Hours of Service of Drivers: Payne and Dolan, Inc.; Zenith Tech, Inc.; and Northeast Asphalt, Inc.; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
August 6, 2014

[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Notices]
[Pages 45865-45866]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18646]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA-2014-0034]


Hours of Service of Drivers: Payne and Dolan, Inc.; Zenith Tech, 
Inc.; and Northeast Asphalt, Inc.; Application for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: FMCSA announces that it has received an application from Payne 
and Dolan, Inc.; Zenith Tech, Inc.; and Northeast Asphalt, Inc. for an 
exemption from the 30-minute rest break provision of the Agency's 
hours-of-service (HOS) regulations for commercial motor vehicle (CMV) 
drivers. The requested exemption would apply to CMV drivers of these 
three companies involved in the transport, placement and movement of 
materials and equipment needed in the day-to-day operation of road, 
bridge and parking lot construction and maintenance. These companies 
believe that compliance with the 30-minute rest break rule is extremely 
difficult due to several variables associated with the nature of their 
operations and work scheduling (e.g., work zone time, delivery and 
repair schedules). FMCSA requests public comment on these companies 
application for exemption.

DATES: Comments must be received on or before September 5, 2014.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2014-0034 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the Public 
Participation heading below. Note that all comments received will be 
posted without change to www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov, and follow the online 
instructions for accessing the dockets, or go to the street address 
listed above.
    Privacy Act: Anyone can search the electronic form of comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review a 
Privacy Act notice regarding our public dockets in the January 17, 
2008, issue of the Federal Register (73 FR 3316).
    Public Participation: The Federal eRulemaking Portal is available 
24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Federal eRulemaking Portal Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard, or print the acknowledgement page that 
appears after submitting comments online. Comments received after the 
comment closing date will be included in the docket, and we will 
consider late comments to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and

[[Page 45866]]

Carrier Operations Division; Office of Bus and Truck Standards and 
Operations; Telephone: 202-366-4325. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations (FMCSRs). 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 decision of 
the Agency 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 and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

Request for Exemption

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its hours-of-service (HOS) regulations for property-carrying 
CMV drivers. The final rule adopted several changes to the HOS rules, 
including a new provision requiring drivers to take a rest break during 
the work day under certain circumstances. Drivers may now drive a CMV 
only if 8 hours or less have passed since the end of the driver's last 
off-duty or sleeper-berth period of at least 30 minutes. FMCSA did not 
specify when drivers must take the 30-minute break, but the rule 
requires that they wait no longer than 8 hours after the last off-duty 
or sleeper-berth period of that length or longer to take the break. 
Drivers who already take shorter breaks during the work day could 
comply with the rule by taking one of the shorter breaks and extending 
it to 30 minutes. This requirement took effect on July 1, 2013.
    Payne and Dolan, Inc. Zenith Tech, Inc., and Northeast Asphalt, 
Inc. seek an exemption from the 30-minute rest break provision in 49 
CFR 395.3(a)(3)(ii), which would apply to these companies and their CMV 
drivers operating pavement repair and maintenance trucks. These 
companies currently operate roughly 1,000 trucks, driven by 
approximately 1,300 drivers in interstate commerce. According to these 
companies, compliance with the new 30-minute break rule is problematic, 
burdensome, and adversely impacts the effectiveness of the companies' 
delivery of material and equipment. Approximately 95 percent of their 
drivers spend less than 15 percent of their on-duty time actually 
driving a CMV--roughly only 2 hours per day--with the other 85 percent 
of the time spent on the job site performing their associated duties. 
Drivers pick up their equipment at a designated storage site and 
deliver it to the work site and unload on a daily basis, and the next 
time they are required to operate the CMV is to load and return the 
equipment to the storage yard at the end of the duty shift. Most 
Federal, State and municipal jobs give the contractor a finite amount 
of time to have the roads closed and perform the needed repairs--
usually from 9:00 p.m. to 5:00 a.m. According to these three companies, 
with the requirement for these drivers to take the mandatory 30-minute 
break, the work zone time is shortened by one half hour, thus extending 
the length of time required to complete the scheduled repairs. They 
agree that they need the flexibility to deliver equipment and materials 
when the job and circumstances dictate the need, as these road repairs 
can't always be scheduled for 9:00 a.m. to 5:00 p.m. They further add 
that drivers in their industry segment are not subject to the fatigue-
inducing work conditions that other CMV operators are.
    Payne and Dolan, Inc. Zenith Tech, Inc. and Northeast Asphalt, Inc. 
state that materials delivered to an active job site have a short life 
span--the temperature of asphalt needs to be maintained--and should be 
considered a perishable product. Once the ingredients of the material 
have been mixed (or batched) there is a short ``window'' before the 
temperature drops to a point that it is no longer usable. An incident 
such as this costs thousands of dollars to rectify and could 
potentially cause a violation of a delivery contract. Once a delivery 
is started it must be completed, and all steps possible must be taken 
to ensure that a load of material reaches its destination on time and 
without disruption. An uninterrupted delivery is also necessary in case 
a driver is made to wait a long period of time on a construction site 
before unloading--a common ``real world'' scenario according to the 
applicants for exemption. Adding a mandatory 30-minute break to this 
process risks the integrity of the industry's delivered product.
    These companies believe the requested exemption would achieve the 
same level of safety as the 30-minute rest break because their drivers 
routinely receive numerous 10-, 15-, and 20-minute breaks throughout 
the work day, and it is not uncommon for their drivers to take breaks 
of up to 2 hours resulting from weather or unforeseen construction 
delays. They further claim that these frequent breaks work to keep the 
drivers awake and alert throughout the course of their duty period. One 
additional 30-minute break--as is now required by the FMCSRs--would not 
add an additional level of safety for their operation. The applicants 
state that the construction industry ensures drivers are as safe as 
possible and continue to use practices that emphasize safety. This 
attention to safety is achieved through mandating rigorous training for 
all truck drivers, daily, weekly, quarterly and annual safety checks, 
and self-imposed random safety audits. A copy of their exemption 
application is available for review in the docket for this notice.

Request for Comments

    In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA 
requests public comment on this application for an exemption from one 
provision of the driver's HOS regulations in 49 CFR part 395. The 
Agency will consider all comments received by close of business on 
September 5, 2014. Comments will be available for examination in the 
docket at the location listed under the ADDRESSES section of this 
notice. The Agency will consider to the extent practicable comments 
received in the public docket after the closing date of the comment 
period.

    Issued on: July 29, 2014.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2014-18646 Filed 8-5-14; 8:45 am]
BILLING CODE 4910-EX-P