Hours of Service of Drivers: HEPACO, LLC; Heritage Environmental Services, LLC; Lewis Environmental, Inc.; and Moran Environmental Recovery, LLC; Application for Exemption

Jim Mullen
Federal Motor Carrier Safety Administration
12 November 2019

[Federal Register Volume 84, Number 218 (Tuesday, November 12, 2019)]
[Notices]
[Pages 61133-61134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24526]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0246]


Hours of Service of Drivers: HEPACO, LLC; Heritage Environmental 
Services, LLC; Lewis Environmental, Inc.; and Moran Environmental 
Recovery, LLC; 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 the joint application 
from HEPACO, LLC; Heritage Environmental Services, LLC; Lewis 
Environmental, Inc.; and Moran Environmental Recovery, LLC, for 
exemption from the hours-of-service (HOS) regulations for drivers 
engaged in providing direct assistance in actual and potential 
environmental emergencies. FMCSA analyzed the exemption application and 
the public comments received in response to the Agency's August 9, 
2018, notice announcing receipt of the request. The Agency has 
concluded there is no basis for determining that the terms and 
conditions of an exemption would achieve a level of safety that is 
equivalent to, or greater than, the level that would be achieved absent 
such exemption.

DATES: This decision is effective November 12, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, 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

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-2018-0246 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 provide an opportunity for public comment on the 
request.

[[Page 61134]]

    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 
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 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

    The following companies applied for this exemption: HEPACO, LLC; 
Heritage Environmental Services, LLC; Lewis Environmental, Inc. and 
Moran Environmental Recovery, LLC. They all are members of the Spill 
Control Association of America (SCAA), which filed the exemption 
application on their behalf. Together, the four companies have 758 
commercial driver's license holders and 840 commercial motor vehicles 
(CMVs). In responding to emergency incidents, these companies work 
alongside a mix of both private industry and public agencies. Often, 
their work often has a direct impact on protecting both public safety 
and the environment. They are required contractually to provide direct 
assistance to responsible parties who are experiencing actual or 
potential environmental emergencies, defined as a sudden threat to the 
public health or the well-being of the environment, arising from the 
release of oil, radioactive materials, or hazardous chemicals into the 
air, land or water. Their employees are hybrid driver/operator/
technicians, whose work challenges the limits on total on-duty time, 
especially after hours. In addition, the applicant references the 
current driver shortage and argues that obtaining drivers with the 
necessary additional skills and experience is problematic.
    The applicants requested relief from 49 CFR 395.3(a)(2), commonly 
known as the ``14-hour rule.'' The applicants state that the HOS 
limitations have always been an issue for emergency response companies. 
They request this exemption to allow these four companies to respond to 
a release or threat of a release of oil and other hazardous materials, 
subject to the following conditions for each driver:
     The on-duty period may not exceed 4.5 additional hours for 
a total of 18.5 hours of non-consecutive on-duty time before the 
required reset;
     Driving time for drivers who exceed the 14-hour period may 
not exceed 8 hours;
     Driving is not permitted after 70 hours on duty in 8 days;
     Drivers must take 10 hours off duty following the duty 
day; and
     All drivers must comply with the electronic logging device 
rule.
    According to the applicants, the initial response hours are the 
most critical in an environmental emergency and the ability to quickly 
respond is vital. These companies' drivers typically drive 1-2 hours 
each way to and from the incident. In no case, would these companies' 
drivers exceed 8 hours of drive time per incident. SCAA states that if 
the exemption is not granted, there could be a disruption of national/
regional commerce, including delays in power restoration and protection 
of interstate commerce and infrastructure.
    The applicants believe that the proposed relief, and the parameters 
in which their drivers operate, would continue to provide the highest 
level of safety and compliance, while prudently responding to incidents 
that threaten public safety and the environment. A copy of the 
application for exemption is available for review in the docket for 
this notice.

IV. Public Comments

    On August 9, 2018, FMCSA published notice of this application and 
requested public comment (83 FR 39498). The Agency received six 
comments--two from spill response contractors and four from 
individuals. Three individuals and both spill response contractors 
support the proposed exemption.
    One commenter opposed the application, stating ``[p]lease do not 
allow this exemption. This is a wonderful opportunity to hire more 
employees, should they need to work more than 14 hours in a day. This 
has been in effect for many years, and for safety no driver should be 
allowed to work more than 14 hours.''

V. FMCSA Decision

    FMCSA has evaluated SCAA's application 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 underlying the HOS requirements, 
there is no basis for granting an exemption that would allow an 
individual to drive after the 18th hour of coming on duty. Although 
SCAA 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 
increase in safety risks associated with an 18.5 hour driving window.
    Except for the limit on driving time, the applicants would comply 
with all the other applicable HOS requirements, including using 
electronic logging devices and requiring drivers to take 10 consecutive 
hours off-duty at the end of the work shift. The applicants are 
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 tradeoff to be persuasive.
    The SCAA application does not analyze the safety impacts the 
exemption 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 clearly define the 
conditions that would trigger the exemption.

    Issued on: November 5, 2019.
Jim Mullen,
Deputy Administrator.
[FR Doc. 2019-24526 Filed 11-8-19; 8:45 am]
 BILLING CODE 4910-EX-P