ASSOCIATION OF AMERICAN RAILROADS July 26, 2020 Mr. James A. Mullen Acting Administrator Federal Motor Carrier Safety Administration U.S. Department of Transportation 1200 New Jersey Avenue, S.E. Washington, D.C. 20590-0001 RE: Exemption Request from 49 C.F.R. § 395.3 - Railroad Maintenance-of-Way Drivers Responding to Unplanned Events Dear Acting Administrator Mullen: The Association of American Railroads (AAR) and American Short Line and Regional Railroad Association (ASLRRA) (the Associations), on behalf of themselves and their member railroads, request that the Federal Motor Carrier Safety Administration (FMCSA) grant an exemption under 49 C.F.R. § 381.300 et seq. from the FMCSA hours of service (HOS) operation restrictions at 49 C.F.R. § 395.3(a)-(b).1 The railroads request that this exemption be granted for five years as prescribed in § 381.300(b). This request covers approximately 20,000 individual drivers and 11,000 commercial motor vehicles (CMVs). As background, the Associations submitted a similar exemption request from § 395.3 requirements on October 11, 2018, at Docket No. FMCSA-2018-0367, requesting relief from FMCSA HOS restrictions for railroad Maintenance-of-way (MOW) employees responding to unplanned events (Attachment 1). On February 21, 2020, the Associations withdrew that pending request (Attachment 2). This revised exemption request addresses the same topic as the Associations’ October 2018 petition, but requests a narrower exemption which parallels that recently granted by FMCSA to other railroad industry groups at Docket No. FMCSA-2019- 1 AAR is a trade association whose membership includes freight railroads that operate 83% of the line-haul mileage, employ 95% of the workers, and account for 97% of the freight revenues of all railroads in the United States; and passenger railroads that operate intercity passenger trains and provide commuter rail service. ASLRRA is a non-profit trade association representing the interests of approximately 600 short line and regional railroad members and railroad supply company members in legislative and regulatory matters. Short lines operate 47,500 miles of track in 49 states, or approximately 29% of the national freight network, touching in origin or destination one out of every five cars moving on the national railroad system, serving customers who otherwise would be cut off from the national railroad network. Short lines provide 100% of freight transportation in five states, and more than 25% in thirty-six states, keeping small town and rural America connected to the U.S. economy and beyond. A listing of each member railroad of both Association’s subject to this request are attached as an accompanying Appendix. 1 0056.2 R.J. Corman Railroad Services, Cranemasters, Inc., and the National Railroad Construction and Maintenance Association, Inc. requested an exemption (Contractor Request) from § 395.3(a) and (b) on October 10, 2018, via a request similar to the Association’s 2018 request that suggested alternative conditions. FMCSA granted the Contractor Request on March 4, 2020 (Attachment 3).3 The railroads’ employees respond to unplanned events just like the railroad contractors’ employees do. Accordingly, the same relief is appropriate for railroad employees in order to respond to unplanned events in a timely manner. Providing the relief is in the public interest in ensuring that railroads clear blocked tracks and rights-of-way and restore service as quickly as possible. It would allow railroads to address without delay urgent situations that disrupt rail services. The railroads believe the conditions in the exemption granted based on the Contractor Request will also provide adequate relief for their employees when responding to unplanned events. BACKGROUND Thousands of railroad employees who operate CMVs are subject to the FMCSA hours of service ("HOS") regulations.4 These employees inspect, repair, and maintain railroad infrastructure such as the track and bridges that trains operate over. They carry necessary tools/equipment in their CMVs to locations on railroad tracks where such work needs to be performed. These CMV drivers respond to emergency events requiring immediate response and repair. When an emergency occurs, these drivers are needed to repair railroad structures that allow trains to transport critical materials and goods (e.g., chlorine for water treatment plants, coal and other energy products to power public utilities, and food and medical/consumer goods needed to sustain life). Their work can be time sensitive, at remote locations, occur on short notice at any time of the day. Although there are specific exceptions from FMCSA’s HOS regulations for railroad signal employees, all other railroad employees who operate CMVs are subject to FMCSA HOS regulations.5 FMCSA HOS prohibitions on driving after a 14-hour period, and 60 or 70 hours on duty in a 7- or 8-day week without the required off-duty period, inhibit railroads’ ability to respond expeditiously to these types of emergency situations.6 In comparison, utility service 2 85 Fed. Reg. 12,818 (March 4, 2020). 3 Id. See also Docket No. FMCSA 2019-0056; available online at www.regulations.gov. 4 49 C.F.R. Parts 390 and 395. 5 49 C.F.R. §§ 395.1(r) & 395.2. This exemption flows from 49 U.S.C. § 21104(e), which states “[s]ignal employees operating motor vehicles shall not be subject to any hours of service rules, duty hours or rest period rules promulgated by any Federal authority, including the Federal Motor Carrier Safety Administration, other than the Federal Railroad Administration.” 6 49 C.F.R. § 395.3(a)(2) requires a driver may not drive after a 14-consecutive hour period without first taking 10 hours off duty. While a railroad may appeal to a local official in the event of an emergency for relief from 2 vehicles are exempt from the FMCSA HOS restrictions.7 A utility service vehicle is defined as any CMV used to repair, maintain or operate any structures or any other physical facility necessary for the delivery of public utility services, including the furnishing of electric, gas, water, sanitary sewer, telephone, cell phone, and television cable or community antenna service.8 The work of railroad employees responding to an emergency situation is essentially same as the work of utility employees, and in the instance of certain emergencies, might be described as much more essential (e.g., as compared to a driver providing restoration of television cable or other services). Like utility drivers, affected railroad employees use vehicles as mobile supply facilities, transporting personnel, equipment and material needed for the driver to use at worksites within a region. Also, similarly, these drivers can have unpredictable work hours when needed to address operational emergencies. In most instances, these employees drive for a very limited percentage of their total time on-duty and often only drive relatively short distances. The driving is only ancillary to the work done by these employees to support railroad efforts to restore essential interstate commerce, as well as in the event of a grade crossing incident restoring necessary road and pedestrian access to the public. This work also allows for the restoration of passenger rail operations following an unplanned event. There is no meaningful distinction between railroad employees responding to an unplanned event and those who operate utility service vehicles. In some instances, railroads may work with local officials who have the authority to declare an emergency in the occurrence of certain unplanned events.9 Section 390.23 provides relief from certain FMCSA regulations for drivers operating CMVs to provide emergency relief. However, in the case of local and regional emergencies, this process is not well-defined nor are there any assurances a request made at off-hours will be reviewed in a timely manner. In practice, the process does not work. For example, many unplanned events occur in remote locations and it may not be clear who is authorized to declare an emergency. Further, a large number of unplanned events occur outside of normal business hours, including after midnight, making it difficult to obtain an emergency declaration in a timely manner. One of AAR's member railroads reports that they have an internal process that often involves coordination among multiple jurisdictions due to the nature of the interstate railroad system. Despite the railroad's best efforts, a lack of a response from a designated official outside of the normal workday can cause a five to seven-hour delay in the railroad efforts to resolve the unplanned event due to HOS limitations. This type of delay can have a crippling impact to the rail network, especially in congested areas of the country like the Northeast Corridor and Chicago. Exemption Request The Associations request that a railroad employee responding to an unplanned event that the regulations, this process is not well-defined nor are any assurances provided that a request made at off-hours would be reviewed in a timely manner. 7 49 C.F.R. § 395.1(n). 8 49 C.F.R. § 395.2. The utility vehicle must be engaged in an activity necessarily related to the ultimate delivery of such public utility services to consumers. 9 49 C.F.R. § 390.23. 3 affects interstate commerce or the safety of railway operations, including passenger rail operations, and that occurs outside or beyond the employee’s normal shift, be exempt from the provisions in 49 C.F.R. § 395.3(a) and (b). An “unplanned event” would include 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.