[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]
BILLING CODE 4910-06-P
