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Hours of Service of Drivers: U.S. Department of Defense (DOD); Application for Exemption

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Hours of Service of Drivers: U.S. Department of Defense (DOD); Application for Exemption

Anne S. Ferro
Federal Motor Carrier Safety Administration
October 28, 2013


[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Notices]
[Pages 64265-64267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25375]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0275]


Hours of Service of Drivers: U.S. Department of Defense (DOD); 
Application for Exemption

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 the U.S. Department of 
Defense (DOD) Military Surface Deployment and Distribution Command 
(SDDC) an exemption from the minimum 30-minute rest break provision of 
the Agency's hours-of-service (HOS) regulations for commercial motor 
vehicle (CMV) drivers. The exemption enables SDDC's contract motor 
carriers and their employee-drivers engaged in the transportation of 
weapons, munitions, and sensitive/classified cargo to have the same 
regulatory flexibility that 49 CFR 395.1(q) provides for drivers 
transporting explosives. The exempted drivers are allowed to use 30 
minutes or more of attendance time to meet the HOS rest break 
requirements, provided they do not perform any other work during the 
break.

DATES: This exemption is effective from 12:01 a.m., October 22, 2013, 
through 11:59 p.m., October 21, 2015.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver, and Vehicle 
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of 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

[[Page 64266]]

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

Request for Exemption

    The Military Surface Deployment and Distribution Command (SDDC) 
manages the motor carrier industry contracts for the Department of 
Defense (DOD). Certain motor carriers under contract to the SDDC 
provide protective services while transporting weapons, munitions, and 
sensitive/classified cargo.
    SDDC requests a limited exemption from the HOS regulation 
pertaining to rest breaks [49 CFR 395.3(a)(3)(ii)] to allow SDDC-
contracted drivers providing dual driver-protective services to be 
treated the same as drivers transporting explosives, as provided in 
Sec.  395.1(q). Section 395.1(q) states that operators of CMVs carrying 
Division 1.1, 1.2, or 1.3 explosives subject to the requirement for a 
minimum 30-minute rest break in Sec.  395.3(a)(3)(ii) may use 30 
minutes or more of ``attendance time'' to meet the requirement for a 
rest break. FMCSA analyzed SDDC's request and on July 23, 2013, granted 
a limited 90-day waiver for SDDC-contracted motor carriers and drivers 
from the HOS rest break requirement. The waiver expired on October 22, 
2013.
    SDDC believes that shipments moved under the requested exemption 
would achieve a level of safety and security that is at least 
equivalent to what would be obtained by following the normal break 
requirements in Sec.  395.3(a)(3)(ii).
    SDDC states that it requires continuous attendance and surveillance 
of such shipments until they reach their final destination. SDDC states 
that it has instituted several technical and administrative controls to 
ensure the efficient transportation of cargo requiring protective 
services, controls that would remain in effect under the requested 
exemption. They include the following:
     Conducting review of carrier compliance requirements and 
procedures for moving hazardous cargo.
     Evaluating carrier authority to operate on U.S. roadways.
     Evaluating carrier compliance with FMCSA's Compliance 
Safety Accountability program and Safety Measurement System standards.
     Providing over-the-road vehicle surveillance.
     Inspecting carrier facilities and corporate headquarters 
for compliance with DOD and DOT standards.
    Further details regarding SDDC's safety controls can be found in 
its application for exemption. The application can be accessed in the 
docket identified at the beginning of this notice. SDDC asserts that 
granting the exemption would allow driver teams to manage their en-
route rest periods efficiently and also perform mandated shipment 
security surveillance, resulting in both safe driving performance and 
greater security of cargo during long-distance trips.
    SDDC anticipates no safety impacts from this exemption and believes 
that its contract employee drivers should be allowed to follow the 
requirements in Sec.  395.1(q) when transporting shipments of sensitive 
DOD cargo. SDDC believes that shipments made under the requested 
exemption would achieve a level of safety and security that is at least 
equivalent to that which would be obtained by following the normal 
break requirement in Sec.  395.3(a)(3)(ii).
    SDDC indicated that 40 contract carriers with approximately 1,942 
power units and 3,000 drivers would currently be eligible for the 
exemption if granted. The proposed exemption would be effective for 2 
years, the maximum period allowed by Sec.  381.300.

Public Comments

    On August 12, 2013, FMCSA published notice of this application, and 
asked for public comment (78 FR 48927). Six comments were submitted. An 
anonymous respondent commented by stating, ``If the Federal Motor 
Carrier Safety Administration approves this exemption for SDDC then 
they should at least approve the exemption for all team drivers (if not 
all drivers) of commercial motor vehicles fleet and owner/operators 
operating in the FMCSA jurisdiction based on the SDDC exemption 
document.'' Another anonymous respondent opposed the exemption by 
stating, ``I feel as someone who has held a job as a long distance 
driver it is important to have regular rest breaks.'' Mr. Wayne Yoder 
commented by stating that ``If the FMCSA concludes allowing munitions 
haulers to monitor their vehicles while on their 30 minute break does 
not detract from highway safety, then all drivers should be allowed to 
monitor their vehicles while on their 30 minute break.'' Mr. David A. 
Bell provided comments in support of the exemption.
    The American Trucking Associations (ATA) and Boyle Transportation 
also provided comments in support of the exemption. ATA commented by 
stating ``FMCSA should grant the Department of Defense's request to 
preserve en route security, just as it did for a previous Department of 
Energy exemption request. Doing so preserves a well-established cargo 
security practice in place before the thirty minute rest break 
requirement took effect.'' Boyle Transportation commented by stating 
``We urge the Federal Motor Carrier Safety Administration to grant this 
exemption but with more stringent terms and conditions than those 
identified in the 90-day waiver dated July 23, 2013.'' Additionally, 
Boyle Transportation made recommendations for FMCSA to place in the 
terms and conditions for this exemption. All comments are available for 
review in the docket for this notice.

FMCSA Decision

    The FMCSA has evaluated SDDC's application for exemption and the 
public comments. The Agency believes that SDDC 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)]. The exempted 
drivers will receive the 30 minutes or more of rest when required since 
they will be free of all duties other than ``attending'' the vehicle 
during the break periods. The safety objectives of the break 
requirement will be met; the only subject of the exemption is the duty 
status of the driver while attending the vehicle during a required rest 
break. Therefore, the Agency grants the exemption request subject to 
the terms and conditions in this Federal Register notice.

Terms of the Exemption

    1. Drivers authorized by SDDC to utilize this exemption must have a 
copy of this exemption document in their possession while operating 
under the terms of the exemption. The exemption document must be 
presented to law enforcement officials upon request.
    2. All motor carriers operating under this exemption must have a

[[Page 64267]]

``Satisfactory'' safety rating with FMCSA, or be ``unrated;'' motor 
carriers with ``Conditional'' or ``Unsatisfactory'' FMCSA safety 
ratings are prohibited from using this exemption.
    3. All motor carriers operating under this exemption must have 
Safety Measurement System (SMS) scores below FMCSA's intervention 
thresholds, as displayed at http://ai.fmcsa.dot.gov/sms/.

Period of the Exemption

    This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is 
granted for the period from 12:01 a.m., October 22, 2013, through 11:59 
p.m., October 21, 2015.

 Extent of the Exemption

    The exemption is restricted to SDDC's contract driver-employees 
transporting security-sensitive materials. This exemption is limited to 
the provisions of 49 CFR 395.3(a)(3)(ii) to allow contract driver-
employees transporting security-sensitive 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 SDDC 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. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    c. Driver's name and driver's license number and State of issuance,
    d. Vehicle number and State license plate number,
    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident,
    h. Whether the driver was cited for violation of any traffic laws 
or motor carrier safety regulations, and
    i. 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 exemption for failure to 
comply with its terms and conditions.

    Issued on: October 23, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-25375 Filed 10-25-13; 8:45 am]
BILLING CODE 4910-EX-P

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