[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Notices]
[Pages 50912-50914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20686]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2015-0012]


Hours of Service of Drivers: Application for Exemption; American 
Trucking Associations, Inc.

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

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

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SUMMARY: FMCSA announces its decision to grant motor carriers 
transporting security-sensitive hazardous materials (HM) requiring a 
security plan an exemption from the Federal hours-of-service (HOS) 
regulations that prohibit commercial motor vehicle (CMV) drivers from 
driving a CMV if more than 8 consecutive hours have passed since the 
driver's last off-duty or sleeper-berth period of 30 minutes or more. 
American Trucking Associations, Inc. (ATA) requested the exemption on 
behalf of all motor carriers that transport certain HM shipments 
requiring security plans under regulations of the Pipeline and 
Hazardous Materials Safety Administration (PHMSA). These plans normally 
require a driver to attend such cargo while the CMV is stopped, which 
is an on-duty activity under the HOS rules. Exempt drivers may now 
count their on-duty attendance of HM cargo toward the required 30-
minute rest break requirement provided they perform no other on-duty 
activity. This exemption parallels Sec.  395.1(q) of the Federal Motor 
Carrier Safety Regulations (FMCSRs) that allows drivers who are 
attending loads of certain explosives to count on-duty attendance time 
toward their rest break so long as they engage in no other on-duty 
activity.

DATES: The exemption is effective August 21, 2015 and expires on August 
21, 2017.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325; Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from the FMCSRs. FMCSA must publish a notice of each 
exemption request in the Federal Register (49 CFR 381.315(a)). The 
Agency must provide

[[Page 50913]]

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 2 years), and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

Driver Attendance and Rest Breaks

    Some shipments of property by CMV require that the vehicle be 
attended at all times, such as shipments of explosives, weapons, or 
radioactive materials. Constant attendance of the CMV may be explicitly 
required by Federal or State law, or by the terms of the shipment 
contract. For example, Section 397.5 of the FMCSRs requires drivers 
transporting cargo classified as Division 1.1, 1.2, or 1.3 (explosive) 
materials to attend the cargo at all times.
    On December 27, 2011, FMCSA published a final rule amending the HOS 
rules (76 FR 81134). The Agency added a new requirement that drivers 
obtain a rest break: ``After June 30, 2013, driving is not permitted if 
more than 8 hours have passed since the end of the driver's last off-
duty or sleeper-berth period of at least 30 minutes.'' (Sec.  
395.3(a)(3)(ii)). Thus, drivers must expand a fueling stop or other 
break to ensure that they go off duty (or into the sleeper berth) for 
at least 30 consecutive minutes to satisfy this requirement. The 
drivers must make an entry on their record of duty status (RODS) 
showing the off-duty time.
    By definition, on-duty time includes all time ``. . . [p]erforming 
any other work in the capacity, employ, or service of, a motor 
carrier'' (Sec.  395.2). A driver attending a CMV is on duty. During 
the 2011 HOS rulemaking, motor carriers of hazardous materials 
identified the conflict between HM attendance under Sec.  397.5 and the 
rest-break requirement. As a result, FMCSA included Sec.  395.1(q) in 
the 2011 HOS amendments. This section permits drivers who are attending 
a motor vehicle transporting Division 1.1-1.3 explosives, but 
performing no other work, to log a period of at least 30 consecutive 
minutes of the time spent attending the CMV toward the break. The 
driver annotates his log to indicate when the Sec.  395.1(q) break was 
taken. The time is on-duty time, and counts against the driver's 
maximum time on duty of 60 hours in 7 days (in some cases, 70 hours in 
8 days).

Request for Exemption

    Another Federal agency, PHMSA, requires motor carriers transporting 
materials requiring placarding under 49 CFR part 172, subpart F, or 
certain agents and toxins identified in Sec.  172.800(b)(13) that do 
not require placarding, to develop special plans that account for 
personnel, cargo, and en route security (49 CFR 172.800-804). Most 
carriers include constant attendance on cargo in these security plans. 
Because attendance on a CMV is considered on-duty time under the HOS 
rules, drivers who are required by their carrier's HM security plan to 
attend the CMV at all times cannot go off duty to satisfy the HOS rest-
break requirement.
    ATA filed this exemption request on behalf of all motor carriers 
whose drivers transport HM loads subject to the PHMSA security plan 
requirement. ATA asserts that allowing these drivers to count up to 30 
minutes of their attendance time as the required rest break if they 
perform no other on-duty activities during the break would likely 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved by the current regulation. It asserts that 
attendance is unlikely to contribute to driver fatigue and that 
allowing these drivers to maintain their attendance of these loads 
provides better security than if the driver has to leave the vehicle to 
obtain 30 minutes off duty.

Public Comments

    The FMCSA published a notice announcing and requesting public 
comment on ATA's exemption request on May 1, 2015 (80 FR 25004). 
Thirteen comments were submitted. Three individuals expressed concern 
that the exemption was only of value to large trucking firms and that 
the Agency should deny all applications for exemption. Advocates for 
Highway and Auto Safety thought the exemption was overly broad, 
permitting motor carriers engaged in qualifying HM shipments to use the 
exemption for their shipments of non-HM cargo. Several trade groups and 
two drivers favored the application as a necessary solution to a 
regulatory dilemma.

FMCSA Response

    FMCSA has evaluated ATA's application for exemption and the public 
comments submitted. Opponents of the exemption did not address the 
regulatory dilemma described in the application for exemption and 
echoed by the comments of drivers and trade organizations supporting 
the exemption. The Agency finds the arguments in favor of the exemption 
persuasive. FMCSA believes it has designed terms and conditions for 
this exemption sufficient to relieve this dilemma while preventing its 
abuse. Motor carriers may only use this exemption when their drivers 
are actually transporting HM that requires placarding or includes a 
select agent or toxin identified in Sec.  172.800(b)(13), and for which 
a security plan has been filed under Sec. Sec.  172.800-804. If a 
driver is not transporting qualifying HM materials, he or she is not 
entitled to substitute attendance for the required off-duty break. 
Drivers operating under this exemption may count up to 30 minutes of 
their on-duty attendance time toward a required rest break, if they 
perform no other on-duty activities during the rest-break period.
    It should be noted that there is no motive for a driver or carrier 
to claim this exemption when not entitled to it. A driver who is not 
required to constantly attend his or her vehicle must take the minimum 
30-minute rest break as off-duty time, which does not count against the 
7 or 8-day limit of 60 or 70 hours on-duty. A driver claiming this 
exemption unnecessarily would be required to take the same rest breaks, 
but would be on-duty and the time would count against the 60 or 70-hour 
limit.

FMCSA Decision

    In consideration of the above, FMCSA has determined that it is 
appropriate to provide a two-year exemption from the 30-minute break 
requirement for carriers whose drivers transport HM loads requiring 
placarding under 49 CFR part 172, subpart F, or select agents and 
toxins identified in Sec.  172.800(b)(13) that do not require 
placarding, and who have filed security plans requiring constant 
attendance of HM in accordance with Sec. Sec.  172.800-804. Drivers 
must annotate their RODS to show the on-duty time claimed as a rest 
break to satisfy a security plan requiring attendance of HM loads.
    Under these terms and conditions described below, the application 
for exemption is likely to achieve a level of

[[Page 50914]]

safety that is equivalent to, or greater than, the level that would be 
achieved absent such exemption. Motor carriers utilizing the exemption 
will be required to report any accidents, as defined in 49 CFR 390.5, 
to FMCSA. The exemption is eligible for renewal at the end of the two-
year period.

Terms and Conditions of the Exemption

Extent of the Exemption

    This exemption is limited to drivers transporting HM loads 
requiring placarding under 49 CFR part 172, subpart F, or select agents 
and toxins identified in Sec.  172.800(b)(13) that do not require 
placarding, and who have filed security plans requiring constant 
attendance of HM in accordance with Sec. Sec.  172.800-804. This 
exemption is limited to motor carriers that have a ``satisfactory'' 
safety rating or are ``unrated''; motor carriers with ``conditional'' 
or ``unsatisfactory'' safety ratings are prohibited from utilizing this 
exemption. Drivers must have a copy of the exemption document in their 
possession while operating under the terms of the exemption and must 
present it to law enforcement officials upon request.

Accident Reporting

    Motor carriers must notify FMCSA by email addressed to 
[email protected] with 5 business days of any accident (as defined in 49 
CFR 390.5) that occurs while its driver is operating under the terms of 
this exemption. The notification must include:
    a. Identifier of the Exemption: ``HM''
    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. Name of co-driver, 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.

Safety Oversight of Carriers Operating Under the Exemption

    FMCSA expects each motor carrier operating under the terms and 
conditions of this exemption to maintain its safety record. However, 
should safety deteriorate, FMCSA will, consistent with the statutory 
requirements of 49 U.S.C. 31315, take all steps necessary to protect 
the public interest. Authorization of the exemption is discretionary, 
and FMCSA will immediately revoke the exemption of any motor carrier or 
driver for failure to comply with the terms and conditions of the 
exemption.

Preemption

    During the period the exemption is in effect, no State may enforce 
any law or regulation that conflicts with or is inconsistent with this 
exemption with respect to a person or entity operating under the 
exemption [49 U.S.C. 31315(d)].

    Issued on: August 6, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-20686 Filed 8-20-15; 8:45 am]
BILLING CODE 4910-EX-P