
[Federal Register Volume 78, Number 185 (Tuesday, September 24, 2013)]
[Rules and Regulations]
[Pages 58829-58854]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23151]



[[Page 58829]]

Vol. 78

Tuesday,

No. 185

September 24, 2013

Part VI





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 228





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

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

[[Page 58830]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228

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


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

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

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

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

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

ADDRESSES: You may submit comments on the interim interpretations set 
forth in this document, identified as Docket No. FRA-2013-0011, by any 
of the following methods:
     Web site: The Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this interim statement of agency policy and 
interpretation. Note that all submissions received will be posted 
without change to http://www.regulations.gov including any personal 
information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Colleen A. Brennan, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail 
Stop 10, Washington, DC 20590 (telephone 202-493-6028 or 202-493-6052); 
Matthew T. Prince, Trial Attorney, Office of Chief Counsel, FRA, 1200 
New Jersey Avenue SE., RCC-12, Mail Stop 10, Washington, DC 20590 
(telephone 202-493-6146 or 202-493-6052); Rich Connor, Operating 
Practices Specialist, Operating Practices Division, Office of Safety 
Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-11, Mail 
Stop 25, Washington, DC 20590 (telephone 202-493-1351); or George C. 
Hartman, Acting Staff Director, Signal and Train Control Division, 
Office of Safety Assurance and Compliance, FRA, Mail Stop 25, West 
Building 3rd Floor West, Room W35-333, 1200 New Jersey Avenue SE., 
Washington, DC 20590 (telephone: 202-493-6225).

SUPPLEMENTARY INFORMATION:

Abbreviations of Terms Frequently Used in This Document

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

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

Table of Contents for Supplementary Information

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

[[Page 58831]]

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

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

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

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

[[Page 58832]]

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

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

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

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

[[Page 58833]]

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

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

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

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

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

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

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

[[Page 58834]]

Agency Policy and Interpretation'' at 49 CFR part 228, appendix A, most 
of which was issued in the 1970s.
---------------------------------------------------------------------------

    \10\ See 49 U.S.C. 103 (the statutory provision establishing FRA 
and conferring on the Administrator of FRA the duties and powers to 
carry out certain Federal railroad safety laws, including the hours 
of service (HS) laws) and 49 CFR 1.89 (the delegation from the 
Secretary of Transportation to the Administrator of FRA to carry out 
all the Federal railroad safety laws).
    \11\ See the Hours of Service Act (Pub. L. 59-274, 34 Stat. 1415 
(1907)). Effective July 5, 1994, Public Law 103-272, 108 Stat. 745 
(1994), repealed the Hours of Service Act as amended, then codified 
at 45 U.S.C. 61-64b, and also revised and reenacted its provisions, 
without substantive change, as positive law at Sec. 21101-21108 and 
21303.
    \12\ These sections may also be cited as 49 U.S.C. chapter 211.
    \13\ For a table comparing and contrasting the current Federal 
HS requirements with respect to freight train employees, passenger 
train employees, signal employees, and dispatching service 
employees, please see Appendix A to the Second Interim 
Interpretations.
---------------------------------------------------------------------------

    The HS statutory requirements have been amended several times over 
the years, most recently by the Rail Safety Improvement Act of 2008 
(RSIA). See Public Law 110-432, Div. A, 122 Stat. 4848, enacted October 
16, 2008. Section 108 of the RSIA, captioned ``Hours-of-service 
reform,'' made important changes to 49 U.S.C. chapter (ch.) 211, Hours 
of Service, as amended through October 15, 2008 (the old HS laws). See 
122 Stat. 4860-4866. Because of the significance of the amendments to 
the old HS laws made by Sec. 108 of the RSIA, FRA published an interim 
statement of agency policy and interpretation (June 2009 Interim 
Interpretations) to address questions of statutory interpretation that 
had arisen so far with respect to the HS laws as amended by the RSIA 
(the new HS laws). 74 FR 30665 (June 26, 2009). FRA also invited 
comment on the June 2009 Interim Interpretations.
    Subsequently FRA published final interpretations that responded to 
public comments on the June 2009 Interim Interpretations and made 
certain revisions. 77 FR 12408 (February 29, 2012) (Final 
Interpretations). In responding to those comments, FRA recognized that 
the commenters had raised some important issues on which FRA had not 
taken a position in the June 2009 Interim Interpretations. Further, 
responding to a letter dated April 9, 2012, from AAR, about the Final 
Interpretations, FRA agreed in a letter dated June 22, 2012, to address 
the agency's exclusive Federal jurisdiction over the hours of service 
of signal employees in a notice to be published in the Federal 
Register. For these reasons, FRA has decided to publish these 
additional interim interpretations (Second Interim Interpretations) 
dealing with these important issues, and to seek public comment, so 
that FRA will be able to speak to the concerns raised by the industry 
with full understanding of the positions of the various parts of the 
industry on these issues.

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

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

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

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

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

[[Page 58835]]

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

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

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

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

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

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

[[Page 58836]]

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

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

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

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

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

[[Page 58837]]

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

[[Page 58838]]

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

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

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

    \21\ ``Covered service'' refers to any service subject to either 
Sec. 21103 (applicable to freight train employees), Sec. 21104 
(applicable to signal employees), Sec. 21105 (applicable to 
dispatching service employees), or FRA's Passenger Train Employee HS 
Regulations (applicable to passenger train employees). See also 49 
CFR 228.5, definition of ``Covered service.''
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    The language of Sec. 21103(a)(4) is ambiguous and susceptible to 
several reasonable interpretations. Sec. 21103(b) establishes the 
various rules to apply ``[i]n determining under subsection (a) of this 
section the time a train employee is on or off duty. . . .'' It is 
arguable, however, that, even though Sec. 21103(b) determines what is 
``time on duty'' or ``time off duty'' for purposes of Section 21103(a), 
Sec. 21103(b) does not determine what is an ``on-duty period'' for 
purposes of Sec. 21103(a)(4). For the reasons discussed below, on an 
interim basis, FRA interprets the relevant scope of ``on-duty period'' 
for purposes of Sec. 21103(a)(4) to extend only to on-duty periods as a 
train employee, including on-duty periods as either a freight train 
employee or a passenger train employee; accordingly, only when an 
individual performs train employee functions (i.e., is engaged in or 
connected with the movement of a train) will such an individual be 
considered to have ``initiated an on-duty period'' for the purposes of 
Sec. 21103(a)(4). Therefore, only an on-duty period that includes 
service as either a freight train employee or a passenger train 
employee is counted as the initiation of an on-duty period for the 
purposes of Sec. 21103(a)(4).
    FRA does not consider an on-duty period including only signal-
employee covered service or only dispatching-service-employee covered 
service or a combination of these two types of service to constitute 
the initiation of an ``on-duty period'' under Sec. 21103(a)(4). FRA 
seeks comment on this interim interpretation.
    Further, because the limitation of Sec. 21103(a)(4) prohibits only 
going or remaining on duty as a freight train employee,\22\ FRA's 
interim interpretation is that once the extended-rest requirement is 
triggered (by an employee initiating on-duty periods as a freight train 
employee or a passenger train employee each day on six or seven 
consecutive days), the employee is barred from performing covered 
service as a freight train employee until he or she has had the 
extended rest required by Sec. 21103(a)(4), but he or she is not barred 
by Sec. 21103(a)(4) from reporting for duty as a passenger train 
employee.\23\ Nor is the employee barred by Sec. 21103(a)(4) from 
reporting for duty as either a signal employee or a dispatching service 
employee, because neither of these types of covered service is subject 
to a consecutive-days limitation. FRA likewise seeks comment on this 
interim interpretation.
---------------------------------------------------------------------------

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

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

[[Page 58839]]

    In applying these limitations that look back and are applied to an 
employee's activities either during a number of previous, consecutive 
days as in Sec. 21103(a)(4), or during an entire calendar month as in 
Sec. 21103(a)(1) and (c)(1), this temporal frame of reference becomes 
much more important.\24\ Each of the limitations of Sec. 21103(a) is 
phrased in the equivalent of the present tense \25\ with the prior 
conduct discussed in the present perfect tense, indicating that the 
appropriate frame of reference is in the moment that a train employee 
is potentially required or allowed to engage in some activity--
generally \26\ remaining on duty or going on duty.\27\
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    \24\ Sec. 21103(a)(1) institutes a monthly 276-hour limitation 
on total time on duty, time spent waiting for or in deadhead 
transportation to the place of final release, and any other 
mandatory service for the carrier.
    \25\ Literally, the limitations set forth at Sec. 21103(a) are 
written as prohibitions against the railroad requiring or allowing 
one of its train employees to commit a certain act (i.e., generally, 
to go or remain on duty) after certain prior conduct by the 
employee. The relevant provisions read: ``a railroad carrier and its 
officers and agents may not require or allow a train employee to . . 
. remain or go on duty after that employee has initiated an on-duty 
period each day. . . .''
    \26\ Sec. 21103(a)(1) also prohibits a railroad from requiring 
or allowing a train employee to ``be in any other mandatory service 
for the carrier in any calendar month where the employee has spent a 
total of 276 hours [in specified service for the railroad] . . .'' 
Emphasis added.
    \27\ See, e.g., Carr v. U.S., 130 S.Ct. 2229, 2236 (2010) 
(``Consistent with normal usage, we have frequently looked to 
Congress' choice of verb tense to ascertain a statute's temporal 
reach.'')
---------------------------------------------------------------------------

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

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

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

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

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

[[Page 58840]]

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

[[Page 58841]]

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

[[Page 58842]]

determine if an employee may report for duty as a passenger train 
employee.\32\
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    \31\ FRA's definition of ``Train employee who is engaged in 
commuter or intercity rail passenger transportation'' excludes a 
train employee of a freight railroad ``who is engaged in work train 
service even though that work train service might be related to 
providing commuter or intercity rail passenger transportation, and a 
train employee of'' a freight ``railroad who serves as a pilot on a 
train operated by a commuter railroad or intercity passenger 
railroad.'' 49 CFR 228.403(c).
    \32\ The passenger train employee consecutive-days limitation 
analysis depends on the type of the assignments performed on each of 
the consecutive days. A Type 1 assignment means an assignment that 
requires the employee to report for duty no earlier than 4 a.m. on a 
calendar day and be released from duty no later than 8 p.m. on the 
same calendar day. Any other assignment is Type 2, except that a 
Type 2 assignment may be considered a Type 1 assignment if it is 
analyzed and shown to not pose an excess risk of fatigue and does 
not require the employee to be on duty for any period of time 
between midnight and 4 a.m. See 49 CFR 228.5; see also 76 FR 50360 
(Aug. 12, 2011).
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e. Further Clarification: Service as a Passenger Train Employee Is 
Within the Scope of the Calendar Monthly Limits Set by Sec. 21103(a)(1) 
and (c)(1)
    As previously noted in passing in the discussions above, FRA wishes 
to highlight that, like subsection (a)(4) of Sec. 21103 and for similar 
reasons,\33\ other provisions of Sec. 21103 count toward their 
respective limitations or requirements, appropriate periods of time 
accrued during passenger-train-employee duty tours and related 
activity. Some of these limitations apply to a calendar month, and some 
of the limitations and requirements apply to a single duty tour.
---------------------------------------------------------------------------

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

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

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

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

[[Page 58843]]

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

[[Page 58844]]

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

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

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

[[Page 58845]]

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

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

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

[[Page 58846]]

has not previously addressed the question of whether an employee may 
initiate a seventh on-duty period 24 hours or more \36\ after the 
employee is finally released from his or her sixth consecutive duty 
tour, or if Sec. 21103(a)(4)(A)(i)-(ii) only authorizes a train 
employee to initiate an on-duty period that is consecutive to the sixth 
consecutive day.
---------------------------------------------------------------------------

    \36\ See Final Interpretations, 77 FR 12417-19 (defining ``day'' 
in this context to refer to a 24-hour period).
---------------------------------------------------------------------------

    The structure of Sec. 21103(a)(4) generally prohibits a train 
employee from remaining on duty or going on duty after the employee has 
initiated on-duty periods for six consecutive days, until the employee 
has at least 48 hours of time off duty at the home terminal unavailable 
for any service for any railroad. Sec. 21103(a)(4)(A) provides an 
exception to this general prohibition in subsection (a)(4)(A)(i), 
allowing an employee to initiate an on-duty period \37\ on a ``seventh 
consecutive day.'' Subsection (a)(4)(A)(ii) requires that ``any 
employee who works a seventh consecutive day pursuant to subparagraph 
(i)'' have, instead of 48 hours, 72 hours of time off duty at the home 
terminal during which the employee is unavailable for any service for 
any railroad. Similarly, subsection (a)(4)(B) allows employees to 
initiate on-duty periods on seven consecutive days under collective 
bargaining agreements or authorized pilot programs; these employees 
must also have 72 hours of time off duty at the home terminal 
unavailable for any service for any railroad. Outside of these two 
exceptions, there is a violation of Sec. 21103(a)(4) if the railroad 
requires or allows a train employee to initiate an on-duty period after 
having required or allowed the employee to do so on six prior 
consecutive days and before having given the employee the 48 hours of 
time off duty.
---------------------------------------------------------------------------

    \37\ See Final Interpretations, 77 FR 12419 (interpreting 
``work'' in this context to refer to the initiation of an on-duty 
period).
---------------------------------------------------------------------------

    FRA is aware that some railroads have scheduled employees to 
initiate on-duty periods each day for six consecutive days followed by 
more than a day spent off duty at the away-from-home terminal, and 
then, after the employee initiates an additional on-duty period and 
returns to his or her home terminal, have allowed the employee to 
initiate a new on-duty period after having only 48 hours off duty at 
the home terminal. Such a practice is plainly inconsistent with the 
language of the statute; as discussed above, any allowance that the 
statute provides for an employee to initiate an on-duty period after 
having already done so on six consecutive days is contingent upon that 
employee's receiving 72 hours of time off duty after the employee is 
finally released at the home terminal from the additional on-duty 
period that is allowed under one of the exceptions to the general six-
day limitation. Specifically, when an employee is at the away-from-home 
terminal at the end of the duty tour initiated on the sixth consecutive 
day, he or she is permitted to initiate an on-duty period on ``the 
seventh consecutive day'' under Sec. 21103(a)(4)(A)(i), and an employee 
who initiates an on-duty period on this seventh consecutive day 
pursuant to that section must have the 72 hours of time off duty 
required by Sec. 21103(a)(4)(A)(ii) after the employee is finally 
released from the duty tour initiated on the seventh consecutive day. 
However, this does not resolve the question of what period of time 
constitutes ``the seventh consecutive day.''
    Because the exception of paragraphs (a)(4)(A)(i) and (ii) discusses 
the additional on-duty period in the context of ``a seventh consecutive 
day,'' a literal reading of the statute, which FRA is adopting, would 
preclude the initiation of an on-duty period by an employee who had 
done so for six consecutive days, ending the final on-duty period at 
the away-from-home terminal, but did not initiate another on-duty 
period until more than 24 hours later, because at that time the 
initiation of the on-duty period would no longer fall on the ``seventh 
consecutive day.'' Under FRA's limited interpretation, after 24 hours 
at the away-from-home terminal (or more than a calendar day at the 
away-from-home terminal for a railroad that had not yet transitioned to 
FRA's final interpretation of ``day''), the authority of the railroad 
to require or allow an employee to initiate an on-duty period as a 
train employee under subsection (a)(4)(A)(i) disappears. As a result, 
the railroad's only choice in this circumstance would be that the 
employee must be deadheaded to his or her home terminal and receive at 
least 48 hours free from any service for any railroad before next 
initiating an on-duty period, though the employee could perform non-
covered service before receiving the 48 hours of time off duty. 
Although this construction of the subsection has the virtue of hewing 
closely to the express terms of the statute, it results in the odd 
outcome that a railroad loses the authority to require or allow an 
employee to perform covered service because the employee has been off 
duty for too long.
    FRA considered but rejected an alternative reading of the text that 
would avoid this incongruous result by understanding the authorization 
to ``work a seventh consecutive day'' as allowing one final initiation 
of an on-duty period when the employee ends the sixth consecutive on-
duty period at the away-from-home terminal. This final on-duty period 
would generally be initiated within the seventh consecutive day, but in 
unusual circumstances where the employee remained off duty at the away-
from-home terminal for more than 24 hours (or more than a calendar day 
for a railroad that had not yet transitioned to FRA's final 
interpretation), the final on-duty period would be authorized despite 
falling outside of the 24 hours (or calendar day) that constitute the 
seventh consecutive day. However, adoption of this alternative 
interpretation would have raised new questions concerning the time 
spent at the away-from-home terminal. Under that rejected reading, an 
employee could lawfully remain at the away-from-home terminal to engage 
in non-covered service for several days before next initiating an on-
duty period, and the alternative broader interpretation would require 
determining whether this non-covered service would preclude subsequent 
covered service before having the required 48 hours of time off duty.
    Although both of these interpretations are reasonable constructions 
of the statute given the nature of railroad operations, FRA views the 
limited interpretation, where an employee is not permitted to initiate 
an on-duty period after the end of the seventh consecutive day, as 
superior. In addition to being a more direct construction of the text 
of the statute, and providing more clarity to railroads and employees, 
the limited interpretation avoids the question of what, if any, non-
covered service would be permitted between the sixth consecutive on-
duty period and the final on-duty period, which could occur beyond the 
seventh consecutive day. Under the limited interpretation, an employee 
may engage in non-covered service separate from a duty tour at the 
away-from-home terminal after initiating an on-duty period on six 
consecutive days, but may not initiate a seventh duty tour prior to 
having the 48 hours of time off duty at the home terminal unless the 
duty tour is initiated within 24 hours, of the employee's final release 
from the duty tour initiated on the sixth consecutive day. Under the 
interpretation of ``day'' as a 24-hour period (24-hour-day 
interpretation), this non-covered service is necessarily limited to 
four hours if it is to avoid commingling with either the duty tour

[[Page 58847]]

initiated on the sixth consecutive day or the duty tour that follows 
the non-covered service on the seventh consecutive day, since there 
must be at least 10 hours of time off duty between the non-covered 
service and the duty tours before and after the non-covered service, 
and the duty tour following the non-covered service must be initiated 
24 hours or less after the employee's final release from the duty tour 
initiated on the sixth consecutive day, for the seventh duty tour to be 
consecutive to it. As an example, if an employee were finally released 
at midnight, the following duty tour would have to begin prior to 
midnight of the following day in order to be on a consecutive day. In 
order to avoid commingling with both the prior and subsequent duty 
tours, the non-covered service must fall between 10 a.m., 10 hours 
after the midnight final release, and 2 p.m., 10 hours prior to the 
subsequent initiation of the on-duty period. This leaves only four 
hours of time for non-covered service outside of both duty tours; any 
greater amount of service would either commingle with the prior duty 
tour, commingle with the subsequent duty tour, or cause the subsequent 
duty tour to be initiated outside of the 24 hours that constitutes the 
``seventh consecutive day.''
    FRA seeks comment on the impact of this interpretation on railroad 
operations. Commenters arguing in favor of the broader interpretation, 
allowing for the initiation of an on-duty period under Sec. 
21103(a)(4)(A)(i) more than 24 hours (or more than a calendar day for a 
railroad that had not yet transitioned to FRA's final interpretation), 
after the employee's final release from the duty tour initiated on the 
sixth consecutive day, are encouraged to discuss potential resolutions 
for the issue of intervening non-covered service separated from a duty 
tour.

IV. Application of the ``Signal Employee Exclusivity'' Provision to 
Individuals Who Drive Commercial Motor Vehicles for the Purpose of 
Themselves Installing, Maintaining, or Repairing Signal Systems

A. Summary of Issue and Interim Interpretation

    The ``signal employee exclusivity'' provision, which was added by 
the RSIA and codified at Sec. 21104(e) (exclusivity provision), reads 
as follows:

    The hours of service, duty hours, and rest periods of signal 
employees shall be governed exclusively by this chapter. Signal 
employees operating motor vehicles shall not be subject to any hours 
of service rules, duty hours or rest period rules promulgated by any 
Federal authority, including the Federal Motor Carrier Safety 
Administration, other than the Federal Railroad Administration.

    FRA has previously explained that there is no gap between the 
statutory HS limitations with respect to the installation, repair, and 
maintenance of signal systems, which are administered by FRA, and the 
regulatory HS limitations with respect to the operation of commercial 
motor vehicles, which are promulgated and administered by FMCSA. Final 
Interpretations, 77 FR at 12427-28. However, FRA's prior discussion of 
the issue allowed FMCSA's HS regulations (49 CFR part 395) (FMCSA's HS 
Regulations) to reach employees who generally performed signal covered 
service and were, therefore, generally considered ``signal employees'' 
on the occasions when those employees were driving a commercial motor 
vehicle during a period of time that was not within a duty tour that 
included any time spent performing covered service as a signal 
employee.
    Both labor organizations and railroad industry organizations have 
identified the potential application of FMCSA's HS Regulations, 
including cumulative limitations that could reach into duty tours that 
are clearly governed by the FRA-enforced statutory HS limitations.\38\ 
Although FRA previously interpreted the exclusivity provision in light 
of the definition of ``signal employee'' as ``an individual who is 
engaged in installing, repairing, or maintaining signal systems'' in 
Sec. 21101(4), FRA did not previously consider reinterpreting the 
definition of ``signal employee'' in light of the new exclusivity 
provision.
---------------------------------------------------------------------------

    \38\ FRA notes that Sec. 21104(e) would preclude the application 
of any of FMCSA's HS Regulations to any duty tour of a signal 
employee, including cumulative limitations. See also 49 CFR 
395.1(r), excluding signal employees from the application of 49 CFR 
part 395.
---------------------------------------------------------------------------

    Now construing the whole statute, in accordance with traditional 
canons of statutory interpretation, FRA views the exclusivity provision 
as broadening the scope of what activity is denoted by the words 
``engaged in installing, repairing, or maintaining signal systems.'' 
Specifically, as described in detail below, FRA views an individual's 
operation of a motor vehicle for the purpose of allowing that 
individual to install, repair, or maintain signal systems to be a 
function that is time on duty under the ``signal employee'' provisions 
of the HS laws, regardless of whether the operation of the motor 
vehicle is within the same duty tour as the direct work on the signal 
system, or is separated from it by at least 10 hours off duty. As a 
result, that operation of a motor vehicle for that purpose is itself 
subject to the limitations of the HS laws and to the exclusivity 
provision that exempts the operation from other Federal requirements 
concerning hours of service, duty hours, or rest periods, including 
FMCSA's HS Regulations.
    It is important to note that this interpretation does not affect 
FRA's preexisting interpretations governing a signal employee's 
commuting time (i.e., time spent commuting by motor vehicle between the 
signal employee's residence and his or her headquarters), which remains 
classified as time off duty for purposes of Sec. 21104. In addition, as 
provided by Sec. 21104, travel time returning from a trouble call or an 
outlying work site to the employee's headquarters or residence at the 
end of a duty period, remains neither time on duty nor time off duty 
(except where such time is in transportation in an on-track vehicle). 
FRA seeks comment on this interim interpretation.

B. Detailed Discussion of Issue and Interim Interpretation

    In response to the June 2009 Interim Interpretations, the 
Brotherhood of Railroad Signalmen (BRS) submitted a comment relating to 
several issues. Among the issues addressed by BRS was the exclusivity 
provision. BRS expressed concern that individuals generally performing 
signal covered service, who are, therefore, generally signal employees, 
might be excluded from FMCSA's HS Regulations as a result of this 
provision, but also would not be subject to the FRA-administered 
statutory HS limitations if they did not perform covered service 
installing repairing or maintaining signal systems that commingled 
under Sec. 21104(b)(2) \39\ with the time that they spent driving a 
commercial motor vehicle to an outlying work site. BRS's proposed 
solution to this apparent issue was for FRA to classify driving 
commercial motor vehicles for the purposes of installing, maintaining, 
or repairing signal systems to be signal-employee covered service.
---------------------------------------------------------------------------

    \39\ Sec. 21104(b)(2) reads, ``(b) Determining time on duty.--In 
determining under subsection (a) of this section the time a signal 
employee is on duty or off duty, the following rules apply: * * * 
(2) Time spent performing any other service for the railroad carrier 
during a 24-hour period in which the employee is engaged in 
installing, repairing, or maintaining signal systems is time on 
duty.''
---------------------------------------------------------------------------

    In the Final Interpretations, FRA responded to BRS's stated 
concern, that there was an apparent gap in the HS limitations of FRA 
and FMCSA, by explaining that the exclusivity provision applies only 
where other FRA-

[[Page 58848]]

administered HS limitations apply. The Final Interpretations stated, 
``the statute does not allow an individual subject to the exemption 
granted at Sec. 21104(e) not to be subject to Sec. 21104(a).'' Final 
Interpretations, 77 FR at 12427. However, FRA noted that the 
interpretation would not completely preclude the application of FMCSA's 
HS Regulations to individuals who generally perform signal covered 
service, since there are circumstances where such an individual may 
drive a commercial motor vehicle to an outlying work site and then be 
provided with a statutory minimum off-duty period of at least 10 hours 
before beginning to perform covered service at the work site. Under 
these circumstances, FRA's position in the Final Interpretations was 
that if driving the commercial motor vehicle is not covered service, 
then the individual is not performing signal-employee functions, is not 
a signal employee during the time spent driving, and is not subject to 
Sec. 21104, including the exclusivity provision. FRA expressed a 
willingness to work with FMCSA to address the issue, but viewed those 
efforts as outside the scope of interpreting the statute.
    In addressing the purported gap between the HS limitations, FRA's 
Final Interpretations simply applied the preexisting understanding of 
what activities are classified as ``engaged in installing, repairing, 
or maintaining signal systems'' under the old, pre-RSIA HS laws. 
However, labor organizations and railroad industry organizations have 
implicitly suggested that FRA's understanding of covered service should 
be revised in light of the statutory changes. Having considered the 
statute in light of these arguments, FRA agrees that the exclusivity 
provision at Sec. 21104(e) broadens the definition of signal-employee 
covered service that brings an individual within the scope of Sec. 
21104.
    Following the 1976 amendment of the HS laws \40\ to cover ``an 
individual employed by the carrier who is engaged in installing, 
repairing or maintaining signal systems,'' FRA published an interim 
statement of agency policy and interpretation for signal service. 42 FR 
4464 (Jan. 25, 1977) (1977 Signal Interim Interpretations). See Sec. 
4(d) of Public Law 94-348 (July 8, 1976), adding new Sec. 3A to the 
Hours of Service Act, then codified at 45 U.S.C. 64; 42 FR 4464, 
January 25, 1977. In that contemporaneous interpretation, FRA noted 
that ``[p]erhaps the most difficult problem posed by the general 
language of [the statutory provisions governing such individuals] is 
the definition of time on duty. Individuals who work on signal systems 
often spend much of their compensated time traveling for the carrier's 
purposes.'' FRA ultimately determined that travel time devoted to the 
carrier's work was to be considered commingling service (other service 
for the carrier during a 24-hour period in which the employee is 
engaged in installing, maintaining, or repairing signal systems), such 
that the travel time would be considered time on duty if not separated 
by a statutory minimum off-duty period from direct work to install, 
repair, or maintain signal systems. Time spent returning from trouble 
calls or an outlying work site at the end of scheduled hours, was 
considered neither time on duty nor time off duty, an interpretation 
subsequently ratified by Congress in the 1978 amendments to the HS 
laws. Sec. 4 of Public Law 95-574 (November 2, 1978). Commuting time 
between an employee's residence and the employee's regular reporting 
point, which is determined by an employee in his or her decision of 
where to live, was considered time off duty.
---------------------------------------------------------------------------

    \40\ In 1976 the statute was still called the Hours of Service 
Act. See note 2.
---------------------------------------------------------------------------

    Based in part on the nature of the statute as it existed in 1977, 
FRA stated that the functional approach of the HS laws meant that 
``driving signal department vehicles is not covered service under the 
[HS laws].'' 1977 Signal Interim Interpretations, 42 FR at 4466. At the 
time that FRA published the 1977 Signal Interim Interpretations, the 
limitations of the HS laws applied only to individual duty tours, so 
there was little concern with individuals moving into and out of the 
classification ``signal employee'' based upon the functions performed 
at any given moment or within or outside of any individual duty tour.
    As noted above, in Section III.B of this document, the RSIA 
amendments to the HS laws have attached more significance to the 
classification of an individual as a covered service employee beyond 
the boundaries of a particular duty tour. Although the functional 
approach is inherent to the HS laws as they currently exist, and a 
change from that approach to a status-based approach would require 
additional statutory amendments, FRA nonetheless recognizes that the 
functions that bring an individual employee within the scope of Sec. 
21104 must be construed ``in connection with every other part or 
section of the statute to produce a harmonious whole.'' \41\
---------------------------------------------------------------------------

    \41\ United States v. Uvalle-Patricio, 478 F.3d 699 (5th Cir. 
2007) (internal citations omitted). See also, e.g., Bilski v. 
Kappos, 130 S.Ct. 3218 (2010); Sutherland Sec.  46:5.
---------------------------------------------------------------------------

    In the RSIA, Congress added to Sec. 21104 new subsection (e), which 
specifically references FMCSA's rules related to hours of service, duty 
hours, and rest periods as not applying to signal employees. Although 
the exclusivity provision can bear an interpretation of signal-employee 
covered service as it existed prior to the RSIA, such a narrow 
interpretation would allow individuals who often perform the functions 
of signal employees to be subject to the regulations of FMCSA, which 
seems to be contrary to the purpose of the exclusivity provision. Or, 
to the extent that FMCSA has excluded such individuals from the scope 
of its regulations, such employees could have no substantive Federal 
limitation on the time that could be spent in the driving function, 
provided that it is separated from the work of installing, repairing, 
or maintaining signal systems by at least a statutory minimum off-duty 
period of 10 hours, a result that is equally untenable. An alternative 
reading of the exclusivity provision recognizes that Congress expressly 
excluded signal employees from the application of FMCSA's regulations, 
and interprets what is necessary for an individual to be a signal 
employee in light of that exclusion.
    As discussed above, FRA has long understood that driving a motor 
vehicle is often an integral part of performing work on signal systems. 
Much of signal system installation, maintenance, and repair will 
necessarily occur at track wayside locations, requiring significant 
amounts of travel to and from those locations for the individuals 
performing such work. Because of the immense scale of the rail network 
in the United States, this driving time may sometimes be sufficiently 
long that the driving is separated from the direct work on a signal 
system by a statutory minimum off-duty period of 10 consecutive hours. 
Under earlier FRA interpretations, FRA viewed the HS laws as not 
reaching the period of time spent driving for the purposes of a 
railroad if it was separated from the period of covered service by a 
statutory minimum off-duty period and, therefore, not within the duty 
tour.\42\ When outside of a duty tour, time spent driving by 
individuals who generally

[[Page 58849]]

perform signal covered service was only regulated if it fell within the 
regulatory jurisdiction of FMCSA and FMCSA's HS Regulations. However, 
the RSIA rejected this status quo, and unequivocally stated that 
``signal employees operating motor vehicles shall not be subject to any 
hours of service rules . . . promulgated by any Federal authority, 
including the Federal Motor Carrier Safety Administration, other than 
the Federal Railroad Administration.'' Maintaining FRA's prior narrow 
reading of what constitutes covered service would not fully exclude 
signal employees from the reach of FMCSA's HS Regulations, since such 
regulations include cumulative limits on total on-duty time and include 
all compensated time as time on duty, even when not connected with time 
spent driving.\43\ Congress specifically identified ``signal employees 
operating motor vehicles'' as subject to the HS laws and under the 
authority of FRA, and understanding the operation of a motor vehicle 
for the purpose of installing, repairing, or maintaining signal systems 
to be service that is ``engaged in'' those activities brings such 
individuals entirely within the scope of Sec. 21104, consistent with 
the statutory mandate.
---------------------------------------------------------------------------

    \42\ As discussed above, normal commuting time between an 
employee's residence and his or her normal headquarters or regular 
reporting point was and is considered time off duty. 42 FR 4466.
    \43\ 49 CFR 395.2, ``On-duty time.''
---------------------------------------------------------------------------

    Such an interpretation is also consistent with FRA's prior 
understanding of the activities generally within the scope of a signal 
employee's employment. In construing the statutory definition of what 
an individual must do to be considered a ``signal employee,'' it is 
appropriate to consider the actual duties generally performed by such 
individuals, giving deference to the words that Congress chose to 
define as well as to the definition Congress provided.\44\ Both 
Congress and FRA have recognized that signal employees ``spend much of 
their compensated time traveling for the carrier's purposes.'' \45\ In 
discussing this issue previously, FRA noted that this fact created 
difficulties in interpreting what constituted time on duty for signal 
employees, and ultimately concluded that such time should be considered 
potentially commingling: Time on duty if commingled with other time on 
duty; and otherwise neither time on duty nor time off duty. FRA 
concludes that Congress intended Sec. 21104(e) to mean unequivocally 
that when these individuals are operating motor vehicles for the 
purpose of installing, repairing, or maintaining signal systems, these 
individuals shall be subject to the HS laws and not to FMCSA's HS 
Regulations; FRA's prior construction of the term ``signal employee'' 
and therefore the activities performed by an individual that make the 
individual subject to the HS laws, is not consistent with that 
congressional intent. Although FRA's prior reading of the statutory 
language was reasonable given the context of the HS laws as a whole, 
that context has now changed, and FRA's construction of the term 
``signal employee'' must change with it.
---------------------------------------------------------------------------

    \44\ See, e.g., Johnson v. U.S., 130 S.Ct. 1265, 1271 (2010) 
(noting that Congress's choice of the words ``violent felony'' is 
relevant to interpreting the meaning of the definition of ``violent 
felony'' provided by Congress).
    \45\ FRA's 1977 Signal Interim Interpretations, 42 FR at 4464.
---------------------------------------------------------------------------

    Operating a motor vehicle from work site to work site is an 
integral part of the duty tour for many signal employees. Failing to 
recognize such operation as time on duty for signal employees, 
independent of whether the operation is immediately connected with the 
duty tour for which the vehicle is operated, would fail to account for 
Congress's clear statement that such activity should be governed by the 
HS laws. Accordingly, FRA understands an individual's operation of a 
motor vehicle for the purposes of that individual's installing, 
repairing, or maintaining signal systems to be service that is 
``engaged in'' those activities and, therefore, signal-employee covered 
service. As a consequence, such driving time by the individual is time 
on duty for the purposes of Sec. 21104, regardless of whether the 
individual installs, repairs, or maintains a signal system during the 
same duty tour as the individual operated the motor vehicle.
    However, as clarification, individuals who do not perform 
installation, repair, or maintenance of signal systems do not become 
signal employees simply by virtue of operating a motor vehicle 
transporting a signal employee. For instance, a driver contracted by a 
railroad solely to transport signal employees would not be performing 
covered service while driving, because the driver is not operating the 
motor vehicle for the purpose of himself or herself installing, 
repairing, or maintaining signal systems. Although operating a motor 
vehicle is a frequent component of signal employee duties, it is, of 
course, not exclusive to such employees. FRA also notes that an 
individual's operation of any motor vehicle for the purpose of himself 
or herself installing, repairing, or maintaining signal systems 
constitutes signal-employee covered service; the interpretation is not 
limited only to instances where the motor vehicle is a ``commercial 
motor vehicle'' within the meaning of FMCSA's HS Regulations. This 
distinction is relevant only to the extent that FMCSA's HS Regulations 
ever apply to individuals who ordinarily perform the functions of 
signal employees. As explained above, however, Congress specifically 
excluded signal employees from the application of HS rules promulgated 
by FMCSA, which would include FMCSA distinctions between motor 
vehicles.
    FRA is aware that signal employees may sometimes drive themselves 
to outlying work sites and engage in activities that are not classified 
as signal-employee covered service prior to performing signal-employee 
covered service. Two examples follow that illustrate the application of 
FRA's new interim interpretation of ``signal employee.''
Example 10
    Facts: An individual drives himself or herself to, and attends, a 
rules class at the outlying work site during one duty tour, and then 
performs signal-employee covered service at the same outlying work site 
during the next duty tour.
    Effect of law: Despite the intervening rules class, the 
individual's drive to the outlying work site facilitated his or her 
subsequent performance of signal-employee covered service, and 
accordingly the driving time is time on duty subject to the FRA-
administered HS laws rather than FMCSA's HS Regulations.
    However, because the definition of ``signal employee'' is 
functional, there must be some connection, even if attenuated by 
intervening other activities or time off duty, between the time spent 
driving and the driver's performance of other signal employee functions 
in order for the time spent driving to be covered service and subject 
to the HS laws rather than FMCSA's HS Regulations. Only when the 
employee is driving a motor vehicle with no plausible connection to his 
or her future service installing, repairing, or maintaining signal 
systems is the driving time not time on duty as a signal employee. FRA 
recognizes the need for clarity in terms of what time spent in such 
driving is, and is not, considered time on duty; ambiguous travel time 
is time on duty, whereas travel time that is clearly and definitively 
not connected with proximate performance of signal employee functions 
is not signal-employee covered service.
Example 11
    Facts: An individual drives from his or her headquarters at 
Location A to a rules class at Location B, attends the rules class, and 
then drives from Location B to Location C, where he or she repairs 
signal systems at Location C.

[[Page 58850]]

    Effect of law: The time spent driving from the employee's 
headquarters to the rules class is not signal-employee covered service, 
unless it commingled with the eventual signal-employee covered service 
(i.e., the drive from Location B to Location C and the repair of the 
signal system at Location C), because the travel to the rules class 
location is not clearly connected to the performance of signal-employee 
covered service, since the employee is required to travel from the 
rules class location to another location in order for the employee to 
perform the covered service. In other words, assuming that neither the 
drive from Location B to Location C nor the signal-employee covered 
service at Location C was in the same duty tour as the rules class at 
Location A, the time that the employee spent driving to the rules class 
is not covered by the HS laws and is not covered by FMCSA's HS 
Regulations.
    FRA acknowledges this gap in coverage for such drive times 
referenced in Example 12, but believes such instances are rare. FRA 
seeks comment on this aspect of its interim interpretation as well as 
on all other aspects of its interim interpretation.

C. Reiteration of FRA's Longstanding Interpretations of Travel Time 
Involving Signal Employees

    As a result of this interim interpretation, the treatment of the 
time that signal employees spend operating motor vehicles is changing, 
but, as noted above, many of the other applications of the HS laws with 
respect to travel time for signal employees remain unchanged in the 
statutory text and in FRA interpretations. For the sake of clarity, FRA 
is briefly reiterating the agency's (and the statute's) prior and 
continuing treatment of these travel times as they apply to the new 
interpretation and providing any applicable supporting statutory 
references.
    Travel on an on-track vehicle: Any time spent in transportation on 
an on-track vehicle, including any other type of travel time discussed 
below, is categorically time on duty as provided by Sec. 21104(b)(6).
    Commuting time: FRA's longstanding interpretation, which remains 
unchanged, has been that normal commuting between the individual's 
residence and his or her regular reporting point or headquarters 
connected with the regular workday is not time on duty. Because 
employees choose where to reside with respect to their regular 
reporting point or headquarters, time spent commuting from the 
residence to that location is not service for a railroad. Note, 
however, that when an employee instead travels directly from his or her 
residence to a location other than his or her regular reporting point 
or headquarters, the travel time, minus the normal length of the 
individual's commuting time to the regular reporting point or 
headquarters, is service and, therefore, time on duty.
    Travel time following the end of scheduled duty hours: As provided 
by Sec. 21104(b)(4) and (b)(5), travel time that begins either at the 
end of scheduled duty hours, or when the employee is released prior to 
the end of scheduled duty hours in order to comply with the HS laws, is 
neither time on duty nor time off duty, regardless of whether the 
employee returns to his or her headquarters or directly to his or her 
residence, and regardless of whether the employee operates a motor 
vehicle as part of such transportation. However, if the employee 
returns to duty less than 30 minutes after the completion of travel, 
the travel time is instead considered travel time during a duty tour 
governed by Sec. 21104(b)(7), as discussed below.
    Travel time returning from a trouble call: As provided by Sec. 
21104(b)(3), travel time returning from a trouble call is neither time 
on duty nor time off duty, regardless of whether the employee returns 
to his or her headquarters or directly to his or her residence, and 
regardless of whether the employee operates a motor vehicle as part of 
such transportation. However, if the employee returns to duty less than 
30 minutes after the completion of travel, the travel time is instead 
considered travel time during a duty tour as provided by Sec. 
21104(b)(7).
    Other travel time: As discussed above, under FRA's new interim 
interpretation, any time spent by an individual operating a motor 
vehicle in order for the individual to engage in installing, repairing, 
or maintaining a signal system is time on duty, regardless of whether 
the period of time operating the motor vehicle is connected with the 
individual's duty tour. Any other travel time, such as time spent by an 
individual riding in a motor vehicle operated by someone else, during 
the individual's duty tour, is potentially commingling service, 
consistent with FRA's preexisting interpretation. This time spent by an 
individual riding in the motor vehicle commingles with time on duty 
that the individual accrued within the same duty tour and becomes time 
on duty. If there is no time on duty with which the travel time can 
commingle, such travel time instead becomes neither time on duty nor 
time off duty.

Joseph C. Szabo,
Administrator.

Appendix A

Appendix A: Brief Summary of Major Federal Hours of Service (HS) 
Requirements With Respect to Employees Who Perform One or More Types of 
Covered Service: Freight Train Employees, Passenger Train Employees, 
Signal Employees, and Dispatching Service Employees

[[Page 58851]]



----------------------------------------------------------------------------------------------------------------
                                        Freight train     Passenger train                         Dispatching
                                          employees          employees       Signal employees  service employees
----------------------------------------------------------------------------------------------------------------
Citation............................  49 U.S.C. 21103..  49 CFR part 228,   49 U.S.C. 21104..  49 U.S.C. 21105.
                                                          subpart F.
Individuals Protected by the Federal  Train employees    Train employees    Signal employees   Dispatching
 HS Requirements because of the Type   (individuals       who are engaged    (individuals       service
 of Covered Service They Perform.      engaged in or      in commuter or     engaged in         employees
                                       connected with     intercity rail     installing,        (operators,
                                       the movement of    passenger          repairing, or      train
                                       a train,           transportation.    maintaining        dispatchers, or
                                       including          (Includes a        signal systems).   any other
                                       hostlers),         train employee     See 49 U.S.C.      individual who
                                       except for train   who is engaged     21101(4).          by use of an
                                       employees who      in commuter or                        electrical or
                                       are engaged in     intercity rail                        mechanical
                                       commuter or        passenger                             device
                                       intercity rail     transportation                        dispatches,
                                       passenger          regardless of                         reports,
                                       transportation,    the nature of                         transmits,
                                       as defined in 49   the entity by                         receives, or
                                       CFR part 228,      whom the                              delivers orders
                                       subpart F, who     employee is                           related to or
                                       are instead        employed and any                      affecting train
                                       subject to that    other train                           movements). See
                                       regulation. See    employee who is                       49 U.S.C.
                                       49 U.S.C.          employed by a                         21101(2).
                                       21102(c)(3).       commuter
                                                          railroad or an
                                                          intercity
                                                          passenger
                                                          railroad.
                                                          Excludes a train
                                                          employee of
                                                          another type of
                                                          railroad who is
                                                          engaged in work
                                                          train service
                                                          even though that
                                                          work train
                                                          service might be
                                                          related to
                                                          providing
                                                          commuter or
                                                          intercity rail
                                                          passenger
                                                          transportation,
                                                          and a train
                                                          employee of
                                                          another type of
                                                          railroad who
                                                          serves as a
                                                          pilot on a train
                                                          operated by a
                                                          commuter
                                                          railroad or
                                                          intercity
                                                          passenger
                                                          railroad.) See
                                                          49 CFR
                                                          228.403(c) and
                                                          discussion under
                                                          III.A of the
                                                          Second Interim
                                                          Interpretations.
Limitations on Time on Duty in a      A railroad may     A railroad may     A railroad may     A railroad may
 Single Tour.                          not require or     not require or     not require or     not require or
                                       allow an           allow an           allow an           allow an
                                       individual to      individual to      individual to      individual to
                                       remain or go on    remain or go on    remain or go on    remain or go on
                                       duty as a          duty as a          duty as a signal   duty as a
                                       freight train      passenger train    employee in        dispatching
                                       employee in        employee in        excess of 12       service employee
                                       excess of 12       excess of 12       hours or if the    for more than 9
                                       hours or if the    hours or if the    individual has     hours in a 24-
                                       individual has     individual has     not had at least   hour period at a
                                       not had at least   not had at least   10 consecutive     place at which
                                       10 consecutive     8 consecutive      hours off duty     at least 2
                                       hours off duty     hours off duty     during the prior   shifts are
                                       during the prior   during the prior   24 hours.          employed or for
                                       24 hours.          24 hours, or 10                       more than 12
                                                          consecutive                           hours in a 24-
                                                          hours off duty                        hour period at a
                                                          during the prior                      place where only
                                                          24 hours if the                       one shift is
                                                          individual has                        employed.
                                                          been on duty for
                                                          12 consecutive
                                                          hours.
End of Duty Tour....................  Duty tour ends at  Duty tour ends at  Duty tour ends at  Not applicable;
                                       beginning of       beginning of       beginning of       any service for
                                       statutory          statutory          statutory          the railroad
                                       minimum off-duty   minimum off-duty   minimum off-duty   within 24 hours
                                       period.            period.            period.            of time on duty
                                                                                                will commingle
                                                                                                with that time
                                                                                                on duty.
Duration and Any Other Conditions of  10 consecutive     8 consecutive      10 consecutive     No express
 Minimum Off-Duty Period Between Two   hours, required    hours; 10          hours, required    minimum.
 Duty Tours.                           to be              consecutive        to be
                                       uninterrupted by   hours if the       uninterrupted by
                                       any                employee has       any
                                       communication by   been on duty for   communication by
                                       the railroad       12 consecutive     the railroad
                                       reasonably         hours.             reasonably
                                       expected to                           expected to
                                       disrupt the                           disrupt the
                                       employee's rest.                      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..
Duration and Any Other Conditions of  At least 4 hours   At least 4 hours   At least 30        At least 1 hour
 Minimum Off-Duty Period Within a      of time off duty   of time off duty   minutes of time    of time off
 Duty Tour.                            at the             at the             off duty.          duty.
                                       individual's       individual's
                                       designated         designated
                                       terminal,          terminal.
                                       required to be
                                       uninterrupted by
                                       any
                                       communication by
                                       the railroad
                                       reasonably
                                       expected to
                                       disrupt the
                                       employee's rest.

[[Page 58852]]

 
Limitations on Consecutive Duty       A railroad may     A railroad may     None.............  None.
 Tours and Requirements for Extended   not require or     not require or
 Rest.                                 allow an           allow an
                                       individual to      individual to
                                       remain or go on    remain or go on
                                       duty as a          duty as a
                                       freight train      passenger train
                                       employee after     employee if the
                                       initiating an on-  individual has
                                       duty period on     initiated an on-
                                       six consecutive    duty period each
                                       days without       day on 13 or
                                       receiving 48       more consecutive
                                       consecutive        calendar days in
                                       hours off duty     the series of at
                                       and free from      most 14
                                       any service for    consecutive
                                       any railroad at    calendar days
                                       the individual's   until the
                                       home terminal.     individual has
                                       (See definition    had at least two
                                       of ``day'' and     consecutive
                                       explanation of     calendar days on
                                       ``consecutive      which he or she
                                       day'' below.)      does not
                                       Individuals are    initiate an on-
                                       permitted to       duty period.
                                       initiate an on-   May not remain or
                                       duty period as a   go on duty as a
                                       freight train      passenger train
                                       employee on a      employee if the
                                       seventh            individual has
                                       consecutive day    initiated an on-
                                       when the           duty period each
                                       individual ends    day on six or
                                       the sixth          more consecutive
                                       consecutive day    calendar days
                                       at the away-from-  including one or
                                       home terminal,     more Type 2
                                       as part of a       assignments
                                       pilot project,     until the
                                       or as part of a    individual has
                                       collectively       had at least 24
                                       bargained          consecutive
                                       agreement          hours of time
                                       entered into       off duty. For
                                       prior to April     definition of
                                       16, 2010 that      ``Type 2
                                       expressly          assignment,''
                                       provides for       see 49 CFR 228.5
                                       such a schedule.   or footnote 32
                                       An individual      of the Second
                                       performing         Interim
                                       service on this    Interpretations..
                                       additional day    During this time
                                       must receive 72    off duty, the
                                       consecutive        individual must
                                       hours free from    be at his or her
                                       any service for    home terminal
                                       any railroad at    and unavailable
                                       his or her home    for any service
                                       terminal before    for any
                                       going on duty      railroad..
                                       again as a        If the employee
                                       freight train      is not at his or
                                       employee.          her home
                                                          terminal when
                                                          this time off
                                                          duty is
                                                          required, the
                                                          employee may
                                                          either deadhead
                                                          to the point of
                                                          final release at
                                                          the employee's
                                                          home terminal or
                                                          initiate an on-
                                                          duty period in
                                                          order to return
                                                          to the
                                                          employee's home
                                                          terminal either
                                                          on the same
                                                          calendar day or
                                                          the next
                                                          consecutive
                                                          calendar day
                                                          after the
                                                          completion of
                                                          the duty tour
                                                          triggering the
                                                          rest
                                                          requirement..
Monthly Cumulative Limitations......  A railroad may     None.............  None.............  None.
                                       not require or
                                       allow an
                                       individual to
                                       remain or go on
                                       duty, wait for
                                       or be in
                                       deadhead
                                       transportation
                                       to the point of
                                       final release,
                                       or be in any
                                       other mandatory
                                       service for the
                                       carrier in any
                                       calendar month
                                       where the
                                       employee has
                                       spent a total of
                                       276 hours on
                                       duty, waiting
                                       for or in
                                       deadhead
                                       transportation
                                       from a duty
                                       assignment to
                                       the place of
                                       final release,
                                       or in any other
                                       mandatory
                                       service for the
                                       carrier.
                                      A railroad may
                                       not require or
                                       allow an
                                       individual to
                                       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..

[[Page 58853]]

 
Definition of ``Time Neither On Duty  Time spent in      Time spent in      Time spent         None.
 nor Off Duty''.                       deadhead           deadhead           returning from a
                                       transportation     transportation     trouble call,
                                       from a duty        from a duty        whether the
                                       assignment to      assignment to      individual goes
                                       the place of       the place of       directly to the
                                       final release.     final release.     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 individual's
                                                                             residence or to
                                                                             the individual's
                                                                             headquarters, if
                                                                             the individual
                                                                             has not
                                                                             completed the
                                                                             trip from the
                                                                             final outlying
                                                                             worksite of the
                                                                             duty period at
                                                                             the end of
                                                                             scheduled duty
                                                                             hours, or if the
                                                                             individual is
                                                                             released from
                                                                             duty at an
                                                                             outlying
                                                                             worksite before
                                                                             the end of the
                                                                             individual'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 freight train    A passenger train  A signal employee  A dispatching
                                       employee on the    employee on the    may be allowed     service employee
                                       crew of a wreck    crew of a wreck    to remain or go    may be allowed
                                       or relief train    or relief train    on duty for no     to remain or go
                                       may be allowed     may be allowed     more than 4        on duty for no
                                       to remain or go    to remain or go    additional hours   more than 4
                                       on duty for no     on duty for no     in any period of   additional hours
                                       more than 4        more than 4        24 consecutive     during a period
                                       additional hours   additional hours   hours when an      of 24
                                       in any period of   in any period of   emergency exists   consecutive
                                       24 consecutive     24 consecutive     and the work of    hours for no
                                       hours when an      hours when an      that employee is   more than 3 days
                                       emergency exists   emergency exists   related to the     during a period
                                       and the work of    and the work of    emergency.         of 7 consecutive
                                       the crew is        the crew is        Routine repairs,   days.
                                       related to the     related to the     routine
                                       emergency.         emergency.         maintenance, or
                                                                             routine
                                                                             inspection of
                                                                             signal systems
                                                                             is not an
                                                                             emergency that
                                                                             allows for
                                                                             additional time
                                                                             on duty.
Explanation of the End of an          The emergency      The emergency      The emergency      None.
 Emergency.                            ends when the      ends when the      ends when the
                                       track is cleared   track is cleared   signal system is
                                       and the railroad   and the railroad   restored to
                                       line is open for   line is open for   service.
                                       traffic.           traffic.
Definition of ``Day'' and             24 consecutive     Calendar days;     Not Applicable...  Not Applicable
 ``Consecutive Day''.                  hours; two         two calendar                          Except in
                                       initiations of     days are                              Context of
                                       an on-duty         consecutive if                        Emergency
                                       period are on      adjacent to one                       Provision.
                                       consecutive days   another.
                                       where they are
                                       separated by
                                       less than 24
                                       hours of time
                                       off duty,
                                       measured from
                                       the time of the
                                       employee's final
                                       release from
                                       duty until the
                                       time that the
                                       employee next
                                       reports for duty.
Explicit Use of Fatigue Science.....  None.............  Passenger train    None.............  None.
                                                          employees' work
                                                          schedules must
                                                          be analyzed
                                                          under an FRA-
                                                          approved
                                                          validated
                                                          biomathematical
                                                          fatigue model,
                                                          with the
                                                          exception of
                                                          certain
                                                          schedules deemed
                                                          as categorically
                                                          presenting an
                                                          acceptable level
                                                          of risk for
                                                          fatigue that
                                                          does not violate
                                                          the defined
                                                          fatigue
                                                          threshold.
Specific Rules for Nighttime          None.............  Schedules that     None.............  None.
 Operations.                                              include any time
                                                          on duty between
                                                          8 p.m. and 4
                                                          a.m. must be
                                                          analyzed using a
                                                          validated
                                                          biomathematical
                                                          model of human
                                                          performance and
                                                          fatigue approved
                                                          by FRA.
                                                          Schedules with
                                                          excess risk of
                                                          fatigue must be
                                                          mitigated or
                                                          supported by a
                                                          determination
                                                          that mitigation
                                                          is not possible
                                                          and the schedule
                                                          is operationally
                                                          necessary and
                                                          approved by FRA.

[[Page 58854]]

 
Specific Rules for Unscheduled        None.............  The potential for  None.............  None.
 Assignments.                                             fatigue
                                                          presented by
                                                          unscheduled work
                                                          assignments must
                                                          be mitigated as
                                                          part of a
                                                          railroad's FRA-
                                                          approved fatigue
                                                          mitigation plan.
                                                          Plans must be
                                                          submitted for
                                                          FRA review and
                                                          approval, along
                                                          with the
                                                          associated
                                                          schedules
                                                          requiring
                                                          mitigation.
----------------------------------------------------------------------------------------------------------------


[FR Doc. 2013-23151 Filed 9-23-13; 8:45 am]
BILLING CODE 4910-06-P


