[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Rules and Regulations]
[Pages 25610-25611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10487]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II

[Docket No. FRA-2009-0057, Notice No. 3]


Statement of Agency Policy and Interpretation on the Hours of 
Service Laws as Amended; Delay of Effective Date of One Specific 
Interpretation

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

ACTION: Statement of agency policy and interpretation; delay of 
effective date.

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SUMMARY: This document delays the effective date of a section of FRA's 
statement of agency policy and interpretation on the hours of service 
laws that was published in the Federal Register on February 29, 2012, 
and that is scheduled to take effect on May 29, 2012. In response to 
the document, several issues were brought to FRA's attention with 
regard to the feasibility of implementing one of the interpretations by 
the May 29, 2012 effective date. In response to those concerns, the 
present document delays the effective date of that specific 
interpretation until January 1, 2013. However, a railroad may choose to 
comply with the interpretation on or after May 29, 2012, and in advance 
of its new January 1, 2013, effective date. The effective date of all 
other interpretations contained in the February 29, 2012, statement 
remains May 29, 2012.

DATES: The effective date for section IV.B.1 of the statement of agency 
policy and interpretation published February 29, 2012, at 77 FR 12408, 
and originally effective on May 29, 2012, is delayed until January 1, 
2013. All other sections of the statement of agency policy and 
interpretation published February 29, 2012, remain effective on May 29, 
2012.

FOR FURTHER INFORMATION CONTACT: Colleen A. Brennan, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail 
Stop 10, Washington, DC 20590 (telephone 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); or Richard 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).

SUPPLEMENTARY INFORMATION: On February 29, 2012, FRA published its 
statement of agency policy and interpretation on the hours of service 
laws as amended (Final Interpretations), responding to public comments 
on FRA's earlier interim statement of policy, 74 FR 30665 (June 26, 
2009), and clarifying additional questions concerning the hours of 
service laws. 77 FR 12408. In the Final Interpretations, FRA construed 
the word ``day'' for purposes of the statutory limitation on the number 
of consecutive days on which certain employees may initiate an on-duty 
period before being required to receive a certain rest period (i.e., 49 
U.S.C. 21103(a)(4) (sec. 21103(a)(4)). In the Final Interpretations, 
FRA interpreted the word ``day'' for purposes of sec. 21103(a)(4) to 
refer to the 24-hour period ending when an employee is finally released 
from duty, and any new initiation of an on-duty period at any point 
during the 24-hour period following the employee's prior final release 
will have been initiated on a day consecutive to the prior duty tour. 
This interpretation differed from the interpretation of what 
constitutes a ``day'' that was articulated in the interim statement of 
policy, which construed a ``day'' for the purposes of section 
21103(a)(4) as a calendar day. FRA's interim interpretations went into 
effect on July 16, 2009, and they have remained in effect. The Final 
Interpretations are scheduled to go into effect on May 29, 2012.
    In response to the Final Interpretations, the Association of 
American Railroads (AAR) requested a meeting with FRA. The meeting took 
place on April 4, 2012, and included the AAR as well as several 
railroads in teleconference. At the meeting, FRA

[[Page 25611]]

requested that the AAR put its concerns in writing. FRA received a 
letter from the AAR, dated April 9, 2012, requesting that FRA delay the 
effective date of the interpretation relating to the meaning of ``day'' 
in section 21103(a)(4), section IV.B.1 of the Final Interpretations, 
until January 1, 2013, and raising other concerns. FRA has posted the 
letter to the docket, Docket No. FRA-2009-0057. The letter argues that 
it is infeasible for railroads to comply with the interpretation by May 
29, 2012, for three reasons:

    First, the change to a 24-hour day requires significant 
programming changes for railroad information technology (IT) 
systems. These programming changes, which will require significant 
testing before they can be implemented, cannot be accomplished by 
May 29 or even shortly thereafter. Second, the change to a 24-hour 
day will require some railroads to hire additional employees * * *. 
Those railroads cannot hire and train employees by May 29. Third, 
the railroads need to update their training materials and train all 
affected employees on the new interpretation.

    Recognizing that it may not be possible for some railroads to 
comply with the new interpretation by May 29, 2012, FRA is issuing this 
document, which delays the effective date of section IV.B.1, ``What 
constitutes a `Day' for the purpose of sec. 21103(a)(4)?'' until 
January 1, 2013. All other sections of the Final Interpretations remain 
effective on May 29, 2012.
    In its April 9, 2012, letter, the AAR also requests a transition 
period from December 1, 2012 until the requested January 1, 2013, 
effective date in order to allow railroads to comply with the new 
interpretation of ``day'' for purposes of section 21103(a)(4) in 
advance of the effective date, rather than requiring compliance with 
the interim interpretation until the effective date of the new 
interpretation. To provide flexibility, rather than establish a static 
transition date, FRA will allow a railroad to choose to comply with the 
new interpretation on any date on or after May 29, 2012, and prior to 
January 1, 2013. FRA suggests that railroads choosing to transition to 
the new interpretation prior to January 1, 2013, inform the appropriate 
FRA regional offices, to reduce confusion and avoid redundant 
information requests from FRA inspectors.
    Transition to the new interpretation must be by a railroad in its 
entirety, rather than on an employee-by-employee or subdivision-by-
subdivision basis. Were a railroad to try to transition piecemeal, 
employees would likely be forced to move frequently between the interim 
interpretation and the new interpretation as they moved between 
subdivisions of the railroad. The AAR noted the complexity of moving 
employees from the interim interpretation to the new interpretation in 
the context of a single transition date; allowing multiple transition 
dates for a single railroad would exacerbate these concerns.
    FRA requests that Class I railroads provide monthly status reports 
to Richard Connor, FRA Operating Practices Specialist, at 
[email protected] or at the street address listed above, starting 
July 1, 2012 and ending for each railroad after its transition to the 
new interpretation, to update FRA on the progress of each railroad 
toward resolving technological, training, and hiring issues, and any 
other issues that present an obstacle to compliance with the new 
interpretation. Such reports will allow FRA to ensure that railroads 
are working toward full compliance with the new interpretation no later 
than January 1, 2013. If FRA determines that railroads are not 
progressing toward implementation of the new interpretation, or if FRA 
is unable to gather the information necessary to make such a 
determination, FRA may publish an additional notice expediting the 
transition period.

    Issued in Washington, DC, on April 25, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-10487 Filed 4-30-12; 8:45 am]
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