Hours of Service of Drivers: Association of American Railroads and American Short Line and Regional Railroad Association; Application for Exemption |
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James W. Deck
Federal Motor Carrier Safety Administration
23 December 2020
[Federal Register Volume 85, Number 247 (Wednesday, December 23, 2020)]
[Notices]
[Pages 84096-84099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28341]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2020-0171]
Hours of Service of Drivers: Association of American Railroads
and American Short Line and Regional Railroad Association; Application
for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; grant of exemption.
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SUMMARY: FMCSA announces its decision to grant the application
submitted by the Association of American Railroads and the American
Short Line and Regional Railroad Association and member railroads
(collectively ``the Associations'') for an exemption from the
prohibition against driving after the 14th hour from the beginning of
the work shift (the 14-hour rule) and the prohibition against driving
after accumulating 60 hours of on duty time within seven consecutive
days, or 70 hours of on duty time within 8 consecutive days (the 60-
hour/70-hour
[[Page 84097]]
rule). The exemption will enable railroad employees subject to the
hours-of-service (HOS) rules to respond to unplanned events that occur
outside of or extend beyond an employee's normal work hours. FMCSA
concluded that granting the Associations' application is likely to
achieve a level of safety equivalent to or greater than the level of
safety that would be obtained in the absence of the exemption.
DATES: The exemption is effective December 23, 2020 and expires
December 18, 2025.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Dockets
Operations, U.S. Department of Transportation, Room W12-140 on the
ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday,
except Federal holidays. To be sure someone is there to help you,
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets
Operations.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; (202) 366-4325; MCPSD@dot.gov. If you have questions
on viewing or submitting material to the docket, contact Dockets
Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, as well as documents mentioned in this notice as
being available in the docket, go to www.regulations.gov and insert the
docket number, ``FMCSA-2020-0171 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting Dockets Operations in Room W12-
140 on the ground floor of the DOT West Building, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call (202) 366-9317 or (202) 366-9826 before
visiting Dockets Operations.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain Federal Motor Carrier Safety Regulations. FMCSA
must publish a notice of each exemption request in the Federal Register
(49 CFR 381.315(a)). The Agency must provide the public an opportunity
to inspect the information relevant to the application, including any
safety analyses that have been conducted. The Agency must also provide
an opportunity for public comment on the request.
The Agency reviews safety analyses and public comments submitted
and determines whether granting the exemption would likely achieve a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305). The Agency's
decision must be published in the Federal Register (49 CFR 381.315(b))
with the reasons for denying or granting the application and, if
granted, the name of the person or class of persons receiving the
exemption, and the regulatory provision from which the exemption is
granted. The notice must also specify the effective period (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
III. Background
Under 49 CFR 395.3(a) a property carrying commercial motor vehicle
(CMV) driver may not drive without first taking 10 consecutive hours
off duty. Additionally, the driver may only drive a total of 11 hours
during a period of 14 consecutive hours after coming on duty following
10 consecutive hours off duty. Under 49 CFR 395.3(a)(3)(ii) driving is
not permitted if more than 8 hours of driving time have passed without
at least a consecutive 30-minute interruption in driving status. The
30-minute break may be taken as off-duty, on-duty/not-driving, or
sleeper-berth time, or any combination thereof. Under 49 CFR 395.3(b)
no motor carrier shall permit or require a driver of a property-
carrying CMV to drive, nor shall any driver drive a property-carrying
CMV, regardless of the number of motor carriers using the driver's
services, for any period after having been on duty 60 hours in any
period of 7 consecutive days or having been on duty 70 hours in any
period of 8 consecutive days.
IV. Request for Exemption
The Associations believe the HOS prohibitions on driving after the
14th hour after coming on duty, and after 60 or 70 hours on duty in a
moving 7- or 8-day ``week,'' inhibit the ability of a railroad to
respond expeditiously to certain types of emergency situations. The
Associations requested that a railroad employee responding to an
unplanned event that affects railroad operations, including passenger
rail operations, and that occurs outside of or extends beyond the
employee's normal shift, be exempt from those requirements. Unplanned
events include the following: A derailment; a rail failure or other
report of dangerous track condition; a disruption to the electric
propulsion system; a bridge-strike; a disabled vehicle on the track; a
train collision; weather- and storm-related events; a matter of
national security; a matter concerning public safety; and a blocked
grade crossing.
The Associations' request mirrors the request submitted by R.J.
Corman Railroad Services, Cranemasters, Inc., and the National Railroad
Construction and Maintenance Association, Inc. (the Contractors), which
FMCSA granted on March 4, 2020 (85 FR 12818). The Associations' request
provides that, while operating under this exemption, drivers and
carriers would be allowed to extend the 14-hour duty period in Sec.
395.3(a)(2) to no more than 17 hours; would not be allowed to exceed 11
hours of driving time following 10 consecutive hours off duty; would be
allowed to extend the 60- and 70-hour rule in Sec. 395.3(b) by no more
than 6 hours; and, drivers would not be allowed to travel more than 300
air miles from their normal work-reporting location or terminal.
In addition, drivers covered by the Associations' request would
comply with the applicable HOS limits after arriving at the site and
would record all time working to restore rail service as on duty, not
driving. Drivers would also have the benefit of FMCSA's personal
conveyance guidance when travelling between the unplanned event work
site and nearby lodging or dining facilities. To the extent that
guidance is not applicable, CMV drivers who have reached the HOS limits
would be transported from the work site after on-site duties are
completed by an individual who is not subject to HOS restrictions, or
would use a vehicle that does not meet FMCSA's definition of a CMV at
Sec. 390.5.
Furthermore, drivers operating under the exemption would receive
resources on fatigue management appropriate to the rail working
environment and emergency response to unplanned events. Specifically,
drivers would complete the Driver Education Module
[[Page 84098]]
3 and Driver Sleep Disorders and Management Module 7 of the North
American Fatigue Management Program (NAFMP).
FMCSA notes that the rail industry already utilizes many resources
to educate and assist its workforce, including its CMV drivers, about
preventing operator fatigue. The DOT's Federal Railroad Administration
hosts a website, the ``Railroaders Guide to Healthy Sleep'' (https://railroadersleep.fra.dot.gov/) which provides information, strategies,
and resources to help railroad employees manage fatigue. Railroads
subject to this exemption request could direct their employee CMV
drivers to that railroad-specific and existing FRA fatigue-management
resource as another method of compliance under an exemption.
The Associations requested the exemption be granted for 5 years.
The exemption would cover 20,000 drivers and 11,000 CMVs.
A copy of the exemption application is available for review in the
docket for this notice.
V. Public Comments
On August 20, 2020, FMCSA published a notice seeking public comment
on the exemption application (85 FR 51546). The Agency received nine
comments from the following respondents: The Brotherhood of Maintenance
of Way Employees Division (BMWED); Commercial Vehicle Safety Alliance
(CVSA); Justin Fowler; Michael Millard; National Railroad Construction
and Maintenance Association, Inc. (NRC); Lisa and Lee Schmidt (joint
submission of comments); MJ Thorne; Transportation Trades Department,
AFL-CIO; and the Truckload Carriers Association (TCA).
The NRC and one individual supported the request for an exemption.
The NRC commented:
The drivers fulfill a critical safety function where it is often
difficult to know how long a job will take or when such duties might
need to occur. Safety will not be negatively impacted as these
employees typically drive for a small percentage of their on-duty
time and often only drive short distances. Further, the drivers who
have reached the HOS limits would not drive a CMV after the on-site
work was completed. The driving in these instances is just
incidental to the actual railroad work performed by the employees to
clear rail incidents and restore essential rail transportation
services, which presents its own set of safety benefits.
Four organizations and three individuals opposed the request for an
exemption. The BMWED discussed several research studies and reports,
concluding that a substantial body of evidence indicates that a chronic
reduction in sleep time is associated with many long-term health
problems. They also argued that ``scientific studies have established
that driver fatigue and performance are dynamically influenced by the
regulation of sleep, including the need to obtain enough sleep to
ensure recovery from work schedules that might induce either acute or
chronic sleep deprivation.''
CVSA registered its opposition by noting:
The FMCSRs are put into place to provide a framework of the
minimum requirements to operate commercial motor vehicles safely. An
exemption to those safety regulations should not be granted simply
because they don't fit a particular industry's business model. If an
expedited response to these `unplanned events' are as critical as
AAR and ASLRRA suggest in their application, then their member
companies should design their business models to respond quickly
while still operating within the safety regulations.
TCA opposed the exemption and wrote:
Adding another exemption to the already over-regulated CMV
sphere would only serve to muddy the waters and confuse drivers who
may not be familiar with the nuances of the federal regulations.
Furthermore, increasing the number of HOS exemptions also increases
the opportunities for them to be abused, leading to a decrease in
overall safety. TCA encourages the Agency to consider these
potentially unintended consequences that may correspond with adding
to the already large number of HOS exemptions.
VI. FMCSA Response to Comments and Decision
The Agency believes there is a public interest in ensuring that
railroads clear blocked tracks and rights-of-way and restore service as
quickly as possible. The exemption would provide flexibility for the
Associations to address urgent situations that disrupt rail services.
The Agency acknowledges the safety concerns raised by the BMWED,
CVSA, TCA, and other organizations and individuals opposing the
exemption. However, the Agency does not believe the requested relief
would compromise safety when used occasionally to respond to unplanned
events. The exemption would enable the Associations to reach the site
of such events within a limited distance from their drivers' normal
work-reporting location. Once the crews arrive at the scene, all CMV
operations would be conducted in full compliance with the applicable
HOS regulations. Likewise, when normal rail operations have been
restored, drivers would be required to comply with the HOS requirements
during the return trip.
Because the relief is limited to the trip to the scene of the
unplanned event and such events would happen only occasionally and not
during a predictable number of times per week or per month, drivers
would not operate CMVs after the 14th hour of coming on duty as a
regular part of their schedules. Similarly, drivers would not regularly
operate CMVs after accumulating 60 or 70 hours of on-duty time during 7
or 8 consecutive days. Drivers' standard schedules would include
adherence to the 14-hour rule and the 60- and 70-hour rules.
The exemption would not decrease drivers' responsibility under 49
CFR 392.3 to cease operations if their ability to safely operate a CMV
is impaired by illness or fatigue.
FMCSA Decision
FMCSA grants the exemption because it will provide needed
flexibility without compromising highway safety; the terms and
conditions of the exemption would likely achieve the requisite level of
safety.
VIII. Terms and Conditions of the Exemption
A. This exemption is restricted to individuals employed by the
Associations while driving CMVs to the site of an ``unplanned event''
which includes the following:
A derailment;
A rail failure or other report of a dangerous track
condition;
A track occupancy light;
A disruption to the electric propulsion system;
A bridge-strike;
A disabled vehicle on the train tracks;
A train collision;
Weather- and storm-related events including, fallen trees
and other debris on the tracks, snow, extreme cold or heat, rock and
mud slides, track washouts, and earthquakes; and
A matter concerning national security or public safety,
including a blocked grade crossing.
B. When operating under this exemption, drivers and carriers:
May extend the 14-hour duty period in Sec. 395.3(a)(2) to
no more than 17 hours;
May not exceed 11 hours of driving time, following 10
consecutive hours off duty;
May extend the 60- and 70-hour rule in Sec. 395.3(b) by
no more than 6 hours; and
May not travel more than 300 air miles from the normal
work-reporting location or terminal.
[[Page 84099]]
C. Drivers must comply with the applicable HOS limits after
arriving at the site--drivers must record all time working to restore
rail service as on duty, not driving.
D. Drivers may take advantage of the Agency's personal conveyance
regulatory guidance when traveling between the unplanned event work
site and nearby lodging or dining facilities (June 7, 2018; 83 FR
26377). If that guidance is not applicable to the trip, CMV drivers who
have reached the HOS limits must be transported from the work site by
an individual who is not subject to HOS restrictions or use a vehicle
that does not meet FMCSA's definition of a CMV (49 CFR 390.5) when they
leave the site.
E. Drivers must complete the Driver Education Module 3 and the
Driver Sleep Disorders and Management Module 8 of the NAFMP)
(www.nafmp.org) prior to operating under the exemption; railroads
subject to the exemption could direct CMV drivers to the DOT's Federal
Railroad Administration's website, the ``Railroaders' Guide to Healthy
Sleep'' (https://railroadersleep.fra.dot.gov/) as an alternative
resource if NAFMP's website is unavailable; and
F. Motor carriers and drivers must comply with all other provisions
of the Federal Motor Carrier Safety Regulations.
Preemption
In accordance with 49 U.S.C.31313(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation applicable to interstate commerce that
conflicts with or is inconsistent with this exemption with respect to a
firm or person operating under the exemption. States may, but are not
required to, adopt the same exemption with respect to operations in
intrastate commerce.
Notification to FMCSA
Under the exemption, the Associations must notify FMCSA within 5
business days of any accident (as defined in 49 CFR 390.5), involving
any of the CMVs operating under the terms of this exemption. The
notification must include the following information:
a. Identifier of the Exemption: ``The Associations;''
b. Name of operating carrier and USDOT number;
c. Date of the accident;
d. City or town, and State, in which the accident occurred, or
closest to the accident scene;
e. Driver's name and license number;
f. Co-driver's name (if any) and license number;
g. Vehicle number and state license number;
h. Number of individuals suffering physical injury;
i. Number of fatalities;
j. The police-reported cause of the accident, if provided by the
enforcement agency.
k. Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations; and
l. The records of duty status for date of the accident and the 7
consecutive days prior to the date of the accident, accompanied by a
summary statement of the total on-duty time accumulated during the 7
consecutive days prior to the date of the accident, and the total on-
duty time and driving time in the work shift prior to the accident.
IX. Termination
FMCSA does not believe the motor carriers and drivers covered by
this exemption will experience any deterioration of their safety
record. However, should this occur, FMCSA will take all steps necessary
to protect the public interest, including revocation of the exemption.
FMCSA will immediately revoke the exemption for failure to comply with
its terms and conditions.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-28341 Filed 12-22-20; 8:45 am]
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