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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-01-9332] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of application for exemption; request for comments. 

# SUMMARY:

The FMCSA has received a joint application from the Brotherhood of Railroad Signalmen (BRS) and CSX Transportation, Inc. (CSX) for an exemption from the hours-of-service rules for drivers of commercial motor vehicles engaged in interstate commerce. Petitioners request an exemption from the 60-hour in 7-day and 70-hour in 8-day rules for CSX's signal construction gangs, comprised of BRS members. The FMCSA seeks public comment on the merits of the application and whether the FMCSA should grant or deny it. 

# DATES:

Comments must be received on or before June 20, 2001. 

# ADDRESSES:

                        You can mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at                         *http://dmses.dot.gov/​submit.*                         You should include the docket number that appears in the heading of this document. You can examine and copy all comments at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal Holidays. You may also view comments on the Internet at                         *http://dms.dot.gov*                         using the docket number that appears in the heading of this document. If you want us to notify you that we received your comments, please include a self-addressed, stamped postcard, or you may print the acknowledgment page that appears after submitting comments electronically.                     

# FOR FURTHER INFORMATION CONTACT:

Mr. David Miller, (202) 366-6408. 

# SUPPLEMENTARY INFORMATION:

## Background 

### BRS and CSX's Application 

The CSX is a private motor carrier of property as defined by 49 CFR part 390 and a Class I railroad as defined by 49 CFR part 1201. The BRS and CSX filed a joint application that asks the FMCSA for either one of two actions. The petitioners' first (and preferred) request is for an interpretation that the hours-of-service (HOS) regulations (49 CFR Part 395) do not apply to CSX railroad signal employees driving commercial motor vehicles (CMVs) on public roads in interstate commerce. The alternative request is for an exemption from the HOS rules that would allow CSX railroad signal employees to work their collectively-bargained schedule, i.e., 8 consecutive days on duty at up to 12 hours per day, followed by 6 consecutive days off duty. A copy of the joint application for exemption is in the docket. 

The FMCSA disagrees with petitioners' argument that the HOS regulations “are not intended to, and do not, apply to railroad signal employees who are subject to HOS requirements promulgated by Congress specifically for application to railroad signal employees.” The 1976 amendment to the Hours of Service Act of 1907 dealing with railroad signal employees (49 U.S.C. 21104) was intended to protect them from being required to work excessive hours. Nothing in Sec. 21104 suggests that Congress intended it to supersede the HOS regulations applicable to highway operations of CMVs, which were based on the Motor Carrier Act of 1935 (49 U.S.C. 31502). The language and legislative history of section 21104 reveal no specific intent to protect the public from potential risks associated with the operation of CMVs by railroad signal personnel who are on-duty for many hours. The FMCSA's HOS regulations, on the other hand, are designed to protect all users of the public highways from fatigued CMV drivers (49 CFR Part 395). Petitioners' argument is not supported by any authority. 

#### Exemption Request 

The agency will, however, consider petitioners' request for an exemption from Part 395 to the extent needed to allow railroad signal employees to work their collectively-bargained schedule, i.e., 8 consecutive days on duty at up to 12 hours per day, followed by 6 consecutive days off duty. 

According to the joint application, CSX employs about 1,765 signalmen who are represented by the BRS. It is unclear exactly how many of these employees would be affected by the exemption requested. 

The petition states that CSX signal employees are organized into 91 construction gangs. They drive private vehicles from their homes to a hotel or motel close to their next job site. From there, CSX transports signal employees to the job site in company vehicles driven by other members of the crew. These drivers typically spend two to three hours per day driving, and the rest of their time working on railroad signal equipment. They also move their vehicles between job sites, which usually takes less than four hours. 

Petitioners reported that “[d]uring 1999, members of CSX's signal construction gangs operated approximately 133 vehicles prior to June 1 and approximately 177 vehicles after June 1, at an average annual rate of 200 days per vehicle or more than 30,000 vehicle days. During that period of time there were no fatalities related to operation of CMVs by members of signal construction gangs. There were no instances of personal injury and only 24 instances of property damage related to operation of CMVs by members of signal construction gangs. Eleven of those instances involved CSX vehicles being struck by outside parties. Others involved such things as collisions with deer. Thus, there is minimal risk in authorizing a modest increase in the work week for this small group of CSX drivers. Any such risk that may exist is more than offset by a very substantial off-duty period between each work week.” 

The BRS and CSX offered additional arguments in support of an exemption. The entire application is available in the docket. 

On December 15, 2000, the Association of American Railroads (AAR) filed with the FMCSA a “petition * * * in support of the joint petition filed September 12, 2000, by the Brotherhood of Railroad Signalmen and CSX Transportation, Inc.” Since the AAR document is not a separate request for exemption, but rather a body of arguments and data in support of the previous petition, the FMCSA will treat it as a comment. It is also available in the docket. 

#### Exemption Procedure 

                    Drivers for motor carriers that do not operate every day of the week are prohibited from driving after being on duty 60 hours in any 7-day period (§ 395.3(b)(1)). Drivers for motor carriers that operate every day of the week may not drive after being on duty 70 hours in any 8-day period (§ 395.3(b)(2)). The BRS and CSX are applying for a 2-year                           ( print page 28019)                        exemption from both of these requirements under 49 CFR Part 381, subpart C (§§ 381.300 through 381.330).                 

Section 381.310 (c) and (d) require applicants to submit a written statement that: 

1. Describes the reason the exemption is needed, including the time period during which it is needed; 

2. Identifies the regulation from which the applicant would like to be exempted; 

3. Provides an estimate of the total number of drivers and CMVs that would be operated under the terms and conditions of the exemption; 

4. Assesses the safety impacts the exemption may have; 

5. Explains how the applicant would ensure that it could achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation; and 

6. Describes the impacts (e.g., inability to test innovative safety management control systems, etc.) the applicant could experience if the exemption is not granted by the FMCSA. 

7. The application must include a copy of all research reports, technical papers, and other publications and documents the applicant references. 

An exemption is limited to two years from its approval date, but it may be renewed upon application to the FMCSA. This document and the material in the docket constitute all of the relevant information known to the agency. 

## Request for Comments 

In accordance with 49 CFR Part 381, the FMCSA is requesting public comment on the exemption application from the BRS and CSX. 

We will consider all comments received before the close of business on the comment closing date of this notice. We will file in the public docket comments received after the comment closing date and will consider them to the extent practicable, but the FMCSA may grant or deny the BRS and CSX exemption at any time after the close of the comment period. 

Authority:49 U.S.C. 31136 and 31315; and 49 CFR 1.73. 

Issued on: May 14, 2001. 

Brian M. McLaughlin, 

Acting Deputy Administrator. 

[FR Doc. 01-12618 Filed 5-18-01; 8:45 am] 

BILLING CODE 4910-EX-P