Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30665 

land at Pocahontas Municipal Airport 

under the provisions of Title 49, U.S.C. 

47153(c). 

DATES: Comments must be received on 

or before July 27, 2009. 

ADDRESSES: Comments on this 

application may be mailed or delivered 

to the FAA at the following address: Mr. 

Edward N. Agnew, Manager, Federal 

Aviation Administration, Southwest 

Region, Airports Division, Arkansas/ 

Oklahoma Airports Development Office, 

ASW–630, 2601 Meacham Boulevard, 

Fort Worth, Texas 76137. 

In addition, one copy of any 

comments submitted to the FAA must 

be mailed or delivered to The Honorable 

Gary Crocker, Mayor of Pocahontas, at 

the following address: City of 

Pocahontas, 410 North Marr, 

Pocahontas, AR 72455. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Paul Burns, Federal Aviation 

Administration, Airports Development 

Office, ASW–630, 2601 Meacham 

Boulevard, Fort Worth, Texas 76137. 

The request to release property may 

be reviewed in person at this same 

location. 

SUPPLEMENTARY INFORMATION: The FAA 

invites public comment on the request 

to release property at the Pocahontas 

Municipal Airport. 

On June 18, 2009, the FAA 

determined that the request to release 

property at Pocahontas Municipal 

Airport submitted by the City of 

Pocahontas met the procedural 

requirements of the Federal Aviation 

Regulations, Part 155. The FAA may 

approve the request, in whole or in part, 

no later than July 30, 2009. 

The following is a brief overview of 

the request: 

The City of Pocahontas requests the 

release of 5.1 acres of airport property. 

The release of property will allow 

Pinnacle Frames, a local manufacturing 

facility, to improve its existing facilities 

which are on lands previously released 

by the Federal Aviation Administration. 

The release will also allow the airport 

to receive, in exchange for the 5.1-acres 

tract, a cash payment in the amount of 

$25,000.00, which the City will use for 

a 2010 capital improvement project to 

construct 1-hangars at Pocahontas 

Municipal Airport. 

Any person may inspect the request 

in person at the FAA office listed above 

under FOR FURTHER INFORMATION

CONTACT. 

In addition, any person may, upon 

request, inspect the application, notice 

and other documents germane to the 

application in person at the Pocahontas 

Municipal Airport. 

Issued in Fort Worth, Texas on June 19, 

2009. 

Lacey D. Spriggs, 

Acting Manager, Airports Division. 

[FR Doc. E9–15130 Filed 6–25–09; 8:45 am] 

BILLING CODE M 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

[Docket No. 2009–0057, Notice No. 1] 

Interim Statement of Agency Policy 

and Interpretation on the Hours of 

Service Laws as Amended; Proposed 

Interpretation; Request for Public 

Comment 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Interim statement of agency 

policy and interpretation; request for 

public comment. 

SUMMARY: In this document FRA 

informs the public at large of the 

agency’s interim position on certain 

interpretive questions arising out of the 

complex and important amendments 

enacted in 2008 to the Federal railroad 

safety laws that govern such matters as 

how long an employee in a certain 

category may remain on duty and how 

long the employee must be given off 

duty before the employee may go on 

duty again. In addition, FRA proposes 

an interpretation of one very significant 

provision of those amended laws that 

differs from FRA’s existing 

interpretation of the laws before the 

2008 amendments. Finally, FRA 

requests public comment on both the 

interim interpretations and the 

proposed interpretation. 

DATES: This document is effective on 

July 16, 2009. Comments on the interim 

interpretations are due by July 27, 2009. 

Comments on the proposed 

interpretation are due by October 26, 

2009. Late-filed comments will be 

considered to the extent practicable. 

ADDRESSES: You may submit comments 

on the interim interpretations set forth 

in this document or the proposed 

interpretation set forth in this 

document, identified by the docket 

number FRA–2009–0057, by any of the 

following methods: 

• Web Site: The Federal eRulemaking 

Portal, http://www.regulations.gov. 

Follow the Web site’s online 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., W12–140, 

Washington, DC 20590. 

• Hand Delivery: Room W12–140 on 

the ground level of the West Building, 

1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 5 

p.m. Monday through Friday, except 

Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number for this interim statement of 

agency policy and interpretation and the 

proposed interpretation. Note that all 

petitions received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

petitions, comments, or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or to Room W12– 

140 on the ground level of the West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 5 

p.m. Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Norris, Operating Practices 

Specialist, Operating Practices Division, 

Office of Safety Assurance and 

Compliance, FRA, 1200 New Jersey 

Avenue, SE., RRS–11, Mail Stop 25, 

Washington, DC 20590 (telephone 202– 

493–6242); or Colleen A. Brennan, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Avenue, SE., RCC–12, 

Mail Stop 10, Washington, DC 20590 

(telephone 202–493–6028 or 202–493– 

6052). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Background 

II. Changes in the Old Hours of Service Laws 

Made by Section 108 of the RSIA of 2008 

A. Extending Hours of Service Protections 

to Employees of Contractors and 

Subcontractors to Railroads Who 

Perform Certain Signal-Related 

Functions 

B. Changing Hours of Service 

Requirements Related to Train 

Employees 

C. Changing Hours of Service 

Requirements Related to Signal 

Employees 

III. Proposed Change in Interpretation of 

Prohibition Against a Train or Signal 

Employee Being on Duty Without Having 

Had a Minimum Number of Hours Off 

Duty During the Prior 24 Hours; 

Proposed Interpretation of That 

Prohibition in Context of New 

Prohibition Against Communication 

With Train and Signal Employees; and 

Request for Comments 

30666 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

A. Questions Presented and Short Answers 

1. Must the Full 10–Hour Period of 

Uninterrupted Rest Fall Wholly Within 

the 24-Hour Period During Which 

Covered Service May Be Performed? 

2. Is the 10-Hour Period of Undisturbed 

Rest for Train Employees and Signal 

Employees Required To Be Provided 

Immediately after the Employee Goes Off 

Duty—Meaning That if the Off-Duty 

Period Continues beyond 10 Hours, the 

Railroad May Communicate with the 

Employee after the First 10 Hours Off 

Duty? 

B. The Old 8-Hour Rest Requirement and 

the Treatment of Calls To Report for 

Duty 

1. The Old Statutory Language Establishing 

the 8-Hour Rest Requirement 

2. FRA’s Existing, Previously Published 

Interpretation of the 8-Hour Requirement 

3. Discussion of FRA’s Current 

Interpretation of the 8-Hour Rest 

Provision and Calls To Report to Duty 

C. The New 10-Hour Rest Provision and 

the Prohibition on Communication 

During That Rest 

1. Overview 

2. The Statutory Language of the New 10- 

Hour Rest Provision 

3. Discussion of Proposed Interpretation of 

New 10-Hour Rest Provision 

IV. FRA’s Interim Policies and Interpretations 

of the Hours of Service Laws as 

Amended by the RSIA of 2008 

A. Other Questions Related to the 

Prohibition on Communication With 

Train Employees and Signal Employees 

1. Does the Prohibition on Communication 

With Train Employees and Signal 

Employees Apply to Every Statutory 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, but Then Receives a Call Canceling 

the Call to Report Before He or She 

Leaves the Place of Rest, is a New Period 

of 10 Uninterrupted Hours Off Duty 

Required? 

4. What if the Call Is Cancelled Just One 

Minute Before Report-for-Duty Time? 

5. What if the Employee Was Told Before 

Going Off Duty To Report at the End of 

Required Rest (Either 10 Hours or 48 or 

72 Hours after Working 6 or 7 Days), and 

Is Released From That Call Prior to the 

Report-for-Duty Time? 

6. Are Text Messages or E-Mail Permitted 

During the Rest Period? 

7. May the Railroad Return an Employee’s 

Call During the Rest Period Without 

Violating the Prohibition on 

Communication? 

8. May the Railroad Call To Alert an 

Employee to a Delay (Set Back) or 

Displacement? 

9. If the Railroad Violates the Requirement 

of Undisturbed Rest, Is the Undisturbed 

Rest Period Restarted From the 

Beginning? 

10. Should any Violation of Undisturbed 

Rest Be Documented by an Electronic 

Record? 

11. Is the Additional Rest Required When 

On-Duty Time Plus Limbo Time Exceeds 

12 Hours (During Which Communication 

With an Employee Is Prohibited) To Be 

Measured Only in Whole Hours, So That 

the Additional Rest Requirement Is Not 

a Factor Until the Total Reaches 13 

Hours? 

B. Questions Related to the Requirements 

Applicable To Train Employees for 48 or 

72 Hours Off at the Home Terminal 

1. Is a ‘‘Day’’ a Calendar Day or a 24-Hour 

Period for the Purposes of This 

Provision? 

2. If an Employee Is Called for Duty but 

Does Not Work, Has the Employee 

Initiated an On-Duty Period? Is There a 

Call and Release? What if the Employee 

Has Reported? 

3. Does Deadheading From a Duty 

Assignment to the Home Terminal for 

Final Release on the 6th Or 7th Day 

Count as a Day that Triggers the 48-Hour 

or 72-Hour Rest Period Requirement? 

4. Does Attendance at a Mandatory Rules 

Class or Other Mandatory Activity That 

is Not Covered Service but is NonCovered Service, Count as Initiating an 

On-Duty Period on a Day? 

5. If an Employee Is Marked Up on an Extra 

Board for 6 Days but Only Works 2 Days 

Out of the 6, Is the 48-Hour Rest 

Requirement Triggered? 

6. If an Employee Initiates an On-Duty 

Period on 6 Consecutive Days, Ending at 

an Away-from-Home Terminal and Then 

Has 28 Hours Off at an Away-FromHome Terminal, May the Employee 

Work Back to the Home Terminal? The 

Statute Says That After Initiating an OnDuty 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 Awayfrom-Home Terminal after the 6th Day? 

7. May an Employee Who Works 6 

Consecutive Days Vacation Relief at a 

‘‘Temporary Home Terminal’’ Work Back 

to the Regular Home Terminal on the 7th 

Day? 

8. Employees Are Not Allowed To Perform 

‘‘Any Service for Any Railroad Carrier’’ 

During these Required 48-Hour or 72- 

Hour Rest Periods. This Language Is Not 

Applied to Rest Periods elsewhere in the 

Statute. Does this Mean That if an 

Employee Is Employed by More than 

One Railroad, then Employing Railroad 

A Must Aggregate the Time the 

Employee Spends Working for Any 

Other Railroad With the Time the 

Employee Works for Railroad A? 

C. Questions Related to the 276-Hour 

Monthly Maximum for Train Employees 

of Time on Duty, Waiting for or Being in 

Transportation to Final Release, and in 

Other Mandatory Service for the Carrier 

1. If an Employee Reaches or Exceeds 276 

Hours for the Calendar Month During a 

Trip that Ends at the Employee’s 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 

Section 108 of the RSIA of 2008 

1. Do the 40-Hour and 30-Hour Monthly 

Maximum Limitations on Time Awaiting 

and in Deadhead Transportation to Final 

Release Only Apply to Time Awaiting 

and in Deadhead Transportation After 12 

Consecutive Hours on Duty? 

2. Did the RSIA of 2008 Affect Whether a 

Railroad May Obtain a Waiver of the 

Provisions of the New Hours of Service 

Laws? 

I. Background 

On October 16, 2008, the Rail Safety 

Improvement Act of 2008 (RSIA of 

2008) was enacted. See Public Law 110– 

432, Div. A, 122 Stat. 4848. Section 108, 

Hours-of- service reform, of the RSIA of 

2008 made important changes to 49 

U.S.C. ch. 211, Hours of service, as 

amended through October 15, 2008 (the 

old hours of service laws). See 122 Stat. 

4860–4866. Some of these changes 

became effective immediately on the 

date of enactment, and others became 

effective nine months later, on July 16, 

2009. In particular, under section 108(g) 

of the RSIA of 2008, subsections (d), (e), 

(f), and (g) of the section became 

effective on the date of enactment of the 

RSIA of 2008, and subsections (a), (b), 

and (c) of the section become effective 

nine months later, on July 16, 2009. 

Because of the significance of the 

amendments to the old hours of service 

laws made by section 108 of the RSIA 

of 2008, FRA is publishing this interim 

statement of agency policy and 

interpretation to address questions of 

statutory interpretation that have arisen 

since their enactment. 

Currently, FRA is not addressing the 

amendments to the old hours of service 

laws made by section 420 of the RSIA 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30667 

of 2008, which changed 49 U.S.C. 

21106, Limitations on employee 

sleeping quarters, effective October 16, 

2008. Nor is FRA presently revising 

either appendix A of 49 CFR part 228, 

which contains FRA’s previously 

published interpretations of the old 

hours of service laws, known until the 

1994 recodification as the Hours of 

Service Act (see Pub. L. 103–272), nor 

FRA’s previously published 

interpretations concerning the 

limitations on hours of service of 

individuals engaged in installing, 

repairing or maintaining signal systems, 

an interim statement of agency policy 

and interpretation at 42 FR 4464 (Jan. 

25, 1977). FRA is also not interpreting 

its recently issued regulations revising 

its hours of service recordkeeping 

requirements, published in the Federal 

Register on May 27, 2009 (74 FR 25330). 

FRA seeks comment on this interim 

statement and the proposed 

interpretation and has sought informal 

input on many of the interpretive issues 

addressed in this document through the 

agency’s Railroad Safety Advisory 

Committee (RSAC). On May 27, 2009, 

FRA published a regulation, mandated 

by section 108(f) of the RSIA of 2008, 

revising the hours of service 

recordkeeping requirements to support 

compliance with the hours of service 

laws as amended by the RSIA of 2008 

(the new hours of service laws); to 

authorize electronic recordkeeping, and 

reporting of excess service, consistent 

with appropriate considerations for user 

interface; and to require training of 

affected employees and supervisors, 

including training of employees in the 

entry of hours of service data. 74 FR 

25330, 25345 (May 27, 2009). FRA 

utilized the RSAC and an RSAC 

working group (Working Group) in the 

development of this regulation, and 

while the task of the Working Group 

was officially limited to developing the 

regulatory text related to hours of 

service recordkeeping, FRA sought the 

input of the members of the Working 

Group on the interpretive issues it was 

considering. FRA also shared with the 

Working Group its preliminary thoughts 

on some of the interpretive questions, 

and FRA’s interpretations have been 

made in consideration of the feedback 

from the Working Group. 

It is FRA’s intention that the 

interpretations provided in this interim 

statement of agency policy and 

interpretation will go into effect on July 

16, 2009, the effective date of some of 

the most important substantive changes 

to the old hours of service laws resulting 

from the RSIA of 2008. FRA will 

consider comments received in response 

to these interim interpretations of the 

new hours of service laws, and may 

modify these interpretations based on 

comments or if experience with the new 

statutory requirements indicates that a 

change in interpretation is needed. 

However, FRA is specifically seeking 

comment with regard to one issue to be 

discussed in this document related to 

the limitation on hours of both train 

employees and signal employees, 

specifically, the beginning of the 24- 

hour period in which the maximum 

allowed time on duty and minimum 

required time off duty are calculated. As 

will be explained below, FRA proposes 

to interpret the 24-hour period within 

which an employee must have had the 

minimum statutory off-duty period as 

lying within the 24-hour period during 

which not more than 12 hours of 

covered and commingled service may 

accrue. FRA believes that this new 

approach, which may be described as 

‘‘continuous lookback,’’ conforms to the 

plain meaning of the law, which by its 

terms prohibits an employee from going 

or remaining on duty unless the 

employee has received 10 hours of rest 

in the prior 24 hours. This would be a 

significant change from FRA’s 

previously published interpretation. 

While FRA believes its proposed 

interpretation is consistent with the 

statutory language, it is seeking 

comment as to the effect that this 

proposed change of interpretation 

would have on the industry, and, if 

adopted by FRA, this change in 

interpretation would not go into effect 

until FRA has had the opportunity to 

consider any comments received. 

II. Changes in the Old Hours of Service 

Laws Made by Section 108 of the RSIA 

of 2008 

A. Extending Hours of Service 

Protections to Employees of Contractors 

and Subcontractors to Railroads Who 

Perform Certain Signal-Related 

Functions 

Effective July 16, 2009, section 108(a) 

of the RSIA of 2008 (Section 108(a)) 

amends the definition of ‘‘signal 

employee’’, to eliminate the words 

‘‘employed by a railroad carrier’’. To be 

codified at 49 U.S.C. 21101(4). With this 

amendment, employees of contractors or 

subcontractors to a railroad who are 

engaged in installing, repairing, or 

maintaining signal systems (the 

functions within the definition of signal 

employee in the old hours of service 

laws) will be covered by the new hours 

of service laws, because a signal 

employee under the new hours of 

service laws is no longer by definition 

only a railroad employee. 

It should be noted that an employee 

of a contractor or subcontractor to a 

railroad who is ‘‘engaged in or 

connected with the movement of a 

train’’ was considered a ‘‘train 

employee’’ under the old hours of 

service laws and continues to be 

considered a train employee under the 

new hours of service laws. 49 U.S.C. 

21101(5). Likewise, an employee of a 

contractor or subcontractor to a railroad 

who ‘‘by the use of an electrical or 

mechanical device dispatches, reports, 

transmits, receives, or delivers orders 

related to or affecting train movements’’ 

was considered a ‘‘dispatching service 

employee’’ under the old hours of 

service laws and continues to be 

considered a ‘‘dispatching service 

employee’’ under the new hours of 

service laws. 49 U.S.C. 21101(2). 

B. Changing Hours of Service 

Requirements Related to Train 

Employees 

Section 108(b) of the RSIA of 2008 

(Section 108(b)) amends the old hours of 

service requirements for train 

employees in many ways, all of which 

amendments are effective July 16, 2009, 

except with respect to train employees 

providing commuter or intercity 

passenger rail service, whom section 

108(d) of the RSIA of 2008 makes 

subject initially to the old hours of 

service laws and then to regulations if 

issued timely and, if not, to the new 

hours of service laws. To be codified at 

49 U.S.C. 21103 and 21102, 

respectively. (See further discussion of 

the exception in this II.B, below.) 

Section 108(b) limits train employees to 

276 hours of time on-duty, awaiting or 

in deadhead transportation from a duty 

assignment to the place of final release, 

or in any other mandatory service for 

the carrier per calendar month. To be 

codified at 49 U.S.C. 21103(a)(1). The 

provision retains the existing maximum 

of 12 consecutive hours on duty, but 

increases the minimum off-duty period 

to 10 hours consecutive hours during 

the prior 24-hour period. To be codified 

at 49 U.S.C. 21103(a)(2), (3). 

Section 108(b) also requires that after 

an employee initiates an on-duty period 

each day for six consecutive days, the 

employee must receive at least 48 

consecutive hours off duty at the 

employee’s home terminal, during 

which the employee is unavailable for 

any service for any railroad; except that 

if the sixth on-duty period ends at a 

location other than the home terminal, 

the employee may initiate an on-duty 

period for a seventh consecutive day, 

but must then receive at least 72 

consecutive hours off duty at the 

employee’s home terminal, during 

30668 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

1The language of Section 108(b) must be read in 

conjunction with the language of Section 108(g), 

which provides that Section 108(b) becomes 

effective on July 16, 2009. 

which time the employee is unavailable 

for any service for any railroad. To be 

codified at 49 U.S.C. 21103(a)(4). 

Section 108(b) further provides that 

employees may also initiate an on-duty 

period for a seventh consecutive day 

and receive 72 consecutive hours off 

duty if such schedules are provided for 

in existing collective bargaining 

agreements for a period of 18 months, or 

after 18 months by collective bargaining 

agreements entered into during that 

period, or a pilot program that is either 

authorized by collective bargaining 

agreement, or related to work rest cycles 

under section 21108 of the new hours of 

service laws. To be codified at 49 U.S.C. 

21103(a)(4). 

Section 108(b) also provides that the 

Secretary may waive the requirements 

of 48 and 72 consecutive hours off duty 

if the procedures of 49 U.S.C. 20103 are 

followed, if a collective bargaining 

agreement provides a different 

arrangement that the Secretary 

determines is in the public interest and 

consistent with safety. Id. 

Section 108(b) also significantly 

changes the old hours of service 

requirements for train employees by 

establishing for the first time a 

limitation on the amount of time an 

employee may spend awaiting and in 

deadhead transportation. To be codified 

at 49 U.S.C. 21103(c)(1). In particular, a 

railroad may not require or allow an 

employee to exceed 40 hours per month 

awaiting or in deadhead transportation 

from duty that is neither time on duty 

nor time off duty from the July 16, 2009 

effective date of the provision through 

October 15, 2009,1 with that number 

decreasing to 30 hours per employee per 

month beginning October 16, 2009, 

except in certain situations. These 

monthly limits do not apply if the train 

carrying the employee is directly 

delayed by casualty, accident, act of 

God, derailment, major equipment 

failure that keeps the train from moving 

forward, or other delay from 

unforeseeable cause. To be codified at 

49 U.S.C. 21103(c)(2). Railroads are 

required to report to the Secretary all 

instances in which these limitations are 

exceeded. To be codified at 49 U.S.C. 

21103(c)(3). In addition, the railroad is 

required to provide the train employee 

with additional time off duty equal to 

the amount that combined on-duty time 

and time awaiting or in transportation to 

final release exceeds 12 hours. To be 

codified at 49 U.S.C. 21103(c)(4). 

Finally, Section 108(b) restricts 

communication with train employees 

except in case of emergency during the 

minimum off-duty period, statutory 

periods of interim release, and periods 

of additional rest required equal to the 

amount that combined on-duty time and 

time awaiting or in transportation to 

final release exceeds 12 hours. To be 

codified at 49 U.S.C. 21103(e). However, 

the Secretary may waive this provision 

for train employees of commuter or 

intercity passenger railroads if the 

Secretary determines that a waiver 

would not reduce safety and is 

necessary to efficiency and on time 

performance. Id. 

However, as was alluded to earlier, 

section 108(d) of the RSIA of 2008 

(Section 108(d)), which became effective 

on October 16, 2008, provides that the 

requirements described above for train 

employees will not go into effect on July 

16, 2009, for train employees of 

commuter and intercity passenger 

railroads. 49 U.S.C. 21102(c). Section 

108(d) provides the Secretary with the 

authority to issue hours of service rules 

and orders applicable to these train 

employees, which may be different than 

the statute applied to other train 

employees. 49 U.S.C. 21109(b). Section 

108(d) further provides that these train 

employees who provide commuter or 

intercity passenger rail service will 

continue to be governed by the old 

hours of service laws (as they existed 

immediately prior to the enactment of 

the RSIA of 2008) until the effective 

date of regulations promulgated by the 

Secretary. 49 U.S.C. 21102(c). However, 

if no new regulations have been 

promulgated before October 16, 2011, 

the provisions of Section 108(b) would 

be extended to these employees at that 

time. Id. 

C. Changing Hours of Service 

Requirements Related to Signal 

Employees 

Section 108(c) of the RSIA of 2008 

(Section 108(c)) amends the hours of 

service requirements for signal 

employees in a number of ways, 

effective July 16, 2009. To be codified at 

49 U.S.C. 21104. As was noted above, by 

amending the definition of ‘‘signal 

employee,’’ Section 108(a) extends the 

reach of the substantive requirements of 

Section 108(c) to a contractor or 

subcontractor to a railroad carrier and 

its officers and agents. To be codified at 

49 U.S.C. 21101(4). In addition, as 

Section 108(b) does for train employees, 

Section 108(c) retains for signal 

employees the existing maximum of 12 

consecutive hours on duty, but 

increases the minimum off-duty period 

to 10 hours consecutive hours during 

the prior 24-hour period. To be codified 

at 49 U.S.C. 21104(a)(1), (2). Further, 

Section 108(c) deletes the prohibition in 

the old hours of service laws at 49 

U.S.C. 21104(a)(2)(C) against requiring 

or allowing a signal employee to remain 

or go on duty ‘‘after that employee has 

been on duty a total of 12 hours during 

a 24-hour period, or after the end of that 

24-hour period, whichever occurs first, 

until that employee has had at least 8 

consecutive hours off duty.’’ 

Section 108(c) also eliminates 

language in the old hours of service 

laws stating that last hour of signal 

employee’s return from final trouble call 

is time off duty, and defines ‘‘emergency 

situations’’ in which the new hours of 

service laws permits signal employees 

to work additional hours not to include 

routine repairs, maintenance, or 

inspection. To be codified at 49 U.S.C. 

21104(b), (c). 

Section 108(c) also contains language 

virtually identical to that in Section 

108(b) for train employees, prohibiting 

railroad communication with signal 

employees during off-duty periods 

except for in an emergency situation. To 

be codified at 49 U.S.C. 21104(d). 

Finally, Section 108(c) provides that 

the hours of service, duty hours, and 

rest periods of signal employees are 

governed exclusively by the new hours 

of service laws, and that signal 

employees operating motor vehicles are 

not subject to other hours of service, 

duty hours, or rest period rules besides 

FRA’s. To be codified at 49 U.S.C. 

21104(e). 

The requirements of the old hours of 

service laws for dispatching service 

employees (49 U.S.C. 21105) were not 

modified by the RSIA of 2008. 

III. Proposed Change in Interpretation 

of Prohibition Against a Train or Signal 

Employee Being on Duty Without 

Having Had a Minimum Number of 

Hours Off Duty During the Prior 24 

Hours; Proposed Interpretation of That 

Prohibition in Context of New 

Prohibition Against Communication 

With Train and Signal Employees; and 

Request for Comments 

A. Questions Presented and Short 

Answers 

1. Must the Full 10-Hour Period of 

Uninterrupted Rest Fall Wholly Within 

the 24-Hour Period During Which 

Covered Service May Be Performed? 

Short Answer: No, if FRA applies to 

the new 10-hour statutory provision the 

agency’s longstanding interpretation of 

the old 8-hour statutory provision, the 

10-hour uninterrupted rest period 

would not diminish the 24-hour period 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30669 

2 In addition, section 21104(a)(2)(C) of title 49, 

U.S.C., provides that a railroad carrier, its officers 

and agents may not require or allow a signal 

employee to remain or go on duty ‘‘after that 

employee has been on duty a total of 12 hours 

during a 24-hour period, or after the end of that 24- 

hour period, whichever occurs first, until that 

employee has had at least 8 consecutive hours off 

duty.’’ 

3Section 2(a) of the Hours of Service Act 

provided: 

It shall be unlawful for any common carrier, its 

officers or agents, subject to this Act— 

‘‘(1) To require or permit an employee, in case 

such employee shall have been continuously on 

duty for fourteen hours, to continue on duty or to 

go on duty until he has had at least ten consecutive 

hours off duty, except that, effective upon the 

expiration of the two-year period beginning on the 

effective date of this paragraph, such fourteen-hour 

duty period shall be reduced to twelve hours; or 

‘‘(2) To require or permit an employee to continue 

on duty or to go on duty when he has not had at 

least eight consecutive hours off duty during the 

preceding twenty-four hours. 

during which covered service may be 

performed. 

Yes, if FRA adopts its proposed 

interpretation of the new 10-hour 

statutory provision, which would 

require that the full 10-hour 

undisturbed off-duty period occupy 10 

hours of the 24-hour period during 

which covered service may be 

performed. 

2. Is the 10-Hour Period of Undisturbed 

Rest for Train Employees and Signal 

Employees Required To Be Provided 

Immediately After the Employee Goes 

Off Duty—Meaning That if the Off-Duty 

Period Continues Beyond 10 Hours, the 

Railroad May Communicate With the 

Employee After the First 10 Hours Off 

Duty? 

Short Answer: Yes, if FRA applies to 

the new 10-hour statutory provision the 

agency’s longstanding interpretation of 

the old 8-hour statutory provision, then 

the 10-hour period of undisturbed rest 

may be given immediately after the 

employee goes off duty, and the railroad 

may communicate with the employee 

after the first 10 hours off duty. 

Not necessarily, if FRA adopts its 

proposed interpretation of the 10-hour 

statutory provision, because for the 

railroad to maximize the work window 

during which a train or signal employee 

may be on duty to a 14-hour period, the 

railroad must give notice of the 

employee’s next reporting time before 

the employee begins the 10-hour rest 

period. 

B. The Old 8-Hour Rest Requirement 

and the Treatment of Calls To Report for 

Duty 

1. The Old Statutory Language 

Establishing the 8-Hour Rest 

Requirement 

Section 21103(a)(1) of title 49, U.S.C., 

in effect through July 15, 2009, reads as 

follows: ‘‘Except as provided in 

subsection (c) of this section [pertaining 

to emergencies], a railroad carrier and 

its officers and agents may not require 

or allow a train employee to remain or 

go on duty * * * unless that employee 

has had at least 8 consecutive hours off 

duty during the prior 24 hours.’’ 

Section 21104(a)(2)(A) of title 49, 

U.S.C., in effect through July 15, 2009, 

provides the identical requirement for 

signal employees.2

2. FRA’s Existing, Previously Published 

Interpretation of the 8-Hour 

Requirement 

The existing interpretation of the 

equivalent provision for train employees 

in the Hours of Service Act 3 reads as 

follows: 

Limitations on Hours. The Act establishes 

two limitations on hours of service. First, no 

employee engaged in train or engine service 

may be required or permitted to work in 

excess of twelve consecutive hours. After 

working a full twelve consecutive hours, an 

employee must be given at least ten 

consecutive hours off duty before being 

permitted to return to work. 

Second, no employee engaged in train or 

engine service may be required or permitted 

to continue on duty or go on duty unless he 

has had at least eight consecutive hours off 

duty within the preceding twenty-four hours. 

This latter limitation, when read in 

conjunction with the requirements with 

respect to computation of duty time 

(discussed below) results in several 

conclusions: 

(1) When an employee’s work tour is 

broken or interrupted by a valid period of 

interim release (4 hours or more at a 

designated terminal), he may return to duty 

for the balance of the total 12-hour work tour 

during a 24-hour period. 

(2) After completing the 12 hours of broken 

duty, or at the end of the 24-hour period, 

whichever occurs first, the employee may not 

be required or permitted to continue on duty 

or to go on duty until he has had at least 8 

consecutive hours off duty. 

(3) The 24-hour period referred to in 

paragraphs 1 and 2 above shall begin upon 

the commencement of a work tour by the 

employee immediately after his having 

received a statutory off-duty period of 8 or 10 

hours as appropriate. 

[Emphasis supplied.] 

FRA’s existing interpretation of the 

language related to signal employees 

reads as follows: 

LIMITATIONS ON HOURS 

No individual employed by a common 

carrier in installing, repairing or maintaining 

signal systems may be required or permitted 

to work in excess of twelve continuous 

hours, After working twelve continuous 

hours, an individual must be given at least 

ten consecutive hours off duty before being 

permitted to return to work. 

No individual engaged in covered work 

may be required or permitted to continue on 

duty or go on duty unless he has had ‘‘at least 

eight consecutive hours off duty within the 

preceding twenty-four hours.’’ The clear 

spirit and intent of the quoted language lead 

to the conclusions that: 

(1) When the time on duty is broken or 

interrupted by off-duty periods of less than 

8 consecutive hours, the individual may be 

on duty up to a maximum of 12 hours during 

a 24 hour period, so long as such individual 

has had a statutory off-duty period of at least 

8 or 10 consecutive hours immediately prior 

to reporting for work. 

(2) After completing the 12 hours of broken 

duty, or at the end of, the 24 hour period, 

whichever occurs first, the employee may not 

be required or permitted to continue on duty 

or to go on duty until he has had at least 8 

consecutive hours off duty. 

(3) The 24-hour period referred to in 

paragraphs 1 and 2 above shall begin when 

an employee reports for work immediately 

after his having had a statutory off-duty 

period of 8 or 10 hours. 

42 FR 4464, 4466 (Jan. 25, 1977). 

3. Discussion of FRA’s Current 

Interpretation of the 8–Hour Rest 

Provision and Calls To Report to Duty 

Under the old hours of service laws, 

and the current FRA interpretations, as 

cited above, a 24-hour period begins 

when an employee reports for duty. At 

the instant that the employee reports for 

duty, FRA looks back at the 24-hour 

period before the employee reported for 

duty to see that the employee had at 

least 8 consecutive hours off (or 10 

consecutive hours off if the employee 

worked 12 consecutive hours) following 

the prior duty assignment. If so, then the 

employee has a maximum of 12 hours 

to work in the next 24 hours, and must 

get 8 or 10 hours off either after working 

that 12 hours or at the end of the 24- 

hour period, whichever occurs first, 

before going on duty again. After the 

employee receives a statutory off-duty 

period (i.e., at least 8 or consecutive 10 

hours, whichever is applicable), when 

the employee next reports for duty, a 

new 24-hour period begins for the 

purpose of calculating time on duty, and 

the requirement of the statutory off-duty 

period. 

Therefore, an employee who works in 

broken service (e.g., 8 hours on, then 4 

hours off, then 4 hours on) just has to 

get the 8 or 10 hours off somewhere 

within the 24-hour period before the 

employee begins the tour of duty. FRA 

has not required the 8 or 10 hours to be 

any particular set of hours in the 24- 

hour period before commencing the 

current duty tour. If the employee 

continues off duty after having received 

at least the minimum statutory off-duty 

period, the railroad may call the 

employee repeatedly before the 

30670 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

4Effective July 16, 2009, section 21103(e) of title 

49 U.S.C. will provide as follows: 

‘‘Communication During Time Off Duty.—During 

a train employee’s minimum off-duty period of 10 

consecutive hours, as provided under subsection (a) 

or during an interim period of at least 4 consecutive 

hours available for rest under subsection (b)(7) or 

during additional off-duty hours under subsection 

(c)(4), a railroad carrier, and its officers and agents, 

shall not communicate with the train employee by 

telephone, by pager, or in any other manner that 

could reasonably be expected to disrupt the 

employee’s rest. Nothing in this subsection shall 

prohibit communication necessary to notify an 

employee of an emergency situation, as defined by 

the Secretary. The Secretary may waive the 

requirements of this paragraph for commuter or 

intercity passenger railroads if the Secretary 

determines that such a waiver will not reduce safety 

and is necessary to maintain such railroads’ 

efficient operations and on-time performance of its 

trains.’’ 

Effective July 16, 2009, section 21104(d) of title 

49 U.S.C. will provide as follows: 

‘‘Communication During Time Off Duty.—During 

a signal employee’s minimum off-duty period of 10 

consecutive hours, as provided under subsection 

(a), a railroad carrier or a contractor or 

subcontractor to a railroad carrier, and its officers 

and agents, shall not communicate with the signal 

employee by telephone, by pager, or in any other 

manner that could reasonably be expected to 

disrupt the employee’s rest. Nothing in this 

subsection shall prohibit communication necessary 

to notify an employee of an emergency situation, as 

defined by the Secretary.’’ 

5 Indeed, FRA acknowledged this when issuing 

its current interpretation, providing, ‘‘A very literal 

reading of the statute would require that the 

required 8-hour release period be within the 

‘‘preceding twenty-four hours’’ described in section 

2(a)(2) of the statute * * * in every instance. That 

employee comes on duty. While these 

contacts would break the continuity of 

the off-duty period, and might 

commingle with the next duty tour if 

the employee does not receive a 

statutory off-duty period, the calls 

themselves would not violate the law, 

once the minimum statutory off-duty 

period is completed. 

Further, a settled FRA interpretation 

adopted shortly after the 1969 

amendments to the Hours of Service 

Act, with encouragement from the 

industry parties, has permitted the 

railroad to address one call to an 

employee during the rest period for the 

purpose of advising the employee 

concerning the place and time that the 

employee is to appear for the next 

assignment, without that call being 

considered an interruption of the 

required 8- or 10-hour statutory release. 

(This interpretation is emphatically 

extinguished for train employees in 

freight service, beginning on July 16, as 

result of enactment of a provision in 

Section 108(b) to be codified at 49 

U.S.C. 21103(e). FRA proposes to 

continue it in effect for train employees 

in passenger service to maintain the 

status quo pending further rulemaking, 

as the Congress intended in enacting, 

effective October 16, 2008, 49 U.S.C. 

21102(c).) 

The purpose and effect of FRA’s 

interpretation regarding the issue of 8 

consecutive hours off duty within the 

prior 24 hours were to ease planning by 

permitting railroads to look forward 

from the time that the employee 

reported for work. The interpretation 

assumed that 8 or 10 hours of rest 

immediately preceded the time that the 

employee went on duty, which was 

ordinarily the case (there having been a 

single call for the assignment, which by 

interpretation did not interrupt the 

period of rest). Where there were 

multiple calls outside the basic period 

of rest, they were commingled with 

subsequent service, so in fact the 

commencement of the duty tour 

immediately followed the statutory rest. 

As a practical matter, the prior 

interpretation had little effect on hours 

worked, since as a practical matter only 

a highly unusual pattern of broken 

service (e.g., 4 on, 6 off, 4 on, 6 off, 4 

on) could result in work occurring in 

defiance of the literal language of the 

law, as the employee would have 

worked 12 hours in the 24-hour period 

without ever having 8 hours off duty in 

the prior 24 hours. This seldom if ever 

has occurred, and at no time since 

publication of interpretations in 

appendix A to 49 CFR part 228 in 1977 

has FRA had occasion to question the 

wisdom of this approach. 

C. The New 10–Hour Rest Provision and 

the Prohibition on Communication 

During That Rest 

1. Overview 

Under the hours of service laws as 

amended by the RSIA of 2008, the 

minimum statutory off-duty period for 

train employees and signal employees, 

for purposes of what will be codified at 

49 U.S.C. 21103(a)(3) and 49 U.S.C. 

21104(a)(2) is 10 hours, regardless of 

how many hours are worked and 

whether service is consecutive or 

broken, and any interruption of a rest 

period before its desired duration has 

been achieved (10 hours for full rest, 4 

hours for a train employee’s interim 

release, etc.) restarts the clock for the 

minimum full rest period because of the 

new prohibition to be codified at 49 

U.S.C. 21103(e) and 21104(d).4

2. The Statutory Language of the New 

10-Hour Rest Provision 

Effective July 16, 2009, the RSIA of 

2008 amends 49 U.S.C. 21103(a) to 

provide, inter alia, that ‘‘[e]xcept as 

provided in subsection (d) of this 

section, a railroad carrier and its officers 

and agents may not require or allow a 

train employee to * * * (3) remain or go 

on duty unless that employee has had 

at least 10 consecutive hours off duty 

during the prior 24 hours * * *’’ The 

predecessor provision is 49 U.S.C. 

21103(a)(1). The changes made to this 

predecessor provision are fairly minor: 

redesignating subsection (c), regarding 

emergencies, as subsection (d); 

transferring the phrase ‘‘remain or go on 

duty’’ in the introductory text of the 

subsection (a) to the beginning of 

subsection (a)(3); transferring all the 

language in subsection (a)(1) (‘‘unless 

that employee has had at least 8 

consecutive hours off duty during the 

prior 24 hours’’) to subsection (a)(3); 

and then changing ‘‘8’’ to ‘‘10’’ in the 

minimum off-duty period. 

Effective July 16, 2009, the RSIA of 

2008 also amends 49 U.S.C. 21104(a) to 

provide that ‘‘[e]xcept as provided in 

subsection (c) of this section, a railroad 

carrier and its officers and agents may 

not require or allow its signal employees 

to remain or go on duty and a contractor 

or subcontractor to a railroad carrier and 

its officers and agents may not require 

or allow its signal employees to remain 

or go on duty * * * (2) unless that 

employee has had at least 10 

consecutive hours off duty during the 

prior 24 hours.’’ For purposes of this 

discussion, the changes are minor, the 

most salient of which are to change ‘‘8’’ 

to ‘‘10’’ as the minimum off-duty period. 

3. Discussion of Proposed Interpretation 

of New 10-Hour Rest Provision 

FRA is concerned that, as applied to 

the revised laws, the existing, ‘‘fresh 

start’’ interpretation conflicts with the 

plain meaning of laws by excluding the 

10-hour period from the ‘‘prior 24 

hours’’ to which the revised statute 

refers. Although the ‘‘fresh start’’ 

approach may have had some merit to 

simplify planning under the old hours 

of service laws, it does not appear to 

track the purpose or intent of the new, 

more stringent statute. Accordingly, 

FRA proposes to enforce the plain 

meaning of the revised statute, i.e., no 

train employee or signal employee may 

be required or permitted to go or remain 

on duty unless that employee had 

received at least 10 consecutive hours of 

rest within any of the 24-hour periods 

prior to any of the moments in question 

(i.e., any instant that the employee goes 

or remains on duty during the duty 

tour), rather than the one 24- hour 

period prior to the one moment that the 

employee commences the duty tour. 

This new approach, which may be 

described as ‘‘continuous lookback,’’ 

conforms to the plain meaning of the 

law, which by its terms prohibits an 

employee from going or remaining on 

duty unless the employee has received 

10 hours of rest in the prior 24 hours.5

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30671 

would mean that broken service would have to be 

distributed within the remaining 16 hours in every 

instance. (For instance, 4 hours on duty, 4 hours off 

duty—the minimum permitted and 4 hours on 

duty.).’’ 42 FR 27594, 27595 (May 31, 1977). 

6More than 10 hours uninterrupted rest would be 

required for a train employee if additional rest is 

required as a result of time spent awaiting or in 

deadhead transportation after 12 hours on duty. To 

be codified at 49 U.S.C. 21103(c)(4). 

7This is a formal concern, but FRA is not 

persuaded that it is a practical concern, as the 

employer will have little reason to contact the 

employee until next assignment is approaching, and 

the employee’s circadian pattern will tend to 

support quality sleep during the nighttime hours. 

It appears that this interpretation would 

also best address the acute fatigue of 

employees working at different times of 

day and night, by ensuring that their 

best opportunity for rest, free from 

interruptions by the railroad, comes just 

prior to their going back on duty, so that 

they are well rested when they go to 

work, and better able to remain 

reasonably so throughout the duty tour. 

There would be practical challenges 

associated with the continuous lookback 

approach, and the utilization of 

employees could be constrained. First, it 

would be particularly important that 

crews be scheduled precisely in order to 

obtain best use of their available time, 

particularly for extended assignments 

(i.e., those approaching the maximum 

12 hours on duty, or exceeding 12 hours 

total time on duty when on-duty time is 

combined with time spent waiting for 

deadhead transportation or in deadhead 

transportation to the place of final 

release). For typical over-the-road 

assignments, railroads might either have 

to notify the employee of the time to 

report 10 or more hours before the time 

the employee is wanted, so that the last 

10 or more hours would be 

uninterrupted,6 or else have to call 

immediately at the conclusion of a 

known period of rest, providing notice 

of the next assignment within a short 

time prior to its beginning. A typical 

maximum pattern might be a ‘‘2-hour’’ 

call (i.e., a call from the railroad 

notifying the employee to report for 

duty 2 hours later), followed by an onduty period of 12 consecutive hours. 

This approach would effectively 

eliminate the possibility of 12 hours of 

broken service, because the interim 

period of release would also occur 

within the 24-hour period. (For 

example, with a 2-hour call, 8 hours of 

work, and 4 hours off, any resumption 

of work would be barred because 

following the aggregate period of 14 

hours (2+8+4) any ‘‘look back’’ to find 

a continuous 10-hour period of release 

within the prior 24 hours would be 

futile.) By contrast, lesser periods of 

aggregate service might be plausible 

(e.g., a call prior to the 10-hour rest 

period, 5 hours on duty, 4 hours off 

duty, 5 hours on duty, allowing a total 

of 10 hours of on-duty time before the 

24-hour duty period would have to end, 

because an instant later the prior 24- 

hour period would not include a period 

of 10 consecutive hours off). 

Clearly the means by which ‘‘pool 

crews’’ and ‘‘extra board’’ assignments 

are managed would need to be altered 

if the railroad wished to get full use of 

the employee’s allowed 12 hours. To 

accomplish this, among the options 

available to the railroad would be to tell 

the employee when to come back before 

the employee is released from the 

previous duty tour, or to notify the 

employee when he or she is about 10 

hours out from the next call. If the 

projected time is later set back, the 

railroad would need to notify the 

employee of the setback up to 10 hours 

before the new time that the employee 

would need to report, because those 

next 10 hours would be the 

uninterrupted rest. 

FRA has identified the following 

positive aspects of the proposed 

interpretation: 

• Appears most faithful to the literal 

language of the statute. 

• The legislative history of the RSIA 

of 2008 reiterates the statutory language, 

which has not significantly changed, the 

literal meaning of which FRA has 

always believed supports the proposed 

interpretation. 

• Best ensures that meaningful rest 

closely precedes the period of work, 

supporting the safety purpose of the 

laws. 

• Creates a strong incentive for 

employers to plan their operations in 

such a way that employees can 

effectively plan their rest. 

• Prevents periods of aggregate 

service potentially extending for up to 

24 hours without substantial rest. 

FRA has identified the following 

negative aspects of the proposed 

interpretation: 

• Departs from a settled 

interpretation, which could require 

significant training and adjustment in 

expectations regarding the operation of 

the law. 

• During periods of stress on rail 

operations, could limit availability of 

employees and efficiency of operations. 

• To the extent that employers notify 

employees of assignments precisely 10 

hours prior to the time for reporting, the 

rest period could be compromised by 

the requirement to accomplish travel to 

the report-for-duty location within the 

10 hours. 

• Might not produce uniformly 

positive outcomes in terms of safety 

(e.g., to the extent that an employee is 

released from service in the late evening 

hours, the best time for rest could be 

immediately, rather than just before the 

onset of the duty tour).7

FRA requests comments on this 

proposed change in interpretation, 

including the options for adapting to the 

interpretation if adopted, the 

operational difficulties presented by the 

proposed interpretation, and the 

circumstances most likely to present 

such difficulty. FRA asks that those 

objecting to the proposed interpretation 

provide their views as to the better 

interpretation that would satisfy the 

language and the intent of the statute. 

FRA wishes to note that, even under 

the present interpretation, railroads 

would not be free to simply provide 10 

interrupted hours of rest and then 

repeatedly set back calls over a long 

period of time. The current 

interpretation is that the beginning of 

the duty tour following statutory rest 

starts the clock. Statutory rest will now 

clearly be uninterrupted rest, and so 

even one call ‘‘busting’’ or ‘‘setting 

back’’ an assignment will be 

commingled with the subsequent 

service unless a new 10-hour period of 

rest ensues. Whichever interpretation is 

finally adopted, railroads will need to 

do a better job of planning crew 

utilization. 

IV. FRA’s Interim Policies and 

Interpretations of the Hours of Service 

Laws as Amended by the RSIA of 2008 

A. Other Questions Related to the 

Prohibition on Communication With 

Train Employees and Signal Employees 

These questions apply to sections 

108(b)(3) and (c)(4) of the RSIA of 2008, 

which amend sections 49 U.S.C. 21103 

and 49 U.S.C. 21104 effective July 16, 

2009, to provide that a railroad carrier 

or a contractor or subcontractor to a 

railroad carrier, and its officers and 

agents, are prohibited from 

communicating with a train employee 

or a signal employee by telephone, 

pager, or in any other manner that could 

reasonably be expected to disrupt the 

employee’s rest. To be codified at 49 

U.S.C. 21103(e) and 21104(d). This 

prohibition applies during— 

• A train employee’s or a signal 

employee’s minimum off-duty period of 

10 consecutive hours; 

• A train employee’s period of 

interim release of at least 4 hours that 

is available for rest; and 

• A train employee’s required 

additional rest, in the amount by which 

30672 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

the sum of on-duty and limbo time 

exceeds 12 hours. 

The section does not prohibit 

communication necessary to notify an 

employee of an emergency situation, 

and the provision may be waived as to 

train employees of commuter or 

intercity passenger railroads if the 

Secretary determines a waiver will not 

reduce safety and is necessary to 

maintain such railroads’ efficient 

operation and on-time performance. 

1. Does the Prohibition on 

Communication With Train Employees 

and Signal Employees Apply to Every 

Statutory Off-Duty Period No Matter 

How Long the Employee Worked? 

Yes, except for the 48- or 72-hour rest 

requirement. This prohibition on 

communication applies to every offduty period of at least 10 hours under 

49 U.S.C. 21103(a)(3) or 21104(a)(2) and 

to any additional rest required for a 

train employee when the sum of onduty time and limbo time exceeds 12 

hours. For train employees it also 

applies to every lesser off-duty period 

that qualifies as an interim release. 

2. Is the Additional Rest for a Train 

Employee When On-Duty Time Plus 

Limbo Time Exceeds 12 Hours 

Mandatory, or May the Employee 

Decline It? 

The additional rest is mandatory and 

may not be declined. Alternate 

proposed versions of the legislation gave 

the employee the option, but the statute 

(i.e., the legislation as passed), makes 

the additional rest mandatory. 

3. If an Employee Is Called To Report for 

Duty, But Then Receives a Call 

Canceling the Call To Report Before He 

or She Leaves the Place of Rest, Is a New 

Period of 10 Uninterrupted Hours Off 

Duty Required? 

If the employee has not left the place 

of rest, the employee has not accrued 

on-duty time, and would still be offduty, with the exception that the time 

spent in the call could commingle with 

a future duty tour. However, if FRA 

adopts the proposed interpretation 

discussed in section III, above, the 

railroad’s options might be more 

limited, because the beginning of the 

uninterrupted rest of 10 hours would 

continue to serve as the beginning of the 

24-hour period within which the 

employee may be utilized. 

4. What If the Call Is Cancelled Just One 

Minute Before Report-for-Duty Time? 

The answer to this scenario is the 

same as the answer to the preceding 

question. 

5. What If the Employee Was Told 

Before Going Off Duty To Report at the 

End of Required Rest (Either 10 Hours 

or 48 or 72 Hours After Working 6 or 7 

Days), and Is Released From That Call 

Prior to the Report-for-Duty Time? 

The answer to this scenario is the 

same as the answer to the preceding 

question. 

6. Are Text Messages or E-Mail 

Permitted During the Rest Period? 

The employee may not be required to 

receive any communication of any sort, 

or to access information of any kind. 

However, FRA encourages provision of 

information that can be accessed at the 

employee’s option, especially in the 

case of unscheduled or uncertain 

assignments, so that the employee can 

plan rest. The alerts provided by most 

devices when an e-mail or text message 

is received might reasonably be 

expected to disturb an employee who 

may be trying to obtain rest. However, 

an employee might be reluctant to turn 

the devices off, because that would also 

prevent their receiving personal 

messages that they would want to 

receive even during rest. One solution 

may be railroad-provided 

communication devices that can be 

turned off, so that the employee will not 

be disturbed, but can access the 

messages at other times, and will not 

interfere with personal communication. 

However, there must be no expectation 

of a response during the uninterrupted 

rest period. 

7. May the Railroad Return an 

Employee’s Call During the Rest Period 

Without Violating the Prohibition on 

Communication? 

Yes. If the employee initiated the 

contact, then the railroad’s receipt of the 

communication from the railroad is 

voluntary on the part of the employee, 

and a railroad will not be penalized for 

responding to an employee’s request. 

However, the content of the 

communication must be limited to the 

issue about which the employee called. 

A call from an employee about one issue 

does not open the door to unlimited 

communication on other matters that 

would otherwise be prohibited. 

Railroads may also push data to an 

employee at a particular time of day 

selected by the employee, or in a 

specific situations requested by the 

employee, such as if an employee 

requested, for example, to receive 

information when he or she is a certain 

number of crews out from being called, 

provided that (1) the receipt of the 

information is voluntarily chosen by the 

employee and is purely for the 

employee’s convenience and (2) the 

railroad does not require the employee 

to access this information or respond to 

it within the period of required 

uninterrupted rest. 

8. May the Railroad Call To Alert an 

Employee to a Delay (Set Back) or 

Displacement? 

No. The railroad may not call the 

employee for these purposes during the 

employee’s 10 hours of uninterrupted 

rest, without violating the prohibition 

on communicating with the employees. 

However, the railroad may make the 

information available by some means by 

which the employee may voluntarily 

access it, or would have it available at 

the conclusion of the uninterrupted rest. 

The ideal situation would be that if the 

setback provides sufficient time before 

the employee would now need to report 

for duty, the railroad would make the 

call, and then provide 10 hours of 

uninterrupted rest before the employee 

is to report for duty at the new time. 

9. If the Railroad Violates the 

Requirement of Undisturbed Rest, Is the 

Undisturbed Rest Period Restarted From 

the Beginning? 

Yes. 

10. Should Any Violation of 

Undisturbed Rest Be Documented by an 

Electronic Record? 

Yes. The communication and the time 

involved in it must be recorded as an 

activity on the employee’s hours of 

service record, as required by 49 CFR 

228.11(b)(9) for train employees and 49 

CFR 228.11(e)(9) for signal employees, 

which provisions become effective on 

July 16, 2009. For those railroads not 

participating in electronic 

recordkeeping, this activity must be 

captured on their paper records. 

11. Is the Additional Rest Required 

When On-Duty Time Plus Limbo Time 

Exceeds 12 Hours (During Which 

Communication With An Employee Is 

Prohibited) To Be Measured Only in 

Whole Hours, So That the Additional 

Rest Requirement Is Not a Factor Until 

the Total Reaches 13 Hours? 

No. Section 108(b)(2) of the RSIA of 

2008 requires that when the employees 

total time on duty, awaiting deadhead 

transportation, and in deadhead 

transportation exceeds 12 consecutive 

hours, the railroad shall provide the 

employee with additional time off duty 

‘‘equal to the number of hours by which 

such sum exceeds 12 hours.’’ FRA 

believes that it is consistent with the 

Congressional intent of this provision to 

interpret a fraction of an hour as a 

‘‘number of hours.’’ Therefore, the 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30673 

additional undisturbed time off that an 

employee must receive includes any 

fraction of an hour that is in excess of 

12 hours. 

B. Questions Related to the 

Requirements Applicable to Train 

Employees for 48 or 72 Hours Off at the 

Home Terminal 

In particular, these questions involve 

the requirements that train employees 

receive— 

(1) 48 hours off at their home terminal 

after initiating an on-duty period on 6 

consecutive days, 

(2) 72 hours off at their home terminal 

after initiating an on-duty period on 7 

consecutive days, and 

(3) 72 hours off at their home terminal 

after initiating an on-duty period on 6 

consecutive days, completing their onduty time at other than the home 

terminal, and then working the 7th 

consecutive day. 

Section 108(b)(1) and (g) of the RSIA 

of 2008, amend 49 U.S.C. 21103(a)(4) 

effective on July 16, 2009, to provide 

that— 

• In general, a railroad carrier and its 

officers and agents may not require or 

allow a train employee to remain or go 

on duty after the employee has initiated 

an on-duty period each day for 6 

consecutive days unless the employee 

has had at least 48 consecutive hours 

(48 hours) off duty at the employee’s 

home terminal during which the 

employee is unavailable for service for 

any railroad carrier. 

• However, an employee may work a 

seventh consecutive day if the employee 

ends the sixth consecutive day at a 

location other than the employee’s 

home terminal. After that, the employee 

must be given 72 consecutive hours (72 

hours) off duty at the home terminal. 

• An employee may also work 7 

consecutive days if a collective 

bargaining agreement or pilot project 

allows such a schedule. 

• If an employee initiates an on-duty 

period each day for 7 consecutive days, 

the employee must receive 72 hours off 

duty at the employee’s home terminal, 

during which the employee is 

unavailable for service for any railroad 

carrier. 

FRA may waive both the 6- 

consecutive-day and 7-consecutive-day 

provisions if a collective bargaining 

agreement provides for a different 

arrangement and that arrangement is in 

the public interest and consistent with 

railroad safety. 

1. Is a ‘‘Day’’ a Calendar Day or a 24- 

Hour Period for the Purposes of This 

Provision? 

Although arguments could be made 

for either interpretation of this language, 

FRA interprets this provision as related 

to initiating an on-duty period on 6 or 

7 consecutive calendar days. This 

interpretation should promote 

administrative simplicity, and is 

consistent with what has seemed to be 

the understanding of the industry. 

2. If an Employee is Called for Duty But 

Does Not Work, Has the Employee 

Initiated an On-Duty Period? Is There a 

Call and Release? What if the Employee 

Has Reported? 

If an employee is called to report for 

duty at a particular time, but is notified 

of his or her release from that call prior 

to the time the employee is scheduled 

to report for duty, then the employee 

has not accrued any time on duty, and 

has the full time remaining to work 

without having to receive another 

statutory off-duty period. The employee 

has not initiated an on-duty period. This 

is true whether or not the employee has 

yet arrived at the location at which he 

or she was to report for duty, so long as 

the employee is notified of the release 

prior to the time he or she was to report. 

However, if the employee reports for 

duty at the time that he or she is 

scheduled to report, and then is released 

at a time after that, the period from the 

report time until the release time is time 

on duty, by which amount of time the 

time remaining for that employee to 

work before a statutory off-duty period 

is required must be reduced, and the 

employee has initiated an on-duty 

period for the purpose of the 6- or 7-day 

limitation. 

3. Does Deadheading From a Duty 

Assignment to the Home Terminal for 

Final Release on the 6th or 7th Day 

Count as a Day That Triggers the 48- 

Hour or 72-Hour Rest Period 

Requirement? 

Scenario 1: An employee initiates an 

on-duty period for five consecutive 

days. On the next day the employee 

deadheads from a duty assignment to 

the place of final release that is the 

employee’s home terminal. Does the 

deadheading on the 6th day count as 

initiating an on-duty period so that 

afterwards the employee is entitled to a 

minimum of 48 hours off duty? 

Analysis of Scenario 1 

Deadheading from a duty assignment 

to a place of final release is neither time 

on duty, nor time off duty. Therefore, 

such a deadhead could not itself 

constitute initiating an additional onduty period, separate from the one from 

which the employee was deadheaded. 

Similarly, if the deadhead was 

unconnected to a duty tour, meaning 

that the employee had received at least 

a statutory off-duty period before being 

deadheaded back to the home terminal, 

the deadhead would still be neither time 

on duty nor time off duty, and would 

not constitute initiating an on-duty 

period. 

Therefore, if an employee is 

deadheaded back to the home terminal 

on the 6th day, the 48-hour rest 

requirement would not be triggered by 

the deadhead transportation, because 

the employee would not have initiated 

an on-duty period on 6 consecutive 

days. 

However, if an employee is 

deadheaded to the home terminal and 

then performs covered service without 

having received at least a statutory offduty period, then the deadhead would 

be a deadhead to duty, which is time on 

duty under the statute, and would 

constitute initiating an on-duty period. 

In addition, if, after being deadheaded 

to the home terminal, the employee 

receives a statutory off-duty period, and 

then initiates an on-duty period in the 

same calendar day, the employee will 

have initiated an on-duty period on a 

6th consecutive day. 

Scenario 2: An employee initiates an 

on-duty period for six consecutive days 

and completes his or her final period of 

on-duty time at a terminal other than 

the employee’s home terminal. On the 

next day the employee deadheads from 

a duty assignment to the place of final 

release that is the employee’s home 

terminal. Does the deadheading on the 

7th day count as initiating an on-duty 

period or working so that afterwards the 

employee is entitled to a minimum of 72 

hours off duty? 

Analysis of Scenario 2 

Deadheading from a duty assignment 

to a place of final release, or 

deadheading unconnected to the 

previous duty tour would remain 

neither time on duty nor time off duty 

as described in Scenario 1 above. 

However, the statute provides that an 

employee may ‘‘work’’ a 7th consecutive 

day, and then receive 72 hours off duty 

at the home terminal, rather than 

‘‘initiate an on-duty period’’ on a 7th 

day, if the 6th day ends at a terminal 

other than the employee’s home 

terminal. Deadheading is still service for 

the carrier, so FRA believes it is 

reasonable to say that the employee 

‘‘worked’’ a 7th consecutive day back to 

the home terminal, whether the 

employee is deadheaded on that day or 

actually operates a train. An employee 

30674 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

who works a 7th consecutive day to get 

back to the home terminal must receive 

at least 72 consecutive hours off duty. 

4. Does Attendance at a Mandatory 

Rules Class or Other Mandatory Activity 

That Is Not Covered Service But Is NonCovered 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. 

Therefore, if an employee attends a 

rules class or performs other service for 

the carrier that is not covered service 

and does not count as time on duty, but 

does not initiate an on-duty period in 

that calendar day, this breaks the string 

of consecutive days of initiating an onduty period for the purposes of this 

provision. 

5. If an Employee Is Marked Up on an 

Extra Board for 6 Days But Only Works 

2 Days Out of the 6, Is the 48-Hour Rest 

Requirement Triggered? 

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 AwayFrom-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 answer to this question would 

depend on whether the 28 hours off 

resulted in a full calendar day in which 

the employee did not initiate an on-duty 

period, before the employee worked 

back to the home terminal. 

The statute says that the employee 

may work on the 7th day to get back to 

the home terminal and then must get 72 

hours off. If the employee first has at 

least a full calendar day off at the awayfrom-home terminal, the 

consecutiveness is broken, and the 

employee has neither initiated an onduty period, nor otherwise worked 7 

consecutive days and would not be 

entitled to 72 hours off 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 

that the employee must receive after 

getting back to the home terminal. 

If the 28 hours off at the away from 

home terminal did not result in a full 

calendar day in which the employee 

had not initiated an on-duty period, 

then the consecutiveness would not be 

broken and the work back to the home 

terminal would count as a seventh 

consecutive day, and would require the 

employee to receive 72 hours off duty at 

the home terminal. For example, if an 

employee initiates an on-duty period at 

1 a.m., and is released from duty at the 

away-from-home terminal at 11 a.m., the 

employee would not have broken the 

consecutiveness until the next calendar 

day had ended and the employee had 

not initiated an on-duty period. That 

period, in this example, would be 37 

hours. If the employee initiated an onduty period to work back to his or her 

home terminal after 28 hours off duty, 

or at 3 p.m. the next day, the employee 

has not had a complete calendar day in 

which he or she has not initiated an onduty period. 

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 work 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. 

8. Employees Are Not Allowed To 

Perform ‘‘Any Service for Any Railroad 

Carrier’’ During These Required 48-Hour 

or 72-Hour Rest Periods. This Language 

Is Not Applied to Rest Periods 

Elsewhere in the Statute. Does This 

Mean That If an Employee Is Employed 

by More Than One Railroad, Then 

Employing Railroad A Must Aggregate 

the Time the Employee Spends Working 

for Any Other Railroad With the Time 

the Employee Works for Railroad A? 

It 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. 

The employee will be required to 

record service for Railroad A on the 

hours of service record for Railroad B, 

and vice versa. Service for any railroad 

other than the railroad whose record is 

being completed would be recorded as 

other mandatory service, which 

occurred between periods of covered 

service, and would alter the ‘‘prior time 

off’’ indicated on the record. However, 

FRA will only consider enforcement 

action where service for another carrier 

is performed during the required 48 or 

72 hours off duty that an employee must 

receive after initiating an on-duty period 

for six or 7 consecutive days, because 

the new hours of service laws do not 

address service for another carrier 

during the other required off-duty 

periods. 

Hours of service recordkeeping 

programs will need to flag prior time off 

of less than the required 48 or 72 hours 

off duty when records show the 

initiation of an on-duty period for 6 or 

7 consecutive days. 

C. Questions Related to the 276–Hour 

Monthly Maximum for Train Employees 

of Time on Duty, Waiting for or Being 

in Transportation to Final Release, and 

in Other Mandatory Service for the 

Carrier 

Section 108(b)(1) of the RSIA of 2008 

amends 49 U.S.C. 21103(a)(1) effective 

July 16, 2009 to provide that a railroad 

carrier and its officers and agents may 

not require or allow a train employee 

to— 

• Remain or go on duty; 

• Wait for deadhead transportation; 

• Be in deadhead to final release; or 

• Be in any other mandatory service 

for the carrier— 

in any calendar month in which the 

employee has spent a total of 276 

hours— 

• On duty; 

• Waiting for deadhead or in 

deadhead from duty to final release; or 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30675 

• In any other mandatory service for 

the carrier. 

1. If an Employee Reaches or Exceeds 

276 Hours for the Calendar Month 

During a Trip That Ends at the 

Employee’s Away-From-Home 

Terminal, May the Railroad Deadhead 

the Employee Home During That 

Month? 

The literal language of the statute 

might seem to prohibit deadheading an 

employee who has already reached or 

exceeded the 276-hour monthly 

maximum, because time spent in 

deadhead transportation to final release 

is part of the time to be calculated 

toward the 276-hour maximum, and one 

of the activities not allowed after the 

employee reaches 276 hours. However, 

the intent of the statute seems to favor 

providing extended periods of rest at the 

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-fromhome 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. 

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 of 2008 

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), to be 

codified at 49 CFR 228.11(a), effective 

July 16, 2009. 

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 PM 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 the hours, so 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 

of 2008. 

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 periodically 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. 

30676 Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 

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. 

D. Other Interpretive Questions Related 

to Section 108 of the RSIA of 2008 

1. Do the 40-Hour and 30-Hour Monthly 

Maximum Limitations on Time 

Awaiting and in Deadhead 

Transportation to Final Release Only 

Apply to Time Awaiting and in 

Deadhead Transportation After 12 

Consecutive Hours on Duty? 

Section 108(b) provides that a railroad 

may not require or allow an employee 

to exceed 40 hours per month from July 

16, 2009, to October 15, 2009, and 30 

hours per month on or after October 16, 

2009,— 

(1) Awaiting deadhead transportation; 

or 

(2) In deadhead transportation from a 

duty assignment to a place of final 

release 

‘‘following a period of 12 consecutive 

hours on duty. * * * ’’ To be codified 

at 49 U.S.C. 21103(c)(1). 

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, excluding 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- or 40-hour monthly 

limit. 

2. Did the RSIA of 2008 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 of 2008 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: 

After 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 of 2008 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 of 2008 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 of 2008 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 onduty 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), 

effective October 16, 2008, authorizes 

temporary waivers of that section in 

order ‘‘if necessary, to complete’’ a pilot 

project mandated by that subsection. 

The second new waiver provision, to be 

codified at 49 U.S.C. 20103(a)(4), 

effective July 16, 2009, 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 after initiating an onduty period on 6 consecutive days, 72 

hours off duty after initiating an on-duty 

period on 7 consecutive days, etc. This 

provision was discussed in section IVB, 

above. FRA may waive this provision 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 or labor organization 

should 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, effective 

July 16, 2009, of the prohibition on 

communication during off-duty periods 

with respect to train employees of 

commuter or intercity passenger 

railroads if it is determined that a 

waiver will not reduce safety and is 

necessary to maintain such a railroad’s 

efficient operation and on-time 

performance. This waiver provision is to 

be codified in the last sentence of 49 

U.S.C. 20103(e). It should be noted that 

petitions for this type of waiver are 

unlikely because 49 U.S.C. 20102(c) 

places train employees or commuter or 

intercity passenger railroads under an 

‘‘alternate hours of service regime’’ 

requiring compliance with 49 U.S.C. 

20103 before its amendment by the 

RSIA of 2008 pending timely 

preparation of regulations, during which 

time these employees are not subject to 

Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Notices 30677 

the prohibition on communication 

during off-duty periods. 

Issued in Washington, DC, on June 18, 

2009. 

Karen J. Rae, 

Deputy Administrator. 

[FR Doc. E9–15026 Filed 6–23–09; 4:15 pm] 

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June 19, 2009. 

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Public Law 104–13 on or after the date 

of publication of this notice. Copies of 

the submission(s) may be obtained by 

calling the Treasury Bureau Clearance 

Officer listed. Comments regarding this 

information collection should be 

addressed to the OMB reviewer listed 

and to the Treasury Department 

Clearance Officer, Department of the 

Treasury, Room 11000, 1750 

Pennsylvania Avenue, NW., 

Washington, DC 20220. 

DATES: Written comments should be 

received on or before July 27, 2009 to be 

assured of consideration. 

Alcohol and Tobacco Tax and Trade 

Bureau (TTB) 

OMB Number: 1513–0087. 

Type of Review: Revision. 

Title: Labeling and Advertising 

Requirements Under the Federal 

Alcohol Administration Act. 

Description: Bottlers and importers of 

alcohol beverages must adhere to 

numerous performance standards for 

statements made on labels and in 

advertisements of alcohol beverages. 

These performance standards include 

minimum mandatory labeling and 

advertising statements. 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 7,071 

hours. 

Clearance Officer: Frank Foote (202) 

927–9347, Alcohol and Tobacco Tax 

and Trade Bureau, Room 200 East, 1310 

G Street, NW., Washington, DC 20005. 

OMB Reviewer: Shagufta Ahmed (202) 

395–7873, Office of Management and 

Budget, Room 10235, New Executive 

Office Building, Washington, DC 20503. 

Celina Elphage, 

Treasury PRA Clearance Officer. 

[FR Doc. E9–15029 Filed 6–25–09; 8:45 am] 

BILLING CODE 4810–31–P 

DEPARTMENT OF THE TREASURY 

Submission for OMB Review; 

Comment Request 

June 19, 2009. 

The Department of the Treasury will 

submit the following public information 

collection requirement(s) to OMB for 

review and clearance under the 

Paperwork Reduction Act of 1995, 

Public Law 104–13 on or after the date 

of publication of this notice. Copies of 

the submission(s) may be obtained by 

calling the Treasury Bureau Clearance 

Officer listed. Comments regarding this 

information collection should be 

addressed to the OMB reviewer listed 

and to the Treasury Department 

Clearance Officer, Department of the 

Treasury, Room 11000, and 1750 

Pennsylvania Avenue, NW., 

Washington, DC 20220. 

DATES: Written comments should be 

received on or before July 27, 2009 to be 

assured of consideration. 

Internal Revenue Service (IRS) 

OMB Number: 1545–1347. 

Type of Review: Extension. 

Title: FI–7–94 and FI–36–92 (Final) 

Arbitrage Restrictions on Tax-Exempt 

Bonds. 

Description: The Code limits the 

ability of State and local government 

issuers of tax-exempt bonds to earn and/ 

or keep arbitrage profits earned with 

bond proceeds. This regulation requires 

recordkeeping of certain interest rate 

hedges so that the hedges are taken into 

account in determining those profits. 

Respondents: State, Local, and Tribal 

Governments. 

Estimated Total Burden Hours: 42,050 

hours. 

OMB Number: 1545–1815. 

Type of Review: Extension. 

Form: 5498–ESA. 

Title: Coverdell ESA Contribution 

Information. 

Description: Form 5498–ESA is used 

by trustees and issuers of Coverdell 

Education Savings accounts to report 

contributions made to these accounts to 

beneficiaries. 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 18,000 

hours. 

OMB Number: 1545–0169. 

Type of Review: Extension. 

Form: 4461, 4461–A, 4461–B. 

Title: Form 4461, Application for 

Approval of Master or Prototype 

Defined Contribution Plan; Form 4461– 

A, Application for Approval of Master 

or Prototype Defined Benefit Plan; Form 

4461–B. 

Description: The IRS uses these forms 

to determine from the information 

submitted whether the applicant plan 

qualifies under section 401(a) of the 

Internal Revenue Code for plan 

approval. The application is also used to 

determine if the related trust qualifies 

for tax exempt status under Code 

section 501(a). 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 

109,125 hours. 

OMB Number: 1545–0919. 

Type of Review: Extension. 

Title: Limitations on Percentage 

Depletion in the Case of Oil and Gas 

Wells (PS–105–75) Final. 

Description: The regulations require 

each partner to separately keep records 

of his share of the adjusted basis of 

partnership oil and gas property and 

require each partnership, trusts, estate, 

and operator to provide information 

necessary to certain persons to compute 

depletion with respect to oil and gas. 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 1 

hour. 

OMB Number: 1545–0202. 

Type of Review: Extension. 

Form: 5310, 6088. 

Title: Form 5310, Application for 

Determination for Terminating Plan; 

Form 6088, Distributable Benefits from 

Employee Pension Benefit Plans. 

Description: Employers who have 

qualified deferred compensation plans 

can take an income tax deduction for 

contributions to their plans. IRS uses 

the data on Forms 5310 and 6088 to 

determine whether a plan still qualifies 

and whether there is any discrimination 

in benefits. 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 

1,813,650 hours. 

OMB Number: 1545–1233. 

Type of Review: Extension. 

Title: Adjusted Current Earnings (IA– 

14–91)(Final). 

Description: This regulation affects 

business and other for profit 

institutions. This information is 

required by the IRS to ensure the proper 

application of section 1.56(g)–1 of the 

regulation. It will be used to verify that 

taxpayers have properly elected the 

benefits of section 1.56(g)–1(r) of the 

regulation. 

Respondents: Businesses or other forprofits. 

Estimated Total Burden Hours: 1,000 

hours. 

OMB Number: 1545–1120. 

Type of Review: Extension. 

Title: CO–69–87 and CO–68–87 

(Final) Final Regulations Under