Hours of Service of Drivers: National Asphalt Pavement Association, Inc.; Application for Exemptions |
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Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
26 January 2018
[Federal Register Volume 83, Number 18 (Friday, January 26, 2018)]
[Notices]
[Pages 3864-3866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01400]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2017-0197]
Hours of Service of Drivers: National Asphalt Pavement
Association, Inc.; 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 the National Asphalt
Pavement Association, (Inc.) (NAPA) request for exemptions from two
requirements of the hours-of-service (HOS) regulations for all drivers
of certain commercial motor vehicles (CMVs): (1) The 30-minute rest
break provision and (2) the requirement that short-haul drivers
utilizing the record of duty status (RODS) exception return to their
work-reporting location within 12 hours of coming on duty. The first
exemption will enable drivers engaged in the transportation of asphalt
and related materials to use 30 minutes or more of on-duty ``waiting
time'' to satisfy the requirement for the 30-minute rest break,
provided they do not perform any other work during the break. The
second exemption will allow these drivers to use the short-haul
exception but return to their work-reporting location within 14 hours
instead of the usual 12 hours.
DATES: This exemption is applicable January 26, 2018 and expires
January 25, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas 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-2017-0197, in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document 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(b) to grant
exemptions from certain 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
[[Page 3865]]
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 (up to 5 years) and explain the
terms and conditions of the exemption. The exemption may be renewed (49
CFR 381.300(b)).
III. Request for Exemptions
NAPA seeks two exemptions for all drivers transporting asphalt and
related materials and equipment from the HOS 30-minute rest break
provision in 49 CFR 395.3(a)(3)(ii) and the restriction of the RODS
exception for short-haul operations available to drivers who return to
their normal work-reporting location within 12 hours [49 CFR
395.1(e)(1)(ii)(A)].
NAPA requested the first exemption from the HOS rest break
provision to allow drivers engaged in the transportation of asphalt and
related materials to use 30 minutes or more of on-duty ``waiting time''
to satisfy the requirement for the 30-minute rest break, provided they
do not perform any other work during the break. According to NAPA,
asphalt is a highly perishable product. It is loaded into the delivery
truck at 280-300 degrees Fahrenheit and begins to cool immediately. If
the asphalt is not delivered and placed on the paving site within two
hours, the product hardens and is no longer viscous enough to be
useable. Drivers of asphalt delivery vehicles typically drive
approximately one-third of their workday; the rest of their day is
spent waiting to load or unload their vehicles and in other non-driving
duties such as paperwork and cleaning their trucks after each load.
NAPA requested the second exemption to allow some drivers to use
the short-haul RODS exception but with a 14-hour duty period instead of
12 hours. NAPA advises that while some short-haul drivers will be able
to take advantange of the exception from the 30-minute break, other
drivers are often required to be on duty more than 12 hours in a day
and therefore are not eligible to use the short-haul exception.
NAPA mentioned that drivers of ready-mixed concrete delivery
vehicles were granted an exemption from the minimum 30-minute rest
break provision.\1\ NAPA states that ``the same reasoning supporting
the exemptions from the 30-minute break time rule and allowing a 14-
hour daily on duty-period for drivers of ready-mixed concrete vehicles
applies to drivers engaged in the transportation of asphalt and related
materials and equipment. Both are perishable products that are not
useable if they are not dropped and spread within a brief delivery
window. Because of this short delivery window, the routes from the
production facility to the delivery site for both products are limited
to less than 40 miles, and the time spent actually driving a CMV is
typically only a few hours per day. Thus in both cases, the drivers do
not face the same fatigue factors as drivers of long-haul trucks, and
therefore do not pose the same risk of a fatigue-related accident as
long-haul drivers.''
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\1\ More precisely, section 5521 of the Fixing America's Surface
Transportation (FAST) Act, exempts a ``driver of a ready mixed
concrete delivery vehicle'' from the reporting, recordkeeping, or
documentation requirements under the hours-of-service regulations if
the driver operates within a 100 air-mile radius of his/her normal
work reporting location, returns to the work reporting location and
is released within 14 hours, and meets certain other requirements
[Pub. L. 114-94, 129 Stat. 1312, 1559, Dec. 4, 2015, codified at 49
U.S.C. 31502(f)]. In addition, FMCSA granted drivers of ready mixed
concrete trucks an exemption from the 30-minute break requirement
[80 FR 17819, April 2, 2015], which section 5206(b)(1)(A) of the
FAST Act required to be made permanent [129 Stat. 1312, 1537].
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NAPA requested that the operation of certain vehicles and equipment
(Water Truck, Tack (tar) Distributor, Equipment Hauler and Pick-Sweeper
(Street Sweeper)) be included in the definition of ``transportation of
asphalt and related materials and equipment'' for purposes of these
exemptions.
NAPA stated in its application that drivers would remain subject to
the HOS regulations and would receive sufficient rest due to the nature
of their operations that limit driving to an average of six to seven
hours per day or less during the paving season. NAPA believes that
granting these exemptions would achieve the same level of safety
provided by the two HOS rules. The requested exemptions are for 5 years
with renewals. A copy of NAPA's application for exemptions is available
for review in the docket for this notice.
V. Public Comments
On September 7, 2017, FMCSA published notice of this application
and requested public comment (82 FR 42415). The Agency received 70
comments representing individuals and various transportation interests
in response to the proposed exemptions. The majority of the respondents
in support of the requested exemptions were companies, associations,
and individuals affiliated with the asphalt industry.
For example, Nu Rock Asphalt Coatings supported the exemptions and
stated, ``[i]t seems it would be advantageous for those involved in
asphalt work to have HOS regulations in line with those found in the
ready-mix concrete business. We feel this could be done without
compromising safety.''
Wiregrass Construction wrote, ``[s]ince the ready-mix industry
parallels the asphalt industry in terms of operational limitations with
highly perishable, nonhazardous product, it seems perfectly logical
that the asphalt industry should be subject to the same exemption from
the 30 minute break requirement and 12 hour limit on Short Haul
Exception.''
NAPA was among the many respondents commenting about its
application and wrote to specifically clarify the record and provide
additional comment concerning its application. NAPA explained that
their petition for relief from the specific HOS requirements were not
restricted to NAPA members and also provided additional rationale to
support the need for both exemptions.
Four respondents made comments about the regulations but took no
position on the application. One individual, Mr. Richard Elliott,
wrote, ``I do not oppose them using wait time in line as the 30 minute
rest period but I do oppose extending any duty hours or exceptions.''
An anonymous respondent and the Advocates for Highway and Auto
Safety (Advocates) opposed the requested exemptions. Advocates provided
several reasons for not granting the exemptions. According to
Advocates, ``the Application seeks to exempt an untold number of motor
cariers and drivers from safety regulations and provides no
justification for the exemptions requested.''
VI. FMCSA Decision
FMCSA has evaluated NAPA's application and the public comments and
decided to grant the exemptions. The Agency believes that all drivers
transporting asphalt and related materials and equipment will likely
achieve a level of safety that is equivalent to or greater than, the
level of safety achieved without the exemption [49 CFR 381.305(a)].
The first exemption from the HOS 30-minute break provision will
allow drivers engaged in the transportation of asphalt and related
materials to use 30 minutes or more of on-duty ``waiting
[[Page 3866]]
time'' to satisfy the requirement for the 30-minute rest break,
provided they do not perform any other work during the break. The
second exemption will allow drivers to use the short-haul RODS
exception but with a 14-hour duty period instead of 12 hours.
VII. Terms and Conditions for the Exemption
Drivers must have a copy of this notice or equivalent
signed FMCSA exemption document in their possession while operating
under the terms of the exemptions. The exemption document must be
presented to law enforcement officials upon request.
Drivers must return to the work reporting location and be
released from work within 14 consecutive hours.
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 this exemption with respect
to a firm or person operating under the exemptions.
Notification to FMCSA
Exempt motor carriers must notify FMCSA within 5 business days of
any accident (as defined in 49 CFR 390.5), involving any of its CMVs
operating under the terms of the exemptions. The notification must
include the following information:
(a) Name of the exemption: ``NAPA''
(b) Name of the operating motor carrier,
(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) 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,
motor carrier safety regulations, and
(k) The driver's total driving time and total on-duty time period
prior to the accident.
Reports filed under this provision shall be emailed to
MCPSD@DOT.GOV.
Termination
FMCSA does not believe the drivers covered by this exemption will
experience any deterioration of their safety record.
Interested parties or organizations possessing information that
would otherwise show that any or all of these motor carriers are not
achieving the requisite statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any information submitted and,
if safety is being compromised or if the continuation of the exemptions
are inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will
immediately take steps to revoke the exemptions of the company or
companies and drivers in question.
Issued on: January 19, 2018.
Cathy F. Gautreaux,
Deputy Administrator.
[FR Doc. 2018-01400 Filed 1-25-18; 8:45 am]
BILLING CODE 4910-EX-P