TO: Advisory Board                                                                                                     TO: ALL LOCAL CHAIRMAN
General Chairmen, U.S.                                                                                                This is being provided for your
State Legislative Board Chairmen                                                                                  information and files.

FROM: Raymond A. Holmes, VP and NLR                                                                 Dennis R. Pierce
RE: Interpretation of Hours of Service and Part 240

DATE: December 3, 2002

Attached you will find a letter from the Federal Railroad Administration. The letter was prompted by a request from Division 180 President Barry Green, who contacted this office to assist in clarifying the BNSF's practices with respect to the regulations of the Hours of Service Act (HSL) and requirements for hearing and visual acuity testing found in §49 CFR Part 240, Qualification and Certification of Locomotive Engineers.

According to President Green, the railroad had inappropriately determined that time spent by an employee to fulfill the testing requirements would not in any way be counted within the structure of the HSL except when the testing was done by the railroad's medical van "subcontractor" during the locomotive engineer's regular on-duty assignment. The relatively small window (2 days) left some locomotive engineers in a position to have the test done on their own time at another facility. The Federal Railroad Administration (FRA) considers the re-certification testing requirements a "condition of employment", therefore, the time spent in this activity may or may not be included in the calculation of the employee's Total Time On Duty (TTOD) depending on other determining factors. Please review the enclosed letter from Mr. George Gavalla, Associate Administrator for Safety, for a complete explanation of the FRA's interpretation of this matter and retain for your file.

U.S. Department                                                                                 1120 Vermont Ave., N.W.
of Transportation                                                                                 Washington, D.C. 20590

Federal Railroad
Administration

OCT 4 2002

Mr. Barry E. Green
President, Division 180
Brotherhood of Locomotive Engineers
Glendive, Montana 59330

Dear Mr. Green:

Thank you for your letter requesting clarification of the Federal Railroad Administration's (FRA) application of the Federal hours of service law (HSL) concerning employees' time spent in engineer re-certification hearing and vision tests. FRA considers the re-certification testing requirement a "condition of employment," therefore, the time spent in this activity may or may not commingle with Covered Service. If the time spent testing can commingle, it must be included in the calculation of the employee's Total Time On Duty (TTOD). To determine the activity's impact, FRA considers several factors including test location, travel involved, actual time spent testing, and previous or potential future covered service. In order to provide the basis necessary to explain IRA's applications I will first define some frequently used, but often misunderstood terms.

Covered Service: The time the train and engine employee is actually engaged in or connected with the movement of a train. (NOTE: This is the qualifying event necessary to generate Time On Duty under the HSL.)

Commingled Service: Any carrier mandated "other" (non-covered) service performed for the carrier that is not separated from covered service by a qualifying statutory 8 or 10 hour off-duty period.

Designated Terminal: A Designated Terminal is a geographic location for a railroad's operation. It should be identified in or under authority of a collective bargaining agreement as the "home," "away-from-home," or "additional" terminal for a specific run (train assignment). Also, it must have suitable food and lodging available for the crew of the specific run. (NOTE: A Designated Terminal should not be confused with a Reporting Point. Also, if a bargaining agreement is not in place on a specific railroad, that railroad must identify one or more terminals individually as the "home," "away-from-home," or "additional" terminals designated for rest purposes for each assignment or run.)

Reporting Point: A Reporting Point is a precise physical location where an employee reports for duty to begin or restart a Duty Tour.

Regular Reporting Points: The permanent on-duty location of the employee's regular assignment that is established through a job bulletin assignment (job award or forced assignment) or seniority placement. The assigned Regular Reporting Point for extraboard and pool crew employees will always be a single fixed location identified by the railroad.

Other-than-regular Reporting Points: All other on-duty Reporting Points within a railroad-defined geographic area, usually established under the collective bargaining process.

Deadheading: An employee relocation (or repositioning) activity primarily related to train and engine personnel. It identifies the physical non-working relocation of the employee from one point to another as a result of carrier-issued verbal or written directives.

Commuting: The time spent by an employee in travel between his or her residence and the employee's Regular Reporting Point. In certain instances it is also the time spent by the employee in carrier provided or authorized transportation between his or her release point and the lodging facilities at the away-from-home terminal.

Interim Release: An off duty period of at least 4 but less than 8 hours at a designated terminal is considered a qualifying interim release that temporarily suspends the accumulation of Total Time On Duty, but does not start a new duty tour.

Statutory Off-Duty Period: Either 8 or 10 consecutive hours off duty and is the minimum time required to start a new duty tour.

49 U.S.C. § 21103(b) states, in part, that

(1) Time on duty begins when the employee reports for duty and ends when the employee is finally released from duty.

(2) Time the employee is engaged in or connected with the movement of a train is time on duty.

(3) Time spent performing any other service for the railroad carrier during a 24-hour period in which the employee is engaged in or connected with the movement of a train is time on duty.

(4) Time spent in deadhead transportation to a duty assignment is time on duty, but time spent in deadhead transportation from a duty assignment to the place of final release is neither time on duty not time off duty.

(6) An interim period available for less than 4 hours rest at a designated terminal is time on duty  [Emphasis added]

FRA's Application:

The HSL covers certain "functional" activities that are considered safety sensitive regardless of craft or title of the individual involved in the performance. Therefore, FRA employs a functional approach in its application of the HSL. The hearing and vision tests are conditions of employment and, as such, time spent in these activities is considered service for the railroad.

Therefore, the time spent in these tests will commingle with Covered Service provided the tests are conducted in a time frame that is not separated from Covered Service by Statutory Off Duty Periods before and after the tests. In addition, if the tests are performed at a location other than the employee's Regular Reporting Point, travel time, i.e., Deadheading, to and from the tests must be considered under the deadheading provisions of the HSL.

Since the tests are activities mandated by the railroad to comply with the engineer recertification requirements stated in Title 49, Code of Federal Regulations Part 240, the provisions of 49 U.S.C. §21103(b) apply to the actual time spent performing these tests. This time begins when the employee reports for the test and ends when he or she completes or is released from the tests.

The following outlines how FRA applies the Law the time involved in these tests.

•  If the time spent in these tests occurs during a release period that is less than a Statutory Off Duty Period, i.e., 8 or 10 hours, either before or after Covered Service, the time spent testing will aggregate with the previous or future Covered Service for purposes of calculating either the employees availability or TTOD.
•  If the time spent testing occurs after or before a release period of less than 4 hours or at a location that is not a Designated Terminal, the release period does not qualify for the relief granted under the HSL's Interim Release provisions. Therefore, the time spent testing and the time involved in the release must be included in the calculation of the employee's TTOD.
•  If the time spent testing occurs after or before a release period that is equal to or greater than 4 hours but less than 8 hours and at a Designated Terminal, the time spent testing will Commingle with the previous or future Covered Service. However, the amount of time involved in the release is a qualifying Interim Release and is not included in the calculation of the employee's TTOD.
•  If the time spent testing occurs in a period when the employee receives a Statutory Off Duty Period of 8 or 10 hours prior to and after the testing, the time spent is Limbo Time, i.e., neither time on duty nor time off duty.
•  In addition, FRA's application of the HSL states that a train and engine employee may have only one Regular Reporting Point. All travel between the employees residence and his or her Regular Reporting Point is considered Commuting and does not have any effect on the calculation of the TTOD nor does the travel time erode the employee's Statutory Off Duty Period However, all or a portion of the time spent in travel to Other-than-regular Reporting Points must be considered under the Deadheading provisions of the HSL as stated in U.S.C. §21103(b)(4) and further explained in FRA's Operating Practice's Agency Interpretation Bulletin OPAI-98-01 (copy enclosed).

Responses to your specific issues:

Issue 1: BNSF requires an engineer to report 30 minutes early for testing at the employee's Regular Reporting Point :

Since the testing is to be done at the employee's Regular Reporting Point, the BNSF is correct in counting only the additional 30 minutes in the employee's TTOD when the employee is required to report 30 minutes prior to the actual start time of the job. The 30 minute period should be reported as Commingled Service, not Covered Service, and will count toward the employee's maximum allowable time on duty. In this scenario, the employee should have received his or her Statutory Off Duty Period prior to the start of the early reporting time.

Issue 2: BNSF requires an engineer to report 30 minutes early  at an Other-than-regular Reporting Point:

The same calculation will apply in this issue as in #1 above. However, in addition to the 30 minutes, all or a portion of the time the employees spend in travel will be counted under the Deadheading provisions of the HSL. FRA applies the HSL's Deadheading provisions to the lesser of the time from the employee's home or Regular Reporting Point to the Other-than-regular Reporting Point for purposes of testing. The return travel from the Other-than-regular Reporting Point location of the van to the employee's Regular Reporting Point will also be considered Time On Duty under the HSL's Deadheading provisions provided the employee performs Covered Service within 8 hours after returning. These events should be reported as Deadheading and Commingled Service, not as Covered Service, simply because the events are not "engaged in or connected with the movement of a train."

Issue 3: Employee elects to travel to the testing site into his or her off-duty period:

There is no difference in this election than in Issues 1 or 2 above. Assuming the employee has completed his or her 8 or 10-hour Statutory Off Duty Period, he or she may choose to travel at his or her discretion to the van's location to be tested. If the employee has completed his or her 8 or 10-hour Statutory Off Duty Period prior to reporting for the test at his or her Regular Reporting Point, the time spent testing cannot Commingle with previous Time On Duty. However, if the employee reports for testing at his or her Regular Reporting Point prior to completing his or her 8 or 10-hour Statutory Off Duty Period, the time spent in testing will commingle with the previous Time On Duty. In addition, if the employee in this scenario does not receive an 8 hour Statutory Off Duty Period after the completion of the test, the time spent testing will commingle with the future Covered Service.
Either choice by the employee could create an excess service instance when Commingled with the previous Covered Service. In either case, the beginning and ending location, date and times, along with the employee's Prior Time Off must be reported as a mandatory activity for the railroad. This record should be transmitted to the BNSF's crew dispatching office in order that the railroad can consider the test's completion time as the start of a new 8-hour Statutory Off Duty Period or include the total time in future calls for Covered Service. In either of these two cases, if the employee must travel to an Other-than-regular Reporting Point for the testing, FRA applies the HSL's Deadheading provisions to the time spent in travel.

Issue 4: Employee does not travel to van but elects to make an appointment with the local county health department:

FRA's application of the HSL in this case is the same as Issue 3 above, except that FRA's application of the HSL's Deadheading provisions will apply to the time spent in travel to and from the local county health department. In other words, the time spent in travel should be reported as Deadheading and the time spent in testing should be reported as a mandatory activity that may or may not Commingle with either previous or future Covered Service. (NOTE; If the employee received a Statutory Off Duty Period prior to starting these activities, his or her record for this event should indicate no Time On Duty.)

Issue 5: BNSF's determination that if the engineer is not "under pay' then he or she is not "under the hours of service":

Pay is not, nor has it ever been, a determinate in computing an employee's TTOD under the HSL. The BNSF is incorrect in its application of the HSL to this time spent in testing and or travel. Pay is a collective bargaining issue that cannot be confused with or substituted for HSL provisions. Regardless of whether or not the employee is compensated for this activity, the HSL is very specific in counting "other service for the railroad," i.e., a mandatory activity such as re-certification testing, as Time On Duty when the activity can Commingle with Covered Service. Therefore, if the testing is conducted during the employee's off-duty period, even if the test period and location are chosen by the employee and he or she is not compensated for this activity, the time spent must be reported regardless of the time period and considered as Time On Duty if it can Commingle with previous or future Covered Service.

It is important to note that the time spent taking a test is not, in itself, Time On Duty. For the time to count as Time On Duty, the event must "be able to attach" to Covered Service, either before or after the testing. For the event to "be able to attach" to Covered Service, it must be either started or completed within a required Statutory Off Duty Period. If the employee has received his or her required 8 or 10-hour Statutory Off Duty Period prior to starting the events involved in the testing, and receives another 8-hour Statutory Off Duty Period following the completion of events involved in the testing, the time spent cannot Commingle and therefore is not counted as Time On Duty regardless of the length of time involved. An example of this phenomenon is a rule class that, coupled with travel to an Other-than-regular Reporting Point for purposes of testing, exceeds a 12-hour period. If the employee is given a Statutory Off Duty Period prior to beginning his or her travel to the class and receives another Statutory Off Duty Period after returning home, the time spent is not excess service. Since Covered Service is not present for the time to attach, i.e., Commingle, no excess service has been performed even though the total time involved may have exceeded 12 hours.

I appreciate the opportunity to review this matter for you.

Sincerely,

/s/ George Gavalla
Associate Administrator
for Safety

Enclosure