Hours of Service of Drivers: WestRock Application for Renewal of Exemption

AGENCY:

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

ACTION:

Notice of provisional renewal of exemption; request for comments.

SUMMARY:

FMCSA announces its decision to provisionally renew the exemption currently held by WestRock from the hours-of-service (HOS) regulations that prohibit drivers from operating property-carrying commercial motor vehicles (CMVs) after 14 hours on duty and require 10 hours off duty before resuming driving. FMCSA renews this limited exemption for WestRock's shipping department employees and occasional substitute commercial driver's license (CDL) holders who transport paper mill products short distances on a public road between its shipping and receiving locations. The exemption is restricted to a specific route, measuring less than 300 feet in one direction, in Chattanooga, Tennessee. This exemption will allow these individuals to occasionally work up to 16 consecutive hours and be allowed to return to work with less than the mandatory 10 consecutive hours off duty. The Agency previously determined that the CMV operations of WestRock's drivers under this exemption would likely maintain a level of safety equivalent to or greater than the level of safety that would be achieved in the absence of the exemption. The exemption renewal is for 5 years.

DATES:

This renewed exemption is effective from April 17, 2024, and expires on April 16, 2029. Comments must be received on or before February 20, 2024.

ADDRESSES:

You may submit comments identified by Federal Docket Management System Number FMCSA–2010–0027 by any of the following methods:

• Federal eRulemaking Portal: www.regulations.gov. See the Public Participation and Request for Comments section below for further information.

• Mail: Dockets Operations, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12–140, Washington, DC 20590–0001.

• Hand Delivery or Courier: West Building, Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590–0001 between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays.

• Fax: (202) 493–2251.

Each submission must include the Agency name and the docket number for this notice (FMCSA–2010–0027). Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below.

Docket: For access to the docket to read background documents or comments, go to www.regulations.gov at any time or visit the ground level of the U.S. Department of Transportation, West Building, at 1200 New Jersey Avenue SE, Washington, DC 20590–0001 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.

Privacy Act: In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption renewal request. DOT posts these comments, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed under the “Department Wide System of Records Notices” at www.dot.gov/privacy/privacy-act-system-records-notices. The comments are searchable by the name of the submitter and are posted without edit.

FOR FURTHER INFORMATION CONTACT:

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 Operations, (202) 366–9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

FMCSA encourages you to participate by submitting comments and related materials.

Submitting Comments

If you submit a comment, please include the docket number for this notice (FMCSA–2010–0027), indicate the specific section of this document to which the comment applies and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go to www.regulations.gov and put the docket number FMCSA–2010–0027 in the “Search” box, and click “Search.” When the new screen appears, click on “Documents” button, then click the “Comment” button associated with the latest notice posted. Another screen will appear, on which you will insert the required information. Choose whether you are submitting your comment as an individual, an organization, or anonymous. Click “Submit Comment.”

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period.

II. Legal Basis

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from 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 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 maintain a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305).

The Agency must publish the decision in the Federal Register (49 CFR 381.315(b)), including the reason for the grant or denial; 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 5 years) and explain the terms and conditions of the exemption. The exemption may be renewed for up to 5 years pursuant to 49 CFR 381.300(b). WestRock has requested a five-year extension of the current exemption in Docket No. FMCSA–2010–0027.

III. Background

Current Regulatory Requirements

Under 49 CFR 395.3(a)(2) non-short haul drivers may not drive after having been on duty for a period of 14 consecutive hours until they have been off duty for a minimum of 10 consecutive hours, or the equivalent of at least 10 consecutive hours off duty. However, certain short-haul drivers are allowed a 16-hour driving window once a week, and other short-haul drivers not requiring a commercial driver's license are allowed two 16-hour duty periods per week provided specified conditions are met. (49 CFR 395.1).

Application for Renewal of Exemption

WestRock (USDOT 153734) operates a paper mill located in Chattanooga, Tennessee. Its shipping and receiving departments are on opposite sides of the paper mill, requiring driver-employees to travel on a public road to shuttle trailers as needed. These drivers utilize a public road—Compress Street—an average of forty times per day to travel between WestRock's manufacturing facility, and shipping and receiving docks. These drivers do not transport any material farther than the paper mill lots and/or Compress Street. The distance traveled on Compress Street is approximately 275 feet in one direction, and one tractor is used to perform this work. Because the material being transported is received from or destined for other States, the local travel is interstate in nature.

WestRock's shipping department currently works 12-hour shifts for 4 days, and then allows employees 4 days off duty. However, this schedule is subject to change. There are usually two shipping department employees on each shift, one of whom drives a fork-lift truck loading trailers with finished goods, and another who operates the tractor shuttling trailers. These employees do not drive a CMV continuously during their shift(s).

At times, WestRock may operate on three 8-hour shifts with employees working a double (16-hour) shift when “rotating back.” According to WestRock, the problem arises because of the double-shift, and also on occasion when a shipping department driver does not report for work as scheduled. On a Monday, for example, if an individual worked the weekend, their shift would normally have to “hurry back” within 8 hours. As a result of the mandatory 10 hours off-duty requirement for drivers, without the exemption WestRock would be required to schedule these drivers' shifts to start later than other employees. This would create at least 2 hours when the company could not load or transport trailers with finished goods due to the absence of the drivers. Furthermore, as a result of the 14-hour driving window, they would “work short” without the exemption, creating on-time delivery issues for other employees, who are allowed to work an entire “double shift” (16 hours) when necessary.

WestRock (then known as RockTenn) submitted its initial exemption application for relief from the HOS rules in 2009; a copy of the application is in the docket. That application fully describes the nature of shipping operations encountered by CMV drivers employed by WestRock. On May 29, 2012, FMCSA granted WestRock the limited exemption (77 FR 31684). FMCSA has since renewed this limited exemption on three occasions: April 22, 2014 (77 FR 22571); July 25, 2016 (81 FR 48496) and July 29, 2019 (84 FR 36655). The current exemption expires on April 16, 2024.

WestRock has requested an additional five-year renewal of the exemption for its shipping department employees and occasional substitute CDL holders who transport paper mill products short distances (less than 300 feet in one direction) between its shipping and receiving locations on a public road. The exemption allows these employees to work up to 16 consecutive hours in a duty period and return to work with a minimum of at least 8 hours off duty when necessary for efficient operations.

IV. Equivalent Level Safety

Since 2012, FMCSA has determined that the operations of WestRock's drivers would likely maintain a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. WestRock's shipping department employees and occasional substitute CDL holders covered by the exemption are exclusively assigned to a specific route on a public road for brief periods of time. This route is entirely on one street (Compress Street), between the shipping and receiving departments, measuring approximately 275 feet in one direction. FMCSA previously noted that the exemption is comparable to current HOS regulations that allow certain “short-haul” drivers a 16-hour driving “window” once a week and other non-CDL short-haul drivers two 16-hour duty periods per week, provided specified conditions are met.

FMCSA is unaware of any evidence of a degradation of safety attributable to the current exemption for WestRock's drivers. Further, WestRock asserted that, since the initial approval of its waiver, it has operated safely without incident. There is no indication of an adverse impact on safety while operating under the terms and conditions specified in the initial exemption or exemption renewals.

FMCSA therefore concludes that provisionally renewing the exemption granted on July 29, 2019, for another five years, under the terms and conditions listed below, will likely maintain a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption.

V. Exemption Decision

A. Grant of Provisional Renewal of Exemption

FMCSA provisionally renews the exemption for a period of five years, subject to the terms and conditions of this decision and the absence of adverse public comments that would cause the Agency to terminate the exemption. If comments are received to the public docket, FMCSA will publish a second Federal Register notice affirming or revoking the renewal. The exemption from the requirements of 49 CFR 395.3(a)(1) (the 10-hour off-duty rule) and (a)(2) (the “14-hour rule”) is otherwise effective beginning April 17, 2024, through April 16, 2029, 11:59 p.m. local time, unless previously revoked.

B. Applicability of Exemption

During the exemption period, WestRock's shipping department employees and occasional substitute CDL holders who transport paper mill products between the shipping and receiving locations along the designated route on Compress Street in Chattanooga, TN, may work up to 16 consecutive hours in a duty period and return to work with a minimum of at least 8 hours off duty when necessary.

C. Terms and Conditions

The exemption is restricted to shipping department employees and occasional substitute CDL holders employed by WestRock who are exclusively assigned to a specific route. This specific route is entirely on Compress Street, between WestRock's shipping and receiving departments, measuring approximately 275 feet in one direction.

D. Preemption

In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, 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.

E. Notification to FMCSA

WestRock 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) Name of the exemption: “WestRock”;

(b) Date of the accident;

(c) City or town, and State, in which the accident occurred, or which is closest to the accident scene;

(d) Driver's name and license number;

(e) Vehicle number and State license number;

(f) Number of individuals suffering physical injury;

(g) Number of fatalities;

(h) The police-reported cause of the accident;

(i) Whether the driver was cited for violation of any traffic laws, motor carrier safety regulations; and

(j) The driver's total driving time and total on-duty time prior to the accident.

Reports filed under this provision shall be emailed to MCPSD@DOT.GOV.

F. Termination

FMCSA does not believe the drivers covered by this exemption will experience any deterioration of their safety record. The exemption will be rescinded if: (1) WestRock and drivers operating under the exemption fail to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objects of 49 U.S.C. 31136(e) and 31315(b).

VI. Request for Comments

FMCSA requests public comment from all interested persons regarding WestRock's application for a renewal of the exemption. The Agency will evaluate any adverse evidence submitted and, if it determines safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA may take immediate steps to revoke or modify the exemption.