E6-13900. Proposed Agency Information Collection Activities; Comment Request

AGENCY:

Federal Railroad Administration, DOT.

ACTION:

Notice and Request For Comments.

SUMMARY:

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

DATES:

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

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On June 16, 2006, FRA published a 60-day notice in the Federal Register soliciting comment on ICRs that the agency was seeking OMB approval. 71 FR 34990. FRA received one comment in response to this notice.

The comment submitted came from the Association of American Railroads (AAR). AAR opposes OMB renewal of this information collection because FRA has not yet fully accommodated its request concerning electronic recordkeeping for the Hours of Duty Records required in this collection. Specifically, AAR remarks:

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

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

FRA has required railroads to, inter alia,

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

AAR observes that “there are no comparable requirements for paper records.” AAR goes on to note that “the Government Paperwork Elimination Act (GPEA) required OMB to develop procedures for the acceptance of electronic records” and that “by Oct. 21, 2003, OMB was to ensure that agencies provide an option for the maintenance of records electronically and, where practicable, the use of electronic signatures.” AAR believes that FRA's “hours of service regulations violate the GPEA's mandate to facilitate electronic records.”

FRA and its representatives have a long relationship with AAR. There have been many contacts and discussions between FRA and AAR officials regarding the Hours of Service Regulations and electronic recordkeeping. FRA has been working for some time with the AAR on this issue. FRA has meet with AAR representatives, and has indicated its intention to act on AAR's request regarding electronic recordkeeping. FRA has a team now working on a proposed rule to enable electronic recordkeeping (which would eliminate the need for waivers), so AAR's belief that FRA is unresponsive and that no progress has been made is not correct. By its nature, the process of regulatory development and enactment is a slow one. Moreover, FRA has communicated to AAR that top agency officials and specialists are available to work on any issues under current waivers while a proposed rule is being developed.

In its comments, AAR admits that electronic recordkeeping option has been and is available through agency waivers. FRA clearly then has no bias against electronic records. In fact, FRA has long encouraged the use of electronic recordkeeping, wherever feasible, to reduce burden on respondents. However, because the work of “covered employees” directly impacts rail safety and because “fatigue” resulting from excessive work hours is a direct threat to public safety and the safety of train crews and other railroad workers, FRA must ensure that the Federal hours of service (HOS) laws are strictly adhered to in order to meet its primary safety mission and its statutory obligation for HOS oversight. Although FRA permitted railroads to do away with various costly and cumbersome paper records, AAR complains that FRA imposes additional requirements for electronic records, overlooking the fact that the eliminated paper records provided FRA with much information that it needs to fulfill its statutory HOS oversight.

The Interstate Commerce Commission (ICC), in 1921, mandated hours of duty record keeping with specific data fields that facilitated its statutory oversight obligations. The format and instructions presented in the ICC order have continued to be used by railroads until the beginning of electronic hours of duty programs in the mid 1990's. However, in 1969, the U.S. Congress amended the HOS to create a second duty tour category that was neither On Duty Time nor Off Duty Time. FRA refers to that category as Limbo Time. The existing record keeping requirements, much of which was carried over from the ICC Order, were not changed as a result of the statutory amendment primarily because the “other” existing record keeping requirements, i.e., Delay Report, of the ICC Order provided the necessary information to determine Limbo Time. Railroads utilizing the Electronic waiver process are not required to maintain the Delay Report segment of the original ICC Order. Instead, the programs include an additional data field, titled “Relieved Time,” to identify the beginning of the Limbo Time. The former Off Duty field used prior to the HOS amendment has been changed to Released Time, i.e., the end of Limbo Time and the beginning of a Statutory Off Duty period. Without these fields or the Delay Report, neither FRA nor the railroads can accurately determine Total Time On Duty nor when the employees rest period begins.

Monitoring Indicators is an electronic oversight not feasible in paper records. These indicators point to excess service and/or obvious reporting flaws that liable the railroad through the penalty schedule contained in the HOS and the Code of Federal Regulations Part 228. If reporting flaws remain unchecked by the railroad, FRA is left with a record that does not facilitate its oversight and employee safety concerns for statutory compliance.

Training requirements contained in the Electronic waivers necessitate that railroads train their employees and supervisors in the applications of the HOS. The purpose of the FRA review is to make certain that the training materials properly describe and explain to employees the proper entry of data needed to determine compliance with the law. Without an accurate record with data based on the HOS, FRA can not meet its oversight obligations.

Finally, regarding AAR's allusion to the requirements of the Government Paperwork Elimination Act (GPEA), FRA is fully compliant. GPEA itself stipulates that “executive agencies provide for the option of electronic maintenance, submission, or disclosure of information as a substitute for paper and for the use and acceptance of electronic signatures, when practicable.” Because there is no Federal Government, OMB, or Transportation Department standard for electronic recordkeeping and electronic signatures, FRA set up the Electronic waiver process so that it can closely scrutinize individual railroad requests for electronic recordkeeping relating to the Hours of Duty Records. In section 1703 of GPEA relating to the use and acceptance of electronic signatures by executive agencies, the law specifically states that the procedures developed by executive agencies “shall ensure that electronic signatures are as reliable as is appropriate for the purpose in question and keep intact the information submitted.” Until a proposed rule for electronic recordkeeping is completed, FRA's Electronic waiver process attempts to do exactly that by setting requirements for the integrity, reliability, accessibility, and security of railroad HOS electronic recordkeeping systems. At the same time, FRA's waiver system has been set up to be fully enforceable legally and thus is completely in compliance with Section 1707 of GPEA. This section states:

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

In sum, it is in everyone's best interest—the American public's, the railroads' and their employees, AAR's, and FRA's—that this collection of information be renewed by OMB. Although FRA has not issued an electronic rulemaking as quickly as the AAR would like, the agency is working on it and is taking the time necessary to do it right.

Before OMB decides whether to approve this proposed collection of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d); see also 60 FR 44978, 44983, Aug. 29, 1995. OMB believes that the 30-day notice informs the regulated community to file relevant comments and affords the agency adequate time to digest public comments before it renders a decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should submit their respective comments to OMB within 30 days of publication to best ensure having their full effect. 5 CFR 1320.12(c); see also 60 FR 44983, Aug. 29, 1995.

The summary below describes the nature of the information collection request (ICR) and the expected burden. The revised request is being submitted for clearance by OMB as required by the PRA.

Title: Hours of Service Regulations.

OMB Control Number: 2130-0005.

Type of Request: Extension of a currently approved collection.

Affected Public: Businesses.

Form(s): N/A.

Abstract: The collection of information is due to the railroad Hours of Service Regulations set forth in 49 CFR part 228 which require railroads to collect the Hours of Duty for covered employees, and records of train movements. Railroads whose employees have exceeded maximum duty limitations must report the circumstances. Also, a railroad that has developed plans for construction or reconstruction of sleeping quarters (Subpart C of 49 CFR part 228) must obtain approval of the Federal Railroad Administration (FRA) by filing a petition conforming to the requirements of Sections 228.101, 228.103, and 228.105.

Annual Estimated Burden Hours: 3,294,676.

Addressee: Send comments regarding these information collections to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street, NW., Washington, DC, 20503; Attention: FRA Desk Officer.

Comments are invited on the following: Whether the proposed collections of information are necessary for the proper performance of the functions of FRA, including whether the information will have practical utility; the accuracy of FRA's estimates of the burden of the proposed information collections; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information on respondents, including the use of automated collection techniques or other forms of information technology.

A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the Federal Register.

Authority: 44 U.S.C. §§ 3501-3520.

Issued in Washington, DC on August 16, 2006.

D.J. Stadtler,

Director, Office of Budget, Federal Railroad Administration.