[Federal Register Volume 66, Number 98 (Monday, May 21, 2001)]
[Notices]
[Pages 28018-28019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12618]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-01-9332]


Exemption Application From the Brotherhood of Railroad Signalmen 
and CSX Transportation, Inc.

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 (Sec. 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 (Sec. 395.3(b)(2)). The BRS and CSX are applying for a 2-
year

[[Page 28019]]

exemption from both of these requirements under 49 CFR Part 381, 
subpart C (Secs. 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