Hours of Service of Drivers: American Bakers Association and International Dairy Foods Association; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
18 December 2018

[Federal Register Volume 83, Number 242 (Tuesday, December 18, 2018)]
[Notices]
[Pages 64927-64929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27345]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0312]


Hours of Service of Drivers: American Bakers Association and 
International Dairy Foods Association; 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 
the American Bakers Association (ABA) and the International Dairy Foods 
Association (IDFA) requesting an exemption from the hours-of-service 
(HOS) regulations for drivers engaged in the delivery of baked goods 
and milk products during periods and in geographic areas reasonably 
anticipated to be impacted by an impending natural disaster or 
emergency situation. ABA/IDFA requests a 5-year exemption from 49 CFR 
part 395 for their drivers engaged in the delivery of essential food 
staples to extend their driving hours to help communities prepare for 
anticipated disaster conditions, such as extreme weather events, 
natural disasters, and other emergencies. The applicants state that the 
exemption would achieve a level of safety equivalent to, or greater 
than, the level that would be achieved absent the proposed exemption. 
FMCSA requests public comment on ABA/IDFA's application for exemption.

DATES: Comments must be received on or before January 17, 2019.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2018-0312 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, Transportation Specialist, 
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-2018-0312), 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-2018-0312'' 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).

[[Page 64928]]

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 American Bakers Association (ABA) represents the wholesale 
baking industry. ABA advocates on behalf of more than 1,000 baking 
facilities and company suppliers. Their members produce bread, rolls, 
crackers, bagels, sweet goods, tortillas, and many other baked 
products. ABA advises that the average number of drivers and commercial 
motor vehicles (CMVs) per company is approximately 1,050, ranging from 
70 to 5,500.
    The International Dairy Foods Association (IDFA) represents the 
dairy manufacturing and marketing industry. Their members range from 
large multinational organizations to single-plant companies, and 
together they represent more than 85 percent of the milk, cultured 
products, cheese, ice cream and frozen desserts produced and marketed 
in the U.S. and sold throughout the world. IDFA states that, based on 
statistics for the fluid milk industry, the sector has approximately 
15,500 drivers and 18,000 trucks (both tractor-trailers and smaller 
delivery trucks). The industry believes that approximately 450,000,000 
miles are driven each year in milk and dairy product deliveries.
    ABA/IDFA requests an exemption from the provisions of 49 CFR 395.3, 
``Maximum driving time for property-carrying vehicles'' for their 
drivers delivering ``essential food staples,'' particularly baked goods 
and milk products, in advance of anticipated natural disasters or other 
emergency conditions. The requested exemption would only cover the 
period of time in advance of, during, and shortly after the emergency 
condition, where the HOS rules can be an unintended barrier to 
efficient disaster preparations and operations.
    The applicants proposed that the exemption apply during periods of 
disaster preparation in anticipation of disaster conditions, to be 
defined based on the existing definition of ``Emergency'' in 49 CFR 
390.5, but modified to encompass conditions that are reasonably 
anticipated. The exemption would apply from the time that a natural 
disaster or emergency is reasonably anticipated until a reasonable time 
after the disaster has resolved. ABA/IDFA states that, although some 
element of reasonable judgement is necessarily inherent in this 
proposed approach, a definition that is tied to an official Declaration 
of Emergency would defeat the public purpose of a disaster preparation 
exemption by forcing suppliers to wait until an official declaration of 
emergency by the President, State governors, or FMCSA, which would 
often leave insufficient lead time for disaster preparation. 
Accordingly, the requested exemption should allow suppliers to use 
reasonable judgment based on early warning announcements, such as 
hazardous weather announcements.
    ABA/IDFA advises that disaster preparation is not limited to 
hurricanes, as serious storms such as ice storms, heavy rains, or 
strong frontal patterns that spawn tornadoes can also wreak levels of 
havoc in certain regions throughout the country. The need of consumers 
for essential food staples significantly increases in advance of and 
during emergency conditions, and emergency preparations are often 
exacerbated by a rush on retail establishments prior to announced 
emergency events.
    The increased demand for essential food staples prior to threatened 
natural disasters and other emergencies requires changes to delivery 
logistics, schedules, and HOS for at least a 72-hour period prior to an 
anticipated disaster event, as it is critical to move a large volume of 
supplies into the disaster-affected area, and supplies often must be 
sourced from regional distribution centers, other manufacturing 
facilities that are able to increase production, or in the case of 
widespread disasters, distribution systems in other regions. Disaster 
preparations significantly and abruptly increase the need for driving 
time, delivery routes and drivers, due to heavy traffic on roads, 
challenging driving conditions, use of alternative or evacuation 
routes, and disruptions such as downed trees and traffic accidents. 
Furthermore, emergency conditions may create situations in which rest 
breaks on normal schedules are infeasible or dangerous due to road or 
parking conditions.
    According to ABA/IDFA, the best way to prepare for anticipated 
disasters or emergencies is to increase delivery runs ahead of the 
impending situation. Because facilities in a disaster area that produce 
fresh bread and milk may be without power, flooded, or otherwise 
impacted by the disaster, it is often necessary to source replacement 
deliveries from more distant production facilities in other regions. 
Suppliers often have the ability to increase production well ahead of 
emergency situations, and will begin advancing product into the market 
72 hours or more ahead of the anticipated stock depletion. Experience 
has shown the applicants that the HOS restrictions often become a 
limiting factor at the expense of effective emergency preparations. 
Perhaps the most critical factor, due to a national shortage of 
licensed commercial drivers, there are simply no additional drivers or 
contract carriers available to supplement normal driver ranks due to 
the spiking demand ahead of and during disasters. Accordingly, the only 
way to prepare for disasters is to increase routes and driving times of 
regular drivers in the suppliers' distribution network.
    In summary, this exemption woulld allow suppliers of essential food 
staples to adapt delivery schedules to allow communities to prepare for 
anticipated disaster conditions, such as extreme weather events, 
natural disasters, and other emergencies that disrupt delivery 
schedules and require increased driving hours. The exemption would help 
avoid shortages of essential food staples at retail stores and food 
establishments that could otherwise result if deliveries are restricted 
by the generally applicable HOS rules in 49 CFR 395.3. ABA/IDFA states 
that without an exemption to the HOS provisions, retail stores and food 
establishments are more likely to run out of product, leaving consumers 
lacking essential food staples during emergency conditions.

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

    By providing the flexibility for bakery and milk product delivery 
drivers to adjust HOS during disaster conditions, suppliers will be 
able to supply essential food staples with greater efficiency and 
safety by allowing experienced drivers and employers to modify delivery 
routes and schedules to accommodate the safe delivery of emergency 
supplies.
    As detailed in their application, ABA/IDFA believes the ability to 
utilize the judgment of experienced, well-trained and qualified drivers 
during weather events will promote safety. The nature of retail 
unloading, and familiar routes, reduces concerns regarding driver 
fatigue and safety. Many retail stores are open only during set hours, 
which provides natural limits to the use of the exemption.The ability 
to take breaks and end the day according to the

[[Page 64929]]

conditions of the road and traffic during the weather event will allow 
drivers to take their time and use caution as appropriate under the 
conditions at that time, rather than feeling pressure to comply with 
the HOS rules that are most appropriate for normal driving conditions. 
ABA/IDFA further adds that the exemption perhaps most importantly will 
allow families to stock supplies at their regular neighborhood stores 
and avoid the need for residents to drive unnecessarily looking for 
emergency supplies of essential food staples in advance of or during a 
disaster situation.
    Regarding an equivalent level of safety, ABA/IDFA details the 
following in their application regarding HOS compliance following the 
exemption from 49 CFR 395.3: A weather ``trigger'' would start a 72-
hour HOS exemption period leading up to an anticipated storm, which 
creates two possible scenarios following the exemption period: (1) 
FMCSA grants a wide-scale HOS exemption period for the impacted area or 
a State government declares a state of emergency and suspends the HOS 
requirements, or (2) the storms impact on the region is too 
insignificant to warrant an HOS exemption on either the State or 
Federal level. In the case of the first scenario, the HOS requirements 
for that period are already suspended and concerns of equivalent safety 
will have already been considered in existing regulations In the second 
scenario, the applicants propose an equivalent level of safety as 
follows: (1) For the 11 hour driving time limit, for every 2 hours a 
driver surpasses this limit, an additional hour will be added to the 
original 10-hour rest limit to be completed between runs following the 
exemption period; and (2) for the 60/70 hour limits, should a driver 
surpass these normal limits during the exemption period, two additional 
hours will be added to the original 34-hour off duty period required 
following the exemption period. In order to verify compliance, the 
hours would continue to be documented through the use of electronic 
logging devices pursuant to the current rules in 49 CFR part 395, 
subpart B. The requested exemption is for 5 years. A copy of ABA/IDFA's 
application for exemption is available for review in the docket for 
this notice.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-27345 Filed 12-17-18; 8:45 am]
 BILLING CODE 4910-EX-P