Fatigue Risk Management Programs for Certain Passenger and Freight Railroads

Published date22 December 2020
Citation85 FR 83484
Record Number2020-27085
SectionProposed rules
CourtFederal Railroad Administration
Federal Register, Volume 85 Issue 246 (Tuesday, December 22, 2020)
[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
                [Proposed Rules]
                [Pages 83484-83509]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-27085]
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                DEPARTMENT OF TRANSPORTATION
                Federal Railroad Administration
                49 CFR Parts 270 and 271
                [Docket No. FRA-2015-0122, Notice No. 1]
                RIN 2130-AC54
                Fatigue Risk Management Programs for Certain Passenger and
                Freight Railroads
                AGENCY: Federal Railroad Administration (FRA), Department of
                Transportation (DOT).
                ACTION: Notice of proposed rulemaking (NPRM).
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                SUMMARY: Pursuant to the Rail Safety Improvement Act of 2008, FRA
                proposes to issue regulations requiring certain railroads to develop
                and implement a Fatigue Risk Management Program, as one component of
                the railroads' larger railroad safety risk reduction programs.
                DATES: Written comments must be received by February 22, 2021. Comments
                received after that date will be considered to the extent practicable
                without incurring additional expense or delay.
                ADDRESSES: Comments related to Docket No. FRA-2015-0122 may be
                submitted by going to http://www.regulations.gov and follow the online
                instructions for submitting comments.
                 Instructions: All submissions must include the agency name, docket
                name and docket number or Regulatory Identification Number (RIN) for
                this rulemaking (2130-AC54). Note that all comments received will be
                posted without change to http://www.regulations.gov, including any
                personal information provided. Please see the Privacy Act heading in
                the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
                information on any submitted comments or materials.
                 Docket: For access to the docket to read background documents or
                comments received, go to http://www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Audit
                Management Division, at 202-493-6224 or [email protected]; Amanda
                K. Emo, Ph.D., Fatigue Program Manager, at 202-281-0695 or
                [email protected]; or Colleen A. Brennan, Deputy Assistant Chief
                Counsel, at 202-493-6028 or [email protected].
                SUPPLEMENTARY INFORMATION:
                Table of Contents for Supplementary Information
                I. Introduction and Executive Summary
                 A. Purpose of Rulemaking
                 B. Summary of Costs and Benefits
                II. Rulemaking Authority and Background
                 A. RSIA
                 1. Mandate for Rulemaking on Railroad Safety Risk Reduction
                Programs
                 2. Mandate for Rulemaking on Fatigue Management Plans
                 3. Authority for Rulemaking on Information Protection
                 B. Fatigue and Fatigue Risk Management Plans
                III. Railroad Safety Advisory Committee Process
                 A. Fatigue Management Plans Working Group
                 B. Task Forces
                IV. FRMP Considerations
                 A. General Overview
                 B. Roles and Responsibilities
                 C. Components of an FRMP
                 1. Identifying Safety Hazards
                 2. Assessing Risks Associated With Identified Hazards
                 3. Prioritizing Risks and Implementing Mitigation
                 4. Summary of the Work of the FRMP Working Group's Task Forces
                 5. Tracking Performance
                V. Section-by-Section Analysis
                VI. Regulatory Impact and Notices
                 A. Executive Orders 12866 and DOT Regulatory Policies and
                Procedures
                 B. Regulatory Flexibility Act and Executive Order 13272; Initial
                Regulatory Flexibility Analysis
                 C. Federalism
                 D. International Trade Impact Assessment
                 E. Paperwork Reduction Act
                 F. Environmental Assessment
                 G. Executive Order 12898 (Environmental Justice)
                 H. Unfunded Mandates Reform Act of 1995
                 I. Energy Impact
                 J. Privacy Act Statement
                I. Introduction and Executive Summary
                A. Purpose of Rulemaking
                 This proposed rule is part of FRA's efforts to improve rail safety
                continually and to satisfy the statutory mandate of Section 103 of the
                Rail Safety Improvement Act of 2008 (RSIA).\1\ That section, codified
                at 49 U.S.C. 20156, requires Class I railroads; railroad carriers with
                inadequate safety performance (ISP), as determined by the Secretary;
                and railroad carriers that provide intercity rail passenger or commuter
                rail passenger transportation to develop and implement a safety risk
                reduction program to improve the safety of their operations. The
                section further requires a railroad's safety risk reduction program to
                include a ``fatigue management plan'' meeting certain requirements.
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                 \1\ Section 103, Public Law 110-432, Division A, 122 Stat. 4848
                et seq.
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                 This proposed rule, if finalized, would fulfill RSIA's mandate for
                railroads to include fatigue management plans in their safety risk
                reduction programs by requiring railroads to develop and implement
                Fatigue Risk Management Programs (FRMPs).\2\ As proposed, a railroad
                would implement its FRMP through an FRMP plan.
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                 \2\ Section 20156 uses the term ``fatigue management plans'' so
                sections of this preamble discussing the statutory requirements
                likewise use this term, as do the sections discussing the Railroad
                Safety Advisory Committee task statement on fatigue and Fatigue
                Working Group. However, because section 20156 requires fatigue to be
                addressed as part of a railroad's safety risk reduction program, for
                consistency with the terminology used in FRA's final rules governing
                those programs (81 FR 53849 (Aug. 12, 2016) and 85 FR 9262 (Feb. 18,
                2020)), elsewhere throughout this proposed rule, FRA uses the terms
                ``fatigue risk management program'' (FRMP) and ``FRMP plan.''
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                 Under this proposed rule, consistent with the mandate of Section
                20156, an FRMP is a comprehensive, system-oriented approach to safety
                in which a railroad determines its fatigue risk by identifying and
                analyzing applicable hazards and takes action to mitigate, if not
                eliminate, that fatigue risk.\3\ As proposed, a railroad would be
                required to prepare a written FRMP plan and submit it to FRA for review
                and approval. A railroad's written FRMP plan would become part of its
                existing safety risk reduction program plan. A railroad would also be
                required to implement its FRA-approved FRMP plan, conduct an internal
                annual assessment of its FRMP, and consistent with Section 20156's
                mandate, update its FRMP plan periodically. As part of a railroad
                safety risk reduction program, a railroad's FRMP would also be subject
                to assessments by FRA.
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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.
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                B. Summary of Costs and Benefits
                 FRA estimated the costs and benefits of this proposed rule using
                discount rates of 3 and 7 percent over a ten-year time horizon. FRA
                presents monetized costs and benefits where possible and discusses
                those non-quantifiable elements qualitatively where data is
                [[Page 83485]]
                lacking. Details on the estimated costs and benefits of this proposed
                rule can be found in the rule's economic analysis, which has been
                included in the docket.
                 In preparing the economic analysis, FRA estimated that the total
                costs and benefits over 10 years for the implementation of an FRMP and
                the fatigue training mitigation for Class I railroads and the 50 ISP
                railroads subject to this proposed regulation. FRA was unable to
                quantify costs or benefits for passenger railroads and discusses the
                implementation of the proposed regulation qualitatively within the
                Regulatory Impact Analysis which has been placed into the docket.
                 FRA also estimated the total costs over 10 years to develop and
                monitor FRMP plans for Class I railroads, passenger and commuter
                railroads, and the 50 ISP railroads subject to this proposed
                regulation. The proposed regulation will also impose a new economic
                cost on the agency over the 10-year period, to review and audit the
                FRMPs.
                 Please see Table I.B for the total costs and benefits associated
                with the proposed rule.
                 Table I.B--10-Year Costs and Benefits--Training Only Mitigation
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                 Present value Present value Annualized at Annualized at
                 Calculation aid Costs 7% 3% 7% 3%
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                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. Rulemaking Authority and Background
                A. RSIA
                1. Mandate for Rulemaking on Railroad Safety Risk Reduction Programs
                 The RSIA requires the Secretary of Transportation (Secretary) to
                issue regulations requiring certain railroads to develop and implement
                a ``railroad safety risk reduction program.'' \4\ Under RSIA, as part
                of their railroad safety risk reduction programs, railroads must
                analyze the risks associated with aspects of their operations that
                affect railroad safety and based on that risk analysis, railroads must,
                through their railroad safety risk reduction programs, mitigate risks
                to railroad safety.\5\ Among other requirements, the RSIA requires
                railroads to consult with ``directly affected employees'' and their
                labor organizations on the content of their safety risk reduction
                programs, including the fatigue management plan component.\6\
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                 \4\ Public Law 110-432, Div. A, sec. 103 (49 U.S.C. 20156).
                 \5\ Sec. 20156(d)(1).
                 \6\ 49 U.S.C. 20156(f) and (g)(1).
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                 The Secretary delegated responsibility for carrying out the mandate
                of Section 20156 to the FRA Administrator.\7\
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                 \7\ 49 CFR 1.89, 77 FR 49965 (August 17, 2012); see also 49
                U.S.C. 103(g).
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                 Section 20156(a)(1) mandates that each of the following types of
                railroads would have to comply with this proposed regulation: (1) Class
                I railroads; (2) railroad carriers with ISP; and (3) railroad carriers
                that provide intercity rail passenger or commuter rail passenger
                transportation. This preamble refers to the railroads that would be
                subject to this proposed rule as ``covered railroads.''
                 To implement the requirements of Section 20156, FRA published the
                System Safety Program (SSP) final rule implementing the railroad safety
                risk reduction program mandate for passenger railroads on August 12,
                2016.\8\ On February 18, 2020, FRA published the Risk Reduction Program
                (RRP) final rule implementing the mandate for Class I freight and ISP
                railroads.\9\
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                 \8\ 81 FR 53849.
                 \9\ 85 FR 9262. The RRP final rule also defines ``railroad
                carriers with inadequate safety performance'' to whom this proposed
                rule would apply. 49 CFR 271.13, 85 FR at 9316-9317.
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                 Both the SSP and RRP rules allow a railroad to tailor its program
                to its unique operating characteristics.\10\ All railroads that must
                develop either an RRP or an SSP would also have to develop an FRMP as a
                component of the RRP or the SSP.
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                 \10\ SSP Final Rule at 81 FR 53849, August 12, 2016, and RRP
                Final Rule at 85 FR 9262, February 18, 2020.
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                 Both RRPs and SSPs reflect comprehensive, system-oriented
                approaches to improving safety, by which an organization formally
                identifies and analyzes applicable hazards and takes action to
                mitigate, if not eliminate, the risks associated with those hazards.
                RRPs and SSPs provide a railroad with a framework for processes and
                procedures that can help it plan, organize, direct, and control its
                business activities in a way that enhances safety and promotes
                compliance with regulatory standards. As such, risk reduction and
                system safety programs are a form of ``safety management system,''
                which is a term that generally refers to a comprehensive, systematic
                approach to managing safety throughout an organization.
                 Safety management systems were developed to ensure high safety
                performance in various industries, including aviation, passenger
                railroad, nuclear, and other industries with the potential for
                catastrophic accidents. For ease of understanding, the elements of a
                safety management system are typically grouped into larger descriptive
                categories. These descriptive categories include: (1) An organization-
                wide safety policy; (2) formal methods for identifying hazards, and for
                prioritizing and mitigating risks associated with those hazards; (3)
                data collection, data analysis, and evaluation processes to determine
                the effectiveness of mitigation strategies and to identify emerging
                hazards; and (4) outreach, education, and promotion of an improved
                safety culture within the organization.
                 Effective implementation of all the elements of an RRP or SSP,
                including the FRMP this proposed rule would
                [[Page 83486]]
                require, will foster continuous safety improvement.\11\
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                 \11\ For a more detailed discussion of safety management systems
                and FRA risk reduction programs, see FRA's final RRP and SSP rules.
                85 FR 9265 (RRP final rule) and 81 FR 53853-54 (SSP final rule).
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                2. Mandate for Rulemaking on Fatigue Management Plans
                 Sections 20156(d)(2) and (f) of the RSIA mandate that as part of a
                railroad's safety risk reduction program, a railroad must develop and
                implement a fatigue management plan ``designed to reduce the fatigue
                experienced by safety-related railroad employees and to reduce the
                likelihood of accidents, incidents, injuries, and fatalities caused by
                fatigue.'' \12\ The statute requires railroads to update their fatigue
                management plans at least once every two years, with each update
                subject to FRA review and approval.\13\ Section 20156(f)(2) also
                requires each railroad's fatigue management plan to take into account
                the varying circumstances of operations on different parts of its
                system, and to prescribe appropriate fatigue countermeasures to address
                the varying circumstances.
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                 \12\ Sec. 20156(f)(1).
                 \13\ Id.
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                 Finally, Section 20156(f)(3) requires a covered railroad to
                consider the need to include in its fatigue management plan elements
                addressing each of the following items, as applicable: (1) Employee
                education and training on the physiological and human factors that
                affect fatigue, as well as strategies to reduce or mitigate the effects
                of fatigue, based on the most current scientific and medical research
                and literature; (2) opportunities for identification, diagnosis, and
                treatment of any medical condition that may affect alertness or
                fatigue, including sleep disorders; (3) effects on employee fatigue of
                an employee's short-term or sustained response to emergency situations,
                such as derailments and natural disasters, or engagement in other
                intensive working conditions; (4) scheduling practices for employees,
                including innovative scheduling practices, on-duty call practices, work
                and rest cycles, increased consecutive days off for employees, changes
                in shift patterns, appropriate scheduling practices for varying types
                of work, and other aspects of employee scheduling that would reduce
                employee fatigue and cumulative sleep loss; (5) Methods to minimize
                accidents and incidents that occur as a result of working at times when
                scientific and medical research have shown increased fatigue disrupts
                employees' circadian rhythm; (6) alertness strategies, such as policies
                on napping, to address acute drowsiness and fatigue while an employee
                is on duty; (7) opportunities to obtain restful sleep at lodging
                facilities, including employee sleeping quarters provided by the
                railroad carrier; (8) the increase of the number of consecutive hours
                of off-duty rest, during which an employee receives no communication
                from the employing railroad carrier or its managers, supervisors,
                officers, or agents; (9) avoidance of abrupt changes in rest cycles for
                employees, and (10) additional elements that the Secretary considers
                appropriate.
                3. Authority for Rulemaking on Information Protection
                 Section 109 of the RSIA specifies that subject to specific
                exceptions, certain railroad safety risk reduction records obtained by
                the Secretary are exempt from the public disclosure requirements of the
                Freedom of Information Act (FOIA).\14\ Both the SSP and RRP final rules
                implement these authorized information protections. Further, FRA has
                concluded section 20118 is a FOIA Exemption 3 statute and, therefore,
                would exempt, as part of a railroad's safety risk reduction program,
                FRMP records in FRA's possession from mandatory disclosure under FOIA
                (unless one of two statutory exceptions apply).\15\
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                 \14\ 49 U.S.C. 20118.
                 \15\ 80 FR at 10957-10958.
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                B. Fatigue and Fatigue Risk Management Plans
                 Humans have an approximately 24-hour sleep-wake cycle known as a
                ``circadian rhythm.'' Rapid changes in the circadian pattern of sleep
                and wakefulness disrupt many physiological functions such as hormone
                releases, digestion, and temperature regulation. Such disruptions may
                also impair human performance, and may cause a general feeling of
                debility until realignment is achieved. For instance, the experience of
                jet lag is comparable to the experience of working schedules that vary
                among different duty shifts, and similar disruptions in human
                performance occur. Research has shown that fatigue is a multivariate
                condition, being either directly or secondarily affected by
                physiological and environmental variables such as sleep loss, workload,
                stress, monotony, workplace ergonomics, age, health, medications,
                noise, and circadian disruption. Symptoms of fatigue include, but are
                not limited to, falling asleep, increased reaction time, loss of
                attentional capacity, and decline of short-term and working memory
                function which may impair performance, increase error, and increase
                accident risk.
                 The Federal Government requires railroads to manage their
                employees' fatigue associated with railroad operations through
                prescriptive hours of service (HOS) limitations and rest requirements.
                See 49 U.S.C. 21103, 21104, and 21105 and regulations at 49 CFR part
                228, subpart F (implementing 49 U.S.C. 21102 and 21109). HOS
                limitations are generally based on the assumption that fatigue simply
                increases as time passes; therefore, the longer the time on task, the
                greater the risk for fatigue. However, this approach does not account
                for factors such as sleep loss, amount of sleep, circadian rhythms,
                sleep quality (which may be impacted by environmental factors or
                sleeping accommodations), and even the effects of the type of task
                being performed on the resulting level of fatigue. Furthermore, the HOS
                limitations and rest requirements apply only to individuals who perform
                certain types of work and do not cover all railroad employees (e.g.,
                ordinarily, not maintenance-of-way employees or carmen). Laws and
                regulations following this model, therefore, may reduce, but cannot
                eliminate, the conditions that contribute to fatigue.\16\ An FRMP, on
                the other hand, is intended to be a systematic program to address
                fatigue in a dynamic manner.
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                 \16\ Thomas, G., Raslear, T., & Kuehn, G. (1997), The effects of
                work schedule on train handling performance and sleep of locomotive
                engineers: A simulator study, Report No. DOT/FRA/ORD-97-09),
                Washington, DC: Federal Railroad Administration; available at:
                http://www.fra.dot.gov/eLib/details/L04245.
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                 An FRMP is a form of a safety management system. Like the other
                elements of an RRP and an SSP, an FRMP implements organizational
                policies, processes, and procedures to reduce safety risk in a
                railroad's operations. An FRMP is a data-driven and scientifically-
                based process that allows for periodic review and management of safety
                risks associated with fatigue-related error(s). Like other safety
                management systems, an FRMP applies the risk management process to
                identify fatigue risks through the use of data-established, scientific
                principles. An FRMP includes collecting and analyzing fatigue-related
                safety data and implementing corrective actions--always encouraging
                continuous improvement. This proposed rule would require railroads to
                develop FRMPs that are consistent with these general principles.
                [[Page 83487]]
                 An effective FRMP implements processes and procedures for
                measuring, modeling, managing, mitigating, and reassessing fatigue risk
                in a specific operational setting. The primary stakeholders--the main
                persons with the authority and/or interest to improve conditions to
                reduce fatigue--would implement FRMP processes. In the case of this
                specific rulemaking, that stakeholder group would include
                representation from management and labor (union representation, if
                applicable) and may also include scientific consultants.
                 By combining schedule assessment, operational data collection,
                continuous and systematic analysis, and both proactive and reactive
                fatigue mitigation techniques, guided by information provided by
                scientific studies of fatigue, an FRMP offers a way to conduct railroad
                operations more safely by offering a global, comprehensive, and
                specific approach that complements statutory or regulatory HOS
                limitations. An FRMP would provide an interactive and collaborative
                approach to improving operational performance and safety levels on a
                case-by-case basis. Therefore, an FRMP would permit a railroad to adapt
                policies, procedures, and practices to the specific conditions that
                create fatigue in a particular railroad setting. A railroad could
                tailor its FRMP to unique operational demands and focus on techniques
                for mitigating risk caused by fatigue that are practical within the
                specific operational environment. This flexibility would also allow a
                railroad to alter its FRMP based on changing needs, new research, data
                from an existing FRMP, comments from labor and management, and
                established best practices.
                III. Railroad Safety Advisory Committee Process
                 In December 2011, FRA asked the Railroad Safety Advisory Committee
                (RSAC) to accept a task to address the fatigue management plan mandate
                of the RSIA.\17\ The RSAC voted to accept the task and on December 8,
                2011, the RSAC formed the Fatigue Management Plans Working Group
                (Working Group). Members of the Working Group included physicians,
                human factors psychologists, railroad schedulers, and other
                representatives of railroad management and labor, as well as FRA
                employees.
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                 \17\ Railroad Safety Advisory Committee Task Statement: Fatigue
                Management Plans, Task No.: 11-03, Dec. 8, 2011. The Task Statement
                read as follows:
                 Review the mandates and objectives of the [RSIA] related to the
                development of Fatigue Management Plans, determine how medical
                conditions that affect alertness and fatigue will be incorporated
                into Fatigue Management Plans, review available data on existing
                alertness strategies, consider the role of innovative scheduling
                practices in the reduction of employee fatigue, and review the
                existing data on fatigue countermeasures.
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                 The Working Group formed three Task Forces to address particular
                aspects of the RSIA mandate in more detail: (1) The Education and
                Training Task Force; (2) the Scheduling Task Force; and (3) the
                Infrastructure and Environment Task Force. The Task Forces met multiple
                times throughout 2012 and 2013 and the Working Group itself met eight
                times during the same period.
                 After initially reaching consensus on draft rule text in June 2013,
                the Working Group did not reach consensus as to how its recommendations
                should be implemented. The Task Forces had developed a multitude of
                documents, which Labor representatives on the Working Group wanted
                published as appendices to the regulation. Railroad management members
                of the Working Group, on the other hand, asserted that the documents
                should not be published as appendices to the regulation, but instead
                recommended that the documents be made available on the FRA website and
                in the rulemaking docket for all parties to use in the required
                consultation process as part of developing railroads' FRMPs. As a
                result, in late 2013, FRA withdrew the task from the RSAC, and as the
                agency worked to implement other aspects of the safety risk reduction
                program mandate of the RSIA (i.e., the RRP and SSP rules), the Agency
                began developing a rule specifically to address the RSIA's mandate that
                fatigue management plans be included as part of railroads' safety risk-
                reduction programs.
                 Although the RSAC did not make a consensus recommendation to FRA
                related to fatigue, FRA believes that information developed and
                documented during the RSAC process is informative and will be very
                useful to railroads required to develop FRMP plans. FRA made minor
                amendments to the June 2013 draft rule text to clarify it and make it
                more consistent with similar rule text in the SSP and RRP rules.
                However, the substance of this proposed rule text is the same as the
                draft rule text the Working Group voted to approve.
                 Accordingly, the proposals in this NPRM reflect FRA's consideration
                of the Working Group's recommended rule text and the documents
                developed by each of the three Task Forces. Those RSAC-developed
                documents are included in the rulemaking docket.
                 The RSIA does not mandate, and this NPRM does not propose to
                include, language specifically addressing the predictability of work
                schedules. However, the RSIA does require railroads to consider
                scheduling practices, of which predictability is one factor. There is
                significant discussion of predictability throughout this document,
                particularly when describing the Task Force discussions and the complex
                issues addressed in the Task Force documents that will inform
                railroads' analysis of fatigue risks and their efforts to mitigate the
                identified fatigue risks in consultation with employees and labor
                organizations. However, the proposed rule requires railroads to
                consider several factors, including work schedule predictability, but
                does not require any particular factor to be analyzed.
                 The NPRM also does not propose to include the Task Force documents
                as appendices to this proposed rule. As FRA previously explained to the
                members of the Working Group, many of these documents are written
                informally, for the use of railroads and labor in developing FRMP
                plans. The documents are best practices generated by the Working Group,
                but are not specifically FRA guidance and, therefore, should not be in
                an appendix to an FRA regulation. In addition, the content of the Task
                Force documents is subject to change based on advances in fatigue
                science, changes in railroad operations, and experience with FRA's SSP
                and RRP rules and the development and implementation of FRMPs and FRMP
                plans. The Task Force documents should be easy to update as necessary
                so that they are most beneficial to those using them. If they were
                published as appendices to the regulation, changing them would require
                the cumbersome process of publishing them in the Federal Register, and
                the industry would be left with outdated or less useful documents until
                revisions could be completed. For the convenience of readers, however,
                the full text of each of these documents can be found in the docket for
                this rulemaking.
                B. Task Forces
                 As noted above, paragraph (f)(3) of Section 20156 requires
                railroads to consider including 10 different elements in their fatigue
                management plans.
                 The Working Group assigned the Education and Training Task Force to
                address section 20156(f)(3) subparagraphs (A), (B), (E), and (F),
                specifically:
                 Employee education and training on the physiological and
                human factors that affect fatigue;
                 Medical and scientific research-based fatigue mitigation
                strategies;
                [[Page 83488]]
                 Opportunities for identification, diagnosis, and treatment
                of any medical condition that may affect alertness or fatigue,
                including sleep disorders;
                 Methods to minimize accidents and incidents during
                circadian low periods; and
                 Alertness strategies.
                 The Task Force produced a document outlining existing railroad
                fatigue educational resources; a document outlining potential fatigue
                training topics; fatigue education dissemination and evaluation
                strategies; and a document outlining fatigue countermeasures.
                 The Working Group assigned the Scheduling Task Force to address
                subparagraphs (D), (H), and (I) of the required elements outlined in
                section 20156(f)(3).
                 The task statement specifically included:
                 Innovative scheduling practices;
                 On duty call practices;
                 Work and rest cycles;
                 Increased consecutive days off;
                 Other aspects of employee scheduling that would reduce
                employee fatigue and cumulative sleep loss;
                 The increase of the number of consecutive hours of off-
                duty rest; and
                 Avoidance of abrupt changes in rest cycles for employees.
                 The Working Group assigned the Infrastructure and Environment Task
                Force to address subparagraphs (C) and (G) of section 20156(f)(3)
                including:
                 Effects on employee fatigue of an employee's short term or
                sustained response to emergency situations;
                 Opportunities to obtain restful sleep at lodging
                facilities; and
                 Effects of environmental conditions (e.g., temperature,
                vibrations, etc.) on employee fatigue.
                 The Task Force created documents on emergency work, lodging
                facilities, and dispute resolution.
                IV. FRMP Considerations
                 This proposed rule, if finalized, will fulfill the requirement of
                paragraph (d) of Section 20156 that a covered railroad's railroad
                safety risk reduction program include a fatigue management plan. This
                rule would amend both Parts 270 and 271, adding a subpart to both parts
                requiring railroads to develop and implement FRMPs. This section
                provides a summary of potential methods and considerations for
                developing and maintaining a FRMP. FRA welcomes comments on the
                discussion in this section, including thoughts on how to develop and
                maintain an effective FRMP. Unless specifically identified as a
                statutory or regulatory requirement, the information and suggestions
                contained in this section are not meant to bind the public in any way,
                and is intended only to provide clarity to the public regarding this
                proposal and information to aid in compliance if the proposal is
                finalized.
                A. General Overview
                 This proposed rule would require each covered railroad to establish
                and periodically update an FRMP plan, which explains the railroad's
                method of analysis of fatigue risks and the processes for implementing
                the FRMP. FRA would review and approve the FRMP plan. FRA proposes that
                requirements for the filing, approval, and amendment of the FRMP plan
                be made the same as for other components of RRP or SSP plans so those
                requirements are not set forth in this proposed rule. Instead, the
                proposed rule text cites to the sections of the SSP and RRP rules that
                contain those procedures.\18\ Because railroads will have submitted
                their SSP plans or RRP plans to FRA under part 270, subpart C, or part
                271, subpart D before this proposed rule becomes final, railroads would
                need to amend their SSP plan or RRP plan to include an FRMP plan. Thus,
                a railroad would follow the procedures in Sec. 270.201(c) or 271.303
                to amend its SSP plan or RRP plan.
                ---------------------------------------------------------------------------
                 \18\ 49 CFR 271.301 Filing and approval, 271.303 Amendments, and
                49 CFR 270.201 Filing and approval.
                ---------------------------------------------------------------------------
                 As part of their FRMP, covered railroads would be required to
                identify fatigue-related safety hazards, to assess the risks associated
                with those hazards, and to prioritize those risks for mitigation. These
                railroads would be required to consider certain categories of risk as
                part of the FRMP, and to consider the development and implementation of
                policies and practices to reduce risks, related specifically to the
                items identified in the RSIA as items railroads are required to
                consider.
                 FRA proposes that railroads be required to adopt and implement
                their FRMP through an FRMP plan describing the railroads' processes for
                conducting their fatigue-risk analysis, including the processes for the
                identification of fatigue-related railroad safety hazards and resulting
                risks, processes for the development and implementation of mitigation
                measures, processes for the evaluation of the FRMP and its
                effectiveness, and procedures for the review and update of the FRMP
                plan. The FRMP plan would also describe processes, milestones, and
                timelines for the implementation of the FRMP.
                 Finally, the proposed rule contains no express requirements on
                information protection or consultation, because the information
                protection and consultation requirements in the RRP and SSP rules would
                apply to the FRMP, the FRMP plan, and their related documents, just as
                those requirements would apply to similar documents on other aspects of
                the RRP or SSP. As required by the RSIA, fatigue management plans are
                required elements of a railroad's statutorily-mandated railroad safety
                risk reduction program. Therefore, the statutory requirements on
                information protection and consultation, implemented in the SSP and RRP
                final rules, would also apply to the documents required by this
                proposed rule to implement the required fatigue component of each
                railroad's RRP or SSP. Regarding information protection, as with RRP
                and SSP, only information compiled or collected solely for developing,
                implementing, or evaluating a railroad's FRMP would be protected.\19\
                ---------------------------------------------------------------------------
                 \19\ For a detailed discussion of information protection, see
                the SSP final rule at 81 FR 53855-56 and 53878-82, and RRP final
                rule at 85 FR 9266-9272 and 9279-9282. For more information on the
                consultation requirements, see the SSP final rule at 81 FR 53856,
                53882-87 and 49 CFR part 270 app. B, and RRP NPRM at 85 FR 9266,
                9299-9303.
                ---------------------------------------------------------------------------
                B. Roles and Responsibilities
                 Consistent with the program requirements of an RRP or SSP,\20\ an
                FRMP is an ongoing program that supports continuous safety improvement,
                and requires systematic evaluation and management of risks. An FRMP is
                more than a document; it is a living program that is implemented by
                members of the organization who regularly meet to review data on
                fatigue indicators, analyze contributing factors to fatigue, take
                necessary actions (reactive and proactive) to mitigate fatigue,
                objectively audit the effectiveness of the system, and take corrective
                action continuously to improve the system. Consistent with comments
                made at the Working Group meetings, FRA expects most railroads will
                form a dedicated fatigue management committee to implement the program.
                The committee should include representatives of all departments and
                groups, including labor representatives as appropriate, that have a
                role in reporting, managing, and mitigating fatigue.
                ---------------------------------------------------------------------------
                 \20\ 49 CFR 271.101(a), 270.101, and 270.103(p)(vii).
                ---------------------------------------------------------------------------
                 SSPs and RRPs require outreach to employees so that they can
                understand why certain actions are taken, or why certain safety
                procedures are introduced
                [[Page 83489]]
                or changed.\21\ As this relates to an FRMP, it means that all safety-
                related personnel need to understand the corporate policies that
                underlie the FRMP; these may include policies and procedures that
                govern: Fatigue reporting, fitness-for-duty, absence due to fatigue,
                incident reporting, employee privacy, and prohibitions on coercion to
                perform duties while fatigued.
                ---------------------------------------------------------------------------
                 \21\ 49 CFR 271.107 and 270.103(i)(4).
                ---------------------------------------------------------------------------
                 As provided in the RSIA, the three main stakeholders in the FRMP
                are railroad management, railroad employees (including nonprofit
                employee labor organizations), and FRA. Each of these stakeholders
                plays an important role in implementing an FRMP successfully. Railroad
                management must develop, document, and implement an FRMP, tailored to
                the size of the railroad, in a collaborative environment with relevant
                stakeholders; it must also then allocate the resources required to
                implement any fatigue countermeasures in a timely fashion. FRA notes
                that the RSIA, in multiple places, specifically requires railroads to
                develop and implement elements of their programs based on the latest
                scientific principles.\22\ FRA will review, and as appropriate, approve
                each railroad's FRMP plan, and evaluate to ensure that the railroads
                are complying with their plans.
                ---------------------------------------------------------------------------
                 \22\ 49 U.S.C. 20156(f)(3)(A) and (E) specifically require
                railroads to consider scientific and medical research, in
                determining whether to include certain elements in their FRMP. The
                other elements of Sec. 20156(f)(3) require railroads to consider
                various scientific concepts, such as medical conditions, cumulative
                fatigue, and circadian rhythms.
                ---------------------------------------------------------------------------
                 These general roles and functions are not an exhaustive description
                of the various actions each group could take during the development and
                execution of the FRMP.
                C. Components of an FRMP
                 As proposed, a railroad's FRMP must consist of actions taken by the
                railroad pursuant to formally documented policies, processes, and
                procedures intended to mitigate fatigue risk. It incorporates specific
                components that enable the following: (1) Identifying safety hazards
                associated with fatigue; (2) assessing the risks associated with
                identified hazards; (3) prioritizing risks for mitigation and
                implementing mitigation strategies for those risks; and (4) tracking
                the performance and effectiveness of each mitigation strategy and
                reviewing and revising an FRMP based on results.
                1. Identifying Safety Hazards
                a. Examples of Methods of Identifying Safety Hazards
                 A risk-based hazard analysis \23\ identifies operational processes,
                procedures, or activities that increase the likelihood of fatigue, and
                lays the foundation for subsequent assessment and mitigation of risks
                associated with the fatigue hazards identified. Hazards may be
                identified through quantitative, data-driven methods; through
                qualitative processes such as discussions, interviews, and
                brainstorming; or through a combination of both approaches. Identifying
                a hazard does not guarantee that it will be selected for mitigation.
                ---------------------------------------------------------------------------
                 \23\ Although the RSIA uses the term ``risk analysis,'' FRA uses
                ``risk-based hazard analysis'' because it is more consistent with
                the terminology used in the SSP and RRP rules, as defined in 49 CFR
                270.5 and 49 CFR 271.5.
                ---------------------------------------------------------------------------
                 In general, data-driven methods identify and record hazards through
                a systematic process that allows for tracking and further analysis.
                These methods could use various types of recorded observations, such as
                records of actual schedules, efficiency testing, accident/incident
                investigations, company audits, employee surveys, close-call or
                hazardous condition reports, and others. Simulations may also be used
                to identify potential hazards and to estimate the potential severity of
                outcomes.
                 Understanding the current conditions within a railroad is critical
                for a railroad's ability to identify fatigue hazards accurately.
                Important sources of information include current schedules, train
                lineups, throughput, and operating practices. Employee reports of
                fatigue or fatigue-related errors and incidents, and information on the
                work schedules that led up to them, would also be valuable. Likewise,
                employees may be able to provide information regarding travel
                assignments and random duty reports.
                 Comprehensive and objective accident, incident, and error analyses
                can also be conducted to determine when fatigue has been a potential
                contributing factor. The identified fatigue-sensitive situations can
                then be addressed to mitigate or to avoid them in the future. For
                example, if analyses identify a high probability of a specific error
                occurring during the hours when employees are highly susceptible to
                fatigue, engineering or procedural safeguards could potentially be put
                in place to minimize or eliminate the possibility of that error
                recurring.
                 In addition to data-driven methods, qualitative methods that are
                often founded on expert judgment can be very effective at identifying
                fatigue hazards. Examples of qualitative hazard identification methods
                include, but are not limited to, the following:
                 Brainstorming may be useful for identifying hazards in new
                or novel systems. Ideally, it involves all key stakeholders, is
                relatively quick and easy, and can be applied to a wide range of
                systems. Because brainstorming is commonly unstructured, it may not be
                comprehensive. The success of brainstorming depends heavily on the
                expertise of the participants and may be susceptible to the influence
                of group dynamics.
                 Checklists are inventories of known hazards. They can be
                used by people who are not experts in the operation or system being
                analyzed, to capture a wide range of existing knowledge and experience,
                and help ensure that common and obvious problems are not discounted,
                minimized, or overlooked. However, checklists may be less useful for
                unusual operations or systems, may inhibit expansive thinking, or may
                overlook hazards that have not been previously or widely observed.
                 Failure Modes and Effects Analysis (FMEA) is a reliability
                assessment technique built upon a detailed system description used to
                evaluate the ways in which basic system processes, components, or
                subcomponents can fail to perform safely. FMEA considers all the
                potential ways a component could fail, the effects of these failures on
                the system, possible causes of the failures, and how the failures might
                be mitigated. See Figure 1. FMEA is a systematic and rigorous
                evaluation approach that can yield a detailed record of the hazard
                identification process, and can be applied to a wide range of types of
                systems. However, it primarily focuses on single point-of-failure modes
                rather than combinations of failures, relies heavily upon individuals
                with detailed system knowledge, and can be both time-consuming and
                expensive.
                [[Page 83490]]
                [GRAPHIC] [TIFF OMITTED] TP22DE20.000
                 Structured What-If Technique (SWIFT) is a form of
                facilitated brainstorming, typically carried out on a higher-level
                system description with relatively few subcomponents, involving a
                multidisciplinary team of experts. The facilitator uses various
                prompts, such as ``what if,'' ``could someone,'' or ``has anyone ever''
                questions to initiate discussion within the group. SWIFT creates a
                detailed record of the hazard identification process, and can consume
                less time than some other methods. However, successful application
                requires careful preparation, relies on the expertise and experience of
                the team, and depends heavily on the skills of the facilitator.
                 Operating Hazard Analysis (OHA) is when a team or
                individual uses various sources of information to identify hazards
                resulting from the operation and maintenance of a system, following a
                structured and formal process. In addition to the engineering design
                analysis at which FMEA excels, OHA is structured so that human
                performance and human interactions can be included in the analysis.
                Information sources can include analyses of known hazards, written
                procedures and manuals, engineering system descriptions, and other
                materials to analyze detailed procedures performed during system
                operation.
                 Hazard identification software programs are designed to
                support the identification of hazards using a systematic method.
                Programs are available that provide structured guidance for identifying
                general hazards or only fatigue-specific hazards. Such software may
                also offer the ability to catalog the resultant fatigue-related risks
                to help railroads prioritize risks.
                 Employee workshops may be used to engage employees in the
                railroad's hazard analysis. Employees can share their experiences and
                concerns relating to fatigue with the goal of identifying fatigue
                hazards, related risks, and potential solutions or mitigations.
                 These are just some of the methods available for identifying
                hazards. Each has advantages and disadvantages, and a combination of
                two or more methods may minimize any shortcomings.
                b. Specific Fatigue-Related Hazards To Consider
                 A number of individual, organizational, or environmental factors
                can contribute to the likelihood of fatigue. As provided in the RSIA,
                these factors should be among the many items considered during a hazard
                analysis.\24\
                ---------------------------------------------------------------------------
                 \24\ See 49 U.S.C. 20156(c).
                ---------------------------------------------------------------------------
                 General health and medical conditions. According
                to the National Sleep Foundation,\25\ there are several medical
                conditions or treatments of those conditions that may affect alertness.
                They include, but are not limited to, obstructive sleep apnea,
                insomnia, periodic limb movement disorder (restless leg syndrome),
                hypersomnia/narcolepsy (excessive daytime sleepiness), delayed sleep
                phase syndrome (circadian misalignment), depression, anxiety,
                [[Page 83491]]
                bruxism (teeth grinding), night sweats, night terrors, nocturia (waking
                several times throughout the night to urinate), poor sleep efficiency,
                and residual effects of neurological damage (e.g., stroke).
                ---------------------------------------------------------------------------
                 \25\ https://sleepfoundation.org/sleep-disorders-problems.
                ---------------------------------------------------------------------------
                 Scheduling issues. Systemic or particular
                scheduling and crew-calling practices and issues may affect
                opportunities for employees to obtain sufficient quality and quantity
                of sleep. Related issues that increase fatigue risks include, but are
                not limited to, the following:
                 On-duty call practices;
                 Work and rest cycles;
                 Frequency and duration of days off;
                 Changes in start times;
                 Policies regarding napping; and
                 Policies and practices regarding marking-off.
                 The level of predictability of work assignments, particularly those
                assignments that occur at night, can influence the ability of employees
                to anticipate work assignments and obtain necessary off-duty sleep.
                Note that work shift or duty tour predictability alone will not
                necessarily eliminate fatigue risk, and it is possible for highly
                predictable schedules to also have high exposure to fatigue. Other
                factors such as time of shift, work-to-rest ratio, and the speed and
                direction of shift rotation may also play a role in the employee's
                ability to plan for and obtain sufficient sleep.\26\
                ---------------------------------------------------------------------------
                 \26\ Rosa, R.R. & Colligan, M.J., Plain language about shiftwork
                (DHHS [NIOSH] Publication No. 97-145) (1997), Cincinnati, OH:
                National Institute for Occupational Safety and Health, available at:
                http://www.cdc.gov/niosh/docs/97-145/pdfs/97-145.pdf.
                ---------------------------------------------------------------------------
                 An FRA report \27\ found that high variability in shift start times
                contributes to fatigue. Furthermore, FRA research also established that
                the probability of rail accidents increases as fatigue increases.\28\
                Thus, reducing start time variability could potentially increase
                safety. In addition to examining the relationship between start time
                variability and fatigue, the report contains information on statistical
                methods, including analyzing variance of start times and calculating a
                hazard function, which can be used to compare work locations, types of
                jobs, and changes in policies and procedures, with regard to fatigue.
                ---------------------------------------------------------------------------
                 \27\ Raslear, T.G., Start time variability and predictability in
                railroad train and engine freight and passenger service employees
                (Report No. DOT/FRA/ORD-14/05) (2014), Washington, DC: U.S.
                Department of Transportation.
                 \28\ Raslear, T.G., Hursh, S.R., & Van Dongen, H.P.A.,
                Predicting cognitive impairment and accident risk, in H.P.A. Van
                Dongen & G.A. Kerkhof (Eds.), Progress in Brain Research, Vol. 190
                (pp. 155-167), Amsterdam, The Netherlands: Elsevier B.V. (2011).
                ---------------------------------------------------------------------------
                 Job characteristics can also be a factor, including, but not
                limited to, whether the work is physically demanding, whether the work
                requires extended travel to a reporting point, and whether the
                employees are called upon to respond to emergencies. In general, a
                railroad that effectively manages the combined effects of crew
                scheduling, employee rostering, additional tasks assigned to employees,
                schedule changes, and other factors should succeed at minimizing
                fatigue-inducing conditions.
                2. Assessing Risks Associated With Identified Hazards
                 As mandated by the RSIA, a FRMP must systematically identify
                fatigue hazards and evaluate fatigue safety risks on the railroad
                system. The goal of this hazard analysis is to identify work schedules
                and other conditions that put employees at risk for a level of fatigue
                that compromises safety.
                 Different jobs may have different fatigue related risks. As such,
                it is important to examine the hazards associated with each job. A
                systematic assessment of risk involves: (1) Determining the severity
                and likelihood of potential incidents associated with the hazards
                identified; (2) assessing risk by evaluating the relative risk of each
                identified hazard and how it impacts established safety performance
                targets and/or by ranking hazards based on risk; and (3) systematically
                determining the order in which risks should be addressed. Selecting the
                criteria and methods for establishing priorities in advance will
                promote consistent decision making over time. However, flexibility is
                needed as risk tolerance levels or prioritizations can change over time
                as circumstances dictate.
                 One tool that railroads may want to consider using to assess their
                fatigue-related risk is a biomathematical model. A biomathematical
                model of performance and fatigue that has been properly validated and
                calibrated predicts accident risk based on analyzing identified periods
                of wakefulness and periods available for sleep. Validation of a
                biomathematical model of human performance and fatigue means
                determining that the output of the model actually measures human
                performance and fatigue levels. There are two dimensions to this
                validation. The first is that the model must be demonstrated to be
                consistent with currently established science in the areas of human
                performance, sleep, and fatigue level. The second part of the
                validation process involves determining that the model output has a
                statistically reliable relationship with the risk of a human-factors
                accident caused by fatigue, and that the model output does not have
                such a relationship with accident risks not associated with human
                factors.
                 Calibration of the biomathematical model involves the assignment of
                numerical values to represent aspects of empirical observations,
                similar to marking degrees on a thermometer. In the case of human
                fatigue level and performance, the calibration of a fatigue scale would
                start with the assignment of values ranging from ``not fatigued'' to
                ``severely fatigued.'' The calibration process starts during the
                validation process with the assignment of model output values to data
                bins for ``not fatigued'' and ``severely fatigued.'' The next step
                consists of determining the fatigue threshold. Given a scale for human
                fatigue level and performance, and a relationship between that scale
                and human factors accident risk, a final calibration point would
                determine the value at which fatigue becomes unacceptable because the
                increase in accident risk at that level compromises safety; this is the
                fatigue threshold. Railroads choosing to use biomathematical fatigue
                modeling in their schedule analysis will need to establish a fatigue
                threshold.
                 Currently, FRA has validated and calibrated two commercially
                available biomathematical fatigue models. These are the Fatigue
                Avoidance Scheduling Tool (FAST) and the Fatigue Audit InterDyne
                (FAID). However, any validated and calibrated biomathematical fatigue
                model may be used in schedule analysis. An FRA-sponsored report details
                how any biomathematical fatigue model may be validated and
                calibrated.\29\
                ---------------------------------------------------------------------------
                 \29\ Hursh, S.R., Raslear, T.G., Kaye, A.S., & Fanzone, J.F.,
                Validation and calibration of a fatigue assessment tool for railroad
                work schedules, summary report (Report No. DOT/FRA/ORD-06/21)
                (2006), Washington, DC: U.S. Department of Transportation.
                ---------------------------------------------------------------------------
                 FRA expects that new methods for measuring and assessing fatigue
                risk will continue to be developed. If the system provides a
                scientifically valid measure of fatigue risk, whether using a
                biomathematical modeling tool or another system, its use is acceptable
                for purposes of developing and implementing an FRMP.
                 As discussed below, there are many ways to measure fatigue risk.
                The system or metric a railroad ultimately chooses to measure its
                fatigue risk will depend on a variety of factors and will be unique to
                each railroad. For example, regardless of whether scheduled service
                [[Page 83492]]
                is covered under statutory HOS requirements (49 U.S.C. Ch. 211),
                passenger train employee HOS regulations (49 CFR part 228, subpart F),
                or no HOS limitations, a railroad should consider whether to include in
                its FRMP an analysis of at least two consecutive cycles of the work
                schedules (the period within which the work schedule repeats) of its
                safety-related railroad employees. Analyzing more than one cycle of a
                work schedule can provide information about cumulative fatigue effects
                that would not be apparent if only one work schedule cycle were
                analyzed. However, railroads will need to determine how many work
                schedule cycles to examine based on factors such as start time
                variability, shift start and end time, and type of work being
                performed.
                 When looking at job tasks, some form of a Haddon matrix can be
                helpful in determining the risk associated with a particular hazard.
                Figure 2 shows a basic Haddon risk matrix, which can be customized to
                represent categories of probability and severity that are meaningful
                and useful to the railroad. Such a matrix provides a visual
                representation of risks. As shown in the matrix, when the probability
                of an incident is low and severity is low, the risk is also low.
                Conversely, when the probability of an incident is high and severity is
                high, the risk is also high.
                [GRAPHIC] [TIFF OMITTED] TP22DE20.001
                 For example, overnight schedules will inevitably include the period
                identified as the Window of Circadian Low.\30\ This low point in
                performance could be evaluated in relation to the duties to be
                performed at that time because an expected raised level of fatigue is
                of greater concern if it coincides with the performance of critical or
                difficult tasks.
                ---------------------------------------------------------------------------
                 \30\ The Window of Circadian Low is the time between 2:00 a.m.
                and 6:00 a.m. where individuals are normally adapted to sleep and
                performance of tasks during this period may be degraded. See
                Advisory Circular 120-100, Basics of Aviation Fatigue, 06/07/10,
                U.S. Department of Transportation.
                ---------------------------------------------------------------------------
                 Using a fatigue model can be helpful for determining both frequency
                and severity of fatigue risk associated with specific schedules.
                Modeling is extremely useful because it applies scientific principles
                about fatigue to find the specific operational and employee factors
                that could contribute to significant performance changes due to
                fatigue. In general, modeling cannot consider non-duty-related causes
                of fatigue, individual differences related to sleep loss tolerance, and
                individual differences in circadian phase and amplitude. Because of
                these limitations, modeling should never be used to contradict an
                individual's reported fatigue level. However, these models can take
                into account the complex interactions among human physiology, work, and
                rest times. In the absence of such a model, the interaction of these
                factors would be very difficult to specify.
                 For example, if a fatigue model identified a particular type of
                work schedule that would benefit from fatigue mitigation, the railroad
                may discover underlying systems issues and factors (e.g., inadequate
                rest facilities, lack of napping opportunities) that not only
                contribute to fatigue-related risks on that work schedule, but also on
                other schedules. The use of fatigue modeling in this way provides
                railroads with a method for systematically identifying and addressing
                the overall underlying system risks--not just the risks for a given
                work schedule.
                3. Prioritizing Risks and Implementing Mitigation
                 Risk assessment processes must include a method for determining
                which risks most urgently require mitigation, which could be addressed
                at a later time, and which are minor enough that simply monitoring the
                hazard would be
                [[Page 83493]]
                sufficient. Methods commonly used in Safety Management Systems include,
                but are not limited to, ranking all risks based on their risk score, or
                setting a risk tolerance threshold. If the risk assessment process
                includes a risk tolerance threshold, hazards whose associated risk is
                above that threshold should be addressed; those with risk below the
                threshold need not be mitigated, but should be monitored for change. If
                a risk tolerance threshold is not used, the risks should be tackled in
                whatever priority order is established during the risk assessment. Once
                the assessment of risks associated with fatigue hazards has been
                completed, as part of their FRMP, railroads must develop and implement
                mitigations to reduce as many of those risks as possible.
                 Based on an analysis of the factors that lead to fatigue and
                practical mitigation alternatives, one or more mitigation options may
                be applied to reduce fatigue associated with specific schedules or
                situations. Risk mitigations are changes to the way things are done, or
                to the conditions under which things are done, that can reduce either
                the likelihood or the severity of a hazard. Examples of mitigations
                range from small actions, such as replacing a faded sign to improve
                visibility, to very large interventions, such as a system-wide rule
                change or technology implementation and associated training. The
                mitigations selected must be tailored to address at least one of the
                risks assessed. Railroads should, however, be alert to potential
                unintended consequences of mitigations, and be careful to select
                mitigations that minimize the possibility of inadvertently increasing
                other risks.
                 There are many ways railroads can mitigate the specific risk types
                that are required under the RSIA as part of an FRMP to be considered
                for mitigation. Below are some examples of how a railroad may mitigate
                these fatigue risks.
                 If the risk assessment shows that fatigue risks to the population
                of safety-related railroad employees associated with general health and
                medical conditions meet the railroad's established criteria for
                requiring mitigation, there are several approaches that can be taken.
                The railroad can establish new policies, such as those requiring
                periodic screening for specific medical conditions. The railroad can
                establish practices (e.g., exercise breaks or making healthy foods more
                available) that encourage greater general health and fitness to reduce
                the likelihood of sleep apnea. The railroad can also take steps to
                increase awareness of medical conditions that affect alertness. This
                can be accomplished by providing information about the specific medical
                condition, its risk factors, prevalence, and how to recognize symptoms,
                or by identifying when to seek treatment, how to obtain a diagnosis,
                and treatment options.
                 Information relevant to determining when to seek treatment can
                include the time of onset, duration of symptoms, related health
                factors, comorbid conditions, and observations from the employee or
                family. Observation of these factors can be helpful in distinguishing a
                condition such as transient insomnia, which often resolves on its own,
                from chronic insomnia, which frequently requires medical treatment.
                Railroads could consider informing their safety-related employees that
                information from family members may provide insight into a sleep
                disorder of which an employee may otherwise be unaware.
                 Railroads can collect information regarding the medical
                professionals involved in diagnosis. For some disorders, this may only
                involve an individual's primary care physician. Other disorders may
                require consultation from a neurologist, sleep specialist, cognitive
                behavioral therapist, or other medical professionals. In addition, it
                may be helpful to list or describe the diagnostic tests involved and
                the typical time required to obtain diagnosis. For example, a diagnosis
                of obstructive sleep apnea may require a sleep study such as a
                polysomnography, which generally requires an individual to spend the
                night in a sleep center.
                 Lastly, treatment options could be discussed. For some sleep
                disorders, behavioral modifications or lifestyle changes, such as
                weight loss, may be sufficient to address the medical condition. Other
                medical conditions may require breathing assistance via continuous
                positive airway pressure, medical devices (such as night guards or
                mandibular advancing devices), or medication.
                 Sometimes scheduling issues affect the opportunities of safety-
                related railroad employees to obtain sufficient quality and quantity of
                sleep. When the risk assessment determines that the risks associated
                with those schedules meets the railroad's established criteria for
                requiring mitigation, methods for mitigating those risks could include:
                (1) Identifying methods to minimize accidents and incidents that occur
                as a result of working at times when scientific and medical research
                has shown that increased fatigue levels disrupt employees' circadian
                rhythm; and (2) developing and implementing alertness strategies, such
                as policies on napping, to address acute drowsiness and fatigue while
                an employee is on duty.
                 Alertness strategies are generally classified into two broad
                categories: Preventative and operational. Preventative countermeasures
                are designed to minimize sleep loss and reduce the disruption to
                circadian cycles. The benefits of preventative countermeasures can be
                long-lasting.\31\ Operational countermeasures are designed to enhance
                alertness and task performance and are generally only effective for a
                short time.\32\
                ---------------------------------------------------------------------------
                 \31\ Preventative countermeasures include: Adequate sleep/
                minimizing sleep loss, strategic napping at times such as before
                working or during an interim release period, good sleep habits/
                environment to maximize opportunities for good quality sleep,
                limiting work schedule modification/maximizing schedule
                predictability, diet, exercise, fatigue education, model-based
                schedule optimization/innovative scheduling and staffing practices,
                and opportunities to identify, diagnose, and treat sleep disorders.
                 \32\ Operational countermeasures include: Alertness aids
                including, workplace napping, split sleep, rest breaks, self and
                peer monitoring, mental stimulation, worker status alerting or
                monitoring technologies, strategies for shifting an employee's
                biological clock, bursts of physical activity, increasing the number
                of consecutive hours of off-duty rest, during which an employee
                receives no communication from the employing railroad's managers,
                supervisors, officers, or agents, and avoiding abrupt changes in
                rest cycles for employees by improving schedule predictability.
                ---------------------------------------------------------------------------
                 Work schedule systems are typically designed to organize the timing
                and structure of work to maximize efficiency and productivity, and
                seldom are these schedules designed to minimize the safety risks
                associated with work schedules that are incompatible with human
                biological limitations, such as circadian rhythm.\33\ Fatigue risk in
                an industry that operates 24 hours a day, 7 days per week is not just
                dependent on how many hours per day a person is permitted to work, or
                the amount of time that a person is required to be off-duty between
                periods of work. Other significant factors that influence the level of
                fatigue risk include the time of day that an employee works, the number
                of consecutive hours worked, direction and frequency of schedule
                rotation, the number of consecutive days that an employee works, amount
                of sleep, and sleep quality. In addition, individual factors such as
                sleep disorders, age, and ``morningness/eveningness'' as well as
                natural circadian rhythms and environmental and social factors may
                affect one's
                [[Page 83494]]
                fatigue level and alertness.\34\ Developing work schedules that reduce
                the risks of fatigue as part of a systematic FRMP may help a railroad
                balance its productivity and safety needs.
                ---------------------------------------------------------------------------
                 \33\ Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules,
                sleep, fatigue, and accidents in the US railroad industry, Fatigue:
                Biomedicine, Health & Behavior, 1, 99-115 (2013), available at:
                http://www.fra.dot.gov/eLib/details/L04272.
                 \34\ Horne, J.A., & [Ouml]stberg, O., A self-assessment
                questionnaire to determine morningness-eveningness in human
                circadian rhythms, International Journal of Chronobiology, 4, 97-110
                (1976).
                ---------------------------------------------------------------------------
                4. Summary of the Work of the FRMP Working Group's Task Forces
                 The FRMP Working Group's Task Forces extensively discussed
                mitigation of identified fatigue risks in the areas set forth in the
                RSIA.
                a. The Education and Training Task Force
                 The Education and Training Task Force focused on the content and
                dissemination of training on the fatigue issues specific to the
                railroad industry. The Education and Training Task Force began by
                preparing a document summarizing existing fatigue training and
                education materials and highlighting the diversity of the materials and
                some of the major topics they covered. The document also includes
                information on other fatigue educational resources, including The
                Railroaders' Guide to Healthy Sleep website, existing FRA fatigue-
                related publications, other rail-related fatigue training and
                educational resources, and general fatigue resources.
                 The Education and Training Task Force also created the ``Training
                Topics'' document, which identifies appropriate fatigue-related
                training topics. The ``Training Topics'' document covers four major
                categories: Introductory fatigue training, off-duty fatigue issues,
                preventative strategies, and operational strategies. The Task Force
                members agreed on the content of most of the sections and subsections.
                A few topics represented major areas of concern for both railroad labor
                and railroad management.
                 Both labor and management members of the Task Force asked that a
                section on the role of individual differences in fatigue related to
                vulnerability, countermeasure efficacy, and performance be included in
                the ``Training Topics'' document as a topic for introductory fatigue
                training.
                 The Education and Training Task Force thoroughly discussed the
                ``Training Topics'' section on shiftwork as a cause of fatigue. Much of
                this discussion centered on predictability issues inherent in this type
                of work schedule and differing perspectives on how to address
                predictability.
                 Members of the Education and Training Task Force representing labor
                organizations also expressed major concerns with the ``Training
                Topics'' section on commuting. Specifically, labor did not feel the
                commuting section adequately captured the extended commuting
                requirements of some employees (e.g., maintenance-of-way), and the
                concern that extended commuting is a required activity that contributes
                to employee fatigue, even though it occurs during off-duty hours.
                 In 2019, FRA released a report examining the relationship between
                accidents and incidents involving maintenance-of-way employees and
                their work schedules to determine the role of fatigue in such accidents
                and incidents.\35\ This report may help address some of the concerns
                raised by the Education and Training Task Force regarding fatigue
                issues experienced by these employees.
                ---------------------------------------------------------------------------
                 \35\ Kumagai, J.K. & Harnett, M., Data analysis for maintenance-
                of-way worker fatigue, Washington, DC: Federal Railroad
                Administration (2019), retrieved from: https://www.fra.dot.gov/eLib/Details/L1984.3.
                ---------------------------------------------------------------------------
                 The section of the Training Topics document on scheduling had the
                most areas of concern and protracted discussion, particularly on the
                issue of schedule predictability.
                 The Task Force discussed that a fatigue education and training
                program must have the following characteristics to be effective: (1)
                The program must be technically correct, reflecting current scientific
                understanding of the issue being addressed; (2) information must be
                meaningful and useful to the intended audience; (3) the materials must
                be disseminated appropriately; and (4) the program's impact must be
                evaluated. Furthermore, the Task Force discussed the following basic
                elements of any fatigue training and education program.
                 (1) Fatigue definitions: Fatigue is a complex state that is
                characterized by a lack of alertness and reduced mental and physical
                performance, often accompanied by drowsiness.\36\ Railroads may also
                wish to provide other definitions that will be used throughout the
                training and education program, including those that are unique to the
                railroad.
                ---------------------------------------------------------------------------
                 \36\ United States Department of Transportation, Partnering in
                Safety: Managing Fatigue: A Significant Problem Affecting Safety,
                Security, and Productivity, p. 5 (1999).
                ---------------------------------------------------------------------------
                 (2) Signs and symptoms of fatigue: Although signs and symptoms of
                fatigue can vary among individuals in both their presence and
                magnitude, it is useful to review common signs and symptoms of fatigue.
                These should not be limited to physiological symptoms such as excessive
                blinking, yawning, or physiological discomfort, but also should include
                fatigue-related performance decrements such as increased reaction time.
                 (3) Causes of fatigue: Although individual differences play a
                significant role in how an individual will react to different causes of
                or risk factors for fatigue, some of the main causes of fatigue should
                be highlighted. These include: Amount of sleep, quality of sleep,
                amount of time since last sleep (i.e., number of continuous hours
                awake), time of day (circadian rhythm), workload and time on task,
                amount of recuperative time between wakeful episodes, sleep disorders
                and co-morbid conditions (e.g., stress, depression, anxiety, post-
                traumatic stress disorder), general health, and family factors
                (including caregiver responsibilities). In addition, employees may
                provide anecdotal information of fatigue factors for a particular job
                and a railroad may consider this information in addressing causes of
                fatigue in its training program.
                 (4) Circadian rhythm: An individual's circadian rhythm dictates
                when he or she will be most alert and at what times he or she will feel
                the most fatigued. Employees should have a general understanding of the
                circadian rhythm, how it affects fatigue levels, how it is impacted by
                the light-dark cycle, and its role in such processes as body
                temperature, brain wave activity, and other biological functions.
                 (5) Individual differences: As part of a fatigue training and
                education program, the role individual differences play in fatigue
                should be understood. For example, there is a great deal of variability
                of sleep requirements among individuals. Some individuals may feel
                rested and alert after as few as 5 hours of sleep, while others may
                require 10 or more hours of sleep to feel rested and alert. These sleep
                requirements vary due to such factors as the exact phase and amplitude
                of an individual's circadian rhythm, activity level, age, fatigue
                sensitivity, and health. Furthermore, some individuals may be more
                sensitive to the effects of fatigue, and efficacy of countermeasures
                may vary depending on the individual.
                 (6) Fatigue misconceptions: There are some misconceptions
                associated with fatigue. Individuals are often poor judges of both
                their own fatigue level and the efficacy of fatigue countermeasures.
                This is an opportunity to debunk certain ineffective countermeasure
                myths and also to discuss the limitations associated with effective
                countermeasures. Certain stereotypes regarding fatigue can be
                [[Page 83495]]
                addressed as well. For example, experiencing fatigue does not
                automatically indicate weakness or a lack of motivation.
                 (7) Shiftwork: Many railroads operate 24 hours a day, 7 days a
                week, 365 days a year. This operational schedule requires employees to
                work different shifts. Passenger and freight operations, different
                railroad classes, and different jobs will all have different shiftwork
                needs. Some jobs will work a dedicated shift, while other jobs can be
                unpredictable and be based on a variety of factors including train
                schedules, employee availability, and other needs. When discussing
                shiftwork, training content will be influenced by a particular
                railroad's operations and collective bargaining agreements. However,
                discussions of shiftwork should provide information on the fatigue
                risks associated with night work, split shifts, consecutive shifts
                worked, and working different shifts throughout the week. This
                information should include strategies to cope with those shifts
                occurring during circadian lows.
                 (8) Illnesses and stress: Although it would be impractical to
                discuss the impact of every possible illness and stressor on fatigue,
                it nevertheless is worthwhile to discuss how illnesses and stress in
                general can impact sleep quality. Furthermore, some stressors and
                illnesses can lead to sensitization to fatigue-inducing factors.
                 (9) Consequences of fatigue: The potential consequences of fatigue
                are numerous and varied. However, from a training perspective, the key
                information to convey is the relationship between fatigue and
                performance. Although individual differences will influence how fatigue
                affects performance, in general, as fatigue levels increase, task
                performance decreases, and this decrease in performance increases
                accident risk.
                 (10) Introduction to FRA FRMP regulations: A railroad may choose to
                provide an overview of FRA regulations regarding the requirements for
                FRMPs. This overview can highlight any changes to operations as a
                result of the promulgation of the FRMP regulation as well as highlight
                the key requirements that all FRMPs must contain.
                 (11) Railroad FRMP: Following information on FRA FRMP regulations,
                a railroad may wish to take time to familiarize its employees with its
                own FRMP. Railroads should highlight any new policies or procedures
                associated with the creation of the FRMP as well as detail any changes
                or benefits that have resulted from its implementation. A railroad may
                also wish to provide employees with a mechanism to provide feedback
                about the FRMP as part of the railroad's own periodic review process.
                In addition, a railroad should familiarize its employees with its
                procedures and processes for reporting fatigue levels and fatigue mark-
                off policies.
                 As provided in the RSIA, any training and education program should
                be based on a foundation of the most current medical and scientific
                research; \37\ FRA interprets this to include relevant statistical
                information, to the extent possible. FRA notes that resources that
                provide information on the prevalence of sleep disorders, the number of
                Americans not obtaining adequate sleep, and the mental and physical
                implications that result are available and updated annually.\38\ Sleep
                research collected from and related to railroad employees of various
                crafts is also available.
                ---------------------------------------------------------------------------
                 \37\ 49 U.S.C. 20156(f)(3)(A).
                 \38\ Example resources include:
                 Calabrese, C., Mejia, B., McInnis, C.A., France, M., Nadler, E.,
                & Raslear, T.G., Time of day effects on railroad roadway worker
                injury risk, Journal of Safety Research, 61, pp. 53-64 (2017).
                 Dorrian, J., Baulk, S.D., & Dawson, D., Work hours, workload,
                sleep and fatigue in Australian Rail Industry employees, Applied
                Ergonomics, 42(2), pp. 202-209 (2011).
                 Dorrian, J., Hussey, F., & Dawson, D., Train driving efficiency
                and safety: Examining the cost of fatigue, Journal of Sleep
                Research, 16, pp. 1-11 (2007).
                 Gertler, J., Difiore, A., & Raslear, T., Fatigue Status of the
                U.S. Railroad Industry, Washington, DC: U.S. Department of
                Transportation, Federal Railroad Administration (2013).
                 Gertler, J., & Viale, A., Work Schedules and Sleep Patterns of
                Railroad Maintenance of Way Workers, Washington, DC: U.S. Department
                of Transportation, Federal Railroad Administration (2006).
                 Kumagai, J. & Harnett, M. Data Analysis for Maintenance-of-Way
                Worker Fatigue (2019), available at: https://www.fra.dot.gov/eLib/details/L19843#p1_z50_gD_lRT.
                 Sussman, D., & Coplen, M., Fatigue and Alertness in the United
                States Railroad Industry Part 1: The Nature of the Problem,
                Transportation Research Part F: Traffic Psychology and Behaviour,
                3(4), pp. 211-220 (2000).
                 Raslear, T.G., Gertler, J., & DiFiore, A., Work schedules,
                sleep, fatigue, and accidents in the US railroad industry, Fatigue:
                Biomedicine, Health & Behavior, 1, pp. 99-115 (2013), available at:
                http://www.fra.dot.gov/eLib/details/L04272.
                 https://www.cdc.gov/sleep/index.html and https://www.sleepfoundation.org./
                ---------------------------------------------------------------------------
                 The Education and Training Task Force also identified training
                topics addressing off-duty fatigue issues and preventative strategies.
                These included common sleep disorders, physiological versus subjective
                assessments of fatigue, lifestyle factors, nutrition and hydration,
                exercise, substance use, the home environment, and commuting.
                 The Task Force also created a ``Dissemination Strategies'' document
                outlining steps railroads should consider when choosing delivery
                approaches for fatigue education and training, and suggesting methods
                railroads could use for successful evaluation of a fatigue education
                and training program. The ``Dissemination Strategies'' document
                identifies and discusses the following ten elements of an effective
                dissemination and evaluation plan listed below.
                 1. Goals: The first step in an effective dissemination and
                evaluation plan is determining and documenting the goals for the
                training and education program. The primary question to ask at this
                step is: What is the desired outcome of the training and education
                program? Different railroads may have different training goals and
                these goals will help shape how information is presented to employees.
                 2. Objectives: When considering objectives of a fatigue training
                and education program, determine specific areas of accomplishment for
                each goal. Once those areas have been established, the next step is to
                determine what will be required to measure success.
                 3. Measuring Success: There is no single ``correct'' way to measure
                success. However, any measure of success should indicate if the
                material reached the intended audience, was understood, and had a
                positive effect. Evaluation strategies may be direct, such as
                administering a quiz to test knowledge of a particular topic, or
                indirect, such as looking at safety culture change as a result of
                training. Neither method is superior to the other, but multiple
                evaluation strategies may provide a more comprehensive understanding of
                program efficacy.
                 4. Employees Covered: An effective dissemination and evaluation
                plan should identify the employees covered by the different elements of
                a training and education program. There may be some elements of a
                program that apply to all railroad employees, while other elements may
                only apply to a particular craft, shift, or schedule type. At this
                stage, thought should also be given to any special needs a covered
                group may have. For example, if a large percentage of a covered group
                does not have email access, disseminating information via email would
                be neither practical nor effective.
                 5. Content: Perhaps the most important element to consider when
                developing a dissemination and evaluation plan is the content to be
                presented. At this step, proposed fatigue training and education
                content should be reviewed to make sure it is accurate and relevant to
                the covered groups.
                 6. Source: Care should be given to ensure that information
                presented
                [[Page 83496]]
                comes from credible and trusted sources.
                 7. Presentation Medium: At this stage in the process, the program
                designer should determine the most effective methods to present
                different elements of the fatigue training and education program. Some
                information may be best suited for in-person training while other
                information might be best conveyed through publications. Some
                presentation media to consider include in-class training, informational
                videos, handouts, peer-to-peer efforts, job briefings, and conferences
                or other meetings. Depending on the covered group's access to the
                internet, Web resources such as Web-based training, emails, websites,
                blogs, and social media could also be used. The preceding examples are
                not an exhaustive list, and each railroad will need to tailor its
                presentation media based on the identified goals, objectives, and
                employees to be covered.
                 8. Access: Fatigue training and education should be an ongoing
                process. Therefore, it is important that employees have easy access to
                information. Employees should have a way to revisit information that
                was previously presented. Examples of making information accessible
                could include providing access to fatigue presentations on the company
                Intranet after an initial classroom presentation, handouts after a one-
                time job briefing, or posters that highlight key points.
                 9. Availability: At this step, a railroad developing a fatigue
                training and education program should consider strategies for promoting
                awareness of the availability of training and educational materials.
                 10. Challenges: The challenges related to effectively disseminating
                and evaluating information as part of a fatigue training and education
                program will vary greatly. These challenges could include a variety of
                issues, such as difficulty reaching a particular group, lack of
                resources to present a topic as originally planned, or even glitches in
                Web technology. Determining how best to deliver information in a manner
                that is understandable, appropriate, and engaging to different employee
                groups will present its own set of challenges. At this stage, potential
                challenges should be identified as well as solutions for overcoming or
                mitigating these challenges.
                 Finally, the Education and Training Task Force created a document
                that highlights and explains two general categories of fatigue
                countermeasures (preventative and operational), and provides examples
                of each. Preventative countermeasures, as the name suggests, are
                countermeasures designed to minimize sleep loss and reduce the
                disruption of circadian cycles and the benefits of preventative
                countermeasures can be long-lasting. Operational countermeasures are
                designed to enhance alertness and task performance while on duty and
                are generally only effective for a short time.
                b. Scheduling Task Force
                 The FRMP Working Group's Scheduling Task Force discussed the
                scheduling issues that affect fatigue. However, several issues
                prevented agreement on scheduling including: (1) The need to
                differentiate between employees covered by HOS limitations (covered
                service employees) and employees not covered by such requirements; (2)
                the need for waivers and/or pilot projects to implement scheduling
                practices that might conflict with existing HOS limitations; (3)
                disagreement on whether using biomathematical fatigue models is
                appropriate for freight operations; (4) potential conflict with
                existing collective bargaining agreements; and (5) how much emphasis
                should be placed on an employee's work schedule predictability. The
                Scheduling Task Force did not produce a document.
                c. Infrastructure and Environment Task Force
                 The Infrastructure and Environment Task Force provided guidelines
                it suggested railroads should consider to mitigate fatigue when
                employees are involved in emergency work. The Task Force interpreted an
                emergency based on the nonapplication language in the HOS laws at 49
                U.S.C. 21102(a). Specifically, the ``Emergency Work'' document provides
                that an emergency for purposes of the guidelines is defined in 49
                U.S.C. 21102(a)(1)-(4), which states that the HOS requirements do not
                apply to situations involving a casualty, an unavoidable accident, an
                act of God, or a delay resulting from a cause unknown and unforeseeable
                to a railroad carrier or its officer or agent in charge of the employee
                when the employee left a terminal.
                 This definition incorporates a wide variety of emergency
                situations, including those referred to in section 20156(f)(3)(C),
                ``derailments and natural disasters, or engagement in other intensive
                working conditions.'' The employees responsible for responding to these
                emergency situations may include employees performing functions not
                covered by HOS requirements, and the ``Emergency Work'' document makes
                clear that the Infrastructure and Environment Task Force intended it to
                apply to these employees as well. For example, the ``Emergency Work''
                document includes provisions such as relief assignments when an
                emergency is anticipated to extend more than 16 hours, and provisions
                to offer relief lodging for employees both between shifts of extended
                work at an emergency location, and, if necessary, for an employee to
                rest before commuting home after an extended period of emergency
                service. Such provisions would provide some protection against fatigue
                for those employees not subject to HOS requirements and, if the
                emergency situation resulted in the nonapplication of the HOS laws, for
                employees performing service normally covered by the HOS limitations.
                 The Task Force also created two documents; ``Accommodations'' and
                ``Dispute Resolutions,'' focused on mitigating fatigue related to
                issues at lodging facilities. The first document, ``Accommodations,''
                includes guidelines for accommodations where employees rest during off-
                duty periods, and the second document, ``Dispute Resolutions,''
                provides dispute resolution procedures for issues arising with lodging
                facilities that interfere with an employee's ability to rest.\39\ The
                Task Force made clear that the ``Accommodations'' and ``Dispute
                Resolution'' documents were intended to apply to all employee lodging,
                even lodging that is not ``railroad provided'' (e.g., commercial
                hotels).
                ---------------------------------------------------------------------------
                 \39\ Under 49 U.S.C. 21106, a railroad may provide sleeping
                quarters for employees, and any individuals employed to maintain the
                right-of-way of a railroad carrier, only if the sleeping quarters
                are clean, safe, and sanitary, give those employees and individuals
                an opportunity for rest free from the interruptions caused by noise
                under the control of the carrier, and provide indoor toilet
                facilities, potable water, and other features to protect the health
                of employees. Further, 49 CFR part 228, subpart C, provides
                additional requirements for railroad-provided sleeping quarters.
                ---------------------------------------------------------------------------
                 The Task Force indicated that the accommodations guidelines are
                intended to provide elements for discussion during the required
                consultation between management and labor about a railroad's FRMP,
                rather than to provide minimum standards for lodging facilities. The
                Task Force did not expect every lodging facility would meet all of the
                listed criteria. The Task Force agreed that while the listed elements
                were desirable, they may not be possible at all locations, and, in some
                cases, collective bargaining agreements might provide for other
                arrangements. For example, while the guidelines recommend a single
                occupancy room, some existing labor agreements may provide for four
                employees to a room. Similarly, while a full or double bed
                [[Page 83497]]
                may be preferred, there may be locations where this is not an option
                and only single beds are available at the only available lodging
                facility.
                 The ``Dispute Resolution'' document recognizes that employees will
                first seek to resolve issues at lodging facilities with on-site staff,
                such as the front desk at a hotel. The ``Dispute Resolution'' document
                recommends that FRMP plans include a railroad contact with authority
                over lodging decisions and require that contact to make a good faith
                effort to resolve lodging issues in a timely manner so the employee can
                obtain adequate rest before returning to duty. For example, if the heat
                is not working in a given room, the lodging facility will likely move
                the employee to a different room. However, if there were no other rooms
                available, or if the issue were something like electric power being out
                at an entire facility, the railroad contact should become involved to
                assist the employee in finding alternate lodging.
                 The ``Dispute Resolution'' document provides that FRMP plans should
                contain a dispute resolution process covering sleeping accommodations
                provided by or through the railroad. It should be noted that this
                process is not intended to supplant or modify the requirements
                established by 49 CFR 228.333, Remedial action, as part of the Camp Car
                regulation. The Task Force suggested that any FRMP dispute resolution
                process should be designed to address problems associated with the
                sleeping accommodations that would interfere with an employee obtaining
                adequate rest. As part of the FRMP plan, the Task Force recommended
                that railroads identify a protocol for contacting a railroad
                representative should resolution with a lodging facility fail.
                 The Task Force identified parameters it recommended employer-
                provided lodging should meet to the extent practicable. FRA notes that
                interim rest facilities provided by passenger train operators under 49
                CFR 228.409, Requirements for railroad-provided employee sleeping
                quarters during interim releases and other periods available for rest
                within a duty tour, are subject to the requirements of that section. As
                such, the Task Force's suggested parameters are not applicable to
                interim rest facilities under Sec. 228.409. In addition, local labor
                agreements may supersede or supplement some of the elements of these
                parameters. The parameters the ``Dispute Resolution'' document
                identifies include structural factors, availability of meal
                accommodations, building safety and security, and personal hygiene and
                sanitation.
                 The Task Force ``Dispute Resolution'' document does not define
                ``adequate rest,'' nor does it specify the conditions at a lodging
                facility that would prevent an employee from obtaining adequate rest.
                Employees covered by HOS laws or regulations would be required to
                receive the amount of off-duty time provided under the relevant laws or
                regulations. For other employees, rest requirements may depend on the
                situation, or may be provided by a collective bargaining agreement or
                other mechanism. However, the Task Force ``Dispute Resolution''
                document suggests that if an issue arises at a lodging facility that
                interferes with an employee's ability to obtain rest, the employee
                should receive the amount of rest he or she would have had if the
                lodging issue had not occurred. For example, if there are no towels in
                the room when an employee arrives, but the front desk promptly brings
                towels upon request, this should not hinder the employee's ability to
                get adequate rest. On the other hand, if an employee is provided a room
                with a broken bed, and it takes five hours to locate another room or
                bed, the railroad may need to adjust the time an employee is required
                to return to duty so the employee can obtain adequate rest.
                 Lastly, as part of its discussions, the Task Force identified
                circumstances when employees may have to work under excessive fatigue
                conditions. In these instances, when, despite best efforts, employees
                must work under conditions identified as having an excessive risk for
                fatigue, the Task Force discussed that the specific risks and hazards
                associated with operations under excessive fatigue should be
                identified. Once identified, an excessive fatigue protocol can be
                implemented for employees at risk. The Task Force suggested that
                railroads may wish to consider formalizing these protocols into a
                Workplace Fatigue Policy. They also suggested that a fatigue policy may
                be an effective way to communicate how operations will be handled when
                employees are working under fatigued conditions. This policy could be
                system-wide or site or craft specific. A fatigue policy may include
                information about: (1) Roles and responsibilities of employees and
                supervisors when working under excessive fatigue conditions; (2)
                maximum shift length; (3) control measures for specific jobs, tasks, or
                operations; (4) fatigue self-assessment checklists; (5) identification
                of errors that are more likely to happen when fatigued and procedures
                to reduce the likelihood of these errors; (6) procedures for managing
                employees working under excessive fatigue conditions; (7) procedures
                for reporting potential hazards and risks; and (8) procedures for when
                an employee is too fatigued to continue work (e.g., temporary work
                assignment).
                5. Tracking Performance
                 As required in 49 CFR 270.103(p)(1)(viii) and 49 CFR 271.105(c)(3),
                FRA proposes that each railroad must develop a system to track
                identified risks and mitigation strategies within the FRMP. Railroads
                must continually monitor all identified risks, not just risks that are
                currently being targeted for mitigation. As a railroad's FRMP matures,
                mitigation strategies are implemented, and operations change, risks
                will also change. A railroad may find that certain risks have been
                essentially eliminated, while others may have been significantly
                reduced, and previously undetected risks may emerge. As risks develop,
                the system must be able to incorporate these newly identified risks
                into their processes.
                 Evaluation of fatigue-related information might show that some
                mitigation strategies do not meet expectations for effectively reducing
                fatigue. It could also show that changes in schedules, the addition of
                new technologies, turnover in the workforce, added demands for service,
                and other operational changes could present new fatigue hazards or
                change the risks associated with hazards already known. When either of
                these circumstances arises, the fatigue risk landscape is altered, and
                the railroad should again use the risk factor analysis processes to
                address those changes.
                 For risks being mitigated, the railroad should note the date the
                mitigation strategy was implemented and track the progress and success
                of the mitigation strategy over time. Risks that are not mitigated or
                have not been mitigated to the extent desired should be evaluated for
                changes in mitigation strategies, as appropriate. Risks that have been
                successfully eliminated should be noted, and new risks that have
                emerged should be assessed for probability and severity and
                incorporated into the railroad's risk assessment catalog. Existing
                risks should also be reviewed for changes in probability and severity.
                As a railroad reviews its fatigue-related risks and risk tolerance, the
                risks to be mitigated and the types of mitigation strategy to be used
                may change over time. Evaluation might also show that some portion of
                the FRMP is not being implemented as designed. It could also identify
                aspects of the program that, even though they are working as
                [[Page 83498]]
                designed, are not effective. In any of these instances, the evaluation
                could lead to program improvements.
                 Finally, consistent with 49 CFR 271.107, an effective FRMP includes
                feedback mechanisms and regular information updates about the system to
                all affected employees to encourage cooperative participation in the
                FRMP.
                V. Section-by-Section Analysis
                 FRA proposes to amend 49 CFR part 270 (SSP) by adding a new subpart
                E, and to amend 49 CFR part 271 (RRP) by adding new subpart G. As
                proposed, each of these new subparts would be titled ``Fatigue Risk
                Management Programs;'' substantively identical; and set forth the
                requirements for railroads to develop and implement FRMPs as part of
                their SSPs or RRPs. FRA also proposes to amend: Sec. 270.103(a)(1) to
                ensure a railroad's SSP plan includes subpart E, by replacing the word
                ``section'' with the word ``part''; Sec. 271.101(a) by adding an FRMP
                to the list of required elements of an RRP; and Sec. 271.201, to
                include an FRMP plan as a required component of an RRP plan.
                 The new subparts would require each railroad subject to part 270 or
                part 271 (covered railroads) to establish and implement an FRMP that is
                supported by an FRA-approved written FRMP plan, as a component of a
                railroad's SSP or RRP. This proposed rule would also require covered
                railroads to review their FRMP annually, and if necessary, make FRA-
                approved updates to their plans. FRA is proposing this rule in its
                effort to improve rail safety continually and to satisfy the statutory
                mandate in 49 U.S.C. 20156. FRA seeks comments on all aspects of the
                proposed rule.
                Sections 270.401 and 271.601--Definitions
                 Proposed Sec. Sec. 270.401 and 271.601 contain definitions for
                terms used in this NPRM. The sections include proposed definitions for
                the terms: Contributing factor, fatigue, fatigue-risk analysis, FRMP,
                FRMP plan, and safety-related railroad employee. The proposed
                definitions are intended to clarify the meaning of important terms used
                in this proposed rule and to minimize potential misinterpretation of
                the regulations. FRA is proposing to define ``contributing factor'' as
                a circumstance or condition that helps cause a result (i.e., fatigue).
                Contributing factors do not necessarily cause fatigue by themselves,
                but they can increase the likelihood fatigue will occur, or can
                increase the severity of fatigue when it does occur. Eliminating or
                mitigating contributing factors may not eliminate fatigue and
                associated risk, but doing so can moderate the frequency with which it
                occurs, or reduce the severity of fatigue consequences.
                 While the RSIA did not define ``fatigue,'' FRA is proposing to
                define ``fatigue'' consistent with the DOT operational definition \40\
                of the term, as ``a complex state characterized by a lack of alertness
                and reduced mental and physical performance, often accompanied by
                drowsiness.''
                ---------------------------------------------------------------------------
                 \40\ United States Department of Transportation, Partnering in
                Safety: Managing Fatigue: A Significant Problem Affecting Safety,
                Security, and Productivity, 1999; p. 5.
                ---------------------------------------------------------------------------
                 FRA proposes to define ``fatigue risk analysis'' as a risk-based
                analysis that is focused on the hazards and risks associated with
                fatigue. In 49 CFR 271.103(b), a covered railroad is required to
                conduct a risk-based hazard analysis of its operations that includes:
                (1) Identification of hazards; and (2) a calculation of risk by
                determining and analyzing the likelihood and severity of potential
                events associated with those hazards. See also 49 CFR 270.5, definition
                of risk based hazard management. FRA proposes to define FRMP as fatigue
                risk management program, and the FRMP plan is the documentation that
                describes the processes and procedures a railroad uses to implement its
                FRMP.
                 Section 20156(f)(1) requires a railroad to have a fatigue
                management plan designed to reduce the fatigue experienced by ``safety-
                related employees.'' FRA proposes to define ``safety-related railroad
                employee'' consistent with the definition of the term in 49 U.S.C.
                20102. As proposed, ``safety-related railroad employee'' would mean a
                person: (1) Subject to 49 U.S.C. 21103, 21104, or 21105 or 49 CFR part
                228 subpart F (the hours of service laws and regulations); (2) involved
                in railroad operations, but not subject to the hours of service laws
                and regulations; (3) who inspects, installs, repairs or maintains
                track, roadbed, signal and communication systems, and electric traction
                systems including a roadway or railroad bridge worker; (4) who is a
                hazmat employee as defined in 49 U.S.C. 5102(3); (5) who inspects,
                repairs, or maintains locomotives, passenger cars, or freight cars; or
                (6) who is the employee of any person who enters into a contractual
                relationship with the railroad either to perform significant safety-
                related services on the railroad's behalf or to utilize significant
                safety-related services provided by the railroad for railroad
                operations purposes, if the person performs one of the functions
                identified in paragraphs (1) through (5).
                 The SSP and RRP rules do not use the term ``safety-related
                employee'' because the RSIA does not limit the railroad safety risk
                reduction requirement to these employees. See 49 U.S.C. 20156(a)-(e).
                FRA requests comment on whether the proposed definition of ``safety-
                related employee'' captures the intended scope of Congress's mandate
                for fatigue management plans in Section 20156.
                 FRA requests public comment on these proposed definitions and
                whether other terms used in this proposal should be defined.
                Sections 270.403 and 271.603--Purpose and Scope of a FRMP
                 Proposed Sec. Sec. 270.403 and 271.603 explain the purpose and
                scope of the proposed rule. As proposed, paragraph (a) of each section
                states that the purpose of the subparts is to require railroads to
                develop and implement FRMPs to improve railroad safety through
                structured, proactive processes and procedures to identify and mitigate
                the risks associated with fatigue on their employees.
                 Proposed paragraph (b) of these sections address the scope of the
                proposed rule and would require railroads to develop their FRMPs to
                reduce the fatigue of their safety-related railroad employees and to
                reduce the risk of railroad accidents, incidents, injuries, and
                fatalities where the fatigue of any of these employees is a
                contributing factor.\41\ Proposed paragraph (b) further requires each
                railroad, in developing its FRMP, to identify and evaluate,
                systematically, the fatigue-related railroad safety hazards and risks
                on its system, determine the degree of risk associated with each
                hazard, and manage those risks to reduce the fatigue that its safety-
                related railroad employees experience. This system-wide fatigue risk
                identification and evaluation process must account for the varying
                circumstances of railroad operations on different parts of its system.
                The railroad would then be required to employ in its FRMP the
                appropriately identified fatigue risk mitigation
                [[Page 83499]]
                strategies to address those varying circumstances.\42\
                ---------------------------------------------------------------------------
                 \41\ The RSIA requires railroads ``to reduce the likelihood of
                accidents, incidents, injuries, and fatalities caused by fatigue.''
                Fatigue is a complex and multifaceted condition with varying effects
                among individuals; however, it is not always the primary cause of an
                accident or incident. The presence of fatigue can increase the
                likelihood of an accident happening, or it can make the consequences
                of an accident more severe. FRA uses the term ``contributing
                factor'' to make clear that railroads may choose mitigations that
                address either the likelihood or the severity of an accident,
                incident, injury, or fatality caused in part by fatigue.
                 \42\ See 49 CFR 270.407(c) and 271.607(c).
                ---------------------------------------------------------------------------
                Sections 270.405 and 271.605--General Requirements; Procedure
                 These proposed sections set forth the rule's general requirements.
                Paragraph (a) in each of these sections would require each railroad
                subject to either RRP or SSP to establish and implement an FRMP fully
                as part of its SSP or RRP. As proposed, these paragraphs would also
                require each railroad to develop and implement an FRMP plan to support
                its FRMP. A railroad's FRMP plan would be required to meet the
                requirements of proposed Sec. 270.409 or 271.609, and be approved by
                FRA under the processes in subpart C of part 270 or subpart D of part
                271. Consistent with Section 20156's mandate for railroads to update
                their fatigue mitigation plans periodically, proposed paragraph (a)
                would also require railroads to update their FRMP plans as necessary as
                part of the annual, internal assessment of the railroad's SSP or RRP
                already required by existing Sec. Sec. 270.303 and 271.401. FRA
                believes the annual internal assessment should be sufficient for a
                railroad to determine whether any aspect of its FRMP plan requires
                updating. FRA requests comments on whether the annual internal
                assessment provides an appropriate mechanism and timing for evaluating
                and updating railroads' FRMP plans.
                 Proposed paragraph (b) of these sections would require a railroad
                to explain in its FRMP plan its method for analyzing fatigue risks and
                its process(es) for implementing its FRMP.
                 Proposed paragraphs (c) of these sections would require railroads
                to submit their FRMP plans to FRA for approval either within six months
                of publication of a final rule in this proceeding or within the
                applicable existing timelines in parts 270 and 271 for filing SSP or
                RRP plans. These paragraphs would also require railroads to follow the
                existing processes in parts 270 and 271 for submitting updates of their
                FRMP plans to FRA for approval.
                 Proposed paragraph (d) would require FRA to approve or disapprove
                railroads' FRMP plans (and any updates) under the existing approval
                processes in parts 270 and 271 applicable to FRA approval of railroad
                SSP plans and RRP plans.
                Sections 270.407 and 271.607--Requirements for an FRMP
                 Proposed Sec. Sec. 270.407 and 271.607 set forth the proposed
                requirements for railroads' FRMPs. As proposed, paragraph (a) of these
                sections sets forth the general requirement that a railroad subject to
                part 270 or 271 would have to establish and implement an FRMP that
                meets certain requirements.
                 Proposed paragraph (b) of these sections contains the minimum
                requirements for the fatigue-risk analysis part of a railroad's FRMP.
                These paragraphs specify that a railroad's fatigue-risk analysis must
                include identification of fatigue-related railroad safety hazards,
                assessment of the risks associated with those hazards, and
                prioritization of those risks for mitigation. The proposed paragraph
                also requires that the fatigue risk analysis consider, at a minimum,
                three categories of risk factors:
                 (1) General health and medical conditions that can affect the
                fatigue levels of safety-related railroad employees;
                 (2) scheduling issues that can affect the opportunities of safety-
                related railroad employees to obtain sufficient quality and quantity of
                sleep; and
                 (3) characteristics of each job category worked by safety-related
                railroad employees that can affect the fatigue levels and risk for
                fatigue of safety-related railroad employees.
                 Railroads are not limited to consideration of these three types of
                risk factors in their FRMPs and FRA encourages railroads to consider
                other relevant factors based on developments in fatigue science. The
                types of principles and processes that inform a fatigue-risk analysis
                are well-established and, as discussed in detail above and in the
                preamble of the SSP and RRP proposed rules, have been adopted into
                industry standards and described in detail in other written resources.
                See 77 FR 55375 and 80 FR 10953. For example, as discussed in those
                preambles, MIL-STD-882,\43\ APTA's Manual for the Development of System
                Safety Program Plans for Commuter Railroads,\44\ and FRA's Collision
                Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service
                discuss how to conduct risk analyses in detail.\45\ A railroad subject
                to this part could use any of these resources when developing and
                conducting a fatigue-risk analysis. FRA requests public comment as to
                whether additional resources are necessary to help railroads comply
                with the requirements of this proposed section and if so, what type of
                additional resources would be necessary.
                ---------------------------------------------------------------------------
                 \43\ Department of Defense, Standard practice system safety,
                (MIL-STD-882E) (2012), retrieved from https://www.dau.edu/cop/armyesoh/DAU%20Sponsored%20Documents/MIL-STD-882E.pdf (last accessed
                on July 27, 2020).
                 \44\ https://www.trbtss.org/wp-content/uploads/2016/03/APTA-Safety-Management-System-Manual.pdf (last accessed on July 27,
                2020).
                 \45\ https://www.fra.dot.gov/eLib/Details/L03191 (last accessed
                on July 27, 2020).
                ---------------------------------------------------------------------------
                 Paragraph (c) of these sections would require a railroad as part of
                its FRMP to develop and implement mitigation strategies that improve
                safety by reducing the risk of railroad accidents, incidents, injuries,
                and fatalities where fatigue of any of its safety-related railroad
                employees is a contributing factor. These paragraphs state that as a
                railroad develops and implements mitigation strategies, it would be
                required to consider, at a minimum, the railroad's policies, practices,
                and communication. Paragraphs (c)(1)-(3) describe each of these three
                areas of consideration in more detail.
                 Paragraph (c)(1) would require railroads to consider developing and
                implementing policies to reduce the risk of the exposure of its safety-
                related railroad employees to fatigue-related railroad safety hazards
                on its system.
                 Paragraph (c)(2) would require railroads to consider developing and
                implementing operational practices to reduce the risk of the exposure
                of its safety-related railroad employees to fatigue-related railroad
                safety hazards on its system.
                 Paragraph (c)(3) would require railroads to consider developing and
                implementing training, education, and outreach methods to deliver
                fatigue-related information effectively to its safety-related railroad
                employees. At a minimum, a railroad must consider the need to include
                employee education and training on the physiological and human factors
                that affect fatigue and strategies to reduce or mitigate the effects of
                fatigue based on the most current scientific and medical research and
                literature. If a railroad chooses to include these subjects in its
                training, this training would supplement the requirement in 49 CFR part
                243 to develop minimum training standards for each occupational
                category that includes a list of the Federal railroad safety laws,
                regulations, and orders that an employee is required to comply with by
                adding employee fatigue education and training topics that relate to
                employee safety independent of any regulatory or statutory
                requirements.
                 Paragraph (d) proposes requirements for a railroad to develop and
                implement procedures and processes for monitoring and evaluating its
                FRMP. Monitoring and evaluation are necessary parts of a railroad's
                FRMP; they enable a railroad to determine whether the FRMP is
                effectively reducing the numbers and rates of railroad accidents,
                [[Page 83500]]
                incidents, injuries, and fatalities where fatigue is a contributing
                factor.
                Sections 270.409 and 271.609--Requirements for a FRMP Plan
                 Proposed Sec. Sec. 270.409 and 271.609 would require a railroad to
                adopt and implement its FRMP through an FRMP plan that meets certain
                requirements. As proposed, paragraph (a) of these sections would
                require railroads to develop their FRMP plans in consultation with
                directly-affected employees and FRA would have to approve a railroad's
                FRMP. The existing consultation and approval processes of parts 270 and
                271 would apply.
                 Proposed paragraph (b) would require the FRMP plan to describe
                specific, fatigue-related goals of the FRMP and clear strategies for
                attaining those goals.
                 Proposed paragraph (c) addresses the methods a railroad uses to
                develop its FRMP plan. Proposed paragraph (c)(1) would require an FRMP
                plan to describe the railroad's method(s) for conducting the fatigue-
                risk analysis as part of its FRMP.\46\ While FRA understands that
                railroads subject to a final FRMP rule would likely need to develop
                processes unique to their own operations, FRA expects that railroads'
                fatigue-risk analysis processes will use techniques similar to those
                currently used in other safety management systems. This section also
                specifies information railroads must include in an FRMP plan's
                description of a railroad's fatigue-risk analysis. FRA requests comment
                on whether additional resources are necessary to help railroads comply
                with the requirements of this proposed section and if so, what type of
                resources would be helpful.
                ---------------------------------------------------------------------------
                 \46\ As previously discussed, railroads could look to well-
                established safety management systems which describe processes for
                conducting a fatigue-risk analysis, such as MIL-STD-882, APTA's
                Manual for the Development of System Safety Program Plans for
                Commuter Railroads, and FRA's Collision Hazard Analysis Guide:
                Commuter and Intercity Passenger Rail Service.
                ---------------------------------------------------------------------------
                 Proposed paragraph (c)(2) would require an FRMP plan to describe
                the railroad's processes for identifying and selecting mitigation
                strategies, and for monitoring identified hazards while the risk
                associated with the hazard is being mitigated.
                 Proposed paragraph (c)(3) would require an FRMP plan to describe a
                railroad's processes for monitoring and evaluating the overall
                effectiveness of the FRMP and the mitigation strategies, along with
                procedures for reviewing and updating the FRMP. As noted above, FRA
                anticipates this review will be the same as for the overall SSP or RRP.
                 Proposed paragraph (d) of this section would require an FRMP plan
                to describe how the railroad will implement its FRMP. As proposed, a
                railroad may implement its FRMP in stages, provided the FRMP is fully
                implemented and operational within 36 months of FRA's approval of the
                plan. This implementation plan would cover the entire implementation
                period and contain a timeline (beginning with the date FRA approves the
                railroad's FRMP plan) describing when the railroad will achieve
                specific and measurable implementation milestones.
                 Consistent with 49 CFR 270.103(p)(2)(i) and 49 CFR 271.203(b)(3),
                as part of the implementation description, proposed paragraph (d)(1)
                would require a railroad to include a description of the roles and
                responsibilities of each position or job function with significant
                responsibility for implementing the railroad's FRMP (including any
                positions or job functions held by an entity or contractor that
                provides significant FRMP services for the railroad).
                 Consistent with 49 CFR 271.225(b)(2), proposed paragraph (d)(2)
                would require a railroad to include a description of the planned
                timeline for meeting the milestones required for the FRMP plan to be
                fully implemented. Proposed paragraphs (d)(3) and (d)(4) would require
                a railroad to describe how it will make significant changes to the
                FRMP, and procedures for consultation with directly affected employees
                on substantive amendments to the FRMP plan.
                 Proposed paragraph (e) would require that a railroad submit its
                FRMP plan to FRA by amending its SSP plan or RRP plan. Since this
                proposed rule would be published as a final rule after the SSP and RRP
                final rules are in effect and railroads have submitted their SSP plans
                or RRP plans to FRA under part 270, subpart C, or part 271, subpart D,
                railroads would need to amend their SSP plans or RRP plans to include
                an FRMP plan. Thus, as proposed, a railroad would follow the procedures
                in Sec. 270.201(c) or 271.303 to amend its SSP plan or RRP plan. FRA
                proposes that an FRMP plan is not considered a safety-critical
                amendment of an SSP plan for the purposes of Sec. 270.201(c)(1)(ii),
                so a railroad should be able to submit the FRMP plan to FRA as an
                amendment to its SSP plan or RRP plan 60 days before the proposed
                effective date of the FRMP plan. If a railroad is initially not
                required to submit an SSP plan or RRP plan, but is later required to,
                the railroad must include an FRMP plan as part of its SSP plan or RRP
                plan submission to FRA, or submit the FRMP plan by August 19, 2021,
                whichever is later. FRA will review the railroads' FRMP plans under the
                amendment process in Sec. 270.201(c)(2) or 271.303(c).
                VI. Regulatory Impact and Notices
                A. Executive Order 12866 and DOT Regulatory Policies and Procedures
                 This proposed rule is a non-significant regulatory action within
                the meaning of Executive Order 12866 (E.O. 12866) and DOT's
                Administrative Rulemaking, Guidance, and Enforcement Procedures in 49
                CFR part 5.
                 FRA has prepared and placed a Regulatory Evaluation addressing the
                economic impact of this proposed rule in the docket (Docket No. FRA-
                2015-0122). The Regulatory Evaluation contains estimates of the costs
                and benefits of this proposed rule that are likely to be incurred over
                a ten-year period. FRA estimated the costs and benefits of this
                proposed rule using discount rates of 3 and 7 percent. FRA was unable
                to quantify the costs and benefits for all the elements within the
                proposed regulation for both passenger and freight railroads. FRA
                presents monetized costs and benefits where possible and discusses
                those non-quantified elements qualitatively where data was lacking.
                 Section 103 of the RSIA mandates that FRA (as delegated by the
                Secretary) require certain railroads to establish a railroad safety
                risk reduction program, of which an FRMP is a required component. This
                proposed rule is part of FRA's efforts to improve rail safety
                continually and to satisfy the statutory mandate in the RSIA.
                 FRA anticipates railroads will develop and implement mitigation
                strategies that are either cost-beneficial or cost-neutral to the
                railroad. FRA requests public comment on this assumption. FRA is
                particularly interested in the experience of railroads that have
                already utilized mitigation strategies to reduce the risk of the
                exposure of safety-related railroad employees to fatigue-related
                railroad safety hazards on their systems; specifically, whether the
                railroads have realized costs and benefits from the development and
                implementation of such mitigation strategies, and how much those
                strategies cost the railroads to implement.
                 The Regulatory Evaluation analyzes two mitigation strategies to
                quantify potential costs and benefits that railroads may achieve
                through the proposed regulation: Training and screening for sleep
                conditions. However, since the proposed regulation gives railroads the
                flexibility to select
                [[Page 83501]]
                the mitigation strategies that would work best for them rather than
                prescribing standards, there is a high amount of uncertainty in FRA's
                costs and benefit estimates, specifically pertaining to the training
                mitigation, as FRA is unsure how railroads will implement the various
                mitigations.
                 The costs and benefits \47\ associated with the proposed rule are
                presented in Table VI-1 below:
                ---------------------------------------------------------------------------
                 \47\ Unless otherwise noted, costs and benefits are presented in
                2018 dollars.
                 Table VI-1--Summary of Total 10-Year Impact (2018 Dollars)
                 [In millions]
                ----------------------------------------------------------------------------------------------------------------
                 Present value Present value Annualized at Annualized at
                 Calculation aid Costs 7% 3% 7% 3%
                ----------------------------------------------------------------------------------------------------------------
                A............................. Training Only $2.02 $2.04 $0.29 $0.24
                 (low).
                B............................. Training Only 4.13 4.18 0.59 0.49
                 (high).
                C............................. FRMP Plan 0.89 1.04 0.13 0.12
                 Creation.
                D............................. Government Costs 2.03 2.59 0.29 0.30
                A + C + D..................... Total Cost (low) 4.94 5.68 0.70 0.67
                B + C + D..................... Total Cost 7.05 7.81 1.00 0.92
                 (high).
                A + C......................... Total Cost w/o 2.91 3.08 0.41 0.36
                 Government
                 Costs (low).
                B + C......................... Total Cost w/o 5.01 5.22 0.71 0.61
                 Government
                 Costs (high).
                 Benefits
                 Training Only 5.41 6.33 0.77 0.74
                 (low).
                 Training Only 21.65 25.34 3.08 2.97
                 (high).
                ----------------------------------------------------------------------------------------------------------------
                 FRA is interested in comments addressing the Regulatory
                Evaluation's methodology for establishing the accident pool used to
                calculate benefits as well as establish the effectiveness rates of
                mitigations. Specifically, FRA seeks public input on the studies used
                to establish the effectiveness rates and the use of all human factor
                accidents within the benefit pool. As the proposed regulation does not
                specifically require railroads to implement specific mitigations, but
                rather allows railroads to implement the mitigation that best addresses
                their specific fatigue risks, FRA requests comments on any costs and
                benefits that might be associated with the elements that FRA was unable
                to quantify.
                 FRA's analysis shows there are many factors that are difficult to
                quantify both for passenger and freight railroads. Where possible,
                FRA's Regulatory Evaluation estimates costs and benefits for each
                element within the proposed regulation. FRA also requests comments on
                the elements that are qualitatively discussed. Given current railroad
                business and operational practices, this analysis demonstrates the
                fatigue training element, an element that all railroads will most
                likely implement, may be cost effective. FRA also believes the napping
                mitigation presented within the Regulatory Evaluation's alternative
                analysis could be cost beneficial. However, given the uncertainty
                surrounding the use of alertness as a measure of reduced fatigue, in an
                effort to not overestimate the benefits associated with the proposed
                regulation, FRA does not present the findings regarding napping in the
                main analysis of the Regulatory Evaluation. Despite the uncertainty,
                FRA believes that there could be significant reduction in fatigue with
                the implementation of a napping mitigation. Not only do various studies
                support the idea that napping reduces fatigue, but a large number of
                Class I railroads already have policies supporting napping, which
                suggests that the benefits outweigh the costs for those railroads.
                B. Regulatory Flexibility Act and Executive Order 13272; Initial
                Regulatory Flexibility Assessment
                 The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
                Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
                review of proposed and final rules to assess their impacts on small
                entities. An agency must prepare an Initial Regulatory Flexibility
                Analysis (IRFA) unless it determines and certifies that a rule, if
                promulgated, would not have a significant economic impact on a
                substantial number of small entities. FRA is publishing this IRFA to
                aid the public in commenting on the potential small business impacts of
                the requirements in this NPRM. FRA invites all interested parties to
                submit data and information regarding the potential economic impact on
                small entities that would result from the adoption of the proposals in
                this NPRM. FRA will consider all information, including comments
                received in the public comment process, to determine whether the rule
                will have a significant economic impact on small entities.
                1. Reasons FRA Is Considering the Proposed Rule
                 FRA is initiating this NPRM pursuant to 49 U.S.C. 20156, which
                provides that FRA, by delegation from the Secretary, shall require
                certain railroads to develop and implement an FRMP as part of either
                their SSP or RRP.
                2. Objectives and the Legal Basis for the Proposed Rule
                 This NPRM proposes to implement the FRMP element of the statutory
                mandate by requiring each Class I freight railroad, each railroad that
                provides intercity rail passenger transportation or commuter rail
                passenger transportation, and each ISP railroad to develop and
                implement an FRMP as one component of a larger railroad safety RRP or
                SSP. A detailed discussion of the objectives and legal basis for the
                proposed rule is provided in Section III of the preamble.
                3. Description and Estimate of the Number of Small Entities Affected
                 The Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.)
                requires a review of proposed and final rules to assess their impact on
                small entities, unless the Secretary certifies that the rule would not
                have a significant economic impact on a substantial number of small
                entities. ``Small entity'' is defined in 5 U.S.C. 601 as a small
                business concern that is independently owned and operated, and is not
                dominant in its
                [[Page 83502]]
                field of operation. The U.S. Small Business Administration (SBA) has
                authority to regulate issues related to small businesses, and
                stipulates in its size standards that a ``small entity'' in the
                railroad industry is a for-profit ``line-haul railroad'' that has fewer
                than 1,500 employees, a ``short line railroad'' with fewer than 500
                employees, or a ``commuter rail system'' with annual receipts of less
                than seven million dollars. See ``Size Eligibility Provisions and
                Standards,'' 13 CFR part 121, subpart A. In addition, section 601(5) of
                the Small Business Act defines ``small entities'' as governments of
                cities, counties, towns, townships, villages, school districts, or
                special districts with populations less than 50,000 that operate
                railroads.
                 Federal agencies may adopt their own size standards for small
                entities in consultation with SBA and in conjunction with public
                comment. Thus, in consultation with SBA, FRA has published a final
                statement of agency policy that formally establishes ``small entities''
                or ``small businesses'' as railroads, contractors, and shippers that
                meet the revenue requirements of a Class III railroad \48\--$20 million
                or less in inflation-adjusted annual revenue--and commuter railroads or
                small government jurisdictions that serve populations of 50,000 or
                less.\49\
                ---------------------------------------------------------------------------
                 \48\ See 49 CFR 1201.1.
                 \49\ See 68 FR 24891 (May 9, 2003) (codified at Appendix C to 49
                CFR part 209).
                ---------------------------------------------------------------------------
                 The universe of entities this NPRM would affect includes only those
                small entities that can reasonably be expected to be directly affected
                by the provisions of this rule. In this case, the universe consists of
                railroads that would be subject to the requirements under 49 CFR part
                270 and under the RRP rule. For the purposes of this analysis, 736
                railroads would be considered ``small entities,'' since they are Class
                III freight railroads. Of the 736 small entities, 695 are on the
                general system and could be potentially impacted by the proposed
                regulation.\50\ Since FRA does not currently know which railroads will
                be considered ISP railroads, but an ISP railroad could be either a
                Class II or Class III railroad, FRA is unable to provide a more
                accurate impact that the proposed regulation would have on small
                entities.
                ---------------------------------------------------------------------------
                 \50\ Both the SSP rule and RRP rule exempts railroads not on the
                general system. See 49 CFR 270.3(b) and 49 CFR 271.3(b).
                ---------------------------------------------------------------------------
                 For purposes of this analysis, this proposed rule will apply to 35
                commuter or other short-haul passenger railroads and two intercity
                passenger railroads, the National Railroad Passenger Corporation
                (Amtrak) and the Alaska Railroad Corporation (ARC).\51\ Neither of the
                intercity passenger railroads is considered a small entity. Amtrak
                serves populations well in excess of 50,000, and the ARC is owned by
                the State of Alaska, which has a population well in excess of 50,000.
                ---------------------------------------------------------------------------
                 \51\ There are State-sponsored intercity passenger rail
                services, the majority of which will be part of Amtrak's SSP.
                ---------------------------------------------------------------------------
                 Based on the definition of ``small entity,'' only one commuter or
                other short-haul passenger railroad is considered a small entity: The
                Hawkeye Express (operated by the Iowa Northern Railway Company).
                 The impact of the proposed regulation on these small entities is
                unknown, since FRA is allowing the railroads to decide their fatigue
                mitigations based on their specific needs instead of mandating that
                railroads adopt specific mitigation programs. Furthermore, FRA
                estimates that only 50 ISP railroads would be impacted by the proposed
                regulation, which is approximately 7 percent of small entities,
                assuming all the 50 ISP railroads are considered small entities. FRA
                estimates that the 50 ISP railroads would be impacted over the course
                of 10 years, at a rate of approximately 5 ISPs per year. This estimate
                is consistent with the RRP final rule that FRA has published.
                Therefore, because of the uncertainty surrounding both the number of
                ISP railroads that would be considered small entities as well as the
                impact that the proposed regulation would have on those small entities,
                the impact that the NPRM would have on small entities is unclear. FRA
                requests comments about the impact that the proposed regulation would
                have on both freight and passenger rail small entities.
                4. Description of the Projected Reporting, Recordkeeping, and Other
                Requirements
                 The rule will require an ISP railroad to develop and implement an
                FRMP under an RRP or SSP plan that FRA has reviewed and approved. There
                are several reporting and recordkeeping costs associated with the
                proposed regulation. Since the railroads have the flexibility to adjust
                their FRMPs to their specific risks, these costs will vary based on the
                respective risks as well as the size of the ISP railroad. While FRA is
                unable to estimate the burden that the proposed regulation would have
                on small entities, FRA expects that the impact will be proportional to
                the number of employees as well as the mitigation strategy that is
                implemented. Other mitigation strategies such as screening for sleep
                disorders could include costs that are higher.
                 While FRA is unable to identify the specific railroads that would
                be considered ISPs, to estimate the potential impact that developing an
                FRMP would have on an ISP railroad, FRA used the average Class III
                revenue to estimate the impact.\52\ Per the American Short Line and
                Regional Railroad Association (ASLRRA), the average Class III railroad
                has an annual average revenue of $4.75 million. FRA estimated the
                annual cost to ISP railroads at $60,052, with approximately five ISP
                railroads incurring this cost per year. The $60,052 cost consists of an
                annual average of $53,228 \53\ for FRMP program development and $7,274
                for employee training.\54\ The total 10-year cost that would impact a
                single ISP railroad would be $121,004.\55\ The annual cost represents
                approximately 2.5 percent of the average Class III railroad's
                revenue.\56\ However, as this estimate is based off of the average
                annual Class III railroad revenue, and there could be a large variance
                in the revenue of Class III railroads, FRA requests comments regarding
                the annual revenue of Class III railroads as well as the impact the
                proposed regulation would have on Class III railroads.
                ---------------------------------------------------------------------------
                 \52\ The Class II and Class III average costs per railroad come
                from the 2015 Edition of the ASLRRA Facts and Figures.
                 \53\ An average is used to better account for the impact as the
                cost schedule varies as the number of ISP railroads increases. See
                the RIA in the docket for more information on the cost structure for
                ISP railroads.
                 \54\ Calculation: $53,228 (program development cost) + $7,274
                (ISP employee training costs) = $60,052 (Annual cost for 5 ISP
                railroads).
                 \55\ Calculation: ([$60,052/5 (ISP railroads)] (annual cost to
                ISP)) x 10 (number of years) = $121,004 (10-year cost to single ISP
                railroad).
                 \56\ Calculation: $121,004 (annual cost to ISP)/$4,750,000
                (average annual Class III revenue) = 0.025 or 2.5 percent.
                ---------------------------------------------------------------------------
                 FRA has identified several possible reporting and recordkeeping
                costs associated with the proposed regulation such as:
                 (1) Development, submission to FRA, and recordkeeping of the FRMP
                plan;
                 (2) identification of the specific fatigue risks that impact the
                specific ISP; and
                 (3) recordkeeping associated with fatigue training.
                 More information about the burden and associated costs for each of
                the projected reporting, recordkeeping, and other requirements can be
                found in the information collection request FRA will be submitting to
                the Office of Management and Budget (OMB) under the Paperwork Reduction
                Act of 1995, 44 U.S.C. 3501, et seq. FRA requests comments regarding
                the recordkeeping
                [[Page 83503]]
                burden that the proposed regulation would have on ISP railroads to
                ensure that all cost elements of recordkeeping and how those elements
                would impact Class III railroads are captured.
                5. Identification of Relevant Federal Rules That May Duplicate,
                Overlap, or Conflict With the Proposed Rule
                 While the proposed FRMP rule would be a component of the RRP and
                SSP rules, the proposed FRMP would specifically address fatigue-related
                risks and is aimed at mitigating those risks specifically. As such,
                there will be some coordination needed to ensure that a railroad's FRMP
                is developed and worked into the railroad's RRP or SSP. Regardless,
                considering that the proposed FRMP is a subpart within both RRP and
                SSP, neither RRP nor SSP provide any elements, outside of the proposed
                regulation, that are designed to mitigate fatigue related risk
                specifically. As such, FRA does not expect there to be any relevant
                Federal rules that would duplicate, overlap with, or conflict with the
                proposed regulations in this NPRM.
                6. Significant Regulatory Alternatives
                 Within the preamble above, FRA outlines the various fatigue risks
                that railroads need to address. FRA does not specifically state,
                however, in what manner the railroads must address those risks. One
                alternative is for railroads to not create an FRMP and to continue to
                address their fatigue risks as they have currently been doing. This
                would result in the railroads violating the RSIA mandate. In addition,
                if railroads continue to address their fatigue risks as they have in
                the past, FRA expects that safety would continue to be negatively
                impacted because the fatigue risks are not adequately addressed
                currently. Since railroads have some flexibility in how they design
                their FRMPs, it is expected that the impact of each FRMP on a railroad
                will be minimal as the flexibility in implementing mitigations will
                most likely be done in a cost effective manner. FRA expects that
                railroads will consider the cost of the mitigation as well as the
                fatigue risks when creating their FRMPs.
                 FRA invites all interested parties to submit data and information
                regarding the potential economic impact that would result from adoption
                of the proposals in this NPRM. FRA will consider all comments received
                in the public comment process when making a determination.
                C. Federalism
                 Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
                requires FRA to develop an accountable process to ensure ``meaningful
                and timely input by State and local officials in the development of
                regulatory policies that have federalism implications.'' The Executive
                Order defines ``policies that have federalism implications'' to include
                regulations that have ``substantial direct effects on the States, on
                the relationship between the national government and the States, or on
                the distribution of power and responsibilities among the various levels
                of government.'' Under Executive Order 13132, the agency may not issue
                a regulation with federalism implications that imposes substantial
                direct compliance costs and that is not required by statute, unless the
                Federal Government provides the funds necessary to pay the direct
                compliance costs incurred by State and local governments or the agency
                consults with State and local government officials early in the process
                of developing the regulation. Where a regulation has federalism
                implications and preempts State law, the agency seeks to consult with
                State and local officials in the process of developing the regulation.
                 FRA analyzed this NPRM consistent with the principles and criteria
                contained in Executive Order 13132. FRA has determined the proposed
                rule would not have substantial direct effects on States, on the
                relationship between the national government and States, or on the
                distribution of power and responsibilities among the various levels of
                government. In addition, FRA has determined this proposed rule would
                not impose substantial direct compliance costs on State and local
                governments. Therefore, the consultation and funding requirements of
                Executive Order 13132 do not apply.
                 This NPRM proposes to add subpart E, Fatigue Management Plans, to
                49 CFR part 270 and subpart G, Fatigue Management Plans, to 49 CFR part
                271. FRA is not aware of any State with regulations similar to this
                proposed rule. However, FRA notes that this part could have preemptive
                effect by the operation of law under 49 U.S.C. 20106. Section 20106
                provides that States may not adopt or continue in effect any law,
                regulation, or order related to railroad safety or security that covers
                the subject matter of a regulation prescribed or order issued by the
                Secretary of Transportation (with respect to railroad safety matters),
                unless the State law, regulation, or order (1) qualifies under the
                ``essentially local safety or security hazard'' exception to sec.
                20106; (2) is not incompatible with a law, regulation, or order of the
                U.S. Government; and (3) does not unreasonably burden interstate
                commerce.
                 In sum, FRA analyzed this proposed rule consistent with the
                principles and criteria in Executive Order 13132. FRA has determined
                this proposed rule has no federalism implications and has determined it
                is not required to prepare a federalism summary impact statement for
                this proposed rule.
                D. International Trade Impact Assessment
                 The Trade Agreement Act of 1979 prohibits Federal agencies from
                engaging in any standards or related activities that create unnecessary
                obstacles to the foreign commerce of the United States. Legitimate
                domestic objectives, such as safety, are not considered unnecessary
                obstacles. The Act also requires consideration of international
                standards, and, where appropriate, that they be the basis for U.S.
                standards. This rulemaking is purely domestic in nature and will not
                affect trade opportunities for U.S. firms doing business overseas or
                for foreign firms doing business in the United States.
                E. Paperwork Reduction Act
                 The information collection requirements in this proposed rule are
                being submitted for approval to the Office of Management and Budget
                (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et
                seq. The sections that contain the new information collection
                requirements and the estimated time to fulfill each requirement are as
                follows:
                [[Page 83504]]
                ----------------------------------------------------------------------------------------------------------------
                 Total annual
                 Respondent Total annual Average time Total annual dollar cost
                 CFR section/subject universe responses per response burden hours equivalent
                 (hours) \57\
                ----------------------------------------------------------------------------------------------------------------
                270.409--Fatigue Risk 35 passenger 12 plans....... 60 720 $63,144
                 Management Program Plan railroads.
                 (FRMP Plan) as part of its
                 SSP--Comprehensive FRMP plan
                 meeting all of this
                 section's requirements and
                 under Part 270 subpart C.
                --(c)(3)(ii)--Annual internal 35 passenger 12 evaluations/ 2 24 1,824
                 FRMP Plan assessments/ railroads. reports.
                 reports conducted by RRs.
                --FRMP plans found deficient 35 passenger 4 amended plans 30 120 9,588
                 by FRA and requiring railroads.
                 amendment.
                --Review of amended FRMP 35 passenger 1 further 15 15 1,199
                 plans found deficient and railroads. amended plan.
                 requiring further amendment
                 by RRs.
                --Consultation requirements-- 35 passenger 12 1.5 18 1,368
                 RR consultation with its railroads. consultations
                 directly affected employees (w/labor union
                 on FRMP Plan. reps.).
                271.609--Fatigue Risk 7 Class I 2 plans........ 90 180 15,786
                 Management Program Plan railroads. 5 plans........ 50 250 21,925
                 (FRMP Plan) as part of its 15 ISP railroads
                 RRP--Comprehensive written
                 FRMP Plan meeting all of
                 this section's requirements
                 and under Part 271 subpart d.
                --(c)(3)(ii)--Annual internal 7 Class I + 15 7 evaluations/ 2 14 1,064
                 FRMP Plan assessments/ ISP railroads. reports.
                 reports conducted by RRs.
                --Consultation requirements-- 7 Class I 2 consultations 1.5 3 228
                 RR consultation with its railroads. (w/labor union
                 directly affected employees reps.).
                 on FRMP Plan.
                 15 ISP railroads 5 consultations 1 5 380
                 (w/labor union
                 reps.).
                --FRMP plans found deficient 7 Class I 1 amended plan. 40 40 3,196
                 by FRA and requiring railroads.
                 amendment.
                 15 ISP railroads 3 amended plans 20 60 4,794
                --Review of amended FRMP 7 Class I 1 further 20 20 1,598
                 plans found deficient and railroads. amended plan.
                 requiring further amendment
                 by RRs.
                 15 ISP railroads 2 further 10 20 1,598
                 amended plans.
                 ----------------------------------------------------------------------------------
                 Totals................... 35 railroads.... 69 responses... N/A 1,489 127,692
                ----------------------------------------------------------------------------------------------------------------
                 All estimates include the time for reviewing instructions;
                searching existing data sources; gathering or maintaining the needed
                data; and reviewing the information. Pursuant to 44 U.S.C.
                3506(c)(2)(B), FRA solicits comments concerning: Whether these
                information collection requirements are necessary for the proper
                performance of the functions of FRA, including whether the information
                has practical utility; the accuracy of FRA's estimates of the burden of
                the information collection requirements; the quality, utility, and
                clarity of the information to be collected; and whether the burden of
                collection of information on those who are to respond, including
                through the use of automated collection techniques or other forms of
                information technology, may be minimized. For information or a copy of
                the paperwork package submitted to OMB, contact Ms. Hodan Wells,
                Information Collection Clearance Officer, Federal Railroad
                Administration, at 202-493-0440.
                ---------------------------------------------------------------------------
                 \57\ The dollar equivalent cost is derived from the 2018 Surface
                Transportation Board's Full Year Wage A&B data series using the
                appropriate employee group hourly wage rate that includes 75-percent
                overhead charges.
                ---------------------------------------------------------------------------
                 Organizations and individuals desiring to submit comments on the
                collection of information requirements should direct them to Ms. Hodan
                Wells via email at [email protected].
                 OMB is required to make a decision concerning the collection of
                information requirements contained in this proposed rule between 30 and
                60 days after publication of this document in the Federal Register.
                Therefore, a comment to OMB is best assured of having its full effect
                if OMB receives it within 30 days of publication. The final rule will
                respond to any OMB or public comments on the information collection
                requirements contained in this proposal.
                 FRA is not authorized to impose a penalty on persons for violating
                information collection requirements which do not display a current OMB
                control number, if required. FRA intends to obtain current OMB control
                numbers for any new information collection requirements resulting from
                this rulemaking action prior to the effective date of the final rule.
                The OMB control number, when assigned, will be announced by separate
                notice in the Federal Register.
                F. Environmental Assessment
                 FRA has evaluated this proposed rule consistent with the National
                Environmental Policy Act (NEPA; 42 U.S.C. 4321, et seq.), the Council
                of Environmental Quality's NEPA implementing regulations at 40 CFR
                parts 1500-1508, and FRA's NEPA implementing regulations at 23 CFR part
                771 and determined that it is categorically excluded from environmental
                review and therefore does not require the preparation of an
                environmental assessment (EA) or environmental impact statement (EIS).
                Categorical exclusions (CEs) are actions
                [[Page 83505]]
                identified in an agency's NEPA implementing regulations that do not
                normally have a significant impact on the environment and therefore do
                not require either an EA or EIS. See 40 CFR 1508.4. Specifically, FRA
                has determined that this proposed rule is categorically excluded from
                detailed environmental review pursuant to 23 CFR 771.116(c)(15),
                ``[p]romulgation of rules, the issuance of policy statements, the
                waiver or modification of existing regulatory requirements, or
                discretionary approvals that do not result in significantly increased
                emissions of air or water pollutants or noise.''
                 The purpose of this rulemaking is to propose requirements for
                certain railroads to develop and implement an FRMP, as one component of
                the railroads' larger railroad safety risk reduction programs. This
                rule does not directly or indirectly impact any environmental resources
                and will not result in significantly increased emissions of air or
                water pollutants or noise. Instead, the proposed rule is likely to
                result in safety benefits. In analyzing the applicability of a CE, FRA
                must also consider whether unusual circumstances are present that would
                warrant a more detailed environmental review. See 23 CFR 771.116(b).
                FRA has concluded that no such unusual circumstances exist with respect
                to this proposed regulation and the proposal meets the requirements for
                categorical exclusion under 23 CFR 771.116(c)(15).
                 Pursuant to Section 106 of the National Historic Preservation Act
                and its implementing regulations, FRA has determined this undertaking
                has no potential to affect historic properties. See 16 U.S.C. 470. FRA
                has also determined that this rulemaking does not approve a project
                resulting in a use of a resource protected by Section 4(f). See
                Department of Transportation Act of 1966, as amended (Pub. L. 89-670,
                80 Stat. 931); 49 U.S.C. 303.
                G. Executive Order 12898 (Environmental Justice)
                 Executive Order 12898, Federal Actions to Address Environmental
                Justice in Minority Populations and Low-Income Populations, and DOT
                Order 5610.2B \58\ require DOT agencies to achieve environmental
                justice as part of their mission by identifying and addressing, as
                appropriate, disproportionately high and adverse human health or
                environmental effects, including interrelated social and economic
                effects, of their programs, policies, and activities on minority
                populations and low-income populations. The DOT Order instructs DOT
                agencies to address compliance with Executive Order 12898 and
                requirements within the DOT Order in rulemaking activities, as
                appropriate, and also requires consideration of the benefits of
                transportation programs, policies, and other activities where minority
                populations and low-income populations benefit, at a minimum, to the
                same level as the general population as a whole when determining
                impacts on minority and low-income populations. FRA has evaluated this
                proposed rule under Executive Order 12898 and the DOT Order and has
                determined it would not cause disproportionately high and adverse human
                health and environmental effects on minority populations or low-income
                populations.
                ---------------------------------------------------------------------------
                 \58\ Available at: https://www.transportation.gov/regulations/dot-order-56102b-department-transportation-actions-address-environmental-justice.
                ---------------------------------------------------------------------------
                H. Unfunded Mandates Reform Act of 1995
                 Under Section 201 of the Unfunded Mandates Reform Act of 1995 (2
                U.S.C. 1531), each Federal agency ``shall, unless otherwise prohibited
                by law, assess the effects of Federal regulatory actions on State,
                local, and tribal governments, and the private sector (other than to
                the extent that such regulations incorporate requirements specifically
                set forth in law).'' Section 202 of the Act (2 U.S.C. 1532) further
                requires that ``before promulgating any general notice of proposed
                rulemaking that is likely to result in the promulgation of any rule
                that includes any Federal mandate that may result in expenditure by
                State, local, and tribal governments, in the aggregate, or by the
                private sector, of $100,000,000 or more (adjusted annually for
                inflation) in any 1 year, and before promulgating any final rule for
                which a general notice of proposed rulemaking was published, the agency
                shall prepare a written statement'' detailing the effect on State,
                local, and tribal governments and the private sector. This proposed
                rule will not result in the expenditure, in the aggregate, of
                $100,000,000 or more (as adjusted annually for inflation), in any one
                year, and thus preparation of such a statement is not required.
                I. Energy Impact
                 Executive Order 13211 requires Federal agencies to prepare a
                Statement of Energy Effects for any ``significant energy action.'' 66
                FR 28355, May 22, 2001. FRA evaluated this NPRM under Executive Order
                13211, and determined this NPRM is not a ``significant energy action''
                under the Executive Order 13211.
                J. Privacy Act Statement
                 In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
                public to better inform its rulemaking process. DOT posts these
                comments, without edit, to www.regulations.gov, as described in the
                system of records notice, DOT/ALL-14 FDMS, accessible through
                www.dot.gov/privacy. In order to facilitate comment tracking and
                response, we encourage commenters to provide their name, or the name of
                their organization; however, submission of names is completely
                optional. Whether or not commenters identify themselves, all timely
                comments will be fully considered. If you wish to provide comments
                containing proprietary or confidential information, please contact the
                agency for alternate submission instructions.
                List of Subjects
                49 CFR Part 270
                 Fatigue, Penalties, Railroad safety, Reporting and recordkeeping
                requirements, System safety.
                49 CFR Part 271
                 Fatigue, Penalties, Railroad safety, Reporting and recordkeeping
                requirements, Risk reduction.
                The Proposed Rule
                 For the reasons discussed in the preamble, FRA proposes to amend
                chapter II, subtitle B of title 49, Code of Federal Regulations as
                follows:
                PART 270--SYSTEM SAFETY PROGRAM
                0
                1. The authority citation for part 270 continues to read as follows:
                 Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
                21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
                0
                2. Section 270.103(a)(1) is revised to read as follows:
                Sec. 270.103 System safety program plan.
                 (a) General. (1) Each railroad subject to this part shall adopt and
                fully implement a system safety program through a written SSP plan
                that, at a minimum, contains the elements in this section and in
                subpart E of this part. This SSP plan shall be approved by FRA under
                the process specified in Sec. 270.201.
                0
                3. Add subpart E to read as follows:
                Subpart E--Fatigue Risk Management Programs
                Sec.
                [[Page 83506]]
                270.401 Definitions.
                270.403 Purpose and scope of a Fatigue Risk Management Program
                (FRMP).
                270.405 General requirements; procedure.
                270.407 Requirements for an FRMP.
                270.409 Requirements for a FRMP plan.
                Subpart E--Fatigue Risk Management Programs
                Sec. 270.401 Definitions.
                 As used in this subpart--
                 Contributing factor means a circumstance or condition that helps
                cause a result.
                 Fatigue means a complex state characterized by a lack of alertness
                and reduced mental and physical performance, often accompanied by
                drowsiness.
                 Fatigue-risk analysis means a railroad's analysis of its operations
                that:
                 (1) Identifies and evaluates the fatigue-related railroad safety
                hazards on its system(s); and
                 (2) Determines the degree of risk associated with each of those
                hazards.
                 FRMP means a Fatigue Risk Management Program.
                 FRMP plan means a Fatigue Risk Management Program plan.
                 Safety-related railroad employee means:
                 (1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
                 (2) Another person involved in railroad operations not subject to
                49 U.S.C. 21103, 21104, or 21105;
                 (3) A person who inspects, installs, repairs or maintains track,
                roadbed, signal and communication systems, and electric traction
                systems including a roadway worker or railroad bridge worker;
                 (4) A hazmat employee defined under 49 U.S.C. 5102(3);
                 (5) A person who inspects, repairs, or maintains locomotives,
                passenger cars, or freight cars; or
                 (6) An employee of any person who utilizes or performs significant
                railroad safety-related services, as described in Sec. 270.103(d)(2),
                if that employee performs a function identified in paragraphs (1)
                through (5) of this definition.
                Sec. 270.403 Purpose and scope of a Fatigue Risk Management Program
                (FRMP).
                 (a) Purpose. The purpose of an FRMP is to improve railroad safety
                through structured, systematic, proactive processes and procedures that
                a railroad subject to this part develops and implements to identify and
                mitigate the effects of fatigue on its employees.
                 (b) Scope. A railroad shall:
                 (1) Design its FRMP to reduce the fatigue its safety-related
                railroad employees experience and to reduce the risk of railroad
                accidents, incidents, injuries, and fatalities where the fatigue of any
                of these employees is a contributing factor;
                 (2) Develop its FRMP by systematically identifying and evaluating
                the fatigue-related railroad safety hazards on its system, determining
                the degree of risk associated with each hazard, and managing those
                risks to reduce the fatigue that its safety-related railroad employees
                experience. This system-wide fatigue risk identification and evaluation
                process must account for the varying circumstances of a railroad's
                operations on different parts of its system; and
                 (3) Employ in its FRMP the fatigue risk mitigation strategies a
                railroad identifies as appropriate to address those varying
                circumstances.
                Sec. 270.405 General requirements; procedure.
                 (a) Each railroad subject to this part shall:
                 (1) Establish and implement an FRMP as part of its SSP; and
                 (2) Establish an FRA-approved FRMP plan as a component of a
                railroad's FRA-approved SSP plan and then update its FRMP plan as
                necessary as part of the annual internal assessment of its SSP under
                Sec. 270.303.
                 (b) A railroad's FRMP plan must explain the railroad's method of
                analysis of fatigue risks and the railroad's process(es) for
                implementing its FRMP.
                 (c)(1) A railroad shall submit an FRMP plan to FRA for approval no
                later than either the applicable timeline in Sec. 270.201(a) for
                filing its SSP plan or [date six months after publication of the final
                rule in the Federal Register].
                 (2) A railroad shall submit updates to its FRMP plan under the
                process for amending its SSP plan in Sec. 270.201(c).
                 (d) FRA shall review and approve or disapprove a railroad's FRMP
                plan and amendments to that plan under the process for reviewing SSP
                plans and amendments in Sec. 270.201(b) and (c), respectively.
                Sec. 270.407 Requirements for an FRMP.
                 (a) In general. An FRMP shall include an analysis of fatigue risks
                and mitigation strategies, as described in paragraphs (b) and (c) of
                this section.
                 (b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
                risk analysis as part of its FRA-approved FRMP, which includes
                identification of fatigue-related railroad safety hazards, assessment
                of the risks associated with those hazards, and prioritization of risks
                for mitigation. At a minimum, a railroad must consider the following
                categories of risk factors:
                 (1) General health and medical conditions that can affect the
                fatigue levels among the population of safety-related railroad
                employees;
                 (2) Scheduling issues that can affect the opportunities of safety-
                related railroad employees to obtain sufficient quality and quantity of
                sleep; and
                 (3) Characteristics of each job category of safety-related railroad
                employees work that can affect fatigue levels and risk for fatigue of
                those employees.
                 (c) Mitigation strategies. A railroad shall develop and implement
                mitigation strategies to reduce the risk of railroad accidents,
                incidents, injuries, and fatalities where fatigue of any of its safety-
                related employees is a contributing factor. At a minimum, in developing
                and implementing these mitigation strategies, a railroad shall consider
                the railroad's policies, practices, and communication related to its
                safety-related railroad employees.
                 (1) Policies. A railroad shall consider developing and implementing
                policies to reduce the risk of the exposure of its safety-related
                railroad employees to fatigue-related railroad safety hazards on its
                system. At a minimum, a railroad shall consider these policies:
                 (i) Providing opportunities for identification, diagnosis, and
                treatment of any medical condition that may affect alertness or
                fatigue, including sleep disorders;
                 (ii) Identifying methods to minimize accidents and incidents that
                occur as a result of working at times when scientific and medical
                research have shown increased fatigue disrupts employees' circadian
                rhythms;
                 (iii) Developing and implementing alertness strategies, such as
                policies on napping, to address acute drowsiness and fatigue while an
                employee is on duty;
                 (iv) Increasing the number of consecutive hours of off-duty rest,
                during which an employee receives no communication from the employing
                railroad or its managers, supervisors, officers, or agents; and
                 (v) Avoiding abrupt changes in rest cycles for employees.
                 (2) Practices. A railroad shall consider developing and
                implementing operational practices to reduce the risk of exposure of
                its safety-related railroad employees to fatigue-related railroad
                safety hazards on its system. At a minimum, a railroad shall consider
                these practices:
                 (i) Minimizing the effects on employee fatigue of an employee's
                short-term or sustained response to emergency situations, such as
                [[Page 83507]]
                derailments and natural disasters, or engagement in other intensive
                working conditions;
                 (ii) Developing and implementing scheduling practices for
                employees, including innovative scheduling practices, on-duty call
                practices, work and rest cycles, increased consecutive days off for
                employees, changes in shift patterns, appropriate scheduling practices
                for varying types of work, and other aspects of employee scheduling to
                reduce employee fatigue and cumulative sleep loss; and
                 (iii) Providing opportunities to obtain restful sleep at lodging
                facilities, including employee sleeping quarters provided by the
                railroad carrier.
                 (3) Communications. A railroad shall consider developing and
                implementing training, education, and outreach methods to deliver
                fatigue-related information effectively to its safety-related railroad
                employees. At a minimum, a railroad shall consider including in its
                employee education and training information on the physiological and
                human factors that affect fatigue, as well as strategies to reduce or
                mitigate the effects of fatigue, based on the most current scientific
                and medical research and literature.
                 (d) Evaluation. A railroad shall develop and implement procedures
                and processes for monitoring and evaluating its FRMP to assess whether
                the FRMP effectively meets the goals its FRMP plan describes, as
                required under Sec. 270.409(b).
                 (1) The evaluation shall include, at a minimum:
                 (i) Periodic monitoring of the railroad's operational environment
                to detect changes that may generate new hazards;
                 (ii) Analysis of the risks associated with any identified hazards;
                and
                 (iii) Periodic safety assessments to determine the need for changes
                to its mitigation strategies.
                 (2) A railroad shall evaluate newly-identified hazards, and hazards
                associated with ineffective mitigation strategies, through processes
                for analyzing fatigue risks described in the railroad's FRMP plan.
                 (3) Any necessary changes not addressed prior to a railroad's
                annual internal assessment must be included in the internal assessment
                improvement plans required under Sec. 270.303.
                Sec. 270.409 Requirements for a FRMP plan.
                 (a) In general. A railroad shall adopt and implement its FRMP
                through an FRA-approved FRMP plan, developed in consultation with
                directly affected employees as described under Sec. 270.107. A
                railroad FRMP plan must contain the elements described in this section.
                A railroad must submit the plan to FRA for approval under the criteria
                of subpart C.
                 (b) Goals. An FRMP plan must contain a statement that defines the
                specific fatigue-related goals of the FRMP and describes strategies for
                reaching those goals.
                 (c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall
                describe a railroad's method(s) for conducting its fatigue-risk
                analysis as part of its FRMP. The description shall specify:
                 (i) The scope of the analysis, which is the covered population of
                safety-related railroad employees;
                 (ii) The processes a railroad will use to identify fatigue-related
                railroad safety hazards on its system and determine the degree of risk
                associated with each fatigue-related hazard identified;
                 (iii) The processes a railroad will use to compare and prioritize
                identified fatigue-related risks for mitigation purposes; and
                 (iv) The information sources a railroad will use to support ongoing
                identification of fatigue-related railroad safety hazards and determine
                the degree of risk associated with those hazards.
                 (2) Mitigation strategies. An FRMP plan shall describe a railroad's
                processes for:
                 (i) Identifying and selecting fatigue risk mitigation strategies;
                and
                 (ii) Monitoring identified fatigue-related railroad safety hazards.
                 (3) Evaluation. An FRMP plan shall describe:
                 (i) A railroad's processes for monitoring and evaluating the
                overall effectiveness of its FRMP and the effectiveness of fatigue-
                related mitigation strategies the railroad uses under Sec. 270.407;
                and
                 (ii) A railroad's procedures for reviewing the FRMP as part of the
                annual internal assessment of its SSP under Sec. 270.303 and for
                updating the FRMP plan under the process for amending its SSP plan
                under Sec. 270.201(c).
                 (d) FRMP implementation plan. A railroad shall describe in its FRMP
                plan how it will implement its FRMP. This description must cover an
                implementation period not to exceed 36 months, and shall include:
                 (1) A description of the roles and responsibilities of each
                position or job function with significant responsibility for
                implementing the FRMP, including those held by employees, contractors
                who provide significant FRMP-related services, and other entities or
                persons that provide significant FRMP services;
                 (2) A timeline describing when certain milestones that must be met
                to implement the FRMP fully will be achieved. Implementation milestones
                shall be specific and measurable;
                 (3) A description of how a railroad may make significant changes to
                the FRMP plan under the process for amending its SSP plan in Sec.
                270.201(c); and
                 (4) The procedures for consultation with directly affected
                employees on any subsequent substantive amendments to the railroad's
                FRMP plan. The requirements of this section do not apply to non-
                substantive amendments (e.g., amendments that update names and
                addresses of railroad personnel).
                 (e) Submittal. A railroad shall amend its SSP plan submitted under
                subpart C of this part to include its FRMP plan that meets the
                requirements of this section no later than August 19, 2021.
                 (1) A railroad shall follow the procedures in Sec. 270.201(c) to
                amend its SSP plan.
                 (2) An FRMP plan is not considered a safety critical amendment for
                the purposes of Sec. 270.201(c)(ii).
                 (3) If a railroad was not required to submit an SSP plan initially,
                but is required to do so at a later date, the railroad shall either
                include an FRMP plan as part of its SSP plan submission under Sec.
                270.201(a), or submit its FRMP plan in accordance with the procedures
                for amending its SSP plan under Sec. 270.201(c) no later than August
                19, 2021, whichever is later.
                PART 271--RISK REDUCTION PROGRAM
                0
                4. The authority citation for part 271 continues to read as follows:
                 Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
                21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
                0
                5. Amend Sec. 271.101 by revising paragraph (a) to read as follows:
                Sec. 271.101 Risk reduction programs.
                 (a) Program required. Each railroad shall establish and fully
                implement an RRP meeting the requirements of this part. An RRP shall
                systematically evaluate railroad safety hazards on a railroad's system
                and manage the resulting risks to reduce the number and rates of
                railroad accidents/incidents, injuries, and fatalities. An RRP is an
                ongoing program that supports continuous safety improvement. A railroad
                shall design its RRP so that it promotes and supports a positive safety
                culture at the railroad. An RRP shall include the following:
                 (1) A risk-based hazard management program, as described in Sec.
                271.103;
                 (2) A safety performance evaluation component, as described in
                Sec. 271.105;
                [[Page 83508]]
                 (3) A safety outreach component, as described in Sec. 271.107;
                 (4) A technology analysis and technology implementation plan, as
                described in Sec. 271.109;
                 (5) RRP implementation and support training, as described in Sec.
                271.111;
                 (6) Involvement of railroad employees in the establishment and
                implementation of an RRP, as described in Sec. 271.113; and
                 (7) An FRMP as described in Sec. 271.607.
                0
                6. Section 271.201 is revised to read as follows:
                Sec. 271.201 General.
                 A railroad shall adopt and implement its RRP through a written RRP
                plan containing the elements described in this subpart and in Sec.
                271.609. A railroad's RRP plan shall be approved by FRA according to
                the requirements contained in subpart D of this part.
                0
                7. Add subpart G to read as follows:
                Subpart G--Fatigue Risk Management Programs
                Sec.
                271.601 Definitions.
                271.603 Purpose and scope of a Fatigue Risk Management Program
                (FRMP).
                271.605 General requirements; procedure.
                271.607 Requirements for an FRMP.
                271.609 Requirements for a FRMP plan.
                Subpart G--Fatigue Risk Management Programs
                Sec. 271.601 Definitions.
                 As used in this subpart--
                 Contributing factor means a circumstance or condition that helps
                cause a result.
                 Fatigue means a complex state characterized by a lack of alertness
                and reduced mental and physical performance, often accompanied by
                drowsiness.
                 Fatigue-risk analysis means a railroad's analysis of its operations
                that:
                 (1) Identifies and evaluates the fatigue-related railroad safety
                hazards on its system(s) and;
                 (2) Determines the degree of risk associated with each of those
                hazards.
                 FRMP means a Fatigue Risk Management Program.
                 FRMP plan means a Fatigue Risk Management Program plan.
                 Safety-related railroad employee means:
                 (1) A person subject to 49 U.S.C. 21103, 21104, or 21105;
                 (2) Another person involved in railroad operations not subject to
                49 U.S.C. 21103, 21104, or 21105;
                 (3) A person who inspects, installs, repairs or maintains track,
                roadbed, signal and communication systems, and electric traction
                systems including a roadway worker or railroad bridge worker;
                 (4) A hazmat employee defined under 49 U.S.C. 5102(3);
                 (5) A person who inspects, repairs, or maintains locomotives,
                passenger cars, or freight cars; or
                 (6) An employee of any person who utilizes or performs significant
                railroad safety-related services, as described in Sec. 271.205(a)(3),
                if that employee performs a function identified in paragraphs (1)
                through (5) of this definition.
                Sec. 271.603 Purpose and scope of a Fatigue Risk Management Program
                (FRMP).
                 (a) Purpose. The purpose of an FRMP is to improve railroad safety
                through structured, proactive processes and procedures a railroad
                subject to this part develops and implements. A railroad's FRMP shall
                systematically identify and evaluate the fatigue-related railroad
                safety hazards on its system, determine the degree of risk associated
                with each hazard, and manage those risks to reduce the fatigue that its
                safety-related railroad employees experience and to reduce the risk of
                railroad accidents, incidents, injuries, and fatalities where the
                fatigue of any of these employees is a contributing factor.
                 (b) Scope. A railroad shall:
                 (1) Design its FRMP to reduce the fatigue its safety-related
                railroad employees experience and to reduce the risk of railroad
                accidents, incidents, injuries, and fatalities where the fatigue of any
                of these employees is a contributing factor;
                 (2) Develop its FRMP by conducting a system-wide fatigue-risk
                analysis that accounts for the varying circumstances of its operations
                on different parts of its system; and
                 (3) Employ in its FRMP the fatigue risk mitigation strategies the
                railroad identifies as appropriate to address those varying
                circumstances.
                Sec. 271.605 General requirements; procedure.
                 (a) Each railroad subject to this part shall:
                 (1) Establish and implement an FRMP as part of its RRP; and
                 (2) Establish an FRA-approved FRMP plan as a component of a
                railroad's FRA-approved RRP plan and then update the FRMP plan as
                necessary as part of the annual internal assessment of its RRP under
                Sec. 271.401.
                 (b) A railroad's FRMP plan must explain the railroad's method of
                analysis of fatigue risks and the railroad's process(es) for
                implementing its FRMP.
                 (c)(1) A railroad shall submit an FRMP plan to FRA for approval no
                later than either the applicable timeline in Sec. 271.301(b) for
                filing its RRP plan or [date six months after publication of the final
                rule in the Federal Register], whichever is later; and
                 (2) A railroad shall submit updates to its FRMP plan under the
                process for amending its RRP plan in Sec. 271.303.
                 (d) FRA shall review and approve or disapprove a railroad's FRMP
                plan under the process for reviewing RRP plans in Sec. 271.301(d) and
                updates to the railroad's FRMP plan under the process for reviewing
                amendments to an RRP plan in Sec. 271.303(c).
                Sec. 271.607 Requirements for an FRMP.
                 (a) In general. An FRMP shall include an analysis of fatigue risks
                and mitigation strategies described in paragraphs (b) and (c) of this
                section.
                 (b) Analysis of fatigue risks. A railroad shall conduct a fatigue-
                risk analysis as part of its FRA-approved FRMP, which includes
                identification of fatigue-related railroad safety hazards, assessment
                of the risks associated with those hazards, and prioritization of risks
                for mitigation. At a minimum, railroads must consider the following
                categories of risk factors, as applicable:
                 (1) General health and medical conditions that can affect the
                fatigue levels among the population of safety-related railroad
                employees;
                 (2) Scheduling issues that can affect the opportunities of safety-
                related railroad employees to obtain sufficient quality and quantity of
                sleep; and
                 (3) Characteristics of each job category safety-related railroad
                employees work that can affect fatigue levels and risk for fatigue of
                those employees.
                 (c) Mitigation strategies. A railroad shall develop and implement
                mitigation strategies to reduce the risk of railroad accidents,
                incidents, injuries, and fatalities where fatigue of any of its safety-
                related employees is a contributing factor. At a minimum, in developing
                and implementing these mitigation strategies, a railroad shall consider
                the railroad's policies, practices, and communications related to its
                safety-related railroad employees.
                 (1) Policies. A railroad shall consider developing and implementing
                policies to reduce the risk of the exposure of its safety-related
                railroad employees to fatigue-related railroad safety hazards on its
                system. At a minimum, a railroad shall consider these policies:
                 (i) Providing opportunities for identification, diagnosis, and
                treatment of any medical condition that may affect alertness or
                fatigue, including sleep disorders;
                [[Page 83509]]
                 (ii) Identifying methods to minimize accidents and incidents that
                occur as a result of working at times when scientific and medical
                research have shown increased fatigue disrupts employees' circadian
                rhythms;
                 (iii) Developing and implementing alertness strategies, such as
                policies on napping, to address acute drowsiness and fatigue while an
                employee is on duty;
                 (iv) Increasing the number of consecutive hours of off-duty rest,
                during which an employee receives no communication from the employing
                railroad or its managers, supervisors, officers, or agents; and
                 (v) Avoiding abrupt changes in rest cycles for employees.
                 (2) Practices. A railroad shall consider developing and
                implementing operational practices to reduce the risk of exposure of
                its safety-related railroad employees to fatigue-related railroad
                safety hazards on its system. At a minimum, a railroad shall consider
                these practices:
                 (i) Minimizing the effects on employee fatigue of an employee's
                short-term or sustained response to emergency situations, such as
                derailments and natural disasters, or engagement in other intensive
                working conditions;
                 (ii) Developing and implementing scheduling practices for
                employees, including innovative scheduling practices, on-duty call
                practices, work and rest cycles, increased consecutive days off for
                employees, changes in shift patterns, appropriate scheduling practices
                for varying types of work, and other aspects of employee scheduling to
                reduce employee fatigue and cumulative sleep loss; and
                 (iii) Providing opportunities to obtain restful sleep at lodging
                facilities, including employee sleeping quarters provided by the
                railroad carrier.
                 (3) Communication. A railroad shall consider developing and
                implementing training, education, and outreach methods to deliver
                fatigue-related information effectively to its safety-related railroad
                employees. At a minimum, a railroad shall consider communications
                regarding employee education and training on the physiological and
                human factors that affect fatigue, as well as strategies to reduce or
                mitigate the effects of fatigue, based on the most current scientific
                and medical research and literature.
                 (d) Evaluation. A railroad shall develop and implement procedures
                and processes for monitoring and evaluating its FRMP to assess whether
                the FRMP effectively meets the goals its FRMP plan describes under
                Sec. 271.609(b).
                 (1) The evaluation shall include, at a minimum:
                 (i) Periodic monitoring of the railroad's operational environment
                to detect changes that may generate new hazards;
                 (ii) Analysis of the risks associated with any identified hazards;
                and
                 (iii) Periodic safety assessments to determine the need for changes
                to its mitigation strategies.
                 (2) A railroad shall evaluate newly-identified hazards, and hazards
                associated with ineffective mitigation strategies, through processes
                for analyzing fatigue risks described in the railroad's FRMP plan.
                 (3) Any necessary changes not addressed prior to a railroad's
                annual internal assessment must be included in the internal assessment
                improvement plans required under Sec. 271.403.
                Sec. 271.609 Requirements for a FRMP plan.
                 (a) In general. A railroad shall adopt and implement its FRMP
                through an FRA-approved FRMP plan, developed in consultation with
                directly affected employees as described under Sec. 271.207. A
                railroad FRMP plan must contain the elements described in this section.
                The railroad must submit the plan to FRA for approval under the
                criteria of subpart D.
                 (b) Goals. An FRMP plan must contain a statement that defines the
                specific fatigue-related goals of the FRMP and describes strategies for
                reaching those goals.
                 (c) Methods--(1) Analysis of fatigue risk. An FRMP plan shall
                describe a railroad's method(s) for conducting its fatigue-risk
                analysis as part of its FRMP. The description shall specify:
                 (i) The scope of the analysis, which is the covered population of
                safety-related railroad employees;
                 (ii) The processes a railroad will use to identify fatigue-related
                railroad safety hazards on its system and determine the degree of risk
                associated with each fatigue-related hazard identified;
                 (iii) The processes a railroad will use to compare and prioritize
                identified fatigue-related risks for mitigation purposes; and
                 (iv) The information sources a railroad will use to support ongoing
                identification of fatigue-related railroad safety hazards and determine
                the degree of risk associated with those hazards.
                 (2) Mitigation strategies. An FRMP plan shall describe a railroad's
                processes for:
                 (i) Identifying and selecting fatigue risk mitigation strategies;
                and
                 (ii) Monitoring identified fatigue-related railroad safety hazards.
                 (3) Evaluation. An FRMP plan shall describe:
                 (i) A railroad's processes for monitoring and evaluating the
                overall effectiveness of its FRMP and the effectiveness of fatigue-
                related mitigation strategies the railroad uses under Sec. 271.607;
                and
                 (ii) A railroad's procedures for reviewing the FRMP as part of the
                annual assessment of its RRP under Sec. 271.401 and for updating the
                FRMP plan under the process for amending its RRP plan under Sec.
                271.303.
                 (d) FRMP implementation plan. A railroad shall describe in its FRMP
                plan how it will implement its FRMP. This description must cover an
                implementation period not to exceed 36 months, and shall include:
                 (1) A description of the roles and responsibilities of each
                position or job function with significant responsibility for
                implementing the FRMP, including those held by employees, contractors
                who provide significant FRMP-related services, and other entities or
                persons that provide significant FRMP services;
                 (2) A timeline describing when certain milestones that must be met
                to implement the FRMP fully will be achieved. Implementation milestones
                shall be specific and measurable;
                 (3) A description of how the railroad may make significant changes
                to the FRMP plan under the process for amending its RRP plan in Sec.
                271.303; and
                 (4) The procedures for consultation with directly affected
                employees on any subsequent substantive amendments to the railroad's
                FRMP plan. The requirements of this section do not apply to non-
                substantive amendments (e.g., amendments that update names and
                addresses of railroad personnel).
                 (e) Submittal. A railroad shall amend its RRP plan submitted under
                subpart D of this part to include its FRMP plan that meets the
                requirements of this section no later than August 19, 2021.
                 (1) A railroad shall follow the procedures in Sec. 271.303 to
                amend its RRP plan.
                 (2) If a railroad was not required to submit an RRP plan initially,
                but is required to do so at a later date, the railroad shall either
                include an FRMP plan as part of its RRP plan submission under Sec.
                271.301 or submit its FRMP plan in accordance with the procedures for
                amending its RRP plan under Sec. 271.303 no later than August 19,
                2021, whichever is later.
                 Issued in Washington, DC.
                Quintin C. Kendall,
                Deputy Administrator.
                [FR Doc. 2020-27085 Filed 12-21-20; 8:45 am]
                BILLING CODE 4910-06-P
                

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