Hours of Service of Drivers: National Mobile Shower and Catering Association; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
27 November 2018

[Federal Register Volume 83, Number 228 (Tuesday, November 27, 2018)]
[Notices]
[Pages 60943-60945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25821]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0331]


Hours of Service of Drivers: National Mobile Shower and Catering 
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 an application for 
exemption from the National Mobile Shower and Catering Association 
(NMSCA) from various provisions of the Federal hours-of-service (HOS) 
rules for commercial motor vehicle (CMV) drivers. The NMSCA requests an 
exemption to allow their member companies operating under a ``Resource 
Order'' to: (1) Extend the 14-hour duty period to no more than 16 
hours; (2) not include ``waiting time'' while not performing duties in 
the calculation of the 16-hour duty period; (3) not comply with the 
minimum 30-minute rest break provision; (4) extend the maximum 60 hours 
on duty in any 7-day period to 80 hours on duty in any 7-day period; 
(5) extend the 11 hours of driving time to 12 hours; and, (6) extend 
the ``8 days in 30'' exception in the electronic logging device (ELD) 
rule to ``12 days in 30.'' The requested exemption is made on behalf of 
those drivers employed by NMSCA member companies engaged in the 
transportation of equipment that provides food and water services to 
Federally-contracted forest firefighters and similar emergency workers 
who establish temporary base camps and have immediate need of food and 
water services near fire scenes. FMCSA requests public comment on the 
NMSCA application for exemption.

DATES: Comments must be received on or before December 27, 2018.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2018-0331 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. ET, 
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: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; 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.

[[Page 60944]]

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2018-0331), 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-2018-0331'' 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 and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

III. Request for Exemption

    The National Mobile Shower and Catering Association (NMSCA) 
requests an exemption from certain hours-of-service (HOS) regulations 
for their member companies' drivers who are responding under a 
``Resource Order.'' A Resource Order is a task order issued by a 
Federal Agency directing firefighters and supporting personnel to 
respond to forest fires and similar emergencies. They specifically 
request that while operating under the exemption their drivers and 
carriers: (1) May extend the 14-hour duty period to no more than 16 
hours; (2) need not include ``waiting time'' while performing duties in 
the calculation of the 16-hour period; (3) need not comply with the 
minimum 30-minute rest break provision; (4) may extend the maximum 60 
hours on duty in any 7 days to 80 hours on duty in any 7 days; (5) may 
extend the 11 hours of driving time to 12 hours; and, (6) may extend 
the ``8 days in 30'' provision for exemption from use of an electronic 
logging device to ``12 days in 30.''
    The NMSCA seeks the exemption for a group of approximately 30 
member companies who are strategically positioned in the Western 
states. Wildfires occur frequently during certain months of the year, 
especially in Western states. To fight these fires, the National Forest 
Service and similar agencies call upon Federally-contracted private 
fire-fighting companies, who are exempt from the majority of the 
Federal Motor Carrier Safety Regulations (FMCSRs) [49 CFR 390.3T(f)(5)] 
when they respond. Upon arriving near the fire scene, the firefighters 
establish a base camp where they will remain for a period ranging from 
a few days to a month, and will quickly require food and drinking 
water. To meet that need, the responsible government agency will issue 
a Resource Order to the nearest mobile shower and catering company that 
is under contract.
    Most of the government contract work for these services is 
seasonal. According to NMSCA, the specialized equipment utilized by 
their member companies travels comparatively few miles per year, 
generally not exceeding 5,000 miles, and almost exclusively in response 
to government contract orders. As there are a limited number of private 
contractors who have the capability and equipment to fulfill the 
government contract requirements, the territories covered by each 
contractor can be quite large. Wildfires and natural disasters are 
unpredictable and make it difficult to have assets prepositioned for an 
incident. When one contractor is called out to an incident, the nearest 
contractor must cover both their regional area and the one no longer 
covered by a contractor on an incident. At busy times of the year 
resources are stretched and travel distances are often increased, and 
therefore NMSCA contractors are often called on to travel hundreds of 
miles from their facilities at a moment's notice.
    According to NMSCA, their member companies' equipment does not 
qualify for the 49 CFR 390.3T(f)(5) exception for emergency equipment, 
so, while firefighters respond as emergency equipment and set up their 
base camps, they have little food or water until NMSCA members' 
equipment arrives at a later time. The exemption is needed both to 
expedite response to the scene of an incident and to allow HOS 
flexibility for the crews while operating for days at the base camps. 
While there, the crew members often need to drive CMVs to obtain 
supplies and, in particular, to obtain tanker trucks of needed water. 
Although the crew members have substantial rest time and have sleeping 
quarters on-site, the current HOS regulations may at times hinder their 
mission support.
    The NMSCA requests that the exemption be issued under the following 
terms and conditions: (1) It would be in effect for periods of time 
when NMSCA members are operating under a ``Resource Order'' or other 
comparable order issued by a Federal government agency; (2) drivers 
operating under the exemption must be employed by the NMSCA companies; 
and (3) drivers must provide proof that they are operating for one of 
the designated NMSCA member companies, and must produce a copy of the 
relevant ``Resource Order'', upon request of a law enforcement officer. 
The NMSCA also indicated in their application, that when operating 
under the exemption, their drivers and carriers will comply with all 
other provisions of the FMCSRs--other than those for which they 
requested an exemption. Furthermore, the NMSCA member companies will 
mandate that drivers complete the appropriate modules of the North 
American Fatigue Management Program and will emphasize to all personnel 
that the CMVs may not be operated when the driver feels fatigued, 
regardless of the mission assignments, per 49 CFR 392.3.

[[Page 60945]]

    By way of background, earlier in 2018, the NMSCA had requested a 
limited waiver from certain HOS regulations which was a nearly 
identical request to their recent application for exemption summarized 
in today's Federal Register notice. The waiver requested was for 
drivers employed by NMSCA member companies that are under contract to 
and have been issued a ``Resource Order'' by a Federal government 
agency to provide food and water services to contracted private fire-
fighting companies. The 90-day waiver was approved by the FMCSA, and 
recently expired on October 24, 2018. The Agency had determined that 
granting NMSCA this waiver was in the public interest, and that the 
waiver was likely to achieve a level of safety equivalent to the level 
of safety that would be obtained in the absence of the waiver. The 
NMSCA added in today's exemption request that the 90-day waiver that 
had received from the Agency was very helpful due to the severity of 
wildfires in the Western states which allowed them to complete the 
mission of providing food, water and showers to the Nation's first 
responders without any disruption to public safety.
    A copy of the NMSCA application for exemption is available for 
review in the docket for this notice.

    Issued on: November 20, 2018.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-25821 Filed 11-26-18; 8:45 am]
 BILLING CODE 4910-EX-P