Hours of Service Recordkeeping; Automated Recordkeeping Final Rule (Federal Register)

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Public Law 104–13, October 1, 1995,
and 44 U.S.C. 3507.
The total annual reporting burdens
and costs for the respondents are as
follows:
OMB Control Number: 3060–1257.
OMB Approval Date: August 13, 2018.
OMB Expiration Date: August 31,
2021.
Title: New Procedure for Non-Federal
Public Safety Entities to License Federal
Government Interoperability Channels.
Form Number: N/A.
Respondents: Not-for-profit
institutions; State, local, or tribal
government.
Number of Respondents and
Responses: 45,947 respondents; 45,947
responses.
Estimated Time per Response: 0.25
hours.
Frequency of Response: One-time
reporting requirement.
Obligation to Respond: New Section
90.25 adopted in Order DA 18–282,
requires any non-federal public safety
entity seeking to license mobile and
portable units on the Federal
Interoperability Channels to obtain
written concurrence from its Statewide
Interoperability Coordinator (SWIC) or a
state appointed official and include
such written concurrence with its
application for license. A non-federal
public safety entity may communicate
on designated Federal Interoperability
Channels for joint federal/non-federal
operations, provided it first obtains a
license from the Commission
authorizing use of the channels.
Statutory authority for these collections
are contained in 47 U.S.C. 151, 154, 301,
303, and 332 of the Communications
Act of 1934.
Total Annual Burden: 11,487 hours.
Total Annual Cost: No cost.
Privacy Act: No impact(s).
Nature and Extent of Confidentiality:
Applicants who include written
concurrence from their SWIC or state
appointed official with their application
to license mobile and portable units on
the Federal Interoperability Channels
need not include any confidential
information with their application.
Nonetheless, there is a need for
confidentiality with respect to all
applications filed with the Commission
through its Universal Licensing System
(ULS). Although ULS stores all
information pertaining to the individual
license via an FCC Registration Number
(FRN), confidential information is
accessible only by persons or entities
that hold the password for each account,
and the Commission’s licensing staff.
Information on private land mobile
radio licensees is maintained in the
Commission’s system of records, FCC/

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WTB–1, ‘‘Wireless Services Licensing
Records.’’ The licensee records will be
publicly available and routinely used in
accordance with subsection (b) of the
Privacy Act. TIN Numbers and material
which is afforded confidential treatment
pursuant to a request made under 47
CFR 0.459 will not be available for
Public inspection. Any personally
identifiable information (PII) that
individual applicants provide is covered
by a system of records, FCC/WTB–1,
‘‘Wireless Services Licensing Records,’’
and these and all other records may be
disclosed pursuant to the Routine Uses
as stated in this system of records
notice.
Needs and Uses: The purpose of
requiring a non-federal public safety
entity to obtain written consent from its
SWIC or state appointed official before
communicating with federal
government agencies on the Federal
Interoperability Channels is to ensure
that the non-federal public safety entity
operates in accordance with the rules
and procedures governing use of the
federal interoperability channels and
does not cause inadvertent interference
during emergencies. Commission staff
will use the written concurrence from
the SWIC or state appointed official to
determine if an applicant’s proposed
operation on the Federal
Interoperability Channels conforms to
the terms of an agreement signed by the
SWIC or state appointed official with a
federal user with a valid assignment
from the National Telecommunications
and Information Administration (NTIA)
which has jurisdiction over the
channels.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2018–18691 Filed 8–28–18; 8:45 am]
BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 228
[Docket No. FRA–2012–0101]
RIN 2130–AC41

Hours of Service Recordkeeping;
Automated Recordkeeping
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:

This rule is part of FRA’s
broader initiative to reduce the

SUMMARY:

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paperwork burden of its regulations
while still supporting compliance with
the Federal hours of service laws and
regulations. Current regulations require
employees covered by those laws or
regulations (covered service employees)
to create and retain hours of service
records by hand (a paper system) or
‘‘certify’’ the record using a compliant
computerized system (an electronic
system) with program logic. Cognizant
of the burden placed on small
operations, FRA provides a simplified
method of computerized recordkeeping
(an automated system)—in which
employees apply their electronic
signatures to automated records stored
in a railroad computer system without
the complexity and functionality of an
electronic system—for eligible smaller
railroads (and contractors and
subcontractors providing covered
service employees to such railroads).
This rule does not require the use of
automated recordkeeping, but, when
implemented by the small operations for
which it is tailored, it will decrease the
burden hours spent on hours of service
recordkeeping.
DATES: This final rule is effective August
29, 2018 in accordance with 5 U.S.C.
553(d)(1).
ADDRESSES: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov and follow the
online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT:
Patrick J. Hogan, Transportation
Specialist, Office of Railroad Safety,
Federal Railroad Administration, 1200
New Jersey Avenue SE, W33–448,
Washington, DC 20590; telephone: 202–
493–0277; email: Patrick.Hogan@
dot.gov; Kyle Fields, Trial Attorney,
Office of Chief Counsel, Federal
Railroad Administration, 1200 New
Jersey Avenue SE., W31–232,
Washington, DC 20590; telephone 202–
493–6168; email: Kyle.Fields@dot.gov;
or Emily T. Prince, Trial Attorney,
Office of Chief Counsel, Federal
Railroad Administration, 1200 New
Jersey Avenue SE, W31–216,
Washington, DC 20590; telephone 202–
493–6146; email: Emily.Prince@dot.gov.
SUPPLEMENTARY INFORMATION:
Commonly Used Abbreviations
CFR Code of Federal Regulations
FRA Federal Railroad Administration
HS Hours of service

Table of Contents for Supplementary
Information
I. Executive Summary
II. Background and History

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III. Scope of the Final Rule
IV. Discussion of Comments
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Orders 12866, 13563, and
13771 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Determination
C. Federalism
D. International Trade Impact Assessment
E. Paperwork Reduction Act
F. Environmental Assessment
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act Statement

I. Executive Summary
In 2009, FRA finalized amendments
to the HS recordkeeping regulations at
49 CFR part 228 (part 228) to authorize
electronic recordkeeping and reporting
as a means of compliance with the
Federal HS laws. In addition to
certification requirements, see 49 CFR
228.9(b), these amendments added new
subpart D to part 228, which established
comprehensive requirements for
electronic recordkeeping systems. Some
smaller railroads informed FRA that the
requirements of part 228, subpart D
make electronic recordkeeping systems
infeasible for their operations, which are
less complex and variable than larger
railroads’ operations. Some small
railroads already use an automated
system for covered service employees to
enter required HS data, which the
employees then print and sign as a
paper HS record. This rule allows a
railroad with less than 400,000
employee-hours annually (an ‘‘eligible
smaller railroad’’), and contractors and
subcontractors that provide covered
service employees to that railroad, to
have employees electronically sign the
automated records of their hours of duty
and to store the records in the railroad’s
computer system. Thus, this rule
eliminates the requirement to print and
sign the record.
This rule amends part 228, subpart D
by defining an ‘‘automated
recordkeeping system’’ for eligible
smaller railroads under new
§ 228.201(b) and outlining the
requirements of such a system under
new § 228.206, while retaining the
definition of an ‘‘electronic
recordkeeping system’’ as § 228.201(a)
and the existing requirements under
§§ 228.203–228.205. The rule also
provides general requirements for
automated records, such as electronic
signatures, retention periods, and FRA
access, under new § 228.9(c), and it
modifies training requirements under
§ 228.207.
This rule allows an eligible smaller
railroad to adopt an automated
recordkeeping system without

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conforming to all the requirements for
an electronic recordkeeping system. For
example, new § 228.206 does not
require an automated recordkeeping
system to include some of the program
components and other features that are
not appropriate or necessary for the
operations of eligible smaller railroads,
although those features are important
for an electronic recordkeeping system
in light of the more complex operations
of larger railroads. New § 228.206
includes requirements for FRA and
participating State inspector access to
and ability to search an automated
recordkeeping system to effectively
monitor compliance with the HS laws
and regulations, similar to the search
capabilities and access requirements for
electronic recordkeeping systems.
This rule significantly reduces costs
and paperwork burdens for eligible
smaller railroads because automated
records require less time to complete
than manual records and the records
may be stored digitally, relieving
eligible smaller railroads of the burden
of storing and maintaining paper
records. The costs of implementing an
automated recordkeeping system are
projected as substantially less than an
electronic recordkeeping system and are
relatively small compared to the
benefits gained by eliminating a paper
recordkeeping system. Adopting an
automated recordkeeping system is
purely voluntary, but FRA expects many
eligible smaller railroads currently using
manual records to begin creating and
maintaining HS records using an
automated system, with a projected
reduction of over 194,000 burden hours.
FRA’s economic analysis projects an
estimated $87.6 million in net savings
over a 10-year period as a result of this
rule, and the present value of this
savings is $55.1 million (discounted at
7 percent). The final rule is expected to
have no negative impact on safety, as it
simply provides a voluntary option for
eligible smaller railroads and their
contractors and subcontractors to use an
alternative means of compliance with
recordkeeping obligations.
II. Background and History
Federal laws governing railroad
employees’ hours of service date back to
1907 1 and are presently codified at 49
1 See the Hours of Service Act (Pub. L. 59–274,
34 Stat. 1415 (1907)). Effective July 5, 1994, Public
Law 103–272, 108 Stat. 745 (1994), repealed the
Hours of Service Act as amended, then codified at
45 U.S.C. 61–64b, and revised and reenacted its
provisions, without substantive change, as positive
law at 49 U.S.C. 21101–21108, 21303, and 21304.
The Hours of Service Act was administered by the
Interstate Commerce Commission until these duties
were transferred to FRA in 1966.

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U.S.C. 21101–21109,2 21303, and
21304.3 FRA, under 49 U.S.C. 103(g), 49
CFR 1.89, and internal delegations, has
long administered the statutory HS
requirements and the agency’s HS
recordkeeping and reporting regulations
(49 CFR part 228, subpart B), which
promote compliance with the HS laws.
Currently, the HS statutory
requirements cover three groups of
employees: train employees, signal
employees, and dispatching service
employees, as those terms are defined at
Sec. 21101. The HS recordkeeping and
reporting regulations at 49 CFR 228.5
include the statutory definitions of these
terms and FRA interpretations discuss
them. See FRA’s ‘‘Requirements of the
Hours of Service Act; Statement of
Agency Policy and Interpretation’’ at 49
CFR part 228, appendix A, most of
which was issued in the 1970s, and
subsequent FRA interpretations of the
HS laws published in the Federal
Register.
Congress has amended the HS
statutory requirements several times
over the years, most recently in the Rail
Safety Improvement Act of 2008
(RSIA).4 The RSIA substantially
amended the requirements of Secs.
21103 and 21104, applicable to a ‘‘train
employee’’ 5 and a ‘‘signal employee,’’ 6
respectively, and added new provisions
at Secs. 21102(c) and 21109 that
together made a train employee
providing rail passenger transportation
subject to HS regulations, not Sec.
21103, if the Secretary timely issued
regulations. Subsequently, FRA, as the
Secretary’s delegate, timely issued those
regulations, codified at 49 CFR part 228,
subpart F (Passenger Train Employee
HS Regulations), which became
effective October 15, 2011.
Additionally, section 108(f)(1) of the
RSIA required the Secretary to prescribe
a regulation revising the requirements
for recordkeeping and reporting for
hours of service of railroad employees,
specifically to authorize electronic
record keeping and reporting of excess
2 These sections may also be cited as 49 U.S.C.
Chapter 211. Hereinafter, references to a ‘‘Sec.’’ are
to a section of title 49 of the U.S. Code unless
otherwise specified.
3 For a table comparing and contrasting the
current Federal HS requirements with respect to
freight train employees, passenger train employees,
signal employees, and dispatching service
employees, please see Appendix A to the Second
Interim Interpretations. 78 FR 58830, 58850–58854,
Sept. 24, 2013.
4 Public Law 110–432, Div. A, 122 Stat. 4848.
5 See Sec. 21101(5).
6 See Sec. 21101(4). The RSIA also amended the
definition of ‘‘signal employee’’ effective October
16, 2008. Before the RSIA, the term meant ‘‘an
individual employed by a railroad carrier who is
engaged in installing, repairing, or maintaining
signal systems.’’ Emphasis added.

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service and to require training of
affected employees and supervisors,
including training of employees in the
entry of hours of service data. FRA, as
the Secretary’s delegate, also issued
those regulations, codified at 49 CFR
part 228, including subpart D
(Electronic Recordkeeping), which
became effective July 16, 2009. 74 FR
25330, May 27, 2009 (2009
Recordkeeping Amendments).7
In general, the 2009 Recordkeeping
Amendments required that either
employees recording their own time, or
the reporting crewmember of a train
crew or signal gang who was recording
time, certify their electronic HS records,
instead of signing them by hand, and
that the recordkeeping system
electronically stamp the records with
the name of the certifying employee and
the date and time of certification. See 49
CFR 228.9(b). These amendments also
established comprehensive
requirements for electronic
recordkeeping systems. A brief
summary of the most significant
requirements follows.
• First, electronic recordkeeping
systems must generate records that
provide sufficient data fields for an
employee to report a wide variety and
number of activities that could arise
during a duty tour. See 49 CFR 228.201.
• Second, the systems must have
security features to control access to HS
records and to identify any individual
who entered information on a record.
See 49 CFR 228.203(a)(1)(i), (a)(2)–(a)(7),
and (b).
• Third, systems must include
program logic that identifies how
periods of time spent in any activity that
is entered on a record are treated under
the HS laws (and the substantive HS
regulations for passenger train
employees).
• Fourth, program logic must allow
the systems to calculate total time on
7 FRA issued its first HS recordkeeping
regulation, codified at 49 CFR part 228, subparts A
and B, in 1972. See 37 FR 12234, Jun. 21, 1972.
Because the regulation did not contemplate
electronic recordkeeping, it required HS records be
signed manually by the employee whose time was
being recorded. Therefore, prior to the effective date
of the 2009 Recordkeeping Amendments, railroads
that wished to create and maintain their required
HS records electronically rather than manually
needed FRA’s waiver of the requirement for a
handwritten signature. See FRA procedural
regulations at 49 CFR part 211. At the time the 2009
recordkeeping amendments went into effect, several
Class I railroads were creating and maintaining
their required HS records using an electronic
recordkeeping system approved by FRA pursuant to
a waiver. See the preamble of the 2009
Recordkeeping Amendments for further discussion
of the history of electronic recordkeeping and the
development of waiver-approved electronic
recordkeeping systems. See 74 FR 25330, 25330–
25334.

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duty from the data the employee
entered, flag employee-input errors so
the employee can correct them before
certifying the record, and require the
employee to enter an explanation when
the data entered shows a violation of the
HS laws or regulations. See 49 CFR
228.203(c).
• Fifth, electronic recordkeeping
systems must provide a method known
as a ‘‘quick tie-up’’ for employees to
enter limited HS information when they
have met or exceeded the maximum
hours allowed for the duty tour, and
railroads must have procedures for
employees to do a quick tie-up by
telephone or facsimile (fax) if computer
access is not available. See 49 CFR 228.5
and 228.203(a)(1)(ii).
• Finally, an electronic recordkeeping
system must provide search capability
so records may be searched by date or
date range and by employee name or
identification number, train or job
assignment, origin or release location,
territory, and by records showing excess
service. The results of any such search
must yield all records matching
specified criteria. See 49 CFR
228.203(d).
III. Scope of the Final Rule
The final rule applies only to eligible
smaller railroads 8, as well as
contractors and subcontractors to such
eligible smaller railroads. FRA is aware
that some railroads have been using an
automated system in which covered
service employees access a blank HS
record on a railroad computer, enter
required data on the form, and then
print and sign the record. The printed
record is still considered a manual or
paper record, with the associated
burden of storage placed on the railroad.
FRA expects many eligible smaller
railroads will choose to comply with
this rule using existing equipment and
software already in use. For example,
many eligible smaller railroads will find
their existing equipment and software
can generate forms that will allow
employees to enter the information
relevant to their duty tours as required
by § 228.11 and save those records in a
directory structure that would allow
either the railroad or FRA to retrieve
them using the search criteria provided
in this rule.
8 Railroads that: (1) Reported less than 400,000
employee hours to FRA during the preceding three
consecutive calendar years under 49 CFR 225.21(d)
on Form FRA 6180.55, Annual Railroad Reports of
Manhours by State; or (2) operating less than three
consecutive calendar years that reported less than
400,000 employee hours to FRA during the current
calendar year under 49 CFR 225.21(d) on Form FRA
6180.55, Annual Railroad Reports of Manhours by
State.

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Contractors and subcontractors to
eligible smaller railroads are also
eligible to use automated recordkeeping
systems for their employees working on
eligible smaller railroads, but not for
their employees working on ineligible
railroads. For instance, a contractor or
subcontractor that performs covered
service for both eligible smaller
railroads and Class I railroads is not
eligible to use an automated
recordkeeping system for the hours of
service records of its employees working
for Class I railroads. If a contractor or
subcontractor small enough to be
eligible to use an automated
recordkeeping system under this rule
performs service for eligible and
ineligible railroads and seeks to use an
automated recordkeeping system, such a
contractor or subcontractor may pursue
relief through the waiver process, under
49 CFR 211.41.
It is appropriate to allow the eligible
smaller railroads to use an automated
recordkeeping system that lacks the
programming and analysis capabilities
required of an electronic recordkeeping
system because of the less complex and
less varied nature of the operations of
eligible smaller railroads. For example,
this rule does not require an automated
system to calculate and fill in total time
on duty based on the information an
employee enters because that would
require costly programming to enable
the system to identify how various
periods of time are treated. Instead, an
employee will enter that information
just as if the automated record were a
paper record. Similarly, the rule does
not require an automated system to
include costly programming that would
prompt the employee to enter an
explanation of a duty tour over 12 hours
or that would flag possible input errors
or missing data (for example, showing
an on-duty location that differs from the
released location of the previous duty
tour).
Approximately 746 railroads, 18
commuter railroads, and their
contractors and subcontractors, are
eligible to use automated recordkeeping
systems pursuant to this rule. FRA
declines to extend this rule to railroads
with 400,000 or more employee-hours
annually because the number of
employees, volume of HS records, and
complexity of operations associated
with larger railroads requires a more
sophisticated electronic recordkeeping
system that complies with part 228,
subpart D if those operations want to
use an alternative to manual records.9 A
9 FRA also declines to adopt a per se rule
allowing Class III railroads to use automated
recordkeeping because the definition of ‘‘Class III

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larger and more complex operation
benefits from an electronic
recordkeeping system’s program logic
that helps to ensure accurate
recordkeeping, and search capabilities
that help to better identify relevant
records for the railroad’s own review
and in response to FRA requests.
Among commuter railroads, for
example, Metro-North Commuter
Railroad is currently using an electronic
recordkeeping system, and New Jersey
Transit Railroad is developing an
electronic recordkeeping system. FRA
understands that these railroads are
willing to share some information with
other commuter railroads that are
ineligible for automated recordkeeping
systems to help them develop electronic
recordkeeping systems compliant with
part 228, subpart D. By developing these
partnerships, larger commuter railroads
will have a cost-effective opportunity to
eliminate paper records and adopt
electronic recordkeeping systems even if
they do not qualify for automated
recordkeeping under this rule. For these
reasons, FRA adopts this rule applicable
only to eligible smaller railroads.
IV. Discussion of Comments
FRA received two public comments
on the automated recordkeeping NPRM.
The American Short Line and Regional
Railroad Association filed a short
comment October 23, 2015, indicating
the NPRM accurately assessed the
ability of small railroads to capture HS
data and expressing eagerness to see a
final rule in effect. FRA also received an
anonymous comment October 22, 2015,
indicating only that the NPRM was,
‘‘Good.’’ FRA received no public
comments conveying a need to change
the scope or substance of the proposed
rule.
V. Section-by-Section Analysis

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Subpart A—General
Section 228.5 Definitions
FRA adds definitions of ‘‘automated
recordkeeping system’’; ‘‘electronic
recordkeeping system’’; ‘‘electronic
signature’’; and ‘‘eligible smaller
railroad.’’
The definitions of ‘‘automated
recordkeeping system’’ and ‘‘electronic
recordkeeping system’’ distinguish the
automated systems subject to this
rulemaking, which are required to
conform to the requirements of new
railroad’’ includes all terminal and switching
operations, regardless of operating revenue, some of
which have extensive operations more
appropriately served by an electronic recordkeeping
system. See 49 CFR 1201.1–1(d). Accordingly, FRA
chose to define the rule’s applicability based on
employee hours.

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§§ 228.201(b) and 228.206, from the
electronic recordkeeping systems that
must meet the pre-existing requirements
of §§ 228.201(a) and 228.203–228.205.
The definition of ‘‘electronic
signature’’ is consistent with the
Electronic Signatures in Global and
National Commerce Act.10 It allows
railroads the choice of using two
different types of electronic signatures
for their employees to sign their HS
records: Either (1) a unique digital
signature, created based on the
employee’s identification number and
password, or other means used to
uniquely identify the employee in the
automated recordkeeping system; or (2)
a unique digitized version of the
employee’s handwritten signature that
would be applied to the HS record.11
The definition also provides the
electronic signature must be created as
provided in § 228.19(g) (existing
regulatory requirements for creating an
electronic signature for railroads’ use on
their reports of excess service) or
§ 228.206(a) (new requirements for
creating electronic signatures for use on
employees’ HS records in an automated
recordkeeping system).
This rule defines an ‘‘eligible smaller
railroad’’, in general, as a railroad with
less than 400,000 employee hours
annually, which is eligible to use an
automated recordkeeping system under
this rule. More specifically, an eligible
smaller railroad is defined as a railroad
that has reported to FRA it had less than
400,000 employee hours during the
preceding three consecutive calendar
years on Form FRA 6180.55—Annual
Railroad Reports of Manhours by State,
as required by 49 CFR 225.21(d). As an
exception to the general rule, railroads
that have not been operating for three
prior consecutive calendar years and
expect to have less than 400,000
employee hours annually during the
current year may use an automated
recordkeeping system. This final rule
combines the substantive content of the
proposed definitions of ‘‘eligible smaller
railroad’’ and ‘‘railroad that has less
than 400,000 employee hours annually’’
into the final definition of ‘‘eligible
smaller railroad.’’
10 Public Law 106–229, 114 Stat. 472 (2000); see
15 U.S.C. 7006.
11 If a railroad creates an electronic signature that
is a unique digital signature for each of its
employees, the employee’s HS record will be signed
with the employee’s printed name or other
identifying information, when the employee signs
the record using his or her electronic signature. If
the railroad instead creates a digitized version of
the employee’s handwritten signature, the record
will be signed with the employee’s handwritten
signature when the employee signs the record using
his or her electronic signature.

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Section 228.9

43991

Records; General

New § 228.9(c) establishes
requirements for automated records that
parallel the requirements of paragraph
(a) for manual records and paragraph (b)
for electronic records. Paragraph (c)
requires that automated records be
electronically signed and stamped with
the certifying employee’s electronic
signature that meets the requirements of
§ 228.206(a) and the date and time that
the employee electronically signed the
record. As in paragraphs (a) and (b),
paragraph (c) contains requirements for
retaining and accessing the records.
Unlike paragraph (b) applicable to
electronic records, paragraph (c) does
not require using an employee
identification (ID) and password to
access automated records.12 While some
eligible smaller railroads might choose
to provide an ID and password for the
purpose of accessing an automated
system, FRA concludes mandating an ID
and password would be more complex
than necessary for smaller operations,
which may choose, for example, to have
a railroad official directly provide
access.13 Finally, paragraph (c) requires
automated records be capable of being
reproduced on printers available at the
location where records are accessed,
meaning railroads must have printers
available at any location where they
provide access to records. This
requirement also applies to electronic
recordkeeping systems under § 228.9(b).
Section 228.11

Hours of Duty Records

Section 228.11(a) requires each
railroad, or a contractor or a
subcontractor that provides covered
service employees to a railroad, to ‘‘keep
a record, either manually or
electronically, concerning the hours of
duty of each employee.’’ Because HS
records created and maintained using an
automated recordkeeping system will
also be required to comply with the
requirements of § 228.11 (see section-bysection analysis of § 228.201(b) below),
this rule removes the words ‘‘either
manually or electronically’’ from the
requirement.
12 Employee ID and passwords are necessary for
employees to certify their hours of service records,
but are not required as a mechanism for providing
access to the automated recordkeeping system.
13 It is important to note access must be available
as soon as possible and no later than 24 hours after
a request, as required by § 228.206(e)(2), as
discussed further below. In addition, railroads and
managers risk civil and criminal liability if they
control access to an automated recordkeeping
system in a manner that prevents employees from
accurately reporting their hours of service.

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Section 228.201 Electronic
Recordkeeping System and Automated
Recordkeeping System; General
FRA retains the pre-existing
requirements of this section for
electronic recordkeeping systems as
paragraph (a) and adopts new paragraph
(b) with similar but simplified
requirements for automated
recordkeeping systems, in part by crossreferencing those requirements of
paragraph (a) also applicable to
automated recordkeeping systems. The
rule makes minor non-substantive
changes to paragraphs (a)(3), (a)(4), and
(a)(5) to correct typographical errors,
specifically by deleting the ‘‘and’’ after
paragraph (a)(3), replacing the periods at
the end of paragraphs (a)(4) and (a)(5)
with semicolons, and adding ‘‘and’’
after the semicolon at the end of
paragraph (a)(5). New § 228.201(b)(1)
requires an automated recordkeeping
system to comply with new § 228.206.
New § 228.201(b)(2) requires eligible
smaller railroads using automated
recordkeeping systems to comply with
the requirements of paragraphs (a)(2)
and (a)(4)–(a)(6), requirements also
applicable to electronic records and
recordkeeping systems. The main
difference between the requirements of
new § 228.201(b)(2) for automated
records and recordkeeping systems and
the corresponding existing requirements
for electronic records and recordkeeping
systems is that automated systems are
not required to have monitoring
indicators in the system to help the
railroad monitor the accuracy of the
records. Eligible smaller railroads,
however, remain responsible for the
accuracy of their required HS records,
regardless of whether the record is
manual, automated, or electronic.
Finally, under new § 228.201(c), if a
railroad, or a contractor or subcontractor
to a railroad with an automated
recordkeeping system, ceases to qualify
as an ‘‘eligible smaller railroad’’ based
on the new definition in § 228.5, that
railroad, or contractor or subcontractor
to a railroad, may not use an automated
recordkeeping system unless FRA grants
a waiver under 49 CFR 211.41. As
described above, FRA believes larger
railroads are better served by the use of
an electronic recordkeeping system. In
most cases, a railroad with such growth
for three consecutive calendar years will
have had sufficient time and funding to
transition to an electronic recordkeeping
system.

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Section 228.206 Requirements for
Automated Records and Recordkeeping
Systems on Eligible Smaller Railroads
New § 228.206 establishes the
requirements for an automated
recordkeeping system, some of which
are similar to the requirements for
electronic recordkeeping systems found
in §§ 228.203 and 228.205. As discussed
in Section III above, however, § 228.206
is tailored to the nature and lesser
complexity of the operations of eligible
smaller railroads. Therefore, the rule
does not require an automated system to
include some of the program
components and other features that
apply to electronic recordkeeping
systems. These elements are not
appropriate or necessary for the
operations of eligible smaller railroads;
however, the rule requires other
elements for the automated systems not
used in an electronic recordkeeping
system.
Paragraph (a) mandates an employee
creating an automated record must sign
the record and establishes the
requirements for an electronic signature.
These requirements largely track
paragraph (g) of § 228.19, which
explains the requirements for railroads
to establish and use electronic
signatures for filing reports of excess
service. These requirements are unique
to automated recordkeeping systems
and do not apply to electronic
recordkeeping systems.
Paragraph (b) provides standards for
system security of automated
recordkeeping systems. Eligible smaller
railroads must control access to the
automated recordkeeping system using a
user name and password or comparable
method. Paragraph (b)(1) restricts data
entry to the employee, train crew, or
signal gang whose time is being
reported, although a railroad may prepopulate some of the known factual data
on its employees’ HS records. An
employee’s name or identification
number, or the on-duty time for an
employee who works a regular
schedule, are examples of the kind of
data that the automated system can prepopulate; however, the regulation
requires that the employee may make
changes to any pre-populated data at all
times without requiring permission or
authorization from any third party, such
as, but not limited to, a railroad
manager.
Paragraph (b)(2) requires no two
individuals have the same electronic
signature, and paragraph (b)(3) requires
the system not permit the deletion or
alteration of an electronically-signed
automated record. Paragraphs (b)(4) and
(b)(5) together require that any

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amendment to a record must (1) be
stored digitally apart from the record it
amends or attached as information
without altering the record and (2)
identify the person making the
amendment. Finally, paragraphs (b)(6)
and (b)(7) require the automated
recordkeeping systems maintain records
as submitted without corruption or loss
of data and ensure supervisors and crew
management officials can access, but not
delete or alter, an automated record after
an employee electronically signs the
record. The proposed rule did not
establish a specific interval for railroads
to back-up the data contained in their
automated recordkeeping system. FRA
requested comments on the appropriate
interval and method of data back-up,
but did not receive any comments on
this issue. To guarantee sufficient data
redundancy to prevent substantial loss
of HS records, paragraph (b)(6) now
requires back-up of automated
recordkeeping systems at least quarterly.
Paragraph (c) requires the automated
recordkeeping system to identify each
individual who enters data on a record
and which data items each individual
entered if more than one person entered
data on a given record.
Paragraph (d) establishes the required
search capabilities for an automated
recordkeeping system. Though the rule
provides specific data fields and other
criteria the system must be able to use
to search for and retrieve responsive
records, the requirements are notably
less complex than those for an
electronic recordkeeping system.
Paragraph (e) establishes the
requirements for access to automated
recordkeeping systems. Eligible smaller
railroads must grant FRA inspectors,
and participating State inspectors,
access to the system using railroad
computer terminals as soon as possible,
and no later than 24 hours after a
request for access. The access must
make visible each data field an
employee completed, and data fields
must be searchable as described in
paragraph (d).
Section 228.207 Training
This rule revises the training
requirements of part 228. Specifically,
paragraph (b) of this section, which sets
forth the components of initial training,
will now require training on how to
enter HS data into an automated system.
The paragraph currently requires
training of employees on the electronic
recordkeeping system or the appropriate
paper records used by the railroad,
contractor, or subcontractor for whom
the employees perform covered service.
Paragraph (b) will now include a similar
training requirement for eligible smaller

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railroads that develop an automated
recordkeeping system in compliance
with this rule.
Similarly, this rule revises paragraph
(c) of this section to specifically require
eligible smaller railroads with
automated systems to provide refresher
training emphasizing any changes in HS
substantive requirements, HS
recordkeeping requirements, or a
railroad’s HS recordkeeping system
since the employee was last provided
training. FRA expects any railroad
implementing an automated
recordkeeping system to replace
previously-used paper records would
need to provide training on the use of
that system to its employees, even if
those employees had previously
received training for paper records as
required by this section.
VI. Regulatory Impact and Notices
A. Executive Orders 12866, 13563, and
13771 and DOT Regulatory Policies and
Procedures
This final rule has been evaluated in
accordance with existing policies and
procedures under Executive Order
12866, Executive Order 13563,
Executive Order 13771, and DOT
policies and procedures. 44 FR 11034,
Feb. 26, 1979; 76 FR 3821, Jan. 21, 2011;
82 FR 9339, Jan. 30, 2017. OMB
designated this rule nonsignificant. FRA
prepared and placed in the docket a
Regulatory Evaluation addressing the
economic impacts of this rule.
FRA will now allow eligible smaller
railroads, and their contractors and
subcontractors, to use automated
recordkeeping systems, a simpler
alternative to electronic recordkeeping
systems that are infeasible for them,
because their operations are less
complex and variable than the
operations of larger railroads. Both
electronic and automated records
require substantially less time to
complete and cost less to store than
manual records. Under this rule, eligible

smaller railroads can take advantage of
paper-saving technology to create and
maintain hours of duty records as
required by 49 CFR part 228, subpart B
without complying with the morestringent requirements for electronic
recordkeeping systems under 49 CFR
part 228, subpart D that may not be
relevant to their operations. As part of
its regulatory evaluation, FRA explained
the benefits/cost savings of automated
records and recordkeeping systems
under this rule and provided a
monetized value. The rule substantially
reduces costs compared to current paper
recordkeeping systems by allowing
eligible smaller railroads to use
automated recordkeeping systems. FRA
believes the majority of eligible smaller
railroads will take advantage of the
opportunity for cost savings and incur a
small burden to realize projected
significant net cost savings. The final
rule also follows the direction of
Executive Order 13563, which
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
Finally, this final rule is considered
an E.O. 13771 deregulatory action.
Details on the estimated cost savings of
this proposed rule can be found in the
rule’s economic analysis.
FRA estimates this regulation will
result in a total estimated reduction of
just over 194,000 burden hours
annually. Based on railroads’ annual
6180.55 reports to FRA for 2016, this
rule will apply to a total of
approximately 764 railroads with less
than 400,000 employee-hours annually.
These 764 railroads include the eligible
employees of 746 probable small freight
railroads and 18 small commuter
railroads, as well as their contractors
and subcontractors. FRA estimates 615
of these entities will adopt an
automated recordkeeping system: 80
percent of the 746 small railroads and
all 18 of the small commuter railroads.

43993

The economic analysis 14 provides a
quantitative evaluation of the costs, cost
savings, and benefits of the rule. The
cost savings equals the reduced time an
employee spends entering hours of duty
in an automated system compared to the
time they currently spend to manually
produce a paper record of hours on
duty. FRA calculated a reduction of 8
minutes per record.
FRA estimated the net cost savings
expected from this final rule. In
particular, over a 10-year period, $87.6
million in net savings could accrue
through the adoption of automated
recordkeeping systems. The present
value of this savings is $55.1 million
(discounted at 7 percent). FRA
concludes the eligible small railroads
would benefit significantly from
adoption of the final rule.
Railroads are already producing HS
records manually on paper records to
comply with 49 CFR 228.11, and
adopting an automated recordkeeping
system is voluntary. FRA expects a
relatively small implementation
investment cost for railroads electing to
use the automated system to realize the
significant benefits (cost burden
reduction). Costs are primarily labor
driven along with the potential
purchase of hardware 15 and software.
16FRA estimates that if each of these
railroads were to expend $5,590
discounted at 7 percent over a 10-year
period to set up and operate an
automated recordkeeping system for HS
records, the railroads would reduce
their paperwork burden by $95,174
discounted at 7 percent over that same
period.
Therefore, this final rule would have
a positive effect on these railroads,
saving each railroad approximately a net
$89,584 in costs at discounted 7 percent
over the 10-year analysis. The table
below presents the estimated net cost
savings associated with the final rule,
over the 10-year analysis.

TABLE 1—10-YEAR ESTIMATED NET COST SAVINGS OF FINAL RULE
Costs to prepare and operate automated record keeping ............................................................................................................
Cost Savings: Reduced Hours of recordkeeping ..........................................................................................................................

$3,438,058
58,532,167

Net Cost Savings ....................................................................................................................................................................

55,094,109

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Dollars are discounted at a present value rate of 7%.

B. Regulatory Flexibility Determination
Both the Regulatory Flexibility Act
(RFA), Public Law 96–354, as amended,
14 The Regulatory Evaluation for Docket No.
FRA–2012–101, Notice No. 2, is placed in the
regulatory docket for this final rule.

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and codified as amended at 5 U.S.C.
601–612, and Executive Order 13272—
Proper Consideration of Small Entities

in Agency Rulemaking, 67 FR 53461,
Aug. 16, 2002, require agency review of
proposed and final rules to assess their

15 The equipment needed for an automated
recordkeeping system includes, a PC and other
computer accessories such as printers.

16 Examples of the types of software that might be
purchased are simple programmable accounting
type spreadsheets, or electronic signature and
encryption software.

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impact on ‘‘small entities’’ for purposes
of the RFA. An agency must prepare a
regulatory flexibility analysis unless it
determines and certifies a final rule is
not expected to have a significant
impact on a substantial number of small
entities. Pursuant to the RFA, 5 U.S.C.
605(b), the Administrator of FRA
certifies this final rule will not have a
significant economic impact on a
substantial number of small entities.
Although this final rule could affect
many small railroads, they may
voluntarily adopt the requirements.
Moreover, the effect on those railroads
that do voluntarily adopt the
requirements is primarily beneficial and
not significant because it will reduce
their labor burden for hours of service
recordkeeping and reporting.
The term ‘‘small entity’’ is defined in
5 U.S.C. 601 (Section 601). Section
601(6) defines ‘‘small entity’’ as having
the same meaning as ‘‘the terms ‘small
business’, ‘small organization’ and
‘small governmental jurisdiction’
defined in paragraphs (3), (4), and (5) of
this section.’’ In turn, Section 601(3)
defines a ‘‘small business’’ as generally
having the same meaning as ‘‘small
business concern’’ under Section 3 of
the Small Business Act, and includes
any a small business concern that is
independently owned and operated, and
is not dominant in its field of operation.
Next, Sec. 601(4) defines ‘‘small
organization’’ as generally meaning any
not-for-profit enterprises that is
independently owned and operated, and
not dominant in its field of operations.
Additionally, Sec. 601(5) defines ‘‘small
governmental jurisdiction’’ in general to
include governments of cities, counties,
towns, townships, villages, school
districts, or special districts with
populations less than 50,000.
The U.S. Small Business
Administration (SBA) stipulates ‘‘size
standards’’ for small entities. It provides
that, in order to qualify for ‘‘small
entity’’ status, a for-profit railroad
business firm may have a maximum of
1,500 employees for ‘‘Line-Haul
Operating’’ railroads and 500 employees
for ‘‘Short-Line Operating’’ railroads.
See ‘‘Size Eligibility Provisions and
Standards,’’ 13 CFR part 121, subpart A.
Under exceptions in Section 601,
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA, and in
conjunction with public comment.
Under that authority, FRA published a
‘‘Final Policy Statement Concerning
Small Entities Subject to the Railroad
Safety Laws’’ (Policy) which formally
establishes that small entities include
among others, the following: (1)
Railroads that Surface Transportation

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Board (STB) regulations classify as Class
III and (2) commuter railroads ‘‘that
serve populations of 50,000 or
less.’’ 17 See 68 FR 24891, May 9, 2003,
codified at appendix C to 49 CFR part
209. Currently, railroads eligible for
small entity status under the Policy also
must have $20 million or less in annual
operating revenue, adjusted annually for
inflation. The $20 million limit
(adjusted annually for inflation) is based
on the STB’s threshold for a Class III
railroad, which is adjusted by applying
the railroad revenue deflator
adjustment. For further information on
the calculation of the specific dollar
limit, see 49 CFR part 1201. FRA uses
this definition of ‘‘small entity’’ for this
final rule.
FRA amends its hours of service
recordkeeping regulations to provide
simplified recordkeeping requirements
by allowing eligible smaller railroads,
and their contractors and
subcontractors, to utilize an automated
system to create and maintain hours of
duty records as required by 49 CFR
228.11. As stated above, FRA reports
indicate there are 742 Class III railroads
that are eligible to use the simplified
automated recordkeeping system this
final rule provides. However, if they are
affected, it is voluntary because this
final rule does not require any railroad
to develop and use an automated
recordkeeping system. As stated above,
there are also 18 commuter railroads,
each of which is run by a State, County,
or Municipal Agency, eligible under this
final rule to develop and use an
automated recordkeeping system, but all
serve populations of 50,000 or more and
are not designated as small businesses.18
FRA estimates 80 percent of small
railroads and all small commuter
railroads to convert to automated
recordkeeping. For the purposes of this
analysis, the 615 railroads FRA
17 ‘‘In the Interim Policy Statement [62 FR 43024,
Aug. 11, 1997], FRA defined ‘small entity,’ for the
purpose of communication and enforcement
policies, the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., and the Equal Access for Justice Act 5 U.S.C.
501 et seq., to include only railroads which are
classified as Class III. FRA further clarified the
definition to include, in addition to Class III
railroads, hazardous materials shippers that meet
the income level established for Class III railroads
(those with annual operating revenues of $20
million per year or less, as set forth in 49 CFR
1201.1–1); railroad contractors that meet the income
level established for Class III railroads; and those
commuter railroads or small governmental
jurisdictions that serve populations of 50,000 or
less.’’ 68 FR 24892 (May 9, 2003). ‘‘The Final Policy
Statement issued today is substantially the same as
the Interim Policy Statement.’’ 68 FR 24894.
18 Under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), ‘‘small governmental jurisdictions’’ are
governments of cities, counties, towns, townships,
villages, school districts, or special districts with a
population of less than 50,000.

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estimates are affected by this final rule
are assumed to be small railroads.
However, as discussed above, the
economic impact on these small
railroads is not significant. This final
rule does not affect any other small
entities other than these small railroads.
As stated above in Section VI.A.,
although FRA estimates each of these
railroads will expend $5,590, this final
rule will have a positive net economic
effect on these railroads, saving each
railroad approximately $89,584 in costs
at discounted 7 percent over the 10-year
period analyzed. Since this amount is
relatively small and beneficial, FRA
concludes this final rule does not have
a significant impact on these railroads.
To determine the significance of the
economic impact for this RFA, during
the NPRM process, FRA invited
comments from all interested parties
concerning the potential economic
impact of this rulemaking on small
entities. However, FRA did not receive
any comments related to small entities.
FRA expects the final rule will reduce
the paperwork burden for smaller
railroads. Therefore, this RFA concludes
this final rule will not cause an
economic impact on any small entities.
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601(b), the FRA
Administrator hereby certifies that this
rule will not have a significant
economic impact on a substantial
number of small entities. FRA continues
to invite comments from members of the
public who foresee a significant impact.
C. Federalism
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ The
executive order defines ‘‘policies that
have federalism implications’’ to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments or the agency consults
with State and local government
officials early in the process of
developing the regulation. Where a

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regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
FRA analyzed this final rule
consistent with the principles and
criteria contained in Executive Order
13132. FRA determined the final rule
will not have substantial direct effects
on States, on the relationship between
the national government and States, or
on the distribution of power and
responsibilities among the various
levels of government. In addition, FRA
determined this final rule will not
impose substantial direct compliance
costs on State and local governments.
Therefore, the consultation and funding
requirements of Executive Order 13132
do not apply.
This final rule amends FRA’s HS
reporting and recordkeeping regulations
to allow a railroad with less than
400,000 employee hours annually, and
a contractor or subcontractor providing
covered service employees to such a
railroad, to create and maintain HS
records for its covered service
employees using an automated
recordkeeping system. FRA is not aware
of any State with regulations covering
the subject of this final rule. However,
FRA notes this rule could have

preemptive effect under Section 20106
of the former Federal Railroad Safety
Act of 1970, that Congress repealed,
reenacted without substantive change,
codified at 49 U.S.C. 20106, and later
amended (Section 20106). Section
20106 provides that States may not
adopt or continue in effect any law,
regulation, or order related to railroad
safety or security that covers the subject
matter of a regulation prescribed or
order issued by the Secretary of
Transportation (with respect to railroad
safety matters), unless the State law,
regulation, or order (1) qualifies under
the ‘‘essentially local safety or security
hazard’’ exception to Section 20106, (2)
is not incompatible with a law,
regulation, or order of the U.S.
Government, and (3) does not
unreasonably burden interstate
commerce.
In sum, FRA analyzed this final rule
consistent with the principles and
criteria contained in Executive Order
13132. As explained above, FRA
determined this final rule has no
federalism implications other than
possible preemption of State laws under
49 U.S.C. 20106 and 21109 (providing
regulatory authority for hours of
service). Accordingly, FRA determined
it is not required to prepare a federalism

43995

summary impact statement for this final
rule.
D. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards, and, where
appropriate, that they be the basis for
U.S. standards. This rulemaking is
purely domestic in nature and is not
expected to affect trade opportunities
for U.S. firms doing business overseas or
for foreign firms doing business in the
United States.
E. Paperwork Reduction Act
The information collection
requirements in this final rule are being
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq. The sections that
contain the new and current
information collection requirements are
duly designated, and the estimated time
to fulfill each requirement is as follows:
Total
annual
burden
hours

CFR section–49 CFR

Respondent universe

Total annual
responses

Average time per
response

228.11—Hours of duty records ...........................

785 railroads/signal
contractors &
subcontactors.
150 dispatch offices .....
300 railroads ................
50 railroads ..................

27,511,875 records ......

2 min./5 min./8 min ......

2,733,439

200,750 records ...........
2,670 reports ................
1 petition ......................

3 hours .........................
2 hours .........................
16 hours .......................

602,250
5,340
16

764 railroads ................

615 automated systems

24 hours .......................

14,760

615 railroads ................

2 waiver requests .........

8 hours .........................

16

100,500 employees ......

19,365 signed certifications.

5 minutes .....................

1,614

100,500 employees ......
615 railroads ................

75 signed certifications
615 procedures ............

5 minutes .....................
90 minutes ...................

6
923

615 railroads ................

5,931 trained employees.

2 hours .........................

11,862

228.17—Dispatchers record of train movements
228.19—Monthly reports of excess service ........
228.103—Construction of Employee Sleeping
Quarters—Petitions to allow construction near
work areas.
228.201(b)—Electronic recordkeeping system
and Automated system—RR automated systems (Revised Requirement).
(c)—Waiver requests by railroads/contractors/
subcontractors no longer eligible use an automated recordkeeping system to refrain from
having to begin keeping manual or electronic
records or refrain from retaining its automated
records as required under section 228.9(c)
(New Requirement).
228.206—New Requirements—Requirements for
automated records and for automated recordkeeping systems on eligible smaller railroads,
and their contractors or subcontractors that
provide covered service employees to such
railroads.
Certification of employee’s electronic signature ..
—Additional certification/testimony provided by
employee upon FRA request.
—Procedure for providing FRA/state inspector
with system access upon request.
228.207—Revised Requirements—Training in
use of electronic or automated system—Initial
training.

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Respondent universe

Total annual
responses

Average time per
response

—Employee refresher training on relevant
changes to hours of service laws, the recording or reporting requirements in Subparts B
and D of this Part, or the electronic, automated, or manual recordkeeping system of
the railroad/contractor.
49 U.S.C. 21102—The Federal Hours of Service
Laws—Petitions for exemption from laws.
228.407—Analysis of work schedules—RR analysis of one cycle of work schedules of employees engaged in commuter or intercity passenger transportation.
—RR Report to FRA Administrator of each work
schedule that exceeds fatigue threshold.
—RR Fatigue mitigation plan—submission and
FRA approval.
—Work schedules, proposed mitigation plans/
tools, determinations of operational necessity—found deficient by FRA and needing correction.
—Follow-up analyses submitted to FRA for approval.
—Deficiencies found by FRA in revised work
schedules and accompanying fatigue mitigation tools and determinations of operational
necessity needing correction.
—Updated fatigue mitigation plans .....................
—RR Consultation with directly affected employees on: (i) RR Work schedules at risk for fatigue level possibly compromising safety; and
(ii) Railroad’s selection of fatigue mitigation
tools; and (iii) All RR Submissions required by
this section seeking FRA approval.
—Filed employee statements with FRA explaining any issues related to paragraph (f)(1) of
this section where consensus was not
reached.
228.411—RR Training programs on fatigue and
related topics (e.g., rest, alertness, changes in
rest cycles, etc.).
—Refresher training for new employees .............

785 railroads/contractors & subcontractors.

47,000 trained employees.

1 hour ...........................

47,000

10 railroads ..................

1 petition ......................

10 hours .......................

10

168 railroads ................

2 analyses ....................

20 hours .......................

40

168 railroads ................

1 report .........................

2 hours .........................

2

168 railroads ................

1 plan ...........................

4 hours .........................

4

168 railroads ................

1 corrected document ..

2 hours .........................

2

168 railroads ................

5 analyses ....................

4 hours .........................

20

168 railroads ................

1 corrected document ..

2 hours .........................

2

168 railroads ................
168 railroads ................

8 plans .........................
5 consultations .............

4 hours .........................
2 hours .........................

32
10

RR Employee Organizations.

2 filed statements .........

2 hours .........................

4

168 railroads ................

14 training programs ....

5 hours .........................

70

168 railroads ................

1 hour ...........................

150

1 hour ...........................

3,400

168 railroads ................

150 initially trained employees.
3,400 trained employees.
3,550 records ...............

5 minutes .....................

296

140 railroads ................

2 written declarations ...

1 hour ...........................

2

168 railroads ................

2 updated plans ...........

10 hours .......................

20

—RR Every 3 Years refresher training for existing employees.
—RR Record of employees trained in compliance with this section.
—Written declaration to FRA by tourist, scenic,
historic, or excursion RR seeking exclusion
from this section’s requirements because its
employees are assigned schedules wholly
within the hours of 4 a.m. to 8 p.m. on the
same calendar day that comply with the provisions of section 228.405.
Appendix D—Guidance on fatigue management
plan—RR reviewed and updated fatigue management plans.

sradovich on DSK3GMQ082PROD with RULES

Total
annual
burden
hours

CFR section–49 CFR

All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. Pursuant to
44 U.S.C. 3506(c)(2)(B), FRA solicits
comments concerning: Whether these
information collection requirements are
necessary for the proper performance of
the functions of FRA, including whether
the information has practical utility; the

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168 railroads ................

accuracy of FRA’s estimates of the
burden of the information collection
requirements; the quality, utility, and
clarity of the information to be
collected; and whether the burden of
collection of information on those who
are to respond, including through the
use of automated collection techniques
or other forms of information
technology, may be minimized. For
information or a copy of the paperwork

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package submitted to OMB, contact Mr.
Robert Brogan, Information Collection
Clearance Officer, Office of Railroad
Safety, at 202–493–6292, or Ms. Kim
Toone, Information Collection Clearance
Officer, Office of Railroad
Administration, at 202–493–6132, or via
email at the following addresses:
Robert.Brogan@dot.gov; Kim.Toone@
dot.gov.

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sradovich on DSK3GMQ082PROD with RULES

Organizations and individuals
desiring to submit comments on the
collection of information requirements
should direct them to the Office of
Management and Budget, Office of
Information and Regulatory Affairs,
Washington, DC 20503, Attention: FRA
Desk Officer. Comments may also be
sent via email to the Office of
Management and Budget at the
following address: oira_submissions@
omb.eop.gov.
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 cannot impose a penalty on
persons for violating information
collection requirements which do not
display a current OMB control number,
if required. FRA intends to obtain
current OMB control numbers for any
new information collection
requirements resulting from this
rulemaking action prior to the effective
date of this final rule. The OMB control
number assigned to the collection of
information associated with the current
rule is OMB No. 2130–0005.
F. Environmental Assessment
FRA evaluated this final rule
consistent with its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and related
regulatory requirements. FRA
determined this final rule is not a major
FRA action requiring the preparation of
an environmental impact statement or
environmental assessment because it is
categorically excluded from detailed
environmental review under section
4(c)(20) of FRA’s Procedures.See 64 FR
28547, May 26, 1999. Section 4(c)(20)
states certain classes of FRA actions
have been determined to be
categorically excluded from the
requirements of FRA’s Procedures as
they do not individually or cumulatively
have a significant effect on the human
environment, including the
promulgation of railroad safety rules
and policy statements that do not result
in significantly increased emissions of
air or water pollutants or noise or
increased traffic congestion in any mode
of transportation.
FRA further concluded no
extraordinary circumstances exist with
respect to this final regulation that

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might trigger the need for a more
detailed environmental review under
sections 4(c) and (e) of FRA’s
Procedures. As a result, FRA finds that
this final rule is not a major Federal
action significantly affecting the quality
of the human environment.
G. Unfunded Mandates Reform Act of
1995
Under 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 written
statements from agencies before
promulgating any general notice of
proposed rulemaking that includes any
Federal mandate that may result in
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted annually for inflation) in any
1 year and before promulgating any final
rule for which a general notice of
proposed rulemaking was published.
The written statement, if required,
would detail the effect on State, local,
and tribal governments and the private
sector.
For the year 2015, FRA adjusted the
monetary amount of $100,000,000 to
$156,000,000 for inflation. This final
rule would not result in the expenditure
of more than $156,000,000 by the public
sector in any one year, and thus
preparation of such a statement is not
required.
H. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355, May 22,
2001. Under the Executive Order,
‘‘significant energy action’’ means any
action by an agency (normally
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation (including a notice of
inquiry, advance NPRM, and NPRM)
that (1)(i) is a significant regulatory
action under Executive Order 12866 or
any successor order and (ii) is likely to
have a significant adverse effect on the
supply, distribution, or use of energy; or
(2) is designated by the Administrator of
the Office of Information and Regulatory
Affairs as a significant energy action.
FRA evaluated this rule consistent with
Executive Order 13211. FRA determined

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43997

this rule will not have a significant
adverse effect on the supply,
distribution, or use of energy and, thus,
is not a ‘‘significant energy action’’
under the Executive Order 13211.
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.
The Rule
For the reasons discussed in the
preamble, FRA amends part 228 of
chapter II, subtitle B of title 49, Code of
Federal Regulations, as follows:
PART 228—PASSENGER TRAIN
EMPLOYEE HOURS OF SERVICE;
RECORDKEEPING AND REPORTING;
SLEEPING QUARTERS
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, Pub. L. 110–432, 122
Stat. 4860–4866, 4893–4894; 49 U.S.C.
21301, 21303, 21304, 21311; 28 U.S.C. 2461,
note; 49 U.S.C. 103; and 49 CFR 1.89.

2. The heading of part 228 is revised
to read as set forth above.
■ 3. In § 228.5, add definitions of
‘‘Automated recordkeeping system’’;
‘‘Electronic recordkeeping system’’;
‘‘Electronic signature’’; and ‘‘Eligible
smaller railroad’’ in alphabetical order
to read as follows:
■

§ 228.5

Definitions.

*

*
*
*
*
Automated recordkeeping system
means a recordkeeping system that—
(1) An eligible smaller railroad, or a
contractor or subcontractor to such a
railroad, may use instead of a manual
recordkeeping system or electronic
recordkeeping system to create and
maintain any records subpart B of this
part requires; and
(2) Conforms to the requirements of
§ 228.206.
*
*
*
*
*
Electronic recordkeeping system
means a recordkeeping system that—
(1) A railroad may use instead of a
manual recordkeeping system or
automated recordkeeping system to
create and maintain any records
required by subpart B of this part; and
(2) Conforms to the requirements of
§§ 228.201–228.205.
Electronic signature means an
electronic sound, symbol, or process
that—
(1) Is attached to, or logically
associated with, a contract or other
record;

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Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations

(2) Is executed or adopted by a person
with the intent to sign the record, to
create either an individual’s unique
digital signature, or unique digitized
handwritten signature; and
(3) Complies with the requirements of
§ 228.19(g) or § 228.206(a).
Eligible smaller railroad means either:
(1) A railroad that reported to FRA
that it had less than 400,000 employee
hours during the preceding three
consecutive calendar years under
§ 225.21(d) of this chapter on Form FRA
6180.55, Annual Railroad Reports of
Employee Hours by State; or
(2) A railroad operating less than 3
consecutive calendar years that reported
to FRA that it had less than 400,000
employee hours during the current
calendar year under § 225.21(d) of this
chapter on Form FRA 6180.55, Annual
Railroad Reports of Employee Hours by
State.
*
*
*
*
*
■ 4. In § 228.9, revise the section
heading, add headings to paragraphs (a)
and (b), and add new paragraph (c) to
read as follows:
§ 228.9 Manual, electronic, and automated
records; general.

(a) Manual records. * * *
*
*
*
*
(b) Electronic records. * * *
*
*
*
*
*
(c) Automated records. Each
automated record maintained under this
part shall be—
(1) Signed electronically by the
employee whose time on duty is being
recorded or, in the case of a member of
a train crew or a signal employee gang,
digitally signed by the reporting
employee who is a member of the train
crew or signal gang whose time is being
recorded as provided by § 228.206(a);
(2) Stamped electronically with the
certifying employee’s electronic
signature and the date and time the
employee electronically signed the
record;
(3) Retained for 2 years in a secured
file that prevents alteration after
electronic signature;
(4) Accessible by the Administrator
through a computer terminal of the
railroad; and
(5) Reproducible using printers at the
location where records are accessed.
■ 5. In § 228.11, revise the first sentence
of paragraph (a) to read as follows:

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*

§ 228.11

Hours of duty records.

(a) In general. Each railroad, or a
contractor or a subcontractor of a
railroad, shall keep a record of the hours
of duty of each employee. * * *
*
*
*
*
*

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■

of this section for its automated records
and automated recordkeeping system.
(c) If a railroad, or a contractor or
subcontractor to the railroad, is no
longer eligible to use an automated
recordkeeping system to record data
subpart B of this part requires, the entity
must begin keeping manual or
electronic records and must retain its
automated records as required under
§ 228.9(c) unless the entity requests, and
FRA grants, a waiver under § 211.41 of
this chapter.
■ 8. Add § 228.206 to read as follows:

§ 228.201 Electronic recordkeeping
system and automated recordkeeping
system; general.

§ 228.206 Requirements for automated
records and for automated recordkeeping
systems on eligible smaller railroads, and
their contractors or subcontractors that
provide covered service employees to such
railroads.

6. Revise the heading of subpart D to
read as follows:

■

Subpart D—Electronic Recordkeeping
System and Automated Recordkeeping
System
7. In § 228.201, revise the section
heading, designate the introductory text
as paragraph (a), add a heading to newly
designated paragraph (a), redesignate
paragraphs (1) through (6) as paragraphs
(a)(1) through (6), revise the paragraphs
newly designated as (a)(1), (a)(3), (a)(4),
and (a)(5), and add new paragraph (b) to
read as follows:

(a) Electronic recordkeeping system.
* * *
(1) The system used to generate the
electronic record meets all requirements
of this paragraph (a) of this section and
all requirements of §§ 228.203 and
228.205;
*
*
*
*
*
(3) The railroad, or contractor or
subcontractor to the railroad, monitors
its electronic database of employee
hours of duty records through a
sufficient number of monitoring
indicators to ensure a high degree of
accuracy of these records;
(4) The railroad, or contractor or
subcontractor to the railroad, trains its
affected 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 § 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; and
*
*
*
*
*
(b) Automated recordkeeping system.
For purposes of compliance with the
recordkeeping requirements of subpart
B of this part, an eligible smaller
railroad, or a contractor or a
subcontractor that provides covered
service employees to such a railroad,
may create and maintain any of the
records required by subpart B using an
automated recordkeeping system if all of
the following conditions are met:
(1) The automated recordkeeping
system meets all requirements of
paragraph (b) of this section and all
requirements of § 228.206; and
(2) The eligible smaller railroad or its
contractor or subcontractor complies
with all of the requirements of
paragraphs (a)(2) and (a)(4) through (6)

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(a) Use of electronic signature. Each
employee creating a record required by
subpart B of this part must sign the
record using an electronic signature that
meets the following requirements:
(1) The record contains the printed
name of the signer and the date and
actual time the signature was executed,
and the meaning (such as authorship,
review, or approval) associated with the
signature;
(2) Each electronic signature is unique
to one individual and shall not be used
by, or assigned to, anyone else;
(3) Before an eligible smaller railroad,
or a contractor or subcontractor to such
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) A person using an electronic
signature shall, prior to or at the time of
each such use, certify to FRA that the
person’s electronic signature in the
system, used on or after August 29, 2018
is the legally binding equivalent of the
person’s traditional handwritten
signature;
(5) Each employee shall sign the
initial certification of his or her
electronic signature with a traditional
handwritten signature, and each
railroad using an automated system
shall maintain certification of each
electronic signature at its headquarters
or the headquarters of any contractor or
subcontractor providing employees who
perform covered service to such a
railroad, and railroads, contractors, and
subcontractors must make the
certification available to FRA upon
request; and
(6) A person using an electronic
signature in such a system shall, upon
FRA request, provide additional
certification or testimony that a specific

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Federal Register / Vol. 83, No. 168 / Wednesday, August 29, 2018 / Rules and Regulations
electronic signature is the legally
binding equivalent of his or her
handwritten signature.
(b) System security. Railroads using
an automated recordkeeping system
must protect the integrity of the system
by the use of 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, except
that an eligible smaller railroad, or a
contractor or subcontractor to such a
railroad, may pre-populate fields of the
hours of service record provided that—
(i) The eligible smaller railroad, or its
contractor or subcontractor, prepopulates fields of the hours of service
record with information the railroad, or
its contractor or subcontractor knows is
factually accurate for a specific
employee.
(ii) The recordkeeping system may
allow employees to copy data from one
field of a record into another field,
where applicable.
(iii) The eligible smaller railroad, or
its contractor or subcontractor does not
use estimated, historical, or arbitrary
information to pre-populate any field of
an hours of service record.
(iv) An eligible smaller railroad, or a
contractor or a subcontractor to such a
railroad, is not in violation of paragraph
(b)(1) of this section 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.
(v) 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
railroad, or contractor or subcontractor
to the railroad.
(2) No two individuals have the same
electronic signature.
(3) No individual can delete or alter
a record after the employee who created
the record electronically signs 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 automated system maintains
the records as originally submitted
without corruption or loss of data.
Beginning August 29, 2018, an eligible
smaller railroad must retain back-up

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data storage for its automated records
for the quarters prescribed in the
following table for the time specified in
§ 228.9(c)(3), to be updated within 30
days of the end of each prescribed
quarter—

records matching the criteria specified
in a search.
■ 9. In § 228.207, revise paragraphs
(b)(1)(iii)(B) and (c)(1)(i) to read as
follows:
§ 228.207

Quarter 1 ........
Quarter 2 ........
Quarter 3 ........
Quarter 4 ........

January 1 through March 31.
April 1 through June 30.
July 1 through September
30.
October 1 through December 31.

(7) Supervisors and crew management
officials can access, but cannot delete or
alter, the records of any employee after
the employee electronically signs the
record.
(c) Identification of the individual
entering data. If a given record contains
data entered by more than one
individual, the record must identify
each individual who entered specific
information within the record and the
data the individual entered.
(d) Search capabilities. The
automated recordkeeping system must
store records using the following criteria
so all records matching the selected
criteria are retrieved from the same
location:
(1) Date (month and year);
(2) Employee name or identification
number; and
(3) Electronically signed records
containing one or more instances of
excess service, including duty tours in
excess of 12 hours.
(e) Access to records. An eligible
smaller railroad, or contractor or
subcontractor providing covered service
employees to such a railroad, must
provide access to its hours of service
records under subpart B that are created
and maintained in its automated
recordkeeping system to FRA inspectors
and State inspectors participating under
49 CFR part 212, subject to the
following requirements:
(1) Access to records created and
maintained in the automated
recordkeeping system must be obtained
as required by § 228.9(c)(4);
(2) An eligible smaller railroad must
establish and comply with procedures
for providing an FRA inspector or
participating State inspector with access
to the system upon request and must
provide access to the system as soon as
possible but not later than 24 hours after
a request for access;
(3) Each data field entered by an
employee on the input screen must be
visible to the FRA inspector or
participating State inspector; and
(4) The data fields must be searchable
as described in paragraph (d) of this
section and must yield access to all

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43999

Training.

*

*
*
*
*
(b) * * *
(1) * * *
(iii) * * *
(B) The entry of hours of service data,
into the electronic system or automated
system or on the appropriate paper
records used by the railroad or
contractor or subcontractor to a railroad
for which the employee performs
covered service; and
*
*
*
*
*
(c) * * *
(1) * * *
(i) Emphasize any relevant changes to
the hours of service laws, the recording
and reporting requirements in subparts
B and D of this part, or the electronic,
automated, or manual recordkeeping
system of the railroad or contractor or
subcontractor to a railroad for which the
employee performs covered service
since the employee last received
training; and
*
*
*
*
*
Issued in Washington, DC.
Ronald Louis Batory,
Administrator.
[FR Doc. 2018–18639 Filed 8–28–18; 8:45 am]
BILLING CODE 4910–06–P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 107816769–8162–02]
RIN 0648–XG396

Fisheries of the Exclusive Economic
Zone Off Alaska; Pacific Cod by Trawl
Catcher Vessels in the Central
Regulatory Area of the Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:

NMFS is prohibiting directed
fishing for Pacific cod by catcher vessels
using trawl gear in the Central
Regulatory Area of the Gulf of Alaska
(GOA). This action is necessary to
prevent exceeding the annual allowance
of the 2018 Pacific cod total allowable
catch apportioned to trawl catcher

SUMMARY:

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