Hours of Service of Drivers: HEPACO, LLC; Heritage Environmental Services, LLC; Lewis Environmental, Inc.; and Moran Environmental Recovery, LLC; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
9 August 2018

[Federal Register Volume 83, Number 154 (Thursday, August 9, 2018)]
[Notices]
[Pages 39498-39500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17062]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0246]


Hours of Service of Drivers: HEPACO, LLC; Heritage Environmental 
Services, LLC; Lewis Environmental, Inc.; and Moran Environmental 
Recovery, LLC; Application for Exemption

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 it has received a joint application from 
HEPACO, LLC; Heritage Environmental Services, LLC; Lewis Environmental, 
Inc.; and Moran Environmental Recovery, LLC, for exemption from the 
hours-of-service (HOS) regulations for drivers engaged in providing 
direct assistance in environmental emergencies or potential 
environmental emergencies. The applicants request a

[[Page 39499]]

five-year exemption from the ``14-hour rule'' for their drivers engaged 
in responding to environmental emergencies. FMCSA requests public 
comment on this application for exemption.

DATES: Comments must be received on or before September 10, 2018.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2018-0246 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. 
E.T., 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, please contact Mr. Richard Clemente, FMCSA Driver and Carrier 
Operations Division; Telephone: (202) 366-2722; 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-2018-0246), 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 comment online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2018-0246'' 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 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 (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 Exemption

    The following companies are the applicants for this exemption: 
HEPACO, LLC; Heritage Environmental Services, LLC; Lewis Environmental, 
Inc. and Moran Environmental Recovery, LLC. The applicants' total 
number of commercial driver's license (CDL) holders is approximately 
758, and their total number of commercial motor vehicles (CMVs) is 
approximately 840. All of these applicants are members of the Spill 
Control Association of America (SCAA). In responding to emergency 
incidents, SCAA members work alongside a mix of both private industry 
and public agencies, and their work often has a direct impact on 
protection of both public safety and the environment. SCAA advises that 
the applicants are contractually required to provide direct assistance 
to responsible parties who are experiencing environmental emergencies 
or potential environmental emergencies. The applicants define an 
environmental emergency as a sudden threat to the public health or the 
well-being of the environment, arising from the release or potential 
release of oil, radioactive materials, or hazardous chemicals into the 
air, land, or water. The applicants' employees are hybrid driver/
operator/technicians, so the total on-duty time can be a challenge, 
especially after hours. Other job duties include industrial 
maintenance, spill response, sampling, lab packing and waste 
management. With the current driver shortage, obtaining drivers with 
these additional skills and experience is becoming more problematic.
    The applicants are requesting relief from 49 CFR 395.3(a)(2), 
commonly known as the ``14-hour rule.'' The applicants state that the 
HOS rules have always been an issue for emergency response companies. 
The national shortage of drivers, and in their case, drivers with 
specialized safety and environmental training, has been worsening over 
the last few years, making this a critical issue. They are requesting 
this exemption to allow their companies to respond to a release or

[[Page 39500]]

threat of a release of oil and other hazardous materials. The 
applicants are requesting relief from this regulation with the 
following conditions:
     On-duty period would not exceed 4.5 additional hours for 
initial response;
     Any driver who exceeds the 14-hour period would in no case 
exceed a total of 8 hours drive time;
     Drivers would not exceed 70 hours on duty in 8 days;
     Drivers would be required to take 10 hours off duty, 
subsequent to the duty day; and
     All activities would be subject to the electronic logging 
device (ELD) rule.
    According to the applicants, there would be a significant challenge 
in responding to environmental emergencies if the exemption was not 
granted. The initial response hours are the most critical in an 
environmental emergency and the ability to quickly respond is vital. 
They believe that a tightly managed exemption actually provides a risk 
averse situation by discouraging potentially unmanaged risk taking. If 
the exemption is not granted, there could be a disruption of nation/
regional commerce activities, including power restoration activities 
and protection of interstate commerce and infrastructure. Granting the 
exemption would mitigate public transportation disruptions, much as tow 
trucks do when moving wrecked or disabled vehicles under 49 CFR 
390.23(a)(ii)(3).

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

    The applicants believe that the proposed relief, and the parameters 
in which their drivers operate, would continue to provide the highest 
level of safety and compliance, while prudently responding to incidents 
that threaten public safety and the environment. Safety is always the 
primary objective and guiding principle of all of the applicant's 
business activities as demonstrated by the following:
     All applicants have specific policies on ``fatigue and 
journey management.''
     Health and safety is paramount for all operations dealing 
with environmental emergencies and would remain the case when utilizing 
the exemption.
     Drivers who utilize this exemption may come back into 
compliance and restart the computation of maximum driving time only 
after 10 hours off duty which starts at the end of their extended hours 
period.
     The exemption would not exempt drivers/carriers from the 
requirements relating to the CDL, drug/alcohol testing, hazardous 
materials, size and weight, or State/Federal registration and tax 
requirements.
     The applicants understand the concepts of risk management 
and mitigation.
     The applicants maintain a multitude of safety, security, 
annual medical surveillance, and training plans, as well as 
comprehensive drug and alcohol programs compliant with multiple DOT 
departments.
     Robust preventative maintenance programs specific to the 
equipment are in place with each of the requesting applicants.
    The applicants believe an equivalent level of safety will be 
achieved if their drivers/companies are exempt from the requirements as 
described in this notice. The requested exemption is for 5 years. A 
copy of the application for exemption is available for review in the 
docket for this notice.

    Issued on: August 2, 2018.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-17062 Filed 8-8-18; 8:45 am]
 BILLING CODE 4910-EX-P