[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Notices]
[Pages 72373-72376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33474]
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DEPARTMENT OF TRANSPORTATION
Office of Motor Carrier Safety
[OMCS Docket No. OMCS-99-6579]
Hours-of-Service of Drivers; Exemption Application from Van Wyk
Freight Lines, Inc.
AGENCY: Office of Motor Carrier Safety (OMCS), DOT.
ACTION: Notice of application for exemption and proposal to deny
exemption; request for comments.
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SUMMARY: The OMCS is announcing its proposal to deny the application of
Van Wyk Freight Lines, Inc. (Van Wyk) for an exemption from the records
of duty status (log book) provisions of the hours-of-service
regulations. Van Wyk indicated that its drivers meet all of the maximum
driving time limitations in the Federal Motor Carrier Safety
Regulations (FMCSRs) and that it satisfies three of the five conditions
for using the OMCS' 100 air-mile radius driver exception to the
requirement for log books. Van Wyk's drivers exceed the 100 air-mile
distance, and the 12 hours on-duty limitations in the exception. Van
Wyk believes its computerized payroll records, and compliance with the
remaining conditions listed in the 100 air-mile radius driver exception
would achieve a level of safety comparable to that provided under the
exception. The OMCS proposes to deny the exemption because Van Wyk did
not explain how it would ensure that it could achieve a level of safety
that is equivalent to, or greater than, the level of safety that would
be obtained by complying with the 100-air mile radius exception to the
log book requirements. Also, Van Wyk did not describe the impacts
(e.g., inability to test innovative safety management control systems,
etc.) it could experience if the exemption is not granted by the OMCS.
The exemption, if granted, would preempt inconsistent State and local
requirements applicable to interstate commerce.
DATES: Comments must be received on or before January 26, 2000.
ADDRESSES: Submit written, signed comments with the docket number
appearing at the top of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-
0001. All comments received will be available for examination at the
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, HMCS-10, (202) 366-4009, Office of
Motor Carrier Safety, 400 Seventh Street, SW., Washington, D.C. 20590-
0001; or Mr. Charles E. Medalen, Office of the Chief Counsel, HCC-20,
(202) 366-1354, Federal Highway Administration, 400 Seventh Street,
SW., Washington, D.C. 20590-0001. Office hours are from 7:45 a.m. to
4:15 p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments that are submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001, by using the universal resource locator
(URL): http://dms.dot.gov. It is available 24 hours each day, 365 days
each year. Please follow the instructions online for more information
and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www.access.gpo.gov/nara.
Creation of New Agency
Section 338 of the FY 2000 Department of Transportation and Related
Agencies Appropriations Act prohibits the expenditure of any funds
appropriated by that Act ``to carry out the functions and operations of
the
[[Page 72374]]
Office of Motor Carriers within the Federal Highway Administration''
(Pub. L. 106-69, October 9, 1999, 113 Stat. 986, at 1022). Section 338
further provides that, if the authority of the Secretary of
Transportation on which the functions and operations of the Office of
Motor Carriers are based is redelegated outside the FHWA, the funds
available to that Office under the Act may be transferred and expended
to support its functions and operations.
The Secretary has rescinded the authority previously delegated to
the FHWA to perform motor carrier functions and operations. This
authority has been redelegated to the Director, Office of Motor Carrier
Safety (OMCS), a new office within the Department of Transportation (64
FR 56270, October 19, 1999).
The motor carrier functions of the FHWA's Resource Centers and
Division (i.e., State) Offices have been transferred to OMCS Resource
Centers and OMCS Division Offices, respectively. Rulemaking,
enforcement and other activities of the Office of Motor Carrier Safety
while part of the FHWA will be continued by the OMCS. The redelegation
will cause no changes in the motor carrier functions and operations
previously handled by the FHWA. For the time being, all phone numbers
and addresses are unchanged.
Background
On June 9, 1998, the President signed the Transportation Equity Act
for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107).
Section 4007 of TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning
the Secretary of Transportation's (the Secretary's) authority to grant
exemptions from the FMCSRs for a person(s) seeking regulatory relief
from those requirements. An exemption may be granted for no longer than
two years from its approval date, and may be renewed upon application
to the Secretary. The Secretary must provide the public with an
opportunity to comment on each exemption request prior to granting or
denying the exemption.
Section 4007 requires the OMCS to publish a notice in the Federal
Register for each exemption requested, explaining that the request has
been filed, and providing the public with an opportunity to inspect the
safety analysis and any other relevant information known to the agency,
and to comment on the request. Prior to granting a request for an
exemption, the agency must publish a notice in the Federal Register
identifying the person or class of persons who will receive the
exemption, the provisions from which the person will be exempt, the
effective period, and all terms and conditions of the exemption. The
terms and conditions established by the OMCS must ensure that the
exemption will likely achieve a level of safety that is equivalent to,
or greater than, the level that would be achieved by complying with the
regulation.
On December 8, 1998, the FHWA published an interim final rule
implementing section 4007 of TEA-21 (63 FR 67600). The regulations at
49 CFR part 381 establish the procedures persons must follow to request
waivers and to apply for exemptions from the FMCSRs, and the procedures
used to process the requests for waivers and applications for
exemptions.
As indicated earlier in this notice, the Secretary has rescinded
the authority previously delegated to the FHWA to carry out motor
carrier functions and operations. Therefore, the regulations issued by
the FHWA are now regulations of the OMCS. On October 29, 1999 (64 FR
58355), the OMCS issued a final rule amending the heading for chapter
III of title 49 of the Code of Federal Regulations to reflect the
organizational changes.
Van Wyk's Application for an Exemption
Van Wyk applied for an exemption from 49 CFR 395.8, which provides
requirements concerning drivers' records of duty status or ``log
books.'' A copy of the application is in the docket identified at the
beginning of this notice. Generally, motor carriers must require each
of their CMV drivers to record his/her duty status for each 24-hour
period using the methods prescribed in the regulations. The regulation
provides motor carriers with two options: manually recording the duty
status in a log book, or using an automatic on-board recording device.
Section 395.1(e) of the hours-of-service regulations provides an
exemption to the requirements of Sec. 395.8 for certain drivers
operating CMVs within a 100 air-mile radius of the normal work
reporting location. The 100 air-mile radius exemption is applicable if:
(1) The driver, except a driver salesperson, returns to the work
reporting location and is released from work within 12 consecutive
hours;
(2) At least 8 consecutive hours off-duty separate each 12 hours on
duty;
(3) The driver does not exceed 10 hours maximum driving time
following 8 consecutive hours off-duty; and,
(4) The motor carrier that employs the driver maintains and retains
for a period of six months accurate and true time records showing:
(i) The time the driver reports for duty each day;
(ii) The total number of hours the driver is on-duty each day;
(iii) The time the driver is released from duty each day; and,
(iv) The total time for the preceding seven days in accordance with
Sec. 385.8(j)(2) 1 for drivers used for the first time or
intermittently.
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\1\ Section 395.8(j)(2) requires that motor carriers, when
using a driver for the first time or intermittently, must obtain
from the driver a signed statement giving the total time on duty
during the immediately preceding seven days and the time at which
the driver was last relieved from duty prior to beginning work for
the motor carriers.
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Van Wyk believes that its motor carrier operations meet most of the
conditions in the 100 air-mile radius exception and that the
differences--Van Wyk's drivers exceed the 100 air-mile distance, and
the drivers sometimes remain on duty for 15 consecutive hours--should
not preclude the company from obtaining relief from the log book
requirement. Van Wyk indicated that its drivers normally work a 10-hour
day, take at least an 8-hour break between each tour of duty; return to
the same point of origin at the end of each shift; do not exceed 10
hours of driving time on any given shift, and do not work on Saturday
and Sunday. The company keeps track of drivers' hours through an
electronic time clock that indicates the start time, number of hours
on-duty, and the time the driver gets off work each day. The company
can also show the last 12 months of ``activity'' through computerized
payroll records.
Basis for Proposal to Deny the Exemption
The OMCS has carefully reviewed Van Wyk's application and does not
believe that it would be appropriate to grant an exemption solely on
the basis that the applicant meets most of the conditions of an
existing exception developed through notice-and-comment rulemaking
procedures.
On April 3, 1980 (45 FR 22042), as part of the FHWA's effort to
reduce the paperwork burden on the drivers and motor carriers while
retaining adequate controls over the hours-of-service, the agency
published the final rule creating an exception to the log book
requirements for drivers who operate commercial motor vehicles within a
100 air-mile radius of the place where the driver reports for work. The
preamble to the final rule included a discussion of commenters'
concerns about various aspects of the rulemaking. The FHWA received 112
responses to the notice of
[[Page 72375]]
proposed rulemaking published on October 13, 1977 (42 FR 55109). The
agency indicated that eight respondents opposed the proposal as
written. Fifty-eight respondents supported the proposal as written.
Thirty respondents submitted conditionally favorable responses
predicated on variations of one or more elements of the proposal and 16
comments were considered beyond the scope of the proposal. The agency
stated:
Those respondents who submitted conditionally favorable responses
objected to particular elements that would require:
1. The [driver] to prepare a log every day if the driver operates
beyond the 100-mile radius more than one day per month;
2. The driver to return (within 12 hours) to the place the driver
reported for work; and,
3. Time records related to those exempt operations to be retained
at the carrier's principal place of business unless permission is
obtained to retain the records at another location.
It is agreed that the one day per month limitation may be overly
restrictive. The requirement that the motor carrier prepare and retain
true and accurate time records, coupled with the 12-hour limitation,
ensures that adequate records are available to determine driver
compliance with the hours-of-service regulations.
Therefore, the proposed exemption is being modified to require log
preparation on a daily basis by drivers who operate beyond the 100-mile
radius more than one time in any 7 consecutive day period. If a driver
operates beyond the 100-mile radius more than one time in any 7
consecutive days, a pattern of operation would be established that
would require preparation of a log every day. If a motor carrier
demonstrates that the driver will no longer be required to operate
beyond the 100-mile radius, the exemption could then be reinstated for
that particular driver. This action is in harmony with the present
interpretation covering operations beyond the 50-mile radius (42 FR
60078). 2
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\2\ On November 26, 1982 (47 FR 53383) the FHWA published a
final rule revising the requirements for recording a driver's duty
status. Section 395.9 concerning drivers' multi-day logs, which
included the log preparation requirements for drivers who operate
beyond the 100-mile radius more than once in any 7 consecutive day
period, was removed and reserved. The FHWA has since published
regulatory guidance about drivers who fail to meet the provisions of
the 100 air-mile radius exemption. (62 FR 16370, 16421; April 4,
1997).
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Many of the commenters who favored the proposal, in general,
objected to the 12-hour limitation. Those commenters indicated that
there are certain places such as piers, oil refineries, steel mills,
etc., where waiting times of 6-7 hours occur frequently and a driver
would not exceed the 10-hour driving rule, but because of the delays
could exceed the 12-hour limit proposed in the 100-mile exemption rule
and on those days not be entitled to the exemption. On the other hand,
other commenters pointed out that the 12-hour limitation was fair
considering the benefits to be gained by not having to prepare a log.
Another argument raised by certain commenters against the 12-hour
limit was that some drivers may now be operating within the 50-mile
radius exemption who, under the 100-mile radius exemption, would now
have to prepare a log. However, since FHWA is expanding the area of
operation four-fold, a limitation is necessary to ensure that the
hours-of-service are not violated. This limitation applies only if one
wants to take advantage of the 100-mile log exemption. The exemption
does not alter or should not be confused with the present hours-of-
service limitations set forth in section 395.3 of the Federal Motor
Carrier Safety Regulations (FMCSRs). It should be clearly understood
that once a driver exceeds that 12-hour limitation, the 100-mile
exemption would no longer be applicable for that day and the hours-of-
service for that day would have to be recorded on a driver's log. [45
FR 22042, 22043; April 3, 1980]
The preamble to the 1980 final rule thus demonstrates that the FHWA
fully considered industry concerns about the time limit for returning
to the work-reporting location. Van Wyk has not provided any new
information to support increasing either the time or the distance
restrictions in the current exception. Expanding both would enable Van
Wyk to dispatch drivers a distance of almost 300 statute miles from the
work reporting location (if the driver averages approximately 60 miles
per hour for 5 hours), perform non-driving tasks for almost 5 hours,
and then return to the work-reporting location with no readily apparent
means of ensuring that the driver does not exceed 10 hours driving
time. The drivers could operate almost anywhere in a geographic area of
approximately 282,600 square miles (using a radius (R) of 300 miles
from the work reporting location, and the formula Area = 3.14 X (R)2 )
and not be required to present a log book to their supervisors
documenting their total driving time, or to enforcement officials in
any of the jurisdictions in which the vehicle operates. By contrast,
the current exemption limits the geographic area to 41,527 square miles
(using a radius of 115 statute miles 3 and the previous
formula) and requires the driver to return to the terminal within 12
hours.
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\3\ The term ``air mile'' is internationally defined as a
``nautical mile'' which is equivalent to 6,076 feet or 1,852 meters.
Therefore, 100 air miles are equivalent to 115.08 statute miles or
185.2 kilometers (62 FR 16370, 16421; April 4, 1997).
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The OMCS believes that allowing Van Wyk to operate its vehicles in
an area of approximately 282,600 square miles without requiring log
books would make it difficult both for the motor carrier and
enforcement officials to ensure compliance with the maximum driving
time regulations. Since Van Wyk has requested that its drivers be
allowed up to 15 hours to return to the work reporting location,
enforcement officials who encounter Van Wyk drivers would have
difficulty determining whether the driver has exceeded the 10-hour
rule. The driver would not have a log book so the inspector would not
be able to determine the time the driver started working, the total
amount of driving time before the driver was stopped, the amount of
time the driver spent performing non-driving tasks, or the time the
driver was supposed to return to the work reporting location. If there
were proof of the time the driver started working, the enforcement
official would still be unable to determine the total driving time, and
time spent on non-driving tasks.
Generally, if the enforcement official contacted the motor carrier,
it is unlikely that the carrier could state with certainty the driver's
total driving time for the day and the time spent on non-driving tasks.
This is especially the case if the carrier had no practicable means of
verifying the driver's whereabouts at any given time during the day.
The increase in the 12-hour return-to-terminal time limit would provide
drivers with three additional hours away from the work reporting
location with no apparent safeguards to ensure that the driver adhered
to the driving time limitations. The current rule, by contrast,
requires that the driver return to the work reporting location within
12 hours. This means the 10-hour rule could be exceeded by
substantially less than two hours, considering a 30-minute lunch break
for the driver, loading and unloading time, etc.
Irrespective of Van Wyk's intentions, the OMCS does not believe
that a motor carrier should be allowed to put itself into a situation
in which it could not effectively monitor its drivers' compliance with
the maximum driving time restriction. Van Wyk has not indicated how, or
even whether, it intends to carefully review drivers' assignments
(e.g., look at the specific
[[Page 72376]]
locations the driver is dispatched to during the work day, the amount
of time required to travel from location to location, the amount of
time spent at each location, etc.) to supplement the electronic time
records, which typically would only prove when the driver reported for
work and when the driver was released from work. Therefore, the OMCS
does not believe it is likely that Van Wyk could ensure a level of
safety that is equivalent to, or greater than, the level of safety
provided by complying with the hours-of-service regulations.
On November 5, 1996 (61 FR 57252), the FHWA published an advance
notice of proposed rulemaking (ANPRM) on all aspects of the hours-of-
service regulations. The agency indicated that it was nearing the
completion of several research projects and was seeking the results of
other relevant research, including research, operational tests, or
pilot regulatory programs conducted anywhere in the world, that could
be used in developing a revised regulatory scheme for CMV drivers'
hours-of-service. The OMCS has reviewed all the research reports
submitted by commenters to the rulemaking docket, and scientific
information obtained through other sources, and is not aware of any
data that would support creating a regulatory relief program that, if
abused, would enable a person to drive a CMV up to 13 hours, and
perhaps even longer. Copies of all known research reports, as well as
all comments submitted in response to the ANRPM, are available in FHWA
Docket No. FHWA-97-2350.
Request for Comments
In accordance with 49 U.S.C. 31315 and 31136(e), the OMCS is
requesting public comment from all interested persons on the exemption
application from Van Wyk. All comments received before the close of
business on the comment closing date indicated at the beginning of this
notice will be considered and will be available for examination in the
docket at the location listed under the address section of this notice.
Comments received after the comment closing date will be filed in the
public docket and will be considered to the extent practicable, but the
OMCS may deny the exemption at any time after the close of the comment
period. In addition to late comments, the OMCS will also continue to
file, in the public docket, relevant information that becomes available
after the comment closing date. Interested persons should continue to
examine the public docket for new material.
Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.
Issued on: December 21, 1999.
Julie Anna Cirillo,
Acting Director, Office of Motor Carrier Safety.
[FR Doc. 99-33474 Filed 12-23-99; 8:45 am]
BILLING CODE 4910-22-P