12408 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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. 

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 ‘‘ConsecutiveDays’’ 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 OnDuty 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 offduty 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? 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12409 

11. Is the additional rest required when onduty 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 awayfrom-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. 

Train employees Signal employees Dispatching service employees 

Citation 49 U.S.C. 21103 49 U.S.C. 21104 49 U.S.C. 21105 

Covered Individuals Individuals engaged in or connected 

with the movement of a train, including hostlers. Train employees who 

are engaged in commuter or intercity 

rail passenger transportation, as defined in 49 CFR part 228, subpart F, 

are instead subject to that regulation. 

See 49 U.S.C. 21102(c)(3).

Individuals engaged in installing, repairing, or maintaining signal systems.Operators, train dispatchers, or any 

other employee who by use of an 

electrical or mechanical device dispatches, reports, transmits, receives, 

or delivers orders related to or affecting train movements. 

Limitations on Time 

on Duty in a Single Tour.

May not remain or go on duty in excess of 12 hours or if the employee 

has not had at least 10 consecutive 

hours off duty during the prior 24 

hours.

May not remain or go on duty in excess of 12 hours or if the employee 

has not had at least 10 consecutive 

hours off duty during the prior 24 

hours.

May not remain or go on duty for more 

than 9 or 12 hours in a 24-hour period, depending on the number of 

shifts employed at the tower, office, 

station, or place the employee is on 

duty. 


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12410 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

Train employees Signal employees Dispatching service employees 

Citation 49 U.S.C. 21103 49 U.S.C. 21104 49 U.S.C. 21105 

Minimum Off-Duty 

Period Between 

Duty Tours.

10 consecutive hours, required to be 

uninterrupted by any communication 

by the railroad reasonably expected 

to disrupt the employee’s rest. Additional time off duty is required when 

the total of time on duty and time 

waiting for deadhead transportation 

or in deadhead transportation from a 

duty assignment to the place of final 

release that is not time off duty exceeds 12 consecutive hours, which 

must also be uninterrupted.

10 consecutive hours, required to be 

uninterrupted by any communication 

by the railroad reasonably expected 

to disrupt the employee’s rest.

Not applicable. 

Minimum Off-Duty 

Period Within a 

Duty Tour.

At least 4 hours of time off duty at a 

designated terminal, required to be 

uninterrupted by any communication 

by the railroad reasonably expected 

to disrupt the employee’s rest.

At least 30 minutes of time off duty ..... Not applicable. 

Limitations on Consecutive Duty 

Tours.

May not remain or go on 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-fromhome 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.

None ..................................................... None. 

Monthly Cumulative 

Limitations.

May not remain or go on duty, wait for 

or be in deadhead transportation to 

the point of final release, or be in 

any other mandatory service for the 

carrier in any calendar month where 

the employee has spent a total of 

276 hours on duty, waiting for or in 

deadhead transportation from a duty 

assignment to the place of final release, or in any other mandatory 

service for the carrier.

None ..................................................... None. 

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 Defined by 

the Statute.

Time spent in deadhead transportation 

from a duty assignment to the place 

of final release.

Time spent returning from a trouble 

call, whether the employee goes directly to the employee’s residence or 

by way of the employee’s headquarters.

None. 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12411 

Train employees Signal employees Dispatching service employees 

Citation 49 U.S.C. 21103 49 U.S.C. 21104 49 U.S.C. 21105 

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 crew of a 

wreck or relief train may be allowed 

to remain or go on duty for no more 

than 4 additional hours in any period 

of 24 consecutive hours when an 

emergency exists and the work of 

the crew is related to the emergency.

A signal employee may be allowed to 

remain or go on duty for no more 

than 4 additional hours in any period 

of 24 consecutive hours when an 

emergency exists and the work of 

that employee is related to the emergency. Routine repairs, routine maintenance, or routine inspection of signal systems is not an emergency 

that allows for additional time on 

duty.

A dispatching service employee may 

be allowed to remain or go on duty 

for no more than 4 additional hours 

during a period of 24 consecutive 

hours for no more than 3 days during a period of 7 consecutive days. 

End of Emergency The emergency ends when the track is 

cleared and the railroad line is open 

for traffic.

The emergency ends when the signal 

system is restored to service.

Not Applicable. 

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 ‘‘consecutivedays’’ 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 consecutivedays 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 


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12412 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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 offduty 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 offduty 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 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12413 

1FRA 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). 

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 offduty period to 10 consecutive hours 

during the prior 24-hour period. 49 

U.S.C. 21103(a)(2), (3). 

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 


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12414 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

2The 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. 

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). 

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 offduty 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 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12415 

assignment. If so, then the employee 

may be required or permitted to work a 

maximum of 12 consecutive hours or a 

total of 12 hours, in broken service, in 

the next 24 hours, and must get 10 

hours off either after working that 12 

hours or at the end of the 24-hour 

period that began when the employee 

went on duty, whichever occurs first, 

before the employee is allowed to go on 

duty again. If an employee had a duty 

tour involving broken service, including 

an interim release of at least 4 hours, but 

less than the 10 hours required for a 

statutory minimum off-duty period, 

between two periods of service within 

the same duty tour, some or all of the 

employee’s eventual statutory minimum 

off-duty period would come after the 24- 

hour period that began when the 

employee reported for duty. The 

following example illustrates the 

application of FRA’s current, ‘‘fresh 

start’’ interpretation of ‘‘the prior 24 

hours’’: 

• An employee reports for duty at 10 a.m. 

on a Monday. If the employee had had 10 

consecutive hours off duty at any time 

between 10 a.m. on the preceding day 

(Sunday) to 10 a.m. on that Monday, FRA 

would consider the employee as having had 

the minimum off-duty period during ‘‘prior 

24 hours’’ because the ‘‘prior 24 hours’’ is 

defined as the 24 hours prior to the 

employee’s act of reporting for duty. The 

employee would then be permitted to remain 

on duty for up to 12 hours in the following 

24 hours, such that the employee must no 

longer accrue time on duty after 10 a.m. on 

Tuesday. 

Conversely, under the Proposed 

Interpretation (which takes the 

‘‘continuous lookback’’ approach to 

identifying the statutory minimum offduty 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 offduty 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 


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12416 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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. 

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 offduty 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 calland-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. 

BLET and UTU submitted a joint 

comment arguing that the ‘‘continuous 

lookback’’ approach would negatively 

affect both safety and the financial wellbeing 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 regularlyscheduled 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 


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

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.’’ 

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 onduty 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 


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12418 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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. 

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.’’ 

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 onduty 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 onduty 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 onduty 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 


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

7BLET 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). 

8Specifically, 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). 

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.’’ 

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. 

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 


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12420 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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

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 standalone 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. 

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 onduty 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 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12421 

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

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 extendedrest 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

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 onduty 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

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 onduty 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 noncovered service may break a string of 

consecutive days, will only apply if an 

employee has a statutory minimum offduty 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 noncovered 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 offduty period between non-covered 

service and covered service, the noncovered 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 


tkelley on DSK3SPTVN1PROD with RULES2
12422 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

13On 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. 

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

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 onduty 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 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 12423 

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

15 Id. 

16 Id. 17 74 FR 30665, 30675 (June 26, 2009). 

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

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

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 offduty 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. 

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 safetysensitive 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 ‘‘consecutivedays’’ limitations. FRA declines to 

adopt AAR’s proposal. 

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 


tkelley on DSK3SPTVN1PROD with RULES2
12424 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

18As will be discussed below, a railroad may 

contact an employee in certain limited 

circumstances even during the portion of an offduty period that is required to be undisturbed. 19 74 FR 30665, 30672 (June 26, 2009). 

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 onduty 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

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. 

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 onduty 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 


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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 offduty 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 offduty 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. 


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12426 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

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

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

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 railroadprovided, 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. 

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. 

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 


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


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12428 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

22For 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. 

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 offduty; 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

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 offduty 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. 


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Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 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 (noncovered 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-fromhome 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 onduty 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 awayfrom-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. 


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12430 Federal Register / Vol. 77, No. 40 / Wednesday, February 29, 2012 / Rules and Regulations 

2. How will FRA apply the 276-hour cap 

to employees who only occasionally 

perform covered service as a train 

employee, but whose hours, when 

combined with their regular shifts in 

non-covered service, would exceed 276 

hours? 

This provision in the RSIA does not 

specifically provide any flexibility for 

employees who only occasionally 

perform covered service as a train 

employee. Such employees would still 

be required, as they are now, to 

complete an hours of service record for 

every 24-hour period in which the 

employee performed covered service, 

and the employee’s hours will continue 

to be limited as required by the statute 

for that 24-hour period. See 74 FR 

25330, 25348 (May 27, 2009), 49 CFR 

228.11(a). 

FRA will likely exercise some 

discretion in enforcing the 276-hour 

monthly limitation with regard to 

employees whose primary job is not to 

perform covered service as a train 

employee, as most of the hours for such 

employees would be comprised of the 

hours spent in the employee’s regular 

‘‘non-covered service’’ position, which 

hours are not otherwise subject to the 

limitations of the statute. However, FRA 

will enforce the 276-hour limitation 

with regard to such employees if there 

is a perception that a railroad is abusing 

it. 

3. Does the 276-hour count reset at 

midnight on the first day of a new 

month? 

Yes. The statute refers to a calendar 

month, so when the month changes, the 

count resets immediately, as in the 

following example: 

Employee goes on duty at 6 p.m. on the last 

day of the month, having previously 

accumulated 270 hours for that calendar 

month. By midnight, when the month 

changes, he has worked an additional 6 

hours, for a total of 276 hours. The remaining 

hours of this duty tour occur in the new 

month and begin the count toward the 276- 

hour maximum for that month, so the 

railroad is not in violation for allowing the 

employee to continue to work. 

4. May an employee accept a call to 

report for duty when he or she knows 

there are not enough hours remaining in 

the employee’s 276-hour monthly 

limitation to complete the assignment or 

the duty tour, and it is not the last day 

of the month, so the entire duty tour 

will be counted toward the total for the 

current month? 

It is the responsibility of the railroad 

to track an employee’s hours toward the 

monthly limitation, so the employee is 

not the one in the best position to 

determine whether he or she has 

sufficient time remaining in the 

monthly limitation to complete a duty 

tour for which he or she is called. 

Therefore, the employee would 

generally not be in trouble with FRA for 

accepting the call, absent evidence that 

the employee deliberately 

misrepresented his or her availability. 

The railroad will be in violation of the 

new hours of service laws if an 

employee’s cumulative monthly total 

exceeds 276 hours. However, it could be 

a mitigating factor in some situations if 

the railroad reasonably believed the 

employee might be able to complete the 

assignment before reaching the 276-hour 

limitation. 

• Scenario 1: Employee is called for duty 

with 275 hours already accumulated. It is 

only the 27th day of the month, so the entire 

period will be in the current month. It was 

probably not reasonable to assume that any 

assignment could be completed in the 

remaining time. 

• Scenario 2: Again the 27th day of the 

month. This time the employee has only 

accumulated 264 hours toward the 276-hour 

monthly limitation. In this instance, the 

railroad may have expected that the 

employee could complete the covered service 

and deadhead to the home terminal within 

the remaining time. If that does not happen, 

the railroad is in violation, but enforcement 

discretion or mitigation of any penalties 

assessed will be considered if the railroad 

made a reasonable decision. 

5. What activities constitute ‘‘Other 

Mandatory Service for the Carrier,’’ 

which counts towards the 276-hour 

monthly limitation? 

FRA recognizes that if every activity 

in which an employee participates as 

part of his or her position with the 

railroad is counted toward the 276-hour 

monthly maximum, it could 

significantly limit the ability of both the 

railroad to use the employee, and the 

employee to be available for 

assignments that he or she would wish 

to take, especially in the final days of a 

month. This has been raised as a matter 

of concern since enactment of the RSIA. 

In particular, there are activities that 

may indirectly benefit a railroad but that 

are in the first instance necessary for an 

employee to maintain the status of 

prepared and qualified to do the work 

in question. In some cases these 

activities are compensated in some way, 

and in some cases not. These activities 

tend not to be weekly or monthly 

requirements, but rather activities that 

occur at longer intervals, such as 

audiograms, vision tests, optional rules 

refresher classes, and acquisition of 

security access cards for hazardous 

materials facilities. Most of these 

activities can be planned by employees 

within broad windows to avoid conflicts 

with work assignments and maintain 

alertness. Railroads are most often not 

aware of when the employee will 

accomplish the activity. 

Therefore, for the purposes of this 

provision, FRA will require that 

railroads and employees count toward 

the monthly maximum those activities 

that the railroad not only requires the 

employee to perform but also requires 

the employee to complete immediately 

or to report at an assigned time and 

place to complete, without any 

discretion in scheduling on the part of 

the employee. 

Those activities over which the 

employee has some discretion and 

flexibility of scheduling would not be 

counted for the purposes of the 276- 

hour provision, because the employee 

would be able to schedule them when 

he or she is appropriately rested. FRA 

expects that railroads will work with 

their employees as necessary so that 

they can schedule such activities and 

still obtain adequate rest before their 

next assignment. 

When any service for a railroad carrier 

is not separated from covered service by 

a statutory minimum off-duty period, 

the other service will commingle with 

the covered service, and therefore be 

included as time on duty. As time on 

duty, such time will count towards the 

monthly limit of 276 hours. 

6. Does time spent documenting transfer 

of hazardous materials (Transportation 

Security Administration requirement) 

count against the 276-hour monthly 

maximum? 

Yes. This example is a specific 

application of the previous question and 

response concerning ‘‘other mandatory 

service for the carrier.’’ The activity of 

documenting the transfer of a hazardous 

material pursuant to a Transportation 

Security Administration requirement is 

mandatory service for the carrier, and a 

mandatory requirement of the position 

for employees whose jobs involve this 

function. Although the requirement is 

Federal, compliance with it is a normal 

part of an employee’s duty tour, which 

must be completed as part of the duty 

tour, and the employee does not have 

discretion in when and where to 

complete this requirement. Time spent 

in fulfilling this requirement is part of 

the maximum allowed toward the 276- 

hour monthly maximum. 


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


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