dissenting:
I respectfully dissent. I do not believe the agency’s interpretation of the statute is reasonable. “The purpose of the Act is to promote safety in operating trains by preventing the excessive mental and physical strain which usually results from remaining. too long at an exacting task.” Chicago & A.R. Co. v. United States, 247 U.S. 197, 199, 38 S.Ct. 442, 443, 62 L.Ed. 1066 (1918). The majority’s interpretation of the Act impedes the efficiency of railroads and does nothing to advance the purpose of the Act.
Evidence was presented at the congressional hearings regarding the 1969 amendments to the Act that time spent waiting for deadhead transportation was not on-duty time. Further, the Senate Report of the amendments states that.on-duty time was “time spent actually engaged in or connected to the movement of a train.” S.Rep. No. 91-604, 91st Cong., 1st Sess. 8 (1969) U.S. Code Cong. & Admin.News 1969, pp. 1636, 1640. This comports with the purpose of the act; the hazards of train operation occur when the train is moving.
Two specific aspects of the 1969 amendments to the Act serve to illuminate this determination. Time spent by an employee in deadhead transportation to begin a shift was categorized as time on-duty because this time could not be spent resting and thereby impacted the employee’s physical and mental condition when operating a train at the end of a shift. Time spent by an employee in deadhead transportation after a shift, however, was categorized as limbo time because it neither affected the employee’s ability to operate a train nor provided an opportunity for adequate rest. Time spent waiting for deadhead transportation is analogous to the latter and should be considered limbo time.
The majority affirms the FRA’s interpretation solely on the basis of its reliance on the Ninth Circuit’s opinion in United Transp. Union v. Skinner, 975 F.2d 1421 (9th Cir.1992). But I believe Skinner is based on a faulty premise: that railroad crews waiting for deadhead transportation might be expected to perform additional duties to further the completion of their assigned train’s run. The cases cited by Skinner, 975 F.2d at 1426, address the categorization of time spent by a railroad crew waiting for repairs to be made or for some other delay before resuming its duties of operating the train; these cases held that the crews were on duty during the time they spent waiting. That reasoning makes sense considering the Act’s goal of ensuring safety in the course of operating trains.
Outlawed crews waiting for deadhead transportation, however, have no further duties connected with operating the train. To the extent the outlawed crew remains on the train while it waits, it may be responsible for ensuring that the train is not looted or otherwise vandalized. But an outlawed crew is precluded from operating the train, technically by the statute and practically by the railroad. It is not unusual, though, for the outlawed crew to depart the train to wait nearby for deadhead transportation after a relief crew has arrived and assumed control of the train in order to bring the train to its destination. The interpretation of the Act by the majority, following Skinner, would include as on-duty time that time an outlawed crew spends in a saloon waiting for deadhead transportation, an activity that hardly' contributes to the “excessive mental and physical strain” while engaged in or connected to *329the movement of a train. This interpretation is considerably removed from the statutory goal of safety in operating trains and is, in my opinion, unreasonable in light of the letter and spirit of the Act.
POSNER, Chief Judge, BAUER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROYNER, Circuit Judges.ORDER *
Aug. 30, 1994
On consideration of the suggestion for rehearing en banc filed by the petitioners and the responses thereto, a majority of the judges in regular active service voted to GRANT a rehearing en banc. Accordingly, it is ordered that the suggestion for rehearing en banc is granted. It is further ordered that the judgment and opinion entered in this case on July 13, 1994 be vacated. This case will be reheard en banc at the convenience of the court.
The Honorable Walter J. Cummings did not participate in the consideration or decision of this petition for rehearing en banc.