[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Rules and Regulations]
[Pages 12408-12431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4732]



[[Page 12407]]

Vol. 77

Wednesday,

No. 40

February 29, 2012

Part III





Department of Transportation





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Federal Railroad Administration





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49 CFR Chapter II





Statement of Agency Policy and Interpretation on the Hours of Service 
Laws as Amended; Response to Public Comment; Final Rule

Federal Register / Vol. 77 , No. 40 / Wednesday, February 29, 2012 / 
Rules and Regulations

[[Page 12408]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II

[Docket No. 2009-0057, Notice No. 2]


Statement of Agency Policy and Interpretation on the Hours of 
Service Laws as Amended; Response to Public Comment

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

ACTION: Statement of agency policy and interpretation; response to 
public comment.

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SUMMARY: In this document FRA states the agency's position on certain 
interpretive questions arising out of some of the complex and important 
amendments enacted in 2008 to the Federal railroad safety laws that 
govern such matters as how long a railroad may require or allow an 
employee in a certain category to remain on duty and how long the 
railroad must give the employee off duty before the employee may go on 
duty again. In issuing this interpretation, FRA has considered public 
comments that it received on its June 2009 document that contained the 
agency's interim interpretations of those amended laws.

DATES: This document is effective on May 29, 2012.

FOR FURTHER INFORMATION CONTACT: Colleen A. Brennan, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail 
Stop 10, Washington, DC 20590 (telephone 202-493-6028 or 202-493-6052); 
Matthew T. Prince, Trial Attorney, Office of Chief Counsel, FRA, 1200 
New Jersey Avenue SE., RCC-12, Mail Stop 10, Washington, DC 20590 
(telephone 202-493-6146 or 202-493-6052); Rich Connor, Operating 
Practices Specialist, Operating Practices Division, Office of Safety 
Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-11, Mail 
Stop 25, Washington, DC 20590 (telephone 202-493-1351); or Thomas 
McFarlin, Office of Safety Assurance and Compliance, Staff Director, 
Signal & Train Control Division, FRA, Mail Stop 25, West Building 3rd 
Floor West, Room W35-332, 1200 New Jersey Avenue SE., Washington, DC 
20590 (telephone: 202-493-6203).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
III. Changes in the Old Hours of Service Laws Made by Sec. 108 of 
the RSIA
    A. Extending Hours of Service Protections to Employees of 
Contractors and Subcontractors to Railroads Who Perform Certain 
Signal-Related Functions
    B. Changing Hours of Service Requirements Related to Train 
Employees
    C. Changing Hours of Service Requirements Related to Signal 
Employees
IV. Response to Public Comments on FRA's Proposed Interpretation and 
Interim Interpretations
    A. FRA's Decision To Retain Its Longstanding ``Fresh Start'' 
Interpretation and Not To Adopt the Proposed ``Continuous Lookback'' 
Interpretation
    B. Questions Regarding the ``Consecutive-Days'' Limitations for 
Train Employees and Requirement of 48 or 72 Hours Off Duty at the 
Home Terminal
    1. What constitutes a ``Day'' for the purpose of sec. 
21103(a)(4)?
    2. What ``Work'' may an employee do on a seventh consecutive day 
under sec. 21103(a)(4)(A)?
    3. Does a day spent deadheading, with no other covered service 
performed on that day, Constitute an ``Initiation of an On-Duty 
Period'' for the purposes of sec. 21103(a)(4)?
    4. Does the initiation of an on-duty period incident to an early 
release qualify as an Initiation for the purposes of sec. 
21103(a)(4)?
    5. If an employee is called for duty but does not work, has the 
employee initiated an on-duty period? If there is a call and 
release? What if the employee has reported?
    6. Does an employee's performance of ``Other Mandatory Activity 
for the Carrier'' that is not covered service ever count as the 
initiation of an on-duty period under sec. 21103(a)(4)?
    7. How much rest must an employee have after initiating an on-
duty period for six consecutive days, if permitted to do so for 
seven consecutive days by sec. 21103(a)(4)(B)?
    8. How are initiations of on-duty periods for multiple railroad 
carriers treated under sec. 21103(a)(4)?
    9. Does an employee ``Deliberately Misrepresent His or Her 
Availability'' simply by reporting for duty on a consecutive day in 
violation of sec. 21103(a)(4)?
    C. Questions Regarding the Prohibition on Communication by the 
Railroad with Train Employees and Signal Employees
    1. Does the prohibition protect employees from any communication 
for the entirety of the off-duty period?
    2. Is it a violation for a railroad to intentionally call an 
employee to delay that employee's ability to report for duty?
    3. For what purposes may an employee contact a railroad during 
the uninterrupted rest period?
    4. May the railroad return an employee's communication during 
the rest period without violating the prohibition on communication?
    5. May the railroad call to alert an employee to a delay (set 
back) or displacement?
    6. May an employee provide advance permission for railroad 
communications?
    7. Does the prohibition on communication apply to the extended 
rest required after 6 or more consecutive days initiating an on-duty 
period?
    8. Does the prohibition on communication apply differently to 
forms of communication other than phone calls?
    9. May the railroad provide information that can be accessed at 
the employee's option?
    D. Questions Regarding the 276-Hour Monthly Limit on Service for 
the Railroad by Train Employees
    E. Additional Issues Raised by Commenters
    1. Statutory Changes
    2. Waivers
    3. Definition of ``Covered Service''
    4. Exclusivity of Signal Service Hours of Service
    5. Commuting Time
    6. Application of Exception to Limitation on Certain Limbo Time
V. Portions of FRA's Interim Interpretations of the Hours of Service 
Laws on Which Comments Were Not Received and Which Are Incorporated 
in This Final Interpretation Essentially Without Change
    A. Questions Related to the Prohibition on Communication by the 
Railroad With Train Employees and Signal Employees
    1. Does the prohibition on communication with train employees 
and signal employees apply to every statutory off-duty period no 
matter how long the employee worked?
    2. Is the additional rest for a train employee when on-duty time 
plus limbo time exceeds 12 hours mandatory, or may the employee 
decline it?
    3. If an employee is called to report for duty after having 10 
hours of uninterrupted time off duty, but then receives a call 
canceling the call to report before he or she leaves the place of 
rest, is a new period of 10 uninterrupted hours off duty required?
    4. What if the call is cancelled just one minute before report-
for-duty time?
    5. What if the employee was told before going off duty to report 
at the end of required rest (either 10 hours or 48 or 72 hours after 
working 6 or 7 days), and is released from that call prior to the 
report-for-duty time?
    6. Are text messages or email permitted during the rest period?
    7. May the railroad return an employee's call during the rest 
period without violating the prohibition on communication?
    8. May the railroad call to alert an employee to a delay (set 
back) or displacement?
    9. If the railroad violates the requirement of undisturbed rest, 
is the undisturbed rest period restarted from the beginning?
    10. Should any violation of undisturbed rest be documented by a 
record?

[[Page 12409]]

    11. Is the additional rest required when on-duty time plus limbo 
time exceeds 12 hours (during which communication with an employee 
is prohibited) to be measured only in whole hours, so that the 
additional rest requirement is not a factor until the total reaches 
13 hours?
    B. Questions Related to the Requirements Applicable to Train 
Employees for 48 or 72 Hours Off at the Home Terminal
    1. Is a ``Day'' a calendar day or a 24-hour period for the 
purposes of this provision?
    2. If an employee is called for duty but does not work, has the 
employee initiated an on-duty period? If there is a call and 
release? What if the employee has reported?
    3. Does deadheading from a duty assignment to the home terminal 
for final release on the 6th or 7th day count as a day that triggers 
the 48-hour or 72-hour rest period requirement?
    4. Does attendance at a mandatory rules class or other mandatory 
activity that is not covered service but is non-covered service, 
count as initiating an on-duty period on a day?
    5. If an employee is marked up (available for service) on an 
extra board for 6 days but only works 2 days out of the 6, is the 
48-hour rest requirement triggered?
    6. If an Employee initiates an on-duty period on 6 consecutive 
days, ending at an away-from-home terminal and then has 28 hours off 
at an away-from-home terminal, may the employee work back to the 
home terminal? The statute says that after initiating an on-duty 
period on 6 consecutive days the employee may work back to the home 
terminal on the 7th day and then must get 72 hours off, but what if 
the employee had a day off at the away-from-home terminal after the 
6th day?
    7. May an employee who works 6 consecutive days vacation relief 
at a ``Temporary Home Terminal'' work back to the regular home 
terminal on the 7th day?
    C. Questions Related to the 276-Hour Monthly Maximum for Train 
Employees of Time on Duty, Waiting for or Being in Deadhead 
Transportation to Final Release, and in Other Mandatory Service for 
the Carrier
    1. If an employee reaches or exceeds 276 hours for the calendar 
month during a trip that ends at the employee's away-from-home 
terminal, may the railroad deadhead the employee home during that 
month?
    2. How will FRA apply the 276-hour cap to employees who only 
occasionally perform covered service as a train employee, but whose 
hours, when combined with their regular shifts in non-covered 
service, would exceed 276 hours?
    3. Does the 276-hour count reset at midnight on the first day of 
a new month?
    4. May an employee accept a call to report for duty when he or 
she knows there are not enough hours remaining in the employee's 
276-hour monthly limitation to complete the assignment or the duty 
tour, and it is not the last day of the month, so the entire duty 
tour will be counted toward the total for the current month?
    5. What activities constitute ``Other Mandatory Service for the 
Carrier,'' which counts towards the 276-hour monthly limitation?
    6. Does time spent documenting transfer of hazardous materials 
(Transportation Security Administration requirement) count against 
the 276-hour monthly maximum?
    D. Other Interpretive Questions Related to the RSIA Amendments 
to the Old Hours of Service Laws
    1. Does the 30-hour monthly maximum limitation on time awaiting 
and in deadhead transportation to final release only apply to time 
awaiting and in deadhead transportation after 12 consecutive hours 
on duty?
    2. Did the RSIA affect whether a railroad may obtain a waiver of 
the provisions of the new hours of service laws?

I. Executive Summary

    Having considered public comments in response to FRA's June 26, 
2009 interim statement of agency policy and interpretation (Interim 
Interpretations) and its proposed interpretation, 74 FR 30665, FRA 
issues this final statement of agency policy and interpretation.
    Federal laws governing railroad employees' hours of service date 
back to 1907 with the enactment of the Hours of Service Act (Pub. L. 
59-274, 34 Stat. 1415), and FRA, under delegations from the Secretary 
of Transportation (Secretary), has long administered statutory hours of 
service requirements for the three groups of employees now covered 
under the statute, namely employees performing the functions of train 
employees, signal employees, and dispatching service employees, as 
those terms are defined at 49 U.S.C. 21101. See 49 CFR 1.49; 49 U.S.C. 
21101-21109, 21303. These requirements have been amended several times 
over the years, most recently in the Rail Safety Improvement Act of 
2008 (Pub. L. 110-432, Div. A) (RSIA). The RSIA substantially amended 
the requirements of 49 U.S.C. 21103, applicable to train employees, 
defined as ``individual[s] engaged in or connected with the movement of 
a train, including a hostler,'' 49 U.S.C. 21101(5), and the 
requirements of 49 U.S.C. 21104, applicable to signal employees, 
defined as ``individual[s] who [are] engaged in installing, repairing, 
or maintaining signal systems.'' 49 U.S.C. 21101(4). FRA previously 
discussed these amendments in its Interim Interpretations, and now 
clarifies those interpretations and answers questions raised by 
commenters. The current hours of service laws are summarized very 
briefly below, divided by type of covered service.

----------------------------------------------------------------------------------------------------------------
                                                                                           Dispatching service
                                           Train employees          Signal employees            employees
Citation                               49 U.S.C. 21103........  49 U.S.C. 21104........  49 U.S.C. 21105
----------------------------------------------------------------------------------------------------------------
Covered Individuals..................  Individuals engaged in   Individuals engaged in   Operators, train
                                        or connected with the    installing, repairing,   dispatchers, or any
                                        movement of a train,     or maintaining signal    other employee who by
                                        including hostlers.      systems.                 use of an electrical
                                        Train employees who                               or mechanical device
                                        are engaged in                                    dispatches, reports,
                                        commuter or intercity                             transmits, receives,
                                        rail passenger                                    or delivers orders
                                        transportation, as                                related to or
                                        defined in 49 CFR part                            affecting train
                                        228, subpart F, are                               movements.
                                        instead subject to
                                        that regulation. See
                                        49 U.S.C. 21102(c)(3).
Limitations on Time on Duty in a       May not remain or go on  May not remain or go on  May not remain or go on
 Single Tour.                           duty in excess of 12     duty in excess of 12     duty for more than 9
                                        hours or if the          hours or if the          or 12 hours in a 24-
                                        employee has not had     employee has not had     hour period, depending
                                        at least 10              at least 10              on the number of
                                        consecutive hours off    consecutive hours off    shifts employed at the
                                        duty during the prior    duty during the prior    tower, office,
                                        24 hours.                24 hours.                station, or place the
                                                                                          employee is on duty.

[[Page 12410]]

 
Minimum Off-Duty Period Between Duty   10 consecutive hours,    10 consecutive hours,    Not applicable.
 Tours.                                 required to be           required to be
                                        uninterrupted by any     uninterrupted by any
                                        communication by the     communication by the
                                        railroad reasonably      railroad reasonably
                                        expected to disrupt      expected to disrupt
                                        the employee's rest.     the employee's rest.
                                        Additional time off
                                        duty is required when
                                        the total of time on
                                        duty and time waiting
                                        for deadhead
                                        transportation or in
                                        deadhead
                                        transportation from a
                                        duty assignment to the
                                        place of final release
                                        that is not time off
                                        duty exceeds 12
                                        consecutive hours,
                                        which must also be
                                        uninterrupted.
Minimum Off-Duty Period Within a Duty  At least 4 hours of      At least 30 minutes of   Not applicable.
 Tour.                                  time off duty at a       time off duty.
                                        designated terminal,
                                        required to be
                                        uninterrupted by any
                                        communication by the
                                        railroad reasonably
                                        expected to disrupt
                                        the employee's rest.
Limitations on Consecutive Duty Tours  May not remain or go on  None...................  None.
                                        duty after initiating
                                        an on-duty period on
                                        six consecutive days
                                        without receiving 48
                                        consecutive hours off
                                        duty and free from any
                                        service for any
                                        railroad carrier at
                                        the employee's home
                                        terminal. Employees
                                        are permitted to
                                        initiate a seventh
                                        consecutive day when
                                        the employee ends the
                                        sixth consecutive day
                                        at the away-from-home
                                        terminal, as part of a
                                        pilot project, or as
                                        part of a collectively
                                        bargained agreement
                                        entered into prior to
                                        April 16, 2010 that
                                        expressly provides for
                                        such a schedule.
                                        Employees performing
                                        service on this
                                        additional day must
                                        receive 72 consecutive
                                        hours free from any
                                        service for any
                                        railroad carrier at
                                        their home terminal
                                        before going on duty
                                        again as a train
                                        employee.
Monthly Cumulative Limitations.......  May not remain or go on  None...................  None.
                                        duty, wait for or be
                                        in deadhead
                                        transportation to the
                                        point of final
                                        release, or be in any
                                        other mandatory
                                        service for the
                                        carrier in any
                                        calendar month where
                                        the employee has spent
                                        a total of 276 hours
                                        on duty, waiting for
                                        or in deadhead
                                        transportation from a
                                        duty assignment to the
                                        place of final
                                        release, or in any
                                        other mandatory
                                        service for the
                                        carrier.
                                       May not exceed a total
                                        of 30 hours per
                                        calendar month spent
                                        waiting for or in
                                        deadhead
                                        transportation from a
                                        duty assignment to the
                                        place of final release
                                        following a period of
                                        12 consecutive hours
                                        on duty that is
                                        neither time on duty
                                        nor time off duty, not
                                        including interim rest
                                        periods, except in the
                                        circumstances stated.
Time Neither On Duty nor Off Duty As   Time spent in deadhead   Time spent returning     None.
 Defined by the Statute.                transportation from a    from a trouble call,
                                        duty assignment to the   whether the employee
                                        place of final release.  goes directly to the
                                                                 employee's residence
                                                                 or by way of the
                                                                 employee's
                                                                 headquarters.

[[Page 12411]]

 
                                                                Time after scheduled
                                                                 duty hours necessarily
                                                                 spent in completing
                                                                 the trip directly to
                                                                 the employee's
                                                                 residence or to the
                                                                 employee's
                                                                 headquarters, if the
                                                                 employee has not
                                                                 completed the trip
                                                                 from the final
                                                                 outlying worksite of
                                                                 the duty period at the
                                                                 end of scheduled duty
                                                                 hours, or if the
                                                                 employee is released
                                                                 from duty at an
                                                                 outlying worksite
                                                                 before the end of the
                                                                 employee's scheduled
                                                                 duty hours to comply
                                                                 with 49 U.S.C. 21104.
                                                                However, time spent in
                                                                 transportation on an
                                                                 on-track vehicle is
                                                                 time on duty.
Emergencies in General...............  A train employee on the  A signal employee may    A dispatching service
                                        crew of a wreck or       be allowed to remain     employee may be
                                        relief train may be      or go on duty for no     allowed to remain or
                                        allowed to remain or     more than 4 additional   go on duty for no more
                                        go on duty for no more   hours in any period of   than 4 additional
                                        than 4 additional        24 consecutive hours     hours during a period
                                        hours in any period of   when an emergency        of 24 consecutive
                                        24 consecutive hours     exists and the work of   hours for no more than
                                        when an emergency        that employee is         3 days during a period
                                        exists and the work of   related to the           of 7 consecutive days.
                                        the crew is related to   emergency. Routine
                                        the emergency.           repairs, routine
                                                                 maintenance, or
                                                                 routine inspection of
                                                                 signal systems is not
                                                                 an emergency that
                                                                 allows for additional
                                                                 time on duty.
End of Emergency.....................  The emergency ends when  The emergency ends when  Not Applicable.
                                        the track is cleared     the signal system is
                                        and the railroad line    restored to service.
                                        is open for traffic.
----------------------------------------------------------------------------------------------------------------

    In the proposed interpretation that appeared in the same document 
as the Interim Interpretations, FRA proposed a new interpretation of 
the new hours of service laws with respect to the 24-hour period within 
which a train employee or signal employee must have had the minimum 10-
hour statutory off-duty period before the employee is allowed to go on 
duty or remain on duty. This proposed interpretation would have 
required that the train employee or signal employee have had the 
statutory minimum off-duty period in the 24 hours preceding any moment 
during which that employee is on duty, making the maximum work window 
14 hours after the end of the statutory minimum off-duty period. In 
this final statement of agency policy, FRA rejects the proposed 
interpretation and maintains the longstanding ``fresh start'' 
interpretation, which requires only that the statutory minimum off-duty 
period be within the 24 hours before a train employee or signal 
employee initiates an on-duty period. As a result, there will be no 
change to the current interpretation that the statutory minimum off-
duty period must only be within the 24 hours prior to the time when an 
employee initiates an on-duty period.
    The other issues addressed by FRA largely fall into three 
categories: questions relating to the ``consecutive-days'' limitation, 
the prohibition on communication with train employees and signal 
employees during their statutory minimum off-duty periods, and the 
monthly limitation for train employees of 276 hours in time on duty, 
waiting for or in deadhead transportation, or performing any other 
mandatory service for the railroad carrier. Each issue is discussed in 
significantly more detail in the subsequent sections of this document; 
this summary provides only a brief overview of FRA's policy and 
interpretation.
    In the Interim Interpretations, FRA defined the ``day'' in the 
consecutive-days limitation to be a calendar day, on the basis that 
such an interpretation would be administratively simpler. Experience 
with the application of this definition and public comments on the 
definition show that the ``calendar day'' interpretation was more 
complicated and provided less protection against fatigue than 
originally anticipated; as a result, FRA has revised its interpretation 
of ``day'' in the context of the ``consecutive-days'' limitation to 
refer to the 24-hour period following an employee's final release from 
duty. Under this interpretation, if an employee does not initiate an 
on-duty period within 24 hours of the employee's final release from the 
previous duty tour, this will count as a ``day'' in which the employee 
did not initiate an on-duty period, and the string of consecutive days 
will be broken.
    Another source of confusion in the Interim Interpretations was 
FRA's definition of ``work'' in the ``consecutive-days'' limitation's 
allowance that an employee may ``work'' on a seventh consecutive day in 
certain circumstances. FRA has revised this interpretation to reduce 
confusion by clearly stating that ``work'' for the ``consecutive-days'' 
limitation is equivalent to ``initiate an on-duty period.'' This 
earlier definition of ``work'' also led some commenters to be confused 
about how stand-alone deadhead transportation would be treated with 
respect to the initiation of an on-duty period; FRA has clarified that 
a stand-alone deadhead is not time on duty, and is therefore not the 
initiation of an on-duty period. Therefore, a day in which an employee 
is in deadhead transportation but does not engage in any covered 
service with which the deadhead can commingle will not be counted as 
part of the series of consecutive days, and will break that series.
    Similarly, if an employee is called to report for duty, but does 
not actually report for duty, such an employee has not initiated an on-
duty period for the purposes of the consecutive-days

[[Page 12412]]

limitation. However, employees that do report for duty have initiated 
an on-duty period, even if they are released from duty shortly 
thereafter, before performing any covered service. FRA also clarifies 
that, while other service for the railroad may not be time on duty if 
it does not commingle with covered service, this fact does not prevent 
commingling if the other service is not separated from the covered 
service by a statutory minimum off-duty period. In response to a 
question relating to the interaction between the ``6-day'' limitation 
and the ``7-day'' limitation, FRA notes that an employee who is 
eligible to initiate an on-duty period for 7 consecutive days but only 
initiates an on-duty period on 6 consecutive days must have 48 hours of 
time off duty and free from any service for any railroad. FRA also 
provides clarification on the impact of the consecutive-days 
limitations on employees who choose to work for multiple railroads. 
Finally, in response to a question in the comments, FRA provides 
additional discussion of when an employee may be subject to individual 
liability enforcement action for deliberately misrepresenting his or 
her availability.
    On the issue of the prohibition on communication by the railroad 
with train employees and signal employees, comments received in 
response to the Interim Interpretations indicated significant confusion 
over the period of time during which the prohibition applies. FRA 
explains that, because the prohibition applies only to certain off-duty 
periods such as the statutory minimum off-duty period, railroads are 
free to communicate with train employees and signal employees so long 
as there is sufficient undisturbed time off duty to complete the 
appropriate type of off-duty period. Similarly, because the prohibition 
only applies to certain off-duty periods, a violation of the 
prohibition does not occur unless a disruptive communication prevents 
an employee from having sufficient rest to avoid excess service. For 
example, if a railroad interrupted an employee's rest, but restarted 
the rest period and provided a full statutory off-duty period after the 
interruption before the employee was next called to report for duty, 
there would be no violation, because the employee had 10 hours 
uninterrupted rest between duty tours. Comments also indicated the 
tension between the Interim Interpretations addressing an employee's 
ability to contact the railroad and establishing a time to report 
during a statutory minimum off-duty period. FRA has resolved this issue 
by clearly stating that employees may call a railroad or contractor for 
any purpose during rest periods required to be free from disruptive 
communication, including establishing a time to report, while 
preserving the longstanding interpretation that some types of 
conversations are service for the railroad that would not be time off 
duty.
    On a related topic, comments requested that employees be able to 
give advance permission to railroads to communicate during the 
prohibited time, such that employees would only need to allow 
communications once for all of their applicable off-duty periods. 
However, railroads and contractors are only permitted to contact 
employees during the prohibited times if the employee contacts the 
railroad or contractor during the prohibited time and specifically 
permits a return contact. Employees are not permitted to grant advance 
permission for all off-duty periods; a communication from an employee 
to a railroad or contractor applies only to the off-duty period in 
which the communication was made. Because the prohibition applies to 
``communication,'' and not phone calls specifically, the prohibition 
applies to all forms of communication. However, because employees are 
permitted to initiate a communication, means of providing information 
that can be accessed at the employee's option, such as a railroad Web 
site or messages sent to a railroad-provided phone, do not violate the 
prohibition so long as employees have the option of whether or not to 
check for such messages.
    FRA also received several questions concerning the 276-hour monthly 
limit on service for the railroad by train employees. Most of these 
questions discussed FRA's note that activities that an employee has the 
freedom to schedule, such as an appointment the employee makes for a 
vision exam, will not count towards the 276-hour limitation. This does 
not mean that time spent in such activities, which can also include 
activities like optional rules refresher classes or the acquisition of 
security access cards for hazardous materials facilities, no longer 
commingle with time on duty. FRA clarifies that if these activities are 
not separated from time on duty by a statutory minimum off-duty period, 
the time spent in these activities will commingle, become time on duty, 
and count toward the monthly limitation. FRA also explains that the 
276-hour monthly limitation applies only to single railroads, such that 
an employee who chooses to work for multiple railroads will be subject 
to separate 276-hour limitations for each railroad. Finally, FRA 
reiterates that merely reporting for duty is not an act of deliberately 
misrepresenting availability that would make an employee subject to 
individual liability for violations of the hours of service laws.
    In addition to these topics, FRA also addresses several 
miscellaneous issues raised by commenters. This includes a discussion 
of the function-based interpretation of which employees are covered by 
the hours of service laws. As has long been the case, only employees 
who perform the functions described in the ``definitions'' section of 
the hours of service laws, 49 U.S.C. 21101, are covered under the hours 
of service laws. This may or may not include employees who are 
described as ``yardmasters'' or ``mechanical employees.'' FRA also 
maintains the longstanding interpretation that time spent commuting is 
time off duty, and accordingly an employee may commute during the 
uninterrupted rest period. One commenter asked if the statutory 
exceptions to the time counted towards the monthly limitation on limbo 
time apply to the requirement that an employee receive additional time 
off after exceeding 12 hours of time on duty and time waiting for or in 
deadhead transportation; because these exceptions explicitly state that 
they only apply to the monthly limit, the exceptions do not also apply 
to the additional rest requirement. Thus, an employee will still be 
required to receive additional rest, even if one of the exceptions to 
the monthly limitation occurred during the employee's duty tour and 
that situation may have contributed to extending the duty tour which 
resulted in the need for additional rest.
    With respect to signal employees, FRA explains the application of 
the exclusivity provision; because it applies only to signal employees, 
and signal employees are covered by the ``signal employee'' provision 
of the hours of service laws (including the exclusivity provision), 
only an employee who is subject to FRA's hours of service laws is not 
subject to the Federal Motor Carrier Safety Administration's (FMCSA) 
hours of service regulations during the same duty tour as a result of 
the exclusivity provision. An individual who does not work as a signal 
employee during a particular duty tour may instead be subject to the 
FMCSA hours of service regulations during that tour if he or she 
performs functions covered by those regulations, such as driving a 
commercial motor vehicle.
    Finally, the Interim Interpretations are reprinted for ease of 
reference. Where the interpretation has changed, the text has been 
replaced with a reference to

[[Page 12413]]

where in this document the new answer can be found.

II. Background

    On October 16, 2008, the Rail Safety Improvement Act of 2008 (RSIA) 
was enacted. See Public Law 110-432, Div. A, 122 Stat. 4848. Section 
(Sec.) 108 of the RSIA made important changes to 49 U.S.C. ch. 211, 
Hours of service, as amended through October 15, 2008 (the old hours of 
service laws). See 122 Stat. 4860-4866. Some of these changes became 
effective immediately on the date of enactment, and others became 
effective nine months later, on July 16, 2009. In particular, under 
Sec. 108(g) of the RSIA, subsections (d), (e), (f), and (g) of the 
section became effective on the date of enactment of the RSIA, and 
subsections (a), (b), and (c) of the section became effective nine 
months later, on July 16, 2009. Because of the significance of the 
amendments to the old hours of service laws made by Sec. 108, on June 
26, 2009, FRA published an interim statement of agency policy and 
interpretation (Interim Interpretations) to address questions of 
statutory interpretation that had arisen so far with respect to the 
hours of service laws as amended by the RSIA (the new hours of service 
laws). 74 FR 30665 (June 26, 2009). In the same document, FRA also 
proposed a new interpretation of the new hours of service laws with 
respect to the 24-hour period within which a train employee or signal 
employee must have had the minimum statutory off-duty period before the 
employee is allowed to go on duty or remain on duty (Proposed 
Interpretation).
    As with the Interim Interpretations, FRA is not addressing the 
amendments to the old hours of service laws made by Sec. 420 of the 
RSIA, which changed 49 U.S.C. 21106, Limitations on employee sleeping 
quarters, effective October 16, 2008. See 76 FR 67073 (Oct. 31, 2011). 
Nor is FRA presently revising either appendix A of 49 CFR part 228, 
which contains FRA's previously published interpretations of the old 
hours of service laws, known until the 1994 recodification as the Hours 
of Service Act (see Pub. L. 103-272), nor FRA's previously published 
interpretations concerning the limitations on hours of service of 
individuals engaged in installing, repairing or maintaining signal 
systems, an interim statement of agency policy and interpretation at 42 
FR 4464 (Jan. 25, 1977). FRA plans to make conforming changes and other 
changes to 49 CFR part 228, appendix A, and to previously existing 
technical bulletins, in the future.

III. Changes in the Old Hours of Service Laws Made by Sec. 108 of the 
RSIA

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

    Sec. 108(a) of the RSIA (Sec. 108(a)) amended the definition of 
``signal employee'', to eliminate the words ``employed by a railroad 
carrier''. 49 U.S.C. 21101(4). With this amendment, employees of 
contractors or subcontractors to a railroad who are engaged in 
installing, repairing, or maintaining signal systems (the functions 
within the definition of signal employee in the old hours of service 
laws) are covered by the new hours of service laws, because a signal 
employee under the new hours of service laws is no longer by definition 
only a railroad employee.
    It should be noted that an employee of a contractor or 
subcontractor to a railroad who is ``engaged in or connected with the 
movement of a train'' was considered a ``train employee'' under the old 
hours of service laws and continues to be considered a train employee 
under the new hours of service laws. 49 U.S.C. 21101(5). Likewise, an 
employee of a contractor or subcontractor to a railroad who ``by the 
use of an electrical or mechanical device dispatches, reports, 
transmits, receives, or delivers orders related to or affecting train 
movements'' was considered a ``dispatching service employee'' under the 
old hours of service laws and continues to be considered a 
``dispatching service employee'' under the new hours of service laws. 
49 U.S.C. 21101(2).

B. Changing Hours of Service Requirements Related to Train Employees

    Sec. 108(b) amended the old hours of service requirements for train 
employees in many ways, all of which amendments became effective July 
16, 2009, except with respect to train employees providing commuter or 
intercity passenger rail service, whom Sec. 108(d) made subject 
initially to the old hours of service laws and then to regulations 
promulgated by FRA if issued timely, and, if not, to the new hours of 
service laws. 49 U.S.C. 21103 and 21102.\1\ Sec. 108(b) limited train 
employees to 276 hours of time on-duty, awaiting or in deadhead 
transportation from a duty assignment to the place of final release, or 
in any other mandatory service for the carrier per calendar month. 49 
U.S.C. 21103(a)(1). The provision retained the existing maximum of 12 
consecutive hours on duty, but increased the minimum off-duty period to 
10 consecutive hours during the prior 24-hour period. 49 U.S.C. 
21103(a)(2), (3).
---------------------------------------------------------------------------

    \1\ FRA has promulgated regulations effective October 15, 2011 
establishing hours of service requirements for train employees 
providing commuter or intercity passenger rail service. 76 FR 50360 
(August 12, 2011).
---------------------------------------------------------------------------

    Sec. 108(b) also required that after an employee initiates an on-
duty period each day for six consecutive days, the employee must 
receive at least 48 consecutive hours off duty at the employee's home 
terminal, during which the employee is unavailable for any service for 
any railroad; except that if the sixth on-duty period ends at a 
location other than the home terminal, the employee may initiate an on-
duty period for a seventh consecutive day in order to reach the 
employee's home terminal, but must then receive at least 72 consecutive 
hours off duty at the employee's home terminal, during which time the 
employee is unavailable for any service for any railroad. 49 U.S.C. 
21103(a)(4).
    Sec. 108(b) further provided that employees may also initiate an 
on-duty period for a seventh consecutive day and must then receive 72 
consecutive hours off duty if, for a period of 18 months after the 
enactment of the RSIA, such schedules are expressly provided for in an 
existing collective bargaining agreement, or after that 18-month period 
has ended, such schedules are expressly provided for by a collective 
bargaining agreement entered into during that period, or a pilot 
program that is either authorized by collective bargaining agreement, 
or related to work rest cycles under the hours of service laws at 49 
U.S.C. 21108 (Sec. 21108). 49 U.S.C. 21103(a)(4).
    Sec. 108(b) also provided that the Secretary may waive the 
requirements of 48 and 72 consecutive hours off duty if the procedures 
of 49 U.S.C. 20103 are followed (i.e., essentially, if public notice 
and an opportunity for an oral presentation are provided prior to 
issuing the waiver), if a collective bargaining agreement provides a 
different arrangement that the Secretary determines is in the public 
interest and consistent with safety. Id.
    Sec. 108(b) also significantly changed the old hours of service 
requirements for train employees by establishing for the first time a 
limitation on the amount of time an employee may spend awaiting and in 
deadhead transportation. 49 U.S.C. 21103(c)(1). In particular, it 
provided that a railroad may not require or allow an employee to exceed 
40 hours per month awaiting and in

[[Page 12414]]

deadhead transportation from duty that is neither time on duty nor time 
off duty from the July 16, 2009 effective date of the provision through 
October 15, 2009,\2\ with that number decreasing to 30 hours per 
employee per month beginning October 16, 2009, except in certain 
situations. These monthly limits do not apply if the train carrying the 
employee is directly delayed by casualty, accident, act of God, 
derailment, major equipment failure that keeps the train from moving 
forward, or other delay from unforeseeable cause. 49 U.S.C. 
21103(c)(2). Railroads are required to report to the Secretary all 
instances in which these limitations are exceeded. 49 U.S.C. 
21103(c)(3). See also 49 CFR 228.19. In addition, the railroad is 
required to provide the train employee with additional time off duty 
equal to the amount that the combination of the total time on duty and 
time spent awaiting or in transportation to final release exceeds 12 
hours for a particular duty tour. 49 U.S.C. 21103(c)(4).
---------------------------------------------------------------------------

    \2\ The language of Sec. 108(b) must be read in conjunction with 
the language of Sec. 108(g), which provides that Sec. 108(b) becomes 
effective on July 16, 2009.
---------------------------------------------------------------------------

    Finally, Sec. 108(b) restricted railroads' communication with their 
train employees, except in case of emergency, during the minimum 
statutory 10-hour off-duty period, statutory periods of interim 
release, and periods of additional rest required equal to the amount 
that combined on-duty time and time awaiting or in transportation to 
final release exceeds 12 hours. 49 U.S.C. 21103(e). Further, the 
Secretary may waive this provision for train employees of commuter or 
intercity passenger railroads if the Secretary determines that a waiver 
would not reduce safety and is necessary to efficiency and on time 
performance. Id. However, because train employees of commuter and 
intercity passenger railroads are no longer subject to the statutory 
hours of service limitations, such waivers are no longer applicable to 
these employees.
    As was alluded to earlier, Sec. 108(d) provided that the 
requirements described above for train employees did not go into effect 
on July 16, 2009, for train employees of commuter and intercity 
passenger railroads. 49 U.S.C. 21102(c). Sec. 108(d) provided the 
Secretary with the authority to issue hours of service rules and orders 
applicable to these train employees, which may be different than the 
statute applied to other train employees. 49 U.S.C. 21109(b). Sec. 
108(d) further provided that these train employees who provide commuter 
or intercity passenger rail service would continue to be governed by 
the old hours of service laws (as they existed immediately prior to the 
enactment of the RSIA) until the effective date of regulations 
promulgated by the Secretary. 49 U.S.C. 21102(c). If no new regulations 
had been promulgated before October 16, 2011, the provisions of Sec. 
108(b) would have been extended to these employees at that time. Id. 
Such regulations have since been timely promulgated, 76 FR 50360 
(August 12, 2011), to be codified at 49 CFR part 228, subpart F, with 
an effective date of October 15, 2011. Accordingly, the hours of 
service of train employees who provide commuter and intercity passenger 
rail service are not governed by the statutory hours of service laws at 
49 U.S.C. 21103, but by those regulations.

C. Changing Hours of Service Requirements Related to Signal Employees

    Sec. 108(c) amended the hours of service requirements for signal 
employees in a number of ways. 49 U.S.C. 21104. As was noted above, by 
amending the definition of ``signal employee,'' Sec. 108(a) extended 
the reach of the substantive requirements of Sec. 108(c) to a 
contractor or subcontractor to a railroad carrier and its officers and 
agents. 49 U.S.C. 21101(4). In addition, as Sec. 108(b) did for train 
employees, Sec. 108(c) retained for signal employees the existing 
maximum of 12 consecutive hours on duty, but increased the minimum off-
duty period to 10 consecutive hours during the prior 24-hour period. 49 
U.S.C. 21104(a)(1), (2). Further, Sec. 108(c) deleted the prohibition 
in the old hours of service laws at 49 U.S.C. 21104(a)(2)(C) against 
requiring or allowing a signal employee to remain or go on duty ``after 
that employee has been on duty a total of 12 hours during a 24-hour 
period, or after the end of that 24-hour period, whichever occurs 
first, until that employee has had at least 8 consecutive hours off 
duty.''
    Sec. 108(c) also eliminated language in the old hours of service 
laws stating that the last hour of signal employee's return from final 
trouble call was time off duty, and defined ``emergency situations'' in 
which the new hours of service laws permit signal employees to work 
additional hours to exclude routine repairs, maintenance, or 
inspection. 49 U.S.C. 21104(b), (c).
    Sec. 108(c) also contained language virtually identical to that in 
Sec. 108(b) for train employees, prohibiting railroad communication 
with signal employees during off-duty periods except for in an 
emergency situation. 49 U.S.C. 21104(d).
    Finally, Sec. 108(c) provided that the hours of service, duty 
hours, and rest periods of signal employees are governed exclusively by 
the new hours of service laws, and that signal employees operating 
motor vehicles are not subject to other hours of service, duty hours, 
or rest period rules besides FRA's. 49 U.S.C. 21104(e).
    The requirements of the old hours of service laws for dispatching 
service employees (49 U.S.C. 21105) were not modified by the RSIA.

IV. Response to Public Comments on FRA's Proposed Interpretation and 
Interim Interpretations

    FRA received 62 sets of comments addressing either the proposed 
interpretation or the Interim Interpretations, or both, from the 
representatives of a total of nine organizations and from 45 
individuals, with some individuals and organizations filing multiple 
sets of comments. The groups that submitted comments were as follows: 
the American Public Transportation Association (APTA); the Association 
of American Railroads (AAR); the Brotherhood of Railroad Signalmen 
(BRS); the Brotherhood of Locomotive Engineers and Trainmen (BLET); the 
United Transportation Union (UTU); the Nevada and Georgia State 
Legislative Boards of the BLET; and the Tennessee and Nebraska State 
boards of the UTU.

A. FRA's Decision To Retain its Longstanding ``Fresh Start'' 
Interpretation and Not To Adopt the Proposed ``Continuous Lookback'' 
Interpretation

    In the Federal Register document that included the Interim 
Interpretations, FRA proposed a new interpretation of what constitutes 
``during the prior 24 hours'' for the purposes of the prohibition 
against requiring or permitting a train employee or a signal employee 
to remain on duty without having had a certain minimum number of 
consecutive hours off duty during the prior 24 hours. This prohibition 
is currently found in 49 U.S.C. 21103(a)(3) and 21104(a)(2) (Sec. 
21103(a)(3) and 21104(a)(2)).
    Under FRA's current ``fresh start'' interpretation of this 
prohibition, ``the prior 24 hours'' end when an employee reports for a 
new duty tour. At the instant that the employee reports for duty, FRA 
looks back at the single 24-hour period before the employee reported 
for duty to see that the employee had at least 10 consecutive hours off 
following the prior duty

[[Page 12415]]

assignment. If so, then the employee may be required or permitted to 
work a maximum of 12 consecutive hours or a total of 12 hours, in 
broken service, in the next 24 hours, and must get 10 hours off either 
after working that 12 hours or at the end of the 24-hour period that 
began when the employee went on duty, whichever occurs first, before 
the employee is allowed to go on duty again. If an employee had a duty 
tour involving broken service, including an interim release of at least 
4 hours, but less than the 10 hours required for a statutory minimum 
off-duty period, between two periods of service within the same duty 
tour, some or all of the employee's eventual statutory minimum off-duty 
period would come after the 24-hour period that began when the employee 
reported for duty. The following example illustrates the application of 
FRA's current, ``fresh start'' interpretation of ``the prior 24 
hours'':

    <bullet> An employee reports for duty at 10 a.m. on a Monday. If 
the employee had had 10 consecutive hours off duty at any time 
between 10 a.m. on the preceding day (Sunday) to 10 a.m. on that 
Monday, FRA would consider the employee as having had the minimum 
off-duty period during ``prior 24 hours'' because the ``prior 24 
hours'' is defined as the 24 hours prior to the employee's act of 
reporting for duty. The employee would then be permitted to remain 
on duty for up to 12 hours in the following 24 hours, such that the 
employee must no longer accrue time on duty after 10 a.m. on 
Tuesday.

    Conversely, under the Proposed Interpretation (which takes the 
``continuous lookback'' approach to identifying the statutory minimum 
off-duty period during ``the prior 24 hours''), the statutory minimum 
off-duty period would have to be within each of the floating 24-hour 
periods not only starting when an employee begins a new duty tour, but 
also during the employee's duty tour, and ending when the employee is 
relieved from duty, meaning that upon reporting for duty, the employee 
would have a maximum of 14 hours within which to work a maximum of 12 
hours, before the employee would be required to be finally released to 
have a statutory minimum off-duty period.
    The following two examples illustrate the application of the 
proposed ``continuous lookback'' interpretation.

    1. If an employee is off duty from 1 a.m. Monday until 11 a.m. 
on Monday and then reports for duty at 11 a.m. and works until 11 
p.m. on Monday, the 10-hour statutory minimum off-duty period is 
within the prior 24 hours from any moment while the employee is on 
duty, up to the time of the employee's final release at 11 p.m. on 
Monday.
    2. However, if the same employee, who was off duty from 1 a.m. 
Monday until 11 a.m. on Monday and went on duty at 11 a.m. on 
Monday, then worked for 6 hours and had an interim release from 5 
p.m. until 11 p.m. on Monday before returning to duty from 11 p.m. 
and worked for six more hours until being finally released at 5 a.m. 
on Tuesday, the employee's time on duty after 1 a.m. on Tuesday 
would violate the statute because the required full statutory off-
duty period would not be within the 24 hours prior to any moment 
after 1 a.m. on Tuesday). In other words, in this scenario, the 
employee must no longer accrue time on duty after 1 a.m. on Tuesday.

    In discussing the Proposed Interpretation, FRA stated that the 
``fresh start'' interpretation of the law (the interpretation issued 
more than 30 years prior to the enactment of RSIA, at 42 FR 4464, Jan. 
25, 1977, which has remained FRA's interpretation since that time) may 
no longer be consistent with the plain language of the statute. By the 
terms of the statute as amended by the RSIA, a railroad may not require 
or allow a train employee to ``remain or go on duty unless that 
employee has had at least 10 consecutive hours off duty during the 
prior 24 hours.'' As explained above, under the ``fresh start'' 
interpretation, a new 24-hour period begins when an employee reports 
for duty after having had at least the minimum required off-duty period 
of 10 consecutive hours, and the 24-hour period within which the 
employee is required to have had the required off-duty period is a 
single, static prior period, looking only at the 24-hour period prior 
to when the employee goes on duty for the first time in the new duty 
tour. Accordingly, when determining if an employee may continue on duty 
(``remain on duty'') after any point in time later in the duty tour, 
FRA would not look to find the required 10-hour rest period within the 
24 hours prior to that later point in time; instead, FRA would look for 
the required rest period only during the single 24-hour period 
immediately prior to the initiation of the duty tour. The RSIA added 49 
U.S.C. 21103(e) and 21104(d), which prohibit communication with train 
employees and signal employees respectively during the 10 hour 
statutory minimum off-duty period. (FRA's interpretations of these 
provisions are discussed in Sections IV.C and V.A of this document.) 
Under the ``fresh start'' approach, since the statutory minimum off-
duty period must simply be found in the 24 hours prior to the employee 
reporting for duty, an employee whose off-duty period was longer than 
10 hours could be subject to unlimited communication once the employee 
had received the required 10 hours uninterrupted, which would reduce or 
eliminate the benefits of the requirement of an uninterrupted rest 
period.
    By contrast, under the Proposed Interpretation, FRA would instead 
look for a statutory rest period that is within each 24-hour period 
prior to any moment during the employee's duty tour. This Proposed 
Interpretation is referred to as ``continuous lookback'' or the 
```continuous lookback' approach.'' This approach would require the 
uninterrupted 10 hours to be closer to the time that the employee 
reports for a new duty tour, so that it could still be found within the 
24-hour period at any point in the new duty tour.
    Reaction to this Proposed Interpretation largely favors rejecting 
it, with BRS, BLET, UTU, AAR, and APTA lined up on one side opposing 
the proposal and several individuals and two State boards of rail labor 
unions on the other side supporting the proposal. Of the commenters 
that favor the proposed ``continuous lookback approach,'' a substantial 
number express concern over a railroad practice of repeatedly calling 
an employee as soon as he or she has met the threshold for minimum 
hours off duty, even though that employee has a scheduled assignment 
well afterwards. In so doing, commenters contend the practice prevents 
an employee from being able to rest immediately prior to his or her 
assignment and thereby increases that employee's fatigue while 
performing his or her duties. These commenters uniformly hope that the 
``continuous lookback'' approach would increase the train employees' 
and signal employees' opportunity for rest by giving them at least 10 
hours of notice prior to beginning an on-duty period and, therefore, 
enabling them to schedule their rest accordingly, though FRA believes 
this is unlikely to be the case for the reasons discussed below.
    Comments that oppose the ``continuous lookback'' interpretation are 
summarized in turn, by commenter. BRS expresses several concerns. 
First, BRS argues that the ``continuous lookback'' is overly complex, 
in that a signal employee may no longer simply look for a rest period 
ending within the 24 hours prior to starting a new duty tour. Second, 
BRS argues that because the ``continuous lookback'' approach would 
limit signal employees to working within a period of 14 hours after the 
completion of their required off-duty period, within which to 
accumulate up to the maximum of 12

[[Page 12416]]

hours on duty, the interpretation would substantially limit the ability 
of signal employees to work after their scheduled hours, including 
response to trouble calls or on rest days. Finally, BRS asserts that 
the interpretation prevents the ``emergency'' provision of the statute 
(49 U.S.C. 21104(c) (Sec. 21104(c)), i.e., permission to work up to 4 
additional hours within the 24-hour period, which was unchanged by the 
RSIA, from being effective.
    Another commenter, AAR, argues that the option of taking the 
``continuous lookback'' approach has been foreclosed through 
Congressional inaction in the face of FRA's longstanding 
interpretation. Next, AAR echoes the BRS's argument regarding the 
emergency provision in 49 U.S.C. 21104(c). Further, AAR claims that, 
because the ``continuous lookback'' approach would limit the number of 
hours available to an employee in which to accumulate time on duty 
before the statutory off-duty period is required, the approach would 
prohibit employees from working as many hours as they are permitted 
under the current ``fresh start'' interpretation, which would harm both 
management and employees in a number of ways. For example, AAR 
expresses concern that call times \3\ of greater than 2 hours and less 
than 10 hours, would prevent an employee from working a full 12 hours, 
and that increasing call times to 10 hours to avoid this problem would 
lead to unacceptable train delays. AAR also points out that the 
decreased period available for employees to accrue time on duty would 
limit the railroads' ability to make use of periods of interim release 
within a duty tour, which could mean that employees would more often 
instead have to spend a statutory off-duty period at an away-from-home 
terminal. Likewise, if the ``continuous lookback'' interpretation were 
extended to passenger railroads, AAR noted that the time available to 
work would be significantly reduced for passenger railroad employees 
working split-shifts, such that this common scheduling practice would 
not be possible in many circumstances. Finally, AAR discusses how a 
``continuous lookback'' approach would make current practices, such as 
setting back calls (either through a call-and-release or an early 
release) or calling a large number of employees to find one willing to 
take an earlier assignment, such as when an employee marks off sick, 
infeasible.
---------------------------------------------------------------------------

    \3\ ``Call time'' is the amount of prior notice that an employee 
receives from the railroad concerning when he or she must next 
report to duty. The minimum necessary call time is usually the 
subject of collective bargaining.
---------------------------------------------------------------------------

    BLET and UTU submitted a joint comment arguing that the 
``continuous lookback'' approach would negatively affect both safety 
and the financial well-being of employees. Because the Proposed 
Interpretation would include call times in the 14-hour period following 
10 hours of rest, BLET and UTU argue that railroads would be given an 
incentive to minimize call times and thereby reduce an employee's 
ability to schedule his or her rest. Employees would stand to lose 
substantial earning potential, BLET and UTU assert, because the maximum 
number of hours the employees may work would be limited to effectively 
less than the 12 consecutive or aggregate hours authorized by the 
statute, especially when taking into consideration call times, and the 
possible use of periods of interim release. The unions also assert that 
the ``continuous lookback'' approach does not resolve the problem that 
they see with railroads continually calling employees who have regular 
times to report for duty. Finally, BLET and UTU echo the concerns 
expressed by BRS and AAR that the ``continuous lookback'' approach 
would be too difficult to administer, both in terms of compliance and 
enforcement.
    APTA's comment agrees with the views expressed by BRS, AAR, BLET 
and UTU discussed above, arguing that the ``fresh start'' 
interpretation is now the only valid interpretation due to 
Congressional inaction, and repeating the argument that Sec. 21104(c), 
which deals with emergencies, would be voided by the ``continuous 
lookback'' approach.
    Commenters in favor of the ``continuous lookback'' approach note 
that an employee can be more rested if that individual has the 
information to know when he or she will next be expected to report for 
duty. The hope of these commenters is that the ``continuous lookback'' 
approach would induce railroad carriers to provide employees with a 10-
hour call time and therefore allow those employees to appropriately 
plan their rest so that they are rested immediately prior to the coming 
on-duty period. However, in light of the comments received from AAR, 
APTA, BLET, and UTU, FRA is deeply concerned that railroads would 
instead shorten call times as much as practicable in order to maintain 
flexibility in scheduling crews in spite of the ``continuous 
lookback.'' Shortened call times would leave employees in the same 
informational deficit as presently exists, but with even less of an 
opportunity to engage in strategic napping to mitigate fatigue. This 
outcome would result in more fatigue for railroad workers, and is 
therefore inconsistent with Congress's clear goal of improving railroad 
safety by reducing fatigue among railroad employees.
    Several commenters in favor of the ``continuous lookback'' further 
suggest that FRA act to prohibit railroad carriers from making optional 
duty calls to employees who do not wish to accept an assignment other 
than their regularly-scheduled assignment. That idea would require FRA 
to promulgate a new regulation, and is therefore outside the scope of 
FRA's present effort to interpret the text of the statute as most 
recently amended by the RSIA.
    As was discussed above, commenters also highlighted a number of 
implementation issues in the potential use of the ``continuous 
lookback'' interpretation. While these difficulties are not 
insurmountable, they are nonetheless important to consider. FRA has an 
interest in keeping the burden of complying with the hours of service 
laws as low as possible while achieving the safety goals mandated by 
Congress. Given the uncertain effect of the ``continuous lookback'' on 
railroad safety, FRA believes it is not currently reasonable to impose 
such a significant burden on the regulated community.
    In addition, minor changes to the statute over time also 
demonstrate Congress's acceptance of FRA's ``fresh start'' 
interpretation. In the 1978 amendments to the Hours of Service Act, 
Congress added a definition of the ``24 hour period'' within which a 
signal employee may work. The statute explicitly defined the period as 
beginning ``when an individual reports for duty immediately after he 
has had at least eight consecutive hours off duty.'' Federal Railroad 
Safety Authorization Act of 1978, Public Law 95-578, 92 Stat. 2459 
(Nov. 2, 1978). The amendment adding the language was referred to in 
the relevant committee report as ``principally * * * technical 
amendments which would have the effect of making the statute more 
certain of application.'' H.R. Rep. No. 95-1176, at 8 (1978), reprinted 
in 1978 U.S.C.C.A.N. 5499, 5505. This addition reflects Congressional 
approval of FRA's pre-existing interpretation of a parallel provision 
in the section applicable to train employees, then codified at 45 
U.S.C. 62, to apply in a similar manner. This language was stripped 
from the statute in the RSIA. This change is best understood as a 
reflection of Congress's judgment that the paragraph was redundant 
given the 1994

[[Page 12417]]

recodification's increased symmetry between the ``train employee'' 
section, now codified at 49 U.S.C. 21103, and the ``signal employee'' 
section, now codified at 49 U.S.C. 21104. The plain language continues 
to be ambiguous on the question of within which period the required 
rest time may be found. In light of FRA's longstanding and consistent 
construction of the hours of service laws as requiring rest at some 
point in the 24 hours prior to initiating an on-duty period, leaving 
that ambiguity intact signals Congressional approval for FRA's 
interpretation. Additionally, nothing in the legislative history of the 
RSIA reflects an intent to upset the existing interpretation, and the 
``fresh start'' interpretation remains a reasonable reading of the 
plain language of the statute.
    FRA has decided that these arguments against the ``continuous 
lookback'' approach discussed above merit remaining with the current 
``fresh start'' interpretation. At this time, it appears from the 
comments that the effect of a ``continuous lookback'' on safety may 
well be to increase fatigue. The proposed interpretation is therefore 
less consistent with the goals of Congress in enacting the original 
Hours of Service Act, subsequent amendments, recodification, and the 
RSIA amendments to increase railroad safety by reducing fatigue. 
Additionally, small changes to the statute support the position that 
Congress has given its imprimatur to FRA's existing ``fresh start'' 
interpretation. Finally, implementation of the ``continuous lookback'' 
at this time would be so difficult as to make the interpretation 
unjustified in light of its speculative safety benefits. For all of 
these reasons, FRA concludes that under the current circumstances, its 
longstanding interpretation of ``the prior 24 hours'' as a reference to 
a 24-hour period prior to reporting for duty, the ``fresh start'' 
interpretation, remains the most reasonable reading of the statute, and 
thus FRA will keep that interpretation in place.

B. Questions Regarding the ``Consecutive-Days'' Limitations for Train 
Employees and Requirement of 48 or 72 Hours Off Duty at the Home 
Terminal

1. What constitutes a ``Day'' for the purpose of sec. 21103(a)(4)?
    In general, Sec. 21103(a)(4) prohibits a railroad from requiring or 
allowing a train employee to go on duty or remain on duty after an 
employee has ``initiated an on-duty period each day for * * * six 
consecutive days'' until the employee has had 48 hours at his or her 
home terminal unavailable for any service for any railroad carrier. In 
limited circumstances, the employee is instead allowed to work seven 
consecutive days, but must then have 72 hours at the employee's home 
terminal unavailable for any service for any railroad carrier before 
going on duty as a train employee. Id. As presented, the word ``day'' 
is sufficiently ambiguous that the statute is unclear as to whether 
this requirement for extended rest (48 consecutive hours) is triggered 
by initiating an on-duty period on six consecutive calendar days or six 
consecutive 24-hour periods. In the Interim Interpretation IV.B.1,\4\ 
FRA stated that ``[a]lthough arguments could be made for either 
interpretation of this language, FRA interprets this provision as 
related to initiating an on-duty period on 6 or 7 consecutive calendar 
days.''
---------------------------------------------------------------------------

    \4\ 74 FR 30665, 30673 (June 26, 2009).
---------------------------------------------------------------------------

    In consideration of the comments received on this Interim 
Interpretation, the nature of the railroad industry, and additional 
fatigue considerations that have become more apparent with the 
implementation of this Interim Interpretation, FRA has determined that 
the negative consequences flowing from defining ``day'' as a calendar 
day for the purpose of Sec. 21103(a)(4) overcome the minor 
administrative benefits noted by FRA in the Interim Interpretation. 
Accordingly, for the reasons described below, effective May 29, 2012, 
FRA will construe ``day'' in this section to refer to a 24-hour period. 
Specifically, FRA will view the statutory ``day'' to be the 24-hour 
period that ends when the employee is finally released from duty and 
begins his or her statutory minimum off-duty period; any new initiation 
of an on-duty period at any point during the 24-hour period following 
the employee's prior final release will have been initiated on a day 
consecutive to the prior duty tour, which will continue the series of 
consecutive days. On the other hand, if the employee does not initiate 
an on-duty period during the 24-hour period following the employee's 
prior release, then that 24-hour period breaks the consecutiveness of 
the days in the series.
    As described above, the statutory provision requires that, when an 
employee ``has initiated an on-duty period each day for * * * 6 
consecutive days,'' that employee must have 48 hours of time off duty, 
with some exceptions allowing for a seventh consecutive day. FRA's 
Interim Interpretation of the provision established the period that 
would constitute a day for purposes of determining whether an on-duty 
period had been initiated on consecutive days as synchronized with the 
calendar day, such that each statutory day would begin and end at 
midnight. Having eliminated this reference point, FRA considered two 
options for reference points for the beginning and ending of a 24-hour 
day as related to an employee's duty tour and statutory minimum off-
duty period: Either (1) having the day begin at the initiation of the 
employee's duty tour or (2) having the day end at the conclusion of the 
employee's duty tour.
    The implication of the choice lies in what it means for initiations 
of on-duty periods to be ``consecutive'' with one another. In the 
former possible definition (where the day begins with the initiation of 
an on-duty period), the next consecutive day would begin 24 hours after 
the employee's initiation, and continue for another 24 hours, such that 
an employee's duty tours would be deemed ``consecutive'' whenever the 
initiations of the respective on-duty tours were separated by less than 
48 hours (regardless of how much of the period was time on duty, time 
off duty, or time that is neither on duty nor off duty (i.e., limbo 
time)). By contrast, in the latter possible definition (where the day 
ends with the employee's final release and the conclusion of the duty 
tour), the next consecutive day would begin at the employee's final 
release and continue for another 24 hours, such that an employee's duty 
tours would have been initiated on consecutive days when the initiation 
of an on-duty period is less than 24 hours from the employee's prior 
final release from duty.
    FRA believes both of these understandings of a 24-hour day to be 
reasonable understandings of what ``day'' means in this context. In 
choosing between the two definitions, FRA noted that the amount of time 
necessary to end a series of consecutive days if the day began with the 
initiation of an on-duty period would be highly variable. In 
particular, the length of time not on duty that would be required to 
break a series of consecutive days would range from 47 hours and 59 
minutes to 24 hours (depending on the length of the prior duty tour), 
with the peculiar result that the amount of off-duty time necessary to 
end the series would decrease as the prior duty tour length increased. 
Although the end of the consecutive day would be fixed as soon as an 
employee returned to work as 48 hours later, the variable length of 
time not initiating an on-duty period that would be required to avoid 
continuing the series of consecutive days, which

[[Page 12418]]

would not be known until the duty tour ended, would likely lead to 
employee confusion as to the application of the laws. If the day 
instead ends with the employee's final release, a period of 24 hours 
not on duty is always both necessary and sufficient to end the series 
of consecutive days, providing some level of administrative efficiency 
while avoiding the negative consequences that result from the use of a 
calendar day, that were discussed in comments on the interim definition 
of ``day'' as a calendar day.
    The vast majority of commenters, including the BLET and UTU in 
their joint comment, argue against the ``calendar day'' interpretation 
as inconsistent with existing railroad practice and harmful to railroad 
workers who will be unable to work previously acceptable schedules, 
and, as a result, they will earn less money.\5\ BLET and UTU argue that 
a 24-hour period of time off duty should be considered a break in the 
count of consecutive days, due to ``the severe effects that will flow 
from the current interim interpretation.''
---------------------------------------------------------------------------

    \5\ In contrast, in a separate comment, the Georgia State 
Legislative Board of BLET favored the ``calendar day'' 
interpretation, though its comment does not provide any additional 
detail beyond its statement of support.
---------------------------------------------------------------------------

    The economic effects of the Interim Interpretation are discussed in 
detail in a comment submitted by an individual, which includes a 
schedule of trains for one crew in Needles, CA. The schedule appears to 
demonstrate that an individual working on a regular pool job may lose 
as much as $1,140 in an average month by operation of the ``calendar 
day'' interpretation, though this chart does not take into account the 
new requirement of having 10 hours of uninterrupted rest, rather than 8 
hours of rest, as was the requirement prior to the RSIA. In addition, 
many individual commenters note that railroads grant personal leave 
``days'' as a 24-hour block of time, rather than a calendar day. Other 
commenters note that a ``day'' can refer to any continuous 24-hour 
period. Another commenter describes how railroad carriers can adjust 
call times slightly so that an on-duty period is not initiated until 
the next calendar day, thus breaking the string of consecutive days, in 
order to prevent employees from being required to have the mandatory 
rest. Commenters also express concern about how the ``calendar day'' 
interpretation impacts employees whose service falls on two calendar 
days, such that they have initiated an on-duty period on one calendar 
day, while performing substantial service on the next calendar day, in 
which they may not initiate an on-duty period, which would end the 
string of consecutive days.
    The comments, as well as FRA's oversight of compliance with the 
hours of service laws since the RSIA's effective date, also raise 
fatigue concerns with the ``calendar day'' interpretation. Railroads, 
as well as some train employees, may seek to maximize employees' 
availability to perform service by scheduling such that the employee 
never reaches the point of having initiated an on-duty period on six 
consecutive days, and, therefore, 48 hours of time off duty is never 
required. In some cases, such practices can limit cumulative fatigue by 
allowing employees to have significant amounts of time off prior to 
reaching six consecutive days initiating an on-duty period. In some 
cases, however, the calendar day interpretation allows for a break in 
the series of consecutive days by shifting an employee's initiation of 
an on-duty period relatively slightly. For example, if an employee 
would normally be available for service at 11 p.m., and had not 
previously initiated an on-duty period on that calendar day, a railroad 
may rationally decide that it is in its interest to delay calling that 
employee to report for duty, allowing that employee to report for duty 
at least an hour later, so that the employee does not initiate an on-
duty period on that calendar day, thereby restarting the count of 
consecutive days before that employee is required to have 48 hours of 
time off duty.
    Because the statutory text clearly refers to the ``initiation'' of 
an on-duty period rather than the breadth of an on-duty period, it is 
possible for an employee to be within a duty tour for the majority of a 
calendar day and yet not have initiated an on-duty period on that 
calendar day. For instance, an employee who initiates an on-duty period 
on Monday evening at 11:15 p.m., is on duty for 12 hours, and then has 
a 2-hour deadhead to final release would be finally released at 1:15 
p.m. on Tuesday afternoon. With a statutory minimum off-duty period of 
12 hours (as a result of the additional rest required by Sec. 
21103(c)(4)), such an employee could lawfully next initiate an on-duty 
period no earlier than 1:15 a.m. on Wednesday. Despite spending the 
majority of Tuesday in a duty tour for the railroad, this employee 
would be deemed to have broken his or her series of consecutive days, 
and could lawfully initiate a duty tour on at least another six 
consecutive days before being provided with the required 48 hours of 
time off duty. This consequence is all the more pernicious when 
considering that the transition from one calendar day to the next 
occurs overnight, when individuals are generally at the greatest risk 
for fatigue. The result is that the ``calendar day'' interpretation of 
Sec. 21103(a)(4) as presently written would provide the greatest 
latitude for minor changes in an employee's report for duty time to 
dramatically reduce the required rest for precisely those employees who 
are at the greatest risk for fatigue. While FRA continues to believe 
that defining ``day'' as ``calendar day'' remains reasonable in the 
abstract, these fatigue concerns, in addition to the issues described 
above, lead FRA to conclude that defining ``day'' as the 24-hour period 
measured from the time of the employee's prior final release is not 
only reasonable but preferable.
    Finally, FRA notes that the ``24-hour day'' interpretation of Sec. 
21103(a)(4) described above is distinct from the recently issued final 
rule governing the hours of service for train employees providing 
intercity and commuter passenger rail transportation (passenger train 
employees). 76 FR 50360 (August 12, 2011). The cumulative fatigue 
limitations for passenger train employees are explicitly defined such 
that the relevant series of days are ``consecutive calendar days.'' 49 
CFR 228.405(a)(3). This distinction is appropriate given the different 
structure of passenger and freight rail transportation as well as the 
specific characteristics of the passenger train employees' hours of 
service regulation. Passenger rail transportation tends to have more 
regular schedules than freight rail transportation, with many passenger 
train employees working during the day for five to six days a week. FRA 
would also expect that passenger trains would be less susceptible to 
having their schedules adjusted on an ad-hoc basis in a way that would 
affect the application of the regulation to a specific employee with 
respect to a consecutive-day limitation. Additionally, the structure of 
the passenger train employees' hours of service regulation provides 
additional rest requirements for employees working in the transition 
from one calendar day to the next. Any duty tour including time on duty 
between 8 p.m. and 4 a.m. is considered a Type 2 assignment, which 
requires a more stringent limitation on the number of days within a 
series on which an on-duty period may be initiated, unless the schedule 
is analyzed using a biomathematical model of performance and fatigue 
and is thereby shown not to present an unacceptable level of risk for 
fatigue, and the schedule otherwise meets the criteria to be a Type 1

[[Page 12419]]

assignment. In addition, any duty tour including time on duty between 
midnight and 4 a.m. is categorically a Type 2 assignment. Therefore, 
assignments that cover a period of time spanning two calendar days will 
be subject to the additional limitations of Type 2 assignments. These 
factors made the use of calendar days appropriate in the overall 
regulatory scheme for passenger train employees' hours of service, but 
do not favor the reading of ``day'' to mean calendar day in the 
statutory provision applicable to freight rail transportation.
2. What ``Work'' may an employee do on a seventh consecutive day under 
sec. 21103(a)(4)(A)?
    The statute provides that a train employee may ``work a seventh 
consecutive day'' under certain limited circumstances, and requires 
that employee to have 72 hours off duty at the employee's home terminal 
before returning to duty after ``working'' the seventh day. In Interim 
Interpretation IV.B.3,\6\ FRA asserted that Congress's choice of a 
different word (``work''), rather than continuing to use the ``initiate 
an on-duty period'' construction, implied a different meaning for that 
word, so that if an employee did not initiate an on-duty period, but 
performed other service for the carrier on the seventh consecutive day, 
after six consecutive days of initiating an on-duty period, the string 
of consecutive days would not have been broken, and the employee would 
be required to have the 72 hours off duty that would be required after 
seven consecutive days. In response to comments received on this 
Interim Interpretation, and in consideration of the confusion caused by 
this interpretation, FRA now interprets ``works'' in Sec. 
21103(a)(4)(A)(ii) to be synonymous with ``initiates an on-duty 
period.''
---------------------------------------------------------------------------

    \6\ 74 FR 30665, 30673-74 (June 26, 2009).
---------------------------------------------------------------------------

    The BLET and UTU joint comment argues against the Interim 
Interpretation that considered ``work'' as a different word with a 
different meaning. The unions assert that, because time spent 
deadheading from a duty assignment to the point of final release is 
neither time on duty nor time off duty, FRA's including such 
deadheading in the definition of ``work'' is inconsistent with the 
clear statutory provision, at 49 U.S.C. 21103(b)(4) (unchanged by the 
RSIA) defining ``time spent in deadhead transportation from a duty 
assignment to the place of final release'' as ``neither time on duty 
nor time off duty.'' Thus, BLET and UTU contend that if the only 
service an employee performs on the seventh consecutive day is 
deadheading, separate from any covered service, the string of 
consecutive days should be broken, just as it would if the deadhead 
transportation had occurred on the sixth consecutive day \7\ or any 
other day in the sequence of consecutive days. The comment also notes 
FRA's admission of construction problems in other portions of the 
statute.\8\ Finally, the comment claims that this interpretation leads 
to absurd results when combined with Interim Interpretation IV.B.6,\9\ 
which allows rest at an away-from-home terminal to break 
consecutiveness and thereby require only 48 hours of rest after a 
deadhead home. The Georgia Legislative Board of the BLET concurs, 
arguing that such deadheading should categorically not be counted as a 
``day'' for the purpose of this section.
---------------------------------------------------------------------------

    \7\ BLET and UTU point out that FRA acknowledged this outcome on 
the sixth consecutive day in the interim interpretations. 74 FR 
30665, 30673 (June 26, 2009).
    \8\ Specifically, the comment refers to the fact that the 
language of the statute would not allow an employee to be deadheaded 
back to his or her home terminal, if that employee had exceeded the 
276-hour monthly cap in 49 U.S.C. 21103(a)(1), which includes time 
spent awaiting and in deadhead transportation from a duty assignment 
to the place of final release.
    \9\ 74 FR 30665, 30674 (June 26, 2009).
---------------------------------------------------------------------------

    Despite the interpretive canon that statutes should be construed 
with attention to Congress's choice to use different words in the same 
statute, FRA concludes, for the reasons described in this section, that 
to ``work'' and to ``be on duty'' are sufficiently related concepts to 
infer that Congress chose the former over the latter out of stylistic 
preference (to avoid repetitive language) and not to adjust the 
substantive scope of the provision. This reading of the text preserves 
the parallelism between Sec. 21103(a)(4)(A)(i) and subsection (a)(4) 
generally, in that subsection (a)(4)(A)(i) allows an employee to 
``work'' a seventh consecutive day notwithstanding subsection 
(a)(4)(A)'s rest requirement after initiating an ``on duty period'' for 
the prior six consecutive days. This interpretation of the text is also 
supported by FRA's interest in avoiding a needlessly complex reading of 
the statute. FRA notes that there has been confusion among railroads 
and employees, about the fact that under the Interim Interpretation, 
deadheads were treated differently on different days.
3. Does a day spent deadheading, with no other covered service 
performed on that day, constitute an ``Initiation of an On-Duty 
Period'' for the purposes of sec. 21103(a)(4)?
    In order for an employee to be required to have 48 consecutive 
hours off duty at the employee's home terminal, that employee must 
first have initiated an on-duty period each day for six consecutive 
days. Several commenters express concerns over how this language will 
be interpreted with regard to days on which the only service performed 
for the carrier is deadhead transportation. Because such time is not 
time on duty, it cannot be considered the ``initiation of an on-duty 
period'' and therefore does not independently count toward the 
continuation of a series of consecutive days.
    The statute defines two types of deadheading relating to time on 
duty as a train employee. In Sec. 21103(b)(4), the hours of service 
laws establish that time spent in deadhead transportation to a duty 
assignment, i.e. a ``deadhead to duty,'' is time on duty, but that 
deadhead transportation from a duty assignment to the place of final 
release, i.e., ``deadhead from duty,'' is neither time on duty nor time 
off duty. However, because these definitions are only in reference to 
determining time on duty, the statute is silent about a third type of 
deadheading, where the deadhead transportation is separated from any 
covered service by at least a statutory minimum off-duty period both 
prior to and following the deadhead transportation. Such ``stand-alone 
deadheads'' are not time on duty as an employee in such a deadhead is 
not engaged in or connected with the movement of a train, nor is the 
time spent in such deadhead transportation within the same 24-hour 
period as other covered service with which it could commingle.
    The Nebraska State Legislative Board of the UTU argues that FRA's 
understanding of deadheading as not ``initiating an on-duty period'' 
for the purpose of Sec. 21103(a)(4) is inconsistent with the intent of 
the RSIA, and therefore should be replaced by a regulation that 
classifies all deadheading as time on duty and therefore prevents a 
railroad from deadheading an employee to break the contiguousness of 
workdays. Individuals commenting on the matter agree, arguing that 
permitting deadheading to interrupt the counting of consecutive days 
will allow railroads to strategically use deadheading to prevent train 
employees from having a day off; however, the promulgation of new

[[Page 12420]]

regulations is outside the scope of this interpretation.
    The lone commenter speaking to the issue and arguing against 
considering deadheading to count as initiating an on-duty period, the 
Georgia State Legislative Board of the BLET notes that the definition 
of ``time on duty'' in the statute categorically excludes deadheading 
to a place of final release, and therefore would preclude FRA from 
considering deadheading that is the only service performed on a given 
day to count as initiating an ``on-duty period.''
    FRA will continue to apply its longstanding interpretation of 
deadheading that commingles with a period of covered service, which is 
consistent with the language of the statute at 49 U.S.C. 21103(b)(4). 
If an employee deadheads to duty at the beginning of a duty tour, time 
spent in the deadhead is time on duty, and therefore the beginning time 
of the deadhead to duty constitutes the initiation of an on-duty period 
for the purposes of Sec. 21103(a)(4). In contrast, where an employee 
deadheads to a point of final release as the last activity in a duty 
tour, the deadhead remains neither time on duty nor time off duty. 
However, because the deadhead follows other service within the duty 
tour, the employee would necessarily have initiated an on-duty period 
earlier that day when beginning to perform covered service or 
commingled service.
    In circumstances where an employee has a stand-alone deadhead, 
there must necessarily be no time on duty associated with the deadhead 
transportation; if there were time on duty not separated from the 
deadhead by at least a statutory minimum off-duty period, the deadhead 
would therefore have to be either a deadhead to duty or a deadhead from 
duty. Because stand-alone deadhead transportation is most comparable to 
other service outside the definition of covered service, the time spent 
in stand-alone deadhead transportation will be treated as any other 
non-covered service for the carrier, and therefore will not constitute 
the initiation of an on-duty period under Sec. 21103(a)(4) when not 
commingled with covered service. In light of FRA's interpretation in 
section IV.B.2, above, such stand-alone deadheads will be treated 
consistently, as breaking the continuity of the consecutive days, 
regardless of the day in the string of consecutive days on which the 
deadhead occurs.
4. Does the initiation of an on-duty period incident to an early 
release qualify as an initiation for the purposes of sec. 21103(a)(4)?
    Yes. The statute provides (unchanged by the RSIA) that ``[t]ime on 
duty begins when the employee reports for duty, and ends when the 
employee is finally released from duty.'' 49 U.S.C. 21103(b)(1). 
Consistent with this language, longstanding FRA interpretations provide 
that, if a railroad calls an employee to report to perform covered 
service and the employee reports for that covered service assignment, 
the act of reporting is itself time on duty. Federal Railroad 
Administration, Hours of Service Interpretations, Operating Practices 
Technical Bulletin OP-04-29 (Feb. 3, 2004). It follows that a train 
employee who reports for duty but is then released before performing 
any substantial duties is still considered to have accrued time on 
duty. Accordingly, as FRA stated in the Interim Interpretation, such an 
employee has ``initiated an on-duty period'' under Sec. 21103(a)(4). In 
the case where an employee is released from the call to perform duty 
(that is, the employee is no longer expected to report for duty at the 
previously established report time) prior to the time that the employee 
is scheduled to report, then the employee has not reported, regardless 
of whether the employee is at the location to which he or she was 
called to report, and, if the employee has not performed any covered 
service, the employee will not have accrued any time on duty or 
initiated an on-duty period.\10\ FRA sees nothing in the statute that 
would support a change in this interpretation. As a result, an employee 
who reports for duty and is immediately released has initiated an on-
duty period, and that duty tour will not end until the employee is 
finally released to a statutory minimum off-duty period.
---------------------------------------------------------------------------

    \10\ 74 FR 30665, 30673 (June 26, 2009).
---------------------------------------------------------------------------

    The BLET and UTU joint comment notes a supposed consequence of 
FRA's longstanding interpretation of the statute. On days one through 
five, an employee would be considered to have initiated an on-duty 
period for that day, regardless of whether the employee actually 
performed covered service. On day six or seven, the comment argues, a 
train employee who reports for duty to perform covered service and is 
released from duty shortly thereafter would not have the opportunity to 
be called to perform additional service within that 24-hour period, 
because of the requirement for 48 or 72 hours of rest. The comment 
implicitly raises the issue of when the 48 or 72 hours of rest would 
begin for employees who have an early release after initiating an on-
duty period on their sixth or seventh consecutive day.
    The unions seek an interpretive rule that would not further limit a 
train employee's availability under the law to work, on the grounds 
that such extended rest is not warranted due to the minimal amount of 
time spent on duty on the sixth consecutive day. The unions argue, as 
does the Georgia State Legislative Board of BLET, that it is 
``manifestly unjust'' for a train employee to be forced into the 48 or 
72 hours of mandatory rest after an on-duty period lasting only 
minutes. Instead, they hope for FRA to interpret ``initiate an on-duty 
period'' not to include a small period of duty time. The joint BLET/UTU 
comment notes that in these situations, ``little if any covered service 
is actually performed, except, perhaps, for a limited amount of 
administrative duties.''
    The unions are correct that the language of Sec. 21103(a)(4) could 
be read to prohibit a railroad from requiring or allowing an employee 
to return to work after an early release on his or her sixth 
consecutive day of initiating an on-duty period, unless the employee 
has had 48 consecutive hours off duty unavailable for any service for 
any railroad carrier. If FRA were to take a very literal reading of 
Sec. 21103(a)(4), then if a train employee is immediately released 
after initiating an on-duty period for a sixth consecutive day, the 
train employee would not be allowed to return to duty until the 48-hour 
rest requirement had been fulfilled. FRA believes that this is 
obviously not the proper reading of the statute.
    As was noted above, Sec. 21103(b)(1), which defines time on duty 
generally, provides that ``[t]ime on duty * * * ends when the employee 
is finally released from duty.'' (Emphasis added.) In addition, Sec. 
21103(a)(4)(A)(i) allows an employee to ``work a seventh consecutive 
day if that employee completed his or her final period of on-duty time 
on his or her sixth consecutive day at a terminal other than his or her 
home terminal.'' This would not be possible if the 48 hours off duty 
were required immediately after the initiation of an on-duty period on 
the sixth consecutive day. The plain language of the statute clearly 
permits an employee to perform service on his or her sixth consecutive 
day, demonstrating that the very literal interpretation is flawed. As 
demonstrated by Congress's treatment of the provision, the other 
statutory

[[Page 12421]]

language, and the interpretation of all commenters, the restriction of 
Sec. 21103(a)(4) does not apply until the employee is finally released 
from duty; that is, an employee may continue to perform covered service 
until the end of the relevant duty tour, including any periods of 
interim release (because, during an interim release, the employee is 
not ``finally'' released from duty). Having established when the 
extended-rest requirement is activated, an employee subject to an early 
release may return to work without violating Sec. 21103(a)(4) so long 
as he or she has not ``finally'' been released from duty. If the 
employee returns to work, whether in a single period of time on duty or 
after an interim release period, that employee has not been ``finally'' 
released from duty and, therefore, is not yet subject to the extended-
rest requirement. When the employee is finally released from duty, the 
employee must be given the statutory minimum off-duty period (normally, 
10 consecutive hours) as well as the extended-rest period, both of 
which will begin to run concurrently.\11\
---------------------------------------------------------------------------

    \11\ In a separate future publication in which FRA adopts 
several new interim interpretations and requests comment on the new 
interim interpretations, FRA plans to include a more detailed 
discussion of the idea of that multiple required off-duty periods 
run concurrently as opposed to consecutively.
---------------------------------------------------------------------------

    With respect to the request for an exception for employees who 
perform little covered service after reporting for duty, these 
employees will continue to be considered to have initiated an on-duty 
period, even if they did not perform any substantial amount of covered 
service within that period. Time on duty begins when an employee 
reports for duty; therefore, when an employee reports for a covered 
service assignment as a train employee, he or she has reported for 
duty, thus initiating an on-duty period, even if he or she does not 
perform any additional covered service in that on-duty period. 
Accordingly, the amount of covered service performed within the period 
is irrelevant for determining whether the employee initiated an on-duty 
period.
5. If an employee is called for duty but does not work, has the 
employee initiated an on-duty period? If there is a call and release? 
What if the employee has reported?
    As discussed above, an employee only initiates an on-duty period if 
the employee accrues time on duty. As such, if the employee is called 
for duty but does not report, such as if the employee is released prior 
to the report time in a call and release, the employee has not 
initiated an on-duty period. However, if the employee has reported for 
duty, the employee has accrued time on duty and therefore has initiated 
an on-duty period.
6. Does an employee's performance of ``Other Mandatory Activity for the 
Carrier'' that is not covered service ever count as the initiation of 
an on-duty period under sec. 21103(a)(4)?
    Yes, but only if the non-covered service commingles with covered 
service. In Interim Interpretation IV.B.4, FRA asked the question, 
``Does Attendance at a Mandatory Rules Class or Other Mandatory 
Activity That Is Not Covered Service But Is Non-Covered Service, Count 
as Initiating an On-Duty Period on a Day?'' FRA answered that question 
in the negative, but did note if this non-covered service were to 
commingle with covered service (meaning it was not separated from 
covered service by a statutory minimum off-duty period) then initiation 
of the non-covered service activity would qualify as initiation of an 
on-duty period, because the commingled service, in this case, becomes 
time on duty.\12\
---------------------------------------------------------------------------

    \12\ 74 FR 30665, 30674 (June 26, 2009).
---------------------------------------------------------------------------

    The Nebraska State Legislative Board of the UTU expresses concern 
that, by not counting as a ``day'' attendance at mandatory rules 
classes or other similar mandatory activity that is non-covered service 
for the purposes of determining whether a train employee initiated an 
on-duty period, train employees may be required to participate in a 
rules class for several hours and then immediately be pressed into 12 
hours of covered service.
    The above-described scenario is not an implication of not counting 
``other mandatory activity'' as ``initiating an on-duty period'' under 
Sec. 21103(a)(4), and is not permissible under the hours of service 
laws, neither as they existed before the RSIA, nor as amended by the 
RSIA. The commenter appears to be under the impression that, by not 
treating non-covered service as an ``initiation'' for the purposes of 
Sec. 21103(a)(4), that implies that time spent in non-covered service 
does not commingle with covered service if not separated from it by at 
least a statutory minimum off-duty period; however, this is not the 
case. As stated in the Interim Interpretations, the commingling of 
covered and non-covered service continues to function as it did prior 
to the RSIA. This interpretation, that attendance at a rules class, or 
other non-covered service may break a string of consecutive days, will 
only apply if an employee has a statutory minimum off-duty period 
between the non-covered service and the covered service both preceding 
and following it, meaning that there is no covered service to commingle 
with the non-covered service; in such a situation, the non-covered 
service would not constitute the initiation of an on-duty period 
because no ``time on duty,'' as defined in Sec. 21103(b), was incurred. 
However, when there is not a statutory minimum off-duty period between 
non-covered service and covered service, the non-covered service 
commingles and is time on duty that can be considered as an initiation 
of an on-duty period.
7. How much rest must an employee have after initiating an on-duty 
period for six consecutive days, if permitted to do so for seven 
consecutive days by sec. 21103(a)(4)(B)?
    As a general rule, Sec. 21103(a)(4) allows a train employee to 
initiate an on-duty period on only six consecutive days. However, Sec. 
21103(a)(4)(B) (Subparagraph (B)) allows an employee to initiate an on-
duty period on a seventh consecutive day under limited circumstances as 
provided in clauses (i) through (iii) of Subparagraph (B). The 
structure of the statute does not make it readily apparent to some 
readers how Subparagraph (B) interacts with Sec. 21103(a)(4)(A) 
(Subparagraph (A)). FRA reads these subparagraphs to apply jointly, so 
that a train employee who is permitted to initiate on-duty periods on 7 
consecutive days must have 48 hours of time unavailable for any service 
for any railroad carrier if that employee instead initiates on-duty 
periods on only 6 consecutive days.
    One commenter expresses concern over the interaction between 
Subparagraphs (A) and (B). He argues that employees who meet one of the 
conditions in Subparagraph (B)(i)-(iii) are exempt from Subparagraph 
(A) and, therefore, may work six consecutive days without being 
required to receive 48 hours off.
    Congress did not specifically indicate whether Subparagraph (B) is 
intended to be an additional rule alongside Subparagraph (A), or 
instead is a replacement for Subparagraph (A) when Subparagraph (B) is 
applicable. The comment asserts that, because Subparagraph (B) does not 
specifically apply Subparagraph (A) to those employees who are 
permitted to initiate an on-duty period on a seventh consecutive day, 
the two were intended to be construed as distinct alternative regimes. 
The statute does, however, contain some language suggesting both 
provisions should apply in parallel. In addition, nothing in the 
legislative

[[Page 12422]]

history demonstrates an intention for Subparagraph (B) to trump 
Subparagraph (A), and policy considerations support the application of 
both subparagraphs to individuals.
    Had Congress intended for Subparagraph (B) to be an exception from 
Subparagraph (A), the effect of Subparagraph (B) could be to allow 
employees to initiate six consecutive on-duty periods without requiring 
a 48-hour mandatory rest period (sometimes referred to as a ``6/1 
schedule''), as well as allowing those employees to work a seventh 
consecutive day with a longer mandatory rest period to follow before 
returning to train service as provided by the statute. Congress 
specifically included a separate waiver process in Sec. 21103(a)(4), 
suggesting that Subparagraph (B) should be read as something other than 
an exemption from the general rule of Subparagraph (A), and in some 
instances FRA has used this waiver authority to allow employees to 
initiate an on-duty period on six consecutive days followed by one day 
free of initiation of an on-duty period. In addition, the introductory 
clause of Subparagraph (B) (``except as provided in subparagraph (A)'') 
contemplates both paragraphs applying to individual employees, by 
allowing some individuals to initiate a seventh consecutive day despite 
not meeting the requirements of Subparagraph (B). The clause would not 
be necessary if the statute were structured with Subparagraphs (A) and 
(B) as mutually exclusive.
    The paragraph structure of the statute could instead be viewed as a 
basis for reading their ``or'' disjunction as exclusive, meaning that 
only one subparagraph or the other could apply to a single employee, 
but not both, but this argument is unpersuasive. While there may have 
been more straightforward ways of structuring the requirements of 
Subsection (a)(4), the structure is consistent with the style of 
Subsection (a) of Sec. 21103 as a whole. While Subparagraphs (A) and 
(B) (in Section 21103(a)(4)) are certainly more complicated than 
Subsection (a)(1)(A) through (C), the logical arrangement of the 
disjunction is the same. In both, related statements are split into 
multiple subparagraphs, joined by the word ``or.'' It is readily 
apparent that the types of service listed in Subsection (a)(1)(A) 
through (C) are not mutually exclusive; for instance, counting time on 
duty as part of the 276-hour limit does not prevent also counting time 
waiting for deadhead transportation as part of that limit. 
Subparagraphs (A) and (B), despite their additional complexity, should 
be read similarly. This understanding is furthered by stripping the 
separate paragraphs of their designations and then combining their text 
into the one extremely long sentence that they comprise. That sentence 
reads, in relevant part, ``a railroad carrier * * * may not require or 
allow a train employee to * * * remain or go on duty after that 
employee has initiated an on-duty period each day for 6 consecutive 
days, unless that employee has had at least 48 consecutive hours off 
duty * * * or, except as provided in subparagraph (A), 7 consecutive 
days, unless that employee has had at least 72 consecutive hours off 
duty * * *.'' When read in context, the clauses lend themselves to an 
inclusive disjunction (including one of the subparagraphs, the other, 
or both) rather than exclusive disjunction (either one of the 
subparagraphs or the other, but not both), indicating that both clauses 
may apply to a single individual.
    Considering all of these factors, the most reasonable reading of 
the statute is that Sec. 21103(a)(4)(A) continues to apply to a train 
employee who is permitted to initiate seven consecutive on-duty periods 
by Sec. 21103(a)(4)(B). Therefore, any train employee who initiates six 
consecutive on-duty periods will be required to have had at least 48 
hours unavailable for any service for any railroad carrier at the 
employee's home terminal before being allowed to go on duty again as a 
train employee, though a train employee in certain circumstances is 
permitted to initiate a seventh consecutive on-duty period and 
afterwards must have 72 hours unavailable for any service for any 
railroad carrier at the employee's home terminal before returning to 
duty as a train employee.
8. How are initiations of on-duty periods for multiple railroad 
carriers treated under sec. 21103(a)(4)?
    Prior to the RSIA, the hours of service laws did not restrict, in 
any way, an employee's activities during periods of off-duty time. 
Thus, FRA did not have the statutory authority to penalize either a 
railroad, or an employee, if an employee worked at a second job during 
his or her statutory off-duty period. The employee was not required 
under the hours of service laws to report time spent in the second job 
to the railroad, regardless of whether the second job was for another 
railroad, or outside the railroad industry, and the railroad was only 
responsible for ensuring that the employee did not perform service for 
the railroad during the required statutory off-duty period. FRA 
recommended legislative amendments to address situations of dual 
employment, but they were not adopted.\13\
---------------------------------------------------------------------------

    \13\ On April 1, 1998, the Secretary submitted to the 105th 
Congress proposed legislation entitled the Federal Railroad Safety 
Authorization Act of 1998, which included provisions that would 
amend the hours of service laws to address train, signal, and 
dispatching service employees employed by more than one railroad. 
The legislation was introduced by request in the House of 
Representatives on May 7, 1998 as H.R. 3805 and in the Senate as S. 
2063 on May 12, 1998, and was not adopted. On July 26, 1999, the 
Secretary submitted to the 106th Congress proposed legislation 
entitled the Federal Railroad Safety Authorization Act of 1999, 
which also included provisions on such dual employment. This 
legislation was never introduced and lapsed at the end of that 
Congress.
---------------------------------------------------------------------------

    The RSIA did not change the application of the hours of service 
laws to employees working for multiple railroads, except as to the 
provision that it added to the statute requiring an extended off-duty 
period of 48 hours after an employee has initiated an on-duty period 
for six consecutive days. Section 21103(a)(4) specifies that during the 
48- or 72-hour off-duty period at the employee's home terminal, ``the 
employee is unavailable for any service for any railroad carrier.'' The 
language indicating that the employee must be unavailable for any 
service for any railroad carrier was not added to any of the other 
periods of off-duty time provided for in the statute.
    AAR, in its comment, requests that FRA clarify the hours of service 
reporting and recordkeeping obligations as to service performed for 
other railroads, arguing that only service performed for other 
railroads during the extended rest period required by Sec. 21103(a)(4) 
needs to be reported. In addition, one individual commenter asks 
whether an employee will be required to provide information to each 
railroad for which he or she performs service, regarding consecutive 
days of covered service or service towards the 276-hour monthly 
limitation. Another individual commenter asks if a train employee may 
indefinitely work a schedule of five days for one railroad carrier and 
two days for a different railroad carrier.
    With respect to the reporting and recordkeeping requirements for 
service for other railroads, FRA disagrees with AAR's statement that 
information on service for other railroads is ``irrelevant from the 
perspective of railroad compliance with the hours-of-service 
requirements.'' The hours of service laws impose duties directly on 
railroad carriers and their officers and agents; ``a railroad carrier 
and its officers and agents may not require or allow a train employee'' 
to go or remain on duty in the circumstances stated in the statute

[[Page 12423]]

and unless the stated conditions are met. Sec. 21103(a). In order to 
comply with the hours of service laws, a railroad must inquire of each 
of its train employees as whether he or she has performed any service 
for any other railroad, during any 48 or 72 hours between the 
employee's final release from the duty tour triggering the rest 
requirement and the next time the employee reports for duty as a train 
employee.
    If a railroad does not seek to collect information from its 
employees indicating when they perform service for other railroad 
carriers, that railroad will be unable to fulfill its obligation not to 
require or allow an employee who has initiated on-duty periods on six 
or seven consecutive days to remain or go on duty without the 48 or 72 
hours free of any service for any railroad. Therefore, as indicated in 
the Interim Interpretations, ``[i]t will be the responsibility of the 
railroad to require employees to report any service for another 
railroad. It will be the responsibility of the employee to report to 
inform each railroad for which the employee works of its service for 
another railroad.'' \14\
---------------------------------------------------------------------------

    \14\ 74 FR 30665, 30674 (June 26, 2009).
---------------------------------------------------------------------------

    With regard to the question of whether employees will be required 
to provide information to each railroad for which they perform service, 
regarding consecutive days of covered service or service counted toward 
the 276-hour monthly limitation, as FRA stated in the Interim 
Interpretation, ``[t]he employee will be required to record service for 
Railroad A on the hours of service record for Railroad B, and vice 
versa.'' \15\
---------------------------------------------------------------------------

    \15\ Id.
---------------------------------------------------------------------------

    However, as also indicated in the Interim Interpretations, FRA will 
only consider enforcement action for excess service where service for 
another railroad is performed during the 48 or 72 hours off duty that 
an employee must receive after initiating an on-duty period each day 
for six or seven consecutive days, because the hours of service laws do 
not address service for another carrier during the other required off-
duty periods.\16\ For this reason, when an employee chooses of his or 
her own volition to perform covered service as a train employee for 
multiple railroads, the only time the service for the second railroad 
will be relevant to the first (and vice versa) will be when that 
employee reaches six or seven consecutive days of initiating an on-duty 
period for one railroad.
---------------------------------------------------------------------------

    \16\ Id.
---------------------------------------------------------------------------

    Therefore, an employee would not need to provide a cumulative total 
of time spent on multiple railroads for the purpose of compliance with 
the 276-hour monthly limitation. Likewise, an employee whose schedule 
required him to work five days followed by two days off could choose to 
work for another railroad during the two days off, because the employee 
had not yet initiated an on-duty period on six consecutive days, which 
would require a period of 48 hours during which the employee is 
unavailable for any service for any railroad carrier. Because the 
statute does not address employees working for multiple railroads, 
except during the required extended-rest period of 48 hours, it would 
not prohibit an employee's choice to work for a second railroad during 
off duty periods prior to triggering the extended rest requirement.
    Finally, it should be noted that the statutory provision on hours 
of service civil penalties (49 U.S.C. 21303(a)(1)) provides that ``[a]n 
act by an individual that causes a railroad carrier to be in violation 
is a violation.'' An employee of Railroad A who works for Railroad B as 
a train employee during the required 48- or 72-hour rest period and who 
then goes on duty as a train employee for Railroad A causes Railroad A 
to be in violation of Sec. 21103(a)(4) and is individually liable for 
causing the violation by Railroad A and therefore subject to 
enforcement actions, including disqualification from safety-sensitive 
service if the violation is found to demonstrate that the individual is 
unfit for such service. See 49 CFR part 209, appendix A. If the 
employee willfully caused the railroad to be in violation, the employee 
would be subject to liability for a civil penalty. 49 U.S.C. 21304. 
Additionally, an employee may be held individually liable for willful 
failures to maintain accurate hours of service records under 49 CFR 
228.9 and 228.11, including records documenting service for multiple 
railroads.
9. Does an employee ``Deliberately Misrepresent His or Her 
Availability'' simply by reporting for duty on a consecutive day in 
violation of sec. 21103(a)(4)?
    In the Interim Interpretations, FRA states that, in general, an 
employee will not face enforcement action from FRA for accepting a call 
to report for duty when the employee knows he or she is close to the 
276-hour monthly limitation on service and may not have sufficient time 
remaining to complete the assignment or duty tour. This enforcement 
policy does not apply, however, where there is ``evidence that the 
employee deliberately misrepresented his or her availability.'' \17\ In 
its comment, AAR asks that FRA hold employees jointly responsible for 
violating the hours of service laws when accepting a call to report in 
excess of the ``consecutive-days'' limitations. FRA declines to adopt 
AAR's proposal.
---------------------------------------------------------------------------

    \17\ 74 FR 30665, 30675 (June 26, 2009).
---------------------------------------------------------------------------

    Given that FRA's enforcement policy with regard to its hours of 
service recordkeeping regulations allows railroads to keep data related 
to the limitations on consecutive days, monthly service, and limbo time 
in a separate administrative ledger, rather than tracking the 
information daily on the record for each individual duty tour, 
railroads are in the best position to know whether or not an employee 
may report for duty. In addition, an employee who refused to report for 
duty when called to do so could be subjected to discipline by the 
railroad, if, for example, the employee incorrectly calculated or 
misunderstood the application of the provision to his or her current 
sequence of consecutive days, and believed that the statute prohibited 
the employee from reporting for duty. Furthermore, while the penalty 
provision of the hours of service laws provides for individual 
liability in violations of the hours of service laws, the substantive 
restrictions operate on ``a railroad carrier and its officers and 
agents.'' Employees have the obligation to provide accurate information 
to railroads regarding their service, and FRA will consider action as 
appropriate under the agency's Statement of Agency Policy Concerning 
Enforcement of the Federal Railroad Safety Laws, 49 CFR part 209, 
appendix A, when employees fail to meet this obligation. Nonetheless, 
simply reporting for duty is insufficient to demonstrate that an 
employee ``deliberately misrepresented his or her availability.''

C. Questions Regarding the Prohibition on Communication by the Railroad 
With Train Employees and Signal Employees

    In addition to increasing the statutory minimum off-duty period for 
train employees and signal employees to 10 hours, the RSIA requires 
that those 10 hours be uninterrupted by communication from the railroad 
by telephone, pager, or in any other way that could reasonably be 
expected to disrupt the employee's rest, except to notify an employee 
of an emergency situation. 49 U.S.C. 21103(e) (Sec. 21103(e)); 49 
U.S.C. 21104(d) (Sec. 21104(d)). This requirement also applies to the 
interim releases of train employees. In addition, when a train

[[Page 12424]]

employee's statutory minimum off-duty period is longer than 10 hours as 
a result of time on duty and limbo time in excess of 12 hours, the 
additional time off duty is also subject to the prohibition.
1. Does the prohibition protect employees from any communication for 
the entirety of the off-duty period?
    A number of comments express concern that, despite the new 
requirement that the statutory minimum off-duty periods for train 
employees and signal employees, and any period of interim release for 
train employees, must be free from communication likely to disturb 
rest, railroads may persist in repeatedly contacting the employee and 
disrupting the employee's rest.
    The statute establishes that time off duty only qualifies as a 
statutory minimum off-duty period or period of interim release when the 
required minimum time is undisturbed. Because the statute does not 
require the statutory minimum off-duty period or interim release to be 
so designated in advance, the result is that an employee needs only 10 
hours or more of time off duty and undisturbed by railroad 
communications at any point in the 24 hours prior to reporting for duty 
in order to be in compliance with the hours of service laws. 
Accordingly, a railroad may communicate with the employee at times 
between the end of the statutory minimum off-duty period and the 
initiation of the employee's on-duty period without violating the hours 
of service laws. FRA is aware that such practices may contribute to 
employee fatigue, and expects railroads to exercise discretion when 
contacting employees in this intermediate period. The RSIA provided FRA 
with limited regulatory authority, which FRA may consider exercising if 
substantial scientific evidence demonstrates that such communication is 
posing an unacceptable risk to railroad safety from employee 
fatigue.\18\
---------------------------------------------------------------------------

    \18\ As will be discussed below, a railroad may contact an 
employee in certain limited circumstances even during the portion of 
an off-duty period that is required to be undisturbed.
---------------------------------------------------------------------------

2. Is it a violation for a railroad to intentionally call an employee 
to delay that employee's ability to report for duty?
    No, provided that the employee at some point has at least a 
statutory minimum off-duty period that is free from communication, 
before being required to report for duty. So long as an employee 
receives a statutory minimum off-duty period in the 24 hours prior to 
reporting for duty, communications outside of that period do not 
violate the prohibition on communication. Accordingly, it is not a 
violation for a railroad to contact an employee during other periods, 
as discussed above. The BLET and UTU joint comment argues that 
intentionally calling an employee in order to disrupt his or her off-
duty period and require a new period to start violates Sec. 21103(e). 
As discussed above, only the statutory minimum off-duty period and 
periods of interim release for train employees are required to be 
uninterrupted by communications likely to disturb rest. Because the 
statutory minimum off-duty period does not need to be designated as 
such, the hours of service laws are not violated by these types of 
calls. For example, if an employee is called 8 hours after being 
released from duty, the statute will not be violated, but the employee 
must be provided 10 or more hours off duty (depending on the minimum 
statutory off duty period required for the employee) without such 
communication, beginning at the time the contact ended, to successfully 
complete a statutory off duty period and prevent any future activity 
for the railroad from commingling with the previous duty tour . If 
situations arise in which employees believe that a railroad is 
intentionally contacting an employee so that the employee's rest will 
have to be restarted (which restart delays the employee's eligibility 
to report for duty, increases the required off-duty period, and 
decreases the employee's income), such issues are a matter to be 
resolved between railroads and their employees through other 
mechanisms. So long as the rest period is restarted and the employee 
has 10 hours of uninterrupted rest before being called to report for 
duty, there is no violation of the statute.
3. For what purposes may an employee contact a railroad during the 
uninterrupted rest period?
    In the Interim Interpretations, FRA stated that employees may 
choose to contact the railroad during the uninterrupted rest period, 
but that the railroad may only respond to the issues raised by the 
employee. However, FRA also flatly stated that railroads may not 
contact employees to delay an employee's assignment, with no reference 
to the preceding exception.\19\ In their joint comment, BLET and UTU 
ask FRA to resolve the apparent contradiction between these two 
interpretations.
---------------------------------------------------------------------------

    \19\ 74 FR 30665, 30672 (June 26, 2009).
---------------------------------------------------------------------------

    FRA recognizes that the prohibition extends to communication by the 
railroad, not to communication by the employee. Therefore, FRA 
concludes that an employee may contact a railroad about any issue, 
including issues related to establishing or delaying a time for the 
employee to report, without the communication from the employee 
interrupting the rest period. In addition, a railroad may return the 
employee's call, if requested to do so by the employee, for the 
employee's convenience and to prevent the employee having to make 
repeated phone calls; these calls also do not interrupt the employee's 
rest period. However, any return phone call made by the railroad must 
be limited to the terms established by the employee. For example, an 
employee may indicate when he or she wishes to be called back (such as, 
within the next hour, or, in 6 hours, if the employee were planning to 
go to sleep and preferred to have the return call after waking up). 
Further, absent an emergency, the return call must be limited to the 
subject of the employee's call. For example, if an employee calls 
during the statutory minimum off-duty period to schedule a vacation 
day, the railroad returns that call, and the railroad raises an issue 
not discussed by the employee, such as establishing a report for duty 
time, the employee's rest period has been interrupted, and the employee 
must have a new statutory minimum off-duty period in order to separate 
any subsequent service from the prior duty tour.
    Additionally, the time spent in calls that do not interrupt the 
off-duty period as described above will not be time off duty and may 
commingle with a prior or subsequent duty tour if the content of the 
call is service for the railroad carrier. For instance, a call from an 
employee discussing the circumstances of the on-duty injury of one of 
his or her crewmembers is considered service for the railroad carrier, 
and therefore is service that is not time off duty and may commingle 
with a prior or subsequent duty tour. See Federal Railroad 
Administration, Hours of Service Interpretations, Operating Practices 
Technical Bulletin OP-04-29 (Feb. 3, 2004). To avoid having the time 
spent on the call commingling and therefore becoming time on duty, the 
employee must have a statutory minimum off-duty period between the call 
and any time on duty.
    FRA has historically recognized that some types of communication 
between a railroad and an employee are ``at the behest of the 
railroad'' and are therefore properly considered to be service for the 
carrier that is not time off duty. In recognition of the realities of 
railroad

[[Page 12425]]

operations and the desirability of maximizing the employee's ability to 
know his or her next reporting time and therefore that employee's 
ability to plan his or her rest during the off-duty period, FRA has 
also provided an exception from this general rule for calls to 
establish or delay an employee's time to report. In enforcing the new 
prohibition on communication by the railroad with train employees and 
signal employees during certain of their off-duty periods, FRA will 
continue to abide by this longstanding interpretation, if the calls are 
initiated by the employee, and any call made by the railroad is in 
return of a call made by the employee, as requested by the employee and 
limited to the terms of the employee's request. While the establishment 
of a time to report for duty is service, FRA will extend its prior 
interpretation so that such communications are permitted and do not 
interrupt an off-duty period when the calls are initiated by the 
employee, and any call made by the railroad is in return of a call made 
by the employee, as requested by the employee and limited to the terms 
of the employee's request. As a result, employees may call a railroad 
during their statutory minimum off-duty period to establish or delay a 
time to report, and railroads may return these calls, if an employee 
requests a return call and the return call is limited to any terms 
established by the employee as to the time and the content of the call, 
and that contact will not be considered to have interrupted the rest 
period or to require that it be restarted, provided that the time at 
which the employee is required to report is after the required period 
of uninterrupted rest.
    This interpretation, which FRA has articulated in part and 
communicated in correspondence already, allows employees to have 
greater predictability as to when they will go to work, and a greater 
opportunity to plan their off-duty time to obtain adequate rest and 
handle other personal tasks and activities. Employees are able to take 
assignments when their statutory minimum off-duty period will have been 
completed at or prior to the report time, even if they would not have 
been fully rested at the time of the call to report. Conversely, in 
some cases, employees may be able to schedule themselves for an 
assignment that will allow them some additional time off duty to obtain 
additional rest or attend to personal activities. However, this 
interpretation should not be read as allowing any railroad to adopt a 
policy that requires employees to call the railroad, or requires 
employees to grant the railroad permission to call the employee during 
the statutory off-duty period. Employees who do not call the railroad, 
and do not choose to receive communication from the railroad, during 
the period of uninterrupted rest, must not be called by the railroad to 
establish a report time until after 10 hours of uninterrupted rest, and 
the employee must not be disciplined or otherwise penalized for that 
decision.
    FRA is aware that, having provided employees with an avenue for 
receiving information relating to their time to report during their 
statutory minimum off-duty period, there may be instances where a 
railroad, or an individual railroad manager, may seek to require that 
the employee contact the railroad during his or her statutory off-duty 
period to obtain the employee's next assignment. In circumstances where 
a railroad discriminates against an employee for refusing to violate a 
railroad safety law by failing to report after a disruption of rest 
caused the employee to not have a statutory minimum off-duty period, 
that action could constitute a violation of 49 U.S.C. 20109, enforced 
by the U.S. Department of Labor. Where credible evidence indicates that 
a railroad disrupted an employee's statutory minimum off-duty period 
without the employee having initiated the communication and requested a 
return call and yet allowed the employee to report, without restarting 
the rest period and providing the required uninterrupted rest, FRA will 
consider appropriate enforcement action. FRA expects that railroads 
will not attempt to coerce employees into authorizing communications 
that disrupted an employee's rest. Where evidence shows that a railroad 
made prohibited communications to an employee, because the employee did 
not initiate the communication, FRA may consider appropriate 
enforcement action under 49 U.S.C. 21103 and 21104. Employees must 
report unauthorized communications as an activity on their hours of 
service record for the duty tour following the communication. 49 CFR 
228.11(b)(9).
4. May the railroad return an employee's communication during the rest 
period without violating the prohibition on communication?
    As discussed above in section IV.C.3, the railroad may return an 
employee's communication during the rest period without violating the 
prohibition on communication, so long as the return communication is 
authorized by the employee and on the same topic as the employee's 
communication.
5. May the railroad call to alert an employee to a delay (set back) or 
displacement?
    As discussed above in section IV.C.3, the railroad may only 
communicate with an employee if it is in reply to a communication from 
the employee, is authorized by the employee, and is on the same topic 
as the employee's communication. Accordingly, the railroad may only 
call to alert an employee to a delay (set back) or displacement if the 
employee previously communicated with the railroad on that issue during 
the rest period and authorized a return communication.
6. May an employee provide advance permission for railroad 
communications?
    The BLET and UTU joint comment, as well as an individual commenter, 
ask if FRA will permit an employee to preemptively grant his or her 
employing railroad the authorization to contact the employee on certain 
matters. As was discussed in the previous response, employees may 
contact a railroad for any purpose, including establishing a time to 
report, and the railroad may return a call initiated by the employee, 
if the employee requests a return call, subject to the conditions 
discussed above. Because communication by the railroad is only allowed 
in response to specific communication initiated by the employee, an 
employee may not consent in advance to communication from the railroad.
    It is important to note, however, that if a railroad communicates 
with an employee when not requested to do so by the employee, or 
discusses with the employee matters beyond the subject of the 
employee's initial call, the employee's rest period has been disturbed, 
but it is not necessarily a violation of the statute. If an 
unauthorized communication is made, railroads have the option of 
providing a new statutory minimum off-duty period to avoid violating 
the statute.
    Additionally, railroads are not required under the statute to 
communicate with their employees during the period of uninterrupted 
rest. If a railroad concludes that it is too burdensome to determine in 
each instance the specific times within which an employee has requested 
a return call, and any limitations on the subject matter of the call, 
that railroad may decide simply not to contact any train employees or 
signal employees during their statutory minimum off-duty periods or 
periods of interim release.

[[Page 12426]]

7. Does the prohibition on communication apply to the extended rest 
required after 6 or more consecutive days initiating an on-duty period?
    No. The statute is clear that the prohibition applies only to the 
statutory minimum off-duty period for signal employees and train 
employees as well as to interim releases and additional time off duty 
required by subsection (c)(4) for train employees. While one commenter 
requests that FRA extend the prohibition to the extended rest required 
by Sec. 21103(a)(4), FRA is unable to do so through the interpretation 
of the statute, because the statutory language itself specifically 
identifies those periods of rest when the railroad must not communicate 
with an employee in a way that could reasonably be expected to disrupt 
the employee's rest, and the 48- and 72-hour extended-rest periods are 
not included within the prohibition.
8. Does the prohibition on communication apply differently to forms of 
communication other than phone calls?
    No. The prohibition on communication applies equally to any form of 
communication, including but not limited to phone calls, emails, text 
messages, voicemail, leaving a message at a hotel, or messages placed 
under the door of a hotel room by hotel staff.
9. May the railroad provide information that can be accessed at the 
employee's option?
    Yes. FRA encourages provision of information that can be accessed 
at the employee's option, especially in the case of unscheduled or 
uncertain assignments, so that the employee can plan rest.
    Because the alerts provided by most devices when an email or text 
message is received might reasonably be expected to disturb an employee 
who may be trying to obtain rest, such communications are generally 
prohibited communications. However, where the device in question is 
railroad-provided, such that it is only used for railroad business, 
employees have the option of turning the device off without impeding 
their ability to receive personal messages that they would want to 
receive even during rest. Therefore, the provision of information by 
text message or email to such a device is not a prohibited 
communication. Likewise, a railroad-provided Web site that the employee 
may voluntarily access could provide similar information. However, the 
employee may not be required to receive any communication of any sort, 
to access information of any kind, or to respond in any way to the 
information provided.

D. Questions Regarding the 276-Hour Monthly Limit on Service for the 
Railroad by Train Employees

    BLET and UTU request clarification on the 276-hour limit on time 
spent on duty, waiting for or in deadhead transportation to the place 
of final release, or in any other mandatory service for the railroad 
during a calendar month. The comment notes FRA's discussion of the 
issue in Section IV.C.6 of the Interim Interpretations, in which FRA 
stated that completing hazardous materials records is a task that falls 
within the category of ``other mandatory service for the carrier[.]'' 
\20\ The unions request clarification that all Federal recordkeeping 
requirements are considered ``other mandatory service'' and, therefore, 
will be counted towards an employee's 276-hour limitation for each 
month. FRA confirms that if an employee has the duty to carry out a 
Federal recordkeeping requirement applicable to a railroad, action by 
the employee to carry out the requirement is to be considered ``other 
mandatory service'' and, therefore, will be counted towards the 
employee's 276-hour limitation for each month. In the Interim 
Interpretations, FRA provided the act of completing a record on the 
transfer of hazardous material, as required by Transportation Security 
Administration regulations, as one example of ``other mandatory service 
for a railroad carrier[.]'' This example is simply illustrative of the 
sort of activities that are included as ``other mandatory service,'' 
and not an exception from FRA's general interpretation.
---------------------------------------------------------------------------

    \20\ 74 FR 30665, 30676 (June 26, 2009).
---------------------------------------------------------------------------

    The BLET and UTU joint comment then asks if attendance at a rules 
class can avoid being considered as other mandatory service for the 
carrier if the employee is given the discretion on when to schedule and 
complete the training and the railroad simply provides a deadline date 
for completion of the training. FRA confirms that this arrangement is 
consistent with FRA's position taken in the Interim Interpretations, 
and remains FRA's interpretation: if an employee has the opportunity to 
schedule such training at a time that is convenient for him or her, 
then the time spent training in these circumstances would not be 
counted for the purposes of the 276-hour limitation.\21\ Although 
training under the given circumstances can be excluded from the 276-
hour monthly limitation, it is nonetheless service for the railroad 
carrier and can commingle with covered service. As such, an employee 
must communicate the beginning and ending times of such activities with 
the railroad, and if a statutory off duty period does not exist between 
the activity and covered service the time spent in these activities 
will commingle becoming time on duty which will be included in the 276-
hour monthly limitation.
---------------------------------------------------------------------------

    \21\ See 74 FR 30665, 30675 (June 26, 2009).
---------------------------------------------------------------------------

    Another commenter, AAR, seeks clarification with respect to an 
employee's responsibility to comply with the 276-hour monthly 
limitation, and asks that FRA consider an employee to have 
``deliberately misrepresented his or her availability'' when 
``accepting a full-duty tour after completing an hours of service 
record for a prior duty tour showing that the employee does not have 
sufficient hours for another full duty tour.'' FRA declines to do so. 
As was discussed in Section IV.B.10, above, in response to AAR's 
similar comment regarding the ``consecutive-days'' limitations, given 
that FRA's enforcement policy with regard to its hours of service 
recordkeeping regulation allows railroads to keep ``consecutive-days'' 
limitation and monthly-service and limbo-time limitation data in a 
separate administrative ledger, rather than tracking the data daily on 
the record for each individual duty tour, railroads are in the best 
position to know whether or not an employee may report to perform 
service for the railroad. Additionally, while the penalty provision of 
the hours of service laws provides for individual liability for 
violation of the hours of service laws, the substantive restrictions 
operate on ``a railroad carrier and its officers and agents.'' 
Employees have the obligation to provide accurate information to 
railroads regarding their service, and FRA will consider action as 
appropriate under the agency's Statement of Agency Policy Concerning 
Enforcement of the Federal Railroad Safety Laws, 49 CFR part 209, 
appendix A, when employees fail to meet this obligation. However, 
simply reporting to perform service for the railroad is insufficient to 
demonstrate that an employee ``deliberately misrepresented his or her 
availability.''
    One individual commenter asks if an individual who works for 
multiple railroads will be required to total all service for all of 
these railroads to calculate whether that individual has reached the 
276-hour limitation. Because the hours of service laws do not restrict 
an employee's choice, of his or her own volition, to perform covered 
service for multiple railroad carriers

[[Page 12427]]

(with the exception of Sec. 21103(a)(4), as discussed above in the 
interpretations governing that provision), the 276-hour limitation 
applies only to the employee's service for each railroad. Such an 
employee would not need to total all service for all of these 
railroads, but instead would be subject to a separate 276-hour 
limitation for each railroad for which he or she performs covered 
service as a train employee. However, as discussed in Section IV.B.7 
above, for the purposes of compliance with Sec. 21103(a)(4), employees 
are responsible for reporting all service for any railroad carrier to 
each of their railroad carrier employers. While FRA has previously 
acknowledged its lack of authority to regulate employees who choose to 
be employed by multiple railroads, except with regard to Sec. 
21103(a)(4), FRA notes that an employee working for multiple railroads 
may nonetheless be subject to an excessive risk of human factors 
accidents caused by fatigue. Further, FRA does have the authority to 
pursue individual liability enforcement action against individuals who 
willfully fail to report all service for any railroad carrier or 
individuals who perform service for any railroad carrier during the 
extended rest required by Sec. 21103(a)(4).

E. Additional Issues Raised by Commenters

1. Statutory Changes
    A large number of individual commenters wrote to express 
displeasure with the RSIA and its changes to the previous hours of 
service requirements. While FRA was granted some limited regulatory 
authority to address hours of service issues, any possible future FRA 
regulations, that might adjust the existing limitations or otherwise 
alter the application of the new laws, are outside the scope of these 
final interpretations of the existing statute.
2. Waivers
    Several commenters seek waivers of the mandatory rest requirement 
in Sec. 21103(a)(4) for specific subsets of the rail industry. Whatever 
the merits of these waiver requests, they are beyond the scope of this 
notice. Petitions for the waivers provided for in Sec. 21103(a)(4), 
like petitions for waiver of FRA's safety regulations, are handled by 
FRA's Railroad Safety Board. 49 U.S.C. 20103(d); 49 CFR 211.41.
3. Definition of ``Covered Service''
    The BLET and UTU joint comment requests FRA consider all 
``yardmaster and similar positions'' covered service. ``Covered 
service'' refers to the functions performed by train employees, signal 
employees, and dispatching service employees. See 49 U.S.C. 21101, 
which defines these functions, and 49 CFR part 228, appendix A, which 
defines covered service in reference to these functions. Regardless of 
job title, an individual only performs covered service to the extent 
that the individual performs a function within one of the three 
statutory definitions. Therefore, FRA may not mandate that service 
outside of those three functions is covered service, or that employees 
with a certain job title will automatically be considered to have 
performed covered service.
    The BRS comment requests clarification on what constitutes covered 
service for a signal employee. The comment suggests that FRA has been 
interpreting the statute to apply only to signal employees who work 
with ``energized conductors.'' However, this understanding is 
incorrect. While a prior technical bulletin (Federal Railroad 
Administration, The Federal Hours of Service Law and Signal Service, 
Technical Bulletin G-00-02 (2000)) did refer to ``energized 
conductors,'' it did so in the context of demonstrating types of 
activities that are and are not covered service, comparing work on 
those conductors to work laying cable on a new system. The sentence in 
the bulletin was not exclusive, and does not indicate an interpretation 
by FRA that a signal system must be ``energized'' in order for work 
installing, repairing, or maintaining that system to be considered 
covered service.
    One individual commenter asks whether ``mechanical employees'' are 
subject to the hours of service requirements. While the statute changed 
the definition of ``signal employee'' to include those who are not 
employees of a railroad carrier, it did not alter the scope of what 
constitutes covered service that would subject an individual to the 
limitations within the statute. Accordingly, if service was considered 
covered service prior to the passage of the RSIA, that service remains 
covered service under the new statute. Additionally, some employees 
previously not subject to the hours of service laws that perform 
functions considered to be signal covered service but are not employed 
by a railroad carrier will now be covered by the hours of service laws. 
Employees who are generally considered to be ``mechanical employees'' 
may perform covered service within any of the three functional 
definitions, depending on the functions that the employee actually 
performs. For example, a mechanical employee who performs the functions 
of a hostler is subject to the hours of service limitations for train 
employees in 49 U.S.C. 21103, while a mechanical employee who performs 
cab signal tests is subject to the hours of service limitations for 
signal employees in 49 U.S.C. 21104 (Sec. 21104).
4. Exclusivity of Signal Service Hours of Service
    The BRS expresses concern that, in categorically exempting signal 
employees from any hours of service rules promulgated by any Federal 
authority other than FRA, Congress created a ``loophole'' allowing a 
vehicle requiring a commercial driver's license to be driven by a 
``signal employee'' who does not perform any covered service, with the 
result that such an employee is not covered by any hours of service 
limitations. The comment correctly notes that Congress did not intend 
to remove such individuals entirely from non-FRA Federal hours of 
service restrictions.
    The solution is found within the statutory text at Sec. 21104(e), 
which states that ``signal employees operating motor vehicles shall not 
be subject to any hours of service rules, duty hours, or rest period 
rules promulgated by any Federal authority, including the Federal Motor 
Carrier Safety Administration, other than the Federal Railroad 
Administration.'' (Emphasis added.) The subsection headed 
``Exclusivity'' applies only to signal employees, and signal employees 
are subject to the restrictions on hours of service provided in Sec. 
21104(a). Therefore, the statute does not allow an individual subject 
to the exemption granted at Sec. 21104(e) not to be subject to Sec. 
21104(a). FRA recognizes that this application may result in some 
difficulty for an employee who generally works as a signal employee 
(``installing, repairing, or maintaining signal systems'') but happens 
in a particular duty tour only to drive a vehicle requiring a 
commercial driver's license, without performing any functions within 
the definition of a ``signal employee'' in that duty tour, because such 
an employee remains subject to Federal Motor Carrier Safety 
Administration (FMCSA) limitations and recordkeeping requirements. Sec. 
21104(a). FRA is open to working with FMCSA in the future to limit or 
eliminate this overlap, but such efforts are outside the scope of this 
interpretation of the statute.
5. Commuting Time
    The BLET and UTU joint comment requests clarification of how FRA's 
prior

[[Page 12428]]

treatment of time spent commuting will continue in light of changes to 
the statute. FRA allows a 30-minute period for commuting at the away-
from-home terminal, from an employee's point of final release to 
railroad-provided lodging, that will not be considered a deadhead, but 
rather, commuting time that is part of the statutory off-duty period, 
provided that the travel time is 30 minutes or less, including any time 
the employee spends waiting for transportation at the point of release 
or for a room upon arrival at the lodging location. See Federal 
Railroad Administration, Hours of Service Interpretations, Operating 
Practice Technical Bulletin OP-04-03 (Feb. 3, 2004). The hypothetical 
situation presented in the comment involves a train employee, finally 
released at the away-from-home terminal, being instructed to report 10 
hours after the time of final release with no further communication 
from the railroad. In the hypothetical, the travel time to the 
railroad-provided lodging is less than 30 minutes, and the room for the 
employee is ready at the time the employee arrives. FRA sees no reason 
to depart from the prior interpretation of this situation. Accordingly, 
travel time of 30 minutes or less to railroad-provided lodging will be 
considered commuting, not deadheading, and therefore the employee's 
final release time will be established before the employee is 
transported to lodging. Similarly, in this hypothetical, an employee 
may depart for his or her reporting point in order to arrive at the 
reporting point 10 hours after his or her final release, so long as the 
travel time from the place of railroad-provided lodging to the 
reporting point is 30 minutes or less and so long as there is no 
additional communication from the railroad which interrupts the 
employee's off-duty period. Commuting time is considered part of the 
statutory off-duty period.
6. Application of Exception to Limitation on Certain Limbo Time
    The RSIA's amendments to Sec. 21103 added a limitation, effective 
October 16, 2009, of 30 hours per calendar month, on the amount of time 
each employee may spend in a particular category of limbo time--that 
is, time that is neither on-duty nor off-duty; namely, when the total 
of time on duty time and time spent either waiting for deadhead 
transportation or in deadhead transportation from a duty assignment to 
the place of final release exceeds 12 consecutive hours. 49 U.S.C. 
21103(c)(1)(B). However, the amendments also include an exception from 
the limitation at Sec. 21103(c)(2), which excludes delays caused by 
casualty, accident, act of God, derailment, major equipment failure 
preventing the train from advancing, or other delays caused by a source 
unknown and unforeseeable to the railroad carrier or its officer or 
agent in charge of the employee when the employee left a terminal.
    In their joint comment, BLET and UTU request clarification on 
whether this exception also applies to Sec. 21103(c)(4), which requires 
additional rest for train employees if time spent on duty, waiting for 
deadhead transportation to a point of final release, and in deadhead 
transportation to a point of final release exceeds 12 hours. By the 
express language of the statute, the exception does not apply to Sec. 
21103(c)(4). The language introducing the exception expressly states 
that it applies to ``paragraph (1)'' (i.e., Sec. 21103(c)(1)) and 
therefore presumably does not apply to paragraph (4) (i.e., Sec. 
21103(c)(4)); had Congress wished for the exception to apply to 
paragraph (4), it would have written the law accordingly.

V. Portions of FRA's Interim Interpretations of the Hours of Service 
Laws on Which Comments Were Not Received and Which Are Incorporated in 
This Final Interpretation Essentially Without Change \22\
---------------------------------------------------------------------------

    \22\ For the present iteration, FRA made a few minor changes to 
the text that appeared in the Interim Interpretations. For example, 
FRA deleted material that had become obsolete, e.g., references to 
the 40-hour per month limit on certain limbo time since that limit 
expired on October 15, 2009. In addition, it was necessary to add 
language in parentheses to reflect that a reference to sections 
``above'' meant sections of the Interim Interpretations. Further, 
FRA sometimes added a short ``yes'' or ``no'' answer before the 
previously published longer answer.
---------------------------------------------------------------------------

    Several of FRA's Interim Interpretations received no comments and 
are not being revised in these final interpretations. Therefore, they 
are still applicable as previously published. These policies and 
interpretations are reprinted below for convenience. Those interim 
interpretations which are no longer effective as a result of these 
final interpretations have been replaced in this section with a 
reference to the section in this document where the relevant final 
interpretation is discussed. In some cases, the discussion of these 
policies and interpretations has been revised to reflect other changes 
in FRA's policies and interpretations discussed in this document, or in 
light of FRA's subsequent promulgation of its regulations governing the 
hours of service for employees providing intercity or commuter 
passenger rail transportation. More information relating to the 
justification for these policies may be found in FRA's Interim 
Interpretations. 74 FR 30665 (June 26, 2009).

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

1. Does the prohibition on communication with train employees and 
signal employees apply to every statutory off-duty period no matter how 
long the employee worked?
    Yes, except for the 48- or 72-hour rest requirement. This 
prohibition on communication applies to every off-duty period of at 
least 10 hours under Sec. 21103(a)(3) or 21104(a)(2) and to any 
additional rest required for a train employee when the sum of on-duty 
time and limbo time exceeds 12 hours under Sec. 21103(c)(4). For train 
employees, it also applies to every lesser off-duty period that 
qualifies as an interim release.
2. Is the additional rest for a train employee when on-duty time plus 
limbo time exceeds 12 hours mandatory, or may the employee decline it?
    The additional rest is mandatory and may not be declined.
3. If an employee is called to report for duty after having 10 hours of 
uninterrupted time off duty, but then receives a call canceling the 
call to report before he or she leaves the place of rest, is a new 
period of 10 uninterrupted hours off duty required?
    If the employee has not left the place of rest, the employee has 
not accrued on-duty time and would still be off duty, with the 
exception that the time spent in multiple calls could in certain 
circumstances commingle with a future duty tour.
4. What if the call is cancelled just one minute before report-for-duty 
time?
    Although the employee will almost certainly have left the place of 
rest, the result to this scenario is the same as the result in the 
preceding question, in that the employee will not have accrued any time 
on duty.
5. What if the employee was told before going off duty to report at the 
end of required rest (either 10 hours or 48 or 72 hours after working 6 
or 7 days), and is released from that call prior to the report-for-duty 
time?
    The answer to this scenario is the same as the answer to the two 
preceding questions.

[[Page 12429]]

6. Are text messages or email permitted during the rest period?
    (This question is answered in section IV.C.7 and IV.C.8 above.)
7. May the railroad return an employee's call during the rest period 
without violating the prohibition on communication?
    (This question is answered in section IV.C.4 above.)
8. May the railroad call to alert an employee to a delay (set back) or 
displacement?
    (This question is answered in section IV.C.5 above.)
9. If the railroad violates the requirement of undisturbed rest, is the 
undisturbed rest period restarted from the beginning?
    Yes. (But see section IV.C.1, describing the time to which the 
prohibition on communication applies.)
10. Should any violation of undisturbed rest be documented by a record?
    Yes. The communication and the time involved in it must be recorded 
as an activity on the employee's hours of service record, as required 
by 49 CFR 228.11(b)(9) for train employees and 49 CFR 228.11(e)(9) for 
signal employees.
    (This question is discussed in more detail in section IV.C.1 and 
IV.C.2 above.)
11. Is the additional rest required when on-duty time plus limbo time 
exceeds 12 hours (during which communication with an employee is 
prohibited) to be measured only in whole hours, so that the additional 
rest requirement is not a factor until the total reaches 13 hours?
    No. The additional undisturbed time off that an employee must 
receive includes any fraction of an hour that is in excess of 12 hours.

B. Questions Related to the Requirements Applicable to Train Employees 
for 48 or 72 Hours Off at the Home Terminal

1. Is a ``Day'' a calendar day or a 24-hour period for the purposes of 
this provision?
    (This question is answered in section IV.B.1 above.)
2. If an employee is called for duty but does not work, has the 
employee initiated an on-duty period? If there is a call and release? 
What if the employee has reported?
    (This question is answered in section IV.B.5 above.)
3. Does deadheading from a duty assignment to the home terminal for 
final release on the 6th or 7th day count as a day that triggers the 
48-hour or 72-hour rest period requirement?
    (This question is answered in section IV.B.2 and IV.B.3 above.)
4. Does attendance at a mandatory rules class or other mandatory 
activity that is not covered service but is non-covered service, count 
as initiating an on-duty period on a day?
    No. As in the previous question, the rules class or other mandatory 
activity is other service for the carrier (non-covered service) that is 
not time on duty and would not constitute initiating an on-duty period 
if it is preceded and followed by a statutory off-duty period.
    Likewise, if the rules class or other mandatory activity commingled 
with covered service during either the previous duty tour or the next 
duty tour after the rules class (because there was not a statutory off-
duty period between them), the rules class or other mandatory activity 
would not itself constitute initiating a separate on-duty period, but 
would be part of the same on-duty period with which it is commingled.
    This question is discussed in more detail in section IV.B.6 above.
5. If an employee is marked up (available for service) on an extra 
board for 6 days but only works 2 days out of the 6, is the 48-hour 
rest requirement triggered?
    No. The employee must actually initiate an on-duty period. Being 
marked up does not accomplish this unless the employee actually reports 
for duty.
6. If an employee initiates an on-duty period on 6 consecutive days, 
ending at an away-from-home terminal and then has 28 hours off at an 
away-from-home terminal, may the employee work back to the home 
terminal? The statute says that after initiating an on-duty period on 6 
consecutive days the employee may work back to the home terminal on the 
7th day and then must get 72 hours off, but what if the employee had a 
day off at the away-from-home terminal after the 6th day?
    The statute says that the employee may work on the 7th day if the 
sixth duty tour ends at the away-from-home terminal, but that the 
employee must then have 72 hours of time at the home terminal in which 
he or she is unavailable for any service for any railroad carrier. If 
the employee first has at least 24 hours off at the away-from-home 
terminal, the consecutiveness is broken, and the employee has not 
initiated an on-duty period for 7 consecutive days and would not be 
entitled to 72 hours off duty after getting back to the home terminal. 
However, the time off at the away-from-home terminal would not count 
toward the 48 hours off duty that the employee must receive after 
getting back to the home terminal.
7. May an employee who works 6 consecutive days vacation relief at a 
``Temporary Home Terminal'' work back to the regular home terminal on 
the 7th day?
    Yes, the employee may initiate an on-duty period on the seventh day 
and then receive 72 hours off at the home terminal. FRA believes this 
is consistent with the statutory purpose of allowing the employee to 
have the extended rest period at home. To that end, although the 
statute refers to the home terminal, FRA expects that in areas in which 
large terminals include many different reporting points at which 
employees go on and off duty, the railroad would make every effort to 
return an employee to his or her regular reporting point, so that the 
rest period is spent at home.

C. Questions Related to the 276-Hour Monthly Maximum for Train 
Employees of Time on Duty, Waiting for or Being in Deadhead 
Transportation to Final Release, and in Other Mandatory Service for the 
Carrier

1. If an employee reaches or exceeds 276 hours for the calendar month 
during a trip that ends at the employee's away-from-home terminal, may 
the railroad deadhead the employee home during that month?
    The literal language of the statute might seem to prohibit 
deadheading an employee who has already reached or exceeded the 276-
hour monthly maximum, because time spent in deadhead transportation to 
final release is part of the time to be calculated toward the 276-hour 
maximum, and one of the activities not allowed after the employee 
reaches 276 hours. However, the intent of the statute seems to favor 
providing extended periods of rest at an employee's home terminal. 
Therefore, in most cases, FRA would allow the railroad to deadhead the 
employee home in this circumstance, rather than requiring the employee 
to remain at an away-from-home terminal until the end of the month.
    FRA expects the railroad to make every effort to plan an employee's 
work so that this situation would not regularly arise, and FRA reserves 
the right to take enforcement action if a pattern of abuse is apparent.

[[Page 12430]]

2. How will FRA apply the 276-hour cap to employees who only 
occasionally perform covered service as a train employee, but whose 
hours, when combined with their regular shifts in non-covered service, 
would exceed 276 hours?
    This provision in the RSIA does not specifically provide any 
flexibility for employees who only occasionally perform covered service 
as a train employee. Such employees would still be required, as they 
are now, to complete an hours of service record for every 24-hour 
period in which the employee performed covered service, and the 
employee's hours will continue to be limited as required by the statute 
for that 24-hour period. See 74 FR 25330, 25348 (May 27, 2009), 49 CFR 
228.11(a).
    FRA will likely exercise some discretion in enforcing the 276-hour 
monthly limitation with regard to employees whose primary job is not to 
perform covered service as a train employee, as most of the hours for 
such employees would be comprised of the hours spent in the employee's 
regular ``non-covered service'' position, which hours are not otherwise 
subject to the limitations of the statute. However, FRA will enforce 
the 276-hour limitation with regard to such employees if there is a 
perception that a railroad is abusing it.
3. Does the 276-hour count reset at midnight on the first day of a new 
month?
    Yes. The statute refers to a calendar month, so when the month 
changes, the count resets immediately, as in the following example:

    Employee goes on duty at 6 p.m. on the last day of the month, 
having previously accumulated 270 hours for that calendar month. By 
midnight, when the month changes, he has worked an additional 6 
hours, for a total of 276 hours. The remaining hours of this duty 
tour occur in the new month and begin the count toward the 276-hour 
maximum for that month, so the railroad is not in violation for 
allowing the employee to continue to work.

4. May an employee accept a call to report for duty when he or she 
knows there are not enough hours remaining in the employee's 276-hour 
monthly limitation to complete the assignment or the duty tour, and it 
is not the last day of the month, so the entire duty tour will be 
counted toward the total for the current month?
    It is the responsibility of the railroad to track an employee's 
hours toward the monthly limitation, so the employee is not the one in 
the best position to determine whether he or she has sufficient time 
remaining in the monthly limitation to complete a duty tour for which 
he or she is called. Therefore, the employee would generally not be in 
trouble with FRA for accepting the call, absent evidence that the 
employee deliberately misrepresented his or her availability. The 
railroad will be in violation of the new hours of service laws if an 
employee's cumulative monthly total exceeds 276 hours. However, it 
could be a mitigating factor in some situations if the railroad 
reasonably believed the employee might be able to complete the 
assignment before reaching the 276-hour limitation.

    <bullet> Scenario 1: Employee is called for duty with 275 hours 
already accumulated. It is only the 27th day of the month, so the 
entire period will be in the current month. It was probably not 
reasonable to assume that any assignment could be completed in the 
remaining time.
    <bullet> Scenario 2: Again the 27th day of the month. This time 
the employee has only accumulated 264 hours toward the 276-hour 
monthly limitation. In this instance, the railroad may have expected 
that the employee could complete the covered service and deadhead to 
the home terminal within the remaining time. If that does not 
happen, the railroad is in violation, but enforcement discretion or 
mitigation of any penalties assessed will be considered if the 
railroad made a reasonable decision.

5. What activities constitute ``Other Mandatory Service for the 
Carrier,'' which counts towards the 276-hour monthly limitation?
    FRA recognizes that if every activity in which an employee 
participates as part of his or her position with the railroad is 
counted toward the 276-hour monthly maximum, it could significantly 
limit the ability of both the railroad to use the employee, and the 
employee to be available for assignments that he or she would wish to 
take, especially in the final days of a month. This has been raised as 
a matter of concern since enactment of the RSIA.
    In particular, there are activities that may indirectly benefit a 
railroad but that are in the first instance necessary for an employee 
to maintain the status of prepared and qualified to do the work in 
question. In some cases these activities are compensated in some way, 
and in some cases not. These activities tend not to be weekly or 
monthly requirements, but rather activities that occur at longer 
intervals, such as audiograms, vision tests, optional rules refresher 
classes, and acquisition of security access cards for hazardous 
materials facilities. Most of these activities can be planned by 
employees within broad windows to avoid conflicts with work assignments 
and maintain alertness. Railroads are most often not aware of when the 
employee will accomplish the activity.
    Therefore, for the purposes of this provision, FRA will require 
that railroads and employees count toward the monthly maximum those 
activities that the railroad not only requires the employee to perform 
but also requires the employee to complete immediately or to report at 
an assigned time and place to complete, without any discretion in 
scheduling on the part of the employee.
    Those activities over which the employee has some discretion and 
flexibility of scheduling would not be counted for the purposes of the 
276-hour provision, because the employee would be able to schedule them 
when he or she is appropriately rested. FRA expects that railroads will 
work with their employees as necessary so that they can schedule such 
activities and still obtain adequate rest before their next assignment.
    When any service for a railroad carrier is not separated from 
covered service by a statutory minimum off-duty period, the other 
service will commingle with the covered service, and therefore be 
included as time on duty. As time on duty, such time will count towards 
the monthly limit of 276 hours.
6. Does time spent documenting transfer of hazardous materials 
(Transportation Security Administration requirement) count against the 
276-hour monthly maximum?
    Yes. This example is a specific application of the previous 
question and response concerning ``other mandatory service for the 
carrier.'' The activity of documenting the transfer of a hazardous 
material pursuant to a Transportation Security Administration 
requirement is mandatory service for the carrier, and a mandatory 
requirement of the position for employees whose jobs involve this 
function. Although the requirement is Federal, compliance with it is a 
normal part of an employee's duty tour, which must be completed as part 
of the duty tour, and the employee does not have discretion in when and 
where to complete this requirement. Time spent in fulfilling this 
requirement is part of the maximum allowed toward the 276-hour monthly 
maximum.

[[Page 12431]]

D. Other Interpretive Questions Related to the RSIA Amendments to the 
Old Hours of Service Laws

1. Does the 30-hour monthly maximum limitation on time awaiting and in 
deadhead transportation to final release only apply to time awaiting 
and in deadhead transportation after 12 consecutive hours on duty?
    No. Sec. 21103(c)(1)(B) provides that ``[a] railroad may not 
require or allow an employee * * * to exceed 30 hours per month--(i) 
waiting for deadhead transportation; or (ii) in deadhead transportation 
from a duty assignment to a place of final release, following a period 
of 12 consecutive hours on duty * * * .'' The intent of this provision 
is to prevent situations in which employees are left waiting on trains 
for extended periods of time awaiting deadhead transportation, and then 
in the deadhead transportation. This purpose would be frustrated if 
none of the limbo time is counted toward the limitation unless the on-
duty time for the duty tour is already at or exceeding 12 hours, as an 
employee who has accumulated 11 hours and 59 minutes in his or her duty 
tour could be subjected to limitless time awaiting and in deadhead 
transportation.
    FRA will interpret this provision to include all time spent 
awaiting or in deadhead transportation to a place of final release that 
occurs more than 12 hours after the beginning of the duty tour, minus 
any time spent in statutory interim periods of release. For example, if 
an employee is on duty for 11 hours 30 minutes, and then spends an 
additional 3 hours awaiting and in deadhead transportation to the point 
of final release, for a total duty tour of 14 hours and 30 minutes, 2 
hours and 30 minutes of the time spent awaiting or in deadhead 
transportation will be counted toward the 30-hour monthly limit.
2. Did the RSIA affect whether a railroad may obtain a waiver of the 
provisions of the new hours of service laws?
    Yes, but FRA's authority, delegated from the Secretary, to waive 
provisions of the hours of service laws as amended by the RSIA remains 
extremely limited. 49 CFR 1.49.
    The RSIA left intact the longstanding, though limited, waiver 
authority at 49 U.S.C. 21102(b), which authorizes the exemption of 
railroads ``having not more than 15 employees covered by'' the hours of 
service laws ``[a]fter a full hearing, for good cause shown, and on 
deciding that the exemption is in the public interest and will not 
affect safety adversely. The exemption shall be for a specific period 
of time and is subject to review at least annually. The exemption may 
not authorize a carrier to require or allow its employees to be on duty 
more than a total of 16 hours in a 24-hour period.''
    The RSIA amended the one other, even narrower waiver provision in 
the old hours of service laws and added three more equally narrow new 
waiver provisions. In particular, the RSIA revised 49 U.S.C. 21108, 
Pilot projects, originally enacted in 1994, involving joint petitions 
for waivers related to pilot projects under 49 U.S.C. 21108, primarily 
to provide for waivers of the hours of service laws both as in effect 
on the date of enactment of the RSIA and as in effect nine months after 
the date of enactment. Waivers under this section are intended to 
enable the establishment of one or more pilot projects to demonstrate 
the possible benefits of implementing alternatives to the strict 
application of the requirements of the hours of service laws, including 
requirements concerning maximum on-duty and minimum off-duty periods. 
The Secretary may, after notice and opportunity for comment, approve 
such waivers for a period not to exceed two years, if the Secretary 
determines that such a waiver is in the public interest and is 
consistent with railroad safety. Any such waiver, based on a new 
petition, may be extended for additional periods of up to two years, 
after notice and opportunity for comment. An explanation of any waiver 
granted under this section shall be published in the Federal Register.
    The first of the three new waiver provisions, 49 U.S.C. 
21109(e)(2), authorizes temporary waivers of that section in order ``if 
necessary, to complete'' a pilot project mandated by that subsection. 
To date, FRA has not conducted either of the specific pilot projects 
mandated by that section, because FRA has not received any waiver 
requests from a railroad, and its relevant labor organizations or 
affected employees, seeking to participate in these projects. FRA still 
seeks to complete these projects, if a railroad were willing to 
implement the necessary procedures, and the appropriate waiver could be 
designed.
    The second new waiver provision, 49 U.S.C. 21103(a)(4), provides 
limited authority to grant a waiver of one provision that it adds to 
the old hours of service laws. That provision is the requirement that 
an employee receive 48 hours off duty at the employee's home terminal 
after initiating an on-duty period on 6 consecutive days, 72 hours off 
duty at the employee's home terminal after initiating an on-duty period 
on 7 consecutive days, etc. This provision was discussed in section 
IV.B of the Interim Interpretations as well as section IV.B and V.B, 
above. FRA may waive this provision, and has done so in a number of 
instances in response to petitions received, if a collective bargaining 
agreement provides for a different arrangement and that arrangement is 
in the public interest and consistent with railroad safety. A railroad 
and its labor organization(s) or affected employees should jointly 
submit information regarding schedules allowed under their collective 
bargaining agreements that would not be permitted under this provision, 
and supporting evidence for the conclusion that it is in the interest 
of safety. Of course, a waiver is not needed for a schedule that would 
not violate this provision. For example, if a schedule provides that an 
employee works 4 consecutive days and then has one day off, the 
schedule would not violate the new hours of service laws, because the 
employee would not have initiated an on-duty period on 6 consecutive 
days, so 48 hours off duty would not be required.
    The third and last new waiver provision authorizes waivers of the 
prohibition on communication during off-duty periods with respect to 
train employees of commuter or intercity passenger railroads if it is 
determined that a waiver will not reduce safety and is necessary to 
maintain such a railroad's efficient operation and on-time performance. 
This waiver provision is no longer applicable, because such employees 
are now subject to FRA's hours of service regulation for train 
employees providing commuter or intercity rail passenger 
transportation, and are therefore no longer subject to the statutory 
uninterrupted rest requirement. 49 CFR 228.413.

    Issued in Washington, DC, on February 22, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-4732 Filed 2-28-12; 8:45 am]
BILLING CODE 4910-06-P