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Rule2022-12614

Fatigue Risk Management Programs for Certain Passenger and Freight Railroads

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Published

June 13, 2022

Effective

July 13, 2022

Issuing agencies

Transportation DepartmentFederal Railroad Administration

Abstract

Pursuant to the Rail Safety Improvement Act of 2008, FRA is issuing 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.

Full Text

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<title>Federal Register, Volume 87 Issue 113 (Monday, June 13, 2022)</title>
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[Federal Register Volume 87, Number 113 (Monday, June 13, 2022)]
[Rules and Regulations]
[Pages 35660-35675]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12614]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 270 and 271

[Docket No. FRA-2015-0122, Notice No. 2]
RIN 2130-AC54

Fatigue Risk Management Programs for Certain Passenger and
Freight Railroads

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

ACTION: Final rule.

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SUMMARY: Pursuant to the Rail Safety Improvement Act of 2008, FRA is
issuing 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: This final rule is effective July 13, 2022.

FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director,
Audit Management Division, at 202-493-6224 or <a href="/cdn-cgi/l/email-protection#7c11150e151d1152171013190c0c19103c181308521b130a"><span class="__cf_email__" data-cfemail="0865617a616965266364676d78786d64486c677c266f677e">[email&#160;protected]</span></a>;
Amanda K. Emo, Ph.D., Engineering Psychologist, at 202-281-0695 or
<a href="/cdn-cgi/l/email-protection#27464a4649434609424a486743485309404851"><span class="__cf_email__" data-cfemail="e48589858a8085ca81898ba4808b90ca838b92">[email&#160;protected]</span></a>; or Colleen A. Brennan, Deputy Assistant Chief
Counsel, at 202-493-6028 or <a href="/cdn-cgi/l/email-protection#f4979b989891919ada9686919a9a959ab4909b80da939b82"><span class="__cf_email__" data-cfemail="ef8c8083838a8a81c18d9d8a81818e81af8b809bc1888099">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Introduction and Executive Summary
A. Purpose of Rulemaking
B. Summary of Benefits and Costs
II. Response to Public Comments
A. Comments Pertaining to Particular Fatigue Management
Strategies
B. Comments Pertaining to Employee Involvement
C. Comments Pertaining to the Regulatory Timeline
D. Comments Pertaining to the Contents of FRMP plans
E. Other Comments
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272
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

I. Introduction and Executive Summary

A. Purpose of Rulemaking

This rule is part of FRA's efforts to improve rail safety
continually and to

[[Page 35661]]

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 the development and implementation of safety risk
reduction programs to improve the operational safety of: 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. FRA
addressed Section 20156's general ``risk reduction'' mandate in two
rules: its Risk Reduction Program (RRP) rulemaking (for Class I and ISP
railroads) and in its System Safety Program (SSP) rulemaking (for
commuter and intercity passenger railroad carriers). Section 20156
further requires a railroad's safety risk reduction program to include
a ``fatigue management plan'' meeting certain requirements. This rule
fulfills the 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) as
part of their RRPs or SSPs.\2\ A railroad implements its FRMP through
an FRMP plan.
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\1\ Section 103, Public Law 110-432, Division A, 122 Stat. 4848
et seq.
\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 the 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), 85 FR 12826 (Mar. 4,
2020) and 85 FR 9262 (Feb. 18, 2020)), elsewhere throughout this
proposed rule, FRA uses the terms ``fatigue risk management
program'' (FRMP) and ``FRMP plan.'' Notably, the RSAC recommended
FRA use the term ``fatigue risk management program'' in its
regulations (as opposed to the term ``fatigue management plan'' used
in Section 20156), because it concluded that the term was broader
and more appropriately encompassed the intent of the statutory
mandate--i.e., to manage both the causes of and the risks related to
fatigue).
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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\ Covered railroads are required to prepare a written FRMP plan
and submit it to FRA for review and approval. Section 20156 requires
covered railroads to consider the need to include in their plans
elements addressing several factors that may influence employee
fatigue, including scheduling practices and an employee's consecutive
hours off-duty.\4\ A railroad's written FRMP plan becomes part of its
existing safety RRP or SSP plan. A railroad is also 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 is also subject to assessments by
FRA.
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\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.
\4\ Section 20156 requires railroads to consider including the
following elements in their plans: (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. 49 U.S.C. 20156(f)(3).
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The statutory mandate also requires a railroad to ``consult with,
employ good faith, and use its best efforts'' to reach agreement with
directly affected employees, including nonprofit employee labor
organizations of such employees, on the contents of the plan.\5\ FRA is
aware that consultation on some RRP plans has not met the spirit of
this statutory requirement. The intent of consultation is to engage
with directly affected employees at all stages of plan development and
program implementation. Ideally, railroads will look to their directly
affected employees as partners throughout the process rather than as
reviewers of a finished product. FRA expects consultation on FRMP plans
will genuinely involve good faith and best efforts. FRA will separately
provide further guidance on its expectations of the consultation
process. In addition, the statute also provides that if a railroad and
its directly affected employees, including labor organizations, are
unable to reach consensus on a plan, the employees and labor
organizations may file a statement explaining their views on the plan,
and FRA shall consider those views during its review and approval of
the plan.\6\ FRA also notes that, as discussed in detail in the NPRM,
the task forces of the Fatigue Working Group of the Railroad Safety
Advisory Committee (RSAC), which included all industry stakeholders,
extensively discussed methods of mitigation for the specific issues
listed in the statute and developed documents that could be used in
consultation discussions during the development of the FRMP plan. Those
documents are included in the docket for this rulemaking.
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\5\ 49 U.S.C. 20156(g).
\6\ 49 U.S.C. 20156(g)(2).
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For a more detailed discussion of the statutory and scientific
foundation for this rulemaking, the process for identifying fatigue
risks and developing the FRMP plan, and the regulatory process,
including the RSAC working group, please see the Notice of Proposed
Rulemaking.\7\
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\7\ 85 FR 83484 (Dec 22, 2020), available at <a href="https://www.federalregister.gov/documents/2020/12/22/2020-27085/fatigue-risk-management-programs-for-certain-passenger-and-freight-railroads">https://www.federalregister.gov/documents/2020/12/22/2020-27085/fatigue-risk-management-programs-for-certain-passenger-and-freight-railroads</a>.
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FRA recognizes that fatigue of railroad employees is a longstanding
concern and challenge in the railroad industry. Accordingly, this rule
is just one of several ongoing FRA efforts designed to address the
adverse impacts and underlying causes of fatigue in the railroad
industry. For example, FRA enforces the Federal Hours of Service (HOS)
law under 49 U.S.C. chapter 211. These statutory requirements include
maximum time on duty, minimum periods of uninterrupted rest, and
cumulative limitations for train employees on consecutive on-duty days
and hours in a calendar month. FRA takes seriously all violations of
the HOS and closely monitors railroad compliance with statutory
requirements, taking enforcement action under the statute as
appropriate. FRA also recently conducted a survey of locomotive
engineers and conductors to gain in-depth understanding of the factors
that contribute to fatigue and the resulting impacts on safety. Survey
questions

[[Page 35662]]

addressed potential contributing factors to fatigue, such as work
schedules, commute times, and work/life balance. FRA will use the
survey results to identify research needs related to fatigue. The
survey's descriptive data will also help FRA facilitate mutually
beneficial solutions between railroad workers and management. Further,
FRA investigates rail accidents and injuries to determine root causes
and make recommendations to prevent further occurrences. For accidents
suspected of being human-factor caused, FRA routinely performs fatigue
analyses using tools such as the Fatigue Audit InterDyne (FAID)
program. The FAID program is an analytical tool, used to identify,
quantify and predict the likelihood of fatigue exposure associated with
different work hours. In addition to this type of scientific analysis
in the conduct of FRA's accident and incident investigations, as
appropriate, FRA has revised its accident and incident investigation
procedures to collect and analyze information related to the involved
railroads' attendance policies and train lineup procedures as
appropriate.

B. Summary of Benefits and Costs

FRA estimated the benefits and costs of this rule using discount
rates of 3 and 7 percent over a ten-year time horizon. FRA presents
monetized benefits and costs where possible and discusses those non-
quantifiable elements qualitatively where data is lacking. Details on
the estimated benefits and costs 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 the total
benefits and costs 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 (i.e., covered
railroads). FRA was unable to quantify benefits or costs for passenger
railroads and discusses the implementation of the regulation
qualitatively within the Regulatory Evaluation.
FRA also estimated the total costs over 10 years to develop and
monitor FRMP plans for the covered railroads. The 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 benefits and costs associated
with the rule.

Table I.B--10-Year Benefits and Costs--Training Only Mitigation
[2018 Dollars, in millions]
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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).
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II. Response to Public Comments

FRA received 15 comments on the proposed rule, including comments
from organizations representing railroad labor and management, experts
in fatigue science, and other individual commenters.

A. Comments Pertaining to Particular Fatigue Management Strategies

Many commenters offered specific strategies for compliance with the
rule that they believed should be required components of an FRMP,
including medical recommendations, alterations to current scheduling
practices, topics upon which to train, and many other possible fatigue
mitigations. These comments are valuable and demonstrate the breadth of
potential ways for railroads to comply. However, mandating any one of
these strategies as a requirement of the final rule would contradict
RSIA's directive that FRMPs be individually tailored to a railroad's
unique operating circumstances and may not effectively reduce the
fatigue of the railroad's employees or reduce the probability of
fatigue-related accidents and incidents. Therefore, FRA declines to
adopt the suggested strategies as a requirement of the final rule.
The RSIA, in 49 U.S.C. 20156, requires a railroad, who must develop
an FRMP, to tailor its program to its unique operating characteristics.
Indeed, the railroad must take into account the varying circumstances
of operations by the railroad on different parts of its system and
prescribe the appropriate fatigue countermeasures to address its
varying circumstances.\8\ Accordingly, 49 U.S.C. 20156 does not require
a railroad's FRMP to adopt any particular strategy or fatigue
mitigation, but rather requires railroads to consider whether to
include a variety of elements, as noted above. Ultimately railroads
must design and implement their FRMPs to effectively reduce the fatigue
experienced by their employees and to reduce the probability of
fatigue-related accidents and incidents.\9\
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\8\ 49 U.S.C. 20156(f)(2).
\9\ See 49 U.S.C. 20156(f)(3) (specifying elements railroads
must consider the need to address in an FRMP).
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Dr. Thomas Raslear and the Institutes for Behavior Resources (IBR)
both commented that biomathematical models of fatigue and human
performance are essential to monitor and manage fatigue and risk from
fatigue, as a part of building an FRMP. While such models provide
valuable information regarding fatigue caused by employees' work
schedules, and the effectiveness of any work schedule mitigations
intended to reduce fatigue, they are not so vital to fatigue management
that a railroad could not create an effective FRMP without using them.
Indeed, biomathematical models of fatigue and human performance are
valuable tools for quantifying fatigue to create a regulatory
threshold, as in the regulatory structure of the hours of service
regulations for passenger train

[[Page 35663]]

employees, 49 CFR part 228 subpart F. However, fatigue risk analysis
does not require such a threshold to be effective. While some railroads
may find it valuable to model schedules, other railroads may not
identify fatigue risks that can be quantified by analysis of their
employees' work schedules. In addition, many railroad operations are
unscheduled, and therefore are impossible to model prospectively.
Ultimately, these recommendations to require the analysis of fatigue
using biomathematical models are requirements that FRA declines to
adopt. Similarly, FRA declines to require biomathematical modeling as a
universal evaluation process; while FRA believes that biomathematical
models of fatigue and human performance provide valuable quantitative
methods of evaluating the success of an FRMP, they are not useful for
all situations.
IBR also expresses concern that railroads will not keep sufficient
records to allow for effective enforcement of the rule, because there
is not a specific recordkeeping requirement. However, it would be
impossible for FRA to pre-emptively list what records would be
necessary to prove that each railroad is in compliance with its
particular plan. Railroads have a statutory obligation to create and
implement FRMPs, and it is in the railroads' interests to keep the
records necessary for FRA to ascertain whether a railroad is complying
with its FRMP plan, even without a specific requirement that they keep
any particular records.
NTSB was supportive of the NPRM, but suggested FRA should require
railroads to employ personnel trained to make fatigue determinations,
especially since not all railroads will use biomathematical models to
make those determinations, and that FRA should require railroads to
collect and evaluate all employee medical information necessary to make
an assessment for medical conditions or medications that cause fatigue.
Railroads are required to develop and implement an FRMP tailored to
their particular circumstances, and FRA will not require specific
personnel decisions or the gathering or evaluation of particular
information that may not be appropriate for every situation. In
addition, FRA could provide assistance to railroads that need help with
modeling schedules, such as short line railroads.
The Brotherhood of Locomotive Engineers and Trainmen (BLET) and the
Transportation Division of the International Association of Sheet
Metal, Air, Rail, and Transportation Workers (SMART-TD) and individual
commenters also discuss railroad scheduling practices; these scheduling
practices may be addressed in a railroad's FRMP plan, but it is
contrary to the structure and aim of this rulemaking to mandate any
particular scheduling practice.
Similarly, it is outside the scope of the rule to prohibit, as BLET
and SMART suggest, inward-facing cameras that may be a hindrance to
employees who wish to nap while on duty, even if railroad policies
permit it. In addition, policies that would permit napping in certain
circumstances are a strategy a railroad could, in consultation with its
employees, choose to implement to mitigate fatigue, but FRA does not
require or prohibit such policies.

B. Comments Pertaining to Employee Involvement

BLET and SMART-TD filed a joint comment discussing the employee
consultation portion of the statutory mandate and the present
rulemaking. Several individual commenters also discussed the
consultation requirement. This consultation is mandated by Congress in
the RSIA (49 U.S.C. 20156(g)). BLET and SMART-TD raise the issue of
collective bargaining agreements, asserting that, from their experience
in the collective bargaining arena, railroads are not willing to
negotiate on attendance policies or other fatigue-related matters.
However, as FRA has stated in the past, interpreting existing
collective bargaining agreements, and engaging in their negotiation, is
outside of the agency's power. Collective bargaining is an activity
separate and apart from the consultation requirements of 49 U.S.C.
20156(g) (``Consensus''). The statutory mandate requires a railroad to
``consult with, employ good faith, and use its best efforts'' to reach
agreement with directly affected employees, including nonprofit
employee labor organizations of such employees, on the contents of the
plan; the SSP and RRP regulations require approved plans to have a
process for consultation for subsequent amendments, including the
amendment of those plans to add the FRMP plan. Because compliance with
crafting and implementing an FRMP entails periodic review and
reassessment of the contents of the plan, the consultation obligation
applies to implementation of the plans as well. This consultation
obligation is not a part of collective bargaining agreements and exists
outside of that structure. Non-profit employee labor organizations are
entitled by statute to provide input into the FRMP plan, and they also
have a right to submit a statement to FRA when FRA considers the first
plan and subsequent plan amendments.
BLET and SMART-TD ask if the rule permits them to file comments on
updated plans with changes the railroad indicates to be non-
substantive, where FRA approval is not required. FRA welcomes comment
whenever there is an issue of railroad safety. An employee, group of
employees, or union organization, etc., is free to comment on an FRMP
update submission that they contend is, in fact, substantive, and such
a filing could cause FRA to determine that substantive changes exist
and the amended FRMP plan is subject to FRA review and approval.

C. Comments Pertaining to the Regulatory Timeline

Several commenters expressed concern with railroads' ability to
comply with the time prescribed for both developing and implementing
FRMP plans and programs. Some comments exhibited confusion about when
elements of the regulation become effective. In the proposed rule, FRA
prescribed that FRMP plans would be required to be submitted for review
and approval no later than either six months after the effective date
of the final rule, or the applicable timeline for filing of the
railroad's SSP plan or RRP plan. Many commenters, including the
Association of American Railroads (AAR) and the American Short Line
Regional Railroad Association (ASLRRA) in their joint comment, and the
American Public Transportation Association (APTA), commented that six
months was an insufficient amount of time to prepare FRMP plans.
AAR and ASLRRA assert that six months from the effective date of
the rule is insufficient time to comply, estimating that it will take
thousands of hours for railroads to formulate their fatigue risk
management plans. However, these estimates lacked detail indicating how
they were derived or an evidentiary basis for their adoption. AAR and
ASLRRA note how much effort railroads have already exerted to manage
risk from fatigue; FRA accounts for that effort in arriving at its
estimate of how long it will take railroads to create compliant FRMP
plans. The estimate of costs is the marginal cost imposed by the
existence of the rule. Because many railroads are already working to
address risk from fatigue, it will not take long to formalize those
efforts into a discrete plan. The commenters' extreme estimates of time
required to create FRMP plans are not consistent with FRA's
understanding of how FRMP plans fit into the structure of system safety
plans and risk

[[Page 35664]]

reduction plans. FRA delayed promulgation of this rule to complete the
SSP and RRP rulemakings, as the agency views fatigue risk management
plans as a component of system safety plans and risk reduction plans,
rather than an entirely separate effort that might require something
closer to the labor estimated by these commenters. As a routine part of
estimating the benefits and costs of rulemakings, FRA assumes that
entities required to comply with a rule will employ an efficient
method. As an example, APTA notes that its members have taken fatigue
mitigation efforts prior to this rule, including compliance with the
substantive regulations for train employee hours of service in 49 CFR
part 228 subpart F. Passenger railroad operations can use existing
programs and modeling performed for compliance with that prior
regulation as a starting point for development of an FRMP plan, though
compliance with the passenger train employee hours of service
regulation does not cover all employees required to be covered by the
statutory mandate for FRMP plans. Further, the formulation of an FRMP
plan does not require a different plan for each craft of employee
service the plan addresses. While different crafts may have different
norms as to work schedules, fatigue risk analysis is predicated on
fatigue having the same base biological effects on employees,
regardless of what form their work takes, such that the planning is not
expected to wildly differ between crafts. Instead, FRA anticipates that
many entities will create a master FRMP plan, that includes minor
modifications to account for differences in crafts, to reflect the
specific ways in which those crafts differ. The description of
processes and procedures (i.e., the plan) could be the same across
crafts, but with different hazards and mitigations (i.e., the program).
Railroads subject to this rule are familiar with safety management
systems through their work to comply with the SSP and RRP rules, and
FRA performs outreach to smaller entities to help them comply with the
SSP, RRP, and FRMP rules. Further, with respect to training
mitigations, there is a significant amount of material railroads could
draw from, including FRA resources such as the Railroaders' Guide to
Healthy Sleep.\10\
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\10\ <a href="https://railroadersleep.fra.dot.gov/">https://railroadersleep.fra.dot.gov/</a>. Originally launched
in 2012, the Railroaders' Guide to Healthy Sleep website is a non-
regulatory, educational resource. Designed for railroads and their
support networks, the website provides scientifically valid
information about the importance of sleep, tools to monitor and
self-assess risks for sleep disorders, and practical strategies for
improving sleep health.
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In an effort to reduce regulatory burden and simplify the rule, the
final rule requires that FRMP plans shall be filed within a year of the
effective date of this rule, July 13, 2023. The rule also provides that
railroads, who are not presently required to submit an SSP or RRP but
become required to do so in the future, are required to submit an FRMP
plan as a component of their respective SSP plan or RRP plan in
accordance with the timelines for SSP plans and RRP plans respectively.
Before a railroad is required to begin implementing the FRMP plan, it
must first be reviewed and approved by FRA. The three-year
implementation period does not begin until the date of FRA approval of
the plan, at which point it becomes a component of the applicable SSP
plan or RRP plan, with implementation of the plan required within the
three years prescribed by the rule. FRA has also removed the provisions
in the proposed rule (proposed Sec. Sec. 270.409(e) and 271.609(e),
that would have required the amended SSP plan or RRP plan be
resubmitted after FRA has approved the addition of the FRMP plan; FRA
approval of the FRMP plan amends the respective SSP plan or RRP plan
without the need for an additional filing.
In addition, APTA further commented that FRA's review and approval
timeline is excessive and will add to the costs of the rule and
suggests that a plan be passively approved by FRA if the agency has not
rejected it within 30 days. However, the timelines set in the rule for
FRA approval are consistent with the timelines for system safety and
risk reduction plans, and FRA's experience with reviewing and approving
those plans gives the agency confidence that it can handle the receipt,
review, and approval of compliant FRMP plans with the same efficiency.
The aim of the rule is for FRA, railroads, and labor organizations
to work collaboratively over time to reduce the risk from fatigue in
the rail industry through cycles of plan development, review, approval,
and implementation. For this reason, FRA also is not adopting APTA's
suggestion that only ``substantive'' changes to the FRMP plan need be
submitted to FRA. To determine if railroads are complying with their
FRMP plans, FRA must necessarily have the complete FRMP plans in their
current forms. In the SSP and RRP rules, FRA spoke very clearly
regarding the narrow set of amendments that do not require FRA
approval: ``adding or changing a name, title, address, or telephone
number of a person.'' \11\ All other amendments must follow the
approval process.
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\11\ 49 CFR 270.201(c)(1)(ii). See also 49 CFR 271.303(a)(1).
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D. Comments Pertaining to the Contents of FRMP Plans

In its comment, APTA characterizes FRA's discussion in the NPRM of
signs and symptoms of fatigue as a requirement to monitor these signs
and symptoms on all employees at all times. The rule does not do so.
Rather, FRA explains the work product of the Education and Training
Task Force of the Railroad Safety Advisory Committee to include, as a
basic element of a fatigue training and education, a review of the
signs and symptoms of fatigue as a human biological factor, as
naturally follows from the definition of fatigue.
Dr. Raslear similarly expresses concern that FRA has not been
sufficiently clear as to what constitutes a fatigue-related safety
hazard. However, the lack of specificity is due to the nature of the
individualized fatigue risk analysis each railroad must complete. The
fatigue-related safety hazards will vary from railroad to railroad, as
they are closely related to the specifics of operations. In crafting
this rule, FRA is looking at fatigue holistically, and it would be
contrary to that effort to craft a prescriptive list of fatigue-related
safety hazards. Any list FRA could create would create a false sense of
exclusivity, while likely missing hazards and becoming outdated as
railroad practices change. Railroads might then only look at the
elements on the list, regardless of the actual fatigue-related safety
hazards in their operations. By not imposing this degree of
specificity, each railroad will be able to address the fatigue hazards
in its operations in a way that will give the railroad the flexibility
to meaningfully reduce the most critical fatigue risks in its
operations.
APTA also interprets FRA's definition of fatigue ``as primarily
related to mental fatigue as opposed to physical fatigue.'' This is not
the case, as the definition specifically includes physical factors and
encompasses fatigue generally, without differentiating between
``mental'' and ``physical'' fatigue.
APTA also asserts that the FRA estimates of the costs of creating
and maintaining FRMP plans does not include the cost of establishing a
fatigue committee or consultation with employees. However, there is not
a requirement for a standing committee for this rule; the rule is
intended to fit

[[Page 35665]]

within the structure created by the SSP and RRP rulemakings, so as to
minimize compliance costs.
BLET and SMART-TD express concern over the quality of training
provided under FRMP plans. BLET and SMART-TD are concerned that
lackluster training will impede the ability of FRMPs to achieve
results. FRA notes that training and education can (and is expected to)
vary among railroads and even within railroads, between different
crafts, based on differences in operations. These variations will allow
each railroad to create training and education information that is
targeted to its employees, or a specific subset of employees, and
deploy that information in a manner that is best received by the target
audience. FRA will review and approve plans based on their merit and
will audit programs to ensure efficacy. Different forms of education
may be more or less effective in different situations. A pamphlet may
be an invaluable quick reference in certain situations, just as an all-
day, in-person, classroom training session may or may not communicate
useful information. FRA also notes that the type of training is
expected to be tailored to the nature of the railroads creating the
FRMP plans (e.g., the size of the railroad; the nature and scope of its
operations; the nature and extent of fatigue risks; etc.) and
consequently result in different plans and different training.

E. Other Comments

AAR and ASLRRA assert that FRMP plans should not consider
contractors, arguing that to do so would go beyond Congressional
intent. However, the statute makes clear that contractors should be
included. In defining the set of employees included within FRMP plans,
Congress first points to chapter 211 of United States Code Title 49.
That chapter, defining the statutory requirements for hours of service
of some ``employees,'' explicitly includes contractors. Further, in the
RSIA, Congress amended the definition of a signal employee in that
chapter to ensure that contractors were included. To allow railroads to
exclude such employees from their FRMPs would defy explicit
Congressional action. Consequently, under the ``whole statute'' canon
of interpretation,\12\ the RSIA requirement for FRMPs must be construed
to be harmonious with this concurrent legislative change to the hours
of service laws. It would make little sense for Congress to address the
fatigue experienced by employees of contractors and subcontractors, by
including such contractors within the hours of service laws, and yet
simultaneously exclude employees of contractors and subcontractors from
the mandate to create railroad fatigue risk management plans.
Accordingly, FRA concludes that the statute requires contractors and
subcontractors to be included within the scope of a railroad's FRMP.
---------------------------------------------------------------------------

\12\ Sutherland Statutory Construction section 46:5.
---------------------------------------------------------------------------

APTA requests that the information protections that were a key
element of SSP plans and RRP plans also apply to FRMP plans. Because
the data protections are already in force for SSP plans and RRP plans,
and because FRMP plans are a Congressionally-mandated element of those
plans, the data protections applicable to those two rules are already
in force upon the effective date of this rule for the purpose of
development and implementation of FRMP plans.
Several commenters discuss the rule in relation to crew size.
However, those comments are outside the scope of this rulemaking and
are not discussed here.
Several commenters suggested diagnostic methods for determining if
affected employees have fatigue disorders that may require mitigation.
While those comments may be useful to railroads who create the plans,
this rule does not require the use of any particular diagnostic
methods.
One commenter requests that FRA regulate the electrical sockets of
lodging facilities for affected employees, so that employees are
guaranteed to be able to power medical equipment necessary for some
sleep disorders. FRA lacks the authority to regulate lodging
facilities, except where the railroad is directly operating the
lodging. However, these issues may be addressed with the railroad
during the consultation process for the FRMP plan, and, if the plan
includes a dispute resolution process for lodging issues \13\ employees
could utilize that process if issues arise that prevent an employee
getting sufficient rest.
---------------------------------------------------------------------------

\13\ For more discussion, see Section III of the NPRM, 85 FR
83484 at 83487.
---------------------------------------------------------------------------

One commenter notes that studies from the trucking industry may be
a helpful resource. While, as FRA noted above, fatigue risk analysis is
predicated on fatigue having the same base biological effects on
employees, FRA also notes that the hours of service regime for the
trucking industry is very different than that of the railroad industry.
An individual commenter explains his experience with work policies
requiring employees to work 27 of 30 days per month. The Congressional
mandate for FRMP plans dictates that covered railroads ``consider the
need to'' address employee scheduling practices.\14\ Accordingly, FRA
would expect that a railroad with a scheduling practice requiring
employees to work with only three days off per month would address that
practice in its FRMP and indicate how the railroad is addressing the
fatigue risks identified with such a schedule.
---------------------------------------------------------------------------

\14\ 49 U.S.C. 20156(f)(3)(D).
---------------------------------------------------------------------------

The American Academy of Sleep Medicine draws attention to its
conclusion that work shifts poorly aligned to circadian rhythms of
employees pose potential fatigue risks. Such potential risks are among
the factors a railroad may likely need to consider when considering
scheduling in general as part of FRMP development and implementation.
BLET and SMART-TD request an amendment to the rule to require
reconsideration of a railroad's FRMP plan and its implementation, after
any fatigue-related accident or injury. While a particular accident or
incident may be cause for FRA to review a plan and its implementation,
reviewing the plan after each accident or incident runs the risk of
undermining the wider hazard analysis. Reviewing the FRMP plan after
every accident or incident would be a piece-meal analysis, and it would
move away from the comprehensive systems approach to improving safety
at the heart of this rule. However, when investigating any fatigue-
related accident, FRA will consider the railroad's compliance with its
FRMP. Additionally, FRA always has the right to reopen and reconsider
its approval of an FRMP, as it does any other FRA approvals, in light
of information related to rail safety not previously considered.
Several commenters discussed ``precision scheduled railroading.''
FRA understands that many in the railroad industry use this term for
varied and different scheduling practices. Such practices may be
addressed in railroads' FRMP plans, subject to the process for such
plans, which includes both employee consultation and FRA review and
approval. FRA's understanding of precision scheduled railroading is
that railroads claim it optimizes railroad operations for scheduled
movement of trains. Such a system must include limitations such as the
hours of service laws, but it could create fatigue-related safety
hazards, and railroads are required to consider their scheduling
practices as part of the creation of FRMP plans.

[[Page 35666]]

Dr. Raslear suggests that, as a part of FRA enforcement of the
rule, the agency should periodically analyze a sample of railroad
schedules using a biomathematical model of fatigue and human
performance, to quantify the status of fatigue in the railroad
industry, and accordingly, require railroads to provide FRA with
schedules to perform such analysis. The statute and this regulation
permit FRA to analyze railroad schedules using a biomathematical model,
and FRA will conduct such analyses as appropriate.
The statute requires FRA to annually review compliance with FRMP
plans. To this end, FRA requires railroads to annually make an internal
assessment of the FRMP, and FRA reviews these assessments. In addition,
FRA possesses authority to audit programs for compliance in connection
with its enforcement authority. As a part of its oversight, FRA may run
railroad schedules through a biomathematical model of fatigue and
performance. Moreover, FRA declines to limit the scope of evaluation to
a particular moment in time. Rather, FRA expects railroads to look at
trends as a part of the required periodic safety assessments.

III. Section-by-Section Analysis

FRA amends 49 CFR part 270 (SSP) by adding a new subpart E, and 49
CFR part 271 (RRP) by adding new subpart G. Each of these new subparts
are titled ``Fatigue Risk Management Programs;'' are substantively
identical; and set forth the requirements for railroads to develop and
implement FRMPs as part of their SSPs or RRPs. FRA also amends: 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. FRA received no comments on its proposed revisions to Sec. Sec.
270.103, 270.101, and 271.201, and is therefore adopting these
revisions as proposed.
The new subparts 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 rule also requires covered railroads to
review their FRMP annually, and if necessary, make FRA-approved updates
to their plans after consultation with affected employees. FRA is
promulgating this rule in its effort to improve rail safety continually
and to satisfy the statutory mandate in 49 U.S.C. 20156.

Sections 270.401 and 271.601--Definitions

Sections 270.401 and 271.601 contain definitions for terms used in
this rule. The sections include definitions for the terms: contributing
factor, fatigue, fatigue-risk analysis, FRMP, FRMP plan, and safety-
related railroad employee. The definitions are intended to clarify the
meaning of important terms used in this rule and to minimize potential
misinterpretation of the regulations. FRA received comments only on the
definition of fatigue, as discussed in Section II, Response to
Comments, above. FRA has not revised any of its proposed definitions in
response to comments and is adopting the definitions as proposed.

Sections 270.403 and 271.603--Purpose and Scope of an FRMP

Sections 270.403 and 271.603 explain the purpose and scope of the
rule. FRA received no comments on this section, and adopts it as
proposed.

Sections 270.405 and 271.605--General Requirements; Procedure

These sections set forth the rule's general requirements. FRA
received no comments related to these sections, and therefore adopts
paragraphs (a) and (b) as proposed, and revises paragraphs (c) and (d)
as described below.
Paragraphs (c) of these sections require railroads to submit their
FRMP plans to FRA for approval either within one year of effective date
of a final rule in this proceeding or within the applicable existing
timelines in parts 270 and 271 for filing SSP or RRP plans, whichever
is later. 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. As discussed above, FRA revised this
timeline in response to comments suggesting railroads needed additional
time.
Paragraph (d) requires 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. Unlike the proposed rule, which included a separate requirement
to resubmit the SSP plan or RRP plan, including the FRMP plan as a
component, the final rule construes the filing and approval of an FRMP
plan to be a process by which the applicable SSP plan or RRP plan is
amended to incorporate the FRMP plan as a component. This eliminates
the need for railroads, having received FRA approval for the FRMP plan,
to then submit their SSP plan or RRP plan for FRA to review the
incorporation of the FRMP plan. Instead, the SSP plan or RRP plan is
amended to include the FRMP plan upon FRA approval of the FRMP plan.

Sections 270.407 and 271.607--Requirements for an FRMP

Sections 270.407 and 271.607 set forth the requirements for
railroads' FRMPs. FRA received comments on the requirements for an
FRMP, as discussed in the Response to Comments in Section II above, but
has not revised the text of these sections based on those comments, and
adopts these sections as proposed.

Sections 270.409 and 271.609--Requirements for an FRMP Plan

Sections 270.409 and 271.609 require a railroad to adopt and
implement its FRMP through an FRMP plan that meets certain
requirements. FRA received comments on various aspects of the FRMP
plan, as discussed in the Response to Comments in Section II above. FRA
has not revised the text of paragraphs (a) through (d) of Sec. Sec.
270.409 and 271.609, and therefore adopts them as proposed.
Paragraph (e) of Sec. Sec. 270.409 and 271.609, as proposed, would
have required that a railroad submit its FRMP plan to FRA by amending
its SSP plan or RRP plan. However, FRA approval of an FRMP plan amends
the railroads' SSP plan or RRP plan to incorporate the FRMP plan as a
component. FRA has therefore eliminated the duplicative requirement on
railroads to submit the SSP plan or RRP plan amended solely to include
the FRA-approved FRMP plan. Accordingly, proposed paragraph (e) has
been removed.

IV. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This rule is a non-significant regulatory action within the meaning
of Executive Order 12866 (E.O. 12866) and DOT Order 2100.6A Rulemaking
and Guidance Procedures.
FRA has prepared and placed a Regulatory Evaluation addressing the
economic impact of this rule in the docket (Docket No. FRA-2015-0122).
The Regulatory Evaluation contains estimates of the benefits and costs
of this rule that are likely to be incurred over a ten-year period. FRA
estimated the benefits and costs of this rule using discount rates of 3
and 7 percent. FRA was unable to quantify the benefits and

[[Page 35667]]

costs for all the elements within the regulation for both passenger and
freight railroads. FRA presents monetized benefits and costs 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
rule is part of FRA's efforts to improve rail safety continually and to
satisfy the statutory mandate in the RSIA.
The Regulatory Evaluation analyzes two mitigation strategies to
quantify potential benefits and costs that railroads may achieve
through the regulation: (1) training and (2) screening for sleep
conditions. However, there is a high amount of uncertainty in FRA's
benefit and cost estimates because the RSIA and this regulation gives
railroads the flexibility to select the mitigation strategies most
appropriate for their operations and identified risks.
The benefits and costs \15\ associated with the rule are presented
in Table VII-1 below:
---------------------------------------------------------------------------

\15\ Unless otherwise noted, benefits and costs are presented in
2018 dollars.

Table VII-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).
----------------------------------------------------------------------------------------------------------------

In comparison to the NPRM, the final rule provides the railroads
additional time to submit FRMP plans to FRA. A railroad's plan
submission may still occur in the same year as before the time
extension, but pushed out later in the same year, or it may occur in
the following year during the ten-year period of analysis. The costs
will decrease slightly because of this flexibility, but the overall
cost estimate remains primarily the same as in the NPRM. The final rule
also clarifies that a railroad's approved SSP plan or RRP plan does not
need to be resubmitted to FRA when amended with the FRA-approved FRMP
plan. The NPRM regulatory analysis assumed only one submission and
therefore is unchanged.
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 benefits and costs for each
element within the regulation. Given current railroad business and
operational practices, this analysis demonstrates the fatigue training
element, is an element that all railroads will most likely implement.
FRA also believes the napping mitigation presented within the
Regulatory Evaluation's alternative analysis would be cost beneficial
in certain instances. In an effort to not overestimate the benefits
associated with the regulation, FRA does not present the findings
regarding napping in the main analysis of the Regulatory Evaluation.
FRA believes that there could be significant reduction in fatigue with
the implementation of a napping mitigation, based on various supporting
studies, and the fact that Class I railroads under the General Code of
Operating Rules (GCOR) already have policies supporting napping.
FRA requested comments on the methods and inputs used in the
Regulatory Evaluation. While comments relevant to the economic analysis
are discussed briefly here, please see Section II of the preamble,
above, for a fuller discussion of the comments received. Many
commenters said the cost of mitigations for compliance with the rule
would be high. As rational actors, railroads are expected to choose
mitigations most appropriate for their operations and employees. FRA
reiterates that railroads are not required to implement any particular
mitigation, except training as a prerequisite requirement. The
railroads also asserted in their comments that developing FRMP plans is
more burdensome than FRA's estimate. Similar to choosing mitigations,
FRA assumes railroads will use efficient means to comply with the
regulation. For example, existing work done by the railroads can count
toward mitigations in a railroad's FRMP. FRA further suggests that
railroads may formulate a master FRMP plan that includes minor
modifications to account for variations in different crafts of
employees. With regard to administrative costs, APTA was concerned
about the time that FRA's review might take, adding to costs, and
suggested FRA passively approve plans not approved in a timely manner.
FRA notes the timelines in this final rule follow the timelines in the
SSP and RRP rules. Overall, the aim is for a process of continuous
improvement in safety. The labor organizations also commented that
Congress does not perform benefit-cost analysis and to not let
unquantifiable benefits undermine the FRMP rulemaking. FRA responds
that it is bound by executive orders and Departmental guidance to
perform benefit-cost analysis. FRA presents its analysis for
stakeholders, and identifies quantitative and qualitative factors,
along with noting where information is uncertain or unavailable, for
transparency.

B. Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (RFA) of 1980 allows the Secretary
of Transportation to certify a rule if that rule will not have a
significant

[[Page 35668]]

economic impact on a substantial number of small entities. FRA
published an Initial Regulatory Flexibility Assessment (IRFA) to aid
the public in commenting on the potential small business impacts of the
proposed FRMP NPRM requirements. AAR and ASLRRA jointly submitted
comments to the NPRM. In particular, AAR and ASLRRA said that short
line railroads may lack resources for fatigue plans, and to manage
contractor groups. With regard to resources, FRA has granted additional
time for all railroads to submit plans to FRA. Also, smaller railroads
are likely to have simpler operations than Class I railroads, and
therefore their plans will likely be less complex. That is, smaller
railroads' operations involve less equipment and fewer employees. In
addition, FRA provides outreach and assistance for small railroads.
Regarding contractors, FRA has included contractors in FRMP plans, as
it would be illogical for Congress to include them in hours of service
laws, but not in fatigue planning. Please refer to the preamble comment
discussion, in Section II, above, for a more detailed discussion of
these comments.
This rule requires an ISP railroad to develop and implement an FRMP
under an RRP plan that FRA has reviewed and approved. (This analysis
uses the same cohort of ISP railroads as the RRP final rule.) Since
railroads have the flexibility to adjust their FRMPs to their specific
risks, FRA expects the economic impact on small entities to be
proportional to the number of employees, as well as the mitigation
strategies implemented.
For the purposes of this analysis, the 704 Class III freight
railroads \16\ that operate on the general rail system are considered
small entities and could potentially be impacted by this final
rule.\17\ The final rule estimates that 50 ISP railroads will be
identified over the ten-year period. FRA can identify Class II or Class
III railroads as ISP. If all railroads identified as ISP are Class
IIIs, only 7 percent of the 704 Class III railroads would be affected
by the final rule.
---------------------------------------------------------------------------

\16\ FRA 2020 Form 6180.55 Operational Data includes Railroad
Class and Number of Employees. See <a href="https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/on_the_fly_download.aspx">https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/on_the_fly_download.aspx</a>. In 2020, there
were 744 Class III railroads: 704 freight railroads and 40 Tourist
Railroads. Tourist railroads are not subject to the final rule.
\17\ FRA defines ``small entities'' as entities that meet the
revenue requirements of a Class III railroad as set forth in 49 CFR
1201.1-1, which is 20 million or less in annual revenues as adjusted
for inflation. See 68 FR 24891, May 9, 2003. In addition, note both
the SSP rule and RRP rule exempt railroads not on the general
system. See 49 CFR 270.3(b) and 49 CFR 271.3(b).
---------------------------------------------------------------------------

The ASLRRA reports the average Class III railroad has annual
revenues of 4.75 million and 22 railroad employees. To measure the
economic impact on an individual Class III ISP railroad, FRA compared
the average Class III revenue \18\ to the final rule's cost. FRA used
the requirements of the final rule to estimate the ISP railroad
compliance costs. While ISP railroad program consulting costs are the
same for ISP railroads regardless of size, the costs to develop,
implement, and update ISP railroad plans, and to provide employee
training, vary from low to high depending on whether firms employ below
or above the Class III railroad industry average. The average annual
cost of ISP railroad compliance is provided below in Table 1.
---------------------------------------------------------------------------

\18\ American Short Line and Regional Railroad Association,
Facts and Figures, 12, (2017). (A 2019 edition is available that is
a reprint of the 2017 edition.).

Table 1--ISP Railroad Annualized Cost by Firm Size
----------------------------------------------------------------------------------------------------------------
Total ISP costs per firm discounted at 7% rate
-------------------------------------------------------------------------------
All ISP firms Low High
Year -------------------------------------------------------------------------------
Develop Develop
FRMP plan * training Employee training Employee
program training program training
----------------------------------------------------------------------------------------------------------------
1............................... $11 $3,031 $7,241 $12,124 $14,481
2............................... 634 2,833 6,767 11,331 13,534
3............................... 951 2,647 6,324 10,590 12,648
4............................... 1,178 2,474 5,911 9,897 11,821
5............................... 1,359 2,312 5,524 9,249 11,048
6............................... 1,541 2,161 5,162 8,644 10,325
7............................... 1,722 2,020 4,825 8,079 9,649
8............................... 1,904 1,888 4,509 7,550 9,018
9............................... 2,085 1,764 4,214 7,056 8,428
10.............................. 2,267 1,649 3,938 6,595 7,877
----------------------------------------------------------------------------------------------------------------
Total....................... 13,651 22,779 54,415 91,115 108,829
----------------------------------------------------------------------------------------------------------------
Annualized 7% rate.............. 1,944 3,243 7,747 12,973 15,495
----------------------------------------------------------------------------------------------------------------
Annual Total Cost per Firm.................. Low 12,934 High 30,411
----------------------------------------------------------------------------------------------------------------
Annual Average ISP Cost = 22,000 (average of Low and High).
----------------------------------------------------------------------------------------------------------------
* Includes preliminary meeting and notification to labor organizations, preparation of an FRMP plan, further
consultation, and amendments that might occur.

The Class III (ISP) railroad costs range from 13,000 to 30,000 with
an average cost of 22,000 for all small entities that could be affected
by the final rule. FRA estimates this cost, as a percent of Class III
railroad annual average revenues (4.75 million), to be minimal at 0.46
percent.
Given that Class III railroads' size varies widely, FRA classified
the small entities by the number of employees to further examine small
entity impacts. The purpose is to determine if the ``smaller'' of the
small entities would incur a significant economic impact. Table 2
presents the Class III railroads by number of employees using the 2020

[[Page 35669]]

data submitted by the Class III railroads on the FRA 2020 Form
6180.55.\19\
---------------------------------------------------------------------------

\19\ FRA 2020 Form 6180.55 Operational Data includes Railroad
Class and Number of Employees. See <a href="https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/on_the_fly_download.aspx">https://safetydata.fra.dot.gov/OfficeofSafety/publicsite/on_the_fly_download.aspx</a>.

Table 2--Class III Railroads by Number of Employees
----------------------------------------------------------------------------------------------------------------
Number of Total number Percent total
Number of employees firms Percent firms of employees employees
----------------------------------------------------------------------------------------------------------------
1-8............................................. 385 55 1,325 9
9-22............................................ 144 20 2,004 13
23-100.......................................... 147 21 7,149 46
101-200......................................... 22 3 2,662 17
201-883......................................... 6 1 2,413 16
---------------------------------------------------------------
Total....................................... 704 100 15,553 100
----------------------------------------------------------------------------------------------------------------

According to Table 2, most Class III railroads (55 percent) operate
with fewer than 9 employees and 75 percent have less than 23 employees.
The remaining 25 percent of Class III railroads employ 78 percent of
all Class III employees. To estimate the maximum economic impact of the
rule on the smallest Class III railroads (those with fewer than 9
employees), FRA compares one-third of average annual Class III revenue
(1.58 million) \20\ in Table 1. FRA assumes further that firms that
employ \1/3\ the number of employees as the average firm will have \1/
3\ the average revenues. This approach confirms a minimal loss of 1.9
percent of total revenue required for the smallest Class III railroads
to cover the highest expected ISP costs in the worst case. Separately,
the Regulatory Impact Analysis accompanying this rule estimates its
safety benefits will equal or exceed ISP costs.
---------------------------------------------------------------------------

\20\ One third of Class III average annual revenue of 4.75M
equals 1.58M. The high ISP cost is 30,411 or 1.9 percent of
estimated small Class III revenue (30,411/1.58 million [ap]1.9).
High ISP costs are used out of caution to not underestimate the
impact.
---------------------------------------------------------------------------

Consistent with the findings of FRA's IRFA, and determination that
the economic impact of the rule will not be significant, the FRA
Administrator hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities.

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 rule consistent with the principles and criteria
contained in Executive Order 13132. FRA has determined the rule does
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 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 rule adds 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 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 rule consistent with the principles and
criteria in Executive Order 13132. FRA has determined this 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 final rule are
being submitted for approval to OMB under the Paperwork Reduction Act
of 1995.\21\

[[Page 35670]]

The entire table contains the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
---------------------------------------------------------------------------

\21\ 44 U.S.C. 3501 et seq.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
CFR section Respondent universe Total annual Average time per Total annual burden dollar cost
responses response hours equivalent
(A)................... (B)................... (C) = A * B........... (D) = C * wage
rates \22\
--------------------------------------------------------------------------------------------------------------------------------------------------------
270.409--Fatigue Risk Management 35 passenger railroads. 11.67 plans........... 60 hours.............. 700.20 hours.......... $61,198.88
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 35 passenger railroads. 11.67 reviews......... 16 hours.............. 186.72 hours.......... 14,872.99
Plan assessments/reports conducted
by RRs.
--FRMP plans found deficient by FRA 35 passenger railroads. 1.33 amended plans.... 30 hours.............. 39.90 hours........... 3,178.19
and requiring amendment.
--Consultation requirements--RR 35 passenger railroads. 11.67 consultations (w/ 90 minutes............ 17.51 hours........... 1,394.74
consultation with its directly labor union reps.).
affected employees on FRMP Plan.
271.609--FRMP Plan as part of its 7 Class I railroads.... 2.33 plans............ 90 hours.............. 209.70 hours.......... 18,328.20
RRP--Comprehensive written FRMP
Plan meeting all of this section's
requirements and under Part 271
subpart d.
15 ISP railroads....... 3.33 plans............ 50 hours.............. 166.50 hours.......... 14,552.43
--(c)(3)(ii) Annual internal FRMP 7 Class I +............ 2.33 reviews.......... 22 hours.............. 51.26 hours........... 4,083.06
Plan assessments/reports conducted
by RRs.
15 ISP railroads....... 1.67 reviews.......... 16 hours.............. 26.72 hours........... 2,128.35
--Consultation requirements--RR 7 Class I railroads.... 2.33 consultations (w/ 90 minutes............ 3.50 hours............ 278.79
consultation with its directly labor union reps.).
affected employees on FRMP Plan.
15 ISP railroads....... 5 consultations (w/ 1 hour................ 5 hours............... 398.27
labor union reps.).
--FRMP plans found deficient by FRA 7 Class I railroads.... 0.33 amended plan..... 40 hours.............. 13.20 hours........... 1,051.43
and requiring amendment.
15 ISP railroads....... 1 amended plan........ 20 hours.............. 20 hours.............. 1,593.08
-------------------------------------------------------------------------------------------------------------------
Totals.......................... 35 railroads........... 55 responses.......... N/A................... 1,440 hours........... 123,058
--------------------------------------------------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Ms. Hodan Wells,
Information Collection Clearance Officer, at 202-493-0440.
---------------------------------------------------------------------------

\22\ 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 via email to
Ms. Wells at <a href="/cdn-cgi/l/email-protection#4800272c2926661f2d24243b082c273c662f273e"><span class="__cf_email__" data-cfemail="51193e35303f7f06343d3d2211353e257f363e27">[email&#160;protected]</span></a>.
OMB is required to make a decision concerning the collection of
information requirements contained in this rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. FRA is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required. The current OMB control number for 49 CFR 270 and 271 is
2130-0633.

F. Environmental Assessment

FRA has evaluated this 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 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 establish requirements for
certain railroads to develop and implement an FRMP, as one component of
the

[[Page 35671]]

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 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
regulation and the rule 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) of the
Department of Transportation Act of 1966. 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 \23\ 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
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.
---------------------------------------------------------------------------

\23\ Available at: <a href="https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice">https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice</a>.
---------------------------------------------------------------------------

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 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 rule under Executive Order
13211, and has determined this NPRM is not a ``significant energy
action'' under the Executive Order 13211.

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 Final Rule

For the reasons discussed in the preamble, FRA amends 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. Amend Sec. 270.103 by revising paragraph (a)(1) to read as follows:

Sec. 270.103 System safety program plan.

(a) * * *
(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.
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 an 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

[[Page 35672]]

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 July 13, 2023, whichever is later.
(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. FRA
approval of a railroad's FRMP plan amends a railroad's SSP plan to
include the FRMP plan as a component.

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 shall 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
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).

[[Page 35673]]

(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 an 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).

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;
(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 an FRMP plan.

Subpart G--Fatigue Risk Management Programs

Sec. 271.601 Definitions.

[[Page 35674]]

(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 July 13, 2023, 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). FRA approval of a
railroad's FRMP plan amends a railroad's RRP plan to include the FRMP
plan as a component.

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;
(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

[[Page 35675]]

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 an 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).

Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2022-12614 Filed 6-10-22; 8:45 am]
BILLING CODE 4910-06-P

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