Proposed Rule2023-23916
Transit Worker Hours of Service and Fatigue Risk Management
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 30, 2023
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
The Federal Transit Administration (FTA) is considering proposing minimum safety standards to provide protections for transit workers to obtain adequate rest thereby reducing the risk of fatigue- related safety incidents. FTA seeks public input in two areas: hours of service; and fatigue risk management programs. FTA seeks information to understand better current industry practices, priorities, requirements, and the costs and benefits of Federal requirements. The information received in response to this ANPRM will assist FTA as it considers potential regulatory requirements.
Full Text
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<title>Federal Register, Volume 88 Issue 208 (Monday, October 30, 2023)</title>
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[Federal Register Volume 88, Number 208 (Monday, October 30, 2023)]
[Proposed Rules]
[Pages 74107-74113]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23916]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 675
[Docket No. FTA-2023-0018]
RIN 2132-AB46
Transit Worker Hours of Service and Fatigue Risk Management
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The Federal Transit Administration (FTA) is considering
proposing minimum safety standards to provide protections for transit
workers to obtain adequate rest thereby reducing the risk of fatigue-
related safety incidents. FTA seeks public input in two areas: hours of
service; and fatigue risk management programs. FTA seeks information to
understand better current industry practices, priorities, requirements,
and the costs and benefits of Federal requirements. The information
received in response to this ANPRM will assist FTA as it considers
potential regulatory requirements.
DATES: Comments should be filed by December 29, 2023.
ADDRESSES: You may send comments, identified by docket number FTA-2023-
0018, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for sending comments.
<bullet> Fax: (202) 493-2251.
<bullet> Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
<bullet> Hand Delivery/Courier: Dockets Operations, West Building,
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal
holidays.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
https://
[[Page 74108]]
www.regulations.gov, including any personal information provided. For
detailed instructions on sending comments and additional information on
the rulemaking process, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Background
documents and comments received may also be viewed at the U.S.
Department of Transportation, 1200 New Jersey Ave. SE, Docket
Operations, M-30, West Building, Ground Floor, Room W12-140,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m. EST, Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For program matters, contact Valerie
Beck, Office of Transit Safety and Oversight, FTA, telephone (202) 366-
9178 or <a href="/cdn-cgi/l/email-protection#5f190b1e19362b313a2c2c39302d1b2a2b261f3b302b71383029"><span class="__cf_email__" data-cfemail="9fd9cbded9f6ebf1faececf9f0eddbeaebe6dffbf0ebb1f8f0e9">[email protected]</span></a>. For legal matters, contact Emily
Jessup, Attorney Advisor, 202-366-8907 or <a href="/cdn-cgi/l/email-protection#3e5b5357524710545b4d4d4b4e7e5a514a10595148"><span class="__cf_email__" data-cfemail="d6b3bbbfbaaff8bcb3a5a5a3a696b2b9a2f8b1b9a0">[email protected]</span></a>.
Office hours are from 7:30 a.m. to 4 p.m., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Legal Basis for Rulemaking
II. Background
A. Hours of Service
B. Fatigue Risk Management Programs
III. Comments Sought
A. Regulatory Options
B. Benefits and Costs
C. Fatigue Data Collection
D. Current Hours of Service and Fatigue Risk Management Policies
IV. Regulatory Analyses and Notices
I. Legal Basis for Rulemaking
Congress directed the Federal Transit Administration (FTA) to
establish a comprehensive Public Transportation Safety Program in the
Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141)
(MAP-21), which was reauthorized by the Fixing America's Surface
Transportation Act (Pub. L. 114-94). The Bipartisan Infrastructure Law
(BIL), enacted as the Infrastructure Investment and Jobs Act (Pub. L.
117-58) (IIJA), continues FTA's authority to regulate public
transportation systems that receive Federal financial assistance under
chapter 53 of title 49.\1\ Section 5329(f)(7) of title 49, United
States Code, authorizes FTA to issue rules to carry out the public
transportation safety program.
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\1\ Enacted by the Infrastructure Investment and Jobs Act.
Public Law 117-58 (November 15, 2021).
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Section 5329(b)(2) of title 49, United States Code, directs FTA to
develop and implement a National Public Transportation Safety Plan
(NSP) that includes minimum safety standards to ensure the safe
operation of public transportation systems. In 2017, FTA published its
first iteration of the NSP, which was intended to be FTA's primary tool
for communicating with the transit industry about its safety
performance.\2\ Subsequently, on May 31, 2023, FTA published proposed
revisions to the NSP to address new requirements in the IIJA, to
continue to mature FTA's national safety program and to advance transit
safety further (88 FR 34917). While the NSP currently contains only
voluntary standards, FTA is considering whether to propose mandatory
standards for transit worker hours of service and fatigue risk
management through a new rulemaking.
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\2\ 82 FR 5628 (January 18, 2017).
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II. Background
At present, there are no Federal minimum standards for hours of
service (HOS) and fatigue risk management programs (FRMP) in the
transit industry. HOS regulations reduce excessively long work hours,
while FRMP address other workplace factors impacting fatigue, such as
training and scheduling. Public transit is the only mode of
transportation without such standards for its workers. The National
Transportation Safety Board (NTSB) and FTA's Transit Advisory Committee
for Safety (TRACS), among others, have recommended regulatory action to
address safety concerns associated with transit worker fatigue. NTSB
has found fatigue to be a cause and contributing factor for dozens of
fatal transportation events dating back almost 40 years.
NTSB has repeatedly identified rail transit crashes in which
fatigue played a role. In 2004, two Washington Metropolitan Area
Transit Authority Metrorail trains collided at the Woodley Park
station, resulting in the transport of about 20 people to local
hospitals and causing an estimated $3.45 million in property damage.
NTSB found that the train operator, who had only 8 hours off between
shifts, did not have the opportunity to receive adequate sleep to be
fully alert and to operate safely.\3\ In 2014, a Chicago Transit
Authority train collided with a bumping post at O'Hare Station and went
up an escalator at the end of the track, resulting in 33 injured
passengers, an injured train operator, and $11.1 million in damages.
NTSB found that the train operator had worked 12 consecutive days and
nights and experienced the effects of a cumulative sleep debt, which
contributed to them falling asleep.\4\ In 2021, two Massachusetts Bay
Transportation Authority light rail vehicles collided, resulting in 24
injured passengers, 3 injured crewmembers, and about $2 million in
equipment damage. The train operator told investigators that they
believed they had fallen asleep.\5\
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\3\ See NTSB RAR-06/01 ``Collision Between Two Washington
Metropolitan Area Transit Authority Trains at the Woodley Park-Zoo/
Adams Morgan Station in Washington, DC'' (November 3, 2004),
available at <a href="https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0601.pdf">https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0601.pdf</a> (last visited May 16, 2023).
\4\ See NTSB/RAR-15-01 ``Railroad Accident Report: Chicago Train
Authority Train Collides with Bumping Post and Escalator at O'Hare
Station'' (March 24, 2014), available at <a href="https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf">https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf</a> (last visited
April 5, 2023).
\5\ See NTSB/RIR-22-15 ``Massachusetts Bay Transportation
Authority Trolley Collision with Derailment'' (July 30, 2021),
available at <a href="https://www.ntsb.gov/investigations/AccidentReports/Reports/RIR2215.pdf">https://www.ntsb.gov/investigations/AccidentReports/Reports/RIR2215.pdf</a> (last visited May 16, 2023).
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In addition to NTSB's reports, local investigations have identified
fatigue-related transit crashes. For example, on March 11, 2023, a
Denver Regional Transportation District (RTD) light rail train
derailed, resulting in injuries to two people, the train and RTD track,
and station infrastructure. RTD determined that the train operator
likely fell asleep before impact.\6\ In addition, the Washington
Metrorail Safety Commission has identified at least two recent
incidents in which a train operator appeared to fall asleep while
operating the train.\7\
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\6\ See Corrective Action Plan CAP01-03112023, The Regional
Transportation District (RTD)--Denver (April 25, 2023), available at
<a href="https://s3.documentcloud.org/documents/23789054/042523-cap01-03112023-jeffco-station-derailment.pdf">https://s3.documentcloud.org/documents/23789054/042523-cap01-03112023-jeffco-station-derailment.pdf</a> (last visited May 17, 2023).
\7\ See WMSC Commissioner Brief: W-0128--Red Signal Overrun--
Largo Town Center Station--August 18, 2021 (Dec. 7, 2021), available
at <a href="https://wmsc.gov/wp-content/uploads/2021/12/W-0129-Red-Signal-Overrun-at-Largo-Town-Center-Station-August-18-2021.pdf">https://wmsc.gov/wp-content/uploads/2021/12/W-0129-Red-Signal-Overrun-at-Largo-Town-Center-Station-August-18-2021.pdf</a> (last
visited May 17, 2023); Final Report of Investigation A&I E19328
(June 25, 2019), available at <a href="https://wmsc.gov/wp-content/uploads/2020/02/W-0019-Adoption-of-WMATA-Final-Report_E19326_2019_06_25-Failure-to-service-station-merged.pdf">https://wmsc.gov/wp-content/uploads/2020/02/W-0019-Adoption-of-WMATA-Final-Report_E19326_2019_06_25-Failure-to-service-station-merged.pdf</a> (last visited May 17, 2023).
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FTA's stakeholders have also identified fatigue as an area of
concern. On July 15, 2021, FTA published a Request for Information to
solicit input from the public regarding information and data on transit
safety concerns that FTA should evaluate for potential action.\8\ FTA
received 86 comments from 78 individuals and organizations, including
rail transit agencies, State Safety Oversight Agencies, labor unions,
industry businesses and organizations, and private individuals.
Respondents,
[[Page 74109]]
including 4 transit agencies, offered 21 comments recommending FTA
develop HOS requirements.
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\8\ 86 FR 37400 (July 15, 2021).
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Studies and medical research reports indicate that fatigue can
deleteriously affect transportation worker performance. FTA's 2022
report, Medical Fitness for Duty and Fatigue Risk Management prepared
by the Center for Urban Transportation Research (``CUTR 2022 Report''),
concluded that a fatigued transit worker may be unable to effectively
perform safety-critical tasks, which may lead to ``catastrophic
events.'' \9\ A 2017 National Safety Council report, Fatigue in Safety-
Critical Industries, found that 97 percent of employers in the
transportation industry state that workers feel the impact of fatigue
(the highest among all the safety-critical industries surveyed), that
66 percent reported decreases in productivity due to fatigue, and that
45 percent stated they had experienced safety incidents due to fatigue-
related issues.\10\ In a study of railroad employees, the Federal
Railroad Administration (FRA) found that exposure to fatigue raised the
chance of a human factors accident by 11 to 65 percent.\11\ Two
research studies specifically examine transit bus operator fatigue. The
first study found an increased propensity for collision involvement
with an increase in weekly driving hours.\12\ The second study found
that most bus operators work split schedules, which use shifts that are
broken by a long break, typically two or more hours. The study found
that split schedules are the most fatigue-inducing schedule.\13\ News
reports of fatigue-related transit bus crashes also indicate,
anecdotally, that transit bus operator fatigue is more prevalent than
is captured in NTSB accident reports and State Safety Oversight Agency
incident reports to FTA.\14\ FTA does not collect fatigue data as part
of its National Transit Database (NTD), and there are no Federal
requirements that the influence of fatigue be recorded during safety
incident investigations.
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\9\ See FTA Report No. 0223 ``FTA Standards Development Program:
Medical Fitness for Duty and Fatigue Risk Management'' (June 2022),
available at <a href="https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf">https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf</a> (last visited April 5, 2023).
\10\ See National Safety Council Report ''Fatigue in Safety-
Critical Industries: Impact, Risks & Recommendations'' (2017),
available at: <a href="https://nsccdn.azureedge.net/nsc.org/media/site-media/docs/fatigue/part3-fatigue-survey-report.pdf">https://nsccdn.azureedge.net/nsc.org/media/site-media/docs/fatigue/part3-fatigue-survey-report.pdf</a> (last visited June 22,
2023).
\11\ See Federal Railroad Administration, ``Fatigue Status of
the U.S. Railroad Industry'' (2013), available at <a href="https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/2929/TR_Fatigue%20Status%20US%20Railroad%20Industry_CO%2020121119_20130221_FINAL.pdf">https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/2929/TR_Fatigue%20Status%20US%20Railroad%20Industry_CO%2020121119_20130221_FINAL.pdf</a> (last visited April 21, 2023).
\12\ See Sando, T., Mtoi, E., & Moses, R., ``Potential Causes of
Driver Fatigue: A Study on Transit Bus Operators in Florida,''
Transportation Research Board of the National Academies' 2011 90th
Annual Meeting, paper no. 11-3398, November 2010, available in the
public docket for this rulemaking.
\13\ See Sando, T., Angel, M., Mtoi, E., & Moses, R., ``Analysis
of the Relationship Between Operator Cumulative Driving Hours and
Involvement in Preventable Collisions,'' Transportation Research
Board of the National Academies' 2011 90th Annual Meeting, paper no.
11-4165, November 2010, available in the public docket for this
rulemaking.
\14\ See, e.g., ``New Video released in 2021 Pace bus crash that
killed woman after driver fell asleep at the wheel'' (March 27,
2023), available at <a href="https://www.fox32chicago.com/news/pace-to-pay-13m-settlement-after-bus-driver-fell-asleep-at-wheel-causing-crash-that-killed-68-year-old-woman">https://www.fox32chicago.com/news/pace-to-pay-13m-settlement-after-bus-driver-fell-asleep-at-wheel-causing-crash-that-killed-68-year-old-woman</a> (last visited May 17, 2023); ``Sleepy
SMART bus driver who caused crash gets 93 days in jail'' (May 4,
2015), available at <a href="https://www.clickondetroit.com/news/2015/05/04/sleepy-smart-bus-driver-who-caused-crash-gets-93-days-in-jail/">https://www.clickondetroit.com/news/2015/05/04/sleepy-smart-bus-driver-who-caused-crash-gets-93-days-in-jail/</a> (last
visited May 17, 2023).
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This advance notice of proposed rulemaking (ANPRM) does not make
specific proposals but requests public input in two areas: (1) HOS; and
(2) FRMP. FTA will use information received in response to this ANPRM
to inform FTA's future decision-making on whether and how to pursue
Federal regulatory action in those two areas. This ANPRM is not
requesting input on other topics that may impact a transit worker's
fitness for duty, including medical qualifications and prescription and
over-the-counter drug use, unless they are relevant to HOS or FRMP. FTA
may address those topics independently in the future.
A. Hours of Service
The goal of HOS regulations is to prevent excessively long work
hours to lower the risk of fatigue and fatigue-related safety
incidents. While HOS regulations alone cannot ensure that individuals
receive adequate restorative rest, they can ensure that individuals
have enough time off to obtain adequate rest on a daily and weekly
basis. HOS regulations generally define parameters for active work
time, time on duty, time off duty between shifts, work week hours, and
the maximum number of consecutive workdays.
1. NTSB and TRACS Recommendations
NTSB has four open fatigue-related safety recommendations to FTA
arising from a March 2014 rail collision in which a train collided with
a bumping post and went up an escalator at the O'Hare Station in
Chicago, Illinois.\15\ NTSB determined that the probable cause of the
collision was the failure of the train operator to stop the train due
to falling asleep as a result of fatigue. Safety Recommendation R-15-
019 recommends FTA establish regulations that set HOS limitations,
provide predictable work and rest schedules, and consider circadian
rhythms and sleep and rest requirements. The other three
recommendations are discussed in the Fatigue Risk Management section
below.
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\15\ See NTSB/RAR-15-01 ``Railroad Accident Report: Chicago
Train Authority Train Collides with Bumping Post and Escalator at
O'Hare Station'' (March 24, 2014), available at <a href="https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf">https://www.ntsb.gov/investigations/accidentreports/reports/rar1501.pdf</a>
(last visited April 5, 2023).
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In October 2014, FTA tasked TRACS with developing recommendations
on the elements that should comprise a Safety Management System (SMS)
approach to a fatigue management program. TRACS found that transit
worker fatigue is a serious problem and recommended in 2015 that FTA
develop a Federal regulation mandating minimum HOS requirements as its
first priority.\16\ TRACS issued a report which noted that the
committee ``feels strongly that HOS is a fundamental, initial pillar of
an SMS framework and should be implemented by FTA as soon as
possible.'' In the same report, TRACS recommended that FTA's HOS
regulations apply to employees involved with moving revenue and
maintenance equipment, including bus and rail operators, dispatchers,
conductors, and controllers. TRACS further recommended a maximum of 12
on-duty hours over a maximum duty tour of 14 hours, including any
periods of interim release, with a minimum of 10 consecutive hours off-
duty between shifts, and a maximum number of 6 consecutive working
days.
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\16\ See TRACS Report 14-02, ``Establishing a Fatigue Management
Program for the Bus and Rail Transit Industry'' (July 30, 2015),
available at <a href="https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_">https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_</a>(2).pdf (last visited April 5,
2023).
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TRACS considered whether FTA should identify a maximum number of
on-duty hours over the six consecutive working days. In its report,
TRACS noted that experts from the Volpe National Transportation Systems
Center recommended a limit of 60 on-duty hours over 6 consecutive
working days, which would allow for a 10-hour workday, 9 hours of
sleep, a 2-hour commute, and 5 hours of personal time (e.g., eating,
showering, and family time). TRACS found that some agencies expressed
concern about the need to hire and train new employees to achieve the
staffing levels necessary to operate under the recommended HOS
requirements, which could result in managing large numbers of
inexperienced employees. The TRACS report noted that the committee
considered anecdotal evidence from one
[[Page 74110]]
agency that despite initial resistance from operators to give up
overtime, employees came to cite an overall increase in quality of life
from the agency's adoption of a 60-hour maximum limit. TRACS members
did not reach a consensus on the issue of including a maximum number of
hours over six days and therefore did not make a recommendation in this
regard to FTA.
2. Consensus Standards
Through its bus and rail working groups, the American Public
Transportation Association (APTA) develops voluntary, consensus-based
industry operating and maintenance standards. APTA's consensus HOS
standards for train operators limit maximum operating hours to 12
hours, with a maximum duty day of 16 hours. APTA's consensus standards
suggest that train operators have a minimum off-duty time of 10 hours
and a maximum period of 7 consecutive workdays. APTA's voluntary
standards do not include a maximum number of on-duty hours over the 7
consecutive workdays.\17\
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\17\ See APTA RT-OP-S-015-09 Rev 1, ``Train Operator Hours-of-
Service Requirements'' (June 7, 2019), available at <a href="https://www.apta.com/wp-content/uploads/APTA-RT-OP-S-015-09_Rev_-1-1.pdf">https://www.apta.com/wp-content/uploads/APTA-RT-OP-S-015-09_Rev_-1-1.pdf</a>
(last visited April 5, 2023).
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3. Federal and State Regulations
The Federal Motor Carrier Safety Administration (FMCSA), FRA,
Federal Aviation Administration, and United States Coast Guard
prescribe HOS limitations applicable to their regulated industries, as
summarized in detail in the CUTR 2022 Report.\18\ Of particular
relevance to transit operators, FMCSA prohibits drivers of passenger-
carrying commercial motor vehicles from driving more than 10 hours
following 8 consecutive hours off duty. Such drivers also may not drive
after being on duty for 15 hours following 8 consecutive hours off
duty. FMCSA limits on-duty time to no more than 60 hours over 7
consecutive days for motor carriers that do not operate every day of
the week, and to no more than 70 hours over eight consecutive days for
motor carriers that operate every day of the week.\19\ FMCSA's HOS
requirements do not apply to transit buses operated by any political
subdivision of a State.\20\ Transit buses operated by contractors that
operate under their own USDOT registration, however, may be subject to
FMCSA's requirements if they operate in interstate commerce. FRA
requires that before a train employee engaged in commuter or intercity
rail passenger transportation remains or goes on-duty the employee must
have had at least 8 consecutive hours off duty during the prior 24
hours or at least 10 consecutive hours off duty after working 12
consecutive hours. Those train employees may not spend more than 14
consecutive calendar days on duty, although there are some specific,
additional limitations for train employees who engage in service during
the hours of 8 p.m.-3:59 a.m. (known as ``Type II'' schedules).\21\
Train employees working at least one Type II schedule may not spend
more than 6 consecutive calendar days on duty. FRA HOS regulations for
passenger train crews also require a commuter or intercity passenger
railroad to evaluate Type II schedules using a validated
biomathematical model of human performance and fatigue determine
whether train employees may be at increased risk of fatigue. Railroads
must develop a fatigue risk mitigation plan to reduce the risk of
fatigue in those schedules having an increased risk for fatigue.\22\
Train crews must also receive initial and refresher training on fatigue
awareness and other topics related to understanding and mitigating
fatigue as part of HOS requirements.\23\
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\18\ See FTA Report No. 0223 ``FTA Standards Development
Program: Medical Fitness for Duty and Fatigue Risk Management''
(June 2022), available at <a href="https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf">https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf</a> (last visited April
5, 2023).
\19\ 49 CFR 395.5 (January 3, 2017).
\20\ 49 CFR 390.3T(f)(2) (November 11, 2021).
\21\ 49 CFR 228.405 (January 3, 2017).
\22\ 49 CFR 228.407 (January 3, 2017).
\23\ 49 CFR 228.411 (January 3, 2017).
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In addition to Federal regulations, a number of States have their
own State HOS limitations that apply to bus and rail operators.\24\
FTA's understanding, however, is that State HOS limitations do not
apply to transit workers in most States. Some States and transit
agencies also have policy requirements, not codified in State law, that
include HOS limitations.
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\24\ See FTA Report No. 0223 ``FTA Standards Development
Program: Medical Fitness for Duty and Fatigue Risk Management''
(June 2022), available at <a href="https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf">https://www.transit.dot.gov/sites/fta.dot.gov/files/2022-07/FTA-Report-No-0223.pdf</a> (last visited April
5, 2023).
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B. Fatigue Risk Management Programs
HOS limitations do not account for other factors that contribute to
fatigue, including work schedules; environmental factors, such as
temperature and humidity; circadian rhythms; and the effects of the
type of task being performed, such as the level of monotony or stress.
FRMPs complement HOS requirements by addressing various workplace
factors that contribute to fatigue to reduce the potential for fatigue-
related safety incidents. An effective FRMP implements processes to
measure, manage, and mitigate fatigue risk in a specific operational
setting.
1. NTSB and TRACS Recommendations
As a result of its March 2014 investigation of the Chicago train
collision, NTSB issued three recommendations to FTA relating to fatigue
risk management. Safety Recommendation R-15-018 recommends FTA develop
and implement a work scheduling program for rail transit agencies that
incorporates the management of fatigue risk. Safety Recommendations R-
15-020 and R-15-021 focus on identifying training and certification
necessary for work schedulers and training personnel who are
responsible for developing rail transit employee work schedules.
TRACS made several recommendations to FTA relating to FRMP
requirements in its 2015 report.\25\ TRACS noted that shift scheduling
is an essential part of managing fatigue. TRACS recommended that FTA
require transit agencies to provide the necessary training for their
work schedulers to understand elements of fatigue science, including
circadian rhythms. In addition, TRACS recommended that agencies provide
mandatory fatigue awareness training for all safety-sensitive
personnel, including bus and train operators, conductors, tower
operators, starters, inspectors, yard persons, shift schedulers,
maintenance-of-way employees, signal and electric traction employees,
mechanical department employees, dispatchers, and supervisors, and
consider fatigue as a potential underlying factor in all safety
investigations of incidents and accidents. TRACS also recommended that
FTA require transit agencies to collect and track data on fatigue
performance measures to evaluate the success of their FRMPs.
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\25\ See TRACS Report 14-02, ``Establishing a Fatigue Management
Program for the Bus and Rail Transit Industry'' (July 30, 2015),
available at <a href="https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_">https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/TRACS_Fatigue_Report_14-02_Final_</a>(2).pdf (last visited April 5,
2023).
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2. Consensus Standards
APTA's consensus standards for rail transit system fatigue
management programs establish formal steps to develop and implement an
organization's fatigue management program for operators, controllers,
and any other safety-critical personnel.\26\
[[Page 74111]]
APTA's standards include the establishment of a fatigue management
program steering committee and a fatigue management policy with core
program elements. APTA's standards also provide that agencies must
consider fatigue as a line of inquiry when conducting accident
investigations or developing schedules and that agencies must collect
and assess fatigue-related data.
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\26\ See APTA RT-OP-S-23-17 ``Fatigue Management Program
Requirements'' (April 7, 2017), available at <a href="https://www.apta.com/wp-content/uploads/Standards_Documents/APTA-RT-OP-S-023-17.pdf">https://www.apta.com/wp-content/uploads/Standards_Documents/APTA-RT-OP-S-023-17.pdf</a> (last
visited April 5, 2023).
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3. Federal Regulations
In 2022, FRA promulgated regulations that require railroads that
operate commuter and intercity passenger service to develop and
implement an FRMP.\27\ Pursuant to those regulations, a railroad must
develop, and FRA must approve, an FRMP that contains the goals of the
program; describes processes to conduct a fatigue risk assessment,
identify mitigations, and monitor identified fatigue-related hazards;
and describes how railroads plan to implement an FRMP. At a minimum,
when conducting a risk assessment, a railroad must evaluate the general
health and medical conditions that can affect the fatigue levels,
scheduling issues that can impact quality and quantity of sleep, and
characteristics of each job category of safety-related railroad
employees that can affect fatigue levels.
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\27\ 87 FR 35660 (June 13, 2022), codified at 49 CFR part 270 et
seq.
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III. Comments Sought
FTA seeks comments, information, and data from the public in
response to this ANPRM. We request that commenters address their
comments specifically to the enumerated list of issues below, and
number their comments to correspond to each issue. In the following
questions, FTA uses the term ``transit worker'' to indicate any
employee, contractor, or volunteer working on behalf of a public
transit agency. This includes vehicle operators, dispatchers,
maintenance workers, managerial staff, and all other workers whose
information could aid the development of a future Hours of Service and
Fatigue Risk Management rule. Please indicate which worker groups you
are addressing when commenting.
A. Regulatory Options
1. Generally, why should or should not FTA adopt mandatory Federal
hours of service (HOS) and fatigue risk management programs (FRMP)
requirements for transit workers?
2. What aspects of transit operations should FTA consider if it
develops Federal HOS and FRMP requirements for transit workers? Are
there unique characteristics of transit operations, as compared to
motor carrier and railroad operations, that FTA should consider when
evaluating existing FMCSA and FRA requirements? How should FTA consider
differences in urban and rural operating environments and agency size?
3. Specifically, what are the reasons you would or would not
support any of the following options? What alternatives should FTA
consider? Please explain.
a. The TRACS recommendation for a maximum of 12 on-duty hours over
a maximum duty tour of 14 hours, with a minimum of 10 consecutive hours
off-duty between shifts, and a maximum of 6 working days.
b. The Volpe recommendation to TRACS for a limit of 60 on-duty
hours over 6 consecutive working days.
c. The APTA train operator standard of a maximum time of 12
operating hours, a maximum duty day of 16 hours, a minimum off-duty
time of 10 hours, and a maximum period of l7 consecutive workdays. Is
there a likely increase in safety risk by adopting the APTA standard
for a maximum duty day of 16 rather than 14 hours? How would a 16-hour
duty day change transit agency operations as compared to a 14-hour duty
day?
d. For transit bus operators, FMCSA's passenger carrier HOS
requirements of a 15-hour on-duty limit and a 10-hour driving limit
following 8 consecutive hours off-duty, and no more than 70 hours over
8 consecutive days. Could adoption of different HOS requirements for
transit bus drivers than FMCSA's passenger carrier requirements cause
confusion for drivers?
e. A requirement for transit agencies to develop and implement an
FRMP. If transit agencies were required to develop and implement an
FRMP, what elements should the FRMP include? Should transit agencies
have primary responsibility for developing the FRMP? For agencies that
have a Safety Committee, should the Safety Committee have a role in
developing or approving the FRMP?
4. What specific qualities of workers' regular tasks should FTA
consider to make them subject to HOS requirements? Does the definition
of ``safety-sensitive function'' in 49 CFR 655.4 include all categories
of employees who FTA should consider for HOS requirements? Are there
employees who perform safety-sensitive functions who should not be
subject to HOS requirements?
5. Would you support a single HOS standard that applies across all
transit modes subject to safety regulation by FTA? Or would you support
multiple HOS standards based on the varying characteristics of
different transit modes, for example, one set of standards for bus
operators and a different set of standards for rail operators? Please
explain.
6. Should shift schedulers who create work schedules have minimum
certification and training requirements? If so, please explain what
minimum requirements for training and/or certification FTA should
consider establishing.
B. Benefits and Costs
7. How would changes in hours, as a result of new HOS requirements,
impact worker health and safety?
8. Do you have information on any HOS research FTA should consider
as part of this or future rulemakings?
9. How would changes in hours, as a result of HOS requirements,
impact transit agency operations (e.g., their ability to fully staff
service)? How would changes in hours impact customers? What costs would
agencies incur to change their operations and ensure that workers
comply with the requirements?
C. Fatigue Data Collection
10. Is the prevalence of fatigue among transit workers and its
safety implications tracked or measured? Please explain. Do you have
any data on the prevalence or impact of fatigue among transit workers?
11. As a standard process, do investigations consider whether
fatigue was a probable cause or contributing factor in a transit safety
event? If so, please explain. How are such data recorded or tracked? Do
you have any data on transit safety events in which fatigue was
determined to be a probable cause or contributing factor?
12. Would you support requirements for State Safety Oversight
Agencies in investigating the potential role of fatigue in rail safety
events and near misses? If so, what requirements would you support?
What would be the burdens to the industry? What would be the benefits?
13. Would you support routine data collection through the National
Transit Database on whether an incident was fatigue related? What
additional data would help assess national trend analyses on the safety
impacts of fatigue? For example, FTA could update National Transit
Database reporting for major safety events to include elements, such as
the number of hours the
[[Page 74112]]
operator was on duty, the end time of the operator's previous shift
before the current shift, and the number of consecutive days the
operator was on duty. Which of these would be useful? Would other data
elements be useful? What barriers might impact the collection of
additional data? Would this data be useful for both bus and rail
events?
14. What would the burdens to the industry be if FTA instituted new
requirements to record transit worker fatigue data in the National
Transit Database? What would be the benefits to the industry of having
such worker fatigue data for transit safety events?
15. FTA recently began collecting annual counts of fatal bus
collisions from transit operators that are not currently required to
file major safety event reports. These are primarily operators in rural
areas, or operators with fewer than 30 vehicles in peak service. Some
of these fatal bus collisions may be fatigue-related. Should FTA
consider gathering data on fatigue from these events?
D. Current Hours of Service and Fatigue Risk Management Policies
16. Do you have information or data on whether and how transit
agencies are currently using their documented safety risk management
processes to assess the associated safety risk and, based on the
results of the safety risk assessment, identify safety risk mitigations
or strategies as necessary to address the safety risk of transit worker
fatigue through their Agency Safety Plan?
17. Do you have information or data on existing State or local HOS
or FRMP requirements that apply to transit workers?
a. To which transit agencies do they apply?
b. To which modes do they apply?
c. To which classifications of workers do they apply (e.g.,
operators, maintenance, dispatchers)?
d. Are waivers allowed to accommodate exigent or other
circumstances? Please explain.
e. Please describe the HOS and FRMP requirements (e.g., hours
restrictions, training requirements, designated breaks, and rest
areas).
f. Has the effectiveness of the HOS or FRMP requirements been
evaluated? How were they evaluated and what were the results?
g. Are existing HOS requirements part of collective bargaining
agreements? If so, what are the details? If not, how would HOS or FRMP
requirements interact with existing collective bargaining agreements?
18. Is transit worker secondary employment tracked? If so, how? Are
secondary employment hours tracked in addition to primary employment?
Do transit agencies face any limitations on their ability to track
secondary employment?
19. Do you have information on transit worker schedules for
operators, maintenance workers, control center workers, and other
workers?
a. How long are shifts? How long are overtime shifts?
b. What are the non-operational job responsibilities of bus and
rail operators? How much time do workers spend on-task, for example,
operating a vehicle or performing maintenance work, as compared to
other work, such as office administrative work?
c. How many breaks do workers get? How long are the breaks?
d. How much off-duty time do workers get?
e. What split-shift policies are used? What is their service span
on their longest service days? Which workers work split shifts?
f. How consistent are transit workers' shift schedules? Are
assigned service hours stable week-to-week? Month-to-month? Year-to-
year?
20. What fatigue-related factors are considered when developing bus
and rail schedules? Why are these factors considered?
21. Do you have information on transit agency use of other safety
enhancing policies or technology solutions that FTA should consider?
IV. Regulatory Analyses and Notices
Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
Executive Order 12866 (``Regulatory Planning and Review''), as
supplemented by Executive Order 13563 (``Improving Regulation and
Regulatory Review''), and the Executive order on Modernizing Regulatory
Review, directs Federal agencies to assess the benefits and costs of
regulations, to select regulatory approaches that maximize net benefits
when possible, and to consider economic, environmental, and
distributional effects. It also directs the Office of Management and
Budget (OMB) to review significant regulatory actions, including
regulations with annual economic effects of $200 million or more. The
agency has considered the impact of this ANPRM under these Executive
orders and the Department of Transportation's regulatory policies and
procedures. In this ANPRM, the agency requests comments that would help
FTA assess and make judgments on the benefits, costs, and other
impacts, of transit worker fitness for duty standards. FTA believes
that a notice relating to new requirements for hours of service and
fatigue risk management programs may generate raise legal or policy
issues for which centralized review would meaningfully further the
President's priorities or the principles set forth in the Executive
order on Modernizing Regulatory Review, and therefore is significant.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), a person is not
required to respond to a collection of information by a Federal agency
unless the collection displays a valid OMB control number. This ANPRM
would not establish any new information collection requirements.
Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
National Environmental Policy Act
Federal agencies are required to adopt implementing procedures for
the National Environmental Policy Act (NEPA) that establish specific
criteria for, and identification of, three classes of actions: (1)
Those that normally require preparation of an Environmental Impact
Statement, (2) those that normally require preparation of an
Environmental Assessment, and (3) those that are categorically excluded
from further NEPA review (40 CFR 1507.3(b)). This ANPRM qualifies for
categorical exclusions under 23 CFR 771.118(c)(4) (planning and
administrative activities that do not involve or lead directly to
construction). FTA has evaluated whether the ANPRM will involve unusual
or extraordinary circumstances and has determined that it will not.
Executive Order 12630 (Taking of Private Property)
FTA has analyzed this ANPRM under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. FTA does not believe this ANPRM affects a taking of
private property or otherwise has taking
[[Page 74113]]
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This ANRPM meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FTA has analyzed this ANPRM under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. FTA
certifies that this action will not cause an environmental risk to
health or safety that might disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
FTA has analyzed this ANPRM under Executive Order 13175, dated
November 6, 2000, and believes that it will not have substantial direct
effects on one or more Indian tribes; will not impose substantial
direct compliance costs on Indian tribal governments; and will not
preempt tribal laws. Therefore, a tribal summary impact statement is
not required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FTA has determined that this action is not a
significant energy action under that order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.
Executive Order 12898 (Environmental Justice)
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations) and DOT
Order 5610.2(a) (77 FR 27534, May 10, 2012) (<a href="https://www.transportation.gov/transportation-policy/environmental-justice/department-transportation-order-56102a">https://www.transportation.gov/transportation-policy/environmental-justice/department-transportation-order-56102a</a>) require DOT agencies to achieve
Environmental Justice (EJ) 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 and low-income populations. All DOT agencies must address
compliance with Executive Order 12898 and the DOT Order in all
rulemaking activities. On August 15, 2012, FTA's Circular 4703.1 became
effective, which contains guidance for recipients of FTA financial
assistance to incorporate EJ principles into plans, projects, and
activities (<a href="https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/environmental-justice-policy-guidance-federal-transit">https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/environmental-justice-policy-guidance-federal-transit</a>).
FTA has evaluated this action under the Executive order, the DOT
Order, and the FTA Circular and FTA has determined that this action
will not cause disproportionately high and adverse human health and
environmental effects on minority or low-income populations.
Regulation Identifier Number
A Regulation Identifier Number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this rulemaking with
the Unified Agenda.
List of Subjects in 49 CFR Part 675
Mass transportation, Safety.
(Authority: 49 U.S.C. 5329; 49 CFR 1.91)
Nuria I. Fernandez,
Administrator.
[FR Doc. 2023-23916 Filed 10-27-23; 8:45 am]
BILLING CODE 4910-57-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.