Hours of Service of Drivers; Parts and Accessories: ArcelorMittal Indiana Harbor, LLC, Application for Exemptions

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
23 September 2016

[Federal Register Volume 81, Number 185 (Friday, September 23, 2016)]
[Rules and Regulations]
[Pages 65574-65576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22963]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 393 and 395

[Docket No. FMCSA-2016-0050]


Hours of Service of Drivers; Parts and Accessories: ArcelorMittal 
Indiana Harbor, LLC, Application for Exemptions

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

ACTION: Notice of final disposition; grant of application for 
exemptions.

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SUMMARY: FMCSA announces its decision to grant ArcelorMittal Indiana 
Harbor, LLC (ArcelorMittal) exemptions from the hours of service (HOS) 
and parts and accessories rules. One exemption will allow 
ArcelorMittal's employee-drivers with commercial driver's licenses 
(CDLs) who transport steel coils between their production and shipping 
locations on public roads to work up to 16 hours per day and return to 
work with less than the mandatory 10 consecutive hours off duty. The 
other exemption will allow ArcelorMittal to use coil carriers that do 
not meet the ``heavy hauler trailer'' definition, height of rear side 
marker lights restrictions, tire loading restrictions, and the coil 
securement requirements.

DATES: These exemptions are effective from September 23, 2016 through 
September 23, 2021.

FOR FURTHER INFORMATION CONTACT: Mr. Tom Yager, Chief, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: (614) 942-6477. Email: MCPSD@dot.gov. If 
you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2016-0050'' in the ``Keyword'' box and click 
``Search.'' Next, click ``Open Docket Folder'' button and choose the 
document listed to review. If you do not have access to the Internet, 
you may view the docket online by visiting the Docket Management 
Facility in Room W12-140 on the ground floor of the DOT West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    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. 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

[[Page 65575]]

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 of the exemption (up to 5 
years), and explain its terms and conditions. The exemption may be 
renewed (49 CFR 381.300(b)).
    Section 5206(a)(3) of the ``Fixing America's Surface Transportation 
Act,'' (FAST Act) [Pub. L. 114-94, 129 Stat. 1312, 1537, Dec. 4, 2015], 
amended 49 U.S.C. 31315(b) by adding a new paragraph (2) which permits 
exemptions for no longer than 5 years from their dates of inception, 
instead of the previous 2 years. This statutory provision was codified 
in 49 CFR 381.300, effective July 22, 2016 (81 FR 47714).

III. Request for Exemptions

    ArcelorMittal (USDOT 1098829) operates a steel plant in East 
Chicago, Indiana, its principal place of business. Several public 
roadways run through the plant area. Steel coils produced in one 
portion of the plant must be transported over two short segments of 
public highway to another section of the plant for further processing 
or shipment to customers. Both points where the vehicles cross are 
controlled intersections, having either traffic lights or a combination 
of traffic lights and signs. The first public road the CMVs cross is 
Riley Road. The crossing is controlled by a 4-way traffic signal. The 
distance traveled is 80 feet. The average number of crossings at this 
intersection is 24 per day. The second crossing is at Dickey Road and 
129th Street. The distance traveled here is .2 miles. The trucks cross 
129th Street 24 times per day.
    The trailers are specially designed with cradles to hold steel 
coils in place. The trailers have a bed height and width of 68 and 114 
inches, respectively, and a maximum height of 14 feet.
    Unloaded, these tractor-trailer combinations have a gross weight of 
77,000 pounds. When fully loaded their gross weight is 263,171 pounds. 
The trailers have off-road tires to distribute this weight and avoid 
damaging roads, both inside and outside the plant. The tractors' 
maximum speed is 30-35 mph, but only 15 mph when moving a fully loaded 
trailer. These vehicles have many of the same features of a typical 
tractor and trailer, but do not meet all of the parts and accessories 
requirements in 49 CFR part 393.
    All employee-drivers are required to hold CDLs and adhere to the 
regulations that apply to CMV drivers. When employee-drivers move these 
vehicles, they are fully marked as an ``oversize load'' and have flags 
on the front of the tractor. Driving these vehicles amounts to 10 
percent of the employee-drivers' total work day. ArcelorMittal contends 
that these employee-drivers do not work more than 16 hours per day and 
advises that a 16-hour work day is the exception, not the rule.
    According to ArcelorMittal, the current hours-of-service (HOS) 
regulations create problems as employee-drivers typically work an 8-
hour shift plus overtime while employees in the production and shipping 
areas work 12-hour shifts. Employee-drivers must go home under the 
current arrangement, leaving a 4-hour gap between production and the 
driver's schedule, creating a possible shortage of coils for shipping 
or processing. ArcelorMittal asserts that the limited number of 
employees who drive the CMVs make it difficult to schedule moves. 
ArcelorMittal anticipates that only 3 of the 24 crossings at each noted 
intersection would occur after the 14th hour on-duty.
    ArcelorMittal requested a complete exemption from 49 CFR part 395 
for its ``internal logistics'' drivers to enable them to follow the 
same schedule as the employees in the production and shipping areas. 
The applicant could then minimize the chances of possible shortages of 
coils for shipping or processing. ArcelorMittal advised that it would 
ensure that all employee-drivers would not work more than 16 hours per 
shift, would receive 8 hours off duty between shifts, and would not be 
allowed to drive more than 10 percent of their total work day.
    As previously noted, the vehicles used to transport steel coils 
have many of the same features as a typical tractor and trailer, but do 
not meet all of the requirements for parts and accessories in 49 CFR 
part 393. ArcelorMittal therefore requested exemptions for its coil-
carrier trailers from the heavy hauler trailer definition in Sec.  
393.5; the required height of rear side marker lights in Sec.  393.11 
Table 1--Footnote 4; the tire loading restrictions in Sec.  393.75(f); 
and the coil securement requirements in Sec.  393.120.
    According to ArcelorMittal, its equipment was designed for in-
facility use and very limited road use. Public roadways are crossed 
only when necessary, and oversize-overweight permits are obtained from 
local authorities when required. The applicant advises that it has 
never had an issue with its equipment or drivers at the crossings 
mentioned above. The coils are well-secured in the trailers due to the 
design of the cradles. The time needed to secure the coils in 
compliance with part 393 would be longer than the transit time from one 
part of the plant to another.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    ArcelorMittal asserted that it has taken additional precautions to 
use public roadways for the shortest possible distances and only at 
controlled intersections. The applicant ensures that all lights are 
properly working on both the tractor and trailer. It also flags and 
marks the vehicles as ``oversize'' loads. Trailers have conspicuity 
tape down the entire side to make them more visible to other traffic. 
The applicant believes that its additional precautions ensure a level 
of safety that is equivalent to or exceeds the level of safety achieved 
by following the regulations.
    ArcelorMittal acknowledged in its application that these ``internal 
logistics'' drivers would remain subject to all of the other applicable 
Federal regulations. This includes qualification of drivers, controlled 
substance and alcohol testing and inspection, and maintenance and 
repair of vehicles.
    Included in ArcelorMittal's application are illustrations of the 
plant's location, public roads crossed, and pictures of the tractors 
and trailers used to transport the steel coils. A copy of 
ArcelorMittal's application for the exemptions is available for review 
in the docket for this notice.

V. Public Comments

    On March 22, 2016, FMCSA published notice of this application and 
requested public comment (81 FR 15217). Four comments were submitted.
    Mr. Keith Case wrote, ``There are other options to handle this 
situation that do not include having a special exemption for one 
company. The company can hire additional drivers/workers to do this.'' 
Ms. Ingrid Harris commented, ``I do not think that it's ok to give any 
company waivers to have drivers work longer hours. At the end of the 
day the driver still has to drive home and is tired. This will just 
cause more issues.'' Mr. Scott Olson stated, ``I do not support any 
exemptions for anybody for any reason. If we make a rule, everybody 
needs to abide by it. If we don't like the rule, get rid of it.''

[[Page 65576]]

    The Advocates for Highway and Auto Safety stated that 
``ArcelorMittal's request for an exemption from the HOS regulations 
should be denied as granting such an exemption would result in a 
substantial reduction in the level of safety currently provided by the 
regulations. In addition, there is practical and common sense 
alternative readily available to the company other than the exemption. 
Finally, while Advocates does not oppose ArcelorMittal's request for an 
exemption for its vehicles from certain sections of 49 CFR part 393, 
FMCSA must be explicit that such an exemption is strictly limited in 
its scope to those vehicles and roadways described in the 
application.''

VI. FMCSA Response and Decision

    Prior to publishing the Federal Register notice announcing the 
receipt of ArcelorMittal's exemptions request, FMCSA ensured that the 
motor carrier possessed an active USDOT registration, minimum required 
levels of insurance, and was not subject to any ``imminent hazard'' or 
other out-of-service orders. The Agency conducted a comprehensive 
investigation of the safety performance history of the motor carrier 
during the review process. As part of this process, FMCSA reviewed its 
Motor Carrier Management Information System safety records, including 
inspection and accident reports submitted to FMCSA by State agencies.
    The FMCSA has evaluated ArcelorMittal's application for exemptions 
and the public comments. The Agency believes that ArcelorMittal's 
overall safety performance, as well as a number of other factors 
discussed below, will enable it to achieve a level of safety that is 
equivalent to, or greater than the level of safety achieved without the 
exemptions (49 CFR 381.305(a)).
    These exemptions are being granted under extremely narrow 
conditions. One exemption is restricted to ArcelorMittal's employee-
drivers to enable them to work up to 16 consecutive hours in a duty 
period and return to work with a minimum of at least 8 hours off duty 
when necessary. This is somewhat comparable to current HOS regulations 
that allow certain ``short-haul'' drivers a 16-hour driving ``window'' 
once a week (49 CFR 395.1(o)) and other non-CDL short-haul drivers two 
16-hour duty periods per week (49 CFR 395.1(e)(2)), provided specified 
conditions are met. However, current regulations require a minimum of 
10 hours off duty between duty periods.
    Section 381.305(a) specifies that motor carriers ``. . . may apply 
for an exemption if one or more Federal Motor Carrier Safety 
Regulations prevents you from implementing more efficient or effective 
operations that would maintain a level of safety equivalent to, or 
greater than, the level achieved without the exemption.''
    The other exemption is restricted to ArcelorMittal's coil carriers 
as described in its application. The exemption enables ArcelorMittal's 
CMVs that do not meet the parts and accessories requirements in part 
393 to use two short segments of public highway to move coils from one 
part of the plant to another for shipment to its customers. The CMVs 
operated by ArcelorMittal's drivers will be exposed to other traffic 
for very brief periods. The CMVs cross Riley Road, where they travel 80 
feet. The length of the crossing at Dickey Road and 129th Street is .2 
mile. The CMVs cross both points 24 times per day.
Terms of the Exemptions

Period of the Exemption

    The exemptions from the requirements of 49 CFR part 395 and certain 
sections in 49 CFR part 393 (Sec. Sec.  393.5; 393.11 Table 1--Footnote 
4; 393.75(f); and 393.120) are granted for the period from September 
23, 2016through September 23, 2021, for drivers employed by 
ArcelorMittal and certain CMVs used by ArcelorMittal to transport 
coils.

Extent of the Exemptions

    The exemption from the requirements of 49 CFR part 395 is 
restricted to ArcelorMittal's internal logistics drivers. Drivers 
utilizing the exemption may work up to 16 consecutive hours in a duty 
period and return to work with a minimum of at least 8 hours off duty 
when necessary.
    The exemption from certain sections in 49 CFR part 393 (Sec. Sec.  
393.5; 393.11 Table 1--Footnote 4; 393.75(f); and 393.120) is 
restricted to ArcelorMittal's CMVs that transport coils. The CMVs must 
only cross on Riley Road, where they travel 80 feet and Dickey Road and 
129th Street where they travel .2 miles to move coils from one part of 
the plant to another for shipment to its customers. All drivers must 
have CDLs and drivers and vehicles must comply with all other 
applicable provisions of the Federal Motor Carrier Safety Regulations. 
ArcelorMittal must maintain any oversize-overweight permits required by 
local authorities.

Preemption

    In accordance with 49 U.S.C. 31315(d), during the period these 
exemptions are in effect, no State shall enforce any law or regulation 
that conflicts with or is inconsistent with these exemptions with 
respect to a firm or person operating under these exemptions.

Notification to FMCSA

    ArcelorMittal must notify FMCSA within 5 business days of any 
accident (as defined in 49 CFR 390.5), involving any of the motor 
carrier's CMVs operating under the terms of these exemptions. The 
notification must be by email to MCPSD@DOT.GOV, and include the 
following information:
a. Exemption Identifier: ``ArcelorMittal''
b. Name and USDOT number of the motor carrier,
c. Date of the accident,
d. City or town, and State, in which the accident occurred, or which is 
closest to the scene of the accident,
e. Driver's name and driver's license number,
f. Vehicle number and State license number,
g. Number of individuals suffering physical injury,
h. Number of fatalities,
i. The police-reported cause of the accident,
j. Whether the driver was cited for violation of any traffic laws, or 
motor carrier safety regulations, and
k. The total driving time and the total on-duty time of the CMV driver 
at the time of the accident.

Termination

    The FMCSA does not believe the motor carrier, the drivers, and CMVs 
covered by the exemptions will experience any deterioration of their 
safety record. However, should this occur, FMCSA will take all steps 
necessary to protect the public interest, including revocation of the 
exemptions. The FMCSA will immediately revoke the exemptions for 
failure to comply with its terms and conditions.

    Issued on: September 15, 2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-22963 Filed 9-22-16; 8:45 am]
BILLING CODE 4910-EX-P