Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008, 58829-58854 [2013-23151]

Download as PDF Vol. 78 Tuesday, No. 185 September 24, 2013 Part VI Department of Transportation mstockstill on DSK4VPTVN1PROD with RULES5 Federal Railroad Administration 49 CFR Part 228 Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008; Final Rule VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\24SER5.SGM 24SER5 58830 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 228 [Docket No. 2013–0011, Notice No. 1] Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008 Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Interim statement of agency policy and interpretation, hours of service laws as amended in 2008; request for public comment. AGENCY: The hours of service laws are Federal railroad safety laws that govern such matters as the maximum on-duty periods and minimum off-duty periods for railroad employees performing certain functions. In this document FRA supplements its existing interpretations of the hours of service laws by stating the agency’s interim position on some additional interpretive questions primarily involving two provisions of those laws that were added in 2008. First, this document further interprets the hours of service laws related to train employees, particularly the ‘‘consecutive-days’’ provision of those laws. Although the consecutive-days provision was also discussed in FRA’s June 2009 interim interpretations and February 2012 final interpretations, this document addresses the application of that provision to certain circumstances that were not specifically addressed in those interpretations. Second, this document further interprets the provision of the hours of service laws that makes signal employees operating motor vehicles subject to the hours of service laws and other hours of service requirements administered by FRA and exempt from the hours of service requirements promulgated by any other Federal authority. FRA invites public comment on these additional interim interpretations. DATES: This document is effective October 24, 2013. Comments on the interim interpretations are due by November 25, 2013. Late-filed comments will be considered to the extent practicable. ADDRESSES: You may submit comments on the interim interpretations set forth in this document, identified as Docket No. FRA–2013–0011, 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. mstockstill on DSK4VPTVN1PROD with RULES5 SUMMARY: VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 • 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. Note that all submissions received will be posted without change to https:// www.regulations.gov including any personal information. 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: 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 George C. Hartman, Acting Staff Director, Signal and Train Control Division, Office of Safety Assurance and Compliance, FRA, Mail Stop 25, West Building 3rd Floor West, Room W35–333, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202–493–6225). SUPPLEMENTARY INFORMATION: Abbreviations of Terms Frequently Used in This Document AAR Association of American Railroads BRS Brotherhood of Railroad Signalmen CFR Code of Federal Regulations ch. chapter FMCSA Federal Motor Carrier Safety Administration FRA Federal Railroad Administration HS hours of service (when the term is used as an adjective, except as part of the name of an Act of Congress or the title of a document, and not when the term is used as a noun) RSIA Rail Safety Improvement Act of 2008, Public Law 110–432, Div. A, 122 Stat. 4848 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Sec. Section (Unless otherwise noted, all references to a ‘‘Sec.’’ are to a section in title 49 of the U.S. Code.) U.S.C. United States Code Definitions of Terms Frequently Used in This Document 1 Consecutive-days provision of the HS laws means 49 U.S.C. 21103(a)(4). Consecutive-days provision of the Passenger Train Employee HS Regulations means 49 CFR 228.405(a)(3). Extended-rest provision of the HS laws means 49 U.S.C. 21103(a)(4). Extended-rest provision of the Passenger Train Employee HS Regulations means 49 CFR 228.405(a)(3). Final Interpretations means FRA’s ‘‘Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended; Response to Public Comment’’ published at 77 FR 12408–31 (February 29, 2012). Freight train employee means a train employee who is not a passenger train employee. June 2009 Interim Interpretations means FRA’s ‘‘Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended; Proposed Interpretation; Request for Public Comment’’ published at 74 FR 30665–77 (June 26, 2009). Passenger train employee means a train employee who is engaged in commuter or intercity rail passenger transportation, as defined by 49 CFR 228.403(c). Passenger Train Employee HS Regulations means the passenger train employee hours of service regulations codified at 49 CFR part 228, subpart F. Second Interim Interpretations means this document, FRA’s ‘‘Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008; Request for Public Comment’’ published on September 24, 2013. ‘‘Signal employee exclusivity’’ provision means 49 U.S.C. 21104(e). Secretary means the Secretary of Transportation. Table of Contents for Supplementary Information I. Executive Summary of the Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008 (Second Interim Interpretations) A. Statutory and Regulatory Background and FRA’s Previous Interpretations 1 See also Appendix A to this document for a table briefly summarizing the Federal hours of service requirements. Many terms frequently used in this document are defined in FRA’s regulations at 49 CFR 228.5. E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations (Section II and Section III.A of the Second Interim Interpretations) B. Unavailability for Service for Purposes of the Statutory Consecutive-Days Provision (Sec. 21103(a)(4)) (Section III.B of the Second Interim Interpretations) C. Primarily, Initiating an On-duty Period for Purposes of Sec. 21103(a)(4); Secondarily, Application of Subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of Sec. 21103 (Section III.C of the Second Interim Interpretations) D. Requirements after Final Release at the Away-from-Home Terminal after the Employee Has Initiated an On-duty Period on Six Consecutive Days (Section III.D of the Second Interim Interpretations) E. ‘‘Signal Employee Exclusivity’’ Provision (Section IV of the Second Interim Interpretations) II. Background on the Hours of Service Laws and FRA’s Previous Publications Interpreting the Hours of Service Laws as Amended in 2008 III. Additional Questions Primarily Regarding the Consecutive-Days Limitation for Freight Train Employees and the Requirement of at Least 48 or 72 Hours Off Duty at the Home Terminal During Which Time the Employee Is Unavailable for Service for Any Railroad A. Legislative, Statutory, and Regulatory Background on the Hours of Service Requirements Related to Train Employees B. When Is a Train Employee Unavailable for Service for Any Railroad Such That the Extended Rest of 48 or 72 Hours Required by Sec. 21103(a)(4) May Begin to Run? 1. Summary of Issue and Interim Interpretation 2. Detailed Discussion of Interim Interpretation C. How Does Sec. 21103(a)(4) Apply to an Employee Who Initiates an On-Duty Period Performing Multiple Types of Covered Service During One Duty Tour or Within a Period of Six or Seven Consecutive Days? How Do Subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of Sec. 21103 Apply to an Employee Performing Multiple Types of Covered Service Within the Relevant Time Periods? 1. Summary of Issues and Interim Interpretation 2. Detailed Discussion of Interim Interpretation a. Option 1: Broad Reading—All Forms of Covered Service Count as Initiating an On-Duty Period Under Under Sec. 21103(a)(4). b. Option 2: Narrow Reading—Only Duty Tours Including Time Engaged in or Connected With the Movement of a Train Count as Initiating an On-Duty Period Under Sec. 21103(a)(4). c. Decision: FRA Chooses the Narrow Reading of ‘‘On-Duty Period’’ for Purposes of Sec. 21103(a)(4). d. Further Clarification: Service as a Passenger Train Employee Is Within the Scope of ‘‘On-Duty Period’’ Under Sec. 21103(a)(4), Despite the Sec. 21102(c) Exemption. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 e. Further Clarification: Service as a Passenger Train Employee Is Within the Scope of the Calendar Monthly Limits Set by Sec. 21103(a)(1) and (c)(1). f. Further Clarification: Requirements for Rest Set by Sec. 21103(a)(3), (c)(4), and (e), After a Single Duty Tour That Includes Service as a Freight Train Employee, Must Also Be Met Before Performing any Service for the Railroad or Else the Additional Service Will Commingle. g. Further Clarification: Single Duty Tours Performing Multiple Types of Covered Service h. More Examples of the Application of the Statutory or the Regulatory ConsecutiveDays Provision, or Both, to a Single Duty Tour or to Several Duty Tours Involving Performance of One or More Types of Covered Service D. Under Sec. 21103(a)(4), a Railroad May Not Require or Allow a Train Employee To Initiate an On-Duty Period After the Employee Has Initiated an On-Duty Period Each Day for Six Consecutive Days Followed by More Than 24 Hours Off Duty at the Away-From-Home Terminal. Following Such Service, When that Employee Returns to the Home Terminal, the Employee Must Remain Unavailable for Service at the Home Terminal for at Least 48 Hours 1. Summary of Issue and Interim Interpretation 2. Detailed Discussion of Interim Interpretation IV. Application of the ‘‘Signal Employee Exclusivity’’ Provision to Individuals Who Drive Commercial Motor Vehicles for the Purpose of Themselves Installing, Maintaining, or Repairing Signal Systems A. Summary of Issue and Interim Interpretation B. Detailed Discussion of Issue and Interim Interpretation C. Reiteration of FRA’s Longstanding Interpretations of Travel Time Involving Signal Employees I. Executive Summary of the Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008 (Second Interim Interpretations) A. Statutory and Regulatory Background and FRA’s Previous Interpretations (Section II and Section III.A of the Second Interim Interpretations) Federal laws governing railroad employees’ hours of service date back to 1907 2 and are presently codified as positive law at Secs. 21101–21109 3 and 2 See the Hours of Service Act (Pub. L. 59–274, 34 Stat. 1415 (1907)). Effective July 5, 1994, Public Law 103–272, 108 Stat. 745 (1994), repealed the Hours of Service Act as amended, then codified at 45 U.S.C. 61–64b, and also revised and reenacted its provisions, without substantive change, as positive law at Sec. 21101–21108 and 21303. 3 These sections may also be cited as 49 U.S.C. chapter 211. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 58831 21303.4 FRA, under delegations from the Secretary of Transportation,5 has long administered the statutory HS requirements for the three groups of employees now covered by the statute; namely, employees performing the functions of a train employee, signal employee, or dispatching service employee, as those terms are defined at Sec. 21101. These terms are also defined for purposes of FRA’s HS recordkeeping and reporting regulations (49 CFR part 228, subpart B) at 49 CFR 228.5 and discussed in FRA’s ‘‘Requirements of the Hours of Service Act; Statement of Agency Policy and Interpretation’’ at 49 CFR part 228, appendix A, most of which was issued in the 1970s. The HS statutory requirements have been amended several times over the years, most recently by the Rail Safety Improvement Act of 2008 6 (RSIA). The RSIA substantially amended the requirements of Sec. 21103, applicable to a train employee, defined as an ‘‘individual engaged in or connected with the movement of a train, including a hostler,’’ 7 and the requirements of Sec. 21104, applicable to a signal employee, defined as an ‘‘individual who is engaged in installing, repairing, or maintaining signal systems.’’ 8 The RSIA also added new provisions at Secs. 21102(c) and 21109 that together made train employees providing rail passenger transportation subject not to Sec. 21103 but to HS regulations, if issued timely by the Secretary. Subsequently, FRA, as the Secretary’s delegate, issued those regulations, codified at 49 CFR part 228, subpart F (Passenger Train Employee HS Regulations), which became effective on October 15, 2011. Until those regulations were issued, train employees providing commuter rail passenger transportation or intercity rail passenger transportation were subject to Sec. 21103 as it existed immediately before the RSIA amendments. Following the enactment of the RSIA, FRA published an interim statement of agency policy and interpretation (June 2009 Interim Interpretations) to address questions of statutory interpretation that 4 For a table comparing and contrasting the current Federal hours of service (HS) requirements with respect to freight train employees, passenger train employees, signal employees, and dispatching service employees, please see Appendix A to the Second Interim Interpretations. 5 See 49 CFR 1.89. 6 Public Law 110–432, Div. A, 122 Stat. 4848. 7 Sec. 21101(5). 8 Sec. 21101(4). The RSIA also amended the definition of ‘‘signal employee’’ effective October 16, 2008. Before the RSIA, the term meant ‘‘an individual employed by a railroad carrier who is engaged in installing, repairing, or maintaining signal systems.’’ Emphasis added. E:\FR\FM\24SER5.SGM 24SER5 58832 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 had arisen so far with respect to the HS laws as amended by the RSIA (the new HS laws). 74 FR 30665 (June 26, 2009). Subsequently FRA published final interpretations that responded to public comments on the June 2009 Interim Interpretations and made certain revisions. 77 FR 12408 (February 29, 2012) (Final Interpretations). In responding to those comments, FRA recognized that the commenters had raised some important issues on which FRA had not taken a position in the June 2009 Interim Interpretations. Section III of the Second Interim Interpretations, below, addresses several such issues, each related primarily to the consecutive-days limitations and extended-rest requirements of Sec. 21103(a)(4), but also touching on other requirements of Sec. 21103 and on the extended-rest requirements of the Passenger Train Employee HS Regulations (49 CFR 228.405(a)(3)). Further, following the publication of the Final Interpretations, in responding to a letter dated April 9, 2012, from the Association of American Railroads (AAR), FRA agreed in a letter dated June 22, 2012, to address the agency’s exclusive Federal jurisdiction over the HS of signal employees in a notice to be published in the Federal Register. This issue is discussed in Section IV of the Second Interim Interpretations, below. For these reasons, FRA has decided to publish the Second Interim Interpretations to deal with these important issues, and to seek public comment on these issues, so that FRA will be able to speak to the concerns raised by the industry with full understanding of the positions of the various parts of the industry, and the practical implications of these interpretations. B. Unavailability for Service for Purposes of the Statutory ConsecutiveDays Provision (Sec. 21103(a)(4)) (Section III.B of the Second Interim Interpretations) The extended-rest requirement of Sec. 21103(a)(4) is for a minimum of 48 or 72 ‘‘consecutive hours off duty at the employee’s home terminal during which time the employee is unavailable for any service for any railroad carrier.’’ Emphasis added. The question of what it means to be ‘‘unavailable for service’’ under Sec. 21103(a)(4) and, therefore, when an employee begins his or her required minimum 48 or 72 consecutive hours off duty at the employee’s home terminal, was not addressed in the June 2009 Interim Interpretations. Rather, the issue was raised by implication in public comments on the June 2009 Interim Interpretations addressing the VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 application of Sec. 21103(a)(4) with respect to employees who are released immediately after reporting for duty, if this release occurs on the sixth or seventh consecutive day on which the employee has initiated an on-duty period. FRA concludes that an employee who has worked less than the maximum of 12 consecutive hours or 12 hours in the aggregate under the HS laws, is considered to have received sufficient rest to comply with Sec. 21103(a)(4) if that employee in fact performs no further service for any railroad (‘‘de facto unavailability’’) during a 48- or 72-hour rest period at the employee’s home terminal. The merely theoretical, legal availability of the employee to be required or allowed to return to work all or part of the remainder of the employee’s maximum duty tour 9 does not in itself negate the employee’s unavailability for purposes of Sec. 21103(a)(4). In addition, notification of the employee that the 48or 72-hour rest period has begun is not required. Likewise, an employee who has reached the maximum of 12 hours of time on duty also may begin both the statutory minimum off-duty period and the 48- or 72-hour extended-rest period concurrently. FRA considered two alternatives to its interim interpretation. Under one alternative, an employee would not be deemed unavailable for service and subject to the extended rest required by Sec. 21103(a)(4) until the employee is legally unavailable for further service. The other alternative would base an employee’s unavailability for service on the notice provided to the employee as to the nature and duration of the off-duty period at the time that the employee began the off-duty period. For reasons described below, FRA rejected both of these alternative interpretations. C. Primarily, Initiating an On-duty Period for Purposes of Sec. 21103(a)(4); Secondarily, Application of Subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of Sec. 21103 (Section III.C of the Second Interim Interpretations) With certain exceptions, Sec. 21103(a)(4) prohibits a railroad from requiring or allowing an employee to go or remain on duty as a train employee after the employee has initiated an onduty period each day on six consecutive days unless that employee has received 9 Duty tour means—(1) The total of all periods of covered service and commingled service for a train employee or a signal employee occurring between two statutory off-duty periods (i.e., off-duty periods of a minimum of 8 to 10 hours); or (2) The total of all periods of covered service and commingled service for a dispatching service employee occurring in any 24-hour period. 49 CFR 228.5. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 the 48-hour rest period described above. If one of the exceptions applies, after the employee has initiated an on-duty period each day as a train employee on seven consecutive days, a 72-hour rest period is required before the employee goes on duty again as a train employee. The application of Sec. 21103(a)(4) to an employee who works in multiple types of covered service, either on a single day or during a period of six or seven consecutive days, was also not addressed in the June 2009 Interim Interpretations, but was raised in BLET and UTU’s joint comment on those Interim Interpretations, in which they asked for clarification on how Sec. 21103 and Sec. 21105 (which provides the HS limitations for dispatching service employees) interact. For reasons discussed in detail below, in Section III.C. 2.a–e of the Second Interim Interpretations, FRA interprets the relevant scope of ‘‘on-duty period’’ for purposes of Sec. 21103(a)(4) to extend only to on-duty periods as a train employee, including on-duty periods as either a freight train employee or a passenger train employee; accordingly, only when an individual performs train employee functions (i.e., is engaged in or connected with the movement of a train) will such an individual be considered to have ‘‘initiated an on-duty period’’ for the purposes of Sec. 21103(a)(4). Examples applying these principles are found primarily at Section III.C.2.h of the Second Interim Interpretations. FRA also considered an interpretation that would have counted all forms of covered service as initiating an on-duty period for the purposes of Sec. 21103(a)(4), so that even duty tours consisting only of service as a signal employee or a dispatching service employee, without any service as a train employee, would count toward the consecutive-days limitation of Sec. 21103(a)(4). This alternate interim interpretation was rejected for reasons explained in detail below in Section III.C. 2.a–c of the Second Interim Interpretations. Section III.C.2.f–g of the Second Interim Interpretations provides further clarification and examples of how the various statutory and regulatory limitations work together, and the application of the respective commingled service provisions (Secs. 21103(b)(3), 21104(b)(2), and 21105(c) and 49 CFR 228.405(b)(3)) to individual duty tours in which multiple types of covered service are performed. When an employee performs service that is governed by more than one HS requirement, the railroad must comply with all of the requirements governing that service during the relevant period E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 of time, including the most stringent of the requirements governing that service. As discussed in Section III.C. 2.e, for similar reasons, on an interim basis, FRA also interprets appropriate periods of time accrued in a passenger-trainemployee duty tour to count toward the respective limitations of Sec. 21103(a)(1) (limiting on-duty time and certain other service for the railroad to 276 hours per calendar month) and Sec. 21103(c)(1) (limiting certain limbo time per calendar month) if the employee engages in freight-train-employee duty tours in the same calendar month. Likewise, as discussed in Section III.C.2.f–g, although a duty tour that does not include any time spent as a freight train employee does not trigger the 10-hour statutory minimum off-duty period between duty tours required by Sec. 21103(a)(3), uninterrupted as required by Sec. 21103(e), or the requirement for ‘‘additional rest’’ under Sec. 21103(c)(4), once these requirements have been triggered by a duty tour including service as a freight train employee, the required off-duty period, including any necessary ‘‘additional rest,’’ must be provided before the employee performs any other service for the railroad, or else that subsequent service will commingle with the previous duty tour under Sec. 21103(b)(3). D. Requirements After Final Release at the Away-From-Home Terminal After the Employee Has Initiated an On-Duty Period on Six Consecutive Days (Section III.D of the Second Interim Interpretations) FRA has also not previously addressed the following question, which involves an exception to Sec. 21103(a)(4): May an employee initiate a seventh on-duty period 24 hours or more after the employee is finally released from his or her sixth consecutive duty tour at the employee’s away-from-home terminal, or does Sec. 21103(a)(4)(A)(i)–(ii) authorize a train employee to initiate an on-duty period only if it is consecutive to the sixth consecutive day? Under FRA’s interim interpretation, the railroad may not require or allow a train employee to initiate an on-duty period after the employee has initiated an on-duty period each day for six consecutive days, has been finally released at the away-from-home terminal, and then has spent more than 24 hours off duty there. Rather, as described below, the railroad may require or allow the employee to engage in non-covered service at the away-from-home terminal, if desired, but must deadhead the employee to his or her home terminal and must then VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 give the employee 48 hours off duty at the home terminal before requiring or allowing the employee to report for duty again to perform service as a freight train employee. In addition, if the railroad has nevertheless required or allowed the employee to initiate an onduty period at the away-from-home terminal after the seventh consecutive day, the railroad must give the employee 72 hours off duty at the home terminal before requiring or allowing the employee to report for duty again to perform as a freight train employee. FRA considered, but rejected for reasons discussed below, an alternative reading of the text, that would understand the authorization to ‘‘work a seventh consecutive day’’ as allowing one final initiation of an on-duty period when the employee ends the sixth consecutive onduty period at the away-from-home terminal, even if the initiation of that final on-duty period occurs after the seventh consecutive day. E. ‘‘Signal Employee Exclusivity’’ Provision (Section IV of the Second Interim Interpretations) Finally, the ‘‘signal employee exclusivity’’ provision (Section 21104(e)) states that the ‘‘hours of service, duty hours, and rest periods of signal employees shall be governed exclusively by [the HS laws]. Signal employees operating motor vehicles shall not be subject to any [HS] rules, duty hours or rest period rules promulgated by any Federal authority, including the [FMCSA] other than the [FRA].’’ FRA revises its prior interpretation of that provision. In the Final Interpretations, FRA took the position that driving a motor vehicle itself was noncovered service that would not count as time on duty; only if the driving occurred within a duty tour that included time when the employee was engaged in installing, repairing or maintaining signal systems, would the time spent driving commingle under the commingling provision at Section 21104(b)(2) and count as time on duty. As a consequence, the time spent driving that was separate from a duty tour that contained covered service was not time on duty as a signal employee that was governed by Sec. 21104, and could be subject to the HS regulations of the Federal Motor Carrier Safety Administration (FMCSA HS regulations). For the reasons described below, FRA’s new interim interpretation views an individual’s operation of a motor vehicle, when such driving is for the purpose of allowing that individual to install, repair, or maintain signal systems, to be a function that is time on PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 58833 duty under the ‘‘signal employee’’ provisions of the HS laws, regardless of whether the operation of the motor vehicle is within the same duty tour as the direct work on the signal system, or is separated from it by at least 10 hours off duty. As a result, such operation of a motor vehicle for that purpose is itself subject to the limitations of the HS laws, and to the exclusivity provision that exempts the operation from other Federal requirements concerning HS, duty hours, or rest periods, including FMCSA’s HS Regulations. It should be noted, however, that many of FRA’s longstanding interpretations of travel time for signal employees are unchanged. For example, normal commuting between the individual’s home and his or her regular reporting point is not time on duty. Those existing interpretations are briefly reiterated. II. Background on the Hours of Service Laws and FRA’s Previous Publications Interpreting the Hours of Service Laws as Amended in 2008 FRA is the agency of DOT that administers the Federal railroad safety laws.10 Federal laws governing railroad employees’ hours of service date back to 1907 11 and are presently codified as positive law at Secs. 21101–21109 12 and 21303.13 FRA, under delegations from the Secretary of Transportation (Secretary), has long administered the statutory HS requirements for the three groups of employees now covered by the statute; namely, employees performing the functions of a train employee, signal employee, or dispatching service employee, as those terms are defined at Sec. 21101. These terms are also defined for purposes of FRA’s hours of service recordkeeping and reporting regulations (49 CFR part 228, subpart B) at 49 CFR 228.5 and discussed in FRA’s ‘‘Requirements of the Hours of Service Act; Statement of 10 See 49 U.S.C. 103 (the statutory provision establishing FRA and conferring on the Administrator of FRA the duties and powers to carry out certain Federal railroad safety laws, including the hours of service (HS) laws) and 49 CFR 1.89 (the delegation from the Secretary of Transportation to the Administrator of FRA to carry out all the Federal railroad safety laws). 11 See the Hours of Service Act (Pub. L. 59–274, 34 Stat. 1415 (1907)). Effective July 5, 1994, Public Law 103–272, 108 Stat. 745 (1994), repealed the Hours of Service Act as amended, then codified at 45 U.S.C. 61–64b, and also revised and reenacted its provisions, without substantive change, as positive law at Sec. 21101–21108 and 21303. 12 These sections may also be cited as 49 U.S.C. chapter 211. 13 For a table comparing and contrasting the current Federal HS requirements with respect to freight train employees, passenger train employees, signal employees, and dispatching service employees, please see Appendix A to the Second Interim Interpretations. E:\FR\FM\24SER5.SGM 24SER5 58834 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 Agency Policy and Interpretation’’ at 49 CFR part 228, appendix A, most of which was issued in the 1970s. The HS statutory requirements have been amended several times over the years, most recently by the Rail Safety Improvement Act of 2008 (RSIA). See Public Law 110–432, Div. A, 122 Stat. 4848, enacted October 16, 2008. Section 108 of the RSIA, captioned ‘‘Hours-ofservice reform,’’ made important changes to 49 U.S.C. chapter (ch.) 211, Hours of Service, as amended through October 15, 2008 (the old HS laws). See 122 Stat. 4860–4866. Because of the significance of the amendments to the old HS laws made by Sec. 108 of the RSIA, FRA published an interim statement of agency policy and interpretation (June 2009 Interim Interpretations) to address questions of statutory interpretation that had arisen so far with respect to the HS laws as amended by the RSIA (the new HS laws). 74 FR 30665 (June 26, 2009). FRA also invited comment on the June 2009 Interim Interpretations. Subsequently FRA published final interpretations that responded to public comments on the June 2009 Interim Interpretations and made certain revisions. 77 FR 12408 (February 29, 2012) (Final Interpretations). In responding to those comments, FRA recognized that the commenters had raised some important issues on which FRA had not taken a position in the June 2009 Interim Interpretations. Further, responding to a letter dated April 9, 2012, from AAR, about the Final Interpretations, FRA agreed in a letter dated June 22, 2012, to address the agency’s exclusive Federal jurisdiction over the hours of service of signal employees in a notice to be published in the Federal Register. For these reasons, FRA has decided to publish these additional interim interpretations (Second Interim Interpretations) dealing with these important issues, and to seek public comment, so that FRA will be able to speak to the concerns raised by the industry with full understanding of the positions of the various parts of the industry on these issues. III. Additional Questions Primarily Regarding the Consecutive-Days Limitation for Freight Train Employees and the Requirement of at Least 48 or 72 Hours Off Duty at the Home Terminal During Which Time the Employee Is Unavailable for Service for Any Railroad A. Legislative, Statutory, and Regulatory Background on the Hours of Service Requirements Related to Train Employees Sec. 108 of the RSIA amended in various ways the then-existing limitations in the old HS laws on the duty hours of ‘‘train employees’’ at 49 U.S.C. 21103 and added new provisions at 49 U.S.C. 21102(c) and 21109 that as a group reformed the Federal scheme for the hours of service of train employees. The RSIA did not amend the definition of ‘‘train employee’’ at 49 U.S.C. 21101(5) (which continues to read ‘‘an individual engaged in or connected with the movement of a train, including a hostler’’) and did not amend the rules for determining ‘‘time on duty’’ under 49 U.S.C. 21103 (which continues to provide for counting as ‘‘time on duty’’ any other type of service for the railroad that occurred within the same duty tour as the train-employee covered service).14 However, the new provision at 49 U.S.C. 21102(c) created two separate sets of HS requirements for train employees based on the type of train service that the employees were performing at the relevant point in time. In particular, train employees when not providing commuter rail passenger transportation or intercity rail passenger transportation but otherwise engaged in or connected with the movement of a train (described in this document as ‘‘freight train employees’’) became subject to Sec. 21103 as amended by the RSIA (new Sec. 21103 or [unmodified] Sec. 21103). In contrast, train employees ‘‘when providing commuter rail passenger transportation or intercity rail passenger transportation’’ (described in this document as ‘‘passenger train employees’’) instead remained subject to 49 U.S.C. Sec. 21103 as it existed on the day before the enactment of the RSIA (old Sec. 21103) until October 15, 2011 and then on October 15, 2011, became subject to FRA’s regulations at 49 CFR part 228, subpart F, entitled ‘‘Substantive Hours of Service Requirements for Train Employees Engaged in Commuter or Intercity Rail Passenger Transportation’’ (Passenger 14 See 49 U.S.C. 21103(b)(3). See also definitions of ‘‘commingled service’’ and ‘‘duty tour’’ for purposes of FRA’s HS recordkeeping regulations at 49 CFR 228.5. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Train Employee HS Regulations). 76 FR 50397 (Aug. 12, 2011). Those regulations define a ‘‘train employee who is engaged in commuter or intercity rail transportation’’ to include all train employees engaged in commuter or intercity rail passenger transportation, and any other train employee who is employed by a commuter railroad or an intercity passenger railroad. 49 CFR 228.403(c). FRA intended by this language to clarify that train employees employed by passenger railroads who perform service such as work train service, or other such ancillary train service, as part of their employment for the commuter railroad or intercity passenger railroad, would be covered by the Passenger Train Employee HS Regulations, rather than the requirements of Sec. 21103. The definition also specifically excluded from the coverage of the Passenger Train Employee HS Regulations those train employees employed by other kinds of railroads who perform work train service or pilot service. 49 CFR 228.403(c). The Passenger Train Employee HS Regulations establish rules for determining ‘‘time on duty’’ that are identical to the rules in Sec. 21103(b), but contain a somewhat different set of HS requirements for passenger train employees. See 49 CFR 228.401 and 228.405. For example, under these regulations, 12 hours on duty not consecutively but in aggregate service in a 24-hour period as a passenger train employee triggers a requirement for only 8 consecutive hours off duty, whereas under Sec. 21103(a)(3), 12 hours on duty in a 24-hour period (even if not 12 consecutive hours) as a freight train employee must be followed by 10 hours off duty, and under Sec. 21103(e) those hours must not be interrupted by a communication from the railroad ‘‘that could reasonably be expected to disrupt the employee’s rest[,]’’ except in an emergency. In addition, the Passenger Train Employee HS Regulations contain no equivalent to several of the limitations added by the RSIA for freight train employees, such as Sec. 21103(e)’s requirement that minimum off-duty periods and periods of interim release must be uninterrupted by communications from the railroad ‘‘that could reasonably be expected to disrupt the employee’s rest,’’ or Sec. 21103(a)(1)’s limit for freight train employees of 276 hours per calendar month spent either on duty, awaiting or in deadhead transportation from a duty assignment to the employee’s point of final release, or in other mandatory service for the railroad. E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Among the amendments to old Sec. 21103 made by Sec. 108(b) of the RSIA was the addition of a provision, codified at 49 U.S.C. 21103(a)(4) (Sec. 21103(a)(4)), that requires that, as a general rule, after a train employee initiates an on-duty period each day for six consecutive days,15 the employee must have received ‘‘at least 48 consecutive hours off duty at the employee’s home terminal during which time the employee is unavailable for any service for any railroad carrier’’ before the employee may go on duty again. Sec. 21103(a)(4)(A) provides an exception to this general rule: that if the on-duty period that was initiated on the sixth consecutive day ends at a location other than the employee’s 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 which time the employee is unavailable for any service for any railroad carrier . . . .’’ Sec. 21103(a)(4)(B) provides that employees may also initiate an on-duty period for a seventh consecutive day and must then receive 72 consecutive hours off duty at the employee’s home terminal 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 either by a collective bargaining agreement entered into during that period or provided for by a pilot program that is authorized by collective bargaining agreement or by a pilot program under the HS laws at Sec. 21108 related to work and rest cycles. Sec. 21103(a)(4) also provides that the Secretary may waive the requirements of 48 and 72 consecutive hours off duty (extended rest) if all of the following requirements are met: (1) The procedures of Sec. 20103 are followed (i.e., essentially, public notice and an opportunity for an oral presentation are provided prior to issuing the waiver); (2) a collective bargaining agreement provides a different arrangement; and (3) the Secretary determines that the arrangement is in the public interest and consistent with safety. See the undesignated last sentence of Sec. 21103(a)(4). In the Final Interpretations, FRA construed ‘‘day’’ for the purposes of Sec. 21103(a)(4) to refer to the 24-hour period during which a duty tour takes 15 For additional discussion of the meaning of ‘‘consecutive day’’ in this context, see Final Interpretations, section IV.B.1, 77 FR at 12417–19. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 place. Given that redefinition of ‘‘day,’’ two initiations of an on-duty period are on consecutive days where they are separated by less than 24 hours of time off duty, measured from the time of the employee’s final release from duty until the time that the employee next reports for duty.16 B. When is a train employee unavailable for service for any railroad such that the extended rest of 48 or 72 hours required by sec. 21103(a)(4) may begin to run? 1. Summary of Issue and Interim Interpretation The question of what it means to be ‘‘unavailable for service’’ under Sec. 21103(a)(4) and, therefore, when an employee begins his or her required minimum 48 or 72 hours off duty at his or her home terminal, was not addressed in the June 2009 Interim Interpretations. Rather, the issue was raised by implication in public comments on the June 2009 Interim Interpretations addressing the application of Sec. 21103(a)(4) with respect to employees who are released immediately after reporting for duty, if this release occurs on the sixth or seventh consecutive day on which the employee has initiated an on-duty period. See, e.g., comments of the Brotherhood of Locomotive Engineers and Trainmen and the United Transportation Union, Docket No. FRA– 2009–0057–0044, at 6. For the reasons discussed below, FRA concludes that an employee who has worked less than the maximum of 12 consecutive hours or 12 hours in the aggregate under the HS laws, will be considered to have received sufficient rest for the railroad to comply with Sec. 21103(a)(4) if that employee in fact is not required or permitted to perform further service (de facto unavailability’’) during a 48- or 72hour rest period. Furthermore, the merely theoretical, legal availability of the employee to be required or allowed to return to work all or part of the remainder of the employee’s maximum duty tour, does not in itself negate the employee’s unavailability for purposes of Sec. 21103(a)(4). and that notification of the employee that the 48- or 72-hour rest period has begun is not required. Naturally, an employee who has reached the maximum of 12 hours of time on duty also may begin both the statutory minimum off-duty period and 16 Note, however, that due to the nature of passenger train employee assignments and the timespecific limitations of the Passenger Train Employee HS Regulations, the consecutive-days limitation for passenger train employees considers the initiation of on-duty periods on a specified number of calendar days rather than 24-hour periods. See 49 CFR 228.405(a)(3). PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 58835 the 48- or 72-hour extended rest period concurrently. The language of Sec. 21103(a)(4)(A) and (B) states repeatedly that during the 48- or 72-hour off-duty period, the employee must be ‘‘unavailable for any service for any railroad carrier.’’ As was discussed in the Final Interpretations in section IV.B.1, 77 FR at 12420–21, FRA understands this statutory language to mean that the extended-rest period required by Sec. 21103(a)(4) begins when a train employee is ‘‘finally released from duty’’ within the meaning of Sec. 21103(b), which establishes the rules for determining under subsection (a) of this section the time a train employee is on or off duty[,]’’ and that when the employee is finally released from duty, both the minimum extendedrest period required by Sec. 21103(a)(4) (48 or 72 hours as appropriate) and the other statutory minimum off-duty periods 17 begin to run concurrently, not consecutively. In the event that the railroad calls the employee back to perform additional covered service,18 or other service for the carrier (such as to deadhead to a new point of final release prior to the completion of a statutory off-duty period), this additional service within the 24-hour period that began when the employee reported for duty is classified as ‘‘time on duty’’ or ‘‘neither time on duty nor time off duty’’ for purposes of Sec. 21103(a). as those terms are discussed in Sec. 21103(b), that will attach to and extend the prior duty tour. As a result, the required rest periods would both start anew at the point in time of the subsequent release from duty, and the period of time previously considered to be accruing towards the statutory minimum off-duty period before the employee was called for additional service would become either time on duty or an interim 17 For train employees providing freight train service, the ‘‘statutory minimum off-duty period’’ is defined by Sec. 21103(a)(3) to be a minimum of 10 consecutive hours, as potentially extended by Sec. 21103(c)(4) if the combination of an employee’s time on duty and time spent waiting for or in deadhead transportation to the point of final release exceeds 12 hours, with any time in excess of 12 hours added to the statutory minimum off-duty period. See also 49 CFR 228.5. While it is true that other rest periods required by the statute, such as the 48- or 72-hour rest period required by Sec. 21103(a)(4) and the additional rest that may be required under Sec. 21103(c)(4), are also ‘‘statutory minimum’’ rest periods, the term ‘‘statutory minimum off-duty period’’ has been defined in FRA’s HS recordkeeping regulation at 49 CFR 228.5 to refer to the off-duty period required to begin a new 24-hour period for the purpose of calculating total time on duty. 18 For train employees, ‘‘covered service’’ is service ‘‘engaged in or connected with the movement of a train,’’ as described in 49 U.S.C. 21101(5). See also definition of ‘‘covered service’’ at 49 CFR 228.5. E:\FR\FM\24SER5.SGM 24SER5 58836 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations release.19 Once an employee is finally released from duty after having initiated an on-duty period on a sixth or seventh consecutive day, the employee is required to receive a statutory minimum off-duty period of at least 10 hours, and the 48- or 72-hour extended rest period, respectively, either (1) when he or she has accumulated 12 or more hours of time on duty within the meaning of Sec. 21103(b), or (2) when the duty tour is at the 24-hour point from the beginning of the duty tour, therefore ending the employee’s availability to accrue additional time on duty within the duty tour due to Sec. 21103(a)(3), whichever event occurs first. This is necessary in order to ensure the employee receives sufficient rest before being required or allowed to go on duty again as a freight train employee. If neither of these events occurs, an employee could lawfully (under the HS laws) be called back to perform further covered service or other service for the railroad within the same duty tour, regardless of the expectation of either the employee or the railroad at the time that the employee was released. As will be described below, this retrospective determination of an employee’s unavailability, such that an employee is deemed to have been unavailable for service during the times in which the employee does not, in fact, perform service, is consistent with the text of the HS laws and prior FRA interpretations of those laws, takes heed of the structure of railroad operations, and provides clarity to both employees and railroads. FRA seeks comment on this interim interpretation that ‘‘unavailable’’ for the purposes of Sec. 21103(a)(4) means de-facto unavailability. mstockstill on DSK4VPTVN1PROD with RULES5 2. Detailed Discussion of Interim Interpretation Historically, FRA has not required employees or railroads to contemporaneously declare for what type of off-duty period the employee is being released, as there is no statutory requirement to provide such notification.20 Rather, the classification 19 An interim release for train employees is a period available for rest lasting at least 4 hours within a duty tour, as described in Sec. 21103(b)(5)–(b)(7). If an employee receives 10 or more hours of time off duty, the time off duty becomes a statutory minimum off-duty period rather than an interim release (unless additional time off is required under Sec. 21103(c)(4)). See also 49 CFR 228.5. 20 See Sec. 21103(b). See also, 49 CFR part 228, appendix A: ‘‘Any period available for rest that is of four or more hours and is at a designated terminal is off-duty time.’’ The appendix makes no reference to a requirement to notify an employee that the time available for rest is either an interim release or a statutory minimum off-duty period. See VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 of a duty period (and any periods of release within or following a duty tour) is determined by a retrospective look at the actions of the employee and the railroad to determine whether in fact the railroad required or allowed the employee to go or remain on duty during the purported period of release. Although a railroad may intend to provide an employee with an interim release, that release will ripen into a statutory minimum off-duty period as soon as the employee has had a sufficient number of hours off duty. Likewise, an employee may be released from duty and assume that the release is a final release that will be followed by a statutory minimum off-duty period, but be called back to resume the previous duty tour prior to or after an interim release of 4 hours or more, if the employee had not reached either the statutory maximum number of 12 hours of time on duty or the 24-hour point from the beginning of the duty tour. Nothing in the text of the RSIA compels FRA to change this interpretation of the laws, nor do the changes made to the statute by the RSIA reveal Congressional intent to modify this aspect of FRA’s application of the laws. Congress could have required a railroad to specify at the time of release whether a period of offduty time would be an interim release or a statutory minimum off-duty period, but has not chosen to do so. Before arriving at the decision that the determination of unavailability should be made retrospectively and be based on the employee’s de-facto unavailability, FRA considered two alternative interpretations of the requirement that the employee be unavailable for service for any railroad during the extended-rest period. FRA declines to adopt either of these alternative interpretations for the reasons explained below. First, FRA could instead have established a formalistic, bright-line rule that if an employee is legally available (under the HS laws) to perform additional service for the railroad then the employee is not yet unavailable, for purposes of Sec. 21103(a)(4), to begin his or her 48 or 72 hours off duty. Take the example of an employee who has begun a duty tour and then is released from duty without having accumulated a total of 12 hours of time on duty in the duty tour. The employee is legally available to perform additional service for the railroad until the earlier of three circumstances—until (1) the employee completes the remainder of his or her 12 also S. Rep. 91–604 (1969), reprinted in 1969 U.S.C.C.A.N. 1636, 1640 (not identifying any expectation that employees would be informed of the length of an upcoming rest period). PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 hours of time on duty in the duty tour; (2) the expiration of the 24-hour period that began at the commencement of the employee’s duty tour; or (3) the completion of a statutory minimum offduty period after the employee’s release from duty, which would also cut short the maximum 24-hour period that began at the commencement of the duty tour and begin a new 24-hour period in which the employee will accrue time on duty in the next duty tour, regardless of whether any additional service is actually performed after the employee is released. In the first circumstance, the employee is no longer legally permitted to perform service under Sec. 21103(a)(2) because the employee has served the maximum of 12 hours in the duty tour. In the second circumstance (the expiration of the 24-hours period that began when the employee started the duty tour), the employee is no longer legally permitted to perform service under Sec. 21103(a)(3) and must be given 10 consecutive hours off duty because the employee has not had at least 10 consecutive hours off duty during the prior 24 hours. In the third circumstance, the employee’s completion of the statutory minimum off-duty period has ended the employee’s duty tour, and the employee’s availability for service in that duty tour, and the employee is, therefore, no longer legally permitted to perform service under Sec. 21103(a)(4). Under this approach, the 48- or 72-hour off-duty period required by Sec. 21103(a)(4) would not begin to run until either the expiration of the 24-hour period that began when the employee reported for duty, or the beginning of a new 24-hour period by virtue of the employee’s having had a statutory minimum off-duty period The employee may have already been off duty for several hours or even a statutory minimum off-duty period, from the time of the employee’s release that ultimately became the employee’s final release from that duty tour, to the end of the 24hour period. In cases where the employee is off duty prior to the end of the 24-hour period, the practical effect of this approach would be to extend the 48- or 72-hour required off-duty period. Second, FRA could have taken a situational/notice-focused approach to the interpretation of unavailability, in which the agency would analyze the actual circumstances of each period of off-duty time, and the expectations of the employee and the railroad when the period began, to determine if the employee was made aware that he or she was ‘‘unavailable’’ during a given period of time, such that the period of E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations time would count toward the 48- or 72hour off-duty period. If the employee were not explicitly told he or she would no longer be available for service, the employee would remain available during the off-duty time until the expiration of the 24-hour period or until the employee had received a statutory minimum off-duty period. Both of these alternative interpretations share a maximal interpretation of the word ‘‘unavailable’’ in the statutory language, by construing an employee as available during a period simply because service during the given period would not violate the HS laws (i.e., the railroad is not prohibited from requiring or allowing the employee to perform the service), even if the employee did not actually perform service during the given period. However, the implications of these maximal interpretations are inconsistent with FRA’s existing interpretations. For example, to adopt the situational/ notice-focused interpretation, FRA would have to impose on railroads the burdensome new steps of (1) determining in advance whether a rest period provided to an employee who has not accrued 12 hours total time on duty within the duty tour is intended to be an interim release, or whether it will be a statutory minimum off-duty period of at least 10 hours that will render the employee unavailable for service, and (2) notifying the employee of this determination. Where such notification was not provided and the employee remained off duty, the ‘‘situational’’ analysis would result in an outcome identical to the broader bright-line rule; because the employee was not given notice that he or she would be made unavailable for additional service, the duty tour would not end until the end of the 24-hour period or the completion of a statutory minimum off-duty period. FRA would also be forced to determine how to handle situations in which a railroad requires further service from an employee who had not reached 12 hours total time on duty, after having notified the employee at the time of the release that he or she was being released for a statutory minimum off-duty period, and not available for subsequent service, given the lack of statutory or regulatory provisions to restrict such a practice, as discussed above. For related reasons, the bright-line, formalistic rule also would require sharp deviation from past interpretations and other provisions in the statutory text. If FRA were to adopt a bright-line rule, generally requiring an employee to have had a statutory minimum off-duty period of 10 hours before the period of extended rest of 48 VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 or 72 hours during which the employee is unavailable for service could begin, the total duration of the rest period required by new Sec. 21103 would, in effect, be extended by 10 hours. Nothing in the text of the RSIA requires explicitly that the extended-rest period and the statutory minimum off-duty period must run consecutively rather than concurrently. In contrast with Sec. 21103(a)(4), Sec. 21103(c) explicitly describes the time off duty required by that subsection as ‘‘additional time off duty’’ based on what has occurred in the preceding duty tour. Sec. 21103(a)(4)(A) simply describes the required time off as ‘‘at least 48 consecutive hours off duty . . . [,]’’ which is required after a series of duty tours. See also S. Rep. 110–270 at 20, which describes Sec. 21103(a)(4) as requiring an employee ‘‘to be given 48 consecutive hours of rest’’ immediately after discussing the statutory minimum off-duty period; had the rest periods been intended to run consecutively, the rest period required by Sec. 21103(a)(4) would have been described as ‘‘additional’’ or otherwise distinguished. The legislative history similarly lacks any discussion of the offduty periods running consecutively. With scant support for broadening the total required rest period to 58 or 82 hours, FRA is reluctant to do so, absent a compelling reason to read the statute in such a manner. Furthermore, both the situational/ notice-focused approach and the brightline, formalistic rule also apply poorly to the realities of the railroad industry. Because train employees are legally permitted to perform covered service for 12 hours in a 24-hour period, an employee who is released from duty after having performed less than 12 hours of service in a given duty tour is subject to being called for further service in that same duty tour. The situational/notice-focused approach would require employees to be notified in advance that they were not subject to being called for service after a release, contrary to past practice, in order to begin their extended-rest period prior to the end of the 24-hour period. The bright-line, formalistic rule, by instead stipulating that the extended-rest period may not begin until the 24-hour period is extinguished or exhausted, similarly does not account for the nature of railroad operations. Although a train employee who has performed 11 hours and 30 minutes of service may still theoretically return to perform service for another half hour, such brief service is exceedingly unlikely. FRA believes that requiring an employee in this situation to have a statutory minimum PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 58837 off-duty period or reach the end of the 24-hour period before he or she may begin the extended-rest period required by Sec. 21103(a)(4) takes an excessively formalist position on what it means for an employee to be ‘‘unavailable.’’ Finally, both the situational/noticefocused approach and the bright-line, formalistic rule would serve to create confusion as to how much rest is required. Because the extended-rest period would begin only when the employee became legally unavailable for further covered service, the start of the 48- or 72-hour period would generally be at the end of the 24-hour period that began when the employee initiated his or her sixth or seventh consecutive duty tour. However, if the employee were finally released from duty for a statutory minimum off-duty period less than 14 hours after initiating the on-duty period, then the extended-rest period would instead begin at the end of the employee’s statutory minimum off-duty period. As such, under both of these alternative rules (except under the situational approach in which the employee is notified of his or her unavailability at the time of the employee’s release, and does not in fact perform further service), the 48- or 72hour extended-rest period could be lengthened by 10 hours or more beyond the statutory requirement. In addition, the required length of the aggregate minimum rest period will vary depending on the length of the employee’s most recent duty tour, including interim releases and limbo time resulting from deadheading from a duty assignment to the place of final release, and whether the employee has reached his or her maximum of 276 hours for the calendar month under Sec. 21103(a)(1). In order for an employee to know when he or she may next be called to report for duty, the employee would have to be far more familiar with the intricacies of the HS laws then had previously been required. Of the three possible interpretations, FRA believes that its chosen interpretation, discussed above, which treats employees as unavailable for service when they are not in fact required or allowed to perform service (regardless of whether the employee might legally have been called to perform further service or whether the employee was notified in advance that the release would be for 48 or 72 hours), hews most closely to the language and intent of the statute. In addition to requiring more rest than specifically required by the statutory language, both of the alternative interpretations would also require significant changes to the railroad industry beyond those E:\FR\FM\24SER5.SGM 24SER5 58838 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations contemplated by Congress. The complexity of both of the alternative interpretations, in conjunction with those changes, would also create a significant risk of confusion in the industry, possibly leading to decreased compliance with the HS laws. Accordingly, FRA will interpret the extended-rest period as running concurrently with the statutory minimum off-duty period, with both beginning at the time an employee is finally released from his or her sixth or seventh consecutive duty tour. FRA seeks comment on this interim interpretation. mstockstill on DSK4VPTVN1PROD with RULES5 C. How does Sec. 21103(a)(4) apply to an employee who initiates an on-duty period performing multiple types of covered service during one duty tour or within a period of six or seven consecutive days? How do subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of Sec. 21103 apply to an employee performing multiple types of covered service within the relevant time periods? 1. Summary of Issues and Interim Interpretation The application of Sec. 21103(a)(4) to an employee who works in multiple types of covered service,21 either on a single day or during a period of six or seven consecutive days, was not addressed in the June 2009 Interim Interpretations. The issue was raised in BLET and UTU’s joint comment on the June 2009 Interim Interpretations, in which they asked for clarification on how Sec. 21103 and Sec. 21105 (which provides the HS limitations for dispatching-service employees) interact. The unions described an employee who regularly performs covered service as a train employee, but who occasionally works in a yardmaster position that may or may not include covered service as a dispatching service employee. The language of Sec. 21103(a)(4) is ambiguous and susceptible to several reasonable interpretations. Sec. 21103(b) establishes the various rules to apply ‘‘[i]n determining under subsection (a) of this section the time a train employee is on or off duty. . . .’’ It is arguable, however, that, even though Sec. 21103(b) determines what is ‘‘time on duty’’ or ‘‘time off duty’’ for purposes of Section 21103(a), Sec. 21103(b) does not determine what is an ‘‘on-duty period’’ for purposes of Sec. 21103(a)(4). For the 21 ‘‘Covered service’’ refers to any service subject to either Sec. 21103 (applicable to freight train employees), Sec. 21104 (applicable to signal employees), Sec. 21105 (applicable to dispatching service employees), or FRA’s Passenger Train Employee HS Regulations (applicable to passenger train employees). See also 49 CFR 228.5, definition of ‘‘Covered service.’’ VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 reasons discussed below, on an interim basis, FRA interprets the relevant scope of ‘‘on-duty period’’ for purposes of Sec. 21103(a)(4) to extend only to on-duty periods as a train employee, including on-duty periods as either a freight train employee or a passenger train employee; accordingly, only when an individual performs train employee functions (i.e., is engaged in or connected with the movement of a train) will such an individual be considered to have ‘‘initiated an on-duty period’’ for the purposes of Sec. 21103(a)(4). Therefore, only an on-duty period that includes service as either a freight train employee or a passenger train employee is counted as the initiation of an on-duty period for the purposes of Sec. 21103(a)(4). FRA does not consider an on-duty period including only signal-employee covered service or only dispatchingservice-employee covered service or a combination of these two types of service to constitute the initiation of an ‘‘on-duty period’’ under Sec. 21103(a)(4). FRA seeks comment on this interim interpretation. Further, because the limitation of Sec. 21103(a)(4) prohibits only going or remaining on duty as a freight train employee,22 FRA’s interim interpretation is that once the extendedrest requirement is triggered (by an employee initiating on-duty periods as a freight train employee or a passenger train employee each day on six or seven consecutive days), the employee is barred from performing covered service as a freight train employee until he or she has had the extended rest required by Sec. 21103(a)(4), but he or she is not barred by Sec. 21103(a)(4) from reporting for duty as a passenger train employee.23 Nor is the employee barred by Sec. 21103(a)(4) from reporting for duty as either a signal employee or a dispatching service employee, because neither of these types of covered service is subject to a consecutive-days limitation. FRA likewise seeks comment on this interim interpretation. FRA also invites comment on its interim interpretation that appropriate periods of time accrued in a passengertrain-employee duty tour count towards the respective limitations of Sec. 21103(a)(1) (limiting on-duty time and certain other service for the railroad to 276 hours per calendar month) and Sec. 21103(c)(1) (limiting certain limbo time 22 See 49 U.S.C. 21102(c)(3); see also 49 CFR 228.405. 23 However, if the employee had also reached the consecutive-days limitation in 49 CFR 228.405(a)(3), the employee would be barred by that regulatory provision from performing covered service as a passenger train employee. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 per calendar month) if the employee also engages in freight-train-employee duty tours in the same calendar month. FRA also requests comment on its related interim interpretation that while a duty tour that does not include any time spent as a freight train employee may not trigger the requirement for additional rest under Sec. 21103(c)(4), once the additional rest requirement has been triggered, the additional rest is added to the statutory minimum offduty period that must be provided before the employee performs any other service, or that subsequent service will commingle with the previous duty tour. 2. Detailed Discussion of Interim Interpretation In general, the function-based nature of the HS laws requires a contemporaneous determination of what covered service, if any, an individual has performed or is performing within relevant time periods, rather than considering any individual employee as always a covered-service employee based on the employee’s job title, or the functions that the employee is qualified to perform, regardless of the actual functions performed by the employee during a given period of time. For example, to ascertain if a locomotive engineer who has been performing freight-train-employee covered service is in violation of the 12-hour limitation on total time on duty in a duty tour at a given moment, one would look to the characteristics of that individual’s service for the railroad and decide, using Sec. 21103(b) as the guide for determining which periods of time were time on duty, whether the individual had accrued more than 12 hours of total time on duty, and therefore whether the railroad would violate Sec. 21103(a)(2) by allowing the individual to remain on duty. This application of the statute was relatively simple for the HS limitations that existed prior to the enactment of the RSIA, because both the limitations on total time on duty and minimum offduty periods were fairly easily applied and, most importantly, only affected the immediate duty tour. Under old Sec. 21103(a), after 12 hours on duty as a train employee, the employee was required to have 10 hours off duty prior to performing any additional service; after less than 12 hours on duty as a train employee, the employee was required to have 8 hours off duty prior to perform any additional service. However, the RSIA’s amendments to the HS laws now include limitations on service as a train employee that apply to much longer periods of time than a single duty tour. E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 In applying these limitations that look back and are applied to an employee’s activities either during a number of previous, consecutive days as in Sec. 21103(a)(4), or during an entire calendar month as in Sec. 21103(a)(1) and (c)(1), this temporal frame of reference becomes much more important.24 Each of the limitations of Sec. 21103(a) is phrased in the equivalent of the present tense 25 with the prior conduct discussed in the present perfect tense, indicating that the appropriate frame of reference is in the moment that a train employee is potentially required or allowed to engage in some activity— generally 26 remaining on duty or going on duty.27 With respect to the consecutive-days limitation, the result is that the limitation applies in the context of determining whether a train employee may be required or allowed to report for duty at a particular time, based on the employee’s prior history of initiating onduty periods. At the time that the employee reports for duty, the employee must necessarily be a train employee subject to Sec. 21103. Of course, if the employee were not subject to Sec. 21103 at a given time, he or she would not need to determine if Sec. 21103(a)(4) would prohibit the railroad from requiring or allowing him or her to report for duty. In determining the proper application of the consecutive-days limitation, the operative question is as follows: When a train employee looks back upon his or her prior service for the railroad in light of Sec. 21103(a)(4), does ‘‘an on-duty period’’ refer to (1) any form of on-duty period under 49 U.S.C. ch. 211 or FRA’s HS regulations for passenger train employees authorized by that chapter; or (2) ‘‘the time a train employee is on duty’’ under Sec. 21103(b)(2), meaning 24 Sec. 21103(a)(1) institutes a monthly 276-hour limitation on total time on duty, time spent waiting for or in deadhead transportation to the place of final release, and any other mandatory service for the carrier. 25 Literally, the limitations set forth at Sec. 21103(a) are written as prohibitions against the railroad requiring or allowing one of its train employees to commit a certain act (i.e., generally, to go or remain on duty) after certain prior conduct by the employee. The relevant provisions read: ‘‘a railroad carrier and its officers and agents may not require or allow a train employee to . . . remain or go on duty after that employee has initiated an onduty period each day. . . .’’ 26 Sec. 21103(a)(1) also prohibits a railroad from requiring or allowing a train employee to ‘‘be in any other mandatory service for the carrier in any calendar month where the employee has spent a total of 276 hours [in specified service for the railroad] . . .’’ Emphasis added. 27 See, e.g., Carr v. U.S., 130 S.Ct. 2229, 2236 (2010) (‘‘Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach.’’) VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 as either a freight train employee or a passenger train employee? a. Option 1: Broad Reading—All Forms of Covered Service Count as Initiating an On-Duty Period Under Sec. 21103(a)(4) A broad reading of ‘‘on-duty period’’ recognizes that Congress chose to distinguish between the terms ‘‘time on duty’’ and ‘‘on-duty period,’’ and incorporates that distinction into the understanding of which on-duty periods should be included in the determination of whether a train employee may report for duty without violating Sec. 21103(a)(4). The broad reading is consistent with the canon of statutory interpretation that distinctions in terms used by Congress should be given effect.28 In addition, FRA has previously acknowledged, in a contemporaneous interpretation of Sec. 21103(a)(4) that ‘‘on-duty period’’ cannot be synonymous with ‘‘time on duty.’’ See FRA’s Final Interpretations, section IV.B.4, ‘‘Does the initiation of an onduty period incident to an early release qualify as an initiation for the purposes of sec. 21103(a)(4)?’’ Final Interpretations, 77 FR at 12420–21. In order to avoid the peculiar outcome of an employee’s forced release from duty immediately after reporting for duty on a sixth consecutive day, FRA linked the concept of the ‘‘on-duty period’’ in this particular context to duty tours, with the ‘‘on-duty period’’ ending only at the end of the duty tour when the employee is finally released from duty.29 There is also statutory support for understanding ‘‘on-duty period’’ in the context of 49 U.S.C. ch. 211 as a whole, 28 See Sutherland § 46:6 (‘‘[C]ourts do not construe different terms within a statute to embody the same meaning. However, it is possible to interpret an imprecise term differently in two separate sections of a statute which have different purposes. Yet when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.’’) 29 ‘‘[T]he 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).’’ If FRA had instead considered an on-duty period to be something less than a duty tour, an employee who reported for duty on his or her sixth consecutive day, but was released from duty because, for example, the train for which the employee was called was not in fact available, that release would trigger the 48-hour rest requirement, because the employee had reported for duty, thereby initiating the on-duty period. However, as interpreted by FRA, the employee may be released for an interim release, with the possibility of being called to perform further service within the same duty tour, and the 48-hour rest requirement of Sec. 21103(a)(4) would not be triggered until the employee’s final release from that duty tour. Id. at 12421. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 58839 rather than consisting of only duty tours that include ‘‘time on duty’’ as defined in Sec. 21103(b). Prior to the 1994 recodification of the HS laws, which changed only the form of the laws but not their meaning,30 ‘‘time on duty’’ specifically included ‘‘[s]uch period of time as is otherwise provided by this Act.’’ Sec. 1(b)(3)(E) of the Hours of Service Act, then codified at 45 U.S.C. 61 (1994); repealed, revised, and reenacted without substantive change by Public Law 103–272. Although the current provisions governing signal employees and dispatching service employees govern the maximum time on duty in a duty tour and minimum off-duty periods of such individuals, as the more specifically applicable sections of the chapter, this definition of the term ‘‘on duty period’’ would nonetheless include time on duty in both of the other forms of covered service as within the scope of the ‘‘onduty period’’ referenced in Sec. 21103(a)(4). In the current text of the HS laws, 49 U.S.C. 21102(b) and 21109(a)(1) make reference to ‘‘on duty’’ generally to apply to all forms of covered service. Hereinafter, any reference to a subsection is to subsection of Sec. 21103. Additionally, the ‘‘signal employee exclusivity’’ provision, discussed in more detail in Section IV of this document, below, requires that the hours of service of signal employees ‘‘shall be governed exclusively by this chapter’’ (emphasis added), suggesting a broader scope. Each of these factors provides intrinsic textual support to the broad interpretation of Sec. 21103(a)(4), which would include all forms of onduty periods subject to 49 U.S.C. ch. 211 or FRA’s Passenger Train Employee HS Regulations authorized by that chapter (meaning as a freight train employee, a passenger train employee, a signal employee, or a dispatching service employee), as within the scope of Sec. 21103(a)(4)’s counting of consecutive days. b. Option 2: Narrow Reading—Only Duty Tours Including Time Engaged in or Connected With the Movement of a Train Counts as Initiating an On-Duty Period Under Sec. 21103(a)(4) Alternatively to Option 1 above, a narrow reading of ‘‘on-duty period’’ starts from the premise that Secs. 21103, 30 See Sutherland 28:11 (‘‘Inasmuch as the function of a code is principally to reorganize the law and to state it in simpler form, the presumption is that a change in language is for purposes of clarity rather than for a change in meaning.’’) The legislative history of the 1994 recodification also makes clear that the legislation did not create any substantive change to the application of any of the recodified laws, including the application of the HS laws. H. Rep. No. 1758, at 1, 3, 104–108 (1993). E:\FR\FM\24SER5.SGM 24SER5 58840 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 21104, and 21105 are distinct entities. Because each of the sections refers to time performing the respective forms of covered service as ‘‘time on duty,’’ the narrow reading implies that the sections must be read as wholly exclusive from one another. Under this reading, the fact that a form of covered service is recognized as time on duty under one section is irrelevant to its treatment under another section. This implication leads to the interpretation that, because Sec. 21103(b) defines ‘‘the time a train employee is on or off duty,’’ and because the employee is generally only subject to Sec. 21103 when he or she is on duty as a train employee, only time that is time on duty under Sec. 21103(b) should be considered a period of time on duty (i.e., an ‘‘on-duty period’’) for the purposes of Sec. 21103(a)(4). As such, only a duty tour including ‘‘time the employee is engaged in or connected with the movement of a train,’’ as specified by Sec. 21103(b)(2), is counted as a duty tour including the initiation of an on-duty period for the purposes of Sec. 21103(a)(4). Neither covered service solely as a signal employee as defined in Sec. 21104, nor covered service solely as a dispatching service employee as defined in Sec. 21105, is time engaged in or connected with the movement of a train. Without time, in the course of a duty tour, during which the individual is engaged in or connected with the movement of a train, the individual is not on duty under Sec. 21103(a), including Sec. 21103(a)(4), and therefore, under the narrow reading, the individual has not initiated an ‘‘onduty period.’’ c. Decision: FRA Chooses the Narrow Reading of ‘‘On-Duty Period’’ for Purposes of Sec. 21103(a)(4) Although FRA views both of these readings of ‘‘on-duty period’’ as reasonable, the narrow reading of ‘‘onduty period’’ is more consistent with FRA’s existing interpretations, which treat Secs. 21103, 21104, and 21105 as analytically distinct from one another. FRA also recognizes the potential for confusion that could result from applying the consecutive-days limitation to individuals for duty tours in which no train-employee covered service was performed. Prior agency interpretations noted that—‘‘[w]hen an employee performs service covered by more than one restrictive provision, the most restrictive provision determines the total lawful on-duty-time.’’ See discussion at 49 CFR part 228, app. A, under the heading ‘‘General Provisions (Applicable to All Covered Service),’’ ‘‘Commingled Service.’’ The narrow reading maintains that understanding by VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 counting days toward the consecutivedays limitation only when an individual performs train-employee covered service, regardless of what other activities the individual may perform during such duty tours. See, below, Section III.C.2.d–h of this document for further discussion and application of this principle. FRA recognizes that duty tours that contain only covered service as a signal employee or a dispatching service employee may contribute to the fatigue of the employees who perform such service, and that Congress established other limitations on the hours of service of employees performing these functions. In addition, an employee’s service for a railroad that is not covered service under the hours of service laws could also contribute to fatigue. FRA believes that the most logical reading of the statutory language would apply the consecutive-days limitation of Sec. 21103(a)(4) only to duty tours including covered service as a train employee, for the reasons described above. However, FRA will monitor the situation, and may consider revising this interpretation in the future if the fatigue implications warrant it. d. Further Clarification: Service as a Passenger Train Employee Is Within the Scope of ‘‘On-Duty Period’’ Under Sec. 21103(a)(4), Despite the Sec. 21102(c) Exemption With the adoption of the narrow reading of ‘‘on-duty period,’’ which includes only periods of time on duty as a train employee within the scope of that term in Sec. 21103(a)(4), an additional question is presented: does a period of time on duty spent exclusively as a passenger train employee (who is subject to the limitations of the Passenger Train Employee HS Regulations, rather than Sec. 21103, according to Sec. 21102(c)(3)) count as an ‘‘on-duty period’’ for the purposes of Sec. 21103(a)(4)? FRA believes that to include periods of time on duty as a passenger train employee as an on-duty period for the purposes of Sec. 21103(a)(4) is most consistent with the text of the statute as a whole and with the Passenger Train Employee HS Regulations as a whole. In the RSIA, Congress did not disturb the longstanding functional approach to determining when a train employee would be subject to the new Sec. 21103, and when a train employee would be subject first to old Sec. 21103, and ultimately to FRA’s regulations governing train employees engaged in commuter or intercity rail passenger transportation. Employees performing both kinds of service continue to be PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 called ‘‘train employees[,]’’ and the term ‘‘train employee’’ continues to be defined, for the purposes of both sets of applicable requirements, as an individual engaged in or connected with the movement of a train. Congress could have separately created the terms ‘‘freight train employee’’ and ‘‘passenger train employee’’ and defined the new terms to make clear that covered service as one kind of train employee does not count as covered service for the other kind of train employee. Similarly, Congress could have amended Sec. 21103(b)(2) and (3) by inserting ‘‘freight’’ in front of ‘‘train’’ to narrow the time counted toward ‘‘time on duty’’ for purposes of Sec. 21103(a). Likewise, Congress also could have written the language of Sec. 21103(a)(4) to limit it expressly, so that it only applied to initiating an on-duty period as a freight train employee, or as a train employee subject only to the requirements of this section in the particular duty tour. Congress did not do any of these. For that matter, Congress did not even expressly limit the language of Sec. 21103(a)(4) to initiating an on-duty period as a train employee, though FRA does so limit the provision for the purposes of this interim interpretation, for the reasons described in this Section III.C.2.b–c. By contrast, in the RSIA, Congress amended the definition of ‘‘signal employee,’’ so that it no longer applied only to railroad employees performing the functions of a signal employee. See Sec. 108(a) of the RSIA and Sec. 21101(4). However, the definition of ‘‘train employee’’ in the very next paragraph of the statute was not changed, and no distinction was created functionally between train employees in freight or passenger service. See 49 U.S.C. 21101(5). Each is still simply called ‘‘train employee[,]’’ and that term should be interpreted to mean the same thing in all places that it is used in the statute, and the provisions applicable to that type of employee must apply to all employees so defined. In addition, the functional approach to determining when an individual becomes a covered service employee of one form or another means that the individual is a passenger train employee for purposes of the Passenger Train Employee HS Regulations only during those periods of time within which he or she is a train employee who is engaged in commuter or intercity rail passenger transportation, as detailed in 49 CFR 228.405(b) (‘‘Determining time on duty), e.g., being engaged in or connected with the movement of a train, including being a hostler, providing E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations commuter or intercity rail passenger transportation. Note that under 49 CFR 228.405(b)(3) periods spent performing other types of covered service and noncovered service count as on-duty time as a passenger train employee if they occur in the same duty tour as passenger-train-employee covered service. However, Sec. 21102(c)(3)(B) exempts railroads from compliance with Sec. 21103 for ‘‘train employees with respect to the provision of commuter rail passenger transportation or intercity rail passenger transportation’’; i.e., passenger train employees. Therefore, individuals are subject to the Sec. 21102(c)(3)(B) exemption only while they are performing covered service as a passenger train employee. Any individual who is not a train employee who is engaged in commuter or intercity rail passenger transportation is not subject to the Sec. 21102(c)(3)(B) exemption. Because Sec. 21102(c)(3)(B) exempts railroads from compliance with Sec. 21103 with respect to all passenger train employees, an individual who is subject to Sec. 21103 is necessarily not within the scope of the exemption provided by Sec. 21102(c)(3)(B) and is not a passenger train employee at the time when the individual is subject to Sec. 21103. Because any individual who is subject to Sec. 21103 is not subject to Sec. 21102(c)(3)(B), the distinction between service as a passenger train employee and freight train service is irrelevant when applying Sec. 21103. The text of Sec. 21103 makes no distinction between freight trains and passenger trains. Recalling that the definitions in Sec. 21103(b)(2) and (3) of ‘‘time on duty’’ for purposes of Sec. 21103(a)(4) are phrased in the present tense and that all limitations of Sec. 21103(a) are phrased in the equivalent of the present tense, with prior conduct discussed in the present perfect tense, the appropriate frame of reference for determining whether Sec. 21103(a)(4) precludes the employee from being on duty is the time when the employee seeks to go on duty, including only those exemptions or exclusions that apply to the employee at that moment. Therefore, when an employee reports for duty as a freight train employee subject to Sec. 21103, any prior time on duty ‘‘engaged in or connected with the movement of a train,’’ regardless of whether it was as a passenger train employee or freight train employee, is counted when determining whether Sec. 21103(a)(4) precludes the employee from being on duty. When a railroad seeks to determine whether an employee is permitted to VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 remain or go on duty with respect to the limitation of Sec. 21103(a)(4), the determination of whether the employee has initiated an on-duty period on each of the prior 6 or more consecutive days is made within the context of Sec. 21103(b), which defines what constitutes ‘‘time on duty.’’ Sec. 21103(b)(2) includes any time ‘‘engaged in or connected with the movement of a train’’ to be ‘‘time on duty.’’ Duty tours as a passenger train employee include some time ‘‘engaged in or connected with the movement of a train,’’ and are therefore time on duty under Sec. 21103(b)(2). Although those duty tours are exempt by Sec. 21102(c)(3)(B) from the limits and requirements of Sec. 21103 at the time when the duty tours occur, an employee subject to Sec. 21103 is no longer subject to that exemption, as discussed above. Thus, at the moment that a railroad or a train employee looks back to see whether the employee may be required or allowed to go on duty as a freight train employee, the employee’s assignment is to work as a freight train employee, and in looking back at the employee’s prior duty tours, should view them as subject to, rather than exempt from, Sec. 21103, even if some of the duty tours involved service engaged in or connected with the movement of a passenger train. In the context of determining whether the individual has initiated an on-duty period each day on prior consecutive days, ‘‘time the employee is engaged in or connected with the movement of a train is time on duty.’’ Sec. 21103(b)(2). Since time on duty as a passenger train employee is unequivocally time ‘‘engaged in or connected with the movement of a train,’’ and, as discussed above, the statute does not differentiate between time spent engaged in or connected with the movement of a passenger train from time spent engaged in or connected with the movement of a freight train, on-duty periods including train service providing commuter or intercity rail passenger transportation constitute on-duty periods for the purpose of Sec. 21103(a)(4). In addition to maintaining fidelity both to the statutory language and to FRA’s functional approach to applying the HS laws, the principle of including on-duty periods in passenger-trainemployee covered service within the scope of Sec. 21103(a)(4) avoids the safety risks resulting from allowing an individual to initiate an on-duty period as a train employee each day for an indefinite number of days without triggering the consecutive-days limitation, simply because he or she occasionally initiates an on-duty period PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 58841 as a passenger train employee instead of as a freight train employee. FRA’s interim interpretation is also consistent with both informal guidance FRA has provided on this question and FRA’s response to an AAR comment on FRA’s notice of proposed rulemaking on passenger train employee hours of service, in which AAR suggested that train employees employed by freight railroads who may occasionally perform service as a passenger train employee should be covered only by Sec. 21103, and should be excluded from the scope of FRA’s regulation. See comments of AAR, Docket No. FRA–2009–0043. FRA declined AAR’s suggestion to extend the work train and pilot exceptions for train employees employed by freight railroads to all train employees employed by freight railroads,31 believing that train employees engaged in or connected with commuter or intercity rail passenger transportation should be covered by its regulation, regardless of the nature of the railroad by which the employee is employed. FRA’s decision in the rulemaking was based in part on the same policy concerns just discussed, the need to protect an individual who sometimes performs freight train employee service and sometimes performs passenger train employee service, from the safety risks of cumulative fatigue. Under this interim interpretation, employees performing both kinds of service are subject to both sets of requirements, as appropriate. For employees who perform duty tours both as a passenger train employee and as a freight train employee, it is necessary for railroads to track both types of duty tours and perform the appropriate consecutivedays limitation analyses to determine whether the employee may legally be required or allowed to go on duty in a particular kind of service. The analyses are separate: only the freight consecutive-days limitation analysis (Sec. 21103(a)(4)) must be applied to determine if an employee may report for duty as a freight train employee, and only the passenger consecutive-days limitation analysis (49 CFR 228.405(a)(3)) must be performed to 31 FRA’s definition of ‘‘Train employee who is engaged in commuter or intercity rail passenger transportation’’ excludes a train employee of a freight railroad ‘‘who is engaged in work train service even though that work train service might be related to providing commuter or intercity rail passenger transportation, and a train employee of’’ a freight ‘‘railroad who serves as a pilot on a train operated by a commuter railroad or intercity passenger railroad.’’ 49 CFR 228.403(c). E:\FR\FM\24SER5.SGM 24SER5 58842 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations determine if an employee may report for duty as a passenger train employee.32 mstockstill on DSK4VPTVN1PROD with RULES5 e. Further Clarification: Service as a Passenger Train Employee Is Within the Scope of the Calendar Monthly Limits Set by Sec. 21103(a)(1) and (c)(1) As previously noted in passing in the discussions above, FRA wishes to highlight that, like subsection (a)(4) of Sec. 21103 and for similar reasons,33 other provisions of Sec. 21103 count toward their respective limitations or requirements, appropriate periods of time accrued during passenger-trainemployee duty tours and related activity. Some of these limitations apply to a calendar month, and some of the limitations and requirements apply to a single duty tour. In particular, the monthly limitations are Sec. 21103(a)(1) (limiting the combined total of time on duty, time spent awaiting or in deadhead transportation from a duty assignment to the point of final release, and time spent in any other mandatory service for the railroad to 276 hours per calendar month) and Sec. 21103(c)(1) (limiting certain limbo time per calendar month). FRA does not, however, expect the cumulative monthly limitations of either Sec. 21103(a)(1) or Sec. 21103(c)(1) to be reached in fact for individuals who sometimes serve as passenger train employees, based on the existing nature of such duty tours. Additionally, a railroad could violate Sec. 21103(c)(1) with respect to a particular employee only at a time when that employee was subject to Sec. 21103(c)(1); i.e., during a duty tour including service as a freight train employee. If an employee reaches more than 30 hours of time countable towards the 30-hour monthly limitation during a passenger train employee duty tour, and proceeds to go on duty only as a passenger train employee for the rest of the calendar month, then no violation of Sec. 21103(c)(1) has occurred. 32 The passenger train employee consecutive-days limitation analysis depends on the type of the assignments performed on each of the consecutive days. A Type 1 assignment means an assignment that requires the employee to report for duty no earlier than 4 a.m. on a calendar day and be released from duty no later than 8 p.m. on the same calendar day. Any other assignment is Type 2, except that a Type 2 assignment may be considered a Type 1 assignment if it is analyzed and shown to not pose an excess risk of fatigue and does not require the employee to be on duty for any period of time between midnight and 4 a.m. See 49 CFR 228.5; see also 76 FR 50360 (Aug. 12, 2011). 33 In addition, of course, any mandatory service for the railroad (not just passenger train employee service or freight train employee service) counts toward the 276-hour monthly maximum set by Sec. 21103(a)(1), but passenger train employee service counts as time ‘‘on duty’’ for purposes of Sec. 21103(a)(1)(i). VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 f. Further Clarification: Requirements for Rest Set by Sec. 21103(a)(3), (c)(4), and (e), After a Single Duty Tour That Includes Service as a Freight Train Employee, Must Also Be Met Before Performing Any Service for the Railroad or Else the Additional Service Will Commingle Statutory requirements for minimum amounts of undisturbed rest apply only to performing a single duty tour that includes at least some service as a freight train employee. These requirements are the following: (1) Sec. 21103(a)(3) (which requires that an individual have had 10 consecutive hours off duty in the 24 hours prior to remaining or going on duty as a freight train employee); (2) Sec. 21103(c)(4) (additional rest requirement) (which requires extra time off duty in addition to the 10 consecutive hours for freight train employees after reaching more than 12 consecutive hours of combined time on duty and time waiting for or in deadhead transportation to the point of final release); and (3) Sec. 21103(e) (which requires that these off-duty periods be free from communication that could reasonably be expected to interrupt the freight train employee’s rest (free from communication)). Of course, a duty tour as a passenger train employee that did not include covered service as a freight train employee would not trigger the requirement for 10 consecutive hours off duty unless the employee had been on duty for 12 consecutive hours, in which case 10 consecutive hours off duty would be required under the Passenger Train Employee HS Regulations at 49 CFR 228.403(a)(2), not because of Sec. 21103(a)(3). Likewise, a duty tour as a passenger train employee that did not include covered service as a freight train employee would not trigger the requirement that the off-duty period be free from communication, or the requirement for additional rest. However, if the rest requirement of Sec. 21103(a)(3) for 10 consecutive hours off duty and the requirement of Sec. 21103(e) that the rest period be free from communication are triggered by a duty tour that included covered service as a freight train employee, then the statutory minimum off-duty period following that duty tour must comply with those requirements before the employee performs any other service for the railroad, or else the subsequent service for the railroad will commingle, even if that subsequent service does not include covered service as a freight train PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 employee. See Sec. 21103(b)(3).34 Likewise, if the additional rest requirement is triggered by a duty tour that included covered service as a freight train employee that encompasses a total of more than 12 hours of time on duty and time waiting for or in deadhead transportation, then the statutory minimum off-duty period following that duty tour must also include the additional rest prior to the employee performing any other service for the railroad, even if that subsequent service does not include covered service as a freight train employee. g. Further Clarification: Single Duty Tours Performing Multiple Types of Covered Service The longstanding statutory provisions regarding commingled service (Sec. 21103(b)(3), Sec. 21104(b)(2), and Sec. 21105(c)) and the more recent regulatory provision regarding commingled service (49 CFR 228.405(b)(3)), respectively, continue to govern a duty tour in which an individual performs the duties of a freight train employee, signal employee, dispatching service employee, or passenger train employee, respectively. For example, any time spent performing service for a railroad that is not separated by at least 10 uninterrupted hours off duty from subsequent service defined as ‘‘time on duty’’ by Sec. 21103(b) is commingled service under Sec. 21103(b)(3), because it occurs within the same ‘‘24-hour period’’ as the covered service subject to Sec. 21103(b). As a result, a duty tour as a passenger train employee that is followed by a duty tour as a freight train employee must be separated by at least 10 uninterrupted hours off duty to avoid their commingling. If the duty tour as a freight train employee triggers Sec. 21103(c)(4)’s additional uninterrupted rest requirement, that additional rest must also be completed before the employee next reports for duty as a passenger train employee in order to avoid the possible commingling of the subsequent duty tour as a passenger train employee with the prior triggering duty tour as a freight train employee. FRA requests comment on the implications of its interim interpretation of Sec. 21103(a)(4) on other provisions of Sec. 21103. As a result of adopting the narrower interpretation, excluding 34 Sec. 21103(b)(3) reads as follows: ‘‘(b) Determining time on duty.—In determining under subsection (a) of this section the time a train employee is on or off duty, the following rules apply: * * * (3) Time spent performing any other service for the railroad carrier during a 24-hour period in which the employee is engaged in or connected with the movement of a train time is time on duty.’’ E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations signal-employee covered service and dispatching-service-employee covered service for the purposes of the consecutive-days limitation, FRA views duty tours containing only signalemployee covered service or dispatching-service-employee covered service as equivalent to periods that are neither time on duty nor time off duty for purposes of Sec. 21103(a)(4), where the individual is performing noncovered service. For example, if an employee were to report for duty each day from 9 a.m. to 5 p.m. Monday through Saturday, with Monday’s through Wednesday’s time on duty including train-employee covered service and Thursday’s through Saturday’s time on duty not including train-employee covered service but including signal-employee covered service, that employee would not have triggered the ‘‘consecutive-days’’ limitation and could lawfully report again at 9 a.m. on Monday. FRA recognizes that Congress identified signal-employee covered service and dispatching-service-employee covered service as fatiguing; however, these forms of covered service do not constitute time on duty for the purposes of Sec. 21103 unless they commingle with train-employee covered service as provided in Sec. 21103(b)(3), and therefore, employees who perform these functions, but do not perform covered service as a train employee during the same duty tour, are not considered to have initiated on-duty periods for the purposes of the ‘‘consecutive-days’’ limitation. If an employee performs multiple types of covered service in a single duty tour, including train-employee covered service, the time spent by the employee in carrying out functions other than covered service as a train employee is ‘‘[t]ime spent performing other service for the railroad during a 24-hour period in which the employee is engaged in or connected with the movement of a train,’’ which, in turn, is defined as ‘‘time on duty’’ for purposes of Sec. 21103 by Sec. 21103(b)(3). As a result, this time spent in service for the railroad other than train-employee covered service is defined by Sec. 21103(b)(3) as ‘‘time on duty’’ for purposes of Sec. 21103(a) and, therefore, counts as initiating an on-duty period for the purposes of Sec. 21103(a)(4). Performing signal-employee covered service or dispatching-service-employee covered service, which brings the employee under Sec. 21104 or Sec. 21105, respectively, during the performance of the particular type of service, does not negate the train- VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 employee covered service also performed by the employee. In the case of dispatching-serviceemployee covered service, Sec. 21105(a) provides that it applies, rather than Sec. 21103 or Sec. 21104, ‘‘during any period of time the employee is performing duties of a dispatching service employee.’’ At ‘‘a tower, office, station, or place at which at least 2 shifts are employed, an individual performing dispatching service may not be required or allowed to remain or go on duty for more than a total of 9 hours during a 24hour period.’’ Sec. 21105(b)(1). At a oneshift location, such an individual is limited to a total of 12 hours on duty during a 24-hour period. Sec. 21105(b)(2). Unlike the 24-hour period relevant for the statutory provisions governing train employees and signal employees, Sec. 21105(b)’s ‘‘24-hour period’’ does not reset after an individual has had a certain amount of rest and then reports to perform duty governed by the section. Instead, Sec. 21105(b)(1) requires a continuous look back during the dispatching service employee’s duty tour to determine whether the individual has been on duty for a total of 9 hours in any 24hour period. FRA does not interpret Sec. 21105(a) literally as an exemption from Sec. 21103 and Sec. 21104 with respect to periods of time performing the duties of a dispatching service employee and periods of time performing other service for the railroad within a 24-hour period in which the duties of a dispatching service are performed. Rather, FRA interprets Sec. 21105(a) as establishing an extra set of limitations that must be met, in addition to the limitations and requirements imposed by any other applicable HS requirement. The following two examples illustrate this interpretation. Example 1 Facts: Individual X has been off duty Saturday and Sunday and then goes on duty as a dispatching service employee at a 2-shift tower at 12 noon on Monday and works for 4 hours, is then off duty for 12 hours, and finally reports for duty at 4 a.m. on Tuesday as a freight train employee. Effect of law: Individual X may report and work as a freight train employee for only 5 hours prior to noon on Tuesday, for a grand total of the maximum 9 hours of service under Sec. 21105, without violating Sec. 21105, because X’s service as a freight train employee commingles with his or her dispatching service. Note that X may report and work as a freight train employee at all only if during the 12 hours off duty, at PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 58843 least 10 consecutive hours were uninterrupted by communications from the railroad that could reasonably be expected to disrupt that rest (see Sec. 21103(e)) and if no other limitation or requirement in Sec. 21103 is violated (e.g., the 276-hour monthly maximum and the consecutive-days provision). After 4 p.m. on Tuesday, X’s subsequent service is no longer within any 24-hour period that would include any of his or her time spent as a dispatching service employee from 12 noon to 4 p.m. on Monday, and is no longer limited to only 9 hours of time on duty for the remainder of his or her duty tour as a freight train employee. Example 2 Facts: Individual Y returns from a long vacation, goes on duty as a freight train employee for 8 hours, and then immediately reports as a dispatching service employee at a 2-shift tower. Effect of law: Individual Y may work at the 2-shift tower as a dispatching service employee for only one hour without violating Sec. 21105 because Y’s 8 hours working as a freight train employee must be added to the 1 hour Y worked as a dispatching service employee. After working a total of 9 hours in a 24-hour period, Y has reached the Sec. 21105(b)(1) maximum of 9 hours on duty in a 24-hour period in a tower with 2 or more shifts. Once the rest requirement of Sec. 21103(a)(4) is triggered because a duty tour includes performance of freighttrain-employee functions to which the limitations of Sec. 21103 apply, the rest requirement of the consecutive-days limitation does not prevent an individual from lawfully reporting for covered service to which Sec. 21103 does not apply, or for noncovered service. When an individual’s duty tour does not include his or her performance of freight-train-employee functions, that individual is not subject to Sec. 21103 during the duty tour, and, therefore, the consecutive-days limitation of Sec. 21103(a)(4) does not apply to the duty tour and prevent the individual from lawfully performing such other service. On the other hand, in duty tours subject to multiple sections of the HS laws or the Passenger Train Employee HS Regulations, each of the applicable sections applies to the entire duty tour, due to commingled-service provisions, and a railroad must comply with all of the provisions applicable to a given duty tour. In particular, the consecutivedays limitation of Sec. 21103(a)(4) applies to such duty tours if those duty tours contain any time in which the employee is engaged in or connected with the movement of a train, whether E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 58844 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations as a passenger train employee or as a freight train employee. Although both the dispatching-service-employee provision (Sec. 21105) and the Passenger Train Employee HS Regulations contain applicability sections, these applicability sections state that the substantive provision applies only to the time when the individual is performing a function of a dispatching service employee or a passenger train employee, respectively, including times in other service for the railroad that commingle during the single tour of duty, as noted above.35 Section 21105(a) states that it applies ‘‘during any period of time the employee is performing duties of a dispatching service employee,’’ and 49 CFR 228.413, the regulatory exemption from Sec. 21103 for passenger train employees, states that the exemption applies with respect to ‘‘train employees who are engaged in commuter or intercity rail passenger transportation.’’ Emphasis added. In other words, if an individual’s duty tour includes multiple types of covered service, the railroad must comply with all of the limitations and requirements applicable to each type of covered service throughout the duty tour. Longstanding guidance from FRA in the context of commingled service during a single duty tour provides that ‘‘[w]hen an employee performs service covered by more than one restrictive provision, the most restrictive provision determines the total lawful on-duty time.’’ 49 CFR part 228, app. A, ‘‘Commingled Service.’’ Although this principle requires compliance with the most exacting and stringent of the applicable standards, the principle in effect ensures compliance with all of the HS provisions applicable to the service performed because complying with the most stringent standard will prevent violation of the less stringent standards, thus resulting in compliance with all of the HS provisions applicable to the service performed. Consistent with that traditional guidance, the interim interpretation maintains that when an employee performs service governed by more than one HS requirement for the minimum amount of off-duty time, the most generous provision determines the total amount of required off-duty time. Similarly, when an employee performs service covered by one provision that requires that the off-duty time be uninterrupted (i.e., Sec. 21103(e)) and other service covered by a provision that 35 In addition, as discussed above, even a duty tour containing only service as a passenger train employee would count toward the consecutive-day limitation of Sec. 21103(a)(4). VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 does not require that the off-duty time be uninterrupted, the higher standard determines whether the off-duty time be uninterrupted. FRA’s interim interpretation maintains the underlying principle of applying to the service in question all relevant sections of the HS laws and the Passenger Train Employee HS Regulations and requiring compliance with the most stringent of those relevant sections. h. More Examples of the Application of the Statutory or the Regulatory Consecutive-Days Provision, or Both, to a Single Duty Tour or to Several Duty Tours Involving Performance of One or More Types of Covered Service The following additional examples illustrate the application of principles for interpreting Sec. 21103(a)(4) and the consecutive-days provision of the Passenger Train Employee HS Regulations (49 CFR 228.405(a)(3)) that have been discussed above in this Section III.C of this document. Example 3 Facts: An individual reports for duty at 8:00 a.m. each day Monday through Saturday, performing only signalemployee or dispatching-serviceemployee covered service each day. Effect of law: On Sunday, the individual has zero prior consecutive days counted for the purpose of Sec. 21103(a)(4) and, therefore, may report for duty as a freight train employee without violating Sec. 21103(a)(4). Example 4 Facts: An individual reports for duty at 8:00 a.m. each day Monday through Saturday, performing both signalemployee covered service, or dispatching-service-employee covered service, and freight-train-employee covered service in a single duty tour each day. Effect of law: On Sunday, the individual has initiated an on-duty period each day for six consecutive days for the purpose of Sec. 21103(a)(4), and must not perform freight-train-employee covered service subject to Sec. 21103 until he or she has had 48 hours at his or her home terminal free from any service for any railroad unless one or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply. On Sunday, the individual may report for duty to perform signal-employee or dispatching-service-employee covered service, without violating Sec. 21103(a)(4), but he or she is nonetheless required to have had the 48 hours of time off duty at the employee’s home terminal under Sec. 21103(a)(4) before PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 next performing freight-train-employee covered service subject to Sec. 21103. Example 5 Facts: An individual reports for duty at 8:00 a.m. each day Monday through Saturday performing passenger-trainemployee covered service each day and is finally released at 6:00 p.m. Effect of regulations and law: On Sunday, the individual has initiated an on-duty period each day for six consecutive days for the purpose of Sec. 21103(a)(4), and must not perform freight-train-employee covered service subject to Sec. 21103 until he or she has had 48 hours at his or her home terminal free from any service for any railroad unless one or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply. However, a duty tour as a passenger train employee is subject to the Passenger Train Employee HS Regulations. Those regulations impose two requirements. First, the regulations require that the employee have had at least 8 consecutive hours off duty before going on duty as a passenger train employee. Second, the regulations include a provision that addresses cumulative fatigue in a somewhat different way than Sec. 21103(a)(4). Here, because the individual’s duty tours as a passenger train employee did not include any Type 2 assignments (duty tours including any time on duty between 8 p.m. and 4 a.m. that either include time on duty between 12:00 a.m. and 4:00 a.m. or have not been analyzed and shown to not pose an excess risk of fatigue), they did not trigger the rest requirement of the consecutive-days limitation in the Passenger Train Employee HS Regulations (49 CFR 228.405(a)(3)). Accordingly, the individual may be required or allowed to report for duty as a passenger train employee. Example 6 Facts: An individual reports for duty at 8:00 a.m. each day Monday through Wednesday, performing freight-trainemployee covered service each day until 8 p.m., and then the individual reports for duty at 8:00 a.m. each day Thursday through Saturday, performing only dispatching-service-employee covered service each day until 5 p.m. Effect of law: On Sunday, the individual has initiated an on-duty period for zero prior consecutive days counted for the purpose of Sec. 21103(a)(4), and may perform freighttrain-employee covered service without violating Sec. 21103(a)(4). E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Example 7 Facts: An individual reports for duty at 9:00 a.m. each day Monday through Wednesday performing passenger-trainemployee covered service for eight hours each day (with final release at 5:00 p.m.), and then reports for duty at 9:00 a.m. each day Thursday through Saturday performing freight-trainemployee covered service for eight hours each day (with final release at 5:00 p.m.). Effect of regulations and law: For the purposes of determining whether the individual may report for duty on Sunday as a freight train employee without violating Sec. 21103(a)(4), the individual has initiated an on-duty period for six consecutive days, and must not perform freight-train-employee covered service subject to Sec. 21103 until he or she has had 48 hours at his or her home terminal free from any service for any railroad unless one or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply. For the purposes of determining whether the individual may report for duty on Sunday as a passenger train employee, the individual has initiated an on-duty period for six consecutive calendar days. However, because these on-duty periods do not include any Type 2 assignments (duty tours including any time on duty between 8 p.m. and 4 a.m. that either include time on duty between 12:00 a.m. and 4:00 a.m. or have not been analyzed and shown to not pose an excess risk of fatigue), the individual may report for duty on Sunday as a passenger train employee without violating the consecutive-days provision of the Passenger Train HS Regulations. mstockstill on DSK4VPTVN1PROD with RULES5 Example 8 Facts: An individual reports for duty at 9:00 a.m. each day Monday through Wednesday performing passenger-trainemployee covered service for eight hours each day (with final release at 5:00 p.m.), and then reports for duty at 1:00 p.m. each day Thursday through Saturday performing freight-trainemployee covered service for eight hours each day (with final release at 9:00 p.m.). Effect of regulations and law: For the purposes of determining whether Sec. 21103(a)(4) prohibits the railroad from requiring or allowing the individual to report for duty on Sunday as a freight train employee, the individual has initiated an on-duty period for six consecutive days and must not perform freight-train-employee covered service subject to Sec. 21103 until he or she has had 48 hours at his or her home VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 terminal free from any service for any railroad unless one or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply. For the purposes of determining whether the railroad may require or allow the individual to report for duty on Sunday as a passenger train employee without violating Sec. 21103(a)(4), the individual has initiated an on-duty period for six consecutive calendar days. Because several of these on-duty periods included duty tours with time on duty between the hours of 8 p.m. and 4 a.m. and the duty tours were not analyzed and shown not to pose an excess risk of fatigue, the individual has initiated an on-duty period for six consecutive days including one or more Type 2 assignments. As a result, the employee must have 24 hours of time off duty and free from any service for any railroad before next reporting for duty as a passenger train employee. Example 9 Facts: An individual reports for duty each day at 8 a.m. for 8 hours of service as a passenger train employee, with the duty tour ending at 4 p.m., beginning on Monday, for 5 consecutive days, ending on Friday. On Saturday, the individual reports for duty at 6 p.m. for 8 hours of service as a freight train employee, with the duty tour ending at 2 a.m. on Sunday. Effect of regulations and law: For the purposes of determining whether the individual may report for duty on or after 2 p.m. on Sunday, as a freight train employee, the individual has initiated an on-duty period for one prior consecutive day, and may report for duty to perform freight-train-employee covered service without violating Sec. 21103(a)(4). Specifically, because the individual was off duty for 26 hours between Friday at 4 p.m. and Saturday at 6 p.m., and 24 hours of time off duty is sufficient to end a series of consecutive days for Sec. 21103(a)(4), the duty tours prior to Saturday are not consecutive to the Saturday duty tour. For the purposes of determining whether the individual may report for duty on or after 2 p.m. on Sunday as a passenger train employee, the individual has initiated an on-duty period each day for 6 consecutive calendar days, including one Type 2 assignment–the Saturday duty tour, which extended into the hours between midnight and 4 a.m. and is therefore necessarily Type 2 regardless of any fatigue analysis that could have been performed on an assignment including the Saturday duty tour. As a result, the individual must have had at least 24 hours of time off duty and free from any PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 58845 service for any railroad before next reporting for duty as a passenger train employee. D. Under Sec. 21103(a)(4), a Railroad May Not Require or Allow a Train Employee To Initiate an On-Duty Period After the Employee Has Initiated an OnDuty Period Each Day for Six Consecutive Days Followed By More Than 24 Hours Off Duty at the AwayFrom-Home Terminal. Following Such Service, When That Employee Returns to the Home Terminal, the Employee Must Remain Unavailable for Service at the Home Terminal for at Least 48 Hours 1. Summary of Issue and Interim Interpretation Under Sec. 21103(a)(4), the railroad may not require or allow a train employee to initiate an on-duty period after the employee has an initiated an on-duty period each day for six consecutive days, has been finally released at the away-from-home terminal, and then has spent more than 24 hours off duty there. Rather, the railroad may require or allow the employee to engage in non-covered service at the away-from-home terminal, if desired, but must deadhead the employee to his or her home terminal and must then give the employee 48 consecutive hours off duty at the home terminal before requiring or allowing the employee to report for duty again to perform service as a freight train employee. If the railroad has required or allowed the employee to initiate an onduty period at the away-from-home terminal after the seventh consecutive day, then railroad must give the employee 72 hours off duty before requiring or allowing the employee to report for duty again to perform service as a freight train employee. 2. Detailed Discussion of Interim Interpretation When a train employee initiates an on-duty period each day for six consecutive days and the final period of on-duty time ends at the away-fromhome terminal, Sec. 21103(a)(4)(A)(i) permits the employee to ‘‘work a seventh consecutive day.’’ Emphasis added. In the event that a railroad takes advantage of this allowance and has its employee work on a seventh consecutive day, Sec. 21103(a)(4)(A)(ii) requires that ‘‘any employee who works a seventh consecutive day pursuant to subparagraph (i) shall have 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 carrier.’’ FRA E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 58846 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations has not previously addressed the question of whether an employee may initiate a seventh on-duty period 24 hours or more 36 after the employee is finally released from his or her sixth consecutive duty tour, or if Sec. 21103(a)(4)(A)(i)–(ii) only authorizes a train employee to initiate an on-duty period that is consecutive to the sixth consecutive day. The structure of Sec. 21103(a)(4) generally prohibits a train employee from remaining on duty or going on duty after the employee has initiated onduty periods for six consecutive days, until the employee has at least 48 hours of time off duty at the home terminal unavailable for any service for any railroad. Sec. 21103(a)(4)(A) provides an exception to this general prohibition in subsection (a)(4)(A)(i), allowing an employee to initiate an on-duty period 37 on a ‘‘seventh consecutive day.’’ Subsection (a)(4)(A)(ii) requires that ‘‘any employee who works a seventh consecutive day pursuant to subparagraph (i)’’ have, instead of 48 hours, 72 hours of time off duty at the home terminal during which the employee is unavailable for any service for any railroad. Similarly, subsection (a)(4)(B) allows employees to initiate onduty periods on seven consecutive days under collective bargaining agreements or authorized pilot programs; these employees must also have 72 hours of time off duty at the home terminal unavailable for any service for any railroad. Outside of these two exceptions, there is a violation of Sec. 21103(a)(4) if the railroad requires or allows a train employee to initiate an on-duty period after having required or allowed the employee to do so on six prior consecutive days and before having given the employee the 48 hours of time off duty. FRA is aware that some railroads have scheduled employees to initiate on-duty periods each day for six consecutive days followed by more than a day spent off duty at the away-from-home terminal, and then, after the employee initiates an additional on-duty period and returns to his or her home terminal, have allowed the employee to initiate a new on-duty period after having only 48 hours off duty at the home terminal. Such a practice is plainly inconsistent with the language of the statute; as discussed above, any allowance that the statute provides for an employee to initiate an on-duty period after having 36 See Final Interpretations, 77 FR 12417–19 (defining ‘‘day’’ in this context to refer to a 24-hour period). 37 See Final Interpretations, 77 FR 12419 (interpreting ‘‘work’’ in this context to refer to the initiation of an on-duty period). VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 already done so on six consecutive days is contingent upon that employee’s receiving 72 hours of time off duty after the employee is finally released at the home terminal from the additional onduty period that is allowed under one of the exceptions to the general six-day limitation. Specifically, when an employee is at the away-from-home terminal at the end of the duty tour initiated on the sixth consecutive day, he or she is permitted to initiate an onduty period on ‘‘the seventh consecutive day’’ under Sec. 21103(a)(4)(A)(i), and an employee who initiates an on-duty period on this seventh consecutive day pursuant to that section must have the 72 hours of time off duty required by Sec. 21103(a)(4)(A)(ii) after the employee is finally released from the duty tour initiated on the seventh consecutive day. However, this does not resolve the question of what period of time constitutes ‘‘the seventh consecutive day.’’ Because the exception of paragraphs (a)(4)(A)(i) and (ii) discusses the additional on-duty period in the context of ‘‘a seventh consecutive day,’’ a literal reading of the statute, which FRA is adopting, would preclude the initiation of an on-duty period by an employee who had done so for six consecutive days, ending the final on-duty period at the away-from-home terminal, but did not initiate another on-duty period until more than 24 hours later, because at that time the initiation of the on-duty period would no longer fall on the ‘‘seventh consecutive day.’’ Under FRA’s limited interpretation, after 24 hours at the away-from-home terminal (or more than a calendar day at the away-from-home terminal for a railroad that had not yet transitioned to FRA’s final interpretation of ‘‘day’’), the authority of the railroad to require or allow an employee to initiate an on-duty period as a train employee under subsection (a)(4)(A)(i) disappears. As a result, the railroad’s only choice in this circumstance would be that the employee must be deadheaded to his or her home terminal and receive at least 48 hours free from any service for any railroad before next initiating an onduty period, though the employee could perform non-covered service before receiving the 48 hours of time off duty. Although this construction of the subsection has the virtue of hewing closely to the express terms of the statute, it results in the odd outcome that a railroad loses the authority to require or allow an employee to perform covered service because the employee has been off duty for too long. FRA considered but rejected an alternative reading of the text that PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 would avoid this incongruous result by understanding the authorization to ‘‘work a seventh consecutive day’’ as allowing one final initiation of an onduty period when the employee ends the sixth consecutive on-duty period at the away-from-home terminal. This final on-duty period would generally be initiated within the seventh consecutive day, but in unusual circumstances where the employee remained off duty at the away-from-home terminal for more than 24 hours (or more than a calendar day for a railroad that had not yet transitioned to FRA’s final interpretation), the final on-duty period would be authorized despite falling outside of the 24 hours (or calendar day) that constitute the seventh consecutive day. However, adoption of this alternative interpretation would have raised new questions concerning the time spent at the away-from-home terminal. Under that rejected reading, an employee could lawfully remain at the away-from-home terminal to engage in non-covered service for several days before next initiating an on-duty period, and the alternative broader interpretation would require determining whether this non-covered service would preclude subsequent covered service before having the required 48 hours of time off duty. Although both of these interpretations are reasonable constructions of the statute given the nature of railroad operations, FRA views the limited interpretation, where an employee is not permitted to initiate an on-duty period after the end of the seventh consecutive day, as superior. In addition to being a more direct construction of the text of the statute, and providing more clarity to railroads and employees, the limited interpretation avoids the question of what, if any, non-covered service would be permitted between the sixth consecutive on-duty period and the final on-duty period, which could occur beyond the seventh consecutive day. Under the limited interpretation, an employee may engage in non-covered service separate from a duty tour at the away-from-home terminal after initiating an on-duty period on six consecutive days, but may not initiate a seventh duty tour prior to having the 48 hours of time off duty at the home terminal unless the duty tour is initiated within 24 hours, of the employee’s final release from the duty tour initiated on the sixth consecutive day. Under the interpretation of ‘‘day’’ as a 24-hour period (24-hour-day interpretation), this non-covered service is necessarily limited to four hours if it is to avoid commingling with either the duty tour E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations initiated on the sixth consecutive day or the duty tour that follows the noncovered service on the seventh consecutive day, since there must be at least 10 hours of time off duty between the non-covered service and the duty tours before and after the non-covered service, and the duty tour following the non-covered service must be initiated 24 hours or less after the employee’s final release from the duty tour initiated on the sixth consecutive day, for the seventh duty tour to be consecutive to it. As an example, if an employee were finally released at midnight, the following duty tour would have to begin prior to midnight of the following day in order to be on a consecutive day. In order to avoid commingling with both the prior and subsequent duty tours, the non-covered service must fall between 10 a.m., 10 hours after the midnight final release, and 2 p.m., 10 hours prior to the subsequent initiation of the onduty period. This leaves only four hours of time for non-covered service outside of both duty tours; any greater amount of service would either commingle with the prior duty tour, commingle with the subsequent duty tour, or cause the subsequent duty tour to be initiated outside of the 24 hours that constitutes the ‘‘seventh consecutive day.’’ FRA seeks comment on the impact of this interpretation on railroad operations. Commenters arguing in favor of the broader interpretation, allowing for the initiation of an on-duty period under Sec. 21103(a)(4)(A)(i) more than 24 hours (or more than a calendar day for a railroad that had not yet transitioned to FRA’s final interpretation), after the employee’s final release from the duty tour initiated on the sixth consecutive day, are encouraged to discuss potential resolutions for the issue of intervening non-covered service separated from a duty tour. The ‘‘signal employee exclusivity’’ provision, which was added by the RSIA and codified at Sec. 21104(e) (exclusivity provision), reads as follows: FRA has previously explained that there is no gap between the statutory HS limitations with respect to the installation, repair, and maintenance of signal systems, which are administered by FRA, and the regulatory HS limitations with respect to the operation of commercial motor vehicles, which are promulgated and administered by FMCSA. Final Interpretations, 77 FR at 12427–28. However, FRA’s prior discussion of the issue allowed FMCSA’s HS regulations (49 CFR part 395) (FMCSA’s HS Regulations) to reach employees who generally performed signal covered service and were, therefore, generally considered ‘‘signal employees’’ on the occasions when those employees were driving a commercial motor vehicle during a period of time that was not within a duty tour that included any time spent performing covered service as a signal employee. Both labor organizations and railroad industry organizations have identified the potential application of FMCSA’s HS Regulations, including cumulative limitations that could reach into duty tours that are clearly governed by the FRA-enforced statutory HS limitations.38 Although FRA previously interpreted the exclusivity provision in light of the definition of ‘‘signal employee’’ as ‘‘an individual who is engaged in installing, repairing, or maintaining signal systems’’ in Sec. 21101(4), FRA did not previously consider reinterpreting the definition of ‘‘signal employee’’ in light of the new exclusivity provision. Now construing the whole statute, in accordance with traditional canons of statutory interpretation, FRA views the exclusivity provision as broadening the scope of what activity is denoted by the words ‘‘engaged in installing, repairing, or maintaining signal systems.’’ Specifically, as described in detail below, FRA views an individual’s operation of a motor vehicle for the purpose of allowing that individual to install, repair, or maintain signal systems to be a function that is time on duty under the ‘‘signal employee’’ provisions of the HS laws, regardless of whether the operation of the motor vehicle is within the same duty tour as the direct work on the signal system, or is separated from it by at least 10 hours The hours of service, duty hours, and rest periods of signal employees shall be governed exclusively by this chapter. Signal employees operating motor vehicles shall not be subject to any hours of service rules, duty hours or rest period rules promulgated by 38 FRA notes that Sec. 21104(e) would preclude the application of any of FMCSA’s HS Regulations to any duty tour of a signal employee, including cumulative limitations. See also 49 CFR 395.1(r), excluding signal employees from the application of 49 CFR part 395. IV. Application of the ‘‘Signal Employee Exclusivity’’ Provision to Individuals Who Drive Commercial Motor Vehicles for the Purpose of Themselves Installing, Maintaining, or Repairing Signal Systems A. Summary of Issue and Interim Interpretation mstockstill on DSK4VPTVN1PROD with RULES5 any Federal authority, including the Federal Motor Carrier Safety Administration, other than the Federal Railroad Administration. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 58847 off duty. As a result, that operation of a motor vehicle for that purpose is itself subject to the limitations of the HS laws and to the exclusivity provision that exempts the operation from other Federal requirements concerning hours of service, duty hours, or rest periods, including FMCSA’s HS Regulations. It is important to note that this interpretation does not affect FRA’s preexisting interpretations governing a signal employee’s commuting time (i.e., time spent commuting by motor vehicle between the signal employee’s residence and his or her headquarters), which remains classified as time off duty for purposes of Sec. 21104. In addition, as provided by Sec. 21104, travel time returning from a trouble call or an outlying work site to the employee’s headquarters or residence at the end of a duty period, remains neither time on duty nor time off duty (except where such time is in transportation in an ontrack vehicle). FRA seeks comment on this interim interpretation. B. Detailed Discussion of Issue and Interim Interpretation In response to the June 2009 Interim Interpretations, the Brotherhood of Railroad Signalmen (BRS) submitted a comment relating to several issues. Among the issues addressed by BRS was the exclusivity provision. BRS expressed concern that individuals generally performing signal covered service, who are, therefore, generally signal employees, might be excluded from FMCSA’s HS Regulations as a result of this provision, but also would not be subject to the FRA-administered statutory HS limitations if they did not perform covered service installing repairing or maintaining signal systems that commingled under Sec. 21104(b)(2) 39 with the time that they spent driving a commercial motor vehicle to an outlying work site. BRS’s proposed solution to this apparent issue was for FRA to classify driving commercial motor vehicles for the purposes of installing, maintaining, or repairing signal systems to be signalemployee covered service. In the Final Interpretations, FRA responded to BRS’s stated concern, that there was an apparent gap in the HS limitations of FRA and FMCSA, by explaining that the exclusivity provision applies only where other FRA39 Sec. 21104(b)(2) reads, ‘‘(b) Determining time on duty.—In determining under subsection (a) of this section the time a signal employee is on duty or off duty, the following rules apply: * * * (2) Time spent performing any other service for the railroad carrier during a 24-hour period in which the employee is engaged in installing, repairing, or maintaining signal systems is time on duty.’’ E:\FR\FM\24SER5.SGM 24SER5 mstockstill on DSK4VPTVN1PROD with RULES5 58848 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations administered HS limitations apply. The Final Interpretations stated, ‘‘the statute does not allow an individual subject to the exemption granted at Sec. 21104(e) not to be subject to Sec. 21104(a).’’ Final Interpretations, 77 FR at 12427. However, FRA noted that the interpretation would not completely preclude the application of FMCSA’s HS Regulations to individuals who generally perform signal covered service, since there are circumstances where such an individual may drive a commercial motor vehicle to an outlying work site and then be provided with a statutory minimum off-duty period of at least 10 hours before beginning to perform covered service at the work site. Under these circumstances, FRA’s position in the Final Interpretations was that if driving the commercial motor vehicle is not covered service, then the individual is not performing signalemployee functions, is not a signal employee during the time spent driving, and is not subject to Sec. 21104, including the exclusivity provision. FRA expressed a willingness to work with FMCSA to address the issue, but viewed those efforts as outside the scope of interpreting the statute. In addressing the purported gap between the HS limitations, FRA’s Final Interpretations simply applied the preexisting understanding of what activities are classified as ‘‘engaged in installing, repairing, or maintaining signal systems’’ under the old, pre-RSIA HS laws. However, labor organizations and railroad industry organizations have implicitly suggested that FRA’s understanding of covered service should be revised in light of the statutory changes. Having considered the statute in light of these arguments, FRA agrees that the exclusivity provision at Sec. 21104(e) broadens the definition of signal-employee covered service that brings an individual within the scope of Sec. 21104. Following the 1976 amendment of the HS laws 40 to cover ‘‘an individual employed by the carrier who is engaged in installing, repairing or maintaining signal systems,’’ FRA published an interim statement of agency policy and interpretation for signal service. 42 FR 4464 (Jan. 25, 1977) (1977 Signal Interim Interpretations). See Sec. 4(d) of Public Law 94–348 (July 8, 1976), adding new Sec. 3A to the Hours of Service Act, then codified at 45 U.S.C. 64; 42 FR 4464, January 25, 1977. In that contemporaneous interpretation, FRA noted that ‘‘[p]erhaps the most difficult problem posed by the general language 40 In 1976 the statute was still called the Hours of Service Act. See note 2. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 of [the statutory provisions governing such individuals] is the definition of time on duty. Individuals who work on signal systems often spend much of their compensated time traveling for the carrier’s purposes.’’ FRA ultimately determined that travel time devoted to the carrier’s work was to be considered commingling service (other service for the carrier during a 24-hour period in which the employee is engaged in installing, maintaining, or repairing signal systems), such that the travel time would be considered time on duty if not separated by a statutory minimum offduty period from direct work to install, repair, or maintain signal systems. Time spent returning from trouble calls or an outlying work site at the end of scheduled hours, was considered neither time on duty nor time off duty, an interpretation subsequently ratified by Congress in the 1978 amendments to the HS laws. Sec. 4 of Public Law 95– 574 (November 2, 1978). Commuting time between an employee’s residence and the employee’s regular reporting point, which is determined by an employee in his or her decision of where to live, was considered time off duty. Based in part on the nature of the statute as it existed in 1977, FRA stated that the functional approach of the HS laws meant that ‘‘driving signal department vehicles is not covered service under the [HS laws].’’ 1977 Signal Interim Interpretations, 42 FR at 4466. At the time that FRA published the 1977 Signal Interim Interpretations, the limitations of the HS laws applied only to individual duty tours, so there was little concern with individuals moving into and out of the classification ‘‘signal employee’’ based upon the functions performed at any given moment or within or outside of any individual duty tour. As noted above, in Section III.B of this document, the RSIA amendments to the HS laws have attached more significance to the classification of an individual as a covered service employee beyond the boundaries of a particular duty tour. Although the functional approach is inherent to the HS laws as they currently exist, and a change from that approach to a statusbased approach would require additional statutory amendments, FRA nonetheless recognizes that the functions that bring an individual employee within the scope of Sec. 21104 must be construed ‘‘in connection with every other part or section of the PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 statute to produce a harmonious whole.’’ 41 In the RSIA, Congress added to Sec. 21104 new subsection (e), which specifically references FMCSA’s rules related to hours of service, duty hours, and rest periods as not applying to signal employees. Although the exclusivity provision can bear an interpretation of signal-employee covered service as it existed prior to the RSIA, such a narrow interpretation would allow individuals who often perform the functions of signal employees to be subject to the regulations of FMCSA, which seems to be contrary to the purpose of the exclusivity provision. Or, to the extent that FMCSA has excluded such individuals from the scope of its regulations, such employees could have no substantive Federal limitation on the time that could be spent in the driving function, provided that it is separated from the work of installing, repairing, or maintaining signal systems by at least a statutory minimum off-duty period of 10 hours, a result that is equally untenable. An alternative reading of the exclusivity provision recognizes that Congress expressly excluded signal employees from the application of FMCSA’s regulations, and interprets what is necessary for an individual to be a signal employee in light of that exclusion. As discussed above, FRA has long understood that driving a motor vehicle is often an integral part of performing work on signal systems. Much of signal system installation, maintenance, and repair will necessarily occur at track wayside locations, requiring significant amounts of travel to and from those locations for the individuals performing such work. Because of the immense scale of the rail network in the United States, this driving time may sometimes be sufficiently long that the driving is separated from the direct work on a signal system by a statutory minimum off-duty period of 10 consecutive hours. Under earlier FRA interpretations, FRA viewed the HS laws as not reaching the period of time spent driving for the purposes of a railroad if it was separated from the period of covered service by a statutory minimum off-duty period and, therefore, not within the duty tour.42 When outside of a duty tour, time spent driving by individuals who generally 41 United States v. Uvalle-Patricio, 478 F.3d 699 (5th Cir. 2007) (internal citations omitted). See also, e.g., Bilski v. Kappos, 130 S.Ct. 3218 (2010); Sutherland § 46:5. 42 As discussed above, normal commuting time between an employee’s residence and his or her normal headquarters or regular reporting point was and is considered time off duty. 42 FR 4466. E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES5 perform signal covered service was only regulated if it fell within the regulatory jurisdiction of FMCSA and FMCSA’s HS Regulations. However, the RSIA rejected this status quo, and unequivocally stated that ‘‘signal employees operating motor vehicles shall not be subject to any hours of service rules . . . promulgated by any Federal authority, including the Federal Motor Carrier Safety Administration, other than the Federal Railroad Administration.’’ Maintaining FRA’s prior narrow reading of what constitutes covered service would not fully exclude signal employees from the reach of FMCSA’s HS Regulations, since such regulations include cumulative limits on total onduty time and include all compensated time as time on duty, even when not connected with time spent driving.43 Congress specifically identified ‘‘signal employees operating motor vehicles’’ as subject to the HS laws and under the authority of FRA, and understanding the operation of a motor vehicle for the purpose of installing, repairing, or maintaining signal systems to be service that is ‘‘engaged in’’ those activities brings such individuals entirely within the scope of Sec. 21104, consistent with the statutory mandate. Such an interpretation is also consistent with FRA’s prior understanding of the activities generally within the scope of a signal employee’s employment. In construing the statutory definition of what an individual must do to be considered a ‘‘signal employee,’’ it is appropriate to consider the actual duties generally performed by such individuals, giving deference to the words that Congress chose to define as well as to the definition Congress provided.44 Both Congress and FRA have recognized that signal employees ‘‘spend much of their compensated time traveling for the carrier’s purposes.’’ 45 In discussing this issue previously, FRA noted that this fact created difficulties in interpreting what constituted time on duty for signal employees, and ultimately concluded that such time should be considered potentially commingling: Time on duty if commingled with other time on duty; and otherwise neither time on duty nor time off duty. FRA concludes that Congress intended Sec. 21104(e) to mean unequivocally that when these individuals are operating motor vehicles 43 49 CFR 395.2, ‘‘On-duty time.’’ 44 See, e.g., Johnson v. U.S., 130 S.Ct. 1265, 1271 (2010) (noting that Congress’s choice of the words ‘‘violent felony’’ is relevant to interpreting the meaning of the definition of ‘‘violent felony’’ provided by Congress). 45 FRA’s 1977 Signal Interim Interpretations, 42 FR at 4464. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 for the purpose of installing, repairing, or maintaining signal systems, these individuals shall be subject to the HS laws and not to FMCSA’s HS Regulations; FRA’s prior construction of the term ‘‘signal employee’’ and therefore the activities performed by an individual that make the individual subject to the HS laws, is not consistent with that congressional intent. Although FRA’s prior reading of the statutory language was reasonable given the context of the HS laws as a whole, that context has now changed, and FRA’s construction of the term ‘‘signal employee’’ must change with it. Operating a motor vehicle from work site to work site is an integral part of the duty tour for many signal employees. Failing to recognize such operation as time on duty for signal employees, independent of whether the operation is immediately connected with the duty tour for which the vehicle is operated, would fail to account for Congress’s clear statement that such activity should be governed by the HS laws. Accordingly, FRA understands an individual’s operation of a motor vehicle for the purposes of that individual’s installing, repairing, or maintaining signal systems to be service that is ‘‘engaged in’’ those activities and, therefore, signal-employee covered service. As a consequence, such driving time by the individual is time on duty for the purposes of Sec. 21104, regardless of whether the individual installs, repairs, or maintains a signal system during the same duty tour as the individual operated the motor vehicle. However, as clarification, individuals who do not perform installation, repair, or maintenance of signal systems do not become signal employees simply by virtue of operating a motor vehicle transporting a signal employee. For instance, a driver contracted by a railroad solely to transport signal employees would not be performing covered service while driving, because the driver is not operating the motor vehicle for the purpose of himself or herself installing, repairing, or maintaining signal systems. Although operating a motor vehicle is a frequent component of signal employee duties, it is, of course, not exclusive to such employees. FRA also notes that an individual’s operation of any motor vehicle for the purpose of himself or herself installing, repairing, or maintaining signal systems constitutes signal-employee covered service; the interpretation is not limited only to instances where the motor vehicle is a ‘‘commercial motor vehicle’’ within the meaning of FMCSA’s HS Regulations. This distinction is relevant only to the PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 58849 extent that FMCSA’s HS Regulations ever apply to individuals who ordinarily perform the functions of signal employees. As explained above, however, Congress specifically excluded signal employees from the application of HS rules promulgated by FMCSA, which would include FMCSA distinctions between motor vehicles. FRA is aware that signal employees may sometimes drive themselves to outlying work sites and engage in activities that are not classified as signal-employee covered service prior to performing signal-employee covered service. Two examples follow that illustrate the application of FRA’s new interim interpretation of ‘‘signal employee.’’ Example 10 Facts: An individual drives himself or herself to, and attends, a rules class at the outlying work site during one duty tour, and then performs signal-employee covered service at the same outlying work site during the next duty tour. Effect of law: Despite the intervening rules class, the individual’s drive to the outlying work site facilitated his or her subsequent performance of signalemployee covered service, and accordingly the driving time is time on duty subject to the FRA-administered HS laws rather than FMCSA’s HS Regulations. However, because the definition of ‘‘signal employee’’ is functional, there must be some connection, even if attenuated by intervening other activities or time off duty, between the time spent driving and the driver’s performance of other signal employee functions in order for the time spent driving to be covered service and subject to the HS laws rather than FMCSA’s HS Regulations. Only when the employee is driving a motor vehicle with no plausible connection to his or her future service installing, repairing, or maintaining signal systems is the driving time not time on duty as a signal employee. FRA recognizes the need for clarity in terms of what time spent in such driving is, and is not, considered time on duty; ambiguous travel time is time on duty, whereas travel time that is clearly and definitively not connected with proximate performance of signal employee functions is not signalemployee covered service. Example 11 Facts: An individual drives from his or her headquarters at Location A to a rules class at Location B, attends the rules class, and then drives from Location B to Location C, where he or she repairs signal systems at Location C. E:\FR\FM\24SER5.SGM 24SER5 58850 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Effect of law: The time spent driving from the employee’s headquarters to the rules class is not signal-employee covered service, unless it commingled with the eventual signal-employee covered service (i.e., the drive from Location B to Location C and the repair of the signal system at Location C), because the travel to the rules class location is not clearly connected to the performance of signal-employee covered service, since the employee is required to travel from the rules class location to another location in order for the employee to perform the covered service. In other words, assuming that neither the drive from Location B to Location C nor the signal-employee covered service at Location C was in the same duty tour as the rules class at Location A, the time that the employee spent driving to the rules class is not covered by the HS laws and is not covered by FMCSA’s HS Regulations. FRA acknowledges this gap in coverage for such drive times referenced in Example 12, but believes such instances are rare. FRA seeks comment on this aspect of its interim interpretation as well as on all other aspects of its interim interpretation. mstockstill on DSK4VPTVN1PROD with RULES5 C. Reiteration of FRA’s Longstanding Interpretations of Travel Time Involving Signal Employees As a result of this interim interpretation, the treatment of the time that signal employees spend operating motor vehicles is changing, but, as noted above, many of the other applications of the HS laws with respect to travel time for signal employees remain unchanged in the statutory text and in FRA interpretations. For the sake of clarity, FRA is briefly reiterating the agency’s (and the statute’s) prior and continuing treatment of these travel times as they apply to the new interpretation and providing any applicable supporting statutory references. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 Travel on an on-track vehicle: Any time spent in transportation on an ontrack vehicle, including any other type of travel time discussed below, is categorically time on duty as provided by Sec. 21104(b)(6). Commuting time: FRA’s longstanding interpretation, which remains unchanged, has been that normal commuting between the individual’s residence and his or her regular reporting point or headquarters connected with the regular workday is not time on duty. Because employees choose where to reside with respect to their regular reporting point or headquarters, time spent commuting from the residence to that location is not service for a railroad. Note, however, that when an employee instead travels directly from his or her residence to a location other than his or her regular reporting point or headquarters, the travel time, minus the normal length of the individual’s commuting time to the regular reporting point or headquarters, is service and, therefore, time on duty. Travel time following the end of scheduled duty hours: As provided by Sec. 21104(b)(4) and (b)(5), travel time that begins either at the end of scheduled duty hours, or when the employee is released prior to the end of scheduled duty hours in order to comply with the HS laws, is neither time on duty nor time off duty, regardless of whether the employee returns to his or her headquarters or directly to his or her residence, and regardless of whether the employee operates a motor vehicle as part of such transportation. However, if the employee returns to duty less than 30 minutes after the completion of travel, the travel time is instead considered travel time during a duty tour governed by Sec. 21104(b)(7), as discussed below. Travel time returning from a trouble call: As provided by Sec. 21104(b)(3), travel time returning from a trouble call PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 is neither time on duty nor time off duty, regardless of whether the employee returns to his or her headquarters or directly to his or her residence, and regardless of whether the employee operates a motor vehicle as part of such transportation. However, if the employee returns to duty less than 30 minutes after the completion of travel, the travel time is instead considered travel time during a duty tour as provided by Sec. 21104(b)(7). Other travel time: As discussed above, under FRA’s new interim interpretation, any time spent by an individual operating a motor vehicle in order for the individual to engage in installing, repairing, or maintaining a signal system is time on duty, regardless of whether the period of time operating the motor vehicle is connected with the individual’s duty tour. Any other travel time, such as time spent by an individual riding in a motor vehicle operated by someone else, during the individual’s duty tour, is potentially commingling service, consistent with FRA’s preexisting interpretation. This time spent by an individual riding in the motor vehicle commingles with time on duty that the individual accrued within the same duty tour and becomes time on duty. If there is no time on duty with which the travel time can commingle, such travel time instead becomes neither time on duty nor time off duty. Joseph C. Szabo, Administrator. Appendix A Appendix A: Brief Summary of Major Federal Hours of Service (HS) Requirements With Respect to Employees Who Perform One or More Types of Covered Service: Freight Train Employees, Passenger Train Employees, Signal Employees, and Dispatching Service Employees E:\FR\FM\24SER5.SGM 24SER5 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations 58851 Freight train employees Passenger train employees Signal employees Dispatching service employees Citation ...................................... Individuals Protected by the Federal HS Requirements because of the Type of Covered Service They Perform. 49 U.S.C. 21103 ...................... Train employees (individuals engaged in or connected with the movement of a train, including hostlers), except for train employees who are engaged in commuter or intercity rail passenger transportation, as defined in 49 CFR part 228, subpart F, who are instead subject to that regulation. See 49 U.S.C. 21102(c)(3). 49 U.S.C. 21104 ...................... Signal employees (individuals engaged in installing, repairing, or maintaining signal systems). See 49 U.S.C. 21101(4). 49 U.S.C. 21105. Dispatching service employees (operators, train dispatchers, or any other individual who by use of an electrical or mechanical device dispatches, reports, transmits, receives, or delivers orders related to or affecting train movements). See 49 U.S.C. 21101(2). Limitations on Time on Duty in a Single Tour. A railroad may not require or allow an individual to remain or go on duty as a freight train employee in excess of 12 hours or if the individual has not had at least 10 consecutive hours off duty during the prior 24 hours. A railroad may not require or allow an individual to remain or go on duty as a signal employee in excess of 12 hours or if the individual has not had at least 10 consecutive hours off duty during the prior 24 hours. A railroad may not require or allow an individual to remain or go on duty as a dispatching service employee for more than 9 hours in a 24-hour period at a place at which at least 2 shifts are employed or for more than 12 hours in a 24-hour period at a place where only one shift is employed. End of Duty Tour ...................... Duty tour ends at beginning of statutory minimum off-duty period. 49 CFR part 228, subpart F .... Train employees who are engaged in commuter or intercity rail passenger transportation. (Includes a train employee who is engaged in commuter or intercity rail passenger transportation regardless of the nature of the entity by whom the employee is employed and any other train employee who is employed by a commuter railroad or an intercity passenger railroad. Excludes a train employee of another type of railroad who is engaged in work train service even though that work train service might be related to providing commuter or intercity rail passenger transportation, and a train employee of another type of railroad who serves as a pilot on a train operated by a commuter railroad or intercity passenger railroad.) See 49 CFR 228.403(c) and discussion under III.A of the Second Interim Interpretations. A railroad may not require or allow an individual to remain or go on duty as a passenger train employee in excess of 12 hours or if the individual has not had at least 8 consecutive hours off duty during the prior 24 hours, or 10 consecutive hours off duty during the prior 24 hours if the individual has been on duty for 12 consecutive hours. Duty tour ends at beginning of statutory minimum off-duty period. Duty tour ends at beginning of statutory minimum off-duty period. Duration and Any Other Conditions of Minimum Off-Duty Period Between Two Duty Tours. 10 consecutive hours, required to be uninterrupted by any communication by the railroad reasonably expected to disrupt 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. At least 4 hours of time off duty at the individual’s designated terminal, required to be uninterrupted by any communication by the railroad reasonably expected to disrupt the employee’s rest. 8 consecutive hours; 10 consecutive hours if the employee has been on duty for 12 consecutive hours. 10 consecutive hours, required to be uninterrupted by any communication by the railroad reasonably expected to disrupt the employee’s rest. Not applicable; any service for the railroad within 24 hours of time on duty will commingle with that time on duty. No express minimum. At least 4 hours of time off duty at the individual’s designated terminal. At least 30 minutes of time off duty. mstockstill on DSK4VPTVN1PROD with RULES5 Duration and Any Other Conditions of Minimum Off-Duty Period Within a Duty Tour. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\24SER5.SGM 24SER5 At least 1 hour of time off duty. 58852 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Passenger train employees Signal employees Limitations on Consecutive Duty Tours and Requirements for Extended Rest. A railroad may not require or allow an individual to remain or go on duty as a freight train employee 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 at the individual’s home terminal. (See definition of ‘‘day’’ and explanation of ‘‘consecutive day’’ below.) Individuals are permitted to initiate an on-duty period as a freight train employee on a seventh consecutive day when the individual 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. An individual performing service on this additional day must receive 72 consecutive hours free from any service for any railroad at his or her home terminal before going on duty again as a freight train employee. None. A railroad may not require or allow an individual to remain or go on 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. A railroad may not require or allow an individual to 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. A railroad may not require or allow an individual to remain or go on duty as a passenger train employee if the individual has initiated an on-duty period each day on 13 or more consecutive calendar days in the series of at most 14 consecutive calendar days until the individual has had at least two consecutive calendar days on which he or she does not initiate an on-duty period. May not remain or go on duty as a passenger train employee if the individual has initiated an on-duty period each day on six or more consecutive calendar days including one or more Type 2 assignments until the individual has had at least 24 consecutive hours of time off duty. For definition of ‘‘Type 2 assignment,’’ see 49 CFR 228.5 or footnote 32 of the Second Interim Interpretations. During this time off duty, the individual must be at his or her home terminal and unavailable for any service for any railroad. If the employee is not at his or her home terminal when this time off duty is required, the employee may either deadhead to the point of final release at the employee’s home terminal or initiate an on-duty period in order to return to the employee’s home terminal either on the same calendar day or the next consecutive calendar day after the completion of the duty tour triggering the rest requirement. None ........................................ None ........................................ Monthly Cumulative Limitations mstockstill on DSK4VPTVN1PROD with RULES5 Freight train employees None ........................................ None. VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\24SER5.SGM 24SER5 Dispatching service employees Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Freight train employees Passenger train employees Signal employees Definition of ‘‘Time Neither On Duty nor Off Duty’’. Time spent in deadhead transportation from a duty assignment to the place of final release. Time spent in deadhead transportation from a duty assignment to the place of final release. None. Emergencies in General ........... A freight train employee on the crew of a wreck or relief train may be allowed to remain or go on duty for no more than 4 additional hours in any period of 24 consecutive hours when an emergency exists and the work of the crew is related to the emergency. A passenger train employee on the crew of a wreck or relief train may be allowed to remain or go on duty for no more than 4 additional hours in any period of 24 consecutive hours when an emergency exists and the work of the crew is related to the emergency. Explanation of the End of an Emergency. The emergency ends when the track is cleared and the railroad line is open for traffic. 24 consecutive hours; two initiations of an on-duty period are on consecutive days where they are separated by less than 24 hours of time off duty, measured from the time of the employee’s final release from duty until the time that the employee next reports for duty. None ........................................ The emergency ends when the track is cleared and the railroad line is open for traffic. Calendar days; two calendar days are consecutive if adjacent to one another. Time spent returning from a trouble call, whether the individual goes directly to the employee’s residence or by way of the employee’s headquarters. Time after scheduled duty hours necessarily spent in completing the trip directly to the individual’s residence or to the individual’s headquarters, if the individual has not completed the trip from the final outlying worksite of the duty period at the end of scheduled duty hours, or if the individual is released from duty at an outlying worksite before the end of the individual’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. A signal employee may be allowed to remain or go on duty for no more than 4 additional hours in any period of 24 consecutive hours when an emergency exists and the work of that employee is related to the emergency. Routine repairs, routine maintenance, or routine inspection of signal systems is not an emergency that allows for additional time on duty. The emergency ends when the signal system is restored to service. Not Applicable ......................... Passenger train employees’ None ........................................ work schedules must be analyzed under an FRA-approved validated biomathematical fatigue model, with the exception of certain schedules deemed as categorically presenting an acceptable level of risk for fatigue that does not violate the defined fatigue threshold. Schedules that include any None ........................................ time on duty between 8 p.m. and 4 a.m. must be analyzed using a validated biomathematical model of human performance and fatigue approved by FRA. Schedules with excess risk of fatigue must be mitigated or supported by a determination that mitigation is not possible and the schedule is operationally necessary and approved by FRA. None. Definition of ‘‘Day’’ and ‘‘Consecutive Day’’. Explicit Use of Fatigue Science Specific Rules for Nighttime Operations. mstockstill on DSK4VPTVN1PROD with RULES5 58853 VerDate Mar<15>2010 None ........................................ 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\24SER5.SGM 24SER5 Dispatching service employees A dispatching service employee may be allowed to remain or go on duty for no more than 4 additional hours during a period of 24 consecutive hours for no more than 3 days during a period of 7 consecutive days. None. Not Applicable Except in Context of Emergency Provision. None. 58854 Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 / Rules and Regulations Freight train employees Specific Rules for Unscheduled Assignments. Passenger train employees Signal employees None ........................................ The potential for fatigue presented by unscheduled work assignments must be mitigated as part of a railroad’s FRA-approved fatigue mitigation plan. Plans must be submitted for FRA review and approval, along with the associated schedules requiring mitigation. None ........................................ [FR Doc. 2013–23151 Filed 9–23–13; 8:45 am] mstockstill on DSK4VPTVN1PROD with RULES5 BILLING CODE 4910–06–P VerDate Mar<15>2010 20:21 Sep 23, 2013 Jkt 229001 PO 00000 Frm 00026 Fmt 4701 Sfmt 9990 E:\FR\FM\24SER5.SGM 24SER5 Dispatching service employees None.

Agencies

[Federal Register Volume 78, Number 185 (Tuesday, September 24, 2013)]
[Rules and Regulations]
[Pages 58829-58854]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23151]

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Vol. 78

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No. 185

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Part VI

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Federal Railroad Administration

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49 CFR Part 228

Second Interim Statement of Agency Policy and Interpretation on the
Hours of Service Laws as Amended in 2008; Final Rule

Federal Register / Vol. 78, No. 185 / Tuesday, September 24, 2013 /
Rules and Regulations

[[Page 58830]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

[Docket No. 2013-0011, Notice No. 1]

Second Interim Statement of Agency Policy and Interpretation on
the Hours of Service Laws as Amended in 2008

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

ACTION: Interim statement of agency policy and interpretation, hours of
service laws as amended in 2008; request for public comment.

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SUMMARY: The hours of service laws are Federal railroad safety laws
that govern such matters as the maximum on-duty periods and minimum
off-duty periods for railroad employees performing certain functions.
In this document FRA supplements its existing interpretations of the
hours of service laws by stating the agency's interim position on some
additional interpretive questions primarily involving two provisions of
those laws that were added in 2008. First, this document further
interprets the hours of service laws related to train employees,
particularly the ``consecutive-days'' provision of those laws. Although
the consecutive-days provision was also discussed in FRA's June 2009
interim interpretations and February 2012 final interpretations, this
document addresses the application of that provision to certain
circumstances that were not specifically addressed in those
interpretations. Second, this document further interprets the provision
of the hours of service laws that makes signal employees operating
motor vehicles subject to the hours of service laws and other hours of
service requirements administered by FRA and exempt from the hours of
service requirements promulgated by any other Federal authority. FRA
invites public comment on these additional interim interpretations.

DATES: This document is effective October 24, 2013. Comments on the
interim interpretations are due by November 25, 2013. Late-filed
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments on the interim interpretations set
forth in this document, identified as Docket No. FRA-2013-0011, 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. Note that all submissions received will be posted
without change to https://www.regulations.gov including any personal
information.
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: 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 George C.
Hartman, Acting Staff Director, Signal and Train Control Division,
Office of Safety Assurance and Compliance, FRA, Mail Stop 25, West
Building 3rd Floor West, Room W35-333, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone: 202-493-6225).

SUPPLEMENTARY INFORMATION:

Abbreviations of Terms Frequently Used in This Document

AAR Association of American Railroads
BRS Brotherhood of Railroad Signalmen
CFR Code of Federal Regulations
ch. chapter
FMCSA Federal Motor Carrier Safety Administration
FRA Federal Railroad Administration
HS hours of service (when the term is used as an adjective, except
as part of the name of an Act of Congress or the title of a
document, and not when the term is used as a noun)
RSIA Rail Safety Improvement Act of 2008, Public Law 110-432, Div.
A, 122 Stat. 4848
Sec. Section (Unless otherwise noted, all references to a ``Sec.''
are to a section in title 49 of the U.S. Code.)
U.S.C. United States Code

Definitions of Terms Frequently Used in This Document \1\
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\1\ See also Appendix A to this document for a table briefly
summarizing the Federal hours of service requirements. Many terms
frequently used in this document are defined in FRA's regulations at
49 CFR 228.5.
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Consecutive-days provision of the HS laws means 49 U.S.C.
21103(a)(4).
Consecutive-days provision of the Passenger Train Employee HS
Regulations means 49 CFR 228.405(a)(3).
Extended-rest provision of the HS laws means 49 U.S.C. 21103(a)(4).
Extended-rest provision of the Passenger Train Employee HS
Regulations means 49 CFR 228.405(a)(3).
Final Interpretations means FRA's ``Statement of Agency Policy and
Interpretation on the Hours of Service Laws as Amended; Response to
Public Comment'' published at 77 FR 12408-31 (February 29, 2012).
Freight train employee means a train employee who is not a
passenger train employee.
June 2009 Interim Interpretations means FRA's ``Interim Statement
of Agency Policy and Interpretation on the Hours of Service Laws as
Amended; Proposed Interpretation; Request for Public Comment''
published at 74 FR 30665-77 (June 26, 2009).
Passenger train employee means a train employee who is engaged in
commuter or intercity rail passenger transportation, as defined by 49
CFR 228.403(c).
Passenger Train Employee HS Regulations means the passenger train
employee hours of service regulations codified at 49 CFR part 228,
subpart F.
Second Interim Interpretations means this document, FRA's ``Interim
Statement of Agency Policy and Interpretation on the Hours of Service
Laws as Amended in 2008; Request for Public Comment'' published on
September 24, 2013.
``Signal employee exclusivity'' provision means 49 U.S.C. 21104(e).
Secretary means the Secretary of Transportation.

Table of Contents for Supplementary Information

I. Executive Summary of the Second Interim Statement of Agency
Policy and Interpretation on the Hours of Service Laws as Amended in
2008 (Second Interim Interpretations)
A. Statutory and Regulatory Background and FRA's Previous
Interpretations

[[Page 58831]]

(Section II and Section III.A of the Second Interim Interpretations)
B. Unavailability for Service for Purposes of the Statutory
Consecutive-Days Provision (Sec. 21103(a)(4)) (Section III.B of the
Second Interim Interpretations)
C. Primarily, Initiating an On-duty Period for Purposes of Sec.
21103(a)(4); Secondarily, Application of Subsections (a)(1), (a)(3),
(c)(1), (c)(4), and (e) of Sec. 21103 (Section III.C of the Second
Interim Interpretations)
D. Requirements after Final Release at the Away-from-Home
Terminal after the Employee Has Initiated an On-duty Period on Six
Consecutive Days (Section III.D of the Second Interim
Interpretations)
E. ``Signal Employee Exclusivity'' Provision (Section IV of the
Second Interim Interpretations)
II. Background on the Hours of Service Laws and FRA's Previous
Publications Interpreting the Hours of Service Laws as Amended in
2008
III. Additional Questions Primarily Regarding the Consecutive-Days
Limitation for Freight Train Employees and the Requirement of at
Least 48 or 72 Hours Off Duty at the Home Terminal During Which Time
the Employee Is Unavailable for Service for Any Railroad
A. Legislative, Statutory, and Regulatory Background on the
Hours of Service Requirements Related to Train Employees
B. When Is a Train Employee Unavailable for Service for Any
Railroad Such That the Extended Rest of 48 or 72 Hours Required by
Sec. 21103(a)(4) May Begin to Run?
1. Summary of Issue and Interim Interpretation
2. Detailed Discussion of Interim Interpretation
C. How Does Sec. 21103(a)(4) Apply to an Employee Who Initiates
an On-Duty Period Performing Multiple Types of Covered Service
During One Duty Tour or Within a Period of Six or Seven Consecutive
Days? How Do Subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of
Sec. 21103 Apply to an Employee Performing Multiple Types of Covered
Service Within the Relevant Time Periods?
1. Summary of Issues and Interim Interpretation
2. Detailed Discussion of Interim Interpretation
a. Option 1: Broad Reading--All Forms of Covered Service Count
as Initiating an On-Duty Period Under Under Sec. 21103(a)(4).
b. Option 2: Narrow Reading--Only Duty Tours Including Time
Engaged in or Connected With the Movement of a Train Count as
Initiating an On-Duty Period Under Sec. 21103(a)(4).
c. Decision: FRA Chooses the Narrow Reading of ``On-Duty
Period'' for Purposes of Sec. 21103(a)(4).
d. Further Clarification: Service as a Passenger Train Employee
Is Within the Scope of ``On-Duty Period'' Under Sec. 21103(a)(4),
Despite the Sec. 21102(c) Exemption.
e. Further Clarification: Service as a Passenger Train Employee
Is Within the Scope of the Calendar Monthly Limits Set by Sec.
21103(a)(1) and (c)(1).
f. Further Clarification: Requirements for Rest Set by Sec.
21103(a)(3), (c)(4), and (e), After a Single Duty Tour That Includes
Service as a Freight Train Employee, Must Also Be Met Before
Performing any Service for the Railroad or Else the Additional
Service Will Commingle.
g. Further Clarification: Single Duty Tours Performing Multiple
Types of Covered Service
h. More Examples of the Application of the Statutory or the
Regulatory Consecutive-Days Provision, or Both, to a Single Duty
Tour or to Several Duty Tours Involving Performance of One or More
Types of Covered Service
D. Under Sec. 21103(a)(4), a Railroad May Not Require or Allow a
Train Employee To Initiate an On-Duty Period After the Employee Has
Initiated an On-Duty Period Each Day for Six Consecutive Days
Followed by More Than 24 Hours Off Duty at the Away-From-Home
Terminal. Following Such Service, When that Employee Returns to the
Home Terminal, the Employee Must Remain Unavailable for Service at
the Home Terminal for at Least 48 Hours
1. Summary of Issue and Interim Interpretation
2. Detailed Discussion of Interim Interpretation
IV. Application of the ``Signal Employee Exclusivity'' Provision to
Individuals Who Drive Commercial Motor Vehicles for the Purpose of
Themselves Installing, Maintaining, or Repairing Signal Systems
A. Summary of Issue and Interim Interpretation
B. Detailed Discussion of Issue and Interim Interpretation
C. Reiteration of FRA's Longstanding Interpretations of Travel
Time Involving Signal Employees

I. Executive Summary of the Second Interim Statement of Agency Policy
and Interpretation on the Hours of Service Laws as Amended in 2008
(Second Interim Interpretations)

A. Statutory and Regulatory Background and FRA's Previous
Interpretations (Section II and Section III.A of the Second Interim
Interpretations)

Federal laws governing railroad employees' hours of service date
back to 1907 \2\ and are presently codified as positive law at Secs.
21101-21109 \3\ and 21303.\4\ FRA, under delegations from the Secretary
of Transportation,\5\ has long administered the statutory HS
requirements for the three groups of employees now covered by the
statute; namely, employees performing the functions of a train
employee, signal employee, or dispatching service employee, as those
terms are defined at Sec. 21101. These terms are also defined for
purposes of FRA's HS recordkeeping and reporting regulations (49 CFR
part 228, subpart B) at 49 CFR 228.5 and discussed in FRA's
``Requirements of the Hours of Service Act; Statement of Agency Policy
and Interpretation'' at 49 CFR part 228, appendix A, most of which was
issued in the 1970s.
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\2\ See the Hours of Service Act (Pub. L. 59-274, 34 Stat. 1415
(1907)). Effective July 5, 1994, Public Law 103-272, 108 Stat. 745
(1994), repealed the Hours of Service Act as amended, then codified
at 45 U.S.C. 61-64b, and also revised and reenacted its provisions,
without substantive change, as positive law at Sec. 21101-21108 and
21303.
\3\ These sections may also be cited as 49 U.S.C. chapter 211.
\4\ For a table comparing and contrasting the current Federal
hours of service (HS) requirements with respect to freight train
employees, passenger train employees, signal employees, and
dispatching service employees, please see Appendix A to the Second
Interim Interpretations.
\5\ See 49 CFR 1.89.
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The HS statutory requirements have been amended several times over
the years, most recently by the Rail Safety Improvement Act of 2008 \6\
(RSIA). The RSIA substantially amended the requirements of Sec. 21103,
applicable to a train employee, defined as an ``individual engaged in
or connected with the movement of a train, including a hostler,'' \7\
and the requirements of Sec. 21104, applicable to a signal employee,
defined as an ``individual who is engaged in installing, repairing, or
maintaining signal systems.'' \8\ The RSIA also added new provisions at
Secs. 21102(c) and 21109 that together made train employees providing
rail passenger transportation subject not to Sec. 21103 but to HS
regulations, if issued timely by the Secretary. Subsequently, FRA, as
the Secretary's delegate, issued those regulations, codified at 49 CFR
part 228, subpart F (Passenger Train Employee HS Regulations), which
became effective on October 15, 2011. Until those regulations were
issued, train employees providing commuter rail passenger
transportation or intercity rail passenger transportation were subject
to Sec. 21103 as it existed immediately before the RSIA amendments.
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\6\ Public Law 110-432, Div. A, 122 Stat. 4848.
\7\ Sec. 21101(5).
\8\ Sec. 21101(4). The RSIA also amended the definition of
``signal employee'' effective October 16, 2008. Before the RSIA, the
term meant ``an individual employed by a railroad carrier who is
engaged in installing, repairing, or maintaining signal systems.''
Emphasis added.
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Following the enactment of the RSIA, FRA published an interim
statement of agency policy and interpretation (June 2009 Interim
Interpretations) to address questions of statutory interpretation that

[[Page 58832]]

had arisen so far with respect to the HS laws as amended by the RSIA
(the new HS laws). 74 FR 30665 (June 26, 2009). Subsequently FRA
published final interpretations that responded to public comments on
the June 2009 Interim Interpretations and made certain revisions. 77 FR
12408 (February 29, 2012) (Final Interpretations). In responding to
those comments, FRA recognized that the commenters had raised some
important issues on which FRA had not taken a position in the June 2009
Interim Interpretations. Section III of the Second Interim
Interpretations, below, addresses several such issues, each related
primarily to the consecutive-days limitations and extended-rest
requirements of Sec. 21103(a)(4), but also touching on other
requirements of Sec. 21103 and on the extended-rest requirements of the
Passenger Train Employee HS Regulations (49 CFR 228.405(a)(3)).
Further, following the publication of the Final Interpretations, in
responding to a letter dated April 9, 2012, from the Association of
American Railroads (AAR), FRA agreed in a letter dated June 22, 2012,
to address the agency's exclusive Federal jurisdiction over the HS of
signal employees in a notice to be published in the Federal Register.
This issue is discussed in Section IV of the Second Interim
Interpretations, below. For these reasons, FRA has decided to publish
the Second Interim Interpretations to deal with these important issues,
and to seek public comment on these issues, so that FRA will be able to
speak to the concerns raised by the industry with full understanding of
the positions of the various parts of the industry, and the practical
implications of these interpretations.

B. Unavailability for Service for Purposes of the Statutory
Consecutive-Days Provision (Sec. 21103(a)(4)) (Section III.B of the
Second Interim Interpretations)

The extended-rest requirement of Sec. 21103(a)(4) is for a minimum
of 48 or 72 ``consecutive hours off duty at the employee's home
terminal during which time the employee is unavailable for any service
for any railroad carrier.'' Emphasis added. The question of what it
means to be ``unavailable for service'' under Sec. 21103(a)(4) and,
therefore, when an employee begins his or her required minimum 48 or 72
consecutive hours off duty at the employee's home terminal, was not
addressed in the June 2009 Interim Interpretations. Rather, the issue
was raised by implication in public comments on the June 2009 Interim
Interpretations addressing the application of Sec. 21103(a)(4) with
respect to employees who are released immediately after reporting for
duty, if this release occurs on the sixth or seventh consecutive day on
which the employee has initiated an on-duty period. FRA concludes that
an employee who has worked less than the maximum of 12 consecutive
hours or 12 hours in the aggregate under the HS laws, is considered to
have received sufficient rest to comply with Sec. 21103(a)(4) if that
employee in fact performs no further service for any railroad (``de
facto unavailability'') during a 48- or 72-hour rest period at the
employee's home terminal. The merely theoretical, legal availability of
the employee to be required or allowed to return to work all or part of
the remainder of the employee's maximum duty tour \9\ does not in
itself negate the employee's unavailability for purposes of Sec.
21103(a)(4). In addition, notification of the employee that the 48- or
72-hour rest period has begun is not required. Likewise, an employee
who has reached the maximum of 12 hours of time on duty also may begin
both the statutory minimum off-duty period and the 48- or 72-hour
extended-rest period concurrently. FRA considered two alternatives to
its interim interpretation. Under one alternative, an employee would
not be deemed unavailable for service and subject to the extended rest
required by Sec. 21103(a)(4) until the employee is legally unavailable
for further service. The other alternative would base an employee's
unavailability for service on the notice provided to the employee as to
the nature and duration of the off-duty period at the time that the
employee began the off-duty period. For reasons described below, FRA
rejected both of these alternative interpretations.
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\9\ Duty tour means--(1) The total of all periods of covered
service and commingled service for a train employee or a signal
employee occurring between two statutory off-duty periods (i.e.,
off-duty periods of a minimum of 8 to 10 hours); or (2) The total of
all periods of covered service and commingled service for a
dispatching service employee occurring in any 24-hour period. 49 CFR
228.5.
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C. Primarily, Initiating an On-duty Period for Purposes of Sec.
21103(a)(4); Secondarily, Application of Subsections (a)(1), (a)(3),
(c)(1), (c)(4), and (e) of Sec. 21103 (Section III.C of the Second
Interim Interpretations)

With certain exceptions, Sec. 21103(a)(4) prohibits a railroad from
requiring or allowing an employee to go or remain on duty as a train
employee after the employee has initiated an on-duty period each day on
six consecutive days unless that employee has received the 48-hour rest
period described above. If one of the exceptions applies, after the
employee has initiated an on-duty period each day as a train employee
on seven consecutive days, a 72-hour rest period is required before the
employee goes on duty again as a train employee. The application of
Sec. 21103(a)(4) to an employee who works in multiple types of covered
service, either on a single day or during a period of six or seven
consecutive days, was also not addressed in the June 2009 Interim
Interpretations, but was raised in BLET and UTU's joint comment on
those Interim Interpretations, in which they asked for clarification on
how Sec. 21103 and Sec. 21105 (which provides the HS limitations for
dispatching service employees) interact.
For reasons discussed in detail below, in Section III.C. 2.a-e of
the Second Interim Interpretations, FRA interprets the relevant scope
of ``on-duty period'' for purposes of Sec. 21103(a)(4) to extend only
to on-duty periods as a train employee, including on-duty periods as
either a freight train employee or a passenger train employee;
accordingly, only when an individual performs train employee functions
(i.e., is engaged in or connected with the movement of a train) will
such an individual be considered to have ``initiated an on-duty
period'' for the purposes of Sec. 21103(a)(4). Examples applying these
principles are found primarily at Section III.C.2.h of the Second
Interim Interpretations. FRA also considered an interpretation that
would have counted all forms of covered service as initiating an on-
duty period for the purposes of Sec. 21103(a)(4), so that even duty
tours consisting only of service as a signal employee or a dispatching
service employee, without any service as a train employee, would count
toward the consecutive-days limitation of Sec. 21103(a)(4). This
alternate interim interpretation was rejected for reasons explained in
detail below in Section III.C. 2.a-c of the Second Interim
Interpretations.
Section III.C.2.f-g of the Second Interim Interpretations provides
further clarification and examples of how the various statutory and
regulatory limitations work together, and the application of the
respective commingled service provisions (Secs. 21103(b)(3),
21104(b)(2), and 21105(c) and 49 CFR 228.405(b)(3)) to individual duty
tours in which multiple types of covered service are performed. When an
employee performs service that is governed by more than one HS
requirement, the railroad must comply with all of the requirements
governing that service during the relevant period

[[Page 58833]]

of time, including the most stringent of the requirements governing
that service.
As discussed in Section III.C. 2.e, for similar reasons, on an
interim basis, FRA also interprets appropriate periods of time accrued
in a passenger-train-employee duty tour to count toward the respective
limitations of Sec. 21103(a)(1) (limiting on-duty time and certain
other service for the railroad to 276 hours per calendar month) and
Sec. 21103(c)(1) (limiting certain limbo time per calendar month) if
the employee engages in freight-train-employee duty tours in the same
calendar month. Likewise, as discussed in Section III.C.2.f-g, although
a duty tour that does not include any time spent as a freight train
employee does not trigger the 10-hour statutory minimum off-duty period
between duty tours required by Sec. 21103(a)(3), uninterrupted as
required by Sec. 21103(e), or the requirement for ``additional rest''
under Sec. 21103(c)(4), once these requirements have been triggered by
a duty tour including service as a freight train employee, the required
off-duty period, including any necessary ``additional rest,'' must be
provided before the employee performs any other service for the
railroad, or else that subsequent service will commingle with the
previous duty tour under Sec. 21103(b)(3).

D. Requirements After Final Release at the Away-From-Home Terminal
After the Employee Has Initiated an On-Duty Period on Six Consecutive
Days (Section III.D of the Second Interim Interpretations)

FRA has also not previously addressed the following question, which
involves an exception to Sec. 21103(a)(4): May an employee initiate a
seventh on-duty period 24 hours or more after the employee is finally
released from his or her sixth consecutive duty tour at the employee's
away-from-home terminal, or does Sec. 21103(a)(4)(A)(i)-(ii) authorize
a train employee to initiate an on-duty period only if it is
consecutive to the sixth consecutive day? Under FRA's interim
interpretation, the railroad may not require or allow a train employee
to initiate an on-duty period after the employee has initiated an on-
duty period each day for six consecutive days, has been finally
released at the away-from-home terminal, and then has spent more than
24 hours off duty there. Rather, as described below, the railroad may
require or allow the employee to engage in non-covered service at the
away-from-home terminal, if desired, but must deadhead the employee to
his or her home terminal and must then give the employee 48 hours off
duty at the home terminal before requiring or allowing the employee to
report for duty again to perform service as a freight train employee.
In addition, if the railroad has nevertheless required or allowed the
employee to initiate an on-duty period at the away-from-home terminal
after the seventh consecutive day, the railroad must give the employee
72 hours off duty at the home terminal before requiring or allowing the
employee to report for duty again to perform as a freight train
employee. FRA considered, but rejected for reasons discussed below, an
alternative reading of the text, that would understand the
authorization to ``work a seventh consecutive day'' as allowing one
final initiation of an on-duty period when the employee ends the sixth
consecutive on-duty period at the away-from-home terminal, even if the
initiation of that final on-duty period occurs after the seventh
consecutive day.

E. ``Signal Employee Exclusivity'' Provision (Section IV of the Second
Interim Interpretations)

Finally, the ``signal employee exclusivity'' provision (Section
21104(e)) states that the ``hours of service, duty hours, and rest
periods of signal employees shall be governed exclusively by [the HS
laws]. Signal employees operating motor vehicles shall not be subject
to any [HS] rules, duty hours or rest period rules promulgated by any
Federal authority, including the [FMCSA] other than the [FRA].'' FRA
revises its prior interpretation of that provision. In the Final
Interpretations, FRA took the position that driving a motor vehicle
itself was noncovered service that would not count as time on duty;
only if the driving occurred within a duty tour that included time when
the employee was engaged in installing, repairing or maintaining signal
systems, would the time spent driving commingle under the commingling
provision at Section 21104(b)(2) and count as time on duty. As a
consequence, the time spent driving that was separate from a duty tour
that contained covered service was not time on duty as a signal
employee that was governed by Sec. 21104, and could be subject to the
HS regulations of the Federal Motor Carrier Safety Administration
(FMCSA HS regulations). For the reasons described below, FRA's new
interim interpretation views an individual's operation of a motor
vehicle, when such driving is for the purpose of allowing that
individual to install, repair, or maintain signal systems, to be a
function that is time on duty under the ``signal employee'' provisions
of the HS laws, regardless of whether the operation of the motor
vehicle is within the same duty tour as the direct work on the signal
system, or is separated from it by at least 10 hours off duty. As a
result, such operation of a motor vehicle for that purpose is itself
subject to the limitations of the HS laws, and to the exclusivity
provision that exempts the operation from other Federal requirements
concerning HS, duty hours, or rest periods, including FMCSA's HS
Regulations. It should be noted, however, that many of FRA's
longstanding interpretations of travel time for signal employees are
unchanged. For example, normal commuting between the individual's home
and his or her regular reporting point is not time on duty. Those
existing interpretations are briefly reiterated.

II. Background on the Hours of Service Laws and FRA's Previous
Publications Interpreting the Hours of Service Laws as Amended in 2008

FRA is the agency of DOT that administers the Federal railroad
safety laws.\10\ Federal laws governing railroad employees' hours of
service date back to 1907 \11\ and are presently codified as positive
law at Secs. 21101-21109 \12\ and 21303.\13\ FRA, under delegations
from the Secretary of Transportation (Secretary), has long administered
the statutory HS requirements for the three groups of employees now
covered by the statute; namely, employees performing the functions of a
train employee, signal employee, or dispatching service employee, as
those terms are defined at Sec. 21101. These terms are also defined for
purposes of FRA's hours of service recordkeeping and reporting
regulations (49 CFR part 228, subpart B) at 49 CFR 228.5 and discussed
in FRA's ``Requirements of the Hours of Service Act; Statement of

[[Page 58834]]

Agency Policy and Interpretation'' at 49 CFR part 228, appendix A, most
of which was issued in the 1970s.
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\10\ See 49 U.S.C. 103 (the statutory provision establishing FRA
and conferring on the Administrator of FRA the duties and powers to
carry out certain Federal railroad safety laws, including the hours
of service (HS) laws) and 49 CFR 1.89 (the delegation from the
Secretary of Transportation to the Administrator of FRA to carry out
all the Federal railroad safety laws).
\11\ See the Hours of Service Act (Pub. L. 59-274, 34 Stat. 1415
(1907)). Effective July 5, 1994, Public Law 103-272, 108 Stat. 745
(1994), repealed the Hours of Service Act as amended, then codified
at 45 U.S.C. 61-64b, and also revised and reenacted its provisions,
without substantive change, as positive law at Sec. 21101-21108 and
21303.
\12\ These sections may also be cited as 49 U.S.C. chapter 211.
\13\ For a table comparing and contrasting the current Federal
HS requirements with respect to freight train employees, passenger
train employees, signal employees, and dispatching service
employees, please see Appendix A to the Second Interim
Interpretations.
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The HS statutory requirements have been amended several times over
the years, most recently by the Rail Safety Improvement Act of 2008
(RSIA). See Public Law 110-432, Div. A, 122 Stat. 4848, enacted October
16, 2008. Section 108 of the RSIA, captioned ``Hours-of-service
reform,'' made important changes to 49 U.S.C. chapter (ch.) 211, Hours
of Service, as amended through October 15, 2008 (the old HS laws). See
122 Stat. 4860-4866. Because of the significance of the amendments to
the old HS laws made by Sec. 108 of the RSIA, FRA published an interim
statement of agency policy and interpretation (June 2009 Interim
Interpretations) to address questions of statutory interpretation that
had arisen so far with respect to the HS laws as amended by the RSIA
(the new HS laws). 74 FR 30665 (June 26, 2009). FRA also invited
comment on the June 2009 Interim Interpretations.
Subsequently FRA published final interpretations that responded to
public comments on the June 2009 Interim Interpretations and made
certain revisions. 77 FR 12408 (February 29, 2012) (Final
Interpretations). In responding to those comments, FRA recognized that
the commenters had raised some important issues on which FRA had not
taken a position in the June 2009 Interim Interpretations. Further,
responding to a letter dated April 9, 2012, from AAR, about the Final
Interpretations, FRA agreed in a letter dated June 22, 2012, to address
the agency's exclusive Federal jurisdiction over the hours of service
of signal employees in a notice to be published in the Federal
Register. For these reasons, FRA has decided to publish these
additional interim interpretations (Second Interim Interpretations)
dealing with these important issues, and to seek public comment, so
that FRA will be able to speak to the concerns raised by the industry
with full understanding of the positions of the various parts of the
industry on these issues.

III. Additional Questions Primarily Regarding the Consecutive-Days
Limitation for Freight Train Employees and the Requirement of at Least
48 or 72 Hours Off Duty at the Home Terminal During Which Time the
Employee Is Unavailable for Service for Any Railroad

A. Legislative, Statutory, and Regulatory Background on the Hours of
Service Requirements Related to Train Employees

Sec. 108 of the RSIA amended in various ways the then-existing
limitations in the old HS laws on the duty hours of ``train employees''
at 49 U.S.C. 21103 and added new provisions at 49 U.S.C. 21102(c) and
21109 that as a group reformed the Federal scheme for the hours of
service of train employees. The RSIA did not amend the definition of
``train employee'' at 49 U.S.C. 21101(5) (which continues to read ``an
individual engaged in or connected with the movement of a train,
including a hostler'') and did not amend the rules for determining
``time on duty'' under 49 U.S.C. 21103 (which continues to provide for
counting as ``time on duty'' any other type of service for the railroad
that occurred within the same duty tour as the train-employee covered
service).\14\ However, the new provision at 49 U.S.C. 21102(c) created
two separate sets of HS requirements for train employees based on the
type of train service that the employees were performing at the
relevant point in time.
---------------------------------------------------------------------------

\14\ See 49 U.S.C. 21103(b)(3). See also definitions of
``commingled service'' and ``duty tour'' for purposes of FRA's HS
recordkeeping regulations at 49 CFR 228.5.
---------------------------------------------------------------------------

In particular, train employees when not providing commuter rail
passenger transportation or intercity rail passenger transportation but
otherwise engaged in or connected with the movement of a train
(described in this document as ``freight train employees'') became
subject to Sec. 21103 as amended by the RSIA (new Sec. 21103 or
[unmodified] Sec. 21103). In contrast, train employees ``when providing
commuter rail passenger transportation or intercity rail passenger
transportation'' (described in this document as ``passenger train
employees'') instead remained subject to 49 U.S.C. Sec. 21103 as it
existed on the day before the enactment of the RSIA (old Sec. 21103)
until October 15, 2011 and then on October 15, 2011, became subject to
FRA's regulations at 49 CFR part 228, subpart F, entitled ``Substantive
Hours of Service Requirements for Train Employees Engaged in Commuter
or Intercity Rail Passenger Transportation'' (Passenger Train Employee
HS Regulations). 76 FR 50397 (Aug. 12, 2011). Those regulations define
a ``train employee who is engaged in commuter or intercity rail
transportation'' to include all train employees engaged in commuter or
intercity rail passenger transportation, and any other train employee
who is employed by a commuter railroad or an intercity passenger
railroad. 49 CFR 228.403(c). FRA intended by this language to clarify
that train employees employed by passenger railroads who perform
service such as work train service, or other such ancillary train
service, as part of their employment for the commuter railroad or
intercity passenger railroad, would be covered by the Passenger Train
Employee HS Regulations, rather than the requirements of Sec. 21103.
The definition also specifically excluded from the coverage of the
Passenger Train Employee HS Regulations those train employees employed
by other kinds of railroads who perform work train service or pilot
service. 49 CFR 228.403(c).
The Passenger Train Employee HS Regulations establish rules for
determining ``time on duty'' that are identical to the rules in Sec.
21103(b), but contain a somewhat different set of HS requirements for
passenger train employees. See 49 CFR 228.401 and 228.405. For example,
under these regulations, 12 hours on duty not consecutively but in
aggregate service in a 24-hour period as a passenger train employee
triggers a requirement for only 8 consecutive hours off duty, whereas
under Sec. 21103(a)(3), 12 hours on duty in a 24-hour period (even if
not 12 consecutive hours) as a freight train employee must be followed
by 10 hours off duty, and under Sec. 21103(e) those hours must not be
interrupted by a communication from the railroad ``that could
reasonably be expected to disrupt the employee's rest[,]'' except in an
emergency. In addition, the Passenger Train Employee HS Regulations
contain no equivalent to several of the limitations added by the RSIA
for freight train employees, such as Sec. 21103(e)'s requirement that
minimum off-duty periods and periods of interim release must be
uninterrupted by communications from the railroad ``that could
reasonably be expected to disrupt the employee's rest,'' or Sec.
21103(a)(1)'s limit for freight train employees of 276 hours per
calendar month spent either on duty, awaiting or in deadhead
transportation from a duty assignment to the employee's point of final
release, or in other mandatory service for the railroad.

[[Page 58835]]

Among the amendments to old Sec. 21103 made by Sec. 108(b) of the
RSIA was the addition of a provision, codified at 49 U.S.C. 21103(a)(4)
(Sec. 21103(a)(4)), that requires that, as a general rule, after a
train employee initiates an on-duty period each day for six consecutive
days,\15\ the employee must have received ``at least 48 consecutive
hours off duty at the employee's home terminal during which time the
employee is unavailable for any service for any railroad carrier''
before the employee may go on duty again. Sec. 21103(a)(4)(A) provides
an exception to this general rule: that if the on-duty period that was
initiated on the sixth consecutive day ends at a location other than
the employee's 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
which time the employee is unavailable for any service for any railroad
carrier . . . .''
---------------------------------------------------------------------------

\15\ For additional discussion of the meaning of ``consecutive
day'' in this context, see Final Interpretations, section IV.B.1, 77
FR at 12417-19.
---------------------------------------------------------------------------

Sec. 21103(a)(4)(B) provides that employees may also initiate an
on-duty period for a seventh consecutive day and must then receive 72
consecutive hours off duty at the employee's home terminal 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 either by a collective bargaining agreement entered into
during that period or provided for by a pilot program that is
authorized by collective bargaining agreement or by a pilot program
under the HS laws at Sec. 21108 related to work and rest cycles.
Sec. 21103(a)(4) also provides that the Secretary may waive the
requirements of 48 and 72 consecutive hours off duty (extended rest) if
all of the following requirements are met: (1) The procedures of Sec.
20103 are followed (i.e., essentially, public notice and an opportunity
for an oral presentation are provided prior to issuing the waiver); (2)
a collective bargaining agreement provides a different arrangement; and
(3) the Secretary determines that the arrangement is in the public
interest and consistent with safety. See the undesignated last sentence
of Sec. 21103(a)(4).
In the Final Interpretations, FRA construed ``day'' for the
purposes of Sec. 21103(a)(4) to refer to the 24-hour period during
which a duty tour takes place. Given that redefinition of ``day,'' two
initiations of an on-duty period are on consecutive days where they are
separated by less than 24 hours of time off duty, measured from the
time of the employee's final release from duty until the time that the
employee next reports for duty.\16\
---------------------------------------------------------------------------

\16\ Note, however, that due to the nature of passenger train
employee assignments and the time-specific limitations of the
Passenger Train Employee HS Regulations, the consecutive-days
limitation for passenger train employees considers the initiation of
on-duty periods on a specified number of calendar days rather than
24-hour periods. See 49 CFR 228.405(a)(3).
---------------------------------------------------------------------------

B. When is a train employee unavailable for service for any railroad
such that the extended rest of 48 or 72 hours required by sec.
21103(a)(4) may begin to run?

1. Summary of Issue and Interim Interpretation
The question of what it means to be ``unavailable for service''
under Sec. 21103(a)(4) and, therefore, when an employee begins his or
her required minimum 48 or 72 hours off duty at his or her home
terminal, was not addressed in the June 2009 Interim Interpretations.
Rather, the issue was raised by implication in public comments on the
June 2009 Interim Interpretations addressing the application of Sec.
21103(a)(4) with respect to employees who are released immediately
after reporting for duty, if this release occurs on the sixth or
seventh consecutive day on which the employee has initiated an on-duty
period. See, e.g., comments of the Brotherhood of Locomotive Engineers
and Trainmen and the United Transportation Union, Docket No. FRA-2009-
0057-0044, at 6. For the reasons discussed below, FRA concludes that an
employee who has worked less than the maximum of 12 consecutive hours
or 12 hours in the aggregate under the HS laws, will be considered to
have received sufficient rest for the railroad to comply with Sec.
21103(a)(4) if that employee in fact is not required or permitted to
perform further service (de facto unavailability'') during a 48- or 72-
hour rest period. Furthermore, the merely theoretical, legal
availability of the employee to be required or allowed to return to
work all or part of the remainder of the employee's maximum duty tour,
does not in itself negate the employee's unavailability for purposes of
Sec. 21103(a)(4). and that notification of the employee that the 48- or
72-hour rest period has begun is not required. Naturally, an employee
who has reached the maximum of 12 hours of time on duty also may begin
both the statutory minimum off-duty period and the 48- or 72-hour
extended rest period concurrently.
The language of Sec. 21103(a)(4)(A) and (B) states repeatedly that
during the 48- or 72-hour off-duty period, the employee must be
``unavailable for any service for any railroad carrier.'' As was
discussed in the Final Interpretations in section IV.B.1, 77 FR at
12420-21, FRA understands this statutory language to mean that the
extended-rest period required by Sec. 21103(a)(4) begins when a train
employee is ``finally released from duty'' within the meaning of Sec.
21103(b), which establishes the rules for determining under subsection
(a) of this section the time a train employee is on or off duty[,]''
and that when the employee is finally released from duty, both the
minimum extended-rest period required by Sec. 21103(a)(4) (48 or 72
hours as appropriate) and the other statutory minimum off-duty periods
\17\ begin to run concurrently, not consecutively. In the event that
the railroad calls the employee back to perform additional covered
service,\18\ or other service for the carrier (such as to deadhead to a
new point of final release prior to the completion of a statutory off-
duty period), this additional service within the 24-hour period that
began when the employee reported for duty is classified as ``time on
duty'' or ``neither time on duty nor time off duty'' for purposes of
Sec. 21103(a). as those terms are discussed in Sec. 21103(b), that will
attach to and extend the prior duty tour. As a result, the required
rest periods would both start anew at the point in time of the
subsequent release from duty, and the period of time previously
considered to be accruing towards the statutory minimum off-duty period
before the employee was called for additional service would become
either time on duty or an interim

[[Page 58836]]

release.\19\ Once an employee is finally released from duty after
having initiated an on-duty period on a sixth or seventh consecutive
day, the employee is required to receive a statutory minimum off-duty
period of at least 10 hours, and the 48- or 72-hour extended rest
period, respectively, either (1) when he or she has accumulated 12 or
more hours of time on duty within the meaning of Sec. 21103(b), or (2)
when the duty tour is at the 24-hour point from the beginning of the
duty tour, therefore ending the employee's availability to accrue
additional time on duty within the duty tour due to Sec. 21103(a)(3),
whichever event occurs first. This is necessary in order to ensure the
employee receives sufficient rest before being required or allowed to
go on duty again as a freight train employee. If neither of these
events occurs, an employee could lawfully (under the HS laws) be called
back to perform further covered service or other service for the
railroad within the same duty tour, regardless of the expectation of
either the employee or the railroad at the time that the employee was
released.
---------------------------------------------------------------------------

\17\ For train employees providing freight train service, the
``statutory minimum off-duty period'' is defined by Sec. 21103(a)(3)
to be a minimum of 10 consecutive hours, as potentially extended by
Sec. 21103(c)(4) if the combination of an employee's time on duty
and time spent waiting for or in deadhead transportation to the
point of final release exceeds 12 hours, with any time in excess of
12 hours added to the statutory minimum off-duty period. See also 49
CFR 228.5. While it is true that other rest periods required by the
statute, such as the 48- or 72-hour rest period required by Sec.
21103(a)(4) and the additional rest that may be required under Sec.
21103(c)(4), are also ``statutory minimum'' rest periods, the term
``statutory minimum off-duty period'' has been defined in FRA's HS
recordkeeping regulation at 49 CFR 228.5 to refer to the off-duty
period required to begin a new 24-hour period for the purpose of
calculating total time on duty.
\18\ For train employees, ``covered service'' is service
``engaged in or connected with the movement of a train,'' as
described in 49 U.S.C. 21101(5). See also definition of ``covered
service'' at 49 CFR 228.5.
\19\ An interim release for train employees is a period
available for rest lasting at least 4 hours within a duty tour, as
described in Sec. 21103(b)(5)-(b)(7). If an employee receives 10 or
more hours of time off duty, the time off duty becomes a statutory
minimum off-duty period rather than an interim release (unless
additional time off is required under Sec. 21103(c)(4)). See also 49
CFR 228.5.
---------------------------------------------------------------------------

As will be described below, this retrospective determination of an
employee's unavailability, such that an employee is deemed to have been
unavailable for service during the times in which the employee does
not, in fact, perform service, is consistent with the text of the HS
laws and prior FRA interpretations of those laws, takes heed of the
structure of railroad operations, and provides clarity to both
employees and railroads. FRA seeks comment on this interim
interpretation that ``unavailable'' for the purposes of Sec.
21103(a)(4) means de-facto unavailability.
2. Detailed Discussion of Interim Interpretation
Historically, FRA has not required employees or railroads to
contemporaneously declare for what type of off-duty period the employee
is being released, as there is no statutory requirement to provide such
notification.\20\ Rather, the classification of a duty period (and any
periods of release within or following a duty tour) is determined by a
retrospective look at the actions of the employee and the railroad to
determine whether in fact the railroad required or allowed the employee
to go or remain on duty during the purported period of release.
Although a railroad may intend to provide an employee with an interim
release, that release will ripen into a statutory minimum off-duty
period as soon as the employee has had a sufficient number of hours off
duty. Likewise, an employee may be released from duty and assume that
the release is a final release that will be followed by a statutory
minimum off-duty period, but be called back to resume the previous duty
tour prior to or after an interim release of 4 hours or more, if the
employee had not reached either the statutory maximum number of 12
hours of time on duty or the 24-hour point from the beginning of the
duty tour. Nothing in the text of the RSIA compels FRA to change this
interpretation of the laws, nor do the changes made to the statute by
the RSIA reveal Congressional intent to modify this aspect of FRA's
application of the laws. Congress could have required a railroad to
specify at the time of release whether a period of off-duty time would
be an interim release or a statutory minimum off-duty period, but has
not chosen to do so.
---------------------------------------------------------------------------

\20\ See Sec. 21103(b). See also, 49 CFR part 228, appendix A:
``Any period available for rest that is of four or more hours and is
at a designated terminal is off-duty time.'' The appendix makes no
reference to a requirement to notify an employee that the time
available for rest is either an interim release or a statutory
minimum off-duty period. See also S. Rep. 91-604 (1969), reprinted
in 1969 U.S.C.C.A.N. 1636, 1640 (not identifying any expectation
that employees would be informed of the length of an upcoming rest
period).
---------------------------------------------------------------------------

Before arriving at the decision that the determination of
unavailability should be made retrospectively and be based on the
employee's de-facto unavailability, FRA considered two alternative
interpretations of the requirement that the employee be unavailable for
service for any railroad during the extended-rest period. FRA declines
to adopt either of these alternative interpretations for the reasons
explained below.
First, FRA could instead have established a formalistic, bright-
line rule that if an employee is legally available (under the HS laws)
to perform additional service for the railroad then the employee is not
yet unavailable, for purposes of Sec. 21103(a)(4), to begin his or her
48 or 72 hours off duty. Take the example of an employee who has begun
a duty tour and then is released from duty without having accumulated a
total of 12 hours of time on duty in the duty tour. The employee is
legally available to perform additional service for the railroad until
the earlier of three circumstances--until (1) the employee completes
the remainder of his or her 12 hours of time on duty in the duty tour;
(2) the expiration of the 24-hour period that began at the commencement
of the employee's duty tour; or (3) the completion of a statutory
minimum off-duty period after the employee's release from duty, which
would also cut short the maximum 24-hour period that began at the
commencement of the duty tour and begin a new 24-hour period in which
the employee will accrue time on duty in the next duty tour, regardless
of whether any additional service is actually performed after the
employee is released. In the first circumstance, the employee is no
longer legally permitted to perform service under Sec. 21103(a)(2)
because the employee has served the maximum of 12 hours in the duty
tour. In the second circumstance (the expiration of the 24-hours period
that began when the employee started the duty tour), the employee is no
longer legally permitted to perform service under Sec. 21103(a)(3) and
must be given 10 consecutive hours off duty because the employee has
not had at least 10 consecutive hours off duty during the prior 24
hours. In the third circumstance, the employee's completion of the
statutory minimum off-duty period has ended the employee's duty tour,
and the employee's availability for service in that duty tour, and the
employee is, therefore, no longer legally permitted to perform service
under Sec. 21103(a)(4). Under this approach, the 48- or 72-hour off-
duty period required by Sec. 21103(a)(4) would not begin to run until
either the expiration of the 24-hour period that began when the
employee reported for duty, or the beginning of a new 24-hour period by
virtue of the employee's having had a statutory minimum off-duty period
The employee may have already been off duty for several hours or even a
statutory minimum off-duty period, from the time of the employee's
release that ultimately became the employee's final release from that
duty tour, to the end of the 24-hour period. In cases where the
employee is off duty prior to the end of the 24-hour period, the
practical effect of this approach would be to extend the 48- or 72-hour
required off-duty period.
Second, FRA could have taken a situational/notice-focused approach
to the interpretation of unavailability, in which the agency would
analyze the actual circumstances of each period of off-duty time, and
the expectations of the employee and the railroad when the period
began, to determine if the employee was made aware that he or she was
``unavailable'' during a given period of time, such that the period of

[[Page 58837]]

time would count toward the 48- or 72-hour off-duty period. If the
employee were not explicitly told he or she would no longer be
available for service, the employee would remain available during the
off-duty time until the expiration of the 24-hour period or until the
employee had received a statutory minimum off-duty period.
Both of these alternative interpretations share a maximal
interpretation of the word ``unavailable'' in the statutory language,
by construing an employee as available during a period simply because
service during the given period would not violate the HS laws (i.e.,
the railroad is not prohibited from requiring or allowing the employee
to perform the service), even if the employee did not actually perform
service during the given period. However, the implications of these
maximal interpretations are inconsistent with FRA's existing
interpretations.
For example, to adopt the situational/notice-focused
interpretation, FRA would have to impose on railroads the burdensome
new steps of (1) determining in advance whether a rest period provided
to an employee who has not accrued 12 hours total time on duty within
the duty tour is intended to be an interim release, or whether it will
be a statutory minimum off-duty period of at least 10 hours that will
render the employee unavailable for service, and (2) notifying the
employee of this determination. Where such notification was not
provided and the employee remained off duty, the ``situational''
analysis would result in an outcome identical to the broader bright-
line rule; because the employee was not given notice that he or she
would be made unavailable for additional service, the duty tour would
not end until the end of the 24-hour period or the completion of a
statutory minimum off-duty period. FRA would also be forced to
determine how to handle situations in which a railroad requires further
service from an employee who had not reached 12 hours total time on
duty, after having notified the employee at the time of the release
that he or she was being released for a statutory minimum off-duty
period, and not available for subsequent service, given the lack of
statutory or regulatory provisions to restrict such a practice, as
discussed above.
For related reasons, the bright-line, formalistic rule also would
require sharp deviation from past interpretations and other provisions
in the statutory text. If FRA were to adopt a bright-line rule,
generally requiring an employee to have had a statutory minimum off-
duty period of 10 hours before the period of extended rest of 48 or 72
hours during which the employee is unavailable for service could begin,
the total duration of the rest period required by new Sec. 21103 would,
in effect, be extended by 10 hours. Nothing in the text of the RSIA
requires explicitly that the extended-rest period and the statutory
minimum off-duty period must run consecutively rather than
concurrently. In contrast with Sec. 21103(a)(4), Sec. 21103(c)
explicitly describes the time off duty required by that subsection as
``additional time off duty'' based on what has occurred in the
preceding duty tour. Sec. 21103(a)(4)(A) simply describes the required
time off as ``at least 48 consecutive hours off duty . . . [,]'' which
is required after a series of duty tours. See also S. Rep. 110-270 at
20, which describes Sec. 21103(a)(4) as requiring an employee ``to be
given 48 consecutive hours of rest'' immediately after discussing the
statutory minimum off-duty period; had the rest periods been intended
to run consecutively, the rest period required by Sec. 21103(a)(4)
would have been described as ``additional'' or otherwise distinguished.
The legislative history similarly lacks any discussion of the off-duty
periods running consecutively. With scant support for broadening the
total required rest period to 58 or 82 hours, FRA is reluctant to do
so, absent a compelling reason to read the statute in such a manner.
Furthermore, both the situational/notice-focused approach and the
bright-line, formalistic rule also apply poorly to the realities of the
railroad industry. Because train employees are legally permitted to
perform covered service for 12 hours in a 24-hour period, an employee
who is released from duty after having performed less than 12 hours of
service in a given duty tour is subject to being called for further
service in that same duty tour. The situational/notice-focused approach
would require employees to be notified in advance that they were not
subject to being called for service after a release, contrary to past
practice, in order to begin their extended-rest period prior to the end
of the 24-hour period. The bright-line, formalistic rule, by instead
stipulating that the extended-rest period may not begin until the 24-
hour period is extinguished or exhausted, similarly does not account
for the nature of railroad operations. Although a train employee who
has performed 11 hours and 30 minutes of service may still
theoretically return to perform service for another half hour, such
brief service is exceedingly unlikely. FRA believes that requiring an
employee in this situation to have a statutory minimum off-duty period
or reach the end of the 24-hour period before he or she may begin the
extended-rest period required by Sec. 21103(a)(4) takes an excessively
formalist position on what it means for an employee to be
``unavailable.''
Finally, both the situational/notice-focused approach and the
bright-line, formalistic rule would serve to create confusion as to how
much rest is required. Because the extended-rest period would begin
only when the employee became legally unavailable for further covered
service, the start of the 48- or 72-hour period would generally be at
the end of the 24-hour period that began when the employee initiated
his or her sixth or seventh consecutive duty tour. However, if the
employee were finally released from duty for a statutory minimum off-
duty period less than 14 hours after initiating the on-duty period,
then the extended-rest period would instead begin at the end of the
employee's statutory minimum off-duty period. As such, under both of
these alternative rules (except under the situational approach in which
the employee is notified of his or her unavailability at the time of
the employee's release, and does not in fact perform further service),
the 48- or 72-hour extended-rest period could be lengthened by 10 hours
or more beyond the statutory requirement. In addition, the required
length of the aggregate minimum rest period will vary depending on the
length of the employee's most recent duty tour, including interim
releases and limbo time resulting from deadheading from a duty
assignment to the place of final release, and whether the employee has
reached his or her maximum of 276 hours for the calendar month under
Sec. 21103(a)(1). In order for an employee to know when he or she may
next be called to report for duty, the employee would have to be far
more familiar with the intricacies of the HS laws then had previously
been required.
Of the three possible interpretations, FRA believes that its chosen
interpretation, discussed above, which treats employees as unavailable
for service when they are not in fact required or allowed to perform
service (regardless of whether the employee might legally have been
called to perform further service or whether the employee was notified
in advance that the release would be for 48 or 72 hours), hews most
closely to the language and intent of the statute. In addition to
requiring more rest than specifically required by the statutory
language, both of the alternative interpretations would also require
significant changes to the railroad industry beyond those

[[Page 58838]]

contemplated by Congress. The complexity of both of the alternative
interpretations, in conjunction with those changes, would also create a
significant risk of confusion in the industry, possibly leading to
decreased compliance with the HS laws. Accordingly, FRA will interpret
the extended-rest period as running concurrently with the statutory
minimum off-duty period, with both beginning at the time an employee is
finally released from his or her sixth or seventh consecutive duty
tour. FRA seeks comment on this interim interpretation.

C. How does Sec. 21103(a)(4) apply to an employee who initiates an on-
duty period performing multiple types of covered service during one
duty tour or within a period of six or seven consecutive days? How do
subsections (a)(1), (a)(3), (c)(1), (c)(4), and (e) of Sec. 21103 apply
to an employee performing multiple types of covered service within the
relevant time periods?

1. Summary of Issues and Interim Interpretation
The application of Sec. 21103(a)(4) to an employee who works in
multiple types of covered service,\21\ either on a single day or during
a period of six or seven consecutive days, was not addressed in the
June 2009 Interim Interpretations. The issue was raised in BLET and
UTU's joint comment on the June 2009 Interim Interpretations, in which
they asked for clarification on how Sec. 21103 and Sec. 21105 (which
provides the HS limitations for dispatching-service employees)
interact. The unions described an employee who regularly performs
covered service as a train employee, but who occasionally works in a
yardmaster position that may or may not include covered service as a
dispatching service employee.
---------------------------------------------------------------------------

\21\ ``Covered service'' refers to any service subject to either
Sec. 21103 (applicable to freight train employees), Sec. 21104
(applicable to signal employees), Sec. 21105 (applicable to
dispatching service employees), or FRA's Passenger Train Employee HS
Regulations (applicable to passenger train employees). See also 49
CFR 228.5, definition of ``Covered service.''
---------------------------------------------------------------------------

The language of Sec. 21103(a)(4) is ambiguous and susceptible to
several reasonable interpretations. Sec. 21103(b) establishes the
various rules to apply ``[i]n determining under subsection (a) of this
section the time a train employee is on or off duty. . . .'' It is
arguable, however, that, even though Sec. 21103(b) determines what is
``time on duty'' or ``time off duty'' for purposes of Section 21103(a),
Sec. 21103(b) does not determine what is an ``on-duty period'' for
purposes of Sec. 21103(a)(4). For the reasons discussed below, on an
interim basis, FRA interprets the relevant scope of ``on-duty period''
for purposes of Sec. 21103(a)(4) to extend only to on-duty periods as a
train employee, including on-duty periods as either a freight train
employee or a passenger train employee; accordingly, only when an
individual performs train employee functions (i.e., is engaged in or
connected with the movement of a train) will such an individual be
considered to have ``initiated an on-duty period'' for the purposes of
Sec. 21103(a)(4). Therefore, only an on-duty period that includes
service as either a freight train employee or a passenger train
employee is counted as the initiation of an on-duty period for the
purposes of Sec. 21103(a)(4).
FRA does not consider an on-duty period including only signal-
employee covered service or only dispatching-service-employee covered
service or a combination of these two types of service to constitute
the initiation of an ``on-duty period'' under Sec. 21103(a)(4). FRA
seeks comment on this interim interpretation.
Further, because the limitation of Sec. 21103(a)(4) prohibits only
going or remaining on duty as a freight train employee,\22\ FRA's
interim interpretation is that once the extended-rest requirement is
triggered (by an employee initiating on-duty periods as a freight train
employee or a passenger train employee each day on six or seven
consecutive days), the employee is barred from performing covered
service as a freight train employee until he or she has had the
extended rest required by Sec. 21103(a)(4), but he or she is not barred
by Sec. 21103(a)(4) from reporting for duty as a passenger train
employee.\23\ Nor is the employee barred by Sec. 21103(a)(4) from
reporting for duty as either a signal employee or a dispatching service
employee, because neither of these types of covered service is subject
to a consecutive-days limitation. FRA likewise seeks comment on this
interim interpretation.
---------------------------------------------------------------------------

\22\ See 49 U.S.C. 21102(c)(3); see also 49 CFR 228.405.
\23\ However, if the employee had also reached the consecutive-
days limitation in 49 CFR 228.405(a)(3), the employee would be
barred by that regulatory provision from performing covered service
as a passenger train employee.
---------------------------------------------------------------------------

FRA also invites comment on its interim interpretation that
appropriate periods of time accrued in a passenger-train-employee duty
tour count towards the respective limitations of Sec. 21103(a)(1)
(limiting on-duty time and certain other service for the railroad to
276 hours per calendar month) and Sec. 21103(c)(1) (limiting certain
limbo time per calendar month) if the employee also engages in freight-
train-employee duty tours in the same calendar month. FRA also requests
comment on its related interim interpretation that while a duty tour
that does not include any time spent as a freight train employee may
not trigger the requirement for additional rest under Sec. 21103(c)(4),
once the additional rest requirement has been triggered, the additional
rest is added to the statutory minimum off-duty period that must be
provided before the employee performs any other service, or that
subsequent service will commingle with the previous duty tour.
2. Detailed Discussion of Interim Interpretation
In general, the function-based nature of the HS laws requires a
contemporaneous determination of what covered service, if any, an
individual has performed or is performing within relevant time periods,
rather than considering any individual employee as always a covered-
service employee based on the employee's job title, or the functions
that the employee is qualified to perform, regardless of the actual
functions performed by the employee during a given period of time. For
example, to ascertain if a locomotive engineer who has been performing
freight-train-employee covered service is in violation of the 12-hour
limitation on total time on duty in a duty tour at a given moment, one
would look to the characteristics of that individual's service for the
railroad and decide, using Sec. 21103(b) as the guide for determining
which periods of time were time on duty, whether the individual had
accrued more than 12 hours of total time on duty, and therefore whether
the railroad would violate Sec. 21103(a)(2) by allowing the individual
to remain on duty. This application of the statute was relatively
simple for the HS limitations that existed prior to the enactment of
the RSIA, because both the limitations on total time on duty and
minimum off-duty periods were fairly easily applied and, most
importantly, only affected the immediate duty tour. Under old Sec.
21103(a), after 12 hours on duty as a train employee, the employee was
required to have 10 hours off duty prior to performing any additional
service; after less than 12 hours on duty as a train employee, the
employee was required to have 8 hours off duty prior to perform any
additional service. However, the RSIA's amendments to the HS laws now
include limitations on service as a train employee that apply to much
longer periods of time than a single duty tour.

[[Page 58839]]

In applying these limitations that look back and are applied to an
employee's activities either during a number of previous, consecutive
days as in Sec. 21103(a)(4), or during an entire calendar month as in
Sec. 21103(a)(1) and (c)(1), this temporal frame of reference becomes
much more important.\24\ Each of the limitations of Sec. 21103(a) is
phrased in the equivalent of the present tense \25\ with the prior
conduct discussed in the present perfect tense, indicating that the
appropriate frame of reference is in the moment that a train employee
is potentially required or allowed to engage in some activity--
generally \26\ remaining on duty or going on duty.\27\
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\24\ Sec. 21103(a)(1) institutes a monthly 276-hour limitation
on total time on duty, time spent waiting for or in deadhead
transportation to the place of final release, and any other
mandatory service for the carrier.
\25\ Literally, the limitations set forth at Sec. 21103(a) are
written as prohibitions against the railroad requiring or allowing
one of its train employees to commit a certain act (i.e., generally,
to go or remain on duty) after certain prior conduct by the
employee. The relevant provisions read: ``a railroad carrier and its
officers and agents 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. . . .''
\26\ Sec. 21103(a)(1) also prohibits a railroad from requiring
or allowing a train employee to ``be in any other mandatory service
for the carrier in any calendar month where the employee has spent a
total of 276 hours [in specified service for the railroad] . . .''
Emphasis added.
\27\ See, e.g., Carr v. U.S., 130 S.Ct. 2229, 2236 (2010)
(``Consistent with normal usage, we have frequently looked to
Congress' choice of verb tense to ascertain a statute's temporal
reach.'')
---------------------------------------------------------------------------

With respect to the consecutive-days limitation, the result is that
the limitation applies in the context of determining whether a train
employee may be required or allowed to report for duty at a particular
time, based on the employee's prior history of initiating on-duty
periods. At the time that the employee reports for duty, the employee
must necessarily be a train employee subject to Sec. 21103. Of course,
if the employee were not subject to Sec. 21103 at a given time, he or
she would not need to determine if Sec. 21103(a)(4) would prohibit the
railroad from requiring or allowing him or her to report for duty.
In determining the proper application of the consecutive-days
limitation, the operative question is as follows: When a train employee
looks back upon his or her prior service for the railroad in light of
Sec. 21103(a)(4), does ``an on-duty period'' refer to (1) any form of
on-duty period under 49 U.S.C. ch. 211 or FRA's HS regulations for
passenger train employees authorized by that chapter; or (2) ``the time
a train employee is on duty'' under Sec. 21103(b)(2), meaning as either
a freight train employee or a passenger train employee?
a. Option 1: Broad Reading--All Forms of Covered Service Count as
Initiating an On-Duty Period Under Sec. 21103(a)(4)
A broad reading of ``on-duty period'' recognizes that Congress
chose to distinguish between the terms ``time on duty'' and ``on-duty
period,'' and incorporates that distinction into the understanding of
which on-duty periods should be included in the determination of
whether a train employee may report for duty without violating Sec.
21103(a)(4). The broad reading is consistent with the canon of
statutory interpretation that distinctions in terms used by Congress
should be given effect.\28\ In addition, FRA has previously
acknowledged, in a contemporaneous interpretation of Sec. 21103(a)(4)
that ``on-duty period'' cannot be synonymous with ``time on duty.'' See
FRA's Final Interpretations, section IV.B.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)?'' Final Interpretations, 77 FR at
12420-21. In order to avoid the peculiar outcome of an employee's
forced release from duty immediately after reporting for duty on a
sixth consecutive day, FRA linked the concept of the ``on-duty period''
in this particular context to duty tours, with the ``on-duty period''
ending only at the end of the duty tour when the employee is finally
released from duty.\29\
---------------------------------------------------------------------------

\28\ See Sutherland Sec. 46:6 (``[C]ourts do not construe
different terms within a statute to embody the same meaning.
However, it is possible to interpret an imprecise term differently
in two separate sections of a statute which have different purposes.
Yet when the legislature uses certain language in one part of the
statute and different language in another, the court assumes
different meanings were intended.'')
\29\ ``[T]he 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).'' If FRA had instead considered an on-duty
period to be something less than a duty tour, an employee who
reported for duty on his or her sixth consecutive day, but was
released from duty because, for example, the train for which the
employee was called was not in fact available, that release would
trigger the 48-hour rest requirement, because the employee had
reported for duty, thereby initiating the on-duty period. However,
as interpreted by FRA, the employee may be released for an interim
release, with the possibility of being called to perform further
service within the same duty tour, and the 48-hour rest requirement
of Sec. 21103(a)(4) would not be triggered until the employee's
final release from that duty tour. Id. at 12421.
---------------------------------------------------------------------------

There is also statutory support for understanding ``on-duty
period'' in the context of 49 U.S.C. ch. 211 as a whole, rather than
consisting of only duty tours that include ``time on duty'' as defined
in Sec. 21103(b). Prior to the 1994 recodification of the HS laws,
which changed only the form of the laws but not their meaning,\30\
``time on duty'' specifically included ``[s]uch period of time as is
otherwise provided by this Act.'' Sec. 1(b)(3)(E) of the Hours of
Service Act, then codified at 45 U.S.C. 61 (1994); repealed, revised,
and reenacted without substantive change by Public Law 103-272.
Although the current provisions governing signal employees and
dispatching service employees govern the maximum time on duty in a duty
tour and minimum off-duty periods of such individuals, as the more
specifically applicable sections of the chapter, this definition of the
term ``on duty period'' would nonetheless include time on duty in both
of the other forms of covered service as within the scope of the ``on-
duty period'' referenced in Sec. 21103(a)(4). In the current text of
the HS laws, 49 U.S.C. 21102(b) and 21109(a)(1) make reference to ``on
duty'' generally to apply to all forms of covered service. Hereinafter,
any reference to a subsection is to subsection of Sec. 21103.
Additionally, the ``signal employee exclusivity'' provision, discussed
in more detail in Section IV of this document, below, requires that the
hours of service of signal employees ``shall be governed exclusively by
this chapter'' (emphasis added), suggesting a broader scope. Each of
these factors provides intrinsic textual support to the broad
interpretation of Sec. 21103(a)(4), which would include all forms of
on-duty periods subject to 49 U.S.C. ch. 211 or FRA's Passenger Train
Employee HS Regulations authorized by that chapter (meaning as a
freight train employee, a passenger train employee, a signal employee,
or a dispatching service employee), as within the scope of Sec.
21103(a)(4)'s counting of consecutive days.
---------------------------------------------------------------------------

\30\ See Sutherland 28:11 (``Inasmuch as the function of a code
is principally to reorganize the law and to state it in simpler
form, the presumption is that a change in language is for purposes
of clarity rather than for a change in meaning.'') The legislative
history of the 1994 recodification also makes clear that the
legislation did not create any substantive change to the application
of any of the recodified laws, including the application of the HS
laws. H. Rep. No. 1758, at 1, 3, 104-108 (1993).
---------------------------------------------------------------------------

b. Option 2: Narrow Reading--Only Duty Tours Including Time Engaged in
or Connected With the Movement of a Train Counts as Initiating an On-
Duty Period Under Sec. 21103(a)(4)
Alternatively to Option 1 above, a narrow reading of ``on-duty
period'' starts from the premise that Secs. 21103,

[[Page 58840]]

21104, and 21105 are distinct entities. Because each of the sections
refers to time performing the respective forms of covered service as
``time on duty,'' the narrow reading implies that the sections must be
read as wholly exclusive from one another. Under this reading, the fact
that a form of covered service is recognized as time on duty under one
section is irrelevant to its treatment under another section. This
implication leads to the interpretation that, because Sec. 21103(b)
defines ``the time a train employee is on or off duty,'' and because
the employee is generally only subject to Sec. 21103 when he or she is
on duty as a train employee, only time that is time on duty under Sec.
21103(b) should be considered a period of time on duty (i.e., an ``on-
duty period'') for the purposes of Sec. 21103(a)(4). As such, only a
duty tour including ``time the employee is engaged in or connected with
the movement of a train,'' as specified by Sec. 21103(b)(2), is counted
as a duty tour including the initiation of an on-duty period for the
purposes of Sec. 21103(a)(4). Neither covered service solely as a
signal employee as defined in Sec. 21104, nor covered service solely as
a dispatching service employee as defined in Sec. 21105, is time
engaged in or connected with the movement of a train. Without time, in
the course of a duty tour, during which the individual is engaged in or
connected with the movement of a train, the individual is not on duty
under Sec. 21103(a), including Sec. 21103(a)(4), and therefore, under
the narrow reading, the individual has not initiated an ``on-duty
period.''
c. Decision: FRA Chooses the Narrow Reading of ``On-Duty Period'' for
Purposes of Sec. 21103(a)(4)
Although FRA views both of these readings of ``on-duty period'' as
reasonable, the narrow reading of ``on-duty period'' is more consistent
with FRA's existing interpretations, which treat Secs. 21103, 21104,
and 21105 as analytically distinct from one another. FRA also
recognizes the potential for confusion that could result from applying
the consecutive-days limitation to individuals for duty tours in which
no train-employee covered service was performed. Prior agency
interpretations noted that--``[w]hen an employee performs service
covered by more than one restrictive provision, the most restrictive
provision determines the total lawful on-duty-time.'' See discussion at
49 CFR part 228, app. A, under the heading ``General Provisions
(Applicable to All Covered Service),'' ``Commingled Service.'' The
narrow reading maintains that understanding by counting days toward the
consecutive-days limitation only when an individual performs train-
employee covered service, regardless of what other activities the
individual may perform during such duty tours. See, below, Section
III.C.2.d-h of this document for further discussion and application of
this principle.
FRA recognizes that duty tours that contain only covered service as
a signal employee or a dispatching service employee may contribute to
the fatigue of the employees who perform such service, and that
Congress established other limitations on the hours of service of
employees performing these functions. In addition, an employee's
service for a railroad that is not covered service under the hours of
service laws could also contribute to fatigue. FRA believes that the
most logical reading of the statutory language would apply the
consecutive-days limitation of Sec. 21103(a)(4) only to duty tours
including covered service as a train employee, for the reasons
described above. However, FRA will monitor the situation, and may
consider revising this interpretation in the future if the fatigue
implications warrant it.
d. Further Clarification: Service as a Passenger Train Employee Is
Within the Scope of ``On-Duty Period'' Under Sec. 21103(a)(4), Despite
the Sec. 21102(c) Exemption
With the adoption of the narrow reading of ``on-duty period,''
which includes only periods of time on duty as a train employee within
the scope of that term in Sec. 21103(a)(4), an additional question is
presented: does a period of time on duty spent exclusively as a
passenger train employee (who is subject to the limitations of the
Passenger Train Employee HS Regulations, rather than Sec. 21103,
according to Sec. 21102(c)(3)) count as an ``on-duty period'' for the
purposes of Sec. 21103(a)(4)? FRA believes that to include periods of
time on duty as a passenger train employee as an on-duty period for the
purposes of Sec. 21103(a)(4) is most consistent with the text of the
statute as a whole and with the Passenger Train Employee HS Regulations
as a whole.
In the RSIA, Congress did not disturb the longstanding functional
approach to determining when a train employee would be subject to the
new Sec. 21103, and when a train employee would be subject first to old
Sec. 21103, and ultimately to FRA's regulations governing train
employees engaged in commuter or intercity rail passenger
transportation. Employees performing both kinds of service continue to
be called ``train employees[,]'' and the term ``train employee''
continues to be defined, for the purposes of both sets of applicable
requirements, as an individual engaged in or connected with the
movement of a train.
Congress could have separately created the terms ``freight train
employee'' and ``passenger train employee'' and defined the new terms
to make clear that covered service as one kind of train employee does
not count as covered service for the other kind of train employee.
Similarly, Congress could have amended Sec. 21103(b)(2) and (3) by
inserting ``freight'' in front of ``train'' to narrow the time counted
toward ``time on duty'' for purposes of Sec. 21103(a). Likewise,
Congress also could have written the language of Sec. 21103(a)(4) to
limit it expressly, so that it only applied to initiating an on-duty
period as a freight train employee, or as a train employee subject only
to the requirements of this section in the particular duty tour.
Congress did not do any of these. For that matter, Congress did not
even expressly limit the language of Sec. 21103(a)(4) to initiating an
on-duty period as a train employee, though FRA does so limit the
provision for the purposes of this interim interpretation, for the
reasons described in this Section III.C.2.b-c.
By contrast, in the RSIA, Congress amended the definition of
``signal employee,'' so that it no longer applied only to railroad
employees performing the functions of a signal employee. See Sec.
108(a) of the RSIA and Sec. 21101(4). However, the definition of
``train employee'' in the very next paragraph of the statute was not
changed, and no distinction was created functionally between train
employees in freight or passenger service. See 49 U.S.C. 21101(5). Each
is still simply called ``train employee[,]'' and that term should be
interpreted to mean the same thing in all places that it is used in the
statute, and the provisions applicable to that type of employee must
apply to all employees so defined.
In addition, the functional approach to determining when an
individual becomes a covered service employee of one form or another
means that the individual is a passenger train employee for purposes of
the Passenger Train Employee HS Regulations only during those periods
of time within which he or she is a train employee who is engaged in
commuter or intercity rail passenger transportation, as detailed in 49
CFR 228.405(b) (``Determining time on duty), e.g., being engaged in or
connected with the movement of a train, including being a hostler,
providing

[[Page 58841]]

commuter or intercity rail passenger transportation. Note that under 49
CFR 228.405(b)(3) periods spent performing other types of covered
service and noncovered service count as on-duty time as a passenger
train employee if they occur in the same duty tour as passenger-train-
employee covered service.
However, Sec. 21102(c)(3)(B) exempts railroads from compliance with
Sec. 21103 for ``train employees with respect to the provision of
commuter rail passenger transportation or intercity rail passenger
transportation''; i.e., passenger train employees. Therefore,
individuals are subject to the Sec. 21102(c)(3)(B) exemption only while
they are performing covered service as a passenger train employee. Any
individual who is not a train employee who is engaged in commuter or
intercity rail passenger transportation is not subject to the Sec.
21102(c)(3)(B) exemption. Because Sec. 21102(c)(3)(B) exempts railroads
from compliance with Sec. 21103 with respect to all passenger train
employees, an individual who is subject to Sec. 21103 is necessarily
not within the scope of the exemption provided by Sec. 21102(c)(3)(B)
and is not a passenger train employee at the time when the individual
is subject to Sec. 21103.
Because any individual who is subject to Sec. 21103 is not subject
to Sec. 21102(c)(3)(B), the distinction between service as a passenger
train employee and freight train service is irrelevant when applying
Sec. 21103. The text of Sec. 21103 makes no distinction between freight
trains and passenger trains. Recalling that the definitions in Sec.
21103(b)(2) and (3) of ``time on duty'' for purposes of Sec.
21103(a)(4) are phrased in the present tense and that all limitations
of Sec. 21103(a) are phrased in the equivalent of the present tense,
with prior conduct discussed in the present perfect tense, the
appropriate frame of reference for determining whether Sec. 21103(a)(4)
precludes the employee from being on duty is the time when the employee
seeks to go on duty, including only those exemptions or exclusions that
apply to the employee at that moment. Therefore, when an employee
reports for duty as a freight train employee subject to Sec. 21103, any
prior time on duty ``engaged in or connected with the movement of a
train,'' regardless of whether it was as a passenger train employee or
freight train employee, is counted when determining whether Sec.
21103(a)(4) precludes the employee from being on duty.
When a railroad seeks to determine whether an employee is permitted
to remain or go on duty with respect to the limitation of Sec.
21103(a)(4), the determination of whether the employee has initiated an
on-duty period on each of the prior 6 or more consecutive days is made
within the context of Sec. 21103(b), which defines what constitutes
``time on duty.'' Sec. 21103(b)(2) includes any time ``engaged in or
connected with the movement of a train'' to be ``time on duty.'' Duty
tours as a passenger train employee include some time ``engaged in or
connected with the movement of a train,'' and are therefore time on
duty under Sec. 21103(b)(2). Although those duty tours are exempt by
Sec. 21102(c)(3)(B) from the limits and requirements of Sec. 21103 at
the time when the duty tours occur, an employee subject to Sec. 21103
is no longer subject to that exemption, as discussed above. Thus, at
the moment that a railroad or a train employee looks back to see
whether the employee may be required or allowed to go on duty as a
freight train employee, the employee's assignment is to work as a
freight train employee, and in looking back at the employee's prior
duty tours, should view them as subject to, rather than exempt from,
Sec. 21103, even if some of the duty tours involved service engaged in
or connected with the movement of a passenger train.
In the context of determining whether the individual has initiated
an on-duty period each day on prior consecutive days, ``time the
employee is engaged in or connected with the movement of a train is
time on duty.'' Sec. 21103(b)(2). Since time on duty as a passenger
train employee is unequivocally time ``engaged in or connected with the
movement of a train,'' and, as discussed above, the statute does not
differentiate between time spent engaged in or connected with the
movement of a passenger train from time spent engaged in or connected
with the movement of a freight train, on-duty periods including train
service providing commuter or intercity rail passenger transportation
constitute on-duty periods for the purpose of Sec. 21103(a)(4).
In addition to maintaining fidelity both to the statutory language
and to FRA's functional approach to applying the HS laws, the principle
of including on-duty periods in passenger-train-employee covered
service within the scope of Sec. 21103(a)(4) avoids the safety risks
resulting from allowing an individual to initiate an on-duty period as
a train employee each day for an indefinite number of days without
triggering the consecutive-days limitation, simply because he or she
occasionally initiates an on-duty period as a passenger train employee
instead of as a freight train employee.
FRA's interim interpretation is also consistent with both informal
guidance FRA has provided on this question and FRA's response to an AAR
comment on FRA's notice of proposed rulemaking on passenger train
employee hours of service, in which AAR suggested that train employees
employed by freight railroads who may occasionally perform service as a
passenger train employee should be covered only by Sec. 21103, and
should be excluded from the scope of FRA's regulation. See comments of
AAR, Docket No. FRA-2009-0043. FRA declined AAR's suggestion to extend
the work train and pilot exceptions for train employees employed by
freight railroads to all train employees employed by freight
railroads,\31\ believing that train employees engaged in or connected
with commuter or intercity rail passenger transportation should be
covered by its regulation, regardless of the nature of the railroad by
which the employee is employed. FRA's decision in the rulemaking was
based in part on the same policy concerns just discussed, the need to
protect an individual who sometimes performs freight train employee
service and sometimes performs passenger train employee service, from
the safety risks of cumulative fatigue. Under this interim
interpretation, employees performing both kinds of service are subject
to both sets of requirements, as appropriate. For employees who perform
duty tours both as a passenger train employee and as a freight train
employee, it is necessary for railroads to track both types of duty
tours and perform the appropriate consecutive-days limitation analyses
to determine whether the employee may legally be required or allowed to
go on duty in a particular kind of service. The analyses are separate:
only the freight consecutive-days limitation analysis (Sec.
21103(a)(4)) must be applied to determine if an employee may report for
duty as a freight train employee, and only the passenger consecutive-
days limitation analysis (49 CFR 228.405(a)(3)) must be performed to

[[Page 58842]]

determine if an employee may report for duty as a passenger train
employee.\32\
---------------------------------------------------------------------------

\31\ FRA's definition of ``Train employee who is engaged in
commuter or intercity rail passenger transportation'' excludes a
train employee of a freight railroad ``who is engaged in work train
service even though that work train service might be related to
providing commuter or intercity rail passenger transportation, and a
train employee of'' a freight ``railroad who serves as a pilot on a
train operated by a commuter railroad or intercity passenger
railroad.'' 49 CFR 228.403(c).
\32\ The passenger train employee consecutive-days limitation
analysis depends on the type of the assignments performed on each of
the consecutive days. A Type 1 assignment means an assignment that
requires the employee to report for duty no earlier than 4 a.m. on a
calendar day and be released from duty no later than 8 p.m. on the
same calendar day. Any other assignment is Type 2, except that a
Type 2 assignment may be considered a Type 1 assignment if it is
analyzed and shown to not pose an excess risk of fatigue and does
not require the employee to be on duty for any period of time
between midnight and 4 a.m. See 49 CFR 228.5; see also 76 FR 50360
(Aug. 12, 2011).
---------------------------------------------------------------------------

e. Further Clarification: Service as a Passenger Train Employee Is
Within the Scope of the Calendar Monthly Limits Set by Sec. 21103(a)(1)
and (c)(1)
As previously noted in passing in the discussions above, FRA wishes
to highlight that, like subsection (a)(4) of Sec. 21103 and for similar
reasons,\33\ other provisions of Sec. 21103 count toward their
respective limitations or requirements, appropriate periods of time
accrued during passenger-train-employee duty tours and related
activity. Some of these limitations apply to a calendar month, and some
of the limitations and requirements apply to a single duty tour.
---------------------------------------------------------------------------

\33\ In addition, of course, any mandatory service for the
railroad (not just passenger train employee service or freight train
employee service) counts toward the 276-hour monthly maximum set by
Sec. 21103(a)(1), but passenger train employee service counts as
time ``on duty'' for purposes of Sec. 21103(a)(1)(i).
---------------------------------------------------------------------------

In particular, the monthly limitations are Sec. 21103(a)(1)
(limiting the combined total of time on duty, time spent awaiting or in
deadhead transportation from a duty assignment to the point of final
release, and time spent in any other mandatory service for the railroad
to 276 hours per calendar month) and Sec. 21103(c)(1) (limiting certain
limbo time per calendar month). FRA does not, however, expect the
cumulative monthly limitations of either Sec. 21103(a)(1) or Sec.
21103(c)(1) to be reached in fact for individuals who sometimes serve
as passenger train employees, based on the existing nature of such duty
tours. Additionally, a railroad could violate Sec. 21103(c)(1) with
respect to a particular employee only at a time when that employee was
subject to Sec. 21103(c)(1); i.e., during a duty tour including service
as a freight train employee. If an employee reaches more than 30 hours
of time countable towards the 30-hour monthly limitation during a
passenger train employee duty tour, and proceeds to go on duty only as
a passenger train employee for the rest of the calendar month, then no
violation of Sec. 21103(c)(1) has occurred.
f. Further Clarification: Requirements for Rest Set by Sec.
21103(a)(3), (c)(4), and (e), After a Single Duty Tour That Includes
Service as a Freight Train Employee, Must Also Be Met Before Performing
Any Service for the Railroad or Else the Additional Service Will
Commingle
Statutory requirements for minimum amounts of undisturbed rest
apply only to performing a single duty tour that includes at least some
service as a freight train employee. These requirements are the
following: (1) Sec. 21103(a)(3) (which requires that an individual have
had 10 consecutive hours off duty in the 24 hours prior to remaining or
going on duty as a freight train employee); (2) Sec. 21103(c)(4)
(additional rest requirement) (which requires extra time off duty in
addition to the 10 consecutive hours for freight train employees after
reaching more than 12 consecutive hours of combined time on duty and
time waiting for or in deadhead transportation to the point of final
release); and (3) Sec. 21103(e) (which requires that these off-duty
periods be free from communication that could reasonably be expected to
interrupt the freight train employee's rest (free from communication)).
Of course, a duty tour as a passenger train employee that did not
include covered service as a freight train employee would not trigger
the requirement for 10 consecutive hours off duty unless the employee
had been on duty for 12 consecutive hours, in which case 10 consecutive
hours off duty would be required under the Passenger Train Employee HS
Regulations at 49 CFR 228.403(a)(2), not because of Sec. 21103(a)(3).
Likewise, a duty tour as a passenger train employee that did not
include covered service as a freight train employee would not trigger
the requirement that the off-duty period be free from communication, or
the requirement for additional rest. However, if the rest requirement
of Sec. 21103(a)(3) for 10 consecutive hours off duty and the
requirement of Sec. 21103(e) that the rest period be free from
communication are triggered by a duty tour that included covered
service as a freight train employee, then the statutory minimum off-
duty period following that duty tour must comply with those
requirements before the employee performs any other service for the
railroad, or else the subsequent service for the railroad will
commingle, even if that subsequent service does not include covered
service as a freight train employee. See Sec. 21103(b)(3).\34\
Likewise, if the additional rest requirement is triggered by a duty
tour that included covered service as a freight train employee that
encompasses a total of more than 12 hours of time on duty and time
waiting for or in deadhead transportation, then the statutory minimum
off-duty period following that duty tour must also include the
additional rest prior to the employee performing any other service for
the railroad, even if that subsequent service does not include covered
service as a freight train employee.
---------------------------------------------------------------------------

\34\ Sec. 21103(b)(3) reads as follows: ``(b) Determining time
on duty.--In determining under subsection (a) of this section the
time a train employee is on or off duty, the following rules apply:
* * * (3) Time spent performing any other service for the railroad
carrier during a 24-hour period in which the employee is engaged in
or connected with the movement of a train time is time on duty.''
---------------------------------------------------------------------------

g. Further Clarification: Single Duty Tours Performing Multiple Types
of Covered Service
The longstanding statutory provisions regarding commingled service
(Sec. 21103(b)(3), Sec. 21104(b)(2), and Sec. 21105(c)) and the more
recent regulatory provision regarding commingled service (49 CFR
228.405(b)(3)), respectively, continue to govern a duty tour in which
an individual performs the duties of a freight train employee, signal
employee, dispatching service employee, or passenger train employee,
respectively. For example, any time spent performing service for a
railroad that is not separated by at least 10 uninterrupted hours off
duty from subsequent service defined as ``time on duty'' by Sec.
21103(b) is commingled service under Sec. 21103(b)(3), because it
occurs within the same ``24-hour period'' as the covered service
subject to Sec. 21103(b). As a result, a duty tour as a passenger train
employee that is followed by a duty tour as a freight train employee
must be separated by at least 10 uninterrupted hours off duty to avoid
their commingling. If the duty tour as a freight train employee
triggers Sec. 21103(c)(4)'s additional uninterrupted rest requirement,
that additional rest must also be completed before the employee next
reports for duty as a passenger train employee in order to avoid the
possible commingling of the subsequent duty tour as a passenger train
employee with the prior triggering duty tour as a freight train
employee.
FRA requests comment on the implications of its interim
interpretation of Sec. 21103(a)(4) on other provisions of Sec. 21103.
As a result of adopting the narrower interpretation, excluding

[[Page 58843]]

signal-employee covered service and dispatching-service-employee
covered service for the purposes of the consecutive-days limitation,
FRA views duty tours containing only signal-employee covered service or
dispatching-service-employee covered service as equivalent to periods
that are neither time on duty nor time off duty for purposes of Sec.
21103(a)(4), where the individual is performing non-covered service.
For example, if an employee were to report for duty each day from 9
a.m. to 5 p.m. Monday through Saturday, with Monday's through
Wednesday's time on duty including train-employee covered service and
Thursday's through Saturday's time on duty not including train-employee
covered service but including signal-employee covered service, that
employee would not have triggered the ``consecutive-days'' limitation
and could lawfully report again at 9 a.m. on Monday. FRA recognizes
that Congress identified signal-employee covered service and
dispatching-service-employee covered service as fatiguing; however,
these forms of covered service do not constitute time on duty for the
purposes of Sec. 21103 unless they commingle with train-employee
covered service as provided in Sec. 21103(b)(3), and therefore,
employees who perform these functions, but do not perform covered
service as a train employee during the same duty tour, are not
considered to have initiated on-duty periods for the purposes of the
``consecutive-days'' limitation.
If an employee performs multiple types of covered service in a
single duty tour, including train-employee covered service, the time
spent by the employee in carrying out functions other than covered
service as a train employee is ``[t]ime spent performing other service
for the railroad during a 24-hour period in which the employee is
engaged in or connected with the movement of a train,'' which, in turn,
is defined as ``time on duty'' for purposes of Sec. 21103 by Sec.
21103(b)(3). As a result, this time spent in service for the railroad
other than train-employee covered service is defined by Sec.
21103(b)(3) as ``time on duty'' for purposes of Sec. 21103(a) and,
therefore, counts as initiating an on-duty period for the purposes of
Sec. 21103(a)(4). Performing signal-employee covered service or
dispatching-service-employee covered service, which brings the employee
under Sec. 21104 or Sec. 21105, respectively, during the performance of
the particular type of service, does not negate the train-employee
covered service also performed by the employee.
In the case of dispatching-service-employee covered service, Sec.
21105(a) provides that it applies, rather than Sec. 21103 or Sec.
21104, ``during any period of time the employee is performing duties of
a dispatching service employee.'' At ``a tower, office, station, or
place at which at least 2 shifts are employed, an individual performing
dispatching service may not be required or allowed to remain or go on
duty for more than a total of 9 hours during a 24-hour period.'' Sec.
21105(b)(1). At a one-shift location, such an individual is limited to
a total of 12 hours on duty during a 24-hour period. Sec. 21105(b)(2).
Unlike the 24-hour period relevant for the statutory provisions
governing train employees and signal employees, Sec. 21105(b)'s ``24-
hour period'' does not reset after an individual has had a certain
amount of rest and then reports to perform duty governed by the
section. Instead, Sec. 21105(b)(1) requires a continuous look back
during the dispatching service employee's duty tour to determine
whether the individual has been on duty for a total of 9 hours in any
24-hour period.
FRA does not interpret Sec. 21105(a) literally as an exemption from
Sec. 21103 and Sec. 21104 with respect to periods of time performing
the duties of a dispatching service employee and periods of time
performing other service for the railroad within a 24-hour period in
which the duties of a dispatching service are performed. Rather, FRA
interprets Sec. 21105(a) as establishing an extra set of limitations
that must be met, in addition to the limitations and requirements
imposed by any other applicable HS requirement. The following two
examples illustrate this interpretation.
Example 1
Facts: Individual X has been off duty Saturday and Sunday and then
goes on duty as a dispatching service employee at a 2-shift tower at 12
noon on Monday and works for 4 hours, is then off duty for 12 hours,
and finally reports for duty at 4 a.m. on Tuesday as a freight train
employee.
Effect of law: Individual X may report and work as a freight train
employee for only 5 hours prior to noon on Tuesday, for a grand total
of the maximum 9 hours of service under Sec. 21105, without violating
Sec. 21105, because X's service as a freight train employee commingles
with his or her dispatching service. Note that X may report and work as
a freight train employee at all only if during the 12 hours off duty,
at least 10 consecutive hours were uninterrupted by communications from
the railroad that could reasonably be expected to disrupt that rest
(see Sec. 21103(e)) and if no other limitation or requirement in Sec.
21103 is violated (e.g., the 276-hour monthly maximum and the
consecutive-days provision). After 4 p.m. on Tuesday, X's subsequent
service is no longer within any 24-hour period that would include any
of his or her time spent as a dispatching service employee from 12 noon
to 4 p.m. on Monday, and is no longer limited to only 9 hours of time
on duty for the remainder of his or her duty tour as a freight train
employee.
Example 2
Facts: Individual Y returns from a long vacation, goes on duty as a
freight train employee for 8 hours, and then immediately reports as a
dispatching service employee at a 2-shift tower.
Effect of law: Individual Y may work at the 2-shift tower as a
dispatching service employee for only one hour without violating Sec.
21105 because Y's 8 hours working as a freight train employee must be
added to the 1 hour Y worked as a dispatching service employee. After
working a total of 9 hours in a 24-hour period, Y has reached the Sec.
21105(b)(1) maximum of 9 hours on duty in a 24-hour period in a tower
with 2 or more shifts.
Once the rest requirement of Sec. 21103(a)(4) is triggered because
a duty tour includes performance of freight-train-employee functions to
which the limitations of Sec. 21103 apply, the rest requirement of the
consecutive-days limitation does not prevent an individual from
lawfully reporting for covered service to which Sec. 21103 does not
apply, or for noncovered service. When an individual's duty tour does
not include his or her performance of freight-train-employee functions,
that individual is not subject to Sec. 21103 during the duty tour, and,
therefore, the consecutive-days limitation of Sec. 21103(a)(4) does not
apply to the duty tour and prevent the individual from lawfully
performing such other service.
On the other hand, in duty tours subject to multiple sections of
the HS laws or the Passenger Train Employee HS Regulations, each of the
applicable sections applies to the entire duty tour, due to commingled-
service provisions, and a railroad must comply with all of the
provisions applicable to a given duty tour. In particular, the
consecutive-days limitation of Sec. 21103(a)(4) applies to such duty
tours if those duty tours contain any time in which the employee is
engaged in or connected with the movement of a train, whether

[[Page 58844]]

as a passenger train employee or as a freight train employee. Although
both the dispatching-service-employee provision (Sec. 21105) and the
Passenger Train Employee HS Regulations contain applicability sections,
these applicability sections state that the substantive provision
applies only to the time when the individual is performing a function
of a dispatching service employee or a passenger train employee,
respectively, including times in other service for the railroad that
commingle during the single tour of duty, as noted above.\35\ Section
21105(a) states that it applies ``during any period of time the
employee is performing duties of a dispatching service employee,'' and
49 CFR 228.413, the regulatory exemption from Sec. 21103 for passenger
train employees, states that the exemption applies with respect to
``train employees who are engaged in commuter or intercity rail
passenger transportation.'' Emphasis added. In other words, if an
individual's duty tour includes multiple types of covered service, the
railroad must comply with all of the limitations and requirements
applicable to each type of covered service throughout the duty tour.
---------------------------------------------------------------------------

\35\ In addition, as discussed above, even a duty tour
containing only service as a passenger train employee would count
toward the consecutive-day limitation of Sec. 21103(a)(4).
---------------------------------------------------------------------------

Longstanding guidance from FRA in the context of commingled service
during a single duty tour provides that ``[w]hen an employee performs
service covered by more than one restrictive provision, the most
restrictive provision determines the total lawful on-duty time.'' 49
CFR part 228, app. A, ``Commingled Service.'' Although this principle
requires compliance with the most exacting and stringent of the
applicable standards, the principle in effect ensures compliance with
all of the HS provisions applicable to the service performed because
complying with the most stringent standard will prevent violation of
the less stringent standards, thus resulting in compliance with all of
the HS provisions applicable to the service performed. Consistent with
that traditional guidance, the interim interpretation maintains that
when an employee performs service governed by more than one HS
requirement for the minimum amount of off-duty time, the most generous
provision determines the total amount of required off-duty time.
Similarly, when an employee performs service covered by one provision
that requires that the off-duty time be uninterrupted (i.e., Sec.
21103(e)) and other service covered by a provision that does not
require that the off-duty time be uninterrupted, the higher standard
determines whether the off-duty time be uninterrupted. FRA's interim
interpretation maintains the underlying principle of applying to the
service in question all relevant sections of the HS laws and the
Passenger Train Employee HS Regulations and requiring compliance with
the most stringent of those relevant sections.
h. More Examples of the Application of the Statutory or the Regulatory
Consecutive-Days Provision, or Both, to a Single Duty Tour or to
Several Duty Tours Involving Performance of One or More Types of
Covered Service
The following additional examples illustrate the application of
principles for interpreting Sec. 21103(a)(4) and the consecutive-days
provision of the Passenger Train Employee HS Regulations (49 CFR
228.405(a)(3)) that have been discussed above in this Section III.C of
this document.
Example 3
Facts: An individual reports for duty at 8:00 a.m. each day Monday
through Saturday, performing only signal-employee or dispatching-
service-employee covered service each day.
Effect of law: On Sunday, the individual has zero prior consecutive
days counted for the purpose of Sec. 21103(a)(4) and, therefore, may
report for duty as a freight train employee without violating Sec.
21103(a)(4).
Example 4
Facts: An individual reports for duty at 8:00 a.m. each day Monday
through Saturday, performing both signal-employee covered service, or
dispatching-service-employee covered service, and freight-train-
employee covered service in a single duty tour each day.
Effect of law: On Sunday, the individual has initiated an on-duty
period each day for six consecutive days for the purpose of Sec.
21103(a)(4), and must not perform freight-train-employee covered
service subject to Sec. 21103 until he or she has had 48 hours at his
or her home terminal free from any service for any railroad unless one
or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply.
On Sunday, the individual may report for duty to perform signal-
employee or dispatching-service-employee covered service, without
violating Sec. 21103(a)(4), but he or she is nonetheless required to
have had the 48 hours of time off duty at the employee's home terminal
under Sec. 21103(a)(4) before next performing freight-train-employee
covered service subject to Sec. 21103.
Example 5
Facts: An individual reports for duty at 8:00 a.m. each day Monday
through Saturday performing passenger-train-employee covered service
each day and is finally released at 6:00 p.m.
Effect of regulations and law: On Sunday, the individual has
initiated an on-duty period each day for six consecutive days for the
purpose of Sec. 21103(a)(4), and must not perform freight-train-
employee covered service subject to Sec. 21103 until he or she has had
48 hours at his or her home terminal free from any service for any
railroad unless one or more of the exceptions of Sec. 21103(a)(4)(A)(i)
or (a)(4)(B) apply. However, a duty tour as a passenger train employee
is subject to the Passenger Train Employee HS Regulations. Those
regulations impose two requirements. First, the regulations require
that the employee have had at least 8 consecutive hours off duty before
going on duty as a passenger train employee. Second, the regulations
include a provision that addresses cumulative fatigue in a somewhat
different way than Sec. 21103(a)(4). Here, because the individual's
duty tours as a passenger train employee did not include any Type 2
assignments (duty tours including any time on duty between 8 p.m. and 4
a.m. that either include time on duty between 12:00 a.m. and 4:00 a.m.
or have not been analyzed and shown to not pose an excess risk of
fatigue), they did not trigger the rest requirement of the consecutive-
days limitation in the Passenger Train Employee HS Regulations (49 CFR
228.405(a)(3)). Accordingly, the individual may be required or allowed
to report for duty as a passenger train employee.
Example 6
Facts: An individual reports for duty at 8:00 a.m. each day Monday
through Wednesday, performing freight-train-employee covered service
each day until 8 p.m., and then the individual reports for duty at 8:00
a.m. each day Thursday through Saturday, performing only dispatching-
service-employee covered service each day until 5 p.m.
Effect of law: On Sunday, the individual has initiated an on-duty
period for zero prior consecutive days counted for the purpose of Sec.
21103(a)(4), and may perform freight-train-employee covered service
without violating Sec. 21103(a)(4).

[[Page 58845]]

Example 7
Facts: An individual reports for duty at 9:00 a.m. each day Monday
through Wednesday performing passenger-train-employee covered service
for eight hours each day (with final release at 5:00 p.m.), and then
reports for duty at 9:00 a.m. each day Thursday through Saturday
performing freight-train-employee covered service for eight hours each
day (with final release at 5:00 p.m.).
Effect of regulations and law: For the purposes of determining
whether the individual may report for duty on Sunday as a freight train
employee without violating Sec. 21103(a)(4), the individual has
initiated an on-duty period for six consecutive days, and must not
perform freight-train-employee covered service subject to Sec. 21103
until he or she has had 48 hours at his or her home terminal free from
any service for any railroad unless one or more of the exceptions of
Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply. For the purposes of
determining whether the individual may report for duty on Sunday as a
passenger train employee, the individual has initiated an on-duty
period for six consecutive calendar days. However, because these on-
duty periods do not include any Type 2 assignments (duty tours
including any time on duty between 8 p.m. and 4 a.m. that either
include time on duty between 12:00 a.m. and 4:00 a.m. or have not been
analyzed and shown to not pose an excess risk of fatigue), the
individual may report for duty on Sunday as a passenger train employee
without violating the consecutive-days provision of the Passenger Train
HS Regulations.
Example 8
Facts: An individual reports for duty at 9:00 a.m. each day Monday
through Wednesday performing passenger-train-employee covered service
for eight hours each day (with final release at 5:00 p.m.), and then
reports for duty at 1:00 p.m. each day Thursday through Saturday
performing freight-train-employee covered service for eight hours each
day (with final release at 9:00 p.m.).
Effect of regulations and law: For the purposes of determining
whether Sec. 21103(a)(4) prohibits the railroad from requiring or
allowing the individual to report for duty on Sunday as a freight train
employee, the individual has initiated an on-duty period for six
consecutive days and must not perform freight-train-employee covered
service subject to Sec. 21103 until he or she has had 48 hours at his
or her home terminal free from any service for any railroad unless one
or more of the exceptions of Sec. 21103(a)(4)(A)(i) or (a)(4)(B) apply.
For the purposes of determining whether the railroad may require or
allow the individual to report for duty on Sunday as a passenger train
employee without violating Sec. 21103(a)(4), the individual has
initiated an on-duty period for six consecutive calendar days. Because
several of these on-duty periods included duty tours with time on duty
between the hours of 8 p.m. and 4 a.m. and the duty tours were not
analyzed and shown not to pose an excess risk of fatigue, the
individual has initiated an on-duty period for six consecutive days
including one or more Type 2 assignments. As a result, the employee
must have 24 hours of time off duty and free from any service for any
railroad before next reporting for duty as a passenger train employee.
Example 9
Facts: An individual reports for duty each day at 8 a.m. for 8
hours of service as a passenger train employee, with the duty tour
ending at 4 p.m., beginning on Monday, for 5 consecutive days, ending
on Friday. On Saturday, the individual reports for duty at 6 p.m. for 8
hours of service as a freight train employee, with the duty tour ending
at 2 a.m. on Sunday.
Effect of regulations and law: For the purposes of determining
whether the individual may report for duty on or after 2 p.m. on
Sunday, as a freight train employee, the individual has initiated an
on-duty period for one prior consecutive day, and may report for duty
to perform freight-train-employee covered service without violating
Sec. 21103(a)(4). Specifically, because the individual was off duty for
26 hours between Friday at 4 p.m. and Saturday at 6 p.m., and 24 hours
of time off duty is sufficient to end a series of consecutive days for
Sec. 21103(a)(4), the duty tours prior to Saturday are not consecutive
to the Saturday duty tour. For the purposes of determining whether the
individual may report for duty on or after 2 p.m. on Sunday as a
passenger train employee, the individual has initiated an on-duty
period each day for 6 consecutive calendar days, including one Type 2
assignment-the Saturday duty tour, which extended into the hours
between midnight and 4 a.m. and is therefore necessarily Type 2
regardless of any fatigue analysis that could have been performed on an
assignment including the Saturday duty tour. As a result, the
individual must have had at least 24 hours of time off duty and free
from any service for any railroad before next reporting for duty as a
passenger train employee.

D. Under Sec. 21103(a)(4), a Railroad May Not Require or Allow a Train
Employee To Initiate an On-Duty Period After the Employee Has Initiated
an On-Duty Period Each Day for Six Consecutive Days Followed By More
Than 24 Hours Off Duty at the Away-From-Home Terminal. Following Such
Service, When That Employee Returns to the Home Terminal, the Employee
Must Remain Unavailable for Service at the Home Terminal for at Least
48 Hours

1. Summary of Issue and Interim Interpretation
Under Sec. 21103(a)(4), the railroad may not require or allow a
train employee to initiate an on-duty period after the employee has an
initiated an on-duty period each day for six consecutive days, has been
finally released at the away-from-home terminal, and then has spent
more than 24 hours off duty there. Rather, the railroad may require or
allow the employee to engage in non-covered service at the away-from-
home terminal, if desired, but must deadhead the employee to his or her
home terminal and must then give the employee 48 consecutive hours off
duty at the home terminal before requiring or allowing the employee to
report for duty again to perform service as a freight train employee.
If the railroad has required or allowed the employee to initiate an on-
duty period at the away-from-home terminal after the seventh
consecutive day, then railroad must give the employee 72 hours off duty
before requiring or allowing the employee to report for duty again to
perform service as a freight train employee.
2. Detailed Discussion of Interim Interpretation
When a train employee initiates an on-duty period each day for six
consecutive days and the final period of on-duty time ends at the away-
from-home terminal, Sec. 21103(a)(4)(A)(i) permits the employee to
``work a seventh consecutive day.'' Emphasis added. In the event that a
railroad takes advantage of this allowance and has its employee work on
a seventh consecutive day, Sec. 21103(a)(4)(A)(ii) requires that ``any
employee who works a seventh consecutive day pursuant to subparagraph
(i) shall have 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 carrier.'' FRA

[[Page 58846]]

has not previously addressed the question of whether an employee may
initiate a seventh on-duty period 24 hours or more \36\ after the
employee is finally released from his or her sixth consecutive duty
tour, or if Sec. 21103(a)(4)(A)(i)-(ii) only authorizes a train
employee to initiate an on-duty period that is consecutive to the sixth
consecutive day.
---------------------------------------------------------------------------

\36\ See Final Interpretations, 77 FR 12417-19 (defining ``day''
in this context to refer to a 24-hour period).
---------------------------------------------------------------------------

The structure of Sec. 21103(a)(4) generally prohibits a train
employee from remaining on duty or going on duty after the employee has
initiated on-duty periods for six consecutive days, until the employee
has at least 48 hours of time off duty at the home terminal unavailable
for any service for any railroad. Sec. 21103(a)(4)(A) provides an
exception to this general prohibition in subsection (a)(4)(A)(i),
allowing an employee to initiate an on-duty period \37\ on a ``seventh
consecutive day.'' Subsection (a)(4)(A)(ii) requires that ``any
employee who works a seventh consecutive day pursuant to subparagraph
(i)'' have, instead of 48 hours, 72 hours of time off duty at the home
terminal during which the employee is unavailable for any service for
any railroad. Similarly, subsection (a)(4)(B) allows employees to
initiate on-duty periods on seven consecutive days under collective
bargaining agreements or authorized pilot programs; these employees
must also have 72 hours of time off duty at the home terminal
unavailable for any service for any railroad. Outside of these two
exceptions, there is a violation of Sec. 21103(a)(4) if the railroad
requires or allows a train employee to initiate an on-duty period after
having required or allowed the employee to do so on six prior
consecutive days and before having given the employee the 48 hours of
time off duty.
---------------------------------------------------------------------------

\37\ See Final Interpretations, 77 FR 12419 (interpreting
``work'' in this context to refer to the initiation of an on-duty
period).
---------------------------------------------------------------------------

FRA is aware that some railroads have scheduled employees to
initiate on-duty periods each day for six consecutive days followed by
more than a day spent off duty at the away-from-home terminal, and
then, after the employee initiates an additional on-duty period and
returns to his or her home terminal, have allowed the employee to
initiate a new on-duty period after having only 48 hours off duty at
the home terminal. Such a practice is plainly inconsistent with the
language of the statute; as discussed above, any allowance that the
statute provides for an employee to initiate an on-duty period after
having already done so on six consecutive days is contingent upon that
employee's receiving 72 hours of time off duty after the employee is
finally released at the home terminal from the additional on-duty
period that is allowed under one of the exceptions to the general six-
day limitation. Specifically, when an employee is at the away-from-home
terminal at the end of the duty tour initiated on the sixth consecutive
day, he or she is permitted to initiate an on-duty period on ``the
seventh consecutive day'' under Sec. 21103(a)(4)(A)(i), and an employee
who initiates an on-duty period on this seventh consecutive day
pursuant to that section must have the 72 hours of time off duty
required by Sec. 21103(a)(4)(A)(ii) after the employee is finally
released from the duty tour initiated on the seventh consecutive day.
However, this does not resolve the question of what period of time
constitutes ``the seventh consecutive day.''
Because the exception of paragraphs (a)(4)(A)(i) and (ii) discusses
the additional on-duty period in the context of ``a seventh consecutive
day,'' a literal reading of the statute, which FRA is adopting, would
preclude the initiation of an on-duty period by an employee who had
done so for six consecutive days, ending the final on-duty period at
the away-from-home terminal, but did not initiate another on-duty
period until more than 24 hours later, because at that time the
initiation of the on-duty period would no longer fall on the ``seventh
consecutive day.'' Under FRA's limited interpretation, after 24 hours
at the away-from-home terminal (or more than a calendar day at the
away-from-home terminal for a railroad that had not yet transitioned to
FRA's final interpretation of ``day''), the authority of the railroad
to require or allow an employee to initiate an on-duty period as a
train employee under subsection (a)(4)(A)(i) disappears. As a result,
the railroad's only choice in this circumstance would be that the
employee must be deadheaded to his or her home terminal and receive at
least 48 hours free from any service for any railroad before next
initiating an on-duty period, though the employee could perform non-
covered service before receiving the 48 hours of time off duty.
Although this construction of the subsection has the virtue of hewing
closely to the express terms of the statute, it results in the odd
outcome that a railroad loses the authority to require or allow an
employee to perform covered service because the employee has been off
duty for too long.
FRA considered but rejected an alternative reading of the text that
would avoid this incongruous result by understanding the authorization
to ``work a seventh consecutive day'' as allowing one final initiation
of an on-duty period when the employee ends the sixth consecutive on-
duty period at the away-from-home terminal. This final on-duty period
would generally be initiated within the seventh consecutive day, but in
unusual circumstances where the employee remained off duty at the away-
from-home terminal for more than 24 hours (or more than a calendar day
for a railroad that had not yet transitioned to FRA's final
interpretation), the final on-duty period would be authorized despite
falling outside of the 24 hours (or calendar day) that constitute the
seventh consecutive day. However, adoption of this alternative
interpretation would have raised new questions concerning the time
spent at the away-from-home terminal. Under that rejected reading, an
employee could lawfully remain at the away-from-home terminal to engage
in non-covered service for several days before next initiating an on-
duty period, and the alternative broader interpretation would require
determining whether this non-covered service would preclude subsequent
covered service before having the required 48 hours of time off duty.
Although both of these interpretations are reasonable constructions
of the statute given the nature of railroad operations, FRA views the
limited interpretation, where an employee is not permitted to initiate
an on-duty period after the end of the seventh consecutive day, as
superior. In addition to being a more direct construction of the text
of the statute, and providing more clarity to railroads and employees,
the limited interpretation avoids the question of what, if any, non-
covered service would be permitted between the sixth consecutive on-
duty period and the final on-duty period, which could occur beyond the
seventh consecutive day. Under the limited interpretation, an employee
may engage in non-covered service separate from a duty tour at the
away-from-home terminal after initiating an on-duty period on six
consecutive days, but may not initiate a seventh duty tour prior to
having the 48 hours of time off duty at the home terminal unless the
duty tour is initiated within 24 hours, of the employee's final release
from the duty tour initiated on the sixth consecutive day. Under the
interpretation of ``day'' as a 24-hour period (24-hour-day
interpretation), this non-covered service is necessarily limited to
four hours if it is to avoid commingling with either the duty tour

[[Page 58847]]

initiated on the sixth consecutive day or the duty tour that follows
the non-covered service on the seventh consecutive day, since there
must be at least 10 hours of time off duty between the non-covered
service and the duty tours before and after the non-covered service,
and the duty tour following the non-covered service must be initiated
24 hours or less after the employee's final release from the duty tour
initiated on the sixth consecutive day, for the seventh duty tour to be
consecutive to it. As an example, if an employee were finally released
at midnight, the following duty tour would have to begin prior to
midnight of the following day in order to be on a consecutive day. In
order to avoid commingling with both the prior and subsequent duty
tours, the non-covered service must fall between 10 a.m., 10 hours
after the midnight final release, and 2 p.m., 10 hours prior to the
subsequent initiation of the on-duty period. This leaves only four
hours of time for non-covered service outside of both duty tours; any
greater amount of service would either commingle with the prior duty
tour, commingle with the subsequent duty tour, or cause the subsequent
duty tour to be initiated outside of the 24 hours that constitutes the
``seventh consecutive day.''
FRA seeks comment on the impact of this interpretation on railroad
operations. Commenters arguing in favor of the broader interpretation,
allowing for the initiation of an on-duty period under Sec.
21103(a)(4)(A)(i) more than 24 hours (or more than a calendar day for a
railroad that had not yet transitioned to FRA's final interpretation),
after the employee's final release from the duty tour initiated on the
sixth consecutive day, are encouraged to discuss potential resolutions
for the issue of intervening non-covered service separated from a duty
tour.

IV. Application of the ``Signal Employee Exclusivity'' Provision to
Individuals Who Drive Commercial Motor Vehicles for the Purpose of
Themselves Installing, Maintaining, or Repairing Signal Systems

A. Summary of Issue and Interim Interpretation

The ``signal employee exclusivity'' provision, which was added by
the RSIA and codified at Sec. 21104(e) (exclusivity provision), reads
as follows:

The hours of service, duty hours, and rest periods of signal
employees shall be governed exclusively by this chapter. 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.

FRA has previously explained that there is no gap between the
statutory HS limitations with respect to the installation, repair, and
maintenance of signal systems, which are administered by FRA, and the
regulatory HS limitations with respect to the operation of commercial
motor vehicles, which are promulgated and administered by FMCSA. Final
Interpretations, 77 FR at 12427-28. However, FRA's prior discussion of
the issue allowed FMCSA's HS regulations (49 CFR part 395) (FMCSA's HS
Regulations) to reach employees who generally performed signal covered
service and were, therefore, generally considered ``signal employees''
on the occasions when those employees were driving a commercial motor
vehicle during a period of time that was not within a duty tour that
included any time spent performing covered service as a signal
employee.
Both labor organizations and railroad industry organizations have
identified the potential application of FMCSA's HS Regulations,
including cumulative limitations that could reach into duty tours that
are clearly governed by the FRA-enforced statutory HS limitations.\38\
Although FRA previously interpreted the exclusivity provision in light
of the definition of ``signal employee'' as ``an individual who is
engaged in installing, repairing, or maintaining signal systems'' in
Sec. 21101(4), FRA did not previously consider reinterpreting the
definition of ``signal employee'' in light of the new exclusivity
provision.
---------------------------------------------------------------------------

\38\ FRA notes that Sec. 21104(e) would preclude the application
of any of FMCSA's HS Regulations to any duty tour of a signal
employee, including cumulative limitations. See also 49 CFR
395.1(r), excluding signal employees from the application of 49 CFR
part 395.
---------------------------------------------------------------------------

Now construing the whole statute, in accordance with traditional
canons of statutory interpretation, FRA views the exclusivity provision
as broadening the scope of what activity is denoted by the words
``engaged in installing, repairing, or maintaining signal systems.''
Specifically, as described in detail below, FRA views an individual's
operation of a motor vehicle for the purpose of allowing that
individual to install, repair, or maintain signal systems to be a
function that is time on duty under the ``signal employee'' provisions
of the HS laws, regardless of whether the operation of the motor
vehicle is within the same duty tour as the direct work on the signal
system, or is separated from it by at least 10 hours off duty. As a
result, that operation of a motor vehicle for that purpose is itself
subject to the limitations of the HS laws and to the exclusivity
provision that exempts the operation from other Federal requirements
concerning hours of service, duty hours, or rest periods, including
FMCSA's HS Regulations.
It is important to note that this interpretation does not affect
FRA's preexisting interpretations governing a signal employee's
commuting time (i.e., time spent commuting by motor vehicle between the
signal employee's residence and his or her headquarters), which remains
classified as time off duty for purposes of Sec. 21104. In addition, as
provided by Sec. 21104, travel time returning from a trouble call or an
outlying work site to the employee's headquarters or residence at the
end of a duty period, remains neither time on duty nor time off duty
(except where such time is in transportation in an on-track vehicle).
FRA seeks comment on this interim interpretation.

B. Detailed Discussion of Issue and Interim Interpretation

In response to the June 2009 Interim Interpretations, the
Brotherhood of Railroad Signalmen (BRS) submitted a comment relating to
several issues. Among the issues addressed by BRS was the exclusivity
provision. BRS expressed concern that individuals generally performing
signal covered service, who are, therefore, generally signal employees,
might be excluded from FMCSA's HS Regulations as a result of this
provision, but also would not be subject to the FRA-administered
statutory HS limitations if they did not perform covered service
installing repairing or maintaining signal systems that commingled
under Sec. 21104(b)(2) \39\ with the time that they spent driving a
commercial motor vehicle to an outlying work site. BRS's proposed
solution to this apparent issue was for FRA to classify driving
commercial motor vehicles for the purposes of installing, maintaining,
or repairing signal systems to be signal-employee covered service.
---------------------------------------------------------------------------

\39\ Sec. 21104(b)(2) reads, ``(b) Determining time on duty.--In
determining under subsection (a) of this section the time a signal
employee is on duty or off duty, the following rules apply: * * *
(2) Time spent performing any other service for the railroad carrier
during a 24-hour period in which the employee is engaged in
installing, repairing, or maintaining signal systems is time on
duty.''
---------------------------------------------------------------------------

In the Final Interpretations, FRA responded to BRS's stated
concern, that there was an apparent gap in the HS limitations of FRA
and FMCSA, by explaining that the exclusivity provision applies only
where other FRA-

[[Page 58848]]

administered HS limitations apply. The Final Interpretations stated,
``the statute does not allow an individual subject to the exemption
granted at Sec. 21104(e) not to be subject to Sec. 21104(a).'' Final
Interpretations, 77 FR at 12427. However, FRA noted that the
interpretation would not completely preclude the application of FMCSA's
HS Regulations to individuals who generally perform signal covered
service, since there are circumstances where such an individual may
drive a commercial motor vehicle to an outlying work site and then be
provided with a statutory minimum off-duty period of at least 10 hours
before beginning to perform covered service at the work site. Under
these circumstances, FRA's position in the Final Interpretations was
that if driving the commercial motor vehicle is not covered service,
then the individual is not performing signal-employee functions, is not
a signal employee during the time spent driving, and is not subject to
Sec. 21104, including the exclusivity provision. FRA expressed a
willingness to work with FMCSA to address the issue, but viewed those
efforts as outside the scope of interpreting the statute.
In addressing the purported gap between the HS limitations, FRA's
Final Interpretations simply applied the preexisting understanding of
what activities are classified as ``engaged in installing, repairing,
or maintaining signal systems'' under the old, pre-RSIA HS laws.
However, labor organizations and railroad industry organizations have
implicitly suggested that FRA's understanding of covered service should
be revised in light of the statutory changes. Having considered the
statute in light of these arguments, FRA agrees that the exclusivity
provision at Sec. 21104(e) broadens the definition of signal-employee
covered service that brings an individual within the scope of Sec.
21104.
Following the 1976 amendment of the HS laws \40\ to cover ``an
individual employed by the carrier who is engaged in installing,
repairing or maintaining signal systems,'' FRA published an interim
statement of agency policy and interpretation for signal service. 42 FR
4464 (Jan. 25, 1977) (1977 Signal Interim Interpretations). See Sec.
4(d) of Public Law 94-348 (July 8, 1976), adding new Sec. 3A to the
Hours of Service Act, then codified at 45 U.S.C. 64; 42 FR 4464,
January 25, 1977. In that contemporaneous interpretation, FRA noted
that ``[p]erhaps the most difficult problem posed by the general
language of [the statutory provisions governing such individuals] is
the definition of time on duty. Individuals who work on signal systems
often spend much of their compensated time traveling for the carrier's
purposes.'' FRA ultimately determined that travel time devoted to the
carrier's work was to be considered commingling service (other service
for the carrier during a 24-hour period in which the employee is
engaged in installing, maintaining, or repairing signal systems), such
that the travel time would be considered time on duty if not separated
by a statutory minimum off-duty period from direct work to install,
repair, or maintain signal systems. Time spent returning from trouble
calls or an outlying work site at the end of scheduled hours, was
considered neither time on duty nor time off duty, an interpretation
subsequently ratified by Congress in the 1978 amendments to the HS
laws. Sec. 4 of Public Law 95-574 (November 2, 1978). Commuting time
between an employee's residence and the employee's regular reporting
point, which is determined by an employee in his or her decision of
where to live, was considered time off duty.
---------------------------------------------------------------------------

\40\ In 1976 the statute was still called the Hours of Service
Act. See note 2.
---------------------------------------------------------------------------

Based in part on the nature of the statute as it existed in 1977,
FRA stated that the functional approach of the HS laws meant that
``driving signal department vehicles is not covered service under the
[HS laws].'' 1977 Signal Interim Interpretations, 42 FR at 4466. At the
time that FRA published the 1977 Signal Interim Interpretations, the
limitations of the HS laws applied only to individual duty tours, so
there was little concern with individuals moving into and out of the
classification ``signal employee'' based upon the functions performed
at any given moment or within or outside of any individual duty tour.
As noted above, in Section III.B of this document, the RSIA
amendments to the HS laws have attached more significance to the
classification of an individual as a covered service employee beyond
the boundaries of a particular duty tour. Although the functional
approach is inherent to the HS laws as they currently exist, and a
change from that approach to a status-based approach would require
additional statutory amendments, FRA nonetheless recognizes that the
functions that bring an individual employee within the scope of Sec.
21104 must be construed ``in connection with every other part or
section of the statute to produce a harmonious whole.'' \41\
---------------------------------------------------------------------------

\41\ United States v. Uvalle-Patricio, 478 F.3d 699 (5th Cir.
2007) (internal citations omitted). See also, e.g., Bilski v.
Kappos, 130 S.Ct. 3218 (2010); Sutherland Sec. 46:5.
---------------------------------------------------------------------------

In the RSIA, Congress added to Sec. 21104 new subsection (e), which
specifically references FMCSA's rules related to hours of service, duty
hours, and rest periods as not applying to signal employees. Although
the exclusivity provision can bear an interpretation of signal-employee
covered service as it existed prior to the RSIA, such a narrow
interpretation would allow individuals who often perform the functions
of signal employees to be subject to the regulations of FMCSA, which
seems to be contrary to the purpose of the exclusivity provision. Or,
to the extent that FMCSA has excluded such individuals from the scope
of its regulations, such employees could have no substantive Federal
limitation on the time that could be spent in the driving function,
provided that it is separated from the work of installing, repairing,
or maintaining signal systems by at least a statutory minimum off-duty
period of 10 hours, a result that is equally untenable. An alternative
reading of the exclusivity provision recognizes that Congress expressly
excluded signal employees from the application of FMCSA's regulations,
and interprets what is necessary for an individual to be a signal
employee in light of that exclusion.
As discussed above, FRA has long understood that driving a motor
vehicle is often an integral part of performing work on signal systems.
Much of signal system installation, maintenance, and repair will
necessarily occur at track wayside locations, requiring significant
amounts of travel to and from those locations for the individuals
performing such work. Because of the immense scale of the rail network
in the United States, this driving time may sometimes be sufficiently
long that the driving is separated from the direct work on a signal
system by a statutory minimum off-duty period of 10 consecutive hours.
Under earlier FRA interpretations, FRA viewed the HS laws as not
reaching the period of time spent driving for the purposes of a
railroad if it was separated from the period of covered service by a
statutory minimum off-duty period and, therefore, not within the duty
tour.\42\ When outside of a duty tour, time spent driving by
individuals who generally

[[Page 58849]]

perform signal covered service was only regulated if it fell within the
regulatory jurisdiction of FMCSA and FMCSA's HS Regulations. However,
the RSIA rejected this status quo, and unequivocally stated that
``signal employees operating motor vehicles shall not be subject to any
hours of service rules . . . promulgated by any Federal authority,
including the Federal Motor Carrier Safety Administration, other than
the Federal Railroad Administration.'' Maintaining FRA's prior narrow
reading of what constitutes covered service would not fully exclude
signal employees from the reach of FMCSA's HS Regulations, since such
regulations include cumulative limits on total on-duty time and include
all compensated time as time on duty, even when not connected with time
spent driving.\43\ Congress specifically identified ``signal employees
operating motor vehicles'' as subject to the HS laws and under the
authority of FRA, and understanding the operation of a motor vehicle
for the purpose of installing, repairing, or maintaining signal systems
to be service that is ``engaged in'' those activities brings such
individuals entirely within the scope of Sec. 21104, consistent with
the statutory mandate.
---------------------------------------------------------------------------

\42\ As discussed above, normal commuting time between an
employee's residence and his or her normal headquarters or regular
reporting point was and is considered time off duty. 42 FR 4466.
\43\ 49 CFR 395.2, ``On-duty time.''
---------------------------------------------------------------------------

Such an interpretation is also consistent with FRA's prior
understanding of the activities generally within the scope of a signal
employee's employment. In construing the statutory definition of what
an individual must do to be considered a ``signal employee,'' it is
appropriate to consider the actual duties generally performed by such
individuals, giving deference to the words that Congress chose to
define as well as to the definition Congress provided.\44\ Both
Congress and FRA have recognized that signal employees ``spend much of
their compensated time traveling for the carrier's purposes.'' \45\ In
discussing this issue previously, FRA noted that this fact created
difficulties in interpreting what constituted time on duty for signal
employees, and ultimately concluded that such time should be considered
potentially commingling: Time on duty if commingled with other time on
duty; and otherwise neither time on duty nor time off duty. FRA
concludes that Congress intended Sec. 21104(e) to mean unequivocally
that when these individuals are operating motor vehicles for the
purpose of installing, repairing, or maintaining signal systems, these
individuals shall be subject to the HS laws and not to FMCSA's HS
Regulations; FRA's prior construction of the term ``signal employee''
and therefore the activities performed by an individual that make the
individual subject to the HS laws, is not consistent with that
congressional intent. Although FRA's prior reading of the statutory
language was reasonable given the context of the HS laws as a whole,
that context has now changed, and FRA's construction of the term
``signal employee'' must change with it.
---------------------------------------------------------------------------

\44\ See, e.g., Johnson v. U.S., 130 S.Ct. 1265, 1271 (2010)
(noting that Congress's choice of the words ``violent felony'' is
relevant to interpreting the meaning of the definition of ``violent
felony'' provided by Congress).
\45\ FRA's 1977 Signal Interim Interpretations, 42 FR at 4464.
---------------------------------------------------------------------------

Operating a motor vehicle from work site to work site is an
integral part of the duty tour for many signal employees. Failing to
recognize such operation as time on duty for signal employees,
independent of whether the operation is immediately connected with the
duty tour for which the vehicle is operated, would fail to account for
Congress's clear statement that such activity should be governed by the
HS laws. Accordingly, FRA understands an individual's operation of a
motor vehicle for the purposes of that individual's installing,
repairing, or maintaining signal systems to be service that is
``engaged in'' those activities and, therefore, signal-employee covered
service. As a consequence, such driving time by the individual is time
on duty for the purposes of Sec. 21104, regardless of whether the
individual installs, repairs, or maintains a signal system during the
same duty tour as the individual operated the motor vehicle.
However, as clarification, individuals who do not perform
installation, repair, or maintenance of signal systems do not become
signal employees simply by virtue of operating a motor vehicle
transporting a signal employee. For instance, a driver contracted by a
railroad solely to transport signal employees would not be performing
covered service while driving, because the driver is not operating the
motor vehicle for the purpose of himself or herself installing,
repairing, or maintaining signal systems. Although operating a motor
vehicle is a frequent component of signal employee duties, it is, of
course, not exclusive to such employees. FRA also notes that an
individual's operation of any motor vehicle for the purpose of himself
or herself installing, repairing, or maintaining signal systems
constitutes signal-employee covered service; the interpretation is not
limited only to instances where the motor vehicle is a ``commercial
motor vehicle'' within the meaning of FMCSA's HS Regulations. This
distinction is relevant only to the extent that FMCSA's HS Regulations
ever apply to individuals who ordinarily perform the functions of
signal employees. As explained above, however, Congress specifically
excluded signal employees from the application of HS rules promulgated
by FMCSA, which would include FMCSA distinctions between motor
vehicles.
FRA is aware that signal employees may sometimes drive themselves
to outlying work sites and engage in activities that are not classified
as signal-employee covered service prior to performing signal-employee
covered service. Two examples follow that illustrate the application of
FRA's new interim interpretation of ``signal employee.''
Example 10
Facts: An individual drives himself or herself to, and attends, a
rules class at the outlying work site during one duty tour, and then
performs signal-employee covered service at the same outlying work site
during the next duty tour.
Effect of law: Despite the intervening rules class, the
individual's drive to the outlying work site facilitated his or her
subsequent performance of signal-employee covered service, and
accordingly the driving time is time on duty subject to the FRA-
administered HS laws rather than FMCSA's HS Regulations.
However, because the definition of ``signal employee'' is
functional, there must be some connection, even if attenuated by
intervening other activities or time off duty, between the time spent
driving and the driver's performance of other signal employee functions
in order for the time spent driving to be covered service and subject
to the HS laws rather than FMCSA's HS Regulations. Only when the
employee is driving a motor vehicle with no plausible connection to his
or her future service installing, repairing, or maintaining signal
systems is the driving time not time on duty as a signal employee. FRA
recognizes the need for clarity in terms of what time spent in such
driving is, and is not, considered time on duty; ambiguous travel time
is time on duty, whereas travel time that is clearly and definitively
not connected with proximate performance of signal employee functions
is not signal-employee covered service.
Example 11
Facts: An individual drives from his or her headquarters at
Location A to a rules class at Location B, attends the rules class, and
then drives from Location B to Location C, where he or she repairs
signal systems at Location C.

[[Page 58850]]

Effect of law: The time spent driving from the employee's
headquarters to the rules class is not signal-employee covered service,
unless it commingled with the eventual signal-employee covered service
(i.e., the drive from Location B to Location C and the repair of the
signal system at Location C), because the travel to the rules class
location is not clearly connected to the performance of signal-employee
covered service, since the employee is required to travel from the
rules class location to another location in order for the employee to
perform the covered service. In other words, assuming that neither the
drive from Location B to Location C nor the signal-employee covered
service at Location C was in the same duty tour as the rules class at
Location A, the time that the employee spent driving to the rules class
is not covered by the HS laws and is not covered by FMCSA's HS
Regulations.
FRA acknowledges this gap in coverage for such drive times
referenced in Example 12, but believes such instances are rare. FRA
seeks comment on this aspect of its interim interpretation as well as
on all other aspects of its interim interpretation.

C. Reiteration of FRA's Longstanding Interpretations of Travel Time
Involving Signal Employees

As a result of this interim interpretation, the treatment of the
time that signal employees spend operating motor vehicles is changing,
but, as noted above, many of the other applications of the HS laws with
respect to travel time for signal employees remain unchanged in the
statutory text and in FRA interpretations. For the sake of clarity, FRA
is briefly reiterating the agency's (and the statute's) prior and
continuing treatment of these travel times as they apply to the new
interpretation and providing any applicable supporting statutory
references.
Travel on an on-track vehicle: Any time spent in transportation on
an on-track vehicle, including any other type of travel time discussed
below, is categorically time on duty as provided by Sec. 21104(b)(6).
Commuting time: FRA's longstanding interpretation, which remains
unchanged, has been that normal commuting between the individual's
residence and his or her regular reporting point or headquarters
connected with the regular workday is not time on duty. Because
employees choose where to reside with respect to their regular
reporting point or headquarters, time spent commuting from the
residence to that location is not service for a railroad. Note,
however, that when an employee instead travels directly from his or her
residence to a location other than his or her regular reporting point
or headquarters, the travel time, minus the normal length of the
individual's commuting time to the regular reporting point or
headquarters, is service and, therefore, time on duty.
Travel time following the end of scheduled duty hours: As provided
by Sec. 21104(b)(4) and (b)(5), travel time that begins either at the
end of scheduled duty hours, or when the employee is released prior to
the end of scheduled duty hours in order to comply with the HS laws, is
neither time on duty nor time off duty, regardless of whether the
employee returns to his or her headquarters or directly to his or her
residence, and regardless of whether the employee operates a motor
vehicle as part of such transportation. However, if the employee
returns to duty less than 30 minutes after the completion of travel,
the travel time is instead considered travel time during a duty tour
governed by Sec. 21104(b)(7), as discussed below.
Travel time returning from a trouble call: As provided by Sec.
21104(b)(3), travel time returning from a trouble call is neither time
on duty nor time off duty, regardless of whether the employee returns
to his or her headquarters or directly to his or her residence, and
regardless of whether the employee operates a motor vehicle as part of
such transportation. However, if the employee returns to duty less than
30 minutes after the completion of travel, the travel time is instead
considered travel time during a duty tour as provided by Sec.
21104(b)(7).
Other travel time: As discussed above, under FRA's new interim
interpretation, any time spent by an individual operating a motor
vehicle in order for the individual to engage in installing, repairing,
or maintaining a signal system is time on duty, regardless of whether
the period of time operating the motor vehicle is connected with the
individual's duty tour. Any other travel time, such as time spent by an
individual riding in a motor vehicle operated by someone else, during
the individual's duty tour, is potentially commingling service,
consistent with FRA's preexisting interpretation. This time spent by an
individual riding in the motor vehicle commingles with time on duty
that the individual accrued within the same duty tour and becomes time
on duty. If there is no time on duty with which the travel time can
commingle, such travel time instead becomes neither time on duty nor
time off duty.

Joseph C. Szabo,
Administrator.

Appendix A

Appendix A: Brief Summary of Major Federal Hours of Service (HS)
Requirements With Respect to Employees Who Perform One or More Types of
Covered Service: Freight Train Employees, Passenger Train Employees,
Signal Employees, and Dispatching Service Employees

[[Page 58851]]

----------------------------------------------------------------------------------------------------------------
Freight train Passenger train Dispatching
employees employees Signal employees service employees
----------------------------------------------------------------------------------------------------------------
Citation............................ 49 U.S.C. 21103.. 49 CFR part 228, 49 U.S.C. 21104.. 49 U.S.C. 21105.
subpart F.
Individuals Protected by the Federal Train employees Train employees Signal employees Dispatching
HS Requirements because of the Type (individuals who are engaged (individuals service
of Covered Service They Perform. engaged in or in commuter or engaged in employees
connected with intercity rail installing, (operators,
the movement of passenger repairing, or train
a train, transportation. maintaining dispatchers, or
including (Includes a signal systems). any other
hostlers), train employee See 49 U.S.C. individual who
except for train who is engaged 21101(4). by use of an
employees who in commuter or electrical or
are engaged in intercity rail mechanical
commuter or passenger device
intercity rail transportation dispatches,
passenger regardless of reports,
transportation, the nature of transmits,
as defined in 49 the entity by receives, or
CFR part 228, whom the delivers orders
subpart F, who employee is related to or
are instead employed and any affecting train
subject to that other train movements). See
regulation. See employee who is 49 U.S.C.
49 U.S.C. employed by a 21101(2).
21102(c)(3). commuter
railroad or an
intercity
passenger
railroad.
Excludes a train
employee of
another type of
railroad who is
engaged in work
train service
even though that
work train
service might be
related to
providing
commuter or
intercity rail
passenger
transportation,
and a train
employee of
another type of
railroad who
serves as a
pilot on a train
operated by a
commuter
railroad or
intercity
passenger
railroad.) See
49 CFR
228.403(c) and
discussion under
III.A of the
Second Interim
Interpretations.
Limitations on Time on Duty in a A railroad may A railroad may A railroad may A railroad may
Single Tour. not require or not require or not require or not require or
allow an allow an allow an allow an
individual to individual to individual to individual to
remain or go on remain or go on remain or go on remain or go on
duty as a duty as a duty as a signal duty as a
freight train passenger train employee in dispatching
employee in employee in excess of 12 service employee
excess of 12 excess of 12 hours or if the for more than 9
hours or if the hours or if the individual has hours in a 24-
individual has individual has not had at least hour period at a
not had at least not had at least 10 consecutive place at which
10 consecutive 8 consecutive hours off duty at least 2
hours off duty hours off duty during the prior shifts are
during the prior during the prior 24 hours. employed or for
24 hours. 24 hours, or 10 more than 12
consecutive hours in a 24-
hours off duty hour period at a
during the prior place where only
24 hours if the one shift is
individual has employed.
been on duty for
12 consecutive
hours.
End of Duty Tour.................... Duty tour ends at Duty tour ends at Duty tour ends at Not applicable;
beginning of beginning of beginning of any service for
statutory statutory statutory the railroad
minimum off-duty minimum off-duty minimum off-duty within 24 hours
period. period. period. of time on duty
will commingle
with that time
on duty.
Duration and Any Other Conditions of 10 consecutive 8 consecutive 10 consecutive No express
Minimum Off-Duty Period Between Two hours, required hours; 10 hours, required minimum.
Duty Tours. to be consecutive to be
uninterrupted by hours if the uninterrupted by
any employee has any
communication by been on duty for communication by
the railroad 12 consecutive the railroad
reasonably hours. reasonably
expected to expected to
disrupt the disrupt the
employee's rest. 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..
Duration and Any Other Conditions of At least 4 hours At least 4 hours At least 30 At least 1 hour
Minimum Off-Duty Period Within a of time off duty of time off duty minutes of time of time off
Duty Tour. at the at the off duty. duty.
individual's individual's
designated designated
terminal, terminal.
required to be
uninterrupted by
any
communication by
the railroad
reasonably
expected to
disrupt the
employee's rest.

[[Page 58852]]

Limitations on Consecutive Duty A railroad may A railroad may None............. None.
Tours and Requirements for Extended not require or not require or
Rest. allow an allow an
individual to individual to
remain or go on remain or go on
duty as a duty as a
freight train passenger train
employee after employee if the
initiating an on- individual has
duty period on initiated an on-
six consecutive duty period each
days without day on 13 or
receiving 48 more consecutive
consecutive calendar days in
hours off duty the series of at
and free from most 14
any service for consecutive
any railroad at calendar days
the individual's until the
home terminal. individual has
(See definition had at least two
of ``day'' and consecutive
explanation of calendar days on
``consecutive which he or she
day'' below.) does not
Individuals are initiate an on-
permitted to duty period.
initiate an on- May not remain or
duty period as a go on duty as a
freight train passenger train
employee on a employee if the
seventh individual has
consecutive day initiated an on-
when the duty period each
individual ends day on six or
the sixth more consecutive
consecutive day calendar days
at the away-from- including one or
home terminal, more Type 2
as part of a assignments
pilot project, until the
or as part of a individual has
collectively had at least 24
bargained consecutive
agreement hours of time
entered into off duty. For
prior to April definition of
16, 2010 that ``Type 2
expressly assignment,''
provides for see 49 CFR 228.5
such a schedule. or footnote 32
An individual of the Second
performing Interim
service on this Interpretations..
additional day During this time
must receive 72 off duty, the
consecutive individual must
hours free from be at his or her
any service for home terminal
any railroad at and unavailable
his or her home for any service
terminal before for any
going on duty railroad..
again as a If the employee
freight train is not at his or
employee. her home
terminal when
this time off
duty is
required, the
employee may
either deadhead
to the point of
final release at
the employee's
home terminal or
initiate an on-
duty period in
order to return
to the
employee's home
terminal either
on the same
calendar day or
the next
consecutive
calendar day
after the
completion of
the duty tour
triggering the
rest
requirement..
Monthly Cumulative Limitations...... A railroad may None............. None............. None.
not require or
allow an
individual to
remain or go on
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.
A railroad may
not require or
allow an
individual to
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..

[[Page 58853]]

Definition of ``Time Neither On Duty Time spent in Time spent in Time spent None.
nor Off Duty''. deadhead deadhead returning from a
transportation transportation trouble call,
from a duty from a duty whether the
assignment to assignment to individual goes
the place of the place of directly to the
final release. final release. employee's
residence or by
way of the
employee's
headquarters.
Time after
scheduled duty
hours
necessarily
spent in
completing the
trip directly to
the individual's
residence or to
the individual's
headquarters, if
the individual
has not
completed the
trip from the
final outlying
worksite of the
duty period at
the end of
scheduled duty
hours, or if the
individual is
released from
duty at an
outlying
worksite before
the end of the
individual'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 freight train A passenger train A signal employee A dispatching
employee on the employee on the may be allowed service employee
crew of a wreck crew of a wreck to remain or go may be allowed
or relief train or relief train on duty for no to remain or go
may be allowed may be allowed more than 4 on duty for no
to remain or go to remain or go additional hours more than 4
on duty for no on duty for no in any period of additional hours
more than 4 more than 4 24 consecutive during a period
additional hours additional hours hours when an of 24
in any period of in any period of emergency exists consecutive
24 consecutive 24 consecutive and the work of hours for no
hours when an hours when an that employee is more than 3 days
emergency exists emergency exists related to the during a period
and the work of and the work of emergency. of 7 consecutive
the crew is the crew is Routine repairs, days.
related to the related to the routine
emergency. emergency. maintenance, or
routine
inspection of
signal systems
is not an
emergency that
allows for
additional time
on duty.
Explanation of the End of an The emergency The emergency The emergency None.
Emergency. ends when the ends when the ends when the
track is cleared track is cleared signal system is
and the railroad and the railroad restored to
line is open for line is open for service.
traffic. traffic.
Definition of ``Day'' and 24 consecutive Calendar days; Not Applicable... Not Applicable
``Consecutive Day''. hours; two two calendar Except in
initiations of days are Context of
an on-duty consecutive if Emergency
period are on adjacent to one Provision.
consecutive days another.
where they are
separated by
less than 24
hours of time
off duty,
measured from
the time of the
employee's final
release from
duty until the
time that the
employee next
reports for duty.
Explicit Use of Fatigue Science..... None............. Passenger train None............. None.
employees' work
schedules must
be analyzed
under an FRA-
approved
validated
biomathematical
fatigue model,
with the
exception of
certain
schedules deemed
as categorically
presenting an
acceptable level
of risk for
fatigue that
does not violate
the defined
fatigue
threshold.
Specific Rules for Nighttime None............. Schedules that None............. None.
Operations. include any time
on duty between
8 p.m. and 4
a.m. must be
analyzed using a
validated
biomathematical
model of human
performance and
fatigue approved
by FRA.
Schedules with
excess risk of
fatigue must be
mitigated or
supported by a
determination
that mitigation
is not possible
and the schedule
is operationally
necessary and
approved by FRA.

[[Page 58854]]

Specific Rules for Unscheduled None............. The potential for None............. None.
Assignments. fatigue
presented by
unscheduled work
assignments must
be mitigated as
part of a
railroad's FRA-
approved fatigue
mitigation plan.
Plans must be
submitted for
FRA review and
approval, along
with the
associated
schedules
requiring
mitigation.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2013-23151 Filed 9-23-13; 8:45 am]
BILLING CODE 4910-06-P

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