[Federal Register Volume 78, Number 185 (Tuesday, September 24, 2013)]
[Rules and Regulations]
[Pages 58829-58854]
[FR Doc No: 2013-23151]

Vol. 78

Tuesday,

No. 185

September 24, 2013

Part VI

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 228

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

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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

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

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

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

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

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

ADDRESSES: You may submit comments on the interim interpretations set
forth in this document, identified as Docket No. FRA-2013-0011, by any
of the following methods:
     Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC
20590.
     Hand Delivery: Room W12-140 on the ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number for this interim statement of agency policy and
interpretation. Note that all submissions received will be posted
without change to http://www.regulations.gov including any personal
information.
    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: Colleen A. Brennan, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail
Stop 10, Washington, DC 20590 (telephone<PHONE_NUMBER> or<PHONE_NUMBER>);
Matthew T. Prince, Trial Attorney, Office of Chief Counsel, FRA, 1200
New Jersey Avenue SE., RCC-12, Mail Stop 10, Washington, DC 20590
(telephone<PHONE_NUMBER> or<PHONE_NUMBER>); Rich Connor, Operating
Practices Specialist, Operating Practices Division, Office of Safety
Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-11, Mail
Stop 25, Washington, DC 20590 (telephone<PHONE_NUMBER>); or George C.
Hartman, Acting Staff Director, Signal and Train Control Division,
Office of Safety Assurance and Compliance, FRA, Mail Stop 25, West
Building 3rd Floor West, Room W35-333, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Abbreviations of Terms Frequently Used in This Document

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

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

Table of Contents for Supplementary Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Sec. 21103(a)(4)(B) provides that employees may also initiate an
on-duty period for a seventh consecutive day and must then receive 72
consecutive hours off duty at the employee's home terminal if, for a
period of 18 months after the enactment of the RSIA, such schedules are
expressly provided for in an existing collective bargaining agreement,
or after that 18-month period has ended, such schedules are expressly
provided for either by a collective bargaining agreement entered into
during that period or provided for by a pilot program that is
authorized by collective bargaining agreement or by a pilot program
under the HS laws at Sec. 21108 related to work and rest cycles.
    Sec. 21103(a)(4) also provides that the Secretary may waive the
requirements of 48 and 72 consecutive hours off duty (extended rest) if
all of the following requirements are met: (1) The procedures of Sec.
20103 are followed (i.e., essentially, public notice and an opportunity
for an oral presentation are provided prior to issuing the waiver); (2)
a collective bargaining agreement provides a different arrangement; and
(3) the Secretary determines that the arrangement is in the public
interest and consistent with safety. See the undesignated last sentence
of Sec. 21103(a)(4).
    In the Final Interpretations, FRA construed ``day'' for the
purposes of Sec. 21103(a)(4) to refer to the 24-hour period during
which a duty tour takes place. Given that redefinition of ``day,'' two
initiations of an on-duty period are on consecutive days where they are
separated by less than 24 hours of time off duty, measured from the
time of the employee's final release from duty until the time that the
employee next reports for duty.\16\
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    In applying these limitations that look back and are applied to an
employee's activities either during a number of previous, consecutive
days as in Sec. 21103(a)(4), or during an entire calendar month as in
Sec. 21103(a)(1) and (c)(1), this temporal frame of reference becomes
much more important.\24\ Each of the limitations of Sec. 21103(a) is
phrased in the equivalent of the present tense \25\ with the prior
conduct discussed in the present perfect tense, indicating that the
appropriate frame of reference is in the moment that a train employee
is potentially required or allowed to engage in some activity--
generally \26\ remaining on duty or going on duty.\27\
---------------------------------------------------------------------------

    \24\ Sec. 21103(a)(1) institutes a monthly 276-hour limitation
on total time on duty, time spent waiting for or in deadhead
transportation to the place of final release, and any other
mandatory service for the carrier.
    \25\ Literally, the limitations set forth at Sec. 21103(a) are
written as prohibitions against the railroad requiring or allowing
one of its train employees to commit a certain act (i.e., generally,
to go or remain on duty) after certain prior conduct by the
employee. The relevant provisions read: ``a railroad carrier and its
officers and agents may not require or allow a train employee to . .
. remain or go on duty after that employee has initiated an on-duty
period each day. . . .''
    \26\ Sec. 21103(a)(1) also prohibits a railroad from requiring
or allowing a train employee to ``be in any other mandatory service
for the carrier in any calendar month where the employee has spent a
total of 276 hours [in specified service for the railroad] . . .''
Emphasis added.
    \27\ See, e.g., Carr v. U.S., 130 S.Ct. 2229, 2236 (2010)
(``Consistent with normal usage, we have frequently looked to
Congress' choice of verb tense to ascertain a statute's temporal
reach.'')
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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