Hours of Service Exception for Railroad Signal Employees |
|---|
Topics: FMCSA
|
Anne S. Ferro (Federal Register)
May 5, 2011
[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25588-25590]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11018]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[Docket ID. FMCSA-2010-0032]
RIN 2126-AB36
Hours of Service Exception for Railroad Signal Employees
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends
its hours-of-service (HOS) regulations to adopt regulatory language
consistent with the statutory exemption for certain railroad signal
employees operating commercial motor vehicles (CMVs) in connection with
railroad signal work. This is in accordance with the Rail Safety
Improvement Act of 2008 (RSIA of 2008), which took effect July 16,
2009. This action will ensure that Federal, State and local motor
carrier enforcement officials are aware of the statutory exemption
applicable to signal employees and eliminate the potential for issuance
of improper citations.
DATES: This action is effective on May 5, 2011.
Docket: For access to the docket to read background documents
identified by docket number FMCSA-2010-0032 or RIN 2126-AB36 go to
Federal eRulemaking Portal: http://www.regulations.gov at any time, or
visit the U.S. Department of Transportation's Docket Management
Facility at West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m. ET.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and
Carrier Operations Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590, (202) 366-4325.
SUPPLEMENTARY INFORMATION:
I. Background/Overview
This exception to FMCSA's hours-of-service (HOS) regulations is
mandated by the RSIA of 2008. This law provides that ``signal
employees'' who operate motor vehicles and who are regulated under 49
U.S.C. 21101, et seq., are not subject to HOS rules promulgated by any
other Federal authority, including FMCSA. See 49 U.S.C. 21104(e). Thus,
FMCSA amends its regulations to state that FMCSA's HOS regulations do
not apply to a signal employee who is regulated under 49 U.S.C. 21101-
21109. This amendment will clarify the current exception applicable to
signal employees for industry and for Federal, State and local law
enforcement and eliminate the potential for issuance of improper
citations.
FMCSA is also amending the authority citation for 49 CFR part 395
to add appropriate statutory references and eliminate references that
are either erroneous or unnecessary.
II. Legal Basis for the Rulemaking
This final rule is based on FMCSA's authority to implement
statutory directives enacted by several provisions of the RSIA of 2008,
Public Law 110-432, 122 Stat. 4848, 49 U.S.C. 21101, et seq. Section
108 of the RSIA of 2008 substantively amends the law applicable to
employees engaged in signal work for
[[Page 25589]]
railroad operations, effective July 16, 2009. Section 108(a) amends the
definition of ``signal employee'' to eliminate the words ``employed by
a railroad carrier.'' See 49 U.S.C. 21101(4). As a result, employees of
railroad contractors and subcontractors who are engaged in installing,
repairing, or maintaining signal systems (the functions within the
definition of signal employee) will also be covered by the HOS laws
administered by the Federal Railroad Administration (FRA). Section
108(c) modifies the HOS restrictions applicable to covered employees.
See 49 U.S.C. 21104(a)-(d).
Finally, section 108(c) provides that the HOS, duty hours, and rest
periods of signal employees are governed exclusively by the HOS laws
administered by FRA. It also provides that signal employees operating
applicable motor vehicles are not subject to other HOS, duty hours, or
rest period rules besides the FRA's requirements. See 49 U.S.C.
21104(e).
The statutory provision may be incorporated in regulations adopted
by FMCSA under the authority of the Motor Carrier Act of 1935 (49
U.S.C. 31502(b)) and the Motor Carrier Safety Act of 1984 (49 U.S.C.
31136). FMCSA is authorized to implement these statutory provisions by
delegation from the Secretary of Transportation in 49 CFR part 1.73.
Congress gave the Agency no discretion with respect to
implementation of these RSIA of 2008 provisions. While the
Administrative Procedure Act (APA) ordinarily requires the issuance of
a notice of proposed rulemaking (NPRM) and opportunity for public
comment, the APA provides an exception when an ``agency for good cause
finds * * * that notice and public procedure * * * are impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B).
Because this rule is technical and simply conforms FMCSA rules with
current statutory provisions, the Agency deems notice and comment
procedures ``unnecessary'' under 5 U.S.C. 553(b)(B). The promulgation
of this final rule is a nondiscretionary ministerial act required by a
statute. It is also contrary to the public interest to delay
clarification of this requirement and FMCSA's lack of authority to
enforce regulations in light of the FRA's authority of this area. Thus,
the Agency finds that this rule may be adopted without issuing an NPRM
and receiving public comment.
Similarly, the Agency finds the normal 30-day delayed effective
date following publication of a rule does not apply. 5 U.S.C. 553(d).
The APA exempts from the delayed effective date requirement ``a
substantive rule which grants or recognizes an exemption or relieves a
restriction.'' 5 U.S.C. 553(d)(1). Pursuant to the RSIA of 2008,
persons covered by the statutory provision have not been subject to
FMCSA's HOS requirements since the enactment of the legislation. This
rule simply makes FMCSA rules consistent with the statute. Therefore, a
30-day delay in the effective date would serve no purpose as the Agency
amends its rule to eliminate confusion among enforcement officials. The
Agency further finds good cause for this rule to take effect upon
publication under 5 U.S.C. 553(d)(3) because, given that the rule
results in no substantive change in the law, there is no need for the
affected industry to prepare for its implementation.
Although the RSIA of 2008 uses the term ``exemption'' to cover
signal employees, in order to avoid confusion with the process that
FMCSA uses to grant time-limited exemptions under 49 CFR part 381,
today's final rule creates an ``exception.'' This exception, unlike an
exemption, is permanent in nature, subject to our legal authority.
III. RSIA of 2008 Provisions Implemented by the Final Rule
We implement section 108(c) of the RSIA of 2008 by adding paragraph
(r) to Sec. 395.1, exempting signal employees who operate CMVs, but
who are covered by laws applicable to railroad operations, from FMCSA
HOS regulations.
Executive Orders 13563 and 12866 (Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
FMCSA has determined that this action does not meet the criteria
for a ``significant regulatory action'' either as specified in
Executive Order (E.O.) 12866 as supplemented by E.O. 13563 issued by
the President on January 18, 2011 (76 FR 3821), or within the meaning
of the Department of Transportation regulatory policies and procedures
(44 FR 11034, Feb. 26, 1979). Therefore, this rule has not been
reviewed by the Office of Management and Budget (OMB). There is no
economic impact to this rule that would necessitate conducting a full
regulatory evaluation. The rule simply codifies the elimination of
FMCSA jurisdiction over railroad signal employees, pursuant to the RSIA
of 2008. The RSIA of 2008 section 108(c) delegates the jurisdiction
over the HOS, duty hours, and rest periods of signal employees
exclusively to the FRA. See 49 U.S.C. 21104(a)-(e).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121,
110 Stat. 857), FMCSA is not required to prepare a final regulatory
flexibility analysis under 5 U.S.C. 604(a) for this final rule because
the Agency has not issued an NPRM prior to this action. This final rule
also complies with the President's memorandum of January 18, 2011,
entitled Regulatory Flexibility, Small Business, and Job Creation (76
FR 3827). As discussed above, promulgation of this final rule is a
nondiscretionary ministerial act required by a statute and it creates a
regulatory exception.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. However, as noted above, this is a non-
discretionary action mandated by statute, and such actions do not
require preparation of a statement under 2 U.S.C. 1532. In addition,
FMCSA is not required to prepare a statement for this final rule
because the Agency has not issued an NPRM prior to this action. 2
U.S.C. 1532.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
action.
Paperwork Reduction Act
The rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Given FRA's
authority under the RSIA of 2008 to regulate the HOS for certain
carriers previously regulated by FMCSA under 49 CFR part 395, FMCSA
expects the population of affected entities subject to its HOS
paperwork burden may be reduced slightly. However, due to the total
number of entities covered, the impact to the burden from this change
is expected to be de minimis. Therefore, FMCSA has not modified its
burden estimate based on this final rule. FMCSA will consider this
impact during its next planned update to the associated Information
Collection Request.
National Environmental Policy Act
The Agency analyzed this final rule in accordance with all
statutory and regulatory policies under the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
[[Page 25590]]
determined under FMCSA environmental procedures Order 5610.1, published
March 1, 2004 (69 FR 9680), that the provision of this rule is
categorically excluded (CE) based on Appendix 2, section 6(b) of the
FMCSA order. This is a technical amendment needed to conform the
regulations to a statutory mandate. In addition to the NEPA
requirements to examine impacts on air quality, the Clean Air Act (CAA)
as amended (42 U.S.C. 7401 et seq.) also requires FMCSA to analyze the
potential impact of its actions on air quality and to ensure that FMCSA
actions conform to State and local air quality implementation plans.
The additional contributions to air emissions from this action are
expected to fall within the CAA de minimis standards and are not
expected to be subject to the Environmental Protection Agency's General
Conformity Rule (40 CFR parts 51 and 93).
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FMCSA has analyzed this action under E.O. 13045, Protection of
Children from Environmental Health Risks and Safety Risks. We
determined that this final rule does not pose an environmental risk to
health or safety that may disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This final rule does not effect a taking of private property or
otherwise have taking implications under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in E.O. 13132, Federalism Assessment, and it has
been determined that this rulemaking does not have a substantial direct
effect or sufficient federalism implications for States that would
limit the policymaking discretion of the States. Nothing in this
document directly preempts any State law or regulation. This final rule
does not impose additional costs or burdens on the States.
Executive Order 13211 (Energy Effects)
FMCSA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that Executive Order because it would not be
likely to have an adverse effect on the supply, distribution, or use of
energy.
List of Subjects in 49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Federal Motor
Carrier Safety Administration amends 49 CFR part 395 as follows:
PART 395--HOURS OF SERVICE OF DRIVERS
0
1. The authority citation for part 395 is revised to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432. 122
Stat. 4860-4866; and 49 CFR 1.73.
0
2. Amend Sec. 395.1 to revise paragraph (a)(1) and add paragraph (r)
to read as follows:
Sec. 395.1 Scope of the rules in this part.
(a) * * *
(1) The rules in this part apply to all motor carriers and drivers,
except as provided in paragraphs (b) through (r) of this section.
* * * * *
(r) Railroad signal employees. The provisions of this part shall
not apply to a signal employee, as defined in Sec. 395.2, who operates
a commercial motor vehicle, is engaged in installing, repairing, or
maintaining signal systems, is employed by a railroad carrier or a
contractor or subcontractor to a railroad carrier, while regulated by
the Federal Railroad Administration.
0
3. Amend Sec. 395.2 by adding the definition ``signal employee'' in
alphabetical order to read as follows:
Sec. 395.2 Definitions.
* * * * *
Signal employee, as defined in 49 U.S.C. 21101(4), means an
individual who is engaged in installing, repairing, or maintaining
signal systems.
* * * * *
Issued on: May 2, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-11018 Filed 5-4-11; 8:45 am]
BILLING CODE 4910-EX-P