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

Jim Mullen
Federal Motor Carrier Safety Administration
21 November 2019

[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Notices]
[Pages 64398-64400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25337]


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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 final disposition; denial of application for 
exemption.

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SUMMARY: FMCSA announces its decision to deny the joint request from 
the American Bakers Association (ABA) and International Dairy Foods 
Association (IDFA) for an exemption from the Federal hours-of-service 
(HOS) rules for commercial motor vehicle (CMV) drivers. The requested 
exemption would have covered rivers engaged in the delivery of baked 
goods and milk products in anticipation of a natural disaster or 
emergency, such as extreme weather events, natural disasters, etc. 
FMCSA analyzed the application and public comments, and determined that 
drivers operating under the proposed exemption would not achieve a 
level of safety that is equivalent to, or greater than, the level that 
would be achieved absent such exemption.

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

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, FMCSA-2018-0312, in the ``Keyword'' box and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
E.T., Monday through Friday, except Federal holidays.

[[Page 64399]]

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 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 Agency's 
decision 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 an exemption. An 
exemption may be renewed (49 CFR 381.300(b)).

III. Request for Exemption

    The American Bakers Association (ABA) represents the wholesale 
baking industry; the International Dairy Foods Association (IDFA) 
represents the dairy manufacturing and marketing industry. ABA/IDFA 
seek 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 anticipation of natural disasters or other emergency 
conditions. The requested exemption would cover only the 72-hour period 
in advance of, during, and shortly after the emergency condition, when 
ABA/IDFA claim the hours-of-service (HOS) rules can be an unintended 
barrier to efficient disaster preparations and operations.
    The applicants indicated that disaster conditions would include the 
events listed in the definition of ``Emergency'' in 49 CFR 390.5 but be 
modified to encompass conditions that are expected but have not yet 
occurred. The exemption would apply 72-hours in advance of the time 
that a natural disaster or emergency is reasonably anticipated until a 
reasonable time after the disaster has ended. The applicants state 
that, although some element of reasonable judgment is necessarily 
inherent in this proposed approach, a definition that is tied to Sec.  
390.23 would defeat the purpose of the exemption by forcing suppliers 
to wait for the issuance of an official Declaration of Emergency by the 
President, State governors, or FMCSA, which would often leave 
insufficient lead time to avoid the depletion of the merchandise from 
the shelves. Accordingly, the requested exemption would allow suppliers 
to use reasonable judgment based on early warning announcements, such 
as hazardous weather announcements. Per ABA/IDFA, the best way to 
prepare for anticipated disasters or emergencies is to increase 
delivery runs ahead of the impending situation.
    In short, this exemption would allow suppliers of essential food 
staples to increase driving hours to pre-stock stores before an 
emergency made such deliveries more difficult or even impossible. 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.
    The application for exemption is in the docket for this notice.

IV. Public Comments

    On December 18, 2018, FMCSA published notice of this application 
and requested public comments (83 FR 64927). The Agency received 13 
comments. Four commenters, including the Commercial Vehicle Safety 
Alliance (CVSA), opposed the exemption request. CVSA said it was both 
unjustified and impractical. Per CVSA, exemptions from Federal safety 
regulations have the potential to undermine safety while complicating 
the enforcement process. Furthermore, the Federal Motor Carrier Safety 
Regulations and the Hazardous Materials Regulations exist to ensure 
that those operating in the transportation industry are equipped to do 
so safely. CVSA stated that, if granted, the exemption would burden the 
enforcement community excessively and impact safety negatively. CVSA 
added that exemptions cause confusion and inconsistency in enforcement, 
which undermines the very foundation of the Federal commercial motor 
vehicle (CMV) enforcement program--uniformity. CVSA insisted that 
regulations are effective only if they are clear and enforceable.
    Four other commenters also opposed the application, indicating that 
the HOS ``blanket'' exemption requested by ABA/IDFA is covered by 49 
CFR 390.23, which provides regulatory relief for regional and local 
declared emergencies.
    Eight commenters supported the ABA/IDFA exemption. One said the 
following, ``In the current driver shortage, finding the capacity to 
deliver our products is hard enough. Ahead of a storm, where the need 
for bread dramatically increases, increasing delivery capacity is 
nearly impossible. If this exemption were to be granted, these 
companies would be able to utilize this flexibility to keep up with 
demands for our food products. The exemption would not only help our 
company meet this increased demand, but would also dramatically 
increase roadway safety by reducing the number of driver who run out of 
hours in traffic.''

V. FMCSA Response and Decision

    FMCSA has evaluated ABA/IDFA's joint application and the public 
comments and decided to deny the exemption. When the Agency established 
the rules mandating HOS, it relied upon research indicating that the 
rules improve CMV safety. These regulations put limits in place for 
when and how long an individual may drive to ensure that drivers stay 
awake and alert while driving and on a continuing basis to help reduce 
the possibility of driver fatigue.
    The ABA/IDFA application provides neither an analysis of the 
potential safety impacts of the requested exemption nor countermeasures 
to be undertaken to ensure that the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulations. In addition, comments received--
most notably those comments from CVSA--opposed the granting of the 
exemption as it could cause confusion and undermine enforcement.
    The Agency cannot ensure that the exemption would achieve an 
equivalent level of safety for the following reasons:
    1. The terms and conditions, as proposed in the application, would 
provide unlimited flexibility in: Driving more than 11-hours, following 
10 consecutive hours off-duty; driving after the 14th hour of coming on 
duty; driving after accumulating 60 hours on duty in 7 consecutive 
days, or 70 hours on duty in 8 consecutive days; accumulating less than 
10 consecutive hours off duty following a work shift. The exemption 
would not include specific criteria controlling drivers' work and rest 
schedules which makes it impossible to ensure there is an equivalent 
level of safety for drivers operating under the exemption. Also, the 
absence of specific criteria or terms

[[Page 64400]]

means the exemption could not be enforced.
    2. The exemption would allow unlimited flexibility based on weather 
or other conditions which may or may not result in an emergency 
declaration. Relief would be provided in anticipation of problems. In 
fact, ABA/IDFA member companies would be allowed to determine whether 
the weather conditions warrant the use of the exemption based on their 
judgment or reasonable anticipation of the need for certain food 
products. Also, there would be no documentation clearly identifying 
which drivers are responding to the urgent need identified by the ABA/
IDFA member companies. Enforcement officials would have no way of 
knowing whether a driver was operating under such an exemption except 
by asking him/her. FMCSA cannot delegate to private parties the 
inherently Federal authority to determine the applicability of an 
exemption from the Federal Motor Carrier Safety Regulations.
    For the reasons discussed above, FMCSA denies the request for 
exemption.

    Issued on: November 14, 2019.
Jim Mullen,
Deputy Administrator.
[FR Doc. 2019-25337 Filed 11-20-19; 8:45 am]
BILLING CODE 4910-EX-P