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Hours of Service of Drivers: National Asphalt Pavement Association, Inc.; Application for Exemptions


American Government Trucking

Hours of Service of Drivers: National Asphalt Pavement Association, Inc.; Application for Exemptions

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].
---------------------------------------------------------------------------

    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

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