Hours of Service of Drivers: Reiman Corp.; Denial of Application for Exemption

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

ACTION:

Notice of final disposition; denial of application for exemption.

SUMMARY:

FMCSA announces its denial of Reiman Corp.'s (Reiman) request for an exemption from certain hours-of-service (HOS) regulations. Reiman's drivers transport latex embedded cement for use at highway construction sites. Reiman requests that it be allowed to operate under the same HOS exemption provided for “specially trained drivers of commercial motor vehicles that are specially constructed to service oil wells.” FMCSA analyzed the application and public comment and determined that Reiman did not demonstrate how the commercial motor vehicle (CMV) operations under such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved in the absence of the exemption.

FOR FURTHER INFORMATION CONTACT:

Ms. Pearlie Robinson, Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; FMCSA; 202-366-4225; pearlie.robinson@dot.gov. If you have questions on viewing or submitting material to the docket, contact Dockets Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

To view comments, go to www.regulations.gov, insert the docket number “FMCSA-2023-0195” in the keyword box, and click “Search.” Next, sort the results by “Posted (Newer-Older),” choose the first notice listed, and click “View Related Comments.”

To view documents mentioned in this notice as being available in the docket, go to www.regulations.gov, insert the docket number “FMCSA-2023-0195” in the keyword box, click “Search,” and chose the document to review.

If you do not have access to the internet, you may view the docket by visiting Dockets Operations at U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, 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 Dockets Operations.

II. Legal Basis

FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant exemptions from 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 the applicant's safety analysis. The Agency must 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(a)). The Agency must publish its decision in the Federal Register (49 CFR 381.315(b)). If granted, the notice will identify the regulatory provision from which the applicant will be exempt, the effective period, and all terms and conditions of the exemption (49 CFR 381.315(c)(1)). If the exemption is denied, the notice will explain the reason for the denial (49 CFR 381.315(c)(2)). The exemption may be renewed (49 CFR 381.300(b)).

III. Background

Current Regulatory Requirements

The HOS regulations in 49 CFR part 395 limit the time CMV drivers may drive and require certain off-duty periods to ensure that individuals stay awake and alert while driving. Generally, a driver may not record time as “off-duty” unless he or she has been relieved of all duty and responsibility for the care and custody of the CMV, its accessories, and its cargo, and is free to pursue activities of his or her own choosing. Thus, drivers who are waiting, whether at a loading dock or at a natural gas or oil well site, are generally considered to be “on duty.” Section 395.3(a)(2) provides that “a driver may not drive after a period of 14 consecutive hours after coming on-duty following 10 consecutive hours off-duty.” However, the FMCSRs provide an exception to the 14-hour rule for the waiting time of a specific classification of driver. Section 395.1(d)(2) provides, ``In case of specially trained drivers of CMVs that are specially constructed to service oil wells, on-duty time shall not include waiting time at a natural gas or oil well site. Such waiting time shall be recorded as `off-duty' for purposes of §§ 395.8 and 395.15.'' Section 395.1(d)(2) also provides that the waiting time of these drivers ``shall not be included in calculating the 14-hour period in §395.3(a)(2).'' Furthermore, specially trained drivers of such CMVs are not eligible to use the short-haul operations exemption in §395.1(e)(1).

Applicant's Request

Reiman indicated that it is involved in the construction of highway roads and bridges and not in support of oilfield operations. Reiman requests an exemption for nine of its drivers from certain HOS regulations because it considers its operations similar to the oilfield operations exempted in 49 CFR 395.1(d)(2), including that these drivers are specially trained to operate vehicles that are specially designed to transport specific products with vehicle-mounted equipment. The requested exemption would allow these drivers who transport latex embedded cement to record waiting time at construction sites as “off-duty” for purposes of 49 CFR 395.8 and 395.15. Further, Reiman would not include waiting time in calculating the 14-hour period in 49 CFR 395.3(a)(2), and the drivers would not be eligible to use the short-haul operations provision in § 395.1(e)(1).

Applicant's Method To Ensure an Equivalent or Greater Level of Safety

According to Reiman:

The company is aware of the risks inherent with the extended hours of operations and will ensure the driver is not operating the CMV while fatigued. This will be accomplished by the managers and on-site project supervisors attending “Distracted Driving and Fatigue Awareness” training, as well as through face-to-face interactions with the driver(s), the intent being increased awareness of the drivers mental and physical state.

IV. Public Comments

On November 16, 2023, FMCSA published Reiman's application and requested public comment (88 FR 11504). The Agency received one response, a joint comment filed by Advocates for Highway and Auto Safety and the Truck Safety Coalition in opposition to the requested exemption. These organizations commented that, “The basis for seeking the exemption is no more than the normal daily logistical issues presented by the Petitioner's daily operations.” The commenters also stated that “Permitting an exemption for any industry or group of drivers that face waiting times would render the HOS limitations meaningless at a time when driver fatigue remains a serious safety issue.”

V. FMCSA Safety Analysis and Decision

FMCSA has evaluated Reiman's application and the public comment and denies the exemption request. The Agency continues to rely on the substantial body of HOS research that supported the adoption of the 14-hour rule (68 FR 22473, April 28, 2003). Fatigue during the workday represents a significant safety risk if this exemption were granted because drivers would operate their CMVs after the 14th hour of coming on duty. The risk of fatigue increases significantly after the 14th hour of coming on duty, despite miscellaneous off-duty periods during the work shift.

The applicant did not include alternatives to compliance with the 14-hour rule, such as some other fixed driving window within which all driving must be completed. The proposed relief from the 14-hour rule would enable miscellaneous off-duty periods at the construction sites to be excluded when determining whether the drivers may operate the CMV during the latter part of the workday. This would create the potential for fatigued drivers, subject to long workdays and without consideration of whether the driver had accumulated 14 hours of on-duty time before completing their driving tasks for the day. The applicant has not demonstrated that granting the exemption would achieve an equivalent level of safety to the existing regulation.

For the above reasons, FMCSA denies Reiman's exemption application.