[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20494-20496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11224]



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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 228


Decision of the United States Supreme Court Concerning an Agency 
Interpretation of the Federal Hours of Service Laws; Change in Agency 
Interpretation; Enforcement Policy Regarding Violations of Laws as 
Previously Interpreted

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

ACTION: Statement of agency policy and interpretation.

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SUMMARY: Notice is hereby given that, in accordance with the decision 
of the United States Supreme Court in Brotherhood of Locomotive 
Engineers v. Atchison, Topeka and Santa Fe R.R., all time spent 
awaiting the arrival of a deadhead vehicle for transportation to the 
point of final release, when no additional services are required of 
railroad carrier employees, shall be treated by FRA as time neither on 
nor off duty for purposes of the Federal hours of service laws 
(``HSL''), throughout the entire nation. FRA is amending its current 
interpretive statement to reflect this Supreme Court decision.

EFFECTIVE DATE: January 8, 1996.

FOR FURTHER INFORMATION CONTACT: Edward R. English, Director, Office of 
Safety Assurance and Compliance, Office of Safety, FRA, 400 Seventh 
Street, S.W., Washington, D.C. 20590 (telephone: 202-366-9252); or 
David H. Kasminoff, Trial Attorney, Office of Chief Counsel, FRA, 400 
Seventh Street, S.W., Washington, D.C. 20590 (telephone: 202-366-0628).

SUPPLEMENTARY INFORMATION:

Public Participation

    In this notice FRA is announcing that it has changed its 
interpretation of the HSL (49 U.S.C. 20102, 21101-21108, 21303, and 
21304), consistent with a unanimous decision of the United States 
Supreme Court, concerning the treatment of time spent awaiting the 
arrival of deadhead transportation to the point of final release. 
Notice and comment procedures are unnecessary with regard to the 
general statement of policy and interpretation issued by this notice 
because such a statement is excepted from notice and comment procedure 
by virtue of 5 U.S.C. 553(b)(3)(A). Statements of policy are also an 
exception to the general requirement of publication at least 30 days 
prior to the effective date. See 5 U.S.C. 553(d)(2).

Effect of this Notice

    On January 8, 1996, the United States Supreme Court issued its 
decision in the case of Brotherhood of Locomotive Engineers v. 
Atchison, Topeka and Santa Fe R.R.,____ U.S. ____, 116 S.Ct. 595, 
affirming the decision of the United States Court of Appeals for the 
Seventh Circuit in the case of Atchison, Topeka, and Santa Fe Railway 
Co. v. Pena, 44 F.3d 437 (1994). Both cases concern FRA's 
interpretation of the HSL as they pertain to the status of train 
crewmembers waiting for the arrival of deadhead transportation to their 
point of final release. The Supreme Court unanimously held that such 
time, when no additional services are required of railroad carrier 
employees, should be classified as limbo time (i.e., neither on- nor 
off-duty time) for HSL purposes.
    The Supreme Court's holding coincided with the position that FRA 
had traditionally taken until the agency changed its interpretation of 
the HSL in late 1992. Prior to that change, FRA had considered an 
employee to be on duty during the time spent waiting for the arrival of 
deadhead transportation to the employee's point of final release only 
if the employee actually had duties to perform. If the railroad carrier 
had relieved the employee of all responsibility, FRA had considered 
such time spent merely waiting for the deadhead vehicle to arrive as 
limbo time.
    However, on September 22, 1992, in response to lawsuits filed by 
the United Transportation Union and the Brotherhood of Locomotive 
Engineers, a three-judge panel of the United States Court of Appeals 
for the Ninth Circuit held that such time spent waiting for 
transportation was to be considered on-duty time. United Transportation 
Union v. Skinner, 975 F.2d 1421 (9th Cir. 1992). The Ninth Circuit 
includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, 
Nevada, Oregon, and Washington. Although FRA disagreed with the Ninth 
Circuit's legal rationale, FRA recognized both the ambiguity of the 
HSL's pertinent provisions and the reasonableness of the court's 
ultimate conclusion as to the

[[Page 20495]]

proper reading of those provisions. Accordingly, in the interest of 
uniform application of the HSL and to promote the safety of railroad 
operations, FRA decided to treat the Ninth's Circuit opinion as binding 
throughout the entire nation. That shift in agency policy was announced 
in an October 28, 1992 letter to the Association of American Railroads 
(AAR), and was later published in the Federal Register. 58 Fed. Reg. 
18,193 (1993).
    FRA had always believed that both the Ninth Circuit's 
interpretation of the relevant HSL provisions, and what became the 
Seventh Circuit's interpretation, were reasonable. While FRA adopted 
the Ninth Circuit's interpretation in 1992 primarily to achieve 
national uniformity, the contrary decision of the Seventh Circuit in 
1994 made that goal impossible to achieve until the Supreme Court 
finally resolved the split between the circuit courts. Moreover, upon 
review of the Seventh Circuit's unanimous, en banc decision, FRA 
concluded that the Seventh Circuit's reading of the pertinent HSL 
provisions was better reasoned than the decision of the Ninth Circuit. 
Accordingly, FRA stated in a March 1, 1995 letter to AAR that, 
effective March 6, 1995, with respect to locations outside of the 
territory of the Ninth Circuit, FRA would revert to its prior view that 
all time spent merely waiting on a train for the arrival of deadhead 
transportation to the employee's point of final release would be 
treated as limbo time.
    Now that the Supreme Court has resolved the split in the circuits, 
this means that effective January 8, 1996, FRA treats an employee 
merely required to remain on a train--at a location in any state in the 
nation--while awaiting the arrival of deadhead transportation to the 
employee's point of final release, as neither on nor off duty; the 
employee's status most closely resembles, and is part and parcel of, 
deadheading from duty.
    However, as FRA has long maintained, if an employee is required to 
perform service of any kind during that period (e.g., protecting the 
train against vandalism, observing passing trains for any defects or 
unsafe conditions, flagging, shutting down locomotives, checking fluid 
levels, or communicating train consist information via radio), he or 
she will be considered as on duty until all such service is completed. 
Moreover, the Supreme Court's decision addressed the situation in which 
a crew that has expired under the laws is called upon to perform 
nonoperational duties (i.e., commingled duties) while it waits for the 
arrival of the deadhead vehicle after the expiration of the maximum 12 
hours. The Court made clear that the laws account for that circumstance 
by treating such time as time on duty pursuant to 49 U.S.C. 21103(b)(3) 
(commingled service provision). Of course, where a railroad carrier's 
operating rules clearly relieve an employee of all duties during the 
waiting period and no duties are specifically assigned, the employee's 
waiting time will be considered limbo time.
    Consistent with the Supreme Court's holding, FRA is ceasing all 
enforcement activity concerning alleged violations of the HSL and hours 
of duty records and reporting regulations (49 CFR Part 228, Subpart B) 
occurring anywhere in the United States involving only the awaiting 
deadhead issue. Allegations of excess service involving only this issue 
are no longer being investigated by FRA. Moreover, all case files 
containing violation reports involving only this issue, regardless of 
the location or the date of the alleged violation, will soon be 
terminated. FRA's Office of Chief Counsel will provide the legal 
department of each railroad impacted by the Supreme Court's decision 
with a complete list of the case files that are affected by this policy 
change.
    Although time spent awaiting the arrival of deadhead transportation 
to the employee's point of final release will now constitute limbo time 
and FRA will enforce the laws accordingly, FRA remains concerned about 
instances in which employees are held on trains for long periods of 
time while awaiting the arrival of deadhead transportation in the 
absence of any valid emergency that might explain such an occurrence. 
To the extent that the waiting periods are extremely lengthy, current 
scientific information concerning sleep cycles and the effects of 
fatigue on safety-sensitive performance indicates that the waiting 
periods could contribute to the cumulative exhaustion of the employee. 
This cumulative exhaustion could occur even though the employee 
receives the legally required rest period upon arrival at the point of 
final release. Accordingly, it is FRA's expectation that the railroad 
carriers will voluntarily employ their best efforts to minimize the 
time that employees spend waiting for the arrival of deadhead 
transportation. FRA also urges the railroad carriers to devise pilot 
projects under the laws, pursuant to 49 U.S.C. 21108, that might reduce 
the awaiting-deadhead time in return for flexibility on other hours of 
service issues.
    FRA is amending its current interpretive statement in Appendix A to 
49 CFR Part 228 to reflect the fact that, in addition to computing time 
spent in deadhead transportation from the final duty assignment of the 
work tour to the point of final release as limbo time (time neither on- 
nor off- duty), all time spent awaiting the arrival of a deadhead 
vehicle for transportation to the point of final release, when no 
additional services are required of the railroad employee, shall also 
be treated by FRA as limbo time for purposes of the laws.

List of Subjects in 49 CFR Part 228

    Penalties, Railroad employees, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, 49 CFR Part 228 is amended as 
follows:

PART 228--[AMENDED]

    1. The authority citation for 49 CFR Part 228 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20107-20108, 20111, 20112, 
21101-21108, 21303-21304, as amended; 49 U.S.C. App. 1655(e), as 
amended; 49 CFR 1.49(d), (m).

    2. Appendix A to Part 228 is amended: By revising the second 
paragraph of Deadheading, under the undesignated centerheading ``Train 
and Engine Service,'' to read as follows:

Appendix A to Part 228--Requirements of the Hours of Service Act: 
Statement of Agency Policy and Interpretation

* * * * *

Train and Engine Service

* * * * *

Deadheading. * * *

    All time spent awaiting the arrival of a deadhead vehicle for 
transportation from the final duty assignment of the work tour to the 
point of final release is considered limbo time, i.e., neither time on 
duty nor time off duty, provided that the employee is given no specific 
responsibilities to perform during this time. However, if an employee 
is required to perform service of any kind during that period (e.g., 
protecting the train against vandalism, observing passing trains for 
any defects or unsafe conditions, flagging, shutting down locomotives, 
checking fluid levels, or communicating train consist information via 
radio), he or she will be considered as on duty until all such service 
is completed. Of course, where a railroad carrier's operating rules 
clearly relieve the employee of all duties during the waiting period 
and no duties are specifically assigned, the waiting

[[Page 20496]]

time is not computed as either time on duty or time off duty.
* * * * *
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 96-11224 Filed 5-6-96; 8:45 am]
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