Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended; Proposed Interpretation; Request for Public Comment, 30665-30677 [E9-15026]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 74, Number 122 (Friday, June 26, 2009)]
[Notices]
[Pages 30665-30677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15026]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. 2009-0057, Notice No. 1]


Interim Statement of Agency Policy and Interpretation on the 
Hours of Service Laws as Amended; Proposed Interpretation; Request for 
Public Comment

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

ACTION: Interim statement of agency policy and interpretation; request 
for public comment.

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SUMMARY: In this document FRA informs the public at large of the 
agency's interim position on certain interpretive questions arising out 
of the complex and important amendments enacted in 2008 to the Federal 
railroad safety laws that govern such matters as how long an employee 
in a certain category may remain on duty and how long the employee must 
be given off duty before the employee may go on duty again. In 
addition, FRA proposes an interpretation of one very significant 
provision of those amended laws that differs from FRA's existing 
interpretation of the laws before the 2008 amendments. Finally, FRA 
requests public comment on both the interim interpretations and the 
proposed interpretation.

DATES: This document is effective on July 16, 2009. Comments on the 
interim interpretations are due by July 27, 2009. Comments on the 
proposed interpretation are due by October 26, 2009. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments on the interim interpretations set 
forth in this document or the proposed interpretation set forth in this 
document, identified by the docket number FRA-2009-0057, by any of the 
following methods:
     Web Site: The Federal eRulemaking Portal, https://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the ground level of the 
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this interim statement of agency policy and 
interpretation and the proposed interpretation. Note that all petitions 
received will be posted without change to https://www.regulations.gov 
including any personal information. Please see the Privacy Act heading 
in the SUPPLEMENTARY INFORMATION section of this document for Privacy 
Act information related to any submitted petitions, comments, or 
materials.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov or to Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal holidays.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background
II. Changes in the Old Hours of Service Laws Made by Section 108 of 
the RSIA of 2008
    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
III. Proposed Change in Interpretation of Prohibition Against a 
Train or Signal Employee Being on Duty Without Having Had a Minimum 
Number of Hours Off Duty During the Prior 24 Hours; Proposed 
Interpretation of That Prohibition in Context of New Prohibition 
Against Communication With Train and Signal Employees; and Request 
for Comments

[[Page 30666]]

    A. Questions Presented and Short Answers
    1. Must the Full 10-Hour Period of Uninterrupted Rest Fall 
Wholly Within the 24-Hour Period During Which Covered Service May Be 
Performed?
    2. Is the 10-Hour Period of Undisturbed Rest for Train Employees 
and Signal Employees Required To Be Provided Immediately after the 
Employee Goes Off Duty--Meaning That if the Off-Duty Period 
Continues beyond 10 Hours, the Railroad May Communicate with the 
Employee after the First 10 Hours Off Duty?
    B. The Old 8-Hour Rest Requirement and the Treatment of Calls To 
Report for Duty
    1. The Old Statutory Language Establishing the 8-Hour Rest 
Requirement
    2. FRA's Existing, Previously Published Interpretation of the 8-
Hour Requirement
    3. Discussion of FRA's Current Interpretation of the 8-Hour Rest 
Provision and Calls To Report to Duty
    C. The New 10-Hour Rest Provision and the Prohibition on 
Communication During That Rest
    1. Overview
    2. The Statutory Language of the New 10-Hour Rest Provision
    3. Discussion of Proposed Interpretation of New 10-Hour Rest 
Provision
IV. FRA's Interim Policies and Interpretations of the Hours of 
Service Laws as Amended by the RSIA of 2008
    A. Other Questions Related to the Prohibition on Communication 
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, 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 E-Mail 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 an 
Electronic Record?
    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? Is There 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 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?
    8. Employees Are Not Allowed To Perform ``Any Service for Any 
Railroad Carrier'' During these Required 48-Hour or 72-Hour Rest 
Periods. This Language Is Not Applied to Rest Periods elsewhere in 
the Statute. Does this Mean That if an Employee Is Employed by More 
than One Railroad, then Employing Railroad A Must Aggregate the Time 
the Employee Spends Working for Any Other Railroad With the Time the 
Employee Works for Railroad A?
    C. Questions Related to the 276-Hour Monthly Maximum for Train 
Employees of Time on Duty, Waiting for or Being in 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 Section 108 of the 
RSIA of 2008
    1. Do the 40-Hour and 30-Hour Monthly Maximum Limitations 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 of 2008 Affect Whether a Railroad May Obtain a 
Waiver of the Provisions of the New Hours of Service Laws?

I. Background

    On October 16, 2008, the Rail Safety Improvement Act of 2008 (RSIA 
of 2008) was enacted. See Public Law 110-432, Div. A, 122 Stat. 4848. 
Section 108, Hours-of- service reform, of the RSIA of 2008 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 section 108(g) of the RSIA of 2008, 
subsections (d), (e), (f), and (g) of the section became effective on 
the date of enactment of the RSIA of 2008, and subsections (a), (b), 
and (c) of the section become effective nine months later, on July 16, 
2009. Because of the significance of the amendments to the old hours of 
service laws made by section 108 of the RSIA of 2008, FRA is publishing 
this interim statement of agency policy and interpretation to address 
questions of statutory interpretation that have arisen since their 
enactment.
    Currently, FRA is not addressing the amendments to the old hours of 
service laws made by section 420 of the RSIA

[[Page 30667]]

of 2008, which changed 49 U.S.C. 21106, Limitations on employee 
sleeping quarters, effective October 16, 2008. 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 is also not interpreting its recently issued regulations 
revising its hours of service recordkeeping requirements, published in 
the Federal Register on May 27, 2009 (74 FR 25330).
    FRA seeks comment on this interim statement and the proposed 
interpretation and has sought informal input on many of the 
interpretive issues addressed in this document through the agency's 
Railroad Safety Advisory Committee (RSAC). On May 27, 2009, FRA 
published a regulation, mandated by section 108(f) of the RSIA of 2008, 
revising the hours of service recordkeeping requirements to support 
compliance with the hours of service laws as amended by the RSIA of 
2008 (the new hours of service laws); to authorize electronic 
recordkeeping, and reporting of excess service, consistent with 
appropriate considerations for user interface; and to require training 
of affected employees and supervisors, including training of employees 
in the entry of hours of service data. 74 FR 25330, 25345 (May 27, 
2009). FRA utilized the RSAC and an RSAC working group (Working Group) 
in the development of this regulation, and while the task of the 
Working Group was officially limited to developing the regulatory text 
related to hours of service recordkeeping, FRA sought the input of the 
members of the Working Group on the interpretive issues it was 
considering. FRA also shared with the Working Group its preliminary 
thoughts on some of the interpretive questions, and FRA's 
interpretations have been made in consideration of the feedback from 
the Working Group.
    It is FRA's intention that the interpretations provided in this 
interim statement of agency policy and interpretation will go into 
effect on July 16, 2009, the effective date of some of the most 
important substantive changes to the old hours of service laws 
resulting from the RSIA of 2008. FRA will consider comments received in 
response to these interim interpretations of the new hours of service 
laws, and may modify these interpretations based on comments or if 
experience with the new statutory requirements indicates that a change 
in interpretation is needed.
    However, FRA is specifically seeking comment with regard to one 
issue to be discussed in this document related to the limitation on 
hours of both train employees and signal employees, specifically, the 
beginning of the 24-hour period in which the maximum allowed time on 
duty and minimum required time off duty are calculated. As will be 
explained below, FRA proposes to interpret the 24-hour period within 
which an employee must have had the minimum statutory off-duty period 
as lying within the 24-hour period during which not more than 12 hours 
of covered and commingled service may accrue. FRA believes that this 
new approach, which may be described as ``continuous lookback,'' 
conforms to the plain meaning of the law, which by its terms prohibits 
an employee from going or remaining on duty unless the employee has 
received 10 hours of rest in the prior 24 hours. This would be a 
significant change from FRA's previously published interpretation. 
While FRA believes its proposed interpretation is consistent with the 
statutory language, it is seeking comment as to the effect that this 
proposed change of interpretation would have on the industry, and, if 
adopted by FRA, this change in interpretation would not go into effect 
until FRA has had the opportunity to consider any comments received.

II. Changes in the Old Hours of Service Laws Made by Section 108 of the 
RSIA of 2008

A. Extending Hours of Service Protections to Employees of Contractors 
and Subcontractors to Railroads Who Perform Certain Signal-Related 
Functions

    Effective July 16, 2009, section 108(a) of the RSIA of 2008 
(Section 108(a)) amends the definition of ``signal employee'', to 
eliminate the words ``employed by a railroad carrier''. To be codified 
at 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) will be 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

    Section 108(b) of the RSIA of 2008 (Section 108(b)) amends the old 
hours of service requirements for train employees in many ways, all of 
which amendments are effective July 16, 2009, except with respect to 
train employees providing commuter or intercity passenger rail service, 
whom section 108(d) of the RSIA of 2008 makes subject initially to the 
old hours of service laws and then to regulations if issued timely and, 
if not, to the new hours of service laws. To be codified at 49 U.S.C. 
21103 and 21102, respectively. (See further discussion of the exception 
in this II.B, below.) Section 108(b) limits train employees to 276 
hours of time on-duty, awaiting or in deadhead transportation from a 
duty assignment to the place of final release, or in any other 
mandatory service for the carrier per calendar month. To be codified at 
49 U.S.C. 21103(a)(1). The provision retains the existing maximum of 12 
consecutive hours on duty, but increases the minimum off-duty period to 
10 hours consecutive hours during the prior 24-hour period. To be 
codified at 49 U.S.C. 21103(a)(2), (3).
    Section 108(b) also requires that after an employee initiates an 
on-duty period each day for six consecutive days, the employee must 
receive at least 48 consecutive hours off duty at the employee's home 
terminal, during which the employee is unavailable for any service for 
any railroad; except that if the sixth on-duty period ends at a 
location other than the home terminal, the employee may initiate an on-
duty period for a seventh consecutive day, but must then receive at 
least 72 consecutive hours off duty at the employee's home terminal, 
during

[[Page 30668]]

which time the employee is unavailable for any service for any 
railroad. To be codified at 49 U.S.C. 21103(a)(4).
    Section 108(b) further provides that employees may also initiate an 
on-duty period for a seventh consecutive day and receive 72 consecutive 
hours off duty if such schedules are provided for in existing 
collective bargaining agreements for a period of 18 months, or after 18 
months by collective bargaining agreements entered into during that 
period, or a pilot program that is either authorized by collective 
bargaining agreement, or related to work rest cycles under section 
21108 of the new hours of service laws. To be codified at 49 U.S.C. 
21103(a)(4).
    Section 108(b) also provides 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, if a collective bargaining agreement 
provides a different arrangement that the Secretary determines is in 
the public interest and consistent with safety. Id.
    Section 108(b) also significantly changes 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. To be codified at 49 U.S.C. 21103(c)(1). In 
particular, a railroad may not require or allow an employee to exceed 
40 hours per month awaiting or in deadhead transportation from duty 
that is neither time on duty nor time off duty from the July 16, 2009 
effective date of the provision through October 15, 2009,\1\ 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. To be codified at 49 U.S.C. 21103(c)(2). Railroads 
are required to report to the Secretary all instances in which these 
limitations are exceeded. To be codified at 49 U.S.C. 21103(c)(3). In 
addition, the railroad is required to provide the train employee with 
additional time off duty equal to the amount that combined on-duty time 
and time awaiting or in transportation to final release exceeds 12 
hours. To be codified at 49 U.S.C. 21103(c)(4).
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    \1\ The language of Section 108(b) must be read in conjunction 
with the language of Section 108(g), which provides that Section 
108(b) becomes effective on July 16, 2009.
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    Finally, Section 108(b) restricts communication with train 
employees except in case of emergency during the minimum off-duty 
period, statutory periods of interim release, and periods of additional 
rest required equal to the amount that combined on-duty time and time 
awaiting or in transportation to final release exceeds 12 hours. To be 
codified at 49 U.S.C. 21103(e). However, the Secretary may waive this 
provision for train employees of commuter or intercity passenger 
railroads if the Secretary determines that a waiver would not reduce 
safety and is necessary to efficiency and on time performance. Id.
    However, as was alluded to earlier, section 108(d) of the RSIA of 
2008 (Section 108(d)), which became effective on October 16, 2008, 
provides that the requirements described above for train employees will 
not go into effect on July 16, 2009, for train employees of commuter 
and intercity passenger railroads. 49 U.S.C. 21102(c). Section 108(d) 
provides the Secretary with the authority to issue hours of service 
rules and orders applicable to these train employees, which may be 
different than the statute applied to other train employees. 49 U.S.C. 
21109(b). Section 108(d) further provides that these train employees 
who provide commuter or intercity passenger rail service will continue 
to be governed by the old hours of service laws (as they existed 
immediately prior to the enactment of the RSIA of 2008) until the 
effective date of regulations promulgated by the Secretary. 49 U.S.C. 
21102(c). However, if no new regulations have been promulgated before 
October 16, 2011, the provisions of Section 108(b) would be extended to 
these employees at that time. Id.

C. Changing Hours of Service Requirements Related to Signal Employees

    Section 108(c) of the RSIA of 2008 (Section 108(c)) amends the 
hours of service requirements for signal employees in a number of ways, 
effective July 16, 2009. To be codified at 49 U.S.C. 21104. As was 
noted above, by amending the definition of ``signal employee,'' Section 
108(a) extends the reach of the substantive requirements of Section 
108(c) to a contractor or subcontractor to a railroad carrier and its 
officers and agents. To be codified at 49 U.S.C. 21101(4). In addition, 
as Section 108(b) does for train employees, Section 108(c) retains for 
signal employees the existing maximum of 12 consecutive hours on duty, 
but increases the minimum off-duty period to 10 hours consecutive hours 
during the prior 24-hour period. To be codified at 49 U.S.C. 
21104(a)(1), (2). Further, Section 108(c) deletes 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.''
    Section 108(c) also eliminates language in the old hours of service 
laws stating that last hour of signal employee's return from final 
trouble call is time off duty, and defines ``emergency situations'' in 
which the new hours of service laws permits signal employees to work 
additional hours not to include routine repairs, maintenance, or 
inspection. To be codified at 49 U.S.C. 21104(b), (c).
    Section 108(c) also contains language virtually identical to that 
in Section 108(b) for train employees, prohibiting railroad 
communication with signal employees during off-duty periods except for 
in an emergency situation. To be codified at 49 U.S.C. 21104(d).
    Finally, Section 108(c) provides 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. To be codified at 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 of 
2008.

III. Proposed Change in Interpretation of Prohibition Against a Train 
or Signal Employee Being on Duty Without Having Had a Minimum Number of 
Hours Off Duty During the Prior 24 Hours; Proposed Interpretation of 
That Prohibition in Context of New Prohibition Against Communication 
With Train and Signal Employees; and Request for Comments

A. Questions Presented and Short Answers

1. Must the Full 10-Hour Period of Uninterrupted Rest Fall Wholly 
Within the 24-Hour Period During Which Covered Service May Be 
Performed?
    Short Answer: No, if FRA applies to the new 10-hour statutory 
provision the agency's longstanding interpretation of the old 8-hour 
statutory provision, the 10-hour uninterrupted rest period would not 
diminish the 24-hour period

[[Page 30669]]

during which covered service may be performed.
    Yes, if FRA adopts its proposed interpretation of the new 10-hour 
statutory provision, which would require that the full 10-hour 
undisturbed off-duty period occupy 10 hours of the 24-hour period 
during which covered service may be performed.
2. Is the 10-Hour Period of Undisturbed Rest for Train Employees and 
Signal Employees Required To Be Provided Immediately After the Employee 
Goes Off Duty--Meaning That if the Off-Duty Period Continues Beyond 10 
Hours, the Railroad May Communicate With the Employee After the First 
10 Hours Off Duty?
    Short Answer: Yes, if FRA applies to the new 10-hour statutory 
provision the agency's longstanding interpretation of the old 8-hour 
statutory provision, then the 10-hour period of undisturbed rest may be 
given immediately after the employee goes off duty, and the railroad 
may communicate with the employee after the first 10 hours off duty.
    Not necessarily, if FRA adopts its proposed interpretation of the 
10-hour statutory provision, because for the railroad to maximize the 
work window during which a train or signal employee may be on duty to a 
14-hour period, the railroad must give notice of the employee's next 
reporting time before the employee begins the 10-hour rest period.

B. The Old 8-Hour Rest Requirement and the Treatment of Calls To Report 
for Duty

1. The Old Statutory Language Establishing the 8-Hour Rest Requirement
    Section 21103(a)(1) of title 49, U.S.C., in effect through July 15, 
2009, reads as follows: ``Except as provided in subsection (c) of this 
section [pertaining to emergencies], a railroad carrier and its 
officers and agents may not require or allow a train employee to remain 
or go on duty * * * unless that employee has had at least 8 consecutive 
hours off duty during the prior 24 hours.''
    Section 21104(a)(2)(A) of title 49, U.S.C., in effect through July 
15, 2009, provides the identical requirement for signal employees.\2\
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    \2\ In addition, section 21104(a)(2)(C) of title 49, U.S.C., 
provides that a railroad carrier, its officers and agents may not 
require or allow 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.''
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2. FRA's Existing, Previously Published Interpretation of the 8-Hour 
Requirement
    The existing interpretation of the equivalent provision for train 
employees in the Hours of Service Act \3\ reads as follows:
---------------------------------------------------------------------------

    \3\ Section 2(a) of the Hours of Service Act provided:
    It shall be unlawful for any common carrier, its officers or 
agents, subject to this Act--
    ``(1) To require or permit an employee, in case such employee 
shall have been continuously on duty for fourteen hours, to continue 
on duty or to go on duty until he has had at least ten consecutive 
hours off duty, except that, effective upon the expiration of the 
two-year period beginning on the effective date of this paragraph, 
such fourteen-hour duty period shall be reduced to twelve hours; or
    ``(2) To require or permit an employee to continue on duty or to 
go on duty when he has not had at least eight consecutive hours off 
duty during the preceding twenty-four hours.

    Limitations on Hours. The Act establishes two limitations on 
hours of service. First, no employee engaged in train or engine 
service may be required or permitted to work in excess of twelve 
consecutive hours. After working a full twelve consecutive hours, an 
employee must be given at least ten consecutive hours off duty 
before being permitted to return to work.
    Second, no employee engaged in train or engine service may be 
required or permitted to continue on duty or go on duty unless he 
has had at least eight consecutive hours off duty within the 
preceding twenty-four hours. This latter limitation, when read in 
conjunction with the requirements with respect to computation of 
duty time (discussed below) results in several conclusions:
    (1) When an employee's work tour is broken or interrupted by a 
valid period of interim release (4 hours or more at a designated 
terminal), he may return to duty for the balance of the total 12-
hour work tour during a 24-hour period.
    (2) After completing the 12 hours of broken duty, or at the end 
of the 24-hour period, whichever occurs first, the employee may not 
be required or permitted to continue on duty or to go on duty until 
he has had at least 8 consecutive hours off duty.
    (3) The 24-hour period referred to in paragraphs 1 and 2 above 
shall begin upon the commencement of a work tour by the employee 
immediately after his having received a statutory off-duty period of 
8 or 10 hours as appropriate.

[Emphasis supplied.]

    FRA's existing interpretation of the language related to signal 
employees reads as follows:

LIMITATIONS ON HOURS

    No individual employed by a common carrier in installing, 
repairing or maintaining signal systems may be required or permitted 
to work in excess of twelve continuous hours, After working twelve 
continuous hours, an individual must be given at least ten 
consecutive hours off duty before being permitted to return to work.
    No individual engaged in covered work may be required or 
permitted to continue on duty or go on duty unless he has had ``at 
least eight consecutive hours off duty within the preceding twenty-
four hours.'' The clear spirit and intent of the quoted language 
lead to the conclusions that:
    (1) When the time on duty is broken or interrupted by off-duty 
periods of less than 8 consecutive hours, the individual may be on 
duty up to a maximum of 12 hours during a 24 hour period, so long as 
such individual has had a statutory off-duty period of at least 8 or 
10 consecutive hours immediately prior to reporting for work.
    (2) After completing the 12 hours of broken duty, or at the end 
of, the 24 hour period, whichever occurs first, the employee may not 
be required or permitted to continue on duty or to go on duty until 
he has had at least 8 consecutive hours off duty.
    (3) The 24-hour period referred to in paragraphs 1 and 2 above 
shall begin when an employee reports for work immediately after his 
having had a statutory off-duty period of 8 or 10 hours.

42 FR 4464, 4466 (Jan. 25, 1977).
3. Discussion of FRA's Current Interpretation of the 8-Hour Rest 
Provision and Calls To Report to Duty
    Under the old hours of service laws, and the current FRA 
interpretations, as cited above, a 24-hour period begins when an 
employee reports for duty. At the instant that the employee reports for 
duty, FRA looks back at the 24-hour period before the employee reported 
for duty to see that the employee had at least 8 consecutive hours off 
(or 10 consecutive hours off if the employee worked 12 consecutive 
hours) following the prior duty assignment. If so, then the employee 
has a maximum of 12 hours to work in the next 24 hours, and must get 8 
or 10 hours off either after working that 12 hours or at the end of the 
24-hour period, whichever occurs first, before going on duty again. 
After the employee receives a statutory off-duty period (i.e., at least 
8 or consecutive 10 hours, whichever is applicable), when the employee 
next reports for duty, a new 24-hour period begins for the purpose of 
calculating time on duty, and the requirement of the statutory off-duty 
period.
    Therefore, an employee who works in broken service (e.g., 8 hours 
on, then 4 hours off, then 4 hours on) just has to get the 8 or 10 
hours off somewhere within the 24-hour period before the employee 
begins the tour of duty. FRA has not required the 8 or 10 hours to be 
any particular set of hours in the 24-hour period before commencing the 
current duty tour. If the employee continues off duty after having 
received at least the minimum statutory off-duty period, the railroad 
may call the employee repeatedly before the

[[Page 30670]]

employee comes on duty. While these contacts would break the continuity 
of the off-duty period, and might commingle with the next duty tour if 
the employee does not receive a statutory off-duty period, the calls 
themselves would not violate the law, once the minimum statutory off-
duty period is completed.
    Further, a settled FRA interpretation adopted shortly after the 
1969 amendments to the Hours of Service Act, with encouragement from 
the industry parties, has permitted the railroad to address one call to 
an employee during the rest period for the purpose of advising the 
employee concerning the place and time that the employee is to appear 
for the next assignment, without that call being considered an 
interruption of the required 8- or 10-hour statutory release. (This 
interpretation is emphatically extinguished for train employees in 
freight service, beginning on July 16, as result of enactment of a 
provision in Section 108(b) to be codified at 49 U.S.C. 21103(e). FRA 
proposes to continue it in effect for train employees in passenger 
service to maintain the status quo pending further rulemaking, as the 
Congress intended in enacting, effective October 16, 2008, 49 U.S.C. 
21102(c).)
    The purpose and effect of FRA's interpretation regarding the issue 
of 8 consecutive hours off duty within the prior 24 hours were to ease 
planning by permitting railroads to look forward from the time that the 
employee reported for work. The interpretation assumed that 8 or 10 
hours of rest immediately preceded the time that the employee went on 
duty, which was ordinarily the case (there having been a single call 
for the assignment, which by interpretation did not interrupt the 
period of rest). Where there were multiple calls outside the basic 
period of rest, they were commingled with subsequent service, so in 
fact the commencement of the duty tour immediately followed the 
statutory rest.
    As a practical matter, the prior interpretation had little effect 
on hours worked, since as a practical matter only a highly unusual 
pattern of broken service (e.g., 4 on, 6 off, 4 on, 6 off, 4 on) could 
result in work occurring in defiance of the literal language of the 
law, as the employee would have worked 12 hours in the 24-hour period 
without ever having 8 hours off duty in the prior 24 hours. This seldom 
if ever has occurred, and at no time since publication of 
interpretations in appendix A to 49 CFR part 228 in 1977 has FRA had 
occasion to question the wisdom of this approach.

C. The New 10-Hour Rest Provision and the Prohibition on Communication 
During That Rest

1. Overview
    Under the hours of service laws as amended by the RSIA of 2008, the 
minimum statutory off-duty period for train employees and signal 
employees, for purposes of what will be codified at 49 U.S.C. 
21103(a)(3) and 49 U.S.C. 21104(a)(2) is 10 hours, regardless of how 
many hours are worked and whether service is consecutive or broken, and 
any interruption of a rest period before its desired duration has been 
achieved (10 hours for full rest, 4 hours for a train employee's 
interim release, etc.) restarts the clock for the minimum full rest 
period because of the new prohibition to be codified at 49 U.S.C. 
21103(e) and 21104(d).\4\
---------------------------------------------------------------------------

    \4\ Effective July 16, 2009, section 21103(e) of title 49 U.S.C. 
will provide as follows:
    ``Communication During Time Off Duty.--During a train employee's 
minimum off-duty period of 10 consecutive hours, as provided under 
subsection (a) or during an interim period of at least 4 consecutive 
hours available for rest under subsection (b)(7) or during 
additional off-duty hours under subsection (c)(4), a railroad 
carrier, and its officers and agents, shall not communicate with the 
train employee by telephone, by pager, or in any other manner that 
could reasonably be expected to disrupt the employee's rest. Nothing 
in this subsection shall prohibit communication necessary to notify 
an employee of an emergency situation, as defined by the Secretary. 
The Secretary may waive the requirements of this paragraph for 
commuter or intercity passenger railroads if the Secretary 
determines that such a waiver will not reduce safety and is 
necessary to maintain such railroads' efficient operations and on-
time performance of its trains.''
    Effective July 16, 2009, section 21104(d) of title 49 U.S.C. 
will provide as follows:
    ``Communication During Time Off Duty.--During a signal 
employee's minimum off-duty period of 10 consecutive hours, as 
provided under subsection (a), a railroad carrier or a contractor or 
subcontractor to a railroad carrier, and its officers and agents, 
shall not communicate with the signal employee by telephone, by 
pager, or in any other manner that could reasonably be expected to 
disrupt the employee's rest. Nothing in this subsection shall 
prohibit communication necessary to notify an employee of an 
emergency situation, as defined by the Secretary.''
---------------------------------------------------------------------------

2. The Statutory Language of the New 10-Hour Rest Provision
    Effective July 16, 2009, the RSIA of 2008 amends 49 U.S.C. 21103(a) 
to provide, inter alia, that ``[e]xcept as provided in subsection (d) 
of this section, a railroad carrier and its officers and agents may not 
require or allow a train employee to * * * (3) remain or go on duty 
unless that employee has had at least 10 consecutive hours off duty 
during the prior 24 hours * * *'' The predecessor provision is 49 
U.S.C. 21103(a)(1). The changes made to this predecessor provision are 
fairly minor: redesignating subsection (c), regarding emergencies, as 
subsection (d); transferring the phrase ``remain or go on duty'' in the 
introductory text of the subsection (a) to the beginning of subsection 
(a)(3); transferring all the language in subsection (a)(1) (``unless 
that employee has had at least 8 consecutive hours off duty during the 
prior 24 hours'') to subsection (a)(3); and then changing ``8'' to 
``10'' in the minimum off-duty period.
    Effective July 16, 2009, the RSIA of 2008 also amends 49 U.S.C. 
21104(a) to provide that ``[e]xcept as provided in subsection (c) of 
this section, a railroad carrier and its officers and agents may not 
require or allow its signal employees to remain or go on duty and a 
contractor or subcontractor to a railroad carrier and its officers and 
agents may not require or allow its signal employees to remain or go on 
duty * * * (2) unless that employee has had at least 10 consecutive 
hours off duty during the prior 24 hours.'' For purposes of this 
discussion, the changes are minor, the most salient of which are to 
change ``8'' to ``10'' as the minimum off-duty period.
3. Discussion of Proposed Interpretation of New 10-Hour Rest Provision
    FRA is concerned that, as applied to the revised laws, the 
existing, ``fresh start'' interpretation conflicts with the plain 
meaning of laws by excluding the 10-hour period from the ``prior 24 
hours'' to which the revised statute refers. Although the ``fresh 
start'' approach may have had some merit to simplify planning under the 
old hours of service laws, it does not appear to track the purpose or 
intent of the new, more stringent statute. Accordingly, FRA proposes to 
enforce the plain meaning of the revised statute, i.e., no train 
employee or signal employee may be required or permitted to go or 
remain on duty unless that employee had received at least 10 
consecutive hours of rest within any of the 24-hour periods prior to 
any of the moments in question (i.e., any instant that the employee 
goes or remains on duty during the duty tour), rather than the one 24- 
hour period prior to the one moment that the employee commences the 
duty tour.
    This new approach, which may be described as ``continuous 
lookback,'' conforms to the plain meaning of the law, which by its 
terms prohibits an employee from going or remaining on duty unless the 
employee has received 10 hours of rest in the prior 24 hours.\5\

[[Page 30671]]

It appears that this interpretation would also best address the acute 
fatigue of employees working at different times of day and night, by 
ensuring that their best opportunity for rest, free from interruptions 
by the railroad, comes just prior to their going back on duty, so that 
they are well rested when they go to work, and better able to remain 
reasonably so throughout the duty tour.
---------------------------------------------------------------------------

    \5\ Indeed, FRA acknowledged this when issuing its current 
interpretation, providing, ``A very literal reading of the statute 
would require that the required 8-hour release period be within the 
``preceding twenty-four hours'' described in section 2(a)(2) of the 
statute * * * in every instance. That would mean that broken service 
would have to be distributed within the remaining 16 hours in every 
instance. (For instance, 4 hours on duty, 4 hours off duty--the 
minimum permitted and 4 hours on duty.).'' 42 FR 27594, 27595 (May 
31, 1977).
---------------------------------------------------------------------------

    There would be practical challenges associated with the continuous 
lookback approach, and the utilization of employees could be 
constrained. First, it would be particularly important that crews be 
scheduled precisely in order to obtain best use of their available 
time, particularly for extended assignments (i.e., those approaching 
the maximum 12 hours on duty, or exceeding 12 hours total time on duty 
when on-duty time is combined with time spent waiting for deadhead 
transportation or in deadhead transportation to the place of final 
release). For typical over-the-road assignments, railroads might either 
have to notify the employee of the time to report 10 or more hours 
before the time the employee is wanted, so that the last 10 or more 
hours would be uninterrupted,\6\ or else have to call immediately at 
the conclusion of a known period of rest, providing notice of the next 
assignment within a short time prior to its beginning. A typical 
maximum pattern might be a ``2-hour'' call (i.e., a call from the 
railroad notifying the employee to report for duty 2 hours later), 
followed by an on-duty period of 12 consecutive hours. This approach 
would effectively eliminate the possibility of 12 hours of broken 
service, because the interim period of release would also occur within 
the 24-hour period. (For example, with a 2-hour call, 8 hours of work, 
and 4 hours off, any resumption of work would be barred because 
following the aggregate period of 14 hours (2+8+4) any ``look back'' to 
find a continuous 10-hour period of release within the prior 24 hours 
would be futile.) By contrast, lesser periods of aggregate service 
might be plausible (e.g., a call prior to the 10-hour rest period, 5 
hours on duty, 4 hours off duty, 5 hours on duty, allowing a total of 
10 hours of on-duty time before the 24-hour duty period would have to 
end, because an instant later the prior 24-hour period would not 
include a period of 10 consecutive hours off).
---------------------------------------------------------------------------

    \6\ More than 10 hours uninterrupted rest would be required for 
a train employee if additional rest is required as a result of time 
spent awaiting or in deadhead transportation after 12 hours on duty. 
To be codified at 49 U.S.C. 21103(c)(4).
---------------------------------------------------------------------------

    Clearly the means by which ``pool crews'' and ``extra board'' 
assignments are managed would need to be altered if the railroad wished 
to get full use of the employee's allowed 12 hours. To accomplish this, 
among the options available to the railroad would be to tell the 
employee when to come back before the employee is released from the 
previous duty tour, or to notify the employee when he or she is about 
10 hours out from the next call. If the projected time is later set 
back, the railroad would need to notify the employee of the setback up 
to 10 hours before the new time that the employee would need to report, 
because those next 10 hours would be the uninterrupted rest.
    FRA has identified the following positive aspects of the proposed 
interpretation:
     Appears most faithful to the literal language of the 
statute.
     The legislative history of the RSIA of 2008 reiterates the 
statutory language, which has not significantly changed, the literal 
meaning of which FRA has always believed supports the proposed 
interpretation.
     Best ensures that meaningful rest closely precedes the 
period of work, supporting the safety purpose of the laws.
     Creates a strong incentive for employers to plan their 
operations in such a way that employees can effectively plan their 
rest.
     Prevents periods of aggregate service potentially 
extending for up to 24 hours without substantial rest.
    FRA has identified the following negative aspects of the proposed 
interpretation:
     Departs from a settled interpretation, which could require 
significant training and adjustment in expectations regarding the 
operation of the law.
     During periods of stress on rail operations, could limit 
availability of employees and efficiency of operations.
     To the extent that employers notify employees of 
assignments precisely 10 hours prior to the time for reporting, the 
rest period could be compromised by the requirement to accomplish 
travel to the report-for-duty location within the 10 hours.
     Might not produce uniformly positive outcomes in terms of 
safety (e.g., to the extent that an employee is released from service 
in the late evening hours, the best time for rest could be immediately, 
rather than just before the onset of the duty tour).\7\
---------------------------------------------------------------------------

    \7\ This is a formal concern, but FRA is not persuaded that it 
is a practical concern, as the employer will have little reason to 
contact the employee until next assignment is approaching, and the 
employee's circadian pattern will tend to support quality sleep 
during the nighttime hours.
---------------------------------------------------------------------------

    FRA requests comments on this proposed change in interpretation, 
including the options for adapting to the interpretation if adopted, 
the operational difficulties presented by the proposed interpretation, 
and the circumstances most likely to present such difficulty. FRA asks 
that those objecting to the proposed interpretation provide their views 
as to the better interpretation that would satisfy the language and the 
intent of the statute.
    FRA wishes to note that, even under the present interpretation, 
railroads would not be free to simply provide 10 interrupted hours of 
rest and then repeatedly set back calls over a long period of time. The 
current interpretation is that the beginning of the duty tour following 
statutory rest starts the clock. Statutory rest will now clearly be 
uninterrupted rest, and so even one call ``busting'' or ``setting 
back'' an assignment will be commingled with the subsequent service 
unless a new 10-hour period of rest ensues. Whichever interpretation is 
finally adopted, railroads will need to do a better job of planning 
crew utilization.

IV. FRA's Interim Policies and Interpretations of the Hours of Service 
Laws as Amended by the RSIA of 2008

A. Other Questions Related to the Prohibition on Communication With 
Train Employees and Signal Employees

    These questions apply to sections 108(b)(3) and (c)(4) of the RSIA 
of 2008, which amend sections 49 U.S.C. 21103 and 49 U.S.C. 21104 
effective July 16, 2009, to provide that a railroad carrier or a 
contractor or subcontractor to a railroad carrier, and its officers and 
agents, are prohibited from communicating with a train employee or a 
signal employee by telephone, pager, or in any other manner that could 
reasonably be expected to disrupt the employee's rest. To be codified 
at 49 U.S.C. 21103(e) and 21104(d). This prohibition applies during--
     A train employee's or a signal employee's minimum off-duty 
period of 10 consecutive hours;
     A train employee's period of interim release of at least 4 
hours that is available for rest; and
     A train employee's required additional rest, in the amount 
by which

[[Page 30672]]

the sum of on-duty and limbo time exceeds 12 hours.
    The section does not prohibit communication necessary to notify an 
employee of an emergency situation, and the provision may be waived as 
to train employees of commuter or intercity passenger railroads if the 
Secretary determines a waiver will not reduce safety and is necessary 
to maintain such railroads' efficient operation and on-time 
performance.
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 49 U.S.C. 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. 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. Alternate 
proposed versions of the legislation gave the employee the option, but 
the statute (i.e., the legislation as passed), makes the additional 
rest mandatory.
3. If an Employee Is Called To Report for 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 the call could commingle with a future 
duty tour. However, if FRA adopts the proposed interpretation discussed 
in section III, above, the railroad's options might be more limited, 
because the beginning of the uninterrupted rest of 10 hours would 
continue to serve as the beginning of the 24-hour period within which 
the employee may be utilized.
4. What If the Call Is Cancelled Just One Minute Before Report-for-Duty 
Time?
    The answer to this scenario is the same as the answer to the 
preceding question.
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 
preceding question.
6. Are Text Messages or E-Mail Permitted During the Rest Period?
    The employee may not be required to receive any communication of 
any sort, or to access information of any kind. However, 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. The alerts provided by most devices when an 
e-mail or text message is received might reasonably be expected to 
disturb an employee who may be trying to obtain rest. However, an 
employee might be reluctant to turn the devices off, because that would 
also prevent their receiving personal messages that they would want to 
receive even during rest. One solution may be railroad-provided 
communication devices that can be turned off, so that the employee will 
not be disturbed, but can access the messages at other times, and will 
not interfere with personal communication. However, there must be no 
expectation of a response during the uninterrupted rest period.
7. May the Railroad Return an Employee's Call During the Rest Period 
Without Violating the Prohibition on Communication?
    Yes. If the employee initiated the contact, then the railroad's 
receipt of the communication from the railroad is voluntary on the part 
of the employee, and a railroad will not be penalized for responding to 
an employee's request. However, the content of the communication must 
be limited to the issue about which the employee called. A call from an 
employee about one issue does not open the door to unlimited 
communication on other matters that would otherwise be prohibited.
    Railroads may also push data to an employee at a particular time of 
day selected by the employee, or in a specific situations requested by 
the employee, such as if an employee requested, for example, to receive 
information when he or she is a certain number of crews out from being 
called, provided that (1) the receipt of the information is voluntarily 
chosen by the employee and is purely for the employee's convenience and 
(2) the railroad does not require the employee to access this 
information or respond to it within the period of required 
uninterrupted rest.
8. May the Railroad Call To Alert an Employee to a Delay (Set Back) or 
Displacement?
    No. The railroad may not call the employee for these purposes 
during the employee's 10 hours of uninterrupted rest, without violating 
the prohibition on communicating with the employees. However, the 
railroad may make the information available by some means by which the 
employee may voluntarily access it, or would have it available at the 
conclusion of the uninterrupted rest. The ideal situation would be that 
if the setback provides sufficient time before the employee would now 
need to report for duty, the railroad would make the call, and then 
provide 10 hours of uninterrupted rest before the employee is to report 
for duty at the new time.
9. If the Railroad Violates the Requirement of Undisturbed Rest, Is the 
Undisturbed Rest Period Restarted From the Beginning?
    Yes.
10. Should Any Violation of Undisturbed Rest Be Documented by an 
Electronic 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, which provisions become effective on July 16, 2009. 
For those railroads not participating in electronic recordkeeping, this 
activity must be captured on their paper records.
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. Section 108(b)(2) of the RSIA of 2008 requires that when the 
employees total time on duty, awaiting deadhead transportation, and in 
deadhead transportation exceeds 12 consecutive hours, the railroad 
shall provide the employee with additional time off duty ``equal to the 
number of hours by which such sum exceeds 12 hours.'' FRA believes that 
it is consistent with the Congressional intent of this provision to 
interpret a fraction of an hour as a ``number of hours.'' Therefore, 
the

[[Page 30673]]

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

    In particular, these questions involve the requirements that train 
employees receive--
    (1) 48 hours off at their home terminal after initiating an on-duty 
period on 6 consecutive days,
    (2) 72 hours off at their home terminal after initiating an on-duty 
period on 7 consecutive days, and
    (3) 72 hours off at their home terminal after initiating an on-duty 
period on 6 consecutive days, completing their on-duty time at other 
than the home terminal, and then working the 7th consecutive day.
    Section 108(b)(1) and (g) of the RSIA of 2008, amend 49 U.S.C. 
21103(a)(4) effective on July 16, 2009, to provide that--
     In general, a railroad carrier and its officers and agents 
may not require or allow a train employee to remain or go on duty after 
the employee has initiated an on-duty period each day for 6 consecutive 
days unless the employee has had at least 48 consecutive hours (48 
hours) off duty at the employee's home terminal during which the 
employee is unavailable for service for any railroad carrier.
     However, an employee may work a seventh consecutive day if 
the employee ends the sixth consecutive day at a location other than 
the employee's home terminal. After that, the employee must be given 72 
consecutive hours (72 hours) off duty at the home terminal.
     An employee may also work 7 consecutive days if a 
collective bargaining agreement or pilot project allows such a 
schedule.
     If an employee initiates an on-duty period each day for 7 
consecutive days, the employee must receive 72 hours off duty at the 
employee's home terminal, during which the employee is unavailable for 
service for any railroad carrier.
    FRA may waive both the 6-consecutive-day and 7-consecutive-day 
provisions if a collective bargaining agreement provides for a 
different arrangement and that arrangement is in the public interest 
and consistent with railroad safety.
1. Is a ``Day'' a Calendar Day or a 24-Hour Period for the Purposes of 
This Provision?
    Although 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. This interpretation 
should promote administrative simplicity, and is consistent with what 
has seemed to be the understanding of the industry.
2. If an Employee is Called for Duty But Does Not Work, Has the 
Employee Initiated an On-Duty Period? Is There a Call and Release? What 
if the Employee Has Reported?
    If an employee is called to report for duty at a particular time, 
but is notified of his or her release from that call prior to the time 
the employee is scheduled to report for duty, then the employee has not 
accrued any time on duty, and has the full time remaining to work 
without having to receive another statutory off-duty period. The 
employee has not initiated an on-duty period. This is true whether or 
not the employee has yet arrived at the location at which he or she was 
to report for duty, so long as the employee is notified of the release 
prior to the time he or she was to report.
    However, if the employee reports for duty at the time that he or 
she is scheduled to report, and then is released at a time after that, 
the period from the report time until the release time is time on duty, 
by which amount of time the time remaining for that employee to work 
before a statutory off-duty period is required must be reduced, and the 
employee has initiated an on-duty period for the purpose of the 6- or 
7-day limitation.
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?
    Scenario 1: An employee initiates an on-duty period for five 
consecutive days. On the next day the employee deadheads from a duty 
assignment to the place of final release that is the employee's home 
terminal. Does the deadheading on the 6th day count as initiating an 
on-duty period so that afterwards the employee is entitled to a minimum 
of 48 hours off duty?
Analysis of Scenario 1
    Deadheading from a duty assignment to a place of final release is 
neither time on duty, nor time off duty. Therefore, such a deadhead 
could not itself constitute initiating an additional on-duty period, 
separate from the one from which the employee was deadheaded.
    Similarly, if the deadhead was unconnected to a duty tour, meaning 
that the employee had received at least a statutory off-duty period 
before being deadheaded back to the home terminal, the deadhead would 
still be neither time on duty nor time off duty, and would not 
constitute initiating an on-duty period.
    Therefore, if an employee is deadheaded back to the home terminal 
on the 6th day, the 48-hour rest requirement would not be triggered by 
the deadhead transportation, because the employee would not have 
initiated an on-duty period on 6 consecutive days.
    However, if an employee is deadheaded to the home terminal and then 
performs covered service without having received at least a statutory 
off-duty period, then the deadhead would be a deadhead to duty, which 
is time on duty under the statute, and would constitute