Hours of Service of Drivers: Application for Exemption; American Trucking Associations, Inc. |
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Topics: American Trucking Association
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
August 21, 2015
[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Notices]
[Pages 50912-50914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20686]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2015-0012]
Hours of Service of Drivers: Application for Exemption; American
Trucking Associations, Inc.
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; grant of application for
exemption.
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SUMMARY: FMCSA announces its decision to grant motor carriers
transporting security-sensitive hazardous materials (HM) requiring a
security plan an exemption from the Federal hours-of-service (HOS)
regulations that prohibit commercial motor vehicle (CMV) drivers from
driving a CMV if more than 8 consecutive hours have passed since the
driver's last off-duty or sleeper-berth period of 30 minutes or more.
American Trucking Associations, Inc. (ATA) requested the exemption on
behalf of all motor carriers that transport certain HM shipments
requiring security plans under regulations of the Pipeline and
Hazardous Materials Safety Administration (PHMSA). These plans normally
require a driver to attend such cargo while the CMV is stopped, which
is an on-duty activity under the HOS rules. Exempt drivers may now
count their on-duty attendance of HM cargo toward the required 30-
minute rest break requirement provided they perform no other on-duty
activity. This exemption parallels Sec. 395.1(q) of the Federal Motor
Carrier Safety Regulations (FMCSRs) that allows drivers who are
attending loads of certain explosives to count on-duty attendance time
toward their rest break so long as they engage in no other on-duty
activity.
DATES: The exemption is effective August 21, 2015 and expires on August
21, 2017.
FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, FMCSA Driver
and Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; 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 the FMCSRs. FMCSA must publish a notice of each
exemption request in the Federal Register (49 CFR 381.315(a)). The
Agency must provide
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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 the safety analyses and the public comments, 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 reason for the grant or denial, and, if granted,
the specific person or class of persons receiving the exemption, and
the regulatory provision or provisions from which exemption is granted.
The notice must also specify the effective period of the exemption (up
to 2 years), and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
Driver Attendance and Rest Breaks
Some shipments of property by CMV require that the vehicle be
attended at all times, such as shipments of explosives, weapons, or
radioactive materials. Constant attendance of the CMV may be explicitly
required by Federal or State law, or by the terms of the shipment
contract. For example, Section 397.5 of the FMCSRs requires drivers
transporting cargo classified as Division 1.1, 1.2, or 1.3 (explosive)
materials to attend the cargo at all times.
On December 27, 2011, FMCSA published a final rule amending the HOS
rules (76 FR 81134). The Agency added a new requirement that drivers
obtain a rest break: ``After June 30, 2013, driving is not permitted if
more than 8 hours have passed since the end of the driver's last off-
duty or sleeper-berth period of at least 30 minutes.'' (Sec.
395.3(a)(3)(ii)). Thus, drivers must expand a fueling stop or other
break to ensure that they go off duty (or into the sleeper berth) for
at least 30 consecutive minutes to satisfy this requirement. The
drivers must make an entry on their record of duty status (RODS)
showing the off-duty time.
By definition, on-duty time includes all time ``. . . [p]erforming
any other work in the capacity, employ, or service of, a motor
carrier'' (Sec. 395.2). A driver attending a CMV is on duty. During
the 2011 HOS rulemaking, motor carriers of hazardous materials
identified the conflict between HM attendance under Sec. 397.5 and the
rest-break requirement. As a result, FMCSA included Sec. 395.1(q) in
the 2011 HOS amendments. This section permits drivers who are attending
a motor vehicle transporting Division 1.1-1.3 explosives, but
performing no other work, to log a period of at least 30 consecutive
minutes of the time spent attending the CMV toward the break. The
driver annotates his log to indicate when the Sec. 395.1(q) break was
taken. The time is on-duty time, and counts against the driver's
maximum time on duty of 60 hours in 7 days (in some cases, 70 hours in
8 days).
Request for Exemption
Another Federal agency, PHMSA, requires motor carriers transporting
materials requiring placarding under 49 CFR part 172, subpart F, or
certain agents and toxins identified in Sec. 172.800(b)(13) that do
not require placarding, to develop special plans that account for
personnel, cargo, and en route security (49 CFR 172.800-804). Most
carriers include constant attendance on cargo in these security plans.
Because attendance on a CMV is considered on-duty time under the HOS
rules, drivers who are required by their carrier's HM security plan to
attend the CMV at all times cannot go off duty to satisfy the HOS rest-
break requirement.
ATA filed this exemption request on behalf of all motor carriers
whose drivers transport HM loads subject to the PHMSA security plan
requirement. ATA asserts that allowing these drivers to count up to 30
minutes of their attendance time as the required rest break if they
perform no other on-duty activities during the break would likely
achieve a level of safety equivalent to, or greater than, the level
that would be achieved by the current regulation. It asserts that
attendance is unlikely to contribute to driver fatigue and that
allowing these drivers to maintain their attendance of these loads
provides better security than if the driver has to leave the vehicle to
obtain 30 minutes off duty.
Public Comments
The FMCSA published a notice announcing and requesting public
comment on ATA's exemption request on May 1, 2015 (80 FR 25004).
Thirteen comments were submitted. Three individuals expressed concern
that the exemption was only of value to large trucking firms and that
the Agency should deny all applications for exemption. Advocates for
Highway and Auto Safety thought the exemption was overly broad,
permitting motor carriers engaged in qualifying HM shipments to use the
exemption for their shipments of non-HM cargo. Several trade groups and
two drivers favored the application as a necessary solution to a
regulatory dilemma.
FMCSA Response
FMCSA has evaluated ATA's application for exemption and the public
comments submitted. Opponents of the exemption did not address the
regulatory dilemma described in the application for exemption and
echoed by the comments of drivers and trade organizations supporting
the exemption. The Agency finds the arguments in favor of the exemption
persuasive. FMCSA believes it has designed terms and conditions for
this exemption sufficient to relieve this dilemma while preventing its
abuse. Motor carriers may only use this exemption when their drivers
are actually transporting HM that requires placarding or includes a
select agent or toxin identified in Sec. 172.800(b)(13), and for which
a security plan has been filed under Sec. Sec. 172.800-804. If a
driver is not transporting qualifying HM materials, he or she is not
entitled to substitute attendance for the required off-duty break.
Drivers operating under this exemption may count up to 30 minutes of
their on-duty attendance time toward a required rest break, if they
perform no other on-duty activities during the rest-break period.
It should be noted that there is no motive for a driver or carrier
to claim this exemption when not entitled to it. A driver who is not
required to constantly attend his or her vehicle must take the minimum
30-minute rest break as off-duty time, which does not count against the
7 or 8-day limit of 60 or 70 hours on-duty. A driver claiming this
exemption unnecessarily would be required to take the same rest breaks,
but would be on-duty and the time would count against the 60 or 70-hour
limit.
FMCSA Decision
In consideration of the above, FMCSA has determined that it is
appropriate to provide a two-year exemption from the 30-minute break
requirement for carriers whose drivers transport HM loads requiring
placarding under 49 CFR part 172, subpart F, or select agents and
toxins identified in Sec. 172.800(b)(13) that do not require
placarding, and who have filed security plans requiring constant
attendance of HM in accordance with Sec. Sec. 172.800-804. Drivers
must annotate their RODS to show the on-duty time claimed as a rest
break to satisfy a security plan requiring attendance of HM loads.
Under these terms and conditions described below, the application
for exemption is likely to achieve a level of
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safety that is equivalent to, or greater than, the level that would be
achieved absent such exemption. Motor carriers utilizing the exemption
will be required to report any accidents, as defined in 49 CFR 390.5,
to FMCSA. The exemption is eligible for renewal at the end of the two-
year period.
Terms and Conditions of the Exemption
Extent of the Exemption
This exemption is limited to drivers transporting HM loads
requiring placarding under 49 CFR part 172, subpart F, or select agents
and toxins identified in Sec. 172.800(b)(13) that do not require
placarding, and who have filed security plans requiring constant
attendance of HM in accordance with Sec. Sec. 172.800-804. This
exemption is limited to motor carriers that have a ``satisfactory''
safety rating or are ``unrated''; motor carriers with ``conditional''
or ``unsatisfactory'' safety ratings are prohibited from utilizing this
exemption. Drivers must have a copy of the exemption document in their
possession while operating under the terms of the exemption and must
present it to law enforcement officials upon request.
Accident Reporting
Motor carriers must notify FMCSA by email addressed to
MCPSD@DOT.GOV with 5 business days of any accident (as defined in 49
CFR 390.5) that occurs while its driver is operating under the terms of
this exemption. The notification must include:
a. Identifier of the Exemption: ``HM''
b. Name of operating carrier and USDOT number,
c. Date of the accident,
d. City or town, and State, in which the accident occurred, or
closest to the accident scene,
e. Driver's name and license number,
f. Name of co-driver, if any, and license number
g. Vehicle number and state license number,
h. Number of individuals suffering physical injury,
i. Number of fatalities,
j. The police-reported cause of the accident,
k. Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations, and
l. The total driving time and total on-duty time prior to the
accident.
Safety Oversight of Carriers Operating Under the Exemption
FMCSA expects each motor carrier operating under the terms and
conditions of this exemption to maintain its safety record. However,
should safety deteriorate, FMCSA will, consistent with the statutory
requirements of 49 U.S.C. 31315, take all steps necessary to protect
the public interest. Authorization of the exemption is discretionary,
and FMCSA will immediately revoke the exemption of any motor carrier or
driver for failure to comply with the terms and conditions of the
exemption.
Preemption
During the period the exemption is in effect, no State may enforce
any law or regulation that conflicts with or is inconsistent with this
exemption with respect to a person or entity operating under the
exemption [49 U.S.C. 31315(d)].
Issued on: August 6, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-20686 Filed 8-20-15; 8:45 am]
BILLING CODE 4910-EX-P