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

Larry W. Minor
Federal Motor Carrier Safety Administration
7 September 2017

[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Notices]
[Pages 42415-42417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18985]


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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 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 from the 
National Asphalt Pavement Association, (Inc.) (NAPA) requesting 
exemptions from two requirements of the hours-of-service (HOS) 
regulations for drivers of certain commercial motor vehicles (CMVs) 
operated by NAPA members, the 30-minute rest break provision and 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 would 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 would 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.

[[Page 42416]]

FMCSA requests public comment on NAPA's application for exemptions.

DATES: Comments must be received on or before October 10, 2017.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2017-0197 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. Tom Yager, Chief, FMCSA Driver and Carrier 
Operations Division; 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-2017-0197), 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-2017-0197'' 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

    NAPA seeks exemptions for all drivers of member companies 
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 to drivers 
who return to their normal work-reporting location within 12 hours [49 
CFR 395.1(e)(1)(ii)(A)].
    The first exemption from the HOS rest break provision, if granted, 
would 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. 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 vicous 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.
    The second exemption, if granted, would allow these same 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

[[Page 42417]]

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 all of the normal hours-of-service 
regulations, including the 30-minute break rule, who operates within 
a 100 air-mile radius of his/her normal work reporting location 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 made into permanent law 
[129 Stat. 1312, 1537].
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    NAPA requests 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 states 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.

    Issued on: August 30, 2017.
 Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2017-18985 Filed 9-6-17; 8:45 am]
 BILLING CODE 4910-EX-P