[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Rules and Regulations]
[Pages 12408-12431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4732]
[[Page 12407]]
Vol. 77
Wednesday,
No. 40
February 29, 2012
Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Chapter II
Statement of Agency Policy and Interpretation on the Hours of Service
Laws as Amended; Response to Public Comment; Final Rule
Federal Register / Vol. 77 , No. 40 / Wednesday, February 29, 2012 /
Rules and Regulations
[[Page 12408]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Chapter II
[Docket No. 2009-0057, Notice No. 2]
Statement of Agency Policy and Interpretation on the Hours of
Service Laws as Amended; Response to Public Comment
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Statement of agency policy and interpretation; response to
public comment.
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SUMMARY: In this document FRA states the agency's position on certain
interpretive questions arising out of some of the complex and important
amendments enacted in 2008 to the Federal railroad safety laws that
govern such matters as how long a railroad may require or allow an
employee in a certain category to remain on duty and how long the
railroad must give the employee off duty before the employee may go on
duty again. In issuing this interpretation, FRA has considered public
comments that it received on its June 2009 document that contained the
agency's interim interpretations of those amended laws.
DATES: This document is effective on May 29, 2012.
FOR FURTHER INFORMATION CONTACT: Colleen A. Brennan, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail
Stop 10, Washington, DC 20590 (telephone 202-493-6028 or 202-493-6052);
Matthew T. Prince, Trial Attorney, Office of Chief Counsel, FRA, 1200
New Jersey Avenue SE., RCC-12, Mail Stop 10, Washington, DC 20590
(telephone 202-493-6146 or 202-493-6052); Rich Connor, Operating
Practices Specialist, Operating Practices Division, Office of Safety
Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-11, Mail
Stop 25, Washington, DC 20590 (telephone 202-493-1351); or Thomas
McFarlin, Office of Safety Assurance and Compliance, Staff Director,
Signal & Train Control Division, FRA, Mail Stop 25, West Building 3rd
Floor West, Room W35-332, 1200 New Jersey Avenue SE., Washington, DC
20590 (telephone: 202-493-6203).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
III. Changes in the Old Hours of Service Laws Made by Sec. 108 of
the RSIA
A. Extending Hours of Service Protections to Employees of
Contractors and Subcontractors to Railroads Who Perform Certain
Signal-Related Functions
B. Changing Hours of Service Requirements Related to Train
Employees
C. Changing Hours of Service Requirements Related to Signal
Employees
IV. Response to Public Comments on FRA's Proposed Interpretation and
Interim Interpretations
A. FRA's Decision To Retain Its Longstanding ``Fresh Start''
Interpretation and Not To Adopt the Proposed ``Continuous Lookback''
Interpretation
B. Questions Regarding the ``Consecutive-Days'' Limitations for
Train Employees and Requirement of 48 or 72 Hours Off Duty at the
Home Terminal
1. What constitutes a ``Day'' for the purpose of sec.
21103(a)(4)?
2. What ``Work'' may an employee do on a seventh consecutive day
under sec. 21103(a)(4)(A)?
3. Does a day spent deadheading, with no other covered service
performed on that day, Constitute an ``Initiation of an On-Duty
Period'' for the purposes of sec. 21103(a)(4)?
4. Does the initiation of an on-duty period incident to an early
release qualify as an Initiation for the purposes of sec.
21103(a)(4)?
5. If an employee is called for duty but does not work, has the
employee initiated an on-duty period? If there is a call and
release? What if the employee has reported?
6. Does an employee's performance of ``Other Mandatory Activity
for the Carrier'' that is not covered service ever count as the
initiation of an on-duty period under sec. 21103(a)(4)?
7. How much rest must an employee have after initiating an on-
duty period for six consecutive days, if permitted to do so for
seven consecutive days by sec. 21103(a)(4)(B)?
8. How are initiations of on-duty periods for multiple railroad
carriers treated under sec. 21103(a)(4)?
9. Does an employee ``Deliberately Misrepresent His or Her
Availability'' simply by reporting for duty on a consecutive day in
violation of sec. 21103(a)(4)?
C. Questions Regarding the Prohibition on Communication by the
Railroad with Train Employees and Signal Employees
1. Does the prohibition protect employees from any communication
for the entirety of the off-duty period?
2. Is it a violation for a railroad to intentionally call an
employee to delay that employee's ability to report for duty?
3. For what purposes may an employee contact a railroad during
the uninterrupted rest period?
4. May the railroad return an employee's communication during
the rest period without violating the prohibition on communication?
5. May the railroad call to alert an employee to a delay (set
back) or displacement?
6. May an employee provide advance permission for railroad
communications?
7. Does the prohibition on communication apply to the extended
rest required after 6 or more consecutive days initiating an on-duty
period?
8. Does the prohibition on communication apply differently to
forms of communication other than phone calls?
9. May the railroad provide information that can be accessed at
the employee's option?
D. Questions Regarding the 276-Hour Monthly Limit on Service for
the Railroad by Train Employees
E. Additional Issues Raised by Commenters
1. Statutory Changes
2. Waivers
3. Definition of ``Covered Service''
4. Exclusivity of Signal Service Hours of Service
5. Commuting Time
6. Application of Exception to Limitation on Certain Limbo Time
V. Portions of FRA's Interim Interpretations of the Hours of Service
Laws on Which Comments Were Not Received and Which Are Incorporated
in This Final Interpretation Essentially Without Change
A. Questions Related to the Prohibition on Communication by the
Railroad With Train Employees and Signal Employees
1. Does the prohibition on communication with train employees
and signal employees apply to every statutory off-duty period no
matter how long the employee worked?
2. Is the additional rest for a train employee when on-duty time
plus limbo time exceeds 12 hours mandatory, or may the employee
decline it?
3. If an employee is called to report for duty after having 10
hours of uninterrupted time off duty, but then receives a call
canceling the call to report before he or she leaves the place of
rest, is a new period of 10 uninterrupted hours off duty required?
4. What if the call is cancelled just one minute before report-
for-duty time?
5. What if the employee was told before going off duty to report
at the end of required rest (either 10 hours or 48 or 72 hours after
working 6 or 7 days), and is released from that call prior to the
report-for-duty time?
6. Are text messages or email permitted during the rest period?
7. May the railroad return an employee's call during the rest
period without violating the prohibition on communication?
8. May the railroad call to alert an employee to a delay (set
back) or displacement?
9. If the railroad violates the requirement of undisturbed rest,
is the undisturbed rest period restarted from the beginning?
10. Should any violation of undisturbed rest be documented by a
record?
[[Page 12409]]
11. Is the additional rest required when on-duty time plus limbo
time exceeds 12 hours (during which communication with an employee
is prohibited) to be measured only in whole hours, so that the
additional rest requirement is not a factor until the total reaches
13 hours?
B. Questions Related to the Requirements Applicable to Train
Employees for 48 or 72 Hours Off at the Home Terminal
1. Is a ``Day'' a calendar day or a 24-hour period for the
purposes of this provision?
2. If an employee is called for duty but does not work, has the
employee initiated an on-duty period? If there is a call and
release? What if the employee has reported?
3. Does deadheading from a duty assignment to the home terminal
for final release on the 6th or 7th day count as a day that triggers
the 48-hour or 72-hour rest period requirement?
4. Does attendance at a mandatory rules class or other mandatory
activity that is not covered service but is non-covered service,
count as initiating an on-duty period on a day?
5. If an employee is marked up (available for service) on an
extra board for 6 days but only works 2 days out of the 6, is the
48-hour rest requirement triggered?
6. If an Employee initiates an on-duty period on 6 consecutive
days, ending at an away-from-home terminal and then has 28 hours off
at an away-from-home terminal, may the employee work back to the
home terminal? The statute says that after initiating an on-duty
period on 6 consecutive days the employee may work back to the home
terminal on the 7th day and then must get 72 hours off, but what if
the employee had a day off at the away-from-home terminal after the
6th day?
7. May an employee who works 6 consecutive days vacation relief
at a ``Temporary Home Terminal'' work back to the regular home
terminal on the 7th day?
C. Questions Related to the 276-Hour Monthly Maximum for Train
Employees of Time on Duty, Waiting for or Being in Deadhead
Transportation to Final Release, and in Other Mandatory Service for
the Carrier
1. If an employee reaches or exceeds 276 hours for the calendar
month during a trip that ends at the employee's away-from-home
terminal, may the railroad deadhead the employee home during that
month?
2. How will FRA apply the 276-hour cap to employees who only
occasionally perform covered service as a train employee, but whose
hours, when combined with their regular shifts in non-covered
service, would exceed 276 hours?
3. Does the 276-hour count reset at midnight on the first day of
a new month?
4. May an employee accept a call to report for duty when he or
she knows there are not enough hours remaining in the employee's
276-hour monthly limitation to complete the assignment or the duty
tour, and it is not the last day of the month, so the entire duty
tour will be counted toward the total for the current month?
5. What activities constitute ``Other Mandatory Service for the
Carrier,'' which counts towards the 276-hour monthly limitation?
6. Does time spent documenting transfer of hazardous materials
(Transportation Security Administration requirement) count against
the 276-hour monthly maximum?
D. Other Interpretive Questions Related to the RSIA Amendments
to the Old Hours of Service Laws
1. Does the 30-hour monthly maximum limitation on time awaiting
and in deadhead transportation to final release only apply to time
awaiting and in deadhead transportation after 12 consecutive hours
on duty?
2. Did the RSIA affect whether a railroad may obtain a waiver of
the provisions of the new hours of service laws?
I. Executive Summary
Having considered public comments in response to FRA's June 26,
2009 interim statement of agency policy and interpretation (Interim
Interpretations) and its proposed interpretation, 74 FR 30665, FRA
issues this final statement of agency policy and interpretation.
Federal laws governing railroad employees' hours of service date
back to 1907 with the enactment of the Hours of Service Act (Pub. L.
59-274, 34 Stat. 1415), and FRA, under delegations from the Secretary
of Transportation (Secretary), has long administered statutory hours of
service requirements for the three groups of employees now covered
under the statute, namely employees performing the functions of train
employees, signal employees, and dispatching service employees, as
those terms are defined at 49 U.S.C. 21101. See 49 CFR 1.49; 49 U.S.C.
21101-21109, 21303. These requirements have been amended several times
over the years, most recently in the Rail Safety Improvement Act of
2008 (Pub. L. 110-432, Div. A) (RSIA). The RSIA substantially amended
the requirements of 49 U.S.C. 21103, applicable to train employees,
defined as ``individual[s] engaged in or connected with the movement of
a train, including a hostler,'' 49 U.S.C. 21101(5), and the
requirements of 49 U.S.C. 21104, applicable to signal employees,
defined as ``individual[s] who [are] engaged in installing, repairing,
or maintaining signal systems.'' 49 U.S.C. 21101(4). FRA previously
discussed these amendments in its Interim Interpretations, and now
clarifies those interpretations and answers questions raised by
commenters. The current hours of service laws are summarized very
briefly below, divided by type of covered service.
----------------------------------------------------------------------------------------------------------------
Dispatching service
Train employees Signal employees employees
Citation 49 U.S.C. 21103........ 49 U.S.C. 21104........ 49 U.S.C. 21105
----------------------------------------------------------------------------------------------------------------
Covered Individuals.................. Individuals engaged in Individuals engaged in Operators, train
or connected with the installing, repairing, dispatchers, or any
movement of a train, or maintaining signal other employee who by
including hostlers. systems. use of an electrical
Train employees who or mechanical device
are engaged in dispatches, reports,
commuter or intercity transmits, receives,
rail passenger or delivers orders
transportation, as related to or
defined in 49 CFR part affecting train
228, subpart F, are movements.
instead subject to
that regulation. See
49 U.S.C. 21102(c)(3).
Limitations on Time on Duty in a May not remain or go on May not remain or go on May not remain or go on
Single Tour. duty in excess of 12 duty in excess of 12 duty for more than 9
hours or if the hours or if the or 12 hours in a 24-
employee has not had employee has not had hour period, depending
at least 10 at least 10 on the number of
consecutive hours off consecutive hours off shifts employed at the
duty during the prior duty during the prior tower, office,
24 hours. 24 hours. station, or place the
employee is on duty.
[[Page 12410]]
Minimum Off-Duty Period Between Duty 10 consecutive hours, 10 consecutive hours, Not applicable.
Tours. required to be required to be
uninterrupted by any uninterrupted by any
communication by the communication by the
railroad reasonably railroad reasonably
expected to disrupt expected to disrupt
the employee's rest. the employee's rest.
Additional time off
duty is required when
the total of time on
duty and time waiting
for deadhead
transportation or in
deadhead
transportation from a
duty assignment to the
place of final release
that is not time off
duty exceeds 12
consecutive hours,
which must also be
uninterrupted.
Minimum Off-Duty Period Within a Duty At least 4 hours of At least 30 minutes of Not applicable.
Tour. time off duty at a time off duty.
designated terminal,
required to be
uninterrupted by any
communication by the
railroad reasonably
expected to disrupt
the employee's rest.
Limitations on Consecutive Duty Tours May not remain or go on None................... None.
duty after initiating
an on-duty period on
six consecutive days
without receiving 48
consecutive hours off
duty and free from any
service for any
railroad carrier at
the employee's home
terminal. Employees
are permitted to
initiate a seventh
consecutive day when
the employee ends the
sixth consecutive day
at the away-from-home
terminal, as part of a
pilot project, or as
part of a collectively
bargained agreement
entered into prior to
April 16, 2010 that
expressly provides for
such a schedule.
Employees performing
service on this
additional day must
receive 72 consecutive
hours free from any
service for any
railroad carrier at
their home terminal
before going on duty
again as a train
employee.
Monthly Cumulative Limitations....... May not remain or go on None................... None.
duty, wait for or be
in deadhead
transportation to the
point of final
release, or be in any
other mandatory
service for the
carrier in any
calendar month where
the employee has spent
a total of 276 hours
on duty, waiting for
or in deadhead
transportation from a
duty assignment to the
place of final
release, or in any
other mandatory
service for the
carrier.
May not exceed a total
of 30 hours per
calendar month spent
waiting for or in
deadhead
transportation from a
duty assignment to the
place of final release
following a period of
12 consecutive hours
on duty that is
neither time on duty
nor time off duty, not
including interim rest
periods, except in the
circumstances stated.
Time Neither On Duty nor Off Duty As Time spent in deadhead Time spent returning None.
Defined by the Statute. transportation from a from a trouble call,
duty assignment to the whether the employee
place of final release. goes directly to the
employee's residence
or by way of the
employee's
headquarters.
[[Page 12411]]
Time after scheduled
duty hours necessarily
spent in completing
the trip directly to
the employee's
residence or to the
employee's
headquarters, if the
employee has not
completed the trip
from the final
outlying worksite of
the duty period at the
end of scheduled duty
hours, or if the
employee is released
from duty at an
outlying worksite
before the end of the
employee's scheduled
duty hours to comply
with 49 U.S.C. 21104.
However, time spent in
transportation on an
on-track vehicle is
time on duty.
Emergencies in General............... A train employee on the A signal employee may A dispatching service
crew of a wreck or be allowed to remain employee may be
relief train may be or go on duty for no allowed to remain or
allowed to remain or more than 4 additional go on duty for no more
go on duty for no more hours in any period of than 4 additional
than 4 additional 24 consecutive hours hours during a period
hours in any period of when an emergency of 24 consecutive
24 consecutive hours exists and the work of hours for no more than
when an emergency that employee is 3 days during a period
exists and the work of related to the of 7 consecutive days.
the crew is related to emergency. Routine
the emergency. repairs, routine
maintenance, or
routine inspection of
signal systems is not
an emergency that
allows for additional
time on duty.
End of Emergency..................... The emergency ends when The emergency ends when Not Applicable.
the track is cleared the signal system is
and the railroad line restored to service.
is open for traffic.
----------------------------------------------------------------------------------------------------------------
In the proposed interpretation that appeared in the same document
as the Interim Interpretations, FRA proposed a new interpretation of
the new hours of service laws with respect to the 24-hour period within
which a train employee or signal employee must have had the minimum 10-
hour statutory off-duty period before the employee is allowed to go on
duty or remain on duty. This proposed interpretation would have
required that the train employee or signal employee have had the
statutory minimum off-duty period in the 24 hours preceding any moment
during which that employee is on duty, making the maximum work window
14 hours after the end of the statutory minimum off-duty period. In
this final statement of agency policy, FRA rejects the proposed
interpretation and maintains the longstanding ``fresh start''
interpretation, which requires only that the statutory minimum off-duty
period be within the 24 hours before a train employee or signal
employee initiates an on-duty period. As a result, there will be no
change to the current interpretation that the statutory minimum off-
duty period must only be within the 24 hours prior to the time when an
employee initiates an on-duty period.
The other issues addressed by FRA largely fall into three
categories: questions relating to the ``consecutive-days'' limitation,
the prohibition on communication with train employees and signal
employees during their statutory minimum off-duty periods, and the
monthly limitation for train employees of 276 hours in time on duty,
waiting for or in deadhead transportation, or performing any other
mandatory service for the railroad carrier. Each issue is discussed in
significantly more detail in the subsequent sections of this document;
this summary provides only a brief overview of FRA's policy and
interpretation.
In the Interim Interpretations, FRA defined the ``day'' in the
consecutive-days limitation to be a calendar day, on the basis that
such an interpretation would be administratively simpler. Experience
with the application of this definition and public comments on the
definition show that the ``calendar day'' interpretation was more
complicated and provided less protection against fatigue than
originally anticipated; as a result, FRA has revised its interpretation
of ``day'' in the context of the ``consecutive-days'' limitation to
refer to the 24-hour period following an employee's final release from
duty. Under this interpretation, if an employee does not initiate an
on-duty period within 24 hours of the employee's final release from the
previous duty tour, this will count as a ``day'' in which the employee
did not initiate an on-duty period, and the string of consecutive days
will be broken.
Another source of confusion in the Interim Interpretations was
FRA's definition of ``work'' in the ``consecutive-days'' limitation's
allowance that an employee may ``work'' on a seventh consecutive day in
certain circumstances. FRA has revised this interpretation to reduce
confusion by clearly stating that ``work'' for the ``consecutive-days''
limitation is equivalent to ``initiate an on-duty period.'' This
earlier definition of ``work'' also led some commenters to be confused
about how stand-alone deadhead transportation would be treated with
respect to the initiation of an on-duty period; FRA has clarified that
a stand-alone deadhead is not time on duty, and is therefore not the
initiation of an on-duty period. Therefore, a day in which an employee
is in deadhead transportation but does not engage in any covered
service with which the deadhead can commingle will not be counted as
part of the series of consecutive days, and will break that series.
Similarly, if an employee is called to report for duty, but does
not actually report for duty, such an employee has not initiated an on-
duty period for the purposes of the consecutive-days
[[Page 12412]]
limitation. However, employees that do report for duty have initiated
an on-duty period, even if they are released from duty shortly
thereafter, before performing any covered service. FRA also clarifies
that, while other service for the railroad may not be time on duty if
it does not commingle with covered service, this fact does not prevent
commingling if the other service is not separated from the covered
service by a statutory minimum off-duty period. In response to a
question relating to the interaction between the ``6-day'' limitation
and the ``7-day'' limitation, FRA notes that an employee who is
eligible to initiate an on-duty period for 7 consecutive days but only
initiates an on-duty period on 6 consecutive days must have 48 hours of
time off duty and free from any service for any railroad. FRA also
provides clarification on the impact of the consecutive-days
limitations on employees who choose to work for multiple railroads.
Finally, in response to a question in the comments, FRA provides
additional discussion of when an employee may be subject to individual
liability enforcement action for deliberately misrepresenting his or
her availability.
On the issue of the prohibition on communication by the railroad
with train employees and signal employees, comments received in
response to the Interim Interpretations indicated significant confusion
over the period of time during which the prohibition applies. FRA
explains that, because the prohibition applies only to certain off-duty
periods such as the statutory minimum off-duty period, railroads are
free to communicate with train employees and signal employees so long
as there is sufficient undisturbed time off duty to complete the
appropriate type of off-duty period. Similarly, because the prohibition
only applies to certain off-duty periods, a violation of the
prohibition does not occur unless a disruptive communication prevents
an employee from having sufficient rest to avoid excess service. For
example, if a railroad interrupted an employee's rest, but restarted
the rest period and provided a full statutory off-duty period after the
interruption before the employee was next called to report for duty,
there would be no violation, because the employee had 10 hours
uninterrupted rest between duty tours. Comments also indicated the
tension between the Interim Interpretations addressing an employee's
ability to contact the railroad and establishing a time to report
during a statutory minimum off-duty period. FRA has resolved this issue
by clearly stating that employees may call a railroad or contractor for
any purpose during rest periods required to be free from disruptive
communication, including establishing a time to report, while
preserving the longstanding interpretation that some types of
conversations are service for the railroad that would not be time off
duty.
On a related topic, comments requested that employees be able to
give advance permission to railroads to communicate during the
prohibited time, such that employees would only need to allow
communications once for all of their applicable off-duty periods.
However, railroads and contractors are only permitted to contact
employees during the prohibited times if the employee contacts the
railroad or contractor during the prohibited time and specifically
permits a return contact. Employees are not permitted to grant advance
permission for all off-duty periods; a communication from an employee
to a railroad or contractor applies only to the off-duty period in
which the communication was made. Because the prohibition applies to
``communication,'' and not phone calls specifically, the prohibition
applies to all forms of communication. However, because employees are
permitted to initiate a communication, means of providing information
that can be accessed at the employee's option, such as a railroad Web
site or messages sent to a railroad-provided phone, do not violate the
prohibition so long as employees have the option of whether or not to
check for such messages.
FRA also received several questions concerning the 276-hour monthly
limit on service for the railroad by train employees. Most of these
questions discussed FRA's note that activities that an employee has the
freedom to schedule, such as an appointment the employee makes for a
vision exam, will not count towards the 276-hour limitation. This does
not mean that time spent in such activities, which can also include
activities like optional rules refresher classes or the acquisition of
security access cards for hazardous materials facilities, no longer
commingle with time on duty. FRA clarifies that if these activities are
not separated from time on duty by a statutory minimum off-duty period,
the time spent in these activities will commingle, become time on duty,
and count toward the monthly limitation. FRA also explains that the
276-hour monthly limitation applies only to single railroads, such that
an employee who chooses to work for multiple railroads will be subject
to separate 276-hour limitations for each railroad. Finally, FRA
reiterates that merely reporting for duty is not an act of deliberately
misrepresenting availability that would make an employee subject to
individual liability for violations of the hours of service laws.
In addition to these topics, FRA also addresses several
miscellaneous issues raised by commenters. This includes a discussion
of the function-based interpretation of which employees are covered by
the hours of service laws. As has long been the case, only employees
who perform the functions described in the ``definitions'' section of
the hours of service laws, 49 U.S.C. 21101, are covered under the hours
of service laws. This may or may not include employees who are
described as ``yardmasters'' or ``mechanical employees.'' FRA also
maintains the longstanding interpretation that time spent commuting is
time off duty, and accordingly an employee may commute during the
uninterrupted rest period. One commenter asked if the statutory
exceptions to the time counted towards the monthly limitation on limbo
time apply to the requirement that an employee receive additional time
off after exceeding 12 hours of time on duty and time waiting for or in
deadhead transportation; because these exceptions explicitly state that
they only apply to the monthly limit, the exceptions do not also apply
to the additional rest requirement. Thus, an employee will still be
required to receive additional rest, even if one of the exceptions to
the monthly limitation occurred during the employee's duty tour and
that situation may have contributed to extending the duty tour which
resulted in the need for additional rest.
With respect to signal employees, FRA explains the application of
the exclusivity provision; because it applies only to signal employees,
and signal employees are covered by the ``signal employee'' provision
of the hours of service laws (including the exclusivity provision),
only an employee who is subject to FRA's hours of service laws is not
subject to the Federal Motor Carrier Safety Administration's (FMCSA)
hours of service regulations during the same duty tour as a result of
the exclusivity provision. An individual who does not work as a signal
employee during a particular duty tour may instead be subject to the
FMCSA hours of service regulations during that tour if he or she
performs functions covered by those regulations, such as driving a
commercial motor vehicle.
Finally, the Interim Interpretations are reprinted for ease of
reference. Where the interpretation has changed, the text has been
replaced with a reference to
[[Page 12413]]
where in this document the new answer can be found.
II. Background
On October 16, 2008, the Rail Safety Improvement Act of 2008 (RSIA)
was enacted. See Public Law 110-432, Div. A, 122 Stat. 4848. Section
(Sec.) 108 of the RSIA made important changes to 49 U.S.C. ch. 211,
Hours of service, as amended through October 15, 2008 (the old hours of
service laws). See 122 Stat. 4860-4866. Some of these changes became
effective immediately on the date of enactment, and others became
effective nine months later, on July 16, 2009. In particular, under
Sec. 108(g) of the RSIA, subsections (d), (e), (f), and (g) of the
section became effective on the date of enactment of the RSIA, and
subsections (a), (b), and (c) of the section became effective nine
months later, on July 16, 2009. Because of the significance of the
amendments to the old hours of service laws made by Sec. 108, on June
26, 2009, FRA published an interim statement of agency policy and
interpretation (Interim Interpretations) to address questions of
statutory interpretation that had arisen so far with respect to the
hours of service laws as amended by the RSIA (the new hours of service
laws). 74 FR 30665 (June 26, 2009). In the same document, FRA also
proposed a new interpretation of the new hours of service laws with
respect to the 24-hour period within which a train employee or signal
employee must have had the minimum statutory off-duty period before the
employee is allowed to go on duty or remain on duty (Proposed
Interpretation).
As with the Interim Interpretations, FRA is not addressing the
amendments to the old hours of service laws made by Sec. 420 of the
RSIA, which changed 49 U.S.C. 21106, Limitations on employee sleeping
quarters, effective October 16, 2008. See 76 FR 67073 (Oct. 31, 2011).
Nor is FRA presently revising either appendix A of 49 CFR part 228,
which contains FRA's previously published interpretations of the old
hours of service laws, known until the 1994 recodification as the Hours
of Service Act (see Pub. L. 103-272), nor FRA's previously published
interpretations concerning the limitations on hours of service of
individuals engaged in installing, repairing or maintaining signal
systems, an interim statement of agency policy and interpretation at 42
FR 4464 (Jan. 25, 1977). FRA plans to make conforming changes and other
changes to 49 CFR part 228, appendix A, and to previously existing
technical bulletins, in the future.
III. Changes in the Old Hours of Service Laws Made by Sec. 108 of the
RSIA
A. Extending Hours of Service Protections to Employees of Contractors
and Subcontractors to Railroads Who Perform Certain Signal-Related
Functions
Sec. 108(a) of the RSIA (Sec. 108(a)) amended the definition of
``signal employee'', to eliminate the words ``employed by a railroad
carrier''. 49 U.S.C. 21101(4). With this amendment, employees of
contractors or subcontractors to a railroad who are engaged in
installing, repairing, or maintaining signal systems (the functions
within the definition of signal employee in the old hours of service
laws) are covered by the new hours of service laws, because a signal
employee under the new hours of service laws is no longer by definition
only a railroad employee.
It should be noted that an employee of a contractor or
subcontractor to a railroad who is ``engaged in or connected with the
movement of a train'' was considered a ``train employee'' under the old
hours of service laws and continues to be considered a train employee
under the new hours of service laws. 49 U.S.C. 21101(5). Likewise, an
employee of a contractor or subcontractor to a railroad who ``by the
use of an electrical or mechanical device dispatches, reports,
transmits, receives, or delivers orders related to or affecting train
movements'' was considered a ``dispatching service employee'' under the
old hours of service laws and continues to be considered a
``dispatching service employee'' under the new hours of service laws.
49 U.S.C. 21101(2).
B. Changing Hours of Service Requirements Related to Train Employees
Sec. 108(b) amended the old hours of service requirements for train
employees in many ways, all of which amendments became effective July
16, 2009, except with respect to train employees providing commuter or
intercity passenger rail service, whom Sec. 108(d) made subject
initially to the old hours of service laws and then to regulations
promulgated by FRA if issued timely, and, if not, to the new hours of
service laws. 49 U.S.C. 21103 and 21102.\1\ Sec. 108(b) limited train
employees to 276 hours of time on-duty, awaiting or in deadhead
transportation from a duty assignment to the place of final release, or
in any other mandatory service for the carrier per calendar month. 49
U.S.C. 21103(a)(1). The provision retained the existing maximum of 12
consecutive hours on duty, but increased the minimum off-duty period to
10 consecutive hours during the prior 24-hour period. 49 U.S.C.
21103(a)(2), (3).
---------------------------------------------------------------------------
\1\ FRA has promulgated regulations effective October 15, 2011
establishing hours of service requirements for train employees
providing commuter or intercity passenger rail service. 76 FR 50360
(August 12, 2011).
---------------------------------------------------------------------------
Sec. 108(b) also required that after an employee initiates an on-
duty period each day for six consecutive days, the employee must
receive at least 48 consecutive hours off duty at the employee's home
terminal, during which the employee is unavailable for any service for
any railroad; except that if the sixth on-duty period ends at a
location other than the home terminal, the employee may initiate an on-
duty period for a seventh consecutive day in order to reach the
employee's home terminal, but must then receive at least 72 consecutive
hours off duty at the employee's home terminal, during which time the
employee is unavailable for any service for any railroad. 49 U.S.C.
21103(a)(4).
Sec. 108(b) further provided that employees may also initiate an
on-duty period for a seventh consecutive day and must then receive 72
consecutive hours off duty if, for a period of 18 months after the
enactment of the RSIA, such schedules are expressly provided for in an
existing collective bargaining agreement, or after that 18-month period
has ended, such schedules are expressly provided for by a collective
bargaining agreement entered into during that period, or a pilot
program that is either authorized by collective bargaining agreement,
or related to work rest cycles under the hours of service laws at 49
U.S.C. 21108 (Sec. 21108). 49 U.S.C. 21103(a)(4).
Sec. 108(b) also provided that the Secretary may waive the
requirements of 48 and 72 consecutive hours off duty if the procedures
of 49 U.S.C. 20103 are followed (i.e., essentially, if public notice
and an opportunity for an oral presentation are provided prior to
issuing the waiver), if a collective bargaining agreement provides a
different arrangement that the Secretary determines is in the public
interest and consistent with safety. Id.
Sec. 108(b) also significantly changed the old hours of service
requirements for train employees by establishing for the first time a
limitation on the amount of time an employee may spend awaiting and in
deadhead transportation. 49 U.S.C. 21103(c)(1). In particular, it
provided that a railroad may not require or allow an employee to exceed
40 hours per month awaiting and in
[[Page 12414]]
deadhead transportation from duty that is neither time on duty nor time
off duty from the July 16, 2009 effective date of the provision through
October 15, 2009,\2\ with that number decreasing to 30 hours per
employee per month beginning October 16, 2009, except in certain
situations. These monthly limits do not apply if the train carrying the
employee is directly delayed by casualty, accident, act of God,
derailment, major equipment failure that keeps the train from moving
forward, or other delay from unforeseeable cause. 49 U.S.C.
21103(c)(2). Railroads are required to report to the Secretary all
instances in which these limitations are exceeded. 49 U.S.C.
21103(c)(3). See also 49 CFR 228.19. In addition, the railroad is
required to provide the train employee with additional time off duty
equal to the amount that the combination of the total time on duty and
time spent awaiting or in transportation to final release exceeds 12
hours for a particular duty tour. 49 U.S.C. 21103(c)(4).
---------------------------------------------------------------------------
\2\ The language of Sec. 108(b) must be read in conjunction with
the language of Sec. 108(g), which provides that Sec. 108(b) becomes
effective on July 16, 2009.
---------------------------------------------------------------------------
Finally, Sec. 108(b) restricted railroads' communication with their
train employees, except in case of emergency, during the minimum
statutory 10-hour off-duty period, statutory periods of interim
release, and periods of additional rest required equal to the amount
that combined on-duty time and time awaiting or in transportation to
final release exceeds 12 hours. 49 U.S.C. 21103(e). Further, the
Secretary may waive this provision for train employees of commuter or
intercity passenger railroads if the Secretary determines that a waiver
would not reduce safety and is necessary to efficiency and on time
performance. Id. However, because train employees of commuter and
intercity passenger railroads are no longer subject to the statutory
hours of service limitations, such waivers are no longer applicable to
these employees.
As was alluded to earlier, Sec. 108(d) provided that the
requirements described above for train employees did not go into effect
on July 16, 2009, for train employees of commuter and intercity
passenger railroads. 49 U.S.C. 21102(c). Sec. 108(d) provided the
Secretary with the authority to issue hours of service rules and orders
applicable to these train employees, which may be different than the
statute applied to other train employees. 49 U.S.C. 21109(b). Sec.
108(d) further provided that these train employees who provide commuter
or intercity passenger rail service would continue to be governed by
the old hours of service laws (as they existed immediately prior to the
enactment of the RSIA) until the effective date of regulations
promulgated by the Secretary. 49 U.S.C. 21102(c). If no new regulations
had been promulgated before October 16, 2011, the provisions of Sec.
108(b) would have been extended to these employees at that time. Id.
Such regulations have since been timely promulgated, 76 FR 50360
(August 12, 2011), to be codified at 49 CFR part 228, subpart F, with
an effective date of October 15, 2011. Accordingly, the hours of
service of train employees who provide commuter and intercity passenger
rail service are not governed by the statutory hours of service laws at
49 U.S.C. 21103, but by those regulations.
C. Changing Hours of Service Requirements Related to Signal Employees
Sec. 108(c) amended the hours of service requirements for signal
employees in a number of ways. 49 U.S.C. 21104. As was noted above, by
amending the definition of ``signal employee,'' Sec. 108(a) extended
the reach of the substantive requirements of Sec. 108(c) to a
contractor or subcontractor to a railroad carrier and its officers and
agents. 49 U.S.C. 21101(4). In addition, as Sec. 108(b) did for train
employees, Sec. 108(c) retained for signal employees the existing
maximum of 12 consecutive hours on duty, but increased the minimum off-
duty period to 10 consecutive hours during the prior 24-hour period. 49
U.S.C. 21104(a)(1), (2). Further, Sec. 108(c) deleted the prohibition
in the old hours of service laws at 49 U.S.C. 21104(a)(2)(C) against
requiring or allowing a signal employee to remain or go on duty ``after
that employee has been on duty a total of 12 hours during a 24-hour
period, or after the end of that 24-hour period, whichever occurs
first, until that employee has had at least 8 consecutive hours off
duty.''
Sec. 108(c) also eliminated language in the old hours of service
laws stating that the last hour of signal employee's return from final
trouble call was time off duty, and defined ``emergency situations'' in
which the new hours of service laws permit signal employees to work
additional hours to exclude routine repairs, maintenance, or
inspection. 49 U.S.C. 21104(b), (c).
Sec. 108(c) also contained language virtually identical to that in
Sec. 108(b) for train employees, prohibiting railroad communication
with signal employees during off-duty periods except for in an
emergency situation. 49 U.S.C. 21104(d).
Finally, Sec. 108(c) provided that the hours of service, duty
hours, and rest periods of signal employees are governed exclusively by
the new hours of service laws, and that signal employees operating
motor vehicles are not subject to other hours of service, duty hours,
or rest period rules besides FRA's. 49 U.S.C. 21104(e).
The requirements of the old hours of service laws for dispatching
service employees (49 U.S.C. 21105) were not modified by the RSIA.
IV. Response to Public Comments on FRA's Proposed Interpretation and
Interim Interpretations
FRA received 62 sets of comments addressing either the proposed
interpretation or the Interim Interpretations, or both, from the
representatives of a total of nine organizations and from 45
individuals, with some individuals and organizations filing multiple
sets of comments. The groups that submitted comments were as follows:
the American Public Transportation Association (APTA); the Association
of American Railroads (AAR); the Brotherhood of Railroad Signalmen
(BRS); the Brotherhood of Locomotive Engineers and Trainmen (BLET); the
United Transportation Union (UTU); the Nevada and Georgia State
Legislative Boards of the BLET; and the Tennessee and Nebraska State
boards of the UTU.
A. FRA's Decision To Retain its Longstanding ``Fresh Start''
Interpretation and Not To Adopt the Proposed ``Continuous Lookback''
Interpretation
In the Federal Register document that included the Interim
Interpretations, FRA proposed a new interpretation of what constitutes
``during the prior 24 hours'' for the purposes of the prohibition
against requiring or permitting a train employee or a signal employee
to remain on duty without having had a certain minimum number of
consecutive hours off duty during the prior 24 hours. This prohibition
is currently found in 49 U.S.C. 21103(a)(3) and 21104(a)(2) (Sec.
21103(a)(3) and 21104(a)(2)).
Under FRA's current ``fresh start'' interpretation of this
prohibition, ``the prior 24 hours'' end when an employee reports for a
new duty tour. At the instant that the employee reports for duty, FRA
looks back at the single 24-hour period before the employee reported
for duty to see that the employee had at least 10 consecutive hours off
following the prior duty
[[Page 12415]]
assignment. If so, then the employee may be required or permitted to
work a maximum of 12 consecutive hours or a total of 12 hours, in
broken service, in the next 24 hours, and must get 10 hours off either
after working that 12 hours or at the end of the 24-hour period that
began when the employee went on duty, whichever occurs first, before
the employee is allowed to go on duty again. If an employee had a duty
tour involving broken service, including an interim release of at least
4 hours, but less than the 10 hours required for a statutory minimum
off-duty period, between two periods of service within the same duty
tour, some or all of the employee's eventual statutory minimum off-duty
period would come after the 24-hour period that began when the employee
reported for duty. The following example illustrates the application of
FRA's current, ``fresh start'' interpretation of ``the prior 24
hours'':
An employee reports for duty at 10 a.m. on a Monday. If
the employee had had 10 consecutive hours off duty at any time
between 10 a.m. on the preceding day (Sunday) to 10 a.m. on that
Monday, FRA would consider the employee as having had the minimum
off-duty period during ``prior 24 hours'' because the ``prior 24
hours'' is defined as the 24 hours prior to the employee's act of
reporting for duty. The employee would then be permitted to remain
on duty for up to 12 hours in the following 24 hours, such that the
employee must no longer accrue time on duty after 10 a.m. on
Tuesday.
Conversely, under the Proposed Interpretation (which takes the
``continuous lookback'' approach to identifying the statutory minimum
off-duty period during ``the prior 24 hours''), the statutory minimum
off-duty period would have to be within each of the floating 24-hour
periods not only starting when an employee begins a new duty tour, but
also during the employee's duty tour, and ending when the employee is
relieved from duty, meaning that upon reporting for duty, the employee
would have a maximum of 14 hours within which to work a maximum of 12
hours, before the employee would be required to be finally released to
have a statutory minimum off-duty period.
The following two examples illustrate the application of the
proposed ``continuous lookback'' interpretation.
1. If an employee is off duty from 1 a.m. Monday until 11 a.m.
on Monday and then reports for duty at 11 a.m. and works until 11
p.m. on Monday, the 10-hour statutory minimum off-duty period is
within the prior 24 hours from any moment while the employee is on
duty, up to the time of the employee's final release at 11 p.m. on
Monday.
2. However, if the same employee, who was off duty from 1 a.m.
Monday until 11 a.m. on Monday and went on duty at 11 a.m. on
Monday, then worked for 6 hours and had an interim release from 5
p.m. until 11 p.m. on Monday before returning to duty from 11 p.m.
and worked for six more hours until being finally released at 5 a.m.
on Tuesday, the employee's time on duty after 1 a.m. on Tuesday
would violate the statute because the required full statutory off-
duty period would not be within the 24 hours prior to any moment
after 1 a.m. on Tuesday). In other words, in this scenario, the
employee must no longer accrue time on duty after 1 a.m. on Tuesday.
In discussing the Proposed Interpretation, FRA stated that the
``fresh start'' interpretation of the law (the interpretation issued
more than 30 years prior to the enactment of RSIA, at 42 FR 4464, Jan.
25, 1977, which has remained FRA's interpretation since that time) may
no longer be consistent with the plain language of the statute. By the
terms of the statute as amended by the RSIA, a railroad may not require
or allow a train employee to ``remain or go on duty unless that
employee has had at least 10 consecutive hours off duty during the
prior 24 hours.'' As explained above, under the ``fresh start''
interpretation, a new 24-hour period begins when an employee reports
for duty after having had at least the minimum required off-duty period
of 10 consecutive hours, and the 24-hour period within which the
employee is required to have had the required off-duty period is a
single, static prior period, looking only at the 24-hour period prior
to when the employee goes on duty for the first time in the new duty
tour. Accordingly, when determining if an employee may continue on duty
(``remain on duty'') after any point in time later in the duty tour,
FRA would not look to find the required 10-hour rest period within the
24 hours prior to that later point in time; instead, FRA would look for
the required rest period only during the single 24-hour period
immediately prior to the initiation of the duty tour. The RSIA added 49
U.S.C. 21103(e) and 21104(d), which prohibit communication with train
employees and signal employees respectively during the 10 hour
statutory minimum off-duty period. (FRA's interpretations of these
provisions are discussed in Sections IV.C and V.A of this document.)
Under the ``fresh start'' approach, since the statutory minimum off-
duty period must simply be found in the 24 hours prior to the employee
reporting for duty, an employee whose off-duty period was longer than
10 hours could be subject to unlimited communication once the employee
had received the required 10 hours uninterrupted, which would reduce or
eliminate the benefits of the requirement of an uninterrupted rest
period.
By contrast, under the Proposed Interpretation, FRA would instead
look for a statutory rest period that is within each 24-hour period
prior to any moment during the employee's duty tour. This Proposed
Interpretation is referred to as ``continuous lookback'' or the
```continuous lookback' approach.'' This approach would require the
uninterrupted 10 hours to be closer to the time that the employee
reports for a new duty tour, so that it could still be found within the
24-hour period at any point in the new duty tour.
Reaction to this Proposed Interpretation largely favors rejecting
it, with BRS, BLET, UTU, AAR, and APTA lined up on one side opposing
the proposal and several individuals and two State boards of rail labor
unions on the other side supporting the proposal. Of the commenters
that favor the proposed ``continuous lookback approach,'' a substantial
number express concern over a railroad practice of repeatedly calling
an employee as soon as he or she has met the threshold for minimum
hours off duty, even though that employee has a scheduled assignment
well afterwards. In so doing, commenters contend the practice prevents
an employee from being able to rest immediately prior to his or her
assignment and thereby increases that employee's fatigue while
performing his or her duties. These commenters uniformly hope that the
``continuous lookback'' approach would increase the train employees'
and signal employees' opportunity for rest by giving them at least 10
hours of notice prior to beginning an on-duty period and, therefore,
enabling them to schedule their rest accordingly, though FRA believes
this is unlikely to be the case for the reasons discussed below.
Comments that oppose the ``continuous lookback'' interpretation are
summarized in turn, by commenter. BRS expresses several concerns.
First, BRS argues that the ``continuous lookback'' is overly complex,
in that a signal employee may no longer simply look for a rest period
ending within the 24 hours prior to starting a new duty tour. Second,
BRS argues that because the ``continuous lookback'' approach would
limit signal employees to working within a period of 14 hours after the
completion of their required off-duty period, within which to
accumulate up to the maximum of 12
[[Page 12416]]
hours on duty, the interpretation would substantially limit the ability
of signal employees to work after their scheduled hours, including
response to trouble calls or on rest days. Finally, BRS asserts that
the interpretation prevents the ``emergency'' provision of the statute
(49 U.S.C. 21104(c) (Sec. 21104(c)), i.e., permission to work up to 4
additional hours within the 24-hour period, which was unchanged by the
RSIA, from being effective.
Another commenter, AAR, argues that the option of taking the
``continuous lookback'' approach has been foreclosed through
Congressional inaction in the face of FRA's longstanding
interpretation. Next, AAR echoes the BRS's argument regarding the
emergency provision in 49 U.S.C. 21104(c). Further, AAR claims that,
because the ``continuous lookback'' approach would limit the number of
hours available to an employee in which to accumulate time on duty
before the statutory off-duty period is required, the approach would
prohibit employees from working as many hours as they are permitted
under the current ``fresh start'' interpretation, which would harm both
management and employees in a number of ways. For example, AAR
expresses concern that call times \3\ of greater than 2 hours and less
than 10 hours, would prevent an employee from working a full 12 hours,
and that increasing call times to 10 hours to avoid this problem would
lead to unacceptable train delays. AAR also points out that the
decreased period available for employees to accrue time on duty would
limit the railroads' ability to make use of periods of interim release
within a duty tour, which could mean that employees would more often
instead have to spend a statutory off-duty period at an away-from-home
terminal. Likewise, if the ``continuous lookback'' interpretation were
extended to passenger railroads, AAR noted that the time available to
work would be significantly reduced for passenger railroad employees
working split-shifts, such that this common scheduling practice would
not be possible in many circumstances. Finally, AAR discusses how a
``continuous lookback'' approach would make current practices, such as
setting back calls (either through a call-and-release or an early
release) or calling a large number of employees to find one willing to
take an earlier assignment, such as when an employee marks off sick,
infeasible.
---------------------------------------------------------------------------
\3\ ``Call time'' is the amount of prior notice that an employee
receives from the railroad concerning when he or she must next
report to duty. The minimum necessary call time is usually the
subject of collective bargaining.
---------------------------------------------------------------------------
BLET and UTU submitted a joint comment arguing that the
``continuous lookback'' approach would negatively affect both safety
and the financial well-being of employees. Because the Proposed
Interpretation would include call times in the 14-hour period following
10 hours of rest, BLET and UTU argue that railroads would be given an
incentive to minimize call times and thereby reduce an employee's
ability to schedule his or her rest. Employees would stand to lose
substantial earning potential, BLET and UTU assert, because the maximum
number of hours the employees may work would be limited to effectively
less than the 12 consecutive or aggregate hours authorized by the
statute, especially when taking into consideration call times, and the
possible use of periods of interim release. The unions also assert that
the ``continuous lookback'' approach does not resolve the problem that
they see with railroads continually calling employees who have regular
times to report for duty. Finally, BLET and UTU echo the concerns
expressed by BRS and AAR that the ``continuous lookback'' approach
would be too difficult to administer, both in terms of compliance and
enforcement.
APTA's comment agrees with the views expressed by BRS, AAR, BLET
and UTU discussed above, arguing that the ``fresh start''
interpretation is now the only valid interpretation due to
Congressional inaction, and repeating the argument that Sec. 21104(c),
which deals with emergencies, would be voided by the ``continuous
lookback'' approach.
Commenters in favor of the ``continuous lookback'' approach note
that an employee can be more rested if that individual has the
information to know when he or she will next be expected to report for
duty. The hope of these commenters is that the ``continuous lookback''
approach would induce railroad carriers to provide employees with a 10-
hour call time and therefore allow those employees to appropriately
plan their rest so that they are rested immediately prior to the coming
on-duty period. However, in light of the comments received from AAR,
APTA, BLET, and UTU, FRA is deeply concerned that railroads would
instead shorten call times as much as practicable in order to maintain
flexibility in scheduling crews in spite of the ``continuous
lookback.'' Shortened call times would leave employees in the same
informational deficit as presently exists, but with even less of an
opportunity to engage in strategic napping to mitigate fatigue. This
outcome would result in more fatigue for railroad workers, and is
therefore inconsistent with Congress's clear goal of improving railroad
safety by reducing fatigue among railroad employees.
Several commenters in favor of the ``continuous lookback'' further
suggest that FRA act to prohibit railroad carriers from making optional
duty calls to employees who do not wish to accept an assignment other
than their regularly-scheduled assignment. That idea would require FRA
to promulgate a new regulation, and is therefore outside the scope of
FRA's present effort to interpret the text of the statute as most
recently amended by the RSIA.
As was discussed above, commenters also highlighted a number of
implementation issues in the potential use of the ``continuous
lookback'' interpretation. While these difficulties are not
insurmountable, they are nonetheless important to consider. FRA has an
interest in keeping the burden of complying with the hours of service
laws as low as possible while achieving the safety goals mandated by
Congress. Given the uncertain effect of the ``continuous lookback'' on
railroad safety, FRA believes it is not currently reasonable to impose
such a significant burden on the regulated community.
In addition, minor changes to the statute over time also
demonstrate Congress's acceptance of FRA's ``fresh start''
interpretation. In the 1978 amendments to the Hours of Service Act,
Congress added a definition of the ``24 hour period'' within which a
signal employee may work. The statute explicitly defined the period as
beginning ``when an individual reports for duty immediately after he
has had at least eight consecutive hours off duty.'' Federal Railroad
Safety Authorization Act of 1978, Public Law 95-578, 92 Stat. 2459
(Nov. 2, 1978). The amendment adding the language was referred to in
the relevant committee report as ``principally * * * technical
amendments which would have the effect of making the statute more
certain of application.'' H.R. Rep. No. 95-1176, at 8 (1978), reprinted
in 1978 U.S.C.C.A.N. 5499, 5505. This addition reflects Congressional
approval of FRA's pre-existing interpretation of a parallel provision
in the section applicable to train employees, then codified at 45
U.S.C. 62, to apply in a similar manner. This language was stripped
from the statute in the RSIA. This change is best understood as a
reflection of Congress's judgment that the paragraph was redundant
given the 1994
[[Page 12417]]
recodification's increased symmetry between the ``train employee''
section, now codified at 49 U.S.C. 21103, and the ``signal employee''
section, now codified at 49 U.S.C. 21104. The plain language continues
to be ambiguous on the question of within which period the required
rest time may be found. In light of FRA's longstanding and consistent
construction of the hours of service laws as requiring rest at some
point in the 24 hours prior to initiating an on-duty period, leaving
that ambiguity intact signals Congressional approval for FRA's
interpretation. Additionally, nothing in the legislative history of the
RSIA reflects an intent to upset the existing interpretation, and the
``fresh start'' interpretation remains a reasonable reading of the
plain language of the statute.
FRA has decided that these arguments against the ``continuous
lookback'' approach discussed above merit remaining with the current
``fresh start'' interpretation. At this time, it appears from the
comments that the effect of a ``continuous lookback'' on safety may
well be to increase fatigue. The proposed interpretation is therefore
less consistent with the goals of Congress in enacting the original
Hours of Service Act, subsequent amendments, recodification, and the
RSIA amendments to increase railroad safety by reducing fatigue.
Additionally, small changes to the statute support the position that
Congress has given its imprimatur to FRA's existing ``fresh start''
interpretation. Finally, implementation of the ``continuous lookback''
at this time would be so difficult as to make the interpretation
unjustified in light of its speculative safety benefits. For all of
these reasons, FRA concludes that under the current circumstances, its
longstanding interpretation of ``the prior 24 hours'' as a reference to
a 24-hour period prior to reporting for duty, the ``fresh start''
interpretation, remains the most reasonable reading of the statute, and
thus FRA will keep that interpretation in place.
B. Questions Regarding the ``Consecutive-Days'' Limitations for Train
Employees and Requirement of 48 or 72 Hours Off Duty at the Home
Terminal
1. What constitutes a ``Day'' for the purpose of sec. 21103(a)(4)?
In general, Sec. 21103(a)(4) prohibits a railroad from requiring or
allowing a train employee to go on duty or remain on duty after an
employee has ``initiated an on-duty period each day for * * * six
consecutive days'' until the employee has had 48 hours at his or her
home terminal unavailable for any service for any railroad carrier. In
limited circumstances, the employee is instead allowed to work seven
consecutive days, but must then have 72 hours at the employee's home
terminal unavailable for any service for any railroad carrier before
going on duty as a train employee. Id. As presented, the word ``day''
is sufficiently ambiguous that the statute is unclear as to whether
this requirement for extended rest (48 consecutive hours) is triggered
by initiating an on-duty period on six consecutive calendar days or six
consecutive 24-hour periods. In the Interim Interpretation IV.B.1,\4\
FRA stated that ``[a]lthough arguments could be made for either
interpretation of this language, FRA interprets this provision as
related to initiating an on-duty period on 6 or 7 consecutive calendar
days.''
---------------------------------------------------------------------------
\4\ 74 FR 30665, 30673 (June 26, 2009).
---------------------------------------------------------------------------
In consideration of the comments received on this Interim
Interpretation, the nature of the railroad industry, and additional
fatigue considerations that have become more apparent with the
implementation of this Interim Interpretation, FRA has determined that
the negative consequences flowing from defining ``day'' as a calendar
day for the purpose of Sec. 21103(a)(4) overcome the minor
administrative benefits noted by FRA in the Interim Interpretation.
Accordingly, for the reasons described below, effective May 29, 2012,
FRA will construe ``day'' in this section to refer to a 24-hour period.
Specifically, FRA will view the statutory ``day'' to be the 24-hour
period that ends when the employee is finally released from duty and
begins his or her statutory minimum off-duty period; any new initiation
of an on-duty period at any point during the 24-hour period following
the employee's prior final release will have been initiated on a day
consecutive to the prior duty tour, which will continue the series of
consecutive days. On the other hand, if the employee does not initiate
an on-duty period during the 24-hour period following the employee's
prior release, then that 24-hour period breaks the consecutiveness of
the days in the series.
As described above, the statutory provision requires that, when an
employee ``has initiated an on-duty period each day for * * * 6
consecutive days,'' that employee must have 48 hours of time off duty,
with some exceptions allowing for a seventh consecutive day. FRA's
Interim Interpretation of the provision established the period that
would constitute a day for purposes of determining whether an on-duty
period had been initiated on consecutive days as synchronized with the
calendar day, such that each statutory day would begin and end at
midnight. Having eliminated this reference point, FRA considered two
options for reference points for the beginning and ending of a 24-hour
day as related to an employee's duty tour and statutory minimum off-
duty period: Either (1) having the day begin at the initiation of the
employee's duty tour or (2) having the day end at the conclusion of the
employee's duty tour.
The implication of the choice lies in what it means for initiations
of on-duty periods to be ``consecutive'' with one another. In the
former possible definition (where the day begins with the initiation of
an on-duty period), the next consecutive day would begin 24 hours after
the employee's initiation, and continue for another 24 hours, such that
an employee's duty tours would be deemed ``consecutive'' whenever the
initiations of the respective on-duty tours were separated by less than
48 hours (regardless of how much of the period was time on duty, time
off duty, or time that is neither on duty nor off duty (i.e., limbo
time)). By contrast, in the latter possible definition (where the day
ends with the employee's final release and the conclusion of the duty
tour), the next consecutive day would begin at the employee's final
release and continue for another 24 hours, such that an employee's duty
tours would have been initiated on consecutive days when the initiation
of an on-duty period is less than 24 hours from the employee's prior
final release from duty.
FRA believes both of these understandings of a 24-hour day to be
reasonable understandings of what ``day'' means in this context. In
choosing between the two definitions, FRA noted that the amount of time
necessary to end a series of consecutive days if the day began with the
initiation of an on-duty period would be highly variable. In
particular, the length of time not on duty that would be required to
break a series of consecutive days would range from 47 hours and 59
minutes to 24 hours (depending on the length of the prior duty tour),
with the peculiar result that the amount of off-duty time necessary to
end the series would decrease as the prior duty tour length increased.
Although the end of the consecutive day would be fixed as soon as an
employee returned to work as 48 hours later, the variable length of
time not initiating an on-duty period that would be required to avoid
continuing the series of consecutive days, which
[[Page 12418]]
would not be known until the duty tour ended, would likely lead to
employee confusion as to the application of the laws. If the day
instead ends with the employee's final release, a period of 24 hours
not on duty is always both necessary and sufficient to end the series
of consecutive days, providing some level of administrative efficiency
while avoiding the negative consequences that result from the use of a
calendar day, that were discussed in comments on the interim definition
of ``day'' as a calendar day.
The vast majority of commenters, including the BLET and UTU in
their joint comment, argue against the ``calendar day'' interpretation
as inconsistent with existing railroad practice and harmful to railroad
workers who will be unable to work previously acceptable schedules,
and, as a result, they will earn less money.\5\ BLET and UTU argue that
a 24-hour period of time off duty should be considered a break in the
count of consecutive days, due to ``the severe effects that will flow
from the current interim interpretation.''
---------------------------------------------------------------------------
\5\ In contrast, in a separate comment, the Georgia State
Legislative Board of BLET favored the ``calendar day''
interpretation, though its comment does not provide any additional
detail beyond its statement of support.
---------------------------------------------------------------------------
The economic effects of the Interim Interpretation are discussed in
detail in a comment submitted by an individual, which includes a
schedule of trains for one crew in Needles, CA. The schedule appears to
demonstrate that an individual working on a regular pool job may lose
as much as $1,140 in an average month by operation of the ``calendar
day'' interpretation, though this chart does not take into account the
new requirement of having 10 hours of uninterrupted rest, rather than 8
hours of rest, as was the requirement prior to the RSIA. In addition,
many individual commenters note that railroads grant personal leave
``days'' as a 24-hour block of time, rather than a calendar day. Other
commenters note that a ``day'' can refer to any continuous 24-hour
period. Another commenter describes how railroad carriers can adjust
call times slightly so that an on-duty period is not initiated until
the next calendar day, thus breaking the string of consecutive days, in
order to prevent employees from being required to have the mandatory
rest. Commenters also express concern about how the ``calendar day''
interpretation impacts employees whose service falls on two calendar
days, such that they have initiated an on-duty period on one calendar
day, while performing substantial service on the next calendar day, in
which they may not initiate an on-duty period, which would end the
string of consecutive days.
The comments, as well as FRA's oversight of compliance with the
hours of service laws since the RSIA's effective date, also raise
fatigue concerns with the ``calendar day'' interpretation. Railroads,
as well as some train employees, may seek to maximize employees'
availability to perform service by scheduling such that the employee
never reaches the point of having initiated an on-duty period on six
consecutive days, and, therefore, 48 hours of time off duty is never
required. In some cases, such practices can limit cumulative fatigue by
allowing employees to have significant amounts of time off prior to
reaching six consecutive days initiating an on-duty period. In some
cases, however, the calendar day interpretation allows for a break in
the series of consecutive days by shifting an employee's initiation of
an on-duty period relatively slightly. For example, if an employee
would normally be available for service at 11 p.m., and had not
previously initiated an on-duty period on that calendar day, a railroad
may rationally decide that it is in its interest to delay calling that
employee to report for duty, allowing that employee to report for duty
at least an hour later, so that the employee does not initiate an on-
duty period on that calendar day, thereby restarting the count of
consecutive days before that employee is required to have 48 hours of
time off duty.
Because the statutory text clearly refers to the ``initiation'' of
an on-duty period rather than the breadth of an on-duty period, it is
possible for an employee to be within a duty tour for the majority of a
calendar day and yet not have initiated an on-duty period on that
calendar day. For instance, an employee who initiates an on-duty period
on Monday evening at 11:15 p.m., is on duty for 12 hours, and then has
a 2-hour deadhead to final release would be finally released at 1:15
p.m. on Tuesday afternoon. With a statutory minimum off-duty period of
12 hours (as a result of the additional rest required by Sec.
21103(c)(4)), such an employee could lawfully next initiate an on-duty
period no earlier than 1:15 a.m. on Wednesday. Despite spending the
majority of Tuesday in a duty tour for the railroad, this employee
would be deemed to have broken his or her series of consecutive days,
and could lawfully initiate a duty tour on at least another six
consecutive days before being provided with the required 48 hours of
time off duty. This consequence is all the more pernicious when
considering that the transition from one calendar day to the next
occurs overnight, when individuals are generally at the greatest risk
for fatigue. The result is that the ``calendar day'' interpretation of
Sec. 21103(a)(4) as presently written would provide the greatest
latitude for minor changes in an employee's report for duty time to
dramatically reduce the required rest for precisely those employees who
are at the greatest risk for fatigue. While FRA continues to believe
that defining ``day'' as ``calendar day'' remains reasonable in the
abstract, these fatigue concerns, in addition to the issues described
above, lead FRA to conclude that defining ``day'' as the 24-hour period
measured from the time of the employee's prior final release is not
only reasonable but preferable.
Finally, FRA notes that the ``24-hour day'' interpretation of Sec.
21103(a)(4) described above is distinct from the recently issued final
rule governing the hours of service for train employees providing
intercity and commuter passenger rail transportation (passenger train
employees). 76 FR 50360 (August 12, 2011). The cumulative fatigue
limitations for passenger train employees are explicitly defined such
that the relevant series of days are ``consecutive calendar days.'' 49
CFR 228.405(a)(3). This distinction is appropriate given the different
structure of passenger and freight rail transportation as well as the
specific characteristics of the passenger train employees' hours of
service regulation. Passenger rail transportation tends to have more
regular schedules than freight rail transportation, with many passenger
train employees working during the day for five to six days a week. FRA
would also expect that passenger trains would be less susceptible to
having their schedules adjusted on an ad-hoc basis in a way that would
affect the application of the regulation to a specific employee with
respect to a consecutive-day limitation. Additionally, the structure of
the passenger train employees' hours of service regulation provides
additional rest requirements for employees working in the transition
from one calendar day to the next. Any duty tour including time on duty
between 8 p.m. and 4 a.m. is considered a Type 2 assignment, which
requires a more stringent limitation on the number of days within a
series on which an on-duty period may be initiated, unless the schedule
is analyzed using a biomathematical model of performance and fatigue
and is thereby shown not to present an unacceptable level of risk for
fatigue, and the schedule otherwise meets the criteria to be a Type 1
[[Page 12419]]
assignment. In addition, any duty tour including time on duty between
midnight and 4 a.m. is categorically a Type 2 assignment. Therefore,
assignments that cover a period of time spanning two calendar days will
be subject to the additional limitations of Type 2 assignments. These
factors made the use of calendar days appropriate in the overall
regulatory scheme for passenger train employees' hours of service, but
do not favor the reading of ``day'' to mean calendar day in the
statutory provision applicable to freight rail transportation.
2. What ``Work'' may an employee do on a seventh consecutive day under
sec. 21103(a)(4)(A)?
The statute provides that a train employee may ``work a seventh
consecutive day'' under certain limited circumstances, and requires
that employee to have 72 hours off duty at the employee's home terminal
before returning to duty after ``working'' the seventh day. In Interim
Interpretation IV.B.3,\6\ FRA asserted that Congress's choice of a
different word (``work''), rather than continuing to use the ``initiate
an on-duty period'' construction, implied a different meaning for that
word, so that if an employee did not initiate an on-duty period, but
performed other service for the carrier on the seventh consecutive day,
after six consecutive days of initiating an on-duty period, the string
of consecutive days would not have been broken, and the employee would
be required to have the 72 hours off duty that would be required after
seven consecutive days. In response to comments received on this
Interim Interpretation, and in consideration of the confusion caused by
this interpretation, FRA now interprets ``works'' in Sec.
21103(a)(4)(A)(ii) to be synonymous with ``initiates an on-duty
period.''
---------------------------------------------------------------------------
\6\ 74 FR 30665, 30673-74 (June 26, 2009).
---------------------------------------------------------------------------
The BLET and UTU joint comment argues against the Interim
Interpretation that considered ``work'' as a different word with a
different meaning. The unions assert that, because time spent
deadheading from a duty assignment to the point of final release is
neither time on duty nor time off duty, FRA's including such
deadheading in the definition of ``work'' is inconsistent with the
clear statutory provision, at 49 U.S.C. 21103(b)(4) (unchanged by the
RSIA) defining ``time spent in deadhead transportation from a duty
assignment to the place of final release'' as ``neither time on duty
nor time off duty.'' Thus, BLET and UTU contend that if the only
service an employee performs on the seventh consecutive day is
deadheading, separate from any covered service, the string of
consecutive days should be broken, just as it would if the deadhead
transportation had occurred on the sixth consecutive day \7\ or any
other day in the sequence of consecutive days. The comment also notes
FRA's admission of construction problems in other portions of the
statute.\8\ Finally, the comment claims that this interpretation leads
to absurd results when combined with Interim Interpretation IV.B.6,\9\
which allows rest at an away-from-home terminal to break
consecutiveness and thereby require only 48 hours of rest after a
deadhead home. The Georgia Legislative Board of the BLET concurs,
arguing that such deadheading should categorically not be counted as a
``day'' for the purpose of this section.
---------------------------------------------------------------------------
\7\ BLET and UTU point out that FRA acknowledged this outcome on
the sixth consecutive day in the interim interpretations. 74 FR
30665, 30673 (June 26, 2009).
\8\ Specifically, the comment refers to the fact that the
language of the statute would not allow an employee to be deadheaded
back to his or her home terminal, if that employee had exceeded the
276-hour monthly cap in 49 U.S.C. 21103(a)(1), which includes time
spent awaiting and in deadhead transportation from a duty assignment
to the place of final release.
\9\ 74 FR 30665, 30674 (June 26, 2009).
---------------------------------------------------------------------------
Despite the interpretive canon that statutes should be construed
with attention to Congress's choice to use different words in the same
statute, FRA concludes, for the reasons described in this section, that
to ``work'' and to ``be on duty'' are sufficiently related concepts to
infer that Congress chose the former over the latter out of stylistic
preference (to avoid repetitive language) and not to adjust the
substantive scope of the provision. This reading of the text preserves
the parallelism between Sec. 21103(a)(4)(A)(i) and subsection (a)(4)
generally, in that subsection (a)(4)(A)(i) allows an employee to
``work'' a seventh consecutive day notwithstanding subsection
(a)(4)(A)'s rest requirement after initiating an ``on duty period'' for
the prior six consecutive days. This interpretation of the text is also
supported by FRA's interest in avoiding a needlessly complex reading of
the statute. FRA notes that there has been confusion among railroads
and employees, about the fact that under the Interim Interpretation,
deadheads were treated differently on different days.
3. Does a day spent deadheading, with no other covered service
performed on that day, constitute an ``Initiation of an On-Duty
Period'' for the purposes of sec. 21103(a)(4)?
In order for an employee to be required to have 48 consecutive
hours off duty at the employee's home terminal, that employee must
first have initiated an on-duty period each day for six consecutive
days. Several commenters express concerns over how this language will
be interpreted with regard to days on which the only service performed
for the carrier is deadhead transportation. Because such time is not
time on duty, it cannot be considered the ``initiation of an on-duty
period'' and therefore does not independently count toward the
continuation of a series of consecutive days.
The statute defines two types of deadheading relating to time on
duty as a train employee. In Sec. 21103(b)(4), the hours of service
laws establish that time spent in deadhead transportation to a duty
assignment, i.e. a ``deadhead to duty,'' is time on duty, but that
deadhead transportation from a duty assignment to the place of final
release, i.e., ``deadhead from duty,'' is neither time on duty nor time
off duty. However, because these definitions are only in reference to
determining time on duty, the statute is silent about a third type of
deadheading, where the deadhead transportation is separated from any
covered service by at least a statutory minimum off-duty period both
prior to and following the deadhead transportation. Such ``stand-alone
deadheads'' are not time on duty as an employee in such a deadhead is
not engaged in or connected with the movement of a train, nor is the
time spent in such deadhead transportation within the same 24-hour
period as other covered service with which it could commingle.
The Nebraska State Legislative Board of the UTU argues that FRA's
understanding of deadheading as not ``initiating an on-duty period''
for the purpose of Sec. 21103(a)(4) is inconsistent with the intent of
the RSIA, and therefore should be replaced by a regulation that
classifies all deadheading as time on duty and therefore prevents a
railroad from deadheading an employee to break the contiguousness of
workdays. Individuals commenting on the matter agree, arguing that
permitting deadheading to interrupt the counting of consecutive days
will allow railroads to strategically use deadheading to prevent train
employees from having a day off; however, the promulgation of new
[[Page 12420]]
regulations is outside the scope of this interpretation.
The lone commenter speaking to the issue and arguing against
considering deadheading to count as initiating an on-duty period, the
Georgia State Legislative Board of the BLET notes that the definition
of ``time on duty'' in the statute categorically excludes deadheading
to a place of final release, and therefore would preclude FRA from
considering deadheading that is the only service performed on a given
day to count as initiating an ``on-duty period.''
FRA will continue to apply its longstanding interpretation of
deadheading that commingles with a period of covered service, which is
consistent with the language of the statute at 49 U.S.C. 21103(b)(4).
If an employee deadheads to duty at the beginning of a duty tour, time
spent in the deadhead is time on duty, and therefore the beginning time
of the deadhead to duty constitutes the initiation of an on-duty period
for the purposes of Sec. 21103(a)(4). In contrast, where an employee
deadheads to a point of final release as the last activity in a duty
tour, the deadhead remains neither time on duty nor time off duty.
However, because the deadhead follows other service within the duty
tour, the employee would necessarily have initiated an on-duty period
earlier that day when beginning to perform covered service or
commingled service.
In circumstances where an employee has a stand-alone deadhead,
there must necessarily be no time on duty associated with the deadhead
transportation; if there were time on duty not separated from the
deadhead by at least a statutory minimum off-duty period, the deadhead
would therefore have to be either a deadhead to duty or a deadhead from
duty. Because stand-alone deadhead transportation is most comparable to
other service outside the definition of covered service, the time spent
in stand-alone deadhead transportation will be treated as any other
non-covered service for the carrier, and therefore will not constitute
the initiation of an on-duty period under Sec. 21103(a)(4) when not
commingled with covered service. In light of FRA's interpretation in
section IV.B.2, above, such stand-alone deadheads will be treated
consistently, as breaking the continuity of the consecutive days,
regardless of the day in the string of consecutive days on which the
deadhead occurs.
4. Does the initiation of an on-duty period incident to an early
release qualify as an initiation for the purposes of sec. 21103(a)(4)?
Yes. The statute provides (unchanged by the RSIA) that ``[t]ime on
duty begins when the employee reports for duty, and ends when the
employee is finally released from duty.'' 49 U.S.C. 21103(b)(1).
Consistent with this language, longstanding FRA interpretations provide
that, if a railroad calls an employee to report to perform covered
service and the employee reports for that covered service assignment,
the act of reporting is itself time on duty. Federal Railroad
Administration, Hours of Service Interpretations, Operating Practices
Technical Bulletin OP-04-29 (Feb. 3, 2004). It follows that a train
employee who reports for duty but is then released before performing
any substantial duties is still considered to have accrued time on
duty. Accordingly, as FRA stated in the Interim Interpretation, such an
employee has ``initiated an on-duty period'' under Sec. 21103(a)(4). In
the case where an employee is released from the call to perform duty
(that is, the employee is no longer expected to report for duty at the
previously established report time) prior to the time that the employee
is scheduled to report, then the employee has not reported, regardless
of whether the employee is at the location to which he or she was
called to report, and, if the employee has not performed any covered
service, the employee will not have accrued any time on duty or
initiated an on-duty period.\10\ FRA sees nothing in the statute that
would support a change in this interpretation. As a result, an employee
who reports for duty and is immediately released has initiated an on-
duty period, and that duty tour will not end until the employee is
finally released to a statutory minimum off-duty period.
---------------------------------------------------------------------------
\10\ 74 FR 30665, 30673 (June 26, 2009).
---------------------------------------------------------------------------
The BLET and UTU joint comment notes a supposed consequence of
FRA's longstanding interpretation of the statute. On days one through
five, an employee would be considered to have initiated an on-duty
period for that day, regardless of whether the employee actually
performed covered service. On day six or seven, the comment argues, a
train employee who reports for duty to perform covered service and is
released from duty shortly thereafter would not have the opportunity to
be called to perform additional service within that 24-hour period,
because of the requirement for 48 or 72 hours of rest. The comment
implicitly raises the issue of when the 48 or 72 hours of rest would
begin for employees who have an early release after initiating an on-
duty period on their sixth or seventh consecutive day.
The unions seek an interpretive rule that would not further limit a
train employee's availability under the law to work, on the grounds
that such extended rest is not warranted due to the minimal amount of
time spent on duty on the sixth consecutive day. The unions argue, as
does the Georgia State Legislative Board of BLET, that it is
``manifestly unjust'' for a train employee to be forced into the 48 or
72 hours of mandatory rest after an on-duty period lasting only
minutes. Instead, they hope for FRA to interpret ``initiate an on-duty
period'' not to include a small period of duty time. The joint BLET/UTU
comment notes that in these situations, ``little if any covered service
is actually performed, except, perhaps, for a limited amount of
administrative duties.''
The unions are correct that the language of Sec. 21103(a)(4) could
be read to prohibit a railroad from requiring or allowing an employee
to return to work after an early release on his or her sixth
consecutive day of initiating an on-duty period, unless the employee
has had 48 consecutive hours off duty unavailable for any service for
any railroad carrier. If FRA were to take a very literal reading of
Sec. 21103(a)(4), then if a train employee is immediately released
after initiating an on-duty period for a sixth consecutive day, the
train employee would not be allowed to return to duty until the 48-hour
rest requirement had been fulfilled. FRA believes that this is
obviously not the proper reading of the statute.
As was noted above, Sec. 21103(b)(1), which defines time on duty
generally, provides that ``[t]ime on duty * * * ends when the employee
is finally released from duty.'' (Emphasis added.) In addition, Sec.
21103(a)(4)(A)(i) allows an employee to ``work a seventh consecutive
day if that employee completed his or her final period of on-duty time
on his or her sixth consecutive day at a terminal other than his or her
home terminal.'' This would not be possible if the 48 hours off duty
were required immediately after the initiation of an on-duty period on
the sixth consecutive day. The plain language of the statute clearly
permits an employee to perform service on his or her sixth consecutive
day, demonstrating that the very literal interpretation is flawed. As
demonstrated by Congress's treatment of the provision, the other
statutory
[[Page 12421]]
language, and the interpretation of all commenters, the restriction of
Sec. 21103(a)(4) does not apply until the employee is finally released
from duty; that is, an employee may continue to perform covered service
until the end of the relevant duty tour, including any periods of
interim release (because, during an interim release, the employee is
not ``finally'' released from duty). Having established when the
extended-rest requirement is activated, an employee subject to an early
release may return to work without violating Sec. 21103(a)(4) so long
as he or she has not ``finally'' been released from duty. If the
employee returns to work, whether in a single period of time on duty or
after an interim release period, that employee has not been ``finally''
released from duty and, therefore, is not yet subject to the extended-
rest requirement. When the employee is finally released from duty, the
employee must be given the statutory minimum off-duty period (normally,
10 consecutive hours) as well as the extended-rest period, both of
which will begin to run concurrently.\11\
---------------------------------------------------------------------------
\11\ In a separate future publication in which FRA adopts
several new interim interpretations and requests comment on the new
interim interpretations, FRA plans to include a more detailed
discussion of the idea of that multiple required off-duty periods
run concurrently as opposed to consecutively.
---------------------------------------------------------------------------
With respect to the request for an exception for employees who
perform little covered service after reporting for duty, these
employees will continue to be considered to have initiated an on-duty
period, even if they did not perform any substantial amount of covered
service within that period. Time on duty begins when an employee
reports for duty; therefore, when an employee reports for a covered
service assignment as a train employee, he or she has reported for
duty, thus initiating an on-duty period, even if he or she does not
perform any additional covered service in that on-duty period.
Accordingly, the amount of covered service performed within the period
is irrelevant for determining whether the employee initiated an on-duty
period.
5. If an employee is called for duty but does not work, has the
employee initiated an on-duty period? If there is a call and release?
What if the employee has reported?
As discussed above, an employee only initiates an on-duty period if
the employee accrues time on duty. As such, if the employee is called
for duty but does not report, such as if the employee is released prior
to the report time in a call and release, the employee has not
initiated an on-duty period. However, if the employee has reported for
duty, the employee has accrued time on duty and therefore has initiated
an on-duty period.
6. Does an employee's performance of ``Other Mandatory Activity for the
Carrier'' that is not covered service ever count as the initiation of
an on-duty period under sec. 21103(a)(4)?
Yes, but only if the non-covered service commingles with covered
service. In Interim Interpretation IV.B.4, FRA asked the question,
``Does Attendance at a Mandatory Rules Class or Other Mandatory
Activity That Is Not Covered Service But Is Non-Covered Service, Count
as Initiating an On-Duty Period on a Day?'' FRA answered that question
in the negative, but did note if this non-covered service were to
commingle with covered service (meaning it was not separated from
covered service by a statutory minimum off-duty period) then initiation
of the non-covered service activity would qualify as initiation of an
on-duty period, because the commingled service, in this case, becomes
time on duty.\12\
---------------------------------------------------------------------------
\12\ 74 FR 30665, 30674 (June 26, 2009).
---------------------------------------------------------------------------
The Nebraska State Legislative Board of the UTU expresses concern
that, by not counting as a ``day'' attendance at mandatory rules
classes or other similar mandatory activity that is non-covered service
for the purposes of determining whether a train employee initiated an
on-duty period, train employees may be required to participate in a
rules class for several hours and then immediately be pressed into 12
hours of covered service.
The above-described scenario is not an implication of not counting
``other mandatory activity'' as ``initiating an on-duty period'' under
Sec. 21103(a)(4), and is not permissible under the hours of service
laws, neither as they existed before the RSIA, nor as amended by the
RSIA. The commenter appears to be under the impression that, by not
treating non-covered service as an ``initiation'' for the purposes of
Sec. 21103(a)(4), that implies that time spent in non-covered service
does not commingle with covered service if not separated from it by at
least a statutory minimum off-duty period; however, this is not the
case. As stated in the Interim Interpretations, the commingling of
covered and non-covered service continues to function as it did prior
to the RSIA. This interpretation, that attendance at a rules class, or
other non-covered service may break a string of consecutive days, will
only apply if an employee has a statutory minimum off-duty period
between the non-covered service and the covered service both preceding
and following it, meaning that there is no covered service to commingle
with the non-covered service; in such a situation, the non-covered
service would not constitute the initiation of an on-duty period
because no ``time on duty,'' as defined in Sec. 21103(b), was incurred.
However, when there is not a statutory minimum off-duty period between
non-covered service and covered service, the non-covered service
commingles and is time on duty that can be considered as an initiation
of an on-duty period.
7. How much rest must an employee have after initiating an on-duty
period for six consecutive days, if permitted to do so for seven
consecutive days by sec. 21103(a)(4)(B)?
As a general rule, Sec. 21103(a)(4) allows a train employee to
initiate an on-duty period on only six consecutive days. However, Sec.
21103(a)(4)(B) (Subparagraph (B)) allows an employee to initiate an on-
duty period on a seventh consecutive day under limited circumstances as
provided in clauses (i) through (iii) of Subparagraph (B). The
structure of the statute does not make it readily apparent to some
readers how Subparagraph (B) interacts with Sec. 21103(a)(4)(A)
(Subparagraph (A)). FRA reads these subparagraphs to apply jointly, so
that a train employee who is permitted to initiate on-duty periods on 7
consecutive days must have 48 hours of time unavailable for any service
for any railroad carrier if that employee instead initiates on-duty
periods on only 6 consecutive days.
One commenter expresses concern over the interaction between
Subparagraphs (A) and (B). He argues that employees who meet one of the
conditions in Subparagraph (B)(i)-(iii) are exempt from Subparagraph
(A) and, therefore, may work six consecutive days without being
required to receive 48 hours off.
Congress did not specifically indicate whether Subparagraph (B) is
intended to be an additional rule alongside Subparagraph (A), or
instead is a replacement for Subparagraph (A) when Subparagraph (B) is
applicable. The comment asserts that, because Subparagraph (B) does not
specifically apply Subparagraph (A) to those employees who are
permitted to initiate an on-duty period on a seventh consecutive day,
the two were intended to be construed as distinct alternative regimes.
The statute does, however, contain some language suggesting both
provisions should apply in parallel. In addition, nothing in the
legislative
[[Page 12422]]
history demonstrates an intention for Subparagraph (B) to trump
Subparagraph (A), and policy considerations support the application of
both subparagraphs to individuals.
Had Congress intended for Subparagraph (B) to be an exception from
Subparagraph (A), the effect of Subparagraph (B) could be to allow
employees to initiate six consecutive on-duty periods without requiring
a 48-hour mandatory rest period (sometimes referred to as a ``6/1
schedule''), as well as allowing those employees to work a seventh
consecutive day with a longer mandatory rest period to follow before
returning to train service as provided by the statute. Congress
specifically included a separate waiver process in Sec. 21103(a)(4),
suggesting that Subparagraph (B) should be read as something other than
an exemption from the general rule of Subparagraph (A), and in some
instances FRA has used this waiver authority to allow employees to
initiate an on-duty period on six consecutive days followed by one day
free of initiation of an on-duty period. In addition, the introductory
clause of Subparagraph (B) (``except as provided in subparagraph (A)'')
contemplates both paragraphs applying to individual employees, by
allowing some individuals to initiate a seventh consecutive day despite
not meeting the requirements of Subparagraph (B). The clause would not
be necessary if the statute were structured with Subparagraphs (A) and
(B) as mutually exclusive.
The paragraph structure of the statute could instead be viewed as a
basis for reading their ``or'' disjunction as exclusive, meaning that
only one subparagraph or the other could apply to a single employee,
but not both, but this argument is unpersuasive. While there may have
been more straightforward ways of structuring the requirements of
Subsection (a)(4), the structure is consistent with the style of
Subsection (a) of Sec. 21103 as a whole. While Subparagraphs (A) and
(B) (in Section 21103(a)(4)) are certainly more complicated than
Subsection (a)(1)(A) through (C), the logical arrangement of the
disjunction is the same. In both, related statements are split into
multiple subparagraphs, joined by the word ``or.'' It is readily
apparent that the types of service listed in Subsection (a)(1)(A)
through (C) are not mutually exclusive; for instance, counting time on
duty as part of the 276-hour limit does not prevent also counting time
waiting for deadhead transportation as part of that limit.
Subparagraphs (A) and (B), despite their additional complexity, should
be read similarly. This understanding is furthered by stripping the
separate paragraphs of their designations and then combining their text
into the one extremely long sentence that they comprise. That sentence
reads, in relevant part, ``a railroad carrier * * * may not require or
allow a train employee to * * * remain or go on duty after that
employee has initiated an on-duty period each day for 6 consecutive
days, unless that employee has had at least 48 consecutive hours off
duty * * * or, except as provided in subparagraph (A), 7 consecutive
days, unless that employee has had at least 72 consecutive hours off
duty * * *.'' When read in context, the clauses lend themselves to an
inclusive disjunction (including one of the subparagraphs, the other,
or both) rather than exclusive disjunction (either one of the
subparagraphs or the other, but not both), indicating that both clauses
may apply to a single individual.
Considering all of these factors, the most reasonable reading of
the statute is that Sec. 21103(a)(4)(A) continues to apply to a train
employee who is permitted to initiate seven consecutive on-duty periods
by Sec. 21103(a)(4)(B). Therefore, any train employee who initiates six
consecutive on-duty periods will be required to have had at least 48
hours unavailable for any service for any railroad carrier at the
employee's home terminal before being allowed to go on duty again as a
train employee, though a train employee in certain circumstances is
permitted to initiate a seventh consecutive on-duty period and
afterwards must have 72 hours unavailable for any service for any
railroad carrier at the employee's home terminal before returning to
duty as a train employee.
8. How are initiations of on-duty periods for multiple railroad
carriers treated under sec. 21103(a)(4)?
Prior to the RSIA, the hours of service laws did not restrict, in
any way, an employee's activities during periods of off-duty time.
Thus, FRA did not have the statutory authority to penalize either a
railroad, or an employee, if an employee worked at a second job during
his or her statutory off-duty period. The employee was not required
under the hours of service laws to report time spent in the second job
to the railroad, regardless of whether the second job was for another
railroad, or outside the railroad industry, and the railroad was only
responsible for ensuring that the employee did not perform service for
the railroad during the required statutory off-duty period. FRA
recommended legislative amendments to address situations of dual
employment, but they were not adopted.\13\
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\13\ On April 1, 1998, the Secretary submitted to the 105th
Congress proposed legislation entitled the Federal Railroad Safety
Authorization Act of 1998, which included provisions that would
amend the hours of service laws to address train, signal, and
dispatching service employees employed by more than one railroad.
The legislation was introduced by request in the House of
Representatives on May 7, 1998 as H.R. 3805 and in the Senate as S.
2063 on May 12, 1998, and was not adopted. On July 26, 1999, the
Secretary submitted to the 106th Congress proposed legislation
entitled the Federal Railroad Safety Authorization Act of 1999,
which also included provisions on such dual employment. This
legislation was never introduced and lapsed at the end of that
Congress.
---------------------------------------------------------------------------
The RSIA did not change the application of the hours of service
laws to employees working for multiple railroads, except as to the
provision that it added to the statute requiring an extended off-duty
period of 48 hours after an employee has initiated an on-duty period
for six consecutive days. Section 21103(a)(4) specifies that during the
48- or 72-hour off-duty period at the employee's home terminal, ``the
employee is unavailable for any service for any railroad carrier.'' The
language indicating that the employee must be unavailable for any
service for any railroad carrier was not added to any of the other
periods of off-duty time provided for in the statute.
AAR, in its comment, requests that FRA clarify the hours of service
reporting and recordkeeping obligations as to service performed for
other railroads, arguing that only service performed for other
railroads during the extended rest period required by Sec. 21103(a)(4)
needs to be reported. In addition, one individual commenter asks
whether an employee will be required to provide information to each
railroad for which he or she performs service, regarding consecutive
days of covered service or service towards the 276-hour monthly
limitation. Another individual commenter asks if a train employee may
indefinitely work a schedule of five days for one railroad carrier and
two days for a different railroad carrier.
With respect to the reporting and recordkeeping requirements for
service for other railroads, FRA disagrees with AAR's statement that
information on service for other railroads is ``irrelevant from the
perspective of railroad compliance with the hours-of-service
requirements.'' The hours of service laws impose duties directly on
railroad carriers and their officers and agents; ``a railroad carrier
and its officers and agents may not require or allow a train employee''
to go or remain on duty in the circumstances stated in the statute
[[Page 12423]]
and unless the stated conditions are met. Sec. 21103(a). In order to
comply with the hours of service laws, a railroad must inquire of each
of its train employees as whether he or she has performed any service
for any other railroad, during any 48 or 72 hours between the
employee's final release from the duty tour triggering the rest
requirement and the next time the employee reports for duty as a train
employee.
If a railroad does not seek to collect information from its
employees indicating when they perform service for other railroad
carriers, that railroad will be unable to fulfill its obligation not to
require or allow an employee who has initiated on-duty periods on six
or seven consecutive days to remain or go on duty without the 48 or 72
hours free of any service for any railroad. Therefore, as indicated in
the Interim Interpretations, ``[i]t will be the responsibility of the
railroad to require employees to report any service for another
railroad. It will be the responsibility of the employee to report to
inform each railroad for which the employee works of its service for
another railroad.'' \14\
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\14\ 74 FR 30665, 30674 (June 26, 2009).
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With regard to the question of whether employees will be required
to provide information to each railroad for which they perform service,
regarding consecutive days of covered service or service counted toward
the 276-hour monthly limitation, as FRA stated in the Interim
Interpretation, ``[t]he employee will be required to record service for
Railroad A on the hours of service record for Railroad B, and vice
versa.'' \15\
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\15\ Id.
---------------------------------------------------------------------------
However, as also indicated in the Interim Interpretations, FRA will
only consider enforcement action for excess service where service for
another railroad is performed during the 48 or 72 hours off duty that
an employee must receive after initiating an on-duty period each day
for six or seven consecutive days, because the hours of service laws do
not address service for another carrier during the other required off-
duty periods.\16\ For this reason, when an employee chooses of his or
her own volition to perform covered service as a train employee for
multiple railroads, the only time the service for the second railroad
will be relevant to the first (and vice versa) will be when that
employee reaches six or seven consecutive days of initiating an on-duty
period for one railroad.
---------------------------------------------------------------------------
\16\ Id.
---------------------------------------------------------------------------
Therefore, an employee would not need to provide a cumulative total
of time spent on multiple railroads for the purpose of compliance with
the 276-hour monthly limitation. Likewise, an employee whose schedule
required him to work five days followed by two days off could choose to
work for another railroad during the two days off, because the employee
had not yet initiated an on-duty period on six consecutive days, which
would require a period of 48 hours during which the employee is
unavailable for any service for any railroad carrier. Because the
statute does not address employees working for multiple railroads,
except during the required extended-rest period of 48 hours, it would
not prohibit an employee's choice to work for a second railroad during
off duty periods prior to triggering the extended rest requirement.
Finally, it should be noted that the statutory provision on hours
of service civil penalties (49 U.S.C. 21303(a)(1)) provides that ``[a]n
act by an individual that causes a railroad carrier to be in violation
is a violation.'' An employee of Railroad A who works for Railroad B as
a train employee during the required 48- or 72-hour rest period and who
then goes on duty as a train employee for Railroad A causes Railroad A
to be in violation of Sec. 21103(a)(4) and is individually liable for
causing the violation by Railroad A and therefore subject to
enforcement actions, including disqualification from safety-sensitive
service if the violation is found to demonstrate that the individual is
unfit for such service. See 49 CFR part 209, appendix A. If the
employee willfully caused the railroad to be in violation, the employee
would be subject to liability for a civil penalty. 49 U.S.C. 21304.
Additionally, an employee may be held individually liable for willful
failures to maintain accurate hours of service records under 49 CFR
228.9 and 228.11, including records documenting service for multiple
railroads.
9. Does an employee ``Deliberately Misrepresent His or Her
Availability'' simply by reporting for duty on a consecutive day in
violation of sec. 21103(a)(4)?
In the Interim Interpretations, FRA states that, in general, an
employee will not face enforcement action from FRA for accepting a call
to report for duty when the employee knows he or she is close to the
276-hour monthly limitation on service and may not have sufficient time
remaining to complete the assignment or duty tour. This enforcement
policy does not apply, however, where there is ``evidence that the
employee deliberately misrepresented his or her availability.'' \17\ In
its comment, AAR asks that FRA hold employees jointly responsible for
violating the hours of service laws when accepting a call to report in
excess of the ``consecutive-days'' limitations. FRA declines to adopt
AAR's proposal.
---------------------------------------------------------------------------
\17\ 74 FR 30665, 30675 (June 26, 2009).
---------------------------------------------------------------------------
Given that FRA's enforcement policy with regard to its hours of
service recordkeeping regulations allows railroads to keep data related
to the limitations on consecutive days, monthly service, and limbo time
in a separate administrative ledger, rather than tracking the
information daily on the record for each individual duty tour,
railroads are in the best position to know whether or not an employee
may report for duty. In addition, an employee who refused to report for
duty when called to do so could be subjected to discipline by the
railroad, if, for example, the employee incorrectly calculated or
misunderstood the application of the provision to his or her current
sequence of consecutive days, and believed that the statute prohibited
the employee from reporting for duty. Furthermore, while the penalty
provision of the hours of service laws provides for individual
liability in violations of the hours of service laws, the substantive
restrictions operate on ``a railroad carrier and its officers and
agents.'' Employees have the obligation to provide accurate information
to railroads regarding their service, and FRA will consider action as
appropriate under the agency's Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws, 49 CFR part 209,
appendix A, when employees fail to meet this obligation. Nonetheless,
simply reporting for duty is insufficient to demonstrate that an
employee ``deliberately misrepresented his or her availability.''
C. Questions Regarding the Prohibition on Communication by the Railroad
With Train Employees and Signal Employees
In addition to increasing the statutory minimum off-duty period for
train employees and signal employees to 10 hours, the RSIA requires
that those 10 hours be uninterrupted by communication from the railroad
by telephone, pager, or in any other way that could reasonably be
expected to disrupt the employee's rest, except to notify an employee
of an emergency situation. 49 U.S.C. 21103(e) (Sec. 21103(e)); 49
U.S.C. 21104(d) (Sec. 21104(d)). This requirement also applies to the
interim releases of train employees. In addition, when a train
[[Page 12424]]
employee's statutory minimum off-duty period is longer than 10 hours as
a result of time on duty and limbo time in excess of 12 hours, the
additional time off duty is also subject to the prohibition.
1. Does the prohibition protect employees from any communication for
the entirety of the off-duty period?
A number of comments express concern that, despite the new
requirement that the statutory minimum off-duty periods for train
employees and signal employees, and any period of interim release for
train employees, must be free from communication likely to disturb
rest, railroads may persist in repeatedly contacting the employee and
disrupting the employee's rest.
The statute establishes that time off duty only qualifies as a
statutory minimum off-duty period or period of interim release when the
required minimum time is undisturbed. Because the statute does not
require the statutory minimum off-duty period or interim release to be
so designated in advance, the result is that an employee needs only 10
hours or more of time off duty and undisturbed by railroad
communications at any point in the 24 hours prior to reporting for duty
in order to be in compliance with the hours of service laws.
Accordingly, a railroad may communicate with the employee at times
between the end of the statutory minimum off-duty period and the
initiation of the employee's on-duty period without violating the hours
of service laws. FRA is aware that such practices may contribute to
employee fatigue, and expects railroads to exercise discretion when
contacting employees in this intermediate period. The RSIA provided FRA
with limited regulatory authority, which FRA may consider exercising if
substantial scientific evidence demonstrates that such communication is
posing an unacceptable risk to railroad safety from employee
fatigue.\18\
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\18\ As will be discussed below, a railroad may contact an
employee in certain limited circumstances even during the portion of
an off-duty period that is required to be undisturbed.
---------------------------------------------------------------------------
2. Is it a violation for a railroad to intentionally call an employee
to delay that employee's ability to report for duty?
No, provided that the employee at some point has at least a
statutory minimum off-duty period that is free from communication,
before being required to report for duty. So long as an employee
receives a statutory minimum off-duty period in the 24 hours prior to
reporting for duty, communications outside of that period do not
violate the prohibition on communication. Accordingly, it is not a
violation for a railroad to contact an employee during other periods,
as discussed above. The BLET and UTU joint comment argues that
intentionally calling an employee in order to disrupt his or her off-
duty period and require a new period to start violates Sec. 21103(e).
As discussed above, only the statutory minimum off-duty period and
periods of interim release for train employees are required to be
uninterrupted by communications likely to disturb rest. Because the
statutory minimum off-duty period does not need to be designated as
such, the hours of service laws are not violated by these types of
calls. For example, if an employee is called 8 hours after being
released from duty, the statute will not be violated, but the employee
must be provided 10 or more hours off duty (depending on the minimum
statutory off duty period required for the employee) without such
communication, beginning at the time the contact ended, to successfully
complete a statutory off duty period and prevent any future activity
for the railroad from commingling with the previous duty tour . If
situations arise in which employees believe that a railroad is
intentionally contacting an employee so that the employee's rest will
have to be restarted (which restart delays the employee's eligibility
to report for duty, increases the required off-duty period, and
decreases the employee's income), such issues are a matter to be
resolved between railroads and their employees through other
mechanisms. So long as the rest period is restarted and the employee
has 10 hours of uninterrupted rest before being called to report for
duty, there is no violation of the statute.
3. For what purposes may an employee contact a railroad during the
uninterrupted rest period?
In the Interim Interpretations, FRA stated that employees may
choose to contact the railroad during the uninterrupted rest period,
but that the railroad may only respond to the issues raised by the
employee. However, FRA also flatly stated that railroads may not
contact employees to delay an employee's assignment, with no reference
to the preceding exception.\19\ In their joint comment, BLET and UTU
ask FRA to resolve the apparent contradiction between these two
interpretations.
---------------------------------------------------------------------------
\19\ 74 FR 30665, 30672 (June 26, 2009).
---------------------------------------------------------------------------
FRA recognizes that the prohibition extends to communication by the
railroad, not to communication by the employee. Therefore, FRA
concludes that an employee may contact a railroad about any issue,
including issues related to establishing or delaying a time for the
employee to report, without the communication from the employee
interrupting the rest period. In addition, a railroad may return the
employee's call, if requested to do so by the employee, for the
employee's convenience and to prevent the employee having to make
repeated phone calls; these calls also do not interrupt the employee's
rest period. However, any return phone call made by the railroad must
be limited to the terms established by the employee. For example, an
employee may indicate when he or she wishes to be called back (such as,
within the next hour, or, in 6 hours, if the employee were planning to
go to sleep and preferred to have the return call after waking up).
Further, absent an emergency, the return call must be limited to the
subject of the employee's call. For example, if an employee calls
during the statutory minimum off-duty period to schedule a vacation
day, the railroad returns that call, and the railroad raises an issue
not discussed by the employee, such as establishing a report for duty
time, the employee's rest period has been interrupted, and the employee
must have a new statutory minimum off-duty period in order to separate
any subsequent service from the prior duty tour.
Additionally, the time spent in calls that do not interrupt the
off-duty period as described above will not be time off duty and may
commingle with a prior or subsequent duty tour if the content of the
call is service for the railroad carrier. For instance, a call from an
employee discussing the circumstances of the on-duty injury of one of
his or her crewmembers is considered service for the railroad carrier,
and therefore is service that is not time off duty and may commingle
with a prior or subsequent duty tour. See Federal Railroad
Administration, Hours of Service Interpretations, Operating Practices
Technical Bulletin OP-04-29 (Feb. 3, 2004). To avoid having the time
spent on the call commingling and therefore becoming time on duty, the
employee must have a statutory minimum off-duty period between the call
and any time on duty.
FRA has historically recognized that some types of communication
between a railroad and an employee are ``at the behest of the
railroad'' and are therefore properly considered to be service for the
carrier that is not time off duty. In recognition of the realities of
railroad
[[Page 12425]]
operations and the desirability of maximizing the employee's ability to
know his or her next reporting time and therefore that employee's
ability to plan his or her rest during the off-duty period, FRA has
also provided an exception from this general rule for calls to
establish or delay an employee's time to report. In enforcing the new
prohibition on communication by the railroad with train employees and
signal employees during certain of their off-duty periods, FRA will
continue to abide by this longstanding interpretation, if the calls are
initiated by the employee, and any call made by the railroad is in
return of a call made by the employee, as requested by the employee and
limited to the terms of the employee's request. While the establishment
of a time to report for duty is service, FRA will extend its prior
interpretation so that such communications are permitted and do not
interrupt an off-duty period when the calls are initiated by the
employee, and any call made by the railroad is in return of a call made
by the employee, as requested by the employee and limited to the terms
of the employee's request. As a result, employees may call a railroad
during their statutory minimum off-duty period to establish or delay a
time to report, and railroads may return these calls, if an employee
requests a return call and the return call is limited to any terms
established by the employee as to the time and the content of the call,
and that contact will not be considered to have interrupted the rest
period or to require that it be restarted, provided that the time at
which the employee is required to report is after the required period
of uninterrupted rest.
This interpretation, which FRA has articulated in part and
communicated in correspondence already, allows employees to have
greater predictability as to when they will go to work, and a greater
opportunity to plan their off-duty time to obtain adequate rest and
handle other personal tasks and activities. Employees are able to take
assignments when their statutory minimum off-duty period will have been
completed at or prior to the report time, even if they would not have
been fully rested at the time of the call to report. Conversely, in
some cases, employees may be able to schedule themselves for an
assignment that will allow them some additional time off duty to obtain
additional rest or attend to personal activities. However, this
interpretation should not be read as allowing any railroad to adopt a
policy that requires employees to call the railroad, or requires
employees to grant the railroad permission to call the employee during
the statutory off-duty period. Employees who do not call the railroad,
and do not choose to receive communication from the railroad, during
the period of uninterrupted rest, must not be called by the railroad to
establish a report time until after 10 hours of uninterrupted rest, and
the employee must not be disciplined or otherwise penalized for that
decision.
FRA is aware that, having provided employees with an avenue for
receiving information relating to their time to report during their
statutory minimum off-duty period, there may be instances where a
railroad, or an individual railroad manager, may seek to require that
the employee contact the railroad during his or her statutory off-duty
period to obtain the employee's next assignment. In circumstances where
a railroad discriminates against an employee for refusing to violate a
railroad safety law by failing to report after a disruption of rest
caused the employee to not have a statutory minimum off-duty period,
that action could constitute a violation of 49 U.S.C. 20109, enforced
by the U.S. Department of Labor. Where credible evidence indicates that
a railroad disrupted an employee's statutory minimum off-duty period
without the employee having initiated the communication and requested a
return call and yet allowed the employee to report, without restarting
the rest period and providing the required uninterrupted rest, FRA will
consider appropriate enforcement action. FRA expects that railroads
will not attempt to coerce employees into authorizing communications
that disrupted an employee's rest. Where evidence shows that a railroad
made prohibited communications to an employee, because the employee did
not initiate the communication, FRA may consider appropriate
enforcement action under 49 U.S.C. 21103 and 21104. Employees must
report unauthorized communications as an activity on their hours of
service record for the duty tour following the communication. 49 CFR
228.11(b)(9).
4. May the railroad return an employee's communication during the rest
period without violating the prohibition on communication?
As discussed above in section IV.C.3, the railroad may return an
employee's communication during the rest period without violating the
prohibition on communication, so long as the return communication is
authorized by the employee and on the same topic as the employee's
communication.
5. May the railroad call to alert an employee to a delay (set back) or
displacement?
As discussed above in section IV.C.3, the railroad may only
communicate with an employee if it is in reply to a communication from
the employee, is authorized by the employee, and is on the same topic
as the employee's communication. Accordingly, the railroad may only
call to alert an employee to a delay (set back) or displacement if the
employee previously communicated with the railroad on that issue during
the rest period and authorized a return communication.
6. May an employee provide advance permission for railroad
communications?
The BLET and UTU joint comment, as well as an individual commenter,
ask if FRA will permit an employee to preemptively grant his or her
employing railroad the authorization to contact the employee on certain
matters. As was discussed in the previous response, employees may
contact a railroad for any purpose, including establishing a time to
report, and the railroad may return a call initiated by the employee,
if the employee requests a return call, subject to the conditions
discussed above. Because communication by the railroad is only allowed
in response to specific communication initiated by the employee, an
employee may not consent in advance to communication from the railroad.
It is important to note, however, that if a railroad communicates
with an employee when not requested to do so by the employee, or
discusses with the employee matters beyond the subject of the
employee's initial call, the employee's rest period has been disturbed,
but it is not necessarily a violation of the statute. If an
unauthorized communication is made, railroads have the option of
providing a new statutory minimum off-duty period to avoid violating
the statute.
Additionally, railroads are not required under the statute to
communicate with their employees during the period of uninterrupted
rest. If a railroad concludes that it is too burdensome to determine in
each instance the specific times within which an employee has requested
a return call, and any limitations on the subject matter of the call,
that railroad may decide simply not to contact any train employees or
signal employees during their statutory minimum off-duty periods or
periods of interim release.
[[Page 12426]]
7. Does the prohibition on communication apply to the extended rest
required after 6 or more consecutive days initiating an on-duty period?
No. The statute is clear that the prohibition applies only to the
statutory minimum off-duty period for signal employees and train
employees as well as to interim releases and additional time off duty
required by subsection (c)(4) for train employees. While one commenter
requests that FRA extend the prohibition to the extended rest required
by Sec. 21103(a)(4), FRA is unable to do so through the interpretation
of the statute, because the statutory language itself specifically
identifies those periods of rest when the railroad must not communicate
with an employee in a way that could reasonably be expected to disrupt
the employee's rest, and the 48- and 72-hour extended-rest periods are
not included within the prohibition.
8. Does the prohibition on communication apply differently to forms of
communication other than phone calls?
No. The prohibition on communication applies equally to any form of
communication, including but not limited to phone calls, emails, text
messages, voicemail, leaving a message at a hotel, or messages placed
under the door of a hotel room by hotel staff.
9. May the railroad provide information that can be accessed at the
employee's option?
Yes. FRA encourages provision of information that can be accessed
at the employee's option, especially in the case of unscheduled or
uncertain assignments, so that the employee can plan rest.
Because the alerts provided by most devices when an email or text
message is received might reasonably be expected to disturb an employee
who may be trying to obtain rest, such communications are generally
prohibited communications. However, where the device in question is
railroad-provided, such that it is only used for railroad business,
employees have the option of turning the device off without impeding
their ability to receive personal messages that they would want to
receive even during rest. Therefore, the provision of information by
text message or email to such a device is not a prohibited
communication. Likewise, a railroad-provided Web site that the employee
may voluntarily access could provide similar information. However, the
employee may not be required to receive any communication of any sort,
to access information of any kind, or to respond in any way to the
information provided.
D. Questions Regarding the 276-Hour Monthly Limit on Service for the
Railroad by Train Employees
BLET and UTU request clarification on the 276-hour limit on time
spent on duty, waiting for or in deadhead transportation to the place
of final release, or in any other mandatory service for the railroad
during a calendar month. The comment notes FRA's discussion of the
issue in Section IV.C.6 of the Interim Interpretations, in which FRA
stated that completing hazardous materials records is a task that falls
within the category of ``other mandatory service for the carrier[.]''
\20\ The unions request clarification that all Federal recordkeeping
requirements are considered ``other mandatory service'' and, therefore,
will be counted towards an employee's 276-hour limitation for each
month. FRA confirms that if an employee has the duty to carry out a
Federal recordkeeping requirement applicable to a railroad, action by
the employee to carry out the requirement is to be considered ``other
mandatory service'' and, therefore, will be counted towards the
employee's 276-hour limitation for each month. In the Interim
Interpretations, FRA provided the act of completing a record on the
transfer of hazardous material, as required by Transportation Security
Administration regulations, as one example of ``other mandatory service
for a railroad carrier[.]'' This example is simply illustrative of the
sort of activities that are included as ``other mandatory service,''
and not an exception from FRA's general interpretation.
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\20\ 74 FR 30665, 30676 (June 26, 2009).
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The BLET and UTU joint comment then asks if attendance at a rules
class can avoid being considered as other mandatory service for the
carrier if the employee is given the discretion on when to schedule and
complete the training and the railroad simply provides a deadline date
for completion of the training. FRA confirms that this arrangement is
consistent with FRA's position taken in the Interim Interpretations,
and remains FRA's interpretation: if an employee has the opportunity to
schedule such training at a time that is convenient for him or her,
then the time spent training in these circumstances would not be
counted for the purposes of the 276-hour limitation.\21\ Although
training under the given circumstances can be excluded from the 276-
hour monthly limitation, it is nonetheless service for the railroad
carrier and can commingle with covered service. As such, an employee
must communicate the beginning and ending times of such activities with
the railroad, and if a statutory off duty period does not exist between
the activity and covered service the time spent in these activities
will commingle becoming time on duty which will be included in the 276-
hour monthly limitation.
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\21\ See 74 FR 30665, 30675 (June 26, 2009).
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Another commenter, AAR, seeks clarification with respect to an
employee's responsibility to comply with the 276-hour monthly
limitation, and asks that FRA consider an employee to have
``deliberately misrepresented his or her availability'' when
``accepting a full-duty tour after completing an hours of service
record for a prior duty tour showing that the employee does not have
sufficient hours for another full duty tour.'' FRA declines to do so.
As was discussed in Section IV.B.10, above, in response to AAR's
similar comment regarding the ``consecutive-days'' limitations, given
that FRA's enforcement policy with regard to its hours of service
recordkeeping regulation allows railroads to keep ``consecutive-days''
limitation and monthly-service and limbo-time limitation data in a
separate administrative ledger, rather than tracking the data daily on
the record for each individual duty tour, railroads are in the best
position to know whether or not an employee may report to perform
service for the railroad. Additionally, while the penalty provision of
the hours of service laws provides for individual liability for
violation of the hours of service laws, the substantive restrictions
operate on ``a railroad carrier and its officers and agents.''
Employees have the obligation to provide accurate information to
railroads regarding their service, and FRA will consider action as
appropriate under the agency's Statement of Agency Policy Concerning
Enforcement of the Federal Railroad Safety Laws, 49 CFR part 209,
appendix A, when employees fail to meet this obligation. However,
simply reporting to perform service for the railroad is insufficient to
demonstrate that an employee ``deliberately misrepresented his or her
availability.''
One individual commenter asks if an individual who works for
multiple railroads will be required to total all service for all of
these railroads to calculate whether that individual has reached the
276-hour limitation. Because the hours of service laws do not restrict
an employee's choice, of his or her own volition, to perform covered
service for multiple railroad carriers
[[Page 12427]]
(with the exception of Sec. 21103(a)(4), as discussed above in the
interpretations governing that provision), the 276-hour limitation
applies only to the employee's service for each railroad. Such an
employee would not need to total all service for all of these
railroads, but instead would be subject to a separate 276-hour
limitation for each railroad for which he or she performs covered
service as a train employee. However, as discussed in Section IV.B.7
above, for the purposes of compliance with Sec. 21103(a)(4), employees
are responsible for reporting all service for any railroad carrier to
each of their railroad carrier employers. While FRA has previously
acknowledged its lack of authority to regulate employees who choose to
be employed by multiple railroads, except with regard to Sec.
21103(a)(4), FRA notes that an employee working for multiple railroads
may nonetheless be subject to an excessive risk of human factors
accidents caused by fatigue. Further, FRA does have the authority to
pursue individual liability enforcement action against individuals who
willfully fail to report all service for any railroad carrier or
individuals who perform service for any railroad carrier during the
extended rest required by Sec. 21103(a)(4).
E. Additional Issues Raised by Commenters
1. Statutory Changes
A large number of individual commenters wrote to express
displeasure with the RSIA and its changes to the previous hours of
service requirements. While FRA was granted some limited regulatory
authority to address hours of service issues, any possible future FRA
regulations, that might adjust the existing limitations or otherwise
alter the application of the new laws, are outside the scope of these
final interpretations of the existing statute.
2. Waivers
Several commenters seek waivers of the mandatory rest requirement
in Sec. 21103(a)(4) for specific subsets of the rail industry. Whatever
the merits of these waiver requests, they are beyond the scope of this
notice. Petitions for the waivers provided for in Sec. 21103(a)(4),
like petitions for waiver of FRA's safety regulations, are handled by
FRA's Railroad Safety Board. 49 U.S.C. 20103(d); 49 CFR 211.41.
3. Definition of ``Covered Service''
The BLET and UTU joint comment requests FRA consider all
``yardmaster and similar positions'' covered service. ``Covered
service'' refers to the functions performed by train employees, signal
employees, and dispatching service employees. See 49 U.S.C. 21101,
which defines these functions, and 49 CFR part 228, appendix A, which
defines covered service in reference to these functions. Regardless of
job title, an individual only performs covered service to the extent
that the individual performs a function within one of the three
statutory definitions. Therefore, FRA may not mandate that service
outside of those three functions is covered service, or that employees
with a certain job title will automatically be considered to have
performed covered service.
The BRS comment requests clarification on what constitutes covered
service for a signal employee. The comment suggests that FRA has been
interpreting the statute to apply only to signal employees who work
with ``energized conductors.'' However, this understanding is
incorrect. While a prior technical bulletin (Federal Railroad
Administration, The Federal Hours of Service Law and Signal Service,
Technical Bulletin G-00-02 (2000)) did refer to ``energized
conductors,'' it did so in the context of demonstrating types of
activities that are and are not covered service, comparing work on
those conductors to work laying cable on a new system. The sentence in
the bulletin was not exclusive, and does not indicate an interpretation
by FRA that a signal system must be ``energized'' in order for work
installing, repairing, or maintaining that system to be considered
covered service.
One individual commenter asks whether ``mechanical employees'' are
subject to the hours of service requirements. While the statute changed
the definition of ``signal employee'' to include those who are not
employees of a railroad carrier, it did not alter the scope of what
constitutes covered service that would subject an individual to the
limitations within the statute. Accordingly, if service was considered
covered service prior to the passage of the RSIA, that service remains
covered service under the new statute. Additionally, some employees
previously not subject to the hours of service laws that perform
functions considered to be signal covered service but are not employed
by a railroad carrier will now be covered by the hours of service laws.
Employees who are generally considered to be ``mechanical employees''
may perform covered service within any of the three functional
definitions, depending on the functions that the employee actually
performs. For example, a mechanical employee who performs the functions
of a hostler is subject to the hours of service limitations for train
employees in 49 U.S.C. 21103, while a mechanical employee who performs
cab signal tests is subject to the hours of service limitations for
signal employees in 49 U.S.C. 21104 (Sec. 21104).
4. Exclusivity of Signal Service Hours of Service
The BRS expresses concern that, in categorically exempting signal
employees from any hours of service rules promulgated by any Federal
authority other than FRA, Congress created a ``loophole'' allowing a
vehicle requiring a commercial driver's license to be driven by a
``signal employee'' who does not perform any covered service, with the
result that such an employee is not covered by any hours of service
limitations. The comment correctly notes that Congress did not intend
to remove such individuals entirely from non-FRA Federal hours of
service restrictions.
The solution is found within the statutory text at Sec. 21104(e),
which states that ``signal employees operating motor vehicles shall not
be subject to any hours of service rules, duty hours, or rest period
rules promulgated by any Federal authority, including the Federal Motor
Carrier Safety Administration, other than the Federal Railroad
Administration.'' (Emphasis added.) The subsection headed
``Exclusivity'' applies only to signal employees, and signal employees
are subject to the restrictions on hours of service provided in Sec.
21104(a). Therefore, the statute does not allow an individual subject
to the exemption granted at Sec. 21104(e) not to be subject to Sec.
21104(a). FRA recognizes that this application may result in some
difficulty for an employee who generally works as a signal employee
(``installing, repairing, or maintaining signal systems'') but happens
in a particular duty tour only to drive a vehicle requiring a
commercial driver's license, without performing any functions within
the definition of a ``signal employee'' in that duty tour, because such
an employee remains subject to Federal Motor Carrier Safety
Administration (FMCSA) limitations and recordkeeping requirements. Sec.
21104(a). FRA is open to working with FMCSA in the future to limit or
eliminate this overlap, but such efforts are outside the scope of this
interpretation of the statute.
5. Commuting Time
The BLET and UTU joint comment requests clarification of how FRA's
prior
[[Page 12428]]
treatment of time spent commuting will continue in light of changes to
the statute. FRA allows a 30-minute period for commuting at the away-
from-home terminal, from an employee's point of final release to
railroad-provided lodging, that will not be considered a deadhead, but
rather, commuting time that is part of the statutory off-duty period,
provided that the travel time is 30 minutes or less, including any time
the employee spends waiting for transportation at the point of release
or for a room upon arrival at the lodging location. See Federal
Railroad Administration, Hours of Service Interpretations, Operating
Practice Technical Bulletin OP-04-03 (Feb. 3, 2004). The hypothetical
situation presented in the comment involves a train employee, finally
released at the away-from-home terminal, being instructed to report 10
hours after the time of final release with no further communication
from the railroad. In the hypothetical, the travel time to the
railroad-provided lodging is less than 30 minutes, and the room for the
employee is ready at the time the employee arrives. FRA sees no reason
to depart from the prior interpretation of this situation. Accordingly,
travel time of 30 minutes or less to railroad-provided lodging will be
considered commuting, not deadheading, and therefore the employee's
final release time will be established before the employee is
transported to lodging. Similarly, in this hypothetical, an employee
may depart for his or her reporting point in order to arrive at the
reporting point 10 hours after his or her final release, so long as the
travel time from the place of railroad-provided lodging to the
reporting point is 30 minutes or less and so long as there is no
additional communication from the railroad which interrupts the
employee's off-duty period. Commuting time is considered part of the
statutory off-duty period.
6. Application of Exception to Limitation on Certain Limbo Time
The RSIA's amendments to Sec. 21103 added a limitation, effective
October 16, 2009, of 30 hours per calendar month, on the amount of time
each employee may spend in a particular category of limbo time--that
is, time that is neither on-duty nor off-duty; namely, when the total
of time on duty time and time spent either waiting for deadhead
transportation or in deadhead transportation from a duty assignment to
the place of final release exceeds 12 consecutive hours. 49 U.S.C.
21103(c)(1)(B). However, the amendments also include an exception from
the limitation at Sec. 21103(c)(2), which excludes delays caused by
casualty, accident, act of God, derailment, major equipment failure
preventing the train from advancing, or other delays caused by a source
unknown and unforeseeable to the railroad carrier or its officer or
agent in charge of the employee when the employee left a terminal.
In their joint comment, BLET and UTU request clarification on
whether this exception also applies to Sec. 21103(c)(4), which requires
additional rest for train employees if time spent on duty, waiting for
deadhead transportation to a point of final release, and in deadhead
transportation to a point of final release exceeds 12 hours. By the
express language of the statute, the exception does not apply to Sec.
21103(c)(4). The language introducing the exception expressly states
that it applies to ``paragraph (1)'' (i.e., Sec. 21103(c)(1)) and
therefore presumably does not apply to paragraph (4) (i.e., Sec.
21103(c)(4)); had Congress wished for the exception to apply to
paragraph (4), it would have written the law accordingly.
V. Portions of FRA's Interim Interpretations of the Hours of Service
Laws on Which Comments Were Not Received and Which Are Incorporated in
This Final Interpretation Essentially Without Change \22\
---------------------------------------------------------------------------
\22\ For the present iteration, FRA made a few minor changes to
the text that appeared in the Interim Interpretations. For example,
FRA deleted material that had become obsolete, e.g., references to
the 40-hour per month limit on certain limbo time since that limit
expired on October 15, 2009. In addition, it was necessary to add
language in parentheses to reflect that a reference to sections
``above'' meant sections of the Interim Interpretations. Further,
FRA sometimes added a short ``yes'' or ``no'' answer before the
previously published longer answer.
---------------------------------------------------------------------------
Several of FRA's Interim Interpretations received no comments and
are not being revised in these final interpretations. Therefore, they
are still applicable as previously published. These policies and
interpretations are reprinted below for convenience. Those interim
interpretations which are no longer effective as a result of these
final interpretations have been replaced in this section with a
reference to the section in this document where the relevant final
interpretation is discussed. In some cases, the discussion of these
policies and interpretations has been revised to reflect other changes
in FRA's policies and interpretations discussed in this document, or in
light of FRA's subsequent promulgation of its regulations governing the
hours of service for employees providing intercity or commuter
passenger rail transportation. More information relating to the
justification for these policies may be found in FRA's Interim
Interpretations. 74 FR 30665 (June 26, 2009).
A. Questions Related to the Prohibition on Communication by the
Railroad With Train Employees and Signal Employees
1. Does the prohibition on communication with train employees and
signal employees apply to every statutory off-duty period no matter how
long the employee worked?
Yes, except for the 48- or 72-hour rest requirement. This
prohibition on communication applies to every off-duty period of at
least 10 hours under Sec. 21103(a)(3) or 21104(a)(2) and to any
additional rest required for a train employee when the sum of on-duty
time and limbo time exceeds 12 hours under Sec. 21103(c)(4). For train
employees, it also applies to every lesser off-duty period that
qualifies as an interim release.
2. Is the additional rest for a train employee when on-duty time plus
limbo time exceeds 12 hours mandatory, or may the employee decline it?
The additional rest is mandatory and may not be declined.
3. If an employee is called to report for duty after having 10 hours of
uninterrupted time off duty, but then receives a call canceling the
call to report before he or she leaves the place of rest, is a new
period of 10 uninterrupted hours off duty required?
If the employee has not left the place of rest, the employee has
not accrued on-duty time and would still be off duty, with the
exception that the time spent in multiple calls could in certain
circumstances commingle with a future duty tour.
4. What if the call is cancelled just one minute before report-for-duty
time?
Although the employee will almost certainly have left the place of
rest, the result to this scenario is the same as the result in the
preceding question, in that the employee will not have accrued any time
on duty.
5. What if the employee was told before going off duty to report at the
end of required rest (either 10 hours or 48 or 72 hours after working 6
or 7 days), and is released from that call prior to the report-for-duty
time?
The answer to this scenario is the same as the answer to the two
preceding questions.
[[Page 12429]]
6. Are text messages or email permitted during the rest period?
(This question is answered in section IV.C.7 and IV.C.8 above.)
7. May the railroad return an employee's call during the rest period
without violating the prohibition on communication?
(This question is answered in section IV.C.4 above.)
8. May the railroad call to alert an employee to a delay (set back) or
displacement?
(This question is answered in section IV.C.5 above.)
9. If the railroad violates the requirement of undisturbed rest, is the
undisturbed rest period restarted from the beginning?
Yes. (But see section IV.C.1, describing the time to which the
prohibition on communication applies.)
10. Should any violation of undisturbed rest be documented by a record?
Yes. The communication and the time involved in it must be recorded
as an activity on the employee's hours of service record, as required
by 49 CFR 228.11(b)(9) for train employees and 49 CFR 228.11(e)(9) for
signal employees.
(This question is discussed in more detail in section IV.C.1 and
IV.C.2 above.)
11. Is the additional rest required when on-duty time plus limbo time
exceeds 12 hours (during which communication with an employee is
prohibited) to be measured only in whole hours, so that the additional
rest requirement is not a factor until the total reaches 13 hours?
No. The additional undisturbed time off that an employee must
receive includes any fraction of an hour that is in excess of 12 hours.
B. Questions Related to the Requirements Applicable to Train Employees
for 48 or 72 Hours Off at the Home Terminal
1. Is a ``Day'' a calendar day or a 24-hour period for the purposes of
this provision?
(This question is answered in section IV.B.1 above.)
2. If an employee is called for duty but does not work, has the
employee initiated an on-duty period? If there is a call and release?
What if the employee has reported?
(This question is answered in section IV.B.5 above.)
3. Does deadheading from a duty assignment to the home terminal for
final release on the 6th or 7th day count as a day that triggers the
48-hour or 72-hour rest period requirement?
(This question is answered in section IV.B.2 and IV.B.3 above.)
4. Does attendance at a mandatory rules class or other mandatory
activity that is not covered service but is non-covered service, count
as initiating an on-duty period on a day?
No. As in the previous question, the rules class or other mandatory
activity is other service for the carrier (non-covered service) that is
not time on duty and would not constitute initiating an on-duty period
if it is preceded and followed by a statutory off-duty period.
Likewise, if the rules class or other mandatory activity commingled
with covered service during either the previous duty tour or the next
duty tour after the rules class (because there was not a statutory off-
duty period between them), the rules class or other mandatory activity
would not itself constitute initiating a separate on-duty period, but
would be part of the same on-duty period with which it is commingled.
This question is discussed in more detail in section IV.B.6 above.
5. If an employee is marked up (available for service) on an extra
board for 6 days but only works 2 days out of the 6, is the 48-hour
rest requirement triggered?
No. The employee must actually initiate an on-duty period. Being
marked up does not accomplish this unless the employee actually reports
for duty.
6. If an employee initiates an on-duty period on 6 consecutive days,
ending at an away-from-home terminal and then has 28 hours off at an
away-from-home terminal, may the employee work back to the home
terminal? The statute says that after initiating an on-duty period on 6
consecutive days the employee may work back to the home terminal on the
7th day and then must get 72 hours off, but what if the employee had a
day off at the away-from-home terminal after the 6th day?
The statute says that the employee may work on the 7th day if the
sixth duty tour ends at the away-from-home terminal, but that the
employee must then have 72 hours of time at the home terminal in which
he or she is unavailable for any service for any railroad carrier. If
the employee first has at least 24 hours off at the away-from-home
terminal, the consecutiveness is broken, and the employee has not
initiated an on-duty period for 7 consecutive days and would not be
entitled to 72 hours off duty after getting back to the home terminal.
However, the time off at the away-from-home terminal would not count
toward the 48 hours off duty that the employee must receive after
getting back to the home terminal.
7. May an employee who works 6 consecutive days vacation relief at a
``Temporary Home Terminal'' work back to the regular home terminal on
the 7th day?
Yes, the employee may initiate an on-duty period on the seventh day
and then receive 72 hours off at the home terminal. FRA believes this
is consistent with the statutory purpose of allowing the employee to
have the extended rest period at home. To that end, although the
statute refers to the home terminal, FRA expects that in areas in which
large terminals include many different reporting points at which
employees go on and off duty, the railroad would make every effort to
return an employee to his or her regular reporting point, so that the
rest period is spent at home.
C. Questions Related to the 276-Hour Monthly Maximum for Train
Employees of Time on Duty, Waiting for or Being in Deadhead
Transportation to Final Release, and in Other Mandatory Service for the
Carrier
1. If an employee reaches or exceeds 276 hours for the calendar month
during a trip that ends at the employee's away-from-home terminal, may
the railroad deadhead the employee home during that month?
The literal language of the statute might seem to prohibit
deadheading an employee who has already reached or exceeded the 276-
hour monthly maximum, because time spent in deadhead transportation to
final release is part of the time to be calculated toward the 276-hour
maximum, and one of the activities not allowed after the employee
reaches 276 hours. However, the intent of the statute seems to favor
providing extended periods of rest at an employee's home terminal.
Therefore, in most cases, FRA would allow the railroad to deadhead the
employee home in this circumstance, rather than requiring the employee
to remain at an away-from-home terminal until the end of the month.
FRA expects the railroad to make every effort to plan an employee's
work so that this situation would not regularly arise, and FRA reserves
the right to take enforcement action if a pattern of abuse is apparent.
[[Page 12430]]
2. How will FRA apply the 276-hour cap to employees who only
occasionally perform covered service as a train employee, but whose
hours, when combined with their regular shifts in non-covered service,
would exceed 276 hours?
This provision in the RSIA does not specifically provide any
flexibility for employees who only occasionally perform covered service
as a train employee. Such employees would still be required, as they
are now, to complete an hours of service record for every 24-hour
period in which the employee performed covered service, and the
employee's hours will continue to be limited as required by the statute
for that 24-hour period. See 74 FR 25330, 25348 (May 27, 2009), 49 CFR
228.11(a).
FRA will likely exercise some discretion in enforcing the 276-hour
monthly limitation with regard to employees whose primary job is not to
perform covered service as a train employee, as most of the hours for
such employees would be comprised of the hours spent in the employee's
regular ``non-covered service'' position, which hours are not otherwise
subject to the limitations of the statute. However, FRA will enforce
the 276-hour limitation with regard to such employees if there is a
perception that a railroad is abusing it.
3. Does the 276-hour count reset at midnight on the first day of a new
month?
Yes. The statute refers to a calendar month, so when the month
changes, the count resets immediately, as in the following example:
Employee goes on duty at 6 p.m. on the last day of the month,
having previously accumulated 270 hours for that calendar month. By
midnight, when the month changes, he has worked an additional 6
hours, for a total of 276 hours. The remaining hours of this duty
tour occur in the new month and begin the count toward the 276-hour
maximum for that month, so the railroad is not in violation for
allowing the employee to continue to work.
4. May an employee accept a call to report for duty when he or she
knows there are not enough hours remaining in the employee's 276-hour
monthly limitation to complete the assignment or the duty tour, and it
is not the last day of the month, so the entire duty tour will be
counted toward the total for the current month?
It is the responsibility of the railroad to track an employee's
hours toward the monthly limitation, so the employee is not the one in
the best position to determine whether he or she has sufficient time
remaining in the monthly limitation to complete a duty tour for which
he or she is called. Therefore, the employee would generally not be in
trouble with FRA for accepting the call, absent evidence that the
employee deliberately misrepresented his or her availability. The
railroad will be in violation of the new hours of service laws if an
employee's cumulative monthly total exceeds 276 hours. However, it
could be a mitigating factor in some situations if the railroad
reasonably believed the employee might be able to complete the
assignment before reaching the 276-hour limitation.
Scenario 1: Employee is called for duty with 275 hours
already accumulated. It is only the 27th day of the month, so the
entire period will be in the current month. It was probably not
reasonable to assume that any assignment could be completed in the
remaining time.
Scenario 2: Again the 27th day of the month. This time
the employee has only accumulated 264 hours toward the 276-hour
monthly limitation. In this instance, the railroad may have expected
that the employee could complete the covered service and deadhead to
the home terminal within the remaining time. If that does not
happen, the railroad is in violation, but enforcement discretion or
mitigation of any penalties assessed will be considered if the
railroad made a reasonable decision.
5. What activities constitute ``Other Mandatory Service for the
Carrier,'' which counts towards the 276-hour monthly limitation?
FRA recognizes that if every activity in which an employee
participates as part of his or her position with the railroad is
counted toward the 276-hour monthly maximum, it could significantly
limit the ability of both the railroad to use the employee, and the
employee to be available for assignments that he or she would wish to
take, especially in the final days of a month. This has been raised as
a matter of concern since enactment of the RSIA.
In particular, there are activities that may indirectly benefit a
railroad but that are in the first instance necessary for an employee
to maintain the status of prepared and qualified to do the work in
question. In some cases these activities are compensated in some way,
and in some cases not. These activities tend not to be weekly or
monthly requirements, but rather activities that occur at longer
intervals, such as audiograms, vision tests, optional rules refresher
classes, and acquisition of security access cards for hazardous
materials facilities. Most of these activities can be planned by
employees within broad windows to avoid conflicts with work assignments
and maintain alertness. Railroads are most often not aware of when the
employee will accomplish the activity.
Therefore, for the purposes of this provision, FRA will require
that railroads and employees count toward the monthly maximum those
activities that the railroad not only requires the employee to perform
but also requires the employee to complete immediately or to report at
an assigned time and place to complete, without any discretion in
scheduling on the part of the employee.
Those activities over which the employee has some discretion and
flexibility of scheduling would not be counted for the purposes of the
276-hour provision, because the employee would be able to schedule them
when he or she is appropriately rested. FRA expects that railroads will
work with their employees as necessary so that they can schedule such
activities and still obtain adequate rest before their next assignment.
When any service for a railroad carrier is not separated from
covered service by a statutory minimum off-duty period, the other
service will commingle with the covered service, and therefore be
included as time on duty. As time on duty, such time will count towards
the monthly limit of 276 hours.
6. Does time spent documenting transfer of hazardous materials
(Transportation Security Administration requirement) count against the
276-hour monthly maximum?
Yes. This example is a specific application of the previous
question and response concerning ``other mandatory service for the
carrier.'' The activity of documenting the transfer of a hazardous
material pursuant to a Transportation Security Administration
requirement is mandatory service for the carrier, and a mandatory
requirement of the position for employees whose jobs involve this
function. Although the requirement is Federal, compliance with it is a
normal part of an employee's duty tour, which must be completed as part
of the duty tour, and the employee does not have discretion in when and
where to complete this requirement. Time spent in fulfilling this
requirement is part of the maximum allowed toward the 276-hour monthly
maximum.
[[Page 12431]]
D. Other Interpretive Questions Related to the RSIA Amendments to the
Old Hours of Service Laws
1. Does the 30-hour monthly maximum limitation on time awaiting and in
deadhead transportation to final release only apply to time awaiting
and in deadhead transportation after 12 consecutive hours on duty?
No. Sec. 21103(c)(1)(B) provides that ``[a] railroad may not
require or allow an employee * * * to exceed 30 hours per month--(i)
waiting for deadhead transportation; or (ii) in deadhead transportation
from a duty assignment to a place of final release, following a period
of 12 consecutive hours on duty * * * .'' The intent of this provision
is to prevent situations in which employees are left waiting on trains
for extended periods of time awaiting deadhead transportation, and then
in the deadhead transportation. This purpose would be frustrated if
none of the limbo time is counted toward the limitation unless the on-
duty time for the duty tour is already at or exceeding 12 hours, as an
employee who has accumulated 11 hours and 59 minutes in his or her duty
tour could be subjected to limitless time awaiting and in deadhead
transportation.
FRA will interpret this provision to include all time spent
awaiting or in deadhead transportation to a place of final release that
occurs more than 12 hours after the beginning of the duty tour, minus
any time spent in statutory interim periods of release. For example, if
an employee is on duty for 11 hours 30 minutes, and then spends an
additional 3 hours awaiting and in deadhead transportation to the point
of final release, for a total duty tour of 14 hours and 30 minutes, 2
hours and 30 minutes of the time spent awaiting or in deadhead
transportation will be counted toward the 30-hour monthly limit.
2. Did the RSIA affect whether a railroad may obtain a waiver of the
provisions of the new hours of service laws?
Yes, but FRA's authority, delegated from the Secretary, to waive
provisions of the hours of service laws as amended by the RSIA remains
extremely limited. 49 CFR 1.49.
The RSIA left intact the longstanding, though limited, waiver
authority at 49 U.S.C. 21102(b), which authorizes the exemption of
railroads ``having not more than 15 employees covered by'' the hours of
service laws ``[a]fter a full hearing, for good cause shown, and on
deciding that the exemption is in the public interest and will not
affect safety adversely. The exemption shall be for a specific period
of time and is subject to review at least annually. The exemption may
not authorize a carrier to require or allow its employees to be on duty
more than a total of 16 hours in a 24-hour period.''
The RSIA amended the one other, even narrower waiver provision in
the old hours of service laws and added three more equally narrow new
waiver provisions. In particular, the RSIA revised 49 U.S.C. 21108,
Pilot projects, originally enacted in 1994, involving joint petitions
for waivers related to pilot projects under 49 U.S.C. 21108, primarily
to provide for waivers of the hours of service laws both as in effect
on the date of enactment of the RSIA and as in effect nine months after
the date of enactment. Waivers under this section are intended to
enable the establishment of one or more pilot projects to demonstrate
the possible benefits of implementing alternatives to the strict
application of the requirements of the hours of service laws, including
requirements concerning maximum on-duty and minimum off-duty periods.
The Secretary may, after notice and opportunity for comment, approve
such waivers for a period not to exceed two years, if the Secretary
determines that such a waiver is in the public interest and is
consistent with railroad safety. Any such waiver, based on a new
petition, may be extended for additional periods of up to two years,
after notice and opportunity for comment. An explanation of any waiver
granted under this section shall be published in the Federal Register.
The first of the three new waiver provisions, 49 U.S.C.
21109(e)(2), authorizes temporary waivers of that section in order ``if
necessary, to complete'' a pilot project mandated by that subsection.
To date, FRA has not conducted either of the specific pilot projects
mandated by that section, because FRA has not received any waiver
requests from a railroad, and its relevant labor organizations or
affected employees, seeking to participate in these projects. FRA still
seeks to complete these projects, if a railroad were willing to
implement the necessary procedures, and the appropriate waiver could be
designed.
The second new waiver provision, 49 U.S.C. 21103(a)(4), provides
limited authority to grant a waiver of one provision that it adds to
the old hours of service laws. That provision is the requirement that
an employee receive 48 hours off duty at the employee's home terminal
after initiating an on-duty period on 6 consecutive days, 72 hours off
duty at the employee's home terminal after initiating an on-duty period
on 7 consecutive days, etc. This provision was discussed in section
IV.B of the Interim Interpretations as well as section IV.B and V.B,
above. FRA may waive this provision, and has done so in a number of
instances in response to petitions received, if a collective bargaining
agreement provides for a different arrangement and that arrangement is
in the public interest and consistent with railroad safety. A railroad
and its labor organization(s) or affected employees should jointly
submit information regarding schedules allowed under their collective
bargaining agreements that would not be permitted under this provision,
and supporting evidence for the conclusion that it is in the interest
of safety. Of course, a waiver is not needed for a schedule that would
not violate this provision. For example, if a schedule provides that an
employee works 4 consecutive days and then has one day off, the
schedule would not violate the new hours of service laws, because the
employee would not have initiated an on-duty period on 6 consecutive
days, so 48 hours off duty would not be required.
The third and last new waiver provision authorizes waivers of the
prohibition on communication during off-duty periods with respect to
train employees of commuter or intercity passenger railroads if it is
determined that a waiver will not reduce safety and is necessary to
maintain such a railroad's efficient operation and on-time performance.
This waiver provision is no longer applicable, because such employees
are now subject to FRA's hours of service regulation for train
employees providing commuter or intercity rail passenger
transportation, and are therefore no longer subject to the statutory
uninterrupted rest requirement. 49 CFR 228.413.
Issued in Washington, DC, on February 22, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-4732 Filed 2-28-12; 8:45 am]
BILLING CODE 4910-06-P