400 Seventh St. S.W.

                                                                                                                        Washington, D.C.  20490

U.S. Department

Of Transportation

Federal Railroad                                                                                                                                  

Administration

    JUNE 30 2000

Mr. James P. Jones

State Legislative Director

California State Legislative Board, AFL-CIO

United T Transportation Union

1005 - 12th Street, Suite 4

Sacramento, California 95814-3920

Dear Mr. Jones:

This is a supplemental response to your letter of April 15, 1998 to the Federal Railroad Administration’s (FRA) regional office in Sacramento. California, requesting an investigation of an alleged violation of the Federal hours of service laws (HSL," see grenerally 49 U.S.C. chapter 211, formerly known as the Hours of Service Act) by The Burlington Northern and Santa Fe Railway Company (BNSF) involving a train crew that operated from Barstow to Bakersfield, California on March 31 and April 1,1998. Your letter indicated that after the crewmembers of Train P-MEMRIC1-28A expired under the HSL, they were transported by company vehicle first to Monolith, and later from Monolith to Cameron in order to protect Trains Z-CLONBY1-32A and Z-WSPNBY8-30A respectively, until the relief crews of those trains arrived. You note that only after the relief crew for the second train arrived did BNSF finally transport the crew of train P-MEMRIC1 -28A to its point of final release in Bakersfield, resulting in more 16 hours of time on duty for each crew member.

In a letter dated March 20,2000, ERA Regional Administrator Alvin L. Settje informed you that FRA had completed its investigation and found no violation of either the HSL or the related record keeping requirements of 49 C.F.R. Patt 228. Mr. Settje stated that he based his conclusion upon an. interpretation by FRA’s Chief Counsel that the time spent by the train crew, who had already been or. duty for the maximum period of time allowed by the HSL (see 49 U.S.C. 21 103) and was awaiting the arrival of deadhead transportation to its point of final release, did not count as time on duty even though the crew was ordered by Union Pacific Railroad Company Special Instructions to protect the train for reasons of grade securement.

Rescission of FRA’s March 20 Letter

The purpose of this letter is to notify you that the determination reached in the March 20 by FRA's regional office. that BNSF did not violate the statutory provisions of the HSL by requiring the crew of Train PMEMRIC 128A to protect two other trains on grades after those crewmembers had expired under the laws, was nor correct. Accordingly, PEA hereby rescinds the March 20 letter, As discussed below, although generally an employee required to remain on a train while awaiting the arrival of deadhead transportation to a point of final release is neither on nor off duty, if an employee is required to perform service of any land for the railroad carrier during that period, he or she is on duty until all such service is completed.

Treatment of Time Spent Awaiting the Arrival of Deadhead Transportation

In the case of Brotherhood of Locomotive Engineers v. Atchison, Topeka and Santa Fe R.R., 516 U.S. 152 (1996) the United States Supreme Court held that 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 classified as limbo time (i.e., neither on-nor off duty time) for HSL. purposes. However, if an employee is required to perform service of any kind during that period, he or she will be considered as on duty pursuant to 49 U.S.C. § 21 103(b)(3) (commingled service provision) until all such service is completed.[1]   Of course, where a railroad’s operating rules clearly relieve the employee of all duties during the waiting period and no duties are specifically assigned, the waiting time is not computed as either time on duty or time off duty.

Discussion & Analysis

As we understand the facts on March 31, 1998, Engineer Garside and Conductor Brewer were assigned by BNSF to serve as the crew of Tra2n P-MEMRIC1-28A they went on duty at Barstow at 8:00pm, ceased operating their train at 7:55 am the next morning at Summit, and reached the 12-hour maximum time on duty under the HSL at 8:00 am on April 1 1998. Twenty minutes later, they were removed from their train by Trainmaster Stevenson and transported by company vehicle to Monolith, where at 8:30 am they were assigned to protect Train Z-­CLONBY1 -3 1A from rolling away on a grade area until the relief crew arrived at the train. At 10:45 am, Trainmaster Stevenson removed Engineer Garside and Conductor Brewer from that train. and transported them by company vehicle to Cameron. At Cameron, at 10:55 am, they were assigned to protect a. second train (Train Z-WSPNBY8-30A) from rolling away on a grade

area until that train’s relief crew arrived. At 12:01 pm, more than four hours after expiring under he HSL Engineer Garside and Conductor 2rewer were relieved of all duties and transported by company vehicle to Bakersfield to begin their off-duty time.

While most railroad carrier operating rules and/or operating procedures require that trains cannot be left "unprotected or unsecured,” a crewmember who has been relieved and is merely waiting on unsecured train is considered neither on nor off duty for hours of duty purposes. However, under a functional analysis of what constitutes “covered service" or “ service for the carrier,” if crewmember performs any activity for the carrier during the waiting period,

Limbo time is interrupted or terminated, and the crewmember is returned to on-duty status.[2]  In this particular case, Conductor Brewer advised FRA that after the crewmembers of Train P-­MEMRIC1-28A were relieved of all operational responsibilities involving their train, but before the arrival of deadhead transportation to their point of final release in Bakersfield, they were transported to two other trains in succession and ordered by BNSF to protect these trains from

rolling on a grade. Accordingly, FRA concludes that because the subject train crew was not free of all responsibilities during the time that it was awaiting deadhead transportation to Bakersfield, the crew was on duty for purposes of the HSL and, therefore, was performing excess service in violation of those laws.

FRA regrets any inconvenience caused by the erroneous interpretation of the HSL expressed in the March20 letter from FRA’s regional office. in the future, if you believe that the 0ffice of Safety has incorrectly stated FRA’s legal position with respect to an issue. we ask that you communicate directly with the Office of Chief Counsel. The Chief Counsel will then determine FRA’s final agency position with respect to your interpretive question. and respond in writing. Of course, in scenarios concerning merely the application of existing legal interpretations to routine situations, or factual questions involving complaint investigations or enforcement of the Federal railroad safety laws, we hope that you will continue to direct your letters to FRA’s regional offices.

Sincerely,

/s/S. Mark Lindsey                               /s/ George Gavalla

Chief Counsel                                       Associate Administrator for Safety 

cc: Lawrence M. Mann, Esq.