[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Notices]
[Pages 12818-12820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04428]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0056]


Hours of Service of Drivers: R.J. Corman Railroad Services, 
Cranemasters, Inc., and National Railroad Construction and Maintenance 
Association, Inc.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition; grant of application for 
exemption.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to grant the application of R.J. 
Corman Railroad Services, Cranemasters, Inc., (collectively, ``the 
Companies'') and the National Railroad Construction and Maintenance 
Association, Inc. (NRC) for an exemption from the prohibition against 
driving a property-carrying commercial motor vehicle (CMV) after the 
14th hour after coming on duty and driving after accumulating 60 hours 
of on-duty time in 7 consecutive days (60-hour rule), or 70 hours of 
on-duty time in 8 consecutive days (70-hour 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 
the employee's normal work hours. FMCSA concluded that granting the 
Companies/NRC's 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 March 4, 2020 and expires March 4, 
2025.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit 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. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    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; Telephone: (202) 366-4325; Email: [email protected]. If 
you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2019-0056 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 the Docket Management Facility 
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.

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. Request for Exemption

    The Companies and NRC requested an exemption from the HOS 
regulations in 49 CFR part 395 for their employees who respond to 
unplanned events that affect interstate commerce, service or the safety 
of railway operations, including passenger rail operations. These 
employees transport equipment used to clear derailed or disabled trains 
or debris blocking tacks or railroad rights-of-way.
    The Companies and NRC explained that unplanned events often occur 
outside of normal business hours. Although in many cases the event is 
local in nature, allowing local government officials to declare an 
emergency that would exempt the company and its drivers from the HOS 
regulations, these officials have not done so. The Companies and NRC 
believe it would not be practical for them to do so in the future 
because (1) many unplanned events occur in remote locations where it 
may not be clear who is authorized to declare an emergency; (2) more 
than half of unplanned event call times occur between 4:00 p.m. and 
7:00 a.m., including a large number between midnight and 7:00 a.m., 
making it virtually impossible for the railroads to obtain an emergency 
declaration before requesting a contractor to respond to the unplanned 
event; and (3) companies likely would not know if such an emergency

[[Page 12819]]

declaration had been issued before they respond to a call from a 
railroad.
    The Companies/NRC compare the work of railroad employees or 
contractors responding to an emergency to that of utility service 
employees responding to an emergency. They argue that the rationale for 
the statutory utility service HOS exemption applies with equal force to 
railroad emergency response contractors responding to unplanned events.
    The applicants are seeking an exemption from the HOS regulations 
for the time spent by their drivers driving to the site of the 
unplanned event. The term ``unplanned event'' includes 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; a blocked grade crossing, etc. According to 
the Companies the exemption would be narrower than the utility service 
exemption, which allows drivers to drive after they complete work 
restoring utility service. The Companies' application, on the other 
hand, would require drivers not to drive a CMV after completing work 
until they had obtained the required 10 hours or 34 hours of rest, 
depending on their cumulative hours on duty for the day and week. The 
applicants request the exemption be granted for five years. A copy of 
the application for exemption is available for review in the docket for 
this notice.

IV. Public Comments

    On March 8, 2019, FMCSA published a notice seeking public comment 
on the exemption application (84 FR 8565). The Agency received 13 
comments: Association of American Railroads and the American Short Line 
and Regional Railroad Association (joint submission of comments); 
Brotherhood of Maintenance of Way Employees and the Brotherhood of 
Railroad Signalmen (joint submission of comments); Kentuckians for 
Better Transportation; Keystone State Railroad Association; Mississippi 
Railroad Association; Ohio Railroad Association; Mr. Kevin Phillips; 
Railway Association of North Carolina; Mr. Bob Stanton; Mr. C. R. 
Stoeckmann; Tennessee Shortline Association; Utilco Railroad Services, 
Inc.; and, Virginia Fire Chiefs Association;
    Eight organizations and one individual supported the request for an 
exemption. One organization and two individuals opposed the request. 
One company providing services like those of the applicants expressed 
interest in receiving similar relief but did not comment on the 
applicant's request.
    The commenters writing in support of the exemption request 
emphasized the importance of responding to railroad emergencies in a 
timely manner. The Association of American Railroads and the American 
Short Line and Regional Railroad Association stated in their joint 
submission to the docket:

    ``There is a public interest in ensuring that railroads clear 
blocked tracks and rights-of-way and restore service as quickly as 
possible. It is essential that response contractors are able to 
assign the drivers closet to the incident . . . so that they can get 
to [the] job quickly and clear the blockage--thus enabling the 
railroads to remove the hazard and restore service as quickly as 
possible.''

    The Virginia Fire Chiefs Association, Inc. explained:

    ``Derailments often involve leaks of crude oil, fuel and other 
hazardous materials, which can pollute water and air if not quickly 
remediated. There also may be risk of fire or explosions requiring 
evacuation of people from the area. Railroads rely on their response 
contractors who drive specialized equipment and clear blocked tracks 
and rights-of-way.''

    The Brotherhood of Railroad Signalmen and Brotherhood of 
Maintenance of Way Employees Division and two individuals opposed the 
application. The groups stated:

    ``There is no logical or statistical argument from the 
Companies/NRC asserting that driving to an unplanned event as 
outlined in the application with a fatigued driver is any safer than 
driving from one. Furthermore, by removing the hours of service 
guidelines and simply stating, ``no driver is required to drive a 
vehicle if feeling fatigued'' puts the responsibility of not driving 
sole only the employed driver. Said driver is working in a 
historically retaliatory nonunion working environment. . . .''

    The groups also argue the ``[p]etitioners have offered no data 
showing the frequency with which drivers run out of allowable working 
hours during any one of these incidents.'' The groups 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 argue that ``scientific 
studies have established that driver fatigue and performance are 
dynamically influenced by the regulation of sleep need and endogenous 
circadian rhythms, including the need to obtain enough sleep to ensure 
recovery from work schedules that might induce either acute or chronic 
sleep deprivation.''

V. FMCSA Response to Comments and Decision

FMCSA Response

    FMCSA agrees that the Companies need to respond to unplanned events 
in a timely manner. 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 Companies to address urgent situations that disrupt 
rail services.
    The Agency acknowledges the safety concerns raised by the 
Brotherhood of Maintenance of Way Employees and the Brotherhood of 
Railroad Signalmen. 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 Companies 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 hours-of-service (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 hours or 70 hours of on-duty time 
during seven or eight consecutive days. Drivers' standard schedules 
would include adherence to the 14-hour rule and adherence to the 60- 
and 70-hour rules.
    Based on the information provided by the applicants, the Companies 
responded to more than 2,000 derailments and other unplanned events 
between January 2017 and October 2018 which would be an average of 
approximately 95 unplanned events at various locations in the country 
each month. R.J. Corman Railroad Services has 20 divisions. 
Cranemasters has 11 divisions. Therefore, this demand would be handled 
by more than 30 divisions between the Companies, which suggests that 
the need would truly be unpredictable in any given division.
    The exemption request would neither increase nor decrease drivers' 
responsibility under 49 CFR 392.3 to

[[Page 12820]]

cease operations if their ability to safely operate a CMV is impaired 
by illness or fatigue.
    FMCSA and the U.S. Department of Labor are responsible for 
implementing Federal statutes and regulations providing protection for 
drivers; any driver operating under the exemption would have the right 
to seek assistance, if needed.

FMCSA Decision

    FMCSA grants the exemption because it would provide needed 
flexibility without compromising highway safety; the terms and 
conditions of the exemption would achieve the requisite level of 
safety.

VI. Terms and Conditions of the Exemption

    A. This exemption is restricted to individuals employed by the 
Companies 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;
     a matter concerning national security or public safety, 
including a blocked grade crossing.
    B. When operating under this exemption, drivers and carriers:
    a. May extend the 14-hour duty period in Sec.  395.3(a)(2) to no 
more than 17 hours;
    b. May not exceed 11 hours of driving time, following 10 
consecutive hours off duty;
    c. May extend the 60- and 70-hour rule in Sec.  395.3(b) by no more 
than 6 hours;
    d. May not travel more than 300 air miles from the normal work-
reporting location or terminal.
    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 travelling 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 North American 
Fatigue Management Program (NAFMP) (www.nafmp.org) prior to operating 
under the exemption; 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 Companies must notify FMCSA within 5 
business days of any accident (as defined in 49 CFR 390.5), involving 
any of the motor carrier's CMVs operating under the terms of this 
exemption. The notification must include the following information:
    a. Identifier of the Exemption: ``The Companies and NRC,''
    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 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.

VII. Termination

    The 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. 
The FMCSA will immediately revoke the exemption for failure to comply 
with its terms and conditions.

    Issued on: February 27, 2020.
Jim Mullen,
Acting Administrator.
[FR Doc. 2020-04428 Filed 3-3-20; 8:45 am]
 BILLING CODE 4910-EX-P