20494 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

4. In § 871.102, paragraph (b) is

amended by removing ‘‘$5,000’’ and

adding in its place ‘‘$25,000’’ and by

removing ‘‘Chief Benefits Director’’ and

adding in its place ‘‘Under Secretary for

Benefits’’.

5. In § 871.102, in paragraph (c) the

second sentence is amended by

removing ‘‘Chief Benefits Director’’ and

adding in its place ‘‘Under Secretary for

Benefits’’.

6. In § 871.102, paragraph (d) is

amended by removing ‘‘$200’’ and

adding in its place ‘‘$500’’.

7. In § 871.102, in paragraph (e) the

first sentence is amended by removing

‘‘listed with him/her’’ and adding in its

place ‘‘assigned’’; the second sentence is

amended by removing ‘‘$200’’ and

adding in its place ‘‘$500’’ and by

removing ‘‘his/her’’ and adding in its

place ‘‘the’’; and the third sentence is

amended by removing ‘‘$200’’ and

adding in its place ‘‘$500’’.

871.103 [Removed]

8. Section 871.103 is removed.

871.105 [Removed]

9. Section 871.105 is removed.

871.106 [Amended]

10. In § 871.106, in paragraph (b) the

second sentence is amended by

removing ‘‘or material men’’ and is

amended by removing ‘‘his/her’’ and

adding in its place ‘‘the

subcontractor’s’’.

Subpart 871.2—Vocational

Rehabilitation and Counseling

Program

11. Section 871.200 is revised to read

as follows:

871.200 Scope of subpart.

This subpart establishes policy and

procedures for the vocational

rehabilitation and counseling program

as it pertains to contracts for training

and rehabilitation services, approval of

institutions (including rehabilitation

facilities), training establishments, and

employers under 38 U.S.C. Chapter 31,

and contracts for counseling services

under 38 U.S.C. Chapters 30, 31, 32, 35,

and 36 and 10 U.S.C. Chapters 106, 107,

and 1606.

(Authority: 10 U.S.C. ch. 106, 107, 1606; 38

U.S.C. 501, ch. 30, 31, 32, 35, 36; 40 U.S.C.

486(c))

871.201–3 [Amended]

12. Section 871.201–3 is amended by

removing ‘‘Veterans Health Services and

Research Administration’’ and adding in

its place ‘‘Veterans Health

Administration’’.

871.207 [Amended]

13. In § 871.207, paragraph (b)(2) is

amended by removing ‘‘Veterans

Administration’’ and adding in its place

‘‘Department of Veterans Affairs’’.

[FR Doc. 96–11277 Filed 5–6–96; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

Decision of the United States Supreme

Court Concerning an Agency

Interpretation of the Federal Hours of

Service Laws; Change in Agency

Interpretation; Enforcement Policy

Regarding Violations of Laws as

Previously Interpreted

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Statement of agency policy and

interpretation.

SUMMARY: Notice is hereby given that, in

accordance with the decision of the

United States Supreme Court in

Brotherhood of Locomotive Engineers v.

Atchison, Topeka and Santa Fe R.R., all

time spent awaiting the arrival of a

deadhead vehicle for transportation to

the point of final release, when no

additional services are required of

railroad carrier employees, shall be

treated by FRA as time neither on nor

off duty for purposes of the Federal

hours of service laws (‘‘HSL’’),

throughout the entire nation. FRA is

amending its current interpretive

statement to reflect this Supreme Court

decision.

EFFECTIVE DATE: January 8, 1996.

FOR FURTHER INFORMATION CONTACT:

Edward R. English, Director, Office of

Safety Assurance and Compliance,

Office of Safety, FRA, 400 Seventh

Street, S.W., Washington, D.C. 20590

(telephone: 202–366–9252); or David H.

Kasminoff, Trial Attorney, Office of

Chief Counsel, FRA, 400 Seventh Street,

S.W., Washington, D.C. 20590

(telephone: 202–366–0628).

SUPPLEMENTARY INFORMATION:

Public Participation

In this notice FRA is announcing that

it has changed its interpretation of the

HSL (49 U.S.C. 20102, 21101–21108,

21303, and 21304), consistent with a

unanimous decision of the United States

Supreme Court, concerning the

treatment of time spent awaiting the

arrival of deadhead transportation to the

point of final release. Notice and

comment procedures are unnecessary

with regard to the general statement of

policy and interpretation issued by this

notice because such a statement is

excepted from notice and comment

procedure by virtue of 5 U.S.C.

553(b)(3)(A). Statements of policy are

also an exception to the general

requirement of publication at least 30

days prior to the effective date. See 5

U.S.C. 553(d)(2).

Effect of this Notice

On January 8, 1996, the United States

Supreme Court issued its decision in the

case of Brotherhood of Locomotive

Engineers v. Atchison, Topeka and

Santa Fe R.R.,ll U.S. ll, 116 S.Ct.

595, affirming the decision of the United

States Court of Appeals for the Seventh

Circuit in the case of Atchison, Topeka,

and Santa Fe Railway Co. v. Pen ̃ a, 44

F.3d 437 (1994). Both cases concern

FRA’s interpretation of the HSL as they

pertain to the status of train

crewmembers waiting for the arrival of

deadhead transportation to their point

of final release. The Supreme Court

unanimously held that such time, when

no additional services are required of

railroad carrier employees, should be

classified as limbo time (i.e., neither onnor off-duty time) for HSL purposes.

The Supreme Court’s holding

coincided with the position that FRA

had traditionally taken until the agency

changed its interpretation of the HSL in

late 1992. Prior to that change, FRA had

considered an employee to be on duty

during the time spent waiting for the

arrival of deadhead transportation to the

employee’s point of final release only if

the employee actually had duties to

perform. If the railroad carrier had

relieved the employee of all

responsibility, FRA had considered

such time spent merely waiting for the

deadhead vehicle to arrive as limbo

time.

However, on September 22, 1992, in

response to lawsuits filed by the United

Transportation Union and the

Brotherhood of Locomotive Engineers, a

three-judge panel of the United States

Court of Appeals for the Ninth Circuit

held that such time spent waiting for

transportation was to be considered onduty time. United Transportation Union

v. Skinner, 975 F.2d 1421 (9th Cir.

1992). The Ninth Circuit includes

Alaska, Arizona, California, Guam,

Hawaii, Idaho, Montana, Nevada,

Oregon, and Washington. Although FRA

disagreed with the Ninth Circuit’s legal

rationale, FRA recognized both the

ambiguity of the HSL’s pertinent

provisions and the reasonableness of the

court’s ultimate conclusion as to the
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20495

proper reading of those provisions.

Accordingly, in the interest of uniform

application of the HSL and to promote

the safety of railroad operations, FRA

decided to treat the Ninth’s Circuit

opinion as binding throughout the

entire nation. That shift in agency

policy was announced in an October 28,

1992 letter to the Association of

American Railroads (AAR), and was

later published in the Federal Register.

58 Fed. Reg. 18,193 (1993).

FRA had always believed that both

the Ninth Circuit’s interpretation of the

relevant HSL provisions, and what

became the Seventh Circuit’s

interpretation, were reasonable. While

FRA adopted the Ninth Circuit’s

interpretation in 1992 primarily to

achieve national uniformity, the

contrary decision of the Seventh Circuit

in 1994 made that goal impossible to

achieve until the Supreme Court finally

resolved the split between the circuit

courts. Moreover, upon review of the

Seventh Circuit’s unanimous, en banc

decision, FRA concluded that the

Seventh Circuit’s reading of the

pertinent HSL provisions was better

reasoned than the decision of the Ninth

Circuit. Accordingly, FRA stated in a

March 1, 1995 letter to AAR that,

effective March 6, 1995, with respect to

locations outside of the territory of the

Ninth Circuit, FRA would revert to its

prior view that all time spent merely

waiting on a train for the arrival of

deadhead transportation to the

employee’s point of final release would

be treated as limbo time.

Now that the Supreme Court has

resolved the split in the circuits, this

means that effective January 8, 1996,

FRA treats an employee merely required

to remain on a train—at a location in

any state in the nation—while awaiting

the arrival of deadhead transportation to

the employee’s point of final release, as

neither on nor off duty; the employee’s

status most closely resembles, and is

part and parcel of, deadheading from

duty.

However, as FRA has long

maintained, if an employee is required

to perform service of any kind during

that period (e.g., protecting the train

against vandalism, observing passing

trains for any defects or unsafe

conditions, flagging, shutting down

locomotives, checking fluid levels, or

communicating train consist

information via radio), he or she will be

considered as on duty until all such

service is completed. Moreover, the

Supreme Court’s decision addressed the

situation in which a crew that has

expired under the laws is called upon

to perform nonoperational duties (i.e.,

commingled duties) while it waits for

the arrival of the deadhead vehicle after

the expiration of the maximum 12

hours. The Court made clear that the

laws account for that circumstance by

treating such time as time on duty

pursuant to 49 U.S.C. 21103(b)(3)

(commingled service provision). Of

course, where a railroad carrier’s

operating rules clearly relieve an

employee of all duties during the

waiting period and no duties are

specifically assigned, the employee’s

waiting time will be considered limbo

time.

Consistent with the Supreme Court’s

holding, FRA is ceasing all enforcement

activity concerning alleged violations of

the HSL and hours of duty records and

reporting regulations (49 CFR Part 228,

Subpart B) occurring anywhere in the

United States involving only the

awaiting deadhead issue. Allegations of

excess service involving only this issue

are no longer being investigated by FRA.

Moreover, all case files containing

violation reports involving only this

issue, regardless of the location or the

date of the alleged violation, will soon

be terminated. FRA’s Office of Chief

Counsel will provide the legal

department of each railroad impacted by

the Supreme Court’s decision with a

complete list of the case files that are

affected by this policy change.

Although time spent awaiting the

arrival of deadhead transportation to the

employee’s point of final release will

now constitute limbo time and FRA will

enforce the laws accordingly, FRA

remains concerned about instances in

which employees are held on trains for

long periods of time while awaiting the

arrival of deadhead transportation in the

absence of any valid emergency that

might explain such an occurrence. To

the extent that the waiting periods are

extremely lengthy, current scientific

information concerning sleep cycles and

the effects of fatigue on safety-sensitive

performance indicates that the waiting

periods could contribute to the

cumulative exhaustion of the employee.

This cumulative exhaustion could occur

even though the employee receives the

legally required rest period upon arrival

at the point of final release.

Accordingly, it is FRA’s expectation that

the railroad carriers will voluntarily

employ their best efforts to minimize

the time that employees spend waiting

for the arrival of deadhead

transportation. FRA also urges the

railroad carriers to devise pilot projects

under the laws, pursuant to 49 U.S.C.

21108, that might reduce the awaitingdeadhead time in return for flexibility

on other hours of service issues.

FRA is amending its current

interpretive statement in Appendix A to

49 CFR Part 228 to reflect the fact that,

in addition to computing time spent in

deadhead transportation from the final

duty assignment of the work tour to the

point of final release as limbo time (time

neither on- nor off- duty), all time spent

awaiting the arrival of a deadhead

vehicle for transportation to the point of

final release, when no additional

services are required of the railroad

employee, shall also be treated by FRA

as limbo time for purposes of the laws.

List of Subjects in 49 CFR Part 228

Penalties, Railroad employees,

Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49

CFR Part 228 is amended as follows:

PART 228—[AMENDED]

1. The authority citation for 49 CFR

Part 228 is revised to read as follows:

Authority: 49 U.S.C. 20102–20103, 20107–

20108, 20111, 20112, 21101–21108, 21303–

21304, as amended; 49 U.S.C. App. 1655(e),

as amended; 49 CFR 1.49(d), (m).

2. Appendix A to Part 228 is

amended: By revising the second

paragraph of Deadheading, under the

undesignated centerheading ‘‘Train and

Engine Service,’’ to read as follows:

Appendix A to Part 228—Requirements

of the Hours of Service Act: Statement

of Agency Policy and Interpretation

* * * * *

Train and Engine Service

* * * * *

Deadheading. * * *

All time spent awaiting the arrival of

a deadhead vehicle for transportation

from the final duty assignment of the

work tour to the point of final release is

considered limbo time, i.e., neither time

on duty nor time off duty, provided that

the employee is given no specific

responsibilities to perform during this

time. However, if an employee is

required to perform service of any kind

during that period (e.g., protecting the

train against vandalism, observing

passing trains for any defects or unsafe

conditions, flagging, shutting down

locomotives, checking fluid levels, or

communicating train consist

information via radio), he or she will be

considered as on duty until all such

service is completed. Of course, where

a railroad carrier’s operating rules

clearly relieve the employee of all duties

during the waiting period and no duties

are specifically assigned, the waiting
20496 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

time is not computed as either time on

duty or time off duty.

* * * * *

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 96–11224 Filed 5–6–96; 8:45 am]

BILLING CODE 4910–06–P

Federal Highway Administration

49 CFR Part 397

RIN 2125–AD90

Transportation of Hazardous Materials

Regulations; Technical Amendment

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Final rule; technical

amendment.

SUMMARY: This document makes a

technical amendment to correct the

authority citation for 49 CFR part 397.

A citation which was erroneously

deleted will be reinserted, and other

specific references will be added to

update this authority citation.

EFFECTIVE DATE: May 7, 1996.

FOR FURTHER INFORMATION CONTACT: Mr.

Nathan C. Root, Office of Motor Carrier

Research and Standards, (202) 366–4009

or Raymond W. Cuprill, Office of Chief

Counsel, (202) 366–0834. Office hours

are from 7:45 a.m. to 4:15 p.m., e.t.,

Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

Background

In 1988, in the course of making other

changes to part 397, the Federal

Highway Administration (FHWA)

inadvertently eliminated from the

authority citation the reference to

section 204 of the Interstate Commerce

Act, as amended (formerly found at 49

U.S.C. 304). The FHWA did not intend

to eliminate this reference, and with this

rulemaking, the FHWA is simply

reinserting into the authority citation

this reference (now codified at 49 U.S.C.

31502). The FHWA is also adding to the

authority a reference to 49 U.S.C. 31136

(formerly section 206 of the Motor

Carrier Safety Act of 1984). This citation

refers to the authority of the Secretary

of Transportation to prescribe

regulations on commercial motor

vehicle safety. In addition, the FHWA is

amending in the authority section the

current reference to 49 U.S.C. 5101 et

seq. in order to reflect the specific

sections of the law—49 U.S.C. 5112 and

5125—that provide the authority for the

regulations found in subparts C through

E of 49 CFR part 397.

Rulemaking Analyses and Notices

This final rule simply revises the

authority citation for the FHWA’s

Transportation of Hazardous Materials

regulations to remove an incorrect

reference and to insert several

references, one of which was used

previously but was then erroneously

removed. Thus, the FHWA believes that

prior notice and opportunity for

comment are unnecessary under 5

U.S.C. 553(b)(3)(B). Similarly, due to the

editorial nature of this final rule, the

FHWA has determined that prior notice

and opportunity for comment are not

required under the Department of

Transportation’s regulatory policies and

procedures. It is not anticipated that

provision of a comment period would

result in the receipt of useful

information. In this final rule, the

FHWA is not exercising discretion in a

way that could be meaningfully affected

by public comment.

In addition, the FHWA finds that

good cause exists to dispense with the

30-day delay in the effective date

required by 5 U.S.C. 553(d) due to the

minor and technical nature of these

amendments. Thus, the FHWA is

proceeding directly with a final rule

which will be effective on its date of

publication.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

Because this rule simply makes

minor, technical corrections to the

authority citation for 49 CFR part 397,

this rulemaking is not likely to have an

annual effect on the economy of $100

million or more. It is also not expected

to cause an adverse effect on any sector

of the economy. In addition, no serious

inconsistency or interference with

another agency’s actions or plans will

result. Thus, the FHWA has determined

that this action is not a significant

regulatory action under Executive Order

12866. Neither is it a significant

rulemaking under the Department of

Transportation’s regulatory policies and

procedures because it also does not

concern a matter about which there is

substantial public interest or

controversy; it will not have a

substantial effect on State and local

governments or raise a major

transportation safety problem; in

addition, it will not initiate a substantial

regulatory program or change in policy.

Therefore, a full regulatory evaluation is

not warranted.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–612), the

FHWA has evaluated the effects of this

rule on small entities. Based upon this

evaluation, the FHWA certifies that this

final rule will not have a significant

economic impact on a substantial

number of small entities.

Executive Order 12612 (Federalism

Assessment)

The FHWA has reviewed this action

to ensure its compliance with the

principles and criteria contained in

Executive Order 12612, and it has been

determined that this rulemaking does

not raise sufficient federalism issues to

warrant the preparation of a separate

Federalism Assessment. This final rule

will not preempt any State law or State

regulation, and no additional costs or

burdens will be imposed on the States.

In addition, this rule will have no effect

on the States’ ability to discharge

traditional State governmental

functions.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Number 20.217, Motor

Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain a

collection of information requirement

for the purposes of the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency has reviewed this action

to ensure compliance with the National

Environmental Policy Act of 1969 (42

U.S.C. 4321–4347) and has determined

that this action will have no effect on

the quality of the environment. Thus, an

environmental impact statement is not

required.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects in 49 CFR Part 397

Hazardous materials transportation,

Highway safety, Highways and roads,

Motor carriers, Motor vehicle safety.