[Federal Register Volume 77, Number 40 (Wednesday, February 29, 2012)]
[Rules and Regulations]
[Pages 12408-12431]
[FR Doc No: 2012-4732]

Vol. 77

Wednesday,

No. 40

February 29, 2012

Part III

Department of Transportation

-----------------------------------------------------------------------

Federal Railroad Administration

-----------------------------------------------------------------------

49 CFR Chapter II

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

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

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II

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

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

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

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

-----------------------------------------------------------------------

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

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

FOR FURTHER INFORMATION CONTACT: Colleen A. Brennan, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail
Stop 10, Washington, DC 20590 (telephone<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 Thomas
McFarlin, Office of Safety Assurance and Compliance, Staff Director,
Signal & Train Control Division, FRA, Mail Stop 25, West Building 3rd
Floor West, Room W35-332, 1200 New Jersey Avenue SE., Washington, DC
20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

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

I. Executive Summary

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

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

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

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

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

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

where in this document the new answer can be found.

II. Background

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

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

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

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

B. Changing Hours of Service Requirements Related to Train Employees

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

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

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

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

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

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

C. Changing Hours of Service Requirements Related to Signal Employees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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