Re: New Hours Rules for Train Crews ... in 545 days!

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Some members of the Working Group suggested that there should be a way to determine a template for schedules that would be deemed not to violate the fatigue threshold. As was discussed above, the Task Force presented schedule analyses showing that a schedule in which an employee began work at 4 a.m. and was relieved at 8 p.m., resulting in a duty tour with a total time on duty of 12 hours, with a 4-hour period of interim release, did not violate the fatigue threshold.


Based on this analysis, FRA initially defined any assignment beginning no earlier than 4 a.m. and ending no later than 8 p.m., assuming at least a 4-hour period of interim release, as a Type 1 assignment, which would be deemed not to violate the fatigue threshold. Assignments that included any period of time outside the defined time parameters of a Type 1 assignment would be considered a Type 2 assignment, which would be subject to more stringent requirements, including analysis of the schedule using a scientifically valid biomathematical model, and a more restrictive limit on the number of consecutive days on which an employee working such an assignment would be allowed to initiate an on-duty period.

However, some Task Force members pointed out that there could be assignments that include time outside the time parameters of a Type 1 assignment that would not violate the fatigue threshold. In some cases these schedules would only have a small amount of their overall time outside of the Type 1 parameters. For example, an assignment might begin at 4:30 a.m. and end at 8:30 p.m. In addition, some assignments might not violate the threshold because of the short duration of the duty tour involved, such as, perhaps, an assignment from 5 p.m. until 9:30 p.m.

Based on these considerations, FRA amended the definition of ‘‘Type 2 assignment’’ to indicate that if an assignment does not include any time between midnight and 4 a.m., then the particular time of day or night that an assignment is to be performed is not the only determinant of whether an assignment is considered a Type 2 assignment. In particular, a Type 2 assignment that is analyzed using a scientifically valid biomathematical model and is determined not to violate the fatigue threshold, and that includes no period of time between midnight and 4 a.m., would be considered a Type 1 assignment.

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Strasburg suggests that Class III tourist, scenic, historic, and excursion railroad operations should be excluded from the schedule-analysis requirements of this rule, and specifically excluded from the definition of ‘‘Type 2 assignment,’’ because of the nature of these operations. Strasburg contends that, even in their busiest periods, these operations generally operate shorter assignments than the duration permitted for a Type 1 assignment under this rule. In addition, employees rarely work more than five days in a row, and schedules begin and end at the same time and location each day. FRA acknowledges that the nature of these operations reduces the risk of cumulative fatigue experienced by employees of such railroads.


While FRA does not believe these operations should be categorically excluded from the requirements of this regulation, FRA will delay the compliance date for tourist, scenic, historic and excursion railroads until 18 months from the effective date of the final rule, or a year longer than other railroads will have to complete their work schedule analysis and make any required submission of schedules and fatigue mitigation tools to FRA. This extra year to prepare to comply would allow additional time for such operations to obtain necessary resources, but may also allow many such operations to avoid the necessity of obtaining access to an approved biomathematical model and analyzing schedules, if their only Type 2 assignments had already been approved by FRA on the submission of another railroad, or had been modeled by another railroad and showed that they could be treated as Type 1.

This deferral of the compliance date is also consistent with a suggestion in APTA’s comments that FRA should allow a schedule approved for one railroad to be used by others without also having to analyze the same schedule. FRA will create a public docket of schedules that it has approved, but if such a listing is to be complete, railroads would have to submit to the docket established for that purpose those Type 2 schedules that they analyze and determine do not violate the fatigue threshold and do not need to be mitigated or submitted to FRA for approval and can be treated as Type 1.

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FRA also remains mindful that the law provides an option that enables the regulated community to seek waivers to implement pilot projects in accordance with the requirements of 49 U.S.C. 21108(a) and encourages members of the regulated community to consider this option. Pursuant to 49 CFR part 211, subpart C, the Railroad Safety Board will consider whether or not granting such waivers would be in the public interest and consistent with railroad safety. Where warranted, and upon the necessary showing, FRA may grant waivers of the requirements of this rule, including requirements concerning the maximum number of consecutive days or days in a 14-day period that an employee may work, to allow for the establishment of pilot projects to demonstrate the possible benefits of implementing alternatives to the strict application of the requirements contained in this rule.