By: Michael W. Shumate

On December 22, 2020, the FRA published proposed rules under 49 CFR Parts 270 and 271 (Docket FRA-2015-0122) which seek to require certain railroads to develop and implement a Fatigue Risk Management Program, as one component of the railroads’ larger railroad safety risk reduction programs. This proposed rule, if finalized, would fulfill Railroad Safety Improvement Act of 2008’s (RSIA) (49 U.S.C. 20156) mandate for railroads to include fatigue management plans in their safety risk reduction programs by requiring railroads to develop and implement Fatigue Risk Management Programs (FRMPs). As proposed, a railroad would implement its FRMP through an FRMP plan.

The 60-day comment period closes February 22, 2021, and comments may be submitted at www.regulations.gov.

The full text of the proposed rule is available at: https://railroads.dot.gov/regulations-fr/rulemaking/2020-27085

 Summary of Proposed Rules:

The RSIA requires the Secretary of Transportation (Secretary) to issue regulations requiring certain railroads to develop and implement a ‘‘railroad safety risk reduction program.’’ Section 20156(a)(1) mandates that each of the following types of railroads would have to comply with this proposed regulation: (1) Class I railroads; (2) railroad carriers with inadequate safety performance (ISP); and (3) railroad carriers that provide intercity rail passenger or commuter rail passenger transportation. The proposed rules refer to the railroads that would be subject to this proposed rule as ‘‘covered railroads.’’

Sections 20156(d)(2) and (f) of the RSIA mandate that as part of a railroad’s safety risk reduction program, a railroad must develop and implement a fatigue management plan ‘‘designed to reduce the fatigue experienced by safety-related railroad employees and to reduce the likelihood of accidents, incidents, injuries, and fatalities caused by fatigue.’’

Laws and regulations following a simple Hours of service model, may reduce, but cannot eliminate, the conditions that contribute to fatigue. An FRMP, on the other hand, is intended to be a systematic program to address fatigue in a dynamic manner.

This proposed rule would require each covered railroad to establish and periodically update an FRMP plan, which explains the railroad’s method of analysis of fatigue risks and the processes for implementing the FRMP. FRA would review and approve the FRMP plan. FRA proposes that requirements for the filing, approval, and amendment of the FRMP plan be made the same as for other components of RRP or SSP plans so those requirements are not set forth in the proposed rule – the proposed rule text cites to the sections of the SSP and RRP rules that contain those procedures.

Because railroads will have submitted their SSP plans or RRP plans to FRA under part 270, subpart C, or part 271, subpart D before this proposed rule becomes final, railroads would need to amend their SSP plan or RRP plan to include an FRMP plan. Thus, a railroad would follow the procedures in § 270.201(c) or 271.303 to amend its SSP plan or RRP plan.

FRA proposes to amend 49 CFR part 270 (SSP) by adding a new subpart E, and to amend 49 CFR part 271 (RRP) by adding new subpart G. As proposed, each of these new subparts would be titled ‘‘Fatigue Risk Management Programs;’’ substantively identical; and set forth the requirements for railroads to develop and implement FRMPs as part of their SSPs or RRPs.

This proposed rule would also require covered railroads to review their FRMP annually, and if necessary, make FRA-approved updates to their plans. FRA specifically requests comments on whether the annual internal assessment provides an appropriate mechanism and timing for evaluating and updating railroads’ FRMP plans.

FRMP Requirements

As proposed, a railroad’s FRMP must consist of actions taken by the railroad pursuant to formally documented policies, processes, and procedures intended to mitigate fatigue risk. It incorporates specific components that enable the following:
(1) Identifying safety hazards associated with fatigue;
(2) Assessing the risks associated with identified hazards;
•   The fatigue risk analysis must consider, at a minimum, three categories of risk factors:
o General health and medical conditions that can affect the fatigue levels of safety-related railroad employees;
o Scheduling issues that can affect the opportunities of safety-related railroad employees to obtain sufficient quality and quantity of sleep; and
o Characteristics of each job category worked by safety-related railroad employees that can affect the fatigue levels and risk for fatigue of safety related railroad employees.
• FRA requests comment as to whether additional resources are necessary to help railroads comply with the requirements of this proposed section and if so, what type of additional resources would be necessary
(3) Prioritizing risks for mitigation and implementing mitigation strategies for those risks; and
• As a railroad develops and implements mitigation strategies, it would be required to consider, at a minimum, the railroad’s policies, practices, and communication. Paragraphs (c)(1)–(3) describe each of these three areas of consideration in more detail.
(4) Tracking the performance and effectiveness of each mitigation strategy and reviewing and revising an FRMP based on results.

FRMP Plan Requirements

Proposed §§ 270.409 and 271.609 would require a railroad to adopt and implement its FRMP through an FRMP plan that meets certain requirements. Paragraph (a) of these sections would require railroads to develop their FRMP plans in consultation with directly-affected employees and FRA would have to approve a railroad’s FRMP. The existing consultation and approval processes of parts 270 and 271 would apply.

Proposed paragraph (b) would require the FRMP plan to describe specific, fatigue-related goals of the FRMP and clear strategies for attaining those goals.

Proposed paragraph (c) addresses the methods a railroad uses to develop its FRMP plan, requiring the plan to:

• Describe the railroad’s method(s) for conducting the fatigue-risk analysis as part of its FRMP;
• Describe the railroad’s processes for identifying and selecting mitigation strategies, and for monitoring identified hazards while the risk associated with the hazard is being mitigated;
• Describe a railroad’s processes for monitoring and evaluating the overall effectiveness of the FRMP and the mitigation strategies, along with procedures for reviewing and updating the FRMP;
• Describe how the railroad will implement its FRMP
  • A railroad may implement its FRMP in stages, provided the FRMP is fully implemented and operational within 36 months of FRA’s approval of the plan. This implementation plan would cover the entire implementation period and contain a timeline (beginning with the date FRA approves the railroad’s FRMP plan) describing when the railroad will achieve specific and measurable implementation milestones

Proposed paragraph (e) would require that a railroad submit its FRMP plan to FRA by amending its SSP plan or RRP plan

• A railroad should be able to submit the FRMP plan to FRA as an amendment to its SSP plan or RRP plan 60 days before the proposed effective date of the FRMP plan
• If a railroad is initially not required to submit an SSP plan or RRP plan, but is later required to, the railroad must include an FRMP plan as part of its SSP plan or RRP plan submission to FRA, or submit the FRMP plan by August 19, 2021, whichever is later

For further information please contact Michael Shumate at mshumate@fletcher-sippel.com.