Hours of Service of Drivers: North Shore Environmental Construction, Inc.; 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 64394-64396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25340]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0368]


Hours of Service of Drivers: North Shore Environmental 
Construction, Inc.; Application for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to deny North Shore Environmental 
Construction, Inc.'s (North Shore) application for exemption from the 
``14-hour rule'' of the hours-of-service (HOS) regulations for drivers 
responding to actual and potential environmental emergencies. FMCSA 
analyzed the exemption application and the public comments and 
determined that the applicant will not achieve a level of safety that 
is equivalent to, or greater than, the level that would be achieved 
absent such exemption.

[[Page 64395]]


FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Telephone: (202) 366-4325; 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-2018-0368 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.

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 the 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 its terms and conditions. The exemption may be 
renewed (49 CFR 381.300(b)).

III. Request for Exemption

    North Shore Environmental Construction, Inc. (North Shore) seeks an 
exemption from the ``14-hour rule'' [49 CFR 395.3(a)(2)] for its 
drivers responding to environmental emergencies. North Shore employs 12 
commercial driver's license holders and its total number of commercial 
motor vehicles (CMVs) is 15. In responding to emergency incidents, 
North Shore's technicians work alongside a mix of private industry and 
public agencies; their work often has a direct impact on the protection 
of both public safety and the environment. North Shore advises that it 
is contractually required to provide direct assistance to responsible 
parties who are experiencing actual or potential environmental 
emergencies. North Shore's employees are hybrid driver/operator/
technicians. Their duties include industrial maintenance, spill 
response, sampling, lab packing, and waste management. Per North Shore, 
with the current driver shortage, obtaining drivers with these 
additional skills and experience has become problematic.
    North Shore requested relief from the ``14-hour rule.'' North Shore 
states that the hours-of-service (HOS) rules have always been an issue 
for emergency response companies. It requests this exemption to allow 
the company to respond to a release or threat of a release of oil and 
other hazardous materials (HM), subject to the following conditions for 
each driver:
     On-duty period will 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 rule.
    According to North Shore, the initial response hours are the most 
critical in an environmental emergency. North Shore believes that a 
tightly managed exemption 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.
    A copy of the North Shore application for exemption is available 
for review in the docket for this notice.

IV. Method To Ensure an Equivalent Level of Safety

    To ensure an equivalent level of safety North Shore offers to 
implement policies on fatigue and transportation management. North 
Shore also offers the maintenance of a multitude of safety, security, 
annual medical surveillance, and training plans, as well as 
comprehensive drug and alcohol programs compliant with multiple 
Department of Transportation regulations.

V. Public Comments

    On December 18, 2018, FMCSA published notice of this application 
and requested public comment (83 FR 64925). The Agency received three 
comments, all opposing the exemption. The Commercial Vehicle Safety 
Alliance (CVSA) argued that the request is both unjustified and 
impractical. According to CVSA, ``first and foremost, exemptions from 
federal safety regulations have the potential to undermine safety, 
while also complicating the enforcement process. The Federal Motor 
Carrier Safety Regulations (FMCSRs) and HM Regulations exist to ensure 
that those operating in the transportation industry are equipped to do 
so safely. If granted, this exemption would place an excessive burden 
on the enforcement community and negatively impact safety. The federal 
HOS requirements exist to help prevent and manage driver fatigue.''
    The Agency also received comments from Mr. Brian Fuller and Mr. 
Michael Millard. Both opposed exemptions from the HOS rules in general. 
Mr. Millard also argued that the requested exemption is duplicative of 
the emergency relief rule under Sec.  390.23.

VI. FMCSA Response and Decision

    FMCSA has evaluated North Shore's application for exemption and the 
public comments submitted and hereby denies 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 to reduce the 
possibility of driver fatigue.
    Based on the body of research the Agency has relied upon in 
developing the HOS requirements, there is no basis for granting an 
exemption that would allow an individual to drive after the 18th hour 
after coming on duty when there is no mandatory off-duty time included 
within the 18-hour period. Although the applicant explained that 
drivers would not exceed 8 hours of driving time during a work shift, 
the Agency does not believe there is a basis for concluding that the 8-
hour limit on driving time offsets the potential

[[Page 64396]]

increase in safety risks associated with an 18.5 hour driving window.
    The applicant is essentially requesting that the 14-hour rule be 
extended by 4.5 hours in exchange for a 3-hour reduction in the 
driving-time limit. The Agency does not find this safety equivalency 
claim to be persuasive.
    The North Shore application does not analyze the safety impacts the 
requested exemption from the HOS regulations may cause nor does it 
provide countermeasures 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. Furthermore, the 
applicant did not provide clear parameters that would have to be met to 
trigger the exemption.
    For these reasons, FMCSA denied the request for exemption.

    Issued on: November 14, 2019.
 Jim Mullen,
 Deputy Administrator.
[FR Doc. 2019-25340 Filed 11-20-19; 8:45 am]
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