Hours of Service (HOS) of Drivers; U.S. Department of Energy (DOE); Application for Renewal of Exemption

James A. Mullen
Federal Motor Carrier Safety Administration
6 July 2020

[Federal Register Volume 85, Number 129 (Monday, July 6, 2020)]
[Notices]
[Pages 40380-40382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14497]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0370]


Hours of Service (HOS) of Drivers; U.S. Department of Energy 
(DOE); Application for Renewal of Exemption

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

ACTION: Notice of final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant the application of the 
U.S. Department of Energy (DOE) for a renewal of its exemption from the 
30-minute rest break provision of the Agency's hours-of-service (HOS) 
regulations for commercial motor vehicle (CMV) drivers. DOE currently 
holds an exemption for the period through June 29, 2020, which enables 
DOE's contract motor carriers and their employee-drivers engaged in the 
transportation of security-sensitive radioactive materials to be 
treated similarly to drivers of shipments of explosives. The exempted 
drivers will be allowed to use 30 minutes or more of on-duty 
``attendance time'' to meet the HOS rest break requirements providing 
they do not perform any other work during the break.

DATES: The requested exemption renewal is effective from June 30, 2020, 
through September 29, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA; 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-2012-0370 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. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Docket Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from the Federal Motor Carrier Safety Regulations. 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 the public comments, 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 reason for the grant or denial, and, if granted, 
the specific person or class of persons receiving the exemption, and 
the regulatory provision or provisions from which exemption is granted. 
The notice must also specify the effective period of the exemption (up 
to 5 years), and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

III. Background

    From 2013 to 2015, DOE held a limited exemption from the mandatory 
30-minute rest break requirement of 49 CFR 395.3(a)(3)(ii) that allowed 
DOE contract carriers and their drivers transporting security-sensitive 
radioactive materials to be treated the same as drivers transporting 
explosives pursuant to Sec.  395.1(q). As that exemption neared 
expiration, DOE applied for its renewal. FMCSA reviewed DOE's request 
and the public comments and reaffirmed its previous conclusion that 
allowing these drivers to count on-duty time ``attending'' their CMVs 
toward the required 30-minute break, would likely provide a level of

[[Page 40381]]

safety equivalent to what would be achieved by the break. The notice 
renewing the DOE exemption was published on June 22, 2015 (80 FR 
35703).
    On July 25, 2016 (81 FR 48495), FMCSA announced the extension of 
the 2015 DOE exemption notice to June 29, 2020 in response to section 
5206(b)(2)(A) of the ``Fixing America's Surface Transportation Act'' 
(FAST Act). That section extends the expiration date of all HOS 
exemptions in effect on the date of enactment (Dec. 4, 2015) to five 
years from the date of issuance of the exemptions. DOE has now 
requested a renewal of the exemption. A copy of DOE's request is in the 
docket referenced at the beginning of this notice.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    DOE has implemented several technical and administrative controls 
to ensure the continued effective use of driver on-duty and rest-break 
time, which would remain in effect under the requested exemption 
renewal. They include the following:
     Real-time tracking and monitoring of transuranic waste and 
security-sensitive shipments using DOE's satellite-based systems;
     Use of electronic on-board recorders on trucks, which are 
contractually required for motor carriers involved in the Waste 
Isolation Pilot Plant to ensure compliance with driver HOS rules; and
     Continuous monitoring of the performance of DOE-qualified 
motor carriers using the FMCSA Compliance Safety Accountability 
Program's Safety Measurement System, and DOE's Motor Carrier Evaluation 
Program.
    Further details regarding DOE's safety controls can be found in its 
application for a renewal of the exemption. The application can be 
accessed in the docket identified at the beginning of this notice. DOE 
contends that these controls enable them to achieve a high level of 
safety and security for transportation of security-sensitive 
radioactive materials.

V. Public Comments

    On April 23, 2020, FMCSA published notice of this application, and 
requested public comment (85 FR 22785). Two comments were submitted, 
one by an individual, Garrett Chaffey, and the other by the Commercial 
Vehicle Safety Alliance (CVSA). Both supported the exemption.
    Garrett Chaffey wrote:

    In conclusion, the DOE should be granted the continued exemption 
as requested because the DOE is best situated to evaluate its needs, 
there is a lack of evidence of negative consequences to the 
exemption, the transport of radioactive materials provides similar 
risks that explosives drivers also are granted exemption for, and 
after five years of this exemption the exemption appears to be 
having the desired impact without creating additional risks.

    CVSA wrote the following:

    CVSA believes that DOE drivers have demonstrated an ability to 
maintain an equivalent level of safety under this exemption and does 
not oppose the renewal. However, FMCSA recently released a final 
rule that makes changes to the hours-of-service requirements that 
addresses DOE's scenario, by allowing all drivers to satisfy the 30-
minute rest break requirement with any non-driving time. As a 
result, the Alliance supports extending DOE's exemption through the 
implementation date of the new hours-of-service regulations, at 
which time the exemption will no longer be necessary.

VI. FMCSA Decision

    In reviewing the DOE request, FMCSA considered a wide range of 
studies, including the 2011 Blanco study,\1\ coupled with the analysis 
of the safety performance data and information for the motor carriers 
that have been granted exemptions similar to DOE's. The Agency 
continues to believe that on-duty breaks from the driving task provide 
safety benefits essentially equivalent to those produced by an off-duty 
break (as well as productivity benefits). The Blanco study demonstrates 
that breaks of at least 30 minutes--whether on or off-duty--reduce 
safety critical events in the hour after driving resumes. This 
conclusion is consistent with the safety rationale presented in the 
preamble to the June 1, 2020 in the recent HOS final rule (85 FR 33396, 
33452) which revised 49 CFR 395.3(a)(3)(ii).
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    \1\ Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich, 
S., Wu, S.C., & Guo, F. (2011) ``The Impact of Driving, Non-Driving 
Work, and Rest Breaks on Driving Performance in Commercial Motor 
Vehicle Operations.'' Available in this rulemaking docket.
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    The Agency has analyzed DOE's application for renewal and comments 
filed to the docket and believe the application for exemption renewal 
is likely to achieve a level of safety that is equivalent to, or 
greater than, the level that would be achieved absent such exemption.

VII. Terms of the Exemption

Period of the Exemption

    The exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is 
granted for the period from 12:01 a.m., June 30, 2020, through 11:59 
p.m. on September 29, 2020. Thereafter, revised Sec.  395.3(a)(3)(ii) 
will make this exemption unnecessary.

Extent of the Exemption

    The exemption is restricted to DOE's contract driver-employees 
transporting security-sensitive radioactive materials. This exemption 
is limited to the provisions of 49 CFR 395.3(a)(3)(ii) to allow 
contract driver-employees transporting security-sensitive radioactive 
materials to be treated the same as drivers transporting explosives, as 
provided in Sec.  395.1(q). These drivers must comply with all other 
applicable provisions of the FMCSRs.

Preemption

    In accordance with 49 U.S.C. 31315(d), during the period this 
exemption is in effect, no State shall enforce any law or regulation 
that conflicts with or is inconsistent with this exemption with respect 
to a firm or person operating under the exemption.

Notification to FMCSA

    The DOE 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. Exemption Identity: ``DOE'';
    b. Name of operating motor 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 driver's license number and State of issuance;
    f. Vehicle number and State license plate number;
    g. Number of individuals suffering physical injury;
    h. Number of fatalities;
    i. The police-reported cause of the accident;
    j. Whether the driver was cited for violation of any traffic laws 
or motor carrier safety regulations; and
    k. The driver's total driving time and total on-duty time period 
prior to the accident.
    Reports filed under this provision shall be emailed to 
MCPSD@DOT.GOV.

Termination

    FMCSA does not believe the 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 or restriction of the exemption. The 
FMCSA will immediately revoke or restrict the

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exemption for failure to comply with its terms and conditions.

James A. Mullen,
Deputy Administrator.
[FR Doc. 2020-14497 Filed 7-2-20; 8:45 am]
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