Hours of Service of Drivers: Application for Exemption; Towing and Recovery Association of America, Inc. (TRAA)

Topics:  Towing and Recovery Association of America

Larry W. Minor
Federal Motor Carrier Safety Administration
10 January 2018

[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)]
[Proposed Rules]
[Pages 1220-1222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00247]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2017-0372]


Hours of Service of Drivers: Application for Exemption; Towing 
and Recovery Association of America, Inc. (TRAA)

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 the Towing and Recovery Association of 
America, Inc. (TRAA) has requested an exemption from the requirement 
that a motor carrier install and require each of its drivers to use an 
electronic logging device (ELD) to record the driver's

[[Page 1221]]

hours-of-service (HOS) TRAA has requested a 5-year exemption for all 
operators of commercial motor vehicles (CMVs) owned or leased to 
providers of motor vehicle towing, recovery and roadside repair 
services while providing such services. TRAA states that towing 
industry operations represent a unique and vital segment of the overall 
transportation industry in America that warrants exemption from the ELD 
regulations, and the failure to grant this exemption will cause 
confusion and create an overly complex regulatory framework which will 
pose an undue burden on towers and their customers without any 
measurable benefit to public safety. TRAA believes that granting this 
exemption will have a positive impact on highway safety by assuring 
that towing operators can still respond to service requests in the most 
expeditious and effective manner possible. FMCSA requests public 
comment on TRAA's application for exemption.

DATES: Comments must be received on or before February 9, 2018.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2017-0372 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     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., 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
     Each submission must include the Agency name and the 
docket number for this notice. Note that DOT posts all comments 
received without change to www.regulations.gov, including any personal 
information included in a comment. Please see the Privacy Act heading 
below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, 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 and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2017-0372), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comments online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2017-0372'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party, and then submit. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope. FMCSA will consider all comments and material received 
during the comment period and may grant or not grant this application 
based on your comments.

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 (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)).

III. Request for Exemption

    TRAA is the national towing association representing more than 
35,000 towing companies in all 50 states. The entire industry is 
comprised of approximately 210,000 commercial motor vehicles (CMVs) and 
350,000 commercial drivers operated by the over 35,000 companies. 
According to TRAA, the vast majority of towing industry companies are 
small, family-owned operations serving rural America.
    Tow truck operators often work close to their terminals, usually 
operating within the scope of the short-haul exemption [49 CFR Section 
395.1(e)(1)] thereby documenting hours-of-service (HOS) compliance with 
time card records kept at their dispatch office. Occasionally, and 
often without prior knowledge, these tow operators will be called upon 
to provide services that will require them to complete a record of duty 
status (RODS).
    TRAA states that few towing companies will be able to utilize the 
exemption to the ELD mandate found in 49 CFR Section 395.8(iii)(a)(1) 
as it relates to completion of a RODS eight or fewer days in any 30-day 
period. Typically, only a few drivers at any one towing company are 
currently required

[[Page 1222]]

to complete a RODS and usually most of the drivers lack the required 
class of license to substitute for these select few drivers, meaning 
the workload that requires operation outside of the local exemption 
cannot be equalized or shared among the entire driver pool at any one 
company as could be done at a traditional motor carrier. Thus, one or 
two drivers will often be designated to conduct these longer, 
interstate trips that require RODS.
    TRAA asserts that the addition of the ELD rule creates confusing 
and burdensome scenarios by overlapping and conflicting regulations 
placed on towing industry operators. The nature of the towing industry 
has drivers switching between intrastate and interstate regulations 
multiple times throughout the day, sometimes as often as between each 
call. Additionally, drivers employed in the towing industry often 
switch between commercial and non-commercial motor vehicles throughout 
their shift. TRAA believes that to mandate an electronic means of 
documenting HOS for only a small part of each towers daily operations 
creates an undue burden.
    Moreover, an exemption from the ELD mandate helps promote the same 
safety goals inherent in the already existing exemption in 49 CFR 
Section 390.23(a)(3). This provision exempts towers who are responding 
to calls from law enforcement from the requirement to keep RODS. The 
same need to respond quickly to a highway emergency that requires the 
exemption in Section 390.23(a)(3) exists when a service call comes from 
a stranded motorist rather than law enforcement. The drivers of these 
vehicles sitting roadside are at the same risk as those addressed by 
law enforcement. The current ELD proposal will impact the ability of 
tow companies to respond to these owners' requests and still be 
compliant with the regulatory requirements.
    TRAA states that, as a practical matter, towers will be required to 
install and maintain ELDs in all of their equipment, even seldom used 
spare equipment. It is common practice in the towing industry to 
maintain spare equipment in a state of readiness, as do other first 
responder agencies to insure complete readiness for any incident. Due 
to the complex nature of this and the overlapping scenarios where an 
ELD may be required, most towers will install, pay service for and 
utilize costly ELDs even when not required to do so by the regulations 
to avoid harsh penalties such as out of service orders and expensive 
fines. TRAA firmly believes it is appropriate to exempt towers from the 
ELD regulation, and without an exemption from the ELD regulation 
towers' responsiveness to their customers and the motoring public would 
be severely reduced, and costs for towing services would increase 
commeasurably. This will place an unfair burden on the motoring public 
at large that has not been accounted for in the cost benefit analysis 
for this regulation.
    According to TRAA, towing industry operations represent a unique 
and vital segment of the overall transportation industry in America 
that warrants exemption from the ELD regulation. The failure to grant 
this exemption will cause confusion and create an overly complex 
regulatory framework which will pose an undue burden on towers and 
their customers without any measurable benefit to public safety.

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

    According to TRAA, granting this exemption will have no negative 
impact on public safety or compliance with the HOS regulations by the 
towing industry companies given that most operate under the short haul 
or local provisions found in 49 CFR 395.1(e)(1) for drivers of vehicles 
requiring a commercial driver's license (CDL), and 49 CFR 395.1(e)(2) 
for drivers of CMVs not requiring a CDL. Instead, the exception will 
apply only to the small percentage of tow drivers who operate outside 
these exceptions on longer, interstate trips. The towing industry will 
maintain a level of safety equal to, or greater than would be achieved 
while using ELDs by fully complying with the current HOS regulations 
and not having undue interruption to their current scheduling and 
staffing methods that have served the industry well in the past.
    A copy of TRAA's application for exemption is available for review 
in the docket for this notice.

    Issued on: December 29, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-00247 Filed 1-9-18; 8:45 am]
BILLING CODE 4910-EX-P