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Hours of Service of Drivers: Western Pilot Service Application for Exemption

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Federal Motor Carrier Safety Administration (FMCSA), DOT.


Notice of application for exemption; request for comments.


FMCSA has received an application from Western Pilot Service (“Western”) requesting an exemption from certain hours-of-service (HOS) provisions of the Federal Motor Carrier Safety Regulations (FMCSRs). The exemption request is for Western's drivers who transport aviation fuel for aircraft used in wild-land firefighting operations. Western specifically requests an exemption for up to 15 drivers from § 395.3(b)(2), the HOS prohibition against driving a commercial motor vehicle (CMV) after the 70th hour of cumulative on-duty time in any 8-day period. FMCSA requests public comment on the Western application for exemption.


Comments must be received on or before November 2, 2011.


You may submit comments identified by Federal Docket Management System Number [FMCSA-2011-0084] by any of the following methods:

  • Federal eRulemaking Portal: Follow the online instructions for submitting comments.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, 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., between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays.

Instructions: All submissions must include the Agency name and docket number. For detailed instructions on submitting comments and additional information on the exemption process, see the Public Participation heading below. Note that all comments received will be posted without change to, including any personal information provided. Please see the Privacy Act heading below.

Docket: For access to the docket to read background documents or comments received, go to, and follow the online instructions for accessing the dockets, or go to the street address listed above.

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476) or you may visit

Public participation: The Federal eRulemaking Portal is available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “help” section of the Federal eRulemaking Portal Web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments online. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable.

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Mr. Thomas Yager, Chief, FMCSA Driver Start Printed Page 61138and Carrier Operations Division; Office of Bus and Truck Standards and Operations; Telephone: 202-366-4325. E-mail:

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Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998) amended 49 U.S.C. 31136(e) and 31315 to provide authority to grant exemptions from the FMCSRs. Under its 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 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 HOS regulations in 49 CFR 395.3(b)(2) prohibit a property-carrying commercial motor vehicle (CMV) driver from driving a CMV after having been on duty for 70 cumulative hours in any period of 8 consecutive days, if the employing motor carrier operates CMVs every day of the week.

Western is a tactical aerial firefighting company that operates in support of wild-land firefighting operations under contract with various government agencies such as the U. S. Forest Service, Bureau of Land Management, and the Bureau of Indian Affairs. Western is based in Phoenix, Arizona. The requested exemption would apply to no more than 15 ground support truck drivers employed by Western. The company operates a total of 12 ground support CMVs.

Each Western firefighting aircraft is teamed with a ground unit, which includes a driver and a CMV that pulls a gooseneck trailer transporting various mixing tanks, motors, and aviation fuel. Western states that its contracts require it to staff its units for a minimum of 9 hours and up to a maximum of 14 hours a day. Western's equipment must be set up at a designated government base and be ready to mix, load, fuel, and service its aircraft at all times during daylight hours and must be capable of going to an alternative base when requested. The ground support vehicles carry aviation fuel for their respective aircraft; the primary role of the driver is to service and re-fuel the aircraft. While the operation of the ground support vehicle is a secondary role, each driver is subject to the FMCSRs including 49 CFR part 395.

Western states that on a typical day its drivers report to work at 9 a.m. and perform a pre-trip inspection. The drivers prepare their daily logs, manifest, load logs, and mileage logs and attend a fire weather outlook briefing. The drivers may relax and sleep if they feel the need after the briefing and completion of any portion of daily duty requirements. If there is no late afternoon fire activity, the drivers are usually released at 6 p.m. (9-hour day).

Western contends that with no fire activity, drivers may perform no more than 4 hours of actual physical and mental work in a given day. While Western's drivers wait for an aircraft to be dispatched or land, they are “available” and in “readiness to work,” and are therefore considered to be “on-duty, not driving” and subject to the 70-hour/8-day rule.

The problem arises because Western's drivers sometimes run out of available hours in 5 days at 14 hours on duty per day, based on the 70-hour/8-day rule. Currently, Western has relief drivers who travel to give regular drivers 2 days off every 7 days to ensure that they stay in compliance with the HOS regulations.

Instead of complying with the 70-hour/8-day rule, Western would like drivers to have 2 consecutive days off in a 14-day period so that they are on the same schedule as the pilots operating the aircraft, who are required by Federal Aviation Administration rules to have 2 consecutive days off daily in a 2-week period. Western states that if its exemption request is granted, the drivers would still be held to the 14-hour driving windows and 11-hour driving limit every day the drivers are on duty. Western reasons that because its regular drivers have access to rest facilities, and permission to rest and relax during the day, they are not becoming fatigued. Western contends that these drivers operate in a relaxing, stress-free environment.

A copy of the Western Pilot Service exemption application is available for review in the docket for this notice.

Request for Comments

In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA requests public comment on the Western application for an exemption from the “70-hour/8-day rule” in 49 CFR part 395. The Agency will consider all comments received by close of business on November 2, 2011. Comments will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. The Agency will consider to the extent practicable comments received in the public docket after the closing date of the comment period.

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Issued on: September 16, 2011.

Larry W. Minor,

Associate Administrator for Policy.

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[FR Doc. 2011-25323 Filed 9-30-11; 8:45 am]