in 49 CFR part
5.
FRA has prepared and placed a
Regulatory Evaluation addressing the
economic impact of this proposed rule
in the docket (Docket No. FRA–2015–
0122). The Regulatory Evaluation
contains estimates of the costs and
benefits of this proposed rule that are
likely to be incurred over a ten-year
period. FRA estimated the costs and
benefits of this proposed rule using
discount rates of 3 and 7 percent. FRA
was unable to quantify the costs and
benefits for all the elements within the
proposed regulation for both passenger
and freight railroads. FRA presents
monetized costs and benefits where
possible and discusses those nonquantified elements qualitatively where
data was lacking.
Section 103 of the RSIA mandates that
FRA (as delegated by the Secretary)
require certain railroads to establish a
railroad safety risk reduction program,
of which an FRMP is a required
component. This proposed rule is part
of FRA’s efforts to improve rail safety
continually and to satisfy the statutory
mandate in the RSIA.
FRA anticipates railroads will
develop and implement mitigation
strategies that are either cost-beneficial
or cost-neutral to the railroad. FRA
requests public comment on this
assumption. FRA is particularly
interested in the experience of railroads
that have already utilized mitigation
strategies to reduce the risk of the
exposure of safety-related railroad
employees to fatigue-related railroad
safety hazards on their systems;
specifically, whether the railroads have
realized costs and benefits from the
development and implementation of
such mitigation strategies, and how
much those strategies cost the railroads
to implement.
The Regulatory Evaluation analyzes
two mitigation strategies to quantify
potential costs and benefits that
railroads may achieve through the
proposed regulation: Training and
screening for sleep conditions.
However, since the proposed regulation
gives railroads the flexibility to select
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
the mitigation strategies that would
work best for them rather than
prescribing standards, there is a high
amount of uncertainty in FRA’s costs
and benefit estimates, specifically
pertaining to the training mitigation, as
FRA is unsure how railroads will
implement the various mitigations.
83501
The costs and benefits 47 associated
with the proposed rule are presented in
Table VI–1 below:
TABLE VI–1—SUMMARY OF TOTAL 10-YEAR IMPACT (2018 Dollars)
[In millions]
Calculation aid
Costs
A ........................................................
B ........................................................
C ........................................................
D ........................................................
A + C + D ..........................................
B + C + D ..........................................
A + C .................................................
Training Only (low) ...........................
Training Only (high) .........................
FRMP Plan Creation ........................
Government Costs ...........................
Total Cost (low) ................................
Total Cost (high) ..............................
Total Cost w/o Government Costs
(low).
Total Cost w/o Government Costs
(high).
Benefits
Training Only (low) ...........................
Training Only (high) .........................
jbell on DSKJLSW7X2PROD with PROPOSALS
B + C .................................................
FRA is interested in comments
addressing the Regulatory Evaluation’s
methodology for establishing the
accident pool used to calculate benefits
as well as establish the effectiveness
rates of mitigations. Specifically, FRA
seeks public input on the studies used
to establish the effectiveness rates and
the use of all human factor accidents
within the benefit pool. As the proposed
regulation does not specifically require
railroads to implement specific
mitigations, but rather allows railroads
to implement the mitigation that best
addresses their specific fatigue risks,
FRA requests comments on any costs
and benefits that might be associated
with the elements that FRA was unable
to quantify.
FRA’s analysis shows there are many
factors that are difficult to quantify both
for passenger and freight railroads.
Where possible, FRA’s Regulatory
Evaluation estimates costs and benefits
for each element within the proposed
regulation. FRA also requests comments
on the elements that are qualitatively
discussed. Given current railroad
business and operational practices, this
analysis demonstrates the fatigue
training element, an element that all
railroads will most likely implement,
may be cost effective. FRA also believes
the napping mitigation presented within
the Regulatory Evaluation’s alternative
analysis could be cost beneficial.
However, given the uncertainty
surrounding the use of alertness as a
measure of reduced fatigue, in an effort
to not overestimate the benefits
associated with the proposed regulation,
Present value
7%
Present value
3%
$2.02
4.13
0.89
2.03
4.94
7.05
2.91
$2.04
4.18
1.04
2.59
5.68
7.81
3.08
$0.29
0.59
0.13
0.29
0.70
1.00
0.41
$0.24
0.49
0.12
0.30
0.67
0.92
0.36
5.01
5.22
0.71
0.61
5.41
21.65
6.33
25.34
0.77
3.08
0.74
2.97
16:38 Dec 21, 2020
Jkt 253001
Annualized at
3%
FRA does not present the findings
regarding napping in the main analysis
of the Regulatory Evaluation. Despite
the uncertainty, FRA believes that there
could be significant reduction in fatigue
with the implementation of a napping
mitigation. Not only do various studies
support the idea that napping reduces
fatigue, but a large number of Class I
railroads already have policies
supporting napping, which suggests that
the benefits outweigh the costs for those
railroads.
the rule will have a significant
economic impact on small entities.
B. Regulatory Flexibility Act and
Executive Order 13272; Initial
Regulatory Flexibility Assessment
This NPRM proposes to implement
the FRMP element of the statutory
mandate by requiring each Class I
freight railroad, each railroad that
provides intercity rail passenger
transportation or commuter rail
passenger transportation, and each ISP
railroad to develop and implement an
FRMP as one component of a larger
railroad safety RRP or SSP. A detailed
discussion of the objectives and legal
basis for the proposed rule is provided
in Section III of the preamble.
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) and Executive
Order 13272 (67 FR 53461, Aug. 16,
2002) require agency review of proposed
and final rules to assess their impacts on
small entities. An agency must prepare
an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines
and certifies that a rule, if promulgated,
would not have a significant economic
impact on a substantial number of small
entities. FRA is publishing this IRFA to
aid the public in commenting on the
potential small business impacts of the
requirements in this NPRM. FRA invites
all interested parties to submit data and
information regarding the potential
economic impact on small entities that
would result from the adoption of the
proposals in this NPRM. FRA will
consider all information, including
comments received in the public
comment process, to determine whether
1. Reasons FRA Is Considering the
Proposed Rule
FRA is initiating this NPRM pursuant
to 49 U.S.C. 20156, which provides that
FRA, by delegation from the Secretary,
shall require certain railroads to develop
and implement an FRMP as part of
either their SSP or RRP.
2. Objectives and the Legal Basis for the
Proposed Rule
3. Description and Estimate of the
Number of Small Entities Affected
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601, et seq.) requires a review
of proposed and final rules to assess
their impact on small entities, unless
the Secretary certifies that the rule
would not have a significant economic
impact on a substantial number of small
entities. ‘‘Small entity’’ is defined in 5
U.S.C. 601 as a small business concern
that is independently owned and
operated, and is not dominant in its
47 Unless otherwise noted, costs and benefits are
presented in 2018 dollars.
VerDate Sep<11>2014
Annualized at
7%
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
E:\FR\FM\22DEP1.SGM
22DEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
83502
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
field of operation. The U.S. Small
Business Administration (SBA) has
authority to regulate issues related to
small businesses, and stipulates in its
size standards that a ‘‘small entity’’ in
the railroad industry is a for-profit
‘‘line-haul railroad’’ that has fewer than
1,500 employees, a ‘‘short line railroad’’
with fewer than 500 employees, or a
‘‘commuter rail system’’ with annual
receipts of less than seven million
dollars. See ‘‘Size Eligibility Provisions
and Standards,’’ 13 CFR part 121,
subpart A. In addition, section 601(5) of
the Small Business Act defines ‘‘small
entities’’ as governments of cities,
counties, towns, townships, villages,
school districts, or special districts with
populations less than 50,000 that
operate railroads.
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA and in
conjunction with public comment.
Thus, in consultation with SBA, FRA
has published a final statement of
agency policy that formally establishes
‘‘small entities’’ or ‘‘small businesses’’
as railroads, contractors, and shippers
that meet the revenue requirements of a
Class III railroad 48—$20 million or less
in inflation-adjusted annual revenue—
and commuter railroads or small
government jurisdictions that serve
populations of 50,000 or less.49
The universe of entities this NPRM
would affect includes only those small
entities that can reasonably be expected
to be directly affected by the provisions
of this rule. In this case, the universe
consists of railroads that would be
subject to the requirements under 49
CFR part 270 and under the RRP rule.
For the purposes of this analysis, 736
railroads would be considered ‘‘small
entities,’’ since they are Class III freight
railroads. Of the 736 small entities, 695
are on the general system and could be
potentially impacted by the proposed
regulation.50 Since FRA does not
currently know which railroads will be
considered ISP railroads, but an ISP
railroad could be either a Class II or
Class III railroad, FRA is unable to
provide a more accurate impact that the
proposed regulation would have on
small entities.
For purposes of this analysis, this
proposed rule will apply to 35
commuter or other short-haul passenger
railroads and two intercity passenger
railroads, the National Railroad
Passenger Corporation (Amtrak) and the
48 See
49 CFR 1201.1.
68 FR 24891 (May 9, 2003) (codified at
Appendix C to 49 CFR part 209).
50 Both the SSP rule and RRP rule exempts
railroads not on the general system. See 49 CFR
270.3(b) and 49 CFR 271.3(b).
49 See
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
Alaska Railroad Corporation (ARC).51
Neither of the intercity passenger
railroads is considered a small entity.
Amtrak serves populations well in
excess of 50,000, and the ARC is owned
by the State of Alaska, which has a
population well in excess of 50,000.
Based on the definition of ‘‘small
entity,’’ only one commuter or other
short-haul passenger railroad is
considered a small entity: The Hawkeye
Express (operated by the Iowa Northern
Railway Company).
The impact of the proposed regulation
on these small entities is unknown,
since FRA is allowing the railroads to
decide their fatigue mitigations based on
their specific needs instead of
mandating that railroads adopt specific
mitigation programs. Furthermore, FRA
estimates that only 50 ISP railroads
would be impacted by the proposed
regulation, which is approximately 7
percent of small entities, assuming all
the 50 ISP railroads are considered
small entities. FRA estimates that the 50
ISP railroads would be impacted over
the course of 10 years, at a rate of
approximately 5 ISPs per year. This
estimate is consistent with the RRP final
rule that FRA has published. Therefore,
because of the uncertainty surrounding
both the number of ISP railroads that
would be considered small entities as
well as the impact that the proposed
regulation would have on those small
entities, the impact that the NPRM
would have on small entities is unclear.
FRA requests comments about the
impact that the proposed regulation
would have on both freight and
passenger rail small entities.
4. Description of the Projected
Reporting, Recordkeeping, and Other
Requirements
The rule will require an ISP railroad
to develop and implement an FRMP
under an RRP or SSP plan that FRA has
reviewed and approved. There are
several reporting and recordkeeping
costs associated with the proposed
regulation. Since the railroads have the
flexibility to adjust their FRMPs to their
specific risks, these costs will vary
based on the respective risks as well as
the size of the ISP railroad. While FRA
is unable to estimate the burden that the
proposed regulation would have on
small entities, FRA expects that the
impact will be proportional to the
number of employees as well as the
mitigation strategy that is implemented.
Other mitigation strategies such as
51 There are State-sponsored intercity passenger
rail services, the majority of which will be part of
Amtrak’s SSP.
PO 00000
Frm 00025
Fmt 4702
Sfmt 4702
screening for sleep disorders could
include costs that are higher.
While FRA is unable to identify the
specific railroads that would be
considered ISPs, to estimate the
potential impact that developing an
FRMP would have on an ISP railroad,
FRA used the average Class III revenue
to estimate the impact.52 Per the
American Short Line and Regional
Railroad Association (ASLRRA), the
average Class III railroad has an annual
average revenue of $4.75 million. FRA
estimated the annual cost to ISP
railroads at $60,052, with approximately
five ISP railroads incurring this cost per
year. The $60,052 cost consists of an
annual average of $53,228 53 for FRMP
program development and $7,274 for
employee training.54 The total 10-year
cost that would impact a single ISP
railroad would be $121,004.55 The
annual cost represents approximately
2.5 percent of the average Class III
railroad’s revenue.56 However, as this
estimate is based off of the average
annual Class III railroad revenue, and
there could be a large variance in the
revenue of Class III railroads, FRA
requests comments regarding the annual
revenue of Class III railroads as well as
the impact the proposed regulation
would have on Class III railroads.
FRA has identified several possible
reporting and recordkeeping costs
associated with the proposed regulation
such as:
(1) Development, submission to FRA,
and recordkeeping of the FRMP plan;
(2) identification of the specific
fatigue risks that impact the specific
ISP; and
(3) recordkeeping associated with
fatigue training.
More information about the burden
and associated costs for each of the
projected reporting, recordkeeping, and
other requirements can be found in the
information collection request FRA will
be submitting to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501, et seq. FRA requests
comments regarding the recordkeeping
52 The Class II and Class III average costs per
railroad come from the 2015 Edition of the ASLRRA
Facts and Figures.
53 An average is used to better account for the
impact as the cost schedule varies as the number
of ISP railroads increases. See the RIA in the docket
for more information on the cost structure for ISP
railroads.
54 Calculation: $53,228 (program development
cost) + $7,274 (ISP employee training costs) =
$60,052 (Annual cost for 5 ISP railroads).
55 Calculation: ([$60,052/5 (ISP railroads)]
(annual cost to ISP)) × 10 (number of years) =
$121,004 (10-year cost to single ISP railroad).
56 Calculation: $121,004 (annual cost to ISP)/
$4,750,000 (average annual Class III revenue) =
0.025 or 2.5 percent.
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
burden that the proposed regulation
would have on ISP railroads to ensure
that all cost elements of recordkeeping
and how those elements would impact
Class III railroads are captured.
would result from adoption of the
proposals in this NPRM. FRA will
consider all comments received in the
public comment process when making a
determination.
5. Identification of Relevant Federal
Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
C. Federalism
While the proposed FRMP rule would
be a component of the RRP and SSP
rules, the proposed FRMP would
specifically address fatigue-related risks
and is aimed at mitigating those risks
specifically. As such, there will be some
coordination needed to ensure that a
railroad’s FRMP is developed and
worked into the railroad’s RRP or SSP.
Regardless, considering that the
proposed FRMP is a subpart within both
RRP and SSP, neither RRP nor SSP
provide any elements, outside of the
proposed regulation, that are designed
to mitigate fatigue related risk
specifically. As such, FRA does not
expect there to be any relevant Federal
rules that would duplicate, overlap
with, or conflict with the proposed
regulations in this NPRM.
6. Significant Regulatory Alternatives
jbell on DSKJLSW7X2PROD with PROPOSALS
Within the preamble above, FRA
outlines the various fatigue risks that
railroads need to address. FRA does not
specifically state, however, in what
manner the railroads must address those
risks. One alternative is for railroads to
not create an FRMP and to continue to
address their fatigue risks as they have
currently been doing. This would result
in the railroads violating the RSIA
mandate. In addition, if railroads
continue to address their fatigue risks as
they have in the past, FRA expects that
safety would continue to be negatively
impacted because the fatigue risks are
not adequately addressed currently.
Since railroads have some flexibility in
how they design their FRMPs, it is
expected that the impact of each FRMP
on a railroad will be minimal as the
flexibility in implementing mitigations
will most likely be done in a cost
effective manner. FRA expects that
railroads will consider the cost of the
mitigation as well as the fatigue risks
when creating their FRMPs.
FRA invites all interested parties to
submit data and information regarding
the potential economic impact that
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ The
Executive Order defines ‘‘policies that
have federalism implications’’ to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
Government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments or the agency consults
with State and local government
officials early in the process of
developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
FRA analyzed this NPRM consistent
with the principles and criteria
contained in Executive Order 13132.
FRA has determined the proposed rule
would not have substantial direct effects
on States, on the relationship between
the national government and States, or
on the distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined this proposed rule
would not impose substantial direct
compliance costs on State and local
governments. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
This NPRM proposes to add subpart
E, Fatigue Management Plans, to 49 CFR
part 270 and subpart G, Fatigue
Management Plans, to 49 CFR part 271.
PO 00000
Frm 00026
Fmt 4702
Sfmt 4702
83503
FRA is not aware of any State with
regulations similar to this proposed
rule. However, FRA notes that this part
could have preemptive effect by the
operation of law under 49 U.S.C. 20106.
Section 20106 provides that States may
not adopt or continue in effect any law,
regulation, or order related to railroad
safety or security that covers the subject
matter of a regulation prescribed or
order issued by the Secretary of
Transportation (with respect to railroad
safety matters), unless the State law,
regulation, or order (1) qualifies under
the ‘‘essentially local safety or security
hazard’’ exception to sec. 20106; (2) is
not incompatible with a law, regulation,
or order of the U.S. Government; and (3)
does not unreasonably burden interstate
commerce.
In sum, FRA analyzed this proposed
rule consistent with the principles and
criteria in Executive Order 13132. FRA
has determined this proposed rule has
no federalism implications and has
determined it is not required to prepare
a federalism summary impact statement
for this proposed rule.
D. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
Act also requires consideration of
international standards, and, where
appropriate, that they be the basis for
U.S. standards. This rulemaking is
purely domestic in nature and will not
affect trade opportunities for U.S. firms
doing business overseas or for foreign
firms doing business in the United
States.
E. Paperwork Reduction Act
The information collection
requirements in this proposed rule are
being submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq. The
sections that contain the new
information collection requirements and
the estimated time to fulfill each
requirement are as follows:
E:\FR\FM\22DEP1.SGM
22DEP1
83504
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
Total annual
burden hours
Total annual
dollar cost
equivalent 57
Respondent universe
Total annual responses
270.409—Fatigue Risk Management
Program Plan (FRMP Plan) as part
of its SSP—Comprehensive FRMP
plan meeting all of this section’s requirements and under Part 270
subpart C.
—(c)(3)(ii)—Annual internal FRMP
Plan
assessments/reports
conducted by RRs.
—FRMP plans found deficient by FRA
and requiring amendment.
—Review of amended FRMP plans
found deficient and requiring further
amendment by RRs.
—Consultation
requirements—RR
consultation with its directly affected
employees on FRMP Plan.
271.609—Fatigue Risk Management
Program Plan (FRMP Plan) as part
of its RRP—Comprehensive written
FRMP Plan meeting all of this section’s requirements and under Part
271 subpart d.
—(c)(3)(ii)—Annual internal FRMP
Plan
assessments/reports
conducted by RRs.
—Consultation
requirements—RR
consultation with its directly affected
employees on FRMP Plan.
35 passenger railroads ..
12 plans .........................
60
720
$63,144
35 passenger railroads ..
12 evaluations/reports ...
2
24
1,824
35 passenger railroads ..
4 amended plans ...........
30
120
9,588
35 passenger railroads ..
1 further amended plan
15
15
1,199
35 passenger railroads ..
12 consultations (w/labor
union reps.).
1.5
18
1,368
7 Class I railroads ..........
15 ISP railroads .............
2 plans ...........................
5 plans ...........................
90
50
180
250
15,786
21,925
7 Class I + 15 ISP railroads.
7 evaluations/reports .....
2
14
1,064
7 Class I railroads ..........
2 consultations (w/labor
union reps.).
1.5
3
228
15 ISP railroads .............
1
5
380
7 Class I railroads ..........
5 consultations (w/labor
union reps.).
1 amended plan .............
40
40
3,196
15 ISP railroads .............
7 Class I railroads ..........
3 amended plans ...........
1 further amended plan
20
20
60
20
4,794
1,598
15 ISP railroads .............
2 further amended plans
10
20
1,598
35 railroads ....................
69 responses .................
N/A
1,489
127,692
—FRMP plans found deficient by FRA
and requiring amendment.
—Review of amended FRMP plans
found deficient and requiring further
amendment by RRs.
Totals ...........................................
jbell on DSKJLSW7X2PROD with PROPOSALS
Average time
per response
(hours)
CFR section/subject
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. Pursuant to
44 U.S.C. 3506(c)(2)(B), FRA solicits
comments concerning: Whether these
information collection requirements are
necessary for the proper performance of
the functions of FRA, including whether
the information has practical utility; the
accuracy of FRA’s estimates of the
burden of the information collection
requirements; the quality, utility, and
clarity of the information to be
collected; and whether the burden of
collection of information on those who
are to respond, including through the
use of automated collection techniques
or other forms of information
technology, may be minimized. For
57 The dollar equivalent cost is derived from the
2018 Surface Transportation Board’s Full Year
Wage A&B data series using the appropriate
employee group hourly wage rate that includes 75percent overhead charges.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
information or a copy of the paperwork
package submitted to OMB, contact Ms.
Hodan Wells, Information Collection
Clearance Officer, Federal Railroad
Administration, at 202–493–0440.
Organizations and individuals
desiring to submit comments on the
collection of information requirements
should direct them to Ms. Hodan Wells
via email at Hodan.Wells@dot.gov.
OMB is required to make a decision
concerning the collection of information
requirements contained in this proposed
rule between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication. The final rule will
respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a
penalty on persons for violating
information collection requirements
which do not display a current OMB
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
control number, if required. FRA
intends to obtain current OMB control
numbers for any new information
collection requirements resulting from
this rulemaking action prior to the
effective date of the final rule. The OMB
control number, when assigned, will be
announced by separate notice in the
Federal Register.
F. Environmental Assessment
FRA has evaluated this proposed rule
consistent with the National
Environmental Policy Act (NEPA; 42
U.S.C. 4321, et seq.), the Council of
Environmental Quality’s NEPA
implementing regulations at 40 CFR
parts 1500–1508, and FRA’s NEPA
implementing regulations at 23 CFR part
771 and determined that it is
categorically excluded from
environmental review and therefore
does not require the preparation of an
environmental assessment (EA) or
environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
identified in an agency’s NEPA
implementing regulations that do not
normally have a significant impact on
the environment and therefore do not
require either an EA or EIS. See 40 CFR
1508.4. Specifically, FRA has
determined that this proposed rule is
categorically excluded from detailed
environmental review pursuant to 23
CFR 771.116(c)(15), ‘‘[p]romulgation of
rules, the issuance of policy statements,
the waiver or modification of existing
regulatory requirements, or
discretionary approvals that do not
result in significantly increased
emissions of air or water pollutants or
noise.’’
The purpose of this rulemaking is to
propose requirements for certain
railroads to develop and implement an
FRMP, as one component of the
railroads’ larger railroad safety risk
reduction programs. This rule does not
directly or indirectly impact any
environmental resources and will not
result in significantly increased
emissions of air or water pollutants or
noise. Instead, the proposed rule is
likely to result in safety benefits. In
analyzing the applicability of a CE, FRA
must also consider whether unusual
circumstances are present that would
warrant a more detailed environmental
review. See 23 CFR 771.116(b). FRA has
concluded that no such unusual
circumstances exist with respect to this
proposed regulation and the proposal
meets the requirements for categorical
exclusion under 23 CFR 771.116(c)(15).
Pursuant to Section 106 of the
National Historic Preservation Act and
its implementing regulations, FRA has
determined this undertaking has no
potential to affect historic properties.
See 16 U.S.C. 470. FRA has also
determined that this rulemaking does
not approve a project resulting in a use
of a resource protected by Section 4(f).
See Department of Transportation Act of
1966, as amended (Pub. L. 89–670, 80
Stat. 931); 49 U.S.C. 303.
jbell on DSKJLSW7X2PROD with PROPOSALS
G. Executive Order 12898
(Environmental Justice)
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2B 58 require DOT agencies
to achieve environmental justice as part
of their mission by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects,
58 Available at: https://www.transportation.gov/
regulations/dot-order-56102b-departmenttransportation-actions-address-environmentaljustice.
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
including interrelated social and
economic effects, of their programs,
policies, and activities on minority
populations and low-income
populations. The DOT Order instructs
DOT agencies to address compliance
with Executive Order 12898 and
requirements within the DOT Order in
rulemaking activities, as appropriate,
and also requires consideration of the
benefits of transportation programs,
policies, and other activities where
minority populations and low-income
populations benefit, at a minimum, to
the same level as the general population
as a whole when determining impacts
on minority and low-income
populations. FRA has evaluated this
proposed rule under Executive Order
12898 and the DOT Order and has
determined it would not cause
disproportionately high and adverse
human health and environmental effects
on minority populations or low-income
populations.
H. Unfunded Mandates Reform Act of
1995
Under Section 201 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531), each Federal agency ‘‘shall,
unless otherwise prohibited by law,
assess the effects of Federal regulatory
actions on State, local, and tribal
governments, and the private sector
(other than to the extent that such
regulations incorporate requirements
specifically set forth in law).’’ Section
202 of the Act (2 U.S.C. 1532) further
requires that ‘‘before promulgating any
general notice of proposed rulemaking
that is likely to result in the
promulgation of any rule that includes
any Federal mandate that may result in
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted annually for inflation) in any
1 year, and before promulgating any
final rule for which a general notice of
proposed rulemaking was published,
the agency shall prepare a written
statement’’ detailing the effect on State,
local, and tribal governments and the
private sector. This proposed rule will
not result in the expenditure, in the
aggregate, of $100,000,000 or more (as
adjusted annually for inflation), in any
one year, and thus preparation of such
a statement is not required.
I. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355, May 22,
2001. FRA evaluated this NPRM under
Executive Order 13211, and determined
this NPRM is not a ‘‘significant energy
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
83505
action’’ under the Executive Order
13211.
J. Privacy Act Statement
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, to www.regulations.gov, as
described in the system of records
notice, DOT/ALL–14 FDMS, accessible
through www.dot.gov/privacy. In order
to facilitate comment tracking and
response, we encourage commenters to
provide their name, or the name of their
organization; however, submission of
names is completely optional. Whether
or not commenters identify themselves,
all timely comments will be fully
considered. If you wish to provide
comments containing proprietary or
confidential information, please contact
the agency for alternate submission
instructions.
List of Subjects
49 CFR Part 270
Fatigue, Penalties, Railroad safety,
Reporting and recordkeeping
requirements, System safety.
49 CFR Part 271
Fatigue, Penalties, Railroad safety,
Reporting and recordkeeping
requirements, Risk reduction.
The Proposed Rule
For the reasons discussed in the
preamble, FRA proposes to amend
chapter II, subtitle B of title 49, Code of
Federal Regulations as follows:
PART 270—SYSTEM SAFETY
PROGRAM
1. The authority citation for part 270
continues to read as follows:
■
Authority: 49 U.S.C. 20103, 20106–20107,
20118–20119, 20156, 21301, 21304, 21311;
28 U.S.C. 2461, note; and 49 CFR 1.89.
2. Section 270.103(a)(1) is revised to
read as follows:
■
§ 270.103
System safety program plan.
(a) General. (1) Each railroad subject
to this part shall adopt and fully
implement a system safety program
through a written SSP plan that, at a
minimum, contains the elements in this
section and in subpart E of this part.
This SSP plan shall be approved by FRA
under the process specified in
§ 270.201.
■ 3. Add subpart E to read as follows:
Subpart E—Fatigue Risk Management
Programs
Sec.
E:\FR\FM\22DEP1.SGM
22DEP1
83506
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
270.401 Definitions.
270.403 Purpose and scope of a Fatigue
Risk Management Program (FRMP).
270.405 General requirements; procedure.
270.407 Requirements for an FRMP.
270.409 Requirements for a FRMP plan.
Subpart E—Fatigue Risk Management
Programs
§ 270.401
Definitions.
As used in this subpart—
Contributing factor means a
circumstance or condition that helps
cause a result.
Fatigue means a complex state
characterized by a lack of alertness and
reduced mental and physical
performance, often accompanied by
drowsiness.
Fatigue-risk analysis means a
railroad’s analysis of its operations that:
(1) Identifies and evaluates the
fatigue-related railroad safety hazards
on its system(s); and
(2) Determines the degree of risk
associated with each of those hazards.
FRMP means a Fatigue Risk
Management Program.
FRMP plan means a Fatigue Risk
Management Program plan.
Safety-related railroad employee
means:
(1) A person subject to 49 U.S.C.
21103, 21104, or 21105;
(2) Another person involved in
railroad operations not subject to 49
U.S.C. 21103, 21104, or 21105;
(3) A person who inspects, installs,
repairs or maintains track, roadbed,
signal and communication systems, and
electric traction systems including a
roadway worker or railroad bridge
worker;
(4) A hazmat employee defined under
49 U.S.C. 5102(3);
(5) A person who inspects, repairs, or
maintains locomotives, passenger cars,
or freight cars; or
(6) An employee of any person who
utilizes or performs significant railroad
safety-related services, as described in
§ 270.103(d)(2), if that employee
performs a function identified in
paragraphs (1) through (5) of this
definition.
jbell on DSKJLSW7X2PROD with PROPOSALS
§ 270.403 Purpose and scope of a Fatigue
Risk Management Program (FRMP).
(a) Purpose. The purpose of an FRMP
is to improve railroad safety through
structured, systematic, proactive
processes and procedures that a railroad
subject to this part develops and
implements to identify and mitigate the
effects of fatigue on its employees.
(b) Scope. A railroad shall:
(1) Design its FRMP to reduce the
fatigue its safety-related railroad
employees experience and to reduce the
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
risk of railroad accidents, incidents,
injuries, and fatalities where the fatigue
of any of these employees is a
contributing factor;
(2) Develop its FRMP by
systematically identifying and
evaluating the fatigue-related railroad
safety hazards on its system,
determining the degree of risk
associated with each hazard, and
managing those risks to reduce the
fatigue that its safety-related railroad
employees experience. This systemwide fatigue risk identification and
evaluation process must account for the
varying circumstances of a railroad’s
operations on different parts of its
system; and
(3) Employ in its FRMP the fatigue
risk mitigation strategies a railroad
identifies as appropriate to address
those varying circumstances.
§ 270.405 General requirements;
procedure.
(a) Each railroad subject to this part
shall:
(1) Establish and implement an FRMP
as part of its SSP; and
(2) Establish an FRA-approved FRMP
plan as a component of a railroad’s
FRA-approved SSP plan and then
update its FRMP plan as necessary as
part of the annual internal assessment of
its SSP under § 270.303.
(b) A railroad’s FRMP plan must
explain the railroad’s method of
analysis of fatigue risks and the
railroad’s process(es) for implementing
its FRMP.
(c)(1) A railroad shall submit an
FRMP plan to FRA for approval no later
than either the applicable timeline in
§ 270.201(a) for filing its SSP plan or
[date six months after publication of the
final rule in the Federal Register].
(2) A railroad shall submit updates to
its FRMP plan under the process for
amending its SSP plan in § 270.201(c).
(d) FRA shall review and approve or
disapprove a railroad’s FRMP plan and
amendments to that plan under the
process for reviewing SSP plans and
amendments in § 270.201(b) and (c),
respectively.
§ 270.407
Requirements for an FRMP.
(a) In general. An FRMP shall include
an analysis of fatigue risks and
mitigation strategies, as described in
paragraphs (b) and (c) of this section.
(b) Analysis of fatigue risks. A
railroad shall conduct a fatigue-risk
analysis as part of its FRA-approved
FRMP, which includes identification of
fatigue-related railroad safety hazards,
assessment of the risks associated with
those hazards, and prioritization of risks
for mitigation. At a minimum, a railroad
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
must consider the following categories
of risk factors:
(1) General health and medical
conditions that can affect the fatigue
levels among the population of safetyrelated railroad employees;
(2) Scheduling issues that can affect
the opportunities of safety-related
railroad employees to obtain sufficient
quality and quantity of sleep; and
(3) Characteristics of each job category
of safety-related railroad employees
work that can affect fatigue levels and
risk for fatigue of those employees.
(c) Mitigation strategies. A railroad
shall develop and implement mitigation
strategies to reduce the risk of railroad
accidents, incidents, injuries, and
fatalities where fatigue of any of its
safety-related employees is a
contributing factor. At a minimum, in
developing and implementing these
mitigation strategies, a railroad shall
consider the railroad’s policies,
practices, and communication related to
its safety-related railroad employees.
(1) Policies. A railroad shall consider
developing and implementing policies
to reduce the risk of the exposure of its
safety-related railroad employees to
fatigue-related railroad safety hazards
on its system. At a minimum, a railroad
shall consider these policies:
(i) Providing opportunities for
identification, diagnosis, and treatment
of any medical condition that may affect
alertness or fatigue, including sleep
disorders;
(ii) Identifying methods to minimize
accidents and incidents that occur as a
result of working at times when
scientific and medical research have
shown increased fatigue disrupts
employees’ circadian rhythms;
(iii) Developing and implementing
alertness strategies, such as policies on
napping, to address acute drowsiness
and fatigue while an employee is on
duty;
(iv) Increasing the number of
consecutive hours of off-duty rest,
during which an employee receives no
communication from the employing
railroad or its managers, supervisors,
officers, or agents; and
(v) Avoiding abrupt changes in rest
cycles for employees.
(2) Practices. A railroad shall consider
developing and implementing
operational practices to reduce the risk
of exposure of its safety-related railroad
employees to fatigue-related railroad
safety hazards on its system. At a
minimum, a railroad shall consider
these practices:
(i) Minimizing the effects on
employee fatigue of an employee’s
short-term or sustained response to
emergency situations, such as
E:\FR\FM\22DEP1.SGM
22DEP1
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
derailments and natural disasters, or
engagement in other intensive working
conditions;
(ii) Developing and implementing
scheduling practices for employees,
including innovative scheduling
practices, on-duty call practices, work
and rest cycles, increased consecutive
days off for employees, changes in shift
patterns, appropriate scheduling
practices for varying types of work, and
other aspects of employee scheduling to
reduce employee fatigue and cumulative
sleep loss; and
(iii) Providing opportunities to obtain
restful sleep at lodging facilities,
including employee sleeping quarters
provided by the railroad carrier.
(3) Communications. A railroad shall
consider developing and implementing
training, education, and outreach
methods to deliver fatigue-related
information effectively to its safetyrelated railroad employees. At a
minimum, a railroad shall consider
including in its employee education and
training information on the
physiological and human factors that
affect fatigue, as well as strategies to
reduce or mitigate the effects of fatigue,
based on the most current scientific and
medical research and literature.
(d) Evaluation. A railroad shall
develop and implement procedures and
processes for monitoring and evaluating
its FRMP to assess whether the FRMP
effectively meets the goals its FRMP
plan describes, as required under
§ 270.409(b).
(1) The evaluation shall include, at a
minimum:
(i) Periodic monitoring of the
railroad’s operational environment to
detect changes that may generate new
hazards;
(ii) Analysis of the risks associated
with any identified hazards; and
(iii) Periodic safety assessments to
determine the need for changes to its
mitigation strategies.
(2) A railroad shall evaluate newlyidentified hazards, and hazards
associated with ineffective mitigation
strategies, through processes for
analyzing fatigue risks described in the
railroad’s FRMP plan.
(3) Any necessary changes not
addressed prior to a railroad’s annual
internal assessment must be included in
the internal assessment improvement
plans required under § 270.303.
§ 270.409
Requirements for a FRMP plan.
(a) In general. A railroad shall adopt
and implement its FRMP through an
FRA-approved FRMP plan, developed
in consultation with directly affected
employees as described under
§ 270.107. A railroad FRMP plan must
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
contain the elements described in this
section. A railroad must submit the plan
to FRA for approval under the criteria
of subpart C.
(b) Goals. An FRMP plan must
contain a statement that defines the
specific fatigue-related goals of the
FRMP and describes strategies for
reaching those goals.
(c) Methods—(1) Analysis of fatigue
risk. An FRMP plan shall describe a
railroad’s method(s) for conducting its
fatigue-risk analysis as part of its FRMP.
The description shall specify:
(i) The scope of the analysis, which is
the covered population of safety-related
railroad employees;
(ii) The processes a railroad will use
to identify fatigue-related railroad safety
hazards on its system and determine the
degree of risk associated with each
fatigue-related hazard identified;
(iii) The processes a railroad will use
to compare and prioritize identified
fatigue-related risks for mitigation
purposes; and
(iv) The information sources a
railroad will use to support ongoing
identification of fatigue-related railroad
safety hazards and determine the degree
of risk associated with those hazards.
(2) Mitigation strategies. An FRMP
plan shall describe a railroad’s
processes for:
(i) Identifying and selecting fatigue
risk mitigation strategies; and
(ii) Monitoring identified fatiguerelated railroad safety hazards.
(3) Evaluation. An FRMP plan shall
describe:
(i) A railroad’s processes for
monitoring and evaluating the overall
effectiveness of its FRMP and the
effectiveness of fatigue-related
mitigation strategies the railroad uses
under § 270.407; and
(ii) A railroad’s procedures for
reviewing the FRMP as part of the
annual internal assessment of its SSP
under § 270.303 and for updating the
FRMP plan under the process for
amending its SSP plan under
§ 270.201(c).
(d) FRMP implementation plan. A
railroad shall describe in its FRMP plan
how it will implement its FRMP. This
description must cover an
implementation period not to exceed 36
months, and shall include:
(1) A description of the roles and
responsibilities of each position or job
function with significant responsibility
for implementing the FRMP, including
those held by employees, contractors
who provide significant FRMP-related
services, and other entities or persons
that provide significant FRMP services;
(2) A timeline describing when
certain milestones that must be met to
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
83507
implement the FRMP fully will be
achieved. Implementation milestones
shall be specific and measurable;
(3) A description of how a railroad
may make significant changes to the
FRMP plan under the process for
amending its SSP plan in § 270.201(c);
and
(4) The procedures for consultation
with directly affected employees on any
subsequent substantive amendments to
the railroad’s FRMP plan. The
requirements of this section do not
apply to non-substantive amendments
(e.g., amendments that update names
and addresses of railroad personnel).
(e) Submittal. A railroad shall amend
its SSP plan submitted under subpart C
of this part to include its FRMP plan
that meets the requirements of this
section no later than August 19, 2021.
(1) A railroad shall follow the
procedures in § 270.201(c) to amend its
SSP plan.
(2) An FRMP plan is not considered
a safety critical amendment for the
purposes of § 270.201(c)(ii).
(3) If a railroad was not required to
submit an SSP plan initially, but is
required to do so at a later date, the
railroad shall either include an FRMP
plan as part of its SSP plan submission
under § 270.201(a), or submit its FRMP
plan in accordance with the procedures
for amending its SSP plan under
§ 270.201(c) no later than August 19,
2021, whichever is later.
PART 271—RISK REDUCTION
PROGRAM
4. The authority citation for part 271
continues to read as follows:
■
Authority: 49 U.S.C. 20103, 20106–20107,
20118–20119, 20156, 21301, 21304, 21311;
28 U.S.C. 2461, note; and 49 CFR 1.89.
5. Amend § 271.101 by revising
paragraph (a) to read as follows:
■
§ 271.101
Risk reduction programs.
(a) Program required. Each railroad
shall establish and fully implement an
RRP meeting the requirements of this
part. An RRP shall systematically
evaluate railroad safety hazards on a
railroad’s system and manage the
resulting risks to reduce the number and
rates of railroad accidents/incidents,
injuries, and fatalities. An RRP is an
ongoing program that supports
continuous safety improvement. A
railroad shall design its RRP so that it
promotes and supports a positive safety
culture at the railroad. An RRP shall
include the following:
(1) A risk-based hazard management
program, as described in § 271.103;
(2) A safety performance evaluation
component, as described in § 271.105;
E:\FR\FM\22DEP1.SGM
22DEP1
83508
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
(3) A safety outreach component, as
described in § 271.107;
(4) A technology analysis and
technology implementation plan, as
described in § 271.109;
(5) RRP implementation and support
training, as described in § 271.111;
(6) Involvement of railroad employees
in the establishment and
implementation of an RRP, as described
in § 271.113; and
(7) An FRMP as described in
§ 271.607.
■ 6. Section 271.201 is revised to read
as follows:
§ 271.201
General.
A railroad shall adopt and implement
its RRP through a written RRP plan
containing the elements described in
this subpart and in § 271.609. A
railroad’s RRP plan shall be approved
by FRA according to the requirements
contained in subpart D of this part.
■ 7. Add subpart G to read as follows:
Subpart G—Fatigue Risk Management
Programs
Sec.
271.601 Definitions.
271.603 Purpose and scope of a Fatigue
Risk Management Program (FRMP).
271.605 General requirements; procedure.
271.607 Requirements for an FRMP.
271.609 Requirements for a FRMP plan.
Subpart G—Fatigue Risk Management
Programs
jbell on DSKJLSW7X2PROD with PROPOSALS
§ 271.601
Definitions.
As used in this subpart—
Contributing factor means a
circumstance or condition that helps
cause a result.
Fatigue means a complex state
characterized by a lack of alertness and
reduced mental and physical
performance, often accompanied by
drowsiness.
Fatigue-risk analysis means a
railroad’s analysis of its operations that:
(1) Identifies and evaluates the
fatigue-related railroad safety hazards
on its system(s) and;
(2) Determines the degree of risk
associated with each of those hazards.
FRMP means a Fatigue Risk
Management Program.
FRMP plan means a Fatigue Risk
Management Program plan.
Safety-related railroad employee
means:
(1) A person subject to 49 U.S.C.
21103, 21104, or 21105;
(2) Another person involved in
railroad operations not subject to 49
U.S.C. 21103, 21104, or 21105;
(3) A person who inspects, installs,
repairs or maintains track, roadbed,
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
signal and communication systems, and
electric traction systems including a
roadway worker or railroad bridge
worker;
(4) A hazmat employee defined under
49 U.S.C. 5102(3);
(5) A person who inspects, repairs, or
maintains locomotives, passenger cars,
or freight cars; or
(6) An employee of any person who
utilizes or performs significant railroad
safety-related services, as described in
§ 271.205(a)(3), if that employee
performs a function identified in
paragraphs (1) through (5) of this
definition.
§ 271.603 Purpose and scope of a Fatigue
Risk Management Program (FRMP).
(a) Purpose. The purpose of an FRMP
is to improve railroad safety through
structured, proactive processes and
procedures a railroad subject to this part
develops and implements. A railroad’s
FRMP shall systematically identify and
evaluate the fatigue-related railroad
safety hazards on its system, determine
the degree of risk associated with each
hazard, and manage those risks to
reduce the fatigue that its safety-related
railroad employees experience and to
reduce the risk of railroad accidents,
incidents, injuries, and fatalities where
the fatigue of any of these employees is
a contributing factor.
(b) Scope. A railroad shall:
(1) Design its FRMP to reduce the
fatigue its safety-related railroad
employees experience and to reduce the
risk of railroad accidents, incidents,
injuries, and fatalities where the fatigue
of any of these employees is a
contributing factor;
(2) Develop its FRMP by conducting
a system-wide fatigue-risk analysis that
accounts for the varying circumstances
of its operations on different parts of its
system; and
(3) Employ in its FRMP the fatigue
risk mitigation strategies the railroad
identifies as appropriate to address
those varying circumstances.
§ 271.605 General requirements;
procedure.
(a) Each railroad subject to this part
shall:
(1) Establish and implement an FRMP
as part of its RRP; and
(2) Establish an FRA-approved FRMP
plan as a component of a railroad’s
FRA-approved RRP plan and then
update the FRMP plan as necessary as
part of the annual internal assessment of
its RRP under § 271.401.
(b) A railroad’s FRMP plan must
explain the railroad’s method of
analysis of fatigue risks and the
railroad’s process(es) for implementing
its FRMP.
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
(c)(1) A railroad shall submit an
FRMP plan to FRA for approval no later
than either the applicable timeline in
§ 271.301(b) for filing its RRP plan or
[date six months after publication of the
final rule in the Federal Register],
whichever is later; and
(2) A railroad shall submit updates to
its FRMP plan under the process for
amending its RRP plan in § 271.303.
(d) FRA shall review and approve or
disapprove a railroad’s FRMP plan
under the process for reviewing RRP
plans in § 271.301(d) and updates to the
railroad’s FRMP plan under the process
for reviewing amendments to an RRP
plan in § 271.303(c).
§ 271.607
Requirements for an FRMP.
(a) In general. An FRMP shall include
an analysis of fatigue risks and
mitigation strategies described in
paragraphs (b) and (c) of this section.
(b) Analysis of fatigue risks. A
railroad shall conduct a fatigue-risk
analysis as part of its FRA-approved
FRMP, which includes identification of
fatigue-related railroad safety hazards,
assessment of the risks associated with
those hazards, and prioritization of risks
for mitigation. At a minimum, railroads
must consider the following categories
of risk factors, as applicable:
(1) General health and medical
conditions that can affect the fatigue
levels among the population of safetyrelated railroad employees;
(2) Scheduling issues that can affect
the opportunities of safety-related
railroad employees to obtain sufficient
quality and quantity of sleep; and
(3) Characteristics of each job category
safety-related railroad employees work
that can affect fatigue levels and risk for
fatigue of those employees.
(c) Mitigation strategies. A railroad
shall develop and implement mitigation
strategies to reduce the risk of railroad
accidents, incidents, injuries, and
fatalities where fatigue of any of its
safety-related employees is a
contributing factor. At a minimum, in
developing and implementing these
mitigation strategies, a railroad shall
consider the railroad’s policies,
practices, and communications related
to its safety-related railroad employees.
(1) Policies. A railroad shall consider
developing and implementing policies
to reduce the risk of the exposure of its
safety-related railroad employees to
fatigue-related railroad safety hazards
on its system. At a minimum, a railroad
shall consider these policies:
(i) Providing opportunities for
identification, diagnosis, and treatment
of any medical condition that may affect
alertness or fatigue, including sleep
disorders;
E:\FR\FM\22DEP1.SGM
22DEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules
(ii) Identifying methods to minimize
accidents and incidents that occur as a
result of working at times when
scientific and medical research have
shown increased fatigue disrupts
employees’ circadian rhythms;
(iii) Developing and implementing
alertness strategies, such as policies on
napping, to address acute drowsiness
and fatigue while an employee is on
duty;
(iv) Increasing the number of
consecutive hours of off-duty rest,
during which an employee receives no
communication from the employing
railroad or its managers, supervisors,
officers, or agents; and
(v) Avoiding abrupt changes in rest
cycles for employees.
(2) Practices. A railroad shall consider
developing and implementing
operational practices to reduce the risk
of exposure of its safety-related railroad
employees to fatigue-related railroad
safety hazards on its system. At a
minimum, a railroad shall consider
these practices:
(i) Minimizing the effects on
employee fatigue of an employee’s
short-term or sustained response to
emergency situations, such as
derailments and natural disasters, or
engagement in other intensive working
conditions;
(ii) Developing and implementing
scheduling practices for employees,
including innovative scheduling
practices, on-duty call practices, work
and rest cycles, increased consecutive
days off for employees, changes in shift
patterns, appropriate scheduling
practices for varying types of work, and
other aspects of employee scheduling to
reduce employee fatigue and cumulative
sleep loss; and
(iii) Providing opportunities to obtain
restful sleep at lodging facilities,
including employee sleeping quarters
provided by the railroad carrier.
(3) Communication. A railroad shall
consider developing and implementing
training, education, and outreach
methods to deliver fatigue-related
information effectively to its safetyrelated railroad employees. At a
minimum, a railroad shall consider
communications regarding employee
education and training on the
physiological and human factors that
affect fatigue, as well as strategies to
reduce or mitigate the effects of fatigue,
based on the most current scientific and
medical research and literature.
(d) Evaluation. A railroad shall
develop and implement procedures and
processes for monitoring and evaluating
its FRMP to assess whether the FRMP
effectively meets the goals its FRMP
plan describes under § 271.609(b).
VerDate Sep<11>2014
16:38 Dec 21, 2020
Jkt 253001
(1) The evaluation shall include, at a
minimum:
(i) Periodic monitoring of the
railroad’s operational environment to
detect changes that may generate new
hazards;
(ii) Analysis of the risks associated
with any identified hazards; and
(iii) Periodic safety assessments to
determine the need for changes to its
mitigation strategies.
(2) A railroad shall evaluate newlyidentified hazards, and hazards
associated with ineffective mitigation
strategies, through processes for
analyzing fatigue risks described in the
railroad’s FRMP plan.
(3) Any necessary changes not
addressed prior to a railroad’s annual
internal assessment must be included in
the internal assessment improvement
plans required under § 271.403.
§ 271.609
Requirements for a FRMP plan.
(a) In general. A railroad shall adopt
and implement its FRMP through an
FRA-approved FRMP plan, developed
in consultation with directly affected
employees as described under
§ 271.207. A railroad FRMP plan must
contain the elements described in this
section. The railroad must submit the
plan to FRA for approval under the
criteria of subpart D.
(b) Goals. An FRMP plan must
contain a statement that defines the
specific fatigue-related goals of the
FRMP and describes strategies for
reaching those goals.
(c) Methods—(1) Analysis of fatigue
risk. An FRMP plan shall describe a
railroad’s method(s) for conducting its
fatigue-risk analysis as part of its FRMP.
The description shall specify:
(i) The scope of the analysis, which is
the covered population of safety-related
railroad employees;
(ii) The processes a railroad will use
to identify fatigue-related railroad safety
hazards on its system and determine the
degree of risk associated with each
fatigue-related hazard identified;
(iii) The processes a railroad will use
to compare and prioritize identified
fatigue-related risks for mitigation
purposes; and
(iv) The information sources a
railroad will use to support ongoing
identification of fatigue-related railroad
safety hazards and determine the degree
of risk associated with those hazards.
(2) Mitigation strategies. An FRMP
plan shall describe a railroad’s
processes for:
(i) Identifying and selecting fatigue
risk mitigation strategies; and
(ii) Monitoring identified fatiguerelated railroad safety hazards.
(3) Evaluation. An FRMP plan shall
describe:
PO 00000
Frm 00032
Fmt 4702
Sfmt 9990
83509
(i) A railroad’s processes for
monitoring and evaluating the overall
effectiveness of its FRMP and the
effectiveness of fatigue-related
mitigation strategies the railroad uses
under § 271.607; and
(ii) A railroad’s procedures for
reviewing the FRMP as part of the
annual assessment of its RRP under
§ 271.401 and for updating the FRMP
plan under the process for amending its
RRP plan under § 271.303.
(d) FRMP implementation plan. A
railroad shall describe in its FRMP plan
how it will implement its FRMP. This
description must cover an
implementation period not to exceed 36
months, and shall include:
(1) A description of the roles and
responsibilities of each position or job
function with significant responsibility
for implementing the FRMP, including
those held by employees, contractors
who provide significant FRMP-related
services, and other entities or persons
that provide significant FRMP services;
(2) A timeline describing when
certain milestones that must be met to
implement the FRMP fully will be
achieved. Implementation milestones
shall be specific and measurable;
(3) A description of how the railroad
may make significant changes to the
FRMP plan under the process for
amending its RRP plan in § 271.303; and
(4) The procedures for consultation
with directly affected employees on any
subsequent substantive amendments to
the railroad’s FRMP plan. The
requirements of this section do not
apply to non-substantive amendments
(e.g., amendments that update names
and addresses of railroad personnel).
(e) Submittal. A railroad shall amend
its RRP plan submitted under subpart D
of this part to include its FRMP plan
that meets the requirements of this
section no later than August 19, 2021.
(1) A railroad shall follow the
procedures in § 271.303 to amend its
RRP plan.
(2) If a railroad was not required to
submit an RRP plan initially, but is
required to do so at a later date, the
railroad shall either include an FRMP
plan as part of its RRP plan submission
under § 271.301 or submit its FRMP
plan in accordance with the procedures
for amending its RRP plan under
§ 271.303 no later than August 19, 2021,
whichever is later.
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020–27085 Filed 12–21–20; 8:45 am]
BILLING CODE 4910–06–P
E:\FR\FM\22DEP1.SGM
22DEP1
Agencies
[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
[Proposed Rules]
[Pages 83484-83509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27085]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 270 and 271
[Docket No. FRA-2015-0122, Notice No. 1]
RIN 2130-AC54
Fatigue Risk Management Programs for Certain Passenger and
Freight Railroads
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Rail Safety Improvement Act of 2008, FRA
proposes to issue regulations requiring certain railroads to develop
and implement a Fatigue Risk Management Program, as one component of
the railroads' larger railroad safety risk reduction programs.
DATES: Written comments must be received by February 22, 2021. Comments
received after that date will be considered to the extent practicable
without incurring additional expense or delay.
ADDRESSES: Comments related to Docket No. FRA-2015-0122 may be
submitted by going to https://www.regulations.gov and 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 (2130-AC54). Note that all comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information on any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Audit
Management Division, at 202-493-6224 or [email protected]; Amanda
K. Emo, Ph.D., Fatigue Program Manager, at 202-281-0695 or
[email protected]; or Colleen A. Brennan, Deputy Assistant Chief
Counsel, at 202-493-6028 or [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Introduction and Executive Summary
A. Purpose of Rulemaking
B. Summary of Costs and Benefits
II. Rulemaking Authority and Background
A. RSIA
1. Mandate for Rulemaking on Railroad Safety Risk Reduction
Programs
2. Mandate for Rulemaking on Fatigue Management Plans
3. Authority for Rulemaking on Information Protection
B. Fatigue and Fatigue Risk Management Plans
III. Railroad Safety Advisory Committee Process
A. Fatigue Management Plans Working Group
B. Task Forces
IV. FRMP Considerations
A. General Overview
B. Roles and Responsibilities
C. Components of an FRMP
1. Identifying Safety Hazards
2. Assessing Risks Associated With Identified Hazards
3. Prioritizing Risks and Implementing Mitigation
4. Summary of the Work of the FRMP Working Group's Task Forces
5. Tracking Performance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Orders 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Analysis
C. Federalism
D. International Trade Impact Assessment
E. Paperwork Reduction Act
F. Environmental Assessment
G. Executive Order 12898 (Environmental Justice)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Privacy Act Statement
I. Introduction and Executive Summary
A. Purpose of Rulemaking
This proposed rule is part of FRA's efforts to improve rail safety
continually and to satisfy the statutory mandate of Section 103 of the
Rail Safety Improvement Act of 2008 (RSIA).\1\ That section, codified
at 49 U.S.C. 20156, requires Class I railroads; railroad carriers with
inadequate safety performance (ISP), as determined by the Secretary;
and railroad carriers that provide intercity rail passenger or commuter
rail passenger transportation to develop and implement a safety risk
reduction program to improve the safety of their operations. The
section further requires a railroad's safety risk reduction program to
include a ``fatigue management plan'' meeting certain requirements.
---------------------------------------------------------------------------
\1\ Section 103, Public Law 110-432, Division A, 122 Stat. 4848
et seq.
---------------------------------------------------------------------------
This proposed rule, if finalized, would fulfill RSIA's mandate for
railroads to include fatigue management plans in their safety risk
reduction programs by requiring railroads to develop and implement
Fatigue Risk Management Programs (FRMPs).\2\ As proposed, a railroad
would implement its FRMP through an FRMP plan.
---------------------------------------------------------------------------
\2\ Section 20156 uses the term ``fatigue management plans'' so
sections of this preamble discussing the statutory requirements
likewise use this term, as do the sections discussing the Railroad
Safety Advisory Committee task statement on fatigue and Fatigue
Working Group. However, because section 20156 requires fatigue to be
addressed as part of a railroad's safety risk reduction program, for
consistency with the terminology used in FRA's final rules governing
those programs (81 FR 53849 (Aug. 12, 2016) and 85 FR 9262 (Feb. 18,
2020)), elsewhere throughout this proposed rule, FRA uses the terms
``fatigue risk management program'' (FRMP) and ``FRMP plan.''
---------------------------------------------------------------------------
Under this proposed rule, consistent with the mandate of Section
20156, an FRMP is a comprehensive, system-oriented approach to safety
in which a railroad determines its fatigue risk by identifying and
analyzing applicable hazards and takes action to mitigate, if not
eliminate, that fatigue risk.\3\ As proposed, a railroad would be
required to prepare a written FRMP plan and submit it to FRA for review
and approval. A railroad's written FRMP plan would become part of its
existing safety risk reduction program plan. A railroad would also be
required to implement its FRA-approved FRMP plan, conduct an internal
annual assessment of its FRMP, and consistent with Section 20156's
mandate, update its FRMP plan periodically. As part of a railroad
safety risk reduction program, a railroad's FRMP would also be subject
to assessments by FRA.
---------------------------------------------------------------------------
\3\ Risk is defined as a combination of the probability of an
adverse event occurring and the potential severity of that adverse
event. Fatigue increases the likelihood of certain negative events
occurring. Therefore, reducing fatigue helps reduce fatigue-related
risks. See United States Department of Transportation, Partnering in
Safety: Managing Fatigue: A Significant Problem Affecting Safety,
Security, and Productivity, 1999.
---------------------------------------------------------------------------
B. Summary of Costs and Benefits
FRA estimated the costs and benefits of this proposed rule using
discount rates of 3 and 7 percent over a ten-year time horizon. FRA
presents monetized costs and benefits where possible and discusses
those non-quantifiable elements qualitatively where data is
[[Page 83485]]
lacking. Details on the estimated costs and benefits of this proposed
rule can be found in the rule's economic analysis, which has been
included in the docket.
In preparing the economic analysis, FRA estimated that the total
costs and benefits over 10 years for the implementation of an FRMP and
the fatigue training mitigation for Class I railroads and the 50 ISP
railroads subject to this proposed regulation. FRA was unable to
quantify costs or benefits for passenger railroads and discusses the
implementation of the proposed regulation qualitatively within the
Regulatory Impact Analysis which has been placed into the docket.
FRA also estimated the total costs over 10 years to develop and
monitor FRMP plans for Class I railroads, passenger and commuter
railroads, and the 50 ISP railroads subject to this proposed
regulation. The proposed regulation will also impose a new economic
cost on the agency over the 10-year period, to review and audit the
FRMPs.
Please see Table I.B for the total costs and benefits associated
with the proposed rule.
Table I.B--10-Year Costs and Benefits--Training Only Mitigation
----------------------------------------------------------------------------------------------------------------
Present value Present value Annualized at Annualized at
Calculation aid Costs 7% 3% 7% 3%
----------------------------------------------------------------------------------------------------------------
A............................. Training Only $2.02 $2.04 $0.29 $0.24
(low).
B............................. Training Only 4.13 4.18 0.59 0.49
(high).
C............................. FRMP Plan 0.89 1.04 0.13 0.12
Creation.
D............................. Government Costs 2.03 2.59 0.29 0.30
A + C + D..................... Total Cost (low) 4.94 5.68 0.70 0.67
B + C + D..................... Total Cost 7.05 7.81 1.00 0.92
(high).
A + C......................... Total Cost w/o 2.91 3.08 0.41 0.36
Government
Costs (low).
B + C......................... Total Cost w/o 5.01 5.22 0.71 0.61
Government
Costs (high).
Benefits........ .............. .............. .............. ..............
Training Only 5.41 6.33 0.77 0.74
(low).
Training Only 21.65 25.34 3.08 2.97
(high).
----------------------------------------------------------------------------------------------------------------
II. Rulemaking Authority and Background
A. RSIA
1. Mandate for Rulemaking on Railroad Safety Risk Reduction Programs
The RSIA requires the Secretary of Transportation (Secretary) to
issue regulations requiring certain railroads to develop and implement
a ``railroad safety risk reduction program.'' \4\ Under RSIA, as part
of their railroad safety risk reduction programs, railroads must
analyze the risks associated with aspects of their operations that
affect railroad safety and based on that risk analysis, railroads must,
through their railroad safety risk reduction programs, mitigate risks
to railroad safety.\5\ Among other requirements, the RSIA requires
railroads to consult with ``directly affected employees'' and their
labor organizations on the content of their safety risk reduction
programs, including the fatigue management plan component.\6\
---------------------------------------------------------------------------
\4\ Public Law 110-432, Div. A, sec. 103 (49 U.S.C. 20156).
\5\ Sec. 20156(d)(1).
\6\ 49 U.S.C. 20156(f) and (g)(1).
---------------------------------------------------------------------------
The Secretary delegated responsibility for carrying out the mandate
of Section 20156 to the FRA Administrator.\7\
---------------------------------------------------------------------------
\7\ 49 CFR 1.89, 77 FR 49965 (August 17, 2012); see also 49
U.S.C. 103(g).
---------------------------------------------------------------------------
Section 20156(a)(1) mandates that each of the following types of
railroads would have to comply with this proposed regulation: (1) Class
I railroads; (2) railroad carriers with ISP; and (3) railroad carriers
that provide intercity rail passenger or commuter rail passenger
transportation. This preamble refers to the railroads that would be
subject to this proposed rule as ``covered railroads.''
To implement the requirements of Section 20156, FRA published the
System Safety Program (SSP) final rule implementing the railroad safety
risk reduction program mandate for passenger railroads on August 12,
2016.\8\ On February 18, 2020, FRA published the Risk Reduction Program
(RRP) final rule implementing the mandate for Class I freight and ISP
railroads.\9\
---------------------------------------------------------------------------
\8\ 81 FR 53849.
\9\ 85 FR 9262. The RRP final rule also defines ``railroad
carriers with inadequate safety performance'' to whom this proposed
rule would apply. 49 CFR 271.13, 85 FR at 9316-9317.
---------------------------------------------------------------------------
Both the SSP and RRP rules allow a railroad to tailor its program
to its unique operating characteristics.\10\ All railroads that must
develop either an RRP or an SSP would also have to develop an FRMP as a
component of the RRP or the SSP.
---------------------------------------------------------------------------
\10\ SSP Final Rule at 81 FR 53849, August 12, 2016, and RRP
Final Rule at 85 FR 9262, February 18, 2020.
---------------------------------------------------------------------------
Both RRPs and SSPs reflect comprehensive, system-oriented
approaches to improving safety, by which an organization formally
identifies and analyzes applicable hazards and takes action to
mitigate, if not eliminate, the risks associated with those hazards.
RRPs and SSPs provide a railroad with a framework for processes and
procedures that can help it plan, organize, direct, and control its
business activities in a way that enhances safety and promotes
compliance with regulatory standards. As such, risk reduction and
system safety programs are a form of ``safety management system,''
which is a term that generally refers to a comprehensive, systematic
approach to managing safety throughout an organization.
Safety management systems were developed to ensure high safety
performance in various industries, including aviation, passenger
railroad, nuclear, and other industries with the potential for
catastrophic accidents. For ease of understanding, the elements of a
safety management system are typically grouped into larger descriptive
categories. These descriptive categories include: (1) An organization-
wide safety policy; (2) formal methods for identifying hazards, and for
prioritizing and mitigating risks associated with those hazards; (3)
data collection, data analysis, and evaluation processes to determine
the effectiveness of mitigation strategies and to identify emerging
hazards; and (4) outreach, education, and promotion of an improved
safety culture within the organization.
Effective implementation of all the elements of an RRP or SSP,
including the FRMP this proposed rule would
[[Page 83486]]
require, will foster continuous safety improvement.\11\
---------------------------------------------------------------------------
\11\ For a more detailed discussion of safety management systems
and FRA risk reduction programs, see FRA's final RRP and SSP rules.
85 FR 9265 (RRP final rule) and 81 FR 53853-54 (SSP final rule).
---------------------------------------------------------------------------
2. Mandate for Rulemaking on Fatigue Management Plans
Sections 20156(d)(2) and (f) of the RSIA mandate that as part of a
railroad's safety risk reduction program, a railroad must develop and
implement a fatigue management plan ``designed to reduce the fatigue
experienced by safety-related railroad employees and to reduce the
likelihood of accidents, incidents, injuries, and fatalities caused by
fatigue.'' \12\ The statute requires railroads to update their fatigue
management plans at least once every two years, with each update
subject to FRA review and approval.\13\ Section 20156(f)(2) also
requires each railroad's fatigue management plan to take into account
the varying circumstances of operations on different parts of its
system, and to prescribe appropriate fatigue countermeasures to address
the varying circumstances.
---------------------------------------------------------------------------
\12\ Sec. 20156(f)(1).
\13\ Id.
---------------------------------------------------------------------------
Finally, Section 20156(f)(3) requires a covered railroad to
consider the need to include in its fatigue management plan elements
addressing each of the following items, as applicable: (1) Employee
education and training on the physiological and human factors that
affect fatigue, as well as strategies to reduce or mitigate the effects
of fatigue, based on the most current scientific and medical research
and literature; (2) opportunities for identification, diagnosis, and
treatment of any medical condition that may affect alertness or
fatigue, including sleep disorders; (3) effects on employee fatigue of
an employee's short-term or sustained response to emergency situations,
such as derailments and natural disasters, or engagement in other
intensive working conditions; (4) scheduling practices for employees,
including innovative scheduling practices, on-duty call practices, work
and rest cycles, increased consecutive days off for employees, changes
in shift patterns, appropriate scheduling practices for varying types
of work, and other aspects of employee scheduling that would reduce
employee fatigue and cumulative sleep loss; (5) Methods to minimize
accidents and incidents that occur as a result of working at times when
scientific and medical research have shown increased fatigue disrupts
employees' circadian rhythm; (6) alertness strategies, such as policies
on napping, to address acute drowsiness and fatigue while an employee
is on duty; (7) opportunities to obtain restful sleep at lodging
facilities, including employee sleeping quarters provided by the
railroad carrier; (8) the increase of the number of consecutive hours
of off-duty rest, during which an employee receives no communication
from the employing railroad carrier or its managers, supervisors,
officers, or agents; (9) avoidance of abrupt changes in rest cycles for
employees, and (10) additional elements that the Secretary considers
appropriate.
3. Authority for Rulemaking on Information Protection
Section 109 of the RSIA specifies that subject to specific
exceptions, certain railroad safety risk reduction records obtained by
the Secretary are exempt from the public disclosure requirements of the
Freedom of Information Act (FOIA).\14\ Both the SSP and RRP final rules
implement these authorized information protections. Further, FRA has
concluded section 20118 is a FOIA Exemption 3 statute and, therefore,
would exempt, as part of a railroad's safety risk reduction program,
FRMP records in FRA's possession from mandatory disclosure under FOIA
(unless one of two statutory exceptions apply).\15\
---------------------------------------------------------------------------
\14\ 49 U.S.C. 20118.
\15\ 80 FR at 10957-10958.
---------------------------------------------------------------------------
B. Fatigue and Fatigue Risk Management Plans
Humans 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. Such disruptions may
also impair human performance, and may cause a general feeling of
debility until realignment is achieved. For instance, the experience of
jet lag is comparable to the experience of working schedules that vary
among different duty shifts, and similar disruptions in human
performance occur. Research has shown that fatigue is a multivariate
condition, being either directly or secondarily affected by
physiological and environmental variables such as sleep loss, workload,
stress, monotony, workplace ergonomics, age, health, medications,
noise, and circadian disruption. Symptoms of fatigue include, but are
not limited to, falling asleep, increased reaction time, loss of
attentional capacity, and decline of short-term and working memory
function which may impair performance, increase error, and increase
accident risk.
The Federal Government requires railroads to manage their
employees' fatigue associated with railroad operations through
prescriptive hours of service (HOS) limitations and rest requirements.
See 49 U.S.C. 21103, 21104, and 21105 and regulations at 49 CFR part
228, subpart F (implementing 49 U.S.C. 21102 and 21109). HOS
limitations are generally based on the assumption that fatigue simply
increases as time passes; therefore, the longer the time on task, the
greater the risk for fatigue. However, this approach does not account
for factors such as sleep loss, amount of sleep, circadian rhythms,
sleep quality (which may be impacted by environmental factors or
sleeping accommodations), and even the effects of the type of task
being performed on the resulting level of fatigue. Furthermore, the HOS
limitations and rest requirements apply only to individuals who perform
certain types of work and do not cover all railroad employees (e.g.,
ordinarily, not maintenance-of-way employees or carmen). Laws and
regulations following this model, therefore, may reduce, but cannot
eliminate, the conditions that contribute to fatigue.\16\ An FRMP, on
the other hand, is intended to be a systematic program to address
fatigue in a dynamic manner.
---------------------------------------------------------------------------
\16\ Thomas, G., Raslear, T., & Kuehn, G. (1997), The effects of
work schedule on train handling performance and sleep of locomotive
engineers: A simulator study, Report No. DOT/FRA/ORD-97-09),
Washington, DC: Federal Railroad Administration; available at:
https://www.fra.dot.gov/eLib/details/L04245.
---------------------------------------------------------------------------
An FRMP is a form of a safety management system. Like the other
elements of an RRP and an SSP, an FRMP implements organizational
policies, processes, and procedures to reduce safety risk in a
railroad's operations. An FRMP is a data-driven and scientifically-
based process that allows for periodic review and management of safety
risks associated with fatigue-related error(s). Like other safety
management systems, an FRMP applies the risk management process to
identify fatigue risks through the use of data-established, scientific
principles. An FRMP includes collecting and analyzing fatigue-related
safety data and implementing corrective actions--always encouraging
continuous improvement. This proposed rule would require railroads to
develop FRMPs that are consistent with these general principles.
[[Page 83487]]
An effective FRMP implements processes and procedures for
measuring, modeling, managing, mitigating, and reassessing fatigue risk
in a specific operational setting. The primary stakeholders--the main
persons with the authority and/or interest to improve conditions to
reduce fatigue--would implement FRMP processes. In the case of this
specific rulemaking, that stakeholder group would include
representation from management and labor (union representation, if
applicable) and may also include scientific consultants.
By combining schedule assessment, operational data collection,
continuous and systematic analysis, and both proactive and reactive
fatigue mitigation techniques, guided by information provided by
scientific studies of fatigue, an FRMP offers a way to conduct railroad
operations more safely by offering a global, comprehensive, and
specific approach that complements statutory or regulatory HOS
limitations. An FRMP would provide an interactive and collaborative
approach to improving operational performance and safety levels on a
case-by-case basis. Therefore, an FRMP would permit a railroad to adapt
policies, procedures, and practices to the specific conditions that
create fatigue in a particular railroad setting. A railroad could
tailor its FRMP to unique operational demands and focus on techniques
for mitigating risk caused by fatigue that are practical within the
specific operational environment. This flexibility would also allow a
railroad to alter its FRMP based on changing needs, new research, data
from an existing FRMP, comments from labor and management, and
established best practices.
III. Railroad Safety Advisory Committee Process
In December 2011, FRA asked the Railroad Safety Advisory Committee
(RSAC) to accept a task to address the fatigue management plan mandate
of the RSIA.\17\ The RSAC voted to accept the task and on December 8,
2011, the RSAC formed the Fatigue Management Plans Working Group
(Working Group). Members of the Working Group included physicians,
human factors psychologists, railroad schedulers, and other
representatives of railroad management and labor, as well as FRA
employees.
---------------------------------------------------------------------------
\17\ Railroad Safety Advisory Committee Task Statement: Fatigue
Management Plans, Task No.: 11-03, Dec. 8, 2011. The Task Statement
read as follows:
Review the mandates and objectives of the [RSIA] related to the
development of Fatigue Management Plans, determine how medical
conditions that affect alertness and fatigue will be incorporated
into Fatigue Management Plans, review available data on existing
alertness strategies, consider the role of innovative scheduling
practices in the reduction of employee fatigue, and review the
existing data on fatigue countermeasures.
---------------------------------------------------------------------------
The Working Group formed three Task Forces to address particular
aspects of the RSIA mandate in more detail: (1) The Education and
Training Task Force; (2) the Scheduling Task Force; and (3) the
Infrastructure and Environment Task Force. The Task Forces met multiple
times throughout 2012 and 2013 and the Working Group itself met eight
times during the same period.
After initially reaching consensus on draft rule text in June 2013,
the Working Group did not reach consensus as to how its recommendations
should be implemented. The Task Forces had developed a multitude of
documents, which Labor representatives on the Working Group wanted
published as appendices to the regulation. Railroad management members
of the Working Group, on the other hand, asserted that the documents
should not be published as appendices to the regulation, but instead
recommended that the documents be made available on the FRA website and
in the rulemaking docket for all parties to use in the required
consultation process as part of developing railroads' FRMPs. As a
result, in late 2013, FRA withdrew the task from the RSAC, and as the
agency worked to implement other aspects of the safety risk reduction
program mandate of the RSIA (i.e., the RRP and SSP rules), the Agency
began developing a rule specifically to address the RSIA's mandate that
fatigue management plans be included as part of railroads' safety risk-
reduction programs.
Although the RSAC did not make a consensus recommendation to FRA
related to fatigue, FRA believes that information developed and
documented during the RSAC process is informative and will be very
useful to railroads required to develop FRMP plans. FRA made minor
amendments to the June 2013 draft rule text to clarify it and make it
more consistent with similar rule text in the SSP and RRP rules.
However, the substance of this proposed rule text is the same as the
draft rule text the Working Group voted to approve.
Accordingly, the proposals in this NPRM reflect FRA's consideration
of the Working Group's recommended rule text and the documents
developed by each of the three Task Forces. Those RSAC-developed
documents are included in the rulemaking docket.
The RSIA does not mandate, and this NPRM does not propose to
include, language specifically addressing the predictability of work
schedules. However, the RSIA does require railroads to consider
scheduling practices, of which predictability is one factor. There is
significant discussion of predictability throughout this document,
particularly when describing the Task Force discussions and the complex
issues addressed in the Task Force documents that will inform
railroads' analysis of fatigue risks and their efforts to mitigate the
identified fatigue risks in consultation with employees and labor
organizations. However, the proposed rule requires railroads to
consider several factors, including work schedule predictability, but
does not require any particular factor to be analyzed.
The NPRM also does not propose to include the Task Force documents
as appendices to this proposed rule. As FRA previously explained to the
members of the Working Group, many of these documents are written
informally, for the use of railroads and labor in developing FRMP
plans. The documents are best practices generated by the Working Group,
but are not specifically FRA guidance and, therefore, should not be in
an appendix to an FRA regulation. In addition, the content of the Task
Force documents is subject to change based on advances in fatigue
science, changes in railroad operations, and experience with FRA's SSP
and RRP rules and the development and implementation of FRMPs and FRMP
plans. The Task Force documents should be easy to update as necessary
so that they are most beneficial to those using them. If they were
published as appendices to the regulation, changing them would require
the cumbersome process of publishing them in the Federal Register, and
the industry would be left with outdated or less useful documents until
revisions could be completed. For the convenience of readers, however,
the full text of each of these documents can be found in the docket for
this rulemaking.
B. Task Forces
As noted above, paragraph (f)(3) of Section 20156 requires
railroads to consider including 10 different elements in their fatigue
management plans.
The Working Group assigned the Education and Training Task Force to
address section 20156(f)(3) subparagraphs (A), (B), (E), and (F),
specifically:
Employee education and training on the physiological and
human factors that affect fatigue;
Medical and scientific research-based fatigue mitigation
strategies;
[[Page 83488]]
Opportunities for identification, diagnosis, and treatment
of any medical condition that may affect alertness or fatigue,
including sleep disorders;
Methods to minimize accidents and incidents during
circadian low periods; and
Alertness strategies.
The Task Force produced a document outlining existing railroad
fatigue educational resources; a document outlining potential fatigue
training topics; fatigue education dissemination and evaluation
strategies; and a document outlining fatigue countermeasures.
The Working Group assigned the Scheduling Task Force to address
subparagraphs (D), (H), and (I) of the required elements outlined in
section 20156(f)(3).
The task statement specifically included:
Innovative scheduling practices;
On duty call practices;
Work and rest cycles;
Increased consecutive days off;
Other aspects of employee scheduling that would reduce
employee fatigue and cumulative sleep loss;
The increase of the number of consecutive hours of off-
duty rest; and
Avoidance of abrupt changes in rest cycles for employees.
The Working Group assigned the Infrastructure and Environment Task
Force to address subparagraphs (C) and (G) of section 20156(f)(3)
including:
Effects on employee fatigue of an employee's short term or
sustained response to emergency situations;
Opportunities to obtain restful sleep at lodging
facilities; and
Effects of environmental conditions (e.g., temperature,
vibrations, etc.) on employee fatigue.
The Task Force created documents on emergency work, lodging
facilities, and dispute resolution.
IV. FRMP Considerations
This proposed rule, if finalized, will fulfill the requirement of
paragraph (d) of Section 20156 that a covered railroad's railroad
safety risk reduction program include a fatigue management plan. This
rule would amend both Parts 270 and 271, adding a subpart to both parts
requiring railroads to develop and implement FRMPs. This section
provides a summary of potential methods and considerations for
developing and maintaining a FRMP. FRA welcomes comments on the
discussion in this section, including thoughts on how to develop and
maintain an effective FRMP. Unless specifically identified as a
statutory or regulatory requirement, the information and suggestions
contained in this section are not meant to bind the public in any way,
and is intended only to provide clarity to the public regarding this
proposal and information to aid in compliance if the proposal is
finalized.
A. General Overview
This proposed rule would require each covered railroad to establish
and periodically update an FRMP plan, which explains the railroad's
method of analysis of fatigue risks and the processes for implementing
the FRMP. FRA would review and approve the FRMP plan. FRA proposes that
requirements for the filing, approval, and amendment of the FRMP plan
be made the same as for other components of RRP or SSP plans so those
requirements are not set forth in this proposed rule. Instead, the
proposed rule text cites to the sections of the SSP and RRP rules that
contain those procedures.\18\ Because railroads will have submitted
their SSP plans or RRP plans to FRA under part 270, subpart C, or part
271, subpart D before this proposed rule becomes final, railroads would
need to amend their SSP plan or RRP plan to include an FRMP plan. Thus,
a railroad would follow the procedures in Sec. 270.201(c) or 271.303
to amend its SSP plan or RRP plan.
---------------------------------------------------------------------------
\18\ 49 CFR 271.301 Filing and approval, 271.303 Amendments, and
49 CFR 270.201 Filing and approval.
---------------------------------------------------------------------------
As part of their FRMP, covered railroads would be required to
identify fatigue-related safety hazards, to assess the risks associated
with those hazards, and to prioritize those risks for mitigation. These
railroads would be required to consider certain categories of risk as
part of the FRMP, and to consider the development and implementation of
policies and practices to reduce risks, related specifically to the
items identified in the RSIA as items railroads are required to
consider.
FRA proposes that railroads be required to adopt and implement
their FRMP through an FRMP plan describing the railroads' processes for
conducting their fatigue-risk analysis, including the processes for the
identification of fatigue-related railroad safety hazards and resulting
risks, processes for the development and implementation of mitigation
measures, processes for the evaluation of the FRMP and its
effectiveness, and procedures for the review and update of the FRMP
plan. The FRMP plan would also describe processes, milestones, and
timelines for the implementation of the FRMP.
Finally, the proposed rule contains no express requirements on
information protection or consultation, because the information
protection and consultation requirements in the RRP and SSP rules would
apply to the FRMP, the FRMP plan, and their related documents, just as
those requirements would apply to similar documents on other aspects of
the RRP or SSP. As required by the RSIA, fatigue management plans are
required elements of a railroad's statutorily-mandated railroad safety
risk reduction program. Therefore, the statutory requirements on
information protection and consultation, implemented in the SSP and RRP
final rules, would also apply to the documents required by this
proposed rule to implement the required fatigue component of each
railroad's RRP or SSP. Regarding information protection, as with RRP
and SSP, only information compiled or collected solely for developing,
implementing, or evaluating a railroad's FRMP would be protected.\19\
---------------------------------------------------------------------------
\19\ For a detailed discussion of information protection, see
the SSP final rule at 81 FR 53855-56 and 53878-82, and RRP final
rule at 85 FR 9266-9272 and 9279-9282. For more information on the
consultation requirements, see the SSP final rule at 81 FR 53856,
53882-87 and 49 CFR part 270 app. B, and RRP NPRM at 85 FR 9266,
9299-9303.
---------------------------------------------------------------------------
B. Roles and Responsibilities
Consistent with the program requirements of an RRP or SSP,\20\ an
FRMP is an ongoing program that supports continuous safety improvement,
and requires systematic evaluation and management of risks. An FRMP is
more than a document; it is a living program that is implemented by
members of the organization who regularly meet to review data on
fatigue indicators, analyze contributing factors to fatigue, take
necessary actions (reactive and proactive) to mitigate fatigue,
objectively audit the effectiveness of the system, and take corrective
action continuously to improve the system. Consistent with comments
made at the Working Group meetings, FRA expects most railroads will
form a dedicated fatigue management committee to implement the program.
The committee should include representatives of all departments and
groups, including labor representatives as appropriate, that have a
role in reporting, managing, and mitigating fatigue.
---------------------------------------------------------------------------
\20\ 49 CFR 271.101(a), 270.101, and 270.103(p)(vii).
---------------------------------------------------------------------------
SSPs and RRPs require outreach to employees so that they can
understand why certain actions are taken, or why certain safety
procedures are introduced
[[Page 83489]]
or changed.\21\ As this relates to an FRMP, it means that all safety-
related personnel need to understand the corporate policies that
underlie the FRMP; these may include policies and procedures that
govern: Fatigue reporting, fitness-for-duty, absence due to fatigue,
incident reporting, employee privacy, and prohibitions on coercion to
perform duties while fatigued.
---------------------------------------------------------------------------
\21\ 49 CFR 271.107 and 270.103(i)(4).
---------------------------------------------------------------------------
As provided in the RSIA, the three main stakeholders in the FRMP
are railroad management, railroad employees (including nonprofit
employee labor organizations), and FRA. Each of these stakeholders
plays an important role in implementing an FRMP successfully. Railroad
management must develop, document, and implement an FRMP, tailored to
the size of the railroad, in a collaborative environment with relevant
stakeholders; it must also then allocate the resources required to
implement any fatigue countermeasures in a timely fashion. FRA notes
that the RSIA, in multiple places, specifically requires railroads to
develop and implement elements of their programs based on the latest
scientific principles.\22\ FRA will review, and as appropriate, approve
each railroad's FRMP plan, and evaluate to ensure that the railroads
are complying with their plans.
---------------------------------------------------------------------------
\22\ 49 U.S.C. 20156(f)(3)(A) and (E) specifically require
railroads to consider scientific and medical research, in
determining whether to include certain elements in their FRMP. The
other elements of Sec. 20156(f)(3) require railroads to consider
various scientific concepts, such as medical conditions, cumulative
fatigue, and circadian rhythms.
---------------------------------------------------------------------------
These general roles and functions are not an exhaustive description
of the various actions each group could take during the development and
execution of the FRMP.
C. Components of an FRMP
As proposed, a railroad's FRMP must consist of actions taken by the
railroad pursuant to formally documented policies, processes, and
procedures intended to mitigate fatigue risk. It incorporates specific
components that enable the following: (1) Identifying safety hazards
associated with fatigue; (2) assessing the risks associated with
identified hazards; (3) prioritizing risks for mitigation and
implementing mitigation strategies for those risks; and (4) tracking
the performance and effectiveness of each mitigation strategy and
reviewing and revising an FRMP based on results.
1. Identifying Safety Hazards
a. Examples of Methods of Identifying Safety Hazards
A risk-based hazard analysis \23\ identifies operational processes,
procedures, or activities that increase the likelihood of fatigue, and
lays the foundation for subsequent assessment and mitigation of risks
associated with the fatigue hazards identified. Hazards may be
identified through quantitative, data-driven methods; through
qualitative processes such as discussions, interviews, and
brainstorming; or through a combination of both approaches. Identifying
a hazard does not guarantee that it will be selected for mitigation.
---------------------------------------------------------------------------
\23\ Although the RSIA uses the term ``risk analysis,'' FRA uses
``risk-based hazard analysis'' because it is more consistent with
the terminology used in the SSP and RRP rules, as defined in 49 CFR
270.5 and 49 CFR 271.5.
---------------------------------------------------------------------------
In general, data-driven methods identify and record hazards through
a systematic process that allows for tracking and further analysis.
These methods could use various types of recorded observations, such as
records of actual schedules, efficiency testing, accident/incident
investigations, company audits, employee surveys, close-call or
hazardous condition reports, and others. Simulations may also be used
to identify potential hazards and to estimate the potential severity of
outcomes.
Understanding the current conditions within a railroad is critical
for a railroad's ability to identify fatigue hazards accurately.
Important sources of information include current schedules, train
lineups, throughput, and operating practices. Employee reports of
fatigue or fatigue-related errors and incidents, and information on the
work schedules that led up to them, would also be valuable. Likewise,
employees may be able to provide information regarding travel
assignments and random duty reports.
Comprehensive and objective accident, incident, and error analyses
can also be conducted to determine when fatigue has been a potential
contributing factor. The identified fatigue-sensitive situations can
then be addressed to mitigate or to avoid them in the future. For
example, if analyses identify a high probability of a specific error
occurring during the hours when employees are highly susceptible to
fatigue, engineering or procedural safeguards could potentially be put
in place to minimize or eliminate the possibility of that error
recurring.
In addition to data-driven methods, qualitative methods that are
often founded on expert judgment can be very effective at identifying
fatigue hazards. Examples of qualitative hazard identification methods
include, but are not limited to, the following:
Brainstorming may be useful for identifying hazards in new
or novel systems. Ideally, it involves all key stakeholders, is
relatively quick and easy, and can be applied to a wide range of
systems. Because brainstorming is commonly unstructured, it may not be
comprehensive. The success of brainstorming depends heavily on the
expertise of the participants and may be susceptible to the influence
of group dynamics.
Checklists are inventories of known hazards. They can be
used by people who are not experts in the operation or system being
analyzed, to capture a wide range of existing knowledge and experience,
and help ensure that common and obvious problems are not discounted,
minimized, or overlooked. However, checklists may be less useful for
unusual operations or systems, may inhibit expansive thinking, or may
overlook hazards that have not been previously or widely observed.
Failure Modes and Effects Analysis (FMEA) is a reliability
assessment technique built upon a detailed system description used to
evaluate the ways in which basic system processes, components, or
subcomponents can fail to perform safely. FMEA considers all the
potential ways a component could fail, the effects of these failures on
the system, possible causes of the failures, and how the failures might
be mitigated. See Figure 1. FMEA is a systematic and rigorous
evaluation approach that can yield a detailed record of the hazard
identification process, and can be applied to a wide range of types of
systems. However, it primarily focuses on single point-of-failure modes
rather than combinations of failures, relies heavily upon individuals
with detailed system knowledge, and can be both time-consuming and
expensive.
[[Page 83490]]
[GRAPHIC] [TIFF OMITTED] TP22DE20.000
Structured What-If Technique (SWIFT) is a form of
facilitated brainstorming, typically carried out on a higher-level
system description with relatively few subcomponents, involving a
multidisciplinary team of experts. The facilitator uses various
prompts, such as ``what if,'' ``could someone,'' or ``has anyone ever''
questions to initiate discussion within the group. SWIFT creates a
detailed record of the hazard identification process, and can consume
less time than some other methods. However, successful application
requires careful preparation, relies on the expertise and experience of
the team, and depends heavily on the skills of the facilitator.
Operating Hazard Analysis (OHA) is when a team or
individual uses various sources of information to identify hazards
resulting from the operation and maintenance of a system, following a
structured and formal process. In addition to the engineering design
analysis at which FMEA excels, OHA is structured so that human
performance and human interactions can be included in the analysis.
Information sources can include analyses of known hazards, written
procedures and manuals, engineering system descriptions, and other
materials to analyze detailed procedures performed during system
operation.
Hazard identification software programs are designed to
support the identification of hazards using a systematic method.
Programs are available that provide structured guidance for identifying
general hazards or only fatigue-specific hazards. Such software may
also offer the ability to catalog the resultant fatigue-related risks
to help railroads prioritize risks.
Employee workshops may be used to engage employees in the
railroad's hazard analysis. Employees can share their experiences and
concerns relating to fatigue with the goal of identifying fatigue
hazards, related risks, and potential solutions or mitigations.
These are just some of the methods available for identifying
hazards. Each has advantages and disadvantages, and a combination of
two or more methods may minimize any shortcomings.
b. Specific Fatigue-Related Hazards To Consider
A number of individual, organizational, or environmental factors
can contribute to the likelihood of fatigue. As provided in the RSIA,
these factors should be among the many items considered during a hazard
analysis.\24\
---------------------------------------------------------------------------
\24\ See 49 U.S.C. 20156(c).
---------------------------------------------------------------------------
General health and medical conditions. According
to the National Sleep Foundation,\25\ there are several medical
conditions or treatments of those conditions that may affect alertness.
They include, but are not limited to, obstructive sleep apnea,
insomnia, periodic limb movement disorder (restless leg syndrome),
hypersomnia/narcolepsy (excessive daytime sleepiness), delayed sleep
phase syndrome (circadian misalignment), depression, anxiety,
[[Page 83491]]
bruxism (teeth grinding), night sweats, night terrors, nocturia (waking
several times throughout the night to urinate), poor sleep efficiency,
and residual effects of neurological damage (e.g., stroke).
---------------------------------------------------------------------------
\25\ https://sleepfoundation.org/sleep-disorders-problems.
---------------------------------------------------------------------------
Scheduling issues. Systemic or particular
scheduling and crew-calling practices and issues may affect
opportunities for employees to obtain sufficient quality and quantity
of sleep. Related issues that increase fatigue risks include, but are
not limited to, the following:
On-duty call practices;
Work and rest cycles;
Frequency and duration of days off;
Changes in start times;
Policies regarding napping; and
Policies and practices regarding marking-off.
The level of predictability of work assignments, particularly those
assignments that occur at night, can influence the ability of employees
to anticipate work assignments and obtain necessary off-duty sleep.
Note that work shift or duty tour predictability alone will not
necessarily eliminate fatigue risk, and it is possible for highly
predictable schedules to also have high exposure to fatigue. Other
factors such as time of shift, work-to-rest ratio, and the speed and
direction of shift rotation may also play a role in the employee's
ability to plan for and obtain sufficient sleep.\26\
---------------------------------------------------------------------------
\26\ Rosa, R.R. & Colligan, M.J., Plain language about shiftwork
(DHHS [NIOSH] Publication No. 97-145) (1997), Cincinnati, OH:
National Institute for Occupational Safety and Health, available at:
https://www.cdc.gov/niosh/docs/97-145/pdfs/97-145.pdf.
---------------------------------------------------------------------------
An FRA report \27\ found that high variability in shift start times
contributes to fatigue. Furthermore, FRA research also established that
the probability of rail accidents increases as fatigue increases.\28\
Thus, reducing start time variability could potentially increase
safety. In addition to examining the relationship between start time
variability and fatigue, the report contains information on statistical
methods, including analyzing variance of start times and calculating a
hazard function, which can be used to compare work locations, types of
jobs, and changes in policies and procedures, with regard to fatigue.
---------------------------------------------------------------------------
\27\ Raslear, T.G., Start time variability and predictability in
railroad train and engine freight and passenger service employees
(Report No. DOT/FRA/ORD-14/05) (2014), Washington, DC: U.S.
Department of Transportation.
\28\ Raslear, T.G., Hursh, S.R., & Van Dongen, H.P.A.,
Predicting cognitive impairment and accident risk, in H.P.A. Van
Dongen & G.A. Kerkhof (Eds.), Progress in Brain Research, Vol. 190
(pp. 155-167), Amsterdam, The Netherlands: Elsevier B.V. (2011).
---------------------------------------------------------------------------
Job characteristics can also be a factor, including, but not
limited to, whether the work is physically demanding, whether the work
requires extended travel to a reporting point, and whether the
employees are called upon to respond to emergencies. In general, a
railroad that effectively manages the combined effects of crew
scheduling, employee rostering, additional tasks assigned to employees,
schedule changes, and other factors should succeed at minimizing
fatigue-inducing conditions.
2. Assessing Risks Associated With Identified Hazards
As mandated by the RSIA, a FRMP must systematically identify
fatigue hazards and evaluate fatigue safety risks on the railroad
system. The goal of this hazard analysis is to identify work schedules
and other conditions that put employees at risk for a level of fatigue
that compromises safety.
Different jobs may have different fatigue related risks. As such,
it is important to examine the hazards associated with each job. A
systematic assessment of risk involves: (1) Determining the severity
and likelihood of potential incidents associated with the hazards
identified; (2) assessing risk by evaluating the relative risk of each
identified hazard and how it impacts established safety performance
targets and/or by ranking hazards based on risk; and (3) systematically
determining the order in which risks should be addressed. Selecting the
criteria and methods for establishing priorities in advance will
promote consistent decision making over time. However, flexibility is
needed as risk tolerance levels or prioritizations can change over time
as circumstances dictate.
One tool that railroads may want to consider using to assess their
fatigue-related risk is a biomathematical model. A biomathematical
model of performance and fatigue that has been properly validated and
calibrated predicts accident risk based on analyzing 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 the model actually measures human
performance and fatigue levels. 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 areas of human
performance, sleep, and fatigue level. 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 accident risks not associated with human
factors.
Calibration of the biomathematical model involves the assignment of
numerical values to represent aspects of empirical observations,
similar to marking degrees on a thermometer. In the case of human
fatigue level and performance, the calibration of a fatigue scale would
start with the assignment of values ranging from ``not fatigued'' to
``severely fatigued.'' The calibration process starts during the
validation process with the assignment of model output values to data
bins for ``not fatigued'' and ``severely fatigued.'' The next step
consists of determining the fatigue threshold. Given a scale for human
fatigue level and performance, and a relationship between that scale
and human factors accident risk, a final calibration point would
determine the value at which fatigue becomes unacceptable because the
increase in accident risk at that level compromises safety; this is the
fatigue threshold. Railroads choosing to use biomathematical fatigue
modeling in their schedule analysis will need to establish a fatigue
threshold.
Currently, FRA has validated and calibrated two commercially
available biomathematical fatigue models. These are the Fatigue
Avoidance Scheduling Tool (FAST) and the Fatigue Audit InterDyne
(FAID). However, any validated and calibrated biomathematical fatigue
model may be used in schedule analysis. An FRA-sponsored report details
how any biomathematical fatigue model may be validated and
calibrated.\29\
---------------------------------------------------------------------------
\29\ Hursh, S.R., Raslear, T.G., Kaye, A.S., & Fanzone, J.F.,
Validation and calibration of a fatigue assessment tool for railroad
work schedules, summary report (Report No. DOT/FRA/ORD-06/21)
(2006), Washington, DC: U.S. Department of Transportation.
---------------------------------------------------------------------------
FRA expects that new methods for measuring and assessing fatigue
risk will continue to be developed. If the system provides a
scientifically valid measure of fatigue risk, whether using a
biomathematical modeling tool or another system, its use is acceptable
for purposes of developing and implementing an FRMP.
As discussed below, there are many ways to measure fatigue risk.
The system or metric a railroad ultimately chooses to measure its
fatigue risk will depend on a variety of factors and will be unique to
each railroad. For example, regardless of whether scheduled service
[[Page 83492]]
is covered under statutory HOS requirements (49 U.S.C. Ch. 211),
passenger train employee HOS regulations (49 CFR part 228, subpart F),
or no HOS limitations, a railroad should consider whether to include in
its FRMP an analysis of at least two consecutive cycles of the work
schedules (the period within which the work schedule repeats) of its
safety-related railroad employees. Analyzing more than one cycle of a
work schedule can provide information about cumulative fatigue effects
that would not be apparent if only one work schedule cycle were
analyzed. However, railroads will need to determine how many work
schedule cycles to examine based on factors such as start time
variability, shift start and end time, and type of work being
performed.
When looking at job tasks, some form of a Haddon matrix can be
helpful in determining the risk associated with a particular hazard.
Figure 2 shows a basic Haddon risk matrix, which can be customized to
represent categories of probability and severity that are meaningful
and useful to the railroad. Such a matrix provides a visual
representation of risks. As shown in the matrix, when the probability
of an incident is low and severity is low, the risk is also low.
Conversely, when the probability of an incident is high and severity is
high, the risk is also high.
[GRAPHIC] [TIFF OMITTED] TP22DE20.001
For example, overnight schedules will inevitably include the period
identified as the Window of Circadian Low.\30\ This low point in
performance could be evaluated in relation to the duties to be
performed at that time because an expected raised level of fatigue is
of greater concern if it coincides with the performance of critical or
difficult tasks.
---------------------------------------------------------------------------
\30\ The Window of Circadian Low is the time between 2:00 a.m.
and 6:00 a.m. where individuals are normally adapted to sleep and
performance of tasks during this period may be degraded. See
Advisory Circular 120-100, Basics of Aviation Fatigue, 06/07/10,
U.S. Department of Transportation.
---------------------------------------------------------------------------
Using a fatigue model can be helpful for determining both frequency
and severity of fatigue risk associated with specific schedules.
Modeling is extremely useful because it applies scientific principles
about fatigue to find the specific operational and employee factors
that could contribute to significant performance changes due to
fatigue. In general, modeling cannot consider non-duty-related causes
of fatigue, individual differences related to sleep loss tolerance, and
individual differences in circadian phase and amplitude. Because of
these limitations, modeling should never be used to contradict an
individual's reported fatigue level. However, these models can take
into account the complex interactions among human physiology, work, and
rest times. In the absence of such a model, the interaction of these
factors would be very difficult to specify.
For example, if a fatigue model identified a particular type of
work schedule that would benefit from fatigue mitigation, the railroad
may discover underlying systems issues and factors (e.g., inadequate
rest facilities, lack of napping opportunities) that not only
contribute to fatigue-related risks on that work schedule, but also on
other schedules. The use of fatigue modeling in this way provides
railroads with a method for systematically identifying and addressing
the overall underlying system risks--not just the risks for a given
work schedule.
3. Prioritizing Risks and Implementing Mitigation
Risk assessment processes must include a method for determining
which risks most urgently require mitigation, which could be addressed
at a later time, and which are minor enough that simply monitoring the
hazard would be
[[Page 83493]]
sufficient. Methods commonly used in Safety Management Systems include,
but are not limited to, ranking all risks based on their risk score, or
setting a risk tolerance threshold. If the risk assessment process
includes a risk tolerance threshold, hazards whose associated risk is
above that threshold should be addressed; those with risk below the
threshold need not be mitigated, but should be monitored for change. If
a risk tolerance threshold is not used, the risks should be tackled in
whatever priority order is established during the risk assessment. Once
the assessment of risks associated with fatigue hazards has been
completed, as part of their FRMP, railroads must develop and implement
mitigations to reduce as many of those risks as possible.
Based on an analysis of the factors that lead to fatigue and
practical mitigation alternatives, one or more mitigation options may
be applied to reduce fatigue associated with specific schedules or
situations. Risk mitigations are changes to the way things are done, or
to the conditions under which things are done, that can reduce either
the likelihood or the severity of a hazard. Examples of mitigations
range from small actions, such as replacing a faded sign to improve
visibility, to very large interventions, such as a system-wide rule
change or technology implementation and associated training. The
mitigations selected must be tailored to address at least one of the
risks assessed. Railroads should, however, be alert to potential
unintended consequences of mitigations, and be careful to select
mitigations that minimize the possibility of inadvertently increasing
other risks.
There are many ways railroads can mitigate the specific risk types
that are required under the RSIA as part of an FRMP to be considered
for mitigation. Below are some examples of how a railroad may mitigate
these fatigue risks.
If the risk assessment shows that fatigue risks to the population
of safety-related railroad employees associated with general health and
medical conditions meet the railroad's established criteria for
requiring mitigation, there are several approaches that can be taken.
The railroad can establish new policies, such as those requiring
periodic screening for specific medical conditions. The railroad can
establish practices (e.g., exercise breaks or making healthy foods more
available) that encourage greater general health and fitness to reduce
the likelihood of sleep apnea. The railroad can also take steps to
increase awareness of medical conditions that affect alertness. This
can be accomplished by providing information about the specific medical
condition, its risk factors, prevalence, and how to recognize symptoms,
or by identifying when to seek treatment, how to obtain a diagnosis,
and treatment options.
Information relevant to determining when to seek treatment can
include the time of onset, duration of symptoms, related health
factors, comorbid conditions, and observations from the employee or
family. Observation of these factors can be helpful in distinguishing a
condition such as transient insomnia, which often resolves on its own,
from chronic insomnia, which frequently requires medical treatment.
Railroads could consider informing their safety-related employees that
information from family members may provide insight into a sleep
disorder of which an employee may otherwise be unaware.
Railroads can collect information regarding the medical
professionals involved in diagnosis. For some disorders, this may only
involve an individual's primary care physician. Other disorders may
require consultation from a neurologist, sleep specialist, cognitive
behavioral therapist, or other medical professionals. In addition, it
may be helpful to list or describe the diagnostic tests involved and
the typical time required to obtain diagnosis. For example, a diagnosis
of obstructive sleep apnea may require a sleep study such as a
polysomnography, which generally requires an individual to spend the
night in a sleep center.
Lastly, treatment options could be discussed. For some sleep
disorders, behavioral modifications or lifestyle changes, such as
weight loss, may be sufficient to address the medical condition. Other
medical conditions may require breathing assistance via continuous
positive airway pressure, medical devices (such as night guards or
mandibular advancing devices), or medication.
Sometimes scheduling issues affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of
sleep. When the risk assessment determines that the risks associated
with those schedules meets the railroad's established criteria for
requiring mitigation, methods for mitigating those risks could include:
(1) Identifying methods to minimize accidents and incidents that occur
as a result of working at times when scientific and medical research
has shown that increased fatigue levels disrupt employees' circadian
rhythm; and (2) developing and implementing alertness strategies, such
as policies on napping, to address acute drowsiness and fatigue while
an employee is on duty.
Alertness strategies are generally classified into two broad
categories: Preventative and operational. Preventative countermeasures
are designed to minimize sleep loss and reduce the disruption to
circadian cycles. The benefits of preventative countermeasures can be
long-lasting.\31\ Operational countermeasures are designed to enhance
alertness and task performance and are generally only effective for a
short time.\32\
---------------------------------------------------------------------------
\31\ Preventative countermeasures include: Adequate sleep/
minimizing sleep loss, strategic napping at times such as before
working or during an interim release period, good sleep habits/
environment to maximize opportunities for good quality sleep,
limiting work schedule modification/maximizing schedule
predictability, diet, exercise, fatigue education, model-based
schedule optimization/innovative scheduling and staffing practices,
and opportunities to identify, diagnose, and treat sleep disorders.
\32\ Operational countermeasures include: Alertness aids
including, workplace napping, split sleep, rest breaks, self and
peer monitoring, mental stimulation, worker status alerting or
monitoring technologies, strategies for shifting an employee's
biological clock, bursts of physical activity, increasing the number
of consecutive hours of off-duty rest, during which an employee
receives no communication from the employing railroad's managers,
supervisors, officers, or agents, and avoiding abrupt changes in
rest cycles for employees by improving schedule predictability.
---------------------------------------------------------------------------
Work schedule systems are typically designed to organize the timing
and structure of work to maximize efficiency and productivity, and
seldom are these schedules designed to minimize the safety risks
associated with work schedules that are incompatible with human
biological limitations, such as circadian rhythm.\33\ Fatigue risk in
an industry that operates 24 hours a day, 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 that influence the level of
fatigue risk include the time of day that an employee works, the number
of consecutive hours worked, direction and frequency of schedule
rotation, the number of consecutive days that an employee works, amount
of sleep, and sleep quality. In addition, individual factors such as
sleep disorders, age, and ``morningness/eveningness'' as well as
natural circadian rhythms and environmental and social factors may
affect one's
[[Page 83494]]
fatigue level and alertness.\34\ Developing work schedules that reduce
the risks of fatigue as part of a systematic FRMP may help a railroad
balance its productivity and safety needs.
---------------------------------------------------------------------------
\33\ Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules,
sleep, fatigue, and accidents in the US railroad industry, Fatigue:
Biomedicine, Health & Behavior, 1, 99-115 (2013), available at:
https://www.fra.dot.gov/eLib/details/L04272.
\34\ Horne, J.A., & [Ouml]stberg, O., A self-assessment
questionnaire to determine morningness-eveningness in human
circadian rhythms, International Journal of Chronobiology, 4, 97-110
(1976).
---------------------------------------------------------------------------
4. Summary of the Work of the FRMP Working Group's Task Forces
The FRMP Working Group's Task Forces extensively discussed
mitigation of identified fatigue risks in the areas set forth in the
RSIA.
a. The Education and Training Task Force
The Education and Training Task Force focused on the content and
dissemination of training on the fatigue issues specific to the
railroad industry. The Education and Training Task Force began by
preparing a document summarizing existing fatigue training and
education materials and highlighting the diversity of the materials and
some of the major topics they covered. The document also includes
information on other fatigue educational resources, including The
Railroaders' Guide to Healthy Sleep website, existing FRA fatigue-
related publications, other rail-related fatigue training and
educational resources, and general fatigue resources.
The Education and Training Task Force also created the ``Training
Topics'' document, which identifies appropriate fatigue-related
training topics. The ``Training Topics'' document covers four major
categories: Introductory fatigue training, off-duty fatigue issues,
preventative strategies, and operational strategies. The Task Force
members agreed on the content of most of the sections and subsections.
A few topics represented major areas of concern for both railroad labor
and railroad management.
Both labor and management members of the Task Force asked that a
section on the role of individual differences in fatigue related to
vulnerability, countermeasure efficacy, and performance be included in
the ``Training Topics'' document as a topic for introductory fatigue
training.
The Education and Training Task Force thoroughly discussed the
``Training Topics'' section on shiftwork as a cause of fatigue. Much of
this discussion centered on predictability issues inherent in this type
of work schedule and differing perspectives on how to address
predictability.
Members of the Education and Training Task Force representing labor
organizations also expressed major concerns with the ``Training
Topics'' section on commuting. Specifically, labor did not feel the
commuting section adequately captured the extended commuting
requirements of some employees (e.g., maintenance-of-way), and the
concern that extended commuting is a required activity that contributes
to employee fatigue, even though it occurs during off-duty hours.
In 2019, FRA released a report examining the relationship between
accidents and incidents involving maintenance-of-way employees and
their work schedules to determine the role of fatigue in such accidents
and incidents.\35\ This report may help address some of the concerns
raised by the Education and Training Task Force regarding fatigue
issues experienced by these employees.
---------------------------------------------------------------------------
\35\ Kumagai, J.K. & Harnett, M., Data analysis for maintenance-
of-way worker fatigue, Washington, DC: Federal Railroad
Administration (2019), retrieved from: https://www.fra.dot.gov/eLib/Details/L1984.3.
---------------------------------------------------------------------------
The section of the Training Topics document on scheduling had the
most areas of concern and protracted discussion, particularly on the
issue of schedule predictability.
The Task Force discussed that a fatigue education and training
program must have the following characteristics to be effective: (1)
The program must be technically correct, reflecting current scientific
understanding of the issue being addressed; (2) information must be
meaningful and useful to the intended audience; (3) the materials must
be disseminated appropriately; and (4) the program's impact must be
evaluated. Furthermore, the Task Force discussed the following basic
elements of any fatigue training and education program.
(1) Fatigue definitions: Fatigue is a complex state that is
characterized by a lack of alertness and reduced mental and physical
performance, often accompanied by drowsiness.\36\ Railroads may also
wish to provide other definitions that will be used throughout the
training and education program, including those that are unique to the
railroad.
---------------------------------------------------------------------------
\36\ United States Department of Transportation, Partnering in
Safety: Managing Fatigue: A Significant Problem Affecting Safety,
Security, and Productivity, p. 5 (1999).
---------------------------------------------------------------------------
(2) Signs and symptoms of fatigue: Although signs and symptoms of
fatigue can vary among individuals in both their presence and
magnitude, it is useful to review common signs and symptoms of fatigue.
These should not be limited to physiological symptoms such as excessive
blinking, yawning, or physiological discomfort, but also should include
fatigue-related performance decrements such as increased reaction time.
(3) Causes of fatigue: Although individual differences play a
significant role in how an individual will react to different causes of
or risk factors for fatigue, some of the main causes of fatigue should
be highlighted. These include: Amount of sleep, quality of sleep,
amount of time since last sleep (i.e., number of continuous hours
awake), time of day (circadian rhythm), workload and time on task,
amount of recuperative time between wakeful episodes, sleep disorders
and co-morbid conditions (e.g., stress, depression, anxiety, post-
traumatic stress disorder), general health, and family factors
(including caregiver responsibilities). In addition, employees may
provide anecdotal information of fatigue factors for a particular job
and a railroad may consider this information in addressing causes of
fatigue in its training program.
(4) Circadian rhythm: An individual's circadian rhythm dictates
when he or she will be most alert and at what times he or she will feel
the most fatigued. Employees should have a general understanding of the
circadian rhythm, how it affects fatigue levels, how it is impacted by
the light-dark cycle, and its role in such processes as body
temperature, brain wave activity, and other biological functions.
(5) Individual differences: As part of a fatigue training and
education program, the role individual differences play in fatigue
should be understood. For example, there is a great deal of variability
of sleep requirements among individuals. Some individuals may feel
rested and alert after as few as 5 hours of sleep, while others may
require 10 or more hours of sleep to feel rested and alert. These sleep
requirements vary due to such factors as the exact phase and amplitude
of an individual's circadian rhythm, activity level, age, fatigue
sensitivity, and health. Furthermore, some individuals may be more
sensitive to the effects of fatigue, and efficacy of countermeasures
may vary depending on the individual.
(6) Fatigue misconceptions: There are some misconceptions
associated with fatigue. Individuals are often poor judges of both
their own fatigue level and the efficacy of fatigue countermeasures.
This is an opportunity to debunk certain ineffective countermeasure
myths and also to discuss the limitations associated with effective
countermeasures. Certain stereotypes regarding fatigue can be
[[Page 83495]]
addressed as well. For example, experiencing fatigue does not
automatically indicate weakness or a lack of motivation.
(7) Shiftwork: Many railroads operate 24 hours a day, 7 days a
week, 365 days a year. This operational schedule requires employees to
work different shifts. Passenger and freight operations, different
railroad classes, and different jobs will all have different shiftwork
needs. Some jobs will work a dedicated shift, while other jobs can be
unpredictable and be based on a variety of factors including train
schedules, employee availability, and other needs. When discussing
shiftwork, training content will be influenced by a particular
railroad's operations and collective bargaining agreements. However,
discussions of shiftwork should provide information on the fatigue
risks associated with night work, split shifts, consecutive shifts
worked, and working different shifts throughout the week. This
information should include strategies to cope with those shifts
occurring during circadian lows.
(8) Illnesses and stress: Although it would be impractical to
discuss the impact of every possible illness and stressor on fatigue,
it nevertheless is worthwhile to discuss how illnesses and stress in
general can impact sleep quality. Furthermore, some stressors and
illnesses can lead to sensitization to fatigue-inducing factors.
(9) Consequences of fatigue: The potential consequences of fatigue
are numerous and varied. However, from a training perspective, the key
information to convey is the relationship between fatigue and
performance. Although individual differences will influence how fatigue
affects performance, in general, as fatigue levels increase, task
performance decreases, and this decrease in performance increases
accident risk.
(10) Introduction to FRA FRMP regulations: A railroad may choose to
provide an overview of FRA regulations regarding the requirements for
FRMPs. This overview can highlight any changes to operations as a
result of the promulgation of the FRMP regulation as well as highlight
the key requirements that all FRMPs must contain.
(11) Railroad FRMP: Following information on FRA FRMP regulations,
a railroad may wish to take time to familiarize its employees with its
own FRMP. Railroads should highlight any new policies or procedures
associated with the creation of the FRMP as well as detail any changes
or benefits that have resulted from its implementation. A railroad may
also wish to provide employees with a mechanism to provide feedback
about the FRMP as part of the railroad's own periodic review process.
In addition, a railroad should familiarize its employees with its
procedures and processes for reporting fatigue levels and fatigue mark-
off policies.
As provided in the RSIA, any training and education program should
be based on a foundation of the most current medical and scientific
research; \37\ FRA interprets this to include relevant statistical
information, to the extent possible. FRA notes that resources that
provide information on the prevalence of sleep disorders, the number of
Americans not obtaining adequate sleep, and the mental and physical
implications that result are available and updated annually.\38\ Sleep
research collected from and related to railroad employees of various
crafts is also available.
---------------------------------------------------------------------------
\37\ 49 U.S.C. 20156(f)(3)(A).
\38\ Example resources include:
Calabrese, C., Mejia, B., McInnis, C.A., France, M., Nadler, E.,
& Raslear, T.G., Time of day effects on railroad roadway worker
injury risk, Journal of Safety Research, 61, pp. 53-64 (2017).
Dorrian, J., Baulk, S.D., & Dawson, D., Work hours, workload,
sleep and fatigue in Australian Rail Industry employees, Applied
Ergonomics, 42(2), pp. 202-209 (2011).
Dorrian, J., Hussey, F., & Dawson, D., Train driving efficiency
and safety: Examining the cost of fatigue, Journal of Sleep
Research, 16, pp. 1-11 (2007).
Gertler, J., Difiore, A., & Raslear, T., Fatigue Status of the
U.S. Railroad Industry, Washington, DC: U.S. Department of
Transportation, Federal Railroad Administration (2013).
Gertler, J., & Viale, A., Work Schedules and Sleep Patterns of
Railroad Maintenance of Way Workers, Washington, DC: U.S. Department
of Transportation, Federal Railroad Administration (2006).
Kumagai, J. & Harnett, M. Data Analysis for Maintenance-of-Way
Worker Fatigue (2019), available at: https://www.fra.dot.gov/eLib/details/L19843#p1_z50_gD_lRT.
Sussman, D., & Coplen, M., Fatigue and Alertness in the United
States Railroad Industry Part 1: The Nature of the Problem,
Transportation Research Part F: Traffic Psychology and Behaviour,
3(4), pp. 211-220 (2000).
Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules,
sleep, fatigue, and accidents in the US railroad industry, Fatigue:
Biomedicine, Health & Behavior, 1, pp. 99-115 (2013), available at:
https://www.fra.dot.gov/eLib/details/L04272.
https://www.cdc.gov/sleep/ and https://www.sleepfoundation.org./
---------------------------------------------------------------------------
The Education and Training Task Force also identified training
topics addressing off-duty fatigue issues and preventative strategies.
These included common sleep disorders, physiological versus subjective
assessments of fatigue, lifestyle factors, nutrition and hydration,
exercise, substance use, the home environment, and commuting.
The Task Force also created a ``Dissemination Strategies'' document
outlining steps railroads should consider when choosing delivery
approaches for fatigue education and training, and suggesting methods
railroads could use for successful evaluation of a fatigue education
and training program. The ``Dissemination Strategies'' document
identifies and discusses the following ten elements of an effective
dissemination and evaluation plan listed below.
1. Goals: The first step in an effective dissemination and
evaluation plan is determining and documenting the goals for the
training and education program. The primary question to ask at this
step is: What is the desired outcome of the training and education
program? Different railroads may have different training goals and
these goals will help shape how information is presented to employees.
2. Objectives: When considering objectives of a fatigue training
and education program, determine specific areas of accomplishment for
each goal. Once those areas have been established, the next step is to
determine what will be required to measure success.
3. Measuring Success: There is no single ``correct'' way to measure
success. However, any measure of success should indicate if the
material reached the intended audience, was understood, and had a
positive effect. Evaluation strategies may be direct, such as
administering a quiz to test knowledge of a particular topic, or
indirect, such as looking at safety culture change as a result of
training. Neither method is superior to the other, but multiple
evaluation strategies may provide a more comprehensive understanding of
program efficacy.
4. Employees Covered: An effective dissemination and evaluation
plan should identify the employees covered by the different elements of
a training and education program. There may be some elements of a
program that apply to all railroad employees, while other elements may
only apply to a particular craft, shift, or schedule type. At this
stage, thought should also be given to any special needs a covered
group may have. For example, if a large percentage of a covered group
does not have email access, disseminating information via email would
be neither practical nor effective.
5. Content: Perhaps the most important element to consider when
developing a dissemination and evaluation plan is the content to be
presented. At this step, proposed fatigue training and education
content should be reviewed to make sure it is accurate and relevant to
the covered groups.
6. Source: Care should be given to ensure that information
presented
[[Page 83496]]
comes from credible and trusted sources.
7. Presentation Medium: At this stage in the process, the program
designer should determine the most effective methods to present
different elements of the fatigue training and education program. Some
information may be best suited for in-person training while other
information might be best conveyed through publications. Some
presentation media to consider include in-class training, informational
videos, handouts, peer-to-peer efforts, job briefings, and conferences
or other meetings. Depending on the covered group's access to the
internet, Web resources such as Web-based training, emails, websites,
blogs, and social media could also be used. The preceding examples are
not an exhaustive list, and each railroad will need to tailor its
presentation media based on the identified goals, objectives, and
employees to be covered.
8. Access: Fatigue training and education should be an ongoing
process. Therefore, it is important that employees have easy access to
information. Employees should have a way to revisit information that
was previously presented. Examples of making information accessible
could include providing access to fatigue presentations on the company
Intranet after an initial classroom presentation, handouts after a one-
time job briefing, or posters that highlight key points.
9. Availability: At this step, a railroad developing a fatigue
training and education program should consider strategies for promoting
awareness of the availability of training and educational materials.
10. Challenges: The challenges related to effectively disseminating
and evaluating information as part of a fatigue training and education
program will vary greatly. These challenges could include a variety of
issues, such as difficulty reaching a particular group, lack of
resources to present a topic as originally planned, or even glitches in
Web technology. Determining how best to deliver information in a manner
that is understandable, appropriate, and engaging to different employee
groups will present its own set of challenges. At this stage, potential
challenges should be identified as well as solutions for overcoming or
mitigating these challenges.
Finally, the Education and Training Task Force created a document
that highlights and explains two general categories of fatigue
countermeasures (preventative and operational), and provides examples
of each. Preventative countermeasures, as the name suggests, are
countermeasures designed to minimize sleep loss and reduce the
disruption of circadian cycles and the benefits of preventative
countermeasures can be long-lasting. Operational countermeasures are
designed to enhance alertness and task performance while on duty and
are generally only effective for a short time.
b. Scheduling Task Force
The FRMP Working Group's Scheduling Task Force discussed the
scheduling issues that affect fatigue. However, several issues
prevented agreement on scheduling including: (1) The need to
differentiate between employees covered by HOS limitations (covered
service employees) and employees not covered by such requirements; (2)
the need for waivers and/or pilot projects to implement scheduling
practices that might conflict with existing HOS limitations; (3)
disagreement on whether using biomathematical fatigue models is
appropriate for freight operations; (4) potential conflict with
existing collective bargaining agreements; and (5) how much emphasis
should be placed on an employee's work schedule predictability. The
Scheduling Task Force did not produce a document.
c. Infrastructure and Environment Task Force
The Infrastructure and Environment Task Force provided guidelines
it suggested railroads should consider to mitigate fatigue when
employees are involved in emergency work. The Task Force interpreted an
emergency based on the nonapplication language in the HOS laws at 49
U.S.C. 21102(a). Specifically, the ``Emergency Work'' document provides
that an emergency for purposes of the guidelines is defined in 49
U.S.C. 21102(a)(1)-(4), which states that the HOS requirements do not
apply to situations involving a casualty, an unavoidable accident, an
act of God, or a delay resulting from a cause unknown and unforeseeable
to a railroad carrier or its officer or agent in charge of the employee
when the employee left a terminal.
This definition incorporates a wide variety of emergency
situations, including those referred to in section 20156(f)(3)(C),
``derailments and natural disasters, or engagement in other intensive
working conditions.'' The employees responsible for responding to these
emergency situations may include employees performing functions not
covered by HOS requirements, and the ``Emergency Work'' document makes
clear that the Infrastructure and Environment Task Force intended it to
apply to these employees as well. For example, the ``Emergency Work''
document includes provisions such as relief assignments when an
emergency is anticipated to extend more than 16 hours, and provisions
to offer relief lodging for employees both between shifts of extended
work at an emergency location, and, if necessary, for an employee to
rest before commuting home after an extended period of emergency
service. Such provisions would provide some protection against fatigue
for those employees not subject to HOS requirements and, if the
emergency situation resulted in the nonapplication of the HOS laws, for
employees performing service normally covered by the HOS limitations.
The Task Force also created two documents; ``Accommodations'' and
``Dispute Resolutions,'' focused on mitigating fatigue related to
issues at lodging facilities. The first document, ``Accommodations,''
includes guidelines for accommodations where employees rest during off-
duty periods, and the second document, ``Dispute Resolutions,''
provides dispute resolution procedures for issues arising with lodging
facilities that interfere with an employee's ability to rest.\39\ The
Task Force made clear that the ``Accommodations'' and ``Dispute
Resolution'' documents were intended to apply to all employee lodging,
even lodging that is not ``railroad provided'' (e.g., commercial
hotels).
---------------------------------------------------------------------------
\39\ Under 49 U.S.C. 21106, a railroad may provide sleeping
quarters for employees, and any individuals employed to maintain the
right-of-way of a railroad carrier, only if the sleeping quarters
are clean, safe, and sanitary, give those employees and individuals
an opportunity for rest free from the interruptions caused by noise
under the control of the carrier, and provide indoor toilet
facilities, potable water, and other features to protect the health
of employees. Further, 49 CFR part 228, subpart C, provides
additional requirements for railroad-provided sleeping quarters.
---------------------------------------------------------------------------
The Task Force indicated that the accommodations guidelines are
intended to provide elements for discussion during the required
consultation between management and labor about a railroad's FRMP,
rather than to provide minimum standards for lodging facilities. The
Task Force did not expect every lodging facility would meet all of the
listed criteria. The Task Force agreed that while the listed elements
were desirable, they may not be possible at all locations, and, in some
cases, collective bargaining agreements might provide for other
arrangements. For example, while the guidelines recommend a single
occupancy room, some existing labor agreements may provide for four
employees to a room. Similarly, while a full or double bed
[[Page 83497]]
may be preferred, there may be locations where this is not an option
and only single beds are available at the only available lodging
facility.
The ``Dispute Resolution'' document recognizes that employees will
first seek to resolve issues at lodging facilities with on-site staff,
such as the front desk at a hotel. The ``Dispute Resolution'' document
recommends that FRMP plans include a railroad contact with authority
over lodging decisions and require that contact to make a good faith
effort to resolve lodging issues in a timely manner so the employee can
obtain adequate rest before returning to duty. For example, if the heat
is not working in a given room, the lodging facility will likely move
the employee to a different room. However, if there were no other rooms
available, or if the issue were something like electric power being out
at an entire facility, the railroad contact should become involved to
assist the employee in finding alternate lodging.
The ``Dispute Resolution'' document provides that FRMP plans should
contain a dispute resolution process covering sleeping accommodations
provided by or through the railroad. It should be noted that this
process is not intended to supplant or modify the requirements
established by 49 CFR 228.333, Remedial action, as part of the Camp Car
regulation. The Task Force suggested that any FRMP dispute resolution
process should be designed to address problems associated with the
sleeping accommodations that would interfere with an employee obtaining
adequate rest. As part of the FRMP plan, the Task Force recommended
that railroads identify a protocol for contacting a railroad
representative should resolution with a lodging facility fail.
The Task Force identified parameters it recommended employer-
provided lodging should meet to the extent practicable. FRA notes that
interim rest facilities provided by passenger train operators under 49
CFR 228.409, Requirements for railroad-provided employee sleeping
quarters during interim releases and other periods available for rest
within a duty tour, are subject to the requirements of that section. As
such, the Task Force's suggested parameters are not applicable to
interim rest facilities under Sec. 228.409. In addition, local labor
agreements may supersede or supplement some of the elements of these
parameters. The parameters the ``Dispute Resolution'' document
identifies include structural factors, availability of meal
accommodations, building safety and security, and personal hygiene and
sanitation.
The Task Force ``Dispute Resolution'' document does not define
``adequate rest,'' nor does it specify the conditions at a lodging
facility that would prevent an employee from obtaining adequate rest.
Employees covered by HOS laws or regulations would be required to
receive the amount of off-duty time provided under the relevant laws or
regulations. For other employees, rest requirements may depend on the
situation, or may be provided by a collective bargaining agreement or
other mechanism. However, the Task Force ``Dispute Resolution''
document suggests that if an issue arises at a lodging facility that
interferes with an employee's ability to obtain rest, the employee
should receive the amount of rest he or she would have had if the
lodging issue had not occurred. For example, if there are no towels in
the room when an employee arrives, but the front desk promptly brings
towels upon request, this should not hinder the employee's ability to
get adequate rest. On the other hand, if an employee is provided a room
with a broken bed, and it takes five hours to locate another room or
bed, the railroad may need to adjust the time an employee is required
to return to duty so the employee can obtain adequate rest.
Lastly, as part of its discussions, the Task Force identified
circumstances when employees may have to work under excessive fatigue
conditions. In these instances, when, despite best efforts, employees
must work under conditions identified as having an excessive risk for
fatigue, the Task Force discussed that the specific risks and hazards
associated with operations under excessive fatigue should be
identified. Once identified, an excessive fatigue protocol can be
implemented for employees at risk. The Task Force suggested that
railroads may wish to consider formalizing these protocols into a
Workplace Fatigue Policy. They also suggested that a fatigue policy may
be an effective way to communicate how operations will be handled when
employees are working under fatigued conditions. This policy could be
system-wide or site or craft specific. A fatigue policy may include
information about: (1) Roles and responsibilities of employees and
supervisors when working under excessive fatigue conditions; (2)
maximum shift length; (3) control measures for specific jobs, tasks, or
operations; (4) fatigue self-assessment checklists; (5) identification
of errors that are more likely to happen when fatigued and procedures
to reduce the likelihood of these errors; (6) procedures for managing
employees working under excessive fatigue conditions; (7) procedures
for reporting potential hazards and risks; and (8) procedures for when
an employee is too fatigued to continue work (e.g., temporary work
assignment).
5. Tracking Performance
As required in 49 CFR 270.103(p)(1)(viii) and 49 CFR 271.105(c)(3),
FRA proposes that each railroad must develop a system to track
identified risks and mitigation strategies within the FRMP. Railroads
must continually monitor all identified risks, not just risks that are
currently being targeted for mitigation. As a railroad's FRMP matures,
mitigation strategies are implemented, and operations change, risks
will also change. A railroad may find that certain risks have been
essentially eliminated, while others may have been significantly
reduced, and previously undetected risks may emerge. As risks develop,
the system must be able to incorporate these newly identified risks
into their processes.
Evaluation of fatigue-related information might show that some
mitigation strategies do not meet expectations for effectively reducing
fatigue. It could also show that changes in schedules, the addition of
new technologies, turnover in the workforce, added demands for service,
and other operational changes could present new fatigue hazards or
change the risks associated with hazards already known. When either of
these circumstances arises, the fatigue risk landscape is altered, and
the railroad should again use the risk factor analysis processes to
address those changes.
For risks being mitigated, the railroad should note the date the
mitigation strategy was implemented and track the progress and success
of the mitigation strategy over time. Risks that are not mitigated or
have not been mitigated to the extent desired should be evaluated for
changes in mitigation strategies, as appropriate. Risks that have been
successfully eliminated should be noted, and new risks that have
emerged should be assessed for probability and severity and
incorporated into the railroad's risk assessment catalog. Existing
risks should also be reviewed for changes in probability and severity.
As a railroad reviews its fatigue-related risks and risk tolerance, the
risks to be mitigated and the types of mitigation strategy to be used
may change over time. Evaluation might also show that some portion of
the FRMP is not being implemented as designed. It could also identify
aspects of the program that, even though they are working as
[[Page 83498]]
designed, are not effective. In any of these instances, the evaluation
could lead to program improvements.
Finally, consistent with 49 CFR 271.107, an effective FRMP includes
feedback mechanisms and regular information updates about the system to
all affected employees to encourage cooperative participation in the
FRMP.
V. Section-by-Section Analysis
FRA proposes to amend 49 CFR part 270 (SSP) by adding a new subpart
E, and to amend 49 CFR part 271 (RRP) by adding new subpart G. As
proposed, each of these new subparts would be titled ``Fatigue Risk
Management Programs;'' substantively identical; and set forth the
requirements for railroads to develop and implement FRMPs as part of
their SSPs or RRPs. FRA also proposes to amend: Sec. 270.103(a)(1) to
ensure a railroad's SSP plan includes subpart E, by replacing the word
``section'' with the word ``part''; Sec. 271.101(a) by adding an FRMP
to the list of required elements of an RRP; and Sec. 271.201, to
include an FRMP plan as a required component of an RRP plan.
The new subparts would require each railroad subject to part 270 or
part 271 (covered railroads) to establish and implement an FRMP that is
supported by an FRA-approved written FRMP plan, as a component of a
railroad's SSP or RRP. This proposed rule would also require covered
railroads to review their FRMP annually, and if necessary, make FRA-
approved updates to their plans. FRA is proposing this rule in its
effort to improve rail safety continually and to satisfy the statutory
mandate in 49 U.S.C. 20156. FRA seeks comments on all aspects of the
proposed rule.
Sections 270.401 and 271.601--Definitions
Proposed Sec. Sec. 270.401 and 271.601 contain definitions for
terms used in this NPRM. The sections include proposed definitions for
the terms: Contributing factor, fatigue, fatigue-risk analysis, FRMP,
FRMP plan, and safety-related railroad employee. The proposed
definitions are intended to clarify the meaning of important terms used
in this proposed rule and to minimize potential misinterpretation of
the regulations. FRA is proposing to define ``contributing factor'' as
a circumstance or condition that helps cause a result (i.e., fatigue).
Contributing factors do not necessarily cause fatigue by themselves,
but they can increase the likelihood fatigue will occur, or can
increase the severity of fatigue when it does occur. Eliminating or
mitigating contributing factors may not eliminate fatigue and
associated risk, but doing so can moderate the frequency with which it
occurs, or reduce the severity of fatigue consequences.
While the RSIA did not define ``fatigue,'' FRA is proposing to
define ``fatigue'' consistent with the DOT operational definition \40\
of the term, as ``a complex state characterized by a lack of alertness
and reduced mental and physical performance, often accompanied by
drowsiness.''
---------------------------------------------------------------------------
\40\ United States Department of Transportation, Partnering in
Safety: Managing Fatigue: A Significant Problem Affecting Safety,
Security, and Productivity, 1999; p. 5.
---------------------------------------------------------------------------
FRA proposes to define ``fatigue risk analysis'' as a risk-based
analysis that is focused on the hazards and risks associated with
fatigue. In 49 CFR 271.103(b), a covered railroad is required to
conduct a risk-based hazard analysis of its operations that includes:
(1) Identification of hazards; and (2) a calculation of risk by
determining and analyzing the likelihood and severity of potential
events associated with those hazards. See also 49 CFR 270.5, definition
of risk based hazard management. FRA proposes to define FRMP as fatigue
risk management program, and the FRMP plan is the documentation that
describes the processes and procedures a railroad uses to implement its
FRMP.
Section 20156(f)(1) requires a railroad to have a fatigue
management plan designed to reduce the fatigue experienced by ``safety-
related employees.'' FRA proposes to define ``safety-related railroad
employee'' consistent with the definition of the term in 49 U.S.C.
20102. As proposed, ``safety-related railroad employee'' would mean a
person: (1) Subject to 49 U.S.C. 21103, 21104, or 21105 or 49 CFR part
228 subpart F (the hours of service laws and regulations); (2) involved
in railroad operations, but not subject to the hours of service laws
and regulations; (3) who inspects, installs, repairs or maintains
track, roadbed, signal and communication systems, and electric traction
systems including a roadway or railroad bridge worker; (4) who is a
hazmat employee as defined in 49 U.S.C. 5102(3); (5) who inspects,
repairs, or maintains locomotives, passenger cars, or freight cars; or
(6) who is the employee of any person who enters into a contractual
relationship with the railroad either to perform significant safety-
related services on the railroad's behalf or to utilize significant
safety-related services provided by the railroad for railroad
operations purposes, if the person performs one of the functions
identified in paragraphs (1) through (5).
The SSP and RRP rules do not use the term ``safety-related
employee'' because the RSIA does not limit the railroad safety risk
reduction requirement to these employees. See 49 U.S.C. 20156(a)-(e).
FRA requests comment on whether the proposed definition of ``safety-
related employee'' captures the intended scope of Congress's mandate
for fatigue management plans in Section 20156.
FRA requests public comment on these proposed definitions and
whether other terms used in this proposal should be defined.
Sections 270.403 and 271.603--Purpose and Scope of a FRMP
Proposed Sec. Sec. 270.403 and 271.603 explain the purpose and
scope of the proposed rule. As proposed, paragraph (a) of each section
states that the purpose of the subparts is to require railroads to
develop and implement FRMPs to improve railroad safety through
structured, proactive processes and procedures to identify and mitigate
the risks associated with fatigue on their employees.
Proposed paragraph (b) of these sections address the scope of the
proposed rule and would require railroads to develop their FRMPs to
reduce the fatigue of their safety-related railroad employees and to
reduce the risk of railroad accidents, incidents, injuries, and
fatalities where the fatigue of any of these employees is a
contributing factor.\41\ Proposed paragraph (b) further requires each
railroad, in developing its FRMP, to identify and evaluate,
systematically, the fatigue-related railroad safety hazards and risks
on its system, determine the degree of risk associated with each
hazard, and manage those risks to reduce the fatigue that its safety-
related railroad employees experience. This system-wide fatigue risk
identification and evaluation process must account for the varying
circumstances of railroad operations on different parts of its system.
The railroad would then be required to employ in its FRMP the
appropriately identified fatigue risk mitigation
[[Page 83499]]
strategies to address those varying circumstances.\42\
---------------------------------------------------------------------------
\41\ The RSIA requires railroads ``to reduce the likelihood of
accidents, incidents, injuries, and fatalities caused by fatigue.''
Fatigue is a complex and multifaceted condition with varying effects
among individuals; however, it is not always the primary cause of an
accident or incident. The presence of fatigue can increase the
likelihood of an accident happening, or it can make the consequences
of an accident more severe. FRA uses the term ``contributing
factor'' to make clear that railroads may choose mitigations that
address either the likelihood or the severity of an accident,
incident, injury, or fatality caused in part by fatigue.
\42\ See 49 CFR 270.407(c) and 271.607(c).
---------------------------------------------------------------------------
Sections 270.405 and 271.605--General Requirements; Procedure
These proposed sections set forth the rule's general requirements.
Paragraph (a) in each of these sections would require each railroad
subject to either RRP or SSP to establish and implement an FRMP fully
as part of its SSP or RRP. As proposed, these paragraphs would also
require each railroad to develop and implement an FRMP plan to support
its FRMP. A railroad's FRMP plan would be required to meet the
requirements of proposed Sec. 270.409 or 271.609, and be approved by
FRA under the processes in subpart C of part 270 or subpart D of part
271. Consistent with Section 20156's mandate for railroads to update
their fatigue mitigation plans periodically, proposed paragraph (a)
would also require railroads to update their FRMP plans as necessary as
part of the annual, internal assessment of the railroad's SSP or RRP
already required by existing Sec. Sec. 270.303 and 271.401. FRA
believes the annual internal assessment should be sufficient for a
railroad to determine whether any aspect of its FRMP plan requires
updating. FRA requests comments on whether the annual internal
assessment provides an appropriate mechanism and timing for evaluating
and updating railroads' FRMP plans.
Proposed paragraph (b) of these sections would require a railroad
to explain in its FRMP plan its method for analyzing fatigue risks and
its process(es) for implementing its FRMP.
Proposed paragraphs (c) of these sections would require railroads
to submit their FRMP plans to FRA for approval either within six months
of publication of a final rule in this proceeding or within the
applicable existing timelines in parts 270 and 271 for filing SSP or
RRP plans. These paragraphs would also require railroads to follow the
existing processes in parts 270 and 271 for submitting updates of their
FRMP plans to FRA for approval.
Proposed paragraph (d) would require FRA to approve or disapprove
railroads' FRMP plans (and any updates) under the existing approval
processes in parts 270 and 271 applicable to FRA approval of railroad
SSP plans and RRP plans.
Sections 270.407 and 271.607--Requirements for an FRMP
Proposed Sec. Sec. 270.407 and 271.607 set forth the proposed
requirements for railroads' FRMPs. As proposed, paragraph (a) of these
sections sets forth the general requirement that a railroad subject to
part 270 or 271 would have to establish and implement an FRMP that
meets certain requirements.
Proposed paragraph (b) of these sections contains the minimum
requirements for the fatigue-risk analysis part of a railroad's FRMP.
These paragraphs specify that a railroad's fatigue-risk analysis must
include identification of fatigue-related railroad safety hazards,
assessment of the risks associated with those hazards, and
prioritization of those risks for mitigation. The proposed paragraph
also requires that the fatigue risk analysis consider, at a minimum,
three categories of risk factors:
(1) General health and medical conditions that can affect the
fatigue levels of safety-related railroad employees;
(2) scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of
sleep; and
(3) characteristics of each job category worked by safety-related
railroad employees that can affect the fatigue levels and risk for
fatigue of safety-related railroad employees.
Railroads are not limited to consideration of these three types of
risk factors in their FRMPs and FRA encourages railroads to consider
other relevant factors based on developments in fatigue science. The
types of principles and processes that inform a fatigue-risk analysis
are well-established and, as discussed in detail above and in the
preamble of the SSP and RRP proposed rules, have been adopted into
industry standards and described in detail in other written resources.
See 77 FR 55375 and 80 FR 10953. For example, as discussed in those
preambles, MIL-STD-882,\43\ APTA's Manual for the Development of System
Safety Program Plans for Commuter Railroads,\44\ and FRA's Collision
Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service
discuss how to conduct risk analyses in detail.\45\ A railroad subject
to this part could use any of these resources when developing and
conducting a fatigue-risk analysis. FRA requests public comment as to
whether additional resources are necessary to help railroads comply
with the requirements of this proposed section and if so, what type of
additional resources would be necessary.
---------------------------------------------------------------------------
\43\ Department of Defense, Standard practice system safety,
(MIL-STD-882E) (2012), retrieved from https://www.dau.edu/cop/armyesoh/DAU%20Sponsored%20Documents/MIL-STD-882E.pdf (last accessed
on July 27, 2020).
\44\ https://www.trbtss.org/wp-content/uploads/2016/03/APTA-Safety-Management-System-Manual.pdf (last accessed on July 27,
2020).
\45\ https://www.fra.dot.gov/eLib/Details/L03191 (last accessed
on July 27, 2020).
---------------------------------------------------------------------------
Paragraph (c) of these sections would require a railroad as part of
its FRMP to develop and implement mitigation strategies that improve
safety by reducing the risk of railroad accidents, incidents, injuries,
and fatalities where fatigue of any of its safety-related railroad
employees is a contributing factor. These paragraphs state that as a
railroad develops and implements mitigation strategies, it would be
required to consider, at a minimum, the railroad's policies, practices,
and communication. Paragraphs (c)(1)-(3) describe each of these three
areas of consideration in more detail.
Paragraph (c)(1) would require railroads to consider developing and
implementing policies to reduce the risk of the exposure of its safety-
related railroad employees to fatigue-related railroad safety hazards
on its system.
Paragraph (c)(2) would require railroads to consider developing and
implementing operational practices to reduce the risk of the exposure
of its safety-related railroad employees to fatigue-related railroad
safety hazards on its system.
Paragraph (c)(3) would require railroads to consider developing and
implementing training, education, and outreach methods to deliver
fatigue-related information effectively to its safety-related railroad
employees. At a minimum, a railroad must consider the need to include
employee education and training on the physiological and human factors
that affect fatigue and strategies to reduce or mitigate the effects of
fatigue based on the most current scientific and medical research and
literature. If a railroad chooses to include these subjects in its
training, this training would supplement the requirement in 49 CFR part
243 to develop minimum training standards for each occupational
category that includes a list of the Federal railroad safety laws,
regulations, and orders that an employee is required to comply with by
adding employee fatigue education and training topics that relate to
employee safety independent of any regulatory or statutory
requirements.
Paragraph (d) proposes requirements for a railroad to develop and
implement procedures and processes for monitoring and evaluating its
FRMP. Monitoring and evaluation are necessary parts of a railroad's
FRMP; they enable a railroad to determine whether the FRMP is
effectively reducing the numbers and rates of railroad accidents,
[[Page 83500]]
incidents, injuries, and fatalities where fatigue is a contributing
factor.
Sections 270.409 and 271.609--Requirements for a FRMP Plan
Proposed Sec. Sec. 270.409 and 271.609 would require a railroad to
adopt and implement its FRMP through an FRMP plan that meets certain
requirements. As proposed, paragraph (a) of these sections would
require railroads to develop their FRMP plans in consultation with
directly-affected employees and FRA would have to approve a railroad's
FRMP. The existing consultation and approval processes of parts 270 and
271 would apply.
Proposed paragraph (b) would require the FRMP plan to describe
specific, fatigue-related goals of the FRMP and clear strategies for
attaining those goals.
Proposed paragraph (c) addresses the methods a railroad uses to
develop its FRMP plan. Proposed paragraph (c)(1) would require an FRMP
plan to describe the railroad's method(s) for conducting the fatigue-
risk analysis as part of its FRMP.\46\ While FRA understands that
railroads subject to a final FRMP rule would likely need to develop
processes unique to their own operations, FRA expects that railroads'
fatigue-risk analysis processes will use techniques similar to those
currently used in other safety management systems. This section also
specifies information railroads must include in an FRMP plan's
description of a railroad's fatigue-risk analysis. FRA requests comment
on whether additional resources are necessary to help railroads comply
with the requirements of this proposed section and if so, what type of
resources would be helpful.
---------------------------------------------------------------------------
\46\ As previously discussed, railroads could look to well-
established safety management systems which describe processes for
conducting a fatigue-risk analysis, such as MIL-STD-882, APTA's
Manual for the Development of System Safety Program Plans for
Commuter Railroads, and FRA's Collision Hazard Analysis Guide:
Commuter and Intercity Passenger Rail Service.
---------------------------------------------------------------------------
Proposed paragraph (c)(2) would require an FRMP plan to describe
the railroad's processes for identifying and selecting mitigation
strategies, and for monitoring identified hazards while the risk
associated with the hazard is being mitigated.
Proposed paragraph (c)(3) would require an FRMP plan to describe a
railroad's processes for monitoring and evaluating the overall
effectiveness of the FRMP and the mitigation strategies, along with
procedures for reviewing and updating the FRMP. As noted above, FRA
anticipates this review will be the same as for the overall SSP or RRP.
Proposed paragraph (d) of this section would require an FRMP plan
to describe how the railroad will implement its FRMP. As proposed, a
railroad may implement its FRMP in stages, provided the FRMP is fully
implemented and operational within 36 months of FRA's approval of the
plan. This implementation plan would cover the entire implementation
period and contain a timeline (beginning with the date FRA approves the
railroad's FRMP plan) describing when the railroad will achieve
specific and measurable implementation milestones.
Consistent with 49 CFR 270.103(p)(2)(i) and 49 CFR 271.203(b)(3),
as part of the implementation description, proposed paragraph (d)(1)
would require a railroad to include a description of the roles and
responsibilities of each position or job function with significant
responsibility for implementing the railroad's FRMP (including any
positions or job functions held by an entity or contractor that
provides significant FRMP services for the railroad).
Consistent with 49 CFR 271.225(b)(2), proposed paragraph (d)(2)
would require a railroad to include a description of the planned
timeline for meeting the milestones required for the FRMP plan to be
fully implemented. Proposed paragraphs (d)(3) and (d)(4) would require
a railroad to describe how it will make significant changes to the
FRMP, and procedures for consultation with directly affected employees
on substantive amendments to the FRMP plan.
Proposed paragraph (e) would require that a railroad submit its
FRMP plan to FRA by amending its SSP plan or RRP plan. Since this
proposed rule would be published as a final rule after the SSP and RRP
final rules are in effect and railroads have submitted their SSP plans
or RRP plans to FRA under part 270, subpart C, or part 271, subpart D,
railroads would need to amend their SSP plans or RRP plans to include
an FRMP plan. Thus, as proposed, a railroad would follow the procedures
in Sec. 270.201(c) or 271.303 to amend its SSP plan or RRP plan. FRA
proposes that an FRMP plan is not considered a safety-critical
amendment of an SSP plan for the purposes of Sec. 270.201(c)(1)(ii),
so a railroad should be able to submit the FRMP plan to FRA as an
amendment to its SSP plan or RRP plan 60 days before the proposed
effective date of the FRMP plan. If a railroad is initially not
required to submit an SSP plan or RRP plan, but is later required to,
the railroad must include an FRMP plan as part of its SSP plan or RRP
plan submission to FRA, or submit the FRMP plan by August 19, 2021,
whichever is later. FRA will review the railroads' FRMP plans under the
amendment process in Sec. 270.201(c)(2) or 271.303(c).
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is a non-significant regulatory action within
the meaning of Executive Order 12866 (E.O. 12866) and DOT's
Administrative Rulemaking, Guidance, and Enforcement Procedures in 49
CFR part 5.
FRA has prepared and placed a Regulatory Evaluation addressing the
economic impact of this proposed rule in the docket (Docket No. FRA-
2015-0122). The Regulatory Evaluation contains estimates of the costs
and benefits of this proposed rule that are likely to be incurred over
a ten-year period. FRA estimated the costs and benefits of this
proposed rule using discount rates of 3 and 7 percent. FRA was unable
to quantify the costs and benefits for all the elements within the
proposed regulation for both passenger and freight railroads. FRA
presents monetized costs and benefits where possible and discusses
those non-quantified elements qualitatively where data was lacking.
Section 103 of the RSIA mandates that FRA (as delegated by the
Secretary) require certain railroads to establish a railroad safety
risk reduction program, of which an FRMP is a required component. This
proposed rule is part of FRA's efforts to improve rail safety
continually and to satisfy the statutory mandate in the RSIA.
FRA anticipates railroads will develop and implement mitigation
strategies that are either cost-beneficial or cost-neutral to the
railroad. FRA requests public comment on this assumption. FRA is
particularly interested in the experience of railroads that have
already utilized mitigation strategies to reduce the risk of the
exposure of safety-related railroad employees to fatigue-related
railroad safety hazards on their systems; specifically, whether the
railroads have realized costs and benefits from the development and
implementation of such mitigation strategies, and how much those
strategies cost the railroads to implement.
The Regulatory Evaluation analyzes two mitigation strategies to
quantify potential costs and benefits that railroads may achieve
through the proposed regulation: Training and screening for sleep
conditions. However, since the proposed regulation gives railroads the
flexibility to select
[[Page 83501]]
the mitigation strategies that would work best for them rather than
prescribing standards, there is a high amount of uncertainty in FRA's
costs and benefit estimates, specifically pertaining to the training
mitigation, as FRA is unsure how railroads will implement the various
mitigations.
The costs and benefits \47\ associated with the proposed rule are
presented in Table VI-1 below:
---------------------------------------------------------------------------
\47\ Unless otherwise noted, costs and benefits are presented in
2018 dollars.
Table VI-1--Summary of Total 10-Year Impact (2018 Dollars)
[In millions]
----------------------------------------------------------------------------------------------------------------
Present value Present value Annualized at Annualized at
Calculation aid Costs 7% 3% 7% 3%
----------------------------------------------------------------------------------------------------------------
A............................. Training Only $2.02 $2.04 $0.29 $0.24
(low).
B............................. Training Only 4.13 4.18 0.59 0.49
(high).
C............................. FRMP Plan 0.89 1.04 0.13 0.12
Creation.
D............................. Government Costs 2.03 2.59 0.29 0.30
A + C + D..................... Total Cost (low) 4.94 5.68 0.70 0.67
B + C + D..................... Total Cost 7.05 7.81 1.00 0.92
(high).
A + C......................... Total Cost w/o 2.91 3.08 0.41 0.36
Government
Costs (low).
B + C......................... Total Cost w/o 5.01 5.22 0.71 0.61
Government
Costs (high).
Benefits
Training Only 5.41 6.33 0.77 0.74
(low).
Training Only 21.65 25.34 3.08 2.97
(high).
----------------------------------------------------------------------------------------------------------------
FRA is interested in comments addressing the Regulatory
Evaluation's methodology for establishing the accident pool used to
calculate benefits as well as establish the effectiveness rates of
mitigations. Specifically, FRA seeks public input on the studies used
to establish the effectiveness rates and the use of all human factor
accidents within the benefit pool. As the proposed regulation does not
specifically require railroads to implement specific mitigations, but
rather allows railroads to implement the mitigation that best addresses
their specific fatigue risks, FRA requests comments on any costs and
benefits that might be associated with the elements that FRA was unable
to quantify.
FRA's analysis shows there are many factors that are difficult to
quantify both for passenger and freight railroads. Where possible,
FRA's Regulatory Evaluation estimates costs and benefits for each
element within the proposed regulation. FRA also requests comments on
the elements that are qualitatively discussed. Given current railroad
business and operational practices, this analysis demonstrates the
fatigue training element, an element that all railroads will most
likely implement, may be cost effective. FRA also believes the napping
mitigation presented within the Regulatory Evaluation's alternative
analysis could be cost beneficial. However, given the uncertainty
surrounding the use of alertness as a measure of reduced fatigue, in an
effort to not overestimate the benefits associated with the proposed
regulation, FRA does not present the findings regarding napping in the
main analysis of the Regulatory Evaluation. Despite the uncertainty,
FRA believes that there could be significant reduction in fatigue with
the implementation of a napping mitigation. Not only do various studies
support the idea that napping reduces fatigue, but a large number of
Class I railroads already have policies supporting napping, which
suggests that the benefits outweigh the costs for those railroads.
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. An agency must prepare an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. FRA is publishing this IRFA to
aid the public in commenting on the potential small business impacts of
the requirements in this NPRM. FRA invites all interested parties to
submit data and information regarding the potential economic impact on
small entities that would result from the adoption of the proposals in
this NPRM. FRA will consider all information, including comments
received in the public comment process, to determine whether the rule
will have a significant economic impact on small entities.
1. Reasons FRA Is Considering the Proposed Rule
FRA is initiating this NPRM pursuant to 49 U.S.C. 20156, which
provides that FRA, by delegation from the Secretary, shall require
certain railroads to develop and implement an FRMP as part of either
their SSP or RRP.
2. Objectives and the Legal Basis for the Proposed Rule
This NPRM proposes to implement the FRMP element of the statutory
mandate by requiring each Class I freight railroad, each railroad that
provides intercity rail passenger transportation or commuter rail
passenger transportation, and each ISP railroad to develop and
implement an FRMP as one component of a larger railroad safety RRP or
SSP. A detailed discussion of the objectives and legal basis for the
proposed rule is provided in Section III of the preamble.
3. Description and Estimate of the Number of Small Entities Affected
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.)
requires a review of proposed and final rules to assess their impact on
small entities, unless the Secretary certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. ``Small entity'' is defined in 5 U.S.C. 601 as a small
business concern that is independently owned and operated, and is not
dominant in its
[[Page 83502]]
field of operation. The U.S. Small Business Administration (SBA) has
authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a for-profit ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 500
employees, or a ``commuter rail system'' with annual receipts of less
than seven million dollars. See ``Size Eligibility Provisions and
Standards,'' 13 CFR part 121, subpart A. In addition, section 601(5) of
the Small Business Act defines ``small entities'' as governments of
cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000 that operate
railroads.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Thus, in consultation with SBA, FRA has published a final
statement of agency policy that formally establishes ``small entities''
or ``small businesses'' as railroads, contractors, and shippers that
meet the revenue requirements of a Class III railroad \48\--$20 million
or less in inflation-adjusted annual revenue--and commuter railroads or
small government jurisdictions that serve populations of 50,000 or
less.\49\
---------------------------------------------------------------------------
\48\ See 49 CFR 1201.1.
\49\ See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49
CFR part 209).
---------------------------------------------------------------------------
The universe of entities this NPRM would affect includes only those
small entities that can reasonably be expected to be directly affected
by the provisions of this rule. In this case, the universe consists of
railroads that would be subject to the requirements under 49 CFR part
270 and under the RRP rule. For the purposes of this analysis, 736
railroads would be considered ``small entities,'' since they are Class
III freight railroads. Of the 736 small entities, 695 are on the
general system and could be potentially impacted by the proposed
regulation.\50\ Since FRA does not currently know which railroads will
be considered ISP railroads, but an ISP railroad could be either a
Class II or Class III railroad, FRA is unable to provide a more
accurate impact that the proposed regulation would have on small
entities.
---------------------------------------------------------------------------
\50\ Both the SSP rule and RRP rule exempts railroads not on the
general system. See 49 CFR 270.3(b) and 49 CFR 271.3(b).
---------------------------------------------------------------------------
For purposes of this analysis, this proposed rule will apply to 35
commuter or other short-haul passenger railroads and two intercity
passenger railroads, the National Railroad Passenger Corporation
(Amtrak) and the Alaska Railroad Corporation (ARC).\51\ Neither of the
intercity passenger railroads is considered a small entity. Amtrak
serves populations well in excess of 50,000, and the ARC is owned by
the State of Alaska, which has a population well in excess of 50,000.
---------------------------------------------------------------------------
\51\ There are State-sponsored intercity passenger rail
services, the majority of which will be part of Amtrak's SSP.
---------------------------------------------------------------------------
Based on the definition of ``small entity,'' only one commuter or
other short-haul passenger railroad is considered a small entity: The
Hawkeye Express (operated by the Iowa Northern Railway Company).
The impact of the proposed regulation on these small entities is
unknown, since FRA is allowing the railroads to decide their fatigue
mitigations based on their specific needs instead of mandating that
railroads adopt specific mitigation programs. Furthermore, FRA
estimates that only 50 ISP railroads would be impacted by the proposed
regulation, which is approximately 7 percent of small entities,
assuming all the 50 ISP railroads are considered small entities. FRA
estimates that the 50 ISP railroads would be impacted over the course
of 10 years, at a rate of approximately 5 ISPs per year. This estimate
is consistent with the RRP final rule that FRA has published.
Therefore, because of the uncertainty surrounding both the number of
ISP railroads that would be considered small entities as well as the
impact that the proposed regulation would have on those small entities,
the impact that the NPRM would have on small entities is unclear. FRA
requests comments about the impact that the proposed regulation would
have on both freight and passenger rail small entities.
4. Description of the Projected Reporting, Recordkeeping, and Other
Requirements
The rule will require an ISP railroad to develop and implement an
FRMP under an RRP or SSP plan that FRA has reviewed and approved. There
are several reporting and recordkeeping costs associated with the
proposed regulation. Since the railroads have the flexibility to adjust
their FRMPs to their specific risks, these costs will vary based on the
respective risks as well as the size of the ISP railroad. While FRA is
unable to estimate the burden that the proposed regulation would have
on small entities, FRA expects that the impact will be proportional to
the number of employees as well as the mitigation strategy that is
implemented. Other mitigation strategies such as screening for sleep
disorders could include costs that are higher.
While FRA is unable to identify the specific railroads that would
be considered ISPs, to estimate the potential impact that developing an
FRMP would have on an ISP railroad, FRA used the average Class III
revenue to estimate the impact.\52\ Per the American Short Line and
Regional Railroad Association (ASLRRA), the average Class III railroad
has an annual average revenue of $4.75 million. FRA estimated the
annual cost to ISP railroads at $60,052, with approximately five ISP
railroads incurring this cost per year. The $60,052 cost consists of an
annual average of $53,228 \53\ for FRMP program development and $7,274
for employee training.\54\ The total 10-year cost that would impact a
single ISP railroad would be $121,004.\55\ The annual cost represents
approximately 2.5 percent of the average Class III railroad's
revenue.\56\ However, as this estimate is based off of the average
annual Class III railroad revenue, and there could be a large variance
in the revenue of Class III railroads, FRA requests comments regarding
the annual revenue of Class III railroads as well as the impact the
proposed regulation would have on Class III railroads.
---------------------------------------------------------------------------
\52\ The Class II and Class III average costs per railroad come
from the 2015 Edition of the ASLRRA Facts and Figures.
\53\ An average is used to better account for the impact as the
cost schedule varies as the number of ISP railroads increases. See
the RIA in the docket for more information on the cost structure for
ISP railroads.
\54\ Calculation: $53,228 (program development cost) + $7,274
(ISP employee training costs) = $60,052 (Annual cost for 5 ISP
railroads).
\55\ Calculation: ([$60,052/5 (ISP railroads)] (annual cost to
ISP)) x 10 (number of years) = $121,004 (10-year cost to single ISP
railroad).
\56\ Calculation: $121,004 (annual cost to ISP)/$4,750,000
(average annual Class III revenue) = 0.025 or 2.5 percent.
---------------------------------------------------------------------------
FRA has identified several possible reporting and recordkeeping
costs associated with the proposed regulation such as:
(1) Development, submission to FRA, and recordkeeping of the FRMP
plan;
(2) identification of the specific fatigue risks that impact the
specific ISP; and
(3) recordkeeping associated with fatigue training.
More information about the burden and associated costs for each of
the projected reporting, recordkeeping, and other requirements can be
found in the information collection request FRA will be submitting to
the Office of Management and Budget (OMB) under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq. FRA requests comments regarding
the recordkeeping
[[Page 83503]]
burden that the proposed regulation would have on ISP railroads to
ensure that all cost elements of recordkeeping and how those elements
would impact Class III railroads are captured.
5. Identification of Relevant Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed Rule
While the proposed FRMP rule would be a component of the RRP and
SSP rules, the proposed FRMP would specifically address fatigue-related
risks and is aimed at mitigating those risks specifically. As such,
there will be some coordination needed to ensure that a railroad's FRMP
is developed and worked into the railroad's RRP or SSP. Regardless,
considering that the proposed FRMP is a subpart within both RRP and
SSP, neither RRP nor SSP provide any elements, outside of the proposed
regulation, that are designed to mitigate fatigue related risk
specifically. As such, FRA does not expect there to be any relevant
Federal rules that would duplicate, overlap with, or conflict with the
proposed regulations in this NPRM.
6. Significant Regulatory Alternatives
Within the preamble above, FRA outlines the various fatigue risks
that railroads need to address. FRA does not specifically state,
however, in what manner the railroads must address those risks. One
alternative is for railroads to not create an FRMP and to continue to
address their fatigue risks as they have currently been doing. This
would result in the railroads violating the RSIA mandate. In addition,
if railroads continue to address their fatigue risks as they have in
the past, FRA expects that safety would continue to be negatively
impacted because the fatigue risks are not adequately addressed
currently. Since railroads have some flexibility in how they design
their FRMPs, it is expected that the impact of each FRMP on a railroad
will be minimal as the flexibility in implementing mitigations will
most likely be done in a cost effective manner. FRA expects that
railroads will consider the cost of the mitigation as well as the
fatigue risks when creating their FRMPs.
FRA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this NPRM. FRA will consider all comments received
in the public comment process when making a determination.
C. Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' The Executive
Order defines ``policies that have federalism implications'' to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, the agency may not issue
a regulation with federalism implications that imposes substantial
direct compliance costs and that is not required by statute, unless the
Federal Government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments or the agency
consults with State and local government officials early in the process
of developing the regulation. Where a regulation has federalism
implications and preempts State law, the agency seeks to consult with
State and local officials in the process of developing the regulation.
FRA analyzed this NPRM consistent with the principles and criteria
contained in Executive Order 13132. FRA has determined the proposed
rule would not have substantial direct effects on States, on the
relationship between the national government and States, or on the
distribution of power and responsibilities among the various levels of
government. In addition, FRA has determined this proposed rule would
not impose substantial direct compliance costs on State and local
governments. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
This NPRM proposes to add subpart E, Fatigue Management Plans, to
49 CFR part 270 and subpart G, Fatigue Management Plans, to 49 CFR part
271. FRA is not aware of any State with regulations similar to this
proposed rule. However, FRA notes that this part could have preemptive
effect by the operation of law under 49 U.S.C. 20106. Section 20106
provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters),
unless the State law, regulation, or order (1) qualifies under the
``essentially local safety or security hazard'' exception to sec.
20106; (2) is not incompatible with a law, regulation, or order of the
U.S. Government; and (3) does not unreasonably burden interstate
commerce.
In sum, FRA analyzed this proposed rule consistent with the
principles and criteria in Executive Order 13132. FRA has determined
this proposed rule has no federalism implications and has determined it
is not required to prepare a federalism summary impact statement for
this proposed rule.
D. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The Act also requires consideration of international
standards, and, where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and will not
affect trade opportunities for U.S. firms doing business overseas or
for foreign firms doing business in the United States.
E. Paperwork Reduction Act
The information collection requirements in this proposed rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et
seq. The sections that contain the new information collection
requirements and the estimated time to fulfill each requirement are as
follows:
[[Page 83504]]
----------------------------------------------------------------------------------------------------------------
Total annual
Respondent Total annual Average time Total annual dollar cost
CFR section/subject universe responses per response burden hours equivalent
(hours) \57\
----------------------------------------------------------------------------------------------------------------
270.409--Fatigue Risk 35 passenger 12 plans....... 60 720 $63,144
Management Program Plan railroads.
(FRMP Plan) as part of its
SSP--Comprehensive FRMP plan
meeting all of this
section's requirements and
under Part 270 subpart C.
--(c)(3)(ii)--Annual internal 35 passenger 12 evaluations/ 2 24 1,824
FRMP Plan assessments/ railroads. reports.
reports conducted by RRs.
--FRMP plans found deficient 35 passenger 4 amended plans 30 120 9,588
by FRA and requiring railroads.
amendment.
--Review of amended FRMP 35 passenger 1 further 15 15 1,199
plans found deficient and railroads. amended plan.
requiring further amendment
by RRs.
--Consultation requirements-- 35 passenger 12 1.5 18 1,368
RR consultation with its railroads. consultations
directly affected employees (w/labor union
on FRMP Plan. reps.).
271.609--Fatigue Risk 7 Class I 2 plans........ 90 180 15,786
Management Program Plan railroads. 5 plans........ 50 250 21,925
(FRMP Plan) as part of its 15 ISP railroads
RRP--Comprehensive written
FRMP Plan meeting all of
this section's requirements
and under Part 271 subpart d.
--(c)(3)(ii)--Annual internal 7 Class I + 15 7 evaluations/ 2 14 1,064
FRMP Plan assessments/ ISP railroads. reports.
reports conducted by RRs.
--Consultation requirements-- 7 Class I 2 consultations 1.5 3 228
RR consultation with its railroads. (w/labor union
directly affected employees reps.).
on FRMP Plan.
15 ISP railroads 5 consultations 1 5 380
(w/labor union
reps.).
--FRMP plans found deficient 7 Class I 1 amended plan. 40 40 3,196
by FRA and requiring railroads.
amendment.
15 ISP railroads 3 amended plans 20 60 4,794
--Review of amended FRMP 7 Class I 1 further 20 20 1,598
plans found deficient and railroads. amended plan.
requiring further amendment
by RRs.
15 ISP railroads 2 further 10 20 1,598
amended plans.
----------------------------------------------------------------------------------
Totals................... 35 railroads.... 69 responses... N/A 1,489 127,692
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Ms. Hodan Wells,
Information Collection Clearance Officer, Federal Railroad
Administration, at 202-493-0440.
---------------------------------------------------------------------------
\57\ The dollar equivalent cost is derived from the 2018 Surface
Transportation Board's Full Year Wage A&B data series using the
appropriate employee group hourly wage rate that includes 75-percent
overhead charges.
---------------------------------------------------------------------------
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Ms. Hodan
Wells via email at [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
F. Environmental Assessment
FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321, et seq.), the Council
of Environmental Quality's NEPA implementing regulations at 40 CFR
parts 1500-1508, and FRA's NEPA implementing regulations at 23 CFR part
771 and determined that it is categorically excluded from environmental
review and therefore does not require the preparation of an
environmental assessment (EA) or environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
[[Page 83505]]
identified in an agency's NEPA implementing regulations that do not
normally have a significant impact on the environment and therefore do
not require either an EA or EIS. See 40 CFR 1508.4. Specifically, FRA
has determined that this proposed rule is categorically excluded from
detailed environmental review pursuant to 23 CFR 771.116(c)(15),
``[p]romulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly increased
emissions of air or water pollutants or noise.''
The purpose of this rulemaking is to propose requirements for
certain railroads to develop and implement an FRMP, as one component of
the railroads' larger railroad safety risk reduction programs. This
rule does not directly or indirectly impact any environmental resources
and will not result in significantly increased emissions of air or
water pollutants or noise. Instead, the proposed rule is likely to
result in safety benefits. In analyzing the applicability of a CE, FRA
must also consider whether unusual circumstances are present that would
warrant a more detailed environmental review. See 23 CFR 771.116(b).
FRA has concluded that no such unusual circumstances exist with respect
to this proposed regulation and the proposal meets the requirements for
categorical exclusion under 23 CFR 771.116(c)(15).
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties. See 16 U.S.C. 470. FRA
has also determined that this rulemaking does not approve a project
resulting in a use of a resource protected by Section 4(f). See
Department of Transportation Act of 1966, as amended (Pub. L. 89-670,
80 Stat. 931); 49 U.S.C. 303.
G. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2B \58\ require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects, of their programs, policies, and activities on minority
populations and low-income populations. The DOT Order instructs DOT
agencies to address compliance with Executive Order 12898 and
requirements within the DOT Order in rulemaking activities, as
appropriate, and also requires consideration of the benefits of
transportation programs, policies, and other activities where minority
populations and low-income populations benefit, at a minimum, to the
same level as the general population as a whole when determining
impacts on minority and low-income populations. FRA has evaluated this
proposed rule under Executive Order 12898 and the DOT Order and has
determined it would not cause disproportionately high and adverse human
health and environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------
\58\ Available at: https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice.
---------------------------------------------------------------------------
H. Unfunded Mandates Reform Act of 1995
Under Section 201 of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531), each Federal agency ``shall, unless otherwise prohibited
by law, assess the effects of Federal regulatory actions on State,
local, and tribal governments, and the private sector (other than to
the extent that such regulations incorporate requirements specifically
set forth in law).'' Section 202 of the Act (2 U.S.C. 1532) further
requires that ``before promulgating any general notice of proposed
rulemaking that is likely to result in the promulgation of any rule
that includes any Federal mandate that may result in expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year, and before promulgating any final rule for
which a general notice of proposed rulemaking was published, the agency
shall prepare a written statement'' detailing the effect on State,
local, and tribal governments and the private sector. This proposed
rule will not result in the expenditure, in the aggregate, of
$100,000,000 or more (as adjusted annually for inflation), in any one
year, and thus preparation of such a statement is not required.
I. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. FRA evaluated this NPRM under Executive Order
13211, and determined this NPRM is not a ``significant energy action''
under the Executive Order 13211.
J. Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
List of Subjects
49 CFR Part 270
Fatigue, Penalties, Railroad safety, Reporting and recordkeeping
requirements, System safety.
49 CFR Part 271
Fatigue, Penalties, Railroad safety, Reporting and recordkeeping
requirements, Risk reduction.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49, Code of Federal Regulations as
follows:
PART 270--SYSTEM SAFETY PROGRAM
0
1. The authority citation for part 270 continues to read as follows:
Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
0
2. Section 270.103(a)(1) is revised to read as follows:
Sec. 270.103 System safety program plan.
(a) General. (1) Each railroad subject to this part shall adopt and
fully implement a system safety program through a written SSP plan
that, at a minimum, contains the elements in this section and in
subpart E of this part. This SSP plan shall be approved by FRA under
the process specified in Sec. 270.201.
0
3. Add subpart E to read as follows:
Subpart E--Fatigue Risk Management Programs
Sec.
[[Page 83506]]
270.401 Definitions.
270.403 Purpose and scope of a Fatigue Risk Management Program
(FRMP).
270.405 General requirements; procedure.
270.407 Requirements for an FRMP.
270.409 Requirements for a FRMP plan.
Subpart E--Fatigue Risk Management Programs
Sec. 270.401 Definitions.
As used in this subpart--
Contributing factor means a circumstance or condition that helps
cause a result.
Fatigue means a complex state characterized by a lack of alertness
and reduced mental and physical performance, often accompanied by
drowsiness.
Fatigue-risk analysis means a railroad's analysis of its operations
that:
(1) Identifies and evaluates the fatigue-related railroad safety
hazards on its system(s); and
(2) Determines the degree of risk associated with each of those
hazards.
FRMP means a Fatigue Risk Management Program.
FRMP plan means a Fatigue Risk Management Program plan.
Safety-related railroad employee means:
(1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
(2) Another person involved in railroad operations not subject to
49 U.S.C. 21103, 21104, or 21105;
(3) A person who inspects, installs, repairs or maintains track,
roadbed, signal and communication systems, and electric traction
systems including a roadway worker or railroad bridge worker;
(4) A hazmat employee defined under 49 U.S.C. 5102(3);
(5) A person who inspects, repairs, or maintains locomotives,
passenger cars, or freight cars; or
(6) An employee of any person who utilizes or performs significant
railroad safety-related services, as described in Sec. 270.103(d)(2),
if that employee performs a function identified in paragraphs (1)
through (5) of this definition.
Sec. 270.403 Purpose and scope of a Fatigue Risk Management Program
(FRMP).
(a) Purpose. The purpose of an FRMP is to improve railroad safety
through structured, systematic, proactive processes and procedures that
a railroad subject to this part develops and implements to identify and
mitigate the effects of fatigue on its employees.
(b) Scope. A railroad shall:
(1) Design its FRMP to reduce the fatigue its safety-related
railroad employees experience and to reduce the risk of railroad
accidents, incidents, injuries, and fatalities where the fatigue of any
of these employees is a contributing factor;
(2) Develop its FRMP by systematically identifying and evaluating
the fatigue-related railroad safety hazards on its system, determining
the degree of risk associated with each hazard, and managing those
risks to reduce the fatigue that its safety-related railroad employees
experience. This system-wide fatigue risk identification and evaluation
process must account for the varying circumstances of a railroad's
operations on different parts of its system; and
(3) Employ in its FRMP the fatigue risk mitigation strategies a
railroad identifies as appropriate to address those varying
circumstances.
Sec. 270.405 General requirements; procedure.
(a) Each railroad subject to this part shall:
(1) Establish and implement an FRMP as part of its SSP; and
(2) Establish an FRA-approved FRMP plan as a component of a
railroad's FRA-approved SSP plan and then update its FRMP plan as
necessary as part of the annual internal assessment of its SSP under
Sec. 270.303.
(b) A railroad's FRMP plan must explain the railroad's method of
analysis of fatigue risks and the railroad's process(es) for
implementing its FRMP.
(c)(1) A railroad shall submit an FRMP plan to FRA for approval no
later than either the applicable timeline in Sec. 270.201(a) for
filing its SSP plan or [date six months after publication of the final
rule in the Federal Register].
(2) A railroad shall submit updates to its FRMP plan under the
process for amending its SSP plan in Sec. 270.201(c).
(d) FRA shall review and approve or disapprove a railroad's FRMP
plan and amendments to that plan under the process for reviewing SSP
plans and amendments in Sec. 270.201(b) and (c), respectively.
Sec. 270.407 Requirements for an FRMP.
(a) In general. An FRMP shall include an analysis of fatigue risks
and mitigation strategies, as described in paragraphs (b) and (c) of
this section.
(b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
risk analysis as part of its FRA-approved FRMP, which includes
identification of fatigue-related railroad safety hazards, assessment
of the risks associated with those hazards, and prioritization of risks
for mitigation. At a minimum, a railroad must consider the following
categories of risk factors:
(1) General health and medical conditions that can affect the
fatigue levels among the population of safety-related railroad
employees;
(2) Scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of
sleep; and
(3) Characteristics of each job category of safety-related railroad
employees work that can affect fatigue levels and risk for fatigue of
those employees.
(c) Mitigation strategies. A railroad shall develop and implement
mitigation strategies to reduce the risk of railroad accidents,
incidents, injuries, and fatalities where fatigue of any of its safety-
related employees is a contributing factor. At a minimum, in developing
and implementing these mitigation strategies, a railroad shall consider
the railroad's policies, practices, and communication related to its
safety-related railroad employees.
(1) Policies. A railroad shall consider developing and implementing
policies to reduce the risk of the exposure of its safety-related
railroad employees to fatigue-related railroad safety hazards on its
system. At a minimum, a railroad shall consider these policies:
(i) Providing opportunities for identification, diagnosis, and
treatment of any medical condition that may affect alertness or
fatigue, including sleep disorders;
(ii) Identifying methods to minimize accidents and incidents that
occur as a result of working at times when scientific and medical
research have shown increased fatigue disrupts employees' circadian
rhythms;
(iii) Developing and implementing alertness strategies, such as
policies on napping, to address acute drowsiness and fatigue while an
employee is on duty;
(iv) Increasing the number of consecutive hours of off-duty rest,
during which an employee receives no communication from the employing
railroad or its managers, supervisors, officers, or agents; and
(v) Avoiding abrupt changes in rest cycles for employees.
(2) Practices. A railroad shall consider developing and
implementing operational practices to reduce the risk of exposure of
its safety-related railroad employees to fatigue-related railroad
safety hazards on its system. At a minimum, a railroad shall consider
these practices:
(i) Minimizing the effects on employee fatigue of an employee's
short-term or sustained response to emergency situations, such as
[[Page 83507]]
derailments and natural disasters, or engagement in other intensive
working conditions;
(ii) Developing and implementing scheduling practices for
employees, including innovative scheduling practices, on-duty call
practices, work and rest cycles, increased consecutive days off for
employees, changes in shift patterns, appropriate scheduling practices
for varying types of work, and other aspects of employee scheduling to
reduce employee fatigue and cumulative sleep loss; and
(iii) Providing opportunities to obtain restful sleep at lodging
facilities, including employee sleeping quarters provided by the
railroad carrier.
(3) Communications. A railroad shall consider developing and
implementing training, education, and outreach methods to deliver
fatigue-related information effectively to its safety-related railroad
employees. At a minimum, a railroad shall consider including in its
employee education and training information on the physiological and
human factors that affect fatigue, as well as strategies to reduce or
mitigate the effects of fatigue, based on the most current scientific
and medical research and literature.
(d) Evaluation. A railroad shall develop and implement procedures
and processes for monitoring and evaluating its FRMP to assess whether
the FRMP effectively meets the goals its FRMP plan describes, as
required under Sec. 270.409(b).
(1) The evaluation shall include, at a minimum:
(i) Periodic monitoring of the railroad's operational environment
to detect changes that may generate new hazards;
(ii) Analysis of the risks associated with any identified hazards;
and
(iii) Periodic safety assessments to determine the need for changes
to its mitigation strategies.
(2) A railroad shall evaluate newly-identified hazards, and hazards
associated with ineffective mitigation strategies, through processes
for analyzing fatigue risks described in the railroad's FRMP plan.
(3) Any necessary changes not addressed prior to a railroad's
annual internal assessment must be included in the internal assessment
improvement plans required under Sec. 270.303.
Sec. 270.409 Requirements for a FRMP plan.
(a) In general. A railroad shall adopt and implement its FRMP
through an FRA-approved FRMP plan, developed in consultation with
directly affected employees as described under Sec. 270.107. A
railroad FRMP plan must contain the elements described in this section.
A railroad must submit the plan to FRA for approval under the criteria
of subpart C.
(b) Goals. An FRMP plan must contain a statement that defines the
specific fatigue-related goals of the FRMP and describes strategies for
reaching those goals.
(c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall
describe a railroad's method(s) for conducting its fatigue-risk
analysis as part of its FRMP. The description shall specify:
(i) The scope of the analysis, which is the covered population of
safety-related railroad employees;
(ii) The processes a railroad will use to identify fatigue-related
railroad safety hazards on its system and determine the degree of risk
associated with each fatigue-related hazard identified;
(iii) The processes a railroad will use to compare and prioritize
identified fatigue-related risks for mitigation purposes; and
(iv) The information sources a railroad will use to support ongoing
identification of fatigue-related railroad safety hazards and determine
the degree of risk associated with those hazards.
(2) Mitigation strategies. An FRMP plan shall describe a railroad's
processes for:
(i) Identifying and selecting fatigue risk mitigation strategies;
and
(ii) Monitoring identified fatigue-related railroad safety hazards.
(3) Evaluation. An FRMP plan shall describe:
(i) A railroad's processes for monitoring and evaluating the
overall effectiveness of its FRMP and the effectiveness of fatigue-
related mitigation strategies the railroad uses under Sec. 270.407;
and
(ii) A railroad's procedures for reviewing the FRMP as part of the
annual internal assessment of its SSP under Sec. 270.303 and for
updating the FRMP plan under the process for amending its SSP plan
under Sec. 270.201(c).
(d) FRMP implementation plan. A railroad shall describe in its FRMP
plan how it will implement its FRMP. This description must cover an
implementation period not to exceed 36 months, and shall include:
(1) A description of the roles and responsibilities of each
position or job function with significant responsibility for
implementing the FRMP, including those held by employees, contractors
who provide significant FRMP-related services, and other entities or
persons that provide significant FRMP services;
(2) A timeline describing when certain milestones that must be met
to implement the FRMP fully will be achieved. Implementation milestones
shall be specific and measurable;
(3) A description of how a railroad may make significant changes to
the FRMP plan under the process for amending its SSP plan in Sec.
270.201(c); and
(4) The procedures for consultation with directly affected
employees on any subsequent substantive amendments to the railroad's
FRMP plan. The requirements of this section do not apply to non-
substantive amendments (e.g., amendments that update names and
addresses of railroad personnel).
(e) Submittal. A railroad shall amend its SSP plan submitted under
subpart C of this part to include its FRMP plan that meets the
requirements of this section no later than August 19, 2021.
(1) A railroad shall follow the procedures in Sec. 270.201(c) to
amend its SSP plan.
(2) An FRMP plan is not considered a safety critical amendment for
the purposes of Sec. 270.201(c)(ii).
(3) If a railroad was not required to submit an SSP plan initially,
but is required to do so at a later date, the railroad shall either
include an FRMP plan as part of its SSP plan submission under Sec.
270.201(a), or submit its FRMP plan in accordance with the procedures
for amending its SSP plan under Sec. 270.201(c) no later than August
19, 2021, whichever is later.
PART 271--RISK REDUCTION PROGRAM
0
4. The authority citation for part 271 continues to read as follows:
Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
0
5. Amend Sec. 271.101 by revising paragraph (a) to read as follows:
Sec. 271.101 Risk reduction programs.
(a) Program required. Each railroad shall establish and fully
implement an RRP meeting the requirements of this part. An RRP shall
systematically evaluate railroad safety hazards on a railroad's system
and manage the resulting risks to reduce the number and rates of
railroad accidents/incidents, injuries, and fatalities. An RRP is an
ongoing program that supports continuous safety improvement. A railroad
shall design its RRP so that it promotes and supports a positive safety
culture at the railroad. An RRP shall include the following:
(1) A risk-based hazard management program, as described in Sec.
271.103;
(2) A safety performance evaluation component, as described in
Sec. 271.105;
[[Page 83508]]
(3) A safety outreach component, as described in Sec. 271.107;
(4) A technology analysis and technology implementation plan, as
described in Sec. 271.109;
(5) RRP implementation and support training, as described in Sec.
271.111;
(6) Involvement of railroad employees in the establishment and
implementation of an RRP, as described in Sec. 271.113; and
(7) An FRMP as described in Sec. 271.607.
0
6. Section 271.201 is revised to read as follows:
Sec. 271.201 General.
A railroad shall adopt and implement its RRP through a written RRP
plan containing the elements described in this subpart and in Sec.
271.609. A railroad's RRP plan shall be approved by FRA according to
the requirements contained in subpart D of this part.
0
7. Add subpart G to read as follows:
Subpart G--Fatigue Risk Management Programs
Sec.
271.601 Definitions.
271.603 Purpose and scope of a Fatigue Risk Management Program
(FRMP).
271.605 General requirements; procedure.
271.607 Requirements for an FRMP.
271.609 Requirements for a FRMP plan.
Subpart G--Fatigue Risk Management Programs
Sec. 271.601 Definitions.
As used in this subpart--
Contributing factor means a circumstance or condition that helps
cause a result.
Fatigue means a complex state characterized by a lack of alertness
and reduced mental and physical performance, often accompanied by
drowsiness.
Fatigue-risk analysis means a railroad's analysis of its operations
that:
(1) Identifies and evaluates the fatigue-related railroad safety
hazards on its system(s) and;
(2) Determines the degree of risk associated with each of those
hazards.
FRMP means a Fatigue Risk Management Program.
FRMP plan means a Fatigue Risk Management Program plan.
Safety-related railroad employee means:
(1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
(2) Another person involved in railroad operations not subject to
49 U.S.C. 21103, 21104, or 21105;
(3) A person who inspects, installs, repairs or maintains track,
roadbed, signal and communication systems, and electric traction
systems including a roadway worker or railroad bridge worker;
(4) A hazmat employee defined under 49 U.S.C. 5102(3);
(5) A person who inspects, repairs, or maintains locomotives,
passenger cars, or freight cars; or
(6) An employee of any person who utilizes or performs significant
railroad safety-related services, as described in Sec. 271.205(a)(3),
if that employee performs a function identified in paragraphs (1)
through (5) of this definition.
Sec. 271.603 Purpose and scope of a Fatigue Risk Management Program
(FRMP).
(a) Purpose. The purpose of an FRMP is to improve railroad safety
through structured, proactive processes and procedures a railroad
subject to this part develops and implements. A railroad's FRMP shall
systematically identify and evaluate the fatigue-related railroad
safety hazards on its system, determine the degree of risk associated
with each hazard, and manage those risks to reduce the fatigue that its
safety-related railroad employees experience and to reduce the risk of
railroad accidents, incidents, injuries, and fatalities where the
fatigue of any of these employees is a contributing factor.
(b) Scope. A railroad shall:
(1) Design its FRMP to reduce the fatigue its safety-related
railroad employees experience and to reduce the risk of railroad
accidents, incidents, injuries, and fatalities where the fatigue of any
of these employees is a contributing factor;
(2) Develop its FRMP by conducting a system-wide fatigue-risk
analysis that accounts for the varying circumstances of its operations
on different parts of its system; and
(3) Employ in its FRMP the fatigue risk mitigation strategies the
railroad identifies as appropriate to address those varying
circumstances.
Sec. 271.605 General requirements; procedure.
(a) Each railroad subject to this part shall:
(1) Establish and implement an FRMP as part of its RRP; and
(2) Establish an FRA-approved FRMP plan as a component of a
railroad's FRA-approved RRP plan and then update the FRMP plan as
necessary as part of the annual internal assessment of its RRP under
Sec. 271.401.
(b) A railroad's FRMP plan must explain the railroad's method of
analysis of fatigue risks and the railroad's process(es) for
implementing its FRMP.
(c)(1) A railroad shall submit an FRMP plan to FRA for approval no
later than either the applicable timeline in Sec. 271.301(b) for
filing its RRP plan or [date six months after publication of the final
rule in the Federal Register], whichever is later; and
(2) A railroad shall submit updates to its FRMP plan under the
process for amending its RRP plan in Sec. 271.303.
(d) FRA shall review and approve or disapprove a railroad's FRMP
plan under the process for reviewing RRP plans in Sec. 271.301(d) and
updates to the railroad's FRMP plan under the process for reviewing
amendments to an RRP plan in Sec. 271.303(c).
Sec. 271.607 Requirements for an FRMP.
(a) In general. An FRMP shall include an analysis of fatigue risks
and mitigation strategies described in paragraphs (b) and (c) of this
section.
(b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
risk analysis as part of its FRA-approved FRMP, which includes
identification of fatigue-related railroad safety hazards, assessment
of the risks associated with those hazards, and prioritization of risks
for mitigation. At a minimum, railroads must consider the following
categories of risk factors, as applicable:
(1) General health and medical conditions that can affect the
fatigue levels among the population of safety-related railroad
employees;
(2) Scheduling issues that can affect the opportunities of safety-
related railroad employees to obtain sufficient quality and quantity of
sleep; and
(3) Characteristics of each job category safety-related railroad
employees work that can affect fatigue levels and risk for fatigue of
those employees.
(c) Mitigation strategies. A railroad shall develop and implement
mitigation strategies to reduce the risk of railroad accidents,
incidents, injuries, and fatalities where fatigue of any of its safety-
related employees is a contributing factor. At a minimum, in developing
and implementing these mitigation strategies, a railroad shall consider
the railroad's policies, practices, and communications related to its
safety-related railroad employees.
(1) Policies. A railroad shall consider developing and implementing
policies to reduce the risk of the exposure of its safety-related
railroad employees to fatigue-related railroad safety hazards on its
system. At a minimum, a railroad shall consider these policies:
(i) Providing opportunities for identification, diagnosis, and
treatment of any medical condition that may affect alertness or
fatigue, including sleep disorders;
[[Page 83509]]
(ii) Identifying methods to minimize accidents and incidents that
occur as a result of working at times when scientific and medical
research have shown increased fatigue disrupts employees' circadian
rhythms;
(iii) Developing and implementing alertness strategies, such as
policies on napping, to address acute drowsiness and fatigue while an
employee is on duty;
(iv) Increasing the number of consecutive hours of off-duty rest,
during which an employee receives no communication from the employing
railroad or its managers, supervisors, officers, or agents; and
(v) Avoiding abrupt changes in rest cycles for employees.
(2) Practices. A railroad shall consider developing and
implementing operational practices to reduce the risk of exposure of
its safety-related railroad employees to fatigue-related railroad
safety hazards on its system. At a minimum, a railroad shall consider
these practices:
(i) Minimizing the effects on employee fatigue of an employee's
short-term or sustained response to emergency situations, such as
derailments and natural disasters, or engagement in other intensive
working conditions;
(ii) Developing and implementing scheduling practices for
employees, including innovative scheduling practices, on-duty call
practices, work and rest cycles, increased consecutive days off for
employees, changes in shift patterns, appropriate scheduling practices
for varying types of work, and other aspects of employee scheduling to
reduce employee fatigue and cumulative sleep loss; and
(iii) Providing opportunities to obtain restful sleep at lodging
facilities, including employee sleeping quarters provided by the
railroad carrier.
(3) Communication. A railroad shall consider developing and
implementing training, education, and outreach methods to deliver
fatigue-related information effectively to its safety-related railroad
employees. At a minimum, a railroad shall consider communications
regarding employee education and training on the physiological and
human factors that affect fatigue, as well as strategies to reduce or
mitigate the effects of fatigue, based on the most current scientific
and medical research and literature.
(d) Evaluation. A railroad shall develop and implement procedures
and processes for monitoring and evaluating its FRMP to assess whether
the FRMP effectively meets the goals its FRMP plan describes under
Sec. 271.609(b).
(1) The evaluation shall include, at a minimum:
(i) Periodic monitoring of the railroad's operational environment
to detect changes that may generate new hazards;
(ii) Analysis of the risks associated with any identified hazards;
and
(iii) Periodic safety assessments to determine the need for changes
to its mitigation strategies.
(2) A railroad shall evaluate newly-identified hazards, and hazards
associated with ineffective mitigation strategies, through processes
for analyzing fatigue risks described in the railroad's FRMP plan.
(3) Any necessary changes not addressed prior to a railroad's
annual internal assessment must be included in the internal assessment
improvement plans required under Sec. 271.403.
Sec. 271.609 Requirements for a FRMP plan.
(a) In general. A railroad shall adopt and implement its FRMP
through an FRA-approved FRMP plan, developed in consultation with
directly affected employees as described under Sec. 271.207. A
railroad FRMP plan must contain the elements described in this section.
The railroad must submit the plan to FRA for approval under the
criteria of subpart D.
(b) Goals. An FRMP plan must contain a statement that defines the
specific fatigue-related goals of the FRMP and describes strategies for
reaching those goals.
(c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall
describe a railroad's method(s) for conducting its fatigue-risk
analysis as part of its FRMP. The description shall specify:
(i) The scope of the analysis, which is the covered population of
safety-related railroad employees;
(ii) The processes a railroad will use to identify fatigue-related
railroad safety hazards on its system and determine the degree of risk
associated with each fatigue-related hazard identified;
(iii) The processes a railroad will use to compare and prioritize
identified fatigue-related risks for mitigation purposes; and
(iv) The information sources a railroad will use to support ongoing
identification of fatigue-related railroad safety hazards and determine
the degree of risk associated with those hazards.
(2) Mitigation strategies. An FRMP plan shall describe a railroad's
processes for:
(i) Identifying and selecting fatigue risk mitigation strategies;
and
(ii) Monitoring identified fatigue-related railroad safety hazards.
(3) Evaluation. An FRMP plan shall describe:
(i) A railroad's processes for monitoring and evaluating the
overall effectiveness of its FRMP and the effectiveness of fatigue-
related mitigation strategies the railroad uses under Sec. 271.607;
and
(ii) A railroad's procedures for reviewing the FRMP as part of the
annual assessment of its RRP under Sec. 271.401 and for updating the
FRMP plan under the process for amending its RRP plan under Sec.
271.303.
(d) FRMP implementation plan. A railroad shall describe in its FRMP
plan how it will implement its FRMP. This description must cover an
implementation period not to exceed 36 months, and shall include:
(1) A description of the roles and responsibilities of each
position or job function with significant responsibility for
implementing the FRMP, including those held by employees, contractors
who provide significant FRMP-related services, and other entities or
persons that provide significant FRMP services;
(2) A timeline describing when certain milestones that must be met
to implement the FRMP fully will be achieved. Implementation milestones
shall be specific and measurable;
(3) A description of how the railroad may make significant changes
to the FRMP plan under the process for amending its RRP plan in Sec.
271.303; and
(4) The procedures for consultation with directly affected
employees on any subsequent substantive amendments to the railroad's
FRMP plan. The requirements of this section do not apply to non-
substantive amendments (e.g., amendments that update names and
addresses of railroad personnel).
(e) Submittal. A railroad shall amend its RRP plan submitted under
subpart D of this part to include its FRMP plan that meets the
requirements of this section no later than August 19, 2021.
(1) A railroad shall follow the procedures in Sec. 271.303 to
amend its RRP plan.
(2) If a railroad was not required to submit an RRP plan initially,
but is required to do so at a later date, the railroad shall either
include an FRMP plan as part of its RRP plan submission under Sec.
271.301 or submit its FRMP plan in accordance with the procedures for
amending its RRP plan under Sec. 271.303 no later than August 19,
2021, whichever is later.
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020-27085 Filed 12-21-20; 8:45 am]
BILLING CODE 4910-06-P