[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Rules and Regulations]
[Pages 25330-25352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12059]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 228



Hours of Service of Railroad Employees; Amended Recordkeeping and 
Reporting Regulations; Final Rule

  Federal Register / Vol. 74, No. 100 / Wednesday, May 27, 2009 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. 2006-26176, Notice No. 1]
RIN 2130-AB85


Hours of Service of Railroad Employees; Amended Recordkeeping and 
Reporting Regulations

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

ACTION: Final rule.

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SUMMARY: FRA is amending its hours of service recordkeeping and 
reporting regulations to ensure the creation of records that support 
compliance with the hours of service laws as amended by the Rail Safety 
Improvement Act of 2008 (RSIA of 2008). This regulation will also 
provide for electronic recordkeeping and reporting, and will require 
training of employees and supervisors of those employees, who are 
required to complete hours of service records, or are responsible for 
making determinations as to excess service and the reporting of excess 
service to FRA as required by the regulation. This regulation is 
required by Section 108(f) of the RSIA of 2008.

DATES: This final rule is effective July 16, 2009. Petitions for 
reconsideration must be received on or before July 6, 2009.

ADDRESSES: Petitions for reconsideration: Any petitions for 
reconsideration related to Docket No. FRA-2006-26176, may be submitted 
by any of the following methods:
     Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all petitions received will be posted without 
change to http://www.regulations.gov including any personal 
information. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted petitions, comments, or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to Room W12-140 
on the Ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Norris, Operating Practices 
Specialist, Operating Practices Division, Office of Safety Assurance 
and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6242); or Colleen A. Brennan, 
Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, 
SE., RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6028 
or 202-493-6052).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background and History
    A. Statutory History
    B. History of Hours of Service Recordkeeping
II. Rail Safety Improvement Act of 2008
    A. Substantive Changes to the HSL
    B. Rulemaking Mandate
III. Railroad Safety Advisory Committee Process
    1. Multiple-Train Reporting
    2. Pre-Population of Data
    3. Tie-up Procedures for Signal Employees
    4. Tracking Cumulative Totals Toward the 276-Hour Monthly 
Maximum Limitation
    5. Multiple Reporting Points
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Statutory Authority
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272
    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment

I. Background and History

A. Statutory History

    Federal laws governing railroad employees' hours of service date 
back to 1907. See Public Law 59-274, 34 Stat. 1415 (1907). These laws, 
codified at 49 U.S.C. 21101 et seq. are intended to promote safe 
railroad operations by limiting the hours of service of certain 
railroad employees and ensuring that they receive adequate 
opportunities for rest in the course of performing their duties. The 
Secretary of Transportation (``Secretary'') is charged with the 
administration of those laws, 49 U.S.C. 103(a), now collectively 
referred to as the HSL. These functions have been delegated to the FRA 
Administrator. 49 U.S.C. 103(c); 49 CFR 1.49(d).
    Congress substantially amended the HSL on two previous occasions. 
The first significant amendments occurred in 1969. Public Law 91-169, 
83 Stat. 463. The 1969 amendments reduced the maximum time on duty for 
train employees from 16 hours to 14 hours effective immediately, with a 
further reduction to 12 hours automatically taking effect two years 
later. Congress also established provisions for determining, in the 
case of a train employee, whether a period of time is to be counted as 
time on duty. 49 U.S.C. 21103(b). In so doing, Congress also addressed 
the issue of deadhead transportation time, providing that ``[t]ime 
spent in deadhead transportation to a duty assignment'' is counted as 
time on duty. (Emphasis added). Although time spent in deadhead 
transportation from a duty assignment is not included within any of the 
categories of time on duty, Congress further provided that it shall be 
counted as neither time on duty nor time off duty. 49 U.S.C. 
21103(b)(4). This provision effectively created a third category of 
time, known commonly as ``limbo time.''
    In 1976, Congress again amended the hours of service laws in 
several important respects. Most significantly, Congress expanded the 
coverage of the laws, by including hostlers within the definition of a 
train employee, and adding the section providing hours of service 
requirements for signal employees, now codified at 49 U.S.C. 21104. 
Congress also added a provision that prohibited a railroad from 
providing sleeping quarters that are not free from interruptions of 
rest caused by noise under the control of the railroad, and that are 
not clean, safe, and sanitary, and prohibited the construction or 
reconstruction of sleeping quarters in an area or in the immediate 
vicinity of a rail yard in which humping or switching operations are 
performed. See Public Law 94-348, 90 Stat. 818 (1976).

B. History of Hours of Service Recordkeeping

    With the formation of DOT and its regulatory agencies in 1966, the 
oversight and enforcement of the HSL was transferred from the 
Interstate Commerce Commission (ICC) to the newly established FRA. 
Prior to this transfer the ICC had enforced reporting requirements 
based on its May 2, 1921

[[Page 25331]]

order that established the records required to be maintained by 
carriers relating to the time on duty of employees who were involved in 
either the movement of trains (referred to in the current HSL as 
``train employees'') or the issuance of movement authority (referred to 
in the current HSL as ``dispatching service employees''). The ICC Order 
mandated both the content and the format of the hours of service record 
for train employees and dispatching service employees.
    The records required by the ICC Order included one titled ``Time 
Return and Delay Report of Engine and Train Employees.'' The format and 
required fields mandated for this record formed the basis for all train 
employee hours of service recordkeeping and reporting, and for the 
reporting requirements initially established by FRA for hours of 
service recordkeeping by railroad employees in 49 CFR part 228, and 
specifically Sec.  228.11.
    The ICC Order also mandated the format for a form titled ``Details 
of Service'', which was a required part of the train employee's hours 
of service record. This segment of the employee's record required the 
railroads to report operational data that included train number, engine 
number, the departure station, the time that the employee went on duty, 
the time the train departed, the arrival station, the time the train 
arrived, the time the employee went off duty, and the kind of service 
in which the employee was working, i.e., passenger, freight, work 
train, or deadhead. The Details of Service form contained entries for 
each train with which an employee was associated during a duty tour.
    As was discussed above, the 1969 amendments to the HSL addressed 
the issue of time spent by train employees in deadhead transportation 
from a duty assignment to the point of final release, establishing that 
such time is neither time on duty nor time off duty, which created a 
new category of time that has come to be known as ``limbo time.'' 
Following the 1969 amendments, the railroads continued to use the ICC 
recordkeeping formats. The ``Time Return'' portion of the recordkeeping 
document only provided a place to enter on-duty time and off-duty time, 
and could not accommodate the separate entry of limbo time. However, 
the railroads also continued to use the ``Details of Service'' portion, 
and this form became critical to proper recordkeeping. The ``Details of 
Service'' required train arrival and departure times, usually included 
comments as to when the crew had finished securing the train and 
therefore was relieved from covered service, and indicated the 
departure and arrival times of the deadhead vehicle and final release 
from service. With this information, it was possible to differentiate 
an employee's time spent on duty in covered service from time that was 
spent awaiting deadhead transportation and in deadhead transportation 
to the point of final release, which was limbo time.
    The 1921 ICC Order also required records and provided recordkeeping 
formats for dispatching service employees, including records of 
dispatchers' time on duty, and records documenting train operation over 
the territory controlled by each dispatcher. The required records for 
dispatching service employees included the ``Daily Time Report of 
Dispatchers,'' the ``Dispatchers Record of Movement of Trains'', and 
for those dispatching service employees known as operators, in addition 
to the ``Daily Time Report of Dispatchers,'' a ``Station Record of 
Train Movements,'' a form that identified the operators by shift, and 
required the operator to list the train or engine number, along with 
the arrival and departure times for each train passing the specific 
station where the operator was located. Following the transfer of 
responsibilities, FRA adopted the ICC's established reporting 
requirements for dispatching service employees, but did not require its 
specific format. However, the formats and data fields are still used, 
even currently, by virtually all railroads that employ dispatching 
service employees.
    As was discussed above, the Federal Railroad Safety Authorization 
Act of 1976 expanded coverage of the HSL to signal employees. Congress 
defined a signal employee as an individual employed by a railroad 
carrier who is engaged in installing, repairing, or maintaining signal 
systems. This, in effect, excluded contract signal employees from the 
coverage of the HSL. The statutory limitations for signal employees 
were very similar to those for train employees. Also, in both cases, 
the HSL treated the time these employees reported for duty as the time 
covered service began, irrespective of whether or not a covered 
function was actually performed. In addition, both train employees and 
signal employees had periods of time spent in travel to and from a duty 
location, some of which the HSL treated as limbo time. Also, in both 
cases, the HSL treated the time that one of these employees ``reports 
for duty'' as the time that time on duty began. Because of the 
similarities in their statutory provisions, the recordkeeping 
requirements for these two functions were also quite similar, and FRA 
did not need to revise its reporting requirements to establish distinct 
recordkeeping provisions for signal employees.
    The 1921 ICC Order also stated, in part, that ``each carrier may at 
its option, and with the approval of the Commission, add to such 
records appropriate blanks for any additional information desired by 
it.'' Over time, railroads came to record information for employee pay 
claims, railroad operations and crew management on the same form that 
was used for hours of service recordkeeping. The combination of pay and 
hours of service information on the same document facilitated employee 
hours of service reporting practices that were greatly influenced by 
collective bargaining agreements and pay considerations, where 
differences existed between the activities for which a collective 
bargaining agreement required an employee to be paid, and those 
activities required to be reported for the purposes of the HSL. For 
example, an employee might report that he or she went off duty at the 
time that his or her paid activities ended. This would not be accurate 
reporting for the purposes of the HSL, if the duty tour included 
deadhead transportation to the point of final release. Regardless of 
whether an employee received additional pay for the deadhead 
transportation, the HSL required the time to be recorded, and the 
employee would not be off duty for the purposes of the HSL until after 
the completion of the deadhead transportation.
    As technology expanded in the rail industry, some railroads in the 
1980s became interested in electronically recording and reporting 
employee hours of service data. By the mid to late 1980s, the CSX 
Transportation, Inc. (CSX) had developed an automated program generated 
from its crew management system. CSX began using the program to 
generate and maintain hours of service records for its train employees. 
The program produced paper copies of the recorded entries for the 
employee's signature. Then, in 1991, CSX and the Union Pacific Railroad 
Company jointly presented a proposal to use an electronic record, 
without a signature, as the railroad's official train employee hours of 
service record. Section 228.9 of the existing hours of service 
recordkeeping regulations required that the hours of service record be 
signed. Therefore, it was necessary for FRA to waive the signature 
requirement, to allow for the development of a program that would allow 
the railroad and its train employees to electronically record and store 
hours of service information, with the employee electronically 
certifying the accuracy of the entered

[[Page 25332]]

data, so that this record would become the official hours of service 
record, in lieu of a signed paper record. As CSX worked to develop an 
electronic program for which FRA would grant a waiver, a number of 
issues became apparent. These issues had to be resolved to ensure that 
the system would have sufficient data fields to allow the employee to 
record the different events that occurred in his or her duty tour, to 
capture all of the data necessary for FRA to determine compliance with 
the HSL.
    The concept of electronic recordkeeping presented a significant 
change in how employees were used to reporting their hours of service 
information. Data entry moved from a dynamic manual reporting method, 
in which a record was continually updated by the reporting employee 
during the course of his or her duty tour, to an automated end-of-trip 
report where all reporting related to a particular duty tour was made 
in after-the-fact entries into the railroad's computer system, after 
the completion of the duty tour. In addition, manual records afforded 
the employee flexibility to provide information about any activities 
that occurred during the duty tour, as well as any comments that might 
be necessary to understand any apparent anomalies in reported 
information. However, an electronic record would be limited to the data 
fields provided by the recordkeeping program, so it was essential that 
the programs were designed to provide sufficient data fields to 
accommodate the variety of reporting scenarios that an employee might 
encounter, so that the employee had the opportunity to record all 
relevant data for the events that occurred in his or her duty tour.
    CSX's first attempt to develop an electronic recordkeeping system 
resulted in a program that functioned in much the same manner as a 
paper record, but without the comprehensive information provided by the 
``Details of Service'' portion of the employee's record. It was on this 
portion of their record that employees recorded a number of items that 
were necessary for determining compliance with the HSL, including 
deadhead transportation either to or from a duty assignment, multiple 
covered service assignments, other activities performed for the carrier 
that constituted commingled service if not separated from covered 
service by a statutory off-duty period, and the distinct times that an 
employee was relieved from covered service, and then subsequently 
released from all service to begin a statutory off-duty period, which 
would not be the same times when limbo time was present at the end of 
the duty tour. In addition, the first attempt at an electronic 
recordkeeping system also had not considered the features of the system 
itself, that were necessary for ensuring the accuracy of the data and 
the ability of FRA to use the data to determine compliance with the 
HSL. These features included program logic that was necessary, for 
example, to calculate total time on duty from the appropriate data 
entered in the record, to require explanation when the total time on 
duty exceeded the statutory maximum, and to use program edits to 
identify obvious employee input errors. The mechanism for providing FRA 
with the ability to access the electronic records was also an issue 
that needed to be resolved. Because part 228, as drafted in 1972, did 
not contemplate the existence of electronic recordkeeping, it provided 
no framework for addressing these issues.
    However, FRA and CSX pledged to work together through a ``test 
waiver'' process to develop a program with logic, edits, and access 
that would accommodate FRA oversight and enforcement of the current HSL 
provisions, and ultimately allow FRA to grant a waiver of the signature 
requirement, thereby allowing hours of service data to be both reported 
and recorded electronically. The FRA and CSX partnership eventually 
resulted in the development of a system containing sufficient data 
entry fields and system features to resolve many of the issues facing 
movement to electronic recordkeeping.
    Another significant issue that arose in the development of 
electronic recordkeeping systems was providing sufficient data fields 
to differentiate limbo time from time spent performing covered service, 
which distinction was necessary to correctly determine an employee's 
total time on duty. The electronic programs that were initially devised 
required the employee to report only an on-duty time and an off-duty 
time, and the beginning and ending times of periods spent in 
transportation. The records did not include the features of the delay 
report that had been a part of the paper records, on which employees 
included their beginning and ending location, date, and time for 
periods spent in covered service assignments, and noted, for example, 
that the ending time was the time at which the employee secured the 
train, which completed his or her covered service on that train.
    The railroads viewed this information as not being required by Part 
228, but this information was regularly used by FRA in reviewing 
records for compliance with the HSL, and it was essential that the 
information continue to be captured in electronic records. Without an 
indication of the time that the employee stopped performing covered 
service, there was no way to determine when the employee stopped 
accumulating time on duty and when he or she began limbo time. Once the 
employee stopped performing covered service, limbo time began, as the 
time that the employee spent awaiting transportation to the point of 
final release, like the transportation itself, was limbo time. However, 
if the employee's record showed only the time that the employee 
reported for duty, the time spent in transportation, and the off-duty 
time, all of the time between reporting for duty and beginning deadhead 
to the point of final release would necessarily be calculated as time 
on duty, which could result in a record that incorrectly showed a total 
time on duty in excess of the statutory maximum, because limbo time was 
not properly reflected.
    To resolve these complex issues, FRA developed a 3x3 matrix, in 
which an employee entered the location, date, and time for each time 
that he or she went on duty in covered service, the location, date, and 
time for each time that he or she was relieved from a covered service 
assignment, and the location, date, and time for each time that he or 
she was released from an assignment, to begin another assignment or 
activity, or to be released from all service to begin a period of off-
duty time. This 3x3 matrix was eventually incorporated in all of the 
waiver-approved electronic programs.
    However, deadhead transportation, and activities that constitute 
other service for the carrier (which may commingle with covered 
service) do not have relieved and released times in the activity. These 
activities have only a beginning and an ending time for each event. 
Thus, FRA also developed a second section of data entry, in which the 
employee reported the location, date, and time for the beginning and 
the ending of all non-covered service activities that are part of the 
employee's duty tour, but may or may not be calculated in the 
employee's total time on duty.
    FRA and CSX continued to work together until these early issues 
were sufficiently resolved, and eventually, CSX was granted a waiver of 
the signature requirement in Sec.  228.9. As a result, CSX was allowed 
to utilize an electronic recordkeeping program, in which its train 
employees reported their hours of service at the end of each duty tour, 
and those electronic records constituted the official hours of service

[[Page 25333]]

record for CSX train employees. As the use of electronic information 
systems further expanded in the industry, other railroads began 
developing, with assistance from FRA, electronic hours of service 
recordkeeping programs patterned somewhat after the original CSX 
program. During the development of the later programs, as well as 
audits of the CSX program after it was fully functioning, other issues 
began to surface, some of which remained topics of discussion during 
this rulemaking. Among those issues were the reporting of multiple 
covered service assignments in a duty tour, and administrative duties 
performed after the twelfth hour on duty.
    Multiple-train duty tours have occurred in the railroad industry 
for decades. As was discussed above, employees used the ``Details of 
Service'' section of the paper hours of service record to provide the 
times spent in covered service on each train to which the employee was 
assigned, and on each train on which the employee may have been in 
deadhead transportation, whether that deadhead transportation was 
transportation to the first covered service assignment of a duty tour, 
transportation from one covered service assignment to another within a 
duty tour, or transportation to the point of final release at the end 
of a duty tour. For many years, employees diligently reported each 
train to which they were assigned or on which they deadheaded, because 
employees were paid for a minimum 100-mile day for each such train. 
However, as collective bargaining agreements evolved, and employees 
were instead paid on the basis of actual miles run, it became more 
common to use a single crew to handle multiple trains.
    In the development of electronic programs, FRA was concerned that 
the programs initially lacked the ability to segment the employee's 
record by train, for data entry and program logic purposes, as well as 
for inspection and enforcement purposes. If an employee did not report 
individually the locations, dates, and times that he or she went on 
duty, was relieved, and was released for each covered service 
assignment in a multiple-train duty tour, the program read the data as 
if the employee had worked on one train with a lengthy and continuous 
period of time on duty, often in excess of the statutory 12-hour limit 
when a statutory interim release was present. In addition, FRA 
inspections yielded records that did not present all crew members 
assigned to a particular train, or in which trains appeared to 
disappear at one point on line-of-road and reappear at another point, 
suggesting that a record was missing in the database.
    Because all of the existing and developing programs were tied to 
the railroad's crew management, FRA proposed that railroad crew 
management initiate a separate call for each assignment, so that each 
would have a data entry screen created to differentiate between 
multiple covered service assignments in a duty tour. The railroads 
resisted this proposal because the additional calls would increase the 
level of work for crew dispatchers. The railroads also expressed 
concerns about collective bargaining issues regarding pay claims for 
each call. FRA noted, however, that there was past historical precedent 
for employees completing a separate report for each assignment, 
although there were pay-related reasons for doing so which were not now 
always present. However, this dispute led to a solution which would not 
require additional crew dispatcher involvement. Programs were designed 
to allow the employee to use a function key to access additional 
reporting screens for reporting multiple trains or non-covered service 
activities. This feature of the programs mimicked the manner in which 
employees previously added additional forms to reflect multiple 
assignments prior to electronic recordkeeping. Once the crew dispatcher 
has called a crew to duty on one train or job and has established the 
employee's initial reporting screens, the employee may work multiple 
assignments at the discretion of the railroad and report the activities 
involved in each train without the crew dispatcher having to take any 
further action to create another call to establish the necessary 
additional reporting screens. This feature not only allows the employee 
to report the actual events of his or her duty tour, but also allows 
the program's FRA Inspection System to identify and present records 
based on train identification.
    As was noted above, one of the many ways in which electronic 
recordkeeping represents a significant change in the way that employees 
report their time is that with electronic recordkeeping programs, all 
reporting is accomplished at time of tie-up, just prior to the 
employee's being released from all service to the carrier to begin a 
statutory off-duty period, the electronic record thereby becoming an 
``end-of-trip report.'' In contrast, manual records maintained by the 
reporting employee allowed the employee to periodically add information 
to the record while continuing with the activities of his or her duty 
tour. Then, when the reporting employee reached his or her point of 
final release, he or she would complete the reporting, sign the record, 
and place it in the appropriate collection receptacle. Also, any other 
reporting or recording activities, including payroll, or other data 
beyond hours of service for the benefit of either the railroad or the 
employee, were completed at this time. As long as the reporting 
employee had not reached the statutory limits for the duty tour, he or 
she was allowed to take as long as necessary to complete any reporting, 
recording, and other administrative duties. However, in the event that 
the reporting employee was at or beyond his or her statutory limits, 
FRA had a long standing policy of exercising prosecutorial discretion 
to allow a few minutes for the reporting employee to complete his or 
her administrative duties.
    However, as railroads moved to electronic recordkeeping, the 
reporting employee could not begin reporting any of his or her train 
operation, pay and hours of service data in an electronic program prior 
to arrival at his or her final terminal, so the time involved in 
completing the necessary reporting might exceed a few minutes, 
especially if a large amount of work order reporting or other 
documentation beyond hours of service was required. Railroad labor 
organizations challenged FRA's practice of allowing a few minutes in 
excess of the 12-hour statutory maximum time on duty to complete 
administrative duties. FRA recognized the validity of these concerns, 
but also recognized the need for certain information at the conclusion 
of the duty tour to ensure compliance with the HSL. The railroad must 
know both the time that an employee is relieved from covered service, 
and the time that the employee is released from all duties, in order to 
determine the minimum off-duty period that the employee required under 
the HSL, when to start the statutory off-duty period, and at what time 
the employee would have completed the minimum required rest to remain 
in compliance with the HSL. Because the employee is the one with first-
hand knowledge of these times as applied to his or her own duty tour, 
FRA believed that the employee was best suited to certify the accuracy 
of these times.
    FRA convened a Technical Resolution Committee (TRC) in 1996 to 
resolve this issue. Initially, the TRC leaned toward limiting the 
employee initiated tie-up to just a relieved time and a released time. 
Ultimately, however, two additional items were included, which were 
necessary to both the railroads and the employees from an operational 
perspective. Because many collective

[[Page 25334]]

bargaining agreements contained provisions for how and when an employee 
would be placed back in a pool or on an extra board following tie-up, 
both the railroad and the employee needed to be aware of the employee's 
placement time before the employee began the statutory off-duty period. 
Finally, FRA allowed the employee to enter information to provide a 
contact number, if different from the number on record, to ensure that 
the railroad could contact the employee regarding his or her next 
assignment.
    With these four items (a relieved time, a released time, a board 
placement time, and a contact number, if different from that of 
record), FRA believed that the railroad would have sufficient 
information to know when the employee could legally next be called to 
duty. Although the HSL does not authorize performance of any 
administrative duties in the period beyond the employee's statutory 
maximum, FRA announced a policy that allowed an employee who was being 
released from a duty tour to begin a statutory off-duty period after 
more than 12 hours of total time on duty (including limbo time) to 
complete a ``quick tie-up'' limited to entering and certifying these 
four items. The quick tie-up was not intended for use when the employee 
had time remaining within the statutory limits to complete a full 
record at the end of the duty tour. The intention was to require the 
employee whose duty tour had reached or exceeded the statutory limits 
to perform only the minimum administrative duties necessary to 
determine when the employee would next be available to be called for 
duty. If the railroad did not require the employee to perform any other 
administrative duties in addition to the quick tie-up, FRA would 
exercise its prosecutorial discretion and not prosecute the railroad 
for requiring the employee to perform administrative duties beyond the 
employee's statutory limits. FRA allowed the completion of any record 
in which only quick tie-up information had been entered prior to the 
statutory off-duty period, when the employee returned to duty. FRA 
announced this policy in a Technical Bulletin OP No. 96-03 (since 
renumbered as OP 04-27). After this policy was announced, railroads 
developed data entry screens that allowed employees to enter and 
certify only the quick tie-up information when appropriate, allowing 
the completion of the record when the employee next reported for duty. 
Electronic recordkeeping systems were also designed to require 
completion of the full record before it could be certified if the 
employee had not reached the maximum statutory limit for the duty tour.
    In addition to the many issues related to ensuring that the 
developing electronic recordkeeping systems allowed the employees to 
enter sufficient data to determine compliance with the HSL, there were 
also issues to be resolved as to how FRA would access the system and 
the records that it created. The initial proposal from CSX provided 
that an officer would log into the railroad's network using his or her 
identification number (ID) and password and access the employees' entry 
screens. The officer would then turn over the computer to the FRA 
Inspector, who would directly review all of the data entered by the 
employee. This procedure presented a security issue that FRA wanted to 
avoid. Instead, CSX developed an inspection system that was available 
only to FRA inspectors through the use of unique FRA IDs and passwords 
that allowed FRA inspectors to access and retrieve only hours of 
service records, using a combination of selection criteria to retrieve 
a specific record or group of records. Selection criteria for records 
searches were: By employee name or ID; by train or job; and by location 
(which could include a yard, a subdivision or division (service unit) 
or other railroad area), combined with a date or date range. Another 
option for the FRA or participating State inspector is to search for 
records reporting in excess of 12 hours total time on duty, combining 
this with a date or date range, and possibly other selection criteria. 
Combinations of the ``optional'' fields can narrow a selection to a 
precise time frame. This method of access allowed FRA to ensure that 
the hours of service records were protected from alteration and 
unauthorized access, which would not be possible if the same method of 
access allowed access to other railroad data, which FRA could not 
restrict.
    The unique FRA IDs and passwords are not permanently assigned to a 
specific FRA Inspector, but are given out upon the request of an 
inspector prior to an inspection. Passwords are temporary, and expire 
in seven days or less. Upon arrival at the rail facility, the FRA 
Inspector contacts the local railroad officer and presents his or her 
credentials for verification. The inspector is then provided the 
necessary ID and password and assigned a computer terminal with printer 
capabilities for use during his or her inspection.
    Using the selection criteria, FRA could retrieve records in a 
manner that was crew based and duty tour oriented, even if employees 
each reported individually. This meant that the records for all members 
of a requested train or job were displayed together. In addition, if a 
duty tour involved multiple covered service assignments, the whole crew 
would be displayed for each train or job ID, and all records for a 
given duty tour would be displayed together, with total time on duty 
for the entire duty tour displayed on the last record of a multiple 
covered service assignment duty tour.
    In the early stages of program development with CSX, FRA began to 
develop a guide for electronic recordkeeping, which has been used for 
several years to assist railroads in developing electronic 
recordkeeping programs for which FRA might likely grant waiver 
approval. The guide has been used successfully for approximately 15 
years. The requirements for electronic recordkeeping systems imposed by 
this regulation are largely based on the guide and the resulting 
waiver-approved programs currently in existence.
    At present, four Class I carriers (CSX, Norfolk Southern Railway 
Company, Union Pacific Railroad Company, and Canadian National Railway) 
have waiver authority to use their existing electronic hours of service 
recordkeeping programs to record and report the official hours of 
service records for their train employees. There are no waiver-approved 
electronic recordkeeping programs for the records of signal employees 
or dispatching service employees, although there has been interest in 
moving to electronic recordkeeping for these employees, and there are 
some programs in various stages of development.

II. Rail Safety Improvement Act of 2008

    Section 108 of the Rail Safety Improvement Act of 2008 (Pub. L. 
110-432), substantively amends the HSL in a number of ways. It also 
provides the statutory mandate for this rulemaking, because it requires 
that FRA revise its hours of service recordkeeping requirements to take 
into account these substantive changes, as well as to provide for 
electronic recordkeeping and to require training.

A. Substantive Amendments to the HSL

    Effective July 16, 2009, section 108(a) amends the definition of 
``signal employee'', to eliminate the words ``employed by a railroad 
carrier.'' With this amendment, employees of contractors or 
subcontractors to a

[[Page 25335]]

railroad who are engaged in installing, repairing, or maintaining 
signal systems (the functions within the definition of signal employee 
in the HSL) will be covered by the HSL, because a signal employee under 
the HSL is no longer by definition only a railroad employee.
    Section 108(b) amends the hours of service requirements for train 
employees in many ways, all of which are effective July 16, 2009. The 
provision limits train employees to 276 hours of time on-duty, awaiting 
or in deadhead transportation from a duty assignment to the place of 
final release, or in any other mandatory service for the carrier per 
calendar month. The provision retains the existing maximum of 12 
consecutive hours on duty, but increases the minimum off-duty period to 
10 hours consecutive hours during the prior 24-hour period.
    Section 108(b) also requires that after an employee initiates an 
on-duty period each day for six consecutive days, the employee must 
receive at least 48 consecutive hours off duty at the employee's home 
terminal, during which the employee is unavailable for any service for 
any railroad; except that if the sixth on-duty period ends at a 
location other than the home terminal, the employee may initiate an on-
duty period for a seventh consecutive day, but must then receive at 
least 72 consecutive hours off duty at the employee's home terminal, 
during which time the employee is unavailable for any service for any 
railroad.
    Section 108(b) further provides that employees may also initiate an 
on-duty period for a seventh consecutive day and receive 72 consecutive 
hours off duty if such schedules are provided for in existing 
collective bargaining agreements for a period of 18 months, or after 18 
months by collective bargaining agreements entered into during that 
period, or a pilot program that is either authorized by collective 
bargaining agreement, or related to work rest cycles under section 
21108 of the HSL.
    Section 108(b) also provides that the Secretary may waive the 
requirements of 48 and 72 consecutive hours off duty if a collective 
bargaining agreement provides a different arrangement that the 
Secretary determines is in the public interest and consistent with 
safety.
    The RSIA of 2008 also significantly changes the hours of service 
requirements for train employees by establishing for the first time a 
limitation on the amount of time an employee may spend awaiting and in 
deadhead transportation. These new requirements, also found in section 
108(b), provide that a railroad may not require or allow an employee to 
exceed 40 hours per month awaiting or in deadhead transportation from 
duty that is neither time on duty nor time off duty in the first year 
after the date of enactment, with that number decreasing to 30 hours 
per employee per month after the first year, except in situations 
involving casualty, accident, track obstruction, act of God including 
weather causing delay, derailment, equipment failure, or other delay 
from unforeseeable cause. Railroads are required to report to the 
Secretary all instances in which these limitations are exceeded. In 
addition, the railroad is required to provide the train employee with 
additional time off duty equal to the amount that combined on-duty time 
and time awaiting or in transportation to final release exceeds 12 
hours.
    Finally, section 108(b) restricts communication with train 
employees except in case of emergency during the minimum off-duty 
period, statutory periods of interim release, and periods of additional 
rest required equal to the amount that combined on-duty time and time 
awaiting or in transportation to final release exceeds 12 hours. 
However, the Secretary may waive this provision for train employees of 
commuter or intercity passenger railroads if the Secretary determines 
that a waiver would not reduce safety and is necessary to efficiency 
and on time performance.
    However, section 108(d) of the RSIA of 2008 provides that the 
requirements described above for train employees will not go into 
effect on July 16, 2009 for train employees of commuter and intercity 
passenger railroads. This section provides the Secretary with the 
authority to issue hours of service rules and orders applicable to 
these train employees, which may be different than the statute applied 
to other train employees. It further provides that these train 
employees will continue to be governed by the HSL as it existed prior 
to the RSIA of 2008 until the effective date of regulations promulgated 
by the Secretary. However, if no new regulations have been promulgated 
before October 16, 2011, the provisions of section 108(b) would be 
extended to these employees at that time.
    Section 108(c) of the RSIA of 2008 amends the hours of service 
requirements for signal employees in a number of ways, effective July 
16, 2009. As was noted above, by amending the definition of ``signal 
employee,'' it extends the reach of the substantive requirements to a 
contractor or subcontractor to a railroad carrier and its officers and 
agents. In addition, as section 108(b) does for train employees, 
section 108(c) retains for signal employees the existing maximum of 12 
consecutive hours on duty, but increases the minimum off-duty period to 
10 consecutive hours during the prior 24-hour period.
    Section 108(c) also eliminates language in the HSL stating that 
last hour of signal employee's return from final trouble call is time 
off duty, and defines ``emergency situations'' in which the HSL permits 
signal employees to work additional hours not to include routine 
repairs, maintenance, or inspection.
    Section 108(c) also contains language virtually identical to that 
in section 108(b) for train employees, prohibiting railroad 
communication with signal employees during off-duty periods except for 
in an emergency situation.
    Finally, section 108(c) provides that the hours of service, duty 
hours, and rest periods of signal employees are governed exclusively by 
the HSL, and that signal employees operating motor vehicles are not 
subject to other hours of service, duty hours, or rest period rules 
besides FRA's.
    Section 108(e) specifically provides FRA a statutory mandate to 
issue hours of service regulations for train employees of commuter and 
intercity passenger railroads. It also provides FRA additional 
regulatory authority not relevant to the present rulemaking, and 
requires FRA to complete at least two pilot projects.

B. Rulemaking Mandate

    Section 108(f) requires the Secretary to prescribe a regulation 
revising the requirements for recordkeeping and reporting for Hours of 
Service of Railroad Employees contained in part 228 of title 49, Code 
of Federal Regulations to adjust recordkeeping and reporting 
requirements to support compliance with chapter 211 of title 49, United 
States Code, as amended by the RSIA of 2008; to authorize electronic 
recordkeeping, and reporting of excess service, consistent with 
appropriate considerations for user interface; and to require training 
of affected employees and supervisors, including training of employees 
in the entry of hours of service data.
    Section 108(f) further provides that the regulation must be issued 
not later than 180 days after October 16, 2008, and that in lieu of 
issuing a notice of proposed rulemaking as contemplated by 5 U.S.C. 
553, the Secretary may utilize the Railroad Safety Advisory Committee 
(RSAC) to assist in development of the regulation.

[[Page 25336]]

III. Railroad Safety Advisory Committee Process

A. Overview of the RSAC

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major customer groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AARPCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers' Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Railroad Administration (FRA);
     Federal Transit Administration (FTA)*;
     Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement*;
     League of Railway Industry Women*;
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women*;
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB)*;
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte*;
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada*;
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC 
(TCIU/BRC);
     Transportation Security Administration (TSA)*; and
     United Transportation Union (UTU).
    * Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. If a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff play an active role at the working group level in discussing 
the issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation, and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. If the working group or RSAC is 
unable to reach consensus on a recommendation for action, FRA moves 
ahead to resolve the issue through traditional rulemaking proceedings.

B. RSAC Proceedings in This Rulemaking

    Given the time constraints within which FRA was required to issue 
this regulation, FRA decided to request the assistance of the RSAC in 
developing it, in order to take advantage of the provisions of the 
statutory mandate which allowed FRA to proceed to a final rule, without 
having first issued a notice of proposed rulemaking. FRA proposed Task 
No. 08-06 to the RSAC on December 10, 2008. The RSAC accepted the task, 
and formed the Hours of Service Working Group (Working Group) for the 
purpose of developing the hours of service recordkeeping regulations 
required by section 108(f) of the RSIA of 2008.
    The Working Group was comprised of members from the following 
organizations:
     AASHTO
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway Company (CN), Canadian Pacific Railway, 
Limited (CP), CSX Transportation, Inc. (CSXT), Iowa Interstate 
Railroad, Ltd. (IAIS), Kansas City Southern (KCS), Norfolk Southern 
Corporation (NS), and Union Pacific Railroad Company (UP);
     BLET;
     BRS;
     Federal Railroad Administration (FRA);
     IBEW
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     Southeastern Pennsylvania Transportation Authority 
(SEPTA);
     Tourist Railway Association; and
     UTU.
    The Working Group completed its work after four meetings and two 
conference calls. The first meeting of the Working Group took place on 
January 22-23, 2009, in Washington, DC. Subsequent meetings were held 
on February 4-6, 2009, February 18-20, 2009, and March 23-24, 2009, 
each also in Washington, DC. Conference calls were held on March 30 and 
March 31, 2009. The Working Group achieved consensus on the rule text 
with the exception of one issue. The group's recommendation, including 
the one area of non-consensus, was presented to the full RSAC on April 
2, 2009, and the full RSAC accepted its recommendation. This regulation 
is consistent with the recommendation of the Working Group, with the 
exception of the issue on

[[Page 25337]]

which the group failed to reach consensus.
    Prior to the first meeting of the Working Group, FRA distributed 
draft rule text to provide a framework for the discussions. This 
enabled the group to focus its discussions on those issues with which 
the other members of the group disagreed or had concern. The issues 
that led to significant discussion and subsequent changes in the 
initial rule text can generally be characterized in one of four ways: 
(1) Disagreement of members of the Working Group with some aspects of 
FRA's current approach to electronic recordkeeping that had been 
mirrored in the draft rule text; (2) concern about making the 
requirements for electronic recordkeeping systems sufficiently flexible 
to accommodate the circumstances of those groups of employees who are 
not currently reporting and recording their hours of service 
electronically, but may do so in the future; (3) concern about the 
burden of some of the recordkeeping requirements on those railroads or 
contractors or subcontractors to a railroad who use paper records; and 
(4) concerns about FRA's interpretation of the substantive provisions 
of the HSL that have an effect on recordkeeping, including new issues 
arising from the RSIA of 2008, as well as other substantive 
interpretations that some members of the group wished to have clarified 
or urged FRA to change. The most significant of these issues will be 
discussed in this section. Other subjects of discussion within the 
working group will be discussed in the section-by-section analysis of 
the language to which they relate.
1. Multiple-Train Reporting
    As was discussed in section IB, above, of the preamble, FRA 
required that electronic recordkeeping programs for which it granted a 
waiver would require the employee to report each assignment in a duty 
tour. In brief, FRA's reason for this approach was that it allowed FRA 
to search for records by the job or assignment, and to retrieve the 
full records of each employee on that assignment, so that they could be 
cross-referenced against each other. This approach also allowed the 
system to link the records for each assignment in a duty tour, so that 
an employee's prior time off before an assignment would indicate 
whether it was preceded by another assignment, or was the first 
assignment following a statutory off-duty period. Thus, the full duty 
tour would be represented, without gaps in the data that would suggest 
a missing record. This approach was also consistent with the way that 
FRA had historically reviewed paper records, because this information 
was available on the ``Details of Service'' portion of the form, which 
the railroads had since stopped using because of changes in pay 
structures and other operational issues, and which they, therefore, 
resisted incorporating in electronic recordkeeping.
    AAR objected to the requirements initially included by FRA in Sec.  
228.11(b) of this rule, because FRA required the employee to report the 
beginning time, relieved time, and released time of each assignment in 
a duty tour, as it had in the waiver-approved electronic programs. AAR 
contended that FRA did not need this level of detail for each 
assignment because the time was all counted as time on duty, and also 
contended that the requirements were too burdensome because of the 
number of data fields that an employee would be required to enter, and 
the amount of time that this data entry could consume.
    During the working group proceedings, FRA made a number of 
concessions from its original language. FRA excluded from the 
requirement to list each assignment employees having several kinds of 
assignments likely to result in their handling a large number of trains 
in a single duty tour. Specifically, FRA excluded utility employees, 
employees assigned to yard jobs, and assignments established to shuttle 
trains into and out of a terminal that are identified by a unique job 
or train symbol as such an assignment. When AAR continued to object to 
these requirements, FRA limited them further, by requiring only that 
the employee record the first train and the last train to which he or 
she was assigned, and any train immediately preceding or immediately 
following a period of interim release. FRA reasoned that information 
was needed regarding assignments before and after a period of interim 
release, so that the interim release period, which would not count 
toward total time on duty, could be determined. FRA agreed that it 
would not require the recording of trains in the middle of a duty tour 
that were not associated with an interim release, agreeing in those 
limited circumstances to resort to other methods of piecing together 
the duty tour if necessary.
    Ultimately, however, AAR wanted FRA to require that the employee 
record only the beginning time of the first train and any train 
following a period of interim release, and only the relieved time and 
released time of any train preceding a period of interim release and 
the last train in a duty tour. The limited issue of the specific 
requirements to record the relieved time and released time for an 
employee for the first train in the employee's duty tour and for any 
train preceding a period of interim release by the employee, and the 
beginning time of the last train or any train following a period of 
interim release for the employee, was the only area of non-consensus 
during the working group proceedings and before the full RSAC.
    Following the RSAC vote, FRA decided to further modify the 
requirements of section 228.11(b). This paragraph now requires that an 
employee record only the beginning time of the first train and any 
train following a period of interim release, and only the relieved time 
and released time of any train preceding a period of interim release 
and the last train in a duty tour, as requested by AAR. It also 
requires, however, that employees report the train ID for each train 
required to be reported. Utility employees, employees assigned to yard 
jobs, and assignments established to shuttle trains into and out of a 
terminal that are identified by a unique job or train symbol as such an 
assignment, are excluded from the requirement to report separate train 
IDs. In addition, this paragraph requires employees to report periods 
spent in deadhead transportation from a duty assignment to a period of 
interim release, and from a period of interim release to a duty 
assignment.
2. Pre-Population of Data
    AAR proposed elimination of the concept of the quick tie-up. As was 
discussed above, the quick tie-up is a feature that allows an employee 
who is at or beyond the statutory maximum time on duty to report only 
the four items necessary for the employee and the railroad to determine 
the beginning of the statutory off-duty period and for the railroad to 
be allowed to call the employee for the next duty tour. The employee 
completes the remainder of the record for any duty tour ended with a 
quick tie-up when he or she next reports for duty. AAR suggested that 
the regulation instead limit those items required for a full tie-up, or 
a complete record, and allow those items that are required to be pre-
populated on the record by the railroad, so that the time required for 
a full tie-up would be decreased. FRA could not agree to limit the 
required data as AAR suggested. In addition, there are a number of 
items not related to hours of service (such as pay claims and details 
as to the cars in the train) that are normally a part of a full tie-up, 
but which FRA does not believe should be required of an employee who is 
at or near the statutory

[[Page 25338]]

maximum time on duty. Therefore, the group agreed not to eliminate the 
quick tie-up, but continued to discuss the concept of pre-population of 
the data on the hours of service record.
    FRA did not allow pre-population of data as electronic 
recordkeeping programs were developed during the waiver process, 
because when pre-population was attempted, records were pre-populated 
with data from sources not likely to be accurate reflections of the 
duty tour, such as payroll or other times related to collective 
bargaining. The Working Group spent substantial time discussing which 
data fields on the record might be pre-populated. However, the group 
could not agree on data fields that always may be pre-populated, or 
those that never should, as a wide variety of factors might affect 
whether pre-population of certain data is appropriate for a particular 
employee or assignment. It was generally agreed, however, that pre-
population could reduce the time and effort required for completion of 
the record if the data was reliable.
    The group reached a compromise, reflected in section 
228.203(a)(1)(i) of this regulation. This paragraph provides that a 
record may be pre-populated with data known to be factually accurate 
for a specific employee. Estimated, historical, or arbitrary data are 
not to be used to pre-populate data in a record. However, a railroad, 
or a contractor or subcontractor to a railroad, is not in violation of 
this requirement if it makes a good faith judgment as to the factual 
accuracy of data for a specific employee but the pre-populated data 
turns out to be incorrect. In addition, the employee must be able to 
make any necessary changes to pre-populated data by simply typing into 
the data field, without having to access another screen or obtain 
clearance from the railroad. Finally, this paragraph also provides that 
an electronic recordkeeping system may provide the ability for an 
employee to copy data from one field of a record to another where 
appropriate.
3. Tie-Up Procedures for Signal Employees
    Labor representatives in the Working Group, and particularly 
representatives of the Brotherhood of Railroad Signalmen, expressed 
concern that the requirements for electronic recordkeeping systems were 
not appropriate to the way that signal employees tie up at the end of a 
duty tour, and complete their records. Although there are currently no 
waiver-approved programs allowing electronic recordkeeping by signal 
employees, there are some systems currently under development, and 
railroads and signal employees are interested in moving to electronic 
recordkeeping. The requirements for electronic recordkeeping systems as 
originally drafted by FRA were based on the past experience of FRA and 
the industry with electronic recordkeeping, which was admittedly 
limited to train employees.
    During the Working Group discussions, it was pointed out that 
signal employees tie up differently, and some of the limitations on the 
system that are appropriate for train employees would not allow signal 
employees to complete their records. Unlike train employees, signal 
employees are not usually released from their duty tour at a location 
where there is likely to be a computer available to complete a record, 
because they often travel home from their duty location, and do not go 
by way of a railroad headquarters. In addition, signal employees may 
not tie-up on a daily basis, rather, they may complete a number of 
records at one time, on a day when they have time in their schedule to 
prepare this paperwork. Signal employees do not generally need to do a 
quick tie-up to know when they are eligible to return to duty, because 
they have a scheduled eight-hour shift. They do call into the trouble 
desk if they work beyond their scheduled hours, or after returning from 
a trouble call. Although the primary purpose of this call is to report 
the nature of the trouble that was found and what was done to fix it, 
the employee also reports the time that he or she completed the work, 
and this allows the railroad to determine if the employee has enough 
time remaining to respond to another trouble call, or if a late trouble 
call causes the employee not to be rested for the beginning of the next 
scheduled shift.
    FRA agrees that the regulation should establish requirements 
appropriate to all employees, so that the regulation will not need to 
be revised to reflect future systems that may be developed. To 
accommodate the differences in the reporting practices of signal 
employees, FRA modified several paragraphs of Sec.  228.203(c). 
Paragraph (c)(7) of Sec.  228.203 allows an employee to certify a 
release time in the past compared to the clock time of the computer, 
except for the current duty tour being concluded, so that a signal 
employee may complete multiple records at one time. This limitation is 
not a problem for train employees, who will have provided a release 
time through the quick tie-up for any record being completed that 
relates to a previous duty tour. The rule text also excludes signal 
employees from the scope of requirements in subparagraphs that provide 
that electronic recordkeeping systems must require employees to 
complete a full record, and disallow a quick tie-up at the end of any 
duty tour in which the employee has less than the statutory maximum 
time on duty. Even with less than the statutory maximum time on duty, a 
signal employee may not complete any record at the end of that duty 
tour, or may complete a form of quick tie-up through communication 
regarding trouble calls and how much time the employee has remaining to 
work.
    FRA notes that railroads, contractors and subcontractors to 
railroads, and signal employees will need to have some way of keeping 
track of when the employee goes off duty, to ensure that they receive 
the 10 hours uninterrupted rest required by the RSIA of 2008.
4. Tracking Cumulative Totals Toward the 276-Hour Monthly Maximum 
Limitation
    Section 228.11(b)(14) requires that a train employee record include 
the cumulative total for the calendar month of time spent in covered 
service, awaiting or in deadhead transportation from a duty assignment 
to the place of final release, and time spent in any other service at 
the behest of the railroad, the elements that make up the cumulative 
total for the month toward the 276-hour limitation. Members of the 
Working Group representing the Class III railroads pointed out that 
compliance with this requirement would be much more complicated for 
those employees completing paper records. Electronic recordkeeping 
systems will likely be programmed to calculate the cumulative monthly 
total, but it will be more difficult for an employee to have to keep 
track of the running total and note it on his or her signed record each 
day. FRA is persuaded that this could be burdensome, and could result 
in inaccurate reporting of the totals, and could possibly cause an 
employee to inadvertently exceed the monthly limitations by calculating 
it inaccurately and certifying that number. Therefore, FRA agreed to 
allow Class III railroads to track the cumulative total throughout the 
month, note it on the records, and make it available to FRA. The 
employee will be expected to certify the monthly total promptly after 
the end of the month.
5. Multiple Reporting Points
    This regulation requires that each train employee have a regular 
reporting point. In numerous locations across the railroad system, 
railroads and their

[[Page 25339]]

employees have established more than one location within a designated 
terminal that the employees may directly report to, essentially 
treating multiple locations located near each other as one regular 
reporting point. In enforcing this regulation, FRA will continue to 
treat these multiple locations as constituting a single regular 
reporting point, provided that (a) it can reasonably be expected that 
doing so would not unduly affect fatigue and (b) if the railroad is 
unionized, the multiple reporting points have been agreed to under a 
collective bargaining agreement. When determining whether or not 
fatigue is unduly affected, FRA will take into account the distance 
between the multiple locations, traffic patterns (e.g., rural vs. 
urban), and other relevant factors.
    As has been discussed, the RSIA of 2008 amends the definition of 
``signal employee'' so that employees of a contractor or a 
subcontractor to a railroad performing maintenance, inspection, or 
repair of signal systems are covered by the HSL. The railroads in the 
Working Group expressed concern that they would be responsible for 
keeping records for contract signal employees who perform work on their 
property. This would be particularly difficult if the contractors or 
subcontractors are hired for specific short-term assignments or 
projects. FRA expects that the contractor or subcontractor who employs 
the employee would be responsible for his or her records, because that 
company would know when the employee would be properly rested under the 
statute to begin a new assignment, which might be on a different 
railroad than the assignment just completed. It should be noted, 
however, that since the substantive provisions of the HSL still 
prohibit either requiring or allowing an employee to remain or go on 
duty, FRA may take enforcement action for violation of the statute 
against either the employer or the railroad for whom the employee is 
performing covered service, depending on the facts of the situation.
    FRA has amended language throughout this part that imposes 
recordkeeping duties on a railroad, so that those duties are imposed on 
a railroad or a contractor or a subcontractor to a railroad. However, 
FRA recognizes that some railroads have kept hours of service records 
and reported excess service for contractors and subcontractors who were 
covered by the HSL prior to the RSIA of 2008, particularly as train 
employees. FRA does not intend to prohibit such practices, if the 
parties have contracted to have the railroad for which an employee 
performs covered service handle the recordkeeping and reporting 
responsibilities for that employee.

IV. Section-by-Section Analysis

Section 228.1 Scope

    FRA has revised this section to reflect the fact that the 
regulation prescribes reporting and recordkeeping requirements for 
employees of railroad contractors and subcontractors as well as for 
railroad employees.

Section 228.3 Application

    FRA has revised this section to reflect the fact that the 
regulation applies to railroad contractors and subcontractors as well 
as to railroads, and does not apply to the contractors and 
subcontractors of railroads to which the regulation does not apply.

Section 228.5 Definitions

    This section is amended to add a large number of definitions 
relevant to compliance with the HSL, and the recordkeeping and 
reporting requirements of this part, including the data fields found on 
an hours of service record, the data required to be entered, and the 
proper calculation and representation of the periods of time which must 
be identified on a record. Most of these definitions have been used by 
FRA and the industry for many years and have a common understanding. 
Some are discussed in existing Operating Practices Technical Bulletins 
providing FRA's position on substantive issues of enforcement under the 
HSL. As a result, while the Working Group recommended minor revisions 
to a number of the definitions to clarify them, relatively few caused 
concern among Working Group members or required significant discussion.
    The Working Group discussed the definition of ``actual time,'' 
which can refer to either a specific time of day, or a precise amount 
of time. FRA's intention with this definition is to make clear that any 
time related to an activity that is entered on an hours of service 
record should represent the actual time that the activity occurred or 
actual amount of time spent in the activity, rather than scheduled or 
estimated times or amounts of time that may be used for pay and 
collective-bargaining-related purposes. Records must also not show non-
specific numbers in reference to data fields that correspond to 
specific statutory limitations. For example, it would not be correct 
simply to indicate ``10+'' in the prior time off field, rather than the 
actual amount of time in hours and minutes that the employee had been 
off before beginning an assignment, or ``12+'' for total time on duty, 
rather than the actual total amount of time that the employee was on 
duty.
    The Working Group also discussed the definition of ``commuting,'' 
and specifically the portion of the definition that applies to train 
employees. The first part of the definition led to discussions related 
to an employee's regular reporting point, because only travel between 
an employee's residence and his or her regular reporting point is 
considered commuting. As was discussed in section III, above, of the 
preamble, FRA acknowledges that it will treat multiple locations within 
a designated terminal as a single reporting point in certain 
circumstances. However, the definition of ``commuting'' is not changed. 
The second part of this definition as applied to train employees 
provides that travel in railroad-provided transportation to a lodging 
facility at an away-from-home terminal is considered commuting if the 
time does not exceed 30 minutes. The ``30 minute rule'' is longstanding 
FRA policy, intended to provide railroads some flexibility to get their 
employees to lodging, but limiting the potential erosion of an 
employee's statutory off-duty period that could result from extended 
periods of travel to the away-from-home lodging facility. Nothing in 
the RSIA of 2008 would require FRA to change its position on this 
issue, and FRA declines to do so.
    FRA defines designated terminal for purposes of this section by 
copying the definition of the term found in the HSL at 49 U.S.C. 21101. 
It is necessary to define this term because any period of interim 
release that a train employee has during a duty tour is considered off-
duty time under the HSL only if the release occurs at a designated 
terminal. Otherwise, the time must be calculated as on-duty time. FRA's 
position regarding designated terminals has been previously published 
in Appendix A of this regulation, and further established through 
extensive litigation related to this issue. By including this 
definition, FRA does not intend to alter any of its previous statements 
related to this issue, including the fact that FRA does not exercise 
jurisdiction over any lodging facilities used to house railroad 
employees that are not railroad-provided, and are usually subject to 
collective bargaining.
    This section defines the terms ``reporting point,'' ``regular 
reporting point'' and ``other than regular reporting point.'' As was 
discussed in section III, above, of the preamble, and in this section, 
in regard to the definition of commuting, an employee has only one 
regular reporting point at any given

[[Page 25340]]

time. Travel from the employee's regular reporting point to any other 
reporting point on the railroad is considered a deadhead to a duty 
assignment, in which the time spent deadheading to duty is time on 
duty, and if an employee travels directly from his or her residence to 
a reporting point that is other than his or her regular reporting 
point, any time spent in that travel exceeding the time that would have 
been spent in travel to the regular reporting point is also time on 
duty. As was discussed in section III, above, of the preamble, FRA will 
consider multiple locations within a designated terminal to be a single 
reporting point in certain circumstances. This interpretation does not 
change the definitions of the terms ``reporting point,'' ``regular 
reporting point,'' or ``other-than-regular reporting point,'' this 
simply means that if an employee's regular reporting point is any one 
of the locations that constitute a single reporting point, an 
assignment to report to any location that is considered part of that 
single reporting point would be considered reporting to the regular 
reporting point for that employee.
    The Working Group discussed the definition of ``release'' as it 
applies to signal employees. A release is a period of more than an hour 
but less than a statutory off-duty period, after a signal employee 
completes regular assigned hours, or completes return travel from a 
trouble call. Members of the Working Group representing the interests 
of signal employees commented that a release should not just consist of 
an employee being told to go and wait at a nearby restaurant until he 
or she is needed for another assignment, but should allow an employee 
to come and go as he or she pleases in order to be considered off-duty 
time. FRA notes that the HSL does not define the release period for 
signal employees as ``interim release'' is defined for train employees, 
providing that the period of release constitutes off-duty time only if 
it is at a designated terminal. However, it is certainly consistent 
with the statutory purpose to require a railroad, or contractor or 
subcontractor to a railroad, to provide as much opportunity for food, 
rest, and freedom of activity for the employee as circumstances will 
allow during any release period that is to be considered off-duty time.
    The Working Group also discussed the distinction between the 
defined terms, ``prior time off'' and total off-duty period. As 
indicated in the definition of ``total off-duty period,'' it may differ 
from a computer-generated prior time off, which would be calculated 
based on the release time of the previous duty tour, if the employee 
performed an activity between duty tours that was required to be 
reported as other service at the behest of the railroad. Under Sec.  
228.11(b)(8), (d)(6) and (e)(9), the employee must record any such 
service, and it would be recorded on the hours of service record 
created for the next duty tour as an activity at the behest of the 
railroad. Prior time off would be calculated as the sum of the time 
between the previous final release and the beginning of that activity 
and the time between the end of the activity and the beginning of the 
next duty tour. The total time spent in the activity, plus the prior 
time off before and after the activity should equal the system-known 
prior time off.
    There were a number of questions discussed in the Working Group 
related to the definitions of ``dispatching service employee,'' 
``signal employee,'' and ``train employee.'' These definitions are 
copied directly from the HSL at 49 U.S.C. 21101, and are included in 
this regulation simply for ease of reference, since the terms are used 
throughout the rule text. The questions surrounding these definitions 
related to whether employees with certain job titles, or who perform 
certain job functions, would be included within the scope of the 
definitions. These questions present issues of substantive 
interpretation of the HSL, and have been addressed in published 
interpretations in Appendix A of this rule and various Operating 
Practices Technical Bulletins. The only change in these definitions 
made by the RSIA of 2008 is to amend the definition of ``signal 
employee'' so that it applies to employees of contractors or 
subcontractors to a railroad who perform the functions of a signal 
employee. Therefore, FRA's position remains unchanged with respect to 
these issues, except to the extent that FRA has ever indicated prior to 
the enactment of the RSIA of 2008 that employees of contractors or 
subcontractors performing the functions of a signal employee are not 
covered by the HSL, because that would no longer be FRA's position, in 
light of the statutory changes.
    In determining whether a given employee is covered by the HSL, FRA 
continues to take a functional approach, rather than one based on job 
or craft title. If an employee performs functions included within the 
definition of a dispatching service employee, a signal employee, or a 
train employee, that employee is covered under the HSL as that type of 
employee, and must observe the relevant statutory limitations and 
recordkeeping requirements, regardless of the employee's actual job 
title. For example, an employee whose job title is Yardmaster may be 
covered under the HSL as any one of three categories of covered 
employees, or he or she may not be covered by the HSL at all, depending 
on the functions performed. By the same token, if an employee performs 
functions that are typically performed by employees who are covered by 
the HSL, but the specific function is not itself covered, performing 
that function does not bring the employee under the coverage of the 
HSL. For example, if an employee removes orders from a printer, that 
function alone does not make the employee a dispatching service 
employee, even if that function is usually performed by a dispatcher, 
because this action alone does not constitute dispatching, reporting, 
transmitting, receiving or delivering an order affecting train 
movement.

Section 228.9 Records; General

    This section is revised to eliminate the signature requirement for 
records maintained electronically. Paragraph (a) applies only to manual 
records, and retains the text of Sec.  228.9 prior to this regulation. 
Paragraph (b), which is added to this section, provides that an 
electronic record must be certified and electronically stamped with the 
certifying employee's name and the date and time of certification. Both 
paragraphs contain requirements for retention of and access to the 
records. Finally, paragraph (b) requires that electronic records must 
be capable of being reproduced on railroad printers.

Section 228.11 Hours of Duty Records

    This section establishes the requirement to keep hours of service 
records and sets forth what information the records must contain. The 
requirements have been clarified by being broken into separate 
paragraphs for the different types of employees, each containing the 
recordkeeping requirements specific to that kind of employee that FRA 
believes are necessary to determining whether the employee is in 
compliance with the HSL for the duty tour being reported. This includes 
requiring data related to the new substantive requirements of the RSIA 
of 2008.
    Paragraph (a) of this section establishes the general recordkeeping 
requirement, and provides that contractors and subcontractors whose 
employees perform covered service should also record the name of the 
railroad for which the employee performed covered service. This 
paragraph also provides that if an employee performs covered service

[[Page 25341]]

within the same duty tour that is subject to different statutory 
requirements, and therefore, different recordkeeping requirements in 
this section, such as, performing both the functions of a train 
employee and a dispatching service employee, the employee should 
complete a record appropriate to the type of service to which he or she 
was called, and reflect other covered service as an activity that is 
other service at the behest of the railroad. However, the total time on 
duty must be governed by the most restrictive statutory provision.
    Paragraph (b) of this section establishes the recordkeeping 
requirements for train employees, including subparagraphs (13) through 
(16), which relate to information required as a result of the statutory 
amendments in the RSIA of 2008. Subparagraph (13) requires that the 
record must indicate the total amount of time by which the combination 
of the total time on duty and time spent awaiting or in deadhead 
transportation to the point of final release exceeds 12 hours. 
Subparagraph (14) requires the record to reflect the cumulative total 
for the calendar month of time spent on duty, awaiting or in deadhead 
transportation, and in any other service for the carrier (in other 
words the cumulative total toward the 276-hour monthly maximum). 
Subparagraph (15) requires the record to indicate the cumulative total 
for the calendar month of time spent awaiting or in deadhead 
transportation from a duty assignment to the place of final release 
following a period of 12 consecutive hours on duty. Subparagraph (16) 
requires the record to indicate the number of consecutive days in which 
a period of time on duty was initiated.
    Paragraph (b) of this section resulted in significant discussion in 
the working group, which resulted in a number of changes to the rule 
text. As was discussed in section III, above, of the preamble, AAR did 
not agree during the RSAC process with FRA's requirement to report the 
first train and the last train to which the employee was assigned, and 
any train immediately preceding or immediately following a period of 
interim release, even after utility employees, employees performing 
yard jobs and employees on shuttle assignments were excluded, and FRA 
subsequently made further modifications to this paragraph.
    Subparagraph (4) requires train employees to report the train ID 
for each assignment required to be reported. Utility employees, 
employees assigned to yard jobs, and employees assigned to shuttle 
assignments identified as such by a unique job or train symbol are 
excluded from the requirements of this subparagraph. FRA expects, 
however, that railroads will take care to avoid designating as a 
shuttle assignment jobs that do not truly function in the manner 
suggested by the language.
    Subparagraph (5) requires train employees to report the location, 
date, and beginning time of the first assignment in a duty tour, and 
any assignment immediately following a period of interim release.
    Subparagraph (6) requires train employees to report the location, 
date, and time relieved for the last assignment in a duty tour and any 
assignment preceding a period of interim release.
    Subparagraph (7) requires train employees to report the location, 
date, and time released for the last assignment in a duty tour and any 
assignment preceding a period of interim release.
    Subparagraph (8) requires train employees to report the beginning 
and ending location, date, and time for periods spent in transportation 
to the first assignment in a duty tour, from an assignment to a period 
of interim release, from a period of interim release to the next 
assignment in a duty tour, and from the last assignment in a duty tour 
to the point of final release.
    Also, as was discussed in section III, above, of the preamble, the 
requirement in subparagraph (14) to track the cumulative total toward 
the limitation of 276 hours in a calendar month was opposed as being 
too burdensome, especially for those employees completing paper 
records. In response, FRA will allow Class III railroads to track the 
cumulative total throughout the month, note it on the records, and make 
it available to FRA, provided that the employee certify the monthly 
total after the end of each month.
    Paragraph (c) provides that subparagraphs (13) through (16) of 
paragraph (b) do not apply to the records of train employees providing 
commuter or intercity passenger rail transportation, because these 
subparagraphs relate to the new substantive provisions of the HSL in 
the RSIA of 2008, and those provisions do not apply to train employees 
of commuter and intercity passenger railroads at this time. This 
distinction led to some discussion as to how to apply the recordkeeping 
requirements to train employees who work in both freight and passenger 
service. FRA believes this issue is best addressed by the individual 
recordkeeping systems of railroads that have employees who work in both 
types of service. The railroad should ensure that the employee has the 
appropriate record to complete for the type of service that he or she 
performed in any given duty tour.
    Paragraphs (d) and (e) provide the recordkeeping requirements for 
dispatching service employees and signal employees respectively.

Section 228.13 Preemptive Effect

    This section sets forth the preemptive effect of this part. The 
preemption provision of the former Federal Railroad Safety Act of 1970 
(FRSA), as amended, 49 U.S.C. 20106, governs the preemptive effect of 
this regulation, and the preemption provision of the regulation 
conforms to the terms of the statute. State and local requirements, 
both statutory and common law, are preempted when such non-Federal 
requirements cover the same subject matter as the requirements of this 
part. A State may adopt, or continue in force a law, regulation, or 
order covering the same subject matter as a DOT regulation or order 
applicable to railroad safety and security only when the additional or 
more stringent state law, regulation, or order is necessary to 
eliminate or reduce an essentially local safety or security hazard; is 
not incompatible with a law, regulation, or order of the United States 
Government; and does not unreasonably burden interstate commerce.
    Section 20106 also permits State tort actions arising from events 
or activities occurring on or after January 18, 2002 that allege a 
violation of the Federal standard of care established by regulation or 
order issued by the Secretary of Transportation (with respect to 
railroad safety) or the Secretary of Homeland Security (with respect to 
railroad security), a party's failure to comply with its own plan, 
rule, or standard that it created pursuant to a regulation or order 
issued by either of the two Secretaries, or a party's violation of a 
State standard that is necessary to eliminate or reduce an essentially 
local safety or security hazard, is not incompatible with a law, 
regulations, or order of the United States Government, and does not 
unreasonably burden interstate commerce.

Section 228.19 Monthly Reports of Excess Service

    This section requires monthly reports of excess service, and 
indicates the instances of excess service that must be reported, in 
separate paragraphs for train employees, dispatching service employees, 
and signal employees, including requirements related to new substantive 
provisions of the HSL that were added by the RSIA of 2008. It also 
provides for excess service reports to be submitted electronically or 
appended to

[[Page 25342]]

and retained with the employee hours of service record to which the 
excess service being reported relates.
    Paragraph (a) requires that the instances of excess service listed 
in this section be reported to FRA's Associate Administrator for 
Railroad Safety/Chief Safety Officer.
    Paragraph (b) provides the instances of excess service which must 
be reported for train employees. Subparagraphs (1) through (3) 
correspond to requirements that were contained in this section as it 
existed prior to the enactment of the RSIA of 2008, with the exception 
that the new minimum statutory off-duty period of 10 hours is 
substituted. Subparagraphs (4) through (10) are instances of possible 
excess service related to new substantive limitations in the HSL. 
Paragraph (c) provides the instances of excess service that must be 
reported for train employees of commuter or intercity passenger 
railroads. Because these employees continue to be covered by the HSL as 
it existed prior to the enactment of the RSIA of 2008, the instances of 
excess service which must be reported for these employees are identical 
to those required by this section for train employees prior to this 
revision.
    Paragraph (d) contains the instances of excess service which must 
be reported for dispatching service employees. Because there were no 
substantive changes to the HSL related to dispatching service employees 
other than the grant of authority to the Secretary to prescribe 
regulations more stringent than the statute, the instances of excess 
service that must be reported are identical to those required by this 
section for dispatching service employees by this section prior to this 
revision.
    Paragraph (e) provides the instances of excess service that must be 
reported for signal employees, which were modified to reflect the new 
minimum statutory off-duty period.
    Paragraph (f) provides the method for filing with FRA the instances 
of excess service required to be reported by this section, while 
paragraph (g) provides procedures for the use of an alternative method 
for filing instances of excess service using an electronic signature.
    Paragraph (h) excepts any railroad, or contractor or subcontractor 
to a railroad that uses an electronic recordkeeping system that 
complies with this part from the requirement to file with FRA its 
monthly reports of excess service. The electronic recordkeeping system 
must require the employee to enter an explanation for any excess 
service that the employee certifies on his or her record, require the 
railroad, contractor, or subcontractor to make a determination as to 
whether each instance would be reportable, allow the railroad, 
contractor, or subcontractor to append its analysis to the electronic 
record, and allow FRA inspectors and participating State inspectors 
access to employee reports of excess service and any explanations 
provided.

Section 228.23 Criminal Penalty

    This section is amended only to update the statutory citation to 
the penalty provision of the HSL to reflect the recodification of the 
Federal railroad safety laws, including the HSL, in 1994. Public Law 
103-272, 108 Stat. 745.

Section 228.201 Electronic Recordkeeping; General

    This section sets forth the basic requirements for the use of an 
electronic recordkeeping system to create and maintain the records 
required by this part. Any record required by this part may be created 
and stored electronically in such a system, and those records submitted 
to FRA may also be submitted electronically, consistent with the 
requirements of the Electronic Signatures in Global and National 
Commerce Act (Pub. L. 106-229, 114 Stat. 464, June 30, 2000).
    The system must meet the requirements of this part, and the records 
created and stored in the system must contain the required information. 
The section further provides that a railroad, contractor, or 
subcontractor using an electronic recordkeeping system must 
sufficiently monitor the database to ensure a high degree of accuracy 
in the records, and train its employees on the proper use of the 
system. The information technology security program of the railroad, 
contractor, or subcontractor must also be adequate to prevent 
unauthorized access to the program logic or individual records. 
Finally, this section provides that FRA may prohibit or revoke the 
authority to use an electronic recordkeeping system if FRA finds that 
the system is not properly secured, is inaccessible to FRA, or fails to 
record and store the information adequately and accurately. If FRA 
makes such a determination, it will be issued in writing.

Section 228.203 Program Components

    This section establishes the required components for electronic 
recordkeeping programs in the areas of system security, identification 
of the individual who entered specific data, capabilities of program 
logic, and system search capabilities.
    Paragraph (a) provides the standards that the electronic 
recordkeeping system must meet in terms of system security. 
Subparagraph (a)(1) provides that data entry is restricted to the 
employee or train crew whose time is being reported. However, there are 
two exceptions to this requirement. The first is for pre-populated 
data, which was an area of significant discussion and eventual 
compromise in the working group, as discussed in section III above. The 
second exception applies to situations in which an employee has reached 
or exceeded his or her maximum allowed time on duty, and a quick tie-up 
is required. As was discussed in section IB, the idea behind a quick 
tie-up is that a few items of basic information are needed to determine 
the time at which the employee is beginning his or her statutory off-
duty period, and when he or she will be rested to begin the next duty 
tour. However, the intention is for the employee to be able to complete 
this limited data entry very quickly in order to begin the statutory 
off-duty period and not extend a duty tour that is already at its 
maximum limit. Therefore, FRA has provided an additional exception to 
the requirement of employee-entered data, to allow an employee to 
provide quick tie-up information by telephone, by facsimile, or by 
other electronic means in situations where for any reason, a computer 
terminal is unavailable. FRA expects that in most situations, the 
employee will call a dispatcher, call desk, or trouble desk, to provide 
the quick tie-up information to those who need to know it to be able to 
call the employee for his or her next time on duty. However, situations 
may arise when it is difficult to reach someone by telephone, which 
could increase the time it will take to complete the process. The 
Working Group requested that FRA allow the use of other technology for 
electronic transmission of the information, and FRA revised the rule 
text accordingly. However, FRA cautions against the use of electronic 
means, such as e-mail, to enable an employee to tie up and officially 
begin a statutory off-duty period while in fact still performing 
service, awaiting transportation to final release, or otherwise still 
involved in the duty tour being tied up.
    Subparagraph (a)(1) also provides that the system may not allow two 
individuals to have the same electronic identity, and that the system 
must be structured so that a record cannot be deleted or altered once 
it is certified, and that any amendment to a record must either be 
stored electronically

[[Page 25343]]

apart from the record it amends or electronically attached as 
information but without altering the record. Amendments must also 
identify the person making the amendment. Finally, the system must be 
capable of maintaining records as submitted without corruption or loss 
of data, and ensure that supervisors and crew management officials can 
access, but not delete or alter a record, once the employee has 
reported for duty, and once the employee has certified information that 
he or she entered on the record.
    Paragraph (b) provides that the program must be capable of 
identifying each individual who entered data on a record, and which 
data items were entered by each individual if more than one person 
entered data on a given record.
    Paragraph (c) provides the program logic features that an 
electronic recordkeeping system must contain in order to properly 
calculate total time on duty, to identify errors, to require 
reconciliation of differences in prior time off, which would indicate 
an activity or assignment not captured on a record, to require 
explanations when total time on duty exceeds the statutory maximum for 
the employee, and to require proper use of the quick tie-up. As was 
discussed in section III above, this section was the subject of 
discussion in the Working Group, and the rule text was modified to 
provide flexibility for future systems, and in particular for the 
recording and reporting of hours of service data by signal employees, 
who do not report in the same manner as train employees.
    Paragraph (d) establishes the required search capabilities for an 
electronic recordkeeping system, establishing the specific data fields 
and other criteria by which the system must be capable of searching for 
and retrieving responsive records.

Section 228.205 Access to Electronic Records

    Paragraph (a) of this section provides that access to electronic 
recordkeeping systems must be granted to FRA and State inspectors 
through the use of railroad computer terminals. Paragraph (b) requires 
the establishment of procedures for providing inspectors with an 
identification number and password to access the system.
    Paragraph (c) provides that the inspection screen must be formatted 
so that each data field entered by an employee is visible, that the 
data fields must be searchable as described in Sec.  228.203(d) and 
yield access to all records matching the specified search criteria, and 
that the records must be displayed in a manner that is crew-based and 
duty-tour-oriented, so that the records of all employees who worked 
together as part of a train crew or signal gang will be displayed 
together, and the record will include all of the assignments or 
activities required to be reported.

Section 228.207 Training

    This section requires railroads and contractors and subcontractors 
to railroads to provide initial and refresher training to train 
employees, signal employees, and dispatching service employees, and the 
supervisors of these employees. Paragraph (b) provides that initial 
training must include classroom and hands-on components, and must cover 
the aspects of the HSL relevant to the employee's position, and proper 
entry of hours of service data. Testing is also required to ensure that 
the objectives of the training are met. This section requires that 
initial training be provided as soon as practicable. FRA would expect 
that some level of training, such as on the new statutory requirements, 
will be needed fairly quickly, to ensure proper recordkeeping. This may 
be done less formally, either in person with a supervisor, as ``on the 
job'' training, or through electronic media that may be provided to an 
employee. However, the more comprehensive initial training required by 
this section may be provided in combination with other training, such 
as that required by section 402 of the RSIA of 2008, and may be 
completed within the regular training cycle for the employee.
    Paragraph (c) provides significant flexibility regarding refresher 
training. The paragraph does, however, require that the refresher 
training emphasize any relevant changes to the HSL or the recordkeeping 
system, as well as any areas in which supervisors or other railroad 
managers are noticing recurrent errors. No specific interval for 
refresher training is required, just that it must be provided when 
suggested by recurrent errors. FRA had initially proposed requiring 
refresher training every two years, but members of the Working Group 
objected, arguing that employees who complete records every day will 
not need training at a regular interval on how to do so, and that 
refresher training should be provided to those who are having 
difficulty. FRA revised the text of this section accordingly.

V. Regulatory Impact and Notices

A. Statutory Authority

    Section 20103(a) of title 49 U.S. Code authorizes the Secretary to 
issue regulations governing all areas of railroad transportation 
safety, supplementing laws and regulations in effect on October 16, 
1970. In addition, Section 108(f)(1) of the RSIA of 2008 requires the 
Secretary to prescribe a regulation revising the requirements for 
recordkeeping and reporting for hours of service of railroad employees 
contained in 49 CFR part 228 to adjust recordkeeping and reporting 
requirements to support compliance with 49 CFR ch. 211, as amended by 
the RSIA of 2008; to authorize electronic recordkeeping, and reporting 
of excess service, consistent with appropriate considerations for user 
interface; and to require training of affected employees and 
supervisors, including training of employees in the entry of hours of 
service data.
    Section 108(f)(2) provides that in lieu of issuing a notice of 
proposed rulemaking as contemplated by 5 U.S.C. 553, the Secretary may 
use the RSAC to assist in development of the regulation.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined not to be economically 
significant under both Executive Order 12866 and DOT policies and 
procedures. See 44 FR 11034 (Feb. 26, 1979). This rule is a non-
significant regulatory action under Sec.  3(f) of Executive Order 12866 
and the regulatory policies and procedures order issued by the DOT. Id. 
We have prepared and placed in the docket a regulatory impact analysis 
(RIA) addressing the economic impact of this rule.
    This section summarizes the estimated economic impacts of the rule. 
The final rule is mandated by the RSIA of 2008, in order to revise the 
recordkeeping and reporting regulations in accordance with the 
substantive changes to employee work and rest periods that are 
specified in the RSIA of 2008. The impacts described are the impacts of 
the rule, distinct from the impacts of the RSIA of 2008.
    The RIA contains a description of the costs of the rule. All 
railroads that operate on the general system of transportation are 
subject to the final rule. Train employees of commuter and intercity 
passenger railroads, however, are exempt from the new, specific 
limitations on employee work and rest periods in the RSIA of 2008. The 
RSIA

[[Page 25344]]

adds employees of contractors and subcontractors that perform signal 
work for railroads to those covered by the rule. The costs of the rule 
result from making required changes to existing recordkeeping systems 
to comply with the final rule. FRA establishes the standards for 
electronic recordkeeping systems for those railroads that wish to 
implement an electronic hours of service system. Four Class I railroads 
already use an electronic recordkeeping system by FRA waiver. The 
rule's specifications for electronic recordkeeping were based on FRA's 
experience with these waiver-approved systems to minimize the burden of 
the electronic recordkeeping option. The RSIA of 2008 also mandates 
that training be provided to employees on the hours of service law and 
recordkeeping system. FRA notes that training would be necessary even 
in the absence of FRA's rule, but accounts for training on the 
recordkeeping system to illustrate the type and extent of training a 
railroad, or a contractor or subcontractor to a railroad, would be 
expected to provide. Given the large number of employees subject to the 
rule, training costs are the biggest component of costs. For a 20 year 
period of analysis, the present value of costs attributable to the rule 
total about $11.2 million, using a discount rate of 7%, and $14 million 
using a discount rate of 3%. Of those costs, $9.2 million and $11.6 
million are training costs respectively.
    Members of the RSAC that helped develop the rule and the RIA stated 
that the primary benefit of the rule was a mechanism by which to comply 
with the hours of service law. The public welfare benefit of the rule 
is a method for effectively enforcing the substantive, new provisions 
in the RSIA of 2008. The benefit of training and recordkeeping is the 
ability of covered employees to comply with the requirements of the 
RSIA and thereby achieve the safety benefits intended by Congress. To 
the extent that railroads that are not currently using electronic 
recordkeeping take advantage of the option to use electronic 
recordkeeping, they may benefit from some efficiency gains. RSAC 
industry representatives indicated that there may be up to a 50% 
decrease in the time needed to complete an hours of service record, 
depending on the amount of information needed to be recorded. If the 
scale of time savings using an electronic system was a few minutes per 
individual entry, the savings could be significant when multiplied 
across the large number of employees covered by the RSIA of 2008 that 
perform daily or frequent recordkeeping. In addition, there may be 
indirect benefits of the rule, such as reduced storage needs for paper 
hours of service records.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
rule amends FRA's regulations regarding the reporting and recordkeeping 
requirements for railroad employees and employees of contractors and 
subcontractors of a railroad who are performing service covered by the 
HSL. State and local requirements on the same subject matter covered by 
FRA's regulation and the amendments proposed in this rule, including 
the standards of care applicable in certain State common law tort 
actions, are preempted by 49 U.S.C. 20106. The preemption provision in 
the regulation directly reflects the terms of the statute. At the same 
time, this final rule does not propose any regulation that would have 
direct effects on the States, the relationship between the national 
government and the States, or the distribution of power and 
responsibilities among the various levels of government. Additionally, 
it would not impose any direct compliance costs on State and local 
governments. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply. However, State and local officials 
were involved in developing this rule. The RSAC, which was used to 
assist in the development of this rule, has as permanent members, the 
AASHTO and the ASRSM.

D. Executive Order 13175

    We analyzed this final rule in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule does 
not significantly or uniquely affect tribes and does not impose 
substantial and direct compliance costs on Indian tribal governments, 
the funding and consultation requirements of Executive Order 13175 do 
not apply, and a tribal summary impact statement is not required.

E. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, we developed this final rule in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), and 
have determined that the RFA does not apply to this rulemaking.
    As was discussed above, this rulemaking is required by the section 
108(f) of the RSIA of 2008, which provides that in lieu of issuing a 
notice of proposed rulemaking as contemplated by 5 U.S.C. 553, the 
Secretary may utilize the RSAC to assist in development of the 
regulation, and FRA chose to utilize the RSAC to assist in developing 
the regulation.
    The Small Business Administration's A Guide for Government 
Agencies: How To Comply With the Regulatory Flexibility Act (2003), 
provides that:

[i]f, under the APA or any rule of general applicability governing 
federal grants to state and local governments, the agency is 
required to publish a general notice of proposed rulemaking (NPRM), 
the RFA must be considered (citing 5 U.S.C. 604(a)). * * * If an 
NPRM is not required, the RFA does not apply.''

    Because an NPRM was not required in this instance, the RFA does not 
apply.

F. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been 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 and current information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
   49 CFR section or statutory                              Total annual       Average time per    Total annual
            provision              Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
228.11--Hours of Duty Records      720 railroads/       29,893,000 records.  2 min./5 min./10          3,049,210
 (New Requirement now includes      signal contractors.                       min..
 signal contractors and their
 employees).
228.17--Dispatchers Record of      150 Dispatch         200,750 records....  3 hours............         602,250
 Train Movements.                   Offices.

[[Page 25345]]

 
228.19--Monthly Reports of Excess  300 railroads......  2,640 reports......  2 hours............           5,280
 Service (New Report Requirement
 includes Limbo time and
 consecutive days on duty).
228.103--Construction of Employee  50 railroads.......  1 petition.........  16 hours...........              16
 Sleeping Quarters--Petitions to
 allow construction near work
 areas.
228.203--Program Components (New
 Requirement)--Electronic
 Recordkeeping--
    --Modifications for Daylight   9 railroads........  5 modifications....  120 hours..........             600
     Savings Time.                                      1 program with       720 hours..........             720
    --System Security/Individual                         security/I.D./
     User Identification/Program                         program logic &
     Logic Capabilities/Search                           search capability..
     Capabilities.
228.205--Access to Electronic      632 railroads......  100 electronic       30 minutes.........              50
 Records--(New Requirement)--                            records access
 System Access Procedures for                            procedures.
 Inspectors.
228.207--Training in Use of        720 railroads/       47,000 train         1 hour.............          47,000
 Electronic System--(New            signal contractors.  employees.
 Requirements)--Initial Training.
    --Refresher Training.........  720 railroads/       2,200 train          1 hour.............           2,200
                                    signal contractors.  employees.
49 U.S.C. 21102(b)--The Federal
 hours of service laws:
    --Petitions for Exemption      10 railroads.......  2 petitions........  10 hours...........              20
     from Laws
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Poston, 
Information Clearance Officer, at 202-493-6073.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements that do not display a current OMB 
control number, if required. 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.

G. Regulation Identifier Number (RIN)

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN number contained in the heading of this document can be used to 
cross-reference this action with the Unified Agenda.

H. Unfunded Mandates Reform Act

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 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 the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $141,100,000 or more (adjusted annually for 
inflation) in any 1 year, and before promulgating any final rule for 
which a general notice of proposed rulemaking was published, the 
agency shall prepare a written statement''

detailing the effect on State, local, and tribal governments and the 
private sector.
    This rule will not result in the expenditure of more than 
$141,100,000 (adjusted annually for inflation) by the public sector in 
any one year, and thus preparation of such a statement is not required.

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires that Federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. This rule will not have a significant impact on the human 
environment.

List of Subjects in 49 CFR Part 228

    Administrative Practice and Procedures, Buildings and facilities, 
Hazardous materials transportation, Noise control, Penalties, Railroad 
employees, Railroad safety, Reporting and recordkeeping requirements.

PART 228--[AMENDED]

The Rule

0
For the reasons discussed in the preamble, part 228 of chapter II, 
subtitle B of title 49, Code of Federal Regulations is amended as 
follows:
0
1. The authority citation for part 228 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. 
A, Public Law 110-432, 122 Stat. 4860-4866; 49 U.S.C. 21301, 21303, 
21304, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49; and 49 U.S.C. 103.


0
2. Section 228.1 is amended by revising paragraph (a) to read as 
follows:


Sec.  228.1  Scope.

* * * * *
    (a) Prescribes reporting and recordkeeping requirements with 
respect to the hours of service of certain railroad employees and 
certain employees of railroad contractors and subcontractors; and

0
3. Section 228.3 is revised to read as follows:


Sec.  228.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all railroads and contractors and subcontractors of 
railroads.
    (b) This part does not apply to:

[[Page 25346]]

    (1) A railroad or a contractor or subcontractor of a railroad that 
operates only on track inside an installation which is not part of the 
general railroad system of transportation; or
    (2) Rapid transit operations in an urban area that are not 
connected with the general railroad system of transportation.

0
4. Section 228.5 is revised to read as follows:


Sec.  228.5  Definitions.

    As used in this part--
    Actual time means either the specific time of day, to the hour and 
minute, or the precise amount of time spent in an activity, in hours 
and minutes, that must be included in the hours of duty record, 
including, where appropriate, reference to the applicable time zone and 
either standard time or daylight savings time.
    Administrator means the Administrator of the Federal Railroad 
Administration or any person to whom the Administrator has delegated 
authority in the matter concerned.
    Administrative duties means any activities required by the railroad 
as a condition of employment, related to reporting, recording, or 
providing an oral or written statement related to a current, previous, 
or future duty tour. Such activities are considered service for the 
railroad, and time spent in these activities must be included in the 
total time on duty for any duty tour with which it may commingle.
    At the behest of the employee refers to time spent by an employee 
in a railroad-related activity that is not required by the railroad as 
a condition of employment, in which the employee voluntarily 
participates.
    At the behest of the railroad refers to time spent by an employee 
in a railroad-required activity that compels an employee to perform 
service for the railroad as a condition of employment.
    Broken (aggregate) service means one or more periods of time on 
duty within a single duty tour separated by one or more qualifying 
interim releases.
    Call and release occurs when an employing railroad issues an 
employee a report-for-duty time, and then releases the employee from 
the requirement to report prior to the report-for-duty time.
    Carrier, common carrier, and common carrier engaged in interstate 
or foreign commerce by railroad mean railroad.
    Commingled service means--
    (1) For a train employee or a signal employee, any non-covered 
service at the behest of the railroad and performed for the railroad 
that is not separated from covered service by a qualifying statutory 
off-duty period of 8 or 10 hours or more. Such commingled service is 
counted as time on duty pursuant to 49 U.S.C. 21103(b)(3) (for train 
employees) or 49 U.S.C. 21104(b)(2) (for signal employees).
    (2) For a dispatching service employee, any non-covered service 
mandated by the railroad and performed for the railroad within any 24-
hour period containing covered service. Such commingled service is 
counted as time on duty pursuant to 49 U.S.C. 21105(c).
    Commuting means--
    (1) For a train employee, the time spent in travel--
    (i) Between the employee's residence and the employee's regular 
reporting point, and
    (ii) In railroad-provided or authorized transportation to and from 
the lodging facility at the away-from-home terminal (excluding travel 
for purposes of an interim release), where such time (including travel 
delays and room availability) does not exceed 30 minutes.
    (2) For a signal employee, the time spent in travel between the 
employee's residence and the employee's headquarters.
    (3) For a dispatching service employee, the time spent in travel 
between the employee's residence and any reporting point.
    Consecutive service is a period of unbroken total time on duty 
during a duty tour.
    Covered service means--
    (1) For a train employee, the portion of the employee's time on 
duty during which the employee is engaged in, or connected with, the 
movement of a train.
    (2) For a dispatching service employee, the portion of the 
employee's time on duty during which the employee, by the use of an 
electrical or mechanical device, dispatches, reports, transmits, 
receives, or delivers an order related to or affecting the movement of 
a train.
    (3) For a signal employee, the portion of the employee's time on 
duty during which the employee is engaged in installing, repairing, or 
maintaining a signal system.
    Covered service assignment means--
    (1) For a train employee, each unique assignment of the employee 
during a period of covered service that is associated with either a 
specific train or a specific yard job.
    (2) For a signal employee, the assigned duty hours of the employee, 
including overtime, or unique trouble call assignments occurring 
outside the employee's assigned duty hours.
    (3) For a dispatching service employee, each unique assignment for 
the employee that occurs within any 24-hour period in which the 
employee, by the use of an electrical or mechanical device, dispatches, 
reports, transmits, receives, or delivers orders related to or 
affecting train movements.
    Deadheading means the physical relocation of a train employee from 
one point to another as a result of a railroad-issued verbal or written 
directive.
    Designated terminal means the home or away-from-home terminal for 
the assignment of a particular train crew.
    Dispatching service employee means an operator, train dispatcher, 
or other train employee who by the use of an electrical or mechanical 
device dispatches, reports, transmits, receives, or delivers orders 
related to or affecting train movements.
    Duty location for a signal employee is the employee's headquarters 
or the precise location where the employee is expected to begin 
performing service for the railroad as defined in 49 U.S.C. 21104(b)(1) 
and (2).
    Duty tour means--
    (1) The total of all periods of covered service and commingled 
service for a train employee or a signal employee occurring between two 
statutory off-duty periods (i.e., off-duty periods of a minimum of 8 or 
10 hours); or
    (2) The total of all periods of covered service and commingled 
service for a dispatching service employee occurring in any 24-hour 
period.
    Employee means an individual employed by a railroad or a contractor 
or subcontractor to a railroad who--
    (1) Is actually engaged in or connected with the movement of any 
train, including a person who performs the duties of a hostler;
    (2) Dispatches, reports, transmits, receives, or delivers an order 
pertaining to a train movement by the use of telegraph, telephone, 
radio, or any other electrical or mechanical device; or
    (3) Is engaged in installing, repairing, or maintaining a signal 
system.
    Final release is the time that a train employee or a signal 
employee is released from all activities at the behest of the railroad 
and begins his or her statutory off-duty period.
    Headquarters means the regular assigned on-duty location for signal 
employees, or the lodging facility or crew quarters where traveling 
signal gangs reside when working at various system locations.
    Interim release means an off-duty period applied to train employees 
only, of at least 4 hours but less than the required statutory off-duty 
period at a designated terminal, which off-duty period temporarily 
suspends the

[[Page 25347]]

accumulation of time on duty, but does not start a new duty tour.
    Limbo time means a period of time treated as neither time on duty 
nor time off duty in 49 U.S.C. 21103 and 21104, and any other period of 
service for the railroad that does not qualify as either covered 
service or commingled service.
    On-duty time means the actual time that an employee reports for 
duty to begin a covered service assignment.
    Other-than-regular reporting point means any location where a train 
employee reports to begin or restart a duty tour, that is not the 
employee's regular reporting point.
    Prior time off means the amount of time that an employee has been 
off duty between identifiable periods of service at the behest of the 
railroad.
    Program edits are filters contained in the logic of an hours of 
service recordkeeping program that detect identifiable reporting errors 
made by a reporting employee at the time of data entry, and prevent the 
employee from submitting a record without first correcting or 
explaining any identified errors or anomalies.
    Quick tie-up is a data entry process used only when an employee is 
within 3 minutes of, or is beyond, his or her statutory maximum on-duty 
period, which process allows an employee to enter only the basic 
information necessary for the railroad to identify the beginning of an 
employee's statutory off-duty period, to avoid the excess service that 
would otherwise be incurred in completing the full record for the duty 
tour. The information permitted in a quick tie-up process is limited 
to, at a maximum:
    (1) Board placement time;
    (2) Relieved location, date, and time;
    (3) Final release location, date, and time;
    (4) Contact information for the employee during the statutory off-
duty period;
    (5) Request for rest in addition to the statutory minimum, if 
provided by collective bargaining agreement or local practice;
    (6) The employee may be provided an option to enter basic payroll 
information, related only to the duty tour being tied up; and
    (7) Employee certification of the tie-up information provided.
    Railroad means a person providing railroad transportation.
    Railroad transportation means any form of non-highway ground 
transportation that runs on rails or electromagnetic guideways, 
including commuter or other short-haul rail passenger service in a 
metropolitan or suburban area, and high speed ground transportation 
systems that connect metropolitan areas, without regard to whether they 
use new technologies not associated with traditional railroads. Such 
term does not include rapid transit operations within an urban area 
that are not connected to the general railroad system of 
transportation.
    Regular reporting point means the permanent on-duty location of a 
train employee's regular assignment that is established through a job 
bulletin assignment (either a job award or a forced assignment) or 
through an employee's exercise of seniority to be placed in an 
assignment. The assigned regular reporting point is a single fixed 
location identified by the railroad, even for extra board and pool crew 
employees.
    Release means--
    (1) For a train employee,
    (i) The time within the duty tour that the employee begins an 
interim release;
    (ii) The time that an employee completes a covered service 
assignment and begins another covered service assignment on a different 
train or job, or
    (iii) The time that an employee completes a covered service 
assignment to begin another activity that counts as time on duty 
(including waiting for deadhead transportation to another duty location 
at which the employee will perform covered service, deadheading to 
duty, or any other commingled service).
    (2) For a signal employee, the time within a duty tour that the 
employee--
    (i) Completes his or her regular assigned hours and begins an off-
duty period of at least one hour but less than a statutory off-duty 
period; or
    (ii) Completes his or her return travel from a trouble call or 
other unscheduled duty and begins an off-duty period of at least one 
hour, but less than a statutory off-duty period.
    (3) For a dispatching service employee, when he or she stops 
performing covered service and commingled service within any 24-hour 
period and begins an off-duty period of at least one hour.
    Relieved time means--
    (1) The actual time that a train employee stops performing a 
covered service assignment or commingled service.
    (2) The actual time that a signal employee:
    (i) Completes his or her assigned duty hours, or stops performing 
covered service or commingled service, whichever is later; or
    (ii) Stops performing covered service associated with a trouble 
call or other unscheduled duty outside of normally assigned duty hours.
    Reports for duty means that an employee--
    (i) Presents himself or herself at the location established by the 
railroad at the time the railroad established for the employee to be 
present; and
    (ii) Is ready to perform covered service.
    Report-for-duty time means--
    (1) For a train employee, the actual time that the employee is 
required to be present at a reporting point and prepared to start a 
covered service assignment.
    (2) For a signal employee, the assigned starting time of an 
employee's scheduled shift, or the time that he or she receives a 
trouble call or a call for any other unscheduled duty during an off-
duty period.
    (3) For a dispatching service employee, when the employee begins 
the turn-over process at or before the beginning of his or her assigned 
shift, or begins any other activity at the behest of the railroad 
during any 24-hour period in which covered service is performed.
    Reporting point means any location where an employee is required to 
begin or restart a duty tour.
    Seniority move means a repositioning at the behest of the employee, 
usually a repositioning from a regular assignment or extra board to a 
different regularly assigned position or extra board, as the result of 
the employee's selection of a bulletin assignment or the employee's 
exercise of seniority over a junior employee.
    Signal employee means an individual who is engaged in installing, 
repairing, or maintaining signal systems.
    Station, office or tower means the precise location where a 
dispatching service employee is expected to perform service for the 
railroad as defined in 49 U.S.C. 21105(b) and (c).
    Statutory off-duty period means the period of 8 or 10 consecutive 
hours or more time, that is the minimum off-duty period required under 
the hours of service laws for a train employee or a signal employee to 
begin a new 24-hour period for the purposes of calculating his or her 
total time on duty.
    Total off-duty period means the actual amount of time that a train 
employee or a signal employee is off duty between duty tours after the 
previous final release and before the beginning of the next duty tour. 
This time may differ from the expected prior time off that will be 
generated by the recordkeeping system, if the employee performed 
service at the behest of the railroad between the duty tours.
    Total time on duty (TTOD) means the total accumulation of time 
spent in periods of covered service and commingled service between 
qualifying statutory off-duty periods of 8 or 10

[[Page 25348]]

hours or more. Mandatory activities that do not constitute covered 
service, such as rules classes, when they may not attach to covered 
service, are counted as limbo time, rather than commingled service, 
which limbo time is not counted toward the calculation of total time on 
duty.
    Train employee means an individual engaged in or connected with the 
movement of a train, including a hostler.
    Travel time means--
    (1) For a signal employee, the time spent in transportation between 
the employee's headquarters and an outlying duty point or between the 
employee's residence and an outlying duty point, or, between duty 
locations, including both on-track and on-highway vehicular travel.
    (2) For a dispatching service employee, the time spent in travel 
between stations, offices, or towers during the employee's time on 
duty.

0
5. Section 228.9 is amended by revising the section heading and 
paragraph (a) and adding paragraph (b), to read as follows:


Sec.  228.9  Records; general.

    (a) Each manual record maintained under this part shall be--
    (1) Signed by the employee whose time on duty is being recorded or, 
in the case of a train and engine crew or a signal employee gang, 
signed by the ranking crewmember;
    (2) Retained for two years at locations identified by the carrier; 
and
    (3) Available upon request at the identified location for 
inspection and copying by the Administrator during regular business 
hours.
    (b) Each electronic record maintained under this part shall be--
    (1) Certified by the employee whose time on duty is being recorded 
or, in the case of a train and engine crew or a signal employee gang, 
certified by the reporting employee who is a member of the train crew 
or signal gang whose time is being recorded;
    (2) Electronically stamped with the certifying employee's name and 
the date and time of certification;
    (3) Retained for 2 years in a secured file that prevents alteration 
after certification;
    (4) Accessible by the Administrator through a computer terminal of 
the railroad, using a railroad-provided identification code and a 
unique password.
    (5) Reproducible using the printing capability at the location 
where records are accessed.

0
6. Section 228.11 is amended by revising paragraph (a) and adding 
paragraphs (b), (c), and (d) to read as follows:


Sec.  228.11  Hours of duty records.

    (a) In general. Each railroad, or a contractor or a subcontractor 
of a railroad, shall keep a record, either manually or electronically, 
concerning the hours of duty of each employee. Each contractor or 
subcontractor of a railroad shall also record the name of the railroad 
for whom its employee performed covered service during the duty tour 
covered by the record. Employees who perform covered service 
assignments in a single duty tour that are subject to the recordkeeping 
requirements of more than one paragraph of this section, must complete 
the record applicable to the covered service position for which they 
were called, and record other covered service as an activity 
constituting other service at the behest of the railroad.
    (b) For train employees. Except as provided by paragraph (c) of 
this section, each hours of duty record for a train employee shall 
include the following information about the employee:
    (1) Identification of the employee (initials and last name; or if 
last name is not the employee's surname, provide the employee's 
initials and surname).
    (2) Each covered service position in a duty tour.
    (3) Amount of time off duty before beginning a new covered service 
assignment or resuming a duty tour.
    (4) Train ID for each assignment required to be reported by this 
part, except for the following employees, who may instead report the 
unique job or train ID identifying their assignment:
    (i) Utility employees assigned to perform covered service, who are 
identified as such by a unique job or train ID;
    (ii) Employees assigned to yard jobs, except that employees 
assigned to perform yard jobs on all or parts of consecutive shifts 
must at least report the yard assignment for each shift;
    (iii) Assignments, either regular or extra, that are specifically 
established to shuttle trains into and out of a terminal during a 
single duty tour that are identified by a unique job or train symbol as 
such an assignment.
    (5) Location, date, and beginning time of the first assignment in a 
duty tour, and, if the duty tour exceeds 12 hours and includes a 
qualifying period of interim release as provided by 49 U.S.C. 21103(b), 
the location, date, and beginning time of the assignment immediately 
following the interim release.
    (6) Location, date, and time relieved for the last assignment in a 
duty tour, and, if the duty tour exceeds 12 hours and includes a 
qualifying period of interim release as provided by 49 U.S.C. 21103(b), 
the location, date, and time relieved for the assignment immediately 
preceding the interim release.
    (7) Location, date, and time released from the last assignment in a 
duty tour, and, if the duty tour exceeds 12 hours and includes a 
qualifying period of interim release as provided by 49 U.S.C. 21103(b), 
the location, date, and time released from the assignment immediately 
preceding the interim release.
    (8) Beginning and ending location, date, and time for periods spent 
in transportation, other than personal commuting, if any, to the first 
assignment in a duty tour, from an assignment to the location of a 
period of interim release, from a period of interim release to the next 
assignment, or from the last assignment in a duty tour to the point of 
final release, including the mode of transportation (train, track car, 
railroad-provided motor vehicle, personal automobile, etc.).
    (9) Beginning and ending location, date, and time of any other 
service performed at the behest of the railroad.
    (10) Identification (code) of service type for any other service 
performed at the behest of the railroad.
    (11) Total time on duty for the duty tour.
    (12) Reason for any service that exceeds 12 hours total time on 
duty for the duty tour.
    (13) The total amount of time by which the sum of total time on 
duty and time spent awaiting or in deadhead transportation to the point 
of final release exceeds 12 hours.
    (14) The cumulative total for the calendar month of--
    (i) Time spent in covered service;
    (ii) Time spent awaiting or in deadhead transportation from a duty 
assignment to the place of final release; and
    (iii) Time spent in any other service at the behest of the 
railroad.
    (15) The cumulative total for the calendar month of time spent 
awaiting or in deadhead transportation from a duty assignment to the 
place of final release following a period of 12 consecutive hours on 
duty.
    (16) Number of consecutive days in which a period of time on duty 
was initiated.
    (c) Exceptions to requirements for train employees. Paragraphs 
(b)(13) through (b)(16) of this section do not apply to the hours of 
duty records of train employees providing commuter

[[Page 25349]]

rail passenger transportation or intercity rail passenger 
transportation.
    (d) For dispatching service employees. Each hours of duty record 
for a dispatching service employee shall include the following 
information about the employee:
    (1) Identification of the employee (initials and last name; or if 
last name is not the employee's surname, provide the employee's 
initials and surname).
    (2) Each covered service position in a duty tour.
    (3) Amount of time off duty before going on duty or returning to 
duty in a duty tour.
    (4) Location, date, and beginning time of each assignment in a duty 
tour.
    (5) Location, date, and time released from each assignment in a 
duty tour.
    (6) Beginning and ending location, date, and time of any other 
service performed at the behest of the railroad.
    (7) Total time on duty for the duty tour.
    (e) For signal employees. Each hours of duty record for a signal 
employee shall include the following information about the employee:
    (1) Identification of the employee (initials and last name; or if 
last name is not the employee's surname, provide the employee's 
initials and surname).
    (2) Each covered service position in a duty tour.
    (3) Headquarters location for the employee.
    (4) Amount of time off duty before going on duty or resuming a duty 
tour.
    (5) Location, date, and beginning time of each covered service 
assignment in a duty tour.
    (6) Location, date, and time relieved for each covered service 
assignment in a duty tour.
    (7) Location, date, and time released from each covered service 
assignment in a duty tour.
    (8) Beginning and ending location, date, and time for periods spent 
in transportation, other than personal commuting, to or from a duty 
assignment, and mode of transportation (train, track car, railroad-
provided motor vehicle, personal automobile, etc.).
    (9) Beginning and ending location, date, and time of any other 
service performed at the behest of the railroad.
    (10) Total time on duty for the duty tour.
    (11) Reason for any service that exceeds 12 hours total time on 
duty for the duty tour.

0
7. Add Sec.  228.13 to read as follows:


Sec.  228.13  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except for a provision necessary to eliminate or reduce an 
essentially local safety hazard if that provision is not incompatible 
with a law, regulation, or order of the United States government and 
does not unreasonably burden interstate commerce. Nothing in this 
paragraph shall be construed to preempt an action under State law 
seeking damages for personal injury, death, or property damage alleging 
that a party has failed to comply with the Federal standard of care 
established by this part, has failed to comply with its own plan, rule, 
or standard that it created pursuant to this part, or has failed to 
comply with a State law, regulation, or order that is not incompatible 
with the first sentence of this paragraph.

0
8. Section 228.19 is revised to read as follows:


Sec.  228.19  Monthly reports of excess service.

    (a) In general. Except as provided in paragraph (h) of this 
section, each railroad, or a contractor or a subcontractor of a 
railroad, shall report to the Associate Administrator for Railroad 
Safety/Chief Safety Officer, Federal Railroad Administration, 
Washington, DC 20590, each instance of excess service listed in 
paragraphs (b) through (e) of this section, in the manner provided by 
paragraph (f) of this section, within 30 days after the calendar month 
in which the instance occurs.
    (b) For train employees. Except as provided in paragraph (c) of 
this section, the following instances of excess service by train 
employees must be reported to FRA as required by this section:
    (1) A train employee is on duty for more than 12 consecutive hours.
    (2) A train employee continues on duty without at least 10 
consecutive hours off duty during the preceding 24 hours. Instances 
involving duty tours that are broken by less than 10 consecutive hours 
off duty which duty tours constitute more than a total of 12 hours time 
on duty must be reported.\1\
    (3) A train employee returns to duty without at least 10 
consecutive hours off duty during the preceding 24 hours. Instances 
involving duty tours that are broken by less than 10 consecutive hours 
off duty which duty tours constitute more than a total of 12 hours time 
on duty must be reported.\1\
---------------------------------------------------------------------------

    \1\ Instances involving duty tours that are broken by four or 
more consecutive hours of off duty time at a designated terminal 
which duty tours do not constitute more than a total of 12 hours 
time on duty are not required to be reported, provided such duty 
tours are immediately preceded by 10 or more consecutive hours of 
off-duty time.
---------------------------------------------------------------------------

    (4) A train employee returns to duty without additional time off 
duty, equal to the total amount of time by which the employee's sum of 
total time on duty and time spent awaiting or in deadhead 
transportation to the point of final release exceeds 12 hours.
    (5) A train employee exceeds a cumulative total of 276 hours in the 
following activities in a calendar month:
    (i) Time spent in covered service;
    (ii) Time spent awaiting or in deadhead transportation from a duty 
assignment to the place of final release; and
    (iii) Time spent in any other service at the behest of the 
railroad.
    (6) A train employee initiates an on-duty period on more than 6 
consecutive days, when the on-duty period on the sixth consecutive day 
ended at the employee's home terminal, and the seventh consecutive day 
is not allowed pursuant to a collective bargaining agreement or pilot 
project.
    (7) A train employee returns to duty after initiating an on-duty 
period on 6 consecutive days, without 48 consecutive hours off duty at 
the employee's home terminal.
    (8) A train employee initiates an on-duty period on more than 7 
consecutive days.
    (9) A train employee returns to duty after initiating an on-duty 
period on 7 consecutive days, without 72 consecutive hours off duty at 
the employee's home terminal.
    (10) A train employee exceeds the following limitations on time 
spent awaiting or in deadhead transportation from a duty assignment to 
the place of final release following a period of 12 consecutive hours 
on duty:
    (i) 40 hours in any calendar month completed prior to October 1, 
2009;
    (ii) 20 hours in the transition period from October 1, 2009-October 
15, 2009;
    (iii) 15 hours in the transition period from October 16, 2009-
October 31, 2009; and
    (iv) 30 hours in any calendar month completed after October 31, 
2009.
    (c) Exception to requirements for train employees. For train 
employees who provide commuter rail passenger transportation or 
intercity rail passenger transportation during a duty tour, the 
following instances of excess service must be reported to FRA as 
required by this section:
    (1) A train employee is on duty for more than 12 consecutive hours.
    (2) A train employee returns to duty after 12 consecutive hours of 
service without at least 10 consecutive hours off duty.

[[Page 25350]]

    (3) A train employee continues on duty without at least 8 
consecutive hours off duty during the preceding 24 hours. Instances 
involving duty tours that are broken by less than 8 consecutive hours 
off duty which duty tours constitute more than a total of 12 hours time 
on duty must be reported.\2\
    (4) A train employee returns to duty without at least 8 consecutive 
hours off duty during the preceding 24 hours. Instances involving duty 
tours that are broken by less than 8 consecutive hours off duty which 
duty tours constitute more than a total of 12 hours time on duty must 
be reported.\2\
---------------------------------------------------------------------------

    \2\ Instances involving duty tours that are broken by four or 
more consecutive hours of off-duty time at a designated terminal 
which duty tours do not constitute more than a total of 12 hours 
time on duty are not required to be reported, provided such duty 
tours are immediately preceded by 8 or more consecutive hours of 
off-duty time.
---------------------------------------------------------------------------

    (d) For dispatching service employees. The following instances of 
excess service by dispatching service employees must be reported to FRA 
as required by this section:
    (1) A dispatching service employee is on duty for more than 9 hours 
in any 24-hour period at an office where two or more shifts are 
employed.
    (2) A dispatching service employee is on duty for more than 12 
hours in any 24-hour period at any office where one shift is employed.
    (e) For signal employees. The following instances of excess service 
by signal employees must be reported to FRA as required by this 
section:
    (1) A signal employee is on duty for more than 12 consecutive 
hours.
    (2) A signal employee continues on duty without at least 10 
consecutive hours off duty during the preceding 24 hours.
    (3) A signal employee returns to duty without at least 10 
consecutive hours off duty during the preceding 24 hours.
    (f) Except as provided in paragraph (h) of this section, reports 
required by paragraphs (b) through (e) of this section shall be filed 
in writing on FRA Form F-6180-3 \3\ with the Office of Railroad Safety, 
Federal Railroad Administration, Washington, DC 20590. A separate form 
shall be used for each instance reported.
---------------------------------------------------------------------------

    \3\ Form may be obtained from the Office of Railroad Safety, 
Federal Railroad Administration, Washington, DC 20590. Reproduction 
is authorized.
---------------------------------------------------------------------------

    (g) Use of electronic signature. For the purpose of complying with 
paragraph (f) of this section, the signature required on Form FRA F-
6180-3 may be provided to FRA by means of an electronic signature 
provided that:
    (1) The record contains the printed name of the signer and the date 
and actual time that the signature was executed, and the meaning (such 
as authorship, review, or approval), associated with the signature;
    (2) Each electronic signature shall be unique to one individual and 
shall not be used by, or assigned to, anyone else;
    (3) Before a railroad, or a contractor or subcontractor to a 
railroad, establishes, assigns, certifies, or otherwise sanctions an 
individual's electronic signature, or any element of such electronic 
signature, the organization shall verify the identity of the 
individual;
    (4) Persons using electronic signatures shall, prior to or at the 
time of such use, certify to the agency that the electronic signatures 
in their system, used on or after the effective date of this 
regulation, are the legally binding equivalent of traditional 
handwritten signatures;
    (5) The certification shall be submitted, in paper form and signed 
with a traditional handwritten signature, to the Associate 
Administrator for Railroad Safety/Chief Safety Officer; and
    (6) Persons using electronic signatures shall, upon agency request, 
provide additional certification or testimony that a specific 
electronic signature is the legally binding equivalent of the signer's 
handwritten signature.
    (h) Exception. A railroad, or a contractor or subcontractor to a 
railroad, is excused from the requirements of paragraphs (a) and (f) of 
this section as to any employees for which--
    (1) The railroad, or a contractor or subcontractor to a railroad, 
maintains hours of service records using an electronic recordkeeping 
system that complies with the requirements of subpart D of this part; 
and
    (2) The electronic recordkeeping system referred to in paragraph 
(h)(1) of this section requires--
    (i) The employee to enter an explanation for any excess service 
certified by the employee; and
    (ii) The railroad, or a contractor or subcontractor of a railroad, 
to analyze each instance of excess service certified by one of its 
employees, make a determination as to whether each instance of excess 
service would be reportable under the provisions of paragraphs (b) 
through (e) of this section, and allows the railroad, or a contractor 
or subcontractor to a railroad, to append its analysis to its 
employee's electronic record; and
    (iii) Allows FRA inspectors and State inspectors participating 
under 49 CFR Part 212 access to employee reports of excess service and 
any explanations provided.

0
9. Section 228.23 is revised to read as follows:


Sec.  228.23  Criminal penalty.

    Any person who knowingly and willfully falsifies a report or record 
required to be kept under this part or otherwise knowingly and 
willfully violates any requirement of this part may be liable for 
criminal penalties of a fine up to $5,000, imprisonment for up to two 
years, or both, in accordance with 49 U.S.C. 21311(a).
0
10. Add subpart D to read as follows:
Subpart D--Electronic Recordkeeping
Sec.
228.201 Electronic recordkeeping; general.
228.203 Program components.
228.205 Access to electronic records.
228.207 Training.

Subpart D--Electronic Recordkeeping


Sec.  228.201  Electronic recordkeeping; general.

    For purposes of compliance with the recordkeeping requirements of 
subpart B, a railroad, or a contractor or a subcontractor to a railroad 
may create and maintain any of the records required by subpart B 
through electronic transmission, storage, and retrieval provided that 
all of the following conditions are met:
    (1) The system used to generate the electronic record meets all 
requirements of this subpart;
    (2) The electronically generated record contains the information 
required by Sec.  228.11;
    (3) The railroad, or contractor or subcontractor to the railroad, 
monitors its electronic database of employee hours of duty records 
through sufficient number of monitoring indicators to ensure a high 
degree of accuracy of these records; and
    (4) The railroad, or contractor or subcontractor to the railroad, 
trains its employees on the proper use of the electronic recordkeeping 
system to enter the information necessary to create their hours of 
service record, as required by Sec.  228.207.
    (5) The railroad, or contractor or subcontractor to the railroad, 
maintains an information technology security program adequate to ensure 
the integrity of the system, including the prevention of unauthorized 
access to the program logic or individual records.
    (6) FRA's Associate Administrator for Railroad Safety/Chief Safety 
Officer may prohibit or revoke the authority to use an electronic 
system if FRA finds the system is not properly secure, is inaccessible 
to FRA, or fails to record and store the information adequately and 
accurately. FRA will record such a determination in writing, including 
the basis for such action, and will provide a copy of its determination 
to the

[[Page 25351]]

affected railroad, or contractor or subcontractor to a railroad.


Sec.  228.203  Program components.

    (a) System security. The integrity of the program and database must 
be protected by a security system that utilizes an employee 
identification number and password, or a comparable method, to 
establish appropriate levels of program access meeting all of the 
following standards:
    (1) Data input is restricted to the employee or train crew or 
signal gang whose time is being recorded, with the following 
exceptions:
    (i) A railroad, or a contractor or subcontractor to a railroad, may 
allow its recordkeeping system to pre-populate fields of the hours of 
service record provided that--
    (A) The recordkeeping system pre-populates fields of the hours of 
service record with information known to the railroad, or contractor or 
subcontractor to the railroad, to be factually accurate for a specific 
employee.
    (B) The recordkeeping system may also provide the ability for 
employees to copy data from one field of a record into another field, 
where applicable.
    (C) Estimated, historical, or arbitrary data are not used to pre-
populate any field of an hours of service record.
    (D) A railroad, or a contractor or a subcontractor to a railroad, 
is not in violation of this paragraph if it makes a good faith judgment 
as to the factual accuracy of the data for a specific employee but 
nevertheless errs in pre-populating a data field.
    (E) The employee may make any necessary changes to the data by 
typing into the field, without having to access another screen or 
obtain clearance from the railroad, or a contractor or subcontractor to 
a railroad.
    (ii) A railroad, or a contractor or a subcontractor to a railroad, 
shall allow employees to complete a verbal quick tie-up, or to transmit 
by facsimile or other electronic means the information necessary for a 
quick tie-up, if--
    (A) The employee is released from duty at a location at which there 
is no terminal available;
    (B) Computer systems are unavailable as a result of technical 
issues; or
    (C) Access to computer terminals is delayed and the employee has 
exceeded his or her maximum allowed time on duty.
    (2) No two individuals have the same electronic identity.
    (3) A record cannot be deleted or altered by any individual after 
the record is certified by the employee who created the record.
    (4) Any amendment to a record is either--
    (i) Electronically stored apart from the record that it amends, or
    (ii) Electronically attached to the record as information without 
changing the original record.
    (5) Each amendment to a record uniquely identifies the individual 
making the amendment.
    (6) The electronic system provides for the maintenance of 
inspection records as originally submitted without corruption or loss 
of data.
    (7) Supervisors and crew management officials can access, but 
cannot delete or alter the records of any employee after the report-
for-duty time of the employee or after the record has been certified by 
the reporting employee.
    (b) Identification of the individual entering data. The program 
must be capable of identifying each individual who entered data for a 
given record. If a given record contains data entered by more than one 
individual, the program must be capable of identifying each individual 
who entered specific information within the record.
    (c) Capabilities of program logic. The program logic must have the 
ability to--
    (1) Calculate the total time on duty for each employee, using data 
entered by the employee and treating each identified period as defined 
in Sec.  228.5;
    (2) Identify input errors through the use of program edits;
    (3) Require records, including outstanding records, the completion 
of which was delayed, to be completed in chronological order;
    (4) Require reconciliation when the known (system-generated) prior 
time off differs from the prior time off reported by an employee;
    (5) Require explanation if the total time on duty reflected in the 
certified record exceeds the statutory maximum for the employee;
    (6) Require the use of a quick tie-up process when the employee has 
exceeded or is within three minutes of his or her statutory maximum 
time on duty;
    (7) Require that the employee's certified final release be not more 
than three minutes in the future, and that the employee may not certify 
a final release time for a current duty tour that is in the past, 
compared to the clock time of the computer system at the time that the 
record is certified, allowing for changes in time zones;
    (8) Require automatic modification to prevent miscalculation of an 
employee's total time on duty for a duty tour that spans changes from 
and to daylight savings time;
    (9) For train employees, require completion of a full record at the 
end of a duty tour when the employee initiates a tie-up with less than 
the statutory maximum time on duty and a quick tie-up is not mandated;
    (10) For train employees, disallow use of a quick tie-up when the 
employee has time remaining to complete a full record, except as 
provided in paragraph (a)(1)(ii) of this section.
    (11) Disallow any manipulation of the tie-up process that precludes 
compliance with any of the requirements specified by paragraphs (c)(1) 
through (c)(10) of this section.
    (d) Search capabilities. The program must contain sufficient search 
criteria to allow any record to be retrieved through a search of any 
one or more of the following data fields, by specific date or by a date 
range not exceeding 30 days for the data fields specified by paragraphs 
(d)(1) and (d)(2) of this section, and not exceeding one day for the 
data fields specified by paragraphs (d)(3) through (d)(7) of this 
section:
    (1) Employee, by name or identification number;
    (2) Train or job symbol;
    (3) Origin location, either yard or station;
    (4) Released location, either yard or station;
    (5) Operating territory (i.e., division or service unit, 
subdivision, or railroad-identified line segment);
    (6) Certified records containing one or more instances of excess 
service; and
    (7) Certified records containing duty tours in excess of 12 hours.
    (e) The program must display individually each train or job 
assignment within a duty tour that is required to be reported by this 
part.


Sec.  228.205  Access to electronic records.

    (a) FRA inspectors and State inspectors participating under 49 CFR 
Part 212 must have access to hours of service records created and 
maintained electronically that is obtained as required by Sec.  
228.9(b)(4).
    (b) Railroads must establish and comply with procedures for 
providing an FRA inspector or participating State inspector with an 
identification number and temporary password for access to the system 
upon request, which access will be valid for a period not to exceed 
seven days. Access to the system must be provided as soon as possible 
and no later than 24 hours after a request for access.
    (c) The inspection screen provided to FRA inspectors and 
participating State inspectors for searching employee hours of duty 
records must be formatted so that--
    (1) Each data field entered by an employee on the input screen is 
visible to the FRA inspector or participating State inspector; and

[[Page 25352]]

    (2) The data fields are searchable as described in Sec.  228.203(d) 
and yield access to all records matching criteria specified in a 
search.
    (3) Records are displayed in a manner that is both crew-based and 
duty tour oriented, so that the data pertaining to all employees who 
worked together as part of a crew or signal gang will be displayed 
together, and the record will include all of the assignments and 
activities of a given duty tour that are required to be recorded by 
this part.


Sec.  228.207  Training.

    (a) In general. A railroad, or a contractor or subcontractor to a 
railroad, shall provide its train employees, signal employees, and 
dispatching service employees and its supervisors of these employees 
with initial training and refresher training as provided in this 
section.
    (b) Initial training. (1) Initial training shall include the 
following:
    (i) Instructional components presented in a classroom setting or by 
electronic means; and
    (ii) Experiential (``hands-on'') components; and
    (iii) Training on--
    (A) The aspects of the hours of service laws relevant to the 
employee's position that are necessary to understanding the proper 
completion of the hours of service record required by this part, and
    (B) The entry of hours of service data, into the electronic system 
or on the appropriate paper records used by the railroad or contractor 
or subcontractor to a railroad for whom the employee performs covered 
service; and
    (iv) Testing to ensure that the objectives of training are met.
    (2) Initial training shall be provided--
    (i) To each current employee and supervisor of an employee as soon 
after May 27, 2009 as practicable; and
    (ii) To new employees and supervisors prior to the time that they 
will be required to complete an hours of service record or supervise an 
employee required to complete an hours of service record.
    (c) Refresher training. (1) The content and level of formality of 
refresher training should be tailored to the needs of the location and 
employees involved, except that the training shall--
    (i) Emphasize any relevant changes to the hours of service laws, 
the reporting requirements in this part, or the carrier's electronic or 
other recordkeeping system since the employee last received training; 
and
    (ii) Cover any areas in which supervisors or other railroad 
managers are finding recurrent errors in the employees' records through 
the monitoring indicators.
    (2) Refresher training shall be provided to each employee any time 
that recurrent errors in records prepared by the employee, discovered 
through the monitoring indicators, suggest, for example, the employee's 
lack of understanding of how to complete hours of service records.

    Issued in Washington, DC, on May 19, 2009.
Karen J. Rae,
Deputy Administrator.
[FR Doc. E9-12059 Filed 5-21-09; 4:15 pm]
BILLING CODE 4910-06-P