[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Notices]
[Pages 48968-48970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13900]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Proposed Agency Information Collection Activities; Comment 
Request

AGENCY: Federal Railroad Administration, DOT.

ACTION: Notice and Request For Comments.

-----------------------------------------------------------------------

SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.), this notice announces that the Information 
Collection Request (ICR) abstracted below has been forwarded to the 
Office of Management and Budget (OMB) for review and comment. The ICR 
describes the nature of the information collection and its expected 
burden. The Federal Register notice with a 60-day comment period 
soliciting comments on the following collection of information was 
published on June 16, 2006 (71 FR 34990).

DATES: Comments must be submitted on or before September 21, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Brogan, Office of Planning 
and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 
Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 
493-6292), or Gina Christodoulou, Office of Support Systems, RAD-20, 
Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, 
Washington, DC 20590 (telephone: (202) 493-6139). (These telephone 
numbers are not toll-free.)

SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13, section 2, 109 Stat. 163 (1995) (codified as revised 
at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 
1320, require Federal agencies to issue two notices seeking public 
comment on information collection activities before OMB may approve 
paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 
1320.12. On June 16, 2006, FRA published a 60-day notice in the Federal 
Register soliciting comment on ICRs that the agency was seeking OMB 
approval. 71 FR 34990. FRA received one comment in response to this 
notice.
    The comment submitted came from the Association of American 
Railroads (AAR). AAR opposes OMB renewal of this information collection 
because FRA has not yet fully accommodated its request concerning 
electronic recordkeeping for the Hours of Duty Records required in this 
collection. Specifically, AAR remarks:

    * * * FRA's hours of service regulations illegally discriminate 
against electronic records. FRA's regulations only permit paper 
records because 49 CFR section 228.9 requires that HOS [Hours of 
Service] records be ``signed'' by the employee whose time on duty is 
being recorded (or by the ranking crew member, in the case of train 
crews). A railroad has to apply for a waiver to keep HOS records 
electronically.

    AAR argues that ``FRA has chosen the use of the waiver program to 
impose requirements that do not apply for paper records.'' Further, AAR 
states:

    FRA has required railroads to, inter alia,
     Develop computer programs capable of measuring and 
analyzing records to determine compliance with HOS requirements, 
focusing on issues such as time spent ``deadheading'' (nonworking 
travel not including commuting), ``commingled'' service (service not 
subject to HOS restrictions), and employee reports of excess 
service;
     Establish quality-assurance programs consisting of 
regular and remedial training as determined by FRA and utilizing 
materials reviewed by FRA; and
     Make electronic records accessible to FRA through 
various field locations.

    AAR observes that ``there are no comparable requirements for paper 
records.'' AAR goes on to note that ``the Government Paperwork 
Elimination Act (GPEA) required OMB to develop procedures for the 
acceptance of electronic records'' and that ``by Oct. 21, 2003, OMB was 
to ensure that agencies provide an option for the maintenance of 
records electronically and, where practicable, the use of electronic 
signatures.'' AAR believes that FRA's ``hours of service regulations 
violate the GPEA's mandate to facilitate electronic records.''
    FRA and its representatives have a long relationship with AAR. 
There have been many contacts and discussions between FRA and AAR 
officials regarding the Hours of Service Regulations and electronic 
recordkeeping. FRA has been working for some time with the AAR on this 
issue. FRA has meet with AAR representatives, and has indicated its 
intention to act on AAR's request regarding electronic recordkeeping. 
FRA has a team now working on a proposed rule to enable electronic 
recordkeeping (which would eliminate the need for waivers), so AAR's 
belief that FRA is unresponsive and that no progress has been made is 
not correct. By its nature, the process of regulatory development and 
enactment is a slow one. Moreover, FRA has communicated to AAR that top 
agency officials and specialists are available to work on any issues 
under current waivers while a proposed rule is being developed.
    In its comments, AAR admits that electronic recordkeeping option 
has been and is available through agency waivers. FRA clearly then has 
no bias against electronic records. In fact, FRA has long encouraged 
the use of electronic recordkeeping, wherever feasible, to reduce 
burden on respondents. However, because the work of ``covered 
employees'' directly impacts rail safety and because ``fatigue'' 
resulting from excessive work hours is a direct threat to public safety 
and the safety of train crews and other railroad workers, FRA must 
ensure that the Federal hours of service (HOS) laws are strictly 
adhered to in order to meet its primary safety mission and its 
statutory obligation for HOS oversight. Although FRA permitted 
railroads to do away with various costly and cumbersome paper records, 
AAR complains that FRA imposes additional

[[Page 48969]]

requirements for electronic records, overlooking the fact that the 
eliminated paper records provided FRA with much information that it 
needs to fulfill its statutory HOS oversight.
    The Interstate Commerce Commission (ICC), in 1921, mandated hours 
of duty record keeping with specific data fields that facilitated its 
statutory oversight obligations. The format and instructions presented 
in the ICC order have continued to be used by railroads until the 
beginning of electronic hours of duty programs in the mid 1990's. 
However, in 1969, the U.S. Congress amended the HOS to create a second 
duty tour category that was neither On Duty Time nor Off Duty Time. FRA 
refers to that category as Limbo Time. The existing record keeping 
requirements, much of which was carried over from the ICC Order, were 
not changed as a result of the statutory amendment primarily because 
the ``other'' existing record keeping requirements, i.e., Delay Report, 
of the ICC Order provided the necessary information to determine Limbo 
Time. Railroads utilizing the Electronic waiver process are not 
required to maintain the Delay Report segment of the original ICC 
Order. Instead, the programs include an additional data field, titled 
``Relieved Time,'' to identify the beginning of the Limbo Time. The 
former Off Duty field used prior to the HOS amendment has been changed 
to Released Time, i.e., the end of Limbo Time and the beginning of a 
Statutory Off Duty period. Without these fields or the Delay Report, 
neither FRA nor the railroads can accurately determine Total Time On 
Duty nor when the employees rest period begins.
    Monitoring Indicators is an electronic oversight not feasible in 
paper records. These indicators point to excess service and/or obvious 
reporting flaws that liable the railroad through the penalty schedule 
contained in the HOS and the Code of Federal Regulations Part 228. If 
reporting flaws remain unchecked by the railroad, FRA is left with a 
record that does not facilitate its oversight and employee safety 
concerns for statutory compliance.
    Training requirements contained in the Electronic waivers 
necessitate that railroads train their employees and supervisors in the 
applications of the HOS. The purpose of the FRA review is to make 
certain that the training materials properly describe and explain to 
employees the proper entry of data needed to determine compliance with 
the law. Without an accurate record with data based on the HOS, FRA can 
not meet its oversight obligations.
    Finally, regarding AAR's allusion to the requirements of the 
Government Paperwork Elimination Act (GPEA), FRA is fully compliant. 
GPEA itself stipulates that ``executive agencies provide for the option 
of electronic maintenance, submission, or disclosure of information as 
a substitute for paper and for the use and acceptance of electronic 
signatures, when practicable.'' Because there is no Federal Government, 
OMB, or Transportation Department standard for electronic recordkeeping 
and electronic signatures, FRA set up the Electronic waiver process so 
that it can closely scrutinize individual railroad requests for 
electronic recordkeeping relating to the Hours of Duty Records. In 
section 1703 of GPEA relating to the use and acceptance of electronic 
signatures by executive agencies, the law specifically states that the 
procedures developed by executive agencies ``shall ensure that 
electronic signatures are as reliable as is appropriate for the purpose 
in question and keep intact the information submitted.'' Until a 
proposed rule for electronic recordkeeping is completed, FRA's 
Electronic waiver process attempts to do exactly that by setting 
requirements for the integrity, reliability, accessibility, and 
security of railroad HOS electronic recordkeeping systems. At the same 
time, FRA's waiver system has been set up to be fully enforceable 
legally and thus is completely in compliance with Section 1707 of GPEA. 
This section states:

    Electronic records submitted or maintained in accordance with 
the procedures developed under this title, or electronic signatures 
or other forms of electronic authentication used in accordance with 
such procedures, shall not be denied legal effect, validity, or 
enforceability because records are in electronic form.

    In sum, it is in everyone's best interest--the American public's, 
the railroads' and their employees, AAR's, and FRA's--that this 
collection of information be renewed by OMB. Although FRA has not 
issued an electronic rulemaking as quickly as the AAR would like, the 
agency is working on it and is taking the time necessary to do it 
right.
    Before OMB decides whether to approve this proposed collection of 
information, it must provide 30 days for public comment. 44 U.S.C. 
3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or 
disapprove paperwork packages between 30 and 60 days after the 30-day 
notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d); see also 
60 FR 44978, 44983, Aug. 29, 1995. OMB believes that the 30-day notice 
informs the regulated community to file relevant comments and affords 
the agency adequate time to digest public comments before it renders a 
decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should 
submit their respective comments to OMB within 30 days of publication 
to best ensure having their full effect. 5 CFR 1320.12(c); see also 60 
FR 44983, Aug. 29, 1995.
    The summary below describes the nature of the information 
collection request (ICR) and the expected burden. The revised request 
is being submitted for clearance by OMB as required by the PRA.
    Title: Hours of Service Regulations.
    OMB Control Number: 2130-0005.
    Type of Request: Extension of a currently approved collection.
    Affected Public: Businesses.
    Form(s): N/A.
    Abstract: The collection of information is due to the railroad 
Hours of Service Regulations set forth in 49 CFR part 228 which require 
railroads to collect the Hours of Duty for covered employees, and 
records of train movements. Railroads whose employees have exceeded 
maximum duty limitations must report the circumstances. Also, a 
railroad that has developed plans for construction or reconstruction of 
sleeping quarters (Subpart C of 49 CFR part 228) must obtain approval 
of the Federal Railroad Administration (FRA) by filing a petition 
conforming to the requirements of Sections 228.101, 228.103, and 
228.105.
    Annual Estimated Burden Hours: 3,294,676.
    Addressee: Send comments regarding these information collections to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 Seventeenth Street, NW., Washington, DC, 20503; 
Attention: FRA Desk Officer.
    Comments are invited on the following: Whether the proposed 
collections of information are necessary for the proper performance of 
the functions of FRA, including whether the information will have 
practical utility; the accuracy of FRA's estimates of the burden of the 
proposed information collections; ways to enhance the quality, utility, 
and clarity of the information to be collected; and ways to minimize 
the burden of the collections of information on respondents, including 
the use of automated collection techniques or other forms of 
information technology.
    A comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication of this notice in the Federal 
Register.

    Authority: 44 U.S.C. Sec. Sec.  3501-3520.


[[Page 48970]]


    Issued in Washington, DC on August 16, 2006.
D.J. Stadtler,
Director, Office of Budget, Federal Railroad Administration.
[FR Doc. E6-13900 Filed 8-21-06; 8:45 am]
BILLING CODE 4910-06-P