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

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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