Failing to specify that this is the railroads responsibility or placing the primary burden on the employee runs counter to the intent of the RSIA. For example, on July 14, 2009, CSX Trans-portation published System Bulletin 007, which revised Operating Rule R effective concurrently with the RSIA-mandated HOS changes.
3 That Bulletin requires, in pertinent part, as follows:
3 It is not our intent to single out CSXT Transportation here. This example is cited because it was the first such notice provided to us. Our expectation is that several, if not most, other railroads intend to take the same approach because of the imprecise direction provided by Interim Interpretation IV.A.10.
An employee called to report for service, who has not completed their mandatory undis-turbed rest, must inform the caller before accepting the duty call.
An employee who has had undisturbed rest period interrupted must immediately notify the crew caller so that the rest period can be reset. The employee must inform the crew caller the following:
Time rest was interrupted
Name of person that caused the interruption
Circumstances that caused the interruption
The primary motivating factor in enacting the undisturbed rest requirement was to bring an end to ceaseless calls from railroads to train employees for unnecessary purposes. Indeed, some rai-lroads have abused their train employees off-duty time so severely that FRA has proposed a new interpretation with respect to the look back undertaken to determine whether a statutory off-duty period has been afforded.
See n. 1, supra. Moreover, this docket already includes evidence of such abuse by a railroad prior to the enactment of RSIA, which FRA was powerless to address under the prior statutory scheme. See FRA-2009-0057-0023. Placing the primary responsibility for documenting violations of the undisturbed rest requirement on the employee, as System Bulletin 007 does, will only serve to perpetuate the abuse. Absent a disturbance by someone other than a crew caller, a crew caller should
never call an extra train employee for duty prior to the expiration of the undisturbed period, because the callers records should accurately reflect the employees most recent release time. If a regularly assigned em-ployee is involved, the crew caller may simply avoid calling the employee during the 10-hour period prior to the next scheduled reporting time; if the employees previous release time is 5 known, even more options exist. Thus, the first condition identified in the above excerpt should never arise.
Similarly, placing the onus on the train employee when someone other than a crew caller disturbs the statutory off-duty period only exacerbates the problem. The employees rest is not only in-terrupted by the length of time consumed by the interrupting call, it is further disturbed by the length of time it will take for the employee to report the interruption to the crew caller. This also will delay the restarting of the undisturbed period. All the while the employee is prevented from resting and from earning a living, with no real disincentive for the railroad to cease its abusive interruptions. This aspect of the problem to the extent there is a problem other than total dis-regard for the employees need to rest can be cured by the person who wants to speak with the train employee first contacting the crew caller to determine that persons assignment and status.
Accordingly, we recommend that Interim Interpretation IV.A.10 be revised to place primary re-sponsibility on the railroad for documenting violations of the statutory undisturbed rest require-ment. Furthermore, the interpretation should be revised to require railroads to provide a process by which an employee can challenge an incorrectly documented or undocumented interruption.
