[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]
BILLING CODE 4910-EX-P


