Hours of Service of Drivers: National Mobile Shower and Catering Association; Application for Exemption |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
1 October 2019
[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Notices]
[Pages 52169-52172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21276]
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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 final disposition; grant of application for an
exemption.
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SUMMARY: FMCSA announces its decision to grant the National Mobile
Shower and Catering Association's (NMSCA) request for an exemption from
various provisions of the Federal hours-of-service (HOS) rules for
commercial motor vehicle (CMV) drivers. The requested exemption was
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 analyzed the
exemption application and public comments, and determined that the
applicant would achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.
DATES: This exemption is effective October 1, 2019 and expires October
1, 2024.
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-2018-0331 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 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
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.
The NMSCA requested 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. NMSCA
specifically requested that while operating under a ``Resource Order''
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 not
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.''
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 and set up their base camps, they have
little food or water until an NMSCA member's equipment arrives at a
later time. The exemption is needed both to expedite response to the
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, in particular, water. Although the crew
members have substantial rest time and have sleeping quarters on site,
the
[[Page 52170]]
current HOS regulations may at times hinder their mission support.
A copy of NMSCA's application for exemption is available for review
in the docket for this notice.
IV. Public Comments
On November 27, 2018, FMCSA published notice of this application
and requested public comment (83 FR 60943). The Agency received 5
comments.
The Advocates for Highway and Auto Safety (Advocates) and the
Commercial Vehicle Safety Alliance (CVSA) opposed the exemption
request. Excerpts from the Advocates' comments are as follows:
``Advocates [strongly] opposes the current petition as it is
unnecessary and would substantially degrade public safety . . . NMSCA
has provided no discussion of the regulatory relief presently available
to motor carriers during an emergency under 49 CFR 390.23. Furthermore,
the only countermeasures discussed by the Applicant indicate that their
drivers will have, essentially, taken a short class on the dangers of
fatigue and will comply with existing regulations which prohibit
driving in a fatigued state. This description falls short of a complete
analysis and ignores the underlying reasons for the HOS and electronic
logging device (ELD) requirements.''
CVSA opposed the exemption request, which it views as both
unjustified and impractical. The CVSA believes exemptions from Federal
safety regulations have the potential to undermine safety, while also
complicating the enforcement process. The FMCSRs and the Hazardous
Materials Regulations (HMR) exist to ensure that those operating in the
transportation industry are equipped to do so safely. CVSA added that,
if granted, this exemption would place an excessive burden on the
enforcement community and negatively impact safety.
The remaining comments were filed by individuals expressing
opposition to the NMSCA request. One said: ``If NMSCA employees are
responding to an emergency much of what they're requesting is covered
by Part 390; therefore, no exemption is required.''
V. FMCSA Decision
FMCSA has evaluated NMSCA's application and the public comments and
decided to grant parts of the request, while denying other parts.
Although all comments filed to the docket opposed the exemption, the
Agency believes that granting part of the request is appropriate and
that the terms and conditions of the exemption will achieve the
requisite level of safety.
The Agency believes that allowing drivers to extend the 14-hour
duty period in Sec. 395.3(a)(2) to no more than 16 hours would provide
an equivalent level of safety because the drivers operating under the
exemption would rarely be required to drive up to 11 hours during the
work shift. The challenge drivers face when providing support for
firefighting crews is that they would occasionally have to operate a
CMV after the 14th hour of coming on duty. Driving significantly less
than the maximum allowable hours ensures an equivalent level of safety,
even when hours behind the wheel occur towards the end of the work
shift. Although the exemption does not prohibit individuals from
driving up to 11 hours during a work shift, the nature of the
firefighting support operations is such that CMV drivers would spend
most of their shift in the on-duty, not driving, status.
The Agency believes that providing relief from the 30-minute rest
break provision in Sec. 395.3(a)(3)(ii) would achieve an equivalent
level of safety because the drivers in question take numerous breaks
during their work shift, and spend most of their time in the on-duty,
not driving, status. While the breaks from the driving tasks are not
off-duty breaks, the absence of long periods of continuous driving
minimizes the risks of individuals operating while fatigued.
With regard to relief from electronic records of duty status
(RODS), the Agency notes that the existing regulations allow motor
carriers and drivers to avoid the use of electronic logging devices
(ELDs) if their operations do not require RODS more than 8 days in a
30-day period, which may be the case for short-haul operations under
Sec. 395.1(e)(1). NMSCA drivers would continue to comply with the
driving time limits and the requirement to maintain accurate RODS and
supporting documents which could be used to verify compliance with the
terms and conditions of the exemption. The exemption would provide up
to four additional days of relief from the ELD requirement (12 days
instead of 8) during a 30-day period.
Because the relief is applicable only when the NMSCA member
companies are operating under a ``Resource Order'' or other comparable
order issued by a Federal government agency, relief from the ELD rule
would not be continuous throughout the year, and the retention of paper
RODS and supporting documents during these periods for the limited
number of NMSCA members provides an effective alternative for verifying
compliance with terms and conditions of the exemption and the
applicable hours of service requirements.
Finally, the requirement that drivers have 24 consecutive hours
off-duty at the completion of camp activities/demobilization before
driving a CMV in operations not covered by the exemption, combined with
North American Fatigue Management Program (NAFMP) training, ensures the
individuals understand the importance of obtaining an adequate amount
of rest, even under difficult operating conditions, and that they have
the opportunity for rest when the firefighting support activities have
ended.
FMCSA notes that NMSCA has not notified the Agency of any
reportable accidents while operating under the terms and conditions
2018 HOS waiver. With the imposed terms and conditions, the Agency
believes that NMSCA drivers will likely achieve a level of safety that
is equivalent to or greater than, the level of safety achieved without
the exemption [49 CFR 381.305(a)].
FMCSA denies NMSCA's request to allow ``waiting time'' to extend
the window during which driving of CMVs is allowed because the Agency
does not believe such relief would achieve an equivalent level of
safety. While such relief was provided in the 2018 waiver, the waiver
was limited to no more than 90 days to accommodate the urgency of the
2018 firefighting season. In the context of an exemption, the Agency
does not believe the relief is appropriate because the frequency and
time span of its possible use increase the risk of unsafe operations.
As such, the Agency does not believe an exemption that excludes waiting
time from the calculations of the driving time window would provide an
equivalent level of safety.
FMCSA also denies NMSCA's request to extend the weekly limits for
on-duty time. Currently, the Agency's regulations prohibit driving a
CMV after a driver accumulates 60 hours of on-duty time within seven
consecutive days (60-hour rule). Drivers may restart the calculations
of the 60-hour rule at any time they have 34 consecutive hours off-
duty. NMSCA requested that the Agency allow drivers up to 80 hours of
on-duty time within seven consecutive days before the driver would be
prohibited from operating CMVs. The Agency is not aware of any
information that would support such an increase in the amount of on-
duty time before the driver would be required to have at least 34
consecutive hours off-duty. The increase would significantly
[[Page 52171]]
increase the risk of drivers with cumulative fatigue operating CMVs on
public roads.
VI. Terms and Conditions for the Exemption
This exemption is restricted to CMV drivers employed by NMSCA
members transporting equipment to provide food and water services to
contracted firefighters at designated base camps as follows:
(1) The exemption is in effect only 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 listed in the attachment to this letter.
(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, or other comparable order, upon request of law
enforcement officers.
(4) When operating under this exemption, drivers and carriers:
a. May extend the 14-hour duty period in Sec. 395.3(a)(2) to no
more than 16 hours;
b. Need not comply with the minimum 30-minute rest break provision
in Sec. 395.3(a)(3)(ii);
c. May extend the ``8 days in 30'' provision in Sec.
395.8(a)(1)(iii)(A)(1) to ``12 days in 30'';
(5) Drivers must have at least 24 consecutive hours off-duty at the
completion of camp activities/demobilization before driving a
commercial motor vehicle.
(6) Drivers must complete the Driver Education Module 3 and the
Driver Sleep Disorders and Management Module 8 of the North American
Fatigue Management Program (NAFMP) (www.nafmp.org) prior to operating
under the exemption; and
(7) Motor carriers and drivers must comply with all other
provisions of the Federal Motor Carrier Safety Regulations.
This exemption is contingent upon each carrier maintaining USDOT
registration, minimum levels of public liability insurance, and not
being subject to any ``imminent hazard'' or other out-of-service (OOS)
order issued by FMCSA. Each driver covered by the exemption must be in
possession of the exemption document and, if required, maintain a valid
commercial driver's license with required endorsements, not be subject
to any OOS order or suspension of driving privileges, and meet all
physical qualifications required by 49 CFR part 391.
Preemption
In accordance with 49 U.S.C.31313(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation applicable to interstate commerce that
conflicts with or is inconsistent with this exemption with respect to a
firm or person operating under the exemption. States may, but are not
required to, adopt the same exemption with respect to operations in
intrastate commerce.
Notification to FMCSA
Under the exemption, each member company listed in the attachment
of this letter must notify FMCSA within 5 business days of any accident
(as defined in 49 CFR 390.5), involving any of the motor carrier's CMVs
operating under the terms of this exemption. The notification must
include the following information:
a. Identifier of the Exemption: ``NMSCA,''
b. Name of operating carrier and USDOT number,
c. Date of the accident,
d. City or town, and State, in which the accident occurred, or
closest to the accident scene,
e. Driver's name and license number,
f. Co-driver's name (if any) and license number
g. Vehicle number and state license number,
h. Number of individuals suffering physical injury,
i. Number of fatalities,
j. The police-reported cause of the accident,
k. Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations, and
l. The total driving time and total on-duty time prior to the
accident.
VIII. Termination
The FMCSA does not believe the motor carriers and drivers covered
by this exemption will experience any deterioration of their safety
record. However, should this occur, FMCSA will take all steps necessary
to protect the public interest, including revocation of the exemption.
The FMCSA will immediately revoke the exemption for failure to comply
with its terms and conditions.
Issued on: September 25, 2019.
Raymond P. Martinez,
Administrator.
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Company name DOT No. Address
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Emergency Mobile Kitchen Members
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Big Sky Mobile Catering........ 362431 224 N Higgins Ave.,
Missoula, MT 59802.
Bishop Services................ 393418 P.O. Box 11,
Goldendale, WA 98620.
Cattlemen's Meat Company....... 0689015 12 East Main Street,
Cut Bank, MT 59427.
D.F. Zee's Firefighter Catering 767697 987 Kruse Way,
Springfield, OR 97477.
For Stars Express.............. 1023332 13124 Firestone Blvd.,
Santa Fe Springs, CA
90670.
Houston's Too.................. 1262159 20645 North 28th
Street, Phoenix, AZ
85050.
OK'S Cascade Company, LLC...... 291137 1429 Avenue D, #166,
Snohomish, WA 98290.
Latitude Catering (R&G Food 683431 4650 S Coach Dr.,
Service). Ste.110, Tucson, AZ
85714.
North Slope Catering........... 1123123 322 Culver Blvd., #352,
Playa Del Rey, CA
90293.
NuWay Inc...................... 340104 955 N 4th St., Lander,
WY 82520.
Ridgeline Support Services..... 1262159 20645 North 28th
Street, Phoenix, AZ
85050.
Scofield Catering and 1904003 5450 Ralston St., Suite
Management, Inc. 104, Ventura, CA
93003.
Stewart's Firefighter Food 443962 P.O. Box 818, Redmond,
Catering, Inc. OR 97756.
The Lake, Inc.................. 2408174 9716 Pyramid Highway,
Sparks, NV 89441.
Thunder Mountain Catering, Inc. 1764298 5143 N Northwall Ave
Boise, ID 83703.
Yellowstone Kelly's Catering... 429821 P.O. Box 80484,
Billings, MT 59108.
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Emergency Mobile Shower Members
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A-1 Services PWMSGW............ 1744502 P.O. Box 189, Oak City,
UT 84649.
A-1 Water...................... 1745328 P.O. Box 1552, Goleta,
CA 93116.
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AAA Mobile Showers............. 2494204 P.O. Box 4528, Visalia,
CA 93278.
Action Sanitary, Inc........... 906447 P.O. Box 492, Lower
Lake, CA 95457.
Alan & Daryl's Vacuum Truck 886981 P.O. Box 189. Oak City,
Service, LLC. UT 84649.
B & D Mobile Support Inc....... 1851540 11030 Hwy 39, Klamath
Falls, OR 97603.
Backcountry Support Systems.... 2881759 3011 Jackson Road,
Carter, Montana.
Big Sky Showers................ 1750986 224 N Higgins Ave,
Missoula, MT 59802.
Bishop Services, Inc........... 393418 P.O. Box 11,
Goldendale, WA 98620.
Bush Fire Services............. 875731 305 Flat Lick Road,
London, KY.
El Dorado Water & Showers...... 789755 P.O. Box 944,
Placerville, CA 95667.
NuWay, Inc..................... 340104 955 N 4th Street,
Lander, WY 82520.
Ports on Site Services......... 1379095 305 Flat Lick Road,
London, KY.
Western Emergency Services..... 339360 P.O. Box 838, Merlin,
OR 97532.
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[FR Doc. 2019-21276 Filed 9-30-19; 8:45 am]
BILLING CODE 4910-EX-P