Hours-of-Service of Drivers; Exemption Application from Van Wyk Freight Lines, Inc.

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]

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